SENATE BILL NO. 377
INTRODUCED BY D. GRIMES, D. MOOD, BALES, BECK, BERRY, BITNEY, CRISMORE, BROWN, COLE, CURTISS, DALE, ELLIS, GROSFIELD, HARGROVE, HAINES, R. HOLDEN, KASTEN, LAIBLE, MATTHEWS, MCGEE, MCNUTT, SLITER, TASH, B. THOMAS, YOUNKIN
AN ACT REVISING THE MONTANA ENVIRONMENTAL POLICY ACT; PROVIDING TIME LIMITS AND PROCEDURES FOR CONDUCTING ENVIRONMENTAL REVIEWS; PROVIDING DEFINITIONS; PROVIDING THAT LEGAL CHALLENGES TO ACTIONS UNDER THE MONTANA ENVIRONMENTAL POLICY ACT MAY ONLY BE BROUGHT IN DISTRICT COURT OR FEDERAL COURT WITHIN 60 DAYS OF A FINAL AGENCY ACTION; PROVIDING AN EXCEPTION TO PERMITTING TIME LIMITS IF BOARD REVIEW OF CERTAIN AGENCY DECISIONS IS REQUESTED; AMENDING SECTIONS 75-1-201, 75-2-211, 75-2-218, 75-10-922, 75-20-216, 75-20-231, 76-4-125, 82-4-122, 82-4-231, 82-4-337, AND 82-4-432, MCA; AND PROVIDING AN APPLICABILITY DATE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:
Section 1. Environmental review procedure. (1) (a) Except as provided in subsection (1)(b), an agency shall comply with this section when completing any environmental review required under this part.
(b) To the extent that the requirements of this section are inconsistent with federal requirements, the requirements of this section do not apply to an environmental review that is being prepared jointly by a state agency pursuant to this part and a federal agency pursuant to the National Environmental Policy Act or to an environmental review that must comply with the requirements of the National Environmental Policy Act.
(2) A project sponsor may, after providing a 30-day notice, appear before the environmental quality council at any regularly scheduled meeting to discuss issues regarding the agency's environmental review of the project. The environmental quality council shall ensure that the appropriate agency personnel are available to answer questions.
(3) If a project sponsor experiences problems in dealing with the agency or any consultant hired by the agency regarding an environmental review, the project sponsor may submit a written request to the agency director requesting a meeting to discuss the issues. The written request must sufficiently state the issues to allow the agency to prepare for the meeting. If the issues remain unresolved after the meeting with the agency director, the project sponsor may submit a written request to appear before the appropriate board, if any, to discuss the remaining issues. A written request to the appropriate board must sufficiently state the issues to allow the agency and the board to prepare for the meeting.
(4) (a) Subject to the requirements of subsection (5), to ensure a timely completion of the environmental review process, an agency is subject to the time limits listed in this subsection (4) unless other time limits are provided by law. All time limits are measured from the date the agency receives a complete application. An agency has:
(i) 60 days to complete a public scoping process, if any;
(ii) 90 days to complete an environmental review unless a detailed statement pursuant to 75-1-201(1)(b)(iv) is required; and
(iii) 180 days to complete a detailed statement pursuant to 75-1-201(1)(b)(iv).
(b) The period of time between the request for a review by a board and the completion of a review by a board under [section 1(5) of Senate Bill No. 408, section 1(1)(b)(iv)(C)(III) of House Bill No. 459,] or subsection (10) of this section may not be included for the purposes of determining compliance with the time limits established for conducting an environmental review under this subsection or the time limits established for permitting in 75-2-211, 75-2-218, 75-10-922, 75-20-216, 75-20-231, 76-4-125, 82-4-122, 82-4-231, 82-4-337, and 82-4-432.
(5) An agency may extend the time limits in subsection (4) by notifying the project sponsor in writing that an extension is necessary and stating the basis for the extension. The agency may extend the time limit one time, and the extension may not exceed 50% of the original time period as listed in subsection (4). After one extension, the agency may not extend the time limit unless the agency and the project sponsor mutually agree to the extension.
(6) If the project sponsor disagrees with the need for the extension, the project sponsor may request that the appropriate board, if any, conduct a review of the agency's decision to extend the time period. The appropriate board may, at its discretion, submit an advisory recommendation to the agency regarding the issue.
(7) (a) Except as provided in subsection (7)(b), if an agency has not completed the environmental review by the expiration of the original or extended time period, the agency may not withhold a permit or other authority to act unless the agency makes a written finding that there is a likelihood that permit issuance or other approval to act would result in the violation of a statutory or regulatory requirement.
(b) Subsection (7)(a) does not apply to a permit granted under Title 75, chapter 2, or under Title 82, chapter 4, parts 1 and 2.
(8) Under this part, an agency may only request that information from the project sponsor that is relevant to the environmental review required under this part.
(9) An agency shall ensure that the notification for any public scoping process associated with an environmental review conducted by the agency is presented in an objective and neutral manner and that the notification does not speculate on the potential impacts of the project.
(10) An agency may not require the project sponsor to provide engineering designs in greater detail than that necessary to fairly evaluate the proposed project. The project sponsor may request that the appropriate board, if any, review an agency's request regarding the level of design detail information that the agency believes is necessary to conduct the environmental review. The appropriate board may, at its discretion, submit an advisory recommendation to the agency regarding the issue.
(11) An agency shall, when appropriate, consider the cumulative impacts of a proposed project. However, related future actions may only be considered when these actions are under concurrent consideration by any agency through preimpact statement studies, separate impact statement evaluations, or permit processing procedures.
Section 2. Definitions. For the purposes of this part, the following definitions apply:
(1) "Appropriate board" means, for administrative actions taken under this part by the:
(a) department of environmental quality, the board of environmental review as provided for in 2-15-3502;
(b) department of fish, wildlife, and parks, the fish, wildlife, and parks commission as provided for in 2-15-3402;
(c) department of transportation, the transportation commission as provided for in 2-15-2502;
(d) department of natural resources and conservation for state trust land issues, the board of land commissioners as provided for in Article X, section 4, of the Montana constitution;
(e) department of natural resources and conservation for oil and gas issues, the board of oil and gas conservation as provided for in 2-15-3303; and
(f) department of livestock, the board of livestock as provided for in 2-15-3102.
(2) "Complete application" means, for the purpose of complying with this part, an application for a permit, license, or other authorization that contains all data, studies, plans, information, forms, fees, and signatures required to be included with the application sufficient for the agency to approve the application under the applicable statutes and rules.
(3) "Cumulative impacts" means the collective impacts on the human environment of the proposed action when considered in conjunction with other past, present, and future actions related to the proposed action by location or generic type.
(4) "Environmental review" means any environmental assessment, environmental impact statement, or other written analysis required under this part by a state agency of a proposed action to determine, examine, or document the effects and impacts of the proposed action on the quality of the human and physical environment as required under this part.
(5) "Project sponsor" means any applicant, owner, operator, agency, or other entity that is proposing an action that requires an environmental review. If the action involves state agency-initiated actions on state trust lands, the term also includes each institutional beneficiary of any trust as described in The Enabling Act of congress (approved February 22, 1899, 25 Stat. 676), as amended, the Morrill Act of 1862 (7 U.S.C. 301 through 308), and the Morrill Act of 1890 (7 U.S.C. 321 through 328).
(6) "Public scoping process" means any process to determine the scope of an environmental review.
Section 3. Section 75-1-201, MCA, is amended to read:
"75-1-201. General directions -- environmental impact statements. (1) The legislature authorizes and directs that, to the fullest extent possible:
(a) the policies, regulations, and laws of the state must be interpreted and administered in accordance with the policies set forth in parts 1 through 3;
(b) under this part, all agencies of the state, except the legislature and except as provided in subsection (2), shall:
(i) use a systematic, interdisciplinary approach that will ensure the integrated use of the natural and social sciences and the environmental design arts in planning and in decisionmaking that may have an impact on the human environment;
(ii) identify and develop methods and procedures that will ensure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking, along with economic and technical considerations;
(iii) identify and develop methods and procedures that will ensure that state government actions that may impact the human environment are evaluated for regulatory restrictions on private property, as provided in subsection (1)(b)(iv)(D);
(iv) include in each recommendation or report on proposals for projects, programs, and other major actions of state government significantly affecting the quality of the human environment a detailed statement on:
(A) the environmental impact of the proposed action;
(B) any adverse environmental effects that cannot be avoided if the proposal is implemented;
(C) alternatives to the proposed action;
(D) any regulatory impacts on private property rights, including whether alternatives that reduce, minimize, or eliminate the regulation of private property rights have been analyzed. The analysis in this subsection (1)(b)(iv)(D) need not be prepared if the proposed action does not involve the regulation of private property.
(E) the relationship between local short-term uses of the human environment and the maintenance and enhancement of long-term productivity; and
(F) any irreversible and irretrievable commitments of resources that would be involved in the proposed action if it is implemented;
(v) study, develop, and describe appropriate alternatives to recommend courses of action in any proposal that involves unresolved conflicts concerning alternative uses of available resources;
(vi) recognize the national and long-range character of environmental problems and, when consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs designed to maximize national cooperation in anticipating and preventing a decline in the quality of the world environment;
(vii) make available to counties, municipalities, institutions, and individuals advice and information useful in restoring, maintaining, and enhancing the quality of the environment;
(viii) initiate and use ecological information in the planning and development of resource-oriented projects; and
(ix) assist the environmental quality council established by 5-16-101;
(c) prior to making any detailed statement as provided in subsection (1)(b)(iv), the responsible state official shall consult with and obtain the comments of any state agency that has jurisdiction by law or special expertise with respect to any environmental impact involved. The responsible state official shall also consult with and obtain comments from any state agency with respect to any regulation of private property involved. Copies of the statement and the comments and views of the appropriate state, federal, and local agencies that are authorized to develop and enforce environmental standards must be made available to the governor, the environmental quality council, and the public and must accompany the proposal through the existing agency review processes.
(d) a transfer of an ownership interest in a lease, permit, license, certificate, or other entitlement for use or permission to act by an agency, either singly or in combination with other state agencies, does not trigger review under subsection (1)(b)(iv) if there is not a material change in terms or conditions of the entitlement or unless otherwise provided by law.
(2) The department of public service regulation, in the exercise of its regulatory authority over rates and charges of railroads, motor carriers, and public utilities, is exempt from the provisions of parts 1 through 3.
(3) (a) In any action challenging or seeking review of an agency's decision that a statement pursuant to subsection (1)(b)(iv) is not required or that the statement is inadequate, the burden of proof is on the person challenging the decision. Except as provided in subsection (3)(b), in a challenge to the adequacy of a statement, a court may not consider any issue or evidence that was not first presented to the agency for the agency's consideration prior to the agency's decision. A court may not set aside the agency's decision unless it finds that there is clear and convincing evidence that the decision was arbitrary or capricious or not in compliance with law.
(b) When new, material, and significant evidence is presented to the district court that had not previously been presented to the agency for its consideration, the district court shall remand the new evidence back to the agency for the agency's consideration and an opportunity to modify its findings of fact and administrative decision before the district court considers the evidence within the administrative record under review. Immaterial or insignificant evidence may not be remanded to the agency. The district court shall review the agency's findings and decision to determine whether they are supported by substantial, credible evidence within the administrative record under review.
(4) (a) A challenge to an agency action under this part may only be brought against a final agency action and may only be brought in district court or in federal court, whichever is appropriate. Any action or proceeding challenging a final agency action alleging failure to comply with or inadequate compliance with a requirement under this part must be brought within 60 days of the action that is the subject of the challenge.
(b) Any action or proceeding under subsection (4)(a) must take precedence over other cases or matters in the district court unless otherwise provided by law."
Section 4. Section 75-2-211, MCA, is amended to read:
"75-2-211. Permits for construction, installation, alteration, or use. (1) The board shall by rule provide for the issuance, modification, suspension, revocation, and renewal of a permit issued under this part.
(2) Not Except as provided in [section 1(4)(b)], not later than 180 days before construction, installation, or alteration
begins or as a condition of use of any machine, equipment, device, or facility that the board finds may directly or indirectly
cause or contribute to air pollution or that is intended primarily to prevent or control the emission of air pollutants, the
owner or operator shall file with the department the appropriate permit application on forms available from the department.
(3) The permit program administered by the department pursuant to this section must include the following:
(a) requirements and procedures for permit applications, including standard application forms;
(b) requirements and procedures for submittal of information necessary to determine the location, quantity, and type of emissions;
(c) procedures for public notice and opportunity for comment or public hearing, as appropriate;
(d) procedures for providing notice and an opportunity for comment to contiguous states and federal agencies, as appropriate;
(e) requirements for inspection, monitoring, recordkeeping, and reporting;
(f) procedures for the transfer of permits;
(g) requirements and procedures for suspension, modification, and revocation of permits by the department;
(h) requirements and procedures for appropriate emission limitations and other requirements, including enforceable measures necessary to ensure compliance with those limitations and requirements;
(i) requirements and procedures for permit modification and amendment; and
(j) requirements and procedures for issuing a single permit authorizing emissions from similar operations at multiple temporary locations, which permit may include conditions necessary to ensure compliance with the requirements of this chapter at all authorized locations and a requirement that the owner or operator notify the department in advance of each change in location.
(4) This section does not restrict the board's authority to adopt regulations providing for a single air quality permit system.
(5) Department approval of an application to transfer a portable emission source from one location to another is exempt from the provisions of 75-1-201(1).
(6) The department may, for good cause shown, waive or shorten the time required for filing the appropriate applications.
(7) The department shall require that applications for permits be accompanied by any plans, specifications, and other information that it considers necessary.
(8) An application is not considered filed until the applicant has submitted all fees required under 75-2-220 and all information and completed application forms required pursuant to subsections (2), (3), and (7) of this section. If the department fails to notify the applicant in writing within 30 days after the purported filing of an application that the application is incomplete and fails to list the reasons why the application is considered incomplete, the application is considered filed as of the date of the purported filing.
(9) (a) If Except as provided in [section 1(4)(b)], if an application for a permit requires the preparation of an
environmental impact statement under the Montana Environmental Policy Act, Title 75, chapter 1, parts 1 through 3, the
department shall notify the applicant in writing of the approval or denial of the application within:
(i) 180 days after the department's receipt of a filed application, as provided in subsection (8), if the department prepares the environmental impact statement;
(ii) 30 days after issuance of the final environmental impact statement by the lead agency if a state agency other than the department has been designated by the governor as lead agency for preparation of the environmental impact statement; or
(iii) if the application is for a machine, equipment, a device, or a facility at an operation that requires a permit under Title 82, chapter 4, part 1, 2, or 3, 30 days of issuance of the final environmental impact statement in accordance with time requirements of Title 82, chapter 4, part 1, 2, or 3.
(b) If an application does not require the preparation of an environmental impact statement, the department shall notify the applicant in writing within 60 days after its receipt of a filed application, as provided in subsection (8), of its approval or denial of the application. The time for notification may be extended for 30 days by written agreement of the department and the applicant. Additional 30-day extensions may be granted by the department on request of the applicant. Notification of approval or denial may be served personally or by certified mail on the applicant or the applicant's agent.
(c) If an application for a permit is for the construction, installation, alteration, or use of a source that is also required to obtain a license pursuant to 75-10-221 or a permit pursuant to 75-10-406, the department shall act on the permit application within the time period provided for in 75-2-215(3)(e).
(d) Failure by the department to act in a timely manner does not constitute approval or denial of the application. This does not limit or abridge the right of any person to seek available judicial remedies to require the department to act in a timely manner.
(10) When the department approves or denies the application for a permit under this section, a person who is jointly or severally adversely affected by the department's decision may request a hearing before the board. The request for hearing must be filed within 15 days after the department renders its decision and must include an affidavit setting forth the grounds for the request. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board under this subsection.
(11) The department's decision on the application is not final unless 15 days have elapsed from the date of the decision and there is no request for a hearing under this section. The filing of a request for a hearing postpones the effective date of the department's decision until the conclusion of the hearing and issuance of a final decision by the board."
Section 5. Section 75-2-218, MCA, is amended to read:
"75-2-218. Permits for operation -- application completeness -- action by department -- application shield -- review by board. (1) An application for an operating permit or renewal is not considered filed until the department has determined that it is complete. An application is complete if all fees required under 75-2-220 and all information and completed application forms required under 75-2-217 have been submitted. A complete application must contain all of the information required for the department to begin processing the application. If the department fails to notify the applicant in writing within 60 days after submittal of an application that the application is incomplete and fails to list the reasons why the application is considered incomplete, the application is considered filed on the date of the department's receipt of the application. The department may request additional information after a completeness determination has been made. The department shall adopt rules that contain criteria for use in determining both when an application is complete and when additional information is required after a completeness determination has been made.
(2) Except as provided in [section 1(4)(b)] and subsection (3) of this section, the department shall, consistent with the procedures established under 75-2-217, approve or disapprove a complete application for an operating permit or renewal and shall issue or deny the permit or renewal within 18 months after the date of filing. Failure of the department to act in a timely manner does not constitute approval or denial of the application. This does not limit or abridge the right of any person to seek available judicial remedies to require the department to act in a timely manner.
(3) The board may by rule provide for a transition schedule for both the submittal to the department of initial applications for operating permits by existing sources and action by the department on these initial permit applications. The board may require that one-third of all operating permit applications required for existing sources be submitted within the first calendar year after the adoption of rules implementing an operating permit program under 75-2-217. Any transition schedule for action by the department must ensure that all permit applications required under 75-2-217 and this subsection for existing sources will be acted upon by the department before November 15, 1997.
(4) If an applicant submits a timely and complete application for an operating permit, the applicant's failure to hold a valid operating permit is not a violation of 75-2-217. If an applicant submits a timely and complete application for an operating permit renewal, the expiration of the applicant's existing operating permit is not a violation of 75-2-217. The applicant shall continue to be subject to the terms and conditions of the expired operating permit until the operating permit is renewed and is subject to the application of 75-2-217. The applicant is not entitled to the protection of this subsection if the delay in final action by the department on the application results from the applicant's failure to submit in a timely manner information requested by the department to process the application.
(5) Except as provided in subsection (8), if the department approves or denies an application for an operating permit or the renewal, modification, or amendment of a permit under 75-2-217 and this section, any person that participated in the public comment process required under 75-2-217(7) may request a hearing before the board. The request for hearing must be filed within 30 days after the department renders its decision and must include an affidavit setting forth the grounds for the request. The contested case provisions of the Montana Administrative Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before the board under this subsection.
(6) Except as provided in subsection (8), the department's decision on any application is not final until 30 days have elapsed from the date of the decision and there is no request for a hearing under this section. The filing of a request for hearing postpones the effective date of the department's decision until the conclusion of the hearing and issuance of a final decision by the board.
(7) The requirements of subsections (5) and (6) apply to any action initiated by the department to suspend, revoke, modify, or amend an operating permit issued under this section.
(8) The denial by the department of an application under 75-2-217 and this section is not subject to review by the board or judicial review if the basis for denial is the written objection of the appropriate federal agency acting pursuant to the federal Clean Air Act, 42 U.S.C. 7401, et seq.
(9) Compliance with an operating permit granted or renewed under 75-2-217 and this section is considered to be in compliance with the requirements of this chapter only if the permit expressly includes those requirements or an express determination that those requirements are not applicable. This subsection does not apply to general permits provided for under 75-2-217."
Section 6. Section 75-10-922, MCA, is amended to read:
"75-10-922. Study, evaluation, and report on proposed facility. (1) After receipt of an application, the department shall within 90 days notify the applicant in writing that:
(a) the application is accepted as complete; or
(b) the application is not complete and list the deficiencies. Upon correction of these deficiencies and resubmission by the applicant, the department shall within 30 days notify the applicant in writing that the application is in compliance and is accepted as complete.
(2) Upon receipt of an application complying with 75-10-913, 75-10-914, and 75-10-916 through 75-10-922, the department shall commence an intensive study and evaluation of the proposed facility and its effects, considering all applicable criteria listed in 75-10-929. The department shall use, to the extent it considers applicable, valid and useful existing studies and reports submitted by the applicant or compiled by a state or federal agency.
(3) Within Except as provided in [section 1(4)(b)], within 1 year following acceptance of a complete application for a
facility, the department shall make a report to the board that must contain the department's studies, evaluations,
recommendations, other pertinent documents resulting from its study and evaluation, and an environmental impact
statement or analysis prepared pursuant to the Montana Environmental Policy Act, Title 75, chapter 1, if applicable."
Section 7. Section 75-20-216, MCA, is amended to read:
"75-20-216. Study, evaluation, and report on proposed facility -- assistance by other agencies. (1) After receipt of an application, the department shall within 60 days notify the applicant in writing that:
(a) the application is in compliance and is accepted as complete; or
(b) the application is not in compliance and shall list the deficiencies. Upon correction of these deficiencies and resubmission by the applicant, the department shall within 30 days notify the applicant in writing that the application is in compliance and is accepted as complete.
(2) Upon receipt of an application complying with 75-20-211 through 75-20-213, 75-20-215, and this section, the department shall commence an intensive study and evaluation of the proposed facility and its effects, considering all applicable criteria listed in 75-20-301, and shall issue a decision, opinion, order, certification, or permit as provided in subsection (3). The department shall use, to the extent that it considers applicable, valid and useful existing studies and reports submitted by the applicant or compiled by a state or federal agency.
(3) Except as provided for in [section 1(4)(b)] and 75-20-231, the department shall issue within 1 year following the
date of acceptance of an application any decision, opinion, order, certification, or permit required under the laws, other than
those contained in this part, administered by the department. A decision, opinion, order, certification, or permit, with or
without conditions, must be made under those laws. Nevertheless, the department retains authority to make the
determination required under 75-20-301(1)(c) or (3). The decision, opinion, order, certification, or permit must be used in
the final site selection process. Prior to the issuance of a preliminary decision by the department and pursuant to rules
adopted by the department, the department shall provide an opportunity for public review and comment.
(4) Except as provided in [section 1(4)(b)] and 75-20-231, within 1 year following acceptance of an application for a facility, the department shall issue a report that must contain the department's studies, evaluations, recommendations, other pertinent documents resulting from its study and evaluation, and an environmental impact statement or analysis prepared pursuant to the Montana Environmental Policy Act, if any. If the application is for a combination of two or more facilities, the department shall issue its report within the greater of the lengths of time provided for in this subsection for either of the facilities.
(5) For projects subject to joint review by the department and a federal land management agency, the department's certification decision may be timed to correspond to the record of decision issued by the participating federal agency.
(6) The departments of transportation; commerce; fish, wildlife, and parks; natural resources and conservation; revenue; and public service regulation shall report to the department information relating to the impact of the proposed site on each department's area of expertise. The report may include opinions as to the advisability of granting, denying, or modifying the certificate. The department shall allocate funds obtained from filing fees to the departments making reports to reimburse them for the costs of compiling information and issuing the required report."
Section 8. Section 75-20-231, MCA, is amended to read:
"75-20-231. Expedited review. (1) The Except as provided in [section 1(4)(b)], the department shall issue a
certification decision within 180 days from the date on which an application is considered complete for a facility that:
(a) is unlikely to result in significant adverse environmental impacts based on the criteria listed in 75-20-232; or
(b) is presently in existence and proposed for upgrade, reconstruction, or relocation and is unlikely to result in significant impacts pursuant to 75-20-232.
(2) A facility that qualifies for expedited review is exempt from undergoing an alternative siting study, except as provided in 75-1-201."
Section 9. Section 76-4-125, MCA, is amended to read:
"76-4-125. Review of development plans -- land divisions excluded from review. (1) Plans and specifications of a subdivision, as defined in this part, must be submitted to the reviewing authority, and the reviewing authority shall indicate by certificate that it has approved the plans and specifications and that the subdivision is not subject to a sanitary restriction. The plan review by the reviewing authority must be as follows:
(a) At any time after the developer has submitted an application under the Montana Subdivision and Platting Act, the developer shall present to the reviewing authority a preliminary plan of the proposed development, whatever information the developer feels necessary for its subsequent review, and information required by the reviewing authority.
(b) The Except as provided in [section 1(4)(b)], the reviewing authority shall give final action of the proposed plan
within 60 days unless an environmental impact statement is required, at which time this deadline may be increased to 120
days.
(2) A subdivision excluded from the provisions of chapter 3 must be submitted for review according to the provisions of this part, except that the following divisions or parcels, unless the exclusions are used to evade the provisions of this part, are not subject to review:
(a) the exclusions cited in 76-3-201 and 76-3-204;
(b) divisions made for the purpose of acquiring additional land to become part of an approved parcel, provided that a dwelling or structure requiring water or sewage disposal may not be erected on the additional acquired parcel and that the division does not fall within a previously platted or approved subdivision;
(c) divisions made for purposes other than the construction of water supply or sewage and solid waste disposal facilities as the department specifies by rule; and
(d) subject to the provisions of subsection (3), a remainder of an original tract created by segregating a parcel from the tract for purposes of transfer, if:
(i) the remainder is served by a public or multifamily sewage system approved before January 1, 1997, pursuant to local regulations or this chapter; or
(ii) the remainder is 1 acre or larger and has an individual sewage system that was constructed prior to April 29, 1993, and, if required when installed, was approved pursuant to local regulations or this chapter.
(3) Consistent with the applicable provisions of 50-2-116(1)(i), a local health officer may require that, prior to the transfer of the parcel to be segregated from the remainder referenced in subsection (2)(d)(ii), the remainder include acreage or features sufficient to accommodate a replacement drainfield."
Section 10. Section 82-4-122, MCA, is amended to read:
"82-4-122. Application and approval of permit. (1) A person desiring a mine-site location permit shall file with the
department an application which shall that must contain a reclamation plan for any preparatory work and such any other
information the department deems considers necessary to determine if the proposed area to be affected by the operation is
appropriate for the location of a new strip mine or a new underground mine. The department may require any information
included in but not limited to an application for a strip-mining permit or underground-mining permit as required by part 2
of this chapter.
(2) The Except as provided in [section 1(4)(b)], the department shall notify the applicant within 365 days of receipt of a
complete application if the proposed site is an acceptable location for development of a new strip mine or a new
underground mine. If the site is approved, the department shall issue the applicant a mine-site location permit. If the
location is not approved, the department shall notify the applicant in writing, setting forth reasons why the location is not
acceptable. The department shall also notify the applicant within 365 days of receipt of a complete application whether the
proposed reclamation plan is or is not acceptable. If the plan is not acceptable, the department shall set forth the reasons for
nonacceptance of the plan. It may propose modifications, delete areas, or reject the entire plan."
Section 11. Section 82-4-231, MCA, is amended to read:
"82-4-231. Submission of and action on reclamation plan. (1) As rapidly, completely, and effectively as the most
modern technology and the most advanced state of the art will allow, each operator granted a permit under this part shall
reclaim and revegetate the land affected by the operation, except that underground tunnels, shafts, or other subsurface
excavations need not be revegetated. Under the provisions of this part and rules adopted by the board, an operator shall
prepare and carry out a method of operation, plan of grading, backfilling, highwall reduction, subsidence stabilization,
water control, topsoiling, and a reclamation plan for the area of land affected by the operation. In developing a method of
operation and plans of backfilling, subsidence stabilization, water control, grading, highwall reduction, topsoiling, and
reclamation, all measures shall must be taken to eliminate damages to landowners and members of the public, their real and
personal property, public roads, streams, and all other public property from soil erosion, subsidence, landslides, water
pollution, and hazards dangerous to life and property.
(2) The reclamation plan shall must set forth in detail the manner in which the applicant intends to comply with this
section and 82-4-232 through 82-4-234, as amended, and the steps to be taken to comply with applicable air and water
quality laws and rules and any applicable health and safety standards.
(3) The application for permit or major revision of a permit, which shall must contain the reclamation plan, shall must
be submitted to the department.
(4) The department shall determine whether the application is administratively complete. An application is
administratively complete if it contains information addressing each application requirement in 82-4-222 and the rules
implementing that section and all information necessary to initiate processing and public review. The department shall
notify the applicant in writing of its determination no later than 90 days after submittal of the application. If the department
determines that the application is not administratively complete, it shall specify in the notice those items which that the
application must address. The application shall be is presumed administratively complete as to those requirements not
specified in the notice.
(5) If the department determines that an environmental impact statement on the application is required, it shall notify the applicant in writing at the same time it gives the applicant notice pursuant to subsection (4).
(6) After the applicant receives notice that the application is administratively complete, the applicant shall publish
notice of filing of the application once a week for 4 consecutive weeks in a newspaper of general circulation in the locality
of the proposed operation. The department shall notify various local governmental bodies, planning agencies, sewage and
water treatment authorities, and water companies in the locality in which the proposed mining will take place of the
application and provide a reasonable time for them to submit written comments. Any person having an interest which that
is or may be adversely affected or the officer or head of any federal, state, or local governmental agency or authority shall
have the right to may file written objections to the proposed initial or revised application for permit or major revision
within 30 days of the applicant's published notice. If written objections are filed and an objector requests an informal
conference, the department shall hold an informal conference in the locality of the proposed operation within 30 days of
receipt of the request. The department shall notify the applicant and all parties to the informal conference of its decision
and the reasons therefor for its decision within 60 days of the informal conference. The department may arrange with the
applicant upon request by any party to the administrative proceeding for access to the proposed mining area for the purpose
of gathering information relevant to the proceeding.
(7) The filing of written objections or a request for an informal conference shall may not preclude the department from
proceeding with its review of the application as specified in subsection (8).
(8) (a) The department shall review each administratively complete application and determine the acceptability of the application. During the review, the department may propose modifications to the application or delete areas from the application in accordance with the requirements of 82-4-227. A complete application is considered acceptable when the application is in compliance with all of the applicable requirements of this part and the regulatory program pursuant to this part.
(b) If the applicant significantly modifies the application after the application has been determined administratively complete in accordance with subsection (4), the department shall under this section either deny the application or conduct a new review, including an administrative completeness determination, public notice, and objection period.
(c) If an environmental impact statement is determined to be necessary prior to making a permit decision, the department shall complete and publish the final environmental impact statement within 365 days of the date of notice provided pursuant to subsection (5).
(d) Within Except as provided in [section 1(4)(b)], within 120 days after it determines that an application is
administratively complete, the department shall notify the applicant in writing whether the application is or is not
acceptable. If the application is not acceptable, the department shall set forth the reasons why it is not acceptable, and it
may propose modifications, delete areas, or reject the entire application. All items not specified as unacceptable in the
department's notification are presumed to be acceptable. If Except as provided in [section 1(4)(b)], if the applicant revises
the application in response to a notice of unacceptability, the department shall review the revised application and notify the
applicant in writing within 120 days of the date of receipt whether the revised application is acceptable. If the revision
constitutes a significant modification under subsection (8)(b), the department shall conduct a new review, beginning with
an administrative completeness determination.
(e) When the application is determined to be acceptable, the department shall publish notice of its determination once a week for 2 consecutive weeks in a newspaper of general circulation in the locality of the proposed operation. Any person having an interest that is or may be adversely affected may file a written objection to the determination within 10 days of the department's last published notice. If a written objection is filed and an objector requests an informal conference, the department shall hold an informal conference in the locality of the proposed operation within 20 days of receipt of the request. The department shall notify the applicant and all parties to the informal conference of its decision and the reasons therefor within 10 days of the informal conference.
(f) The Except as provided in [section 1(4)(b)], the department shall prepare written findings granting or denying the
permit or major revision application in whole or in part no later than 45 days from the date the application is determined
acceptable or from the publication of the final environmental impact statement, whichever occurs later. However, if lands
subject to the federal lands program are included in the application for permit or major revision, the department shall
prepare and submit written findings to the federal regulatory authority. If the department's decision is to grant the permit,
the department shall issue the permit on the date of its written finding or, if any federal concurrence is necessary, on the
date when such the concurrence is obtained. If the application is denied, specific reasons for the denial must be set forth in
the written notification to the applicant.
(g) If the department fails to act within the times specified in this subsection (8), it shall immediately notify the board in writing of its failure to comply and the reasons for the failure to comply.
(9) The applicant, a landowner, or any person with an interest that is or may be adversely affected by the department's
permit decision may within 30 days of that decision submit a written notice requesting a hearing. The notice must contain
the grounds upon which the requester contends that the decision is in error. The hearing shall must be held within 30 days
of the request. For purposes of a hearing, the department may order site inspections of the area pertinent to the application.
The department shall within 20 days of the hearing notify the person who requested the hearing, by certified mail, and all
other persons, by regular mail, of the findings and decisions. No person who presided at the informal conference may either
preside at the hearing or participate in the decision thereon.
(10) In addition to the method of operation, grading, backfilling, subsidence stabilization, water control, highwall reduction, topsoiling, and reclamation requirements of this part and rules adopted under this part, the operator, consistent with the directives of subsection (1) of this section, shall:
(a) bury under adequate fill all toxic materials, shale, mineral, or any other material determined by the department to be acid producing, toxic, undesirable, or creating a hazard;
(b) as directed by rules seal off tunnels, shafts, or other openings or any breakthrough of water creating a hazard;
(c) impound, drain, or treat all runoff or underground mine waters so as to reduce soil erosion, damage to grazing and agricultural lands, and pollution of surface and subsurface waters;
(d) remove or bury all metal, lumber, and other refuse resulting from the operation;
(e) use explosives in connection with the operation only in accordance with department regulations designed to minimize noise, damage to adjacent lands, and water pollution and ensure public safety and for other purposes;
(f) adopt measures to prevent land subsidence unless the department approves a plan for inducing subsidence into an
abandoned operation in a predictable and controlled manner with measures for grading, topsoiling, and revegetating the
subsided land surface. In order for a controlled subsidence plan to be approved, the applicant must is required to show that
subsidence will not cause a direct or indirect hazard to any public or private buildings, roads, facilities, or use areas,
constitute a hazard to human life or health, or constitute a hazard to domestic livestock or to a viable agricultural operation,
or violate any other restrictions the department may consider necessary.
(g) stockpile and protect from erosion all mining and processing wastes until these wastes can be disposed of according to the provisions of this part;
(h) deposit as much stockpiled waste material as possible back into the mine voids upon abandonment in such a manner
as to prevent or minimize land subsidence. The remaining waste material shall must be disposed of as provided by this part
and the rules of the board.
(i) seal all portals, entryways, drifts, shafts, or other openings between the surface and underground mine workings when no longer needed;
(j) to the extent possible using the best technology currently available, minimize disturbances and adverse impacts of
the operation on fish, wildlife, and related environmental values and achieve enhancement of such those resources where
practicable;
(k) 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 water and ground water systems both during and after strip- or underground-coal-mining operations and during reclamation by:
(i) avoiding acid or other toxic mine drainage by such measures as, but not limited to:
(A) preventing or removing water from contact with toxic-producing deposits;
(B) treating drainage to reduce toxic content which adversely affects downstream water upon being released to water courses;
(C) casing, sealing, or otherwise managing boreholes, shafts, and wells and keeping acid or other toxic drainage from entering ground and surface waters;
(ii) (A) conducting strip- or underground-mining operations so as to prevent, to the extent possible using the best
technology currently available, additional contributions of suspended solids to streamflow or runoff outside the permit area,
but in no event shall contributions may not be in excess of requirements set by applicable state or federal law;
(B) constructing any siltation structures pursuant to subsection (10)(k)(ii)(A) prior to commencement of strip- or
underground-mining operations, such with the structures to be certified by a qualified registered engineer to be constructed
as designed and as approved in the reclamation plan;
(iii) cleaning out and removing temporary or large settling ponds or other siltation structures from drainways after disturbed areas are revegetated and stabilized and depositing the silt and debris at a site and in a manner approved by the department;
(iv) restoring recharge capacity of the mined area to approximate premining conditions;
(v) avoiding channel deepening or enlargement in operations requiring the discharge of water from mines;
(vi) preserving throughout the mining and reclamation process the essential hydrologic functions of alluvial valley floors in the arid and semiarid areas of the country; and
(vii) such any other actions as the department may prescribe;
(l) conduct strip- or underground-mine operations in accordance with the approved coal conservation plan;
(m) stabilize and protect all surface areas, including spoil piles, to effectively control air pollution;
(n) seal all auger holes with an impervious and noncombustible material in order to prevent drainage except where
when the department determines that the resulting impoundment of water in such the auger holes may create a hazard to the
environment or the public health and safety;
(o) develop contingency plans to prevent sustained combustion;
(p) refrain from construction of roads or other access ways up a streambed or drainage channel or in such proximity to
such the channel so as to seriously alter the normal flow of water;
(q) meet such other criteria as are necessary to achieve reclamation in accordance with the purposes of this part, taking
into consideration the physical, climatological, and other characteristics of the site;
(r) with regard to underground mines, eliminate fire hazards and otherwise eliminate conditions which constitute a hazard to health and safety of the public;
(s) locate openings for all new drift mines working acid-producing or iron-producing coal seams in such a manner as to prevent a gravity discharge of water from the mine.
(11) An operator may not throw, dump, pile, or permit the dumping, piling, or throwing or otherwise placing any overburden, stones, rocks, mineral, earth, soil, dirt, debris, trees, wood, logs, or any other materials or substances of any kind or nature beyond or outside of the area of land which is under permit and for which a bond has been posted under 82-4-223, as amended, or place the materials described in this section in such a way that normal erosion or slides brought about by natural physical causes will permit the materials to go beyond or outside of that area of land. An operator shall conduct the strip- or underground-mining operation in such a manner as to protect areas outside the permit area."
Section 12. Section 82-4-337, MCA, is amended to read:
"82-4-337. Inspection -- issuance of operating permit -- modification, amendment, or revision. (1) (a) The department shall review all applications for operating permits for completeness within 60 days of receipt of the initial application and within 30 days of receipt of responses to notices of deficiencies. The initial completeness notice must note all deficiency issues, and the department may not in a later completeness notice raise an issue pertaining to the initial application that was not raised in the initial notice. The department may, however, raise any deficiency during the adequacy review pursuant to subsection (1)(b). The department shall notify the applicant concerning completeness as soon as possible. An application is considered complete unless the applicant is notified of any deficiencies within the appropriate review period.
(b) Unless Except as provided in [section 1(4)(b)], unless the review period is extended as provided in this section, the
department shall review the adequacy of the proposed reclamation plan and plan of operation within 30 days of the
determination that the application is complete or within 60 days of receipt of the application if the department does not
notify the applicant of any deficiencies in the application. If the applicant is not notified of deficiencies or inadequacies in
the proposed reclamation plan and plan of operation within the time period, the operating permit must be issued upon
receipt of the bond as required in 82-4-338 and pursuant to the requirements of subsection (1)(c). The department shall
promptly notify the applicant of the form and amount of bond that will be required.
(c) A permit may not be issued until:
(i) sufficient bond has been submitted pursuant to 82-4-338;
(ii) the information and certification have been submitted pursuant to 82-4-335(9); and
(iii) the department has found that permit issuance is not prohibited by 82-4-335(8) or 82-4-341(7).
(d) (i) Prior to issuance of a permit, the department shall inspect the site unless the department has failed to act on the application within the time prescribed in subsection (1)(b). If the site is not accessible because of extended adverse weather conditions, the department may extend the time period prescribed in subsection (1)(b) by not more than 180 days to allow inspection of the site and reasonable review. The department shall serve written notice of extension upon the applicant in person or by certified mail, and any extension is subject to appeal to the board in accordance with the Montana Administrative Procedure Act.
(ii) If Except as provided in [section 1(4)(b)], if the department determines that additional time is needed for analysis to
determine whether a detailed environmental impact statement is necessary under 75-1-201, the department and the
applicant shall negotiate to extend the period prescribed in subsection (1)(b) by not more than 75 days to permit reasonable
analysis. The applicant may by written waiver extend this period.
(iii) If Except as provided in [section 1(4)(b)], if the department determines that additional time is needed to review the
application and reclamation plan for a major operation, the department and the applicant shall negotiate to extend the
period prescribed in subsection (1)(b) by not more than 365 days in order to permit reasonable review. The applicant may
by written waiver extend this time period.
(iv) If the department decides to hire a third-party contractor to prepare an environmental impact statement on the application, the department shall prepare a list of no fewer than four contractors acceptable to the department and shall provide the applicant with a copy of the list. The applicant shall provide the department with a list of at least 50% of the contractors from the department's list. The department shall select its contractor from the list provided by the applicant.
(v) Failure of the department to act upon a complete application within the extension period constitutes approval of the application, and the permit must be issued promptly upon receipt of the bond as required in 82-4-338.
(2) The operating permit must be granted for the period required to complete the operation and is valid until the operation authorized by the permit is completed or abandoned unless the permit is suspended or revoked by the department as provided in this part.
(3) The operating permit must provide that the reclamation plan may be modified by the department, upon proper application of the permittee or after timely notice and opportunity for hearing, at any time during the term of the permit and for any of the following reasons:
(a) to modify the requirements so that they will not conflict with existing laws;
(b) when the previously adopted reclamation plan is impossible or impracticable to implement and maintain;
(c) when significant environmental problem situations are revealed by field inspection.
(4) During the term of an operating permit, an operator may apply for an amendment or revision to the permit. The operator may not apply for an amendment to delete disturbed acreage from the permit.
(5) Applications for major amendments must be processed in the same manner as applications for new permits.
(6) Major amendments are those that may significantly affect the environment. Minor amendments are those that will not significantly affect the environment. The board may by rule establish criteria for classification of amendments as major or minor. The rules must establish requirements for the content of applications for amendments and revisions and procedures for processing of minor amendments.
(7) If the department demonstrates that a revision may result in a significant environmental impact that was not
previously and substantially evaluated in an environmental impact statement, the application must be processed in the same
manner as is provided for new permits. Applications Except as provided in [section 1(4)(b)], applications for minor
amendments and other revisions must be processed within 30 days of receipt of an application."
Section 13. Section 82-4-432, MCA, is amended to read:
"82-4-432. Application for permit -- contents -- issuance -- amendment. (1) Applications for a permit must be made upon a form furnished by the department. The form must contain the following:
(a) the name of the operator and, if other than the owner of the land, the name and address of the owner;
(b) the type of operation to be conducted;
(c) the volume of earth to be removed, as accurately as the volume may then be estimated, and the volume that has been previously removed, if any;
(d) the location of the operation by legal subdivision, section, township and range, and county;
(e) the date when the operation was or will be commenced; and
(f) a statement that the applicant has the right and power by legal estate owned to mine by opencut mining the lands described.
(2) The application must be accompanied by:
(a) a bond or security meeting the requirements as set out in this part;
(b) a fee of $50 for an application to mine bentonite, clay, scoria, sand, or gravel;
(c) a statement from the local governing body having jurisdiction over the area to be mined certifying that a proposed sand and gravel opencut mine and its operating and reclamation plans comply with applicable local zoning regulations adopted under Title 76, chapter 2; and
(d) the operator's plan of operation and a complete reclamation plan.
(3) If, prior to applying for a permit, a person notifies the department of the intention to submit an application and requests the department to examine the area to be mined, the department shall cause the area to be examined and make recommendations to the person regarding reclamation. The person may request a meeting with the department. The department shall hold a meeting if requested.
(4) Upon Except as provided in [section 1(4)(b)], upon receipt of a complete application containing all items listed in
subsections (1) and (2), the department shall, within 30 days, notify the person if it has approved or denied the application.
The department may for sufficient cause extend its period of review for an additional 30 days if it notifies the person of the
extension prior to the end of the original 30-day period. Upon approval of the application, the department shall issue a
permit to the operator that entitles the operator to continue or engage in opencut mining on the land described in the
application.
(5) An operator desiring to have a permit amended to cover additional contiguous or nearby land may file an amended application with the department. Upon receipt of the amended application and any additional bond as may be required and upon agreement to the terms of the amendment by the parties, the department may issue an amendment to the original permit covering the additional land described in the amended application without the payment of any additional fee.
(6) An operator may withdraw any land covered by a permit, except affected land, by notifying the department of the withdrawal, in which case the penalty of the bond or security filed by the operator pursuant to the provisions of this part must be reduced proportionately."
Section 14. Codification instruction. [Sections 1 and 2] are intended to be codified as an integral part of Title 75, chapter 1, part 2, and the provisions of Title 75, chapter 1, part 2, apply to [sections 1 and 2].
Section 15. Coordination instruction. (1) If Senate Bill No. 408 is not passed and approved containing language that authorizes a board review of an agency significance determination, then the reference to Senate Bill No. 408 in [section 1(4)(b) of this act] is void.
(2) If House Bill No. 459 is not passed and approved containing language that authorizes a board review of an agency alternative analysis determination, then the reference to House Bill No. 459 in [section 1(4)(b) of this act] is void.
(3) If House Bill No. 473 and [this act] are both passed and approved, then [section 2(3)] of House Bill No. 473, defining "project sponsor", is void.
(4) If House Bill No. 459 and [this act] are both passed and approved, then [section 2(3)] of House Bill No. 459, defining "project sponsor", is void.
Section 16. Applicability. [This act] applies to environmental reviews that are begun after [the effective date of this act].
- END -
Latest Version of SB 377 (SB0377.ENR)
Processed for the Web on April 6, 2001 (4:19PM)
New language in a bill appears underlined, deleted material appears stricken.
Sponsor names are handwritten on introduced bills, hence do not appear on the bill until it is reprinted. See the status of this bill for the bill's primary sponsor.
Status of this Bill | 2001 Legislature | Leg. Branch Home
All versions of this bill (PDF Format)
Authorized print version w/line numbers (PDF format)
(406)444-3064