Published: November 1, 2023 | Share This

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A change in Montana mining law has triggered a federal hearing as the U.S. Office of Surface Mining determines whether the state still complies with national reclamation laws.

The Office of Surface Mining Reclamation and Enforcement will hold a Billings hearing Nov. 1 as it determines whether two bills affecting state coal mine policy passed by the Montana Legislature went too far. The hearing is scheduled for 1 p.m. at the DoubleTree.

States can set environmental policy, but the rules created cannot provide less protection than federal law, in this case the Surface Mining and Control and Reclamation Act.

The first issue is the Legislature’s redefining of “material damage” when it comes to mine impacts on water quality outside of the mine’s footprint. The change, passed as House Bill 576, blurs lines on what constitutes unacceptable mine damage on area water. The bill was sponsored by Rep. Rhonda Knudsen, a Culbertson Republican.

In hearings, Knudsen said a change in the law would align Montana’s material damage definition with the federal definition, while no longer requiring that coal mine water be treated to a better quality than water on neighboring lands, which in some cases isn’t drinkable, or life sustaining.

“Natural variation in water quality is due largely to weather events and other non-coal-mine-related activities. Snowmelt rain, runoff, will pick up silt and salt in this gravelly soil, and will result in elevated levels of TDS, total dissolved solids, at various times throughout the season. And these are all completely unrelated to coal mining,” Rep. Rhonda Knudsen said while testifying in committee for her bill’s passage.

However, ranchers with water rights adjacent to coal mines warned that lowering the state’s environmental standard would put farmers and ranchers at risk of having water unfit for livestock or crops.

“We want to keep the status quo and the water quality and quantity that we have now. We believe that the existing law is reasonable. It’s fair, it works. It’s been in place for multiple years. Private property rights, which I’m a strong proponent of, are in my opinion being violated by laws like this,” said Clint McRae, who ranches near Colstrip.

The second law was one of several “loser pays” bills brought by Republicans to discourage legal challenges to state environmental permitting. In this case, Senate Bill 392 requires anyone challenging the state’s permitting of coal mines to pay the legal bills of both the state and the mining company. The bill was sponsored by Republican Sen. Steve Fitzpatrick of Great Falls.

The argument against loser pays laws are the that they make it difficult, if not impossible, for the public to petition the government for a redress of grievances, which is a First Amendment right.

Further complicating the bills was the Legislature making the bills law upon being signed by governor. Typically, bills signed into law aren’t actionable for several months, allowing agencies to determine how best to put the new laws into practice. The delayed rollout also provides time to determine whether the laws conflict with federal statute.

The Office of Surface Mining Reclamation and Enforcement was requested by Montana’s Department of Environmental Quality the state’s main industrial permitting agency. DEQ agreed to request the hearing under a legal settlement with the Montana Environmental Information Center, Sierra Club, WildEarth Guardians, and Citizens for Clean Energy. DEQ also agreed not to enforce the laws until they were reviewed by the director of OSMRE.

Source: Bozeman Daily Chronicle

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