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The Office of Surface Mining Reclamation and Enforcement said a law passed by legislators in 2023 creates water standards that are “vague and difficult to enforce.”

Mine work at Westmoreland’s Rosebud Mine near Colstrip. Credit: Alexis Bonogofsky

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The federal Office of Surface Mining Reclamation and Enforcement has indicated it will reject a law the 2023 Montana Legislature passed to loosen water quality laws that govern coal mining.

In a letter dated March 28, Jeffrey W. Fleischman with the agency’s Casper area office, flagged components of House Bill 576 as “inconsistent with” and “less effective than” federal laws such as the Surface Mining Control and Reclamation Act. Because federal law prevents states from adopting mining regulations that are weaker than federal standards, that assessment is likely to nullify the new state law.

HB 576, sought to amend the legal definition of “material damage” to water resources so it includes only “long-term or permanent” effects.

Since federal laws have no such temporal guidelines, HB 576 would limit the Montana Department of Environmental Quality’s ability to initiate enforcement actions and order remediations for short-term, high-pollution events, Fleischman wrote. OSMRE also said that “long-term or permanent” is a “vague and difficult to enforce” standard that is not defined in Montana laws or rules.

The letter gave the state DEQ two options: share proposed policy changes to address the federal agency’s concerns within 30 days or leave the new law unimplemented.

OSMRE issued the letter about five months after it hosted a hearing in Billings to take public comment on HB 576 and Senate Bill 392, another measure state lawmakers passed last year. SB 392 seeks to require an individual or organization that sues to overturn a coal-mining permit to cover the legal fees incurred by the other party if they are unsuccessful in their legal challenge.

Most commenters at that Nov. 8 hearing opposed the new laws, arguing that coal mining already threatens their access to high-quality water and saying they’ve seen sub-standard enforcement or remediation when violations are reported under the existing framework.

DEQ spokesperson Moira Davin wrote in an email to MTFP on April 19 that the department has not received a letter from its federal counterpart on SB 392, which has been incorporated into the latest version of Montana Code Annotated.

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