Montana Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

Montana Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is announcing approval of a proposed amendment to the

Montana permanent regulatory program (hereinafter, the ``Montana

program'') under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). The proposed amendment would revise the State's definition of

``prospecting'' to more closely conform to the Federal definition of

``coal exploration.''

EFFECTIVE DATE: February 25, 1994.

FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-

5776.

SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program

On April 1, 1980, the Secretary of the Interior conditionally

approved the Montana program as administered by the Department of State

Lands. General background information on the Montana program, including

the Secretary's findings, the disposition of comments, and conditions

of approval of the Montana program can be found in the April 1, 1980

Federal Register (45 FR 21560). Subsequent actions concerning Montana's

program and program amendments can be found at 30 CFR 926.15 and

926.16.

II. Submission of Amendment

By letter dated October 19, 1992, (Administrative Record No. MT-9-

1) Montana submitted a proposed amendment to its permanent program

pursuant to SMCRA. Montana submitted the proposed amendment in response

to a March 29, 1990, letter that OSM sent to Montana in accordance with

30 CFR 732.17(c) (Administrative Record No. MT-8-01). The provision of

the Montana program that Montana proposes to amend is Montana Code

Annotated (MCA) Section 82-4-203(26) (statutory definition of

``prospecting'').

OSM published a notice in the December 14, 1992, Federal Register

(57 FR 59020) announcing receipt of the amendment and inviting public

comment on its adequacy (Administrative Record No. MT-9-8). The public

comment period ended January 13, 1993.

During its review of the amendment, OSM identified concerns

relating to the proposed revision of MCA 82-4-203(26). OSM notified

Montana of the concerns by letter dated February 3, 1993

(Administrative Record No. MT-9-11). Montana responded in a letter

dated July 28, 1993, by submitting a revised proposed definition at MCA

82-4-203(26) (Administrative Record No. MT-9-13). OSM published a

notice in the Federal Register announcing receipt of the revision and

invited public comment on its adequacy (Administrative Record No. MT-9-

18). The public comment period ended September 27, 1993.

In a letter dated November 24, 1993, (Administrative Record No. MT-

9-26) OSM notified the State of concerns related to the proposed

definition submitted by cover letter dated July 28, 1993. Thereafter,

by letter dated January 12, 1994, (Administrative Record No. MT-9-27)

Montana agreed that OSM's concerns with the proposed definition were

justified.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment submitted by Montana on October 19, 1992, and

revised July 28, 1993.

Montana submitted a revised definition of ``prospecting'' at MCA

82-4-203(26) on October 19, 1992, and subsequently, as a result of

OSM's February 3, 1993 letter, submitted a revision to the initially

proposed definition on July 28, 1993. The State is proposing the

following definition of ``prospecting'':

Prospecting means the removal of overburden, core drilling,

construction of roads, or any other disturbance of the surface for

the purpose of determining the location, quantity, or quality of a

natural mineral deposit: the gathering of surface or subsurface

geologic, physical, or chemical data by mapping, trenching,

geophysical or other techniques necessary to determine the quality

and quantity of overburden in an area: or the gathering of

environmental data to establish the conditions of an area before

beginning strip-or underground-coal-mining and reclamation

operations under this part.

The State proposal is similar to the Federal definition of the term

``coal exploration'' at 30 CFR 701.5 insofar as it includes: ``* * *

the gathering of environmental data to establish the conditions of an

area before beginning strip-or underground-coal-mining and reclamation

operations * * *.''

Montana's definition of ``prospecting'' differs from the Federal

definition of ``coal exploration,'' however, in that it distinguishes

between activities that are conducted ``* * * for the purposes of

determining the location, quantity, or quality of a natural mineral

deposit'' and those that are conducted ``* * * to determine the quality

and quantity of overburden in an area.'' Montana defines the term

``mineral'' at MCA 82-4-203(20), to mean coal or uranium.

If activities are conducted to determine the location, quantity, or

quality of a natural mineral deposit, then prospecting ``means the

removal of overburden, core drilling, construction of roads, or any

other disturbance of the surface * * *.'' If, on the other hand,

activities are conducted to determine the quality and quantity of

overburden in an area, then prospecting means ``the gathering of

surface or subsurface geologic, physical, or chemical data by mapping,

trenching, geophysical, or other techniques necessary to determine the

quality and quantity of overburden in [the] area * * *.''

By comparison, the Federal definition of ``coal exploration''

means, in part, the field gathering of surface or subsurface geologic,

physical, or chemical data by mapping, trenching, drilling,

geophysical, or other techniques necessary to determine the quality and

quantity of overburden and coal of an area. Thus, the Federal

definition, unlike the State proposal, does not distinguish between

whether the purpose of the activity conducted is related to the mineral

deposit (coal seam) or the overburden. Additionally, under the Federal

definition of ``coal exploration,'' unlike the State proposal,

activities need not involve surface disturbance to be covered by the

definition. In contrast, the State proposal requires that activities

involve surface disturbance before such activities will be considered

``prospecting'' if the purpose of the activities is to determine the

location, quality, or quantity of the coal deposit.

OSM discussed the broad scope of activities encompassed by the

definition of ``coal exploration'' in the September 18, 1978 Federal

Register (43 FR 41662, 41669) as follows:

The Office has considered the question of whether the terms

``coal exploration operation'' and ``substantially disturb'' should

be proposed to exclude specifically cases where persons enter upon

lands underlain by coal deposits to conduct scientific research or

where very small amounts of coal are removed by hand tools and

access to the area is obtained by foot or by limited use of an

existing road or other access route. After consideration, the Office

has decided not to propose such exclusions, because it is believed

that Congress authorized no categorical exemptions from activities

otherwise covered by section 512 of the Act.

Therefore, to be consistent with the Federal program requirements,

Montana's definition of ``prospecting'' must include the activities of

gathering surface or subsurface geologic, physical, or chemical data by

mapping, trenching, geophysical or other techniques necessary to

determine the quality and quantity of coal of an area, when the purpose

of the activity is to determine location, quantity, or quality of a

mineral deposit. The State must also clarify that an activity need not

involve surface disturbance to be considered ``prospecting.''

The Director is approving the proposed definition of

``prospecting'' because its overall effect would be to increase the

scope of the Montana prospecting program requirements over those

required under the previously approved State definition. The previously

approved definition defined ``prospecting'' to mean:

The removal of overburden, core drilling, construction of roads,

or any other disturbance of the surface for the purpose of

determining the location, quantity, or quality of a natural mineral

deposit.

However, the State is required to further amend its definition of

``prospecting'' so that it includes the activities of gathering surface

or subsurface geologic, physical, or chemical data by mapping,

trenching, geophysical or other techniques necessary to determine the

quality and quantity of coal of an area, when the purpose of the

activity is to determine location, quantity, or quality of a mineral

deposit. The State must also clarify that an activity need not involve

surface disturbance to be considered ``prospecting.''

IV. Summary and Disposition of Comments

1. Public Comments

OSM solicited public comments and provided an opportunity for a

public hearing on the proposed amendment. No public comments were

received. A public hearing was not held because no one requested an

opportunity to testify.

2. Federal Agency Comments

Pursuant to section 503(b) of SMCRA and the implementing

regulations at 30 CFR 732.17(h)(11)(i), comments were solicited from

various Federal agencies with an actual or potential interest in the

Montana program.

The Bureau of Indian Affairs responded that the revision of the

definition of ``prospecting'' does not appear detrimental to lands

within the Indian reservations in Montana (Administrative Record No.

MT-9-06).

The Mine Safety and Health Administration (MSHA), Denver, CO,

responded that the proposed amendment appears not to be in conflict

with MSHA's standards of title 30 of the Federal regulations so long as

``prospecting'' activities do not become mining operations as defined

in 30 CFR 41.1. OSM's duty in reviewing State program amendments

(SPA's) like the one under consideration here is limited to determining

whether the SPA is ``in accordance with'' and ``consistent with'' SMCRA

and its implementing regulations. See sections 503(a)(1) and (a)(7) of

SMCRA. See also 30 CFR 730.5. OSM is not qualified to make a

determination whether a particular SPA is ``in accordance with'' or

``consistent with'' MSHA regulations. Additionally, OSM notes that

section 702(a) of SMCRA specifically requires that nothing in the Act

(SMCRA) shall be construed as superseding, amending, modifying, or

repealing numerous Acts including the Federal Coal Mine Health and

Safety Act of 1969. (Administrative Record No. MT-9-10 and MT-9-16).

The U.S. Fish and Wildlife Service, Mountain-Prairie Region

(Denver, CO) and its Ecological Services (Helena, MT) had no comments

or concerns with the proposed rule change (Administrative Record No.

MT-9-07 and MT-9-20).

The U.S. Army Corps of Engineers, Omaha District (Omaha, NE),

responded that as a part of prospecting, if construction activities

involved temporary or permanent placement of dredged or fill material

into waters of the United States, including wetlands, then a section

404 permit may be required. Also, the placement of any material in any

floodway should be avoided per the Federal Flood Plain Management

criteria. An operator is required to comply with all other applicable

Federal, State and local requirements, including requirements to obtain

other necessary permits needed to conduct an operation. Therefore, all

other required permits, such as the section 404 permit, must be

obtained by an operator (Administrative Record No. MT-9-05).

The U.S. Department of Agriculture's Soil Conservation Service had

no comment on the proposed revision of the term ``prospecting''

(Administrative Record No. MT-9-17).

The Bureau of Mines, Division of Environmental Technology reviewed

the amendment and had no comment (Administrative Record No. MT-9-22).

The Bureau of Land Management responded in support of Montana's

proposed amendment (Administrative Record No. MT--State Historic

Preservation Officer (SHPO) and the Advisory Council on Historic

Preservation (ACHP) Comments.

As required by 30 CFR 732.17(h)(4), OSM provided the proposed

amendment to the SHPO and ACHP for comment. Neither agency responded

with any comments.

Environmental Protection Agency (EPA) Concurrence

Under 30 CFR 732.17(h)(11), the Director is required to obtain the

written concurrence of the Administrator of the EPA with respect to any

provisions of a State program amendment that relate to air or water

quality standards promulgated under the authority of the Clean Water

Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et

seq.) By letter dated October 27, 1992, (Administrative Record No. MT-

9-03) the OSM requested that EPA review and concur, if appropriate,

with Montana's proposed amendment. No response was received from the

EPA, Washington DC office, and their concurrence is not required on the

proposed amendment, since it did not address any requirements that

would impact the Clean Water or Clean Air Acts. EPA's Region VIII

Office (Denver, CO) replied that they had no comments on the proposed

amendment (Administrative Record No. MT-9-21).

V. Director's Decision

Based on the above findings, the Director approves Montana's

proposed program amendment as submitted October 19, 1992 and revised on

July 28, 1993 with the provision that Montana further amend its

definition of ``prospecting'' so that it includes the activities of

gathering surface or subsurface geologic, physical, or chemical data by

mapping, trenching, geophysical or other techniques necessary to

determine the quality and quantity of coal of an area, when the purpose

of the activity is to determine location, quantity, or quality of a

mineral deposit. The State must also clarify that an activity need not

involve surface disturbance to be considered ``prospecting.''

The Federal regulations at 30 CFR part 926 codifying decisions

concerning the Montana program are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Compliance With Executive Order 12866

This final rule is exempted from review by the Office of Management

and Budget under Executive Order 12866 (Regulatory Planning and

Review.)

Compliance With Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of the Executive Order 12778 (Civil Justice Reform) and

has determined that, to the extent allowed by law, this rule meets the

applicable standards of subsection (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

Compliance With the National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act, 42 U.S.C.

4332(2)(C).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by the Office of Management and Budget under the

Paperwork Reduction Act, 44 U.S.C. 3507 et seq.

Compliance With the Regulatory Flexibility Act

The Department of the Interior has determined that 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 upon

counterpart 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. Hence, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. 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 counterpart Federal regulations.

List of Subjects in 30 CFR 926

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 17, 1994.

Raymond L. Lowrie,

Assistant Director, Western Support Center.

For the reasons set out in the preamble, title 30, chapter VII,

subchapter T, the Code of Federal Regulations is amended as set forth

below.

PART 926--MONTANA

1. The authority citation for part 926 continues to read as

follows:

Authority: Pub. L. 95-87, Surface Mining Control and Reclamation

Act of 1977 (30 U.S.C. 1201 et seq.).

2. Section 926.15 is amended by adding paragraph (k) to read as

follows:

Sec. 926.15 Approval of amendments to State regulatory program.

* * * * *

(k) The amendment to the Montana permanent regulatory program, that

defines ``prospecting'' as submitted to OSM on October 19, 1992, and

revised on July 28, 1993, is approved effective February 25, 1994.

3. Section 926.16 is amended by adding paragraph (f) to read as

follows:

Sec. 926.16 Required program amendments.

* * * * *

(f) By April 26, 1994, Montana shall amend its definition of

``prospecting'' so that it includes the activities of gathering surface

or subsurface geologic, physical, or chemical data by mapping,

trenching, geophysical or other techniques necessary to determine the

quality and quantity of coal of an area, when the purpose of the

activity is to determine location, quantity, or quality of a mineral

deposit. The State must also clarify that an activity need not involve

surface disturbance to be considered ``prospecting.''

[FR Doc. 94-4281 Filed 2-24-94; 8:45 am]

BILLING CODE 4310-05-M