Montana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

Montana 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 approving, with certain exceptions and additional

requirements, a proposed amendment to the Montana regulatory program

(hereinafter referred to as the ``Montana program'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). Montana proposed

revisions to statutes pertaining to ownership and control of

operations, violation history updates, notices of intent for

prospecting, and consent to surface mining by surface owner. The

amendment is intended to revise the Montana program to be consistent

with the corresponding Federal regulations and SMCRA, improve

operational efficiency, and comply with a decision by the State Supreme

Court.

EFFECTIVE DATE: February 1, 1995.

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. 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. Proposed Amendment

By letters dated June 16 and July 28, 1993 (Administrative Record

No. MT-11-01), Montana submitted a proposed amendment to its program

pursuant to SMCRA.

Montana submitted the proposed amendment in response to statutory

changes adopted by the Montana 1993 Legislature regarding notices of

intent for ``prospecting,'' ownership and control provisions, violation

history updates, surface owner consent, and editorial changes. OSM

announced receipt of the proposed amendment in the August 27, 1993,

Federal Register (58 FR 45303), provided an opportunity for a public

hearing or meeting on its substantive adequacy, and invited public

comment on its adequacy (Administrative Record No. MT-11-09). Because

no one requested a public hearing or meeting, none was held. The public

comment period ended September 27, 1993.

During its review of the amendment, OSM identified concerns

relating to the proposed deletion of Montana Code Annotated (MCA) 82-4-

224 concerning surface owner consent and the proposed provisions of MCA

82-4-226(8) concerning coal exploration (``prospecting'') under notices

of intent. OSM notified Montana of these concerns by letter dated

January 19, 1994 (Administrative Record No. MT-11-18).

Montana responded in a letter dated July 28, 1994 (Administrative

Record No. MT-11-19) by submitting additional explanatory information

for the two statutory provisions noted above and concerning MCA 82-4-

203 (definitions).

Based upon the additional explanatory information for the proposed

program amendment submitted by Montana, OSM reopened the public comment

period in the August 11, 1994, Federal Register (59 FR 41262;

Administrative Record No. MT-11-20). The public comment period ended on

August 26, 1994.

III. Director's Findings

As discussed below, the Director in accordance with SMCRA and 30

CFR 732.15 and 732.17 finds, with certain exceptions and additional

requirements, that the proposed program amendment submitted by Montana

on June 16 and July 28, 1993, and as clarified by it on July 28, 1994,

is no less effective in meeting SMCRA's requirements than the

corresponding Federal regulations and no less stringent than SMCRA.

Accordingly, the Director approves the proposed amendment, with certain

exceptions and additional requirements.

1. Nonsubstantive Revisions to Montana's Statutes

Montana proposed revisions to the following previously-approved

statutes that are nonsubstantive in nature and consist of minor

editorial, punctuation, or grammatical changes (corresponding Federal

regulation and/or SMCRA provisions are listed in parentheses):

82-4-203, MCA, subsections (14), (16), (21), (23), (29), (34), (35),

and (36) (SMCRA Section 701, 301 CFR 700.5 & 701.5),

definitions; [[Page 6007]]

82-4-226, MCA, subsections (2), (3), (5), and (6) (SMCRA Section 512

and 30 CFR Part 732), coal exploration (``prospecting'') permits and

notices of intent; and

82-4-227, MCA, subsections (1), (2), (3), (7), (8), and (9) (SMCRA

Section 510), permit approval/denial.

Because the proposed revisions to these previously-approved

statutory provisions are nonsubstantive in nature, the Director finds

that these proposed Montana statutes are no less effective in meeting

SMCRA's requirements than the Federal regulations and no less stringent

than SMCRA. The Director approves these proposed statutes.

2. Unintentional Substantive Revision to 82-4-227, MCA, subsection (10)

Montana proposed a revision to 82-4-227(10), MCA, that the State

labels, and presumably intended, as a nonsubstantive grammatical

change. The provision is proposed to be revised, in part, as follows:

A permit or major permit revision for a strip- or underground-

coal-mining operation may not be issued unless the applicant has

affirmatively demonstrated by its coal conservation plan that no

failure to conserve coal will not occur.

The last part of this proposal, by requiring the conservation plan

to demonstrate that no failure to conserve coal will not occur, would

require the conservation plans to demonstrate that all such failures

will occur. Such a revision would reverse the meaning of the existing

provision, which requires the conservation plan to demonstrate that no

failure to conserve coal will occur.

This proposed requirement would contradict one purpose of the

Montana statute as stated at MCA 82-4-202(g): ``[i]t is the declared

policy of this state and its people to * * * prevent the failure to

conserve coal.'' For this reason, OSM believes that the proposal

represents an unintended grammatical error, and that Montana either (1)

meant to delete the word ``no'' in the phrase ``* * * that no failure

to conserve coal * * *'' or (2) did not mean to add the word ``not'' in

the phrase ``* * * failure to conserve coal will not occur.'' Based on

this believe, the Director is approving the proposed provision, with

the understanding that the coal conservation plan must affirmatively

demonstrate that failure to conserve coal will be prevented. The

Director is also requiring Montana to further revise this provision to

clarify this intent.

3. MCA 82-4-224, Consent or Waiver by Surface Owner

Montana proposes to repeal statutory Section 82-4-224, MCA, which

provides that:

[I]n those instances in which the surface owner is not the owner

of the mineral estate proposed to be mined by strip-mining

operations, the application for a permit shall include the written

consent or a waiver by the owner or owners of the surface lands

involved to enter and commence strip-mining operations on such land,

except that nothing in this section applies when the mineral estate

is owned by the federal government in fee or in trust for an Indian

tribe.

Montana proposes this action (effective October 1, 1993) in accordance

with a decision in the case of Western Energy Co. v. Genie Land Co.,

227 Mont. 74, 737 P.2d 478 (1987). In that case the Montana Supreme

Court found the statutory section, and any rules adopted for the

implementation thereof, to be unconstitutional and in violation of the

Montana constitution, in that it permitted a taking without due

process, permitted the taking of private property without just

compensation, and permitted the impairment of the obligation of a

contract. This statutory provision was originally approved as a

counterpart provision to Section 510(b)(6) of SMCRA (45 FR 21560; April

1, 1980; see Administrative Record No. MT-1, Appendix C).

While Montana has repealed this statutory provision, it continues

to provide regulations at ARM 26.4.303(15) and 26.4.405(6)(k) that

impose requirements which are substantively equivalent to those imposed

by Section 510(b)(6) of SMCRA. SMCRA Section 510(b)(6) requires that in

cases where the private mineral estate has been severed from the

private surface estate, no permit shall be approved unless the

application demonstrates, and the regulatory authority finds, that the

applicant has submitted to the regulatory authority either (1) the

written consent of the surface owner to coal extraction by surface

mining, (2) a conveyance that expressly grants or reserves the right to

coal extraction by surface mining, or (3) if the conveyance does not

expressly grant the right to coal extraction by surface mining, the

surface-subsurface legal relationship shall be determined in accordance

with State law.

In cases where the mineral and surface estates are severed, ARM

26.4.303(15) requires each application to contain either (1) a written

consent by the surface owner to mineral extraction by strip mining, (2)

a conveyance that expressly grants or reserves the right to mineral

extraction by strip mining, or (3) if the conveyance does not expressly

grant the right to mineral extraction by strip mining, documentation

that under Montana law the applicant has the legal right to mineral

extraction by strip mining. In those same cases (where the mineral and

surface estates are severed), ARM 26.4.405(6)(k) provides that the

Department of State Lands (DSL) may not approve a permit unless the

application demonstrates, and DSL's findings confirm, that the

applicant has submitted the documentation required by ARM 26.4.303.

In its letter of January 19, 1994 (Administrative Record No. MT-11-

18), OSM requested that Montana address (1) whether it intended, in

response to the Montana Supreme Court decision discussed above, to

propose the repeal of ARM 26.4.303(15) and 26.4.405(6)(k), and (2)

whether Montana retained the statutory authority to promulgate and

enforce those regulations, given the repeal of 82-4-224, MCA.

In its response of July 28, 1994, (Administrative Record No. MT-11-

19), DSL's Chief Legal Counsel states that the statutory authority for

ARM 26.4.303(15) lies in 82-4-222(1)(d), MCA, which requires that a

permit application state the source of the applicant's legal right to

mine the mineral on the land affected by the permit. Montana further

states that the statutory authority for ARM 26.4.405(6)(k) lies in 82-

4-231(4), MCA; that provision requires DSL to determine whether each

application is administratively complete, which means, among other

things, that it contains information addressing each application

requirement in 82-4-222, MCA, and the rules implementing that section.

Montana further states that since neither of the two regulatory

provisions is based on the repealed statutory section (82-4-224, MCA),

Montana has no plans to repeal those regulatory provisions.

In its review of this proposed amendment, OSM noted that the

Montana program also contains, at MCA 82-4-203(35) and (36), statutory

definitions of ``waiver'' and ``written consent,'' and found no use of

these terms other than in the repealed section 82-4-224, MCA. In its

January 19, 1994, letter (Administrative Record No. MT-11-18), OSM

requested that Montana address the meaning of these terms in the

absence of the repealed provision. In its July 28, 1994, response

(Administrative Record No. MT-11-19), DSL's Chief Legal Counsel states

that these statutory definitions no longer serve any purpose within the

statute, but that their presence poses no [[Page 6008]] problem for the

administration of the statute.

Based on Montana's representations in its July 28, 1994, response

(Administrative Record No. MT-11-19), OSM finds that the Montana

program contains provisions at ARM 26.4.303(15) and 26.4.405(6)(k) that

are no less stringent than the requirements of Section 510(b)(6) of

SMCRA, and that Montana has adequate statutory authority for the

promulgation and enforcement of these regulatory provisions. Therefore

the Director finds that the proposed repeal of 82-4-224, MCA, does not

render the Montana program any less stringent that SMCRA, and is

approving the proposed repeal of that section.

4. MCA 82-4-226(1), Requirement for Prospecting Permit

Montana proposes to delete the introductory phrase ``[o]n and after

March 16, 1973,'' from the beginning of this subsection, which (with an

exception discussed in Finding No. 5 below) makes it unlawful to

prospect on land not included in a valid strip-mining or underground-

mining permit without the possession of a valid prospecting permit.

Under the proposed revision, the requirement for a prospecting permit

would not be limited to the period after March 16, 1973.

Since any current or future prospecting would be subject to this

subsection either with or without this time-limiting introductory

phrase, the Director finds this proposed revision to be nonsubstantive

in nature, and thus that the proposed revised statute is no less

effective in meeting SMCRA's requirements than the Federal regulations

and no less stringent than SMCRA. The Director approves the proposed

revision.

5. MCA 82-4-226(1) and (8), Prospecting Under Notice of Intent

At MCA 82-4-226(1), Montana proposes an exception to the provision

that it is unlawful to conduct prospecting operations without a

prospecting permit; the exception proposed is provided in proposed new

subsection MCA 82-4-226(8). Proposed subsection MCA 82-4-226(8) would

provide as follows:

(8) Prospecting that is not conducted in an area designated

unsuitable for coal mining pursuant to 82-4-227 or 82-4-228 and that

is not conducted for the purpose of determining the location,

quality, or quantity of a natural mineral deposit is not subject to

subsections (1) through (7). However, a person who conducts this

prospecting shall file with the department a notice of intent to

prospect, containing the information required by the department,

before commencing prospecting operations. If this prospecting

substantially disturbs the natural land surface, it must be

conducted in accordance with the performance standards of the

department's rules regulating the conduct and reclamation of

prospecting operations that remove coal. The department may inspect

these prospecting and reclamation operations at any reasonable time.

OSM notes that subsections (1) through (7) of MCA 82-4-226 currently

specify the requirements for prospecting permits, bonds, and reports;

these requirements currently apply to all prospecting operations.

Montana is not at this time proposing as a program amendment any

regulations to implement this proposed statutory provision. In its July

28, 1994, letter (Administrative Record No. MT-11-19), Montana

expressed its intent to promulgate such rules in the near future.

Further, OSM is aware that Montana has in fact initiated State

rulemaking proceedings to promulgate such rules. Because Montana is not

now proposing regulations to implement these proposed statutory

revisions, but has initiated efforts to do so, OSM has reviewed the

proposed statutory provisions only in comparison to the requirements of

SMCRA, where they exist, rather than in comparison to the requirements

of the implementing Federal regulations. Therefore, the Director notes

here that, to the extent he approves these statutory provisions (as

discussed below), Montana may not implement these statutory provisions

concerning prospecting under notices of intent, until such time as

Montana proposes, and OSM approves, State regulations that (in

conjunction with these statutory provisions) are no less stringent that

SMCRA Section 512 and no less effective in achieving those requirements

than the implementing Federal regulations at 30 CFR Part 772.

OSM notes that under MCA 82-4-203(20), ``mineral'' means coal and

uranium. OSM also notes that it has codified at 30 CFR 926.16(f) a

requirement that Montana amend its definition of the term

``prospecting'' to be no less effective in implementing SMCRA's

requirements than the Federal definition of the term ``coal

exploration.''

a. Prospecting (Coal Exploration) Under Notices of Intent

Section 512(a) of SMCRA requires that each State and Federal

program include a requirement that coal exploration operations which

substantially disturb the natural land surface be conducted in

accordance with exploration regulations issued by the regulatory

authority. Moreover, section 512(a) of SMCRA provides that such

regulations must include, at a minimum: (1) The requirement that prior

to conducting any exploration, a person must file with the regulatory

authority notice of intention to explore (including a description of

the proposed area and the proposed time period); and (2) provisions of

reclamation in accordance with the performance standards of SMCRA

Section 515. Section 512(d) requires that no operator shall remove more

than 250 tons of coal pursuant to an exploration permit without the

specific written approval of the regulatory authority. As noted above,

OSM has promulgated regulations implementing these statutory provisions

at 30 CFR Part 772; but Montana's proposed statutory provisions are

being reviewed in comparison to the statutory requirements of SMCRA

rather than to the Federal regulatory requirements.

The proposed Montana statute would prohibit prospecting (coal

exploration) under notices of intent on lands designated as unsuitable

for mining, and would additionally prohibit prospecting under notices

of intent if the prospecting is conducted for the purpose of

determining the location, quality, or quantity of a coal deposit, no

matter on what lands or the degree of disturbance. There is a

prohibition against exploring under a notice of intent on land

designated as unsuitable for mining in the Federal regulations at 30

CFR 772.11(a) and 772.12(a), but there is no Federal prohibition

against exploring under a notice of intent when the purpose is to

determine the location, quality, or quantity of a coal deposit. Under

SMCRA Section 505(b), no State law which provides for more stringent

land use and environmental controls than SMCRA shall be construed as

being inconsistent with SMCRA.

However, SMCRA Section 512(d) explicitly prohibits the removal of

more than 250 tons of coal pursuant to exploration activities without

the specific written approval of the regulatory authority. OSM

interprets this requirement for ``specific written approval,'' together

with the title of SMCRA Section 512 (``Coal Exploration Permits''), as

a requirement that a coal exploration permit be obtained for

exploration activities that will remove more than 250 tons of coal (see

48 FR 40622, 40622, 40626; September 8, 1983). The proposed Montana

provision does not correspondingly prohibit prospecting under notices

of intent when more than 250 tons of coal will be removed. In its

letter of July 28, 1994 (Administrative Record No. MT-11-19),

[[Page 6009]] Montana argues that, while it would be legally possible

under its proposed statute for a drilling operation conducted to

characterize overburden or an overburden sampling pit to remove more

than 250 tons of coal, it is extremely improbable that such an

operation would do so, and further that no prospecting operation in

Montana has ever done so. However, SMCRA Section 512(d) is a clear and

absolute requirement. Montana's proposed provision fails to prohibit

the removal of more than 250 tons of coal by prospecting (exploration)

activities under a notice of intent, and thus does not contain all

applicable provisions of SMCRA Section 512, and hence is inconsistent

with SMCRA.

In summary, proposed 82-4-226(1) and the first two sentences of

proposed 82-4-226(8), MCA, are as stringent as the provisions of SMCRA

in prohibiting prospecting activities under notices of intent on lands

designated as unsuitable for mining, and more stringent in prohibiting

such activities on any lands when the purpose is to determined the

location, quality, or quantity of a coal deposit. However, these

proposed Montana provisions are less stringent than SMCRA Section

512(d) in failing to prohibit prospecting operations under a notice of

intent when more than 250 tons of coal will be removed.

Based on the above discussion, the Director is approving proposed

82-4-226(1) and the first two sentences of proposed 82-4-226(8), MCA,

with the following proviso: Montana may not implement these provisions

until Montana has promulgated, and OSM has approved, State regulations

to implement these statutory revisions, to be no less effective than 30

CFR Part 772 in meeting SMCRA's requirements. Further, the Director is

requiring Montana to amend its program to prohibit prospecting

activities under notices of intent when more than 250 tons of coal are

to be removed.

b. Specification of Which Prospecting Activities Are Required To Meet

Performance Standards and Specification of Applicable Performance

Standards

As noted above, Montana proposes at MCA 82-4-226(8) that ``[i]f

this prospecting substantially disturbs the natural land surface, it

must be conducted in accordance with the performance standards of the

department's rules regulating the conduct and reclamation of

prospecting operations that remove coal.'' Montana is not at this time

proposing any definition of ``substantially disturbs'' although in its

letter of July 28, 1994 (Administrative Record No. MT-11-19), Montana

states its intention to do so in the near future. OSM notes that the

existing Montana program at ARM 26.4, Subchapter 10, contains

prospecting performance standards; however, the Montana program does

not specify which of these are performance standards for prospecting

operations that remove coal and which are not.

The existing Montana statute contains no requirement that

prospecting operations be conducted in accordance with performance

standards, and the statute as proposed for revision would contain no

such requirement for prospecting conducted under a prospecting permit.

The existing Montana rules at ARM 26.4 Subchapter 10 require all

prospecting operations to meet specified performance standards; these

performance standards apply even to prospecting that does not

substantially disturb the natural land surface. This is more stringent

than SMCRA Section 512(a), which only requires that coal exploration

operations which substantially disturb the natural land surface be

conducted under regulatory programs that include regulations requiring

that all lands disturbed be reclaimed in accordance with the

performance standards of SMCRA Section 515. However, Montana is not

proposing to revise its statute so that not all prospecting operations

would be regulated in the same way. In particular, not all prospecting

would require a permit; and under the proposal, prospecting under a

notice of intent would be required to be conducted in accordance with

performance standards only if it substantially disturbs the natural

land surface.

In order to be consistent with the proposed statute, Montana's

performance standards at ARM 26.4 Subchapter 10 could no longer be

interpreted to apply to all prospecting operations. As a result, the

Montana program would contain no requirement that prospecting

operations conducted under prospecting permits be conducted in

accordance with performance standards if they substantially disturb the

land surface. In its letter of July 28, 1994 (Administrative Record No.

MT-11-19), Montana argues that under MCA 82-4-226(1) & (2), all

prospecting operations under prospecting permits are subject to

reclamation requirements and to bonding requirements. OSM has reviewed

these provisions; they specify reclamation plan requirements for

prospecting permit applications, and posting of performance bond before

the permit is issued. While the posting of bond provides an economic

incentive to complete the approved reclamation plan, these Montana

provisions do not provide a requirement that the prospecting be

conducted in accordance with performance standards. In one example, it

a defective permit is issued that does not address one or more

performance standards, there would be no requirement for the

prospecting operation to meet those missing performance standards.

Additionally, prospecting operations conducted illegally (with neither

a permit nor a notice) would not be required to meet performance

standards.

The Federal provision of SMCRA Section 512(a) requires that all

exploration that substantially disturbs the natural land surface be

conducted in accordance with performance standard of SMCRA Section 515;

this applies to both exploration under notices of intent and

exploration under exploration permits. As noted above, OSM has

promulgated regulations implementing these statutory provisions at 30

CFR Part 772 and at 30 CFR 701.5 (definition of the term

``substantially distrub''); however, as noted above Montana's proposed

statutory provisions are being reviewed only in comparison to the

Federal statutory requirements of SMCRA where they exist.

In summary, both the SMCRA provision at Section 512(a) and the

proposed Montana provision require adherence to performance standards

by prospecting (exploration) operations conducted under notices of

intent that substantially disturb the natural land surface; however, by

referring to ``performance standards * * * regulating * * * prospecting

operations that remove coal,'' the Montana proposal is unclear

regarding which performance standards are applicable, whereas the

Federal provisions clearly specify the performance standards of SMCRA

Section 515. Secondly, the Federal provisions further require adherence

to performance standards for exploration operations conducted under

exploration permits that substantially disturb the natural land

surface. But the Montana program, as proposed to be revised, would

contain no such requirement for prospecting operations conduced under

prospecting permits that substantially disturb the natural land

surface. OSM believes it is possible for Montana to remedy these

deficiencies in promulgating implementing regulations.

Based on the above discussion , the Director is approving the third

sentence of proposed 82-4-226(8), MCA, with the following proviso:

Montana may not implement this provision until Montana has promulgated,

and OSM has [[Page 6010]] approved, implementing State regulations that

are no less effective in meeting SMCRA's requirements than 30 CFR Part

772 and 30 CFR 701.5.

c. Right of Entry of Inspect

As noted above, Montana proposes at MCA 82-4-226(8) that ``[t]he

department may inspect these prospecting and reclamation operations

[i.e., prospecting under notices of intent] at any reasonable time.''

SMCRA Section 512 does not directly address right of entry

requirements for coal exploration operations. The Federal regulations

at 30 CFR 840.12(a) require that State regulatory program have

authorities that grant their representatives the right of entry to,

upon, and through any coal exploration operation without advance notice

and upon presentation of appropriate credentials. This right of entry

is not limited to ``reasonable times.'' At 30 CFR 840.12(b), the

Federal regulations further require State program to have authority for

their representatives to inspect any monitoring equipment or method of

exploration and to have access to and copy any records required under

the approved State program, at reasonable times without advance notice,

upon presentation of appropriate credentials. Both paragraphs further

provide that no search warrant is required for right of entry, except

that a state may provide for its use with respect to entry into a

building.

Montana's proposed provision, by providing right of entry to

prospecting operations (under notices of intent) only at ``reasonable

times,'' would grant right of entry at fewer times than required by the

Federal regulation. Further, Montana's proposal does not provide

authority for inspection of monitoring equipment or prospecting

methods, nor authority for access to and copying of any records

required by the Montana program, for prospecting operations conducted

under notices of intent. Nor does the proposal address the issue of

warrants.

Based on the above discussion, the Director finds that, in regard

to prospecting under notices of intent, the Montana proposal is less

effective than the Federal regulations in implementing SMCRA's

requirements. The Director is approving the last sentence of Montana's

proposed statutory provision at MCA 82-4-226(8) except the word

``reasonable.'' However, the Director is requiring Montana: (1) To

amend this enacted provision to remove the word ``reasonable;'' (2) to

amend this statutory provision, or otherwise amend its program, to

provide authority for the inspection of monitoring equipment and

prospecting methods for prospecting conducted under notices of intent,

and access to and copying of any records required by the Montana

program, at any reasonable time without advance notice upon

presentation of appropriate credentials; and (3) to provide for

warrantless right of entry in a manner no less effective in achieving

SMCRA's requirements than the Federal regulations at 30 CFR 840.12.

6. MCA 82-4-227(11), Refusal of Permit; Scope of Operations on Which

Violations Require Permit Denial

Existing 82-4-227(11), MCA, requires that when information

available to DSL indicates that strip- or underground-coal-mining

operations owned or controlled by the applicant is currently in

violation of certain specified Federal or State laws or rules, DSL

shall not issue a permit or major revision until the applicant submits

certain proofs regarding the abatement of those violations. Montana is

proposing to revise this provision to add the same requirement for

violations on strip- or underground-coal-mining operations owned or

controlled by any person who owns or controls the applicant. Montana

also proposes nonsubstantive editorial revisions to the provision.

SMCRA Section 510(c) requires that when specified violations exist

on any surface coal mining operation owned or controlled by the

applicant, the permit shall not be issued without submission of certain

proofs regarding the abatement of those violations. The Federal

regulations at 30 CFR 773.15(b)(1) interpret this requirement to

include existing violations on any surface coal mining and reclamation

operation owned or controlled by either the applicant or by any person

who owns or controls the applicant.

Therefore both the Federal and the proposed Montana provisions

require that permits be denied (without submission of certain proofs)

for specified violations, not only on operations owned or controlled by

the applicant, but additionally on operations owned or controlled by

any person who owns or controls the applicant. Therefore the Director

finds Montana's proposed addition of the phrase ``or by any person who

owns or controls the applicant'' to be no less stringent than SMCRA

Section 510(c) and no less effective in implementing those SMCRA

requirements than the Federal regulations at 30 CFR 773.15(b)(1), and

the Director is approving the proposed addition of the phrase.

7. MCA 82-4-227(11) & (12), Refusal of Permit; Scope of Permitting

Actions Subject to Denial

Existing 82-4-227(11), MCA, requires that under the circumstances

discussed in Finding No. 6 above, DSL shall not issue a ``strip- or

underground-coal-mining permit or major revision.'' Montana is

proposing to revise this provision to require, under the specified

circumstances, denial of a ``strip- or underground-coal-mining permit

or amendment, other than an incidental boundary revision.'' Similarly,

existing 82-4-227(12), MCA, requires that when DSL finds (after

opportunity for hearing) that the applicant owns or controls any strip-

or underground-coal-mining operation which has demonstrated a pattern

of willful violations (of specified character) of certain Federal or

State laws, DSL shall not issue a ``strip- or underground-coal-mining

permit or major revision'' until the applicant submits certain proofs

regarding the abatement of violations. Montana is proposing to revise

this provision to require, in those circumstances, denial of a ``strip-

or underground-coal-mining permit or amendment, other than an

incidental boundary revision.'' Montana is also proposing

nonsubstantive editorial revisions to this provision.

In both proposed provisions, Montana's revisions would have the

effect of allowing the issuance of major revisions under the specified

circumstances, but prohibit the issuance of ``amendments,'' except that

incidental boundary revisions could be issued.

OSM notes that under MCA 82-4-225, ``amendments'' are increases or

decreases in the acreage to be affected under a permit; the same

procedures required of new permits apply to amendments (except for

incidental boundary revisions). Additionally, an existing provision of

the Montana program, ARM 26.4.412(4)(a), prohibits approval of the

transfer, sale, or assignment of permit rights under both sets of

circumstances described above (current violations and patterns of

violations).

SMCRA Section 510(c) and the Federal regulations at 30 CFR

773.15(b) prohibit the issuance of permits under both sets of specified

circumstances, but do not address permit revisions. SMCRA Section 511,

which specifies the requirements for permit revisions, does not

prohibit the approval of permit revisions under the specified

circumstances; and the Federal regulations at 30 CFR 773.15(b), 774.13,

and 773.17 do not prohibit permit revision approval, but do prohibit

the [[Page 6011]] approval of transfer, assignment, or sale of permit

rights, under the specified circumstances. SMCRA Section 511(a)(3) and

30 CFR 774.13(d) provide that incidental boundary revisions do not

require application for a new permit, and hence are not prohibited

under the specified circumstances; conversely, those Federal provisions

require that extensions to the permit area other than incidental

boundary revisions require application for a new permit, which would

subject such extensions to denial under SMCRA 510(c) and 30 CFR

773.15(b).

Thus under two sets of circumstances (existing violations on

operations owned or controlled by the applicant or by any person who

owns or controls the applicant, as discussed in Finding No. 6 above, or

demonstrated pattern of violations by the applicant, as discussed

above), both the Federal provisions and the proposed Montana provisions

prohibit the issuance of new permits, extensions to the permit area

other than incidental boundary revisions, and approval of the transfer,

sale, or assignment of permit rights. And in those circumstances, both

the Federal and the proposed Montana provisions would allow the

approval or issuance of permit revisions.

Based on the above discussion, the Director finds that Montana's

proposed revisions at MCA 82-4-227 (11) and 12 regarding the scope of

permitting actions subject to denial are no less stringent than the

scope of permitting actions subject to denial under SMCRA Section

510(c), and are no less effective than the scope of permitting actions

subject to denial under the Federal regulations at 30 CFR 773.15(b),

774.13, and 773.17 in implementing those requirements of SMCRA.

Therefore the Director is approving the proposed revisions.

8. MCA 82-4-227(13), Lands Designated by Congress as Unsuitable for

Surface Coal Mining

Subject to valid existing rights, existing 82-4-227(13), MCA,

prohibits strip- or underground-coal-mining operations ``on private

lands within the boundaries'' of certain specified Federal land

management areas designated by Congress (national park system, national

wildlife refuge system, etc.). Montana proposes to revise this

provision by deleting the word ``private,'' so that it would read ``on

lands within the boundaries'' of those areas (see Administrative Record

No. MT-11-04). Montana also proposes a nonsubstantive editorial change

to the provision.

SMCRA Section 552(e)(1) provides that, subject to valid existing

rights, no surface coal mining operations shall be permitted ``on any

lands within the boundaries'' of the specified land management areas.

Montana's proposed revision, by removing the word which limited the

applicability of the provision to only a specified subset of lands,

would extend the applicability to all lands within the boundaries of

the specified areas; this is the equivalent of the Federal provision,

which is applicable to ``any'' lands within the specified boundaries.

Therefore the Director finds that Montana's provision as revised is no

less stringent than SMCRA Section 522(e)(1), and is approving the

proposed revisions.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Montana program.

a. The Billings Area Office of the Bureau of Indian Affairs

responded on August 11, 1993, with suggestions for additional editorial

revisions (Administrative Record No. MT-11-06). The State

Conservationist of the Soil Conservation Service (SCS) responded on

August 18, 1993 (Administrative Record No. MT-11-08) with similar

suggestions for additional editorial revisions.

Some of the instances where additional revision was suggested by

these comments are interpreted by OSM as typographical errors in the

preparation of this submittal. For instance, the second sentence of MCA

82-4-227(2) (introductory text) as contained in this submittal appears

to be redundant of the last sentence and should be deleted. Similarly,

82-4-227(2)(d) as contained in this submittal has a typographical error

in the parenthetical provision. OSM interprets these as typographical

errors in the preparation of this submittal because they are not

indicated as intentional proposed changes by strikeout or underline.

These errors do not exist in the enacted statutes previously approved

by OSM. Others of these comments did address provisions that Montana

does propose to revise; one of these items in BIA's comments has been

addressed in Finding No. 2 above. BIA's and SCS's remaining suggestions

will be forwarded to Montana for its consideration. However, except for

the instance addressed in Finding No. 2, OSM does not find that any of

the editorial imperfections identified in these agency comments render

the proposed Montana statutes less stringent than SMCRA or less

effective than the Federal regulations in meeting SMCRA's requirements.

b. The Mine Safety and Health Administration responded on August 12

and 26, 1993, that it did not find any apparent conflict with its

regulations (Administrative Record Nos. MT-11-07 and MT-11-11).

c. The Office of Trust Responsibilities of the Bureau of Indian

Affairs stated in a response dated on September 24, 1993, that they had

no objection to the proposed amendment because they did not believe it

would affect Indian Lands (Administrative Record No. MT-11-16).

d. The Montana State Office of the Bureau of Land Management

responded on September 1, 1993 (Administrative Record No. MT-11-15),

that it supports the proposed amendment, but offered no detailed

comments.

e. Two agencies responded that they had no comments: U.S. Fish and

Wildlife Service (August 26, 1993; Administrative Record No. MT-11-10);

Bureau of Mines (August 30, 1993; Administrative Record Nos. MT-11-13

and MT-11-14).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed 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.).

None of the revisions that Montana proposed to make in its amendment

pertain to air or water quality standards. Therefore, pursuant to

732.17(h)(11)(i), OSM solicited comments on the proposed amendment from

EPA (Administrative Record No. MT-11-03). EPA responded on August 27,

1993, that it had no comments (Administrative Record No. MT-11-12).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed [[Page 6012]] amendment from the SHPO and ACHP (Administrative

Record No. MT-11-03). Neither SHPO and ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, Montana's proposed amendment as

submitted on June 16 and July 28, 1993, and as supplemented with

additional explanatory information on July 28, 1994.

The Director does not approve, as discussed in Finding No. 5.c.,

the word ``reasonable'' in the last sentence of proposed MCA 82-4-

226(8), concerning the right of entry to inspect prospecting operations

under notices of intent.

The Director approves, as discussed in: Finding No. 1, proposed MCA

82-4-203 (14), (16), (21), (23), (29), (34), (35), and (36), concerning

definitions; proposed MCA 82-4-226 (2), (3), (5), and (6), concerning

coal exploration (``prospecting'') permits and notices of intent;

proposed MCA 82-4-227 (1), (2), (3), (7), (8), and (9), concerning

permit approval/denial; Finding No. 3, proposed deletion of MCA 82-4-

224, concerning surface owner consent; Finding No. 4, proposed MCA 82-

4-226(1), concerning the requirement to obtain prospecting permits;

Finding Nos. 6 and 7, proposed MCA 82-4-227 (11) and (12), concerning

refusal of permitting actions for current violations or patterns of

violations; and Finding No. 8, proposed MCA 82-4-227(13) concerning

refusal of permit on lands designated as unsuitable for mining.

With the requirement that Montana further revise its program, the

Director approves, as discussed in: Finding No. 2, proposed MCA 82-4-

227(10) concerning permit issuance requirements for coal conservation

plan, with the requirement that Montana further revise the provision to

clarify that the coal conservation plan must affirmatively demonstrate

that failure to conserve coal will be prevented; Finding No. 5.a.,

proposed MCA 82-4-226 (1) and (8) (first and second sentence)

concerning prospecting under notices of intent, with the proviso that

Montana may not implement these provisions until Montana promulgates

and OSM approves State implementing regulations that in conjunction

with these provisions are less stringent than SMCRA Section 512 and no

less effective in implementing SMCRA Section 512 that the Federal

regulations at 30 CFR Part 772, and with the requirement that Montana

further revise its program to prohibit prospecting under notices of

intent when more than 250 tons of coal are to be removed; Finding No.

5.b., proposed MCA 82-4-226(8) (third sentence) concerning performance

standard compliance requirements for prospecting under notices of

intent, with the proviso that Montana may not implement these

provisions until Montana promulgates and OSM approves State

implementing regulations that in conjunction with these provisions are

no less stringent than SMCRA Section 512 and no less effective in

implementing SMCRA Section 512 than the Federal regulations at 30 CFR

Part 772 and 30 CFR 701.5; and Finding No. 5.c., proposed MCA 82-4-225

(1) and (8) (fourth [last] sentence) concerning right of entry to

inspect prospecting operations under notices of intent, with the

requirement that Montana further revise the provision to delete the

word ``reasonable,'' additionally revise its program to provide

authority for the inspection of monitoring equipment and prospecting

methods for prospecting conducted under notices of intent, and access

to and copying of any records required by the Montana program, at any

reasonable time without advance notice upon presentation of appropriate

credentials, and additionally revise its program to provide for

warrantless right of entry in accordance with 30 CFR 840.12 for

prospecting operations conducted under notices of intent.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

926.16 that, within 60 days of the publication of this final rule,

Montana must either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Montana's established administrative or legislative

procedures.

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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Montana program, the Director will recognize only the

statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Montana of only such

provisions.

VI. Procedural Determinations

1. Executive Order 12866

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

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

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

determined that this rule meets the applicable standards of subsections

(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 the Federal regulations at 30 CFR 730.11,

723.15, 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.

3. 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)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.). [[Page 6013]]

5. 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 that 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. Accordingly, 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.

VII. List of Subjects in 30 CFR 926

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 26, 1995.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of 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: 30 U.S.C. 1201 et seq.

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

follows:

Sec. 926.15 Approval of amendments to State regulatory program.

* * * * *

(l) With the exception of the word ``reasonable'' in the last

sentence of MCA 84-4-226(8), concerning right of entry to inspect

prospecting operations under notices of intent, revisions of the

following statutes, as submitted to OSM on June 16 and July 28, 1993,

and as supplemented with explanatory information on July 28, 1994, are

approved effective February 1, 1995:

82-4-203, MCA, subsections (14), (16), (21), (23), (29), (34), (35),

and (36), definitions; repeal of 82-4-224, MCA, surface owner

consent; 82-4-226, MCA, subsections (1), (2), (3), (5), (6), and

(8), prospecting permits and notices of intent 82-4-227, MCA,

subsections (1), (2), (3), (7), (8), (9), (10), (11), (12), and

(13), permit approval/denial criteria.

3. Section 926.16 is amended by revising the introductory

paragraph, by adding paragraphs (g) through (j), and by removing the

parenthetical at the end of the section to read as follows:

Sec. 926.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), Montana is required to submit to

OSM by the specified date the following written, proposed program

amendment, or a description of an amendment to be proposed that meets

the requirements of SMCRA and 30 CFR Chapter VII and a timetable for

enactment that is consistent with Montana's established administrative

or legislative procedures.

* * * * *

(g) By April 3, 1995, Montana shall revise MCA 82-4-227(10), or

otherwise modify its program, to require that no permit or major permit

revision may be issued unless the coal conservation plan affirmatively

demonstrates that failure to conserve coal will be prevented.

(h) By April 3, 1995, Montana shall revise MCA 82-4-226(8), or

otherwise modify its program, to prohibit prospecting under notices of

intent when more than 250 tons of coal are to be removed.

(i) By April 3, 1995, Montana shall revise MCA 82-4-266(8) to

delete the word ``reasonable'' in the final sentence.

(j) By April 3, 1995, Montana shall revise MCA 82-4-226(8), or

otherwise modify its program, to provide authority for the inspection

of monitoring equipment and prospecting methods for prospecting

conducted under notices of intent, and access to and copying of any

records required by the Montana program on such prospecting operations,

at any reasonable time without advance notice upon presentation of

appropriate credentials, and to provide for warrantless right of entry

for prospecting operations conducted under notices of intent, to be no

less effective in meeting SMCRA's requirements than 30 CFR 840.12 (a)

and (b).

[FR Doc. 95-2445 Filed 1-31-95; 8:45 am]

BILLING CODE 4310-05-M