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: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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

Montana regulatory program (hereinafter, the ``Montana program'') under

the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The

proposed amendment consist of revisions to Title 26, Chapter 4,

Subchapters 3 through 12 of the Administrative Rules of Montana (ARM).

The amendment is intended to revise the Montana program to be

consistent with the corresponding Federal regulations, incorporate the

additional flexibility afforded by the revised Federal regulations,

clarify ambiguities, and improve operational efficiency

This document sets forth the times and locations that the Montana

program and proposed amendment to that program are available for public

inspection, the comment period during which interested persons may

submit written comments on the proposed amendment, and procedures that

will be followed regarding the public hearing if one is requested.

DATES: Written comments must be received by 4:00 p.m., m.s.t. April 14,

1995. If requested, a public hearing on the proposed amendment will be

held on April 10, 1995. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.s.t. on March 30, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to Guy

Padgett at the address listed below.

Copies of the Montana program, the proposed amendment, and all

written comments received in response to this notice will be available

for public review at the addresses listed below during normal business

hours, Monday through Friday, excluding holidays. Each requester may

receive one free copy of the proposed amendment by contacting OSM's

Casper Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining

Reclamation and Enforcement, 100 East B Street, Room 2128, Casper, WY

82601-1918, Casper, WY 82601-1918, Telephone: (307) 261-5776.

Gary Amestoy, Administrator, Montana Department of State Lands,

Reclamation Division, Capitol Station, 1625 Eleventh Avenue, Helena,

Montana 59620, (406) 444-2074.

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. Proposed Amendment

By letters dated February 1, 1995, and February 28, 1995, Montana

submitted a proposed amendment to its program pursuant to SMCRA

(Administrative Record Nos. MT-12-01 and MT-12-05, State Program

Amendment Tracking System (SPATS) No. MT-003-FOR). Montana's proposed

amendment consist of changes to the Montana program as required by 30

CFR 926.16; in response to program deficiency letters from OSM dated

April 29, 1985, May 11, 1989, and March 29, 1990; and on its own

initiative. The Montana proposed amendment consists of changes to Title

26, Chapter 4, Subchapters 3 through 12 of the State's ARM. The

proposed revisions and rule changes are located at: ARM 26.4.301,

definitions; ARM 26.4.304, legal, financial, compliance related

information; ARM 26.4.304, baseline information for environmental

resources; Arm 26.4.308, operation plans; ARM 26.314, plans for

protection of the hydrologic balance; ARM 26.4.321, transportation

facilities plans; ARM 26.4.304, review of applications; ARM 26.4.405,

findings and notices of decision; ARM 26.4.405A, improvidently issued

permits general requirements; ARM 26.4.405B, improvidently issued

permits: revocation; ARM 26.4.407, conditions of permits; ARM 26.4.410,

permit renewal; ARM 26.4.501A, final grading requirements; ARM

26.4.505, burial and treatment of waste materials; ARM 26.4.519A, thick

overburden and excess spoil; ARM 26.4.524, signs and markers; ARM

26.4.601, general requirements for road and railroad loop construction;

ARM 26.4.602, location of roads and railroad loops; ARM 26.4.603,

embankments; ARM 26.4.605, Hydrologic impacts of roads and railroad

loops; ARM 26.4.623, blasting schedules; ARM 26.4.633, water quality

performance standards; ARM 26.4.634, reclamation of drainages; ARM

26.4.638, sediment control measures; ARM 26.4.639, sedimentation ponds

and other treatment facilities; ARM 26.4.642, permanent and temporary

impoundments; ARM 26.4.645, ground water monitoring; ARM 26.4.646,

surface water monitoring; ARM 26.4.702, redistribution and stockpiling

of soil; ARM 26.4.711, establishment of vegetation; ARM 26.4.711,

eradication of rills and gullies; ARM 26.4.724, use of revegetation

comparison standards; ARM 26.4.726, vegetation production, cover,

diversity, density, and utility requirements; ARM 26.4.821, alternate

reclamation: submission of plan; ARM 26.4.825, alternate reclamation:

Alternate revegetation; ARM 26.4.924, disposal of underground

development waste: general requirements; ARM 26.4.927, disposal of

underground development waste: durable rock fills; ARM 26.4.930,

placement and disposal of coal processing waste: special application

requirements; ARM [[Page 13933]] 26.4.923, disposal of coal processing

waste; ARM 26.4.1001, permit requirements; ARM 26.4.1001A, notice of

intent to prospect; ARM 26.4.1002, information and monthly reports; ARM

26.4.1005, drill holes; ARM 26.4.1006, roads and other transportation

facilities; ARM 26.4.107, grading, soil salvage, storage, and

redistribution; ARM 26.4.1009, diversions; ARM 26.4.1011, hydrologic

balance; ARM 26.4.1014, test pits: application requirements, review

procedures, bonding and additional performance standards; ARM

26.4.1116, bonding: criteria and schedule for release of bond; ARM

26.4.1116A, reassertion of jurisdiction; ARM 26.4.1141, designation of

lands unsuitable; ARM 26.4.1206, notices, orders of abatement and

cessation orders: issuance and service; and ARM 26.4.1212, point system

for civil penalties and waivers.

Specifically, Montana proposes to:

--Revise ARM 26.4.301 to add the definitions of ``Owned or controlled''

and ``Waste disposal structure;'' to modify the definition of ``Test

pit;'' and to recodify the numbering of definitions affected by this

action.

--Revise ARM 26.4.303 to require new information on ownership and

control, and status of violations in the permit application

requirements.

--Revise ARM 26.4.304 to clarify baseline informational needs regarding

groundwater and surface water resources in the permit application.

--Revise ARM 26.4.308 to require cross sections, design drawings, and

other specifications for other support facilities.

--Revise ARM 26.4.314 to provide a list of considerations when

summarizing the probable hydrologic consequences of the proposed mining

operation.

--Revise ARM 26.4.321 to demonstrate that transportation facilities are

in compliance with performance standards.

--Revise ARM 26.4.404 to identify under what situations the department

would conditionally issued a permit.

--Revise ARM 26.4.405 to require the applicant to provide any new

information regarding ownership/control and violations prior to making

a decision to approve the permit application.

--Provide new rule requirements at ARM 26.4.405A to allow the

department to consider, if it has reason to believe, that a permit has

been improvidently issued.

--Provide new rule requirements at ARM 26.4.405B concerning revocation

of an improvidently issued permit.

--Revise ARM 26.4.407 to require certain information from the permittee

when a cessation order has been issued.

--Revise ARM 26.4.410 to clarify when a permit need not be renewed.

--Revise ARM 26.4.501A to require that grading and backfilling may not

be more than four rather than two spoil ridges behind the pit being

worked.

--Revise 26.4.505 concerning waste disposal structure location, design

criteria, and inspection requirements.

--Revise 26.4.519A to delete the requirement that all highwalls and

depressions must be eliminated when mining in thick overburden.

--Revise ARM 26.4.524 to require identification of the mine safety and

health administration number and contractor identification (if

applicable) on mine area access signs.

--Revise ARM 26.4.601 to require a report that roads have been

constructed or reconstructed in accordance with the approved plan.

--Revise ARM 26.4.602 to identify when stream fords can be used.

--Revise ARM 26.4.603 to remove the ability for a registered land

surveyor to design and certify embankments and require all embankments

to have a minimum seismic safety factor of 1.2.

--Revise ARM 26.4.605 to require that all roads used to haul coal or

spoil or be retained in the post mining land use, must meet certain

design criteria for water-control structures.

--Revise ARM 26.4.623 to allow the department to impose more

restrictive conditions when explosives are to be detonated.

--Revise ARM 26.4.633, to correct an incorporated cite regarding

revegetation performance requirements as related to sediment control

through BTCA practices.

--Revise ARM 26.4.634 to clarify drainage systems/drainage channel

reclamation requirements and when detailed reclamation plans prior to

reclaiming a drainage channel is required.

--Revise ARM 26.4.638 to correct an incorporated citation on

revegetation performance standards in relation to sedimentation control

measures.

--Revise ARM 26.4.639 to allow for a single spillway in the

construction of sedimentation ponds, provide design criteria/size

relationship when a spillway is not needed, require that a sediment

pond constructed per 30 CFR 77.216(a) must meet certain spillway

discharge standards, and delete certain requirement before a

sedimentation pond can be removed.

--Revise ARM 26.4.642 to clarify when inspection reports are needed for

dams and embankments.

--Revise ARM 26.4.645 and .646 to require that sampling and water

quality analysis be conducted in accordance with ``Circular WOB-7,

Montana Numeric Water Quality Standards.''

--Revise ARM 26.4.702 to require the determination of the

physicochemical nature of surficial spoil material in soil prior to

redistribution and to scarify soil to a minimum 12-inch depth when

replaced.

--Revise ARM 26.4.711 to require consultation and approval by certain

State agencies concerning cover, planting, and stocking of vegetation

on certain land uses.

--Revise ARM 26.4.721 to require treatment of rills and gullies under

certain conditions.

--Revise ARM 26.4.724 to delete special success of revegetation

considerations on operations of less than 100 acres.

--Revise ARM 26.4.726 to require ``live'' vegetative cover.

--Revise ARM 26.4.821 to allow technical standards derived from

historical data for comparison when releasing bond for alternate

revegetation areas.

--Revise ARM 26.4.825 to specify what performance standard criteria is

to be used on special use pasture.

--Revise ARM 26.4.924 to clarify the applicability for use of waste

disposal structures plus design criteria that must be met.

--Revise ARM 26.4.927 to require that durable rock fills meet a minimum

safety factor of 1.5, rather than this minimum factor at the end of

construction.

--Revise ARM 26.4.930 to provide design information and impoundment

operation, demonstration of compliance with performance standards,

results and analysis of geotechnical investigations, stability

analysis, and description assumptions/calculations of design options

and considerations in selection of specific design parameters for coal

processing waste impoundments.

--Revise ARM 26.4.932 to clarify the inspection requirements for coal

processing waste disposal areas.

--Revise ARM 26.4.1001 to clarify that a prospecting permit will be

required when areas designated as unsuitable for mining are involved;

that ethnological values, pits and disposal areas for extracted

materials, and roads/access routes must be identified; that the yearly

prospecting permit is subject to renewal, [[Page 13934]] suspension,

and revocation; and that a copy of the permit must be available for

review by the department upon request.

--Provide new rule requirements at ARM 26.4.1001 for filing of a notice

of intent to prospect.

--Revise ARM 26.4.1002 to clarify informational requirements and report

requirements concerning prospecting activities.

--Revise ARM 26.4.1005 to specify requirements for treatment of drill

holes upon completion of exploration when circulation is not lost and

detail description requirements for wells and drill holes that are to

be retained after exploration.

--Revise ARM 26.4.1006 to include consideration and performance

requirements for other transportation facilities involved in

prospecting.

--Revise ARM 26.4.1007 to require that excavations or embankments

created during prospecting must be reclaimed to the approximate

original contour.

--Revise ARM 26.4.1009 to require that diversions needed in

prospecting, meet applicable performance standards at ARM 26.4.635 and

.636.

--Revise ARM 26.4.10011 to require that the prevailing hydrologic

balance in prospecting be minimized in accordance with ARM 26.4.631

through .634 and .638 through .651.

--Revise ARM 26.4.1014 to demonstrate that a test pit is necessary and

include such information as the name of the firm doing the testing,

types of tests, amount of mineral needed, that sufficient reserves are

available for future markets, and why other means of prospecting are

not adequate to determine feasibility.

--Revise ARM 26.4.1116 to incorporate revegetation performance

standards that need to be met for bond release.

--Provide new rule at ARM 26.4.1116A to allow the department

reassertion of jurisdiction.

--Revise ARM 26.4.1141 to correct the definition of ``national'' to

``natural'' hazard lands.

--Revise ARM 26.4.1206 to require the department to notify owners and

controllers that a cessation order or noncompliance notice has been

issued the mining operation.

--Revise ARM 26.4.1212 to clarify when a violation must be counted in

the ``history of recent violations'' review during the assessment of

penalties.

II. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Montana program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Casper Field Office will not

necessarily be considered in the final rulemaking or included in the

administrative record.

Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

m.s.t. March 30, 1995. Any disabled individual who has need for a

special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The location

and time of the hearing will be arranged with those persons requesting

the hearing. If no one requests an opportunity to testify at the public

hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to comment have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the administrative record.

IV. Procedural Determinations

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).

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 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 the Federal regulations at 30 CFR 730.11,

732.15, and 732.17(h)(1)), 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.

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.).

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. [[Page 13935]] 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.

List of Subjects in 30 CFR Part 926

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 8, 1995.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

[FR Doc. 95-6302 Filed 3-14-95; 8:45 am]

BILLING CODE 4310-05-M