Surface Coal Mining and Reclamation Operations Under the Federal Lands Program; State-Federal Cooperative Agreements; Montana

SUMMARY: The Governor of the State of Montana (Governor) and the

Secretary of the Department of the Interior (Secretary) are amending

the cooperative agreement between the Department of the Interior and

the State of Montana for the regulation of surface coal mining and

reclamation operations on Federal lands within Montana. Cooperative

agreements are provided for under section 523(c) of the Surface Mining

Control and Reclamation Act of 1977 (SMCRA). These amendments clarify

Montana's responsibility for the administration of its approved State

program on lands subject to the Federal lands program in Montana.

EFFECTIVE DATE: August 31, 1998.

FOR FURTHER INFORMATION CONTACT:

Ranvir Singh, P.E., Western Regional Coordinating Center, Office of

Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320,

Denver, CO 80202-5733; Telephone: (303) 844-1489.

SUPPLEMENTARY INFORMATION:

I. Background

II. Summary of the Cooperative Agreement

Article I: Authority, Purposes, and Responsible Agencies.

Article II: Effective Date.

Article III: Definitions.

Article IV: Applicability.

Article V: Requirements for the Agreement.

Article VI: Review and Approval of the PAP or Application for

Transfer, Assignment or Sale of Permit Rights (Transfer

Application).

Article VII: Inspections.

Article VIII: Enforcement.

Article IX: Bonds.

Article X: Designating Land Areas Unsuitable for All or Certain

Types of Surface Coal Mining and Reclamation Operations and

Activities, and Valid Existing Rights and Compatibility

Determinations.

Article XI: Termination of the Agreement.

Article XII: Reinstatement of the Agreement.

Article XIII: Amendments to the Agreement.

Article XIV: Changes in State or Federal Standards.

Article XV: Changes in Personnel and Organization.

Article XVI: Reservation of Rights.

III. Procedural Determinations

1. Executive Order 12866--Regulatory Planning and Review

2. Regulatory Flexibility Act

3. Small Business Regulatory Enforcement Fairness Act

4. Unfunded Mandates

5. Executive Order 12630--Takings

6. Executive Order 12612--Federalism

7. Executive Order 12988--Civil Justice Reform

8. Paperwork Reduction Act

9. National Environmental Policy Act

10. Author

I. Background

On June 4, 1980, the Governor submitted a request for a cooperative

agreement between the Department of the Interior and the State of

Montana to give the State primacy in the administration of its approved

regulatory program on Federal lands within Montana. The Secretary

approved the cooperative agreement on January 19, 1981 (46 FR 20983,

April 8, 1981). The text of the existing cooperative agreement can be

found at 30 CFR 926.30.

On July 5, 1994, the Governor, pursuant to 30 CFR 745.14 and at the

recommendation of the Office of Surface Mining Reclamation and

Enforcement (OSM), submitted a proposed modified cooperative agreement

to address among other things, elimination of duplicative State-Federal

permitting efforts and streamlining of the permitting processes in

accordance with the revised Federal lands regulations at 30 CFR Part

740 (48 FR 6912, February 16, 1983). OSM published the requested

amendments in the January 10, 1997, Federal Register (62 FR 1408) and

announced a public comment period on the proposed rules until March 11,

1997. The notice also provided that, if requested, OSM would hold a

public hearing. However, since no person contacted OSM to express an

interest in testifying at the public hearing, no public hearing was

held. OSM reopened the comment period on the proposed rule for an

additional 30 days on April 7, 1997 (62 FR 16506) but did not receive

any written comments on the proposed amendments during either of the

two comment periods.

II. Summary of the Cooperative Agreement

No written comments were received from any person or organization

on the proposed amendments during the specified comments period.

Therefore, no changes are being made and the proposed amendments as

published in the Federal Register on January 10, 1997 (62 FR 1408) are

being adopted as final. A discussion of the terms of the cooperative

agreement follows.

Article I: Authority, Purposes, and Responsible Agencies

Paragraph A of Article I sets forth the legal authority for the

Montana Cooperative Agreement (Agreement); which is provided by section

523(c) of SMCRA. This paragraph states that the Agreement provides for

State regulation of coal exploration operations \1\ not subject to 43

CFR Group 3400, and surface coal mining and reclamation operations and

activities in Montana on Federal lands.

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\1\ The term ``Exploration operations'' is referred to as

``Prospecting'' in the Montana State Program.

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Paragraph B sets out the purposes of the Agreement.

Paragraph C states that the Department of Environmental Quality

(DEQ) is the agency responsible for administering the Agreement on

behalf of the Governor of Montana. Paragraph C also names OSM as the

agency responsible for administering the Agreement on behalf of the

Secretary.

Article II: Effective Date

Article II provides that after the Agreement has been signed by the

Secretary and the Governor, it will become effective 30 days after

publication in the Federal Register. It will remain in effect until

terminated as provided in Article XI.

Article III: Definitions

Article III provides that the terms and phrases used in the

Agreement, except the term ``permit application package (PAP),'' would

have the same meanings as they have in SMCRA, 30 CFR Parts 700, 701,

740, and the State Program. As explained in the proposed rule published

in the Federal Register on January 10, 1997, 62 FR 1408, 1409-1410,

additional language has been included in Article III to define the term

``Permit Application Package (PAP).'' Defining terms and phrases in

this manner ensures consistency between applicable regulations and the

Agreement. Where there is a conflict between the referenced State and

Federal definitions, the definitions used in the State Program will

apply, unless otherwise required by Federal regulation.

Article IV: Applicability

Article IV states that the laws, regulations, terms and conditions

of the State Program are applicable to Federal lands in Montana except

as otherwise stated in the Agreement, SMCRA, 30 CFR 740.4, 740.11(a),

and 745.13 or other applicable Federal laws, Executive Orders, or

regulations.

[[Page 40791]]

Article V: Requirements for the Agreement

Paragraph A mutually binds the Governor and the Secretary to comply

with all provisions of the Agreement.

Paragraph B.1 requires DEQ to devote adequate funds to the

administration and enforcement of the requirements of the State Program

on Federal lands. OSM is required to reimburse the State, as provided

in section 705(c) of SMCRA and 30 CFR 735.16, for the costs of

administration and enforcement if the State complies with the terms of

this Agreement and necessary funds have been appropriated to OSM. The

amount of such funds shall be determined in accordance with the

provisions of Chapter 3-10 and Appendix 111 of the Federal Assistance

Manual.

Paragraph B.2 provides that if DEQ applies for a grant but

sufficient funds have not been appropriated to OSM, OSM and DEQ shall

promptly meet to decide on appropriate measures that will insure that

surface coal mining and reclamation operations on Federal lands in

Montana are regulated in accordance with the State Program.

Paragraph B.3 provides that the funds reimbursed to DEQ under this

Agreement will be adjusted in accordance with the program income

provisions of 43 CFR Part 12.

Paragraph C provides that DEQ shall submit annual reports to OSM as

required by 30 CFR 745.12(d). The report will contain information about

DEQ's compliance with the terms of the Agreement. OSM and DEQ shall

exchange information that is developed under the Agreement, unless

prohibited by Federal or State law. OSM is also required to provide DEQ

with a copy of OSM's final evaluation report regarding State

administration and enforcement of the Agreement, and if the State has

any comments on the evaluation report, OSM shall attach those comments

to the report before sending it to the Congress or other interested

parties.

Paragraph D requires DEQ to maintain necessary personnel to fully

implement the Agreement in accordance with the provisions of SMCRA, the

Federal lands program, and the State Program.

Paragraph E provides that DEQ shall assure itself access to

equipment, laboratories, and facilities to perform all necessary

inspections, investigations, studies, tests, and analyses.

Paragraph F states that the amount of fee charged from an applicant

to obtain a permit to conduct surface coal mining and reclamation

operations, will be determined by the provisions of section 82-4-223(1)

of Montana Code Annotated (MCA), and the applicable provisions of

Federal law. Permit fee collected by DEQ will be considered program

income, and all permit fees and civil penalty fines shall be accounted

for in accordance with the requirements of 43 CFR Part 12. However,

civil penalty fines shall not be considered program income. The

Financial Status Report submitted by DEQ pursuant to the requirements

of 30 CFR 735.26 shall include the amount of permit application fees

collected and attributable to Federal lands during the State fiscal

year.

Article VI: Review and Approval of the PAP or Application for Transfer,

Assignment or Sale of Permit Rights (Transfer Application)

Paragraph A describes the process that DEQ is required to follow

for receipt and distribution of the PAP or transfer application.

Under paragraph A.1 an applicant proposing to conduct surface coal

mining and reclamation operations on Federal lands is required by DEQ

to submit an appropriate number of copies of a PAP or transfer

application to DEQ. Such PAP or transfer application shall be in the

form required by DEQ and shall, at a minimum, contain the information

required by 30 CFR 740, and any supplemental information required by

OSM, the Bureau of Land Management (BLM) and the Federal land

management agency.

Under paragraph A.2, upon receipt of the PAP or transfer

application, DEQ shall ensure that an appropriate number of copies of

the PAP or transfer application are provided to OSM, the Federal land

management agency and any other appropriate Federal agency.

Paragraph B describes the procedures for review of the PAP or

transfer application.

Paragraph B.1 describes the responsibilities of DEQ with respect to

review, analysis, and approval or disapproval of the permit application

component of the PAP or transfer application. As authorized in 30 CFR

740.4(c), DEQ is responsible for: (1) being the primary point of

contact with the applicant regarding the review of the PAP or transfer

application, and all decisions and determinations on the PAP or

transfer application; (2) analysis, review and approval or disapproval

of the PAP or transfer application; (3) obtaining comments and findings

of Federal agencies; (4) obtaining OSM's determination if a permit

revision issued by DEQ will constitute a mining plan modification

pursuant to 30 CFR 746.18, and informing the applicant of such

determination; (5) consulting with and obtaining the consent, as

necessary, of the Federal land management agency as required by 30 CFR

740.4(c)(2); (6) consulting and obtaining the consent, as necessary, of

BLM as required by 30 CFR 740.4(c)(3); (7) approval and release of

performance bonds, and approval and maintenance of liability insurance;

(8) review and approval of exploration operations as provided in 30 CFR

740.4(c)(6); (9) preparation of documentation to assist OSM in assuring

compliance with the requirements of the National Environmental Policy

Act (NEPA) and preparation of a State decision package when a mining

plan action is required pursuant to 30 CFR 746.18. In the proposed

rulemaking, paragraph B.1.a(2) provided, among other things, that DEQ

is responsible for the analysis, review, and approval, conditional

approval, or disapproval of the permit application component of the PAP

or the transfer application for surface coal mining and reclamation

operations on Federal lands in Montana.

In ``Article III: Definitions'' of the proposed rule, the term PAP

was defined, for purposes of the Agreement, to mean ``a proposal to

conduct surface coal mining and reclamation operations on Federal

lands, including an application for a permit, permit revision, permit

amendment, or permit renewal, and all information required by SMCRA,

the Federal regulations, the State Program, this agreement, and all

other applicable laws and regulations, including, with respect to

leased Federal coal, the Mineral Leasing Act of 1920 (MLA) and its

implementing regulations.''

Pursuant to the Agreement, DEQ has the responsibility to analyze,

review, and approve, conditionally approve or disapprove only that

information in the PAP that is submitted by the applicant for a permit,

permit revision, permit amendment, or permit renewal, and all

information required by SMCRA, the Federal regulations, the State

Program. The phrase ``the permit application component of the PAP,''

therefore, clarifies that DEQ will not be expected to review, analyze,

review, and approve, conditionally approve or disapprove the

information in the PAP that is submitted by the applicant pursuant to

the requirements of ``all other applicable laws and regulations,

including, with respect to leased Federal coal, the MLA and its

implementing regulations.''

Paragraph B.2 describes the responsibilities of OSM with respect

to: (1) making determinations and evaluations for NEPA compliance

documents required by 30 CFR 740.4(c)(7)(i) through (vii); (2)

reviewing appropriate portions of the PAP to

[[Page 40792]]

assure compliance with the non-delegable responsibilities of the

Secretary pursuant to SMCRA and 30 CFR 745.13; (3) consulting with BLM

prior to making a determination required by 30 CFR 746.18; (4)

exercising its responsibilities in a timely manner; (5) providing

assistance to DEQ in carrying out its responsibilities; and (6) when a

mining plan action is required pursuant 746.18, consulting with and

obtaining concurrences of BLM, the Federal land management agency, and

any other Federal agency, resolving issues when certain conditions

required by the Federal land management agency are not included in the

permit by DEQ, and preparing a decision document and recommendations to

the Secretary for approval, disapproval or approval with conditions of

a mining plan or modification thereof pursuant to 30 CFR 746.13.

Paragraph B.3 provides that the Secretary shall: (1) concurrently

and in a timely manner, carry out his responsibilities that cannot be

delegated to DEQ pursuant SMCRA and 30 CFR 745.13 and other laws and

regulations; (2) reserve the right to act independently of DEQ under

laws other than SMCRA, and to delegate some of the responsibilities to

OSM; and (3) approve, disapprove, or approve with conditions, the

mining plan actions for leased Federal coal pursuant to 30 CFR

740.4(a)(1).

Paragraph B.4 sets forth the coordination obligations of OSM and

DEQ in order to meet the purposes of the Agreement. Accordingly, OSM

and DEQ will be required to coordinate with each other in developing a

work plan and designating project leaders for the PAP or transfer

application review process, and in scheduling meetings with the

applicant. OSM will not independently initiate contacts with applicants

regarding completeness or deficiencies during the review of a PAP or

transfer application. As review of the PAP or transfer application

progresses, DEQ will keep OSM informed of its findings that may affect

the responsibilities of OSM and other Federal agencies. DEQ will also

send to OSM copies of any correspondence with the applicant, and allow

OSM access to DEQ files concerning operations of Federal lands.

Likewise, OSM shall send to DEQ copies of the correspondence or any

other information received from the applicant. Any differences of

opinion that may surface during the PAP or transfer application review

process, should be resolved at the lowest possible staff level.

Paragraph B.4 also provides for OSM and DEQ, with the concurrence

of any appropriate Federal agency, to enter into working agreements

without amending this Agreement to delegate to DEQ additional

responsibilities and decisions that are authorized under applicable

Federal laws other than SMCRA. DEQ is also required to work with

appropriate agency to develop mutually acceptable terms and conditions

for inclusion in the permit issued pursuant to section 522(e)(3) to

mitigate adverse impacts on any publicly owned park or places included

in the National Register of Historic Sites (NRHS).

Paragraph C describes the process that DEQ is required to follow

during the approval of the PAP or transfer application.

Paragraph C.1 provides that DEQ shall make a decision on the permit

application component or the PAP or transfer application on Federal

lands.

In paragraph C.2, during this decision-making process, DEQ is

required to consider the comments of Federal agencies in the context of

permit issuance and document these comments in the record of permit

decisions. If the permit conditions recommended by Federal agencies are

not adopted by DEQ, DEQ is required to provide OSM with documentation

as to why they were not included as permit conditions.

Under paragraph C.3, if DEQ approves the PAP or transfer

application before the Secretarial decision on a mining plan, DEQ is

required to advise the applicant that Secretarial approval of the

mining plan must be obtained before the applicant may conduct surface

coal mining and reclamation operations on the Federal lands.

Paragraph C.4 provides that after making a decision on the PAP or

transfer application, DEQ is required to send a copy of the signed

permit form and State decision document to the applicant, OSM and other

appropriate agencies.

Article VII: Inspections

Paragraphs A and B state that DEQ will conduct inspections on lands

covered by this Agreement and prepare and file State inspection reports

in accordance with the State Program.

Paragraph C designates DEQ as the point of contact and inspection

authority in dealing with the operator. However, this Agreement shall

not prevent inspections by authorized Federal or State agencies for

purposes other than those covered by this Agreement.

Paragraph D provides that authorized representatives of the

Secretary may conduct any inspections necessary to comply with 30 CFR

Parts 842 and 843 and with the Secretary's obligations under laws other

than SMCRA.

Paragraph E states that when OSM intends to conduct an inspection

under 30 CFR 842.11, DEQ will be given reasonable notice of such an

inspection to provide opportunity for State inspectors to join in the

inspection. When OSM intends to conduct an inspection in response to a

citizen complaint supplying adequate proof of imminent danger to public

health and safety, or a significant imminent environmental harm to

land, air, or water resources, DEQ will be given at least a 24-hour

notice, if practicable, to facilitate a joint Federal-State inspection.

Citizen complaints not involving an imminent harm to the public or the

environment will be initially referred to DEQ for action. However, the

Secretary reserves the right to conduct inspections without prior

notice to DEQ, if necessary, to carry out his responsibilities under

SMCRA.

Article VIII: Enforcement

Article VIII sets forth the enforcement obligations and authorities

of OSM and DEQ.

Under paragraph A, DEQ will have primary enforcement authority on

Federal lands in accordance with the requirements of the Agreement and

State Program. Enforcement authority given to the Secretary under

Federal laws and Executive Orders will be reserved by the Secretary.

Under paragraph B, DEQ will have primary responsibility for

enforcement during joint inspections with OSM. Paragraph B also

includes a requirement that DEQ notify OSM prior to suspending or

revoking a permit, BLM of any suspension, rescission or revocation of a

permit containing leased Federal coal.

Paragraph C preserves OSM's authority to take any enforcement

action necessary to comply with 30 CFR Parts 842, 843, 845 and 846

where OSM conducted an inspection or where, during a joint inspection

with DEQ, the two cannot agree on the appropriateness of a particular

enforcement action.

Paragraph D provides that OSM and DEQ will notify each other of all

violations of applicable regulations and all actions taken on the

violations.

Paragraph E provides that personnel of DEQ and OSM will be mutually

available to serve as witnesses in enforcement actions taken by either

party.

Paragraph F specifies that this Agreement will not limit the

Secretary's

[[Page 40793]]

authority to enforce Federal laws other than SMCRA.

Article IX: Bonds

Under paragraph A, DEQ and the Secretary will require each operator

conducting operations on Federal lands to submit a single performance

bond, sufficient to cover the operator's responsibilities, jointly

payable to both the United States and DEQ. All applicable State and

Federal requirements must be fulfilled during the bond period. If the

Agreement is terminated, paragraph A requires that the portion of the

bond covering Federal lands shall be payable only to the United States.

Paragraph B provides that DEQ will have the primary responsibility

to approve and release performance bonds, however, DEQ must obtain

OSM's concurrence prior to releasing a performance bond on lands

subject to an approved mining plan. OSM, in turn, will be required to

coordinate with the appropriate Federal land management agency before

concurring to such bond release. DEQ will annually advise OSM of any

adjustments to the performance bond.

Paragraph C states that forfeiture of performance bonds will be in

accordance with the State Program and subject to OSM concurrence.

Paragraph D clarifies that the performance bond does not meet the

requirement for a Federal lease bond under 43 CFR Part 3474, or for the

lessee protection bond required in certain circumstances by section 715

of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain Types

of Surface Coal Mining and Reclamation Operations and Activities, and

Valid Existing Rights and Compatibility Determinations

Paragraph A.1 provides that a petition to designate areas of

Federal lands as unsuitable for all or certain types of surface coal

mining and reclamation operation will be filed with OSM for processing

in accordance with 30 CFR 769, and that the Secretary reserves the

authority to designate or terminate such designation.

Paragraph A.2 provides that DEQ and OSM will notify each other of

any petition to designate lands as unsuitable that could impact

adjacent Federal and non-federal lands, and solicit and consider each

other's views on a petition. OSM will coordinate with the Federal land

management agency with jurisdiction over the area covered by the

petition, and will solicit comments. OSM and DEQ shall fully consider

data, information, and recommendations of all agencies.

Paragraph B.1 provides that the Secretary will make the valid

exiting rights (VER) determination for Federal lands within the

boundaries of any areas specified under section 522(e)(1) of SMCRA.

Where surface coal mining and reclamation operations would be conducted

on both Federal and non-Federal lands within such areas, the Secretary

will make the VER determination for the Federal lands and DEQ will make

the VER determination for State and private lands.

Paragraph B.2 states that the Secretary will make VER

determinations for Federal lands within the boundaries of any national

forest where proposed surface coal mining and reclamation operations

are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR

761.11(b). OSM will process requests for determinations of

compatibility under section 522(e)(2) of SMCRA and part 30 CFR

761.12(c).

Paragraph B.3 provides that DEQ will make the VER determination

when a VER determination is requested for Federal lands protected under

section 522(e)(3). DEQ will determine, in consultation with the State

Historic Preservation Officer, whether any proposed operation will

adversely affect any publicly-owned park or place listed on the NRHS.

Paragraph B.3 also states that surface coal mining and reclamation

operations of Federal lands protected under section 522(e)(3) of SMCRA

may be permitted if approved jointly by DEQ, and the Federal, State, or

local agency with jurisdiction over the park or historic place. In

these instances, DEQ will coordinate with any agency with jurisdiction

over the publicly-owned park or historic place to develop mutually

acceptable terms and conditions for incorporation into the permit in

order to mitigate environmental impacts.

Paragraph B.4 provides that DEQ will process determinations of VER

on Federal lands for all areas limited or prohibited by section

522(e)(4) and (5) of SMCRA as unsuitable for mining.

Paragraph B.5 states that for operations on Federal lands, whenever

DEQ is responsible for making the VER determinations, DEQ will consult

with OSM and any affected agency.

Article XI: Termination of the Agreement

Article XI specifies that the Agreement may be terminated as

specified under 30 CFR 745.15.

Article XII: Reinstatement of the Agreement

Article XII provides that, if terminated, the Agreement may be

reinstated under 30 CFR 745.16. That provision allows for reinstatement

of a cooperative agreement upon application by the State after

remedying the defects for which the agreement was terminated and the

submission of evidence to the Secretary that the State can and will

comply with all of the provisions of the Agreement.

Article XIII: Amendments to the Agreement

Article XIII provides that the Agreement may be amended by mutual

agreement of the Governor and the Secretary in accordance with 30 CFR

745.14.

Article XIV: Changes in State or Federal Standards

Paragraph A recognizes that the Secretary or the Governor may, from

time to time, revise and promulgate new or revised performance or

reclamation requirements or enforcement and administrative procedures.

If it is determined to be necessary to keep this Agreement in force,

each party shall change or revise its respective laws or regulations or

request necessary legislative action. Such changes will be made under

the procedures of 30 CFR Part 732 for changes to the State Program and

under the procedures of section 501 of SMCRA for changes to the Federal

lands program.

Paragraph B requires that DEQ and OSM to provide each other with

copies of any changes to their respective laws, rules, regulations, and

standards pertaining to the enforcement and administration of this

Agreement.

Article XV: Changes in Personnel and Organization

Paragraph A states that DEQ and OSM shall advise each other of

changes in the organization, structure, functions, duties and funds of

the offices, departments, divisions, and persons within their

organizations which could affect administration and enforcement of this

Agreement. Each shall promptly advise the other in writing of changes

in key personnel, including the head of a department or division, or

changes in the functions or duties of the principal offices of the

program. DEQ and OSM shall advise each other in writing of changes in

the location of their respective offices, addresses, telephone numbers,

as well as changes in the names, addresses, and telephone numbers of

their respective personnel.

[[Page 40794]]

Paragraph B provides that if the State Act be amended to transfer

administration of the State Act to another agency, all references to

DEQ in this Agreement shall be deemed to apply to the successor

regulatory agency as of the date of the transfer. The provisions in

this Agreement shall thereafter apply to that agency.

Article XVI: Reservation of Rights

This agreement will not be construed as waiving or preventing the

assertion of any rights in this Agreement that the State or the

Secretary may have under laws other than the Act and the State Program,

including, but not limited to those listed in Appendix A of this

Agreement.

III. Procedural Determinations

1. Executive Order 12866--Regulatory Planning and Review

This document is not a significant rule and is not subject to

review by the Office of Management and Budget under Executive Order

12866.

(1) This rule will not have an effect of $100 million or more on

the economy. It will not adversely affect in a material way the

economy, productivity, competition, jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities.

(2) This rule will not create a serious inconsistency or otherwise

interfere with an action taken or planned by another agency.

(3) This rule does not alter the budgetary effects or entitlements,

grants, user fees, or loan programs or the rights or obligations of

their recipients.

(4) This rule does not raise novel legal or policy issues.

2. Regulatory Flexibility Act

The Department of the Interior certifies 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.).

This rule will amend the cooperative agreement between the Department

of the Interior and the State of Montana. It will streamline the

permitting process in Montana by delegating to Montana the sole

responsibility to issue permits for coal mining and reclamation

operations on Federal lands under the Federal lands program

regulations. It will eliminate duplicative permitting requirements,

thereby increasing governmental efficiency. The rule will also update

the cooperative agreement to reflect current regulations and agency

structures.

3. Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small

Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or

more. The rule only affects the State of Montana and the costs of

carrying out the functions under the cooperative agreement are offset

by grants from the Federal government.

b. Will not cause a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions because the rule does not impose any

new requirements on the coal mining industry or consumers. The

functions being performed by the State under the cooperative agreement

are offset by grants from the Federal government.

c. Does not have significant adverse effects on competition,

employment, investment, productivity, innovation, or the ability of

U.S.-based enterprises to compete with foreign-based enterprises for

the reasons stated above.

4. Unfunded Mandates

This rule does not impose an unfunded mandate on State, local, or

tribal governments or the private sector of more than $100 million per

year. The rule does not have a significant or unique effect on State

local or tribal governments or the private sector. A statement

containing the information required by the Unfunded Mandates Reform Act

(1 U.S.C. 1531, et seq.) is not required.

5. Executive Order 12630--Takings

In accordance with Executive Order 12630, the rule does not have

significant takings implications. The rule revises an existing

cooperative agreement at the request of the State of Montana and will

result in the delegation of authority to the State. A takings

implication assessment is not required.

6. Executive Order 12612--Federalism

In accordance with Executive Order 12612, the rule does not have

significant Federalism implications to warrant the preparation of a

Federalism Assessment. The rule revises an existing cooperative

agreement at the request of the State of Montana and will result in the

delegation of authority to the State. Therefore, a Federalism

assessment is not required.

7. Executive Order 12988--Civil Justice Reform

In accordance with Executive Order 12988, the Office of the

Solicitor has determined that this rule does not unduly burden the

judicial system and meets the requirements of sections 3(a) and 3(b)(2)

of the Order.

8. Paperwork Reduction Act

This regulation does not require an information collection from 10

or more parties and a submission under the Paperwork Reduction Act is

not required. An OMB form 83-I is not required.

9. National Environmental Policy Act

This rule has been reviewed by OSM and it has been determined to be

categorically excluded from the NEPA process in accordance with the

Departmental Manual 516 DM 6, Appendix 8.4(B)(21).

10. Author

The principal author of this final rule is Ranvir Singh, P.E.,

Western Regional Coordinating Center, 1999 Broadway, Suite 3320,

Denver, CO 80202-5733.

List of Subjects in 30 CFR Part 926

Coal mining, Intergovernmental relations, Surface mining,

Underground mining.

Dated: June 15, 1998.

Sylvia V. Baca,

Acting Assistant Secretary, Land and Minerals Management.

Accordingly, 30 CFR Part 926 is amended as follows:

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 926.30 is revised to read as follows:

Sec. 926.30 State-Federal cooperative agreement.

COOPERATIVE AGREEMENT

The Governor of the State of Montana (Governor) and the

Secretary of the Department of the Interior (Secretary) enter into a

State-Federal Cooperative Agreement (Agreement) to read as follows:

Article I: Authority, Purposes, and Responsible Agencies

A. Authority

This Agreement is authorized by section 523(c) of the Surface

Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), which

allows a State with a permanent regulatory program approved by the

Secretary, under 30 U.S.C. 1253, to elect to enter into an agreement

for State control and

[[Page 40795]]

regulation of surface coal mining and reclamation operations on

Federal lands. This Agreement provides for State regulation of coal

exploration operations \1\ not subject to 43 CFR Group 3400, and

surface coal mining and reclamation operations and activities in

Montana on Federal lands consistent with SMCRA, the Federal lands

program (30 CFR) Chapter VII, Subchapter D), and the Montana State

Program (State Program), including among other things, the Montana

Strip and Underground Mine Reclamation Act, Part 2, Chapter 4, Title

82, Montana Code Annotated (State Act or MCA).

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\1\ The term ``Exploration Operations'' is referred to as

``Prospecting'' in the Montana State Program.

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B. Purposes

The purposes of the Agreement are to (1) foster State-Federal

cooperation in the regulation of surface coal mining and reclamation

operations on Federal lands and coal exploration operations not

subject to 43 CFR Group 3400; (2) minimize intergovernmental overlap

and duplication; and (3) provide effective and uniform application

of the State Program on all non-Indian lands in Montana.

C. Responsible Agencies

The Montana Department of Environmental Quality (DEQ) shall

administer this Agreement on behalf of the Governor. The Office of

Surface Mining Reclamation and Enforcement (OSM) shall administer

this Agreement on behalf of the Secretary.

Article II: Effective Date

Upon signing by the Secretary and the Governor, this Agreement

will take effect 30 days after final publication as a rule making in

the Federal Register.\2\ This Agreement shall remain in effect until

terminated as provided in Article XI.

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\2\ See explanation in Article II at 46 FR 20983, April 8, 1981.

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Article III: Definitions

The term and phrases used in this Agreement, except the term

``permit application package (PAP),'' will be given the meanings set

forth in SMCRA, 30 CFR Parts 700, 701, 740, and 761, and the State

Program, including the State Act and the regulations promulgated

pursuant to the State Act. Where there is a conflict between the

above-referenced State and Federal definitions, the definitions used

in the State Program will apply, unless otherwise required by

Federal regulation.

The term ``permit application package (PAP)'' for the purposes

of this Agreement, means a proposal to conduct surface coal mining

and reclamation operations on Federal lands, including an

application for a permit, permit revision, permit amendment, or

permit renewal, and all information required by SMCRA, the Federal

regulations, the State Program, this Agreement, and all other

applicable laws and regulations, including, with respect to leased

Federal coal, the Mineral Leasing Act of 1920 (MLA) and its

implementing regulations.

Article IV: Applicability

In accordance with the Federal lands program, the laws,

regulations, terms and conditions of the State Program are

applicable to Federal lands in Montana except as otherwise stated in

this Agreement, SMCRA, 30 CFR 740.4, 740.11(a), and 745.13 or other

applicable Federal laws, Executive Orders, or regulations.

Article V: Requirements for the Agreement

The Governor and the Secretary affirm that they will comply with

all provisions of this Agreement.

A. Funds

1. The State shall devote adequate funds to the administration

and enforcement on Federal lands in Montana of the requirements

contained in the State Program. If the State complies with the terms

of this Agreement, and if necessary funds have been appropriated,

OSM shall reimburse the State as provided in section 705(c) of SMCRA

and 30 CFR 735.16 for the costs associated with carrying out

responsibilities under this Agreement. The amount of such funds

shall be determined in accordance with the provisions of Chapter 3-

10 and Appendix 111 of the Federal Assistance Manual.

2. If DEQ applies for a grant but sufficient funds have not been

appropriated to OSM, OSM and DEQ shall promptly meet to decide on

appropriate measures that will insure that surface coal mining and

reclamation operations on Federal lands in Montana are regulated in

accordance with the State Program.

3. Funds provided to DEQ under this Agreement will be adjusted

in accordance with the program income provisions of 43 CFR Part 12.

B. Reports and Records

1. DEQ shall submit annual reports to OSM containing information

with respect to its compliance with the terms of this Agreement

pursuant to 30 CFR 745.12(d). Upon request, DEQ and OSM shall

exchange, except where prohibited by Federal or State law,

information developed under this Agreement. OSM shall provide DEQ

with a copy of any final evaluation report prepared concerning State

administration and enforcement of this Agreement. DEQ comments on

the report will be attached before being sent to the Congress or

other interested parties.

C. Personnel

DEQ shall maintain the necessary personnel to fully implement

this Agreement in accordance with the provisions of SMCRA, the

Federal lands program, and the State Program.

D. Equipment and Facilities

DEQ shall assure itself access to equipment, laboratories, and

facilities with which all inspections, investigations, studies,

tests, and analyses can be performed and which are necessary to

carry out the requirements of this Agreement.

E. Permit Application Fees and Civil Penalties

The amount of the fee accompanying the PAP shall be determined

in accordance with section 82-4-223(1), of MCA, and the applicable

provisions of Federal law. All permit fees and civil penalty fines

shall be accounted for in accordance with the provisions of 43 CFR

Part 12. Permit fees will be considered program income. Civil

penalties will not be considered program income. The Financial

Status Report submitted pursuant to 30 CFR 735.26 shall include the

amount of the permit application fees collected and attributable to

Federal lands during the State fiscal year.

Article VI: Review and Approval of the PAP or Application for Transfer,

Assignment or Sale of Permit Rights (Transfer Application)

A. Receipt and Distribution of the PAP or Transfer Application

1. DEQ shall require an applicant proposing to conduct surface

coal mining and reclamation operations on Federal lands to submit to

DEQ the appropriate number of copies of a PAP or transfer

application. The PAP or transfer application shall meet the

requirements of 30 CFR Part 740, shall be in the form required by

DEQ, and shall contain, at a minimum, the information required by 30

CFR 740.13(b), including:

a. Information necessary for DEQ to make a determination of

compliance with the State Program;

b. Any supplement information required by OSM, the Bureau of

Land Management (BLM), and the Federal Land Management Agency. This

information shall be appropriate and adequate for OSM and the

appropriate Federal agencies to make determinations of compliance

with applicable requirements of SMCRA,the MLA, as amended, the

Federal lands program, and other Federal laws, Executive Orders, and

regulations which these agencies administer.

2. Except as otherwise agreed in writing by Federal agencies,

upon receipt of a PAP or transfer application, DEQ shall ensure that

an appropriate number of copies of the PAP or transfer application

are provided to OSM, Federal land management agency, and any other

appropriate Federal agency.

B. Review of the PAP or Transfer Application

1. DEQ is responsible for:

a. As authorized by 30 CFR 740.4(c),

(1) Being the primary point of contact with the applicant

regarding the review of the PAP or transfer application and

communications regarding all decisions and determinations with

respect to the PAP or transfer application;

(2) Analysis, review, and approval, conditional approval, or

disapproval of the permit application component of the PAP or the

transfer application for surface coal mining and reclamation

operations on Federal lands in Montana;

(3) Obtaining the comments and findings of Federal agencies with

jurisdiction or responsibility over Federal lands affected by the

operations proposed in the PAP or transfer application, unless

otherwise agreed in writing by Federal agencies. DEQ shall request

such Federal agencies to provide to

[[Page 40796]]

DEQ their requests for additional information or their findings

within 45 days of the receipt of the request;

(4) Obtaining OSM's determination whether the PAP involving

leased Federal coal constitutes a mining plan modification under 30

CFR 746.18, and informing the applicant of such determination;

(5) Consulting with and obtaining the consent, as necessary, of

the Federal land management agency pursuant to 30 CFR 740.4(c)(2),

with respect to post-mining land use and to any special requirements

necessary to protect non-coal resources of the areas that will be

affected by surface coal mining and reclamation operations;

(6) Consulting with and obtaining the consent, as necessary, of

BLM pursuant to 30 CFR 740.4(c)(3), with respect to requirements

relating to the development, production and recovery of mineral

resources on lands affected by surface coal mining and reclamation

operations involving leased Federal coal pursuant to 43 CFR Group

3400;

(7) Approval and release of performance bonds pursuant to

Article IX.B, and approval and maintenance of liability insurance;

(8) Review and approval of exploration operations not subject to

the requirements of 43 CFR Group 3400, as provided in 30 CFR

740.4(c)(6).

b. In addition, where a mining plan action is required under 30

CFR Part 746, as determined by OSM:

(1) Preparation of documentation to comply with the requirements

of National Environmental Policy Act (NEPA). However, OSM will

retain the responsibility for the exceptions in 30 CFR

740.4(c)(7)(l) through (vii). DEQ and OSM shall coordinate and

cooperate with each other so that, if possible, one Environmental

Assessment or Environmental Impact Statement is produced to comply

with NEPA and the Montana Environmental Policy Act (MEPA);

(2) Preparation of a State decision package, which includes

written findings indicating that the permit application component of

the PAP is in compliance with the terms of the State Program, a

technical analysis of the PAP, and supporting documentation.

2. OSM is responsible for:

a. When the PAP includes Federal lands,

(1) Making determinations and evaluations for NEPA compliance

documents as required by 30 CFR 740.4(c)(7)(l) through (vii);

(2) Reviewing the appropriate portions of the PAP for compliance

with the non-delegable responsibilities of the Secretary pursuant to

SMCRA and 30 CFR 745.13, and for compliance with the requirements of

other Federal laws, Executive Orders, and regulations;

(3) Consulting with the Federal land management agency, and

determining whether the PAP constitutes a mining plan modification

under 30 CFR 746.18, and informing DEQ, whenever practical within 30

days of receiving a copy of the PAP for operations on Federal lands,

of such determination;

(4) Exercising its responsibilities in a timely manner governed,

to the extent possible, by the deadlines established in the State

Program;

(5) Assisting DEQ, upon request, in carrying out its

responsibilities by:

(a) Coordinating resolution of conflicts between DEQ and other

Federal agencies in a timely manner;

(b) Obtaining comments and findings of other Federal agencies

with jurisdiction or responsibility over Federal lands;

(c) Scheduling joint meetings between DEQ and Federal agencies;

(d) Reviewing and analyzing the PAP, to the extent possible, and

providing to DEQ the work product within 50 days of receipt of the

State's request for such assistance, unless a different time is

agreed upon by OSM and DEQ; and

(e) Providing technical assistance, if available OSM resources

allow.

b. In addition, where a mining plan action is required pursuant

to 30 CFR Part 746:

(1) Consulting with and obtaining the concurrences of BLM, the

Federal land management agency, and any other Federal agency, as

necessary, prior to making recommendation to the Secretary

concerning approval of the mining plan;

(2) Upon notification from the DEQ that certain permit

conditions required by the Federal land management agency are not

incorporated in the State permit, OSM will determine whether such

conditions are necessary. When OSM believes the conditions are

necessary, OSM will work with the Federal land management agency to

find another means to resolve the issue and, where appropriate, OSM

will facilitate the attachment of conditions to the appropriate

Federal authorizations; and

(3) Providing a decision document to the Secretary recommending

approval, disapproval, or conditional approval of mining plans or

modifications thereof.

3. The Secretary:

a. Shall concurrently carry out his responsibilities that cannot

be delegated to DEQ pursuant to SMCRA and 30 CFR 745.13, the Federal

lands program, the MLA, NEPA, this Agreement, and other applicable

Federal laws including, but not limited to, those listed in Appendix

A. The Secretary shall carry out these responsibilities in a timely

manner and will avoid, to the extent possible, duplication of the

responsibilities of the State as set forth in this Agreement and the

State Program;

b. Reserves the right to act independently of DEQ to carry out

his responsibilities under laws other than SMCRA, and where Federal

law permits, to delegate some of the responsibilities to OSM; and

c. Shall be responsible for approval, disapproval, or

conditional approval of mining plans and modifications thereof with

respect to lands containing leased Federal coal in accordance with

30 CFR 740.4(a)(1).

4. Coordination:

a. As a matter of practice, OSM will not independently initiate

contacts with applicants regarding completeness or deficiencies of a

PAP or transfer application with respect to matters covered by the

State Program.

b. OSM and DEQ shall coordinate with each other during the

review process of a PAP or transfer application as needed.

c. OSM and DEQ may request and schedule meetings with the

applicant with adequate advance notice to each other.

d. DEQ shall keep OSM informed of findings made during the

review process which bear on the responsibilities of OSM or other

Federal agencies. DEQ shall send to OSM copies of any correspondence

with the applicant and any information received from the applicant

regarding the PAP or transfer application. OSM shall send to DEQ

copies of all OSM correspondence with the applicant and any other

information received from the applicant which may have a bearing on

the PAP or transfer application. Any conflicts or differences of

opinions that may develop during the review process should be

resolved at the lowest possible staff level.

e. OSM shall have access to DEQ files concerning operations on

Federal lands.

f. Where a mining plan action is required pursuant to 30 CFR

Part 746, OSM and DEQ shall develop a work plan and schedule for the

PAP review and each will designate a project leader. The project

leaders will serve as the primary points of contact between OSM and

DEQ throughout the review process. Not later than 50 days after

receipt of the PAP, unless a different time is agreed upon, OSM

shall furnish DEQ with its review comments on the PAP and specify

any requirements for additional data. DEQ shall provide OSM all

available information that may assist OSM in preparing any findings

for the mining plan action.

g. On matters concerned exclusively with regulations under 43

CFR Group 3400, BLM will be the primary contact with the applicant

and shall inform DEQ of its actions and provide DEQ with a copy of

documentation on all decisions.

h. Responsibilities and decisions which can be delegated to DEQ

under applicable Federal laws other than SMCRA may be specified in

working agreements between OSM and DEQ, with the concurrence of any

Federal agency involved, and without amendment to this Agreement.

i. In the case that valid existing rights (VER) are determined

to exist on Federal lands under section 522(e)(3) of SMCRA where the

proposed operation will adversely affect either a publicly-owned

park, or a historic place listed in the National Register of

Historic Sites, DEQ shall work, respectively, with the agency with

jurisdiction over the publicly-owned park or the agency with

jurisdiction over the historic place, to develop mutually acceptable

terms and conditions for incorporation into the permit to mitigate

adverse impacts.

C. Approval of the PAP or Transfer Application

1. DEQ shall make a decision on approval, conditional approval,

or disapproval of the permit application component of the PAP or the

transfer application on Federal lands.

2. DEQ must consider the comments of Federal agencies in the

context of permit issuance and will document these comments in the

record of permit decisions. To the extent allowed by Montana law,

permits issued by DEQ will include terms and conditions imposed by

the Federal land management agency pursuant to applicable Federal

laws and regulations other than SMCRA, in accordance with 30 CFR

740.13(c)(1). When Federal agencies

[[Page 40797]]

recommend permit conditions and these conditions are not adopted by

DEQ. DEQ will provide OSM with documentation as to why they were not

incorporated as permit conditions.

3. When a mining plan action is required pursuant to 30 CFR Part

746, DEQ may make a decision on approval, conditional approval, or

disapproval of the permit application component of the PAP on

Federal lands in accordance with the State Program prior to the

necessary Secretarial decision on the mining plan, provided that DEQ

advises the applicant that Secretarial approval of the mining plan

action must be obtained before the applicant may conduct surface

coal mining and reclamation operations on the Federal lands. To the

extent allowed by the State law, DEQ shall reserve the right to

amend or rescind any requirements of the permit to conform with any

terms or conditions imposed by the Secretary in the approval of the

mining plan.

4. After making its decision on the permit application component

of the PAP or transfer application, DEQ shall send a copy of the

signed permit form and State decision document to the applicant,

OSM, the Federal land management agency, and any agency with

jurisdiction over a publicly-owned park, or historic property

included in the NRHS which would be adversely affected by the

surface coal mining and reclamation operations.

Article VII: Inspections

A. DEQ shall conduct inspections on Federal lands in accordance

with 30 CFR 740.4(c)(5) and prepare and file inspection reports in

accordance with the approved State Program.

B. DEQ shall, subsequent to conducting any inspection on Federal

lands, file with OSM's appropriate Field Office an inspection report

describing: (1) the general conditions of the lands under the lease,

permit, or license; (2) the manner in which the operations are being

conducted; and (3) whether the operator is complying with applicable

performance standards and reclamation requirements.

C. DEQ will be the point of contact and inspection authority in

dealing with the operator concerning operations and compliance with

requirements covered by this Agreement, except as described in this

Agreement and in the Secretary's regulations. Nothing in this

Agreement shall prevent inspections by authorized Federal or State

agencies for purposes other than those covered by this Agreement.

D. Authorized representatives of the Secretary may conduct any

inspections necessary to comply with 30 CFR Parts 842 and 843, and

with the Secretary's obligations under laws other than SMCRA.

E. OSM shall give DEQ reasonable notice of its intent to conduct

an inspection in order to provide State inspectors with an

opportunity to join in the inspection. When OSM is responding to a

citizen complaint supplying adequate proof of an imminent danger to

the public health and safety, or a significant imminent

environmental harm to land, air, or water resources, pursuant to 30

CFR 842.11(b)(1)(ii)(C), it shall contact DEQ no less than 24 hours

prior to the Federal inspection, if practicable, to facilitate a

joint Federal/State inspection. All citizen complaints which do not

involve an imminent danger to the public health and safety, or a

significant imminent environmental harm to land, air, or water

resources, must be referred initially to DEQ for action. The

Secretary reserves the right to conduct inspections without prior

notice to DEQ, if necessary, to carry out his responsibilities under

SMCRA.

Article VIII: Enforcement

A. DEQ shall have primary enforcement authority under SMCRA

concerning compliance with the requirements of this Agreement and

the State Program in accordance with 30 CFR 740.4(c)(5) and

740.17(a)(2). Enforcement authority given to the Secretary under

SMCRA, and its implementing regulations, or other Federal laws and

Executive Orders, including, but not limited to, those listed in

Appendix A, is reserved to the Secretary.

B. During any joint inspection by OSM and DEQ, DEQ will have

primary responsibility for enforcement procedures, including

issuance of cessation orders and notices of violation. DEQ shall

consult with OSM prior to issuance of any decision to suspend,

rescind or revoke a permit on Federal lands. DEQ shall notify BLM of

any suspension, rescission or revocation of a permit containing

leased Federal coal pursuant to 30 CFR 740.13(f)(2).

C. During any inspection made solely by OSM or any joint

inspection where DEQ an OSM fail to agree regarding the propriety of

any particular enforcement action, OSM may take any enforcement

action necessary to comply with 30 CFR Parts 842, 843, 845 and 846.

D. DEQ and OSM shall promptly notify each other of all

violations and of all actions taken with respect to such violations.

E. Personnel of DEQ and OSM shall be mutually available to serve

as witnesses in enforcement actions taken by either party.

F. This Agreement does not affect or limit the Secretary's

authority to enforce violations of Federal laws other than SMCRA.

Article IX: Bonds

A. DEQ and the Secretary shall require all operators on Federal

lands to submit a single performance bond jointly payable to both

the United States and DEQ. The board shall be of sufficient amount

to cover the operator's responsibilities under SMCRA and the State

Program. The bond shall be conditioned upon continued compliance

with all requirements of SMCRA, 30 CFR Chapter VII, the State

Program, and the permit. Such bond shall provide that if this

Agreement is terminated under the provisions of 30 CFR 745.15, the

portion of the bond covering the Federal lands shall be payable only

to the United States.

B. DEQ will have primary responsibility for the approval and

release of performance bonds required for surface coal mining and

reclamation operations on Federal lands. However, release of a

performance bond on lands subject to an approved mining plan

requires the concurrence of OSM as provided in 30 CFR 740.15(d)(3).

Prior to such concurrence, OSM shall coordinate with other Federal

agencies having the authority over the lands involved. DEQ shall

annually advice OSM of adjustments to the performance bond.

C. Performance bonds will be subject to forfeiture with he

concurrence of OSM, in accordance with the procedures and

requirements of the State Program. OSM may not withhold its

concurrence unless DEQ's forfeiture decision is not in accordance

with the requirements and procedures of the State program.

D. Submission of a performance bond does not satisfy the

requirements for either a Federal lease bond required by 43 CFR Part

3474 or a lessee protection bond which is required in certain

circumstances by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain Types

of Surface Coal Mining and Reclamation Operations and Activities, and

Valid Existing Rights and Compatibility Determinations

A. Unsuitability Petitions

1. Authority to designate or terminate the designation of areas

of Federal lands as unsuitable for mining is reserved to the

Secretary. Unsuitability petitions shall be filed with OSM and would

be processed in accordance with 30 CFR 769.

2. When either DEQ or OSM receives a petition that could impact

adjacent Federal or non-Federal lands pursuant to section 522(c) of

SMCRA, the agency receiving the petition will notify the other of

receipt of the petition and the anticipated schedule for reaching a

decision. OSM shall coordinate with and solicit comments from the

applicable Federal land management agency. OSM and DEQ shall fully

consider data, information, and recommendations of all agencies.

B. Valid Existing Rights (VER) and Compatibility Determinations

The following actions will be taken when requests for

determinations of VER pursuant to section 522(e) of SMCRA, or for

determinations of compatibility pursuant to section 522(e)(2) of

SMCRA are received:

1. For Federal lands within the boundaries of any areas

specified under section 522(e)(1) of SMCRA, the Secretary will make

the VER determination. If surface coal mining and reclamation

operations would be conducted on both Federal and non-Federal lands

within such areas, the Secretary will make the VER determination for

the Federal lands and DEQ will make the VER determination for State

and private lands.

2. For Federal lands within the boundaries of any national

forest where proposed surface coal mining and reclamation operations

are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR

761.11(b), the Secretary will make VER determinations. OSM will

process requests for determinations of compatibility under section

522(e)(2) of SMCRA and part 30 CFR 761.12(c).

3. Where a VER determination is requested for Federal lands

protected under section 522(e)(3), DEQ will make the VER

[[Page 40798]]

determination. DEQ will determine, in consultation with the State

Historic Preservation Officer, whether any proposed operation will

adversely affect any publicly-owned park or historic place listed on

the National Register of Historic Sites (NRHS).

Surface coal mining and reclamation operations of Federal lands

protected under section 522(e)(3) of SMCRA may be permitted if

approved jointly by DEQ, and the Federal, State, or local agency

with jurisdiction over the park or historic place. DEQ will

coordinate with any agency with jurisdiction over the publicly-owned

park or historic place to develop mutually acceptable terms and

conditions for incorporation into the permit in order to mitigate

environmental impacts.

4. DEQ will process determinations of VER on Federal lands for

all areas limited or prohibited by section 522(e)(4) and (5) of

SMCRA as unsuitable for mining.

5. For operations on Federal lands, whenever DEQ is responsible

for making the VER determinations, DEQ will consult with OSM and any

affected agency.

Article XI: Termination of the Agreement

This Agreement may be terminated by the Governor or the

Secretary under the provisions of 30 CFR 745.15.

Article XII: Reinstatement of the Agreement

If this Agreement has been terminated in whole or part, it may

be reinstated under the provisions of 30 CFR 745.16.

Article XIII: Amendments of the Agreement

This Agreement may be amended by mutual agreement of the

Governor and the Secretary in accordance with 30 CFR 745.14.

Article XIV: Changes in State or Federal Standards

A. The Secretary or the State may, from time to time, revise and

promulgate new or revised performance or reclamation requirements or

enforcement and administrative procedures. Each party shall, if it

is determined to be necessary to keep this Agreement in force,

change or revise its respective laws or regulations or request

necessary legislative action. Such changes will be made under the

procedures of 30 CFR Part 732 for changes to the State Program and

under the procedures of section 501 of SMCRA for changes to the

Federal lands program.

B. DEQ and OSM shall provide each other with copies of any

changes to their respective laws, rules, regulations, and standards

pertaining to the enforcement and administration of this Agreement.

Article XV: Changes in Personnel and Organization

A. DEQ and OSM shall, consistent with 30 CFR Part 745, advise

each other of changes in the organization, structure, functions,

duties and funds of the offices, departments, divisions, and persons

within their organizations which could affect administration and

enforcement of this Agreement. Each shall promptly advise the other

in writing of changes in key personnel, including the head of a

department or division, or changes in the functions or duties of the

principal offices of the program. DEQ and OSM shall advise each

other in writing of changes in the location of their respective

offices, addresses, telephone numbers, as well as changes in the

names, addresses, and telephone numbers of their respective

personnel.

B. Should the State Act be amended to transfer administration of

the State Act to another agency, all references to DEQ in this

Agreement shall be deemed to apply to the successor regulatory

agency as of the date of the transfer. The provisions in this

Agreement shall thereafter apply to that agency.

Article XVI: Reservation of Rights

In accordance with 30 CFR 745.13, this Agreement shall not be

construed as waiving or preventing the assertion of any rights that

have not been expressly addressed in this Agreement that the State

or the Secretary may have under laws other than the Act and the

State Program, including, but not limited to those listed in

Appendix A.

Approved:

Dated: May 8, 1998.

Marc Racicot,

Governor of Montana.

Dated: July 7, 1998.

Bruce Babbitt,

Secretary of the Interior.

Appendix A

1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et

seq., and implementing regulations.

2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and

implementing regulations, including 43 CFR Part 3480.

3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321

et seq., and implementing regulations, including 40 CFR Part 1500.

4. The Endangered Species Act, 16 U.S.C. 1531 eq seq., and

implementing regulations, including 50 CFR Part 402.

5. The National Historic Preservation Act of 1966, 16 U.S.C. 470

et seq., and implementing regulations, including 36 CFR Part 800.

6. Native American Graves Protection and Repatriation Act, 25

U.S.C. 3001 et seq.

7. The American Indian Religious Freedom Act, 42 U.S.C. 1986 et

seq.

8. The Archaeological Resources Protection Act of 1979, 16

U.S.C. 470aa et seq.

9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing

regulations.

10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et

seq., and implementing regulations.

11. The Resource Conservation and Recovery Act of 1976, 42

U.S.C. 6901 et seq., and implementing regulations.

12. The Reservoir Salvage Act of 1960, amended by the

Preservation of Historical and Archaeological Data Act of 1974, 16

U.S.C. 469 et seq.

13. Executive Order 11593 (May 13, 1971), Cultural Resource

Inventories on Federal Lands.

14. Executive Order 11988 (May 24, 1977), for flood plain

protection.

15. Executive Order 11990 (May 24, 1977), for wetlands

protection.

16. Executive Order 12898 (February 11, 1994) for Federal

Actions to Address Environmental Justice on Minority Populations and

Low Income Populations.

17. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et

seq., and implementing regulations.

18. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et

seq.

19. The Constitution of the United States.

20. Surface Mining Control and Reclamation Act of 1977, 30

U.S.C. 1201 et seq.

21. 30 CFR Chapter VII.

22. The Constitution of the State of Montana.

23. Montana Strip and Underground Mine Reclamation Act (MSUMRA),

Part 2, Chapter 4, Title 82, Montana Code Annotated.

24. Title 26, Chapter 4, Subchapter 3, Administrative Rules of

Montana.

25. Montana Environmental Policy Act (MEPA).

[FR Doc. 98-20195 Filed 7-29-98; 8:45 am]

BILLING CODE 4310-05-M