Montana Regulatory Program and Abandoned Mine Land Reclamation Plan

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is approving, with certain exceptions and additional requirements, a

proposed amendment to the Montana regulatory program (hereinafter, the

``Montana program'') and abandoned mine land reclamation plan

(hereinafter, the ``Montana plan'') under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). Montana proposed statutory

revisions pertaining to the designation of the Montana State Regulatory

Authority and the reclamation agency SMCRA, statutory definitions of

``Prospecting'' and ``Prime farmland,'' revegetation success criteria

for bond release, prospecting under notices of intent, and permit

renewal. The amendment was intended to revise the Montana program to be

consistent with the corresponding Federal regulations and SMCRA, as

amended by the Abandoned Mine Reclamation Act of 1990 (Pub. L. 101-

508), to provide additional flexibility afforded by the revised Federal

regulations, to provide additional safeguards, to clarify ambiguities,

and to improve operational efficiency.

EFFECTIVE DATE: January 22, 1999.

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

6550; Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program and Plan

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, 926.16, and 926.30.

On November 24, 1980, the Secretary of the Interior conditionally

approved the Montana plan as administered by the Department of State

Lands. General background information on the Montana program, including

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

approval of the Montana plan can be found in the October 24, 1980,

Federal Register (45 FR 70445). Subsequent actions concerning Montana's

program and program amendments can be found at 30 CFR 926.25.

II. Proposed Amendment

By letter dated May 16, 1995, Montana submitted a proposed

amendment to its program and plan (Administrative Record No. MT-14-01)

pursuant to SMCRA (30 U.S.C. 1201 et seq.). Montana submitted the

proposed amendment in response to required program amendments at 30 CFR

926.16 (f) and (g), and at its own initiative. The provisions of the

Montana Code Annotated (MCA) that Montana proposed to revise were: 82-

4-203, MCA (Definitions); 82-4-204, MCA (Rulemaking authority); 82-4-

205, MCA (Administration by department); 82-4-221, MCA (Mining permit

required); 82-4-223, MCA (Permit fee and surety bond); 82-4-226, MCA

(Prospecting permit and the definition of ``Prospecting''); 82-4-227,

MCA (Refusal of permit); 82-4-231, MCA (Submission of and action on

reclamation plan); 82-4-232, MCA (Area mining--bond--alternate plan);

82-4-235, MCA (Inspection of vegetation--final bond release); 82-4-239,

MCA (Reclamation); 82-4-240, MCA (reclamation after bond forfeiture);

82-4-242, MCA (funds received by regulatory authority); 82-4-251, MCA

(Noncompliance--suspension of permits); and 82-4-254, MCA (Violation--

penalty--waiver).

OSM announced receipt of the proposed amendment in the June 5,

1995, Federal Register (60 FR 29521), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (Administrative Record No. MT-14-06).

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

The public comment period ended on July 5, 1995.

During its review of the amendment, OSM identified concerns

relating to: 82-4-203, MCA, subsections (6), (10), and (12) (the

definitions of ``Board'', ``Commissioner'', and ``Director''); 82-4-

205, MCA (Board rules and Administration by department); 82-4-235, MCA

(Inspection of vegetation--final bond release); 82-4-203, MCA,

subsection (25) and 82-4-226, MCA, subsection (8) (the definition of

``Prospecting'', prospecting permit and notices of intent). OSM also

addressed outstanding required program amendments at 30 CFR 926.16(h),

(i), and (j) as they related to prospecting. OSM notified Montana of

the concerns by letter dated December 5, 1996 (Administrative Record

No. MT-14-08).

Montana responded in a letter dated November 6, 1997, by submitting

a revised amendment and additional explanatory information

(Administrative Record No. MT-14-11). The revisions to the amendment

consisted of new statutory language enacted by the 1997 Montana

Legislature. Montana proposed revisions to, and additional explanatory

information concerning: 82-4-203, subsections (6), (10), and (12), 2-

15-111, 2-15-121, 2-15-3501, and 2-15-3502, MCA (the definitions of

``Board'', ``Commissioner'', and ``Director''); 82-4-204 and 82-4-205,

MCA (Board rules and Administration by department); 82-4-235, MCA

(Inspection of vegetation--final bond release); 82-4-203, MCA,

subsection (25) and 82-4-226, MCA, subsection (8) (the definition of

``Prospecting'', prospecting permit and notices of intent to prospect),

and required program amendments at 30 CFR 926.16(h), (i) and (j).

[[Page 3605]]

Based upon the revisions to, and additional explanatory information

for, the proposed program amendment submitted by Montana, OSM reopened

the public comment period in the December 5, 1997, Federal Register (62

FR 64327; Administrative Record No. MT-14-12) and provided an

opportunity for a public hearing or meeting on its substantive

adequacy. Because no one requested a public hearing or meeting, none

was held. The public comment period ended on December 22, 1997.

III. Director's Findings

As discussed below, the Director finds, in accordance with SMCRA,

30 CFR 732.15, 732.17, 884.14, and 884.15, with certain exceptions and

additional requirements, that the proposed program and plan amendments

submitted by Montana on May 16, 1995, and as revised and supplemented

with additional explanatory information on November 6, 1997, is no less

effective and the corresponding Federal regulations and no less

stringent than SMCRA. Accordingly, the Director approves the proposed

amendment.

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, grammatical, and recodification changes

(corresponding Federal regulations or SMCRA provisions are listed in

parentheses):

82-4-203, MCA, subsections (1), (2), (3), (4), (7), (8), (10),

(11), (13), (14), (15), (16), (17), (18), (19), (20), (21), (22),

(23), (26), (27), (28), (29), (30), (31), (32), (33), (34), and

(35), (SMCRA Section 701, 30 CFR 700.5 and 701.5), Definitions.

82-4-221, MCA, Subsections (2) and (3), (SMCRA Section

506(d)(3)), Mining permit required;

82-4-226, MCA, subsections (1) and (2), (30 CFR 772.12),

Prospecting permit;

82-4-227, MCA, subsections (1), (2), (5), (7), (8), (9), (11),

and (12), (SMCRA Section 510), Refusal of permit;

82-4-231, MCA, subsections (1) and (6), (SMCRA Sections 508,

510, 513, and 515, and 39 CFR 773), Submission of and action on

reclamation plan;

82-4-232, MCA, subsection (6), (SMCRA Sections 508, 509, and

515), Area mining required--bond--alternative; and

82-4-251, MCA, subsections (6) and (7), (SMCRA Section 521),

Noncompliance--suspension of permits.

Because the proposed revisions to these previously-approved

statutes are nonsubstantive in nature, the Director finds that these

proposed Montana statutory revisions are no less effective than the

Federal regulations and no less stringent than SMCRA. The Director

approves these proposed statutory revisions.

2. MCA 82-4-203(6) and (12) and MCA 2-15-3502, Definitions of ``Board''

and ``Department''; MCA 2-15-3501, Definition of ``Director''; and MCA

82-4-204 and 82-4-205, Board Rules and Administration by Department

Montana Senate Bill 234 (SB 234) proposes to revise the

environmental and natural resource functions of the state government

to, among other things, replace the former Board of Land Commissioners

with the new Board of Environmental Review at MCA 82-4-203(6), and

transfer the rulemaking powers of the former Board of Land

Commissioners to the Board of Environmental Review. All other powers of

the former Board of Land Commissioners would go the renamed Department

of Environmental Quality.

Montana proposes to limit the Board of Environmental Review at MCA

82-4-204 to adopting general rules pertaining to strip mining and

underground mining; and adopting rules relating to the filing of

reports, issuance of permits, monitoring, and other administrative and

procedural matters.

At MCA 82-4-205, Montana proposes to give the Department of

Environmental Quality, three duties previously held by the Board of

State Lands, in addition to retaining duties previously assigned to the

former Department of State Lands. Those new duties are: (1) The

issuance of orders requiring an operator to adopt remedial measures

necessary to achieve compliance; (2) the issuance of a final order

revoking a permit for failure to comply with a notice of noncompliance,

an order suspension, or an order requiring remedial measures; and (3)

conducting hearings on the provisions or rules adopted by the board.

The effect is that the newly created Department of Environmental

Quality will increase its responsibilities for the Montana coal mining

and reclamation program over those previously held by the former

Department of State Lands. In contrast, the newly created Board of

Environmental Review would retain diminished responsibilities over

those previously held by the Board of State Lands.

In revising the Montana statutes to reflect the reorganized duties

of the Board of Environmental Review and the Department of

Environmental Quality, Montana has changed the terminology in its

statutes to delete the reference to ``Commissioner'' and insert, as

appropriate, ``Board'', ``Department'', or ``Director.'' Specifically,

Montana proposed to delete the definition of ``Commissioner'' at former

MCA 82-4-203(10) and use the term ``Director.'' Montana proposed to

change the statutory definition of ``Department'' at recodified MCA 82-

4-203(12) to refer to the Department of Environmental Quality, instead

of the former Department of State Lands. The cross-reference to

``Article X, section 4, of the constitution of this state'' in the

definition of ``Board'' at MCA 82-4-203(6) was changed to ``section

21''. The cross-reference to ``Title 2, chapter 15, part 32'' in the

definition of ``Department'' at proposed MCA 82-4-203(12) was changed

to ``section 20''. Statutes which were revised to reflect these changes

were: MCA 82-4-223(2) and (3), 82-4-226(8), 82-4-227(3) and (4), 82-4-

231(9) and (10), 82-4-232(7), 82-4-240, 82-4-242, 82-4-251(1), (2),

(3), (4), (5), and (8), and 82-4-254(1), (2), and (3).

In response to these proposed statutory revisions, OSM sent Montana

an issue letter dated December 5, 1996 (Administrative Record No. MT-

14-08), which requested: (1) copies of referenced sections 20 and 21;

(2) clarification and additional information on the State's

reorganization as required by 30 CFR 732.17(b), specifically those

items mentioned at 30 CFR 731.14(d), (e), (f), and (g), and 732.15; and

(3) a definition of ``Director.''

In its response to OSM's issue letter, Montana submitted revised

statutes at MCA 2-15-3501 defining the ``Department of environmental

quality'', MCA 2-15-3502 defining the ``Board of environmental

review'', MCA 2-15-111 describing the appointment and qualifications of

department heads, and MCA 2-15-121 describing the administrative

allocation for agencies under the various departments in Montana

(Administrative Record No. MT-14-11). With respect to item #1 of the

issued letter, Montana deleted the previously referenced sections 20

and 21, and changed the references to MCA 2-15-3501 and 2-15-3502,

respectively. Montana also submitted MCA 2-15-111, cross-referenced in

MCA 2-15-3501, to further explain the duties of the department heads.

MCA 2-15-121, cross-referenced in MCA 2-15-3502, addresses the

administrative allocations of agencies under departments in Montana. In

response to item #3 in the issue letter, Montana provided MCA 2-15-3501

to define ``Director.''

Montana stated, in response to item #2 of the December 5, 1996,

issue letter, that:

[[Page 3606]]

During the reorganization, the Coal and Uranium Bureau was

removed from the Reclamation Division, Montana Department of State

Lands and transferred intact to the Permitting and Compliance

Division, Department of Environmental Quality. The Coal and Uranium

Bureau and the Opencut Bureau where then combined to form a new

bureau--Industrial and Energy Minerals Bureau (organization chart

attached). In the formation of the new bureau, the staff and

functions of the coal and uranium mining program remained intact and

similar to what existed prior to the reorganization. Since the

program was moved intact, the civil penalty assessment and

collection authority and provisions for the administrative and

judicial review of State program actions were maintained in the

Montana Code Annotated and the Administrative Rules of Montana.

Therefore, no changes to these provisions were made.

SMCRA and its implementing regulations do not require that a

primacy State organize its regulatory agency in any specific manner as

long as the State regulatory authority has sufficient authority to

implement and enforce the State program. The reconfiguration of the

Montana coal mining program under the renamed Department of

Environmental Quality is substantially the same as that under the

former Department of State Lands, which was in existence when the

Montana coal program was approved on April 1, 1980.

OSM finds these statutory revisions, as explained by the cross-

referenced statutes subsequently submitted, to adequately clarify the

Montana reorganizations of its environmental and natural resource

departments in SB 234. Therefore, the Director finds that the revised

and recodified statutes are no less effective than the corresponding

Federal regulations at 30 CFR Chapter VII and 43 CFR Part 4. The

Director approves the proposed amendment, specifically the revised

statutes at: MCA 2-15-3501; 2-15-3502; 82-4-203 (6) and (12); 82-4-204;

82-4-205; 82-4-223(2) and (3); 82-4-226 (8); 82-4-227(3) and (4); 82-4-

231 (9) and (10); 82-4-232(7); 82-4-240; 82-4-242; 82-4-251 (1), (2),

(3), (4), (5), and (8); and 82-4-254 (1), (2), and (3).

3. MCA 82-4-203 (24), Definition of ``Prime Farmland''

Montana proposes to revise the definition of ``Prime farmland'' by

deleting the list of criteria to be taken into consideration by the

U.S. Secretary of Agriculture in part (a), and instead referencing 7

CFR Part 657 in the Federal Register (Vol. 4, No. 21) which defines the

same criteria. At part (b), Montana proposes to delete the reference to

the aforementioned Federal Register notice and to reference land that

``historically has been used for intensive agricultural purposes.''

The Federal definition of ``Prime farmland'' at 30 CFR 701.5 and

SMCRA Section 701 (20) is similar to the Montana definition in that

both consider criteria prescribed by the U.S. Secretary of Agriculture

at 7 CFR Part 657 to define ``Prime farmland.'' However, where the

proposed Montana definition references land that ``historically has

been used for intensive agricultural purposes'', the Federal definition

references lands which have been ``Historically used for cropland.''

The Montana program does not define the phrase ``historically has been

used for intensive agricultural purposes.'' When the Montana program

was approved with this phrase, part (b) also reference the criteria of

7 CFR Part 657 as contained in the Federal Register notice (Vol. 4, No.

21). With the proposed removal of the Federal Register criteria in part

(b), the interpretation of part (b) of the Montana definition of

``Prime farmland'' becomes unclear.

The Montana program does define the phrase ``Historically used for

cropland'' at ARM 26.4.301(52), although this phrase is not used in the

definition of ``Prime farmland.'' Both ARM 26.4.301(52), the definition

of ``Historically used for cropland'' and 30 CFR 701.5, the Federal

definition of ``Historically used for cropland'' contain the same two

``Prime farmland'' criteria: (1) Lands used for prime farmland for any

5 of the 10 years immediately preceding acquisition for coal mining;

and (2) a regulatory authority determination based on additional

cropland history. However, the Montana program does not contain the

third part of the Federal definition, which states ``lands that would

have likely been used as cropland for any 5 out of the last 10 years,

immediately preceding such acquisition but for the same fact of

ownership or control of the land unrelated to the productivity of the

land.''

Therefore, because the Montana definition of ``Prime farmland''

proposes to rely exclusively on an undefined phrase in part (b), the

Director finds the proposed definition to be less effective than the

Federal counterpart at 30 CFR 701.5 and disapproves this revision. In

addition, the Director places a required program amendment on the

Montana program to revise the definition of ``Historically used for

cropland'' at ARM 26.4.301(52) to include the criteria concerning

``lands that would likely have been used as cropland for any 5 out of

the last 10 years, immediately preceding such acquisition but for the

same fact of ownership or control of the land unrelated to the

productivity of the land.''

4. MCA 82-4-203(25) and 82-4-226(8), Definition of ``Prospecting''

In response to the required program amendment codified at 30 CFR

926.16(f), Montana submitted both Senate Bill 234 and House Bill 0162

which defined ``Prospecting'' with different language. OSM, in the

issue letter to Montana dated December 5, 1996 (Administrative Record

No. MT-14-08), requested that Montana clarify which proposal the State

would like OSM to consider.

Montana responded by letter dated November 6, 1997 (Administrative

Record No. MT-14-11), with a 1997 revised version of the definition of

``Prospecting'' at MCA 82-4-203(25). The revised definition responds to

OSM's concerns in the required program amendment at 30 CFR 926.16(f)

by: (1) Including the activities of gathering surface or subsurface

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

geophysical or other techniques necessary to determine the location,

quantity, or quality of a mineral deposit (coal or uranium); (2)

clarifying that an activity need not involve surface disturbance to be

considered ``prospecting''; and (3) removing the word ``natural'' to

refer to mineral deposit at MCA 82-4-226(8) and 82-4-203(25) so that

the definition would include such human-made structures as coal waste

piles.

The Director finds that Montana's revised definition of

``Prospecting'' at MCA 82-4-203(25) to be no less effective than the

Federal definition of ``Coal exploration'' at 30 CFR 701.5 and no less

stringent that SMCRA Section 512. The Director approves the proposed

amendment and removes the required program amendment at 30 CFR

926.16(f).

5. MCA 82-4-239, Reclamation

In this abandoned mine land reclamation (AMLR) statute, Montana has

made revisions to reflect the reorganized duties of the Board of

Environmental Review and the Department of Environmental Quality.

Montana has changed the wording to delete ``Board'' and insert

``Department'' as appropriate. However, Montana has not submitted an

organizational chart for its reorganized AMLR plan under the renamed

Department of Environmental Quality. The organizational chart submitted

in the November 6, 1997, revised amendment with explanatory information

(Administrative Record No. MT-14-08) clarifies the current State

[[Page 3607]]

organization for the Title V (Regulatory) program, not the Title IV

(AMLR) plan.

In the final rule dated July 19, 1995 (60 FR 36998), concerning

Montana's AMLR plan, OSM approved a renaming of the former Department

of State Lands as the Department of Environmental Quality. However, the

organizational chart (Exhibit A) submitted in that amendment

(Administrative Record No. MT-AML-01; March 22, 1995) showed no

renaming or reorganization of the Divisions and Bureaus below the

Departmental level. Supporting documentation from Governor Marc Racicot

dated June 15, 1995, and from the Department's Chief Legal Counsel,

John North, dated June 9, 1995, only referred to the name change to the

Department of Environmental Quality, and did not specify a renaming of

Divisions and Bureaus, nor a change in the State organizational chart

concerning the AMLR plan (Administrative Record No. MT-AML-18).

At this time, it is unclear what the new reorganization of the

Montana AMLR plan consists of, as well as which AMLR rules and statutes

have been revised as a result of the 1995 State reorganization. During

the Montana reorganization, the regulatory (Title V) and the abandoned

mine land reclamation (Title IV) programmatic rules were recodified

from ARM 26.4 to ARM 17.24. This new recodification is reflected in the

November 6, 1997, Montana submittal (Administrative Record No. MT-14-

11). However, OSM has never approved the recodification as Montana

removed some of its abandoned mine land reclamation provisions without

explanation. Before OSM can approve the recodification, the missing

AMLR rules must be explained. The regulatory program (Title V) was

recodified intact.

Therefore, the Director is deferring approval on the revision to

MCA 82-4-239 until these issues are clarified. The Director is

requiring that Montana submit and receive approval on the AMLR

reorganization initiated in 1995 and revised by the 1997 Montana

legislature, as well as submit and obtained approval on all revised

AMLR statutes and rules, subsequent to final rule Federal Register

notice, 60 FR 36998, dated July 19, 1995.

6. MCA 82-4-221(1), Mining Permit Required

Montana proposes to require that an application for permit renewal

be filed at least 240 days, and no more than 300 days, prior to permit

expiration. Both the State and Federal statutes provide a procedural

time period for the involved parties to file an application for permit

renewal prior to the expiration of the valid permit. Section 506(d)(3)

of SMCRA and 30 CFR 774.15(b)(1) only require that such filing shall be

made at least 120 days prior to the expiration of the valid permit. The

Federal requirement, unlike the State's proposal, does not set a limit

on how far in advance an applicant may submit an application for permit

renewal. This State proposal is a procedural requirement which provides

involved parties with similar rights and remedies as those provided by

SMCRA at Section 506(d)(3) and 30 CFR 774.15(b)(1). Accordingly, the

Director finds that the State's proposed revision is no less stringent

than SMCRA and no less effective than the Federal regulations at 30 CFR

774.15(b)(1). The Director approves the proposed amendment.

7. MCA 82-4-226(8), Prospecting Permits and Notices of Intent

In the February 1, 1995, final rule Federal Register (60 FR 6006),

OSM placed three required program amendments on the Montana program

concerning a prospecting permit at MCA 82-4-226(8). The required

program amendment at 30 CFR 926.16(h) required that Montana prohibit

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

to be removed. The required program amendment at 30 CFR 926.16(i)

required that Montana delete the word ``reasonable'' in the final

sentence of MCA 82-4-226(8). The required program amendment at 30 CFR

926.16(j) required that Montana 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 warrant-less 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).

In the November 6, 1997, submittal (Administrative Record No. MT-

14-11), Montana modified its statute at MCA 82-4-226(8), and presented

additional explanatory information concerning prospecting, in order to

respond to the three required program amendments.

a. Prospecting (Coal Exploration) Under Notices of Intent

Montana proposed to revise MCA 82-4-226(8) to state that

prospecting that is not conducted in an area designated unsuitable for

coal mining, that is not conducted for the purposes of determining the

location, quality, or quantity of a mineral deposit, ``and that does

not remove more than 250 tons of coal'', is not subject to subsections

(1) through (7) (the requirements for a prospecting permit). ``In

addition, prospecting that is conducted to determine the location,

quality, or quantity of a mineral deposit outside an area designated

unsuitable, that does not remove more than 250 tons of coal, and that

does not substantially disturb the natural land surface is not subject

to subsections (1) through (7).''

The revisions made by Montana in the November 6, 1997, submittal

(Administrative Record No. MT-14-11), now restrict prospecting under a

notice of intent to those operations which remove less than 250 tons of

coal. The revisions meet the federal requirements at SMCRA Section

512(d) and 30 CFR Part 772 which require that coal exploration permits

be obtained when an exploration operation will remove more than 250

tons of coal, regardless of the intent of the prospecting (coal or

overburden) or the degree of disturbance. With these revisions, the

Montana program becomes no less stringent that SMCRA and no less

effective than the Federal regulations. The Director approves the

proposed amendment and removes the required program amendment at 30 CFR

926.16(h).

In addition to restricting prospecting operations under a notice of

intent to those which remove less than 250 tons of coal, the Montana

revisions at MCA 82-4-226(8) also restrict prospecting operations under

a notice of intent to those lands outside of an area designated as

``lands unsuitable.'' The Montana program now contains the same

provisions as the Federal counterpart at 30 CFR 772.11(a) and 772.12(a)

which prohibit coal exploration under a notice of intent, and require

an exploration permit, for any coal exploration on lands unsuitable,

regardless of whether the exploration ``substantially disturbs'' the

natural and surface. The Director finds the Montana revision at MCA 82-

4-226(8) to be no less effective than the Federal requirements at 30

CFR 772.11(a) and 772.12(a). The Director approves the revision.

[[Page 3608]]

b. Specification of Which Prospecting Activities Are Required To Meet

Performance Standards and Specification of Applicable Performance

Standards

In the February 1, 1995, Federal Register notice (60 FR 6006),

finding 5(b) requested that Montana clarify which performance standards

are applicable to prospecting operations. At that time, OSM approved

the revision to MCA 82-4-226(8) with the proviso that it not be

implemented until Montana had promulgated and OSM had approved a

definition of ``substantially disturb'' which was no less effective

than 30 CFR Part 772 and 30 CFR 701.5.

In its November 6, 1997, response (Administrative Record No. MT-14-

11), Montana stated that:

Section 82-4-226(8) * * * provides that lands substantially

disturbed under a notice of intent, * * * must be conducted in

accordance with the performance standards of the board's rules

regulating the conduct and reclamation of prospecting operations

that remove coal. Therefore, any prospecting that ``substantially

disturbs'' the land surface must comply with the same performance

standards, regardless of whether the prospecting is done pursuant to

a notice of intent or a prospecting permit.

Montana's explanation also lists the performance standards

contained in Chapter 10 of the Administrative Rules of Montana (ARM),

as those which apply to prospecting (coal exploration) operations. This

explanation meets the requirements of SMCRA Section 512(a) which

requires that all exploration which substantially disturbs the natural

land surface be conducted in accordance with the performance standards

of SMCRA Section 515.

Therefore, Montana has complied with the proviso in finding 5(b) in

the February 1, 1995, Federal Register notice (60 FR 6006). The

Director accepts the explanatory information provided by Montana. With

this explanation, the Montana program is no less stringent than SMCRA

in meeting performance standards for coal exploration operations.

c. Right of Entry To Inspect

At 30 CFR 926.16(i), OSM required that Montana delete the word

``reasonable'' from MCA 82-4-226(8) so that the State regulatory

program would have the authority to right of entry to any coal

exploration operation without advance notice, upon presentation of

appropriate credentials, and not limited to ``reasonable'' times. At 30

CFR 926.16(j), OSM required that Montana revise its program to provide

authority for the inspection of prospecting operations conducted under

notices of intent, and access to the records on such operations at any

reasonable time without search warrant.

In the November 6, 1997, response (Administrative Record No. MT-14-

11), Montana noted that the required program amendment changes to the

statutes had not been made. In lieu of making the statutory revisions,

the State argued that two existing rules respond to OSM's concerns.

Those rules are: ARM 26.4.1201 and 26.4.1202. ARM 26.4.1201, Frequency

of Inspections, requires ``such periodic partial or complete

inspections of prospecting operations as are necessary to enforce the

Act, the rules adopted pursuant thereto, and the permit.'' ARM

26.4.1202, Method of Inspections, states that ``Inspections must occur

without prior notice to the permittee, except for necessary on-site

meetings, be conducted on an irregular basis, and be scheduled to

detect violations on nights, weekends, and holidays.'' (Montana's

response actually references the rules at ARM 17.24.1201 and

17.24.1202, reflecting the State's 1996 rules recodification. Refer to

the discussion in Finding No. 5 above concerning the recodification.)

The existing rules at ARM 26.4.1201 and .1202 allow for State

inspections to take place at prospecting operations without prior

notice to the permittee and to be conducted on an irregular basis. OSM

interprets these rules as allowing inspections at other than

``reasonable'' times. In addition, these same rules would allow for

inspections of prospecting operations ``as are necessary to enforce the

Act, the rules adopted pursuant thereto, and the permit'', as well as

to ``collect evidence of violations and to file inspection reports

adequate to determine whether violations exist.'' OSM, therefore,

interprets these rules as providing sufficient ``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.''

OSM believes that these rules address the concerns of the required

program amendments at 30 CFR 926.16 (i) and (j), as well as serve to

clarify the statute at MCA 82.4.226(8). The Director approves the

explanatory information presented by Montana and removes the required

program amendments at 30 CFR 926.16 (i) and (j).

8. MCA 82-4-235, Inspection of Vegetation--Final bond Release

In the May 16, 1995, submittal, Montana proposed to revise MCA 82-

4-235(1) to provide that final bond release may not be withheld on the

basis that introduced species compose a major or dominant component of

the reclaimed vegetation on lands which were seeded with a seed mix

approved to include substantial introduced species (applicable to both

pre- and post- SMCRA areas) (Administrative Record No. MT-14-01). This

proposal had the effect of allowing, in some circumstances, final bond

release when revegetation performance standards are not achieved.

However, OSM notified Montana in the December 5, 1996, issue letter

(Administrative Record No. MT-14-08) that SMCRA Section 519(c)(3)

requires that prior to final bond release, the operator must have

successfully completed all reclamation activities, including not only

planting the approved seed mix, but also achieving revegetation success

standards, OSM could not approve proposed MCA 82-4-235(1).

In the November 6, 1997, response to OSM's issue letter, Montana

deleted the sentence in subsection (1) which would have allowed, in

some circumstances, final bond release when revegetation performance

standards were not achieved (Administrative Record No. MT-14-11). The

remaining changes to proposed subsection (1) contain two non-

substantive wording changes. The first proposed revision to subsection

(1) is to make the timing of the final bond release inspection and

evaluation of permanent diverse vegetative cover, dependent upon an

application for final bond release, not upon the satisfactory stand,

itself, having been established. SMCRA, also, requires that the

regulatory authority conduct a performance bond release inspection upon

receipt of a notification and request from the permittee. Therefore,

the State revision is no less stringent than SMCRA.

The second proposed revision to subsection (1) is to change the

February 2, 1978, seeding date to May 3, 1978. This means that any

reclamation work such as augmented seeding, fertilizing, or irrigation

taking place after May 3, 1978 (previously February 2, 1978) may not

receive final bond release until at least 10 years after the last year

of such work. May 3, 1978, nine-months after the effective date of

SMCRA, is the date upon which, or after, all surface coal mining

operations on State-regulated

[[Page 3609]]

lands must be in compliance with the provisions of SMCRA, according to

SMCRA Section 502(c) and 30 CFR 710.11(a)(3)(ii). Therefore, the

Director finds this revision to be no less effective than the Federal

regulations and no less stringent than SMCRA. The effect of OSM's

approval is that the paragraph labeled ``82-4-235 (Effective on

occurrence of contingency) Inspection of vegetation--final bond

release'' in Montana's 1997 legislative amendment (Administrative

Record No. MT-14-11) would be approved.

Montana proposes to revise paragraph (2) of MCA 82-4-235 to provide

revised bond release criteria on revegetated lands seeded with mixtures

of introduced species on which coal was removed prior to May 3, 1978

(the effective date of SMCRA), or lands on which coal was not removed

or lands disturbed after May 2, 1978. Montana states the intent of this

provision is to provide revegetation success standards for lands which

were reclaimed using seed mixes containing introduced species during a

period (1970s and 1980s) when native seed mixes were in short supply.

Montana's proposed changes concern lands disturbed prior to the

effective date of SMCRA (August 3, 1997) and reclamation on those

lands. The changes do not conflict with any SMCRA requirement.

Therefore, the Director is approving MCA 82-4-235(1) and (2).

9. MCA 82-4-227(10), Coal Conservation Plan

OSM placed a required program amendment (30 CFR 926.16(g)) on

Montana in the February 1, 1995, Federal Register notice (60 FR 6006)

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

revision be approved unless the coal conservation plan affirmatively

demonstrate that failure to conserve coal will be prevented. OSM placed

the required program amendment on the Montana program due to a

typographic error which unintentionally resulted in a substantive

revision to state program amendment dated July 28, 1993, Administrative

Record No. MT-11-01.

In the May 16, 1995, submittal (Administrative Record No. MT-14-

01), Montana subsequently proposed a statutory revision at MCA 82-4-

227(10) which corrected the earlier error and restored the State

program to its previous statutory language. Therefore, the Director

finds the Montana revised statute to be no less effective than the

Federal requirement and approves the proposed language. The Director

removes the required program amendment at 30 CFR 926.16(g).

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 30 CFR 732.17(h)(11)(i), 884.15(a), and 884.14(a)(2),

OSM solicited comments on the proposed amendment from various Federal

agencies with an actual or potential interest in the Montana program

and plan.

The Natural Resources Conservation Service responded on June 6,

1997, with the recommendation that reclaimed areas be fenced under

grazing conditions in order to ensure that stands of introduced species

and off-site native species become established (Administrative Record

No. MT-14-04). OSM responds that this is not required in either the

Montana program, or the Federal statutes or regulations. Therefore, to

require the fencing of reclaimed areas under grazing conditions would

be more stringent than either the Federal statutes or the regulations.

However, the requirement to fence reclaimed lands during the vegetation

establishment period is often placed on the permit by the State, OSM,

or other Regulatory Agency, and potentially even required by lease.

This is because protection of the revegetated area is in the operator's

best interest, since the operator will eventually be required to meet

revegetation success standards. OSM has forwarded the comments from the

Natural Resources Conservation Service to Montana for consideration.

The U.S. Army Corps of Engineers and the Bureau of Indian Affairs

had no objections to the proposed revisions (Administrative Record Nos.

MT-14-07 and MT-14-05).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Purusant 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 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.).

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (Administrative Record No. MT-14-03). The

proposed revisions did not relate to air quality or water quality, and

the EPA did not submit comments.

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 amendments from the SHPO and ACHP (Administrative Record No.

MT-14-03). Neither SHPO nor 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 May 16, 1995, and as revised and supplemented with

additional explanatory information on November 6, 1997.

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

82-4-203(1), (2), (3), (4), (7), (8), (10), (11), (13), (14), (15),

(16), (17), (18), (19), (20), (21), (22), (23), (26), (27), (28), (29),

(30), (31), (32), (33), (34), and (35), concerning Definitions;

proposed MCA 82-4-221 (2) and (3), concerning Mining permit required;

proposed MCA 82-4-226 (1) and (2), concerning Prospecting permit;

proposed MCA 82-4-227(1), (2), (5), (7), (8), (9), (11), and (12),

concerning Refusal of permit; proposed MCA 82-4-231 (1) and (6),

concerning Submission of and action on the reclamation plan; proposed

MCA 82-4-232(6), concerning Area mining--bond--alternative; proposed

MCA 82-4-251 (6) and (7), concerning Noncompliance--suspension of

permits; Finding No. 2, proposed MCA 82-4-203 (6) and (12), 82-4-204,

82-4-205, 82-4-223 (2) and (3), 82-4-226 (8), 82-4-227 (3) and (4), 82-

4-231 (9) and (10), 82-4-232 (7), 82-4-240, 82-4-242, 82-4-251 (1),

(2), (3), (4), (5), and (8), 82-4-254 (1), (2), and (3), 2-15-3501, and

2-15-3502, concerning the definitions of ``Board,'' ``Department,'' and

``Director,'' Board Rules and Administration by department; Finding No.

4, proposed MCA 82-4-203(25) and 82-4-226(8), concerning the definition

of ``Prospecting;'' Finding No. 6, proposed MCA 82-4-221(1), concerning

Mining permit required; Finding No. 7, proposed MCA 82-4-226(8),

concerning Prospecting permit and notices of intent; Finding No. 8,

proposed MCA 82-4-235, concerning Inspection of vegetation--final bond

release; and Finding No. 9, proposed MCA 82-4-227(10), concerning the

Coal conservation plan.

[[Page 3610]]

As discussed in Finding Nos. 3 and 5, the Director is disapproving

the proposed revisions to MCA 82-4-203(24) and deferring her decision

on the proposed revisions to MCA 82-4-239.

The Federal regulations at 30 CFR Part 926, codifying decisions

concerning the Montana program and plan, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

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

SMCRA.

VI. Procedural Determinations

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 12988

The Department of the Interior has conducted the reviews required

by Section 3 of Executive Order 12988 (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,

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

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

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.).

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.

6. Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 926

Abandoned mine reclamation programs, Intergovernmental relations,

Surface mining, Underground mining.

Dated: December 28, 1998.

Russell F. Price,

Acting Regional Director, Western Regional Coordinating 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 926.10(a) is revised to read as follows:

Sec. 926.10 State regulatory program approval.

* * * * *

(a) Montana Department of Environmental Quality, Industrial and

Energy Minerals Bureau, P.O. Box 200901, Helena, Montana 59620-0901,

(406) 444-1923.

* * * * *

3. Section 926.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 926.15 Approval of Montana regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------

Date of final

Original amendment submission date publication Citation/description

----------------------------------------------------------------------------------------------------------------

* * * * * *

*

May 16, 1995......................... January 22, 1999....... MCA 2-15-3501, 2-15-3502, 82-4-203(1) through

(35), except (24); MCA 82-4-204; MCA 82-4-205;

MCA 82-4-221; MCA 82-4-223; MCA 82-4-226(8);

MCA 82-4-227; MCA 82-4-231; MCA 82-4-232(6) and

(7); MCA 82-4-235; MCA 82-4-240; MCA 82-4-242;

MCA 82-4-251; and MCA 82-4-254(1) through (3).

Decision deferred on MCA 82-4-239; MCA 82-4-

203(24) disapproved.

----------------------------------------------------------------------------------------------------------------

4. Section 926.16 is amended by removing and reserving paragraphs

(f), (g), (h), (i), and (j); and adding paragraph (k) to read as

follows:

Sec. 926.16 Required program amendments.

* * * * *

(k) By March 23, 1999, Montana shall revise ARM 26.4.301(52), or

otherwise modify its program, to require that the definition of

``Historically used for cropland'' address lands that would have been

likely used as cropland for any 5 out of the last 10 years, immediately

preceding such acquisition but for the same fact of ownership or

control of the land unrelated to the productivity of the land.

5. Section 926.21 is added to read as follows:

Sec. 926.21 Required abandoned mine land plan amendments.

Pursuant to 30 CFR 884.15, Montana is required to submit for OSM's

approval the following proposed plan amendment by the date specified.

[[Page 3611]]

(a) By March 23, 1999, Montana shall submit a copy of the State's

reorganization of the abandoned mine land reclamation plan, as well as

all statutes and rules relating to the abandoned mine land reclamation

plan revised subsequent to the final rule published in the Federal

Register dates July 19, 1995 (60 FR 36998).

(b) [Reserved].

[FR Doc. 99-1445 Filed 1-21-99; 8:45 am]

BILLING CODE 4310-05-M