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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

Surface Coal Mining and Reclamation Operations Under the Federal

Lands Program; State-Federal Cooperative Agreements; Montana

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

Interior.

ACTION: Proposed rule.

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

Department of the Interior (Secretary) are proposing to amend 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 under the

permanent regulatory program. The proposed rulemaking would 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 revised Federal lands program

regulations, and would eliminate duplicative permitting requirements,

thereby increasing governmental efficiency, which is one of the

purposes of the cooperative agreement. This amendment would also update

the cooperative agreement to reflect current regulations and agency

structures. Cooperative agreements are provided for under section

523(c) of the Surface Mining Control and Reclamation Act of 1977

(SMCRA). This notice provides information on the proposed changes to

the cooperative agreement.

ciency, which is one of the

purposes of the cooperative agreement. This amendment would also update

the cooperative agreement to reflect current regulations and agency

structures. Cooperative agreements are provided for under section

523(c) of the Surface Mining Control and Reclamation Act of 1977

(SMCRA). This notice provides information on the proposed changes to

the cooperative agreement.

DATES: Written comments: Written comments must be received by 4:00

p.m., M.S.T. on March 11, 1997.

Public hearing: Anyone wishing to testify at a public hearing must

submit a request on or before 4:00 p.m., M.S.T. on January 31, 1997.

Because OSM will hold a public hearing only if one is requested,

hearing arrangements, dates and times, if any, will be announced in a

subsequent Federal Register notice. If no one requests an opportunity

to testify at the public hearing, the hearing will not be held. Any

disabled individual who has need for special accommodation to attend a

public hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT.

Public Meeting: If only one person requests an opportunity to

testify at a hearing, a public meeting, rather than a public hearing,

may be held. Persons wishing to meet with OSM representatives to

discuss the proposed amendment may request a meeting by contacting the

person listed under FOR FURTHER INFORMATION CONTACT. All such meetings

will be open to the public and, if possible, notices of meetings will

be posted at the locations listed under ADDRESSES. A written summary of

each meeting will be made a part of the administrative record.

sons wishing to meet with OSM representatives to

discuss the proposed amendment may request a meeting by contacting the

person listed under FOR FURTHER INFORMATION CONTACT. All such meetings

will be open to the public and, if possible, notices of meetings will

be posted at the locations listed under ADDRESSES. A written summary of

each meeting will be made a part of the administrative record.

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

Office of Surface Mining Reclamation and Enforcement, Western Regional

Coordinating Center, Suite 3320, 1999 Broadway, Denver, CO 80202-5733.

Copies of the Montana program, proposed amendments to the

cooperative agreement and the related information required under 30 CFR

Part 745 will be available for public review at the addresses listed

below during normal business hours, Monday through Friday, excluding

holidays. Each requester may receive one free copy of the proposed

revisions by contacting any one of the following persons.

Ranvir Singh, Western Regional Coordinating Center, Office of Surface

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

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

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

Reclamation and Enforcement, 100 East ``B'' Street, Room 2128, Casper,

WY 82601-1918, Telephone: (307) 261-6550.

Jan Sensibaugh, Montana Department of Environmental Quality, 1520 East

Sixth Avenue, Helena, MT 59620-0901, Telephone: (406) 444-5270.

FOR FURTHER INFORMATION CONTACT:

Ranvir Singh, 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 on the Montana Cooperative Agreement

of Environmental Quality, 1520 East

Sixth Avenue, Helena, MT 59620-0901, Telephone: (406) 444-5270.

FOR FURTHER INFORMATION CONTACT:

Ranvir Singh, 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 on the Montana Cooperative Agreement

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 Sec. 926.30.

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

at the recommendation of 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. The proposed modifications would amend the existing

cooperative agreement and delegate to Montana the sole responsibility

to issue coal mining and reclamation permits on Federal lands

consistent with the revised Federal lands regulations at 30 CFR Part

740 (48 FR 6912, February 16, 1983). This rulemaking would also amend

the existing cooperative agreement to reflect current agency

organizations.

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

seeking comments on whether the proposed amendment satisfies the

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

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

II. Proposed Revisions to the Cooperative Agreement

nd

the existing cooperative agreement to reflect current agency

organizations.

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

seeking comments on whether the proposed amendment satisfies the

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

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

II. Proposed Revisions to the Cooperative Agreement

A summary of the proposed changes to the existing cooperative

agreement appears below. These proposed revisions are subject to

further changes because of public comments and further discussions with

Montana. The full text of the proposed revised cooperative agreement is

being published for continuity, and the convenience of the reader.

The introductory language preceding existing Article I would be

revised to read ``(t)he 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:''

This change would be made to assure language consistency with other

State-Federal cooperative agreements, and to specify position

designations of representatives of the two entities of the State and

Federal governments that would sign the cooperative agreement. The

second paragraph of the existing introductory language would be deleted

because it would essentially duplicate the proposed language.

Existing Article I: Introduction and Purpose

stency with other

State-Federal cooperative agreements, and to specify position

designations of representatives of the two entities of the State and

Federal governments that would sign the cooperative agreement. The

second paragraph of the existing introductory language would be deleted

because it would essentially duplicate the proposed language.

Existing Article I: Introduction and Purpose

Proposed Revised Article I: Authority, Purposes, and Responsible

Agencies

The heading of existing Article I would be revised to read Article

I: Authority, Purposes, and Responsible Agencies. This revision is

proposed so that the revised heading correctly represent the three

paragraphs that comprise this article as described below.

Authority

Existing paragraph A would be given the heading A. Authority to

make it consistent with other cooperative agreements. The language in

existing paragraph A would be revised to delegate to Montana the

responsibility to review and approve coal exploration operations that

are not subject to 43 CFR Group 3400. This change is in conformance

with the Federal lands regulations at 30 CFR 740.4(c)(6).

Purposes

Existing paragraph B would be given the heading B. Purposes, and

minor word changes would be made for clarity.

Responsible Agencies

A new paragraph C. Responsible Agencies would be added to replace

and consolidate in one place the provisions of paragraphs A and B of

existing Article IV and would specify, as in the existing cooperative

agreement, that the Office of Surface Mining Reclamation and

Enforcement (OSM) would administer the cooperative agreement on behalf

of the Secretary. However, since there has been a change in the name of

the State agency with authority to regulate coal mining in Montana

subsequent to the date of existing cooperative agreement, the Montana

Department of Environmental Quality (DEQ), instead of the Montana

Department of State Lands (State Lands), would administer the

cooperative agreement on behalf of the Governor.

n behalf

of the Secretary. However, since there has been a change in the name of

the State agency with authority to regulate coal mining in Montana

subsequent to the date of existing cooperative agreement, the Montana

Department of Environmental Quality (DEQ), instead of the Montana

Department of State Lands (State Lands), would administer the

cooperative agreement on behalf of the Governor.

Existing Article II: Effective Date

Proposed Revised Article II: Effective Date

Existing Article II would be revised by replacing the roman numeral

``X'' at the end of the last sentence with roman numeral ``XI'' to

correspond to the proposed renumbering of existing Article X. No change

in effect is intended.

Existing Article XVI: Definitions

Proposed Revised Article III: Definitions

Existing Article XVI: Definitions would be renumbered to read

Article III: Definitions. This change is proposed to assure that this

article appears in the same sequence as in other State-Federal

cooperative agreements. The existing language would be retained to

provide that the terms and phrases used in the cooperative agreement

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

701, 740, and the State Program. Additional language would be included

to define the term ``Permit Application Package (PAP)'' to describe the

material submitted by an applicant for a surface coal mining and

reclamation operation permit on Federal lands (See 48 FR 6912, February

16, 1983). OSM adopted the term because there are requirements for

mining on Federal lands that are in addition to those required by

permit application under the State program for non-Federal lands. For

example, operations on Federal lands may be subject to requirements of

the Federal land management agency or of the Secretary under Federal

laws other than SMCRA. The PAP would include such additional

information as would be required by the State program. See definition

of ``permit application package'' under 30 CFR 740.5

permit application under the State program for non-Federal lands. For

example, operations on Federal lands may be subject to requirements of

the Federal land management agency or of the Secretary under Federal

laws other than SMCRA. The PAP would include such additional

information as would be required by the State program. See definition

of ``permit application package'' under 30 CFR 740.5.

The definition of PAP in the revised cooperative agreement includes

the term ``permit amendment'' in addition to all other terms in the

definition of PAP

under CFR 740.5. The term ``permit amendment'' under the Montana State

Program means any change in the mine or reclamation plan that results

in expansion or decrease of the operation's permitted boundaries,

excluding incidental boundary changes (ARM 26.4.301(13).

Existing Article III: Scope

Proposed Revised Article IV: Applicability

The heading of existing Article III would be revised to read

Article IV: Applicability. This revision is proposed because the word

``applicability'' is more appropriate than the word ``scope'' to

describe what is contained in this article. The new heading would also

be consistent with that in other State-Federal cooperative agreements.

Existing language would be revised to delete an obsolete reference to

conditional approval of Montana's permanent State program, and to

include additional current regulatory and statutory references that are

relevant but are not presently included. These revisions would not

change the intent of existing Article III.

Existing Article IV: Requirements for Cooperative Agreement

tive agreements.

Existing language would be revised to delete an obsolete reference to

conditional approval of Montana's permanent State program, and to

include additional current regulatory and statutory references that are

relevant but are not presently included. These revisions would not

change the intent of existing Article III.

Existing Article IV: Requirements for Cooperative Agreement

Proposed Revised Article V: Requirements for the Agreement

Existing Article IV would be renumbered and retitled to read

Article V: Requirements for the Agreement. This as well as other

proposed changes to Article IV are discussed below.

The change from the existing roman numeral IV to roman numeral V is

being made to conform to the revised numbering of preceding articles.

The word ``agreement'' would be used in place of phrase ``cooperative

agreement'' to conform to the introductory paragraph of the Cooperative

Agreement and is intended to be merely an editorial change.

As explained above, the provisions of existing paragraphs A and B

have been consolidated into new paragraph C. Responsible Agencies of

proposed Article I. The remaining provisions of existing Article IV

would be reorganized into six paragraphs as explained below. The

introductory language in the existing Article IV would be included

without any substantive changes in paragraph A to affirm that the

Governor and the Secretary would comply with all provisions of the

Agreement.

Funds

Existing paragraph C. Funds would become paragraph B. Funds of

proposed Article V, and would consist of three proposed subparagraphs.

Proposed subparagraph 1 would retain all the language of the first

two sentences of existing paragraph C. This subparagraph would also

provide that the Federal Assistance Manual (FAM) would be used in

determining the amount of grant funds to be reimbursed to DEQ. The

existing cooperative agreement does not include this provision

D. Reports and Records would become paragraph C.

Reports and Records of proposed Article V, and would be revised to make

minor changes to improve clarity, and to remove reference to an OSM

organizational structure that is no longer in use. As stated above OSM

would administer the cooperative agreement on behalf of the Secretary,

the word ``Secretary'' has been replaced by the acronym ``OSM''. A new

provision has been added regarding the final evaluation report that OSM

prepares and submits to the Congress and other interested parties about

State administration and enforcement of the cooperative agreement.

According to this provision OSM would be required to attach DEQ's

comments on the report prior to its being submitted to the Congress and

disseminated to other interested parties. This requirement would

provide the Congress and the public an opportunity to know not only how

OSM considers the State's performance but also the State's views on its

own performance.

Personnel

Existing paragraph E. Personnel would become paragraph D. Personnel

of proposed Article V, and the existing language would be incorporated

in the renumbered paragraph. No change in the meaning is intended.

Equipment and Facilities

Heading of the existing paragraph F. Equipment and Laboratories

would be revised to read as E. Equipment and Facilities, to more

appropriately describe the contents of this paragraph. The language in

the existing paragraph would be retained without any substantive

changes in its intent.

Permit Application Fees and Civil Penalties

Existing paragraph G. Permit Application Fees would be renumbered

and retitled as paragraph F. Permit Application Fees and Civil

Penalties. The change in title is to assure conformance with other

cooperative agreements. The existing provision regarding all permit

fees to retained by the State and deposited in the General Fund would

be deleted because it does not comply with revised Federal regulations

paragraph G. Permit Application Fees would be renumbered

and retitled as paragraph F. Permit Application Fees and Civil

Penalties. The change in title is to assure conformance with other

cooperative agreements. The existing provision regarding all permit

fees to retained by the State and deposited in the General Fund would

be deleted because it does not comply with revised Federal regulations.

In order to comply with the Federal regulations regarding financial

management, new language would be added to incorporate current

regulatory references, and Federal and State program requirements with

respect to civil penalties that are not included in the existing

cooperative agreement.

Existing Article V: Policies and Procedures: Mine Plan Review

Proposed Revised Article VI: Review and Approval of the PAP or

Application for Transfer, Assignment or Sale of Permit Rights

The number and heading of the existing Article V: Policies and

Procedures: Mine Plan Review would be revised to read Article VI:

Review and Approval of the PAP or Application for Transfer, Assignment

or Sale of Permit Rights. Renumbering is necessary to conform to

revised numbering of preceding articles. The change in heading is

proposed to accurately represent various topics that are parts of this

article.

Provisions of existing Article V would be revised to be consistent

with other cooperative agreements, to include additional requirements

of the Federal lands program regulations at 30 CFR Parts 740, 745, and

746, to delete references to obsolete regulations, and to add

references to current regulations.

ading is

proposed to accurately represent various topics that are parts of this

article.

Provisions of existing Article V would be revised to be consistent

with other cooperative agreements, to include additional requirements

of the Federal lands program regulations at 30 CFR Parts 740, 745, and

746, to delete references to obsolete regulations, and to add

references to current regulations.

The proposed Article VI would include all relevant provisions of

existing Article V, and would consist of three major headings A, B, and

C as described below.

Receipt and Distribution of the PAP or Application for Transfer,

Assignment or Sale of Permit Rights

The title of existing paragraph A would be revised to read A.

Receipt and Distribution of the PAP or Application for Transfer,

Assignment or Sale of Permit Rights. This change is proposed to assure

consistency with the revised Federal lands regulations at 30 CFR 740.

Some of the provisions of existing paragraph A would be revised and

incorporated in proposed subparagraph A.1. The existing requirement

that the operator submit to the State and the Regional Director an

appropriate number of identical copies of the mining and reclamation

plan and permit application or an application for major modification to

an approved mining plan and permit, would be replaced by the provision

that the applicant submit to DEQ an appropriate number of copies of the

PAP or application for transfer, assignment or sale of permit rights.

This change is proposed to eliminate duplication and make DEQ the sole

recipient of the permit applications. Other existing requirements with

respect to the form and contents of the application to ascertain

compliance with various State and Federal laws and regulations would be

retained in subparagraph A.1 but would be revised to incorporate minor

editorial changes and current statutory and regulatory citations

osed to eliminate duplication and make DEQ the sole

recipient of the permit applications. Other existing requirements with

respect to the form and contents of the application to ascertain

compliance with various State and Federal laws and regulations would be

retained in subparagraph A.1 but would be revised to incorporate minor

editorial changes and current statutory and regulatory citations.

A new subparagraph A.2 would be added to provide that after receipt

of the PAP, or application for transfer, assignment or sale of permit

rights, DEQ would ensure that an appropriate number of copies of the

PAP or applicant for transfer, assignment or sale of permit rights, are

provided to OSM, the Federal Land Management Agency, and any other

appropriate Federal agency. This provision would further give DEQ the

sole responsibility for distributing copies of permit applications to

appropriate agencies, and would eliminate duplication of effort.

Review of the PAP or Application for Transfer, Assignment or Sale of

Permit Rights

The title of existing paragraph B. Mine Plan Review Procedures

would be revised to read B. Review of the PAP Application for Transfer,

Assignment or Sale of Permit Rights. This change is being proposed to

assure clarity, and consistency with Federal lands regulations at 30

CFR Part 740.

Most of the relevant provisions of existing paragraph B comprised

of subparagraph 1 through 9 would be incorporated into four

subparagraphs of the proposed paragraph B. However, in order to keep

the various provisions in a logical sequence and under appropriate

headings, the relevant language would be moved from the existing

subparagraph to another proposed subparagraph. Also, the phrase ``mine

plan and permit application'' extensively used in the existing

cooperative agreement would be replaced by the phrase ``permit

application package (PAP) or application for transfer, assignment or

sale of permit rights'' to conform to the language in revised Federal

regulations

vant language would be moved from the existing

subparagraph to another proposed subparagraph. Also, the phrase ``mine

plan and permit application'' extensively used in the existing

cooperative agreement would be replaced by the phrase ``permit

application package (PAP) or application for transfer, assignment or

sale of permit rights'' to conform to the language in revised Federal

regulations. Furthermore, the phrase ``State Lands'' would be replaced

by Department of Environmental Quality (DEQ), and the ``Regional

Director'' and ``Secretary'' would be replaced by ``OSM'', where

appropriate. These modifications are proposed because of recent changes

in the organizational structure of the Montana State government and

OSM.

Responsibilities of DEQ, OSM and the Secretary

As described below, the proposed paragraph B would consist of four

subparagraphs delineating the responsibilities of DEQ, OSM and the

Secretary relating to the review of the PAP or application for

transfer, assignment or sale of permit rights, and coordination

procedures between DEQ and OSM before and after DEQ's approval of a

permit.

The provision in existing paragraph B.1 that State Lands shall

assume responsibility for the analysis and review of applications

required by 30 CFR 741.13 for surface coal mining and reclamation

permits on Federal lands in Montana, would be revised by deleting

reference to an obsolete regulation at 30 CFR 741.13. The revised

language would be moved, without any changes in its meaning, to

proposed subparagraph B.1.a(2) in order to keep this provision in a

logical sequence and under the appropriate subparagraph heading. The

requirement in existing paragraph B.1 that the Secretary shall, as

requested, assist the State through the Regional Director in the

analysis and review of applications, would be changed to provide that

OSM would review the appropriate portions of applications

roposed subparagraph B.1.a(2) in order to keep this provision in a

logical sequence and under the appropriate subparagraph heading. The

requirement in existing paragraph B.1 that the Secretary shall, as

requested, assist the State through the Regional Director in the

analysis and review of applications, would be changed to provide that

OSM would review the appropriate portions of applications. The revised

language would be moved and included as subparagraph a(2) of proposed

paragraph B.2 where other responsibilities of OSM are described. The

remaining provision in existing paragraph B.1 stating that the

Secretary shall, in addition, evaluate the State's analysis and

conclusions as necessary to independently determine whether the

Secretary concurs in the State's decision, would be deleted. Such

Secretarial concurrence would be duplication of effort and hence, would

not be necessary if, as proposed in this agreement (see proposed

subparagraph C.1), DEQ assumes the responsibility to make a decision on

approval, conditional approval, or disapproval of the permit

application component of the PAP or application for transfer,

assignment or sale of permit rights.

Thus, the proposed paragraph B.1 which describes the

responsibilities of DEQ, would incorporate some of the provisions of

existing paragraph B.1 as described above, also of existing paragraphs

B.2, B.7 of Article V, and of paragraph B of existing Article VIII as

discussed below. In addition, the following new requirements would be

included in the proposed paragraph B.1. The first new requirement in

proposed subparagraph B.1.a(3) would make DEQ responsible to obtain the

requests from Federal agencies with jurisdiction or responsibility over

Federal lands for additional information, comments and findings. This

requirement is necessary to provide Federal agencies the full

opportunity to communicate to DEQ their concerns and comments before

DEQ approves a permit

he first new requirement in

proposed subparagraph B.1.a(3) would make DEQ responsible to obtain the

requests from Federal agencies with jurisdiction or responsibility over

Federal lands for additional information, comments and findings. This

requirement is necessary to provide Federal agencies the full

opportunity to communicate to DEQ their concerns and comments before

DEQ approves a permit. The second new provision in proposed

subparagraph B.1.a(4) would require DEQ to obtain OSM's determination

whether or not the PAP involving leased Federal coal would require a

mining plan modification under 30 CFR 746.18 and informing the

applicant of such determination. This provision would ensure that the

applicant, in addition to obtaining a DEQ permit, would also need to

get a mining plan approval from the Secretary as required by the

Mineral Leasing Act, and regulations at 30 CFR 746.11. Proposed

subparagraph a(5) would require DEQ to consult with and obtain the

consent, as necessary, of Federal land management agency would respect

to post-mining land use and to any special requirements to protect non-

coal resources. This new responsibility would be delegated to DEQ as

provided in 30 CFR 740.4(c)(2). Proposed subparagraph a(6) would be

added to delegate to DEQ the responsibility to consult with and obtain

consent, as necessary, of the Bureau of Land Management (BLM) with

respect to requirements relating to the development, production and

recovery of mineral resources on lands that may

non-

coal resources. This new responsibility would be delegated to DEQ as

provided in 30 CFR 740.4(c)(2). Proposed subparagraph a(6) would be

added to delegate to DEQ the responsibility to consult with and obtain

consent, as necessary, of the Bureau of Land Management (BLM) with

respect to requirements relating to the development, production and

recovery of mineral resources on lands that may

be affected by coal mining operations involving leased Federal coal, as

authorized by 30 CFR 740.4(c)(3). Proposed subparagraph a(7) would

provide for delegation to DEQ the responsibilities of approval and

release of performance bonds with the concurrence of OSM, and approval

and maintenance of liability insurance as authorized by 30 CFR

740.49(c)(4). Another new requirement in proposed subparagraph a(8)

would delegate to DEQ the responsibility to review and approve

exploration operations that are not subject to the requirements of 43

CFR Group 3400, as provided in 30 CFR 740.4(c)(6).

Proposed new subparagraph B.1.b(2) would require DEQ to prepare a

State decision document in cases when a mining plan action would need

to be taken by the Secretary. This decision document is one of the

documents that comprises the mining plan decision document and serves

the basis for OSM's recommendation to the Secretary for an action on a

mining plan.

The provision in existing paragraph B.2 that State Lands will be

the primary contact for operators regarding the processing of mining

plans and permit applications, would be revised to make, in addition to

those already mentioned, a number of corrections to conform to the

current regulations. The word ``applicant'' would be used in place of

the word ``operators'' to more accurately define the person submitting

the PAP. The revised language would be moved to proposed subparagraph

B.1.a(1) so that this provision is in a logical sequence and under the

appropriate subparagraph heading without making any change in its

intent

number of corrections to conform to the

current regulations. The word ``applicant'' would be used in place of

the word ``operators'' to more accurately define the person submitting

the PAP. The revised language would be moved to proposed subparagraph

B.1.a(1) so that this provision is in a logical sequence and under the

appropriate subparagraph heading without making any change in its

intent.

The requirement of existing paragraph B.2 regarding State Lands

being responsible for informing the applicant of all joint State-

Federal determinations would be moved to the proposed paragraph C.4 of

this article in order to keep this provision under the appropriate

subject heading. However, the phrase ``joint State-Federal

determinations'' would be deleted because DEQ would assume the primary

responsibility to make determinations on approval or disapproval of

permits.

The provision in existing paragraph B.2 requiring that State Lands

shall send a copy of all correspondence with the applicant and any

information received from the applicant which may have a bearing on

decisions regarding the mine plan and permit application to the

Regional Director, and the provision that requires OSM to send to the

State a copy of all independent correspondence with the applicant that

may have a bearing on decisions regarding the mining plan and permit

application, would be modified and moved to subparagraph B.4.d where

coordination responsibilities of OSM and DEQ are described.

The provision in existing paragraph B.2 stating, ``Except in

exigent circumstances, OSM will not independently initiate contacts

with applicants regarding completeness or deficiencies of plans and

applications with respect to matters which are properly within the

jurisdiction of State Lands'', would be moved to proposed subparagraph

B.4.a. No change in the meaning is intended

are described.

The provision in existing paragraph B.2 stating, ``Except in

exigent circumstances, OSM will not independently initiate contacts

with applicants regarding completeness or deficiencies of plans and

applications with respect to matters which are properly within the

jurisdiction of State Lands'', would be moved to proposed subparagraph

B.4.a. No change in the meaning is intended.

The existing paragraph B.2 provides that the Secretary shall

reserve the right to act independently of the State to carry out his

responsibilities under laws other than the Federal Act and in instances

of disagreement under the Federal Act, would be moved to subparagraph

B.3.b where other responsibilities and rights of the Secretary are

listed.

The proposed paragraph B.2, which describes the responsibilities of

OSM, would incorporate the appropriate requirements of existing

paragraphs B.1, B.4, B.5, B.7, and B.8. In addition, this paragraph

would include four new provisions required by Federal regulations. The

first new provision would be proposed subparagraph B.2.a(3), that would

require OSM to consult with the Federal land management agency to

determine whether the PAP constitutes a mining plan modification, and

to inform DEQ of such determination within 30 days of receiving a copy

of the PAP. This provision is required to comply with 30 CFR

746.18(c)(1). The second new provision, proposed subparagraph B.2.b(1),

would be included to comply with the requirements of 30 CFR 746.13(e).

Proposed subparagraph B.2.b(1) would require OSM to consult with and

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

or any other Federal agency, as necessary, prior to recommending to the

Secretary to approve or disapprove the mining plan. The third new

proposed subparagraph B.2.b(2) would address the situations that may

arise when DEQ would be unable to include in the permit certain

conditions that other Federal agencies may require to assure compliance

with Federal laws other than SMCRA

nagement agency,

or any other Federal agency, as necessary, prior to recommending to the

Secretary to approve or disapprove the mining plan. The third new

proposed subparagraph B.2.b(2) would address the situations that may

arise when DEQ would be unable to include in the permit certain

conditions that other Federal agencies may require to assure compliance

with Federal laws other than SMCRA. In order to assure compliance with

30 CFR 740.13(c)(1), proposed paragraph C in subparagraph 2 would

require DEQ to consider the comments of Federal agencies and, to the

extent allowed by Montana law, include in the permit, terms and

conditions imposed by the Federal law management agency or any other

Federal agency with any interest in the proposed project. Montana is

concerned that 30 CFR 740.13(c)(1) appears to require the State to

include and enforce conditions required by other Federal laws. The

State has pointed out that it lacks the authority to enforce other

Federal laws and regulations.

The proposed amendments to the Cooperative Agreement do not require

nor authorize the State of Montana to enforce Federal laws other than

SMCRA. However, the State will enforce its own permits, including those

permit conditions required under 30 CFR 740.13(c)(1). The State must

consider the comments of Federal agencies in the context of permit

issuance and must document these comments in the record of permit

decisions. After considering the comments and proposed conditions of

Federal agencies, the State may adopt the recommended conditions. If

the State does not incorporate a permit condition proposed pursuant to

other Federal laws and regulations, the State will document why the

condition was not accepted and transmit the documentation to OSM. OSM

may agree with the State that the condition is not necessary. When OSM

believes the proposed conditions are necessary, it has a variety of

options to consider to improve those conditions:

he State does not incorporate a permit condition proposed pursuant to

other Federal laws and regulations, the State will document why the

condition was not accepted and transmit the documentation to OSM. OSM

may agree with the State that the condition is not necessary. When OSM

believes the proposed conditions are necessary, it has a variety of

options to consider to improve those conditions:

(1) OSM may work with the Federal land management agency to find

another means to resolve the issue.

(2) Those conditions associated with Federal laws other than SMCRA

could be included as part of the mining plan approval, surface use

permit, or other Federal authorization.

(3) In rare instances where no other Federal authorizations would

be required, OSM will, after consulting with other Federal agencies as

required by the Cooperative Agreement, issue a supplemental SMCRA

permit attaching only those conditions which are necessary to assure

compliance with other Federal laws. The State shall not be required to

enforce the conditions of the Federal permit.

The fourth new proposed subparagraph B.2.b(3) would provide for OSM

to be responsible for providing a mining plan decision document to the

Secretary recommending approval, disapproval, or conditional approval

of mining plans or modifications thereof. This new provision is needed

to assure compliance with 30 CFR 740.4(b) and 746.13.

The gist of the first sentence of existing paragraph B.3 making the

Regional Director responsible to ensure that any information OSM

receives concerning the application is sent to

ion document to the

Secretary recommending approval, disapproval, or conditional approval

of mining plans or modifications thereof. This new provision is needed

to assure compliance with 30 CFR 740.4(b) and 746.13.

The gist of the first sentence of existing paragraph B.3 making the

Regional Director responsible to ensure that any information OSM

receives concerning the application is sent to

State Lands, would be contained in proposed subparagraph B.4.d where

other coordination responsibilities of OSM and DEQ are described. The

requirement of the second sentence of existing paragraph B.3 would be

moved to proposed subparagraph B.4.b where other responsibilities of

OSM and DEQ regarding coordination are described.

Proposed paragraph B.3, which delineates the responsibilities of

the Secretary, in addition to incorporating in proposed subparagraph

B.3.b the requirements of existing paragraph B.2 as discussed above,

would also include two new subparagraphs. The first proposed

subparagraph B.3.a would be added to provide for the Secretary to

concurrently carry out the non-delegable responsibilities listed in 30

CFR 745.13. This is necessary to expedite the mining plan approval

process such that the Secretary simultaneously carries out his

responsibilities without waiting for the State to complete its actions.

The second proposed subparagraph B.3.c would be added to implement 30

CFR 740.4(a) which requires the Secretary to be responsible for

approval, disapproval, or conditional approval of a mining plan action

pursuant to the Mineral Leasing Act of 1920.

The provision in existing paragraph B.4 making the Regional

Director responsible for obtaining, on a timely basis, the views of all

Federal agencies with jurisdiction or responsibility over a mine plan

or permit application on Federal lands in Montana and for making these

views known to State Lands, would be revised

pproval of a mining plan action

pursuant to the Mineral Leasing Act of 1920.

The provision in existing paragraph B.4 making the Regional

Director responsible for obtaining, on a timely basis, the views of all

Federal agencies with jurisdiction or responsibility over a mine plan

or permit application on Federal lands in Montana and for making these

views known to State Lands, would be revised. The proposed amendments

to the Agreement would delegate this responsibility to DEQ as provided

in proposed subparagraphs B.1.a(3). This delegation is permissible

under 30 CFR 740.4(c). But as provided in subparagraph B.2.a(5)(b), OSM

may also assist DEQ, if requested, in obtaining comments and findings

of other Federal agencies. Another provision in existing paragraph B.4

requiring State Lands to keep the Regional Director informed of

findings during the review which bear on the responsibilities of other

Federal agencies, would be included in proposed subparagraph B.4. after

making appropriate modifications regarding the name of the State

regulatory agency. Another provision of existing paragraph B.4

requiring the Regional Director to take appropriate steps to facilitate

discussions between State Lands and the concerned agencies wherever

desirable to resolve issues or problems, would be included in the

proposed subparagraphs B.2a(5)(a) and B.2.a(5)(c), where other OSM

responsibilities are listed, without making any change in its meaning.

As discussed above and in the following paragraph B.5, the proposed

paragraph B.4 would incorporate some of the provisions of existing

paragraphs B.2, B.3, B.4, and B.5. In addition, five new subparagraphs

would be added to comply with the Federal regulations that were

promulgated subsequent to the date the existing Agreement became

effective. The first proposed subparagraph B.4.c would provide for OSM

and DEQ to coordinate with each other for scheduling a meeting with the

applicant

porate some of the provisions of existing

paragraphs B.2, B.3, B.4, and B.5. In addition, five new subparagraphs

would be added to comply with the Federal regulations that were

promulgated subsequent to the date the existing Agreement became

effective. The first proposed subparagraph B.4.c would provide for OSM

and DEQ to coordinate with each other for scheduling a meeting with the

applicant. This is necessary to enhance communications between the two

agencies as they interact with the applicant, as well as to minimize

duplication of communications with the applicant. The second proposed

subparagraph B.4.e would be added to comply with the provisions of 30

CFR 745.12(g)(1) that requires DEQ to allow OSM access to files

relating to coal mining operations on Federal lands. This is necessary

to safeguard the interests of the Federal government. The third

proposed subparagraph B.4.g would be added to ensure compliance with

the provisions of 30 CFR 740.4 (c) and (d) relating to coordination

between BLM and DEQ on matters relating to regulations at 43 CFR Group

3400. The fourth proposed subparagraph B.4.h would allow OSM and DEQ to

develop working agreements specifying any delegable responsibilities of

other Federal laws and regulations which may be delegated to DEQ

without amendment to the Agreement. This provision recognizes that in

the interest of reducing duplication in the review of permit

application packages (PAPs), DEQ may assume certain responsibilities

that are fully or partially delegable that would otherwise be performed

by OSM. For example, a working agreement may specify how DEQ can assist

the Secretary in meeting his responsibilities under the National

Environmental Policy Act (NEPA). It is possible for DEQ to perform much

of the basic research and analysis required for the Secretary to meet

his NEPA responsibilities, although the Secretary will assume full

responsibility for ensuring compliance with NEPA

by OSM. For example, a working agreement may specify how DEQ can assist

the Secretary in meeting his responsibilities under the National

Environmental Policy Act (NEPA). It is possible for DEQ to perform much

of the basic research and analysis required for the Secretary to meet

his NEPA responsibilities, although the Secretary will assume full

responsibility for ensuring compliance with NEPA. Joint preparation of

NEPA documents is an authorized means of achieving that compliance and

is consistent with 30 CFR 740.4(c)(7). The fifth new provision in

proposed subparagraph B.4.i provides that when valid existing rights

(VER) are determined to exist on Federal lands under section 522(e)(3)

of SMCRA and the proposed operation will adversely affect either a

publicly-owned park or a historic place listed on the National Register

of Historic Places (NRHP), DEQ would work with the agency that has

jurisdiction over the publicly-owned park, or with the agency that has

jurisdiction over the historic place, to develop mutually acceptable

terms and conditions for incorporation into the permit to mitigate

adverse impacts.

In existing paragraph B.5, the Regional Director is required to

begin a review of a mining plan and permit application for apparent

completeness. As provided in 30 CFR 740.4(c)(1), this requirement would

be revised to delegate the responsibility to DEQ and moved to proposed

subparagraphs B.1.a(2) where other DEQ responsibilities are described,

and to proposed subparagraph B.2.a(5)(d) OSM's responsibilities to

assist DEQ are described. The provision in paragraph B.5 requiring

State Lands to inform the Regional Director where OSM assistance will

be needed to perform any specific or general analysis or prepare any

studies or similar work, would be paraphrased and included in proposed

subparagraph B.2.a(5)(e). The remaining provisions of existing

paragraph B.5, would be modified to make editorial changes and would be

included in proposed subparagraph B.4.f

requiring

State Lands to inform the Regional Director where OSM assistance will

be needed to perform any specific or general analysis or prepare any

studies or similar work, would be paraphrased and included in proposed

subparagraph B.2.a(5)(e). The remaining provisions of existing

paragraph B.5, would be modified to make editorial changes and would be

included in proposed subparagraph B.4.f.

The requirements of existing paragraph B.6 providing for joint

public meetings and hearings on permit decisions, would be deleted

because all permit decisions would be made by DEQ under the amended

cooperative agreement.

The requirements of existing paragraph B.7 relating to the

preparation of an environmental impact statement and/or environmental

assessment to comply with NEPA and the Montana Environmental Policy Act

(MEPA) would remain the same and would be included in proposed

subparagraph B.1.b(1) where all other responsibilities of DEQ are

described. In addition, the gist of the last sentence of existing

paragraph B.7 relating to independent evaluation and approval of a NEPA

compliance documents would be included as proposed subparagraph

B.2.a(1).

Existing paragraph B.8 would be revised significantly relating to

the preparation of a technical analysis, environmental analysis, and

proposed written decision on the mining plan and permit application

review, independent evaluation of these documents, written concurrence

by the Regional Director, and the requirement that ``State Lands shall

consider the comments of the Regional Director and send a final

technical analysis, environmental analysis, and proposed decision to

the

technical analysis, environmental analysis, and

proposed written decision on the mining plan and permit application

review, independent evaluation of these documents, written concurrence

by the Regional Director, and the requirement that ``State Lands shall

consider the comments of the Regional Director and send a final

technical analysis, environmental analysis, and proposed decision to

the

Regional Director for his written concurrence. The Regional Director

shall have 30 days to act after receipt of State Lands' final technical

analysis, environmental analysis, and proposed decision. If no further

changes are required, the Regional Director shall proceed in accordance

with 30 CFR 741.21.'' The regulation at 30 CFR 741.21(a)(2), and now

superseded by current regulation, was promulgated on March 13, 1979 and

required that ``(t)he Director approve, or deny all applications for

permits under the Federal lands program. .*.*.'' (44 FR 15335, March

13, 1979). In accordance with the Circuit Court of Appeals decision

(National Wildlife Federation vs. Donald Hodel, 839 F.2d 694 (D.C. Cir.

1988)) that upheld OSM's 1983 Federal program regulations (48 FR 6936,

February 16, 1983), OSM is not required to issue permits under the

Federal lands program in States that have a State-Federal cooperative

agreement. However, due to the above language in paragraph B.8 of

existing Article V, OSM has continued to issue Federal permits in

Montana under the Federal lands program. It is the intent of these

proposed amendments that OSM would not issue Federal permits in Montana

under the Federal lands program.

Therefore, in accordance with regulations at 30 CFR 740.4(c)(1),

OSM would delegate to DEQ the responsibility to make a decision on

approval, disapproval, or conditional approval of the permit

application component of the PAP as provided in proposed paragraph C.1

of Article VI

t of these

proposed amendments that OSM would not issue Federal permits in Montana

under the Federal lands program.

Therefore, in accordance with regulations at 30 CFR 740.4(c)(1),

OSM would delegate to DEQ the responsibility to make a decision on

approval, disapproval, or conditional approval of the permit

application component of the PAP as provided in proposed paragraph C.1

of Article VI. The existing requirement that ``the Regional Director

shall have 30 days to act after receipt of State Lands' final technical

analysis, environmental analysis, and proposed decision'', has been

included in proposed subparagraph B.2.a(4) after making two

modifications. First, the existing requirement for ``the Regional

Director to act on State Lands' technical analysis, environmental

analysis and proposed decision'' has been replaced by the catchall

phrase ``exercising its responsibilities''. Two, the ``30-day'' time

limit has been replaced by the phrase ``timely manner governed, to the

extent possible, by the deadlines established in the State Program''.

As stated above DEQ would have the responsibility to make a decision on

approval, disapproval, or conditional approval of the permit

application component of the PAP, and OSM would not need to act on

DEQ's final technical analysis, environmental analysis, and proposed

decision. Further, due to dwindling staff resources adherence to strict

time limits could be very difficult.

The provisions in existing paragraph B.9 refer to sections of

obsolete regulations at 30 CFR 741.16, 741.17 and 741.21, and hence

would be deleted.

Approval of the PAP or Application for Transfer, Assignment or Sale of

Permit Rights

Proposed paragraph C would be titled Approval of the PAP or

Application for Transfer, Assignment or Sale of Permit Rights

t

time limits could be very difficult.

The provisions in existing paragraph B.9 refer to sections of

obsolete regulations at 30 CFR 741.16, 741.17 and 741.21, and hence

would be deleted.

Approval of the PAP or Application for Transfer, Assignment or Sale of

Permit Rights

Proposed paragraph C would be titled Approval of the PAP or

Application for Transfer, Assignment or Sale of Permit Rights. As

discussed earlier subparagraph C.1 would provide that DEQ shall make a

decision on approval, conditional approval or disapproval of the permit

application component of the PAP or application for transfer,

assignment or sale of permit rights on Federal lands as authorized by

30 CFR 740.4(c)(1). Proposed subparagraph C.2 would require DEQ to

consider the comments of the Federal agencies and, to the extent

allowed by the State Act, incorporate in the permit any terms or

conditions imposed by the Federal land management agency pursuant to

applicable Federal laws and regulations as required by 30 CFR

740.13(c)(1). Proposed subparagraph C.3 would provide that when a

mining plan is required to be approved by the Secretary, DEQ may make a

decision on the permit application component of the PAP on Federal

lands prior to the necessary Secretarial decision on the mining plan,

provided that DEQ advises 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.

This provision would serve two purposes. One, it would enable DEQ to

issue a State permit within time limits dictated by the State program,

and two, it would inform the applicant that a mining plan approval from

the Secretary must be obtained, when necessary, prior to commencing

certain coal mining operations

nt may conduct

surface coal mining and reclamation operations on the Federal lands.

This provision would serve two purposes. One, it would enable DEQ to

issue a State permit within time limits dictated by the State program,

and two, it would inform the applicant that a mining plan approval from

the Secretary must be obtained, when necessary, prior to commencing

certain coal mining operations. Finally, to bring the permitting

process to conclusion and close the communication loop, proposed

subparagraph C.4 would require that after DEQ has made a decision on

the permit application component of the PAP, DEQ shall send a copy of

the signed permit form and State decision document to the applicant,

OSM, the Federal land management agency and, when necessary, to the

agency with jurisdiction over a publicly-owned park or historic

property listed in the NRHP that would be adversely affected by the

surface coal mining and reclamation operations.

Existing Article VI: Inspections

Proposed Revised Article VII: Inspections

This article would be renumbered as Article VII: Inspections to

correspond to the revised numbering of preceding articles. Existing

paragraphs A, B, C, D, and E would be reorganized and revised to delete

references to OSM's organizational structure that is no longer in use,

and obsolete regulations. In order to increase clarity, existing

paragraph F would be moved under proposed Article VIII: Enforcement to

become paragraph E. No change in the meaning is intended.

Existing Article VII: Enforcement

ding articles. Existing

paragraphs A, B, C, D, and E would be reorganized and revised to delete

references to OSM's organizational structure that is no longer in use,

and obsolete regulations. In order to increase clarity, existing

paragraph F would be moved under proposed Article VIII: Enforcement to

become paragraph E. No change in the meaning is intended.

Existing Article VII: Enforcement

Proposed Revised Article VIII: Enforcement

This article would be renumbered as Article VIII: Enforcement to

correspond to the revised numbering of preceding articles. Changes in

the language are for clarification purposes only, and also to ensure

consistency with other cooperative agreements.

Existing paragraph A would be revised to include references to 30

CFR Part 740, to replace ``State Lands'' with ``DEQ'', and to add that

enforcement authority given to the Secretary under other Federal laws

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

Appendix A, is reserved to the Secretary. No change in its meaning is

intended.

Existing paragraph B would essentially remain the same except for

few word changes for clarification purposes.

In order to comply with revised Federal regulations a new paragraph

C would be added to provide that during any inspection made solely by

OSM or during any joint inspection where DEQ and 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.

Existing paragraph C would be renumbered D but would retain the

same provisions. As mentioned above a proposed paragraph E would be

added to incorporate the language of existing paragraph F of Article

VI: Inspections.

Existing paragraph D would be renumbered F, without making any

change in its meaning.

Existing Article VIII: Bonds

Proposed Revised Article IX: Bonds

This article would be renumbered as Article IX: Bonds to correspond

to the revised numbering of preceding articles.

ed above a proposed paragraph E would be

added to incorporate the language of existing paragraph F of Article

VI: Inspections.

Existing paragraph D would be renumbered F, without making any

change in its meaning.

Existing Article VIII: Bonds

Proposed Revised Article IX: Bonds

This article would be renumbered as Article IX: Bonds to correspond

to the revised numbering of preceding articles.

Existing paragraph A would be revised to delete reference to the

Regional Director because of organizational changes in OSM. Addition of

the new word ``performance'' in front of the word ``bond'' is necessary

to conform to the regulatory language. The phrase ``jointly payable to

both the United States and DEQ'', and the sentence ``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'' would be added to ensure

conformance with the provisions of Federal lands program regulations at

30 CFR 740.15(b).

Existing paragraph B would be expanded to provide DEQ with the

primary responsibility for approval and release of performance bonds.

The revised paragraph B would require OSM concurrence in the release by

DEQ of a performance bond on lands subject to an approved mining plan.

However, prior to such concurrence, OSM shall coordinate with other

Federal agencies that have authority over the lands involved. This

requirement would ensure the protection of interests of all Federal

agencies. DEQ would also be required to annually advise OSM of

adjustments to the performance bond as provided in the existing

paragraph B.

Proposed paragraph C would be added to safeguard the interests of

the U.S

concurrence, OSM shall coordinate with other

Federal agencies that have authority over the lands involved. This

requirement would ensure the protection of interests of all Federal

agencies. DEQ would also be required to annually advise OSM of

adjustments to the performance bond as provided in the existing

paragraph B.

Proposed paragraph C would be added to safeguard the interests of

the U.S. government, and provide that performance bonds will be subject

to forfeiture with the concurrence of OSM, in conformance with the

requirement of the State program, and OSM may not withhold its

concurrence unless DEQ's forfeiture decision is not in accordance with

the requirements and procedures of the State program.

Proposed paragraph D would be added to ensure consistency with

other cooperative agreements. This paragraph would seek to remind the

applicant, OSM, and DEQ that submission of a performance bond does not

satisfy the requirements of a Federal lease bond required by 43 CFR

3474, or the requirements of a Federal lessee protection bond pursuant

to section 715 of SMCRA. Distinct from the performance bond, the

Federal lease bond, made payable to the United States through BLM, is

required to be posted by the applicant for a coal lease to assure

compliance with the terms and conditions of a Federal coal lease,

whereas the Federal lessee protection bond, made payable to the United

States or the State, whichever is applicable, is required to be posted

by the applicant for a coal mine and reclamation permit for use and

benefit of a permittee or lessee of surface lands to secure payment of

any damages to crops or tangible improvements on Federal lands.

Existing Article IX: Designation of Lands as Unsuitable

as the Federal lessee protection bond, made payable to the United

States or the State, whichever is applicable, is required to be posted

by the applicant for a coal mine and reclamation permit for use and

benefit of a permittee or lessee of surface lands to secure payment of

any damages to crops or tangible improvements on Federal lands.

Existing Article IX: Designation of Lands as Unsuitable

Proposed Revised 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

This article would be renumbered and retitled as 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. The change in

numbering would ensure conformance with the revised numbering of

preceding articles. The change in article heading would reflect

expansion in the subject matter to incorporate regulatory requirements

that have been promulgated over the years since the execution of the

existing cooperative agreement. Proposed article X would consist of two

paragraphs.

Unsuitability Petitions

Existing paragraph A would be redesignated A. Unsuitability

Petitions, and would include two proposed subparagraphs.

Proposed subparagraph A.1 would include the opening language from

existing paragraph B stating that the authority to designate Federal

lands as unsuitable for mining, would be reserved to the Secretary. The

language in the second sentence of existing paragraph B would be

modified and included in proposed subparagraph A.1. The modified

language would state that unsuitability petitions would be filed with

OSM and would be processed in accordance with 30 CFR 769.

Proposed subparagraph A.2 would include the existing requirements

of paragraph A regarding cooperation between OSM and DEQ in processing

petitions to designate lands as unsuitable for mining

B would be

modified and included in proposed subparagraph A.1. The modified

language would state that unsuitability petitions would be filed with

OSM and would be processed in accordance with 30 CFR 769.

Proposed subparagraph A.2 would include the existing requirements

of paragraph A regarding cooperation between OSM and DEQ in processing

petitions to designate lands as unsuitable for mining. During

processing of such petitions, OSM would also be required to coordinate

with, and solicit comments from the appropriate Federal land management

agency.

Valid Existing Rights (VER) and Compatibility Determinations

Existing paragraph B would be redesignated B. Valid Existing Rights

(VER) and Compatibility Determinations.

As stated above the provisions of existing paragraph B would be

incorporated in subparagraph A.1. Proposed paragraph B would include

five proposed subparagraphs that would describe roles and

responsibilities of OSM and DEQ in VER and compatibility determinations

for coal mining operations pursuant to the requirements of section

522(e) of SMCRA.

Proposed subparagraph B.1 would provide that the Secretary will

make the VER determination for Federal lands within the boundaries of

areas specified under section 522(e)(1) of SMCRA. For coal mining

operations conducted both on Federal and non-Federal lands, the

Secretary will make the VER determinations for the Federal lands and

DEQ will make such determinations for the State and private lands.

Subparagraph B.2 would provide that the Secretary will make VER

determinations for Federal lands within the boundaries of any area

specified in section 522(e)(2), and OSM will process requests for

determination of compatibility for these areas

ral lands, the

Secretary will make the VER determinations for the Federal lands and

DEQ will make such determinations for the State and private lands.

Subparagraph B.2 would provide that the Secretary will make VER

determinations for Federal lands within the boundaries of any area

specified in section 522(e)(2), and OSM will process requests for

determination of compatibility for these areas.

Subparagraph B.3 would provide that DEQ will make the VER

determination for the publicly-owned park or places included in the

National Register of Historic Places (NRHP) protected under section

522(e)(3) of SMCRA; DEQ will consult with the State Historic

Preservation Officer to determine if the proposed operation will

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

This subparagraph would also provide that surface coal mining and

reclamation operations may be permitted on Federal lands protected

under section 522(e)(3) of SMCRA if jointly approved by DEQ, and the

Federal, State, or local agency with jurisdiction over the publicly-

owned park or the historic place, and DEQ will coordinate with these

agencies for developing mutually acceptable permit conditions to

mitigate environmental impacts on such park and place.

Subparagraph B.4 would provide that DEQ will make the VER

determination, on Federal lands for all areas specified in section

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

Subparagraph B.5 summarizes that whenever DEQ will make VER

determinations for Federal lands, DEQ will consult with OSM and the

appropriate Federal agency.

Existing Articles X through XII would be renumbered as proposed

Articles XI through XIII. The word ``cooperative'' before the word

``agreement'', however, would be deleted from the heading of each

Article in conformance with the introductory language preceding Article

I. No substantive changes are proposed.

Existing Article XIII: Changes in State or Federal Standards

ropriate Federal agency.

Existing Articles X through XII would be renumbered as proposed

Articles XI through XIII. The word ``cooperative'' before the word

``agreement'', however, would be deleted from the heading of each

Article in conformance with the introductory language preceding Article

I. No substantive changes are proposed.

Existing Article XIII: Changes in State or Federal Standards

Proposed Revised Article XIV: Changes in State or Federal Standards

Article XIII would be renumbered to read Article XIV: Changes in

State or Federal Standards. It would include two paragraphs that would

include revisions in existing language to increase clarity and to add

relevant statutory and regulatory cites.

Existing Article XIV: Changes in Personnel and Organization

Proposed Revised Article XV: Changes in Personnel and Organization

Article XIV would be renumbered to read: Article XV: Changes in

Personnel and Organization. Paragraph A of this Article would include

the language of existing Article XIV but would be revised to make minor

editorial changes to increase clarity. The new paragraph B would be

added to obviate the need for changes to this agreement in the event of

any changes in the State Act that may transfer administration of this

Agreement to another State agency. In that event, all references to DEQ

in this agreement would apply to that agency.

Existing Article XV: Reservation of Rights

Proposed Revised Article XVI: Reservation of Rights

Article XV would be renumbered to read: Article XVI: Reservation of

Rights. Existing language would be revised to make minor editorial

changes to delete references to several statutes without changing its

meaning.

Article XVI: Definitions would be renumbered as proposed Article

III: Definitions and would be revised to include additional 30 CFR

references.

III. Procedural Determinations

1. Executive Order 12866

enumbered to read: Article XVI: Reservation of

Rights. Existing language would be revised to make minor editorial

changes to delete references to several statutes without changing its

meaning.

Article XVI: Definitions would be renumbered as proposed Article

III: Definitions and would be revised to include additional 30 CFR

references.

III. Procedural Determinations

1. Executive Order 12866

This proposed rule is exempt from review by the Office of

Management and Budget (OMB) 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 under the Paperwork Reduction Act (44 U.S.C. 3507 et

seq.).

ides 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 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 rule would amend 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

under the permanent regulatory program. The proposed rulemaking would

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, and would eliminate duplicative permitting requirements,

thereby increasing governmental efficiency, which is one of the

purposes of the cooperative agreement. This amendment would also update

the cooperative agreement to reflect current regulations and agency

structures.

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.

7. Author

The principal author of these proposed regulations 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

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 3, 1997.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

tity or the private sector.

7. Author

The principal author of these proposed regulations 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

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 3, 1997.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

For the reasons set out in the preamble, 30 CFR part 926 is

proposed to be amended as follows:

PART 926--[AMENDED]

1. The authority citation for Part 926 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq., Public Law 95-87.

2. Section 926.30 is revised to read as follows:

Sec. 926.30 State-Federal 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. Sec. 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 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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s 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).

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

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

``Prospecting'' in the Montana State Program.

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

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) has, and

shall continue to have, authority under State law to 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 rule making in

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

until terminated as provided in Article XI.

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

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

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

Article III: Definitions

ays after final publication as rule making in

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

until terminated as provided in Article XI.

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

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

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

Article III: Definitions

The terms 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 cooperative 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 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

A. The Governor and the Secretary affirm that they will comply

with all provisions of this Agreement.

B. Funds

rms 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

A. The Governor and the Secretary affirm that they will comply

with all provisions of this Agreement.

B. 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.

C. Reports and Records

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.

D. Personnel

on 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.

D. 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.

E. 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.

F. Permit Application Fees and Civil Penalties

The amount of the fee accompanying an application for a permit

to conduct surface coal mining and reclamation operations on Federal

lands in Montana 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 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

A. Receipt and Distribution of the PAP or Application for Transfer,

Assignment or Sale of Permit Rights

ncial Status Report submitted pursuant to 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

A. Receipt and Distribution of the PAP or Application for Transfer,

Assignment or Sale of Permit Rights

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 application for

transfer, assignment or sale of permit rights. The PAP or

application for transfer, assignment or sale of permit rights 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 supplemental 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 Mineral Leasing Act (MLA)

of 1920, 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 application for transfer, assignment or

sale of permit rights, DEQ shall ensure that an appropriate number

of copies of the PAP or application for transfer, assignment or sale

of permit rights are provided to OSM, the Federal land management

agency, and any other appropriate Federal agency.

B. Review of the PAP or Application for Transfer, Assignment or Sale of

Permit Rights

1. DEQ is responsible for:

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

ermit rights, DEQ shall ensure that an appropriate number

of copies of the PAP or application for transfer, assignment or sale

of permit rights are provided to OSM, the Federal land management

agency, and any other appropriate Federal agency.

B. Review of the PAP or Application for Transfer, Assignment or Sale of

Permit Rights

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 application for transfer,

assignment or sale of permit rights and communications regarding all

decisions and determinations with respect to the PAP or application

for transfer, assignment or sale of permit rights;

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

disapproval of the permit application component of the PAP or

application for transfer, assignment or sale of permit rights 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 application for transfer,

assignment or sale of permit rights, unless otherwise agreed in

writing by Federal agencies. DEQ shall request such Federal agencies

to provide to 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;

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

retain the responsibility for the exceptions in 30 CFR

740.4(c)(7)(i) 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 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)(i) through (vii);

ich includes

written findings indicating that 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)(i) 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

omments 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 Mineral Leasing Act (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

13, the Federal

lands program, the Mineral Leasing Act (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 application for transfer, assignment or sale of permit rights

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 application for transfer, assignment or

sale of permit rights 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 application for transfer, assignment or sale of

permit rights. 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

application for transfer, assignment or sale of permit rights

correspondence

with the applicant and any information received from the applicant

regarding the PAP or application for transfer, assignment or sale of

permit rights. 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

application for transfer, assignment or sale of permit rights. 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

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 NRHP, 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 Application for Transfer, Assignment or Sale

of Permit Rights

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

or disapproval of permit application component of the PAP or

application for transfer, assignment or sale of permit rights 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 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

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 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 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, 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 National Register

of Historic Places (NRHP) which would be adversely affected by the

surface coal mining and reclamation operations.

Article VII: Inspections

AP, 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 National Register

of Historic Places (NRHP) 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

er 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

ive 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 and 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 bond 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

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 advise OSM of adjustments to the performance bond.

C. Performance bonds will be subject to forfeiture with the

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

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, 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

lands within the boundaries of any areas

specified under section 522(e)(1) of SMCRA, 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

determination. 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

NRHP.

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

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

determines it 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

edures 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 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.

Dated:

Governor of Montana

Dated:

Secretary of the Interior

Appendix A

th 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.

Dated:

Governor of Montana

Dated:

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 et 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.

Secs. 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

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. 97-582 Filed 1-9-97; 8:45 am]

BILLING CODE 4310-05-M