[Federal Register Volume 64, Number 14 (Friday, January 22, 1999)]
[Rules and Regulations]
[Pages 3604-3611]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1445]
[[Page 3603]]
_______________________________________________________________________
Part III
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 926
Montana Regulatory Program and Abandoned Mine Land Reclamation Plan;
Final Rule
Federal Register / Vol. 64, No. 14 / Friday, January 22, 1999 / Rules
and Regulations
[[Page 3604]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SPATS No. MT-017-FOR]
Montana Regulatory Program and Abandoned Mine Land Reclamation
Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving, with certain exceptions and additional requirements, a
proposed amendment to the Montana regulatory program (hereinafter, the
``Montana program'') and abandoned mine land reclamation plan
(hereinafter, the ``Montana plan'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA). Montana proposed statutory
revisions pertaining to the designation of the Montana State Regulatory
Authority and the reclamation agency SMCRA, statutory definitions of
``Prospecting'' and ``Prime farmland,'' revegetation success criteria
for bond release, prospecting under notices of intent, and permit
renewal. The amendment was intended to revise the Montana program to be
consistent with the corresponding Federal regulations and SMCRA, as
amended by the Abandoned Mine Reclamation Act of 1990 (Pub. L. 101-
508), to provide additional flexibility afforded by the revised Federal
regulations, to provide additional safeguards, to clarify ambiguities,
and to improve operational efficiency.
EFFECTIVE DATE: January 22, 1999.
FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-
6550; Internet address: gpadgett@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program and Plan
On April 1, 1980, the Secretary of the Interior conditionally
approved the Montana program. General background information on the
Montana program, including the Secretary's findings, the disposition of
comments, and conditions of approval of the Montana program can be
found in the April 1, 1980, Federal Register (45 FR 21560). Subsequent
actions concerning Montana's program and program amendments can be
found at 30 CFR 926.15, 926.16, and 926.30.
On November 24, 1980, the Secretary of the Interior conditionally
approved the Montana plan as administered by the Department of State
Lands. General background information on the Montana program, including
the Secretary's finding, the disposition of comments, and conditions of
approval of the Montana plan can be found in the October 24, 1980,
Federal Register (45 FR 70445). Subsequent actions concerning Montana's
program and program amendments can be found at 30 CFR 926.25.
II. Proposed Amendment
By letter dated May 16, 1995, Montana submitted a proposed
amendment to its program and plan (Administrative Record No. MT-14-01)
pursuant to SMCRA (30 U.S.C. 1201 et seq.). Montana submitted the
proposed amendment in response to required program amendments at 30 CFR
926.16 (f) and (g), and at its own initiative. The provisions of the
Montana Code Annotated (MCA) that Montana proposed to revise were: 82-
4-203, MCA (Definitions); 82-4-204, MCA (Rulemaking authority); 82-4-
205, MCA (Administration by department); 82-4-221, MCA (Mining permit
required); 82-4-223, MCA (Permit fee and surety bond); 82-4-226, MCA
(Prospecting permit and the definition of ``Prospecting''); 82-4-227,
MCA (Refusal of permit); 82-4-231, MCA (Submission of and action on
reclamation plan); 82-4-232, MCA (Area mining--bond--alternate plan);
82-4-235, MCA (Inspection of vegetation--final bond release); 82-4-239,
MCA (Reclamation); 82-4-240, MCA (reclamation after bond forfeiture);
82-4-242, MCA (funds received by regulatory authority); 82-4-251, MCA
(Noncompliance--suspension of permits); and 82-4-254, MCA (Violation--
penalty--waiver).
OSM announced receipt of the proposed amendment in the June 5,
1995, Federal Register (60 FR 29521), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (Administrative Record No. MT-14-06).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on July 5, 1995.
During its review of the amendment, OSM identified concerns
relating to: 82-4-203, MCA, subsections (6), (10), and (12) (the
definitions of ``Board'', ``Commissioner'', and ``Director''); 82-4-
205, MCA (Board rules and Administration by department); 82-4-235, MCA
(Inspection of vegetation--final bond release); 82-4-203, MCA,
subsection (25) and 82-4-226, MCA, subsection (8) (the definition of
``Prospecting'', prospecting permit and notices of intent). OSM also
addressed outstanding required program amendments at 30 CFR 926.16(h),
(i), and (j) as they related to prospecting. OSM notified Montana of
the concerns by letter dated December 5, 1996 (Administrative Record
No. MT-14-08).
Montana responded in a letter dated November 6, 1997, by submitting
a revised amendment and additional explanatory information
(Administrative Record No. MT-14-11). The revisions to the amendment
consisted of new statutory language enacted by the 1997 Montana
Legislature. Montana proposed revisions to, and additional explanatory
information concerning: 82-4-203, subsections (6), (10), and (12), 2-
15-111, 2-15-121, 2-15-3501, and 2-15-3502, MCA (the definitions of
``Board'', ``Commissioner'', and ``Director''); 82-4-204 and 82-4-205,
MCA (Board rules and Administration by department); 82-4-235, MCA
(Inspection of vegetation--final bond release); 82-4-203, MCA,
subsection (25) and 82-4-226, MCA, subsection (8) (the definition of
``Prospecting'', prospecting permit and notices of intent to prospect),
and required program amendments at 30 CFR 926.16(h), (i) and (j).
[[Page 3605]]
Based upon the revisions to, and additional explanatory information
for, the proposed program amendment submitted by Montana, OSM reopened
the public comment period in the December 5, 1997, Federal Register (62
FR 64327; Administrative Record No. MT-14-12) and provided an
opportunity for a public hearing or meeting on its substantive
adequacy. Because no one requested a public hearing or meeting, none
was held. The public comment period ended on December 22, 1997.
III. Director's Findings
As discussed below, the Director finds, in accordance with SMCRA,
30 CFR 732.15, 732.17, 884.14, and 884.15, with certain exceptions and
additional requirements, that the proposed program and plan amendments
submitted by Montana on May 16, 1995, and as revised and supplemented
with additional explanatory information on November 6, 1997, is no less
effective and the corresponding Federal regulations and no less
stringent than SMCRA. Accordingly, the Director approves the proposed
amendment.
1. Nonsubstantive Revisions to Montana's Statutes
Montana proposed revisions to the following previously-approved
statutes that are nonsubstantive in nature and consist of minor
editorial, punctuation, grammatical, and recodification changes
(corresponding Federal regulations or SMCRA provisions are listed in
parentheses):
82-4-203, MCA, subsections (1), (2), (3), (4), (7), (8), (10),
(11), (13), (14), (15), (16), (17), (18), (19), (20), (21), (22),
(23), (26), (27), (28), (29), (30), (31), (32), (33), (34), and
(35), (SMCRA Section 701, 30 CFR 700.5 and 701.5), Definitions.
82-4-221, MCA, Subsections (2) and (3), (SMCRA Section
506(d)(3)), Mining permit required;
82-4-226, MCA, subsections (1) and (2), (30 CFR 772.12),
Prospecting permit;
82-4-227, MCA, subsections (1), (2), (5), (7), (8), (9), (11),
and (12), (SMCRA Section 510), Refusal of permit;
82-4-231, MCA, subsections (1) and (6), (SMCRA Sections 508,
510, 513, and 515, and 39 CFR 773), Submission of and action on
reclamation plan;
82-4-232, MCA, subsection (6), (SMCRA Sections 508, 509, and
515), Area mining required--bond--alternative; and
82-4-251, MCA, subsections (6) and (7), (SMCRA Section 521),
Noncompliance--suspension of permits.
Because the proposed revisions to these previously-approved
statutes are nonsubstantive in nature, the Director finds that these
proposed Montana statutory revisions are no less effective than the
Federal regulations and no less stringent than SMCRA. The Director
approves these proposed statutory revisions.
2. MCA 82-4-203(6) and (12) and MCA 2-15-3502, Definitions of ``Board''
and ``Department''; MCA 2-15-3501, Definition of ``Director''; and MCA
82-4-204 and 82-4-205, Board Rules and Administration by Department
Montana Senate Bill 234 (SB 234) proposes to revise the
environmental and natural resource functions of the state government
to, among other things, replace the former Board of Land Commissioners
with the new Board of Environmental Review at MCA 82-4-203(6), and
transfer the rulemaking powers of the former Board of Land
Commissioners to the Board of Environmental Review. All other powers of
the former Board of Land Commissioners would go the renamed Department
of Environmental Quality.
Montana proposes to limit the Board of Environmental Review at MCA
82-4-204 to adopting general rules pertaining to strip mining and
underground mining; and adopting rules relating to the filing of
reports, issuance of permits, monitoring, and other administrative and
procedural matters.
At MCA 82-4-205, Montana proposes to give the Department of
Environmental Quality, three duties previously held by the Board of
State Lands, in addition to retaining duties previously assigned to the
former Department of State Lands. Those new duties are: (1) The
issuance of orders requiring an operator to adopt remedial measures
necessary to achieve compliance; (2) the issuance of a final order
revoking a permit for failure to comply with a notice of noncompliance,
an order suspension, or an order requiring remedial measures; and (3)
conducting hearings on the provisions or rules adopted by the board.
The effect is that the newly created Department of Environmental
Quality will increase its responsibilities for the Montana coal mining
and reclamation program over those previously held by the former
Department of State Lands. In contrast, the newly created Board of
Environmental Review would retain diminished responsibilities over
those previously held by the Board of State Lands.
In revising the Montana statutes to reflect the reorganized duties
of the Board of Environmental Review and the Department of
Environmental Quality, Montana has changed the terminology in its
statutes to delete the reference to ``Commissioner'' and insert, as
appropriate, ``Board'', ``Department'', or ``Director.'' Specifically,
Montana proposed to delete the definition of ``Commissioner'' at former
MCA 82-4-203(10) and use the term ``Director.'' Montana proposed to
change the statutory definition of ``Department'' at recodified MCA 82-
4-203(12) to refer to the Department of Environmental Quality, instead
of the former Department of State Lands. The cross-reference to
``Article X, section 4, of the constitution of this state'' in the
definition of ``Board'' at MCA 82-4-203(6) was changed to ``section
21''. The cross-reference to ``Title 2, chapter 15, part 32'' in the
definition of ``Department'' at proposed MCA 82-4-203(12) was changed
to ``section 20''. Statutes which were revised to reflect these changes
were: MCA 82-4-223(2) and (3), 82-4-226(8), 82-4-227(3) and (4), 82-4-
231(9) and (10), 82-4-232(7), 82-4-240, 82-4-242, 82-4-251(1), (2),
(3), (4), (5), and (8), and 82-4-254(1), (2), and (3).
In response to these proposed statutory revisions, OSM sent Montana
an issue letter dated December 5, 1996 (Administrative Record No. MT-
14-08), which requested: (1) copies of referenced sections 20 and 21;
(2) clarification and additional information on the State's
reorganization as required by 30 CFR 732.17(b), specifically those
items mentioned at 30 CFR 731.14(d), (e), (f), and (g), and 732.15; and
(3) a definition of ``Director.''
In its response to OSM's issue letter, Montana submitted revised
statutes at MCA 2-15-3501 defining the ``Department of environmental
quality'', MCA 2-15-3502 defining the ``Board of environmental
review'', MCA 2-15-111 describing the appointment and qualifications of
department heads, and MCA 2-15-121 describing the administrative
allocation for agencies under the various departments in Montana
(Administrative Record No. MT-14-11). With respect to item #1 of the
issued letter, Montana deleted the previously referenced sections 20
and 21, and changed the references to MCA 2-15-3501 and 2-15-3502,
respectively. Montana also submitted MCA 2-15-111, cross-referenced in
MCA 2-15-3501, to further explain the duties of the department heads.
MCA 2-15-121, cross-referenced in MCA 2-15-3502, addresses the
administrative allocations of agencies under departments in Montana. In
response to item #3 in the issue letter, Montana provided MCA 2-15-3501
to define ``Director.''
Montana stated, in response to item #2 of the December 5, 1996,
issue letter, that:
[[Page 3606]]
During the reorganization, the Coal and Uranium Bureau was
removed from the Reclamation Division, Montana Department of State
Lands and transferred intact to the Permitting and Compliance
Division, Department of Environmental Quality. The Coal and Uranium
Bureau and the Opencut Bureau where then combined to form a new
bureau--Industrial and Energy Minerals Bureau (organization chart
attached). In the formation of the new bureau, the staff and
functions of the coal and uranium mining program remained intact and
similar to what existed prior to the reorganization. Since the
program was moved intact, the civil penalty assessment and
collection authority and provisions for the administrative and
judicial review of State program actions were maintained in the
Montana Code Annotated and the Administrative Rules of Montana.
Therefore, no changes to these provisions were made.
SMCRA and its implementing regulations do not require that a
primacy State organize its regulatory agency in any specific manner as
long as the State regulatory authority has sufficient authority to
implement and enforce the State program. The reconfiguration of the
Montana coal mining program under the renamed Department of
Environmental Quality is substantially the same as that under the
former Department of State Lands, which was in existence when the
Montana coal program was approved on April 1, 1980.
OSM finds these statutory revisions, as explained by the cross-
referenced statutes subsequently submitted, to adequately clarify the
Montana reorganizations of its environmental and natural resource
departments in SB 234. Therefore, the Director finds that the revised
and recodified statutes are no less effective than the corresponding
Federal regulations at 30 CFR Chapter VII and 43 CFR Part 4. The
Director approves the proposed amendment, specifically the revised
statutes at: MCA 2-15-3501; 2-15-3502; 82-4-203 (6) and (12); 82-4-204;
82-4-205; 82-4-223(2) and (3); 82-4-226 (8); 82-4-227(3) and (4); 82-4-
231 (9) and (10); 82-4-232(7); 82-4-240; 82-4-242; 82-4-251 (1), (2),
(3), (4), (5), and (8); and 82-4-254 (1), (2), and (3).
3. MCA 82-4-203 (24), Definition of ``Prime Farmland''
Montana proposes to revise the definition of ``Prime farmland'' by
deleting the list of criteria to be taken into consideration by the
U.S. Secretary of Agriculture in part (a), and instead referencing 7
CFR Part 657 in the Federal Register (Vol. 4, No. 21) which defines the
same criteria. At part (b), Montana proposes to delete the reference to
the aforementioned Federal Register notice and to reference land that
``historically has been used for intensive agricultural purposes.''
The Federal definition of ``Prime farmland'' at 30 CFR 701.5 and
SMCRA Section 701 (20) is similar to the Montana definition in that
both consider criteria prescribed by the U.S. Secretary of Agriculture
at 7 CFR Part 657 to define ``Prime farmland.'' However, where the
proposed Montana definition references land that ``historically has
been used for intensive agricultural purposes'', the Federal definition
references lands which have been ``Historically used for cropland.''
The Montana program does not define the phrase ``historically has been
used for intensive agricultural purposes.'' When the Montana program
was approved with this phrase, part (b) also reference the criteria of
7 CFR Part 657 as contained in the Federal Register notice (Vol. 4, No.
21). With the proposed removal of the Federal Register criteria in part
(b), the interpretation of part (b) of the Montana definition of
``Prime farmland'' becomes unclear.
The Montana program does define the phrase ``Historically used for
cropland'' at ARM 26.4.301(52), although this phrase is not used in the
definition of ``Prime farmland.'' Both ARM 26.4.301(52), the definition
of ``Historically used for cropland'' and 30 CFR 701.5, the Federal
definition of ``Historically used for cropland'' contain the same two
``Prime farmland'' criteria: (1) Lands used for prime farmland for any
5 of the 10 years immediately preceding acquisition for coal mining;
and (2) a regulatory authority determination based on additional
cropland history. However, the Montana program does not contain the
third part of the Federal definition, which states ``lands that would
have likely been used as cropland for any 5 out of the last 10 years,
immediately preceding such acquisition but for the same fact of
ownership or control of the land unrelated to the productivity of the
land.''
Therefore, because the Montana definition of ``Prime farmland''
proposes to rely exclusively on an undefined phrase in part (b), the
Director finds the proposed definition to be less effective than the
Federal counterpart at 30 CFR 701.5 and disapproves this revision. In
addition, the Director places a required program amendment on the
Montana program to revise the definition of ``Historically used for
cropland'' at ARM 26.4.301(52) to include the criteria concerning
``lands that would likely have been used as cropland for any 5 out of
the last 10 years, immediately preceding such acquisition but for the
same fact of ownership or control of the land unrelated to the
productivity of the land.''
4. MCA 82-4-203(25) and 82-4-226(8), Definition of ``Prospecting''
In response to the required program amendment codified at 30 CFR
926.16(f), Montana submitted both Senate Bill 234 and House Bill 0162
which defined ``Prospecting'' with different language. OSM, in the
issue letter to Montana dated December 5, 1996 (Administrative Record
No. MT-14-08), requested that Montana clarify which proposal the State
would like OSM to consider.
Montana responded by letter dated November 6, 1997 (Administrative
Record No. MT-14-11), with a 1997 revised version of the definition of
``Prospecting'' at MCA 82-4-203(25). The revised definition responds to
OSM's concerns in the required program amendment at 30 CFR 926.16(f)
by: (1) Including the activities of gathering surface or subsurface
geologic, physical, or chemical data by mapping, trenching, or
geophysical or other techniques necessary to determine the location,
quantity, or quality of a mineral deposit (coal or uranium); (2)
clarifying that an activity need not involve surface disturbance to be
considered ``prospecting''; and (3) removing the word ``natural'' to
refer to mineral deposit at MCA 82-4-226(8) and 82-4-203(25) so that
the definition would include such human-made structures as coal waste
piles.
The Director finds that Montana's revised definition of
``Prospecting'' at MCA 82-4-203(25) to be no less effective than the
Federal definition of ``Coal exploration'' at 30 CFR 701.5 and no less
stringent that SMCRA Section 512. The Director approves the proposed
amendment and removes the required program amendment at 30 CFR
926.16(f).
5. MCA 82-4-239, Reclamation
In this abandoned mine land reclamation (AMLR) statute, Montana has
made revisions to reflect the reorganized duties of the Board of
Environmental Review and the Department of Environmental Quality.
Montana has changed the wording to delete ``Board'' and insert
``Department'' as appropriate. However, Montana has not submitted an
organizational chart for its reorganized AMLR plan under the renamed
Department of Environmental Quality. The organizational chart submitted
in the November 6, 1997, revised amendment with explanatory information
(Administrative Record No. MT-14-08) clarifies the current State
[[Page 3607]]
organization for the Title V (Regulatory) program, not the Title IV
(AMLR) plan.
In the final rule dated July 19, 1995 (60 FR 36998), concerning
Montana's AMLR plan, OSM approved a renaming of the former Department
of State Lands as the Department of Environmental Quality. However, the
organizational chart (Exhibit A) submitted in that amendment
(Administrative Record No. MT-AML-01; March 22, 1995) showed no
renaming or reorganization of the Divisions and Bureaus below the
Departmental level. Supporting documentation from Governor Marc Racicot
dated June 15, 1995, and from the Department's Chief Legal Counsel,
John North, dated June 9, 1995, only referred to the name change to the
Department of Environmental Quality, and did not specify a renaming of
Divisions and Bureaus, nor a change in the State organizational chart
concerning the AMLR plan (Administrative Record No. MT-AML-18).
At this time, it is unclear what the new reorganization of the
Montana AMLR plan consists of, as well as which AMLR rules and statutes
have been revised as a result of the 1995 State reorganization. During
the Montana reorganization, the regulatory (Title V) and the abandoned
mine land reclamation (Title IV) programmatic rules were recodified
from ARM 26.4 to ARM 17.24. This new recodification is reflected in the
November 6, 1997, Montana submittal (Administrative Record No. MT-14-
11). However, OSM has never approved the recodification as Montana
removed some of its abandoned mine land reclamation provisions without
explanation. Before OSM can approve the recodification, the missing
AMLR rules must be explained. The regulatory program (Title V) was
recodified intact.
Therefore, the Director is deferring approval on the revision to
MCA 82-4-239 until these issues are clarified. The Director is
requiring that Montana submit and receive approval on the AMLR
reorganization initiated in 1995 and revised by the 1997 Montana
legislature, as well as submit and obtained approval on all revised
AMLR statutes and rules, subsequent to final rule Federal Register
notice, 60 FR 36998, dated July 19, 1995.
6. MCA 82-4-221(1), Mining Permit Required
Montana proposes to require that an application for permit renewal
be filed at least 240 days, and no more than 300 days, prior to permit
expiration. Both the State and Federal statutes provide a procedural
time period for the involved parties to file an application for permit
renewal prior to the expiration of the valid permit. Section 506(d)(3)
of SMCRA and 30 CFR 774.15(b)(1) only require that such filing shall be
made at least 120 days prior to the expiration of the valid permit. The
Federal requirement, unlike the State's proposal, does not set a limit
on how far in advance an applicant may submit an application for permit
renewal. This State proposal is a procedural requirement which provides
involved parties with similar rights and remedies as those provided by
SMCRA at Section 506(d)(3) and 30 CFR 774.15(b)(1). Accordingly, the
Director finds that the State's proposed revision is no less stringent
than SMCRA and no less effective than the Federal regulations at 30 CFR
774.15(b)(1). The Director approves the proposed amendment.
7. MCA 82-4-226(8), Prospecting Permits and Notices of Intent
In the February 1, 1995, final rule Federal Register (60 FR 6006),
OSM placed three required program amendments on the Montana program
concerning a prospecting permit at MCA 82-4-226(8). The required
program amendment at 30 CFR 926.16(h) required that Montana prohibit
prospecting under notices of intent when more than 250 tons of coal are
to be removed. The required program amendment at 30 CFR 926.16(i)
required that Montana delete the word ``reasonable'' in the final
sentence of MCA 82-4-226(8). The required program amendment at 30 CFR
926.16(j) required that Montana provide authority for the inspection of
monitoring equipment and prospecting methods for prospecting conducted
under notices of intent, and access to and copying of any records
required by the Montana program on such prospecting operations, at any
reasonable time without advance notice upon presentation of appropriate
credentials, and to provide for warrant-less right of entry for
prospecting operations conducted under notices of intent, to be no less
effective in meeting SMCRA's requirements than 30 CFR 840.12(a) and
(b).
In the November 6, 1997, submittal (Administrative Record No. MT-
14-11), Montana modified its statute at MCA 82-4-226(8), and presented
additional explanatory information concerning prospecting, in order to
respond to the three required program amendments.
a. Prospecting (Coal Exploration) Under Notices of Intent
Montana proposed to revise MCA 82-4-226(8) to state that
prospecting that is not conducted in an area designated unsuitable for
coal mining, that is not conducted for the purposes of determining the
location, quality, or quantity of a mineral deposit, ``and that does
not remove more than 250 tons of coal'', is not subject to subsections
(1) through (7) (the requirements for a prospecting permit). ``In
addition, prospecting that is conducted to determine the location,
quality, or quantity of a mineral deposit outside an area designated
unsuitable, that does not remove more than 250 tons of coal, and that
does not substantially disturb the natural land surface is not subject
to subsections (1) through (7).''
The revisions made by Montana in the November 6, 1997, submittal
(Administrative Record No. MT-14-11), now restrict prospecting under a
notice of intent to those operations which remove less than 250 tons of
coal. The revisions meet the federal requirements at SMCRA Section
512(d) and 30 CFR Part 772 which require that coal exploration permits
be obtained when an exploration operation will remove more than 250
tons of coal, regardless of the intent of the prospecting (coal or
overburden) or the degree of disturbance. With these revisions, the
Montana program becomes no less stringent that SMCRA and no less
effective than the Federal regulations. The Director approves the
proposed amendment and removes the required program amendment at 30 CFR
926.16(h).
In addition to restricting prospecting operations under a notice of
intent to those which remove less than 250 tons of coal, the Montana
revisions at MCA 82-4-226(8) also restrict prospecting operations under
a notice of intent to those lands outside of an area designated as
``lands unsuitable.'' The Montana program now contains the same
provisions as the Federal counterpart at 30 CFR 772.11(a) and 772.12(a)
which prohibit coal exploration under a notice of intent, and require
an exploration permit, for any coal exploration on lands unsuitable,
regardless of whether the exploration ``substantially disturbs'' the
natural and surface. The Director finds the Montana revision at MCA 82-
4-226(8) to be no less effective than the Federal requirements at 30
CFR 772.11(a) and 772.12(a). The Director approves the revision.
[[Page 3608]]
b. Specification of Which Prospecting Activities Are Required To Meet
Performance Standards and Specification of Applicable Performance
Standards
In the February 1, 1995, Federal Register notice (60 FR 6006),
finding 5(b) requested that Montana clarify which performance standards
are applicable to prospecting operations. At that time, OSM approved
the revision to MCA 82-4-226(8) with the proviso that it not be
implemented until Montana had promulgated and OSM had approved a
definition of ``substantially disturb'' which was no less effective
than 30 CFR Part 772 and 30 CFR 701.5.
In its November 6, 1997, response (Administrative Record No. MT-14-
11), Montana stated that:
Section 82-4-226(8) * * * provides that lands substantially
disturbed under a notice of intent, * * * must be conducted in
accordance with the performance standards of the board's rules
regulating the conduct and reclamation of prospecting operations
that remove coal. Therefore, any prospecting that ``substantially
disturbs'' the land surface must comply with the same performance
standards, regardless of whether the prospecting is done pursuant to
a notice of intent or a prospecting permit.
Montana's explanation also lists the performance standards
contained in Chapter 10 of the Administrative Rules of Montana (ARM),
as those which apply to prospecting (coal exploration) operations. This
explanation meets the requirements of SMCRA Section 512(a) which
requires that all exploration which substantially disturbs the natural
land surface be conducted in accordance with the performance standards
of SMCRA Section 515.
Therefore, Montana has complied with the proviso in finding 5(b) in
the February 1, 1995, Federal Register notice (60 FR 6006). The
Director accepts the explanatory information provided by Montana. With
this explanation, the Montana program is no less stringent than SMCRA
in meeting performance standards for coal exploration operations.
c. Right of Entry To Inspect
At 30 CFR 926.16(i), OSM required that Montana delete the word
``reasonable'' from MCA 82-4-226(8) so that the State regulatory
program would have the authority to right of entry to any coal
exploration operation without advance notice, upon presentation of
appropriate credentials, and not limited to ``reasonable'' times. At 30
CFR 926.16(j), OSM required that Montana revise its program to provide
authority for the inspection of prospecting operations conducted under
notices of intent, and access to the records on such operations at any
reasonable time without search warrant.
In the November 6, 1997, response (Administrative Record No. MT-14-
11), Montana noted that the required program amendment changes to the
statutes had not been made. In lieu of making the statutory revisions,
the State argued that two existing rules respond to OSM's concerns.
Those rules are: ARM 26.4.1201 and 26.4.1202. ARM 26.4.1201, Frequency
of Inspections, requires ``such periodic partial or complete
inspections of prospecting operations as are necessary to enforce the
Act, the rules adopted pursuant thereto, and the permit.'' ARM
26.4.1202, Method of Inspections, states that ``Inspections must occur
without prior notice to the permittee, except for necessary on-site
meetings, be conducted on an irregular basis, and be scheduled to
detect violations on nights, weekends, and holidays.'' (Montana's
response actually references the rules at ARM 17.24.1201 and
17.24.1202, reflecting the State's 1996 rules recodification. Refer to
the discussion in Finding No. 5 above concerning the recodification.)
The existing rules at ARM 26.4.1201 and .1202 allow for State
inspections to take place at prospecting operations without prior
notice to the permittee and to be conducted on an irregular basis. OSM
interprets these rules as allowing inspections at other than
``reasonable'' times. In addition, these same rules would allow for
inspections of prospecting operations ``as are necessary to enforce the
Act, the rules adopted pursuant thereto, and the permit'', as well as
to ``collect evidence of violations and to file inspection reports
adequate to determine whether violations exist.'' OSM, therefore,
interprets these rules as providing sufficient ``authority for the
inspection of monitoring equipment and prospecting methods for
prospecting conducted under notices of intent, and access to and
copying of any records required by the Montana program on such
prospecting operations, at any reasonable time without advance notice
upon presentation of appropriate credentials, and to provide for
warrantless right of entry for prospecting operations conducted under
notices of intent.''
OSM believes that these rules address the concerns of the required
program amendments at 30 CFR 926.16 (i) and (j), as well as serve to
clarify the statute at MCA 82.4.226(8). The Director approves the
explanatory information presented by Montana and removes the required
program amendments at 30 CFR 926.16 (i) and (j).
8. MCA 82-4-235, Inspection of Vegetation--Final bond Release
In the May 16, 1995, submittal, Montana proposed to revise MCA 82-
4-235(1) to provide that final bond release may not be withheld on the
basis that introduced species compose a major or dominant component of
the reclaimed vegetation on lands which were seeded with a seed mix
approved to include substantial introduced species (applicable to both
pre- and post- SMCRA areas) (Administrative Record No. MT-14-01). This
proposal had the effect of allowing, in some circumstances, final bond
release when revegetation performance standards are not achieved.
However, OSM notified Montana in the December 5, 1996, issue letter
(Administrative Record No. MT-14-08) that SMCRA Section 519(c)(3)
requires that prior to final bond release, the operator must have
successfully completed all reclamation activities, including not only
planting the approved seed mix, but also achieving revegetation success
standards, OSM could not approve proposed MCA 82-4-235(1).
In the November 6, 1997, response to OSM's issue letter, Montana
deleted the sentence in subsection (1) which would have allowed, in
some circumstances, final bond release when revegetation performance
standards were not achieved (Administrative Record No. MT-14-11). The
remaining changes to proposed subsection (1) contain two non-
substantive wording changes. The first proposed revision to subsection
(1) is to make the timing of the final bond release inspection and
evaluation of permanent diverse vegetative cover, dependent upon an
application for final bond release, not upon the satisfactory stand,
itself, having been established. SMCRA, also, requires that the
regulatory authority conduct a performance bond release inspection upon
receipt of a notification and request from the permittee. Therefore,
the State revision is no less stringent than SMCRA.
The second proposed revision to subsection (1) is to change the
February 2, 1978, seeding date to May 3, 1978. This means that any
reclamation work such as augmented seeding, fertilizing, or irrigation
taking place after May 3, 1978 (previously February 2, 1978) may not
receive final bond release until at least 10 years after the last year
of such work. May 3, 1978, nine-months after the effective date of
SMCRA, is the date upon which, or after, all surface coal mining
operations on State-regulated
[[Page 3609]]
lands must be in compliance with the provisions of SMCRA, according to
SMCRA Section 502(c) and 30 CFR 710.11(a)(3)(ii). Therefore, the
Director finds this revision to be no less effective than the Federal
regulations and no less stringent than SMCRA. The effect of OSM's
approval is that the paragraph labeled ``82-4-235 (Effective on
occurrence of contingency) Inspection of vegetation--final bond
release'' in Montana's 1997 legislative amendment (Administrative
Record No. MT-14-11) would be approved.
Montana proposes to revise paragraph (2) of MCA 82-4-235 to provide
revised bond release criteria on revegetated lands seeded with mixtures
of introduced species on which coal was removed prior to May 3, 1978
(the effective date of SMCRA), or lands on which coal was not removed
or lands disturbed after May 2, 1978. Montana states the intent of this
provision is to provide revegetation success standards for lands which
were reclaimed using seed mixes containing introduced species during a
period (1970s and 1980s) when native seed mixes were in short supply.
Montana's proposed changes concern lands disturbed prior to the
effective date of SMCRA (August 3, 1997) and reclamation on those
lands. The changes do not conflict with any SMCRA requirement.
Therefore, the Director is approving MCA 82-4-235(1) and (2).
9. MCA 82-4-227(10), Coal Conservation Plan
OSM placed a required program amendment (30 CFR 926.16(g)) on
Montana in the February 1, 1995, Federal Register notice (60 FR 6006)
to modify its program to require that no permit or major permit
revision be approved unless the coal conservation plan affirmatively
demonstrate that failure to conserve coal will be prevented. OSM placed
the required program amendment on the Montana program due to a
typographic error which unintentionally resulted in a substantive
revision to state program amendment dated July 28, 1993, Administrative
Record No. MT-11-01.
In the May 16, 1995, submittal (Administrative Record No. MT-14-
01), Montana subsequently proposed a statutory revision at MCA 82-4-
227(10) which corrected the earlier error and restored the State
program to its previous statutory language. Therefore, the Director
finds the Montana revised statute to be no less effective than the
Federal requirement and approves the proposed language. The Director
removes the required program amendment at 30 CFR 926.16(g).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), 884.15(a), and 884.14(a)(2),
OSM solicited comments on the proposed amendment from various Federal
agencies with an actual or potential interest in the Montana program
and plan.
The Natural Resources Conservation Service responded on June 6,
1997, with the recommendation that reclaimed areas be fenced under
grazing conditions in order to ensure that stands of introduced species
and off-site native species become established (Administrative Record
No. MT-14-04). OSM responds that this is not required in either the
Montana program, or the Federal statutes or regulations. Therefore, to
require the fencing of reclaimed areas under grazing conditions would
be more stringent than either the Federal statutes or the regulations.
However, the requirement to fence reclaimed lands during the vegetation
establishment period is often placed on the permit by the State, OSM,
or other Regulatory Agency, and potentially even required by lease.
This is because protection of the revegetated area is in the operator's
best interest, since the operator will eventually be required to meet
revegetation success standards. OSM has forwarded the comments from the
Natural Resources Conservation Service to Montana for consideration.
The U.S. Army Corps of Engineers and the Bureau of Indian Affairs
had no objections to the proposed revisions (Administrative Record Nos.
MT-14-07 and MT-14-05).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Purusant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed amendment that relate to air or water quality standards
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251
et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. MT-14-03). The
proposed revisions did not relate to air quality or water quality, and
the EPA did not submit comments.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendments from the SHPO and ACHP (Administrative Record No.
MT-14-03). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, Montana's proposed amendment as
submitted on May 16, 1995, and as revised and supplemented with
additional explanatory information on November 6, 1997.
The Director approves, as discussed in: Finding No. 1, proposed MCA
82-4-203(1), (2), (3), (4), (7), (8), (10), (11), (13), (14), (15),
(16), (17), (18), (19), (20), (21), (22), (23), (26), (27), (28), (29),
(30), (31), (32), (33), (34), and (35), concerning Definitions;
proposed MCA 82-4-221 (2) and (3), concerning Mining permit required;
proposed MCA 82-4-226 (1) and (2), concerning Prospecting permit;
proposed MCA 82-4-227(1), (2), (5), (7), (8), (9), (11), and (12),
concerning Refusal of permit; proposed MCA 82-4-231 (1) and (6),
concerning Submission of and action on the reclamation plan; proposed
MCA 82-4-232(6), concerning Area mining--bond--alternative; proposed
MCA 82-4-251 (6) and (7), concerning Noncompliance--suspension of
permits; Finding No. 2, proposed MCA 82-4-203 (6) and (12), 82-4-204,
82-4-205, 82-4-223 (2) and (3), 82-4-226 (8), 82-4-227 (3) and (4), 82-
4-231 (9) and (10), 82-4-232 (7), 82-4-240, 82-4-242, 82-4-251 (1),
(2), (3), (4), (5), and (8), 82-4-254 (1), (2), and (3), 2-15-3501, and
2-15-3502, concerning the definitions of ``Board,'' ``Department,'' and
``Director,'' Board Rules and Administration by department; Finding No.
4, proposed MCA 82-4-203(25) and 82-4-226(8), concerning the definition
of ``Prospecting;'' Finding No. 6, proposed MCA 82-4-221(1), concerning
Mining permit required; Finding No. 7, proposed MCA 82-4-226(8),
concerning Prospecting permit and notices of intent; Finding No. 8,
proposed MCA 82-4-235, concerning Inspection of vegetation--final bond
release; and Finding No. 9, proposed MCA 82-4-227(10), concerning the
Coal conservation plan.
[[Page 3610]]
As discussed in Finding Nos. 3 and 5, the Director is disapproving
the proposed revisions to MCA 82-4-203(24) and deferring her decision
on the proposed revisions to MCA 82-4-239.
The Federal regulations at 30 CFR Part 926, codifying decisions
concerning the Montana program and plan, are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by Section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under Sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of Section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 926
Abandoned mine reclamation programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: December 28, 1998.
Russell F. Price,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 926--MONTANA
1. The authority citation for part 926 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 926.10(a) is revised to read as follows:
Sec. 926.10 State regulatory program approval.
* * * * *
(a) Montana Department of Environmental Quality, Industrial and
Energy Minerals Bureau, P.O. Box 200901, Helena, Montana 59620-0901,
(406) 444-1923.
* * * * *
3. Section 926.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 926.15 Approval of Montana regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
May 16, 1995......................... January 22, 1999....... MCA 2-15-3501, 2-15-3502, 82-4-203(1) through
(35), except (24); MCA 82-4-204; MCA 82-4-205;
MCA 82-4-221; MCA 82-4-223; MCA 82-4-226(8);
MCA 82-4-227; MCA 82-4-231; MCA 82-4-232(6) and
(7); MCA 82-4-235; MCA 82-4-240; MCA 82-4-242;
MCA 82-4-251; and MCA 82-4-254(1) through (3).
Decision deferred on MCA 82-4-239; MCA 82-4-
203(24) disapproved.
----------------------------------------------------------------------------------------------------------------
4. Section 926.16 is amended by removing and reserving paragraphs
(f), (g), (h), (i), and (j); and adding paragraph (k) to read as
follows:
Sec. 926.16 Required program amendments.
* * * * *
(k) By March 23, 1999, Montana shall revise ARM 26.4.301(52), or
otherwise modify its program, to require that the definition of
``Historically used for cropland'' address lands that would have been
likely used as cropland for any 5 out of the last 10 years, immediately
preceding such acquisition but for the same fact of ownership or
control of the land unrelated to the productivity of the land.
5. Section 926.21 is added to read as follows:
Sec. 926.21 Required abandoned mine land plan amendments.
Pursuant to 30 CFR 884.15, Montana is required to submit for OSM's
approval the following proposed plan amendment by the date specified.
[[Page 3611]]
(a) By March 23, 1999, Montana shall submit a copy of the State's
reorganization of the abandoned mine land reclamation plan, as well as
all statutes and rules relating to the abandoned mine land reclamation
plan revised subsequent to the final rule published in the Federal
Register dates July 19, 1995 (60 FR 36998).
(b) [Reserved].
[FR Doc. 99-1445 Filed 1-21-99; 8:45 am]
BILLING CODE 4310-05-M
