[Federal Register Volume 63, Number 146 (Thursday, July 30, 1998)]
[Rules and Regulations]
[Pages 40790-40798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20195]
[[Page 40789]]
_______________________________________________________________________
Part II
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; Final Rule
Federal Register / Vol. 63, No. 146 / Thursday, July 30, 1998 / Rules
and Regulations
[[Page 40790]]
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, Interior.
ACTION: Final rule.
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SUMMARY: The Governor of the State of Montana (Governor) and the
Secretary of the Department of the Interior (Secretary) are amending
the cooperative agreement between the Department of the Interior and
the State of Montana for the regulation of surface coal mining and
reclamation operations on Federal lands within Montana. Cooperative
agreements are provided for under section 523(c) of the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). These amendments clarify
Montana's responsibility for the administration of its approved State
program on lands subject to the Federal lands program in Montana.
EFFECTIVE DATE: August 31, 1998.
FOR FURTHER INFORMATION CONTACT:
Ranvir Singh, P.E., Western Regional Coordinating Center, Office of
Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320,
Denver, CO 80202-5733; Telephone: (303) 844-1489.
SUPPLEMENTARY INFORMATION:
I. Background
II. Summary of the Cooperative Agreement
Article I: Authority, Purposes, and Responsible Agencies.
Article II: Effective Date.
Article III: Definitions.
Article IV: Applicability.
Article V: Requirements for the Agreement.
Article VI: Review and Approval of the PAP or Application for
Transfer, Assignment or Sale of Permit Rights (Transfer
Application).
Article VII: Inspections.
Article VIII: Enforcement.
Article IX: Bonds.
Article X: Designating Land Areas Unsuitable for All or Certain
Types of Surface Coal Mining and Reclamation Operations and
Activities, and Valid Existing Rights and Compatibility
Determinations.
Article XI: Termination of the Agreement.
Article XII: Reinstatement of the Agreement.
Article XIII: Amendments to the Agreement.
Article XIV: Changes in State or Federal Standards.
Article XV: Changes in Personnel and Organization.
Article XVI: Reservation of Rights.
III. Procedural Determinations
1. Executive Order 12866--Regulatory Planning and Review
2. Regulatory Flexibility Act
3. Small Business Regulatory Enforcement Fairness Act
4. Unfunded Mandates
5. Executive Order 12630--Takings
6. Executive Order 12612--Federalism
7. Executive Order 12988--Civil Justice Reform
8. Paperwork Reduction Act
9. National Environmental Policy Act
10. Author
I. Background
On June 4, 1980, the Governor submitted a request for a cooperative
agreement between the Department of the Interior and the State of
Montana to give the State primacy in the administration of its approved
regulatory program on Federal lands within Montana. The Secretary
approved the cooperative agreement on January 19, 1981 (46 FR 20983,
April 8, 1981). The text of the existing cooperative agreement can be
found at 30 CFR 926.30.
On July 5, 1994, the Governor, pursuant to 30 CFR 745.14 and at the
recommendation of the Office of Surface Mining Reclamation and
Enforcement (OSM), submitted a proposed modified cooperative agreement
to address among other things, elimination of duplicative State-Federal
permitting efforts and streamlining of the permitting processes in
accordance with the revised Federal lands regulations at 30 CFR Part
740 (48 FR 6912, February 16, 1983). OSM published the requested
amendments in the January 10, 1997, Federal Register (62 FR 1408) and
announced a public comment period on the proposed rules until March 11,
1997. The notice also provided that, if requested, OSM would hold a
public hearing. However, since no person contacted OSM to express an
interest in testifying at the public hearing, no public hearing was
held. OSM reopened the comment period on the proposed rule for an
additional 30 days on April 7, 1997 (62 FR 16506) but did not receive
any written comments on the proposed amendments during either of the
two comment periods.
II. Summary of the Cooperative Agreement
No written comments were received from any person or organization
on the proposed amendments during the specified comments period.
Therefore, no changes are being made and the proposed amendments as
published in the Federal Register on January 10, 1997 (62 FR 1408) are
being adopted as final. A discussion of the terms of the cooperative
agreement follows.
Article I: Authority, Purposes, and Responsible Agencies
Paragraph A of Article I sets forth the legal authority for the
Montana Cooperative Agreement (Agreement); which is provided by section
523(c) of SMCRA. This paragraph states that the Agreement provides for
State regulation of coal exploration operations \1\ not subject to 43
CFR Group 3400, and surface coal mining and reclamation operations and
activities in Montana on Federal lands.
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\1\ The term ``Exploration operations'' is referred to as
``Prospecting'' in the Montana State Program.
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Paragraph B sets out the purposes of the Agreement.
Paragraph C states that the Department of Environmental Quality
(DEQ) is the agency responsible for administering the Agreement on
behalf of the Governor of Montana. Paragraph C also names OSM as the
agency responsible for administering the Agreement on behalf of the
Secretary.
Article II: Effective Date
Article II provides that after the Agreement has been signed by the
Secretary and the Governor, it will become effective 30 days after
publication in the Federal Register. It will remain in effect until
terminated as provided in Article XI.
Article III: Definitions
Article III provides that the terms and phrases used in the
Agreement, except the term ``permit application package (PAP),'' would
have the same meanings as they have in SMCRA, 30 CFR Parts 700, 701,
740, and the State Program. As explained in the proposed rule published
in the Federal Register on January 10, 1997, 62 FR 1408, 1409-1410,
additional language has been included in Article III to define the term
``Permit Application Package (PAP).'' Defining terms and phrases in
this manner ensures consistency between applicable regulations and the
Agreement. Where there is a conflict between the referenced State and
Federal definitions, the definitions used in the State Program will
apply, unless otherwise required by Federal regulation.
Article IV: Applicability
Article IV states that the laws, regulations, terms and conditions
of the State Program are applicable to Federal lands in Montana except
as otherwise stated in the Agreement, SMCRA, 30 CFR 740.4, 740.11(a),
and 745.13 or other applicable Federal laws, Executive Orders, or
regulations.
[[Page 40791]]
Article V: Requirements for the Agreement
Paragraph A mutually binds the Governor and the Secretary to comply
with all provisions of the Agreement.
Paragraph B.1 requires DEQ to devote adequate funds to the
administration and enforcement of the requirements of the State Program
on Federal lands. OSM is required to reimburse the State, as provided
in section 705(c) of SMCRA and 30 CFR 735.16, for the costs of
administration and enforcement if the State complies with the terms of
this Agreement and necessary funds have been appropriated to OSM. The
amount of such funds shall be determined in accordance with the
provisions of Chapter 3-10 and Appendix 111 of the Federal Assistance
Manual.
Paragraph B.2 provides that if DEQ applies for a grant but
sufficient funds have not been appropriated to OSM, OSM and DEQ shall
promptly meet to decide on appropriate measures that will insure that
surface coal mining and reclamation operations on Federal lands in
Montana are regulated in accordance with the State Program.
Paragraph B.3 provides that the funds reimbursed to DEQ under this
Agreement will be adjusted in accordance with the program income
provisions of 43 CFR Part 12.
Paragraph C provides that DEQ shall submit annual reports to OSM as
required by 30 CFR 745.12(d). The report will contain information about
DEQ's compliance with the terms of the Agreement. OSM and DEQ shall
exchange information that is developed under the Agreement, unless
prohibited by Federal or State law. OSM is also required to provide DEQ
with a copy of OSM's final evaluation report regarding State
administration and enforcement of the Agreement, and if the State has
any comments on the evaluation report, OSM shall attach those comments
to the report before sending it to the Congress or other interested
parties.
Paragraph D requires DEQ to maintain necessary personnel to fully
implement the Agreement in accordance with the provisions of SMCRA, the
Federal lands program, and the State Program.
Paragraph E provides that DEQ shall assure itself access to
equipment, laboratories, and facilities to perform all necessary
inspections, investigations, studies, tests, and analyses.
Paragraph F states that the amount of fee charged from an applicant
to obtain a permit to conduct surface coal mining and reclamation
operations, will be determined by the provisions of section 82-4-223(1)
of Montana Code Annotated (MCA), and the applicable provisions of
Federal law. Permit fee collected by DEQ will be considered program
income, and all permit fees and civil penalty fines shall be accounted
for in accordance with the requirements of 43 CFR Part 12. However,
civil penalty fines shall not be considered program income. The
Financial Status Report submitted by DEQ pursuant to the requirements
of 30 CFR 735.26 shall include the amount of permit application fees
collected and attributable to Federal lands during the State fiscal
year.
Article VI: Review and Approval of the PAP or Application for Transfer,
Assignment or Sale of Permit Rights (Transfer Application)
Paragraph A describes the process that DEQ is required to follow
for receipt and distribution of the PAP or transfer application.
Under paragraph A.1 an applicant proposing to conduct surface coal
mining and reclamation operations on Federal lands is required by DEQ
to submit an appropriate number of copies of a PAP or transfer
application to DEQ. Such PAP or transfer application shall be in the
form required by DEQ and shall, at a minimum, contain the information
required by 30 CFR 740, and any supplemental information required by
OSM, the Bureau of Land Management (BLM) and the Federal land
management agency.
Under paragraph A.2, upon receipt of the PAP or transfer
application, DEQ shall ensure that an appropriate number of copies of
the PAP or transfer application are provided to OSM, the Federal land
management agency and any other appropriate Federal agency.
Paragraph B describes the procedures for review of the PAP or
transfer application.
Paragraph B.1 describes the responsibilities of DEQ with respect to
review, analysis, and approval or disapproval of the permit application
component of the PAP or transfer application. As authorized in 30 CFR
740.4(c), DEQ is responsible for: (1) being the primary point of
contact with the applicant regarding the review of the PAP or transfer
application, and all decisions and determinations on the PAP or
transfer application; (2) analysis, review and approval or disapproval
of the PAP or transfer application; (3) obtaining comments and findings
of Federal agencies; (4) obtaining OSM's determination if a permit
revision issued by DEQ will constitute a mining plan modification
pursuant to 30 CFR 746.18, and informing the applicant of such
determination; (5) consulting with and obtaining the consent, as
necessary, of the Federal land management agency as required by 30 CFR
740.4(c)(2); (6) consulting and obtaining the consent, as necessary, of
BLM as required by 30 CFR 740.4(c)(3); (7) approval and release of
performance bonds, and approval and maintenance of liability insurance;
(8) review and approval of exploration operations as provided in 30 CFR
740.4(c)(6); (9) preparation of documentation to assist OSM in assuring
compliance with the requirements of the National Environmental Policy
Act (NEPA) and preparation of a State decision package when a mining
plan action is required pursuant to 30 CFR 746.18. In the proposed
rulemaking, paragraph B.1.a(2) provided, among other things, that DEQ
is responsible for the analysis, review, and approval, conditional
approval, or disapproval of the permit application component of the PAP
or the transfer application for surface coal mining and reclamation
operations on Federal lands in Montana.
In ``Article III: Definitions'' of the proposed rule, the term PAP
was defined, for purposes of the Agreement, to mean ``a proposal to
conduct surface coal mining and reclamation operations on Federal
lands, including an application for a permit, permit revision, permit
amendment, or permit renewal, and all information required by SMCRA,
the Federal regulations, the State Program, this agreement, and all
other applicable laws and regulations, including, with respect to
leased Federal coal, the Mineral Leasing Act of 1920 (MLA) and its
implementing regulations.''
Pursuant to the Agreement, DEQ has the responsibility to analyze,
review, and approve, conditionally approve or disapprove only that
information in the PAP that is submitted by the applicant for a permit,
permit revision, permit amendment, or permit renewal, and all
information required by SMCRA, the Federal regulations, the State
Program. The phrase ``the permit application component of the PAP,''
therefore, clarifies that DEQ will not be expected to review, analyze,
review, and approve, conditionally approve or disapprove the
information in the PAP that is submitted by the applicant pursuant to
the requirements of ``all other applicable laws and regulations,
including, with respect to leased Federal coal, the MLA and its
implementing regulations.''
Paragraph B.2 describes the responsibilities of OSM with respect
to: (1) making determinations and evaluations for NEPA compliance
documents required by 30 CFR 740.4(c)(7)(i) through (vii); (2)
reviewing appropriate portions of the PAP to
[[Page 40792]]
assure compliance with the non-delegable responsibilities of the
Secretary pursuant to SMCRA and 30 CFR 745.13; (3) consulting with BLM
prior to making a determination required by 30 CFR 746.18; (4)
exercising its responsibilities in a timely manner; (5) providing
assistance to DEQ in carrying out its responsibilities; and (6) when a
mining plan action is required pursuant 746.18, consulting with and
obtaining concurrences of BLM, the Federal land management agency, and
any other Federal agency, resolving issues when certain conditions
required by the Federal land management agency are not included in the
permit by DEQ, and preparing a decision document and recommendations to
the Secretary for approval, disapproval or approval with conditions of
a mining plan or modification thereof pursuant to 30 CFR 746.13.
Paragraph B.3 provides that the Secretary shall: (1) concurrently
and in a timely manner, carry out his responsibilities that cannot be
delegated to DEQ pursuant SMCRA and 30 CFR 745.13 and other laws and
regulations; (2) reserve the right to act independently of DEQ under
laws other than SMCRA, and to delegate some of the responsibilities to
OSM; and (3) approve, disapprove, or approve with conditions, the
mining plan actions for leased Federal coal pursuant to 30 CFR
740.4(a)(1).
Paragraph B.4 sets forth the coordination obligations of OSM and
DEQ in order to meet the purposes of the Agreement. Accordingly, OSM
and DEQ will be required to coordinate with each other in developing a
work plan and designating project leaders for the PAP or transfer
application review process, and in scheduling meetings with the
applicant. OSM will not independently initiate contacts with applicants
regarding completeness or deficiencies during the review of a PAP or
transfer application. As review of the PAP or transfer application
progresses, DEQ will keep OSM informed of its findings that may affect
the responsibilities of OSM and other Federal agencies. DEQ will also
send to OSM copies of any correspondence with the applicant, and allow
OSM access to DEQ files concerning operations of Federal lands.
Likewise, OSM shall send to DEQ copies of the correspondence or any
other information received from the applicant. Any differences of
opinion that may surface during the PAP or transfer application review
process, should be resolved at the lowest possible staff level.
Paragraph B.4 also provides for OSM and DEQ, with the concurrence
of any appropriate Federal agency, to enter into working agreements
without amending this Agreement to delegate to DEQ additional
responsibilities and decisions that are authorized under applicable
Federal laws other than SMCRA. DEQ is also required to work with
appropriate agency to develop mutually acceptable terms and conditions
for inclusion in the permit issued pursuant to section 522(e)(3) to
mitigate adverse impacts on any publicly owned park or places included
in the National Register of Historic Sites (NRHS).
Paragraph C describes the process that DEQ is required to follow
during the approval of the PAP or transfer application.
Paragraph C.1 provides that DEQ shall make a decision on the permit
application component or the PAP or transfer application on Federal
lands.
In paragraph C.2, during this decision-making process, DEQ is
required to consider the comments of Federal agencies in the context of
permit issuance and document these comments in the record of permit
decisions. If the permit conditions recommended by Federal agencies are
not adopted by DEQ, DEQ is required to provide OSM with documentation
as to why they were not included as permit conditions.
Under paragraph C.3, if DEQ approves the PAP or transfer
application before the Secretarial decision on a mining plan, DEQ is
required to advise the applicant that Secretarial approval of the
mining plan must be obtained before the applicant may conduct surface
coal mining and reclamation operations on the Federal lands.
Paragraph C.4 provides that after making a decision on the PAP or
transfer application, DEQ is required to send a copy of the signed
permit form and State decision document to the applicant, OSM and other
appropriate agencies.
Article VII: Inspections
Paragraphs A and B state that DEQ will conduct inspections on lands
covered by this Agreement and prepare and file State inspection reports
in accordance with the State Program.
Paragraph C designates DEQ as the point of contact and inspection
authority in dealing with the operator. However, this Agreement shall
not prevent inspections by authorized Federal or State agencies for
purposes other than those covered by this Agreement.
Paragraph D provides that authorized representatives of the
Secretary may conduct any inspections necessary to comply with 30 CFR
Parts 842 and 843 and with the Secretary's obligations under laws other
than SMCRA.
Paragraph E states that when OSM intends to conduct an inspection
under 30 CFR 842.11, DEQ will be given reasonable notice of such an
inspection to provide opportunity for State inspectors to join in the
inspection. When OSM intends to conduct an inspection in response to a
citizen complaint supplying adequate proof of imminent danger to public
health and safety, or a significant imminent environmental harm to
land, air, or water resources, DEQ will be given at least a 24-hour
notice, if practicable, to facilitate a joint Federal-State inspection.
Citizen complaints not involving an imminent harm to the public or the
environment will be initially referred to DEQ for action. However, the
Secretary reserves the right to conduct inspections without prior
notice to DEQ, if necessary, to carry out his responsibilities under
SMCRA.
Article VIII: Enforcement
Article VIII sets forth the enforcement obligations and authorities
of OSM and DEQ.
Under paragraph A, DEQ will have primary enforcement authority on
Federal lands in accordance with the requirements of the Agreement and
State Program. Enforcement authority given to the Secretary under
Federal laws and Executive Orders will be reserved by the Secretary.
Under paragraph B, DEQ will have primary responsibility for
enforcement during joint inspections with OSM. Paragraph B also
includes a requirement that DEQ notify OSM prior to suspending or
revoking a permit, BLM of any suspension, rescission or revocation of a
permit containing leased Federal coal.
Paragraph C preserves OSM's authority to take any enforcement
action necessary to comply with 30 CFR Parts 842, 843, 845 and 846
where OSM conducted an inspection or where, during a joint inspection
with DEQ, the two cannot agree on the appropriateness of a particular
enforcement action.
Paragraph D provides that OSM and DEQ will notify each other of all
violations of applicable regulations and all actions taken on the
violations.
Paragraph E provides that personnel of DEQ and OSM will be mutually
available to serve as witnesses in enforcement actions taken by either
party.
Paragraph F specifies that this Agreement will not limit the
Secretary's
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authority to enforce Federal laws other than SMCRA.
Article IX: Bonds
Under paragraph A, DEQ and the Secretary will require each operator
conducting operations on Federal lands to submit a single performance
bond, sufficient to cover the operator's responsibilities, jointly
payable to both the United States and DEQ. All applicable State and
Federal requirements must be fulfilled during the bond period. If the
Agreement is terminated, paragraph A requires that the portion of the
bond covering Federal lands shall be payable only to the United States.
Paragraph B provides that DEQ will have the primary responsibility
to approve and release performance bonds, however, DEQ must obtain
OSM's concurrence prior to releasing a performance bond on lands
subject to an approved mining plan. OSM, in turn, will be required to
coordinate with the appropriate Federal land management agency before
concurring to such bond release. DEQ will annually advise OSM of any
adjustments to the performance bond.
Paragraph C states that forfeiture of performance bonds will be in
accordance with the State Program and subject to OSM concurrence.
Paragraph D clarifies that the performance bond does not meet the
requirement for a Federal lease bond under 43 CFR Part 3474, or for the
lessee protection bond required in certain circumstances by section 715
of SMCRA.
Article X: Designating Land Areas Unsuitable for All or Certain Types
of Surface Coal Mining and Reclamation Operations and Activities, and
Valid Existing Rights and Compatibility Determinations
Paragraph A.1 provides that a petition to designate areas of
Federal lands as unsuitable for all or certain types of surface coal
mining and reclamation operation will be filed with OSM for processing
in accordance with 30 CFR 769, and that the Secretary reserves the
authority to designate or terminate such designation.
Paragraph A.2 provides that DEQ and OSM will notify each other of
any petition to designate lands as unsuitable that could impact
adjacent Federal and non-federal lands, and solicit and consider each
other's views on a petition. OSM will coordinate with the Federal land
management agency with jurisdiction over the area covered by the
petition, and will solicit comments. OSM and DEQ shall fully consider
data, information, and recommendations of all agencies.
Paragraph B.1 provides that the Secretary will make the valid
exiting rights (VER) determination for Federal lands within the
boundaries of any areas specified under section 522(e)(1) of SMCRA.
Where surface coal mining and reclamation operations would be conducted
on both Federal and non-Federal lands within such areas, the Secretary
will make the VER determination for the Federal lands and DEQ will make
the VER determination for State and private lands.
Paragraph B.2 states that the Secretary will make VER
determinations for Federal lands within the boundaries of any national
forest where proposed surface coal mining and reclamation operations
are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR
761.11(b). OSM will process requests for determinations of
compatibility under section 522(e)(2) of SMCRA and part 30 CFR
761.12(c).
Paragraph B.3 provides that DEQ will make the VER determination
when a VER determination is requested for Federal lands protected under
section 522(e)(3). DEQ will determine, in consultation with the State
Historic Preservation Officer, whether any proposed operation will
adversely affect any publicly-owned park or place listed on the NRHS.
Paragraph B.3 also states that surface coal mining and reclamation
operations of Federal lands protected under section 522(e)(3) of SMCRA
may be permitted if approved jointly by DEQ, and the Federal, State, or
local agency with jurisdiction over the park or historic place. In
these instances, DEQ will coordinate with any agency with jurisdiction
over the publicly-owned park or historic place to develop mutually
acceptable terms and conditions for incorporation into the permit in
order to mitigate environmental impacts.
Paragraph B.4 provides that DEQ will process determinations of VER
on Federal lands for all areas limited or prohibited by section
522(e)(4) and (5) of SMCRA as unsuitable for mining.
Paragraph B.5 states that for operations on Federal lands, whenever
DEQ is responsible for making the VER determinations, DEQ will consult
with OSM and any affected agency.
Article XI: Termination of the Agreement
Article XI specifies that the Agreement may be terminated as
specified under 30 CFR 745.15.
Article XII: Reinstatement of the Agreement
Article XII provides that, if terminated, the Agreement may be
reinstated under 30 CFR 745.16. That provision allows for reinstatement
of a cooperative agreement upon application by the State after
remedying the defects for which the agreement was terminated and the
submission of evidence to the Secretary that the State can and will
comply with all of the provisions of the Agreement.
Article XIII: Amendments to the Agreement
Article XIII provides that the Agreement may be amended by mutual
agreement of the Governor and the Secretary in accordance with 30 CFR
745.14.
Article XIV: Changes in State or Federal Standards
Paragraph A recognizes that the Secretary or the Governor may, from
time to time, revise and promulgate new or revised performance or
reclamation requirements or enforcement and administrative procedures.
If it is determined to be necessary to keep this Agreement in force,
each party shall change or revise its respective laws or regulations or
request necessary legislative action. Such changes will be made under
the procedures of 30 CFR Part 732 for changes to the State Program and
under the procedures of section 501 of SMCRA for changes to the Federal
lands program.
Paragraph B requires that DEQ and OSM to provide each other with
copies of any changes to their respective laws, rules, regulations, and
standards pertaining to the enforcement and administration of this
Agreement.
Article XV: Changes in Personnel and Organization
Paragraph A states that DEQ and OSM shall advise each other of
changes in the organization, structure, functions, duties and funds of
the offices, departments, divisions, and persons within their
organizations which could affect administration and enforcement of this
Agreement. Each shall promptly advise the other in writing of changes
in key personnel, including the head of a department or division, or
changes in the functions or duties of the principal offices of the
program. DEQ and OSM shall advise each other in writing of changes in
the location of their respective offices, addresses, telephone numbers,
as well as changes in the names, addresses, and telephone numbers of
their respective personnel.
[[Page 40794]]
Paragraph B provides that if the State Act be amended to transfer
administration of the State Act to another agency, all references to
DEQ in this Agreement shall be deemed to apply to the successor
regulatory agency as of the date of the transfer. The provisions in
this Agreement shall thereafter apply to that agency.
Article XVI: Reservation of Rights
This agreement will not be construed as waiving or preventing the
assertion of any rights in this Agreement that the State or the
Secretary may have under laws other than the Act and the State Program,
including, but not limited to those listed in Appendix A of this
Agreement.
III. Procedural Determinations
1. Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
(3) This rule does not alter the budgetary effects or entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
(4) This rule does not raise novel legal or policy issues.
2. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
This rule will amend the cooperative agreement between the Department
of the Interior and the State of Montana. It will streamline the
permitting process in Montana by delegating to Montana the sole
responsibility to issue permits for coal mining and reclamation
operations on Federal lands under the Federal lands program
regulations. It will eliminate duplicative permitting requirements,
thereby increasing governmental efficiency. The rule will also update
the cooperative agreement to reflect current regulations and agency
structures.
3. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more. The rule only affects the State of Montana and the costs of
carrying out the functions under the cooperative agreement are offset
by grants from the Federal government.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions because the rule does not impose any
new requirements on the coal mining industry or consumers. The
functions being performed by the State under the cooperative agreement
are offset by grants from the Federal government.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises for
the reasons stated above.
4. Unfunded Mandates
This rule does not impose an unfunded mandate on State, local, or
tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State
local or tribal governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
(1 U.S.C. 1531, et seq.) is not required.
5. Executive Order 12630--Takings
In accordance with Executive Order 12630, the rule does not have
significant takings implications. The rule revises an existing
cooperative agreement at the request of the State of Montana and will
result in the delegation of authority to the State. A takings
implication assessment is not required.
6. Executive Order 12612--Federalism
In accordance with Executive Order 12612, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment. The rule revises an existing cooperative
agreement at the request of the State of Montana and will result in the
delegation of authority to the State. Therefore, a Federalism
assessment is not required.
7. Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
8. Paperwork Reduction Act
This regulation does not require an information collection from 10
or more parties and a submission under the Paperwork Reduction Act is
not required. An OMB form 83-I is not required.
9. National Environmental Policy Act
This rule has been reviewed by OSM and it has been determined to be
categorically excluded from the NEPA process in accordance with the
Departmental Manual 516 DM 6, Appendix 8.4(B)(21).
10. Author
The principal author of this final rule is Ranvir Singh, P.E.,
Western Regional Coordinating Center, 1999 Broadway, Suite 3320,
Denver, CO 80202-5733.
List of Subjects in 30 CFR Part 926
Coal mining, Intergovernmental relations, Surface mining,
Underground mining.
Dated: June 15, 1998.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
Accordingly, 30 CFR Part 926 is amended as follows:
PART 926--MONTANA
1. The authority citation for part 926 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 926.30 is revised to read as follows:
Sec. 926.30 State-Federal cooperative agreement.
COOPERATIVE AGREEMENT
The Governor of the State of Montana (Governor) and the
Secretary of the Department of the Interior (Secretary) enter into a
State-Federal Cooperative Agreement (Agreement) to read as follows:
Article I: Authority, Purposes, and Responsible Agencies
A. Authority
This Agreement is authorized by section 523(c) of the Surface
Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), which
allows a State with a permanent regulatory program approved by the
Secretary, under 30 U.S.C. 1253, to elect to enter into an agreement
for State control and
[[Page 40795]]
regulation of surface coal mining and reclamation operations on
Federal lands. This Agreement provides for State regulation of coal
exploration operations \1\ not subject to 43 CFR Group 3400, and
surface coal mining and reclamation operations and activities in
Montana on Federal lands consistent with SMCRA, the Federal lands
program (30 CFR) Chapter VII, Subchapter D), and the Montana State
Program (State Program), including among other things, the Montana
Strip and Underground Mine Reclamation Act, Part 2, Chapter 4, Title
82, Montana Code Annotated (State Act or MCA).
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\1\ The term ``Exploration Operations'' is referred to as
``Prospecting'' in the Montana State Program.
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B. Purposes
The purposes of the Agreement are to (1) foster State-Federal
cooperation in the regulation of surface coal mining and reclamation
operations on Federal lands and coal exploration operations not
subject to 43 CFR Group 3400; (2) minimize intergovernmental overlap
and duplication; and (3) provide effective and uniform application
of the State Program on all non-Indian lands in Montana.
C. Responsible Agencies
The Montana Department of Environmental Quality (DEQ) shall
administer this Agreement on behalf of the Governor. The Office of
Surface Mining Reclamation and Enforcement (OSM) shall administer
this Agreement on behalf of the Secretary.
Article II: Effective Date
Upon signing by the Secretary and the Governor, this Agreement
will take effect 30 days after final publication as a rule making in
the Federal Register.\2\ This Agreement shall remain in effect until
terminated as provided in Article XI.
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\2\ See explanation in Article II at 46 FR 20983, April 8, 1981.
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Article III: Definitions
The term and phrases used in this Agreement, except the term
``permit application package (PAP),'' will be given the meanings set
forth in SMCRA, 30 CFR Parts 700, 701, 740, and 761, and the State
Program, including the State Act and the regulations promulgated
pursuant to the State Act. Where there is a conflict between the
above-referenced State and Federal definitions, the definitions used
in the State Program will apply, unless otherwise required by
Federal regulation.
The term ``permit application package (PAP)'' for the purposes
of this Agreement, means a proposal to conduct surface coal mining
and reclamation operations on Federal lands, including an
application for a permit, permit revision, permit amendment, or
permit renewal, and all information required by SMCRA, the Federal
regulations, the State Program, this Agreement, and all other
applicable laws and regulations, including, with respect to leased
Federal coal, the Mineral Leasing Act of 1920 (MLA) and its
implementing regulations.
Article IV: Applicability
In accordance with the Federal lands program, the laws,
regulations, terms and conditions of the State Program are
applicable to Federal lands in Montana except as otherwise stated in
this Agreement, SMCRA, 30 CFR 740.4, 740.11(a), and 745.13 or other
applicable Federal laws, Executive Orders, or regulations.
Article V: Requirements for the Agreement
The Governor and the Secretary affirm that they will comply with
all provisions of this Agreement.
A. Funds
1. The State shall devote adequate funds to the administration
and enforcement on Federal lands in Montana of the requirements
contained in the State Program. If the State complies with the terms
of this Agreement, and if necessary funds have been appropriated,
OSM shall reimburse the State as provided in section 705(c) of SMCRA
and 30 CFR 735.16 for the costs associated with carrying out
responsibilities under this Agreement. The amount of such funds
shall be determined in accordance with the provisions of Chapter 3-
10 and Appendix 111 of the Federal Assistance Manual.
2. If DEQ applies for a grant but sufficient funds have not been
appropriated to OSM, OSM and DEQ shall promptly meet to decide on
appropriate measures that will insure that surface coal mining and
reclamation operations on Federal lands in Montana are regulated in
accordance with the State Program.
3. Funds provided to DEQ under this Agreement will be adjusted
in accordance with the program income provisions of 43 CFR Part 12.
B. Reports and Records
1. DEQ shall submit annual reports to OSM containing information
with respect to its compliance with the terms of this Agreement
pursuant to 30 CFR 745.12(d). Upon request, DEQ and OSM shall
exchange, except where prohibited by Federal or State law,
information developed under this Agreement. OSM shall provide DEQ
with a copy of any final evaluation report prepared concerning State
administration and enforcement of this Agreement. DEQ comments on
the report will be attached before being sent to the Congress or
other interested parties.
C. Personnel
DEQ shall maintain the necessary personnel to fully implement
this Agreement in accordance with the provisions of SMCRA, the
Federal lands program, and the State Program.
D. Equipment and Facilities
DEQ shall assure itself access to equipment, laboratories, and
facilities with which all inspections, investigations, studies,
tests, and analyses can be performed and which are necessary to
carry out the requirements of this Agreement.
E. Permit Application Fees and Civil Penalties
The amount of the fee accompanying the PAP shall be determined
in accordance with section 82-4-223(1), of MCA, and the applicable
provisions of Federal law. All permit fees and civil penalty fines
shall be accounted for in accordance with the provisions of 43 CFR
Part 12. Permit fees will be considered program income. Civil
penalties will not be considered program income. The Financial
Status Report submitted pursuant to 30 CFR 735.26 shall include the
amount of the permit application fees collected and attributable to
Federal lands during the State fiscal year.
Article VI: Review and Approval of the PAP or Application for Transfer,
Assignment or Sale of Permit Rights (Transfer Application)
A. Receipt and Distribution of the PAP or Transfer Application
1. DEQ shall require an applicant proposing to conduct surface
coal mining and reclamation operations on Federal lands to submit to
DEQ the appropriate number of copies of a PAP or transfer
application. The PAP or transfer application shall meet the
requirements of 30 CFR Part 740, shall be in the form required by
DEQ, and shall contain, at a minimum, the information required by 30
CFR 740.13(b), including:
a. Information necessary for DEQ to make a determination of
compliance with the State Program;
b. Any supplement information required by OSM, the Bureau of
Land Management (BLM), and the Federal Land Management Agency. This
information shall be appropriate and adequate for OSM and the
appropriate Federal agencies to make determinations of compliance
with applicable requirements of SMCRA,the MLA, as amended, the
Federal lands program, and other Federal laws, Executive Orders, and
regulations which these agencies administer.
2. Except as otherwise agreed in writing by Federal agencies,
upon receipt of a PAP or transfer application, DEQ shall ensure that
an appropriate number of copies of the PAP or transfer application
are provided to OSM, Federal land management agency, and any other
appropriate Federal agency.
B. Review of the PAP or Transfer Application
1. DEQ is responsible for:
a. As authorized by 30 CFR 740.4(c),
(1) Being the primary point of contact with the applicant
regarding the review of the PAP or transfer application and
communications regarding all decisions and determinations with
respect to the PAP or transfer application;
(2) Analysis, review, and approval, conditional approval, or
disapproval of the permit application component of the PAP or the
transfer application for surface coal mining and reclamation
operations on Federal lands in Montana;
(3) Obtaining the comments and findings of Federal agencies with
jurisdiction or responsibility over Federal lands affected by the
operations proposed in the PAP or transfer application, unless
otherwise agreed in writing by Federal agencies. DEQ shall request
such Federal agencies to provide to
[[Page 40796]]
DEQ their requests for additional information or their findings
within 45 days of the receipt of the request;
(4) Obtaining OSM's determination whether the PAP involving
leased Federal coal constitutes a mining plan modification under 30
CFR 746.18, and informing the applicant of such determination;
(5) Consulting with and obtaining the consent, as necessary, of
the Federal land management agency pursuant to 30 CFR 740.4(c)(2),
with respect to post-mining land use and to any special requirements
necessary to protect non-coal resources of the areas that will be
affected by surface coal mining and reclamation operations;
(6) Consulting with and obtaining the consent, as necessary, of
BLM pursuant to 30 CFR 740.4(c)(3), with respect to requirements
relating to the development, production and recovery of mineral
resources on lands affected by surface coal mining and reclamation
operations involving leased Federal coal pursuant to 43 CFR Group
3400;
(7) Approval and release of performance bonds pursuant to
Article IX.B, and approval and maintenance of liability insurance;
(8) Review and approval of exploration operations not subject to
the requirements of 43 CFR Group 3400, as provided in 30 CFR
740.4(c)(6).
b. In addition, where a mining plan action is required under 30
CFR Part 746, as determined by OSM:
(1) Preparation of documentation to comply with the requirements
of National Environmental Policy Act (NEPA). However, OSM will
retain the responsibility for the exceptions in 30 CFR
740.4(c)(7)(l) through (vii). DEQ and OSM shall coordinate and
cooperate with each other so that, if possible, one Environmental
Assessment or Environmental Impact Statement is produced to comply
with NEPA and the Montana Environmental Policy Act (MEPA);
(2) Preparation of a State decision package, which includes
written findings indicating that the permit application component of
the PAP is in compliance with the terms of the State Program, a
technical analysis of the PAP, and supporting documentation.
2. OSM is responsible for:
a. When the PAP includes Federal lands,
(1) Making determinations and evaluations for NEPA compliance
documents as required by 30 CFR 740.4(c)(7)(l) through (vii);
(2) Reviewing the appropriate portions of the PAP for compliance
with the non-delegable responsibilities of the Secretary pursuant to
SMCRA and 30 CFR 745.13, and for compliance with the requirements of
other Federal laws, Executive Orders, and regulations;
(3) Consulting with the Federal land management agency, and
determining whether the PAP constitutes a mining plan modification
under 30 CFR 746.18, and informing DEQ, whenever practical within 30
days of receiving a copy of the PAP for operations on Federal lands,
of such determination;
(4) Exercising its responsibilities in a timely manner governed,
to the extent possible, by the deadlines established in the State
Program;
(5) Assisting DEQ, upon request, in carrying out its
responsibilities by:
(a) Coordinating resolution of conflicts between DEQ and other
Federal agencies in a timely manner;
(b) Obtaining comments and findings of other Federal agencies
with jurisdiction or responsibility over Federal lands;
(c) Scheduling joint meetings between DEQ and Federal agencies;
(d) Reviewing and analyzing the PAP, to the extent possible, and
providing to DEQ the work product within 50 days of receipt of the
State's request for such assistance, unless a different time is
agreed upon by OSM and DEQ; and
(e) Providing technical assistance, if available OSM resources
allow.
b. In addition, where a mining plan action is required pursuant
to 30 CFR Part 746:
(1) Consulting with and obtaining the concurrences of BLM, the
Federal land management agency, and any other Federal agency, as
necessary, prior to making recommendation to the Secretary
concerning approval of the mining plan;
(2) Upon notification from the DEQ that certain permit
conditions required by the Federal land management agency are not
incorporated in the State permit, OSM will determine whether such
conditions are necessary. When OSM believes the conditions are
necessary, OSM will work with the Federal land management agency to
find another means to resolve the issue and, where appropriate, OSM
will facilitate the attachment of conditions to the appropriate
Federal authorizations; and
(3) Providing a decision document to the Secretary recommending
approval, disapproval, or conditional approval of mining plans or
modifications thereof.
3. The Secretary:
a. Shall concurrently carry out his responsibilities that cannot
be delegated to DEQ pursuant to SMCRA and 30 CFR 745.13, the Federal
lands program, the MLA, NEPA, this Agreement, and other applicable
Federal laws including, but not limited to, those listed in Appendix
A. The Secretary shall carry out these responsibilities in a timely
manner and will avoid, to the extent possible, duplication of the
responsibilities of the State as set forth in this Agreement and the
State Program;
b. Reserves the right to act independently of DEQ to carry out
his responsibilities under laws other than SMCRA, and where Federal
law permits, to delegate some of the responsibilities to OSM; and
c. Shall be responsible for approval, disapproval, or
conditional approval of mining plans and modifications thereof with
respect to lands containing leased Federal coal in accordance with
30 CFR 740.4(a)(1).
4. Coordination:
a. As a matter of practice, OSM will not independently initiate
contacts with applicants regarding completeness or deficiencies of a
PAP or transfer application with respect to matters covered by the
State Program.
b. OSM and DEQ shall coordinate with each other during the
review process of a PAP or transfer application as needed.
c. OSM and DEQ may request and schedule meetings with the
applicant with adequate advance notice to each other.
d. DEQ shall keep OSM informed of findings made during the
review process which bear on the responsibilities of OSM or other
Federal agencies. DEQ shall send to OSM copies of any correspondence
with the applicant and any information received from the applicant
regarding the PAP or transfer application. OSM shall send to DEQ
copies of all OSM correspondence with the applicant and any other
information received from the applicant which may have a bearing on
the PAP or transfer application. Any conflicts or differences of
opinions that may develop during the review process should be
resolved at the lowest possible staff level.
e. OSM shall have access to DEQ files concerning operations on
Federal lands.
f. Where a mining plan action is required pursuant to 30 CFR
Part 746, OSM and DEQ shall develop a work plan and schedule for the
PAP review and each will designate a project leader. The project
leaders will serve as the primary points of contact between OSM and
DEQ throughout the review process. Not later than 50 days after
receipt of the PAP, unless a different time is agreed upon, OSM
shall furnish DEQ with its review comments on the PAP and specify
any requirements for additional data. DEQ shall provide OSM all
available information that may assist OSM in preparing any findings
for the mining plan action.
g. On matters concerned exclusively with regulations under 43
CFR Group 3400, BLM will be the primary contact with the applicant
and shall inform DEQ of its actions and provide DEQ with a copy of
documentation on all decisions.
h. Responsibilities and decisions which can be delegated to DEQ
under applicable Federal laws other than SMCRA may be specified in
working agreements between OSM and DEQ, with the concurrence of any
Federal agency involved, and without amendment to this Agreement.
i. In the case that valid existing rights (VER) are determined
to exist on Federal lands under section 522(e)(3) of SMCRA where the
proposed operation will adversely affect either a publicly-owned
park, or a historic place listed in the National Register of
Historic Sites, DEQ shall work, respectively, with the agency with
jurisdiction over the publicly-owned park or the agency with
jurisdiction over the historic place, to develop mutually acceptable
terms and conditions for incorporation into the permit to mitigate
adverse impacts.
C. Approval of the PAP or Transfer Application
1. DEQ shall make a decision on approval, conditional approval,
or disapproval of the permit application component of the PAP or the
transfer application on Federal lands.
2. DEQ must consider the comments of Federal agencies in the
context of permit issuance and will document these comments in the
record of permit decisions. To the extent allowed by Montana law,
permits issued by DEQ will include terms and conditions imposed by
the Federal land management agency pursuant to applicable Federal
laws and regulations other than SMCRA, in accordance with 30 CFR
740.13(c)(1). When Federal agencies
[[Page 40797]]
recommend permit conditions and these conditions are not adopted by
DEQ. DEQ will provide OSM with documentation as to why they were not
incorporated as permit conditions.
3. When a mining plan action is required pursuant to 30 CFR Part
746, DEQ may make a decision on approval, conditional approval, or
disapproval of the permit application component of the PAP on
Federal lands in accordance with the State Program prior to the
necessary Secretarial decision on the mining plan, provided that DEQ
advises the applicant that Secretarial approval of the mining plan
action must be obtained before the applicant may conduct surface
coal mining and reclamation operations on the Federal lands. To the
extent allowed by the State law, DEQ shall reserve the right to
amend or rescind any requirements of the permit to conform with any
terms or conditions imposed by the Secretary in the approval of the
mining plan.
4. After making its decision on the permit application component
of the PAP or transfer application, DEQ shall send a copy of the
signed permit form and State decision document to the applicant,
OSM, the Federal land management agency, and any agency with
jurisdiction over a publicly-owned park, or historic property
included in the NRHS which would be adversely affected by the
surface coal mining and reclamation operations.
Article VII: Inspections
A. DEQ shall conduct inspections on Federal lands in accordance
with 30 CFR 740.4(c)(5) and prepare and file inspection reports in
accordance with the approved State Program.
B. DEQ shall, subsequent to conducting any inspection on Federal
lands, file with OSM's appropriate Field Office an inspection report
describing: (1) the general conditions of the lands under the lease,
permit, or license; (2) the manner in which the operations are being
conducted; and (3) whether the operator is complying with applicable
performance standards and reclamation requirements.
C. DEQ will be the point of contact and inspection authority in
dealing with the operator concerning operations and compliance with
requirements covered by this Agreement, except as described in this
Agreement and in the Secretary's regulations. Nothing in this
Agreement shall prevent inspections by authorized Federal or State
agencies for purposes other than those covered by this Agreement.
D. Authorized representatives of the Secretary may conduct any
inspections necessary to comply with 30 CFR Parts 842 and 843, and
with the Secretary's obligations under laws other than SMCRA.
E. OSM shall give DEQ reasonable notice of its intent to conduct
an inspection in order to provide State inspectors with an
opportunity to join in the inspection. When OSM is responding to a
citizen complaint supplying adequate proof of an imminent danger to
the public health and safety, or a significant imminent
environmental harm to land, air, or water resources, pursuant to 30
CFR 842.11(b)(1)(ii)(C), it shall contact DEQ no less than 24 hours
prior to the Federal inspection, if practicable, to facilitate a
joint Federal/State inspection. All citizen complaints which do not
involve an imminent danger to the public health and safety, or a
significant imminent environmental harm to land, air, or water
resources, must be referred initially to DEQ for action. The
Secretary reserves the right to conduct inspections without prior
notice to DEQ, if necessary, to carry out his responsibilities under
SMCRA.
Article VIII: Enforcement
A. DEQ shall have primary enforcement authority under SMCRA
concerning compliance with the requirements of this Agreement and
the State Program in accordance with 30 CFR 740.4(c)(5) and
740.17(a)(2). Enforcement authority given to the Secretary under
SMCRA, and its implementing regulations, or other Federal laws and
Executive Orders, including, but not limited to, those listed in
Appendix A, is reserved to the Secretary.
B. During any joint inspection by OSM and DEQ, DEQ will have
primary responsibility for enforcement procedures, including
issuance of cessation orders and notices of violation. DEQ shall
consult with OSM prior to issuance of any decision to suspend,
rescind or revoke a permit on Federal lands. DEQ shall notify BLM of
any suspension, rescission or revocation of a permit containing
leased Federal coal pursuant to 30 CFR 740.13(f)(2).
C. During any inspection made solely by OSM or any joint
inspection where DEQ an OSM fail to agree regarding the propriety of
any particular enforcement action, OSM may take any enforcement
action necessary to comply with 30 CFR Parts 842, 843, 845 and 846.
D. DEQ and OSM shall promptly notify each other of all
violations and of all actions taken with respect to such violations.
E. Personnel of DEQ and OSM shall be mutually available to serve
as witnesses in enforcement actions taken by either party.
F. This Agreement does not affect or limit the Secretary's
authority to enforce violations of Federal laws other than SMCRA.
Article IX: Bonds
A. DEQ and the Secretary shall require all operators on Federal
lands to submit a single performance bond jointly payable to both
the United States and DEQ. The board shall be of sufficient amount
to cover the operator's responsibilities under SMCRA and the State
Program. The bond shall be conditioned upon continued compliance
with all requirements of SMCRA, 30 CFR Chapter VII, the State
Program, and the permit. Such bond shall provide that if this
Agreement is terminated under the provisions of 30 CFR 745.15, the
portion of the bond covering the Federal lands shall be payable only
to the United States.
B. DEQ will have primary responsibility for the approval and
release of performance bonds required for surface coal mining and
reclamation operations on Federal lands. However, release of a
performance bond on lands subject to an approved mining plan
requires the concurrence of OSM as provided in 30 CFR 740.15(d)(3).
Prior to such concurrence, OSM shall coordinate with other Federal
agencies having the authority over the lands involved. DEQ shall
annually advice OSM of adjustments to the performance bond.
C. Performance bonds will be subject to forfeiture with he
concurrence of OSM, in accordance with the procedures and
requirements of the State Program. OSM may not withhold its
concurrence unless DEQ's forfeiture decision is not in accordance
with the requirements and procedures of the State program.
D. Submission of a performance bond does not satisfy the
requirements for either a Federal lease bond required by 43 CFR Part
3474 or a lessee protection bond which is required in certain
circumstances by section 715 of SMCRA.
Article X: Designating Land Areas Unsuitable for All or Certain Types
of Surface Coal Mining and Reclamation Operations and Activities, and
Valid Existing Rights and Compatibility Determinations
A. Unsuitability Petitions
1. Authority to designate or terminate the designation of areas
of Federal lands as unsuitable for mining is reserved to the
Secretary. Unsuitability petitions shall be filed with OSM and would
be processed in accordance with 30 CFR 769.
2. When either DEQ or OSM receives a petition that could impact
adjacent Federal or non-Federal lands pursuant to section 522(c) of
SMCRA, the agency receiving the petition will notify the other of
receipt of the petition and the anticipated schedule for reaching a
decision. OSM shall coordinate with and solicit comments from the
applicable Federal land management agency. OSM and DEQ shall fully
consider data, information, and recommendations of all agencies.
B. Valid Existing Rights (VER) and Compatibility Determinations
The following actions will be taken when requests for
determinations of VER pursuant to section 522(e) of SMCRA, or for
determinations of compatibility pursuant to section 522(e)(2) of
SMCRA are received:
1. For Federal lands within the boundaries of any areas
specified under section 522(e)(1) of SMCRA, the Secretary will make
the VER determination. If surface coal mining and reclamation
operations would be conducted on both Federal and non-Federal lands
within such areas, the Secretary will make the VER determination for
the Federal lands and DEQ will make the VER determination for State
and private lands.
2. For Federal lands within the boundaries of any national
forest where proposed surface coal mining and reclamation operations
are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR
761.11(b), the Secretary will make VER determinations. OSM will
process requests for determinations of compatibility under section
522(e)(2) of SMCRA and part 30 CFR 761.12(c).
3. Where a VER determination is requested for Federal lands
protected under section 522(e)(3), DEQ will make the VER
[[Page 40798]]
determination. DEQ will determine, in consultation with the State
Historic Preservation Officer, whether any proposed operation will
adversely affect any publicly-owned park or historic place listed on
the National Register of Historic Sites (NRHS).
Surface coal mining and reclamation operations of Federal lands
protected under section 522(e)(3) of SMCRA may be permitted if
approved jointly by DEQ, and the Federal, State, or local agency
with jurisdiction over the park or historic place. DEQ will
coordinate with any agency with jurisdiction over the publicly-owned
park or historic place to develop mutually acceptable terms and
conditions for incorporation into the permit in order to mitigate
environmental impacts.
4. DEQ will process determinations of VER on Federal lands for
all areas limited or prohibited by section 522(e)(4) and (5) of
SMCRA as unsuitable for mining.
5. For operations on Federal lands, whenever DEQ is responsible
for making the VER determinations, DEQ will consult with OSM and any
affected agency.
Article XI: Termination of the Agreement
This Agreement may be terminated by the Governor or the
Secretary under the provisions of 30 CFR 745.15.
Article XII: Reinstatement of the Agreement
If this Agreement has been terminated in whole or part, it may
be reinstated under the provisions of 30 CFR 745.16.
Article XIII: Amendments of the Agreement
This Agreement may be amended by mutual agreement of the
Governor and the Secretary in accordance with 30 CFR 745.14.
Article XIV: Changes in State or Federal Standards
A. The Secretary or the State may, from time to time, revise and
promulgate new or revised performance or reclamation requirements or
enforcement and administrative procedures. Each party shall, if it
is determined to be necessary to keep this Agreement in force,
change or revise its respective laws or regulations or request
necessary legislative action. Such changes will be made under the
procedures of 30 CFR Part 732 for changes to the State Program and
under the procedures of section 501 of SMCRA for changes to the
Federal lands program.
B. DEQ and OSM shall provide each other with copies of any
changes to their respective laws, rules, regulations, and standards
pertaining to the enforcement and administration of this Agreement.
Article XV: Changes in Personnel and Organization
A. DEQ and OSM shall, consistent with 30 CFR Part 745, advise
each other of changes in the organization, structure, functions,
duties and funds of the offices, departments, divisions, and persons
within their organizations which could affect administration and
enforcement of this Agreement. Each shall promptly advise the other
in writing of changes in key personnel, including the head of a
department or division, or changes in the functions or duties of the
principal offices of the program. DEQ and OSM shall advise each
other in writing of changes in the location of their respective
offices, addresses, telephone numbers, as well as changes in the
names, addresses, and telephone numbers of their respective
personnel.
B. Should the State Act be amended to transfer administration of
the State Act to another agency, all references to DEQ in this
Agreement shall be deemed to apply to the successor regulatory
agency as of the date of the transfer. The provisions in this
Agreement shall thereafter apply to that agency.
Article XVI: Reservation of Rights
In accordance with 30 CFR 745.13, this Agreement shall not be
construed as waiving or preventing the assertion of any rights that
have not been expressly addressed in this Agreement that the State
or the Secretary may have under laws other than the Act and the
State Program, including, but not limited to those listed in
Appendix A.
Approved:
Dated: May 8, 1998.
Marc Racicot,
Governor of Montana.
Dated: July 7, 1998.
Bruce Babbitt,
Secretary of the Interior.
Appendix A
1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et
seq., and implementing regulations.
2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and
implementing regulations, including 43 CFR Part 3480.
3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321
et seq., and implementing regulations, including 40 CFR Part 1500.
4. The Endangered Species Act, 16 U.S.C. 1531 eq seq., and
implementing regulations, including 50 CFR Part 402.
5. The National Historic Preservation Act of 1966, 16 U.S.C. 470
et seq., and implementing regulations, including 36 CFR Part 800.
6. Native American Graves Protection and Repatriation Act, 25
U.S.C. 3001 et seq.
7. The American Indian Religious Freedom Act, 42 U.S.C. 1986 et
seq.
8. The Archaeological Resources Protection Act of 1979, 16
U.S.C. 470aa et seq.
9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing
regulations.
10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et
seq., and implementing regulations.
11. The Resource Conservation and Recovery Act of 1976, 42
U.S.C. 6901 et seq., and implementing regulations.
12. The Reservoir Salvage Act of 1960, amended by the
Preservation of Historical and Archaeological Data Act of 1974, 16
U.S.C. 469 et seq.
13. Executive Order 11593 (May 13, 1971), Cultural Resource
Inventories on Federal Lands.
14. Executive Order 11988 (May 24, 1977), for flood plain
protection.
15. Executive Order 11990 (May 24, 1977), for wetlands
protection.
16. Executive Order 12898 (February 11, 1994) for Federal
Actions to Address Environmental Justice on Minority Populations and
Low Income Populations.
17. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et
seq., and implementing regulations.
18. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et
seq.
19. The Constitution of the United States.
20. Surface Mining Control and Reclamation Act of 1977, 30
U.S.C. 1201 et seq.
21. 30 CFR Chapter VII.
22. The Constitution of the State of Montana.
23. Montana Strip and Underground Mine Reclamation Act (MSUMRA),
Part 2, Chapter 4, Title 82, Montana Code Annotated.
24. Title 26, Chapter 4, Subchapter 3, Administrative Rules of
Montana.
25. Montana Environmental Policy Act (MEPA).
[FR Doc. 98-20195 Filed 7-29-98; 8:45 am]
BILLING CODE 4310-05-M
