[Federal Register Volume 60, Number 21 (Wednesday, February 1, 1995)]
[Rules and Regulations]
[Pages 6006-6013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2445]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with certain exceptions and additional
requirements, a proposed amendment to the Montana regulatory program
(hereinafter referred to as the ``Montana program'') under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA). Montana proposed
revisions to statutes pertaining to ownership and control of
operations, violation history updates, notices of intent for
prospecting, and consent to surface mining by surface owner. The
amendment is intended to revise the Montana program to be consistent
with the corresponding Federal regulations and SMCRA, improve
operational efficiency, and comply with a decision by the State Supreme
Court.
EFFECTIVE DATE: February 1, 1995.
FOR FURTHER INFORMATION CONTACT:
Guy V. Padgett, Telephone: (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
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 and 926.16.
II. Proposed Amendment
By letters dated June 16 and July 28, 1993 (Administrative Record
No. MT-11-01), Montana submitted a proposed amendment to its program
pursuant to SMCRA.
Montana submitted the proposed amendment in response to statutory
changes adopted by the Montana 1993 Legislature regarding notices of
intent for ``prospecting,'' ownership and control provisions, violation
history updates, surface owner consent, and editorial changes. OSM
announced receipt of the proposed amendment in the August 27, 1993,
Federal Register (58 FR 45303), provided an opportunity for a public
hearing or meeting on its substantive adequacy, and invited public
comment on its adequacy (Administrative Record No. MT-11-09). Because
no one requested a public hearing or meeting, none was held. The public
comment period ended September 27, 1993.
During its review of the amendment, OSM identified concerns
relating to the proposed deletion of Montana Code Annotated (MCA) 82-4-
224 concerning surface owner consent and the proposed provisions of MCA
82-4-226(8) concerning coal exploration (``prospecting'') under notices
of intent. OSM notified Montana of these concerns by letter dated
January 19, 1994 (Administrative Record No. MT-11-18).
Montana responded in a letter dated July 28, 1994 (Administrative
Record No. MT-11-19) by submitting additional explanatory information
for the two statutory provisions noted above and concerning MCA 82-4-
203 (definitions).
Based upon the additional explanatory information for the proposed
program amendment submitted by Montana, OSM reopened the public comment
period in the August 11, 1994, Federal Register (59 FR 41262;
Administrative Record No. MT-11-20). The public comment period ended on
August 26, 1994.
III. Director's Findings
As discussed below, the Director in accordance with SMCRA and 30
CFR 732.15 and 732.17 finds, with certain exceptions and additional
requirements, that the proposed program amendment submitted by Montana
on June 16 and July 28, 1993, and as clarified by it on July 28, 1994,
is no less effective in meeting SMCRA's requirements than the
corresponding Federal regulations and no less stringent than SMCRA.
Accordingly, the Director approves the proposed amendment, with certain
exceptions and additional requirements.
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, or grammatical changes (corresponding Federal
regulation and/or SMCRA provisions are listed in parentheses):
82-4-203, MCA, subsections (14), (16), (21), (23), (29), (34), (35),
and (36) (SMCRA Section 701, 301 CFR 700.5 & 701.5),
definitions; [[Page 6007]]
82-4-226, MCA, subsections (2), (3), (5), and (6) (SMCRA Section 512
and 30 CFR Part 732), coal exploration (``prospecting'') permits and
notices of intent; and
82-4-227, MCA, subsections (1), (2), (3), (7), (8), and (9) (SMCRA
Section 510), permit approval/denial.
Because the proposed revisions to these previously-approved
statutory provisions are nonsubstantive in nature, the Director finds
that these proposed Montana statutes are no less effective in meeting
SMCRA's requirements than the Federal regulations and no less stringent
than SMCRA. The Director approves these proposed statutes.
2. Unintentional Substantive Revision to 82-4-227, MCA, subsection (10)
Montana proposed a revision to 82-4-227(10), MCA, that the State
labels, and presumably intended, as a nonsubstantive grammatical
change. The provision is proposed to be revised, in part, as follows:
A permit or major permit revision for a strip- or underground-
coal-mining operation may not be issued unless the applicant has
affirmatively demonstrated by its coal conservation plan that no
failure to conserve coal will not occur.
The last part of this proposal, by requiring the conservation plan
to demonstrate that no failure to conserve coal will not occur, would
require the conservation plans to demonstrate that all such failures
will occur. Such a revision would reverse the meaning of the existing
provision, which requires the conservation plan to demonstrate that no
failure to conserve coal will occur.
This proposed requirement would contradict one purpose of the
Montana statute as stated at MCA 82-4-202(g): ``[i]t is the declared
policy of this state and its people to * * * prevent the failure to
conserve coal.'' For this reason, OSM believes that the proposal
represents an unintended grammatical error, and that Montana either (1)
meant to delete the word ``no'' in the phrase ``* * * that no failure
to conserve coal * * *'' or (2) did not mean to add the word ``not'' in
the phrase ``* * * failure to conserve coal will not occur.'' Based on
this believe, the Director is approving the proposed provision, with
the understanding that the coal conservation plan must affirmatively
demonstrate that failure to conserve coal will be prevented. The
Director is also requiring Montana to further revise this provision to
clarify this intent.
3. MCA 82-4-224, Consent or Waiver by Surface Owner
Montana proposes to repeal statutory Section 82-4-224, MCA, which
provides that:
[I]n those instances in which the surface owner is not the owner
of the mineral estate proposed to be mined by strip-mining
operations, the application for a permit shall include the written
consent or a waiver by the owner or owners of the surface lands
involved to enter and commence strip-mining operations on such land,
except that nothing in this section applies when the mineral estate
is owned by the federal government in fee or in trust for an Indian
tribe.
Montana proposes this action (effective October 1, 1993) in accordance
with a decision in the case of Western Energy Co. v. Genie Land Co.,
227 Mont. 74, 737 P.2d 478 (1987). In that case the Montana Supreme
Court found the statutory section, and any rules adopted for the
implementation thereof, to be unconstitutional and in violation of the
Montana constitution, in that it permitted a taking without due
process, permitted the taking of private property without just
compensation, and permitted the impairment of the obligation of a
contract. This statutory provision was originally approved as a
counterpart provision to Section 510(b)(6) of SMCRA (45 FR 21560; April
1, 1980; see Administrative Record No. MT-1, Appendix C).
While Montana has repealed this statutory provision, it continues
to provide regulations at ARM 26.4.303(15) and 26.4.405(6)(k) that
impose requirements which are substantively equivalent to those imposed
by Section 510(b)(6) of SMCRA. SMCRA Section 510(b)(6) requires that in
cases where the private mineral estate has been severed from the
private surface estate, no permit shall be approved unless the
application demonstrates, and the regulatory authority finds, that the
applicant has submitted to the regulatory authority either (1) the
written consent of the surface owner to coal extraction by surface
mining, (2) a conveyance that expressly grants or reserves the right to
coal extraction by surface mining, or (3) if the conveyance does not
expressly grant the right to coal extraction by surface mining, the
surface-subsurface legal relationship shall be determined in accordance
with State law.
In cases where the mineral and surface estates are severed, ARM
26.4.303(15) requires each application to contain either (1) a written
consent by the surface owner to mineral extraction by strip mining, (2)
a conveyance that expressly grants or reserves the right to mineral
extraction by strip mining, or (3) if the conveyance does not expressly
grant the right to mineral extraction by strip mining, documentation
that under Montana law the applicant has the legal right to mineral
extraction by strip mining. In those same cases (where the mineral and
surface estates are severed), ARM 26.4.405(6)(k) provides that the
Department of State Lands (DSL) may not approve a permit unless the
application demonstrates, and DSL's findings confirm, that the
applicant has submitted the documentation required by ARM 26.4.303.
In its letter of January 19, 1994 (Administrative Record No. MT-11-
18), OSM requested that Montana address (1) whether it intended, in
response to the Montana Supreme Court decision discussed above, to
propose the repeal of ARM 26.4.303(15) and 26.4.405(6)(k), and (2)
whether Montana retained the statutory authority to promulgate and
enforce those regulations, given the repeal of 82-4-224, MCA.
In its response of July 28, 1994, (Administrative Record No. MT-11-
19), DSL's Chief Legal Counsel states that the statutory authority for
ARM 26.4.303(15) lies in 82-4-222(1)(d), MCA, which requires that a
permit application state the source of the applicant's legal right to
mine the mineral on the land affected by the permit. Montana further
states that the statutory authority for ARM 26.4.405(6)(k) lies in 82-
4-231(4), MCA; that provision requires DSL to determine whether each
application is administratively complete, which means, among other
things, that it contains information addressing each application
requirement in 82-4-222, MCA, and the rules implementing that section.
Montana further states that since neither of the two regulatory
provisions is based on the repealed statutory section (82-4-224, MCA),
Montana has no plans to repeal those regulatory provisions.
In its review of this proposed amendment, OSM noted that the
Montana program also contains, at MCA 82-4-203(35) and (36), statutory
definitions of ``waiver'' and ``written consent,'' and found no use of
these terms other than in the repealed section 82-4-224, MCA. In its
January 19, 1994, letter (Administrative Record No. MT-11-18), OSM
requested that Montana address the meaning of these terms in the
absence of the repealed provision. In its July 28, 1994, response
(Administrative Record No. MT-11-19), DSL's Chief Legal Counsel states
that these statutory definitions no longer serve any purpose within the
statute, but that their presence poses no [[Page 6008]] problem for the
administration of the statute.
Based on Montana's representations in its July 28, 1994, response
(Administrative Record No. MT-11-19), OSM finds that the Montana
program contains provisions at ARM 26.4.303(15) and 26.4.405(6)(k) that
are no less stringent than the requirements of Section 510(b)(6) of
SMCRA, and that Montana has adequate statutory authority for the
promulgation and enforcement of these regulatory provisions. Therefore
the Director finds that the proposed repeal of 82-4-224, MCA, does not
render the Montana program any less stringent that SMCRA, and is
approving the proposed repeal of that section.
4. MCA 82-4-226(1), Requirement for Prospecting Permit
Montana proposes to delete the introductory phrase ``[o]n and after
March 16, 1973,'' from the beginning of this subsection, which (with an
exception discussed in Finding No. 5 below) makes it unlawful to
prospect on land not included in a valid strip-mining or underground-
mining permit without the possession of a valid prospecting permit.
Under the proposed revision, the requirement for a prospecting permit
would not be limited to the period after March 16, 1973.
Since any current or future prospecting would be subject to this
subsection either with or without this time-limiting introductory
phrase, the Director finds this proposed revision to be nonsubstantive
in nature, and thus that the proposed revised statute is no less
effective in meeting SMCRA's requirements than the Federal regulations
and no less stringent than SMCRA. The Director approves the proposed
revision.
5. MCA 82-4-226(1) and (8), Prospecting Under Notice of Intent
At MCA 82-4-226(1), Montana proposes an exception to the provision
that it is unlawful to conduct prospecting operations without a
prospecting permit; the exception proposed is provided in proposed new
subsection MCA 82-4-226(8). Proposed subsection MCA 82-4-226(8) would
provide as follows:
(8) Prospecting that is not conducted in an area designated
unsuitable for coal mining pursuant to 82-4-227 or 82-4-228 and that
is not conducted for the purpose of determining the location,
quality, or quantity of a natural mineral deposit is not subject to
subsections (1) through (7). However, a person who conducts this
prospecting shall file with the department a notice of intent to
prospect, containing the information required by the department,
before commencing prospecting operations. If this prospecting
substantially disturbs the natural land surface, it must be
conducted in accordance with the performance standards of the
department's rules regulating the conduct and reclamation of
prospecting operations that remove coal. The department may inspect
these prospecting and reclamation operations at any reasonable time.
OSM notes that subsections (1) through (7) of MCA 82-4-226 currently
specify the requirements for prospecting permits, bonds, and reports;
these requirements currently apply to all prospecting operations.
Montana is not at this time proposing as a program amendment any
regulations to implement this proposed statutory provision. In its July
28, 1994, letter (Administrative Record No. MT-11-19), Montana
expressed its intent to promulgate such rules in the near future.
Further, OSM is aware that Montana has in fact initiated State
rulemaking proceedings to promulgate such rules. Because Montana is not
now proposing regulations to implement these proposed statutory
revisions, but has initiated efforts to do so, OSM has reviewed the
proposed statutory provisions only in comparison to the requirements of
SMCRA, where they exist, rather than in comparison to the requirements
of the implementing Federal regulations. Therefore, the Director notes
here that, to the extent he approves these statutory provisions (as
discussed below), Montana may not implement these statutory provisions
concerning prospecting under notices of intent, until such time as
Montana proposes, and OSM approves, State regulations that (in
conjunction with these statutory provisions) are no less stringent that
SMCRA Section 512 and no less effective in achieving those requirements
than the implementing Federal regulations at 30 CFR Part 772.
OSM notes that under MCA 82-4-203(20), ``mineral'' means coal and
uranium. OSM also notes that it has codified at 30 CFR 926.16(f) a
requirement that Montana amend its definition of the term
``prospecting'' to be no less effective in implementing SMCRA's
requirements than the Federal definition of the term ``coal
exploration.''
a. Prospecting (Coal Exploration) Under Notices of Intent
Section 512(a) of SMCRA requires that each State and Federal
program include a requirement that coal exploration operations which
substantially disturb the natural land surface be conducted in
accordance with exploration regulations issued by the regulatory
authority. Moreover, section 512(a) of SMCRA provides that such
regulations must include, at a minimum: (1) The requirement that prior
to conducting any exploration, a person must file with the regulatory
authority notice of intention to explore (including a description of
the proposed area and the proposed time period); and (2) provisions of
reclamation in accordance with the performance standards of SMCRA
Section 515. Section 512(d) requires that no operator shall remove more
than 250 tons of coal pursuant to an exploration permit without the
specific written approval of the regulatory authority. As noted above,
OSM has promulgated regulations implementing these statutory provisions
at 30 CFR Part 772; but Montana's proposed statutory provisions are
being reviewed in comparison to the statutory requirements of SMCRA
rather than to the Federal regulatory requirements.
The proposed Montana statute would prohibit prospecting (coal
exploration) under notices of intent on lands designated as unsuitable
for mining, and would additionally prohibit prospecting under notices
of intent if the prospecting is conducted for the purpose of
determining the location, quality, or quantity of a coal deposit, no
matter on what lands or the degree of disturbance. There is a
prohibition against exploring under a notice of intent on land
designated as unsuitable for mining in the Federal regulations at 30
CFR 772.11(a) and 772.12(a), but there is no Federal prohibition
against exploring under a notice of intent when the purpose is to
determine the location, quality, or quantity of a coal deposit. Under
SMCRA Section 505(b), no State law which provides for more stringent
land use and environmental controls than SMCRA shall be construed as
being inconsistent with SMCRA.
However, SMCRA Section 512(d) explicitly prohibits the removal of
more than 250 tons of coal pursuant to exploration activities without
the specific written approval of the regulatory authority. OSM
interprets this requirement for ``specific written approval,'' together
with the title of SMCRA Section 512 (``Coal Exploration Permits''), as
a requirement that a coal exploration permit be obtained for
exploration activities that will remove more than 250 tons of coal (see
48 FR 40622, 40622, 40626; September 8, 1983). The proposed Montana
provision does not correspondingly prohibit prospecting under notices
of intent when more than 250 tons of coal will be removed. In its
letter of July 28, 1994 (Administrative Record No. MT-11-19),
[[Page 6009]] Montana argues that, while it would be legally possible
under its proposed statute for a drilling operation conducted to
characterize overburden or an overburden sampling pit to remove more
than 250 tons of coal, it is extremely improbable that such an
operation would do so, and further that no prospecting operation in
Montana has ever done so. However, SMCRA Section 512(d) is a clear and
absolute requirement. Montana's proposed provision fails to prohibit
the removal of more than 250 tons of coal by prospecting (exploration)
activities under a notice of intent, and thus does not contain all
applicable provisions of SMCRA Section 512, and hence is inconsistent
with SMCRA.
In summary, proposed 82-4-226(1) and the first two sentences of
proposed 82-4-226(8), MCA, are as stringent as the provisions of SMCRA
in prohibiting prospecting activities under notices of intent on lands
designated as unsuitable for mining, and more stringent in prohibiting
such activities on any lands when the purpose is to determined the
location, quality, or quantity of a coal deposit. However, these
proposed Montana provisions are less stringent than SMCRA Section
512(d) in failing to prohibit prospecting operations under a notice of
intent when more than 250 tons of coal will be removed.
Based on the above discussion, the Director is approving proposed
82-4-226(1) and the first two sentences of proposed 82-4-226(8), MCA,
with the following proviso: Montana may not implement these provisions
until Montana has promulgated, and OSM has approved, State regulations
to implement these statutory revisions, to be no less effective than 30
CFR Part 772 in meeting SMCRA's requirements. Further, the Director is
requiring Montana to amend its program to prohibit prospecting
activities under notices of intent when more than 250 tons of coal are
to be removed.
b. Specification of Which Prospecting Activities Are Required To Meet
Performance Standards and Specification of Applicable Performance
Standards
As noted above, Montana proposes at MCA 82-4-226(8) that ``[i]f
this prospecting substantially disturbs the natural land surface, it
must be conducted in accordance with the performance standards of the
department's rules regulating the conduct and reclamation of
prospecting operations that remove coal.'' Montana is not at this time
proposing any definition of ``substantially disturbs'' although in its
letter of July 28, 1994 (Administrative Record No. MT-11-19), Montana
states its intention to do so in the near future. OSM notes that the
existing Montana program at ARM 26.4, Subchapter 10, contains
prospecting performance standards; however, the Montana program does
not specify which of these are performance standards for prospecting
operations that remove coal and which are not.
The existing Montana statute contains no requirement that
prospecting operations be conducted in accordance with performance
standards, and the statute as proposed for revision would contain no
such requirement for prospecting conducted under a prospecting permit.
The existing Montana rules at ARM 26.4 Subchapter 10 require all
prospecting operations to meet specified performance standards; these
performance standards apply even to prospecting that does not
substantially disturb the natural land surface. This is more stringent
than SMCRA Section 512(a), which only requires that coal exploration
operations which substantially disturb the natural land surface be
conducted under regulatory programs that include regulations requiring
that all lands disturbed be reclaimed in accordance with the
performance standards of SMCRA Section 515. However, Montana is not
proposing to revise its statute so that not all prospecting operations
would be regulated in the same way. In particular, not all prospecting
would require a permit; and under the proposal, prospecting under a
notice of intent would be required to be conducted in accordance with
performance standards only if it substantially disturbs the natural
land surface.
In order to be consistent with the proposed statute, Montana's
performance standards at ARM 26.4 Subchapter 10 could no longer be
interpreted to apply to all prospecting operations. As a result, the
Montana program would contain no requirement that prospecting
operations conducted under prospecting permits be conducted in
accordance with performance standards if they substantially disturb the
land surface. In its letter of July 28, 1994 (Administrative Record No.
MT-11-19), Montana argues that under MCA 82-4-226(1) & (2), all
prospecting operations under prospecting permits are subject to
reclamation requirements and to bonding requirements. OSM has reviewed
these provisions; they specify reclamation plan requirements for
prospecting permit applications, and posting of performance bond before
the permit is issued. While the posting of bond provides an economic
incentive to complete the approved reclamation plan, these Montana
provisions do not provide a requirement that the prospecting be
conducted in accordance with performance standards. In one example, it
a defective permit is issued that does not address one or more
performance standards, there would be no requirement for the
prospecting operation to meet those missing performance standards.
Additionally, prospecting operations conducted illegally (with neither
a permit nor a notice) would not be required to meet performance
standards.
The Federal provision of SMCRA Section 512(a) requires that all
exploration that substantially disturbs the natural land surface be
conducted in accordance with performance standard of SMCRA Section 515;
this applies to both exploration under notices of intent and
exploration under exploration permits. As noted above, OSM has
promulgated regulations implementing these statutory provisions at 30
CFR Part 772 and at 30 CFR 701.5 (definition of the term
``substantially distrub''); however, as noted above Montana's proposed
statutory provisions are being reviewed only in comparison to the
Federal statutory requirements of SMCRA where they exist.
In summary, both the SMCRA provision at Section 512(a) and the
proposed Montana provision require adherence to performance standards
by prospecting (exploration) operations conducted under notices of
intent that substantially disturb the natural land surface; however, by
referring to ``performance standards * * * regulating * * * prospecting
operations that remove coal,'' the Montana proposal is unclear
regarding which performance standards are applicable, whereas the
Federal provisions clearly specify the performance standards of SMCRA
Section 515. Secondly, the Federal provisions further require adherence
to performance standards for exploration operations conducted under
exploration permits that substantially disturb the natural land
surface. But the Montana program, as proposed to be revised, would
contain no such requirement for prospecting operations conduced under
prospecting permits that substantially disturb the natural land
surface. OSM believes it is possible for Montana to remedy these
deficiencies in promulgating implementing regulations.
Based on the above discussion , the Director is approving the third
sentence of proposed 82-4-226(8), MCA, with the following proviso:
Montana may not implement this provision until Montana has promulgated,
and OSM has [[Page 6010]] approved, implementing State regulations that
are no less effective in meeting SMCRA's requirements than 30 CFR Part
772 and 30 CFR 701.5.
c. Right of Entry of Inspect
As noted above, Montana proposes at MCA 82-4-226(8) that ``[t]he
department may inspect these prospecting and reclamation operations
[i.e., prospecting under notices of intent] at any reasonable time.''
SMCRA Section 512 does not directly address right of entry
requirements for coal exploration operations. The Federal regulations
at 30 CFR 840.12(a) require that State regulatory program have
authorities that grant their representatives the right of entry to,
upon, and through any coal exploration operation without advance notice
and upon presentation of appropriate credentials. This right of entry
is not limited to ``reasonable times.'' At 30 CFR 840.12(b), the
Federal regulations further require State program to have authority for
their representatives to inspect any monitoring equipment or method of
exploration and to have access to and copy any records required under
the approved State program, at reasonable times without advance notice,
upon presentation of appropriate credentials. Both paragraphs further
provide that no search warrant is required for right of entry, except
that a state may provide for its use with respect to entry into a
building.
Montana's proposed provision, by providing right of entry to
prospecting operations (under notices of intent) only at ``reasonable
times,'' would grant right of entry at fewer times than required by the
Federal regulation. Further, Montana's proposal does not provide
authority for inspection of monitoring equipment or prospecting
methods, nor authority for access to and copying of any records
required by the Montana program, for prospecting operations conducted
under notices of intent. Nor does the proposal address the issue of
warrants.
Based on the above discussion, the Director finds that, in regard
to prospecting under notices of intent, the Montana proposal is less
effective than the Federal regulations in implementing SMCRA's
requirements. The Director is approving the last sentence of Montana's
proposed statutory provision at MCA 82-4-226(8) except the word
``reasonable.'' However, the Director is requiring Montana: (1) To
amend this enacted provision to remove the word ``reasonable;'' (2) to
amend this statutory provision, or otherwise amend its program, to
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, at any reasonable time without advance notice upon
presentation of appropriate credentials; and (3) to provide for
warrantless right of entry in a manner no less effective in achieving
SMCRA's requirements than the Federal regulations at 30 CFR 840.12.
6. MCA 82-4-227(11), Refusal of Permit; Scope of Operations on Which
Violations Require Permit Denial
Existing 82-4-227(11), MCA, requires that when information
available to DSL indicates that strip- or underground-coal-mining
operations owned or controlled by the applicant is currently in
violation of certain specified Federal or State laws or rules, DSL
shall not issue a permit or major revision until the applicant submits
certain proofs regarding the abatement of those violations. Montana is
proposing to revise this provision to add the same requirement for
violations on strip- or underground-coal-mining operations owned or
controlled by any person who owns or controls the applicant. Montana
also proposes nonsubstantive editorial revisions to the provision.
SMCRA Section 510(c) requires that when specified violations exist
on any surface coal mining operation owned or controlled by the
applicant, the permit shall not be issued without submission of certain
proofs regarding the abatement of those violations. The Federal
regulations at 30 CFR 773.15(b)(1) interpret this requirement to
include existing violations on any surface coal mining and reclamation
operation owned or controlled by either the applicant or by any person
who owns or controls the applicant.
Therefore both the Federal and the proposed Montana provisions
require that permits be denied (without submission of certain proofs)
for specified violations, not only on operations owned or controlled by
the applicant, but additionally on operations owned or controlled by
any person who owns or controls the applicant. Therefore the Director
finds Montana's proposed addition of the phrase ``or by any person who
owns or controls the applicant'' to be no less stringent than SMCRA
Section 510(c) and no less effective in implementing those SMCRA
requirements than the Federal regulations at 30 CFR 773.15(b)(1), and
the Director is approving the proposed addition of the phrase.
7. MCA 82-4-227(11) & (12), Refusal of Permit; Scope of Permitting
Actions Subject to Denial
Existing 82-4-227(11), MCA, requires that under the circumstances
discussed in Finding No. 6 above, DSL shall not issue a ``strip- or
underground-coal-mining permit or major revision.'' Montana is
proposing to revise this provision to require, under the specified
circumstances, denial of a ``strip- or underground-coal-mining permit
or amendment, other than an incidental boundary revision.'' Similarly,
existing 82-4-227(12), MCA, requires that when DSL finds (after
opportunity for hearing) that the applicant owns or controls any strip-
or underground-coal-mining operation which has demonstrated a pattern
of willful violations (of specified character) of certain Federal or
State laws, DSL shall not issue a ``strip- or underground-coal-mining
permit or major revision'' until the applicant submits certain proofs
regarding the abatement of violations. Montana is proposing to revise
this provision to require, in those circumstances, denial of a ``strip-
or underground-coal-mining permit or amendment, other than an
incidental boundary revision.'' Montana is also proposing
nonsubstantive editorial revisions to this provision.
In both proposed provisions, Montana's revisions would have the
effect of allowing the issuance of major revisions under the specified
circumstances, but prohibit the issuance of ``amendments,'' except that
incidental boundary revisions could be issued.
OSM notes that under MCA 82-4-225, ``amendments'' are increases or
decreases in the acreage to be affected under a permit; the same
procedures required of new permits apply to amendments (except for
incidental boundary revisions). Additionally, an existing provision of
the Montana program, ARM 26.4.412(4)(a), prohibits approval of the
transfer, sale, or assignment of permit rights under both sets of
circumstances described above (current violations and patterns of
violations).
SMCRA Section 510(c) and the Federal regulations at 30 CFR
773.15(b) prohibit the issuance of permits under both sets of specified
circumstances, but do not address permit revisions. SMCRA Section 511,
which specifies the requirements for permit revisions, does not
prohibit the approval of permit revisions under the specified
circumstances; and the Federal regulations at 30 CFR 773.15(b), 774.13,
and 773.17 do not prohibit permit revision approval, but do prohibit
the [[Page 6011]] approval of transfer, assignment, or sale of permit
rights, under the specified circumstances. SMCRA Section 511(a)(3) and
30 CFR 774.13(d) provide that incidental boundary revisions do not
require application for a new permit, and hence are not prohibited
under the specified circumstances; conversely, those Federal provisions
require that extensions to the permit area other than incidental
boundary revisions require application for a new permit, which would
subject such extensions to denial under SMCRA 510(c) and 30 CFR
773.15(b).
Thus under two sets of circumstances (existing violations on
operations owned or controlled by the applicant or by any person who
owns or controls the applicant, as discussed in Finding No. 6 above, or
demonstrated pattern of violations by the applicant, as discussed
above), both the Federal provisions and the proposed Montana provisions
prohibit the issuance of new permits, extensions to the permit area
other than incidental boundary revisions, and approval of the transfer,
sale, or assignment of permit rights. And in those circumstances, both
the Federal and the proposed Montana provisions would allow the
approval or issuance of permit revisions.
Based on the above discussion, the Director finds that Montana's
proposed revisions at MCA 82-4-227 (11) and 12 regarding the scope of
permitting actions subject to denial are no less stringent than the
scope of permitting actions subject to denial under SMCRA Section
510(c), and are no less effective than the scope of permitting actions
subject to denial under the Federal regulations at 30 CFR 773.15(b),
774.13, and 773.17 in implementing those requirements of SMCRA.
Therefore the Director is approving the proposed revisions.
8. MCA 82-4-227(13), Lands Designated by Congress as Unsuitable for
Surface Coal Mining
Subject to valid existing rights, existing 82-4-227(13), MCA,
prohibits strip- or underground-coal-mining operations ``on private
lands within the boundaries'' of certain specified Federal land
management areas designated by Congress (national park system, national
wildlife refuge system, etc.). Montana proposes to revise this
provision by deleting the word ``private,'' so that it would read ``on
lands within the boundaries'' of those areas (see Administrative Record
No. MT-11-04). Montana also proposes a nonsubstantive editorial change
to the provision.
SMCRA Section 552(e)(1) provides that, subject to valid existing
rights, no surface coal mining operations shall be permitted ``on any
lands within the boundaries'' of the specified land management areas.
Montana's proposed revision, by removing the word which limited the
applicability of the provision to only a specified subset of lands,
would extend the applicability to all lands within the boundaries of
the specified areas; this is the equivalent of the Federal provision,
which is applicable to ``any'' lands within the specified boundaries.
Therefore the Director finds that Montana's provision as revised is no
less stringent than SMCRA Section 522(e)(1), and is approving the
proposed revisions.
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 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Montana program.
a. The Billings Area Office of the Bureau of Indian Affairs
responded on August 11, 1993, with suggestions for additional editorial
revisions (Administrative Record No. MT-11-06). The State
Conservationist of the Soil Conservation Service (SCS) responded on
August 18, 1993 (Administrative Record No. MT-11-08) with similar
suggestions for additional editorial revisions.
Some of the instances where additional revision was suggested by
these comments are interpreted by OSM as typographical errors in the
preparation of this submittal. For instance, the second sentence of MCA
82-4-227(2) (introductory text) as contained in this submittal appears
to be redundant of the last sentence and should be deleted. Similarly,
82-4-227(2)(d) as contained in this submittal has a typographical error
in the parenthetical provision. OSM interprets these as typographical
errors in the preparation of this submittal because they are not
indicated as intentional proposed changes by strikeout or underline.
These errors do not exist in the enacted statutes previously approved
by OSM. Others of these comments did address provisions that Montana
does propose to revise; one of these items in BIA's comments has been
addressed in Finding No. 2 above. BIA's and SCS's remaining suggestions
will be forwarded to Montana for its consideration. However, except for
the instance addressed in Finding No. 2, OSM does not find that any of
the editorial imperfections identified in these agency comments render
the proposed Montana statutes less stringent than SMCRA or less
effective than the Federal regulations in meeting SMCRA's requirements.
b. The Mine Safety and Health Administration responded on August 12
and 26, 1993, that it did not find any apparent conflict with its
regulations (Administrative Record Nos. MT-11-07 and MT-11-11).
c. The Office of Trust Responsibilities of the Bureau of Indian
Affairs stated in a response dated on September 24, 1993, that they had
no objection to the proposed amendment because they did not believe it
would affect Indian Lands (Administrative Record No. MT-11-16).
d. The Montana State Office of the Bureau of Land Management
responded on September 1, 1993 (Administrative Record No. MT-11-15),
that it supports the proposed amendment, but offered no detailed
comments.
e. Two agencies responded that they had no comments: U.S. Fish and
Wildlife Service (August 26, 1993; Administrative Record No. MT-11-10);
Bureau of Mines (August 30, 1993; Administrative Record Nos. MT-11-13
and MT-11-14).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant 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 program 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.).
None of the revisions that Montana proposed to make in its amendment
pertain to air or water quality standards. Therefore, pursuant to
732.17(h)(11)(i), OSM solicited comments on the proposed amendment from
EPA (Administrative Record No. MT-11-03). EPA responded on August 27,
1993, that it had no comments (Administrative Record No. MT-11-12).
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 [[Page 6012]] amendment from the SHPO and ACHP (Administrative
Record No. MT-11-03). Neither SHPO and 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 June 16 and July 28, 1993, and as supplemented with
additional explanatory information on July 28, 1994.
The Director does not approve, as discussed in Finding No. 5.c.,
the word ``reasonable'' in the last sentence of proposed MCA 82-4-
226(8), concerning the right of entry to inspect prospecting operations
under notices of intent.
The Director approves, as discussed in: Finding No. 1, proposed MCA
82-4-203 (14), (16), (21), (23), (29), (34), (35), and (36), concerning
definitions; proposed MCA 82-4-226 (2), (3), (5), and (6), concerning
coal exploration (``prospecting'') permits and notices of intent;
proposed MCA 82-4-227 (1), (2), (3), (7), (8), and (9), concerning
permit approval/denial; Finding No. 3, proposed deletion of MCA 82-4-
224, concerning surface owner consent; Finding No. 4, proposed MCA 82-
4-226(1), concerning the requirement to obtain prospecting permits;
Finding Nos. 6 and 7, proposed MCA 82-4-227 (11) and (12), concerning
refusal of permitting actions for current violations or patterns of
violations; and Finding No. 8, proposed MCA 82-4-227(13) concerning
refusal of permit on lands designated as unsuitable for mining.
With the requirement that Montana further revise its program, the
Director approves, as discussed in: Finding No. 2, proposed MCA 82-4-
227(10) concerning permit issuance requirements for coal conservation
plan, with the requirement that Montana further revise the provision to
clarify that the coal conservation plan must affirmatively demonstrate
that failure to conserve coal will be prevented; Finding No. 5.a.,
proposed MCA 82-4-226 (1) and (8) (first and second sentence)
concerning prospecting under notices of intent, with the proviso that
Montana may not implement these provisions until Montana promulgates
and OSM approves State implementing regulations that in conjunction
with these provisions are less stringent than SMCRA Section 512 and no
less effective in implementing SMCRA Section 512 that the Federal
regulations at 30 CFR Part 772, and with the requirement that Montana
further revise its program to prohibit prospecting under notices of
intent when more than 250 tons of coal are to be removed; Finding No.
5.b., proposed MCA 82-4-226(8) (third sentence) concerning performance
standard compliance requirements for prospecting under notices of
intent, with the proviso that Montana may not implement these
provisions until Montana promulgates and OSM approves State
implementing regulations that in conjunction with these provisions are
no less stringent than SMCRA Section 512 and no less effective in
implementing SMCRA Section 512 than the Federal regulations at 30 CFR
Part 772 and 30 CFR 701.5; and Finding No. 5.c., proposed MCA 82-4-225
(1) and (8) (fourth [last] sentence) concerning right of entry to
inspect prospecting operations under notices of intent, with the
requirement that Montana further revise the provision to delete the
word ``reasonable,'' additionally revise its program to 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, at any
reasonable time without advance notice upon presentation of appropriate
credentials, and additionally revise its program to provide for
warrantless right of entry in accordance with 30 CFR 840.12 for
prospecting operations conducted under notices of intent.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
926.16 that, within 60 days of the publication of this final rule,
Montana must either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with Montana's established administrative or legislative
procedures.
The Federal regulations at 30 CFR Part 926, codifying decisions
concerning the Montana program, 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.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the Montana program, the Director will recognize only the
statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Montana of only such
provisions.
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 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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,
723.15, 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.). [[Page 6013]]
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.
VII. List of Subjects in 30 CFR 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 26, 1995.
Charles E. Sandberg,
Acting Assistant Director, Western Support 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 926.15 is amended by adding paragraph (l) to read as
follows:
Sec. 926.15 Approval of amendments to State regulatory program.
* * * * *
(l) With the exception of the word ``reasonable'' in the last
sentence of MCA 84-4-226(8), concerning right of entry to inspect
prospecting operations under notices of intent, revisions of the
following statutes, as submitted to OSM on June 16 and July 28, 1993,
and as supplemented with explanatory information on July 28, 1994, are
approved effective February 1, 1995:
82-4-203, MCA, subsections (14), (16), (21), (23), (29), (34), (35),
and (36), definitions; repeal of 82-4-224, MCA, surface owner
consent; 82-4-226, MCA, subsections (1), (2), (3), (5), (6), and
(8), prospecting permits and notices of intent 82-4-227, MCA,
subsections (1), (2), (3), (7), (8), (9), (10), (11), (12), and
(13), permit approval/denial criteria.
3. Section 926.16 is amended by revising the introductory
paragraph, by adding paragraphs (g) through (j), and by removing the
parenthetical at the end of the section to read as follows:
Sec. 926.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Montana is required to submit to
OSM by the specified date the following written, proposed program
amendment, or a description of an amendment to be proposed that meets
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for
enactment that is consistent with Montana's established administrative
or legislative procedures.
* * * * *
(g) By April 3, 1995, Montana shall revise MCA 82-4-227(10), or
otherwise modify its program, to require that no permit or major permit
revision may be issued unless the coal conservation plan affirmatively
demonstrates that failure to conserve coal will be prevented.
(h) By April 3, 1995, Montana shall revise MCA 82-4-226(8), or
otherwise modify its program, to prohibit prospecting under notices of
intent when more than 250 tons of coal are to be removed.
(i) By April 3, 1995, Montana shall revise MCA 82-4-266(8) to
delete the word ``reasonable'' in the final sentence.
(j) By April 3, 1995, Montana shall revise MCA 82-4-226(8), or
otherwise modify its program, to 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 warrantless 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).
[FR Doc. 95-2445 Filed 1-31-95; 8:45 am]
BILLING CODE 4310-05-M
