[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