[Federal Register Volume 63, Number 146 (Thursday, July 30, 1998)]
[Rules and Regulations]
[Pages 40790-40798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-20195]



[[Page 40789]]

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Part II





Department of the Interior





_______________________________________________________________________



Office of Surface Mining Reclamation and Enforcement



_______________________________________________________________________



30 CFR Part 926



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

  Federal Register / Vol. 63, No. 146 / Thursday, July 30, 1998 / Rules 
and Regulations  

[[Page 40790]]



DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926


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

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule.

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SUMMARY: The Governor of the State of Montana (Governor) and the 
Secretary of the Department of the Interior (Secretary) are amending 
the cooperative agreement between the Department of the Interior and 
the State of Montana for the regulation of surface coal mining and 
reclamation operations on Federal lands within Montana. Cooperative 
agreements are provided for under section 523(c) of the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). These amendments clarify 
Montana's responsibility for the administration of its approved State 
program on lands subject to the Federal lands program in Montana.

EFFECTIVE DATE: August 31, 1998.

FOR FURTHER INFORMATION CONTACT:
Ranvir Singh, P.E., Western Regional Coordinating Center, Office of 
Surface Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, 
Denver, CO 80202-5733; Telephone: (303) 844-1489.

SUPPLEMENTARY INFORMATION:

I. Background

II. Summary of the Cooperative Agreement

Article I: Authority, Purposes, and Responsible Agencies.
Article II: Effective Date.
Article III: Definitions.
Article IV: Applicability.
Article V: Requirements for the Agreement.
Article VI: Review and Approval of the PAP or Application for 
Transfer, Assignment or Sale of Permit Rights (Transfer 
Application).
Article VII: Inspections.
Article VIII: Enforcement.
Article IX: Bonds.
Article X: Designating Land Areas Unsuitable for All or Certain 
Types of Surface Coal Mining and Reclamation Operations and 
Activities, and Valid Existing Rights and Compatibility 
Determinations.
Article XI: Termination of the Agreement.
Article XII: Reinstatement of the Agreement.
Article XIII: Amendments to the Agreement.
Article XIV: Changes in State or Federal Standards.
Article XV: Changes in Personnel and Organization.
Article XVI: Reservation of Rights.

III. Procedural Determinations

1. Executive Order 12866--Regulatory Planning and Review
2. Regulatory Flexibility Act
3. Small Business Regulatory Enforcement Fairness Act
4. Unfunded Mandates
5. Executive Order 12630--Takings
6. Executive Order 12612--Federalism
7. Executive Order 12988--Civil Justice Reform
8. Paperwork Reduction Act
9. National Environmental Policy Act
10. Author

I. Background

    On June 4, 1980, the Governor submitted a request for a cooperative 
agreement between the Department of the Interior and the State of 
Montana to give the State primacy in the administration of its approved 
regulatory program on Federal lands within Montana. The Secretary 
approved the cooperative agreement on January 19, 1981 (46 FR 20983, 
April 8, 1981). The text of the existing cooperative agreement can be 
found at 30 CFR 926.30.
    On July 5, 1994, the Governor, pursuant to 30 CFR 745.14 and at the 
recommendation of the Office of Surface Mining Reclamation and 
Enforcement (OSM), submitted a proposed modified cooperative agreement 
to address among other things, elimination of duplicative State-Federal 
permitting efforts and streamlining of the permitting processes in 
accordance with the revised Federal lands regulations at 30 CFR Part 
740 (48 FR 6912, February 16, 1983). OSM published the requested 
amendments in the January 10, 1997, Federal Register (62 FR 1408) and 
announced a public comment period on the proposed rules until March 11, 
1997. The notice also provided that, if requested, OSM would hold a 
public hearing. However, since no person contacted OSM to express an 
interest in testifying at the public hearing, no public hearing was 
held. OSM reopened the comment period on the proposed rule for an 
additional 30 days on April 7, 1997 (62 FR 16506) but did not receive 
any written comments on the proposed amendments during either of the 
two comment periods.

II. Summary of the Cooperative Agreement

    No written comments were received from any person or organization 
on the proposed amendments during the specified comments period. 
Therefore, no changes are being made and the proposed amendments as 
published in the Federal Register on January 10, 1997 (62 FR 1408) are 
being adopted as final. A discussion of the terms of the cooperative 
agreement follows.

Article I: Authority, Purposes, and Responsible Agencies

    Paragraph A of Article I sets forth the legal authority for the 
Montana Cooperative Agreement (Agreement); which is provided by section 
523(c) of SMCRA. This paragraph states that the Agreement provides for 
State regulation of coal exploration operations \1\ not subject to 43 
CFR Group 3400, and surface coal mining and reclamation operations and 
activities in Montana on Federal lands.
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    \1\ The term ``Exploration operations'' is referred to as 
``Prospecting'' in the Montana State Program.
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    Paragraph B sets out the purposes of the Agreement.
    Paragraph C states that the Department of Environmental Quality 
(DEQ) is the agency responsible for administering the Agreement on 
behalf of the Governor of Montana. Paragraph C also names OSM as the 
agency responsible for administering the Agreement on behalf of the 
Secretary.

Article II: Effective Date

    Article II provides that after the Agreement has been signed by the 
Secretary and the Governor, it will become effective 30 days after 
publication in the Federal Register. It will remain in effect until 
terminated as provided in Article XI.

Article III: Definitions

    Article III provides that the terms and phrases used in the 
Agreement, except the term ``permit application package (PAP),'' would 
have the same meanings as they have in SMCRA, 30 CFR Parts 700, 701, 
740, and the State Program. As explained in the proposed rule published 
in the Federal Register on January 10, 1997, 62 FR 1408, 1409-1410, 
additional language has been included in Article III to define the term 
``Permit Application Package (PAP).'' Defining terms and phrases in 
this manner ensures consistency between applicable regulations and the 
Agreement. Where there is a conflict between the referenced State and 
Federal definitions, the definitions used in the State Program will 
apply, unless otherwise required by Federal regulation.

Article IV: Applicability

    Article IV states that the laws, regulations, terms and conditions 
of the State Program are applicable to Federal lands in Montana except 
as otherwise stated in the Agreement, SMCRA, 30 CFR 740.4, 740.11(a), 
and 745.13 or other applicable Federal laws, Executive Orders, or 
regulations.

[[Page 40791]]

Article V: Requirements for the Agreement

    Paragraph A mutually binds the Governor and the Secretary to comply 
with all provisions of the Agreement.
    Paragraph B.1 requires DEQ to devote adequate funds to the 
administration and enforcement of the requirements of the State Program 
on Federal lands. OSM is required to reimburse the State, as provided 
in section 705(c) of SMCRA and 30 CFR 735.16, for the costs of 
administration and enforcement if the State complies with the terms of 
this Agreement and necessary funds have been appropriated to OSM. The 
amount of such funds shall be determined in accordance with the 
provisions of Chapter 3-10 and Appendix 111 of the Federal Assistance 
Manual.
    Paragraph B.2 provides that if DEQ applies for a grant but 
sufficient funds have not been appropriated to OSM, OSM and DEQ shall 
promptly meet to decide on appropriate measures that will insure that 
surface coal mining and reclamation operations on Federal lands in 
Montana are regulated in accordance with the State Program.
    Paragraph B.3 provides that the funds reimbursed to DEQ under this 
Agreement will be adjusted in accordance with the program income 
provisions of 43 CFR Part 12.
    Paragraph C provides that DEQ shall submit annual reports to OSM as 
required by 30 CFR 745.12(d). The report will contain information about 
DEQ's compliance with the terms of the Agreement. OSM and DEQ shall 
exchange information that is developed under the Agreement, unless 
prohibited by Federal or State law. OSM is also required to provide DEQ 
with a copy of OSM's final evaluation report regarding State 
administration and enforcement of the Agreement, and if the State has 
any comments on the evaluation report, OSM shall attach those comments 
to the report before sending it to the Congress or other interested 
parties.
    Paragraph D requires DEQ to maintain necessary personnel to fully 
implement the Agreement in accordance with the provisions of SMCRA, the 
Federal lands program, and the State Program.
    Paragraph E provides that DEQ shall assure itself access to 
equipment, laboratories, and facilities to perform all necessary 
inspections, investigations, studies, tests, and analyses.
    Paragraph F states that the amount of fee charged from an applicant 
to obtain a permit to conduct surface coal mining and reclamation 
operations, will be determined by the provisions of section 82-4-223(1) 
of Montana Code Annotated (MCA), and the applicable provisions of 
Federal law. Permit fee collected by DEQ will be considered program 
income, and all permit fees and civil penalty fines shall be accounted 
for in accordance with the requirements of 43 CFR Part 12. However, 
civil penalty fines shall not be considered program income. The 
Financial Status Report submitted by DEQ pursuant to the requirements 
of 30 CFR 735.26 shall include the amount of permit application fees 
collected and attributable to Federal lands during the State fiscal 
year.

Article VI: Review and Approval of the PAP or Application for Transfer, 
Assignment or Sale of Permit Rights (Transfer Application)

    Paragraph A describes the process that DEQ is required to follow 
for receipt and distribution of the PAP or transfer application.
    Under paragraph A.1 an applicant proposing to conduct surface coal 
mining and reclamation operations on Federal lands is required by DEQ 
to submit an appropriate number of copies of a PAP or transfer 
application to DEQ. Such PAP or transfer application shall be in the 
form required by DEQ and shall, at a minimum, contain the information 
required by 30 CFR 740, and any supplemental information required by 
OSM, the Bureau of Land Management (BLM) and the Federal land 
management agency.
    Under paragraph A.2, upon receipt of the PAP or transfer 
application, DEQ shall ensure that an appropriate number of copies of 
the PAP or transfer application are provided to OSM, the Federal land 
management agency and any other appropriate Federal agency.
    Paragraph B describes the procedures for review of the PAP or 
transfer application.
    Paragraph B.1 describes the responsibilities of DEQ with respect to 
review, analysis, and approval or disapproval of the permit application 
component of the PAP or transfer application. As authorized in 30 CFR 
740.4(c), DEQ is responsible for: (1) being the primary point of 
contact with the applicant regarding the review of the PAP or transfer 
application, and all decisions and determinations on the PAP or 
transfer application; (2) analysis, review and approval or disapproval 
of the PAP or transfer application; (3) obtaining comments and findings 
of Federal agencies; (4) obtaining OSM's determination if a permit 
revision issued by DEQ will constitute a mining plan modification 
pursuant to 30 CFR 746.18, and informing the applicant of such 
determination; (5) consulting with and obtaining the consent, as 
necessary, of the Federal land management agency as required by 30 CFR 
740.4(c)(2); (6) consulting and obtaining the consent, as necessary, of 
BLM as required by 30 CFR 740.4(c)(3); (7) approval and release of 
performance bonds, and approval and maintenance of liability insurance; 
(8) review and approval of exploration operations as provided in 30 CFR 
740.4(c)(6); (9) preparation of documentation to assist OSM in assuring 
compliance with the requirements of the National Environmental Policy 
Act (NEPA) and preparation of a State decision package when a mining 
plan action is required pursuant to 30 CFR 746.18. In the proposed 
rulemaking, paragraph B.1.a(2) provided, among other things, that DEQ 
is responsible for the analysis, review, and approval, conditional 
approval, or disapproval of the permit application component of the PAP 
or the transfer application for surface coal mining and reclamation 
operations on Federal lands in Montana.
    In ``Article III: Definitions'' of the proposed rule, the term PAP 
was defined, for purposes of the Agreement, to mean ``a proposal to 
conduct surface coal mining and reclamation operations on Federal 
lands, including an application for a permit, permit revision, permit 
amendment, or permit renewal, and all information required by SMCRA, 
the Federal regulations, the State Program, this agreement, and all 
other applicable laws and regulations, including, with respect to 
leased Federal coal, the Mineral Leasing Act of 1920 (MLA) and its 
implementing regulations.''
    Pursuant to the Agreement, DEQ has the responsibility to analyze, 
review, and approve, conditionally approve or disapprove only that 
information in the PAP that is submitted by the applicant for a permit, 
permit revision, permit amendment, or permit renewal, and all 
information required by SMCRA, the Federal regulations, the State 
Program. The phrase ``the permit application component of the PAP,'' 
therefore, clarifies that DEQ will not be expected to review, analyze, 
review, and approve, conditionally approve or disapprove the 
information in the PAP that is submitted by the applicant pursuant to 
the requirements of ``all other applicable laws and regulations, 
including, with respect to leased Federal coal, the MLA and its 
implementing regulations.''
    Paragraph B.2 describes the responsibilities of OSM with respect 
to: (1) making determinations and evaluations for NEPA compliance 
documents required by 30 CFR 740.4(c)(7)(i) through (vii); (2) 
reviewing appropriate portions of the PAP to

[[Page 40792]]

assure compliance with the non-delegable responsibilities of the 
Secretary pursuant to SMCRA and 30 CFR 745.13; (3) consulting with BLM 
prior to making a determination required by 30 CFR 746.18; (4) 
exercising its responsibilities in a timely manner; (5) providing 
assistance to DEQ in carrying out its responsibilities; and (6) when a 
mining plan action is required pursuant 746.18, consulting with and 
obtaining concurrences of BLM, the Federal land management agency, and 
any other Federal agency, resolving issues when certain conditions 
required by the Federal land management agency are not included in the 
permit by DEQ, and preparing a decision document and recommendations to 
the Secretary for approval, disapproval or approval with conditions of 
a mining plan or modification thereof pursuant to 30 CFR 746.13.
    Paragraph B.3 provides that the Secretary shall: (1) concurrently 
and in a timely manner, carry out his responsibilities that cannot be 
delegated to DEQ pursuant SMCRA and 30 CFR 745.13 and other laws and 
regulations; (2) reserve the right to act independently of DEQ under 
laws other than SMCRA, and to delegate some of the responsibilities to 
OSM; and (3) approve, disapprove, or approve with conditions, the 
mining plan actions for leased Federal coal pursuant to 30 CFR 
740.4(a)(1).
    Paragraph B.4 sets forth the coordination obligations of OSM and 
DEQ in order to meet the purposes of the Agreement. Accordingly, OSM 
and DEQ will be required to coordinate with each other in developing a 
work plan and designating project leaders for the PAP or transfer 
application review process, and in scheduling meetings with the 
applicant. OSM will not independently initiate contacts with applicants 
regarding completeness or deficiencies during the review of a PAP or 
transfer application. As review of the PAP or transfer application 
progresses, DEQ will keep OSM informed of its findings that may affect 
the responsibilities of OSM and other Federal agencies. DEQ will also 
send to OSM copies of any correspondence with the applicant, and allow 
OSM access to DEQ files concerning operations of Federal lands. 
Likewise, OSM shall send to DEQ copies of the correspondence or any 
other information received from the applicant. Any differences of 
opinion that may surface during the PAP or transfer application review 
process, should be resolved at the lowest possible staff level.
    Paragraph B.4 also provides for OSM and DEQ, with the concurrence 
of any appropriate Federal agency, to enter into working agreements 
without amending this Agreement to delegate to DEQ additional 
responsibilities and decisions that are authorized under applicable 
Federal laws other than SMCRA. DEQ is also required to work with 
appropriate agency to develop mutually acceptable terms and conditions 
for inclusion in the permit issued pursuant to section 522(e)(3) to 
mitigate adverse impacts on any publicly owned park or places included 
in the National Register of Historic Sites (NRHS).
    Paragraph C describes the process that DEQ is required to follow 
during the approval of the PAP or transfer application.
    Paragraph C.1 provides that DEQ shall make a decision on the permit 
application component or the PAP or transfer application on Federal 
lands.
    In paragraph C.2, during this decision-making process, DEQ is 
required to consider the comments of Federal agencies in the context of 
permit issuance and document these comments in the record of permit 
decisions. If the permit conditions recommended by Federal agencies are 
not adopted by DEQ, DEQ is required to provide OSM with documentation 
as to why they were not included as permit conditions.
    Under paragraph C.3, if DEQ approves the PAP or transfer 
application before the Secretarial decision on a mining plan, DEQ is 
required to advise the applicant that Secretarial approval of the 
mining plan must be obtained before the applicant may conduct surface 
coal mining and reclamation operations on the Federal lands.
    Paragraph C.4 provides that after making a decision on the PAP or 
transfer application, DEQ is required to send a copy of the signed 
permit form and State decision document to the applicant, OSM and other 
appropriate agencies.

Article VII: Inspections

    Paragraphs A and B state that DEQ will conduct inspections on lands 
covered by this Agreement and prepare and file State inspection reports 
in accordance with the State Program.
    Paragraph C designates DEQ as the point of contact and inspection 
authority in dealing with the operator. However, this Agreement shall 
not prevent inspections by authorized Federal or State agencies for 
purposes other than those covered by this Agreement.
    Paragraph D provides that authorized representatives of the 
Secretary may conduct any inspections necessary to comply with 30 CFR 
Parts 842 and 843 and with the Secretary's obligations under laws other 
than SMCRA.
    Paragraph E states that when OSM intends to conduct an inspection 
under 30 CFR 842.11, DEQ will be given reasonable notice of such an 
inspection to provide opportunity for State inspectors to join in the 
inspection. When OSM intends to conduct an inspection in response to a 
citizen complaint supplying adequate proof of imminent danger to public 
health and safety, or a significant imminent environmental harm to 
land, air, or water resources, DEQ will be given at least a 24-hour 
notice, if practicable, to facilitate a joint Federal-State inspection. 
Citizen complaints not involving an imminent harm to the public or the 
environment will be initially referred to DEQ for action. However, the 
Secretary reserves the right to conduct inspections without prior 
notice to DEQ, if necessary, to carry out his responsibilities under 
SMCRA.

Article VIII: Enforcement

    Article VIII sets forth the enforcement obligations and authorities 
of OSM and DEQ.
    Under paragraph A, DEQ will have primary enforcement authority on 
Federal lands in accordance with the requirements of the Agreement and 
State Program. Enforcement authority given to the Secretary under 
Federal laws and Executive Orders will be reserved by the Secretary.
    Under paragraph B, DEQ will have primary responsibility for 
enforcement during joint inspections with OSM. Paragraph B also 
includes a requirement that DEQ notify OSM prior to suspending or 
revoking a permit, BLM of any suspension, rescission or revocation of a 
permit containing leased Federal coal.
    Paragraph C preserves OSM's authority to take any enforcement 
action necessary to comply with 30 CFR Parts 842, 843, 845 and 846 
where OSM conducted an inspection or where, during a joint inspection 
with DEQ, the two cannot agree on the appropriateness of a particular 
enforcement action.
    Paragraph D provides that OSM and DEQ will notify each other of all 
violations of applicable regulations and all actions taken on the 
violations.
    Paragraph E provides that personnel of DEQ and OSM will be mutually 
available to serve as witnesses in enforcement actions taken by either 
party.
    Paragraph F specifies that this Agreement will not limit the 
Secretary's

[[Page 40793]]

authority to enforce Federal laws other than SMCRA.

Article IX: Bonds

    Under paragraph A, DEQ and the Secretary will require each operator 
conducting operations on Federal lands to submit a single performance 
bond, sufficient to cover the operator's responsibilities, jointly 
payable to both the United States and DEQ. All applicable State and 
Federal requirements must be fulfilled during the bond period. If the 
Agreement is terminated, paragraph A requires that the portion of the 
bond covering Federal lands shall be payable only to the United States.
    Paragraph B provides that DEQ will have the primary responsibility 
to approve and release performance bonds, however, DEQ must obtain 
OSM's concurrence prior to releasing a performance bond on lands 
subject to an approved mining plan. OSM, in turn, will be required to 
coordinate with the appropriate Federal land management agency before 
concurring to such bond release. DEQ will annually advise OSM of any 
adjustments to the performance bond.
    Paragraph C states that forfeiture of performance bonds will be in 
accordance with the State Program and subject to OSM concurrence.
    Paragraph D clarifies that the performance bond does not meet the 
requirement for a Federal lease bond under 43 CFR Part 3474, or for the 
lessee protection bond required in certain circumstances by section 715 
of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain Types 
of Surface Coal Mining and Reclamation Operations and Activities, and 
Valid Existing Rights and Compatibility Determinations

    Paragraph A.1 provides that a petition to designate areas of 
Federal lands as unsuitable for all or certain types of surface coal 
mining and reclamation operation will be filed with OSM for processing 
in accordance with 30 CFR 769, and that the Secretary reserves the 
authority to designate or terminate such designation.
    Paragraph A.2 provides that DEQ and OSM will notify each other of 
any petition to designate lands as unsuitable that could impact 
adjacent Federal and non-federal lands, and solicit and consider each 
other's views on a petition. OSM will coordinate with the Federal land 
management agency with jurisdiction over the area covered by the 
petition, and will solicit comments. OSM and DEQ shall fully consider 
data, information, and recommendations of all agencies.
    Paragraph B.1 provides that the Secretary will make the valid 
exiting rights (VER) determination for Federal lands within the 
boundaries of any areas specified under section 522(e)(1) of SMCRA. 
Where surface coal mining and reclamation operations would be conducted 
on both Federal and non-Federal lands within such areas, the Secretary 
will make the VER determination for the Federal lands and DEQ will make 
the VER determination for State and private lands.
    Paragraph B.2 states that the Secretary will make VER 
determinations for Federal lands within the boundaries of any national 
forest where proposed surface coal mining and reclamation operations 
are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR 
761.11(b). OSM will process requests for determinations of 
compatibility under section 522(e)(2) of SMCRA and part 30 CFR 
761.12(c).
    Paragraph B.3 provides that DEQ will make the VER determination 
when a VER determination is requested for Federal lands protected under 
section 522(e)(3). DEQ will determine, in consultation with the State 
Historic Preservation Officer, whether any proposed operation will 
adversely affect any publicly-owned park or place listed on the NRHS.
    Paragraph B.3 also states that surface coal mining and reclamation 
operations of Federal lands protected under section 522(e)(3) of SMCRA 
may be permitted if approved jointly by DEQ, and the Federal, State, or 
local agency with jurisdiction over the park or historic place. In 
these instances, DEQ will coordinate with any agency with jurisdiction 
over the publicly-owned park or historic place to develop mutually 
acceptable terms and conditions for incorporation into the permit in 
order to mitigate environmental impacts.
    Paragraph B.4 provides that DEQ will process determinations of VER 
on Federal lands for all areas limited or prohibited by section 
522(e)(4) and (5) of SMCRA as unsuitable for mining.
    Paragraph B.5 states that for operations on Federal lands, whenever 
DEQ is responsible for making the VER determinations, DEQ will consult 
with OSM and any affected agency.

Article XI: Termination of the Agreement

    Article XI specifies that the Agreement may be terminated as 
specified under 30 CFR 745.15.

Article XII: Reinstatement of the Agreement

    Article XII provides that, if terminated, the Agreement may be 
reinstated under 30 CFR 745.16. That provision allows for reinstatement 
of a cooperative agreement upon application by the State after 
remedying the defects for which the agreement was terminated and the 
submission of evidence to the Secretary that the State can and will 
comply with all of the provisions of the Agreement.

Article XIII: Amendments to the Agreement

    Article XIII provides that the Agreement may be amended by mutual 
agreement of the Governor and the Secretary in accordance with 30 CFR 
745.14.

Article XIV: Changes in State or Federal Standards

    Paragraph A recognizes that the Secretary or the Governor may, from 
time to time, revise and promulgate new or revised performance or 
reclamation requirements or enforcement and administrative procedures. 
If it is determined to be necessary to keep this Agreement in force, 
each party shall change or revise its respective laws or regulations or 
request necessary legislative action. Such changes will be made under 
the procedures of 30 CFR Part 732 for changes to the State Program and 
under the procedures of section 501 of SMCRA for changes to the Federal 
lands program.
    Paragraph B requires that DEQ and OSM to provide each other with 
copies of any changes to their respective laws, rules, regulations, and 
standards pertaining to the enforcement and administration of this 
Agreement.

Article XV: Changes in Personnel and Organization

    Paragraph A states that DEQ and OSM shall advise each other of 
changes in the organization, structure, functions, duties and funds of 
the offices, departments, divisions, and persons within their 
organizations which could affect administration and enforcement of this 
Agreement. Each shall promptly advise the other in writing of changes 
in key personnel, including the head of a department or division, or 
changes in the functions or duties of the principal offices of the 
program. DEQ and OSM shall advise each other in writing of changes in 
the location of their respective offices, addresses, telephone numbers, 
as well as changes in the names, addresses, and telephone numbers of 
their respective personnel.

[[Page 40794]]

    Paragraph B provides that if the State Act be amended to transfer 
administration of the State Act to another agency, all references to 
DEQ in this Agreement shall be deemed to apply to the successor 
regulatory agency as of the date of the transfer. The provisions in 
this Agreement shall thereafter apply to that agency.

Article XVI: Reservation of Rights

    This agreement will not be construed as waiving or preventing the 
assertion of any rights in this Agreement that the State or the 
Secretary may have under laws other than the Act and the State Program, 
including, but not limited to those listed in Appendix A of this 
Agreement.

III. Procedural Determinations

1. Executive Order 12866--Regulatory Planning and Review

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (3) This rule does not alter the budgetary effects or entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    (4) This rule does not raise novel legal or policy issues.

2. Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This rule will amend the cooperative agreement between the Department 
of the Interior and the State of Montana. It will streamline the 
permitting process in Montana by delegating to Montana the sole 
responsibility to issue permits for coal mining and reclamation 
operations on Federal lands under the Federal lands program 
regulations. It will eliminate duplicative permitting requirements, 
thereby increasing governmental efficiency. The rule will also update 
the cooperative agreement to reflect current regulations and agency 
structures.

3. Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more. The rule only affects the State of Montana and the costs of 
carrying out the functions under the cooperative agreement are offset 
by grants from the Federal government.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions because the rule does not impose any 
new requirements on the coal mining industry or consumers. The 
functions being performed by the State under the cooperative agreement 
are offset by grants from the Federal government.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises for 
the reasons stated above.

4. Unfunded Mandates

    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State 
local or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(1 U.S.C. 1531, et seq.) is not required.

5. Executive Order 12630--Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. The rule revises an existing 
cooperative agreement at the request of the State of Montana and will 
result in the delegation of authority to the State. A takings 
implication assessment is not required.

6. Executive Order 12612--Federalism

    In accordance with Executive Order 12612, the rule does not have 
significant Federalism implications to warrant the preparation of a 
Federalism Assessment. The rule revises an existing cooperative 
agreement at the request of the State of Montana and will result in the 
delegation of authority to the State. Therefore, a Federalism 
assessment is not required.

7. Executive Order 12988--Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

8. Paperwork Reduction Act

    This regulation does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required. An OMB form 83-I is not required.

9. National Environmental Policy Act

    This rule has been reviewed by OSM and it has been determined to be 
categorically excluded from the NEPA process in accordance with the 
Departmental Manual 516 DM 6, Appendix 8.4(B)(21).

10. Author

    The principal author of this final rule is Ranvir Singh, P.E., 
Western Regional Coordinating Center, 1999 Broadway, Suite 3320, 
Denver, CO 80202-5733.

List of Subjects in 30 CFR Part 926

    Coal mining, Intergovernmental relations, Surface mining, 
Underground mining.

    Dated: June 15, 1998.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.

    Accordingly, 30 CFR Part 926 is amended as follows:

PART 926--MONTANA

    1. The authority citation for part 926 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 926.30 is revised to read as follows:


Sec. 926.30  State-Federal cooperative agreement.

COOPERATIVE AGREEMENT

    The Governor of the State of Montana (Governor) and the 
Secretary of the Department of the Interior (Secretary) enter into a 
State-Federal Cooperative Agreement (Agreement) to read as follows:

Article I: Authority, Purposes, and Responsible Agencies

A. Authority

    This Agreement is authorized by section 523(c) of the Surface 
Mining Control and Reclamation Act (SMCRA), 30 U.S.C. 1273(c), which 
allows a State with a permanent regulatory program approved by the 
Secretary, under 30 U.S.C. 1253, to elect to enter into an agreement 
for State control and

[[Page 40795]]

regulation of surface coal mining and reclamation operations on 
Federal lands. This Agreement provides for State regulation of coal 
exploration operations \1\ not subject to 43 CFR Group 3400, and 
surface coal mining and reclamation operations and activities in 
Montana on Federal lands consistent with SMCRA, the Federal lands 
program (30 CFR) Chapter VII, Subchapter D), and the Montana State 
Program (State Program), including among other things, the Montana 
Strip and Underground Mine Reclamation Act, Part 2, Chapter 4, Title 
82, Montana Code Annotated (State Act or MCA).
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    \1\ The term ``Exploration Operations'' is referred to as 
``Prospecting'' in the Montana State Program.
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B. Purposes

    The purposes of the Agreement are to (1) foster State-Federal 
cooperation in the regulation of surface coal mining and reclamation 
operations on Federal lands and coal exploration operations not 
subject to 43 CFR Group 3400; (2) minimize intergovernmental overlap 
and duplication; and (3) provide effective and uniform application 
of the State Program on all non-Indian lands in Montana.

C. Responsible Agencies

    The Montana Department of Environmental Quality (DEQ) shall 
administer this Agreement on behalf of the Governor. The Office of 
Surface Mining Reclamation and Enforcement (OSM) shall administer 
this Agreement on behalf of the Secretary.

Article II: Effective Date

    Upon signing by the Secretary and the Governor, this Agreement 
will take effect 30 days after final publication as a rule making in 
the Federal Register.\2\ This Agreement shall remain in effect until 
terminated as provided in Article XI.
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    \2\ See explanation in Article II at 46 FR 20983, April 8, 1981.
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Article III: Definitions

    The term and phrases used in this Agreement, except the term 
``permit application package (PAP),'' will be given the meanings set 
forth in SMCRA, 30 CFR Parts 700, 701, 740, and 761, and the State 
Program, including the State Act and the regulations promulgated 
pursuant to the State Act. Where there is a conflict between the 
above-referenced State and Federal definitions, the definitions used 
in the State Program will apply, unless otherwise required by 
Federal regulation.
    The term ``permit application package (PAP)'' for the purposes 
of this Agreement, means a proposal to conduct surface coal mining 
and reclamation operations on Federal lands, including an 
application for a permit, permit revision, permit amendment, or 
permit renewal, and all information required by SMCRA, the Federal 
regulations, the State Program, this Agreement, and all other 
applicable laws and regulations, including, with respect to leased 
Federal coal, the Mineral Leasing Act of 1920 (MLA) and its 
implementing regulations.

Article IV: Applicability

    In accordance with the Federal lands program, the laws, 
regulations, terms and conditions of the State Program are 
applicable to Federal lands in Montana except as otherwise stated in 
this Agreement, SMCRA, 30 CFR 740.4, 740.11(a), and 745.13 or other 
applicable Federal laws, Executive Orders, or regulations.

Article V: Requirements for the Agreement

    The Governor and the Secretary affirm that they will comply with 
all provisions of this Agreement.

A. Funds

    1. The State shall devote adequate funds to the administration 
and enforcement on Federal lands in Montana of the requirements 
contained in the State Program. If the State complies with the terms 
of this Agreement, and if necessary funds have been appropriated, 
OSM shall reimburse the State as provided in section 705(c) of SMCRA 
and 30 CFR 735.16 for the costs associated with carrying out 
responsibilities under this Agreement. The amount of such funds 
shall be determined in accordance with the provisions of Chapter 3-
10 and Appendix 111 of the Federal Assistance Manual.
    2. If DEQ applies for a grant but sufficient funds have not been 
appropriated to OSM, OSM and DEQ shall promptly meet to decide on 
appropriate measures that will insure that surface coal mining and 
reclamation operations on Federal lands in Montana are regulated in 
accordance with the State Program.
    3. Funds provided to DEQ under this Agreement will be adjusted 
in accordance with the program income provisions of 43 CFR Part 12.

B. Reports and Records

    1. DEQ shall submit annual reports to OSM containing information 
with respect to its compliance with the terms of this Agreement 
pursuant to 30 CFR 745.12(d). Upon request, DEQ and OSM shall 
exchange, except where prohibited by Federal or State law, 
information developed under this Agreement. OSM shall provide DEQ 
with a copy of any final evaluation report prepared concerning State 
administration and enforcement of this Agreement. DEQ comments on 
the report will be attached before being sent to the Congress or 
other interested parties.

C. Personnel

    DEQ shall maintain the necessary personnel to fully implement 
this Agreement in accordance with the provisions of SMCRA, the 
Federal lands program, and the State Program.

D. Equipment and Facilities

    DEQ shall assure itself access to equipment, laboratories, and 
facilities with which all inspections, investigations, studies, 
tests, and analyses can be performed and which are necessary to 
carry out the requirements of this Agreement.

E. Permit Application Fees and Civil Penalties

    The amount of the fee accompanying the PAP shall be determined 
in accordance with section 82-4-223(1), of MCA, and the applicable 
provisions of Federal law. All permit fees and civil penalty fines 
shall be accounted for in accordance with the provisions of 43 CFR 
Part 12. Permit fees will be considered program income. Civil 
penalties will not be considered program income. The Financial 
Status Report submitted pursuant to 30 CFR 735.26 shall include the 
amount of the permit application fees collected and attributable to 
Federal lands during the State fiscal year.

Article VI: Review and Approval of the PAP or Application for Transfer, 
Assignment or Sale of Permit Rights (Transfer Application)

A. Receipt and Distribution of the PAP or Transfer Application

    1. DEQ shall require an applicant proposing to conduct surface 
coal mining and reclamation operations on Federal lands to submit to 
DEQ the appropriate number of copies of a PAP or transfer 
application. The PAP or transfer application shall meet the 
requirements of 30 CFR Part 740, shall be in the form required by 
DEQ, and shall contain, at a minimum, the information required by 30 
CFR 740.13(b), including:
    a. Information necessary for DEQ to make a determination of 
compliance with the State Program;
    b. Any supplement information required by OSM, the Bureau of 
Land Management (BLM), and the Federal Land Management Agency. This 
information shall be appropriate and adequate for OSM and the 
appropriate Federal agencies to make determinations of compliance 
with applicable requirements of SMCRA,the MLA, as amended, the 
Federal lands program, and other Federal laws, Executive Orders, and 
regulations which these agencies administer.
    2. Except as otherwise agreed in writing by Federal agencies, 
upon receipt of a PAP or transfer application, DEQ shall ensure that 
an appropriate number of copies of the PAP or transfer application 
are provided to OSM, Federal land management agency, and any other 
appropriate Federal agency.

B. Review of the PAP or Transfer Application

    1. DEQ is responsible for:
    a. As authorized by 30 CFR 740.4(c),
    (1) Being the primary point of contact with the applicant 
regarding the review of the PAP or transfer application and 
communications regarding all decisions and determinations with 
respect to the PAP or transfer application;
    (2) Analysis, review, and approval, conditional approval, or 
disapproval of the permit application component of the PAP or the 
transfer application for surface coal mining and reclamation 
operations on Federal lands in Montana;
    (3) Obtaining the comments and findings of Federal agencies with 
jurisdiction or responsibility over Federal lands affected by the 
operations proposed in the PAP or transfer application, unless 
otherwise agreed in writing by Federal agencies. DEQ shall request 
such Federal agencies to provide to

[[Page 40796]]

DEQ their requests for additional information or their findings 
within 45 days of the receipt of the request;
    (4) Obtaining OSM's determination whether the PAP involving 
leased Federal coal constitutes a mining plan modification under 30 
CFR 746.18, and informing the applicant of such determination;
    (5) Consulting with and obtaining the consent, as necessary, of 
the Federal land management agency pursuant to 30 CFR 740.4(c)(2), 
with respect to post-mining land use and to any special requirements 
necessary to protect non-coal resources of the areas that will be 
affected by surface coal mining and reclamation operations;
    (6) Consulting with and obtaining the consent, as necessary, of 
BLM pursuant to 30 CFR 740.4(c)(3), with respect to requirements 
relating to the development, production and recovery of mineral 
resources on lands affected by surface coal mining and reclamation 
operations involving leased Federal coal pursuant to 43 CFR Group 
3400;
    (7) Approval and release of performance bonds pursuant to 
Article IX.B, and approval and maintenance of liability insurance;
    (8) Review and approval of exploration operations not subject to 
the requirements of 43 CFR Group 3400, as provided in 30 CFR 
740.4(c)(6).
    b. In addition, where a mining plan action is required under 30 
CFR Part 746, as determined by OSM:
    (1) Preparation of documentation to comply with the requirements 
of National Environmental Policy Act (NEPA). However, OSM will 
retain the responsibility for the exceptions in 30 CFR 
740.4(c)(7)(l) through (vii). DEQ and OSM shall coordinate and 
cooperate with each other so that, if possible, one Environmental 
Assessment or Environmental Impact Statement is produced to comply 
with NEPA and the Montana Environmental Policy Act (MEPA);
    (2) Preparation of a State decision package, which includes 
written findings indicating that the permit application component of 
the PAP is in compliance with the terms of the State Program, a 
technical analysis of the PAP, and supporting documentation.
    2. OSM is responsible for:
    a. When the PAP includes Federal lands,
    (1) Making determinations and evaluations for NEPA compliance 
documents as required by 30 CFR 740.4(c)(7)(l) through (vii);
    (2) Reviewing the appropriate portions of the PAP for compliance 
with the non-delegable responsibilities of the Secretary pursuant to 
SMCRA and 30 CFR 745.13, and for compliance with the requirements of 
other Federal laws, Executive Orders, and regulations;
    (3) Consulting with the Federal land management agency, and 
determining whether the PAP constitutes a mining plan modification 
under 30 CFR 746.18, and informing DEQ, whenever practical within 30 
days of receiving a copy of the PAP for operations on Federal lands, 
of such determination;
    (4) Exercising its responsibilities in a timely manner governed, 
to the extent possible, by the deadlines established in the State 
Program;
    (5) Assisting DEQ, upon request, in carrying out its 
responsibilities by:
    (a) Coordinating resolution of conflicts between DEQ and other 
Federal agencies in a timely manner;
    (b) Obtaining comments and findings of other Federal agencies 
with jurisdiction or responsibility over Federal lands;
    (c) Scheduling joint meetings between DEQ and Federal agencies;
    (d) Reviewing and analyzing the PAP, to the extent possible, and 
providing to DEQ the work product within 50 days of receipt of the 
State's request for such assistance, unless a different time is 
agreed upon by OSM and DEQ; and
    (e) Providing technical assistance, if available OSM resources 
allow.
    b. In addition, where a mining plan action is required pursuant 
to 30 CFR Part 746:
    (1) Consulting with and obtaining the concurrences of BLM, the 
Federal land management agency, and any other Federal agency, as 
necessary, prior to making recommendation to the Secretary 
concerning approval of the mining plan;
    (2) Upon notification from the DEQ that certain permit 
conditions required by the Federal land management agency are not 
incorporated in the State permit, OSM will determine whether such 
conditions are necessary. When OSM believes the conditions are 
necessary, OSM will work with the Federal land management agency to 
find another means to resolve the issue and, where appropriate, OSM 
will facilitate the attachment of conditions to the appropriate 
Federal authorizations; and
    (3) Providing a decision document to the Secretary recommending 
approval, disapproval, or conditional approval of mining plans or 
modifications thereof.
    3. The Secretary:
    a. Shall concurrently carry out his responsibilities that cannot 
be delegated to DEQ pursuant to SMCRA and 30 CFR 745.13, the Federal 
lands program, the MLA, NEPA, this Agreement, and other applicable 
Federal laws including, but not limited to, those listed in Appendix 
A. The Secretary shall carry out these responsibilities in a timely 
manner and will avoid, to the extent possible, duplication of the 
responsibilities of the State as set forth in this Agreement and the 
State Program;
    b. Reserves the right to act independently of DEQ to carry out 
his responsibilities under laws other than SMCRA, and where Federal 
law permits, to delegate some of the responsibilities to OSM; and
    c. Shall be responsible for approval, disapproval, or 
conditional approval of mining plans and modifications thereof with 
respect to lands containing leased Federal coal in accordance with 
30 CFR 740.4(a)(1).
    4. Coordination:
    a. As a matter of practice, OSM will not independently initiate 
contacts with applicants regarding completeness or deficiencies of a 
PAP or transfer application with respect to matters covered by the 
State Program.
    b. OSM and DEQ shall coordinate with each other during the 
review process of a PAP or transfer application as needed.
    c. OSM and DEQ may request and schedule meetings with the 
applicant with adequate advance notice to each other.
    d. DEQ shall keep OSM informed of findings made during the 
review process which bear on the responsibilities of OSM or other 
Federal agencies. DEQ shall send to OSM copies of any correspondence 
with the applicant and any information received from the applicant 
regarding the PAP or transfer application. OSM shall send to DEQ 
copies of all OSM correspondence with the applicant and any other 
information received from the applicant which may have a bearing on 
the PAP or transfer application. Any conflicts or differences of 
opinions that may develop during the review process should be 
resolved at the lowest possible staff level.
    e. OSM shall have access to DEQ files concerning operations on 
Federal lands.
    f. Where a mining plan action is required pursuant to 30 CFR 
Part 746, OSM and DEQ shall develop a work plan and schedule for the 
PAP review and each will designate a project leader. The project 
leaders will serve as the primary points of contact between OSM and 
DEQ throughout the review process. Not later than 50 days after 
receipt of the PAP, unless a different time is agreed upon, OSM 
shall furnish DEQ with its review comments on the PAP and specify 
any requirements for additional data. DEQ shall provide OSM all 
available information that may assist OSM in preparing any findings 
for the mining plan action.
    g. On matters concerned exclusively with regulations under 43 
CFR Group 3400, BLM will be the primary contact with the applicant 
and shall inform DEQ of its actions and provide DEQ with a copy of 
documentation on all decisions.
    h. Responsibilities and decisions which can be delegated to DEQ 
under applicable Federal laws other than SMCRA may be specified in 
working agreements between OSM and DEQ, with the concurrence of any 
Federal agency involved, and without amendment to this Agreement.
    i. In the case that valid existing rights (VER) are determined 
to exist on Federal lands under section 522(e)(3) of SMCRA where the 
proposed operation will adversely affect either a publicly-owned 
park, or a historic place listed in the National Register of 
Historic Sites, DEQ shall work, respectively, with the agency with 
jurisdiction over the publicly-owned park or the agency with 
jurisdiction over the historic place, to develop mutually acceptable 
terms and conditions for incorporation into the permit to mitigate 
adverse impacts.

C. Approval of the PAP or Transfer Application

    1. DEQ shall make a decision on approval, conditional approval, 
or disapproval of the permit application component of the PAP or the 
transfer application on Federal lands.
    2. DEQ must consider the comments of Federal agencies in the 
context of permit issuance and will document these comments in the 
record of permit decisions. To the extent allowed by Montana law, 
permits issued by DEQ will include terms and conditions imposed by 
the Federal land management agency pursuant to applicable Federal 
laws and regulations other than SMCRA, in accordance with 30 CFR 
740.13(c)(1). When Federal agencies

[[Page 40797]]

recommend permit conditions and these conditions are not adopted by 
DEQ. DEQ will provide OSM with documentation as to why they were not 
incorporated as permit conditions.
    3. When a mining plan action is required pursuant to 30 CFR Part 
746, DEQ may make a decision on approval, conditional approval, or 
disapproval of the permit application component of the PAP on 
Federal lands in accordance with the State Program prior to the 
necessary Secretarial decision on the mining plan, provided that DEQ 
advises the applicant that Secretarial approval of the mining plan 
action must be obtained before the applicant may conduct surface 
coal mining and reclamation operations on the Federal lands. To the 
extent allowed by the State law, DEQ shall reserve the right to 
amend or rescind any requirements of the permit to conform with any 
terms or conditions imposed by the Secretary in the approval of the 
mining plan.
    4. After making its decision on the permit application component 
of the PAP or transfer application, DEQ shall send a copy of the 
signed permit form and State decision document to the applicant, 
OSM, the Federal land management agency, and any agency with 
jurisdiction over a publicly-owned park, or historic property 
included in the NRHS which would be adversely affected by the 
surface coal mining and reclamation operations.

Article VII: Inspections

    A. DEQ shall conduct inspections on Federal lands in accordance 
with 30 CFR 740.4(c)(5) and prepare and file inspection reports in 
accordance with the approved State Program.
    B. DEQ shall, subsequent to conducting any inspection on Federal 
lands, file with OSM's appropriate Field Office an inspection report 
describing: (1) the general conditions of the lands under the lease, 
permit, or license; (2) the manner in which the operations are being 
conducted; and (3) whether the operator is complying with applicable 
performance standards and reclamation requirements.
    C. DEQ will be the point of contact and inspection authority in 
dealing with the operator concerning operations and compliance with 
requirements covered by this Agreement, except as described in this 
Agreement and in the Secretary's regulations. Nothing in this 
Agreement shall prevent inspections by authorized Federal or State 
agencies for purposes other than those covered by this Agreement.
    D. Authorized representatives of the Secretary may conduct any 
inspections necessary to comply with 30 CFR Parts 842 and 843, and 
with the Secretary's obligations under laws other than SMCRA.
    E. OSM shall give DEQ reasonable notice of its intent to conduct 
an inspection in order to provide State inspectors with an 
opportunity to join in the inspection. When OSM is responding to a 
citizen complaint supplying adequate proof of an imminent danger to 
the public health and safety, or a significant imminent 
environmental harm to land, air, or water resources, pursuant to 30 
CFR 842.11(b)(1)(ii)(C), it shall contact DEQ no less than 24 hours 
prior to the Federal inspection, if practicable, to facilitate a 
joint Federal/State inspection. All citizen complaints which do not 
involve an imminent danger to the public health and safety, or a 
significant imminent environmental harm to land, air, or water 
resources, must be referred initially to DEQ for action. The 
Secretary reserves the right to conduct inspections without prior 
notice to DEQ, if necessary, to carry out his responsibilities under 
SMCRA.

Article VIII: Enforcement

    A. DEQ shall have primary enforcement authority under SMCRA 
concerning compliance with the requirements of this Agreement and 
the State Program in accordance with 30 CFR 740.4(c)(5) and 
740.17(a)(2). Enforcement authority given to the Secretary under 
SMCRA, and its implementing regulations, or other Federal laws and 
Executive Orders, including, but not limited to, those listed in 
Appendix A, is reserved to the Secretary.
    B. During any joint inspection by OSM and DEQ, DEQ will have 
primary responsibility for enforcement procedures, including 
issuance of cessation orders and notices of violation. DEQ shall 
consult with OSM prior to issuance of any decision to suspend, 
rescind or revoke a permit on Federal lands. DEQ shall notify BLM of 
any suspension, rescission or revocation of a permit containing 
leased Federal coal pursuant to 30 CFR 740.13(f)(2).
    C. During any inspection made solely by OSM or any joint 
inspection where DEQ an OSM fail to agree regarding the propriety of 
any particular enforcement action, OSM may take any enforcement 
action necessary to comply with 30 CFR Parts 842, 843, 845 and 846.
    D. DEQ and OSM shall promptly notify each other of all 
violations and of all actions taken with respect to such violations.
    E. Personnel of DEQ and OSM shall be mutually available to serve 
as witnesses in enforcement actions taken by either party.
    F. This Agreement does not affect or limit the Secretary's 
authority to enforce violations of Federal laws other than SMCRA.

Article IX: Bonds

    A. DEQ and the Secretary shall require all operators on Federal 
lands to submit a single performance bond jointly payable to both 
the United States and DEQ. The board shall be of sufficient amount 
to cover the operator's responsibilities under SMCRA and the State 
Program. The bond shall be conditioned upon continued compliance 
with all requirements of SMCRA, 30 CFR Chapter VII, the State 
Program, and the permit. Such bond shall provide that if this 
Agreement is terminated under the provisions of 30 CFR 745.15, the 
portion of the bond covering the Federal lands shall be payable only 
to the United States.
    B. DEQ will have primary responsibility for the approval and 
release of performance bonds required for surface coal mining and 
reclamation operations on Federal lands. However, release of a 
performance bond on lands subject to an approved mining plan 
requires the concurrence of OSM as provided in 30 CFR 740.15(d)(3). 
Prior to such concurrence, OSM shall coordinate with other Federal 
agencies having the authority over the lands involved. DEQ shall 
annually advice OSM of adjustments to the performance bond.
    C. Performance bonds will be subject to forfeiture with he 
concurrence of OSM, in accordance with the procedures and 
requirements of the State Program. OSM may not withhold its 
concurrence unless DEQ's forfeiture decision is not in accordance 
with the requirements and procedures of the State program.
    D. Submission of a performance bond does not satisfy the 
requirements for either a Federal lease bond required by 43 CFR Part 
3474 or a lessee protection bond which is required in certain 
circumstances by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain Types 
of Surface Coal Mining and Reclamation Operations and Activities, and 
Valid Existing Rights and Compatibility Determinations

A. Unsuitability Petitions

    1. Authority to designate or terminate the designation of areas 
of Federal lands as unsuitable for mining is reserved to the 
Secretary. Unsuitability petitions shall be filed with OSM and would 
be processed in accordance with 30 CFR 769.
    2. When either DEQ or OSM receives a petition that could impact 
adjacent Federal or non-Federal lands pursuant to section 522(c) of 
SMCRA, the agency receiving the petition will notify the other of 
receipt of the petition and the anticipated schedule for reaching a 
decision. OSM shall coordinate with and solicit comments from the 
applicable Federal land management agency. OSM and DEQ shall fully 
consider data, information, and recommendations of all agencies.

B. Valid Existing Rights (VER) and Compatibility Determinations

    The following actions will be taken when requests for 
determinations of VER pursuant to section 522(e) of SMCRA, or for 
determinations of compatibility pursuant to section 522(e)(2) of 
SMCRA are received:
    1. For Federal lands within the boundaries of any areas 
specified under section 522(e)(1) of SMCRA, the Secretary will make 
the VER determination. If surface coal mining and reclamation 
operations would be conducted on both Federal and non-Federal lands 
within such areas, the Secretary will make the VER determination for 
the Federal lands and DEQ will make the VER determination for State 
and private lands.
    2. For Federal lands within the boundaries of any national 
forest where proposed surface coal mining and reclamation operations 
are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR 
761.11(b), the Secretary will make VER determinations. OSM will 
process requests for determinations of compatibility under section 
522(e)(2) of SMCRA and part 30 CFR 761.12(c).
    3. Where a VER determination is requested for Federal lands 
protected under section 522(e)(3), DEQ will make the VER

[[Page 40798]]

determination. DEQ will determine, in consultation with the State 
Historic Preservation Officer, whether any proposed operation will 
adversely affect any publicly-owned park or historic place listed on 
the National Register of Historic Sites (NRHS).
    Surface coal mining and reclamation operations of Federal lands 
protected under section 522(e)(3) of SMCRA may be permitted if 
approved jointly by DEQ, and the Federal, State, or local agency 
with jurisdiction over the park or historic place. DEQ will 
coordinate with any agency with jurisdiction over the publicly-owned 
park or historic place to develop mutually acceptable terms and 
conditions for incorporation into the permit in order to mitigate 
environmental impacts.
    4. DEQ will process determinations of VER on Federal lands for 
all areas limited or prohibited by section 522(e)(4) and (5) of 
SMCRA as unsuitable for mining.
    5. For operations on Federal lands, whenever DEQ is responsible 
for making the VER determinations, DEQ will consult with OSM and any 
affected agency.

Article XI: Termination of the Agreement

    This Agreement may be terminated by the Governor or the 
Secretary under the provisions of 30 CFR 745.15.

Article XII: Reinstatement of the Agreement

    If this Agreement has been terminated in whole or part, it may 
be reinstated under the provisions of 30 CFR 745.16.

Article XIII: Amendments of the Agreement

    This Agreement may be amended by mutual agreement of the 
Governor and the Secretary in accordance with 30 CFR 745.14.

Article XIV: Changes in State or Federal Standards

    A. The Secretary or the State may, from time to time, revise and 
promulgate new or revised performance or reclamation requirements or 
enforcement and administrative procedures. Each party shall, if it 
is determined to be necessary to keep this Agreement in force, 
change or revise its respective laws or regulations or request 
necessary legislative action. Such changes will be made under the 
procedures of 30 CFR Part 732 for changes to the State Program and 
under the procedures of section 501 of SMCRA for changes to the 
Federal lands program.
    B. DEQ and OSM shall provide each other with copies of any 
changes to their respective laws, rules, regulations, and standards 
pertaining to the enforcement and administration of this Agreement.

Article XV: Changes in Personnel and Organization

    A. DEQ and OSM shall, consistent with 30 CFR Part 745, advise 
each other of changes in the organization, structure, functions, 
duties and funds of the offices, departments, divisions, and persons 
within their organizations which could affect administration and 
enforcement of this Agreement. Each shall promptly advise the other 
in writing of changes in key personnel, including the head of a 
department or division, or changes in the functions or duties of the 
principal offices of the program. DEQ and OSM shall advise each 
other in writing of changes in the location of their respective 
offices, addresses, telephone numbers, as well as changes in the 
names, addresses, and telephone numbers of their respective 
personnel.
    B. Should the State Act be amended to transfer administration of 
the State Act to another agency, all references to DEQ in this 
Agreement shall be deemed to apply to the successor regulatory 
agency as of the date of the transfer. The provisions in this 
Agreement shall thereafter apply to that agency.

Article XVI: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that 
have not been expressly addressed in this Agreement that the State 
or the Secretary may have under laws other than the Act and the 
State Program, including, but not limited to those listed in 
Appendix A.

    Approved:

    Dated: May 8, 1998.
Marc Racicot,
Governor of Montana.

    Dated: July 7, 1998.
Bruce Babbitt,
Secretary of the Interior.

Appendix A

    1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
    2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR Part 3480.
    3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 
et seq., and implementing regulations, including 40 CFR Part 1500.
    4. The Endangered Species Act, 16 U.S.C. 1531 eq seq., and 
implementing regulations, including 50 CFR Part 402.
    5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 
et seq., and implementing regulations, including 36 CFR Part 800.
    6. Native American Graves Protection and Repatriation Act, 25 
U.S.C. 3001 et seq.
    7. The American Indian Religious Freedom Act, 42 U.S.C. 1986 et 
seq.
    8. The Archaeological Resources Protection Act of 1979, 16 
U.S.C. 470aa et seq.
    9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
    10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et 
seq., and implementing regulations.
    11. The Resource Conservation and Recovery Act of 1976, 42 
U.S.C. 6901 et seq., and implementing regulations.
    12. The Reservoir Salvage Act of 1960, amended by the 
Preservation of Historical and Archaeological Data Act of 1974, 16 
U.S.C. 469 et seq.
    13. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
    14. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
    15. Executive Order 11990 (May 24, 1977), for wetlands 
protection.
    16. Executive Order 12898 (February 11, 1994) for Federal 
Actions to Address Environmental Justice on Minority Populations and 
Low Income Populations.
    17. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
    18. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et 
seq.
    19. The Constitution of the United States.
    20. Surface Mining Control and Reclamation Act of 1977, 30 
U.S.C. 1201 et seq.
    21. 30 CFR Chapter VII.
    22. The Constitution of the State of Montana.
    23. Montana Strip and Underground Mine Reclamation Act (MSUMRA), 
Part 2, Chapter 4, Title 82, Montana Code Annotated.
    24. Title 26, Chapter 4, Subchapter 3, Administrative Rules of 
Montana.
    25. Montana Environmental Policy Act (MEPA).

[FR Doc. 98-20195 Filed 7-29-98; 8:45 am]
BILLING CODE 4310-05-M