[Federal Register Volume 67, Number 29 (Tuesday, February 12, 2002)]
[Rules and Regulations]
[Pages 6395-6408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-3339]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SPATS No. MT-003-FOR]


Montana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), approve, with certain exceptions, a proposed amendment to the 
Montana regulatory program (the ``Montana program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). Montana proposed 
revisions to Title 26, Chapter 4, Subchapters 3 through 12 of the 
Administrative Rules of Montana (ARM). Montana revised its program to 
be consistent with the corresponding Federal regulations, incorporate 
additional flexibility afforded by the revised Federal regulations, 
clarify ambiguities, and improve operational efficiency.

EFFECTIVE DATE: February 12, 2002.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Director; Casper Field 
Office; Office of Surface Mining Reclamation and Enforcement; 100 E. B 
Street, Room 2128; Casper, WY 82601-1918; Telephone: (307) 261-6550, 
Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program
II. Submission of Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Montana Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Montana program on April 1, 1980. You can 
find background information on the Montana program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the April 1, 1980, Federal Register (45 FR 21560). You can 
also find later actions concerning Montana's program and program 
amendments at 30 CFR 926.15, 926.16, and 926.30.

II. Submission of the Proposed Amendment

    By letters dated February 1, 1995, and February 28, 1995, Montana 
sent us an amendment to its program (Administrative Record Nos. MT-12-
01 and MT-12-05) under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the 
amendment in response to letters dated July 2, 1985, May 11, 1989, and 
March 29, 1990 (Administrative Record Nos.

[[Page 6396]]

MT-60-01, MT-60-04, and MT-60-07) that we sent to Montana in accordance 
with 30 CFR 732.17(c); in response to the required program amendments 
at 30 CFR 926.16(b), (c), (d), (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), 
(e)(7), (e)(8), (f), (h), (i), and (j); and at its own initiative. 
Montana proposed changes to: ARM 26.4.301, definitions; ARM 26.4.303, 
legal, financial, compliance, and related information; ARM 26.4.304, 
baseline information: environmental resources; ARM 26.4.308, operations 
plan; ARM 26.4.314, plan for protection of the hydrologic balance; ARM 
26.4.321, transportation facilities plan; ARM 26.4.404, review of 
application; ARM 26.4.405, findings and notice of decision; ARM 
26.4.405A, improvidently issued permits: general requirements; ARM 
26.4.405B, improvidently issued permits: revocation; ARM 26.4.407, 
conditions of permit; ARM 26.4.410, permit renewal; ARM 26.4.501A, 
final grading requirements; ARM 26.4.505, burial and treatment of waste 
materials; ARM 26.4.519A, thick overburden and excess spoil; ARM 
26.4.524, signs and markers; ARM 26.4.601, general requirements for 
road and railroad loop construction; ARM 26.4.602, location of roads 
and railroad loops; ARM 26.4.603, embankments; ARM 26.4.605, hydrologic 
impacts of roads and railroad loops; ARM 26.4.623, blasting schedule; 
ARM 26.4.633, water quality performance standards; ARM 26.4.634, 
reclamation of drainages; ARM 26.4.638, sediment control measures; ARM 
26.4.639, sedimentation ponds and other treatment facilities; ARM 
26.4.642, permanent and temporary impoundments; ARM 26.4.645, 
groundwater monitoring; ARM 26.4.646, surface water monitoring; ARM 
26.4.702, redistribution and stockpiling of soil; ARM 26.4.711, 
establishment of vegetation; ARM 26.4.721, eradication of rills and 
gullies; ARM 26.4.724, use of revegetation comparison standards; ARM 
26.4.726, vegetation production, cover, diversity, density, and utility 
requirements; ARM 26.4.821, alternate reclamation: submission of plan; 
ARM 26.4.825, alternate reclamation: alternate revegetation; ARM 
26.4.924, disposal of underground development waste: general 
requirements; ARM 26.4.927, disposal of underground development waste: 
durable rock fills; ARM 26.4.930, placement and disposal of coal 
processing waste: special application requirements; ARM 26.4.932, 
disposal of coal processing waste; ARM 26.4.1001, application 
requirements; ARM 26.4.1001A, notice of intent to prospect; ARM 
26.4.1002, information and monthly reports; ARM 26.4.1005, drill holes; 
ARM 26.4.1006, roads and other transportation facilities; ARM 
26.4.1007, grading, soil salvage, storage, and redistribution; ARM 
26.4.1009, diversions; ARM 26.4.1011, hydrologic balance; ARM 
26.4.1014, test pits: application requirements, review procedures, 
bonding, and additional performance standards; ARM 26.4.1116, bonding: 
criteria and schedule for release of bond; ARM 26.4.1116A, reassertion 
of jurisdiction; ARM 26.4.1141, designation of lands unsuitable: 
definition; ARM 26.4.1206, notices, orders of abatement and cessation 
orders: issuance and service; and ARM 26.4.1212, point system for civil 
penalties and waivers.
    We announced receipt of the proposed amendment in the March 15, 
1995, Federal Register (60 FR 13932; Administrative Record No. MT-12-
12). In the same document, we opened the public comment period and 
provided an opportunity for a public hearing or meeting on the 
amendment's adequacy. We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on April 
14, 1995. We received responses from six federal agencies and one 
citizen group.
    During our review of the amendment, we identified the rules 
requiring clarification prior to making an evaluation of the proposed 
revisions. Those rules requiring clarification were: ARM 26.4.301(78), 
the definition of ``owned or controlled;'' ARM 26.4.303, legal, 
financial, compliance, and related information; ARM 26.4.304, baseline 
information: environmental resources; ARM 26.4.314, plan for the 
protection of the hydrologic balance; ARM 26.4.404, review of 
application; ARM 26.4.407, conditions of a permit; ARM 26.4.410, permit 
renewal; ARM 26.4.505 and 26.4.510, burial and treatment of waste 
materials and disposal of offsite-generated waste and fly ash; ARM 
26.4.519A, thick overburden and excess spoil; ARM 26.4.603 and 
26.4.639, sedimentation ponds and other treatment facilities; ARM 
26.4.645 and 26.4.646, groundwater and surface water monitoring; ARM 
26.4.721, eradication of rills and gullies; ARM 26.4.821, alternate 
reclamation: submission of plan; ARM 26.4.924, disposal of underground 
development waste: general requirements; ARM 26.4.927, disposal of 
underground development waste: durable rock fills; ARM 26.4.1001, 
permit requirement; ARM 26.4.1001A, notice of intent to prospect; ARM 
26.4.1006, roads and other transportation facilities; ARM 26.4.1009, 
diversions; and 26.4.1014, prospecting.
    We notified Montana of those rules requiring clarification by 
letter dated October 17, 1995 (Administrative Record No. MT-12-16). 
Montana responded with further explanation in a letter dated February 
6, 1996 (Administrative Record No. MT-12-19). Following receipt of 
Montana's February 6, 1996, letter, we identified concerns with ARM 
26.4.304, baseline information: environmental resources; ARM 26.4.404, 
review of application; ARM 26.4.505 and 26.4.510, burial and treatment 
of waste materials and disposal of off-site generated waste and fly 
ash; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.639, 
sediment ponds and other treatment facilities; ARM 26.4.821, alternate 
reclamation; ARM 26.4.924 and 26.4.927, disposal of underground 
development waste; and ARM 26.4.1014, prospecting. We notified Montana 
of these concerns by letter dated July 10, 1997 (Administrative Record 
No. MT-12-20).
    Meanwhile, at the same time we were reviewing this amendment, 
Montana made subsequent changes to some of the rules contained in this 
amendment and submitted them in another amendment dated March 5, 1996 
(SPATS No. MT-018-FOR; Administrative Record No. MT-15-01). Those rules 
were: ARM 26.4.410, permit renewal, ARM 26.4.1001, prospecting permit 
requirement; and ARM 26.4.1001A, notice of intent to prospect. OSM and 
Montana subsequently decided to withdraw the prospecting and permit 
renewal rules from SPATS No. MT-003-FOR and consider them in SPATS No. 
MT-018-FOR (Administrative Record Nos. MT-12-21 and MT-15-14). These 
withdrawn rules addressed the required program amendments at 30 CFR 
926.16(f), (h), (i), and (j).
    Concerning this amendment, Montana responded by letter dated July 
17, 2000 (Administrative Record No. MT-12-23), that it would not submit 
further revisions to this amendment. Montana requested that OSM proceed 
with the final rule Federal Register notice. Montana stated that it 
would address the existing deficiencies in this amendment in a new 
submission. OSM then proceeded writing the final rule Federal Register 
notice on SPATS No. MT-003-FOR.
    However, during the writing of the final rule, OSM decided to 
request a meeting with Montana to discuss the unresolved issues in MT-
003-FOR. The meeting was held at the Montana Department of 
Environmental Quality (DEQ), Helena, Montana, on February 27, 2001. 
During the meeting, OSM and the Montana DEQ decided that some

[[Page 6397]]

issues were, in fact, resolvable due to a re-interpretation of 
Montana's responses and/or a subsequent revision of Montana's rules.
    As a result of the February 2001, meeting, Montana submitted 
revisions and/or additional explanatory information by letter dated May 
15, 2001 (Administrative Record No. MT-12-25). Montana submitted 
additional explanatory information concerning the lack of acid-forming 
materials in the Montana coal fields to address the issue with ARM 
26.4.304(6)(b)(ii)(B). Montana proposed editorial changes to ARM 
26.4.407(4). Montana proposed new language at ARM 26.4.505(5) to 
prohibit acid, acid-forming, toxic, or toxic-forming wastes from being 
used in an impoundment. Montana proposed new language at ARM 
26.4.505(7) to provide that the same notification requirements 
concerning potential hazards at waste disposal sites also pertain to 
temporary waste impoundments. Montana proposed new language at ARM 
26.4.639 to address the construction of a single spillway and to state 
that an excavation requires no spillway. Montana proposed to delete the 
subsection at ARM 26.4.924(15) which OSM disapproved in the August 19, 
1992, Federal Register notice, and to delete cross-reference to it at 
ARM 26.4.927(3)(a). This deletion is a partial response to a required 
program amendment which OSM put on the Montana program on August 19, 
1992 at 30 CFR 926.16(e)(9).
    We announced receipt of the proposed amendment in the June 1, 2001, 
Federal Register (66 FR 29741). In the same document, we reopened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the amendment's adequacy (Administrative Record No. MT-
12-28). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on July 2, 2001. We 
received comments from two Federal agencies.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment with the exceptions as described below.

A. Minor Revisions to Montana's Rules

    Montana proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved rules.
    26.4.301, ARM, subsections (79) through (119), (121) through (133), 
and (135) through (137), (30 CFR 701.5), definitions;
    26.4.407, ARM, subsections (1) and (2), (30 CFR 773.17), conditions 
of permit;
    26.4.601, ARM, subsection (7), (30 CFR 816.150/817.150), general 
requirements for road and railroad loop construction;
    26.4.639, ARM, subsection (18)(c), (30 CFR 816.49/817.49), 
sedimentation ponds and other treatment facilities;
    26.4.711, ARM, subsections (2), (3), (4), and (5), (30 CFR 816.111/
817.111 and 816.116/817.116), establishment of vegetation;
    26.4.924, ARM, subsections (5), (10) through (14), (16), (17), 
(18), and (20); (30 CFR 816.71/817.71, 816.81/817.81, and 816.83/
817.83), disposal of underground development waste: general 
requirements;
    26.4.1005, ARM, subsection (2); (30 CFR 815.15(i) and 816.41(a)/
817.41(a)), drill holes;
    26.4.1006, ARM, subsection (1); (30 CFR 816.150/817.150, 816.180/
817.180, and 816.181/817.181), roads and other transportation 
facilities;
    26.4.1007, ARM subsection (2); (30 CFR 815.15(d)), grading, soil 
salvage, storage, and redistribution; and
    26.4.1009, ARM, subsection (1); (30 CFR 816.43/817.43), diversions.
    Because these changes are minor and nonsubstantive, we find that 
they will not make Montana's rules less effective than the 
corresponding Federal regulations.

B. Revisions to Montana's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    Montana proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations.
    26.4.304, ARM, subsection (6)(a)(iii), (30 CFR 780.21/784.14), 
baseline information: environmental resources;
    26.4.308, ARM, subsection (2), (30 CFR 780.11/784.11 and 780.37/
784.24), operations plan;
    26.4.314, ARM, subsection (3), (SMCRA section 510(b) and 30 CFR 
780.21/784.14), plan for protection of the hydrologic balance;
    26.4.405, ARM, subsections (6) and (8), (30 CFR 773.15), findings 
and notice of decision;
    26.4.501A, ARM, subsection (3)(a), (30 CFR 816.101/817.101), final 
grading requirements;
    26.4.524, ARM, subsection (2), (30 CFR 816.11/817.11), signs and 
markers;
    26.4.601, ARM, subsection (5), (30 CFR 816.151(a)(1)/
817.151(a)(1)), general requirements for road and railroad loop 
construction;
    26.4.602, ARM, subsection (2), (30 CFR 816.151/817.151 and 30 CFR 
780.37/784.24), location of roads and railroad loops;
    26.4.603, ARM, Introduction and subsection (9), (30 CFR 816.49/
817.49), embankments;
    26.4.605, ARM, subsection (3)(a)(i), (30 CFR 816.151/817.151), 
hydrologic impact of roads and railroad loops;
    26.4.623, ARM, subsection (2)(b)(iii), (30 CFR 816.64/817.64), 
blasting schedule;
    26.4.633, ARM, subsection (2), (30 CFR 816.46/817.46), water 
quality performance standards;
    26.4.634, ARM, subsections (1) and (2), (30 CFR 816.102 /
    817.102), reclamation of drainages;
    26.4.638, ARM, subsection (2)(a), (30 CFR 816.45(b)(1)/
817.45(b)(1)), sediment control measures;
    26.4.639, ARM, subsections (1), (10)(c), and (18), Introduction, 
(30 CFR 816.46(b)(4) and (c)(2)/817.46(b)(4) and (c)(2), and 30 CFR 
816.49(a)(2) and (a)(11)/817.49(a)(2) and (a)(11)), sedimentation ponds 
and other treatment facilities;
    26.4.642, ARM, subsections (5) and (8), (30 CFR 816.49/817.49 and 
816.84/817.84), permanent and temporary impoundments;
    26.4.702, ARM, subsection (4), (30 CFR 780.23(a)(2)/784.15(a)(2)), 
redistribution and stockpiling of soil;
    26.4.711, ARM, subsection (6), (30 CFR 816.116/817.116), 
establishment of vegetation;
    26.4.927, ARM, subsection (2)(c), (30 CFR 816.71/817.73), disposal 
of underground development waste: durable rock fills;
    26.4.932, ARM, subsection (8)(a)(ii), (30 CFR 816.81(a)/817.81(a) 
and 816.83/817.83), disposal of coal processing waste;
    26.4.1002, ARM, subsections (1) and (2), (30 CFR 815.1 and 816.10/
817.10), information and monthly reports;
    26.4.1005, ARM, subsection (3), (30 CFR 815.15(g)), drill holes;
    26.4.1006, ARM, subsections (2) through (4), (30 CFR 815.15, 
816.150/817.150, 816.180/817.180 and 816.181/817.181), roads and other 
transportation facilities;
    26.4.1007, ARM, subsection (1), (30 CFR 815.15(c)), grading, soil 
salvage, storage, and redistribution;
    26.4.1009, ARM, subsection (2), (30 CFR 816.43/817.43), diversions;
    26.4.1011, ARM, subsection (1), (30 CFR 772.11, 772.12, 772.13 and 
815.15), hydrologic balance;
    26.4.1116, ARM, subsection (7)(c), (30 CFR 800.40), bonding: 
criteria and schedule for release of bond;

[[Page 6398]]

    26.4.1116A, ARM, subsections (1) and (2), (30 CFR 700.11), 
reassertion of jurisdiction;
    26.4.1141, ARM, subsection (3), (30 CFR 762.5), designation of 
lands unsuitable: definition;
    26.4.1212, ARM, subsection (1), (30 CFR 845.13(b)(1)), point system 
for civil penalties and waivers.
    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.

C. ARM 26.4.301(78), 26.4.303, 26.4.404(7) Through (10), 26.4.405(5), 
26.4.405A, 26.4.405B, and 26.4.1206(1); Ownership and Control

    Montana proposed numerous revisions to its regulatory program 
concerning ownership and control. These revisions were submitted in 
response to two Part 732 letters sent to Montana by OSM on May 11, 1989 
and January 13, 1997 (Administrative Record Nos. MT-60-04 and MT-60-
09). Many of these revisions were found to be no less effective than 
the corresponding Federal regulations. However, during the evaluation 
of SPATS No. MT-003-FOR, OSM again revised its ownership and control 
regulations in response to recent legal challenges contesting the 
validity of OSM's regulations. The final rule Federal Register notice 
concerning OSM's revised regulations was published on December 19, 2000 
(65 FR 79582). In the future, OSM will send a current Part 732 letter 
to all States, according to the requirements of 30 CFR 732.17(d), to 
advise the States of ownership and control revisions which they need to 
make to their State regulatory program. Therefore, at this time, OSM 
defers on Montana's proposed revisions concerning ownership and 
control. The sections of the Administrative Rules of Montana (ARM) 
where a decision is being deferred, are: ARM 26.4.301(78); 26.4.303 
Introduction, (1), (6) through (8), (13) through (15), (20) through 
(24); 26.4.404(7) through (10); 26.4.405(5); 26.4.405A; 26.4.405B; and 
26.4.1206(1).

D. ARM 26.4.301(120), Definition of ``Test Pit''

    OSM placed a required program amendment (30 CFR 926.16(b)) on 
Montana in the May 11, 1990, Federal Register notice (55 FR 19727) to 
revise the definition of ``test pit'' to eliminate the phrase ``or for 
the purpose of developing a test market.'' OSM placed the required 
program amendment on the Montana program as the Federal counterpart 
regulations for coal exploration at 30 CFR 772.14(b) allow for the 
extraction of more than 250 tons of coal under an exploration permit if 
the coal is intended for testing purposes only. There is no Federal 
provision for using coal extracted under an exploration permit for 
developing a market.
    In the February 1, 1995, submittal (Administrative Record No. MT-
12-01), Montana proposed a revision at ARM 26.4.301(120) to revise the 
definition of ``test pit'' to delete the phrase ``or for the purpose of 
developing a test market.'' Therefore, the Director finds the Montana 
revised rule to be no less effective than the Federal requirement and 
approves the proposed language. The Director removes the required 
program amendment at 30 CFR 926.16(b).

E. ARM 26.4.304(5), (6)(a), and (6)(b), Baseline Information: 
Environmental Resources

    Montana proposed to move the requirements for groundwater baseline 
information from ARM 26.4.304(5) to revised ARM 26.4.304(6)(a)(ii), and 
to revise the surface water baseline information requirements at ARM 
26.4.304(6)(b)(ii)(B). Montana proposed to delete from ARM 
26.4.304(6)(a)(ii) and 26.4.304(6)(b)(ii)(B), the need to provide 
baseline information for ``total iron and total manganese,'' and to add 
the requirement that the applicant provide baseline information for 
both surface and groundwater concerning ``concentrations of dissolved 
metals as prescribed by the department.'' In addition, Montana proposed 
to delete from ARM 26.4.304(6)(b)(ii)(B) the requirement for surface 
water baseline information concerning acidity and alkalinity.
    The Federal regulations at 30 CFR 780.21(b)(1) and (2)/784.14(b)(1) 
and (2) concerning baseline information for surface water and 
groundwater information require: (1) Total iron and total manganese, 
and (2) acidity and alkalinity, if there is a potential for acid 
drainage from the proposed mining operation. The Federal regulation at 
30 CFR 732.15(a) requires the States to provide program elements that 
are in accordance with the provisions of SMCRA and consistent with the 
requirements of the Federal regulations.
    In the February 6, 1996, response (Administrative Record No. MT-12-
18), Montana stated that OSM's requirements for total iron, total 
manganese, and acidity analyses are based upon eastern U.S. problems 
and do not typically relate to areas where coal mining operations 
currently exist in Montana with a predominance of alkaline conditions. 
OSM had requested in the October 17, 1995, and July 10, 1997, letters 
that Montana provide documentation supporting Montana's 
characterization of alkaline coal fields, such as a compilation of 
historic surface-water and overburden sampling information from coal 
mining permits, or geological reports of analyses conducted over the 
coal mining regions of Montana in order to approve the proposed 
deletion of total iron, total manganese, acidity and alkalinity as 
parameters for surface water baseline information (Administrative 
Record Nos. MT-12-16 and MT-12-20).
    Montana did not initially provide such documentation but responded 
by letter dated February 6, 1996, that: (1) OSM's requirements for 
iron, manganese, alkalinity and acidity are based upon eastern U.S. 
problems and Montana conditions are alkaline; (2) Montana has the 
authority at ARM 26.4.304(5)(a)(ii) and (b)(ii)(B), and ARM 
26.4.304(5)(d) to request additional analyses as needed; (3) Montana's 
Water Resource Guidelines, currently being revised, provide guidance 
for water analyses; and (4) OSM could impose additional analyses on 
Federal lands permits when they are reviewed, if OSM believes 
additional water analyses are needed (Administrative Record No. MT-12-
19).
    Following the meeting in Helena, Montana, on February 27, 2001, 
Montana submitted a letter dated May 15, 2001, containing surface water 
quality data documenting alkaline conditions at five mine areas in 
Montana (Administrative Record No. MT-12-25). This documentation is 
representative of surface conditions in Montana. With this information, 
OSM can approve Montana's proposed deletions to groundwater baseline 
information and surface water baseline information, as no less 
effective than the Federal regulations. The Director approves these 
revisions.

F. ARM 26.4.314(5), Protection of the Hydrologic Balance

    At ARM 26.4.314(5), Montana proposed to delete the word 
``probable'' from the requirement to provide an assessment of the 
``probable cumulative hydrological impacts.'' As both SMCRA section 
510(b)(3) and 30 CFR 780.21(g)(1)/784.14(g)(1) require that an 
applicant provide an assessment of the ``probable cumulative hydrologic 
impacts'' of the proposed operation, OSM requested that Montana explain 
the deletion of the term ``probable.'' Montana responded that the term 
``probable cumulative hydrologic

[[Page 6399]]

impacts'' is undefined in the Montana rules, while ``cumulative 
hydrologic impacts'' is defined. Montana further stated that 
``cumulative hydrologic impacts'' in the Montana program includes 
``expected'' impacts, which has the same connotation as ``probable.'' 
With this explanation, the Director approves the proposed revision to 
ARM 26.4.314(5) as no less effective than the Federal regulation and no 
less stringent than SMCRA.

G. ARM 26.4.321(1) and (3), Transportation Facilities Plan

    OSM placed required program amendments (30 CFR 926.16(e)(3) and 
(e)(4)) on Montana in the August 19, 1992, Federal Register notice (57 
FR 37436). The required program amendment at 30 CFR 926.16(e)(3) 
required Montana to modify its program to specify certification content 
requirements no less effective than 30 CFR 780.37(b)/784.24(b). The 
required program amendment at 30 CFR 926.16(e)(4) required Montana to 
incorporate application requirements no less effective than 30 CFR 
780.37(a)(2), (3), and (6)/784.24(a)(2), (3), and (6). OSM placed the 
required program amendments on the Montana program as the revisions 
proposed in the June 19, 1990, submittal (Administrative Record No. MT-
7-01) did not address these Federal counterpart provisions.
    In the February 1, 1995, submittal (Administrative Record No. MT-
12-01), Montana subsequently proposed rule revisions at ARM 26.4.321 
which addressed the certification content requirements and application 
requirements for the mining operations and reclamation plan portions of 
applications for permits for both surface and underground mining 
activities. OSM found that these Montana ARM revisions addressed 
earlier programmatic deficiencies identified at 30 CFR 926.16(e)(3) and 
(e)(4). Therefore, the Director finds the Montana revised rules to be 
no less effective than the Federal requirements and approves the 
proposed language. The Director removes the required program amendments 
at 30 CFR 926.16(e)(3) and (e)(4).

H. ARM 26.4.404(5)(b), Review of Application: Properties Listed on or 
Eligible for Listing on the National Register of Historic Properties

    OSM placed a required program amendment (30 CFR 926.16(c)) on 
Montana in the May 11, 1990, Federal Register notice (55 FR 19727) to 
revise ARM 26.4.404(5)(b) to require that a determination of effects is 
completed for all properties listed on or eligible for listing on the 
National Register of Historic Properties (NRHP). OSM placed the 
required program amendment on the Montana program as the proposed 
revision to ARM 26.4.404(5)(b) applied to ``all listed eligible 
cultural resource sites'' rather than to ``properties listed on or 
eligible for listing on the NRHP,'' as required by the Federal 
regulation at 30 CFR 773.15(c)(11).
    In the February 1, 1995, submittal (Administrative Record No. MT-
12-01), Montana revised ARM 26.4.404(5)(b) to read ``all listed or 
eligible cultural resource sites in accordance with 30 CFR 800.'' 36 
CFR 800 applies to the Advisory Council on Historic Preservation and 
properties listed on or eligible for listing on the NRHP. Therefore, 
the Director finds the Montana revised rule to be no less effective 
than the Federal regulation and approves the proposed language. The 
Director removes the required program amendment at 30 CFR 926.16(c).

I. ARM 26.4.405(6)(1), Findings and Notice of Decision

    OSM placed a required program amendment (30 CFR 926.16(d)) on 
Montana in the May 11, 1990, Federal Register notice (55 FR 19727) to 
change the cross-reference at ARM 26.4.405(6)(l) to ARM 26.4.1302, 
which governs the use of existing structures, rather than deleted rule 
ARM 26.4.309. In the February 1, 1995, submittal (Administrative Record 
No. MT-12-01), Montana proposed a rule revision correcting the 
incorrect cross-reference to ARM 26.4.1302. Therefore, the Director 
finds the revised rule at ARM 26.4.405(6)(l) to be no less effective 
than the Federal requirement and approves the proposed language. The 
Director removes the required program amendment at 30 CFR 926.16(d).

J. ARM 26.4.407(4), Conditions of Permit

    At ARM 26.4.407(4), Montana proposed to require as a condition of 
each permit that a permittee, within 30 days of issuance of a cessation 
order under the Federal or State program, must provide the department 
with certain specified information except ``where a state cessation 
order is granted and remains in effect.'' The Federal counterpart at 30 
CFR 773.17(i) is similar to Montana's proposal except that the Federal 
provision allows an exception to the applicable requirement only 
``where a stay of a cessation order has been granted and remains in 
effect.''
    In response to OSM's comment in the formal issue letter dated 
October 17, 1995 (Administrative Record No. MT-12-16) that Montana 
needed to revise ARM 26.4.407(4) to allow an exception to the 
requirements of the rule only where ``a stay of a cessation order has 
been granted and is in effect,'' Montana stated that the typographical 
error would be corrected (Administrative Record No. MT-12-19). By 
letter dated May 25, 2001, Montana submitted a revision to OSM which 
corrected the typographical error at ARM 26.4.407(4) to read ``a stay 
of the cessation order has been granted'' (Administrative Record No. 
MT-12-25). With this information, the Director finds ARM 26.4.407(4) to 
be no less effective than the Federal counterpart and approves the 
revision.

K. ARM 26.4.505(4) Through (8), Burial and Treatment of Waste Materials 
and Disposal of Off-Site-Generated Waste and Fly Ash

a. Burial and Treatment of Waste Materials
    Montana proposed revisions at ARM 26.4.505 in response to a 
requirement which OSM codified at 30 CFR 926.16(e)(2) to incorporate 
requirements for the disposal of waste, including coal mine waste on 
strip mines, in a manner no less effective than the requirements at 30 
CFR 816.102(e)/817.102(e) and 816.81/817.81 through 816.84/817.84. OSM 
placed the required program amendment on the Montana program as the 
revised definition of ``waste'' at ARM 26.4.301(132), now (133), 
included coal processing waste to be disposed of on surface mining 
operations which are governed by ARM 26.4.505 and 26.4.510. However, 
ARM 26.4.505 and 26.4.510 regulate surface mining operations; coal 
processing waste is not addressed at these rules. Existing language and 
proposed revisions at ARM 26.4.505(3) and (4) prohibit waste disposal 
in the construction of embankments for impoundments and in a waste 
disposal structure located on the surface of the ground. Therefore, the 
requirements of 30 CFR 816.84(a)/817.84(a) pertaining to impounding 
structures constructed of coal mine waste and the requirements of 30 
CFR 816.83/817.83 for disposal of coal mine waste in refuse piles, are 
not addressed in the Montana program at 26.4.505 and 26.4.510. The 
Federal regulations require that any disposal of coal mine waste, 
whether in impounding structures or in excavated areas of strip mines, 
must meet the general requirements of 30 CFR 816.102(e)/817.102(e) and 
816.81/817.81.
    OSM told Montana in its October 17, 1995, letter (Administrative 
Record No. MT-12-16) that in order to be no less effective than the 
Federal regulations, Montana must revise ARM 26.4.505 to

[[Page 6400]]

include the following requirements: (1) Waste should be hauled or 
conveyed and placed in controlled manner to achieve the purposes 
itemized in 30 CFR 816.81(a)(1) through (5)/817.81(a)(1) through (5); 
(2) design and design certification, and foundation and abutment 
stability under all conditions of construction, should be in accordance 
with 30 CFR 816.81(c)/817.81(c); and (3) foundation investigations 
should be in accordance with 30 CFR 816.81(d)/817.81(d).
    Montana responded in a letter dated February 6, 1996 
(Administrative Record No. MT-12-19), stating that waste disposal in 
structures outside of mine excavations is prohibited at surface mines 
in Montana's program, and that Montana has the necessary requirements 
for underground mines. Montana has no coal preparation plants. 
Therefore, the disposal of coal processing waste in structures outside 
of mine excavations does not need to be addressed in the Montana 
program. Montana desires to dispose of coal processing waste in 
excavation pits.
    There are no Federal regulations prohibiting the disposal of coal 
processing waste in excavation pits. Therefore, the Montana proposed 
rules are not inconsistent with the Federal regulations and the 
Director approves the proposed Montana revisions at ARM 26.4.505 and 
26.4.510. The Director removes the required program amendment at 30 CFR 
926.26(e)(2).
b. Temporary Waste Impoundments
    During the review of proposed ARM 26.4.505(5), OSM identified 
deficiencies relating to the lack of: (1) a requirement that any 
temporary impoundment of waste which includes coal mine waste must meet 
the general requirements of ARM 26.4.505, in addition to those 
specified in paragraph (5); (2) a requirement for adequate protection 
against erosion and corrosion for outlet works; (3) a requirement that 
the diversion of runoff from above or off of the impounding structure 
be in accordance with 30 CFR 816.84(d)/817.84(d); and (4) a requirement 
for design and performance criteria for removal of 90 percent of the 
water stored during the design event within the 10 day period following 
the event in accordance with 30 CFR 816.84(e) and (f)/817.84(e) and (f) 
(Administrative Record No. MT-12-16).
    Montana responded to OSM's deficiency list by: (1) Stating that 
paragraph (2) also pertains to coal waste impoundments and that Montana 
will add another subsection to (5) indicating that acid, toxic, acid-
forming, and toxic-forming wastes may not be included in temporary 
waste impoundments; (2) stating that Montana will add the term ``outlet 
works'' to (5)(c); and (3) referencing sections in the State program 
which correspond to 30 CFR 816.84(d), (e), and (f)/817.84(d), (e), and 
(f) (Administrative Record No. MT-12-19).
    OSM responded to Montana by letter dated July 10, 1997, stating 
that: (1) ARM 26.4.505(7) needed to be cross-referenced under ARM 
26.4.505(5) to assure that emergency procedures would apply to 
temporary impoundments; and (2) Montana's proposal to rewrite ARM 
26.4.505 to prohibit the inclusion of acid- and/or toxic-forming 
materials in temporary impoundments would assure that its program is no 
less effective than the Federal regulations.
    Following OSM's meeting with Montana on February 27, 2001, Montana 
submitted the proposed revisions at ARM 26.4.505(5)(c) through (5)(e) 
and (7) to OSM by letter dated May 15, 2001 (Administrative Record No. 
MT-12-25). The proposed revisions assure that emergency procedures 
would apply to temporary impoundments and would prohibit the inclusion 
of acid- and/or toxic-forming materials in temporary impoundments. The 
Director, therefore, finds that the deficiencies at ARM 26.4.505 have 
been addressed and Montana's proposed revisions are no less effective 
than the Federal counterpart regulations. The Director approves revised 
ARM 26.4.505.
c. Disposal of Offsite-Generated Waste and Fly Ash
    During the review of the burial and treatment of waste materials 
(at Finding No. 11a above), OSM raised an issue concerning the impact 
of the revisions at ARM 26.4.505. ARM 26.4.505 is cross-referenced at 
ARM 26.4.510(1) for the disposal of offsite-generated waste and fly 
ash. OSM's concern was that the requirements of 30 CFR 816.81(b)/
817.81(b), which require that coal mine waste material from activities 
located outside a permit area may be disposed of in the permit area--if 
it is done with the approval of the regulatory authority--based upon a 
showing that the disposal would be in accordance with the standards of 
30 CFR 816.81(b)/817.81(b), would not be met. However, with the 
resolution of Finding No. 11a above, OSM believes that the concerns 
with ARM 26.4.505 and 26.4.510 are resolved as they relate to the 
disposal of coal mine waste material from activities located outside a 
permit area.

L. ARM 26.4.519A, Thick Overburden and Excess Spoil

    Montana proposed to delete at ARM 26.4.519A the requirement that 
all highwalls and depressions in thick overburden must be eliminated 
with spoil and suitable waste materials unless otherwise approved by 
the Montana DEQ in accordance with ARM 26.4.313(3) and 26.4.821 through 
26.4.824. The Federal counterpart requirement to eliminate highwalls 
and depressions is contained at 30 CFR 816.102(a)(2)/817.102(a)(2). The 
deleted Montana cross-references concern the reclamation plan and 
Montana's programmatic allowance for alternate reclamation.
    The general programmatic requirement to eliminate all highwalls and 
depressions used to be contained in the Montana program at ARM 
26.4.501A(1). However, in 1999, this programmatic requirement was 
deleted from the Montana program by the State legislature. OSM has not 
received the revised Montana rules to evaluate if this requirement is 
contained elsewhere in the revised program, particularly in light of 
the proposed deletion at ARM 26.4.519A. Therefore, at this time, the 
Director defers on the proposed deletion at ARM 26.4.519A until a 
current rulemaking is submitted by Montana and evaluated by OSM.

M. ARM 26.4.603(9) and 26.4.639(18)(b), Sedimentation Ponds and Other 
Treatment Facilities; Construction of Sedimentation Ponds Which Meet 
the Criteria of 30 CFR 77.216A

    Montana proposed at ARM 26.4.639(18) to delete the 1.2 seismic 
safety factor and 1.5 static safety factor requirements for 
sedimentation ponds that meet the criteria of 30 CFR 77.216(a). At ARM 
26.4.603(9), Montana proposed to add 1.2 seismic safety factor and 1.5 
static safety factor requirements for the construction of all 
embankments. The Federal requirement at 30 CFR 816.49(a)(3)(i)/
817.49(a)(3)(i) specifies that for all temporary or permanent 
impoundments (including sedimentation ponds) that meet the criteria of 
30 CFR 77.216(a), a 1.2 seismic safety factor and 1.5 static safety 
factor must be achieved.
    Because ARM 26.4.642(2) references ARM 26.4.603, and because a 
sedimentation pond is defined as an ``impoundment'' in ARM 26.4.301, 
OSM asked Montana if ARM 26.4.603(9) would apply to all sedimentation 
ponds and impoundments, regardless of size and temporal nature. In the 
February 6, 1996, letter, Montana responded that OSM's interpretation 
was correct in that

[[Page 6401]]

ARM 26.4.603(9) applies to all sedimentation ponds regardless of size 
or nature (Administrative Record No. MT-12-19). With this explanation, 
the Director approves the revisions at ARM 26.4.639(18)(b) and 
26.4.603(9) as no less effective than the Federal regulations.

N. ARM 26.4.639(10)(b) and (19), Sedimentation Ponds and Other 
Treatment Facilities: Construction of Sedimentation Ponds and 
Certification of Impoundments

a. Types of Materials Used for Spillways and Limits on the Duration of 
Spillway Discharges
    At ARM 26.4.639(10)(a), Montana proposed to allow sedimentation 
ponds to be constructed with either a ``single spillway'' or a 
combination of principal and emergency spillways. The counterpart 
Federal regulation at 30 CFR 816.46(c)(2)(i)/817.46(c)(2)(i) allows for 
a single open-channel spillway if configured as specified at 30 CFR 
816.49(a)(9)/817.49(a)(9). The Federal regulation also provides that 
the regulatory authority may approve a single open-channel spillway 
that is of nonerodible construction and designed to carry sustained 
flows, or earth- or grass-lined and designed to carry short-term 
infrequent flows at non-erosive velocities, where sustained flows are 
not expected. OSM notified Montana that it must further revise proposed 
ARM 26.4.639(10)(a) to allow for a single open-channel spillway only if 
it is of nonerodible construction and designed to carry sustained 
flows, or earth-or grass-lined and designed to carry short-term 
infrequent flows at non-erosive velocities where sustained flows are 
not expected.
    By letter dated February 6, 1996, Montana responded that it would 
add language at ARM 26.4.639(10)(a) indicating the types of materials 
that may be used for spillways and the limits on the duration of 
spillway discharges, depending on materials used (Administrative Record 
No. MT-12-19). Montana submitted the proposed language in their May 15, 
2001, response (Administrative Record No. MT-12-25). This proposed 
language is no less effective than the Federal regulation at 30 CFR 
816.49(a)(9)/817.49(a)(9) and the Director approves ARM 
26.4.639(10)(a).
b. Special Impoundment Certification by an Engineer
    At ARM 26.4.639(10)(b), Montana proposed to allow additional 
criteria for sedimentation ponds which do not meet the requirements of 
the Mine Safety and Health Administration (MSHA) at 30 CFR 77.216(a) 
and which rely primarily on storage to control runoff from the design 
precipitation event. The Federal regulations at 30 CFR 
816.49(c)(2)(iii) /817.49(c)(2)(iii) require that the operator 
demonstrate and that a qualified registered professional engineer 
certify that the pond will safely control the design precipitation 
event, prior to the approval of a pond that relies on storage to 
control precipitation. OSM interpreted this revision as being no less 
effective than the Federal regulations. However, OSM also interpreted 
Montana's rules as having no counterpart to the Federal requirement 
that MSHA-sized impoundments be demonstrated and certified by a 
qualified registered professional engineer that the pond would control 
a design precipitation event. OSM requested in its October 17, 1995, 
letter that Montana revise ARM 26.4.639(10)(b) to include such 
demonstration and certification criteria (Administrative Record No. MT-
12-16).
    Montana responded by letter dated February 6, 1996, that all ponds, 
including those which use containment in lieu of a spillway, are 
covered by the certification requirements of ARM 26.4.639(19) 
(Administrative Record No. MT-12-19). With this clarification, OSM 
finds proposed ARM 26.4.639(10)(b) to be no less effective than the 
Federal regulations. The Director approves this revision.
c. Applicable Montana Storm Event
    At ARM 26.4.639(10)(b), Montana proposed to require that an 
impounding structure relying primarily on storage be designed to 
contain a 25-year, 24-hour design event, or greater event as specified 
by the department. The counterpart Federal regulation at 30 CFR 
816.46(c)(2)(ii)(B)/817.46(c)(2)(ii)(B) requires that the minimum 
design be for a 100-year, 6-hour storm event. Because ARM 
26.4.639(10)(b) allows for an impounding structure that may contain a 
smaller design event than the Federal regulations, OSM told Montana 
that the proposed rule was less effective than the Federal counterpart. 
OSM suggested that Montana either revise proposed ARM 26.4.639(10)(b) 
to require containment of a 100-year, 6-hour storm event, or 
demonstrate that the 25-year, 24-hour storm event produces greater 
volumes than does the 100-year, 6-hour storm event, in order to be no 
less effective than the Federal regulation.
    Montana's narrative response provided data demonstrating that in 
all cases the precipitation from the 25-year, 24-hour storm exceeds 
that of the 100-year, 6-hour storm (Administrative Record No. MT-12-
19). In addition, OSM previously approved Montana's use of the 25-year, 
24-hour storm event, in lieu of the 100-year, 6-hour storm event, with 
respect to surface runoff diversions related to refuse piles and coal 
mine waste impoundments, in the August 19, 1992, Federal Register 
notice concerning SPATS No. MT-04-FOR (Administrative Record No. MT-7-
27; 57 FR 37436). With this demonstration, OSM finds that the Montana 
rule provides for adequate containment for the run-off from a 100-year, 
6-hour storm event and OSM's concern is resolved. The Director finds 
ARM 26.4.639(10)(b) to be no less effective than the Federal regulation 
and approves the Montana revision.

O. ARM 26.4.639(22), Removal of Sedimentation Ponds and Other Treatment 
Facilities

    At ARM 26.4.639(22)(a)(i), Montana proposed to delete the need for 
a drainage basin to be stabilized prior to early removal of ponds and 
treatment facilities (sooner than 2 years) and to delete the cross-
reference to meeting the requirements at ARM 26.4.711 through 26.4.735. 
Montana stated that ARM 26.4.633, which is cross-referenced, covers 
these requirements. At ARM 26.4.639(22)(a)(ii), Montana proposed to 
delete the cross-reference to ARM 26.4.735 and revise it to read 
26.4.733. This is because ARM 26.4.734 and 26.4.735 no longer exist in 
the Montana program.
    OSM agrees that the counterpart Federal requirements for 30 CFR 
816.46(b)/817.46(b) are contained at ARM 26.4.633. However, OSM 
reviewed and approved the striking of this same language in a final 
rule Federal Register notice dated May 11, 1990 (55 FR 19727; 
Administrative Record No. MT-5-48). OSM sees no need to approve the 
deletion of the language at ARM 26.4.629(22)(a)(i) since we have 
already done so.

P. ARM 26.4.645(6) and 26.4.646(6), Groundwater and Surface Water 
Monitoring

    Montana proposed to add the requirement at ARM 26.4.645(6) and 
26.4.646(6) that sampling and water quality analyses be conducted 
according to the methodology in the 15th edition of ``Standard Methods 
for Examination of Water and Wastewater'' or 40 CFR Parts 135 and 434, 
and ``the department of health and environmental sciences document 
entitled `Circular WQB-7, Montana Numeric Water Quality Standards' 
dated April 4, 1994.'' Montana also proposed deleting the

[[Page 6402]]

option to elect methodology in Standard Methods when conducting surface 
water monitoring.
    OSM responded that the addition of the State-specific requirement 
was acceptable as long as Circular WQB-7 did not conflict with any of 
the provisions of ``Standard Methods for Examination of Water and 
Wastewater'' or the provisions of 40 CFR parts 136 and 434. Following a 
review of Circular WQB-7, OSM found it was not in conflict with 40 CFR 
Parts 136 and 434, or ``Standard Methods for Examination of Water and 
Wastewater.''
    However, Circular WQB-7 is currently being revised. In the near 
future, Montana intends to submit revised programmatic rules with a 
more current version of Circular WQB-7 cross-referenced. Therefore, the 
Director defers a decision on ARM 26.4.645(6) and 26.4.646(6), at this 
time, until Montana's new rules are submitted and a current version of 
Circular WQB-7 is reviewed.

Q. ARM 26.4.721 (1), (2) and (3), Eradication of Rills and Gullies

    At ARM 26.4.721, Montana proposed to delete the 9-inch standard for 
determining repair of rills and gullies and to state that for 
``extensive rill or gully erosion, the department may require submittal 
of a plan of mitigation for such features and department approval prior 
to implementation of repair work.'' The Federal regulations at 30 CFR 
816.95(b)/817.95(b) require, under certain circumstances, that rills 
and gullies be filled, regraded, and stabilized with the topsoil 
replaced and the area reseeded and replanted. As ARM 26.4.721 included 
the same requirements as the Federal regulations, with the exception of 
the need to replace the topsoil, OSM asked Montana to verify that ARM 
26.4.702 would provide for soil (topsoil) redistribution to replace 
topsoil during the repair of rills and gullies.
    In the February 6, 1996, response (Administrative Record No. MT-12-
19), Montana stated that ARM 26.4.702 is used for soil redistribution 
in the repair of rills and gullies in situations where soil replacement 
was included in the original reclamation plan. Montana stated that in 
some cases, redistribution has included the reuse of the eroded soil 
materials, or in other cases, redistribution has included the use of 
``new'' soil materials such as surface soils. In the case of soil 
substitutes, such materials as spoils or scoria rock would be used to 
repair rills and gullies. With this explanation, the Director approves 
the Montana revision at ARM 26.4.721 as no less effective than the 
Federal regulations.

R. ARM 26.4.724(6), Use of Revegetation Comparison Standards

    Montana proposed to delete the requirement at ARM 26.4.724(6) which 
allowed the success of revegetation of less than 100 acres to be based 
on United States Department of Agriculture (USDA) or United States 
Department of the Interior (USDI) technical guides, when the 100 acres 
was not a segment of a larger area proposed for disturbance by mining. 
There is no current Federal equivalent to this provision. There used to 
be a Federal provision at 30 CFR 816.116(a)/817.116(a) to allow the 
regulatory authority to measure revegetation success through the use of 
technical guidance from the USDA or the USDI. However, this provision 
was abolished in the September 2, 1983, OSM rulemaking concerning 
revegetation (Federal Register 48 FR 40160).
    Due to the fact that there is no current Federal counterpart 
provision to the deleted Montana rule, the Director finds that the 
Montana program remains no less effective than the Federal regulations 
and no less stringent than SMCRA with this deletion. The Director 
approves this deletion.

S. ARM 26.4.726 (2) and (3), Vegetation Production, Cover, Diversity 
and Utility Requirements

    Montana proposed to revise ARM 26.4.726 (2) and (3) to read ``live 
cover'' instead of ``cover.'' At 30 CFR 816.116(a)(2)/817.116(a)(2), 
the Federal regulations use the term ``ground cover'' for the 
evaluation of revegetation success. Ground cover is defined as the area 
of the ground covered by the combined aerial parts of vegetation and 
the litter that is produced naturally onsite.
    ``Live cover'' is a subset of ``ground cover'' as defined by the 
Federal regulations. By allowing only the use of ``live cover'' in 
evaluating compliance with the revegetation success standards, Montana 
is not allowing the use of litter in evaluating revegetation success. 
Montana has proposed stricter vegetative standards by which to sample 
and evaluate revegetated areas. Therefore, the Montana standard is more 
stringent than the Federal counterpart. The Director finds proposed ARM 
26.4.726(2) and (3) to be no less effective than the Federal regulation 
and approves the revision.

T. ARM 26.4.821(1)(g), Alternate Reclamation: Submission of Plan

    At ARM 26.4.821(1)(g), Montana proposed to allow the use of 
``technical standards derived from historical data'' for evaluating 
revegetation success for alternate reclamation, which includes land 
reclaimed for use as special use pasture and cropland. The approved 
State program establishes conditions for the use of technical standards 
derived from historical data at ARM 26.4.724(5). The conditions include 
the specification that: (1) The data must come from the premine area or 
from an area that exhibits comparable cover, production, diversity, 
density, and utility as well as comparable management, soil type, 
topographic setting, and climate in comparison to those of the premine 
area; and (2) the data must be generated for a sufficient period of 
time to encompass the range of climatic variations typical of the 
premine or other appropriate area, or data generated from the 
revegetated area. Areas must be compared to historical data generated 
only during climatic conditions comparable to those conditions existing 
at the time revegetated areas are sampled. Historical records must be 
established for each plant community that will be compared to specific 
reclaimed area plant communities.
    The Federal regulations at 30 CFR 816.116(a)(2)/817.116(a)(2) state 
that standards for success shall include criteria representative of 
unmined lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover, production, and stocking. For 
grazing land, pastureland, or cropland, the Federal regulations at 30 
CFR 816.116(b)(1) and (2)/817.116(b)(1) and (2) allow the use of 
reference areas or such other success standards approved by the 
regulatory authority for evaluating revegetation success. OSM has 
previously approved the use of technical standards derived from 
historical data for evaluating revegetation success on grazing land in 
Montana (March 21, 1991, Federal Register; 56 FR 11666). Further, the 
conditions set for use of technical standards derived from historical 
data by Montana ensure that the requirements of 30 CFR 816.116(a)(2) /
817.116(a)(2) are met. Therefore, use of technical standards is 
acceptable for evaluating special use pastureland and ``cropland. The 
Director finds that the proposed revision at ARM 26.4.821(1)(g), 
concerning the use of technical standards derived from historical data 
for setting revegetation success standards on cropland and special use 
pasture, is not inconsistent

[[Page 6403]]

with and is no less effective than the Federal regulations. The 
Director approves the revision.

U. ARM 26.4.825(4)(a) and (c) and (6), Alternate Reclamation: Alternate 
Revegetation

    Montana proposed to revise ARM 26.4.825(4)(a) and (c) and (6) to 
read ``cropland'' instead of ``hayland.'' The Federal regulations at 30 
CFR 701.5 define cropland to include land used for hay crops, which is 
the same as hayland.
    ARM 26.4.825 requires that all mined lands must be returned to a 
postmining land use of grazing land and fish and wildlife habitat. Any 
other postmining land use is considered to be alternate reclamation. 
The effect of the proposed change at ARM 26.4.825(4)(a) is to require 
that if the proposed land use is special use pasture, then the area 
must have a 5 year history of being utilized as special use pasture or 
cropland. The State may allow deviations in the location of special use 
pastures from the exact location of premining special use pasture or 
cropland (rather than hayland). There is no Federal counterpart to this 
Montana rule. While the definition of cropland is broader than hayland, 
the proposed change does not render the State program less effective 
than the Federal regulations.
    The proposed change at ARM 26.4.825(4)(c) exempts pastureland from 
ARM 26.4.724(1), the establishment of native plant community reference 
areas, and ARM 26.4.728, which requires a predominant composition of 
native species.
    The definition of pastureland at 30 CFR 701.5 states that it 
consists of land primarily used for the long-term production of 
domesticated forage plants. 30 CFR 816.116(b)(1) / 817.116(b)(1) allows 
either the use of reference areas or such other success standards which 
are approved by the regulatory authority. Although there is no direct 
Federal equivalent to ARM 26.4.825(4)(c), the Montana revision is not 
inconsistent with and is no less effective than the Federal 
regulations.
    The effect of the revision at ARM 26.4.825(6) is to require 
enhancement of wildlife values and protection of wetlands when special 
use pasture or cropland is proposed. The Federal counterparts at 30 CFR 
816.97(f) and (h)/817.97(f) and (h) likewise provide for the 
enhancement of wildlife values and wetland preservation and 
restoration. Therefore, the proposed revision is no less effective than 
the Federal regulations. The Director approves all revisions to ARM 
26.4.825.

V. ARM 26.4.924(15), Disposal of Underground Development Waste: General 
Requirements, and ARM 26.4.927(3)(a), Disposal of Underground 
Development Waste: Durable Rock Fills

    Montana proposed to revise ARM 26.4.927(3)(a) by requiring that the 
design of a durable rock fill include an internal drainage system ``in 
accordance with ARM 26.4.924(14) or (15).'' ARM 26.4.924(14), later 
recodified as (15), would allow for an alternative underdrain system. 
This is not allowed in the Federal counterparts at 30 CFR 816.71(f)(3)/
817.71(f)(3), 816.73/817.73, 816.83(a)(3)/817.83(a)(3), and 816.102(e)/
817.102(e).
    In OSM's July 10, 1997, issue letter, we informed Montana that the 
cross-reference to ARM 26.4.924(14) would need to be deleted in order 
for ARM 26.4.927(3)(a) to be no less effective than the Federal 
regulations (Administrative Record No. MT-12-20). OSM reminded Montana 
that this provision was never part of the approved program. OSM told 
Montana in the August 19, 1992, Federal Register (57 FR 37436), when 
the provision was first proposed, that it could not approve ARM 
26.4.924(14), subsequently (15). OSM codified at 30 CFR 926.16(e)(9) 
the requirement that Montana remove the provision at ARM 26.4.924(14) 
from its program.
    By letter dated May 15, 2001, Montana submitted wording to OSM 
which deleted the provision at ARM 26.4.924(15) and cross-reference to 
it at ARM 26.4.927(3)(a) (Administrative Record. No. MT-12-25). This 
deletion satisfies part of the requirement at 30 CFR 926.16(e)(9) and 
makes the Montana rules no less effective than the Federal regulations. 
The Director approves the revision but does not remove the required 
program amendment at 30 CFR 926.16(e)(9), as not all the requirements 
of (e)(9) have been met.

W. ARM 26.4.301(134) and 26.4.924(3), (4), (8), (9), (19), and (21), 
Disposal of Underground Development Waste: General Requirements

a. Definition of ``Waste Disposal Structure'' and Disposal of 
Underground Development Waste and Coal Processing Waste: Location 
Relative to Mine Excavations
    OSM placed a required program amendment (30 CFR 926.16(e)(5)) on 
Montana in the August 19, 1992, Federal Register notice (57 FR 37436) 
to specify whether the waste disposal governed by ARM 26.4.924 and 
26.4.932 was within or outside mine surface excavations, and to clarify 
what constituted a ``waste disposal structure.'' OSM placed the 
required program amendment on the Montana program due to the June 19, 
1990, proposed revisions (Administrative Record No. MT-7-01) to ARM 
26.4.924 and 26.4.932 which were not specifically directed either to 
disposal within mine surface excavations or to disposal outside mine 
excavations. OSM noted that the performance standards were the same for 
both, except for the required static safety factor.
    In the February 1, 1995, submittal (Administrative Record No. MT-
12-01), Montana proposed a definition of ``waste disposal structure'' 
at ARM 26.4.301(134) which stated that waste disposal structures are 
either composed of underground development waste or coal processing 
waste located outside of the mine workings and the surface area, and 
are other than impoundments or embankments. At ARM 26.4.924(3), Montana 
proposed similar wording to the general requirements for the disposal 
of underground development waste to clarify that underground 
development waste may not be placed in impoundments or embankments, to 
clarify the performance standards for the reclamation of waste disposal 
areas--including those relating to location, and to clarify that the 
disposal of underground waste into the spoils backfill of excavation 
areas must be in accordance with sections 3 and 20 of ARM 26.4.924.
    Montana's revisions and clarification of the definition of a 
``waste disposal structure,'' as well as the general requirements for 
the disposal of underground development waste, how they relate to the 
location of mine excavations, and which performance standards apply, 
assure that the program meets the Federal counterpart at 30 CFR 816.81/
817.81 through 816.84/817.84. The Director finds the Montana rules to 
be no less effective than the counterpart Federal regulations and 
approves the revisions. The Director removes the required program 
amendment at 30 CFR 926.16(e)(5).
b. Disposal of Underground Development Waste: Requirements of the Mine 
Safety and Health Administration (MSHA)
    OSM placed a required program amendment (30 CFR 926.16(e)(6)) on 
Montana in the August 19, 1992, Federal Register notice (57 FR 37436; 
Administrative Record No. MT-7-27) to amend ARM 26.4.924(4) to require 
that all non-impounding underground development waste disposal 
structures meet the MSHA requirements at 30 CFR 77.214 and 77.215, and 
to clarify what

[[Page 6404]]

constitutes a ``coal waste refuse structure.''
    In the February 1, 1995, submittal (Administrative Record No. MT-
12-01), Montana deleted the undefined term ``coal waste disposal 
structure'' and revised ARM 26.4.924(4)(b) to require that ``waste 
disposal structures'' must meet the requirements of 30 CFR 77.214 and 
77.215. With this revision, the Director finds the Montana revised rule 
to be no less effective than the Federal regulation and approves the 
proposed language. The Director removes the required program amendment 
at 30 CFR 926.16(e)(6).
c. Disposal of Underground Development Waste, General Requirements: 
Covering With Non-Toxic Material
    OSM placed a required program amendment (30 CFR 926.16(e)(7)) on 
Montana in the August 19, 1992, Federal Register notice (57 FR 37436) 
to incorporate a requirement no less effective than 30 CFR 
816.83(c)(4)/817.83(c)(4) which concerns the covering of refuse piles 
with non-toxic materials.
    In the February 1, 1995, submittal (Administrative Record No. MT-
12-01), Montana proposed new language at ARM 26.4.924(9) which requires 
that waste disposal structures be covered with four feet of non-toxic 
and non-combustible material following final grading. With this 
revision, the Director finds that Montana's requirements are no less 
effective than the Federal requirements at 30 CFR 816.83(c)(4)/
817.83(c)(4) and approves the proposed language. The Director removes 
the required program amendment at 30 CFR 926.16(e)(7).

X. ARM 26.4.930(3), Placement and Disposal of Coal Processing Waste: 
Special Application and Requirements

    OSM placed a required program amendment (30 CFR 926.16(e)(8)) on 
Montana in the August 19, 1992, Federal Register notice (57 FR 37436) 
to add application requirements to ARM 26.4.930 which are no less 
effective than 30 CFR 780.25(e) and (f)/784.16(e) and (f). OSM placed 
the required program amendment on the Montana program due to the 
absence of requirements that specify detailed application and design 
requirements for coal processing waste impoundments. Specifically, the 
construction of impoundments from coal processing waste behind 
embankments constructed of other materials was not prohibited in the 
Montana program.
    In the February 1, 1995, submittal (Administrative Record No. MT-
12-01), Montana rectified this omission by cross-referencing the 
requirements at ARM 26.4.505(5) which in turn cross-reference the 
requirements at ARM 26.4.603, 26.4.639, and 26.4.642. ARM 26.4.505(6) 
prohibits the retention of coal waste impoundments as part of the post-
mining land use. Therefore, the Director finds the Montana revised rule 
to be no less effective than the Federal regulation and approves the 
proposed language. The Director removes the required program amendment 
at 30 CFR 926.16(e)(8).

Y. ARM 26.4.932(5)(b), Disposal of Coal Processing Waste

    At ARM 26.4.932(5)(b), Montana proposed to delete the statements 
that: (1) Inspections may terminate when the coal processing waste has 
been graded; (2) the provisions of subsection (9) have been met (which 
primarily concern cover with a minimum of four feet of non-toxic and 
non-combustible material); and (3) the soil has been distributed in 
accordance with the soil redistribution and stockpiling provisions at 
ARM 26.4.702. In the place of this statement, Montana has added a 
provision that inspections would be made in accordance with the 
critical construction schedule contained in ARM 26.4.924(19)(b). ARM 
26.4.924(19)(b) requires that inspections be made at least quarterly 
and during critical construction periods, which include the following: 
(1) Foundation preparation; (2) underdrains and protective filter 
systems; (3) installation of final surface drainage systems; and (4) 
final grading and revegetation.
    The Federal counterpart regulation concerning the inspection of 
coal mine waste at 30 CFR 816.83(d)/817.83(d) includes, in addition to 
the Montana provisions listed above, the requirements that inspections 
are conducted by a qualified registered professional engineer or other 
qualified professional specialist under the direction of the 
professional engineer, there are more frequent inspections if a danger 
or harm exists to the public health and safety, a certified report made 
by the qualified, registered professional engineer to the regulatory 
authority promptly after each inspection, color photographs in the 
certified report of the drainage system and protective filters taken 
during and after construction but before coal mine waste covers the 
underdrains, and a copy of the report to be maintained at the minesite. 
These Federal requirements for the inspection of coal mine waste (30 
CFR 816.83(d) and (d)(2) through (d)(4)/817.83(d) and (d)(2) through 
(d)(4)) are included in the Montana program at ARM 26.4.924(a), (c), 
(d), (e) and (f). However, Montana has only cross-referenced ARM 
26.4.924(b).
    Therefore, Montana needs to revise the cross-reference at ARM 
26.4.932(5)(b) to read ``ARM 26.4.924'' in general, in order to be no 
less effective than the Federal counterpart regulations. Therefore, the 
Director defers on the approval of ARM 26.4.932(5)(b) at this time 
until Montana revises the cross-reference to read ``ARM 26.4.924.''

Z. ARM 26.4.1014, Test Pits

    At ARM 26.4.1014, Montana proposed additional requirements for 
prospecting test pits. If the coal from a test pit is sold directly to, 
or commercially used directly by, the intended end user, or, if the 
coal is sold through a broker or agent, proposed ARM 26.4.1014(2)(c) 
required that a test pit permit application contain the information 
specified at proposed ARM 26.4.1014(2)(c)(i) through (iii).
    The Federal regulations at 30 CFR 772.14 also provide for such use 
of coal from exploration operations. However, the Federal regulations 
at 30 CFR 772.14(b) require prior written approval by the regulatory 
authority that such sale or commercial use is for testing purposes, 
otherwise a permit to mine must be obtained.
    Proposed ARM 26.4.1014 does not specifically require prior written 
approval from the State prior to use of the coal in this manner. OSM 
requested an interpretation from Montana that, because the ARM 
provisions in subchapter 4 are applicable to test pit permits, 
Montana's program provides for specific written approval prior to such 
use of coal obtained from prospecting test pits at ARM 26.4.1014 
(Administrative Record No. MT-12-16). There is no specific reference to 
subchapter 4 for such an approval at ARM 26.4.1014.
    For whatever reason, Montana did not respond to OSM with an 
interpretation that written approval from the State is required prior 
to sale or commercial use of coal from test pits for testing purposes, 
in the response dated February 6, 1996 (Administrative Record No. MT-
12-19). In the absence of such an interpretation, and because the 
revision is otherwise no less effective than the Federal regulations, 
the Director approves ARM 26.4.1014 with the interpretation that 
Montana's program provides for specific written approval prior to the 
use of coal obtained from prospecting test pits.

[[Page 6405]]

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment by letters dated 
February 8, 1995, and March 1, 1995 (Administrative Record Nos. MT-12-
03 and MT-12-08). The Northern Plains Resource Council (NPRC) responded 
on April 14, 1995, with comments on the proposed revisions 
(Administrative Record No. MT-12-15) as follows:
1. ARM 26.4.304(6)(b)(ii)(A)
    The NPRC had concerns that Montana omitted iron and manganese from 
testing in this subsection. OSM addressed similar issues at Finding No. 
5 above.
2. ARM 26.4.501A(3)(a)
    The NPRC commented that the change from two to four spoil ridges 
would result in a standard variance which would not promote reclamation 
as contemporaneously as possible and could result in adverse impacts. 
While OSM's regulation at 30 CFR 816.101(a)(2)/817.101(a)(2) is 
suspended indefinitely, OSM has had a four spoil ridge requirement off 
and on since 1979. We have no basis for finding that requiring 
regrading within four spoil ridges is not as contemporaneous as 
practicable. OSM finds Montana's rules to be no less effective than the 
Federal provisions at 30 CFR 816.100/817.100.
3. ARM 26.4.519A
    The NPRC commented that revisions made to this section would 
``eliminate all highwalls, with certain very limited exceptions * * *'' 
OSM believes that the NPRC intended to state ``delete the requirement 
to eliminate all highwalls.'' OSM also read Montana's revision as 
deleting a requirement to eliminate all highwalls and depressions with 
spoil and suitable waste materials, as well as the allowable exemption 
from that requirement, and to require that the operator demonstrate 
that the volume of spoil and suitable waste materials is more than 
sufficient to restore the disturbed area to approximate original 
contour (AOC). Montana explained in its February 6, 1996, letter 
(Administrative Record No. MT-12-19) that this revision was made to 
eliminate a redundancy with ARM 26.4.501A(1). However, since that time, 
Montana has eliminated ARM 26.4.501A(1) from its regulatory program. In 
the near future, Montana will submit its current regulatory program to 
OSM for evaluation of all revised rules, including the requirement to 
eliminate all highwalls and depressions with spoil and suitable waste 
materials. At this time, OSM is deferring on the proposed revision at 
ARM 26.4.519A.
    The NPRC had concerns with ARM 26.4.515(2) and wondered if those 
rules were approved by OSM. OSM responds that approval of ARM 
26.4.515(2) was deferred by OSM in the May 11, 1990, Federal Register 
notice (55 FR 19727; Administrative Record No. MT-5-48). A deferral 
means that a provision is unenforceable until Montana and OSM resolve 
the issues related to the rulemaking. Montana has since developed 
guidelines concerning approximate original contour and post-mining 
topography which it believes will address OSM's concerns with ARM 
26.4.515(2). Those guidelines will be submitted in the near future to 
OSM.
4. ARM 26.4.623(2)(a)(iii)
    Although the NPRC listed ARM 623.4.623(2)(a)(iii) as the rule in 
question, OSM believes that ARM 26.4.623(2)(a)(iii) is the correct 
cite. The NPRC objects to the change from a daily blasting period with 
a maximum of four hours per day to a maximum of eight hours per day. At 
the same time, the NPRC acknowledges that Montana has the right to 
impose more restrictive blasting conditions by the authority given to 
the States at 30 CFR 816.64(a)(2)/817.64(a)(2). Because Montana is 
complying with its responsibilities of 30 CFR 816.64(a)(2)/
817.64(a)(2), OSM suggests that the NPRC address any on-the-ground 
concerns with blasting schedules to Montana.
5. ARM 26.4.639(10)
    The NPRC expressed concerns that the proposed revisions to this 
subsection would result in a lack of safety standards. OSM addressed 
similar concerns at finding no. 14a and b above concerning a single 
emergency spillway and the containment of a 25-year, 24 hour storm 
event.
6. ARM 26.4.721
    The NPRC appeared to be concerned with Montana's elimination of its 
nine inches or greater, rill and gulley standard for regraded and 
resoiled lands. OSM points out that the Federal counterpart at 30 CFR 
816.95/817.95 does not use a depth criteria to determine eradication 
standards. Rather the Federal rules determine the need to eradicate 
rills and gullies based on their impact to postmining land use or the 
reestablishment of vegetative cover, or the impact to water quality 
standards for receiving streams. Montana has proposed rules with 
similar language which are no less effective than the Federal 
regulations.
7. ARM 26.4.1001 and 26.4.1001A
    The NPRC expressed concerns that without a definition of 
``substantially disturb,'' Montana would not be able to interpret its 
regulations at ARM 26.4.1001 and 1001A. Subsequent to the NPRC's letter 
dated April 14, 1995, ARM 26.4.1001 and 26.4.1001A were removed from 
this submittal, revised and approved in SPATS No. MT-018-FOR, Federal 
Register notice dated January 22, 1999 (64 FR 3611). Montana submitted 
a definition of ``substantially disturb'' at ARM 26.4.301(114) which 
was also approved at that time.
8. ARM 26.4.321
    The NPRC objected to Montana's use of general cross-references, in 
particular subsection (g), stating that the response is not specific 
enough. In support, the NPRC cites the corresponding Federal rules at 
30 CFR 780.37(a)/784.24(a) and their specific references ``down to 
section and subsection.'' However, the Federal regulation at 30 CFR 
780.37(a)/784.24(a) requires that the State ``Describe the plans to 
remove and reclaim each road that would not be retained * * *'' 
Therefore, when Montana lists subchapters 5, 6, 7, and 8 of ARM, 
Montana is listing the pertinent subchapters which have road-specific 
reclamation information which is required at 30 CFR 780.37(a)/
784.24(a). OSM believes that Montana is complying with the Federal 
regulations and its rules are no less effective than the Federal 
regulations.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Montana program by letters dated February 8, 1995; 
March 1, 1995; and May 23, 2001 (Administrative Record Nos. MT-12-03, 
MT-12-08 and MT-12-27).
    Four agencies responded that they had no comments: the U.S. Army 
Corps of Engineers (March 2 and March 20, 1995, letters; Administrative 
Record Nos. MT-12-09 and MT-12-14), the Bureau of Mines (March 17, 
1995, letter; Administrative Record No. MT-12-13), the Mine Safety and 
Health Administration (March 9, 1995 and June 11, 2001, letters; 
Administrative Record Nos. MT-12-11 and MT-12-30); and the Bureau of 
Indian Affairs (June 11, 2001, letter; Administrative Record No. MT-12-
29).
    The Natural Resources Conservation Service (NRCS) responded on 
March 8,

[[Page 6406]]

1995, with comments on the approved Montana program but had no comments 
on the proposed revisions (Administrative Record No. MT-12-10). The 
NRCS had the following comments concerning Montana's already approved 
program:
1. Reference to Soil Conservation Service (SCS)
    The NRCS commented that Montana needed to change the reference from 
the former SCS to the current NRCS, specifically at ARM 26.4.724(3)(a) 
and 26.4.825(1)(b). OSM is aware that Montana has already made the 
requested change to those sections in its 1999 revised rules--which 
will be submitted to OSM in the near future.
2. ARM 26.4.304(9)(b)
    The NRCS suggested that ``current condition and trend'' be revised 
to read ``current ecological condition and trend.'' The requested 
information at ARM 26.4.304(9)(b) comprises aspects of the vegetative 
community which Montana has decided are necessary to the permit 
application. These descriptions are State guidelines, as allowed at 30 
CFR 779.19(a)/783.19(a) and not Federal requirements. Therefore, OSM 
cannot require Montana to incorporate the term ``ecological.'' OSM can, 
however, send the comment to Montana for consideration when, at such 
future date, the program is amended.
3. ARM 26.4.304(11)
    The NRCS suggested that the soil survey be done at the first order 
level of detail, which would be consistent with the map scale of one 
inch equals 400 feet at ARM 26.4.304(11). Both the Federal regulations 
and Montana's program specify that a soil survey be conducted in 
accordance with the standards of the National Cooperative Soil Survey. 
As the scale specified, one inch equals 400 feet, is consistent with a 
soil survey of the first order, Montana is performing a soil survey to 
the specifications requested by the NRCS.
4. ARM 26.4.726(2)
    The NRCS suggested that the 51 percent native species required by 
Montana be changed to 75 percent native species, which is required by 
the NRCS. The counterpart Federal regulations at 30 CFR 816.111(a)(2)/
817.111(a)(2) do not specify a certain percentage of native species, 
but only that native species be used. OSM cannot require Montana to 
adopt a programmatic requirement which is more stringent than the 
Federal regulations.
5. ARM 26.4.825(c)(iv)
    The NRCS suggested that the reference to the ``Land Capability 
Guide for Montana, U.S. Soil Conservation Service, September 1, 1982'' 
be replaced with a reference to an updated NRCS guide, the ``current 
Field Office Technical Guide (FOTG) for Natural Resources Conservation 
Service.'' However, there is no Federal counterpart to these rules. 
Therefore, there is no Federal standard to measure the Montana rule by. 
OSM cannot require the States to revise their programs when there is no 
Federal counterpart.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.). As this amendment did not 
relate to air or water quality standards adopted under the authority of 
the Clean Air Act or the Clean Water Act, OSM requested comments on the 
amendment from EPA (Administrative Record No. MT-12-04). EPA responded 
on February 23, 1995, that it had no comments on Montana's amendment 
(Administrative Record No. MT-12-06).

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On February 8, 1995, we requested comments on Montana's 
amendment (Administrative Record No. MT-12-03), but neither responded 
to our request.

V. OSM's Decision

    Based on the above findings, we approve, with certain exceptions, 
the amendment sent to us by Montana on February 1 and 28, 1995, and 
further clarified by letter dated February 6, 1996.
    We approve, as discussed in: finding no. 1, ARM 26.4.301(79) 
through (119), (121) through (133), and (135) through (137), concerning 
definitions; ARM 26.4.407(1) and (2), concerning conditions of permit; 
ARM 26.4.601(7), concerning general requirements for road and railroad 
loop construction; ARM 26.4.639(18)(c), concerning sedimentation ponds 
and other treatment facilities; ARM 26.4.711(2) through (5), concerning 
establishment of vegetation; ARM 26.4.924(5), (10) through (14), (16), 
(17), (18), and (20), concerning disposal of underground development 
waste: general requirements; ARM 26.4.1005(2), concerning drill holes; 
ARM 26.4.1006(1), concerning roads and other transportation facilities; 
ARM 26.4.1007(2), concerning grading, soil salvage, storage, and 
redistribution; and ARM 26.4.1009(1), concerning diversions; finding 
no. 2, ARM 26.4.308(2), concerning operations plan; ARM 26.4.314(3), 
concerning plan for protection of the hydrologic balance; ARM 
26.4.405(6) and (8), concerning findings and notice of decision; ARM 
26.4.501A(3)(a), concerning final grading requirements; ARM 
26.4.524(2), concerning signs and markers; ARM 26.4.601(5), concerning 
general requirements for road and railroad loop construction; ARM 
26.4.602(2), concerning location of roads and railroad loops; ARM 
26.4.603(9) and Introduction, concerning embankments; ARM 
26.4.605(3)(a)(i), concerning hydrologic impact of roads and railroad 
loops; ARM 26.4.623(2)(b)(iii), concerning blasting schedule; ARM 
26.4.633(2), concerning water quality performance standards; ARM 
26.4.634(1) and (2), concerning reclamation of drainages; ARM 
26.4.638(2)(a), concerning sediment control structures; ARM 
26.4.639(1), (10)(c) and (18), Introduction, concerning sedimentation 
ponds and other treatment facilities; ARM 26.4.642(5) and (8), 
concerning permanent and temporary impoundments; ARM 26.4.702(4), 
concerning redistribution and stockpiling of soil; ARM 26.4.711(6), 
concerning establishment of vegetation; ARM 26.4.927(2)(c), concerning 
disposal of underground development waste: durable rock fills; ARM 
26.4.932(8)(a)(ii), concerning disposal of coal processing waste; ARM 
26.4.1002(1) and (2), concerning information and monthly reports; ARM 
26.4.1005(3), concerning drill holes; ARM 26.4.1006(2) through (4), 
concerning roads and other transportation facilities; ARM 26.4.1007(1), 
concerning grading, soil salvage, storage, and redistribution; ARM 
26.4.1009(2), concerning diversions; ARM 26.4.1011(1), concerning 
hydrologic balance; ARM 26.4.1116(7)(c), concerning bonding: criteria 
and schedule for release of bond; ARM 26.4.1116A(1) and (2), concerning 
reassertion of jurisdiction; ARM 26.4.1141(3), concerning designation 
of lands unsuitable: definition; ARM 26.4.1212(1),

[[Page 6407]]

concerning point system for civil penalties and waivers; finding no. 4, 
ARM 26.4.301(120), the definition of ``test pit;'' finding no. 5, ARM 
26.4.304(5), (6)(a)(ii) and (6)(b)(ii)(B), concerning baseline: 
information: environmental resources; finding no. 6, ARM 26.4.314(5), 
concerning protection of the hydrologic balance; finding no. 7, ARM 
26.4.321(1) and (3), concerning transportation facilities plan; finding 
no. 8, ARM 26.4.404(5)(b), concerning review of application; finding 
no. 9, ARM 26.4.405(6)(l), concerning findings and notice of decision; 
finding no. 10, ARM 26.4.407(4), concerning conditions of permit; 
finding no. 11, ARM 26.4.505(4) through (8), concerning burial and 
treatment of waste materials and disposal of off-site generated waste 
and fly ash; finding no. 13, ARM 26.4.603(9) and 26.4.639(18)(b), 
concerning sedimentation ponds and other treatment facilities: 
construction of sedimentation ponds that meet the criteria of 30 CFR 
77.216A; finding no. 14, ARM 26.4.639(10)(b) and (19), concerning the 
construction of sedimentation ponds; finding no. 17, ARM 26.4.721(1) 
through (3), concerning eradication of rills and gullies; finding no. 
18, ARM 26.4.724(6), concerning the use of revegetation comparison 
standards; finding no. 19, ARM 26.4.726(2) and (3), concerning 
vegetation production, cover, diversity, density and utility 
requirements; finding no. 20, ARM 26.4.821(1)(g), concerning alternate 
reclamation: submission of plan; finding no. 21, ARM 26.4.825(4)(a) and 
(c) and (6), concerning alternate reclamation: alternate revegetation; 
finding no. 22, ARM 26.4.924(15) and 26.4.927(3)(a), concerning the 
disposal of underground development waste; finding no. 23, ARM 
26.4.301(134) and 26.4.924(3), (4), (8), (9), (19) and (21), concerning 
the definition of ``waste disposal structure'' and the disposal of 
underground development waste: general requirements; finding no. 24, 
ARM 26.4.930(3), concerning placement and disposal of coal processing 
waste: special application and requirements; and finding no. 26, ARM 
26.4.1014, concerning test pits.
    We defer on, as discussed in finding no. 3, ARM 26.4.301(78); 
26.4.303, Introduction, (1), (6) through (8), (13) through (15), (20) 
through (24); 26.4.404(7) through (10); ARM 26.4.405(5); 26.4.405A; 
26.4.405B; and ARM 26.4.1206(1), concerning ownership and control; 
finding no. 12, ARM 26.4.519A, concerning thick overburden and excess 
spoil; finding no. 16, ARM 26.4.645(6) and 26.4.646(6), concerning 
groundwater and surface water monitoring; and finding no. 25, ARM 
26.4.932(5)(b), concerning the disposal of coal processing waste.
    We already approved, as discussed in finding no. 15, ARM 
26.4.639(22), concerning the removal of sedimentation ponds and other 
treatment facilities, in the May 11, 1990, Federal Register notice (55 
FR 19727; SPATS No. MT-001-FOR and MT-002-FOR).
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 926, which codify decisions concerning the Montana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the Montana program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this final regulation effective immediately will 
expedite that process. SMCRA requires consistency of State and Federal 
standards.

Effect of OSM'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 change of an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the Montana program, we will recognize only the statutes, 
regulations and other materials we have approved, together with any 
consistent implementing policies, directives and other materials. We 
will require Montana to enforce only the approved provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implication. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments since each 
such program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulation surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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

[[Page 6408]]

National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

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.).

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.). 
The State submittal, which 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. 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.

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; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (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. This determination is based upon the fact that the State 
submittal which is the subject of this rule is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the state 
submittal, which is the subject of this rule, is based upon counterpart 
federal regulations for which an analysis was prepared and a 
determination made that the federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 18, 2002.
Brent Wahlquist,
Regional Director, Western Regional Coordinating Center.


    For the reasons set out in the preamble, 30 CFR part 926 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 in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 926.15  Approval of Montana regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
   Original amendment submission date      Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
February 1 and 28, 1995.................  February 12, 2002..........  ARM 26.4.301(79) through (137);
                                                                        26.4.304(5) and (6); 26.4.308(2);
                                                                        26.4.314(3) and (5); 26.4.321(1) and
                                                                        (3); 26.4.404(5); 26.4.405(6) and (8);
                                                                        26.4.407(1), (2) and (4); 26.4.501A(3);
                                                                        26.4.505(4) through (8); 26.4.524(2);
                                                                        26.4.601(5) and (7); 26.4.602(2);
                                                                        26.4.603(9) and Introduction;
                                                                        26.4.605(3); 26.4.623(2); 26.4.633(2);
                                                                        26.4.634(1) and (2); 26.4.638(2);
                                                                        26.4.639(1), (10), (18) and (19);
                                                                        26.4.642(5) and (8); 26.4.702(4);
                                                                        26.4.711(2) through(6); 26.4.721(1)
                                                                        through (3); 26.4.724(6); 26.4.726(2)
                                                                        and (3); 26.4.821(1); 26.4.825(4) and
                                                                        (6); 26.4.924(3) through (5), (8)
                                                                        through (21); 26.4.927(2) and (3);
                                                                        26.4.930(3); 26.4.932(8); 26.4.1002(1)
                                                                        and (2); 26.4.1005(2) and (3);
                                                                        26.4.1006(1) through (4); 26.4.1007(1)
                                                                        and (2); 26.4.1009(1) and (2);
                                                                        26.4.1011(1); 26.4.1014; 26.4.1116(7);
                                                                        26.4.1116A(1) and (2); 26.4.1141(3); and
                                                                        26.4.1212(1) are approved. ARM
                                                                        26.4.301(78); 26.3.303, Introduction,
                                                                        (1), (6) through (8), (13) through (15),
                                                                        and (20) through (24); 26.4.404(7)
                                                                        through (10); 26.4.405(5); 26.4.405A;
                                                                        26.4.405B, 26.4.519A; 26.4.645(6);
                                                                        26.4.646(6); 26.4.932(5)(b) and
                                                                        26.4.1206(1) are deferred.
----------------------------------------------------------------------------------------------------------------

Sec. 926.16  [Amended]

    3. Section 926.16 is amended by removing and reserving paragraphs 
(b), (c), (d), (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), (e)(7), and 
(e)(8).

[FR Doc. 02-3339 Filed 2-11-02; 8:45 am]
BILLING CODE 4310-05-P