[Federal Register Volume 68, Number 151 (Wednesday, August 6, 2003)]
[Rules and Regulations]
[Pages 46460-46477]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19944]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[MT-023-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 are approving, with certain exceptions and additional 
requirements, a proposed amendment to the Montana regulatory program 
(the ``Montana program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Montana proposed revisions 
to and additions of rules and statutes about: definitions; ownership 
and control; baseline information; maps; prime farmland; reclamation 
plan; ponds and embankments; transportation facilities plan; coal 
processing plants and support facilities; permit applications, 
conditions, revisions, and renewal; backfilling and grading; small 
depressions; burial and treatment of exposed mineral seams; storage and 
disposal of garbage; disposal of off-site generated waste and fly ash; 
contouring; buffer zones; thick overburden and disposal of excess 
spoil; permanent cessation of operations; roads and railroad loops; 
soil removal; blasting schedule; sealing of drilled holes; water 
quality performance standards; reclamation of drainages; sedimentation 
ponds and other treatment facilities; discharge and outflow structures; 
permanent and temporary impoundments; groundwater and surface water 
monitoring; wells and underground operations; redistribution and 
stockpiling of soil; establishment of vegetation; soil amendments and 
other management techniques; other revegetation comparison standards; 
vegetation production, cover, diversity, density, and utility 
requirements; measurement standards for trees, shrubs, and half-shrubs; 
postmining land use; alternate reclamation; general performance 
standards; subsidence controls; disposal of underground development 
waste; disposal of coal processing waste; information and monthly 
reports; renewal and transfer of prospecting permits; prospecting drill 
holes; prospecting roads and other transportation facilities; removal 
of prospecting equipment; prospecting test pits; prospecting bond 
release procedures; notice of intent to prospect; bonding; reassertion 
of jurisdiction; areas where coal mining is prohibited; designation of 
lands unsuitable; small operator assistance program; certification of 
blasters; and blaster training courses. Montana also proposed to 
recodify its program rules in the Administrative Rules of Montana (ARM) 
from Title 26 Chapter 4 to Title 17 Chapter 24. Montana revised its 
program to be consistent with the corresponding Federal regulations and 
SMCRA, and provide additional safeguards and clarify ambiguities.

EFFECTIVE DATE: August 6, 2003.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: 307.261.6550, 
Internet address: [email protected].

[[Page 46461]]


SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM) 
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 this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this 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 letter dated May 7, 2002, Montana sent us an amendment (SATS No. 
MT-023-FOR, Administrative Record No. MT-20-01) to its program under 
SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment: (1) In 
response to letters dated March 29, 1990; June 5, 1996; January 13, 
1997; and June 26, 1997 (Administrative Record Nos. MT-60-07, MT-60-09, 
MT-60-10, and MT-60-11) that we sent to Montana in accordance with 30 
CFR 732.17(c), (2) in response to the required program amendments at 30 
CFR 926.16(e)(9), and (3) to include the changes made at its own 
initiative.
    We announced receipt of the proposed amendment in the July 15, 
2002, Federal Register (67 FR 46434). 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 (Administrative Record 
No. MT-20-06). We did not hold a public hearing or meeting because one 
was not requested. The public comment period ended on August 14, 2002. 
We received comments from one private citizen.

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 exceptions and additional requirements as 
described below.

A. Minor Revisions to Montana's Rules and Statutes

    Montana proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved rules and statutes.
    We note that as a result of the reorganization of the natural 
resources function of the Montana State Government in 1995, which 
transferred the authority to regulate coal mining under SMCRA from the 
Department of State Lands to the Department of Environmental Quality 
(Department), all of the Montana program rules were recodified from 
Title 26 Chapter 4 to Title 17 Chapter 24 of the Administrative Rules 
of Montana.

ARM 17.24.301(34)-(141) Definitions (recodified).
ARM 17.24.301(46) Definition of ``habit or characteristic pattern'' 
[relocated from ARM 17.24.634].
ARM 17.24.301(79) Definition of ``owned or controlled.''
ARM 17.24.301(111) Definition of ``soil survey.''
ARM 17.24.302(6) Permit application format.
ARM 17.24.303(15)(a)(ii) Permit applications; legal, financial, 
compliance, and related information.
ARM 17.24.306 Permit applications; prime farmland investigation.
ARM 17.24.313(6) Permit applications; reclamation plan.
ARM 17.24.324 Permit applications; prime farmland special 
application requirements.
ARM 17.24.327(2) Permit applications; coal processing plants, 
special application requirements.
ARM 17.24.401 Processing of permit applications; filing of 
application.
ARM 17.24.403 Processing of permit applications; informal 
conference.
ARM 17.24.405(8) Processing of permit applications; findings and 
notice of decision.
ARM 17.24.413 Processing of permit applications; conditions of 
permit.
ARM 17.24.415 Processing of permit applications; permit revisions.
ARM 17.24.507 Storage and final disposal of garbage and other 
debris.
ARM 17.24.510(2) Disposal of offsite-generated waste and fly ash.
ARM 17.24.518 Buffer zones.
ARM 17.24.520(3) (recodification) Thick overburden and excess spoil.
ARM 17.24.601(3), (4), (5), (7), (8) General requirements for roads.
ARM 17.24.605 recodification, (3)(d)(iii), (f) [delete ``or road''], 
hydrologic impact of roads.
ARM 17.24.606 Surfacing of roads [moved to ARM 17.24.601(7)].
ARM 17.24.607(2) (intro), (2)(c), Maintenance of roads.
ARM 17.24.625 Seismograph measurements.
ARM 17.24.632 Permanent sealing of drilled holes.
ARM 17.24.634 (1) (intro), replacement of ``stream'' and 
``drainage'' by ``channel'' throughout; reclamation of drainages.
ARM 17.24.639(6), (9), (15)(a), (b) Sediment Ponds.
ARM 17.24.640 Discharge structures.
ARM 17.24.642(1)(f), (2), (3) Permanent and temporary impoundments.
ARM 17.24.645(5) Groundwater monitoring.
ARM 17.24.647 Transfer of wells.
ARM 17.24.652 Wells and underground openings; safety.
ARM 17.24.702(1), (2) Redistribution and stockpiling of soil.
ARM 17.24.711(6)(b) Establishment of vegetation.
ARM 17.24.716(1), (5)(a) Method of revegetation.
ARM 17.24.718 Soil amendments.
ARM 17.24.724 Use of revegetation comparison standards.
ARM 17.24.733 (recodification of (3)-(5)) Measurement standards for 
woody plants.
ARM 17.24.762 Postmining land use.
ARM 17.24.815(2)(c)-(e), (h) Prime farmlands; revegetation.
ARM 17.24.821 Alternate reclamation; submission of plan.
ARM 17.24.823 Alternate reclamation; approval of plan and review of 
operation.
ARM 17.24.825 Alternate reclamation; alternate revegetation.
ARM 17.24.903 Underground mining, general performance standards.
ARM 17.24.924 (Recodification (15)-(20)) Underground mining, 
disposal of underground development waste.
ARM 17.24.925 Underground mining, disposal of underground 
development waste; durable rock fills.
ARM 17.24.927 Underground mining, disposal of underground 
development waste; valley fill.
ARM 17.24.1001(1), (2)(b)-(k), (2)(m)-(4) Prospecting, permit 
requirements.
ARM 17.24.1005 Prospecting, drill holes.
ARM 17.24.1006 Prospecting, roads and other transportation 
facilities, ARM 17.24.1010 Prospecting, removal of equipment.
ARM 17.24.1014(1)-(3) Prospecting, test pits; application 
requirements, etc.
ARM 17.24.1017 Prospecting, bond release procedures for drilling 
operations.
ARM 17.24.1018(5)-(9) Prospecting, notice of intent to prospect.
ARM 17.24.1108 Bonding, certificate of deposit.
ARM 17.24.1116, 1116A Bonding, criteria for bond release, 
reassertion of jurisdiction.
ARM 17.24.1132 Areas upon which coal mining is prohibited; 
definitions and standard for measurement of distances.
ARM 17.24.1143 Designation of lands unsuitable; prospecting on 
designated lands.


[[Page 46462]]


    Montana Code Annotated (MCA) 82-4-205 (recodification) and (1) 
Administration by department.

MCA 82-4-241(1) Receipts paid into general fund.
MCA 82-4-254 (3, last sentence), (4) Violation, penalty, waiver.

    Because these changes are minor, we find that they will not make 
Montana's rules or statutes less effective than the corresponding 
Federal regulations or less stringent than SMCRA. We approve the 
proposed revisions.

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.

ARM 17.24.301(34) (30 CFR 701.5), Definition of ``domestic water 
supply.''
ARM 17.24.301(39) (30 CFR 701.5), Definition of ``excess spoil.''
ARM 17.24.301(64) (30 CFR 701.5), Definition of ``material damage.''
ARM 17.24.301(71) (30 CFR 701.5), Definition of ``non-commercial 
building.''
ARM 17.24.301(73) (30 CFR 701.5), Definition of ``occupied 
residential dwelling.''
ARM 17.24.301(76) (30 CFR 701.5), Definition of ``other treatment 
facilities.''
ARM 17.24.301(103) (30 CFR 701.5), Definition of ``replace adversely 
affected domestic water supply.''
ARM 17.24.301(110) (30 CFR 701.5), Definition of ``soil horizon.''
ARM 17.24.304(5) (30 CFR 780.21(c)(1)/784.14(c) (1)), Baseline 
information; environmental resources.
ARM 17.24.315(1)(b) (30 CFR 780.25(a)(2), (f)/784.16(a)(2), (f)), 
Plan for ponds and embankments.
ARM 17.24.324(2), (3) (30 CFR 785.17(d), (e)), Prime farmlands, 
application requirements.
ARM 17.24.505(2) (30 CFR 816/817.102(f)), Burial and treatment of 
waste materials.
ARM 17.24.639(7)(b), (c) (30 CFR 816/817.49(c)(2)), Sediment ponds, 
containment requirements.
ARM 17.24.639(8) (30 CFR 816/817.49(a)(6)(i)); 17.24.639(14) (30 CFR 
816/817.46(c)(1)(iii)(H)); and 17.24.639(16) (30 CFR 816/
817.49(a)(4)) Sediment ponds, foundation stability and embankment 
stability.
ARM 17.24.639(17) (30 CFR 816/817.49(a)(3)), Sediment ponds, design 
standards.
ARM 17.24.639(21) (30 CFR 816/817.49(a)(5), (a)(9)(ii)(A)), Sediment 
ponds, freeboard and spillway capacity.
ARM 17.24.639(23) (30 CFR 816/817.49(a)(12)), Sediment ponds, 
inspections.
ARM 17.24.642(6) (30 CFR 816/817.49(a)(12)), Permanent and temporary 
impoundments, inspections.
ARM 17.24.725(1) (30 CFR 816/817.116(c)(3)(i)), Period of 
responsibility.
ARM 17.24.726(2) (30 CFR 816/817.111), Vegetation production, etc.
ARM 17.24.728 (30 CFR 816/817.111), Composition of vegetation.
ARM 17.24.815(2)(f)(i) (30 CFR 823.15(b)(3)), Prime Farmlands, 
revegetation.
ARM 17.24.823(2) (30 CFR 785.17(d)), Alternate reclamation; approval 
of plan.
ARM 17.24.826 [replaces 17.24.1103] (30 CFR 816.111(d), 
816.116(c)(3)), Alternate reclamation; period of responsibility.
ARM 17.24.1002 (30 CFR 772.10 & 772.12), Prospecting, information & 
monthly reports.
ARM 17.24.1003 (30 CFR 774.15 & 774.17), Prospecting, renewal & 
transfer of permits.
ARM 17.24.1014(4) (30 CFR 772.12 & 772.14), Prospecting test pits, 
application requirements, etc.
ARM 17.24.1104 (30 CFR 817.121(c)(5)), Bonding; adjustment of 
amount.
ARM 17.24.1111 (30 CFR 800.40(a)(3)), Bonding; bond release 
application.
ARM 17.24.1221 (30 CFR 795.3), Small operator assistance program 
(SOAP), program services.
ARM 17.24.1222 (30 CFR 795.6), SOAP, eligibility.
ARM 17.24.1223 (30 CFR 795.7), SOAP, filing for assistance.
ARM 17.24.1224 (30 CFR 795.8), SOAP, application approval.
ARM 17.24.1225 (30 CFR 795.9), SOAP, data requirements.
ARM 17.24.1226 (30 CFR 795.10), SOAP, qualification of laboratories 
& consultants.
ARM 17.24.1228 (30 CFR 795.12), SOAP, applicant liability.
ARM 17.24.1261 (30 CFR 850.15), Certification of blasters.
ARM 17.24.1262 (30 CFR 850.13), Blaster training courses.
MCA 82-4-254(3) (SMCRA 518(b)), Violation penalty and hearing.

    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. We 
approve the proposed revisions.

C. Revisions to Montana's Rules and Statutes That Are Not the Same as 
the Corresponding Provisions of the Federal Regulations and Statutes

C.1. ARM 17.24.301(13) Definition of ``Approximate original contour'' 
(SMCRA Sec. 701(2) & 30 CFR 701.5)
    Montana proposed to revise its definition of ``approximate original 
contour'' to: (1) Eliminate the phrase which includes terracing or 
access roads in the reclaimed area; (2) change ``refuse'' to ``waste;'' 
(3) add the requirement that depressions, except as provided at ARM 
17.25.503(1), are eliminated; and (4) eliminate the statement which 
reads ``Permanent water impoundments may be permitted where the 
department determines that they are in compliance with ARM 17.24.504.''
    The Federal statute at SMCRA Sec. 701(2) and the Federal regulation 
at 30 CFR 701.5 include the phrase concerning terracing or access roads 
in the reclaimed area. The Federal regulations use the term ``coal 
refuse piles.'' The Federal statute and regulations do not specify the 
elimination of depressions. The Federal regulatory definition of 
``approximate original contour'' (AOC) contains the phrase concerning 
the option of permitting of permanent water impoundments; SMCRA does 
not.
    Montana states that it does not need to specify terracing or access 
roads as part of the reclaimed area, as elsewhere in the State program 
(ARM 17.24.501 and 17.24.501A), all affected areas must be graded to 
AOC. The reclamation and grading of roads to be returned to AOC is 
specifically addressed at ARM 17.24.605 in the Montana program. Both 
the Federal statute and regulations address grading to achieve AOC for 
the reclamation of disturbed areas and roads (30 CFR 816.102/817.102; 
816.150(b), (c), & (f)/817.150(b), (c), & (f); and Sec. 515(b)(3) of 
SMCRA), in addition to the definition of AOC. The preamble does not 
address the need or reason to repeat this reclamation guidance in both 
sections. Therefore, because Montana contains the requirement to 
regrade and reclaim all disturbed areas to AOC elsewhere in the State 
program other than the definition of AOC, OSM finds the Montana 
proposal to be no less effective than the Federal regulations and no 
less stringent than SMCRA.
    Concerning use of the term ``waste'' instead of ``refuse,'' Montana 
stated that ``waste'' is defined in the state program whereas 
``refuse'' is not. Some States prefer to use the term ``waste'' instead 
of ``refuse,'' with New Mexico's program as an example. Because Montana 
has chosen to use and define the term ``waste'' instead of ``refuse,'' 
OSM approves Montana's revision as being no less effective than the 
Federal regulations.
    Montana proposed to add the statement that depressions, except as 
provided in ARM 17.24.503(1), be eliminated. This requirement is not 
contained in the Federal definition of AOC but rather at 30 CFR 
816.102(h). Montana also contains this requirement in its program at 
ARM 17.24.503. OSM finds no conflict with also including this 
requirement in the definition of AOC. OSM finds the Montana proposal to 
be no less effective than the Federal regulations.

[[Page 46463]]

    Montana proposed to eliminate the phrase concerning the option of 
permitting permanent water impoundments if they are in compliance with 
ARM 17.24.504. This phrase is not an integral part of the definition of 
AOC and is only contained in the Federal regulatory definition of AOC, 
not in SMCRA. The preamble does not require this phrase for the 
definition of AOC. Both 30 CFR 816.49(b)/817.49(b) and ARM 17.24.504 
allow permanent impoundments in reclaimed areas providing certain 
conditions are met. Therefore, OSM finds this revision to be no less 
effective than the Federal regulations.
C.2. ARM 17.24.301(47), (133) Definition of ``Head of Hollow Fill'' and 
``Valley Fill'' (30 CFR 701.5)
    Montana did not propose any revisions to these definitions. 
However, in the narrative included in the submittal, Montana addressed 
a required program amendment at 30 CFR 926.16(e)(9) that was imposed in 
a final rule dated August 19, 1992 (57 FR 37436). The amendment 
required Montana to delete the modifier ``non-coal'' from the organic 
materials prohibited in these fills. Under the Federal definitions, 
these fills may consist of ``any material, other than organic 
material.'' The Montana definitions allow ``any material other than 
non-coal organic material.''
    In its narrative, Montana stated that under its definitions, the 
same materials are allowed, and excluded, as under the Federal 
definitions. It references earlier arguments in a letter to OSM dated 
February 19, 1993. The differences in the Montana and OSM positions on 
this issue stem from whether the terms ``coal'' and ``organic'' are 
used in an engineering sense or in a general natural-science sense. In 
an engineering sense, OSM considers coal to be rock, not an organic 
material, and ``organic'' to indicate biological materials that have 
undergone little decomposition (and hence are, from an engineering 
point of view, unstable). Montana uses ``organic'' in a general 
natural-science sense, to indicate that the material consists of 
molecules with a carbon framework. Montana argues that, as understood 
in the natural-science sense, its definitions exclude all organic 
materials other than those derived from coal, including all of the 
engineering-unstable materials excluded by the Federal regulations. 
Further, Montana's definitions allow only coal-derived materials, which 
are also allowed under the Federal regulations.
    Based on this discussion, we agree with Montana that its 
definitions are not inconsistent with the Federal definitions, and that 
the Montana program definitions need not be revised. The required 
program amendment will be further addressed in a finding below 
regarding another part of the required amendment (applying to permit 
application requirements), at ARM 17.24.305.
C.3. Ownership and Control (ARM 17.24.301(79), 17.24.303(14), and 
17.24.404) (30 CFR Parts 701, 724, 750, 773, 774, 775, 778, 785, 795, 
817, 840, 842, 843, 846, 847)
    Montana has proposed various revisions to its ownership and control 
(O&C) regulations. Montana previously proposed various programmatic 
revisions to ownership and control in MT-003-FOR. However, in the final 
rule notice on MT-003-FOR dated February 12, 2002 (67 FR 6395), OSM 
deferred on Montana's ownership and control regulations. This was 
because OSM revised the Federal regulations in response to recent legal 
challenges contesting the validity of OSM's regulations. OSM published 
a final rule Federal Register notice dated December 19, 2000 (65 FR 
79663), on revised ownership and control regulations. A new 30 CFR part 
732 letter concerning ownership and control will be sent to the States 
in the future to advise them of changes they need to make to their 
program in order to be no less effective than the newly revised Federal 
regulations. Until such time as OSM issues revised O&C guidance 
concerning necessary programmatic revisions to the States, OSM defers 
on the proposed Montana revisions concerning ownership and control.
C.4. ARM 17.24.305(2)(b) Preparation and Certification of Maps, Plans, 
and Cross-Sections (30 CFR 780.14(c))
    Montana proposed to revise this rule (1) To delete the term 
``professional geologist,'' (2) to change ``registered professional 
engineer'' to ``licensed professional engineer,'' and (3) to allow 
licensed professional land surveyors to prepare and certify materials 
except for maps, plans, and cross-sections for sedimentation ponds and 
spoil disposal facilities.
    In the August 19, 1992, Federal Register notice (57 FR 37436), OSM 
placed a required program amendment (30 CFR 926.16(e)(9)) on Montana to 
submit proposed revisions to remove parts of the State program which 
the OSM Director could not approve, but which had been promulgated by 
Montana. Those parts of the State program that OSM requested be removed 
included the phrases ``registered land surveyor,'' and ``or a 
registered land surveyor'' at ARM 26.4.305(2)(b) and 26.4.321(3) (now 
ARM 17.24.305(2)(b) and 17.24.321(3)). ARM 17.24.321(3) was revised as 
required in program amendment MT-003-FOR which was approved in a final 
rule published on February 12, 2002 (67 FR 6395). ARM 17.24.305(2)(b) 
and ARM 17.24.924(15) are addressed in this submittal, MT-023-FOR.
    In its May 7, 2002, submittal, Montana proposed that maps, plans, 
and cross-sections required under certain sections of ARM 17.24.305 
must be prepared by, or under the direction of, and certified by a 
qualified licensed professional engineer with assistance from experts 
in related fields, except that: (1) Maps and cross-sections required 
under certain sections of ARM 17.24.305 may be prepared by, or under 
the direction of, and certified by a qualified licensed professional 
land surveyor with assistance from experts in related fields, and (2) 
maps, plans, and cross-sections for sedimentation ponds and spoil 
disposal facilities may be prepared only by a qualified licensed, 
professional engineer. Montana states that MCA 37-67-101(6) provides 
that licensed professional land surveyors can prepare and certify mine 
maps and cross-sections but not plans. Montana has deleted the 
undefined term of ``professional geologist.'' Montana has also replaced 
``registered'' with ``licensed'' which reflects current State 
practices.
    OSM placed the required program amendment on the Montana program as 
OSM did not interpret the MCA as authorizing registration procedures 
for registered land surveyors to perform such tasks as preparing and 
certifying plans and cross-sections for: Mineral storage, cleaning and 
loading areas; storage areas for soil, spoil, coal waste, and garbage 
or other debris; water diversions and facilities for collection, 
conveyance, treatment, storage, and discharge of water; and explosives 
storage and handling facilities. In this submission, Montana maintains 
that the MCA does allow licensed professional land surveyors to prepare 
and certify mine maps and cross-sections, but not plans. Therefore, 
Montana has revised the language to reflect these duties.
    We agree with Montana that many of the materials required by this 
rule may be prepared by surveyors, particularly descriptive maps and 
cross-sections of existing features, or cross-sections that interpolate 
between sections of plans prepared by an engineer. But Montana also 
notes that surveyors may not design and plan many structures. In 
addition to the provision here at (2)(b)(ii) specifying

[[Page 46464]]

certain materials that must be prepared by engineers, we reviewed the 
performance standards in Chapters 5 through 10 (i.e., ARM 17.24.501-
17.24.1018). We found that in those Chapters, where the exact plans, 
cross-sections, and maps are specified, preparation and certification 
by an engineer (as opposed to a surveyor) is specified where required. 
Therefore, we agree with Montana that qualified licensed professional 
land surveyors may prepare and certify some of these materials, and 
those they may not are adequately specified by subsection (2)(b)(ii) of 
this rule and the specific performance standards of Chapters 5-10 of 
the rules. Therefore, we approve Montana's proposal.
    As noted above, we earlier required Montana to remove this language 
in a required program amendment codified at 30 CFR 926.16(e)(9). Based 
on this approval, that requirement is no longer applicable. In 
addition, 30 CFR 926.16(e)(9) required Montana to revise: (1) The 
definitions of ``head-of-hollow fill'' and ``valley fill'' at ARM 
17.24.301; (2) 17.24.321(3) regarding surveyors; and (3) delete an 
alternate underdrain variance at 17.24.924(14) (now (15)). We note that 
in this final rule, we have removed the requirement to revise the fill 
definitions (see Finding C.2. above). Further, the Montana program at 
17.24.321 and 17.24.924 was revised as required in a final rule 
published on February 12, 2002 (67 FR 6395). Therefore, all of the 
changes required by 30 CFR 926.16(e)(9) have been completed or removed. 
Accordingly, we are removing the required program amendment.
C.5. ARM 17.24.321 Transportation Facilities Plan (30 CFR 780.37/
784.24)
    In the May 7, 2002, submittal, Montana proposed revisions to 
combine the requirements for railroad systems (now labeled ``railroad 
loops'') with the requirements for roads at ARM 17.24.301, 17.24.321, 
17.24.601, 17.24.603, 17.24.605, and 17.24.607. Also, Montana has 
prescribed that roads performance standards are applicable to haul 
roads and access roads. In this section concerning transportation 
facilities plans, Montana has made many editorial revisions to reflect 
these programmatic changes. In addition, Montana has specified that 
plans for low-water crossings of perennial and intermittent stream 
channels must be submitted and demonstrate that protection will be 
maximized in accordance with the performance standards of the ARM 
17.25.600 series. Montana also specifies that ramp roads will be shown 
on the maps.
    The Montana revisions have Federal counterparts at 30 CFR 780.37 
(784.24 for underground mines) which require that such information be 
included in roads systems plans and drawings. The Federal regulations 
do not specify that railroad systems be included on road systems maps, 
so Montana is adding an extra requirement. The Federal requirements 
contain specifications for low-water crossings and intermittent stream 
channels at 30 CFR 780.37(a) relating to the hydrology performance 
standards. The Federal regulations at 30 CFR 780.37/784.24 contain the 
requirement that primary roads be certified by a qualified registered 
professional engineer with experience in the design and construction of 
roads. Secondary roads (access roads) need only be shown on road 
systems maps, and not certified. The Federal definition of ``road'' at 
30 CFR 701.5 excludes ``ramp roads.''
    Therefore, the Director finds that the Montana revisions are no 
less effective than the Federal counterpart and approves them.
C.6. ARM 17.24.405 Findings and Notice of Decision (30 CFR 926.30)
    Montana proposed to delete the requirement that, when an 
application concerns Federal lands, the Department issue its findings 
on the same day that the Federal regulatory authority issues its 
findings. Montana explained that they consider the language proposed 
for deletion to be obsolete, because the Federal regulatory authority 
(OSM) no longer prepares written findings on Federal lands, that being 
the sole responsibility of the State.
    Under the Federal Land Program at 30 CFR part 740, and the State-
Federal Cooperative Agreement at 30 CFR 926.30, Montana has sole 
responsibility for findings related to permit approval or denial under 
SMCRA and OSM retains some responsibilities related to other Federal 
laws. Further, since the language proposed for deletion did not include 
the defined term ``Federal coal regulatory authority,'' but rather the 
undefined term ``federal regulatory authority,'' the language proposed 
for deletion might possibly refer to other Federal agencies.
    Nevertheless, we find that the deleted language was directory, not 
mandatory. Further, there is no corresponding Federal requirement. This 
deletion does not affect the authority or jurisdiction of any Federal 
agency. In particular, we note that under the State-Federal Cooperative 
Agreement at 30 CFR 926.30 VI.C.3., the Department may approve a SMCRA 
mining permit prior to Secretarial approval of a mining plan document, 
provided that the applicant is advised that authorization to mine is 
not complete. For these reasons, we find that the deletion is not 
inconsistent with any Federal requirement, and we approve the deletion.
C.7. ARM 17.24.416 (formerly 26.4.410) Permit renewal (30 CFR 774.15)
    Montana proposed to: (1) Move former ARM 17.24.416(2)(c) to (1)(d); 
(2) eliminate (2)(b) concerning the extension of permit boundaries 
beyond the existing permit; (3) revise the cross-reference at proposed 
(2)(c); and (4) make other grammatical revisions.
    Montana states that the elimination of (2)(b) concerning amendments 
to permits is due to its coverage under major permit revisions: All the 
provisions of ARM 17.24.401-405 and the performance standards of 
subchapters 3, 5, 6, 7, 8, 9, and 10. Montana reasons that permit 
renewals and major permit revisions are distinct processes and should 
be differentiated. The Federal regulations require that any extension 
to the area covered by the permit, except incidental boundary 
revisions, shall be made by a new permit application. This is addressed 
by Montana at ARM 17.24.417(1).
    At 30 CFR 774.15 concerning permit renewals, the Federal 
regulations allow the renewal form to be set by the regulatory 
authority (RA) with certain minimum requirements necessary for 
submission. Montana addresses permit application criteria at ARM 
17.24.401 to 17.24.405.
    Montana states that the revised cross-reference at (2)(c), from the 
statutes at MCA 82-4-225 and 82-4-232 to ARM 17.24.1104(1), is a 
correction. This subsection requires that prior to approving a permit 
renewal, the Department shall require any additional performance bond. 
The Federal regulations at 30 CFR 774.15(b)(2)(v) contain a similar 
provision. The other revisions proposed by Montana to ARM 17.24.416 are 
non-substantive revisions. We believe that the Montana program contains 
permit renewal and permit revision provisions substantively identical 
to the Federal regulations. Thus, we find the proposed Montana 
revisions are no less effective than the Federal regulations and 
approve the revisions.
C.8. ARM 17.24.501 & 17.24.501A General Backfilling and Grading, Final 
Grading (30 CFR 816/817.100, .102, 816.101)
    Montana proposed to delete rule ARM 17.24.501A, altering and moving 
some of its provision to rule 17.24.501, and deleting others. 
Revisions, deletions,

[[Page 46465]]

and additions were also proposed for 17.24.501. Revisions not discussed 
below are minor editorial or codification changes.
    At 17.24.501(1), Montana proposed to delete an allowance for an 
operator to obtain more time for backfilling and grading; a similar 
provision was proposed to be added at paragraph (6) and will be 
discussed below. Montana also proposed to delete a provision that 
required additional bond in cases of extended time allowance. We note, 
however, that ARM 17.24.1104(1) would still allow the Department to 
adjust the bond amount ``as standards of reclamation change.'' The 
Federal regulations do not have any specific provision requiring 
additional bonding for extended backfilling and grading times, except 
for the general bond adjustment clause at 30 CFR 800.30(a). Therefore, 
we find that this proposed deletion is not inconsistent with the 
Federal requirements.
    At paragraph (4)(intro), Montana proposed to add a new provision 
incorporating a part of existing 17.24.519A(1)(a), requiring that all 
final grading be to approximate original contour, that final slopes be 
graded to prevent slope failure, may not exceed the angle of repose, 
and must have a static safety factor of 1.3. This is substantively the 
same as the Federal requirements at 30 CFR 816/817.102(a)(1) and (3).
    At subparagraph (4)(a), Montana proposed to delete the requirement 
to eliminate all spoil piles and depressions. We note that these 
requirements have been added to the definition of ``approximate 
original contour'' at 17.24.301(13) (see Finding C.1. above). 
Therefore, this proposed deletion does not render the Montana program 
less effective than the Federal requirements.
    At paragraph (6), Montana proposed revised standards for 
contemporaneous reclamation, that were moved in part from existing 
17.24.501A(3). Montana proposed that, for strip mining, there must not 
be more than four consecutive spoil ridges and backfilling and grading 
to AOC must be complete within two years after coal removal. For 
``other excavations'' (which presumably would include underground 
mines), backfilling and grading must be ``kept current as departmental 
directives dictate for each set of field circumstances.'' It is unclear 
whether ``departmental directives'' refers to written policies or to 
instructions and/or permit conditions assigned ad hoc to each 
operation. The Montana proposal also provides for case-specific 
variances from these standards when approved by the Department based on 
demonstrations by the operator. The Federal regulations establishing 
time and distance standards for the evaluation of contemporaneous 
reclamation at 30 CFR 816.101 have been suspended indefinitely (July 
31, 1992; 57 FR 33875). Therefore each regulatory authority may define 
``as contemporaneously as practicable'' for itself in accordance with 
its State processes. The Federal requirement for contemporaneous 
reclamation for underground mines at 30 CFR 817.100 also allows 
regulatory authorities to establish their own schedules. Therefore, we 
find that Montana's proposals are not inconsistent with the Federal 
requirements.
    At 17.24.501A(1)(a), Montana proposed to delete a statement that 
the final surface need not have the exact elevations as the premining 
surface, and a requirement that no slope be steeper than 20 percent 
without departmental approval. No Federal counterparts exist for these 
requirements, so their deletion is not inconsistent with the Federal 
requirements.
    At 17.24.501A(1)(b) and (c), Montana proposed to delete 
requirements for (1) Measuring methods for slopes pre- and post-mining, 
and (2) an upper limit for postmining slopes based on either the 
premining slope or lesser slopes specified by the Department. There are 
no Federal provisions for the measurement of slopes, and no limits on 
slope steepness beyond those incorporated by Montana at new 
17.24.501(4). Therefore, these deletions do not render the Montana 
program inconsistent with the Federal requirements.
    For the reasons discussed above, we approve the revisions proposed 
for ARM 17.24.501 and .501A.
C.9. ARM 17.24.503 Small Depressions (30 CFR 816/817.102(h))
    Montana has proposed revisions to the rule on small depressions to: 
(1) Add the promotion of wildlife use to the approvable uses for small 
depressions by the Department of Environmental Quality; (2) delete the 
phrase that small depressions may not be inappropriate substitutes for 
construction of lower grades on reclaimed lands; and (3) delete the 
sentence that small depressions have a holding capacity of less than 1 
cubic yard of water.
    The Federal regulation at 30 CFR 816/817.102(h) allows the 
construction of small depressions to enhance wildlife habitat. 
Therefore, this proposal by Montana addressing wildlife use is no less 
effective than the Federal counterpart.
    The phrase concerning ``inappropriate substitutes for the 
construction of lower grades'' comes from the original language in the 
Federal regulations at 30 CFR 816/817.102(c)(3). This phrase is no 
longer in the Federal regulations. Therefore, the Montana deletion 
would make the rules no less effective than the Federal counterpart.
    Lastly, the proposed deletion of the size limit would leave it to 
the Department's discretion to define ``small'' in various 
circumstances. The Federal program has no size guidelines for small 
depressions. We find that the deletion would not be inconsistent with 
the Federal regulations.
C.10. ARM 17.24.510 Disposal of Offsite-Generated Waste and Fly Ash (30 
CFR 816/817.81, 816/817.89)
    Montana proposed to revise ARM 17.24.510 to allow waste produced 
outside the permit area to be used for ``other purpose or disposed of 
on the mine site,'' in addition to use as fill material, if the 
permittee can demonstrate that the disposal will be conducted in 
accordance with sections of the Montana program concerning hydrologic 
requirements, soil redistribution and stockpiling, the establishment of 
vegetation, ``and any other applicable provisions of the Act and 
rules.'' One included requirement is the performance standards at ARM 
17.24.505, which governs the disposal of wastes generated on-site. All 
waste material used on the permit area must receive prior approval by 
the Department. Montana's explanatory note indicates that wastes might 
in the future be used for purposes other than fill or disposal (e.g., 
for road base material or road sanding in winter).
    The counterpart Federal regulations for coal mine waste (30 CFR 
816.81(b)/817.81(b)) require that coal mine waste material from 
activities located outside a permit area may be disposed of in the 
permit area only if approved by the RA. Approval shall be based upon a 
showing that such disposal will be in accordance with those section's 
standards concerning coal mine waste disposal. This language is 
substantively similar to the Montana proposed revision. The Federal 
requirements for disposal of noncoal wastes (30 CFR 816.89/817.89) do 
not address off-site generated wastes or the use of wastes for 
beneficial purposes like those suggested by Montana. Thus, Montana's 
proposal to regulate these materials according to the performance 
standards for hydrology, coal waste disposal, soil protection, 
revegetation, and all other applicable requirements, is not 
inconsistent with the Federal requirements.

[[Page 46466]]

    Since both the Federal regulation and the Montana rule allow for 
disposal of coal mine waste materials generated off the permitted area 
when approved by the RA and based a showing that performance standards 
will be met, we find the Montana revision to be no less effective than 
the Federal requirements. We approve the proposed rule.
C.11. ARM 17.24.514 Contouring (30 CFR 816.102(j))
    Montana proposed to delete ARM 17.24.514 concerning contouring, 
stating it to be ``redundant.'' ARM 17.24.514 states that final grading 
and surface preparation, before soil replacement, must be done along 
the contour to minimize subsequent erosion and instability unless 
approved otherwise by the RA. Surface preparation must be performed to 
minimize erosion and provide a surface for the replacement of soil that 
will minimize slippage.
    At ARM 17.24.501(4), (5), and (6) and ARM 17.24.702(4) and (5), 
Montana addresses all or parts of the requirements to restore lands to 
approximate original contour; to grade to prevent slope failure, 
slippage and erosion; and to scarify on the contour. The Federal 
regulations address these requirements at 30 CFR 816/817.102(a), (j), 
and (k). Therefore, we agree that ARM 17.24.514 is redundant in the 
Montana program as it is covered at ARM 17.24.501 and 17.24.702. We 
approve the proposed deletion as being no less effective than the 
Federal regulations.
C.12. ARM 17.24.519A and .520 Thick Overburden and Excess Spoil (30 CFR 
816.104)
    At 17.24.519A, Montana proposed to move the requirements with 
revisions to 17.24.520. We note that Montana, in an earlier program 
amendment (MT-003-FOR; Administrative Record Nos. MT-12-01 and MT-12-5; 
February 1 and 28, 1995), proposed deletions in this rule on which OSM 
deferred a decision (February 12, 2002; 67 FR 6395, 6400; see Finding 
L). We must address that deferral before we address the current 
proposals.
    The earlier deletions were (1) the requirement that all highwalls 
and spoil piles be eliminated with spoil and suitable waste materials; 
and (2) a variance from that requirement, based on highwall retention 
and alternate reclamation rules at ARM 26.4.313(3)(b) and 26.4.821-824. 
We further note that this second provision, i.e., the variance, had 
been deferred by OSM in a still earlier amendment (MT-001 and MT-002; 
Administrative Record No. MT-5-1; December 21, 1988; see final rule 
dated May 11, 1990; 55 FR 19728, 19730; see Finding 3). Since this 
variance provision had never been approved by OSM, we have no objection 
to its deletion. The deletion of the first provision was deferred until 
it could be established, by the Montana rule making that is the subject 
of the current program amendment, that the requirement for the 
elimination of highwalls and depressions existed elsewhere in the 
revised Montana program. We note that the currently proposed ARM 
17.24.501, referencing the currently proposed definition of 
``approximate original contour,'' does indeed contain this requirement. 
Hence, we find the earlier-proposed deletion of this requirement, on 
which we earlier deferred a decision, to be not inconsistent with the 
Federal requirements. Since the remainder of 17.24.519A is being moved 
to 17.24.520, we find that the deletion of 17.24.519A does not 
substantively alter the Montana program, and we approve it.
    At 17.24.520(1) and (2), Montana proposed new provisions taken in 
part from 17.24.519A. Paragraph (1) defines thick overburden according 
to a factor of 1.2. At paragraph (2), Montana adds the performance 
standard that for thick overburden, highwall elimination must be 
accomplished by backfilling (rather than highwall reduction) before any 
excess spoil disposal would be allowed. The Federal regulations at 30 
CFR 816.104 do not place a numerical value on overburden thickness. 
Rather, thick overburden is defined more generally as those situations 
where the postmining (bulked) overburden depth so exceeds the premining 
depth (i.e., the sum of overburden and coal depth) that backfilling and 
grading would not achieve AOC. The Federal performance standard for 
thick overburden is to restore AOC, then use remainder to attain the 
lowest possible grade, or dispose of it as excess spoil. We find the 
Montana proposal to be consistent with these requirements, and we 
approve it.
C.13. ARM 17.24.522 Permanent Cessation of Operations (30 CFR 773.4(a))
    OSM advised Montana in an October 17, 1995, issue letter on MT-003-
FOR (Administrative Record No. MT-12-16) that the Montana program 
needed to address situations where a permit is terminated, revoked, or 
suspended. In this submittal, Montana proposed a revision clarifying 
that an operator who permanently ceases strip or underground mining 
operations in all or part of the permit area must permanently reclaim 
all affected areas regardless of whether the permit has expired, been 
revoked, or suspended. Additionally, Montana added an editorial 
clarification that this provision addresses mining operations not only 
in all of the permit area, but also when operations cease in only a 
part of the permit area. Therefore, Montana has made the revisions 
required by OSM. We find this revision to be no less effective than the 
Federal regulations and approve the proposed revision.
C.14. ARM 17.24.601 General Requirements for Road and Railroad Loop 
Construction (30 CFR 816/817.150, 816/817.151, and 816/817.181)
    Montana proposed numerous changes to this rule. In several 
sections, Montana proposed to apply these requirements to railroad 
loops in addition to roads. Under OSM's rules, railroads are considered 
``support facilities.'' Their performance standards at 30 CFR 816/
817.181 are similar to, but less specific than, the performance 
standards for roads. We find that applying road performance standards 
to railroad loops is not inconsistent with the Federal requirements.
    In paragraph (1), Montana proposed to expand the conditions under 
which roads would be allowed to traverse otherwise reclaimed areas, 
with justification based on the needs of the operation. OSM's 
regulations do not address any limitation on road location in regard to 
any potential delay of other reclamation. Thus, we find that this 
proposed revision is not inconsistent with the Federal requirements.
    At paragraph (2)(a) and (b), Montana proposed to delete some 
requirements for ramp roads. In OSM's regulations, ramp roads are 
excluded from the definition of ``road'' at 30 CFR 701.5, and hence OSM 
has no requirements for ramp roads. At subparagraph (c), Montana 
proposed to delete several requirements for specific grades, and to 
delete former (2)(e) regarding horizontal and vertical alignment of 
roads. New (2) would require that access and haul roads be graded, 
constructed, and maintained according to sound engineering and 
construction practices to incorporate appropriate limits for grade, 
width, surface material, surface-drainage control, culvert placement, 
and any other design criteria established by the Department. The 
Federal provisions at 30 CFR 816.150(c) similarly require that the 
design and construction of roads incorporate ``appropriate'' limits for 
grade, without specific numeric grade limits. For the reasons discussed 
here, we find the proposed revisions at paragraph (2) to be consistent 
with the OSM regulations.

[[Page 46467]]

    Montana proposed at paragraph (6) to delete the last sentence 
regarding the applicability of State and Federal legal limitations on 
runoff from roads and railroad loops. As Montana notes, this provision 
is redundant with ARM 17.24.633(4).
    At paragraph (9), Montana proposed to add a requirement for 
Departmental approval of dust-control methods. The Federal requirements 
at 30 CFR 816.150(b)(1) only require compliance with current prudent 
engineering practice. We find Montana's proposal to be consistent with 
the OSM requirement.
    At paragraph (10), Montana proposed to delete some specific road 
reclamation requirements and state that roads must be reclaimed in 
accordance with the approved plan (under ARM 17.24.321(1)(g), the road 
reclamation plan must be in accordance with the standards of 
subchapters 5 through 8). Montana's narrative explained that the intent 
was to simplify the language while retaining the meaning. Proposed for 
deletion was the phrase ``graded to approximate original contour and 
ripped, subsoiled or otherwise tilled.'' We note that under ARM 
17.24.501(4), all affected lands are required to be regraded to 
approximate original contour, and ARM 17.24.702(4)(b) requires that all 
regraded areas must be scarified to a minimum of 12,'' and the operator 
must also achieve revegetation success (which may require deeper 
ripping). Also proposed for deletion was a sentence requiring reclaimed 
roads to be resoiled, conditioned, and seeded in accordance with 
subchapter 7 and a sentence indicating reclaimed roads must be 
abandoned in accordance with the Act and its rules. We note that 
subchapter 7, the Act, and the Act's rules are applicable with or 
without this language. Also proposed for deletion was a list of 
suggested measures to control erosion on reclaimed roads. The 
requirement to control erosion remains. We note that the suggested list 
is directory, not mandatory. Based on the above discussion, we find 
that the proposed revisions to paragraph (10) only eliminate redundant 
language and do not change any fundamental requirements.
    For these reasons, we approve the revisions proposed for ARM 
17.24.601.
C.15. ARM 17.24.603 Road and Railroad Loop Embankments (30 CFR 816/
817.150, 816/817.151, and 816/817.181)
    Montana proposed numerous changes to this rule. Previously, this 
rule also applied to embankments that impound water. In several 
sections, Montana proposed to delete requirements for such embankments, 
adding a new statement at proposed paragraph (5) that embankments which 
impound water must be designed and constructed in accordance with ARM 
17.24.639. We agree with moving the requirements for water-impounding 
embankments to ARM 17.24.639. They will be discussed in a separate 
finding below.
    In the introductory paragraph, Montana proposed to delete language 
requiring that road/railroad embankments be designed and certified by a 
registered professional engineer. We note that this requirement still 
exists at ARM 17.24.321(3).
    At previous paragraphs p(1)-(8) and (10)-(12), Montana proposed to 
delete numerous specific design, construction, and performance 
standards. Following the deletions, the remaining standards would be: 
at (1), removal of all organic material from embankment foundations; at 
(2), embankment material must meet some suitability standards; at (3), 
embankment layers must be compacted as necessary; and at (4), minimum 
seismic safety factor of 1.2 and static safety factor of 1.5 must be 
met.
    OSM requirements for road embankments at 30 CFR 816/817.151(b) 
apply only to primary roads, and provide that each primary road 
embankment shall have a minimum static factor of 1.3 (or meet the 
requirements established under Sec. 780.37(c), which allow for 
regulatory authorities to establish design standards in lieu of the 
static safety factor). The Federal regulations for support facilities 
(which includes railroads) at 30 CFR 780.38/784.30 and 816/817.181 have 
no embankment or stability requirements. Therefore, we find that the 
proposed deletion of the more specific design, construction, and 
performance standards is not inconsistent with the Federal 
requirements.
    For the reasons discussed above, we approve the proposed revisions 
to ARM 17.24.603.
C.16. ARM 17.24.604 Soil Removal (From Road Areas) (30 CFR 816/817.22, 
816/817.150, 816/817.151, and 816/817.181)
    Montana proposed to delete this rule, which required removal of 
soil before road or railroad construction, including a distance of 10 
feet (or other distance approved by the regulatory authority) from the 
edge of the road, and to prevent contamination or degradation of soil. 
In its explanatory note, Montana indicates that all of these 
requirements are duplicated at ARM 17.24.701, except the 10 feet 
distance. They note that the 10 feet distance is arbitrary and 
impractical.
    OSM's rules regarding roads and support facilities at 30 CFR 816/
817.150, 816/817.151, and 816/817.181 do not address soil handling for 
roads; instead, soil handling requirements for all mining operations, 
including roads, are addressed in 30 CFR 816/817.22. There is no 
requirement for soil removal beyond the edges of roads or railroads. We 
find that Montana's proposed deletion of ARM 17.24.604 is not 
inconsistent with the Federal requirements, and we approve the 
deletion.
C.17. ARM 17.24.605 Hydrologic Impact of Roads and Railroad Loops (30 
CFR 816/817.150, 816/817.151, and 816/817.181)
    Montana proposed numerous changes to this rule. In several 
sections, Montana proposed to apply these requirements to railroad 
loops in addition to roads. Under OSM's rules, railroads are considered 
``support facilities.'' Their performance standards at 30 CFR 816/
817.181 are similar to, but less specific than, the performance 
standards for roads. We find that applying road performance standards 
to railroad loops is not inconsistent with the Federal requirements.
    At paragraph (1), Montana proposed to delete the requirement that 
contributions of sediment not exceed the limits of State or Federal 
law. As Montana noted in its explanation, this requirement also exists 
at ARM 17.24.633(4). Therefore, the deletion of this language does not 
eliminate the requirement.
    At paragraph (2), Montana proposed to delete some detailed 
requirements for locations of road drainage ditches, particularly with 
regard to cut and fill slopes. Similar language existed in OSM's 
initial permanent program rules at then-existing 30 CFR 816.153(b)(1), 
but was subsequently deleted. Currently, at 30 CFR 816/817.151(d)(3), 
there are no corresponding requirements for road ditches. Montana also 
proposed to delete the last sentence of paragraph (2), which addressed 
ditch slope. As Montana notes, this is redundant with paragraph (3) 
(intro), which requires all roads to be adequately drained. Therefore, 
we find that these proposed deletions are not inconsistent with Federal 
requirements.
    At paragraph (3), Montana proposed to exclude ramp roads from road 
drainage control requirements. As noted above, in OSM's regulations 
ramp roads are excluded from the definition of ``road'' at 30 CFR 
701.5, and hence OSM has no requirements for ramp roads

[[Page 46468]]

beyond the general sediment controls required in the pit area. Montana 
also proposed to add culverts and bridges to the non-exhaustive list of 
drainage control structures that may be used. The Federal provision at 
30 CFR 816/817.151(d)(1) similarly suggests culverts and bridges. 
Therefore, we find that these proposed revisions are not inconsistent 
with the Federal requirements.
    At new subparagraph (3)(a), Montana proposed to delete the 
restriction that discharge capacity of road water-control structures 
may not rely on hydraulic head (i.e., impoundment at the entrance). 
Instead, Montana proposed that the discharge must ``safely'' pass the 
required design event. Montana notes in its explanation that use of 
hydraulic head to increase discharge rates can be safe in some cases. 
The OSM requirement at 30 CFR 816/817.151(d)(1) only requires that the 
drainage-control system be designed to ``safely pass'' the design 
event. We find the Montana revision to be consistent with the Federal 
requirement. Montana also proposed to add a provision that the 
Department may require a greater design event for culverts than the 10-
year storm. This revision matches language in the Federal rule.
    At new subparagraph (3)(b), Montana proposed to delete a 
requirement that certain large culverts be designed for a 25-year storm 
event. Similar language existed in OSM's initial permanent program 
rules at then-existing 30 CFR 816.153(c)(1), but was subsequently 
deleted. Current OSM rules require, for primary roads, that the 
drainage control system be designed for a 10-year storm ``or greater 
event'' as specified by the regulatory authority (which was also added 
by Montana at new subparagraph (3)(a)). We find that Montana's proposed 
revision is consistent with the Federal requirement.
    At new subparagraph (3)(c), Montana proposed to delete culvert 
requirements for trash racks and fill cover depths. Similar language 
existed in OSM's initial permanent program rules at then-existing 30 
CFR 816.153(c)(1), but was subsequently deleted. OSM's current 
regulations at 30 CFR 816/817.151(d)(2) require only that culverts be 
maintained in a free and operating condition. Montana has retained 
language requiring that culverts be constructed to avoid plugging. We 
find Montana's proposed deletion to be consistent with the Federal 
requirements.
    Also in this subparagraph, Montana has proposed to delete a 
provision specifying culvert spacing. Again, similar language existed 
in OSM's initial permanent program rules at then-existing 30 CFR 
816.153(c)(2), but was subsequently deleted. OSM's current regulations 
at 30 CFR 816/817.151(d)(1) require only that the drainage control 
system be designed to safely pass the runoff from the design storm 
event. A similar requirement exists in the Montana program at 
subparagraph (3)(a). We find Montana's proposed deletion to be 
consistent with the Federal requirements.
    At new subparagraph (3)(f), Montana proposed to delete a cross-
reference requiring soil removal to be consistent with ARM 17.24.604. 
As noted in the finding above, we are approving deletion of the Montana 
rule at ARM 17.24.604. As noted above, OSM regulations do not impose 
any soil-removal requirements specific to roads. We find Montana's 
proposed deletion of this cross-reference to be consistent with the 
Federal requirements.
    For the reasons discussed above, we approve Montana's proposed 
revisions to ARM 17.24.605.
C.18. ARM 17.24.607 Maintenance of Roads and Railroad Loops (30 CFR 
816/817.150, 816/817.151, and 816/817.181)
    Montana proposed to make the following revisions concerning the 
maintenance of roads: (1) Montana proposed to include railroad loops 
with the performance standards for roads and eliminate the 
differentiation of ``access and haul'' roads; (2) at new subsection 
(2)(a), Montana proposed to eliminate the phrase ``resulting from 
sudden runoff events'' concerning wet field conditions; (3) at new 
subsection (2)(c), Montana proposed to specify that runoff and sediment 
are contained ``in accordance with the approved drainage control 
plan;'' and (4) Montana proposed to make other editorial revisions and 
to recodify some provisions.
    At ARM 17.24.607, as well as other sections in this submittal, 
Montana proposed to add ``railroad loops,'' and to eliminate the 
differentiation of access and haul roads in favor of ``roads.'' OSM has 
approved Montana's definition of ``railroad loops'' in another 
technical finding. Under OSM's rules, railroads are considered 
``support facilities.'' Their performance standards at 30 CFR 816/
817.181 are similar to, but less specific than, the performance 
standards for roads. We find that applying road performance standards 
to railroad loops is not inconsistent with the federal requirements.
    At paragraph (1), Montana's proposal would apply maintenance 
requirements to all roads. Since Montana's definition of roads includes 
more travel ways than does the Federal definition, the maintenance 
requirement is being applied to all roads covered by the Federal 
requirement at 30 CFR 816/817.150. Therefore, we find Montana's 
proposed revision to be consistent with the Federal requirement.
    At ARM 17.24.607(2)(a), Montana proposed to eliminate the phrase 
``resulting from sudden runoff events'' concerning the operator's 
inability to maintain ditches, culverts, drains, trash racks, debris 
basins and other drainage structures due to wet field conditions. 
Montana has proposed this deletion to broaden the rule and to consider 
all wet field conditions, not only those caused by sudden runoff 
events. For example, this may apply to spring snow melt. As previously 
approved, the provision in essence allows temporary deferral of 
maintenance on drainage-control structures under wet conditions, but 
the deferral is only allowed when there is no environmental or public 
risk and when all sediment is controlled. There is no corresponding OSM 
provision. Given the limits on the applicability of the deferral, we 
find that extending the deferral to other wet field conditions is not 
inconsistent with the Federal requirements.
    Based on the discussions above, we approve Montana's proposed 
revisions to this rule.
C.19. ARM 17.24.623 Blast Schedule (30 CFR 816/817.64)
    Montana proposed to delete the requirement that the blasting period 
may not exceed an aggregate of 8 hours in any one day and that the 
Department may impose more restrictive conditions pursuant to ARM 
17.24.624.
    The Federal equivalent at 30 CFR 816.64(a)(1) states that the 
operator shall conduct blasting operations at times approved by the RA 
and that the RA may limit the area covered, timing, and sequence of 
blasting as listed in the schedule if such limitations are necessary 
and reasonable in order to protect the public health and safety or 
welfare. The provision which Montana proposed for deletion falls within 
the State's discretion to specify, according to the Federal 
regulations. There is no exact Federal equivalent. Therefore, we find 
the proposed revisions are not inconsistent with the applicable Federal 
provisions and we approve them.
C.20. ARM 17.24.633 Water Quality Performance Standards (30 CFR 816/
817.42, 816/817.46)
    At paragraph (3), Montana proposed to extend the requirement that 
sediment ponds be constructed prior to mining to all sediment controls 
and add a cross-reference requiring compliance with

[[Page 46469]]

ARM 17.24.638 (sediment control measures). As revised, all sediment 
controls must be constructed before mining operations, and comply with 
ARM 17.24.638 and 17.24.639. Similarly, OSM's rules at 30 CFR 816/
817.46(b)(3) and (4) require all siltation structures to be constructed 
prior to mining operations, and impoundments to be in compliance with 
the impoundments rule. We find Montana's proposed revisions to be 
consistent with the Federal requirements.
    At paragraph (4), Montana proposed to delete language specifying 
under which circumstances effluent limits apply, but the deleted 
language is replaced by the added language ``all discharges which 
include * * * [water from disturbed areas].'' Similarly, Montana 
proposed to delete a non-exhaustive list of effluent parameters which 
must be met, but also proposed to replace the deletion with language 
stating that discharges must be in compliance with all Federal and 
State laws and regulations and ``all applicable effluent limitations.'' 
The Federal requirement at 30 CFR 816.42 requires that discharges of 
water from disturbed areas meet effluent limits promulgated by the U.S. 
Environmental Protection Agency. We find Montana's proposed revisions 
to be consistent with the Federal requirement. At subparagraph (4)(b), 
Montana proposed to delete language requiring that ``when BTCA 
practices result in a point discharge, the discharge must meet 
applicable effluent limitations.'' Montana's explanation notes that 
this language is redundant. We agree that the deleted language is 
repetitive (``discharges must be in compliance with all federal and 
state laws and regulations and all applicable effluent limitations''). 
We also note that this deletion would not affect any legal requirements 
under the Montana counterparts to the Clean Water Act.
    At paragraph (6), Montana proposed to delete a provision requiring 
that ``BTCA [Best Technology Currently Available''] practices must be 
installed, operated, and maintained to treat any water discharged from 
the disturbed area to ensure compliance with all federal and state laws 
and regulations and the limitations of this rule.'' We agree with 
Montana that this provision was redundant, repeating other language in 
the rule as noted above.
    For the reasons discussed above, we find that Montana's proposed 
revisions are no less effective than the Federal requirements, and we 
approve the proposed revisions.
C.21. ARM 17.24.634 Reclamation of Drainages (30 CFR 816/817.43)
    At paragraph (2), Montana proposed to delete the requirement for 
operators to submit design modifications at least 120 days prior to 
reclamation of a drainage. However, the designs would still be required 
to be approved by the Department before construction begins. We note 
that reclaimed drainages meet the definition of ``diversion'' at ARM 
17.24.301(33), and in particular are permanent diversions. Hence, under 
ARM 17.24.317, initial designs must be included in the initial permit 
application. Further, Montana proposed to delete language requiring the 
operator to notify the Department when construction begins, and to 
require Departmental inspection and approval of regraded drainages 
prior to resoiling and seeding. We agree with Montana that the explicit 
timeframe for submission of revised designs is not needed, so long as 
regulatory authority approval is obtained prior to construction. We 
further agree with Montana's explanatory note that operational 
efficiencies of both the mine operator and the Department are 
unnecessarily limited by the notification and pre-soiling inspection 
and approval requirements. The Federal regulations at 30 CFR 816/817.43 
contain no such specific requirements.
    Also at paragraph (2), Montana proposed to delete the word 
``detailed,'' used to describe the required designs. We agree that the 
specific requirements for the designs are specified elsewhere. Also 
proposed for deletion was the requirement that the designs ``represent 
the state of the art in reconstruction of geomorphically stable 
channels.'' We agree that ``state of the art'' is a subjective standard 
difficult to enforce fairly, and that geomorphically stable channels 
are in any case required under paragraph (1) of the rule.
    Montana further proposed to delete language requiring that drainage 
reclamation designs be certified by a qualified registered professional 
engineer. Montana's explanatory note indicates that the requirement 
``is unnecessary, because there does not appear to be more of a 
rationale for having such designs certified compared to any other work 
submitted by an operator that does not currently require certification. 
There is nothing particularly unique or critical (e.g., public safety) 
about drainage designs that requires certification. Thus, this 
requirement is proposed for deletion.'' We disagree with this position. 
Like diversions in general, reclaimed stream channels require the 
calculation of runoff volumes, peak flows, channel-flow velocities, and 
erosive potential. In this case, there is a particular need to address 
``geomorphic habit or characteristic pattern,'' geomorphic stability, 
and riffle-pool sequences. Therefore, we find adequate need for 
professional engineer design and certification. We note that the 
Federal rules at 30 CFR 816/817.43(b)(4) require stream channel 
diversions of intermittent and perennial streams to be designed and 
certified by a registered professional engineer. However, we note that 
in this case deletion of this language does not in fact delete the 
requirement that reclaimed drainages be designed and certified by a 
registered professional engineer. As discussed above, these reclaimed 
drainages meet the Montana definition of ``diversion'' at ARM 
17.24.301(33). Hence, under ARM 17.24.635(5), design and certification 
by a registered professional engineer is still required for any 
diversion of a stream channel.
    At paragraph (3), Montana proposed to remove subparagraph (1)(a) 
from the requirements for which alternative reclamation techniques 
might be approved. This deletion would restrict the allowed variance to 
a greater extent than is currently approved. There is no exact Federal 
counterpart to this rule. The regulations at 30 CFR 780.21(h), 
816.41(a) and (d), and 816/817.43(b) require that diversions protect 
the hydrologic balance, water quality, and channel volume. We find 
Montana's proposed deletion to be consistent with those requirements.
    For the reasons discussed above, we find that Montana's proposed 
revisions are no less effective than the Federal requirements, and we 
approve the proposed revisions. As noted above, approval of the 
proposed deletion in paragraph (2) of the requirement for engineer 
design and certification of designs for drainage channel reclamation 
does not effectively eliminate that requirement, as it is duplicated in 
ARM 17.24.635(5).
C.22. ARM 17.24.639 Sedimentation Ponds and Other Treatment Facilities 
(30 CFR 816/817.46, 816/817.49)
    At subparagraph (1)(c), Montana proposed to delete a requirement 
that sediment storage in sediment ponds be determined using the 
universal soil loss equation (with some specified parameters), the 
sediment density method, or other empirical method derived from 
regional studies. The revision would instead require only that the 
sediment storage volume be determined by a method approved by the 
Department. One currently-

[[Page 46470]]

approved alternative to this, to provide 0.035 acre-feet per disturbed 
acre, was proposed to be revised by reducing the required volume to 
0.02 acre-feet per acre and excluding acres of well-established 
reclamation. Lesser sediment storage would be allowed upon site-
specific demonstration, but greater sediment volume may be required if 
necessary. The corresponding Federal regulation at 30 CFR 816/
817.46(c)(1)(iii)(A) only requires sediment ponds to provide adequate 
sediment storage volume. The preamble to this regulation (48 FR 44032, 
44041-2; 9/26/83) states that the determination of actual sediment 
storage volume is left to the professional engineer, and that in 
approving the design the regulatory authority must be satisfied that 
the storage volume is adequate. Montana has long-term experience in 
working with sediment volume estimates in its coal fields. Under the 
proposed revision, Montana must approve the method of storage volume 
calculation. Montana has also determined that 0.02 acre-feet of storage 
per acre of disturbed area is adequate. Montana also retains the 
ability to require greater storage volumes when necessary. Therefore, 
this proposed revision is no less effective than the corresponding 
Federal regulation.
    At paragraph (2), Montana proposed to delete a requirement that the 
permittee may be required to conduct annual bathymetric studies of some 
sediment ponds. There is no such requirement in the Federal 
regulations. Therefore, the proposed deletion is not inconsistent with 
the Federal requirements.
    At existing paragraph (6), Montana proposed to delete a statement 
that compliance with this rule does not eliminate operator 
responsibility for compliance with the effluent limits of ARM 
17.24.633. The earlier rule, as discussed above, requires that all 
discharges must be in compliance with all effluent limits. We agree 
with Montana that the language proposed for deletion duplicates the 
requirements of ARM 17.24.633. Therefore, the proposed deletion is not 
inconsistent with the Federal requirements.
    At existing paragraph (9), Montana proposed to delete a requirement 
that embankments for sediment ponds be constructed in compliance with 
ARM 17.24.603. As discussed above, Montana is moving such requirements 
from ARM 17.24.603 to this rule at paragraphs (11)-(17). Therefore, 
this proposed deletion does not remove any applicable requirements.
    At existing paragraphs (12), (14), and (15), Montana proposed to 
delete requirements that (1) Embankment heights be increased to allow 
for settlement; (2) specified embankment slopes; and (3) specified 
foundation scarification. There are no such requirements in the Federal 
regulations. Therefore, the proposed deletions are not inconsistent 
with the Federal requirements.
    At new paragraphs (13) and (15)(c), Montana proposed to add 
requirements for embankment foundation construction on steeper slopes 
and embankment compaction standards. There are currently no such 
Federal requirements, though similar detailed design specification were 
earlier included in OSM's first permanent program regulations in 1979. 
These requirements are not inconsistent with the Federal requirements 
for impoundment stability at 30 CFR 816/817.49(a)(4) and foundation 
stability at 816/817.49(a)(6).
    At paragraph (18), Montana proposed to add a requirement for 
temporary sediment controls during sediment pond construction. There is 
no such requirement in the Federal regulations, but this is not 
inconsistent with the requirement at 30 CFR 816/817.46(b) that 
additional contributions of sediment be prevented to the extent 
possible.
    At paragraph (22)(b), Montana proposed a new requirement that, for 
ponds containing (rather than passing) design storms, the design 
certification indicate that safe dewatering will occur within 
appropriate times. Montana proposed this revision in response to our 
letter of July 10, 1997 (Item 10b), in which we identified issues in a 
previous program amendment submittal. The proposed addition is 
substantively the same as the Federal requirement at 30 CFR 816/
817.49(c)(2).
    At paragraph (27)(a), Montana proposed to delete a requirement 
that, for excavated sediment ponds, the perimeter slopes must not be 
steeper than 33 percent. Montana's explanatory note indicates that 
steeper slopes would help minimize the amount of land disturbed and 
increase operational efficiency. The Federal regulations at 30 CFR 816/
817.46 and 816/817.49 do not specifically address excavated 
impoundments, nor their perimeter slopes. The vertical portion of any 
remaining highwall is required at 816/817.49(a)(10) to be far enough 
below water line to provide adequate safety for water users. 
Impoundment designs must be certified as meeting current, prudent 
engineering practices, which would include stable slopes; this would 
still be required by the Montana rule. We find the proposal to be 
consistent with these requirements.
    For the reasons discussed above, we approve these proposed 
revisions.
C.23. ARM 17.24.645(6) and 17.24.646(6) Ground Water Monitoring and 
Surface Water Monitoring (30 CFR 816/817.41(c), (e))
    Montana proposed to revise these paragraphs to update references to 
standard water quality analysis methods that may be used for ground 
water monitoring. Most of the revisions are editorial clarifications. 
One of the standard references proposed for approval is the 
Department's ``Circular WQB-7'' (November 1998 edition). In a final 
rule dated February 12, 2002 (67 FR 6395, 6401; see Finding P), we 
deferred a decision whether to approve an earlier proposed revision to 
these paragraphs that referenced an earlier (April 1994) edition of 
``Circular WQB-7.'' We deferred then because Montana informed us that 
``Circular WQB-7'' was being revised, and we could not approve the 
revised rule until the new edition of ``Circular WQB-7'' was reviewed 
by OSM to ensure that it did not conflict with 40 CFR part 136.
    We have not yet been able to review the revised ``Circular WQB-7.'' 
However, we note that the current proposed revision requires 
groundwater analyses to comply with both 40 CFR part 136 and ``Circular 
WQB-7.'' Hence, if any conflict exists, the discrepancy would have to 
be resolved in favor of the more stringent requirements. Therefore, we 
find that the proposed revisions are not inconsistent with the Federal 
requirement, and we approve the revisions. This action supercedes the 
earlier deferral.
C.24. ARM 17.24.702(6) Redistribution and stockpiling of soil (30 CFR 
816/817.22(d))
    Montana proposed to delete the requirement that soil redistribution 
achieve ``approximate uniform'' thicknesses. Montana's explanatory note 
indicates that the intent is ``to allow varying soil substrate 
thicknesses conducive to plant diversity and specific revegetation 
needs.''
    We note that ARM 17.24.701 requires removal of soil from all areas 
disturbed by mining operations. Hence, ``redistribution'' would imply 
that all such areas receive at least some soil during resoiling 
operations. Similarly, ARM 17.24.702(1) and (2) require soil to be 
distributed on all graded areas. Taken together with paragraph (6) as 
proposed for revision, all of these requirements would imply that no 
area disturbed by mining operations could be left without

[[Page 46471]]

any soil. So the question is whether the disturbed area must all be 
resoiled to the same thickness.
    The preamble to the Federal regulation (48 FR 22100; May 16, 1983) 
included a discussion of this issue. Concern was expressed by a 
commenter that uniform soil depths might lead to monocultures and be 
incompatible with reclamation objectives. In response, OSM modified the 
final rule to add that redistribution would be to an approximately 
uniform thickness ``consistent with the approved postmining land use'' 
and final graded contour. We note that native undisturbed soils exhibit 
a great range of depths within small areas, reflecting both topographic 
impacts and biotic influences, and soil depth range contributes to the 
premine plant communities and landscape diversity. Efforts to 
reconstruct the premining ecosystem should thus also include varying 
replaced soil depths to reflect topography, the various plant 
communities to be obtained by revegetation, and postmining land use. 
The Montana rules at ARM 17.24.313(4)(c)(ii) require such soil 
replacement depths to be specified in the permit application. We note 
that the majority of reclamation in Montana is directed to the 
postmining land uses of grazing and wildlife habitat, with the goal of 
achieving diverse plant communities, for which varying soil depths are 
appropriate. On lands with postmining land uses where approximately 
uniform soil replacement depths are appropriate (such as cropland or 
pasture), Montana would retain the authority to require such 
approximately uniform depths.
    Because Montana has retained the requirement that soil be 
redistributed in a manner that achieves thicknesses consistent with 
soil resource availability and appropriate for the postmining 
vegetation, land uses, contours, and surface water drainage patterns, 
we find that the proposed deletion of the requirement for approximate 
uniform thickness does not render the Montana program less effective 
than the Federal requirements in achieving the purposes of SMCRA.
C.25. ARM 17.24.711(1) Establishment of vegetation (30 CFR 816/817.111)
    Montana proposed to move from ARM 17.24.716(2) two requirements: 
that the revegetation consist of predominantly native species and that 
the revegetation be capable of self-regeneration. We agree with Montana 
that those requirements make more sense in this rule, stating general 
performance standards, than in the latter rule about revegetation 
methods. Accordingly, we approve this revision.
    Montana also proposed to add exceptions to the ``predominantly 
native'' requirement as provided in MCA 82-4-233(4) or 82-4-235(2). The 
first of these is a provision that, for some operations (those seeded 
between SMCRA's initial regulatory date and January 1, 1984), 
introduced species are considered by Montana to be necessary and 
desirable to achieve the postmining land use and may constitute a major 
or dominant component of the revegetation. This provision was approved 
by OSM on June 12, 2001 (66 FR 31530, 31531; Finding 3). The provision 
at MCA 82-4-235(2) provides a similar allowance, and supplemental 
planting without restarting the bond liability period, for areas 
disturbed prior to SMCRA regulation. It was approved by OSM on January 
22, 1999 (64 FR 3604, 3608; Finding 8). The revision proposed at ARM 
17.24.711(1) implements these previously-approved statutory exemptions, 
and is therefore not inconsistent with the Federal requirements. 
Therefore, we approve this revision.
C.26. ARM 17.24.716(2), (5) Method of revegetation (30 CFR 816/817.111)
    As noted in the finding above, Montana proposed to move two 
requirements from paragraph (2) of this rule to ARM 17.24.711: that the 
revegetation consist of predominantly native species and that the 
revegetation be capable of self-regeneration. This revision was 
approved in that finding. Other descriptors proposed for deletion here 
(e.g. permanent, diverse) are duplicated in the earlier rule, and we 
also approve those deletions.
    Montana also proposed in paragraph (2) to: (1) Change a requirement 
for Department approval of seeding other than on the contour to a 
requirement that seeding be done on the contour whenever possible; and 
(2) delete an allowance for drill seeding in separate rows according to 
Soil Conservation Service (now known as Natural Resources Conservation 
Service) guidelines. These existing requirements provided more detail 
than is contained in the Federal requirements at 30 CFR 816/817.22 and 
.111-.114. Therefore, deletion of these more specific provisions is not 
inconsistent with the Federal requirements and we approve them.
    At subparagraph (5)(b), Montana proposed to add two allowances for 
introduced species intended to implement two statutory revisions 
previously approved by OSM. For the same reasons discussed in the 
finding above on ARM 17.24.711, we approve the revisions proposed here.
C.27. ARM 17.24.733(3) Measurement Standards for Woody Plants (30 CFR 
816/817.116(b)(3))
    Montana proposed to delete a provision requiring that, when 
counting woody plants with multiple stems, only the tallest stem may be 
counted. There is no Federal counterpart for the provision proposed for 
deletion.
    We agree with Montana's statement that it is often difficult to 
determine which multiple stems constitute one individual, and hence 
difficult to obey the provision. Further, as long as the same 
techniques are used for both determining success standards and 
measuring success against those standards, determination of 
revegetation success is not hindered. Therefore, we find that the 
proposed deletion does not render the Montana program less effective 
than the Federal regulations and we approve the revision.
C.28. ARM 17.24.825(3) Alternate Reclamation: Alternate Revegetation 
(30 CFR 816/817.116(b)(2))
    In this paragraph, Montana proposed to revise one method of 
determining revegetation success standards for non-prime farmland 
cropland from target yields under ARM 17.24.815(2) to technical 
standards from historical data under 17.24.724(5). We note that success 
standards for prime farmlands are those specified at ARM 17.24.815(2). 
The success standards addressed in this revision are for non-prime 
cropland, and need not address the requirements for prime farmland.
    The Federal regulations at 30 CFR 816/817.116(b)(2) require only 
that, in determining whether revegetation meets the premining 
vegetation, either a reference area or other success standards be 
specified by the regulatory authority. We find that the reference to 
technical standards derived from historic data meets these 
requirements. Therefore, we approve the revision.
C.29. ARM 17.24.901 and .911 Underground Mining, General Application 
Requirements and Subsidence Control (30 CFR 784.20, 817.121, 817.41(j))
    Montana proposed revisions to these sections in response to OSM's 
letter (June 5, 1996) in accordance with 30 CFR part 732, which 
informed Montana of changes needed to its program to implement the 
provisions of the Energy Policy Act for subsidence protection and water 
supply restoration in connection with underground mines.

[[Page 46472]]

    Montana notes that it interprets its statutory language at 82-4-
231(10)(f) to require that (except where planned subsidence is used) 
subsidence be prevented, rather than merely minimized or mitigated. For 
this reason, it has altered certain Federal counterparts in these 
proposed revisions, as will be discussed below.
    At subparagraph ARM 17.24.901(1)(c)(i)(G), Montana proposed to 
require a survey of the condition of all residences (and related 
structures) and all non-commercial buildings within the area of the 
pre-subsidence survey (i.e., the permit area and adjacent area). We 
consider this area to be at least as extensive as the area initially 
required by the Federal regulation at 30 CFR 784.20(a)(3) (i.e., the 
angle of draw). However, the areal extent of the Federal requirement is 
in any case under suspension by court order.
    At subparagraph 17.24.901(1)(c)(iii)(A)(II) and (III), Montana 
proposed (for the subsidence control plan) to require a description of 
measures to be taken underground and on the surface to prevent 
subsidence and material damage to structures and lands. These proposals 
reflect Montana's statutory interpretation noted above that the rules 
must prevent subsidence. The counterpart Federal requirements at 30 CFR 
784.20(b)(5) require descriptions of measures to prevent or minimize 
subsidence and material damage. We find Montana's proposal to be no 
less effective than the Federal requirements.
    At subparagraph 17.24.911(2), for operations with planned and 
controlled subsidence, Montana proposed to require that all necessary 
measures be taken to prevent material damage to protected structures. 
The only exception is if the operator has written consent from the 
owners. This proposal again reflects Montana's statutory interpretation 
noted above that the rules must prevent subsidence. The counterpart 
Federal requirements at 30 CFR 817.121(a)(2) require measures to 
minimize damage ``to the extent technologically and economically 
feasible,'' and an additional exception is allowed for cost-benefit 
considerations. We find Montana's proposal to be no less effective than 
the Federal requirements.
    At subparagraph 17.24.911(7)(d), Montana proposed to add a 
requirement that the operator must replace any adversely affected 
domestic water supply. This paragraph applies only when underground 
mining has resulted in subsidence that causes material damage or 
reduces the value or use of surface lands. So, by adding the new 
provision to this particular paragraph, Montana appears to be limiting 
the water-replacement requirement to instances where subsidence has 
occurred and that subsidence has caused material damage or reduced the 
value or use of surface lands. The Federal requirement at 30 CFR 
817.41(j) is not so limited, and applies to water supply contamination, 
diminishment, or interruption by any underground mining activities, 
regardless whether or not subsidence has occurred.
    Additionally, there is an ambiguity on this point in Montana's 
statutory provision for water replacement for underground mines, at MCA 
82-4-243. This statutory provision was submitted by Montana in a 
previous program amendment (Administrative Record MT-17-01; July 20 and 
August 17, 2000; approved by OSM on June 12, 2001 (66 FR 31530; see 
Finding No. 4)). The sentence requiring water replacement does not 
contain any limitation to subsidence (``The permittee of an underground 
coal mining operation shall * * * promptly replace any drinking, 
domestic, or residential water supply from a well or spring that was in 
existence prior to the application for the permit pursuant to 82-4-222 
and that has been affected by contamination, diminution, or 
interruption resulting from the underground coal mining operation''). 
However, the entire section 82-4-243 is titled ``Subsidence.'' 
Therefore, it is unclear whether Montana intends the statute to limit 
water replacement for underground mines to instances where subsidence 
has occurred.
    Under standard canons of legal analysis, by proposing in this 
amendment to add the water replacement requirement at subparagraph ARM 
17.24.911(7)(d), which applies only when subsidence has occurred, 
Montana may be understood to be resolving the statutory ambiguity by 
interpreting the statutory provision to be limited only to instances of 
subsidence. And were we to approve the proposal, we could be approving 
that limiting interpretation; such approval would render the statutory 
provision less stringent than SMCRA 720(a)(2). Additionally, under 
standard canons of legal analysis, a specific requirement for water 
replacement in one circumstance (where subsidence has occurred), as 
proposed here, while remaining silent on other circumstances (i.e., 
where no subsidence has occurred) may be interpreted as a deliberate 
exclusion of the alternate (silent) circumstance. Therefore, Montana's 
proposed rule might be interpreted as requiring water replacement only 
when subsidence has occurred and has caused material damage or reduced 
the value or use of surface lands. Such an interpretation would render 
the Montana rules less effective than the Federal requirement at 30 CFR 
817.41(j), which is not so limited.
    For these reasons, we do not approve the proposed addition of ARM 
17.24.911(7)(d). Since the rule has already been promulgated, we are 
requiring Montana to amend its program by removing this provision. 
Further, in order to resolve the ambiguity in its statutory provision 
at 82-4-243, MCA (discussed above), we are requiring that Montana 
further amend its rules to require the prompt replacement of any 
drinking, domestic or residential water supply that is contaminated, 
diminished, or interrupted by underground mining activities, regardless 
of the occurrence of subsidence or whether subsidence has caused 
material damage or reduced the value or use of surface lands, to be no 
less effective in meeting the requirements of SMCRA 720(a)(2) than is 
30 CFR 817.41(j).
    At paragraph ARM 17.24.911(8), Montana proposed to add provisions 
establishing a rebuttable presumption of causation of damage by 
subsidence, and standards for rebutting the presumption. The proposal 
closely resembles the equivalent Federal counterparts at 30 CFR 
817.121(4). However, these Federal requirements were suspended on 
December 22, 1999 (64 FR 71653). Montana's proposal provides another 
means for citizens to establish that damage to their buildings and/or 
residences was caused by subsidence (and hence subject to compensation 
or repair as discussed above). Even where the presumption is not 
applicable, citizens have other, though more difficult, means of 
proving causation. Protecting surface owners and those with legal 
interests in non-commercial buildings from the adverse effects of 
mining operations is one of the purposes of the Act specified at SMCRA 
102(b). Therefore, providing the rebuttable presumption results in more 
stringent land use controls and regulation of mining operations than 
does the Federal regulations under the suspension. Therefore, under 30 
CFR 730.11(b), we find that the proposal is not inconsistent with the 
Federal requirements.
    Except as discussed above, the revisions proposed for ARM 17.24.901 
and .911 are either minor editorial or recodification changes, or 
contain language that is the same as or similar to the corresponding 
Federal regulations promulgated to implement the Energy

[[Page 46473]]

Policy Act on March 31, 1995 (60 FR 16722). We find that they are no 
less effective than the corresponding Federal regulations. Except as 
discussed above regarding ARM 17.24.911(7)(d), and for the reasons 
discussed above, we approve the revisions proposed for these two 
sections.
C.30. ARM 17.24.932(5)(b) Underground Mining, Disposal of Underground 
Development Waste: Durable Rock Fill (30 CFR 816/817.73)
    Montana proposed only a minor editorial revision to this rule, to 
revise a cross-reference to 17.24.924(18)(b). This cross-reference was 
created during an earlier program amendment (MT-003-FOR; Administrative 
Record Nos. MT-12-01 and MT-12-5; February 1 and 28, 1995). In the 
final rule addressing that amendment, OSM deferred on whether to 
approve the cross-reference, stating that the cross-reference should be 
to all of rule 17.24.924 and not to just one paragraph or subparagraph 
(see February 12, 2002; 67 FR 6395, 6404; see Finding Y). In this 
submittal, Montana has revised the cross-reference to reflect a 
recodification of 17.24.924, but has not revised the cross-reference in 
a way to resolve the problems identified earlier by OSM. For the 
reasons stated in the February 12, 2002 rule, we continue to defer a 
decision on this revision.
C.31. ARM 17.24.1001(2)(l) Prospecting, Permit Requirements; ARM 
17.24.1018(3), (4) Prospecting, Notice of Intent (30 CFR 772.12(b)(11), 
(13), (c), 772.11)
    Montana proposed to add at ARM 17.24.1001(2)(l) a new requirement 
that applications for prospecting permits include documentation that 
the owners of the land to be affected have been notified and understand 
that the Department has a right of entry for inspection and enforcement 
purposes.
    There is no exact Federal counterpart to this proposed requirement. 
The Federal regulations noted above require that exploration permit 
applications contain the names and addresses of owners of both surface 
and mineral estates in the areas to be affected and, if the applicant 
does not own the land, a description of the legal basis for the right 
to explore. Additionally, as is true of the Montana program, a public 
newspaper advertisement of the application is required. The Montana 
proposal is similar to these Federal requirements, but would require 
more exacting and documented notification of land owners. One of the 
purposes of SMCRA is to assure that the rights of surface landowners 
and others with a legal interest are fully protected (SMCRA 102(b)). We 
find the Montana proposal to be consistent with this goal, and we 
approve the proposal.
    Similarly, Montana proposed to add at ARM 17.24.1018(3) and (4) new 
requirements that prospecting notices of intent include (1) Copies of 
documents providing legal right to prospect, and (2) documentation of 
notice to landowners similar to that discussed above. Again, there are 
no exact Federal counterparts at 30 CFR 772.11. However, for the 
reasons discussed above in regard to ARM 17.24.1001(2)(l), we approve 
the proposal.
C.32. ARM 17.24.1112 Bonding, Release Applications and Objections (30 
CFR 800.40(f))
    At ARM 17.24.1112(h), Montana proposed to specify that ``any 
affected person'' may submit written comments, objections, and requests 
for public hearing or informal conference to the Department of 
Environmental Quality concerning the filing for bond release by the 
permittee. This information would be included in an advertisement in a 
newspaper of general circulation in the locality of the permit area.
    The Federal regulations at 30 CFR 800.40(f) state that ``Any person 
with a valid legal interest which might be adversely affected by 
release of the bond, or responsible officer or head of any Federal, 
State, or local governmental agency which has jurisdiction by law or 
special expertise with respect to any environmental, social, or 
economic impact involved in the operation or which is authorized to 
develop and enforce environmental standards with respect to such 
operations, shall have the right to file written objections to the 
proposed release from bond with the regulatory authority * * *.''
    Montana's use of the term, ``any affected person,'' would include 
persons with a valid legal interest and those without a valid legal 
interest but affected in some other way. This interpretation is similar 
to the Federal regulations which address both those persons with a 
valid legal interest which might be adversely affected by release of 
the bond, and the responsible officer or head of agencies which have 
jurisdiction by law or special expertise with respect to environmental, 
social, or economic impact involved in the operations. Therefore, 
Montana has included in its rules a term with a substantively identical 
interpretation to the Federal regulations. We find the Montana revision 
to be no less effective than the Federal regulations and approve it.
C.33. MCA 82-4-205(2) and 206 Administration by Department and 
Procedure for Contested Case Hearings (SMCRA 201(c), 514(c), 525)
    Montana proposed to delete an existing provision at subparagraph 
MCA 82-4-205(10) that stated the Department may conduct hearings under 
``this part'' (i.e., title 82. Minerals, Oil, And Gas; chapter 4. 
Reclamation; part 2. Coal and Uranium Mine Reclamation). Montana 
proposed to add a new paragraph (2) to provide that the board (i.e., 
the Board of Environmental Quality) shall conduct contested hearings 
under the part. The effect of these revisions would be to transfer the 
authority to conduct contested case hearings from the Department to its 
overseeing board. Montana also proposed a new provision at MCA 82-4-
206(1) stating that a person aggrieved by a final decision of the 
Department may within 30 days request a hearing before the board.
    SMCRA is silent on the issue of which body should conduct contested 
case hearings. A provision addressing permit disputes at SMCRA 514(c) 
forbids anyone who presided at an informal conference from presiding at 
a formal hearing. SMCRA 525 establishes administrative review by the 
Secretary of the Interior, although under SMCRA 701(22), the Secretary 
is also the regulatory authority (RA). SMCRA 201(c) states that the 
Secretary, acting through OSM, shall be responsible for both program 
decisions and administrative review. In practice, however, 
administrative review under Federal programs is conducted by a panel 
answerable to the Secretary but independent from OSM. The Federal 
regulations at 30 CFR 732.15(b)(14) require that State programs provide 
for administrative review in accordance with SMCRA 525 and 30 CFR parts 
840-847 (which implies the panel noted above). The 30-day period 
proposed by Montana is consistent with the time frames set forth in the 
Federal requirements. We find these Montana proposals to be consistent 
with the Federal requirements and we approve them.
C.34. MCA 82-4-231(8) Action on Reclamation Plan (SMCRA 503(a)(6), 510)
    Montana proposed several revisions to this statutory section to 
alter the timing of mining permit application review in coordination 
with reviews under the Montana Environmental Policy Act. The revisions 
do not amend any substantive requirements for reviewing mining permit 
applications.

[[Page 46474]]

    SMCRA does not directly address the review of permit applications 
under the Federal National Environmental Policy Act. However, SMCRA 
503(a)(6) does require that State programs include a process for 
coordinating the review and issuance of coal mining permits with any 
other State permit process applicable to the operation. We find the 
proposed revisions to be consistent with the Federal provisions and we 
approve them.

D. Revisions to Montana's Rules With No Corresponding Federal 
Regulation

D.1. Definition of ``Railroad Loop'', ARM 17.24.301(95)
    Montana proposed to define the term ``railroad loop'' in its 
program as meaning any rail transportation system within the mine 
permit area, whether in the form of a loop or a straight line. 
Montana's program currently uses the term ``railroad loop'' in its 
definition of ``operation'' and does not provide for straight rail 
configurations. Montana states that at the time the Act was passed 
(1973), most rail configurations were loops. In order to assure that 
the Department of Environmental Quality has jurisdiction over all rail 
configurations, Montana decided to define ``railroad loop.''
    There is no direct Federal counterpart to Montana's proposed 
definition. At 30 CFR 816.180/817.180, OSM uses the term ``railroad'' 
in the discussion of utility installations. OSM does not differentiate 
among railroad configurations since that is not critical to SMCRA. 
Rather, it is the classification of railroads as utility installations 
and their regulation which is important. Therefore, OSM finds Montana's 
proposed definition to be consistent with the Federal regulations, and 
we approve it.
D.2. MCA 82-4-241(2) Receipts Paid Into General Fund (30 CFR 800.50)
    Montana proposed to add two new provisions. At new paragraph (2), 
Montana proposed that bond forfeiture money not addressed in existing 
paragraph (1), be used for expenses pursuant to MCA 82-4-240, which 
addresses bond forfeiture reclamation. At new paragraph (3), Montana 
proposed a disposition of excess bond forfeiture funds when Montana 
cannot locate the funds' owners.
    SMCRA does not specifically address these issues. The Federal 
regulations at 30 CFR 800.50 at (b)(2) require forfeiture receipts to 
be used for reclamation. At 30 CFR 800.50(2)(c), excess funds are to be 
returned to the party from whom they were collected, but the regulation 
is silent about disposition of the funds when that party cannot be 
located. We find the Montana proposals to be consistent with the 
Federal provisions and we approve them.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. MT-20-06). We received a comment letter from one individual, 
with several comments as discussed below.
    The commenter expressed a concern about the proposed removal of 
blasting restrictions. We interpret this as a reference to ARM 
17.24.623, where Montana proposed to delete the requirement that the 
blasting period may not exceed an aggregate of 8 hours in any one day. 
We note that under ARM 17.24.624, blasting is still restricted to 
daylight hours. As discussed in Finding C.19 above, the Federal rules 
do not provide for any more strict limitation.
    An additional concern was expressed regarding the proposal to allow 
steeper slopes on the insides of ponds and the possibility that under 
the proposal, cattle and wildlife would be more likely to drown in 
winter. We interpret this as a reference to ARM 17.24.639(27)(a) where 
Montana proposed to delete a requirement that, for excavated sediment 
ponds, the perimeter slopes must not be steeper than 33 percent. As 
discussed in Finding C.22. above, there is no more stringent Federal 
requirement, so Montana's proposal is not inconsistent with the Federal 
regulations. We note that at ARM 17.24.642(1)(d), permanent 
impoundments may be approved only on a demonstration of adequate safety 
and access for water users. However, this does not apply to temporary 
impoundments (nor does the corresponding Federal requirement at 30 CFR 
816/817.49(b)(4)). We note that in Montana, where a given mining 
operation may exist in an area for decades, ``temporary'' may also mean 
decades. We note further the availability of the option under 30 CFR 
700.12 to submit a petition for rulemaking, in case the commenter or 
other persons believe that the Federal rules should be revised to 
include long-term ``temporary'' impoundments under the category of 
permanent impoundments.
    Another comment addressed the allowance to build excavations 
without spillways. We interpret this as a reference to ARM 
17.24.639(7)(a), where Montana proposed to add a statement that 
excavated ponds need no spillway. We note that this provision was 
actually submitted to OSM as part of an earlier program amendment that 
was approved (Administrative Record No MT-12-25, approved February 12, 
2002; 67 FR 6395, 6401; see Finding N). However, in this current 
amendment Montana, in its narrative following Rule 639, indicated its 
intent in promulgating the provision saying that excavated ponds by 
their nature have no spillway. We interpret this as a reference to a 
dictionary definition of ``spillway,'' which indicates that a spillway 
is a channel to rout excess water around an obstruction such as a dam. 
If the pond is totally excavated, there is no obstruction to route 
water around. We note that most of the spillway requirements in the 
Federal regulations are designed to prevent failure of pond 
embankments, which would allow all of the stored water in the pond, as 
well as incoming water, to threaten downstream areas. In excavated 
ponds, there is no danger of embankment failure, and the stored water 
will stay where it is. It is true that once the pond is filled, 
additional inflow will result in outflow from the pond. This will 
happen at one location of the pond's perimeter where the ground surface 
is lowest. Montana in its narrative recognizes this, and states that 
the outflow area below the excavation may require stabilization against 
erosion under ARM 17.24.640. That rule requires that discharge from 
ponds must be controlled by engineer-designed and certified structures 
or vegetation (open-channel spillways may also be stabilized by 
vegetation if the engineering design allows). Thus, if an engineer is 
designing outflow erosion control measures below an excavated pond, the 
resulting structure would be little different than a spillway. It just 
would not be bypassing an obstruction, and hence might not be called a 
spillway.
    The commenter also noted Montana's proposal at ARM 17.24.634(2) to 
delete language requiring that drainage reclamation designs be 
certified by a qualified registered professional engineer. The 
commenter appears to have misinterpreted this rule to apply to 
impoundments, when it applies to reclaimed drainages that serve as 
diversions. As discussed in Finding C.21. above, although Montana is 
deleting the requirement that designs be certified by a qualified 
registered professional engineer, the requirement still exists at ARM 
17.24.635(5). We further note that under ARM 17.24.639(22), all 
impoundments must be designed, inspected, and certified by a qualified 
registered professional

[[Page 46475]]

engineer experienced in the construction of impoundments. The commenter 
further addresses ARM 17.24.634(2), where Montana proposed to delete 
the requirement that the regraded channel not be resoiled or seeded 
until inspected and approved by the Department. In particular, the 
commenter expressed skepticism that Montana would make an operator redo 
deficient work if it were already resoiled and seeded. As discussed in 
our finding, we agree with Montana that operational efficiencies of 
both the mine operator and the Department are unnecessarily limited by 
the notification and pre-soiling inspection and approval requirements. 
The commenter's concern would apply equally to all phases of 
reclamation, and if justified would be a greater problem for general 
postmining surface configuration than for drainages. If the commenter's 
concern is justified, it would be a problem to be addressed in program 
oversight, particularly reviewing permit revisions approving ``as-
built'' grading changes or drainage designs. In any case, we note that 
the Federal regulations at 30 CFR 816/817.43 contain no such specific 
pre-resoiling inspection and approval requirements, so we cannot find 
Montana's deletion to be inconsistent with the Federal requirements.
    The commenter further observes that many provisions proposed for 
deletion in this program amendment have already been deleted in rule 
packages Montana makes available to the public. As we note below (see 
``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 our oversight of State programs, we recognize 
only the statutes, regulations and other materials we have approved, 
together with any consistent implementing policies, directives and 
other materials. We require Montana to enforce only approved 
provisions. If the commenter is aware that any unapproved revisions are 
being enforced or implemented, the commenter should notify OSM's Casper 
Field Office of such (See ``For Further Information Contact'' provided 
at the beginning of this rule) so that OSM may take any necessary site-
by-site inspection and enforcement actions and include an appropriate 
review in our annual oversight of the Montana program.
    The commenter also expressed some concern with the proposed 
revision at ARM 17.24.733, where Montana proposed to delete a provision 
requiring that, in counting woody plants with multiple stems, only the 
tallest stem may be counted. As discussed above in Finding C.27., the 
critical factor is that any vegetation parameter (cover, production, 
stem density, or others) be measured using the same methodology in 
setting success standards and determining operator compliance with the 
standard.
    Finally, the commenter noted that the definitions in Montana's 
statute (presumably, 82-4-203, MCA) need to be examined and discussed. 
We are unclear in what way this comment relates to the current 
amendment. We did not note in reviewing the proposed regulatory 
definitions any conflict with the statutory definitions. If the 
commenter has any specific concerns, they should be addressed to the 
Casper Field Office.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Montana program (Administrative 
Record No. MT-20-03).
    We received a reply from the Bureau of Indian Affairs (Rocky 
Mountain Regional Office) indicating that the revisions were acceptable 
from their point of view (Administrative Record No. MT-20-04).
    We also received a reply from the Mine Safety and Health 
Administration, indicating that they found no direct impact on employee 
or public health or safety, and hence had no comments or 
recommendations (Administrative Record No. MT-20-05).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
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.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that Montana proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.

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 May 14, 2002, we requested comments on Montana's 
amendment from the SHPO and ACHP (Administrative Record No. MT-20-03), 
but neither responded to our request.

V. OSM's Decision

    Based on the above findings, we approve, with the following 
exceptions and additional requirements, Montana's May 7, 2002 
amendment.
    We defer decision on the following proposed revisions: Finding No. 
C.3., ARM 17.24.301(79), 17.24.303(14), and 17.24.404, concerning 
ownership and control; and Finding No. C.30., ARM 17.24.932(5)(b), 
concerning inspections of durable rock fills on underground mines.
    With the requirement that Montana further revise its rules, we do 
not approve, as discussed in: Finding No. C.29, ARM 17.24.911(7)(d), 
concerning replacement of water supplies harmed by underground mining 
activities.
    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 a State program to demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this 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 Montana's program, we will recognize only those 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 approved provisions.

[[Page 46476]]

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. 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 (Regulatory Planning and 
Review).

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 because 
each 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 regulating 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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on any Tribe, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes. The 
State of Montana, under a Memorandum of Understanding with the 
Secretary of the Interior (the validity of which was upheld by the U.S. 
District Court for the District of Columbia), does have the authority 
to apply the provisions of the Montana regulatory program to mining of 
some coal minerals held in trust for the Crow Tribe. This proposed 
program amendment does not alter or address the terms of the MOU. 
Therefore, this rule does not affect or address the distribution of 
power between the Federal Government and Indian Tribes or the 
relationship between the Federal Government and Indian Tribes.

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 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: July 16, 2003.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 926 is amended as 
set forth below:

PART 926--MONTANA

0
1. The authority citation for part 926 continues to read as follows:


[[Page 46477]]


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


0
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 of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
May 7, 2002...................  August 6, 2003...  ARM 17.24.301
                                                    (recodified);
                                                    17.24.301(13), (34),
                                                    (39), (46), (47),
                                                    (64), (71), (73),
                                                    (76), (79), (95),
                                                    (103), (110), (111),
                                                    (133); 17.24.302(6);
                                                    17.24.303(15)(a)(ii)
                                                    ; 17.24.304(5);
                                                    17.24.305(2)(b);
                                                    17.24.306(1), (3);
                                                    17.24.313(6);
                                                    17.24.315(1)(b);
                                                    17.24.321(1)(intro),
                                                    (a), (2)-(4);
                                                    17.24.324(2), (3);
                                                    17.24.327(2);
                                                    17.24.401(1),
                                                    (5)(b)(i);
                                                    17.24.403(2)(a);
                                                    17.24.405(1), (8);
                                                    17.24.413(4);
                                                    17.24.415(1);
                                                    17.24.416(1)(d),
                                                    (2); 17.24.501(1),
                                                    (3), (4)-(6);
                                                    17.24.501A deleted;
                                                    17.24.503(1);
                                                    17.24.505(2);
                                                    17.24.507(4);
                                                    17.24.510(1), (2);
                                                    17.24.514 deleted;
                                                    17.24.518(1);
                                                    17.24.519A deleted;
                                                    17.24.520(1), (2),
                                                    (3 recodified);
                                                    17.24.522(1);
                                                    17.24.601(1)-(11);
                                                    17.24.603(1)-(5);
                                                    17.24.604 deleted;
                                                    17.24.605(1)-(3);
                                                    17.24.606 [moved to
                                                    17.24.601(7)];
                                                    17.24.607(1)-(3);
                                                    17.24.623(2)(b)(iii)
                                                    ; 17.24.625(1), (2);
                                                    17.24.632(1);
                                                    17.24.633(3)-(5);
                                                    17.24.634(1)(intro),
                                                    (a), (2), (3);
                                                    17.24.639(1)(c)-(27)
                                                    ; 17.24.640(1);
                                                    17.24.642(1)(f),
                                                    (2), (3), (6);
                                                    17.24.645(5 intro),
                                                    (6); 17.24.646(6);
                                                    17.24.647(1);
                                                    17.24.652(1);
                                                    17.24.702(1), (2),
                                                    (6); 17.24.711(1),
                                                    (6)(b);
                                                    17.24.716(1), (2),
                                                    (5); 17.24.718(2);
                                                    17.24.724(3)(a);
                                                    17.24.725(1);
                                                    17.24.726(2);
                                                    17.24.728 (intro);
                                                    17.24.733(3),
                                                    recodified (3)-(5);
                                                    17.24.762(1);
                                                    17.24.815(2)(c)-(e),
                                                    (f)(i), (h);
                                                    17.24.821(1)(intro),
                                                    (1)(g);
                                                    17.24.823(2);
                                                    17.24.825(1), (3);
                                                    17.24.826(1), (2)
                                                    [replaces
                                                    17.24.1103];
                                                    17.24.901(1)(c)(i)-(
                                                    iii);
                                                    17.24.903(1)(a),
                                                    (c), (d);
                                                    17.24.911(1)-(3),
                                                    (4)-(6) recodified,
                                                    (7)(intro), (8)-
                                                    (10); 17.24.924(15)-
                                                    (20); 17.24.925(2);
                                                    17.24.927(3);
                                                    17.24.1001(1)(a),
                                                    (2)(b)-(o), (4);
                                                    17.24.1002(1),
                                                    (2)(j)-(m), (3);
                                                    17.24.1003(1
                                                    recodified), (2)-
                                                    (4); 17.24.1005(3)(c
                                                    intro);
                                                    17.24.1006(1),
                                                    (3)(intro);
                                                    17.24.1010 intro;
                                                    17.24.1014(1)(b),
                                                    (2)(d), (4);
                                                    17.24.1017(2)(c),
                                                    (3)(d);
                                                    17.24.1018(3)-(9);
                                                    17.24.1103 deleted;
                                                    17.24.1104(2),
                                                    recodify (3)-(5);
                                                    17.24.1108(1);
                                                    17.24.1111(4),
                                                    recodify (5)-(6);
                                                    17.24.1112(1)(h);
                                                    17.24.1116(8);
                                                    17.24.1116A deleted;
                                                    17.24.1132(1)(a)(iv)
                                                    ; 17.24.1143(1);
                                                    17.24.1221(1);
                                                    17.24.1222(2);
                                                    17.24.1223(5)
                                                    (intro), (6)(b);
                                                    17.24.1224(1)(b);
                                                    17.24.1225(1)-(3);
                                                    17.24.1226(1), (2);
                                                    17.24.1228(1);
                                                    17.24.1261(1), (2),
                                                    (4)(b), (c), (5);
                                                    17.24.1262(1 as
                                                    recodified).
                                                   MCA 82-4-205
                                                    recodification, (1),
                                                    (2); 82-4-206 title,
                                                    (1), (2); 82-4-
                                                    231(8)(c), (d), (f);
                                                    82-4-241(1)-(3); 82-
                                                    4-254(3), (4).
------------------------------------------------------------------------


0
3. Section 926.16 is amended by removing and reserving paragraph (e)(9) 
and adding paragraph (m) to read as follows:


Sec.  926.16  Required program amendments.

* * * * *
    (m) By October 6, 2003, Montana shall revise ARM 17.24.911, or 
otherwise modify its program, to require the prompt replacement of any 
drinking, domestic or residential water supply that is contaminated, 
diminished, or interrupted by underground mining activities, regardless 
of the occurrence of subsidence or whether subsidence has caused 
material damage or reduced the value or use of surface lands, to be no 
less effective than 30 CFR 817.41(j) in meeting the requirements of 
SMCRA 720(a)(2).

[FR Doc. 03-19944 Filed 8-5-03; 8:45 am]
BILLING CODE 4310-05-P