[Federal Register Volume 70, Number 31 (Wednesday, February 16, 2005)]
[Rules and Regulations]
[Pages 8002-8019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2905]



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Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 926



Montana Regulatory Program; Final Rule

  Federal Register / Vol. 70, No. 31 / Wednesday, February 16, 2005 / 
Rules and Regulations  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[MT-024-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, 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 statutes 
about: State policy and findings concerning mining and reclamation; 
definitions; the time required to approve or disapprove minor permit 
revisions; permit application requirements, including determinations of 
probable hydrologic consequences and land use; requirements to protect 
the hydrologic balance; area mining, post-mine land use, and wildlife 
enhancement; revegetating disturbed areas; timing of reclamation; 
standards for successful revegetation; making vegetation the 
landowner's property after bond release; jurisdictional venue in right-
of-entry actions; transfer of revoked permits; and mandamus. The State 
also proposes to add new provisions to its statutes for: Revising 
applications for permits, permit amendments, and permit revisions; 
codifying the changes proposed in the amendment; clauses for 
severability, saving, and contingent voidness; and a delayed effective 
date for the proposed changes. Montana intends to revise its program to 
incorporate the additional flexibility afforded by the revised Federal 
regulations and SMCRA, as amended, to provide additional clarification, 
and to improve operational efficiency.

EFFECTIVE DATE: February 16, 2005.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Director; Casper Field 
Office. Telephone: (307) 261-6550. E-mail: gpadgett@osmre.

SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM's) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Montana Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of 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 July 29, 2003, Montana sent us an amendment to its 
program (State Amendment Tracking System (SATS) MT-024-FOR; 
Administrative Record No. MT-21-1) under SMCRA (30 U.S.C. 1201 et 
seq.). Montana sent the amendment to include the changes made at its 
own initiative.
    We announced receipt of the proposed amendment in the October 27, 
2003, Federal Register (68 FR 61175). 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-21-06). We did not hold a public hearing or meeting because no 
one requested one. The public comment period ended on November 26, 
2003. We received one comment from a citizens group and two comments 
from coal-mining-related entities in Montana.

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.
    We note here that most of the revisions proposed in this submittal 
were included within House Bill (HB) 373. Included in that legislation 
(at Section 15: contingent voidness) was a provision that if any other 
provision of HB 373 were to be disapproved by OSM, then that 
disapproved portion would be void. For that reason, for any proposed 
revisions that we do not approve (as noted below), those portions of HB 
373 are automatically void. Therefore we do not need to require Montana 
to delete them.

A. Minor Revisions to Montana's Statutes

    Montana proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved statutes.
    Montana Code Annotated (MCA) 82-4-202, except new paragraphs (1) 
and (3)(c) through (e); legislative intent, policy, and findings.
    MCA 82-4-203, except paragraphs (2), (4), (13), (16), (17), (20) 
through (24), (26) through (28), (30), (37), (38), (42) through (44), 
(46), (47), (50), and (55); definitions.
    MCA 82-4-222(1) through (1)(l), and (1)(q) through (6); permit 
application requirements.
    MCA 82-4-232 recodification; Area mining, bond.
    MCA 82-4-233 recodification and (5); Planting of vegetation.
    MCA 82-4-234 except last sentence; Commencement of reclamation.
    MCA 82-4-235 recodification and (2) through (3)(b); Determination 
of successful revegetation.
    MCA 82-4-236; Vegetation as property of landowner.
    MCA 82-4-252 except (2) deletion of ``in the district court * * 
*''; Mandamus.
    Because these changes are minor, we find that they will not make 
Montana's statutes less effective than the corresponding Federal 
regulations and/or less stringent than SMCRA.

B. Revisions to Montana's Statutes That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations and/or SMCRA

    Montana proposed revisions to the following statutes containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations and/or SMCRA.
    MCA 82-4-203(2), (13), (16), (17), (20) through (23), (26), (27), 
(28), (37), (38), (42) through (44), and (46) [No SMCRA counterparts; 
30 CFR 701.5], definitions.
    MCA 82-4-222(1)(m) and (n) [No SMCRA counterparts; 30 CFR 
780.21(f)(3), (i), (j)], permit application hydrology requirements.
    MCA 82-4-232(7) and (8) (as newly enacted) [SMCRA 515(b)(2), 30 CFR 
816/817.133], land use capability.
    Because these proposed rules contain language that is the same as 
or similar

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to SMCRA and/or the corresponding Federal regulations, we find that 
they are no less effective than the corresponding Federal regulations 
and no less stringent than SMCRA.

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

    C.1. MCA 82-4-203(4) Definition of Approximate Original Contour 
(AOC) [SMCRA 701(2), 30 CFR 701.5].
    a. Montana proposed to add a new statutory definition of this term. 
Under the proposal, `` `approximate original contour' means that 
surface configuration achieved by backfilling and grading of the mined 
area so that the reclaimed area, including any terracing or access 
roads, closely resembles the general surface configuration of the land 
prior to mining and blends into and complements the drainage pattern of 
the surrounding terrain, with all highwalls, spoil piles, and coal 
refuse piles eliminated, so that: * * *.'' This introductory text 
duplicates the Federal definition, except that the Montana definition 
makes no allowance for impoundments. Impoundments as an aspect of AOC 
are addressed in a proposed revision of MCA 82-4-232(1)(a), which is 
addressed in a separate finding below. Since this introductory language 
is the same as the Federal language, we approve this part of the 
proposed definition.
    b. The ``so that'' phrase introduces four proposed new 
subparagraphs which are intended to provide clarification or refinement 
of the definition in the introductory text. Proposed MCA 82-4-203(4)(a) 
provides additional guidance on the meaning of the phrase ``closely 
resembles the general surface configuration.'' Specifically, it 
provides that the regraded area ``closely resembles'' the general 
surface configuration if it is comparable to the premine terrain. The 
proposal gives as an example that if the area was basically level or 
gently rolling before mining, it should retain these features after 
mining, recognizing that rolls and dips need not be restored to their 
original locations and that level areas may be increased. This 
additional guidance in the proposal is consistent with the intent of 
SMCRA in that reclaimed surface configuration does not have to 
duplicate the premine topography, only approximate it. This means that 
not all premine features need necessarily be restored in the same 
location as they the existed prior to mining. Nor is it necessary to 
restore all the minor undulations that existed prior to mining. We also 
note that this language is very similar to that in OSM's policy 
guidance contained in Directive INE-26:

    The reclaimed area should closely resemble the general surface 
configuration of the land prior to mining. This should not be 
interpreted, however, as requiring that postmining contours exactly 
match the premining contours or that long uninterrupted premining 
slopes must remain the same. Rather, the general terrain should be 
comparable to the premining terrain; that is, if the area was 
basically level or gently rolling before mining, it should retain 
these general features after mining. Rolls and dips need not be 
restored in their original locations and level areas may be 
increased or terraces created in accordance with 30 CFR 816.102.

    Since Montana's proposal essentially duplicates the Federal 
guidance, we approve proposed subparagraph MCA 82-4-203(4)(a).
    c. Proposed MCA 82-4-203(4)(b) provides additional guidance in 
implementing the phrase ``complements the drainage pattern of the 
surrounding terrain,'' providing that ``the reclaimed area blends with 
and complements the drainage pattern of the surrounding area so that 
water intercepted within or from the surrounding terrain flows through 
and from the reclaimed area in an unobstructed and controlled manner.'' 
It is one intent of the requirement for restoration of the hydrologic 
balance in SMCRA that backfilling and grading restore the flow of 
surface water across the site to premining conditions; we note that 
water quantity inflow into a hydrologic unit, minus water quantity 
outflow from that unit, is the most basic level of ``hydrologic 
balance'' (see the Federal definition of ``hydrologic balance'' at 30 
CFR 701.5). The proposed language simply clarifies this requirement as 
part of the restoration of AOC. We approve proposed MCA 82-4-203(4)(b).
    d. Proposed MCA 82-4-203(4)(c) provides still more guidance on the 
phrase ``blends into and complements the drainage pattern of the 
surrounding terrain,'' providing that ``postmining drainage basins may 
differ in size, location, configuration, orientation, and density of 
ephemeral drainageways compared to the premining topography if they are 
hydrologically stable, soil erosion is controlled to the extent 
appropriate for the postmining land use, and the hydrologic balance is 
protected as necessary to support postmining land uses within the area 
affected and the adjacent area.'' SMCRA and the Federal regulations 
lack a counterpart to this language. The initial proposed language 
(``postmining drainage basins may differ in size, location, 
configuration, orientation, and density of ephemeral drainageways 
compared to the premining topography'') provides guidance beyond that 
contained in the Federal AOC definition. The remaining proposed 
language provides specialized performance standards for protection of 
the hydrologic balance and control of soil erosion when postmining 
drainage basins differ from premining.
    We note first that, since they are being used in defining AOC, 
these special performance standards are applicable to the proposed 
postmining topography to be created during the reclamation process, and 
thus do not apply during the mining process. Second, erosion rates are 
controlled by both land shape and vegetation cover (in cases, like mine 
reclamation, where precipitation and soil do not change). So, the 
erosion control referred to here is that provided by land shape (we 
note that erosion control provided by revegetation, as required by 
SMCRA 515(b)(19), is addressed in the proposed amendment at MCA 82-4-
233(1)(d), discussed in a separate finding below).
    Regarding soil erosion, Federal performance standards at SMCRA 
515(b)(4) require all affected areas to be stabilized and protected to 
effectively control erosion and attendant air and water pollution. 
``Effectively'' is not defined; but the legislative history on 
``effective vegetative cover'' indicates control to ``normal premining 
background levels'' [``effective'' vegetative cover includes both ``the 
productivity of the vegetation concerning its utility for the 
postmining land use as well as its capability of stabilizing the soil 
surface with respect to reducing siltation to normal premining 
background levels'' H. Rep. No. 95-218, pg. 106]. SMCRA 515(b)(10)(B) 
requires the use of the best technology currently available to control 
sediment, and requires compliance with State and Federal effluent 
limits. Neither of these Federal erosion control requirements limits 
erosion control, and hence in this instance land shape, to the needs of 
the postmining land use.
    However, we believe that this does not render the proposed 
definition inconsistent with SMCRA, provided the proposed definition is 
interpreted as requiring that all four subparagraphs apply; that is, 
that subparagraph (c) does not take precedence over subparagraph (a). 
To be no less effective than the Federal definition of AOC, 
subparagraph (c) may not be interpreted as authorizing selection of a 
postmining land use that would necessitate a deviation from the 
remainder of the AOC definition; i.e., the postmining

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land topography must still closely resemble the general surface 
configuration of the land prior to mining regardless of the nature of 
the approved postmining land use. If the reclaimed terrain is 
comparable to the premine terrain, then the erosion control provided by 
land shape should approximate the normal premining background level.
    Regarding protection of the hydrologic balance, SMCRA 515(b)(10) 
requires that disturbances to the hydrologic balance on the mine site 
be minimized, regardless of the postmining land use. Further, SMCRA 
515(b)(10)(E) prohibits channel deepening or enlargement in receiving 
streams (an aspect of hydrologic balance protection), regardless of any 
effect or lack of effect on postmining land uses.
    We conclude that this clarification of the AOC definition, when 
applied to the performance standard at MCA 82-4-232(1)(a) to restore 
AOC, would conflict with SMCRA's performance standards requiring 
protection of the hydrologic balance. Therefore we do not approve, in 
this subparagraph, the phrase ``as necessary to support postmining land 
uses within the area affected and the adjacent area'' in the clause 
regarding hydrologic balance protection.
    Based on the above discussion, we approve proposed MCA 82-4-
203(4)(c) except the phrase ``as necessary to support postmining land 
uses within the area affected and the adjacent area'' in the clause 
regarding hydrologic balance protection.
    e. Proposed MCA 82-4-203(4)(d) provides that one part of the 
definition of AOC is that the reclaimed surface configuration must be 
appropriate for the postmining land use. The SMCRA definition has no 
such provision. Here Montana is inserting a performance standard in the 
definition of AOC, equivalent to 30 CFR 816.102(a)(5). We believe that 
this does not render the definition inconsistent with SMCRA, provided 
the definition is interpreted as requiring that all four subparagraphs 
apply; that is, that subparagraph (d) does not take precedence over 
subparagraphs (a) through (c). To be no less effective than the Federal 
definition of AOC, subparagraph (d) may not be interpreted as 
authorizing selection of a postmining land use that would necessitate a 
deviation from the remainder of the AOC definition; i.e., the 
postmining land topography must still closely resemble the general 
surface configuration of the land prior to mining regardless of the 
nature of the approved postmining land use. Consistent with the above 
reasoning, we approve proposed MCA 82-4-203(4)(d).
    C.2 MCA 82-4-203(24) Definition of Hydrologic balance [30 CFR 
701.5].
    Montana proposes here a new definition for ``hydrologic balance,'' 
as follows:

    ``Hydrologic balance'' means the relationship between the 
quality and quantity of water inflow to, water outflow from, and 
water storage in a hydrologic unit, such as a drainage basin, 
aquifer, soil zone, lake, or reservoir, and encompasses the dynamic 
relationships among precipitation, runoff, evaporation, and changes 
in ground water and surface water storage as they relate to uses of 
land and water within the area affected by mining and the adjacent 
area.

    The first part of this duplicates both Montana's regulatory 
definition at Administrative Rules of Montana (ARM) 17.24.301(53) and 
the Federal definition at 30 CFR 701.5, down through and including the 
term ``surface water storage.'' Montana has now added the last clause, 
``as they relate to uses of land and water within the area affected by 
mining and the adjacent area.'' Under this proposal, dynamic hydrologic 
relationships would be considered only to the extent that they relate 
to uses of the land and water; in short, Montana proposes to define 
hydrologic balance in terms of the anticipated post-mining land use. 
Therefore, under the proposal, components of the hydrologic regime 
would not be identified, protected, or monitored unless those 
components relate to post-mining uses of land and water.
    As used in SMCRA and the Federal regulations, ``hydrologic 
balance'' describes a natural resource, the hydrologic conditions and 
interactions, that exists within and around the area proposed for 
mining. These conditions are independent of the intended land use. By 
proposing to define ``hydrologic balance'' in terms of the proposed 
post-mining land use, the Montana definition is significantly narrower 
than the Federal regulatory definition of ``hydrologic balance.'' We 
therefore find that this proposal is not consistent with the Federal 
regulatory definition. We approve proposed MCA 82-4-203(24) to the 
extent that it duplicates ARM 17.24.301(53); we do not approve the 
final phrase ``as they relate to uses of land and water within the area 
affected by mining and the adjacent area.''
    C.3. MCA 82-4-221(3) Permit revisions [SMCRA 511(a)(2)].
    Montana proposed to decrease the time allowed to approve or 
disapprove an application for minor permit revision from 120 days to 60 
days, with an additional 30 day extension by mutual agreement. SMCRA 
511(a)(2) requires only that each regulatory program establish a 
timeframe. We find that Montana's proposal is consistent with the 
Federal requirement, and we approve it.
    C.4. MCA 82-4-222(1)(o) Permit application: proposed postmining 
topography [SMCRA 507(b)(14), 30 CFR 780.18(b)(3)].
    As part of the permit application, proposed MCA 82-4-222(1)(o) 
requires submission of maps, cross sections, range diagrams or other 
means approved by the Department (the Department of Environmental 
Quality) (which is the regulatory authority under SMCRA), that depict 
the projected postmining topography, soil placement, overburden swell, 
and drainage patterns and their tie-in points to surrounding drainages. 
There is no direct comparison to this requirement in either SMCRA or 
the Federal regulations. SMCRA section 507(b)(14) does require maps, 
cross sections or plans that identify constructed or natural drainways 
and the location of any discharges to any surface body of water on the 
area of land to be affected or adjacent thereto, and profiles at 
appropriate cross sections of the anticipated final surface 
configuration that will be achieved pursuant to the operator's proposed 
reclamation plan. The Federal regulations at 30 CFR 780.18(b)(3) also 
require contour maps or cross sections that show the final surface 
configuration. Montana's proposed language provides additional 
specificity beyond that in SMCRA or the Federal regulations. We find 
that proposed MCA 82-4-222(1)(o) is consistent with and no less 
stringent than SMCRA and no less effective than the Federal 
regulations. We approve the proposed language.
    C.5. MCA 82-4-222(1)(p) Permit Application--Land Capability [SMCRA 
508(a)(2)].
    The Montana proposed language is identical in all respects to SMCRA 
except for the SMCRA requirement that, if applicable, the application 
include a soil survey prepared pursuant to section 507(b)(16). Section 
507(b)(16) requires a soil survey be done to confirm the location of 
prime farmlands, if a reconnaissance inspection suggests that such 
lands may be present in those lands in the permit application. The 
Montana Act as proposed lacks a counterpart to section 507(b)(16).
    However, the Montana rules, at ARM 26.4.306, require a prime 
farmland investigation and ARM 26.4.304(11) requires a soil survey 
according to the standards of the Natural Cooperative Soil Survey 
describing all soils on the proposed permit area. Minimum soils 
information, including soil series and phase, mapping unit, 
descriptions,

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physical and chemical analysis of all horizons and soils maps, is also 
specified as part of this rule. Because the State rules require a soil 
survey for all soils within a proposed permit with sufficient 
information to identify any prime farmland soils within a proposed 
permit area this fulfills the requirements of sections 507(b)(16) and 
508(b)(2). Therefore, the lack of a counterpart in MCA 82-4-222(1)(p) 
to the Federal requirement that, if applicable, a soil survey be 
prepared pursuant to section 507(b)(16), does not render the State 
program less stringent. Based on the proposed language at MCA 82-4-
222(1)(p) and the existing requirements of the State rules, we find the 
proposed change to be consistent with and no less effective than SMCRA 
and the Federal regulations. We approve the proposed revision.
    C.6. MCA 82-4-231(10)(k) Protection of Hydrologic Balance [SMCRA 
515(b)(10), 30 CFR 816.41(a)].
    The existing provision duplicates the Federal provision and 
requires the operator to minimize disturbances to the prevailing 
hydrologic balance at the mine site and in associated offsite areas and 
to minimize disturbances to the quantity and quality of water in the 
surface water and ground water systems by a specified list of 
techniques. Montana proposed to revise this, first, by changing 
``associated offsite areas'' to ``adjacent areas.'' We note that the 
SMCRA provision also uses the phrase ``associated offsite areas,'' but 
the Act does not define that phrase. In the implementing rules at 30 
CFR 816.41(a), the phrase ``within the permit and adjacent areas'' is 
substituted, and the rules define both areas (30 CFR 701.5). OSM has 
noted in a rule preamble that the final definition of ``adjacent area'' 
was modified from the proposed definition to delete the spatial concept 
of ``near'' or ``contiguous'' to focus instead on protecting the 
natural resources which may be impacted. 44 FR 14923; March 13, 1977. 
The Montana statute also does not define the phrase ``associated 
offsite areas,'' but does define ``adjacent area,'' and that definition 
essentially duplicates the Federal rule definition. Therefore we 
approve this change.
    Montana proposed to further revise this requirement by adding a 
limitation that these minimizations would only be required ``as 
necessary to support postmining land uses and to prevent material 
damage to the hydrologic balance in the adjacent area.'' In other 
words, some efforts at minimization would not be required if postmining 
land uses would not be adversely affected and material damage in the 
adjacent area would not occur. This limitation would render the Montana 
statute less stringent than SMCRA and it would not meet SMCRA's minimum 
requirements. Montana stated in the submittal that this language was 
intended to be consistent with the general performance standard in the 
Federal regulations at 30 CFR 816.41(a). However, we find that the 
cited Federal regulation establishes three separate performance 
standards: surface mining and reclamation must be conducted (1) to 
minimize disturbance of the hydrologic balance on permit and adjacent 
areas, (2) to prevent material damage to the hydrologic balance outside 
the permit area, and (3) to support postmining land uses. This language 
does not, like Montana's proposal, limit the application of the first 
standard (minimization).
    We also note that there is an internal inconsistency within this 
proposed new language. The proposed limitation would apply to material 
damage in the ``adjacent area.'' But the new definition of ``material 
damage'' applies to all areas ``outside of the permit area,'' which is 
an area more extensive than ``adjacent area.''
    For these reasons, we do not approve the addition of the phrase 
``as necessary to support postmining land uses and to prevent material 
damage to the hydrologic balance in the adjacent area.''
    C.7. MCA 82-4-231(10)(k)(viii) Protection of Hydrologic Balance 
[SMCRA 515(b)(10)(G)].
    Similar to the provision discussed in the Finding immediately 
above, the existing provision duplicates the Federal provision. It 
allows the Department to prescribe ``any other actions'' to minimize 
the specified disturbances to the hydrologic balance. And similar to 
the provision discussed above, Montana proposed to revise this 
allowance by adding a limitation. In this case, the Department would be 
limited to prescribing actions to minimize the specified disturbances 
``to protect the hydrologic balance as necessary to support postmining 
land uses within the area affected and to prevent material damage to 
the hydrologic balance in adjacent areas.'' In other words, the 
Department would not be allowed to prescribe some actions to minimize 
disturbances to the hydrologic balance if postmining land uses would 
not be adversely affected or if material damage in the adjacent area 
would not occur without those actions. This limitation would limit the 
discretion of the regulatory authority provided by SMCRA and hence 
render the Montana statute less stringent than SMCRA.
    Montana again stated in the submittal that this language was 
intended to be consistent with the general performance standard in the 
Federal regulations at 30 CFR 816.41(a). But we again note that the 
cited Federal regulation establishes minimization of disturbance to the 
hydrologic balance (on permit and adjacent areas) as a separate goal 
from the prevention of material damage to the hydrologic balance 
(outside the permit area) and support of the postmining land use.
    We again note that there is an internal inconsistency within this 
proposed new language. The proposed limitation would apply to material 
damage in the ``adjacent area.'' But the new definition of ``material 
damage'' applies to all areas ``outside of the permit area,'' which is 
an area more extensive than ``adjacent area.''
    For these reasons, we do not approve the addition of the phrase 
``to protect the hydrologic balance as necessary to support postmining 
land uses within the area affected and to prevent material damage to 
the hydrologic balance in adjacent areas.''
    C.8. MCA 82-4-231(10)(k)(vii) Protection of Hydrologic Balance 
[SMCRA 515(b)(10)].
    Montana proposed an addition to the existing list of techniques 
required to minimize disturbances to the hydrologic balance. The 
existing list duplicated the list in SMCRA at 515(b)(10). The proposed 
addition would require that disturbances to the hydrologic balance be 
minimized by ``designing and constructing reclaimed channels of 
intermittent streams and perennial streams to ensure long-term 
stability.'' Insofar as this is an addition to the list provided in 
SMCRA, this proposed addition would be considered under SMCRA 
515(b)(10)(G) as ``such other actions as the regulatory authority may 
prescribe,'' the prescription being, in this case, a program-wide one. 
There is a question, though, whether by specifying intermittent and 
perennial streams, this provision may be interpreted to exclude 
ephemeral streams. That is, does this provision implicitly, if not 
expressly, state that it is not necessary to design and construct the 
reclaimed channels of ephemeral streams to ensure long-term stability? 
For the following reasons, we believe that the answer to this question 
is ``no.'' We note that under MCA 82-4-231(10)(k)(ii)(A) and (k)(v), 
operators are required to prevent additional contributions of sediment 
to runoff, and to avoid channel deepening or enlargement when water is 
discharged from mines. These requirements effectively require long-term 
stability in

[[Page 8006]]

reclaimed channels of ephemeral streams. Thus we find that the proposed 
addition is consistent with SMCRA 515(b)(10)(G), and we approve the 
language.
    C.9. MCA 82-4-232(1)(a) Backfilling & Approximate Original Contour 
(AOC) [SMCRA 515(b)(3); 30 CFR 816.102(a)].
    Montana proposed to delete language requiring highwall reduction/
elimination and spoil pile elimination, leaving requirements that area 
mining is required for strip mines and that the area of land affected 
must be backfilled and graded to AOC. Montana further proposed to add 
another sentence containing four clauses after the word ``However.'' 
Clause (i) provides that, if it is consistent with the adjacent unmined 
landscape elements, the operator may propose and the Department may 
approve a regraded topography gentler than the premining topography if 
the gentler topography is consistent with adjacent unmined landscape 
elements and if it would enhance the postmining land use, improve 
stability, provide greater moisture retention, and reduce erosional 
soil losses. Clause (ii) provides that postmining slopes may not exceed 
the angle of repose or whatever lesser slope is necessary to achieve a 
long-term static safety factor of at least 1.3 and to prevent slides. 
Clause (iii) allows the creation of permanent impoundments in some 
cases. Clause (iv) provides that the reclaimed topography must be 
suitable for the postmining land use.
    The corresponding Federal provision in section 515(b)(3) of SMCRA 
requires that all surface coal mining operations backfill, compact, and 
grade in order to restore the approximate original contour of the land 
with all highwalls, spoil piles, and depressions eliminated (except 
small depressions for moisture retention). Section 515(b)(8) also 
authorizes the creation of permanent impoundments under certain 
conditions. The Federal regulations at 30 CFR 816.102(a) require that 
disturbed areas be backfilled and graded to--
    (1) Achieve the approximate original contour (except as provided in 
paragraph (k), which provides exceptions for thin and thick overburden, 
mountaintop removal operations, and certain steep-slope operations);
    (2) Eliminate all highwalls, spoil piles, and depressions, except 
as provided in paragraph (h) (small depressions) and in paragraph 
(k)(3)(iii) (previously mined highwalls);
    (3) Achieve a postmining slope that does not exceed either the 
angle of repose or such lesser slope as is necessary to achieve a 
minimum long-term static safety factor of 1.3 and to prevent slides;
    (4) Minimize erosion and water pollution both on and off the site; 
and
    (5) Support the approved postmining land use.
    In summary, the Federal requirements are to backfill and grade to 
restore AOC (with four specified exemptions); eliminate highwalls, 
spoil piles, and depressions (except certain small depressions and 
permanent impoundments); achieve long-term stability; minimize erosion 
and water pollution; and support the postmining land use.
    The Montana proposal deletes the performance standard requiring the 
elimination of all highwalls and spoil peaks.
    However, it continues to require restoration of AOC. As discussed 
in finding C.1. above, Montana also is adding a definition of AOC at 
section 82-4-203(4), MCA, that requires the elimination of all 
highwalls, spoil piles, and coal refuse piles. Therefore, the deletion 
of this requirement from the Montana performance standards does not 
render the State program less stringent than SMCRA or less effective 
than the Federal regulations. We are predicating this finding upon 
interpretation of the sentence beginning ``However,'' in section 82-4-
232(1)(a), as not establishing an exemption to the highwall and spoil 
pile elimination requirement. In other words, we are interpreting that 
sentence as providing additional parameters for determining when AOC 
restoration has been achieved, not as exceptions to the AOC restoration 
requirement. With this stipulation, we approve the proposed deletion of 
the sentence: ``Reduction, backfilling, and grading must eliminate all 
highwalls and spoil peaks.''
    Proposed clause (i) in the sentence beginning ``However,'' provides 
that, if it is consistent with the adjacent unmined landscape elements, 
the operator may propose and the Department may approve a regraded 
topography gentler than the premining topography if the gentler 
topography is consistent with adjacent unmined landscape elements and 
if it would enhance the postmining land use, improve stability, provide 
greater moisture retention, and reduce erosional soil losses. We find 
that this provision is consistent with the discussion of the meaning of 
``approximate original contour'' in OSM Directive INE-26. In pertinent 
part, Part 3.a. of that directive specifies that ``the reclamation of 
any minesite must take into consideration and accommodate site-specific 
and unique characteristics of the surrounding terrain and postmining 
land uses.'' Part 3.c.(2)(a) of the directive also clarifies that 
``level areas may be increased,'' provided that, as specified in Part 
3.c.(2)(c), all highwalls, spoil piles, and unapproved depressions are 
eliminated. Therefore we approve this proposed clause (i).
    Montana's proposed clause (ii) requires slope stability equivalent 
to that required by the Federal regulations, proposed clause (iii) 
provides for permanent impoundments equivalent to that provided by the 
Federal regulations, and proposed clause (iv) requires compatibility 
with the postmining land use equivalent to that required by the Federal 
regulations discussed above. Therefore, we approve these three 
provisions.
    C.10. MCA 82-4-232(1)(b) Backfilling & Approximate Original Contour 
(AOC) [30 CFR 816.102].
    MCA 82-4-232(1)(b) allows the operator to leave spoil from the 
first cut in place so long as highwalls are eliminated, first cut 
spoils are blended with the surrounding terrain and AOC is achieved. 
There is no direct Federal counterpart addressing whether first-cut 
spoil should be transported to the last cut. The Federal regulations at 
30 CFR 816.102(d) provide that, in non-steep-slope areas, spoil may be 
placed outside the mined-out area under some conditions (this is 
informally known as ``blending''). Additionally, in the preamble to the 
Federal regulations addressing backfilling and grading, OSM indicates 
that the regulatory authority should have the discretion to establish 
the final provisions for the disposal of first cut or box cut spoils so 
long as (1) the area where the box cut spoils are placed conforms to 
other requirements, such as topsoil removal and grading of the mined 
area to AOC; (2) the box cut spoils are also graded to AOC or to the 
lowest practicable grade; (3) the reclamation achieves an ecologically 
sound land use compatible with the surrounding region; and (4) other 
provisions pertaining to spoil handling are met (44 FR 15227, March 13, 
1977). These are the same conditions specified in 30 CFR 816.102(d). 
The preamble goes on to indicate that any excess spoil, including box 
cut spoils, which is deposited on lands that satisfy the slope angles 
specified in the definitions for head-of-hollow and valley fills must 
comply with the excess spoil regulations and that the stockpiling and 
transportation of box cut spoil to the final cut is encouraged in order 
that the requirements for the elimination of highwalls, spoil piles and 
depressions are satisfied. Montana's proposed language complies with 
these

[[Page 8007]]

requirements. Highwalls must be eliminated, grading of the box cut 
spoils must blend with the surrounding terrain and AOC must be 
achieved. In addition, MCA 82-4-232(1)(a)(iv) requires that the grading 
must be suitable for the postmining land use.
    Thus proposed MCA 82-4-232(1)(b) is consistent with the intent of 
SMCRA and the Federal regulations. We approve proposed MCA 82-4-
232(1)(b).
    C.11. MCA 82-4-232(1)(c) Backfilling & Approximate Original Contour 
(AOC) [SMCRA 515(b)(3)].
    At MCA 82-4-232(1)(c), Montana proposed to delete from the 
provision, which addresses the creation of terraces and diversions 
during final grading, a sentence which allowed the Department to 
promulgate rules requiring ``additional restoration work.'' This 
provision is newly designated at subparagraph (c); as currently 
approved, these are the last two sentences of paragraph (1). Hence, the 
``additional restoration work'' applies to the general performance 
standard of backfilling and grading, highwall and spoil pile 
elimination, and restoration of AOC.
    The corresponding Federal provision at SMCRA 515(b)(3) does not 
specially provide for the promulgation of additional backfilling and 
grading requirements (although SMCRA 515(a) and (b) do provide for the 
regulatory authority to promulgate ``other requirements'' and note that 
the defined performance standards are minimums). By deleting this 
discretionary provision, Montana is not removing from its program 
anything required by SMCRA. Therefore we approve the proposed deletion.
    C.12. MCA 82-4-232(7) and (8) Alternate Reclamation [SMCRA 515(b)].
    Montana has proposed to delete previously existing paragraphs (7) 
and (8). [We note that Montana in this submittal has enacted new 
paragraphs (7) and (8), providing requirements for land capability and 
alternative land uses. These new paragraphs are addressed in Finding B 
above.] The deleted paragraphs address ``alternatives'' to backfilling, 
grading, highwall elimination, topsoiling, and planting of a permanent 
diverse cover; the implementing rules refer to this as ``alternate 
reclamation.''
    When the Montana program was initially approved, these deleted 
paragraphs were a topic of public comment (see 45 FR 21572; April 1, 
1980; Disposition of Comments No. 24). At that time, OSM wrote that it 
found that the implementing rule ``is analogous to the Federal 
alternative postmining land use provisions rather than to the 
experimental practices provision.'' The deleted provisions resemble the 
Federal experimental practice provision, but also provided the only 
means for Montana to provide for postmining land uses other than the 
otherwise-required combination of grazing and fish & wildlife habitat.
    Since the newly-promulgated paragraphs (7) and (8) now provide 
requirements for land capability and alternative land uses (as 
addressed in Finding B. above), deletion of the original paragraphs 
will not render the Montana program inconsistent with SMCRA. Therefore 
we approve these deletions.
    However, we note that several rules within the Montana program were 
statutorily authorized only by these now-deleted paragraphs. This also 
applies to a couple of rules proposed in earlier amendments to the 
Montana program on which OSM had deferred decisions (see 55 FR 19728, 
19730, May 11, 1990; 67 FR 6395, 6400, February 12, 2002; and 68 FR 
46460, 46466, August 6, 2003). Since the statutory authorization for 
these Montana rules will no longer exist upon the effective date of 
this OSM rule, Montana will have to remove these Montana rules when 
promulgating new rules to implement these statutory changes. OSM will 
follow up on this matter when such proposed implementing rules are 
submitted. The rules this deleted authority applies to are: ARM 
17.24.313(3)(b)(second sentence), 17.24.515(2), 17.24.821, 17.24.823, 
17.24.824, and 17.24.825.
    C.13. MCA 82-4-232(9) Wildlife Enhancement [SMCRA 515(b)(24)].
    Montana proposed to add a new paragraph (9) to this statute to 
require that wildlife habitat enhancement features be integrated into 
the postmining land use plans for ``cropland, grazing land, 
pastureland, land occasionally cut for hay, or other uses''; the 
features are to enhance habitat diversity, emphasizing big game 
animals, game birds, and threatened and endangered species in the area. 
Features must also be planned to enhance wetlands and riparian areas. 
Finally, the provision states that such wildlife habitat enhancement 
features do not constitute a land use change to fish and wildlife 
habitat, and may not interfere with the designated postmining land use.
    We note that the Montana program already contains, at MCA 82-4-
231(10)(j), an exact duplicate of the Federal requirement at SMCRA 
515(b)(24), with both requiring that the operator, to the extent 
possible using the best technology currently available, minimize 
disturbances and adverse impacts of the operation on fish, wildlife, 
and related environmental values and achieve enhancement of such 
resources where practicable. Since the proposed new paragraph does not 
address minimizing disturbance or adverse impacts, it must be read 
together with the last part of the existing Montana and Federal 
requirements; that is, read together with the requirement that 
operators, where practicable, achieve enhancement of fish, wildlife, 
and related environmental values to the extent possible using the best 
technology currently available. If the proposed new provision would in 
any way limit the existing requirement for ``enhancement where 
practicable,'' then the proposed provision would conflict with the 
existing Montana and SMCRA requirement.
    In one way, the proposed provision is more stringent than the 
existing Montana and Federal requirements: by stating that reclamation 
plans ``must incorporate appropriate wildlife habitat enhancement 
features,'' this provision effectively declares that enhancement of 
habitat diversity is always ``practicable.'' At first reading, the 
required enhancement appears to be limited to agricultural postmining 
land uses. But other postmining land uses are referenced by the 
proposed language ``or other uses,'' though this expanded application 
would be clearer if the words ``and all'' were added: ``and all other 
uses.'' Although the proposed new provision would provide for an 
``emphasis'' on three specified ``wildlife types,'' this does not 
exclude other wildlife types from the requirement; and a placement of 
emphasis is within Montana's discretion. The SMCRA and existing Montana 
requirement requires ``enhancement where practicable'' for all 
postmining land uses; so we agree that inclusion of those features does 
not necessarily turn other postmining land uses into the postmining 
land use of fish and wildlife habitat.
    The final clause of the proposed new paragraph prohibits 
enhancement features from interfering with the postmining land use. 
Read together with the requirement that reclamation plans ``must'' 
incorporate appropriate enhancement features, this clause in effect 
requires that if a given type of enhancement feature (for example, 
hedgerows) would interfere with a postmining land use (for example, 
cropland), then other enhancement features must be employed (for 
example, raptor perches or songbird nest boxes) that would be more 
appropriate by interfering less. We find this to be consistent with the 
existing SMCRA and

[[Page 8008]]

Montana provisions, which require enhancement where practicable.
    Based on the above discussion, we approve proposed MCA 82-4-232(9).
    C.14. MCA 82-4-233 Planting of revegetation [SMCRA 515(b)(19), 30 
CFR 816/817.111].
    a. Montana proposed to delete existing paragraph (1), providing 
general revegetation requirements, and replace it with a new paragraph 
(1) that almost exactly duplicates 30 CFR 816/817.111(a). These Federal 
regulations directly implement, with increased detail, SMCRA 
515(b)(19). Therefore, the proposed new paragraph, with the two 
exceptions noted below, provides revegetation requirements equivalent 
to SMCRA 515(b)(19) and 30 CFR 816/817.111(a).
    The first exception is that Montana's proposal at proposed 
paragraph (1) would not require operators to plant water areas, surface 
areas of roads, ``and other constructed features.'' The Federal 
requirements of SMCRA 515(b)(19), as implemented at 30 CFR 816/
817.111(a), provide only the first two exemptions. The third exemption 
provided by Montana, ``and other constructed features,'' is undefined. 
All of reclamation could be considered ``constructed,'' so this 
exemption could broadly be construed to apply to the whole affected 
area. We believe that Montana intended here that this exemption would 
be applied to parking lots, material storage yards, etc., that are 
limited in size and slope, and are stabilized against erosion by paving 
or gravel. We are approving this language with the proviso that Montana 
not apply it until (1) Montana promulgates rules to implement it, which 
rules must provide for a clear definition of ``other constructed 
features'' and provide for limits on size and slope and stabilization 
against erosion, and other factors that may affect environmental 
stability, and (2) those rules are approved by OSM.
    The second exception is that Montana's proposal adds to new (1)(d) 
(corresponding to 30 CFR 816/817.111(a)(4)) a limitation that the 
revegetation need only be capable of stabilizing soil erosion to the 
extent appropriate for the postmining land use. SMCRA 515(b)(19), by 
requiring establishment of vegetation at least equal in extent of cover 
to the natural vegetation of the area, might be interpreted as 
requiring the revegetation to stabilize soil erosion to the level of 
the premining conditions [see note included in Finding C.1. above about 
the meaning of ``effective'' vegetation]. However, we note that the 
phrase ``of the area'' need not refer to the specific parcel being 
mined. This is particularly true when an alternative, ``higher or 
better,'' land use is being established during reclamation. OSM's 
interpretation of this situation, as indicated in the requirements for 
success standards at 30 CFR 816.116(a)(2), is that revegetation success 
standards must be representative of unmined lands under that proposed 
postmining land use in the area. In this case, the erosion control 
achieved by revegetation that meets the success standards will be 
equivalent to the erosion protection of unmined lands being used for 
the same purpose, within that general vicinity. For example, if an area 
that premining was unmanaged grazing land is reclaimed, postmining, to 
a ``higher or better'' land use of row crops, the required erosion 
control will be that comparable to other (unmined) row crop fields in 
the area, not the erosion control that is achieved by grazing land. The 
possible increase in soil erosion would be one factor that the 
regulatory authority would have to consider in deciding whether row 
crops would in fact be a higher or better use than grazing in this 
situation. We find Montana's proposal to be consistent with this 
interpretation of SMCRA 515(b)(19) as expressed at 30 CFR 
816.116(a)(2), and we approve it with this understanding.
    For the reasons discussed above, we are approving MCA 82-4-233(1), 
with the proviso that the exemption for ``and other constructed 
features approved as part of the postmining land use'' not be applied 
until Montana promulgates implementing rules to limit the exemption, 
and those rules are approved by OSM.
    b. We note that existing paragraph (1), proposed for deletion, 
required the revegetative cover to be capable of (1) ``feeding and 
withstanding grazing pressure from a quantity and mixture of wildlife 
and livestock at least comparable to [premining conditions]'' 
(subparagraph (1)(a)); and (2) ``regenerating under the natural 
conditions * * * including occasional drought, heavy snowfalls, and 
strong winds.''
    Neither SMCRA nor the Federal regulations contain these 
requirements. Therefore, deletion of them is not inconsistent with 
SMCRA or the Federal regulations. As noted above, the other general 
revegetation requirements of existing paragraph (1) have been replaced 
by the new paragraph (1). We therefore approve the deletion of existing 
paragraph (1). We note, however, that the deleted language of existing 
subparagraph (1)(a) [``feeding and withstanding grazing pressure from a 
quantity and mixture of wildlife and livestock at least comparable to 
[premining conditions''] was the language that up until this time had 
been interpreted by Montana as requiring, as a postmining land use, a 
combination of grazing and fish & wildlife habitat (unless a higher or 
better use was approved). Therefore, upon the effective date of this 
approval, Montana will no longer generally require the combination of 
grazing and fish & wildlife habitat as a postmining land use. Instead, 
Montana will be evaluating premining land use and land use capability 
with proposed postmining land uses under the terms of new MCA 82-4-
232(7) and (8) (as newly codified) [equivalent to SMCRA 515(b)(2), 30 
CFR 816/817.133], addressing land use capability [approved at Finding B 
above].
    c. Montana proposed to delete existing MCA 82-4-233(2), which 
provided that the regulatory authority (``board'') must define by rule 
the requirements for seed mixtures, quantities, and other planting 
requirements. SMCRA has no such specific requirement. Therefore 
deletion of this requirement is not inconsistent with SMCRA, and we 
approve it.
    d. Montana proposed to replace deleted existing paragraph (2) with 
a new paragraph (2) that exactly duplicates 30 CFR 816/817.111(b). This 
Federal regulation, in turn, provides additional detail to SMCRA 
515(b)(19). Since the proposed new paragraph (2) is the same as the 
Federal regulation, and in accordance with SMCRA, we approve it.
    e. Montana proposed to add a new paragraph (3), which requires 
revegetation to be appropriate for the postmining land use. This 
proposed provision to some extent addresses general revegetation 
success standards; but we note that Montana has provided additional 
requirements for revegetation success standards at proposed MCA 82-4-
235 (to be addressed in a finding below). At subparagraph (3)(a), 
revegetation appropriate for cropland provides exemptions from the 
general revegetation requirements of: diverse, effective, permanent; at 
least equal in cover to the natural vegetation; having the same 
seasonal characteristics of growth as the natural vegetation; and being 
capable of self-regeneration and plant succession. This same exemption 
for cropland from the general requirements of SMCRA 515(b)(19) is 
provided in the Federal regulations at 30 CFR 816/817.111(d).
    At subparagraph (3)(b), revegetation appropriate for pastureland or 
grazing land must have use for grazing by

[[Page 8009]]

domestic livestock at least comparable to premining conditions, and 
enhanced when practicable. Again, we note that proposed success 
standards will be addressed below. There is no exact Federal equivalent 
to this proposal. It is consistent with the requirements of SMCRA 
515(b)(19) that the revegetation be effective and at least equal in 
extent of cover to the natural vegetation of the area. The postmining 
land uses of grazing and pastureland imply land management practices 
directed to livestock use, but this does not preclude wildlife use. We 
believe it will usually be the case that if the postmining revegetation 
provides for at least as much livestock use as the premining 
vegetation, the same would hold true for grazing wildlife. We note that 
the definition of ``grazing'' at MCA 82-4-203(22) (addressed above) 
requires that the vegetation be indigenous, and hence would be 
appropriate for wildlife.
    At subparagraph (3)(c), revegetation appropriate for fish and 
wildlife habitat, forestry, or recreation requires that trees and 
shrubs must be planted to achieve appropriate stocking rates. Again, we 
note that proposed success standards will be addressed below; as noted 
below, the success standards for these land uses require ground cover 
measures. There is no exact Federal equivalent to this proposal. It is 
consistent with the requirements of SMCRA 515(b)(19) that the 
revegetation be diverse and effective.
    For the reasons discussed above, we approve proposed paragraph (3).
    C.15. MCA 82-4-234 Commencement of Reclamation [SMCRA 515(b)(16)].
    Montana proposed to delete the final sentence of this provision. 
The sentence requires that Departmental approval is required before an 
operator may redisturb any area already seeded for revegetation. 
Neither SMCRA nor the Federal regulations contain such a requirement. 
Therefore, deletion of this sentence is not inconsistent with SMCRA, 
and we approve it.
    C.16. MCA 82-4-235 Determination of Successful Revegetation [SMCRA 
515(b)(19) & (20); 30 CFR 816.111, 816.116].
    Introductory note: The nature of the material proposed for addition 
here (for example, the proposed rule addresses ground cover, crop 
production, stem density, and ``reestablished vegetation''), plus the 
similarity to the Federal regulations at 30 CFR 816/817.116, suggests 
that these proposed new requirements are meant, like 30 CFR 816/817.111 
and 816/817.116, to set basic requirements for success standards to 
measure when operators have met the requirement of MCA 82-4-233 to 
establish a vegetative cover. We have evaluated these requirements with 
this understanding. We further note that these basic requirements do 
not satisfy the Federal requirements at 30 CFR 816/817.116(a)(1) that 
the regulatory authority select detailed success standards (with 
consultation with State agencies required in some cases and recommended 
in all cases). This has actually already been accomplished by the 
Department; see ARM 17.24.711 through 17.24.733.
    Montana proposed to change the title of this provision from 
``inspection of vegetation'' to ``determination of successful 
revegetation,'' with (in both cases) a subtitle of ``final bond 
release.'' Montana also proposed to add a new paragraph (1) as follows:

    (1) Success of revegetation must be judged on the effectiveness 
of the vegetation for the approved postmining land use, the extent 
of cover compared to the cover occurring in the natural vegetation, 
and the requirements of 82-4-233. Standards for success are:
    (a) for areas reclaimed for use as cropland, crop production 
must be at least equal to that achieved prior to mining based on 
comparison with historical data, comparable reference areas, or 
United States department of agriculture (sic) publications 
applicable to the area of the operation, as referenced in rules 
adopted by the board;
    (b) for areas reclaimed for use as pastureland or grazing land, 
the ground cover and production of living plants on the revegetated 
area must be at least equal to that of a reference area or other 
standard approved by the department as appropriate for the 
postmining land use;
    (c) for areas reclaimed for use as fish and wildlife habitat, 
forestry, or recreation, success of revegetation must be determined 
on the basis of approved tree density standards or shrub density 
standards, or both, and vegetative ground cover required to achieve 
the postmining land use;
    (d) reestablished vegetation is diverse if multiple plant 
species meeting the requirements of 82-4-233(1)(b) are present. The 
department may approve a lesser diversity standard for postmining 
land uses other than grazing land.
    (e) reestablished vegetation is considered effective if the 
postmining land use is achieved and erosion is controlled;
    (f) reestablished vegetation is considered permanent if it is 
diverse and effective at the end of the 10-year responsibility 
period specified under subsection (2); and
    (g) plant species comprising the reestablished vegetation are 
considered to have the same seasonal characteristics of growth as 
the original vegetation, to be capable of regeneration and plant 
succession, and to be compatible with the plant and animal species 
of the area if those plant species are native to the area, are 
introduced species that have become naturalized, or are introduced 
species approved by the department as desirable and necessary to 
achieve the postmining land use.

    a. In part, these proposed new requirements are derived from the 
Federal regulations at 30 CFR 816/817.116; in particular, proposed 
paragraph (1) duplicates 30 CFR 816/817.116(a). And subparagraphs 
(1)(a) and (c) effectively duplicate 30 CFR 816/817.116(b)(2) and (3). 
Subparagraph (1)(b) duplicates 30 CFR 816/817.116(b)(1), except for the 
addition of the phrase ``appropriate for the postmining use.'' Since 
proposed paragraph (1) requires success standards to reflect the extent 
of cover compared to natural cover, and MCA 82-4-233(1)(c) [addressed 
in a finding above] requires the established cover to be at least equal 
to the natural cover, any standard approved by the Department as 
``appropriate'' under this section would have to exceed this minimum 
requirement. And, since subparagraphs MCA 82-4-235(1), (1)(a), (1)(b), 
and (1)(c) effectively duplicate the Federal regulations, we approve 
these subparagraphs.
    b. Subparagraphs (1)(e) and (f) provide definitions of 
``effective'' and ``permanent.'' Neither SMCRA nor the Federal 
regulations define these terms. But these concepts were discussed in 
preambles to Federal regulations, which themselves discuss House Report 
No. 95-218 (see 47 FR 12597; March 23, 1982; and 48 FR 48141-48146; 
September 2, 1983). According to these preambles:

    Effective means * * * both the productivity of the planted 
species concerning its utility to the intended postmining land use * 
* * as well as its capability of stabilizing the soil surface with 
respect to reducing siltation to normal background levels * * * 
Permanent means that the plant community as a whole must be capable 
of providing the necessary amount of ground cover over time through 
plant succession, and not necessarily that every individual plant 
species will propagate itself in identical numbers and rations 
throughout the future.

    Montana's proposed definitions here are consistent with these 
preamble discussions. Proposed subparagraph (e) provides that 
vegetation is effective if the postmining land use is achieved and 
erosion is controlled; these are the same two factors considered in the 
Federal preambles. And proposed subparagraph (f) provides that 
vegetation is permanent if it is diverse and effective at the end of 
the bond liability period. We note, though, that while this definition 
of ``permanent'' may serve as a basis for determining criteria for bond 
release, it provides little guidance applicable to approving 
revegetation plans in permit applications. Since these definitions are

[[Page 8010]]

consistent with the Federal regulations, we approve subparagraphs 
(1)(e) and (f).
    c. Subparagraph (1)(d) defines ``diverse'' as ``multiple'' plant 
species and provides for a ``lesser'' diversity standard for all 
postmining land uses except grazing. We understand ``multiple'' as 
being more than one. So, this provision could allow as few as two 
species, and possibly one if approved by the Department for non-grazing 
land.
    Neither SMCRA nor the Federal regulations define ``diverse.'' But 
pertinent discussion is found in the rule preambles cited above: `` 
`Diverse' means sufficiently varied amounts and types of vegetation to 
achieve ground cover and support the postmining land use. The precise 
numbers required to achieve this diversity should be determined by 
regional climate and soil conditions. However, the ultimate test will 
be the sufficiency of the plant communities to assure survival of 
adequate number and varieties to achieve the postmining land use and 
the required extent of ground cover. Diversity does not necessarily 
mean that every species or variety of premining grass, shrubs, or trees 
be established in identical numbers and ratios after mining.'' See 47 
FR 12597; March 23, 1982. We do not believe that this Federal 
description for diversity, and the conclusion that the ultimate test is 
related to the plant communities' ability to assure survival of 
adequate numbers and varieties to achieve the postmining land use and 
required extent of cover, is consistent with Montana's proposal, which 
could result in as few as two species and possibly one in some cases. 
In particular, the postmining land use of fish and wildlife habitat 
will often require a fairly high diversity (i.e., sufficiently varied 
amounts and types of vegetation) to fulfill the various food and cover 
needs of various species of wildlife and other biota.
    Based on the above discussion, we find proposed subparagraph (1)(d) 
to be less effective than the Federal requirements, and we do not 
approve it.
    d. Subparagraph (1)(g) describes the criteria required to meet the 
terms ``same seasonal characteristics of growth as the original 
vegetation,'' ``capable of regeneration and plant succession,'' and 
``to be compatible with the plant and animal species of the area.'' In 
all three cases, the proposal states that these requirements are met if 
the reestablished vegetation species meet one or more of three 
criteria: (1) They are native to the area, (2) they are introduced 
species that have been naturalized, or (3) they are introduced species 
approved by the Department as both necessary and desirable for the 
postmining land use.
    The Federal regulations do not define the terms ``same seasonal 
characteristics of growth as the original vegetation,'' ``capable of 
regeneration and plant succession,'' and ``to be compatible with the 
plant and animal species of the area''. But preamble discussion (see 47 
FR 12597; March 23, 1982) clarifies that ``seasonality'' refers to the 
major season of growth. Herbaceous species are generally grouped into 
cool season species (which grow mostly in spring or fall, but are 
largely dormant in mid-summer) and warm season species (which grow in 
late spring and summer, but are dormant in early spring and fall); 
woody species may be deciduous or evergreen. Species that are native to 
the area would exhibit these characteristics. Introduced species could 
be approved by the Department as ``desirable'' only if they exhibit 
these characteristics. ``Naturalized species,'' in this context, are 
introduced species that were not planted with Department approval; 
however, they may have invaded the area after planting, or their seeds 
may have been in the soil prior to mining. Since they have not been 
planted with approval, it is unknown whether they match the seasonality 
of the original vegetation. Based on this discussion, we approve this 
definition of ``the same seasonal characteristics of growth as the 
original vegetation,'' except for its inclusion of naturalized species.
    Regarding capacity for regeneration and plant succession, species 
that are native to the area would exhibit these characteristics. 
Introduced species could be approved by the Department as ``desirable'' 
only if they exhibit these characteristics. Since naturalized species 
would not have been planted with approval, it is unknown whether they 
would have these characteristics. Based on this discussion, we approve 
this definition of ``capable of regeneration and plant succession,'' 
except for its inclusion of naturalized species.
    Regarding compatibility with local plants and animals, the native 
species are co-adapted with plant and animal species of the area and 
therefore have this characteristic. Introduced species could be 
approved by the Department as ``desirable'' only if they exhibit this 
characteristic. As OSM noted in the preamble to 30 CFR 816.111(b)(4), 
``[a]ny species approved for use in reclamation must be compatible with 
the plant and animal species of the area. Hence, 816.111(b)(4) is one 
of the criteria that the regulatory authority will use in determining 
whether to approve or disapprove any plant species proposed for 
planting in disturbed areas'' (48 FR 40145; September 2, 1983). 
Therefore, introduced species approved by the Department must, 
consistent with 30 CFR 816.111(b), be compatible with other species of 
the area. Since naturalized species would not have been planted with 
approval, it is unknown whether they would have this characteristic. 
Based on this discussion, we approve this definition of ``to be 
compatible with the plant and animal species of the area,'' except for 
its inclusion of naturalized species.
    For the reasons discussed above, we approve subparagraph (1)(g) 
except insofar as it includes ``introduced species that have become 
naturalized.''
    C.17. MCA 82-4-252(2) Mandamus [SMCRA 520].
    Montana proposed to revise Paragraph (2) of this section to delete 
the option for actions of mandamus to be brought in the first judicial 
district of the State, thereby requiring that such actions be brought 
in the district court of the county in which the land is located.
    The Federal citizen suit provision at SMCRA 520 requires that 
Federal district courts have jurisdiction for Federal citizen suit 
actions. It does not specify jurisdiction for State actions. We find 
that Montana's proposal is not inconsistent with this, and we approve 
it.

D. Revisions to Montana's Statute With No Corresponding Federal 
Regulation and/or Statute

    D.1. MCA 82-4-202(1) Policy Intent.
    Montana proposed to add a new paragraph (1), stating the 
legislature's intent to fulfill its responsibility under the Montana 
Constitution. There is no direct Federal counterpart.
    We find that the adequacy of this legislation to meet the 
obligations of the Montana Constitution is beyond the scope of our 
review. We are empowered under SMCRA 503 and 505 only to evaluate 
Montana's laws in comparison to SMCRA. Therefore, we take no action on 
this proposed new paragraph.
    D.2. MCA 82-4-202(3)(c)--(e) Policy Intent.
    Montana proposed to add three new subparagraphs (c) through (e) to 
renumbered paragraph (3), as follows:

    (3)(c) coal mining alters the character of soils and overburden 
materials and that duplication of premining topography, soils, and 
vegetation composition is not practicable;
    (d) the standard for successful reclamation of lands mined for 
coal is the reestablishment of sustainable land use comparable to 
premining conditions or to higher or better uses; and
    (e) standards for successful reclamation must be well-defined, 
consistent, and

[[Page 8011]]

attainable so that mine operators can reclaim lands disturbed by 
mining with confidence that the release of performance bonds can be 
achieved.''

    There are no similar provisions in SMCRA. We agree with proposed 
subparagraph (c) that surface mining alters soils and geology, and that 
an exact duplication of premining conditions is not practicable. This 
provision is not inconsistent with the intent of SMCRA. Therefore we 
approve subparagraph (3)(c).
    In regard to proposed (3)(d), we note that restoration of 
sustainable land use is indeed one of the main requirements of SMCRA, 
as noted at SMCRA 515(b)(2). But in SMCRA 101(c), Congress also 
identified many other adverse effects of mining which SMCRA is intended 
to prevent:

    (c) many surface mining operations result in disturbances of 
surface areas that burden and adversely affect commerce and the 
public welfare by destroying or diminishing the utility of land for 
commercial, industrial, residential, recreational, agricultural, and 
forestry purposes, by causing erosion and landslides, by 
contributing to floods, by polluting the water, by destroying fish 
and wildlife habitats, by impairing natural beauty, by damaging the 
property of citizens, by creating hazards dangerous to life and 
property[,] by degrading the quality of life in local communities, 
and by counteracting governmental programs and efforts to conserve 
soil, water, and other natural resources.

    Therefore, in addition to restoring or enhancing sustainable land 
use, other standards for successful reclamation include highwall 
elimination and restoration of AOC to, for example, prevent impairment 
of natural beauty and eliminate hazards dangerous to life and property; 
protection and enhancement of fish & wildlife habitat; control of 
erosion and other pollution of surface waters and ground waters; 
contemporaneous reclamation, etc. Thus the body of SMCRA itself, not 
just the findings in section 101, contain postmining reclamation 
requirements that are not necessarily limited to the postmining land 
use, e.g., hydrologic balance protection outside the permit area and 
fish and wildlife protection and enhancement even when fish and 
wildlife habitat is not the postmining land use (see also 30 CFR 
816.97(a), (h), and (i)). Also, we note that that section 519(c)(3) of 
SMCRA specifies that no bond shall be fully released until ``all 
reclamation requirements of this Act are fully met.''
    Therefore we do not agree with Montana that restoration of 
sustainable land use is ``the [one] standard'' for successful 
reclamation of lands mined for coal. We additionally note a conflict 
between proposed (d) and proposed (e): proposed (d) states that there 
is one ``standard'' for successful reclamation, while proposed (e) 
addresses plural ``standards for successful reclamation.'' For these 
reasons, we find that this provision is inconsistent with the intent of 
SMCRA, and we do not approve proposed subparagraph MCA 82-4-202(3)(d).
    With regard to proposed subparagraph (3)(e), we agree that 
standards for successful reclamation must be well-defined, because as 
Montana notes, considerable legal and monetary liability is attached. 
The term ``consistent'' can be used in several different ways. We 
certainly agree that standards for successful reclamation should be 
consistent in the administrative sense; that is, not arbitrarily 
created or applied, and applied to all operators equally.
    But we disagree that such standards should be, as proposed here, 
``attainable.'' Standards for reclamation success must be based on 
premining conditions. It is possible that mining and reclamation 
technology are not capable of restoring the premining conditions of 
some specific geographic areas; hence, reclamation success could not be 
attained in those areas. If the standards for successful reclamation 
were attainable everywhere, then surface mining operations under SMCRA 
could be conducted everywhere. But on the contrary, SMCRA 102(c) states 
as one purpose for the Act to ``assure that surface mining operations 
are not conducted where reclamation as required by this Act is not 
feasible.'' Similarly, SMCRA 510(b)(2) requires that before a permit 
application is approved, the regulatory authority must find in writing 
that ``the applicant has demonstrated that reclamation as required by 
this Act and the [regulatory] program can be accomplished by the 
reclamation plan contained in the permit application.'' If the 
standards for successful reclamation under SMCRA were always 
``attainable,'' these two SMCRA requirements would be rendered 
pointless. We additionally note that this Montana provision, if 
approved, could provide a basis for Montana's approval of standards 
that are inconsistent with those required by SMCRA and the Federal 
regulations.
    Based on the above discussion, we approve proposed subparagraph MCA 
82-4-202(3)(e), except for the words ``and attainable.'' We do not 
approve the words ``and attainable.''
    D.3. MCA 82-4-203(30) Definition of ``Material damage.''
    Montana proposes to add a new definition, as follows:

    (30) ``Material damage'' means, with respect to protection of 
the hydrologic balance, degradation or reduction by coal mining and 
reclamation operations of the quality or quantity of water outside 
of the permit area in a manner or to an extent that land uses or 
beneficial uses of water are adversely affected, water quality 
standards are violated, or water rights are impacted. Violation of a 
water quality standard, whether or not an existing water use is 
affected, is material damage.

    We note that there is no such definition in Montana's rules. 
Neither is there a definition in SMCRA or in the Federal regulations. 
Because of the great variation nationwide, and even permit-to-permit, 
in geologic, hydrologic, climate, and weather systems, OSM has elected 
not to establish any fixed criteria to measure material damage except 
for compliance with water-quality standards and effluent limits (see 48 
FR 43973; September 26, 1983). This proposal is consistent with that 
position. We therefore find this proposal to be not inconsistent with 
SMCRA, and we approve it.
    D.4. MCA 82-4-203(47) Definition of ``Restore or restoration.''
    Montana proposes to add a new definition, as follows:

    (47) ``Restore'' or ``restoration'' means reestablishment after 
mining and reclamation of the land use that existed prior to mining 
or to higher or better uses.

    We note that the introduction to the ``definitions'' section 
provides: ``Definitions. Unless the context requires otherwise, in this 
part, the following definitions apply:''. We note further that there is 
no such definition in Montana's rules. Neither is there a definition in 
SMCRA or in the Federal regulations.
    We examined Montana's statute (MCA Title 82, Chapter 4, Part 2) to 
determine where these defined words are used. We did not observe any 
place where they are used in the sense defined here. We found several 
places in which the context requires the usual interpretation of 
``restore,'' meaning to return something to its original condition (MCA 
82-4-202(2)(d), 82-4-231(10)(k)(i)(C)(iv), 82-4-239, 82-4-243(1)(a)). 
Therefore we question the need to add this definition to the Montana 
program. However, anyplace where ``restore'' or ``restoration'' are 
used in the Montana statute as counterparts to SMCRA provisions, it is 
clear from context to mean ``return to original condition.'' Therefore 
we do not find this proposed definition to be inconsistent with SMCRA, 
and we approve it.

[[Page 8012]]

    D.5. MCA 82-4-203(50) Definition of ``Surface owner.''
    Montana proposed to revise this existing definition by deleting the 
phrase ``and whose principal place of residence is on the land'' from 
the defined category of persons holding legal or equitable title to the 
land surface. Therefore, Montana has revised this category to make it 
more inclusive, so that the Montana program will protect the interests 
of more people. Montana also proposed to add a new subparagraph (d) to 
provide that ``surface owner'' means the Federal land management agency 
when the United States government owns the surface. We agree that this 
is accurate, and will simplify permit applications for operators; it is 
also consistent with the permit application requirements and land use 
requirements of the Federal regulations. Therefore we find this 
proposal to be not inconsistent with SMCRA, and we approve it.
    D.6. MCA 82-4-203(55) Definition of ``Wildlife habitat enhancement 
feature.''
    Montana proposed to add a new definition, as follows:

    ``Wildlife habitat enhancement feature'' means a component of 
the reclaimed landscape, established in conjunction with land uses 
other than fish and wildlife habitat, for the benefit of wildlife 
species, including but not limited to tree and shrub plantings, food 
plots, wetland areas, water sources, rock outcrops, microtopography, 
or raptor perches.

    We examined Montana's statute (MCA Title 82, Chapter 4, Part 2) to 
determine where this phrase is used. We found it only at the related 
performance standard at MCA 82-4-232(9), where it seems it would be 
clear from context. Therefore we question the need to add this 
definition to the Montana program. However, we do not find it to be in 
conflict with SMCRA 515(b)(24) or 30 CFR 816.97, both dealing with the 
protection of fish, wildlife, and related environmental values. 
Therefore we find it to be not inconsistent with SMCRA, and we approve 
it.
    D.7. MCA 82-4-232(10) Pre-existing Facilities & Roads [SMCRA 
522(e)(4)].
    Montana proposed to add a new paragraph, MCA 82-4-232(10), to 
provide that ``facilities existing prior to mining, including but not 
limited to public roads, utility lines, railroads, or pipelines, may be 
replaced as part of the reclamation plan.''
    Of these facilities, only public roads are addressed by SMCRA (at 
522(e)(4)), which provides that public roads may be disturbed by mining 
operations (other than at mine road intersections with public roads) 
only after a public hearing and finding that the interests of the 
public and the landowners will be protected. Montana's proposal is not 
inconsistent with this Federal requirement. Indeed, Montana has a 
duplicate of the SMCRA 522(e)(4) requirement, at MCA 82-4-227(7)(d).
    The other types of premining facilities here would be addressed as 
right-of-entry questions under SMCRA 507(b)(1) and 510(b)(6). We find 
that Montana's proposal is not inconsistent with these requirements, 
and we approve the proposal.
    D.8. HB 373 Section 11 [not yet codified as submitted], Revision of 
Permits or Applications to Incorporate These Statutory Provisions 
[SMCRA 511].
    This proposed section would allow any existing permits, or 
applications for permits or permit revisions, to be revised to 
incorporate provisions of House Bill 373 (which includes most of the 
revisions proposed in this submittal). SMCRA does not address the 
revision of permits to incorporate newly approved regulatory 
provisions. But neither does it prohibit this; it appears that such 
revisions would be addressed as any other revisions under SMCRA 511. 
Montana's rules at ARM 17.24.404(1) address the effects of revisions 
upon applications already in the review process. We find that this 
proposal is not inconsistent with SMCRA, and we approve it.
    D.9. MCA 82-4-239(3) through (5), Reclamation by Department.
    One substantive and several minor revisions were proposed for this 
section, which was included in this submittal (SATS MT-024-FOR; 
Administrative Record No. MT-21-1), and was included in the proposed 
rule Federal Register notice for this amendment (68 FR 61175; October 
27, 2003). However, upon closer review of this statutory section, we 
find that it is not applicable to Montana's regulatory program under 
SMCRA Title V, but rather to Montana's Abandoned Mined Land (AML) 
program under SMCRA Title IV. Therefore we are taking no action on the 
proposed amendments to this statutory section. We will consider them in 
connection with a future proposed amendment to the Montana AML program.
    D.10. MCA 82-4-250 Operating permit revocation--permit transfer.
    Montana proposes to delete from this statutory section a clause 
that the section would terminate on October 1, 2005. With the proposed 
deletion, MCA 82-4-250 would not terminate, but would remain part of 
the Montana program until removed by legislation.
    OSM approved MCA 82-4-250 (including the termination clause) as 
being no less stringent than SMCRA (see 66 FR 58375; November 21, 2001; 
SATS MT-022-FOR). Since MCA 82-4-250 was consistent with SMCRA at that 
time, it remains consistent until or unless SMCRA is changed. Therefore 
we find that deletion of the termination clause does not affect the 
findings made by OSM in approving the entire MCA-82-4-250, and we 
approve the deletion.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. MT-21-06), and received three comment letters.
    a. We received a letter from Westmoreland Mining LLC (``WML''), 
which operates three mines in Montana (Administrative Record No. MT-21-
09). WML commented that one provision in the Montana statute had 
remained unchanged since 1973 (thus predating SMCRA by several years). 
That provision required that mined land be reclaimed to a postmining 
land use of native rangeland and wildlife habitat (with any exceptions 
requiring a cumbersome review process). WML further stated that this 
statutory provision has increasingly been applied as a requirement to 
restore ecological function. The result, WML states, is that 
reclamation success has been impossible to define, hence subject to 
shifting and varying interpretation by individual staff members, and a 
lack of objective evaluation of reclamation success for release of bond 
(and therefore, there have been very few final bond releases).
    WML goes on to state that this proposed program amendment has been 
developed through a cooperative effort by the Montana Coal Council, the 
Department, and OSM. The proposed amendment ``is a clear statement of 
legislative intent that the `standard for successful reclamation of 
lands mined for coal is the reestablishment of sustainable land use 
comparable with premining conditions or higher or better uses.' '' WML 
comments that approval by OSM will enable Montana to proceed with bond 
releases based on standards that are objective, attainable, and 
consistent with OSM requirements. WML urges timely approval of the 
proposed amendment.
    In response, we note that we have approved the proposed deletion of 
existing MCA 82-4-233(1)(a), which was the provision interpreted as 
requiring a postmining land use of grazing and fish & wildlife habitat. 
Further, we are approving proposed new MCA 82-4-232(7) and (8), which

[[Page 8013]]

require restoration of the land to a condition capable of supporting 
the premining uses, or higher or better uses. See Findings B. and 
C.14.b.
    Regarding the statements of legislative intent at proposed MCA 82-
4-202(3)(d) and (e), as discussed in more detail above, we disagree 
with the Montana legislature that the reestablishment of a sustainable 
land use is the only standard for reclamation success. We note that for 
final bond release, SMCRA 519(c)(3) requires that ``all reclamation 
requirements of this Act are met.'' This includes such requirements as 
elimination of highwalls and restoration of AOC, protection of the 
hydrologic balance, and protection and enhancement of fish & wildlife 
habitat and related environmental values. See Finding D.2. above. We 
also note that SMCRA provides other protections that are applicable 
earlier in the operation, but not at final bond release, such as 
contemporaneous reclamation, control of blasting, and protection of 
surface owner rights. Violations of these requirements delay, hinder, 
or reduce the success of mine reclamation.
    We also disagree with the Montana legislature that whatever 
standards might be applied to measure reclamation success must be 
across-the-board ``attainable.'' As noted in Finding D.2. above, mining 
and reclamation technology (or the economic aspects of the operation) 
may not be able to adequately restore premining conditions (as required 
by SMCRA) in all situations. In those situations, the standards for 
success would not be attainable with current technology and/or current 
investment and coal prices.
    b. We received a letter from the Montana Coal Council (``MCC''), 
which represents the coal industry before the Montana legislature 
(Administrative Record No. MT-21-08). MCC commented that the Montana 
program statute had allowed reclamation standards to be set 
subjectively, and that in application they had changed over time, 
providing a ``moving target.'' MCC believes that this proposed 
amendment will allow the coal mining industry to return the land to its 
premining condition, and allow input from the entity who will own and 
use the land in the future. MCC urges approval of the proposed 
amendment.
    In response, we note that we cannot comment here on how statutory 
or regulatory requirements are applied. The application of requirements 
to specific cases, including what standards are applicable to which 
parts of which mines over time, is subject to administrative and 
judicial review as part of the Montana program, and possibly under 
other parts of Montana law as well. In its regular oversight of State 
regulatory programs, OSM reviews the implementation of regulatory 
programs; OSM seeks input from the public (including the industry) in 
determining what parts of program implementation to review. Here we can 
comment only on the establishment of the statutory and regulatory 
requirements. We note that when we initially approved the Montana 
program under SMCRA in 1980, OSM determined that the Montana program 
met SMCRA requirements. And in this action, we are also determining 
whether the proposed amendment is in accordance with SMCRA.
    We interpret the comment about obtaining input from the future land 
possessor and user as applying to proposed MCA 82-4-232(8)(b). We note 
that this is a valuable addition to the program, and we commend the 
industry and the legislature for this service to Montana's citizens.
    c. Finally, we received a lengthy and complex comment letter from 
the Northern Plains Resource Council (``NPRC'') (Administrative Record 
No. MT-21-07), which describes itself on its Web site as follows:

    ``Northern Plains Resource Council organizes Montana citizens to 
protect our water quality, family farms and ranches, and unique 
quality of life. We are a grassroots conservation and family 
agriculture group that gets the job done--protecting the Northern 
Plains and the people who make their home here.''

    The letter included some general comments and many section-by-
section comments.
    In general comments, NPRC noted that this proposal marks a shift in 
the Montana program, from the required postmining land use of 
combination grazing/wildlife (with limited alternatives) to a focus on 
process, where any operator going through the process can get bond 
release. NPRC sees this in the new legislative intent at proposed MCA 
82-4-202(2)(c)-(e). NPRC also comments that the Montana legislature has 
said it is not practicable to reclaim. NPRC noted that other Western 
states find it practicable to reclaim using native grasses, forbs, 
shrubs, and trees to attain a climax vegetation; this goal is sought 
because if native species can grow as well postmining as they did 
premining, then there is a stable, self-regenerating landscape that can 
be used in the future for any use that was foreseeable prior to mining 
(implying that under the proposed amendment, some of those potential 
future land uses would be lost). Further, NPRC comments that the broad 
array of now-available postmining land uses are ``pie-in-the-sky,'' and 
are poorly delineated.
    In response, we agree that Montana in this proposal would eliminate 
the grazing/wildlife preference. But it is being replaced with the 
SMCRA system of comparing premining and proposed postmining land uses 
(which is the system that the other Western states, referred to 
positively by NPRC, are using). Regarding alternative postmining land 
uses, we note that under the proposal any postmining uses different 
from the premining use must: have a likelihood to be achieved; not 
present any hazard to public health or safety or any threat of water 
diminution or pollution; not be impractical or unreasonable; be 
consistent with applicable land use policies or plans; not involve 
unreasonable delay in implementation; and not cause or contribute to 
violation of federal, state, or local law. See proposed MCA 82-4-232(8) 
and Finding B above. SMCRA relies in part on public comment on permit 
applications including land use changes. We also note that under the 
proposal (see proposed MCA 82-4-203 (20) and (28)), ``fish and wildlife 
habitat'' can include land only partially managed for protection or 
management of wildlife species. Hence, unless premining grazing land or 
pastureland are managed to exclude wildlife, wildlife habitat is 
probably a joint use, and must be considered in postmining planting 
plans and revegetation success standards.
    Regarding native species, we note that under this proposal (see 
proposed MCA 82-4-233(1)(b)), just as under SMCRA 515(b)(19), 
introduced species may be used only when desirable and necessary.
    With regard to NPRC's comment on legislative intent and proposed 
MCA 82-4-202(2)(c)-(e), including whether it is practicable to reclaim, 
we note that we agree in part with Montana and in part with NPRC. We 
agree with Montana that surface mining operations are a radical 
disruption of the physical environment (soils, geology, premining 
vegetation) that cannot be totally undone; postmining overburden is not 
undisturbed geologic strata, reconstructed soils are not undisturbed 
soils, and exact replacement of the premining vegetation community is 
not possible). But as noted at Finding D.2. above, SMCRA requires, in 
addition to restoring or enhancing land productivity, other standards 
for successful reclamation, including highwall elimination and 
restoration of AOC, protection and enhancement of fish & wildlife 
habitat, control of erosion

[[Page 8014]]

and other pollution of surface waters and ground waters, 
contemporaneous reclamation, and others. These provisions require 
amelioration of the environmental disruption. But as we noted above, we 
also agree with NPRC that standards for determining reclamation success 
are not always attainable, and even where attainable they are not 
always attained; bond release is not automatic.
    As a further general comment, the NPRC letter closed with a summary 
that this proposal is less protective than the Federal requirements, 
especially regarding AOC, alternate land uses, protection of the 
hydrologic balance, and not requiring native species. Further, NPRC 
thinks that the legislature was unduly influenced by a few mines, 
without much thought to how these amendments would change the larger 
environment of eastern Montana as more areas are mined. We reply that 
SMCRA counts on citizen review and awareness to ensure that the 
regulatory programs are properly implemented. We also note that OSM 
counts on input from the public in choosing which areas to review in 
our regular oversight of State programs; we encourage NPRC to 
participate in this process. We thank NPRC for its efforts in reviewing 
this submittal.
    Specific NPRC comments: regarding the proposed definition of AOC 
(proposed MCA 82-4-203(4)), NPRC commented that subparagraph (4)(a) is 
too broad, and would allow rolling or hilly terrain to be flattened. 
Also, NPRC comments that under the proposed definition a hill might be 
moved 500 feet from its premining location, and questions whether that 
500 foot shift should have been approved in the reclamation plan, 
rather than happening without planning during the last stage of 
backfilling and grading.
    In response, we disagree that this proposal, like the guidance 
provided by OSM in Directive INE-26, would allow hilly or rolling 
terrain to be reclaimed as virtually flat. But we do agree that under 
both this proposal and OSM's Directive, a hill might be restored in the 
postmining landscape 500 feet from its premining location. However, we 
note that under both this proposed amendment (at proposed MCA 82-4-
222(1)(o)) and under OSM's Directive, the proposed postmining location 
(500 feet removed from the premining location) would have to be 
proposed in the permit application, and approved before mining begins. 
An operator that actually reconstructed the hill (during backfilling 
and grading) shifted 500 feet from the location approved in the permit 
would be in violation of the permit and could not obtain Phase I bond 
release.
    NPRC further comments on proposed subparagraph (4)(c) (addressing 
postmining drainage basins), noting that the discretion provided is too 
broad, and is coupled with a gradual erosion of State supervision over 
several years (under the old definition) of the location and design of 
ephemeral streams, with the result that the actual locations are 
decided by the equipment operators. In response, as noted above, we 
cannot here address field practice, only the statutes and rules. As 
noted immediately above, we observe that proposed drainage basins (like 
hills) must be shown in permit applications, as part of the postmining 
topography. Actual field construction by the equipment operator might 
vary a little bit, but not significantly, from the approved postmining 
topography. If such field construction does significantly vary from 
that approved in the permit, this would be a violation of the permit, 
and the operator could not obtain Phase I bond release.
    NPRC further comments in regard to proposed subparagraph (4)(c) 
that this proposed provision is one instance of a subject that occurs 
throughout the entire proposed amendment. Here it is expressed in the 
control of adverse effects being required only to the extent 
appropriate to the postmining land use. NPRC comments that SMCRA 
515(b)(10)(B)(i) requires erosion control using best available 
technology. Further, the proposed amendment (unlike SMCRA) ties 
protection of the hydrologic balance to the postmining land use. NPRC 
comments that in that case, if the postmining land use is industrial, 
little or no protection might be applied to the hydrologic balance. 
Further, NPRC notes, under such logic there would be many different 
standards for protecting the hydrologic balance, depending on the 
postmining land use. NPRC comments that the concept of `` `hydrologic 
balance * * * protected as necessary to support post mining land uses' 
'' is inconsistent with SMCRA, and does not belong either in this 
definition or elsewhere in the Montana program.
    In response, we note that we largely agree with NPRC on these 
comments. We agree that limiting resource protection to that needed for 
the postmining land use is a recurrent theme throughout this submittal, 
and we have attempted to address it in each case. We also noted that 
Montana has at several points drafted proposed definitions to impose 
performance standards (or limitations of performance standards). We 
believe that we addressed these instances in the Findings above, and 
will do so again where applicable in response to these comments. 
Finally, we agree that the proposal, in limiting hydrologic balance 
protection to the postmining land use, is not in accordance with SMCRA. 
As noted at Finding C.1.d. above, we have not approved this language. 
However, we disagree that limiting erosion control to that needed for 
the postmining land use would be inconsistent with SMCRA 
515(b)(10)(B)(i). Erosion control using best available technology is 
required in all cases, regardless of any particular proposed postmining 
topography. See MCA 82-4-231(10)(k)(ii)(A).
    NPRC comments that the proposed definition at MCA 82-4-203(17) of 
``drainageway'' sounds very industrial, and that the Federal term 
``ephemeral stream'' is more accurate. In response, we note that 
Montana is applying the proposed definition not just to the premining 
condition (where ``stream'' would indeed be more appropriate) but also 
to postmining constructed features. We did not find that it was defined 
or used in a way inconsistent with SMCRA; indeed, we only found it used 
in the definition of ``approximate original contour.''
    NPRC comments that the proposed definition at MCA 82-4-203(24) of 
``hydrologic balance'' is another instance of limiting the resource to 
be protected according to postmining land uses. We agree with this 
comment. As noted at Finding C.2. above, we find that this definition 
imposes a limit on the resource to be protected that is not in 
accordance with SMCRA; we did not approve this language.
    At proposed MCA 82-4-203(22) (the proposed definition of ``grazing 
land''), NPRC questioned whether the term ``indigenous'' was in 
accordance with SMCRA, noting that the term can mean ``native,'' but 
may also have broader meanings. We respond that ``indigenous'' is also 
used in the Federal definition of ``grazing land'' (at 30 CFR 701.5). 
Thus Montana's proposed definition is consistent with the Federal 
definition. It must be kept in mind, though (as noted above), that both 
SMCRA and the Montana program require native species unless the land 
use cannot be achieved with them.
    NPRC commented on the proposed definition of ``reclamation'' at MCA 
82-4-203(42). NPRC commented that ``here we see reclamation reduced to 
a process without a restoration goal. The goal of reclamation in the 
federal regs is to ``restore'' mined land to a postmining land use 
approved by [those regs].'' We note that the only change proposed here 
was to add that the work is under a plan approved by the Department 
``to make

[[Page 8015]]

those lands capable of supporting the uses those lands were capable of 
supporting prior to any mining or to higher or better uses.'' So we 
understand NPRC to be saying that by adding the clause stating that the 
goal is land capability, Montana has removed the restoration goal; and 
that goal in the Federal regulations is to actually achieve a 
postmining land use rather than merely the capability. We note that the 
Federal definition of ``reclamation'' at 30 CFR 701.5 is not used 
within the Federal program to determine the applicability of any 
requirement or define the success of reclamation. Both SMCRA 515(b)(2) 
and 30 CFR 816/817.133(a) require that mined land be restored to a 
condition capable of supporting the premining land use or of supporting 
higher or better land uses than the premining use. Generally, that 
capability is indicated by land stability, hydrologic balance 
protection, erosion control, revegetation success, wildlife protection 
and enhancement, etc. Despite OSM's regulatory definition of 
``reclamation,'' OSM and the courts have held that the operator's 
responsibility is to restore the land's capability for the postmining 
land use, not to actually implement that postmining land use (with the 
exception of prime farmland and cropland). See 48 FR 39897; September 
1, 1983. Thus, Montana's proposal is consistent with SMCRA and the 
Federal regulations.
    NPRC commented that the proposed new definition of ``restore or 
restoration'' (MCA 82-4-203(47)) has been narrowed from SMCRA 
515(b)(2), which includes ``capability'' for various uses; and that 
``capability'' for various uses should be discussed in the permitting 
process. We note, as discussed in Finding D.4. above, that we do not 
see a need for this definition. We also note that this definition is 
essentially the same as the Federal definition of ``reclamation'' at 30 
CFR 701.5, commented upon directly above. We further note that the 
Montana program requires discussion of land capabilities during the 
permitting process, at ARM 17.24.304(12); this requirement is not 
dependent upon this statutory definition of ``restoration.''
    NPRC commented on the proposed shortening of time to review permit 
revisions, at MCA 82-4-221(3); NPRC has reservations that there will be 
enough staff, or funding for staff, to make the shorter time work. As 
noted in Finding C.3. above, SMCRA does not require a specific time 
allowance. We note that the unaltered portion of this Montana provision 
provides that the Department may not approve a revision application 
unless it finds that reclamation in accordance with the Montana program 
would be accomplished. The proposed amendment does not require that 
revision applications be automatically approved at the end of the time 
allowance.
    NPRC commented on the requirements for the determination of 
Probable Hydrologic Consequences (PHC) at MCA 82-4-222(1)(m)(iii), 
noting that the term ``beneficial uses'' is employed whereas the 
Federal regulations at 30 CFR 780.21(f)(3)(iii) employ the term 
``legitimate uses.'' NPRC is concerned that this language again 
indicates a shift from looking at the resource to looking at the 
postmining use. We believe that Montana has chosen the term 
``beneficial use'' because that term is used elsewhere in Montana law; 
for example:

    MCA 85-1-101. Policy considerations. It is hereby declared as 
follows:
    (1) The general welfare of the people of Montana, in view of the 
state's population growth and expanding economy, requires that water 
resources of the state be put to optimum beneficial use and not 
wasted.
    (2) The public policy of the state is to promote the 
conservation, development, and beneficial use of the state's water 
resources to secure maximum economic and social prosperity for its 
citizens.

    Some other states use the term ``legitimate use'' for the same 
purpose. We believe that State water authorities, and State regulatory 
authorities under SMCRA, would protect premining water uses and 
potential postmining water uses (beyond merely the use for the 
designated postmining land use) under either term, ``legitimate use'' 
or ``beneficial use.'' NPRC also commented that this new set of 
requirements for the PHC does not include a counterpart for the Federal 
provision at 30 CFR 780.21(e), which requires information on 
alternative water sources (if the PHC indicates that water diminution 
or contamination may occur). We respond that this proposal is a non-
exclusive list; the existing statute also does not provide for a 
counterpart to the cited Federal provision. However, the requirement 
still exists in Montana's regulations, at ARM 17.24.314(4).
    NPRC made a similar comment about the term ``beneficial use'' at 
MCA 82-4-222(1)(m)(iv)(E). Our response above applies here; we also 
note that the corresponding Federal provision at 30 CFR 
780.21(f)(3)(iv)(E) allows, but does not require, regulatory 
authorities to require information on additional impacts.
    NPRC has the same concern about the hydrologic monitoring plan at 
subparagraph (1)(n), that it is limited to protecting water use for the 
designated postmining land use, not protecting the hydrologic balance 
in general. We note that Montana's wording is equivalent to that used 
in 30 CFR 780.21(i) and (j).
    NPRC commented relevant to proposed MCA 82-4-222 and 82-4-231 that 
there does not seem to be a requirement for inclusion in the permit 
application for consultation with the landowner about the postmining 
land use (other than seeing a newspaper notice, finding and reviewing 
the permit application, and filing comments as any member of the public 
can do). We would agree with NPRC that the newspaper notice process 
does not meet Federal requirements. And we also do not find in the 
existing Montana program a general requirement for landowner comments 
on the proposed postmining land use. However, we note that up until 
this time, when Montana is proposing to delete existing MCA 82-4-231(1) 
and 82-3-232(7) and (8), the required postmining land use for all mined 
lands has been ``grazing land for livestock and wildlife, fish and 
wildlife habitat, or both'' (ARM 17.24.762). Apparently because the 
postmining choices were so limited, Montana and OSM decided that 
landowner comment was not necessary. Any alternate postmining land use 
had to be approved as ``alternate reclamation.'' ARM 17.24.824(4) 
requires consultation with the landowner or land management agency for 
such alternate uses. We note that under this proposed amendment, at 
proposed new MCA 82-4-232(7) and (8), if an alternate postmining land 
use is proposed, landowner (or agency) concurrence is required. We note 
that Montana will have to promulgate new rules to implement these new 
statutory sections; OSM will ensure that the implementing rules contain 
counterparts to 30 CFR 780.23(b)/784.15(b).
    NPRC commented on proposed MCA 82-4-231(10)(k), noting that 
hydrologic balance protection was being limited to protecting 
postmining land uses. We agree; as noted in Finding C.6. above, we are 
not approving the language proposed for addition in the introductory 
subparagraph. NPRC further commented on proposed subparagraph 
(10)(k)(vii), saying that there is problem with definitions of 
intermittent stream and perennial stream. We wonder if NPRC was 
commenting on an earlier version of the legislation; in the official 
administrative record document provided to OSM, ``intermittent stream'' 
and ``perennial stream'' are defined, and there are not definitions of 
``drainageways'' other

[[Page 8016]]

than ephemeral drainageways. We also note that Montana has long had 
regulatory definitions of ``intermittent stream'' and ``perennial 
stream'' at ARM 17.24.301. NPRC commented further on proposed 
subparagraph (10)(k)(viii), saying that again, protection of the 
hydrologic balance is being limited to that needed by the postmining 
land use. We agree; as discussed in Finding C.7. above, we are not 
approving the proposed additional language in this subparagraph.
    NPRC commented on proposed MCA 82-4-232(1), noting that (1)(a)(i) 
is much too broad; total discretion would be given to the equipment 
operator or his boss. Also, the Federal regulations (30 CFR 816.102) 
allow for only specific variances from AOC under specific conditions, 
and those Federal limitations are not contained in the proposal. We 
might agree regarding 30 CFR 816.102; however, OSM's Directive INE-26, 
as cited in Finding C.9. above, instructs us to allow this much 
flexibility. Since the concept of AOC is this flexible, Montana's 
proposal need not be considered a variance from AOC. Additionally, we 
note that this provision states that ``the operator may propose and the 
Department may approve * * *'' such topography. We interpret this to 
mean postmining topography proposed and approved in the permit 
application or a revision application. Hence, these matters could not 
be determined by an equipment operator. NPRC gave a further comment on 
proposed (1)(a)(ii); however, the comment is confusing because it seems 
to address an AOC variance for higher or better land uses in steep 
slope mining, but the cited provision (``MCA 82-4-232(1)(a)(ii)'') is 
only a general performance standard for backfilling and grading. Again, 
we wonder if NPRC was reviewing an earlier version of the legislation.
    NPRC had three comments on proposed new MCA 82-4-232(8). First, 
NPRC noted that this section would be better located in the permit 
application section, expressing concern that the landowner might not 
want this, and that the operator might propose this at the last moment 
before bond release. In response, we note that the corresponding SMCRA 
provision (515(b)(2)) is also in the performance standard section. 
However, we agree with NPRC that the land use must be approved in the 
permit application, or possibly changed in a subsequent permit 
revision. [Relevant here and to the last response, we note that permit 
revisions that change the postmining land use or postmining drainage 
pattern are considered ``major revisions'' that must receive public 
notice under ARM 17.24.301 and 17.24.409.]
    Second, NPRC suggested that the expanded definition of 
``landowner'' be moved to the definitions section. We note that 
localizing the expanded definition here provides the additional persons 
concurrence rights for alternative postmining land uses, but might not 
provide them with other rights (for example, bond release 
notifications). We also respond that SMCRA and the Federal regulations 
recognize the legal and equitable owners of record of the surface, the 
holders of record of any leasehold interest, and purchasers of record 
under a real estate contract (see 30 CFR 778.13(a)). These same parties 
are listed in the Montana program at ARM 17.24.303(3). To the extent 
that the parties added here (``a person who has sold the surface estate 
to the operator with an option to repurchase the surface estate after 
mining and reclamation are complete'') are included under those 
parties, they receive SMCRA rights and protections; to the extent that 
these ``option holders'' are not included in the Federal regulations, 
this proposal is a right and protection that goes beyond SMCRA 
minimums, and we cannot require Montana to apply the expanded 
definition to other parts of the program.
    Third, NPRC stated that these standards are less stringent than 
those at SMCRA ``515(3)(B)(i) through (vii) [sic].'' We reply that the 
provisions proposed here are near duplicates of SMCRA 515(b)(2) and 30 
CFR 816/817.133. The SMCRA provisions cited by NPRC are apparently 
those of SMCRA 515(c)(3)(B)(i)-(vii), and refer to the requirements for 
alternative postmining land uses to be approved with AOC variances for 
mountaintop removal operations; therefore they are not applicable here.
    NPRC comments on proposed MCA 82-4-232(9) that there is a concern 
that this section is an attempt to evade the need to plant forbs, 
trees, and shrubs, and asks if this meets the standards for protecting 
threatened and endangered species. We reply that this provision 
requires the reclamation plan to incorporate enhancement features; 
these are defined in the proposal at MCA 82-4-203(55) as including tree 
and shrub plantings, etc. So we do not agree that incorporating such 
enhancements might lead to grass monocultures. We further reply that 
this proposal, like SMCRA itself, does not specifically address the 
required protections for threatened and endangered species; in both 
cases, these requirements are in the regulations (for Montana, at ARM 
17.24.312 and 17.24.751). NPRC further asks whether under this 
proposal, land that premining had dual uses, could one prior use be 
dropped postmining? We assume that NPRC is addressing the usual Montana 
situation where premining use is both grazing and wildlife habitat. We 
reply that under both the definition and under this section, it is 
clear that wildlife habitat enhancement features do not make up a 
postmining use of wildlife habitat, and that enhancements are different 
than habitat land use and are applied to other land uses. In the 
premining grazing/wildlife scenario, postmining the land use would also 
have to be either: (1) A dual use (all of the area could be reclaimed 
to the dual use, or part could be reclaimed to wildlife and the other 
part to grazing, which would have to have enhancements); or (2) a 
higher or better use, which probably would also require wildlife 
enhancement features.
    NPRC also commented on proposed MCA 82-4-233, expressing concern 
that in promulgating implementing rules, Montana will allow the use of 
naturalized introduced species as a substitute for native species. We 
reply, as noted in a response to a comment above, that under the 
language in this proposal, introduced species are allowed only when 
``desirable and necessary'' to achieve the postmining land use. NPRC 
further comments that this proposal only requires control of erosion to 
the extent required by the postmining land use. We agree; as discussed 
in Finding C.14.a. above, OSM's regulations pertaining to revegetation 
success standards at 30 CFR 816.116 require the postmining revegetation 
to be equivalent not to the premining vegetation, but rather equivalent 
to the natural vegetation of unmined lands of that same land use in the 
vicinity of the mine. In essence, the ``reducing siltation to normal 
background levels'' mentioned in Federal regulation preambles (cited at 
Finding C.16.b.), means normal background levels for that postmining 
land use, not background levels of that particular parcel as it was 
prior to mining. Therefore we are approving the proposal. NPRC further 
commented on the encouragement at proposed subparagraph (3)(b) that 
carrying capacity of pastureland and grazing land be ``enhanced when 
practicable.'' NPRC is concerned that this might re-initiate failed old 
efforts using introduced species, fertilizer, and irrigation. We note 
that the use of introduced species, irrigation, and fertilizer is what 
distinguishes pastureland from grazing land; they would be appropriate 
for the

[[Page 8017]]

first, but we agree they may not be used for the second (grazing land).
    NPRC commented on proposed MCA 82-4-235, inquiring how certain 
success standards fit in with the 10-year bond release period, and how 
suitable plants and erosion control are determined. We reply that SMCRA 
also has no such detail; compare SMCRA 515(b)(19) and (20). Such detail 
is usually in the regulations. Many of these questions are addressed in 
the Montana regulations at ARM 17.24.711-17.24.733. Generally, the 10-
year period (and we note that this is a minimum, not a maximum) starts 
when the operator completes planting and any supplemental watering or 
fertilizer needed to get the revegetation going well. If there is a 
subsequent failure or decline of the revegetation, and the operator 
must repeat some of that work, the time clock starts over again. There 
are some exceptions for replanting trees and shrubs; also for some 
cultivation work on pastureland, which is normal husbandry practice for 
that land use. NPRC further expressed a concern that the land uses 
described in subparagraph (1)(c) [wildlife habitat, forestry, dispersed 
recreation, using trees and shrubs] will never be used as postmining 
land uses, even if those uses existed premining. We reply that under 
this proposal, mined land must be restored to conditions capable of 
supporting those premining land uses, meaning those land uses would 
have to be selected as postmining land uses, unless a ``higher or 
better'' use can be approved.

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-21-03). We received no comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    None of the revisions that Montana proposed to make in this 
amendment pertains to air or water quality standards. Under 30 CFR 
732.17(h)(11)(i), OSM requested comments on the amendment from EPA 
(Administrative Record No. MT-21-04). EPA did not respond to our 
request.

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. We requested comments on Montana's amendment 
(Administrative Record No. MT-21-03). SHPO responded that it had no 
comments (Administrative Record No. MT-21-05). No response was received 
from the ACHP.

V. OSM's Decision

    Based on the above findings, we approve, with the following 
exceptions, Montana's July 29, 2003, amendment.
    We do not approve the following provisions or parts of provisions.
    1. As discussed in Finding No. D.2., we do not approve MCA 82-4-
202(3)(d), concerning legislative policy on the standard for successful 
reclamation.
    2. As discussed in Finding No. D.2., MCA 82-4-202(3)(e), concerning 
legislative policy on standards for successful reclamation, we do not 
approve the words ``and attainable.''
    3. As discussed in Finding No. C.1., MCA 82-4-203(4)(c), concerning 
the definition of approximate original contour, we do not approve the 
phrase ``as necessary to support postmining land uses within the area 
affected and the adjacent area'' in the clause regarding hydrologic 
balance protection.
    4. As discussed in Finding No. C.2., MCA 82-4-203(24), concerning 
the definition of hydrologic balance, we do not approve the final 
phrase ``as they relate to uses of land and water within the area 
affected by mining and the adjacent area.''
    5. As discussed in Finding No. C.6., MCA 82-4-231(10)(k), 
concerning protection of the hydrologic balance, we do not approve the 
added phrase ``as necessary to support postmining land uses and to 
prevent material damage to the hydrologic balance in the adjacent 
area.''
    6. As discussed in Finding No. C.7., MCA 82-4-231(10)(k)(viii), 
concerning protection of the hydrologic balance, we do not approve the 
added phrase ``to protect the hydrologic balance as necessary to 
support postmining land uses within the area affected and to prevent 
material damage to the hydrologic balance in adjacent areas.''
    7. As discussed in Finding No. C.16.c., we do not approve MCA 82-4-
235(1)(d), concerning diversity in the determination of successful 
revegetation.
    8. As discussed in Finding No. C.16.d., we do not approve in MCA 
82-4-235(1)(g) the phrase ``are introduced species that have become 
naturalized.''
    As discussed in Finding No. D.1., we are taking no action on MCA 
82-4-202(1), as the adequacy of this legislation under the Montana 
Constitution is beyond the power and scope of our review.
    As discussed in Finding No. D.9., we are taking no action on MCA 
82-4-239 because it does not apply to Montana's regulatory program 
under SMCRA.
    As discussed in Finding C.14.a., we are approving MCA 82-4-233(1) 
with the proviso that the exemption for ``and other constructed 
features'' not be applied until Montana promulgates implementing rules 
to limit the exemption and OSM has approved those rules.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 926, which codify decisions concerning the Montana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates 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. Additionally, we have been informed that Montana is in 
the process of developing implementing regulations for these statutory 
revisions; making this rule effective immediately will allow Montana to 
focus that work on the correct provisions. SMCRA requires consistency 
of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. For most of the State 
provisions addressed, this determination is based on the analysis 
performed for the counterpart Federal regulation. For the remaining 
State provisions, this determination is based on the fact that the rule 
will not have an impact on the use or value of private property and so, 
does not result in significant costs to the government.

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

[[Page 8018]]

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. 
Additionally, we note that we provided the proposed amendment to the 
Crow Tribe for comment, but we did not receive any comments from it.

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 largely 
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. For 
those State provisions submitted that are not based on counterpart 
Federal regulations, we note that the coal mining industry in Montana 
consists of a few large companies, and that the industry commenters 
urged approval of the submittal.

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. For the reasons stated 
above, 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.

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 was made at the State's initiative, and was not the result of 
any action mandated by us.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 23, 2004.
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:

    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

* * * * *

[[Page 8019]]



----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
July 29, 2003........................  February 16, 2005......  MCA 82-4-202(3)(c); (3)(e) except for the phrase
                                                                 ``and attainable''; 82-4-203(2); 82-4-203(4)
                                                                 except at (4)(c) the phrase ``as necessary to
                                                                 support postmining land uses within the area
                                                                 affected and the adjacent area''; 82-4-203(13),
                                                                 (16), (17), (20) through (23); (24) except the
                                                                 phrase ``as they relate to uses of land and
                                                                 water within the area affected by mining and
                                                                 the adjacent area''; (26), (27), (28), (30),
                                                                 (37), (38), (42) through (44), (46), (47),
                                                                 (50), (55); 82-4-221(3); 82-4-222(1)(m)-(p); 82-
                                                                 4-231(10)(k) except the phrase ``as necessary
                                                                 to support postmining land uses and to prevent
                                                                 material damage to the hydrologic balance in
                                                                 the adjacent area''; 82-4- 231(10)(k)(vii);
                                                                 (viii) except the phrase ``to protect the
                                                                 hydrologic balance as necessary to support
                                                                 postmining land uses within the area affected
                                                                 and to prevent material damage to the
                                                                 hydrologic balance in adjacent areas''; 82-4-
                                                                 232(1) through (10); 82-4-233; 82-4-234; 82-4-
                                                                 235(1)-(1)(c); 82-4-235(1)(e)-(f); 82-4-
                                                                 235(1)(g) except the phrase ``are introduced
                                                                 species that have become naturalized''; 82-4-
                                                                 236; HB 373 Section 11; 82-4-252(2); HB 684
                                                                 repeal of Sec. 5, Chapter 522, Laws of 2001;
                                                                 also all editorial and codification changes.
                                                                We are taking no action on: MCA 82-4-202(1); 82-
                                                                 4-239.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 05-2905 Filed 2-15-05; 8:45 am]
BILLING CODE 4310-05-P