[Federal Register Volume 70, Number 228 (Tuesday, November 29, 2005)]
[Proposed Rules]
[Pages 71428-71441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23396]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[MT-025-FOR]


Montana Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We are announcing receipt of a proposed amendment to the 
Montana regulatory program (hereinafter, the ``Montana program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). Montana proposes revisions to, additions of, and deletions of 
rules about: Definitions; permit application requirements; application 
processing and public participation; application review, findings, and 
issuance; permit conditions; permit renewal; performance standards; 
prospecting permits and notices of intent; bonding and insurance; 
protection of parks and historic sites; lands where mining is 
prohibited; inspection and enforcement; civil penalties; small operator 
assistance program (SOAP); restrictions on employee financial 
interests; blasters license; and revision of permits.
    Montana intends to revise its program to be consistent with the 
corresponding Federal regulations and SMCRA, and to clarify 
ambiguities.
    This document gives the times and locations that the Montana 
program and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we

[[Page 71429]]

will follow for the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
m.s.t. December 29, 2005. If requested, we will hold a public hearing 
on the amendment on December 27, 2005. We will accept requests to speak 
until 4 p.m., m.s.t. on December 14, 2005.

ADDRESSES: You may submit comments, identified by ``MT-025-FOR,'' by 
any of the following methods:
     E-mail: [email protected]. Include ``MT-025-FOR'' in the 
subject line of the message.
     Mail, Hand Delivery/Courier: Richard Buckley, Acting 
Director, Casper Field Office, Office of Surface Mining Reclamation and 
Enforcement, Federal Building, 150 East B Street, Room 1018, Casper, WY 
82601-1018, (307) 261-6550.
     Fax: (307) 261-6552.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and the identifier ``MT-025-FOR.'' For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: Access to the docket, to review copies of the Montana 
program, this amendment, a listing of any scheduled public hearings, 
and all written comments received in response to this document, may be 
obtained at the addresses listed below during normal business hours, 
Monday through Friday, excluding holidays. You may receive one free 
copy of the amendment by contacting Office of Surface Mining 
Reclamation and Enforcement (OSM) Casper Field Office. In addition, you 
may review a copy of the amendment during regular business hours at the 
following locations:
    Richard Buckley, Acting Director, Casper Field Office, Office of 
Surface Mining Reclamation and Enforcement, Federal Building, 150 East 
B Street, Room 1018, Casper, WY 82601-1018, (307) 261-6550, 
[email protected].
    Neil Harrington, Chief, Industrial and Energy Minerals Bureau, 
Montana Department of Environmental Quality, P.O. Box 200901, Helena, 
MT 59620-0901, (406) 444-2544, [email protected].

FOR FURTHER INFORMATION CONTACT: Richard Buckley, Telephone: (307) 261-
6550. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determination

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 of the Montana program 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. Description of the Proposed Amendment

    By letter dated August 29, 2005, Montana sent us a proposed 
amendment to its program (MT-025-FOR, Administrative Record No. MT-22-
1) under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment in 
response to legislative revisions to its statutes, to the required 
program amendments at 30 CFR 926.16(e)(1), (k), (l), and (m), and to 
include the changes made at its own initiative. The full text of the 
program amendment is available for you to read at the locations listed 
above under ADDRESSES.
    The provisions of the Administrative Rules of Montana (ARM) that 
Montana proposes to revise, delete, and/or add are: ARM 17.24.301, 
definitions; 17.24.302, permit application format; 17.24.303, 
application requirements for legal, financial, and compliance 
information; 17.24.306, application requirements for baseline 
environmental information; 17.24.305, permit application map 
requirements; 17.24.306, prime farmland investigation; 17.24.308, 
operations plan; 17.24.312, fish and wildlife plan; 17.24.313, 
reclamation plan; 17.24.315, plans for ponds and embankments; 
17.24.321, transportation facilities plan; 17.24.322, geologic 
information and coal conservation; 17.24.323, grazing plan; 17.24.324, 
prime farmland special application requirements; 17.24.401, application 
filing and notice; 17.24.404, application review; 17.24.405, findings 
and decision; 17.24.412, extension of time to commence mining; 
17.24.413, permit conditions; 17.24.416, permit renewal; 17.24.427, 
change of contractor; 17.24.501, backfilling and grading; 17.24.515, 
highwall reduction; 17.24.520, thick overburden and excess spoil; 
17.24.522, permanent cessation of operations; 17.24.523, coal fires and 
coal conservation; 17.24.602, location of roads and railroads; 
17.24.603, road and railroad embankments; 17.24.605, hydrologic impact 
of roads and railroads; 17.24.609, other support facilities; 17.24.623, 
blasting schedule; 17.24.624, surface blasting requirements; 17.24.626, 
blasting records; 17.24.633, water quality performance standards; 
17.24.634, reclamation of drainage basins; 17.24.635, diversions; 
17.24.636, temporary diversions; 17.24.638, sediment control; 
17.24.639, sediment ponds and other treatment facilities; 17.24.642, 
permanent impoundments; 17.24.645, ground water monitoring; 17.24.646, 
surface water monitoring; 17.24.701, soil removal; 17.24.702, soil 
storage and redistribution; 17.24.703, soil substitutes; 17.24.711, 
revegetation establishment; 17.24.714, soil stabilization; 17.24.716, 
revegetation methods; 17.24.717, tree and shrub planting; 17.24.718, 
soil amendments and land use practices; 17.24.719, grazing; 17.24.720, 
revegetation inspections; 17.24.723, revegetation monitoring; 
17.24.724, revegetation success standards; 17.24.725, responsibility 
period; 17.24.726, vegetation measurement; 17.24.730, seasonality; 
17.24.732, revegetation of previously cropped areas; 17.24.733, 
measurement of trees and shrubs; 17.24.751, fish and wildlife 
protection; 17.24.761, air quality protection; 17.24.762, postmining 
land use; 17.24.764, cropland; 17.24.815, prime farmland revegetation; 
17.24.821, alternate reclamation--alternative postmining land use, 
plans; 17.24.823, alternate reclamation-- alternative postmining lands 
use, approval of plan; 17.24.824, alternate reclamation and alternative 
postmining land use; 17.24.825, alternate reclamation, alternate 
revegetation; 17.24.826, alternate reclamation, liability period; 
17.24.832, auger mining; 17.24.901, underground mining application 
requirements; 17.24.903, underground mining performance standards; 
17.24.911, subsidence control;

[[Page 71430]]

17.24.924, underground development waste, general; 17.24.927, durable 
rock fills; 17.24.930, coal processing waste; 17.24.932, disposal of 
coal processing waste; 17.24.1001, prospecting permit application; 
17.24.1002, prospecting monthly reports; 17.24.1003, renewal and 
transfer of prospecting permits; 17.24.1017, bond release for drilling 
operations; 17.24.1018, notice of intent to prospect; 17.24.1104, 
bonding amounts; 17.24.1106, bond terms and conditions; 17.24.1108, 
certificates of deposit; 17.24.1109, letters of credit; 17.24.1116, 
bond release; 17.24.1125, liability insurance; 17.24.1129, annual 
report; 17.24.1131, protection of parks and historic sites; 17.24.1132, 
lands prohibited, definitions and standards; 17.24.1133, lands 
prohibited, procedures; 17.24.1201, inspections; 17.24.1202, compliance 
reviews; 17.24.1206, enforcement; 17.24.1211, civil penalties; 
17.24.1212, civil penalty point system; 17.24.1219, individual civil 
penalties; 17.24.1225, small operator assistance program (SOAP); 
17.24.1226, SOAP providers; 17.24.1250, restrictions on employee 
financial interests; 17.24.1255, multiple interest advisory boards; 
17.24.1263, revocation or suspension of blasters license; and 
17.24.1301, revision of existing permits.
    Specifically, Montana proposes to the following revisions to its 
rules, all contained within the Administrative Rules of Montana (ARM). 
We note that in many but not all cases, Montana has proposed changing 
the numbering scheme for sub-requirements within the revised rules.

17.24.301, Definitions

    (6) ``adjacent area'' proposed to be revised by deleting the 
existing definition and incorporating the statutory definition at 82-4-
203(2), Montana Code Annotated (MCA).
    (11) the definition is proposed to be changed from ``alternate 
reclamation'' to ``alternative postmining land use''.
    (13) ``approximate original contour'' is proposed to be extensively 
revised to read as follows:

    ``Approximate original contour'' is defined in 82-4-203, MCA, as 
``that surface configuration achieved by backfilling and grading of 
the mined areas 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:
    (a) the reclaimed terrain closely resembles the general surface 
configuration if it is comparable to the premine terrain. For 
example, 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;
    (b) 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;
    (c) 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; and
    (d) the reclaimed surface configuration is appropriate for the 
postmining land use.''

    (26) ``community or institutional building'' is proposed to be 
extensively revised to read as follows:

    ``Community or institutional building'' means any structure, 
other than a public building or a dwelling, which is used primarily 
for meetings, gatherings or functions of local civic organizations 
or other community groups; functions as an educational, cultural, 
historic, religious, scientific, correctional, mental-health or 
physical health care facility; or is used for public services, 
including, but not limited to, water supply, power generation or 
sewage treatment.

    (33) ``diversion'' is proposed to be extensively revised to read as 
follows:

    ``Diversion'' means a channel, embankment, or other manmade 
structure constructed to divert undisturbed runoff around an area of 
disturbance and back to an undisturbed channel.

    (36) a new definition of ``dwelling'' is proposed to be added to 
read as follows:

    ``Dwelling'' means a building inhabited by or useful for 
habitation by a person or persons.

    (38) the existing definition of ``ephemeral stream'' is proposed to 
be revised to quote the statutory definition of ``ephemeral 
drainageway'' at 82-4-203(17), MCA.
    (46) a new definition of ``good ecological integrity'' is proposed 
to be added to read as follows:

    ``Good ecological integrity'' means that the complex of 
community of organisms and its environment functioning as an 
ecological unit possesses components and processes in good working 
order. Pastureland and cropland managed in accordance with county or 
local conservation district or state or federal best management 
practices (resource management strategies, such as normal husbandry 
practices, used to manage or protect a resource and promote 
ecological and economic sustainability) generally reflect good 
ecological integrity with regard to such land uses.

    (50) the definition of ``higher or better uses'' is proposed to be 
revised to quote the statutory definition at 82-4-203(23), MCA.
    (53) the definition of ``historically used for cropland'' is 
proposed to be revised by adding a new subparagraph (53)(c) to read as 
follows:

    (c) lands that would likely have been used for cropland for any 
five or more years out of the 10 years immediately preceding such 
acquisition but for the same fact of ownership or control of the 
land as in (53)(a) unrelated to the productivity of the land.

    (53) the definition of ``hydrologic balance'' is proposed to be 
revised to quote the statutory definition at 82-4-203(24), MCA.
    (59) the definition of ``incidental boundary change'' is proposed 
to be revised to read ``incidental boundary revision''.
    (64) The introduction to and subparagraphs (b), (c), (d), (g), and 
(h) of the definition of ``land use'' is proposed to be revised to 
quote from the statutory definitions at 82-4-203, subparagraphs (28), 
(37), (22), (21), (43), and (20), MCA, to read as follows:

    ``Land use'' is defined in 82-4-203, MCA, as ``specific uses or 
management-related activities, rather than the vegetative cover of 
the land. Land uses may be identified in combination when joint or 
seasonal uses occur and may include land used for support facilities 
that are an integral part of the land use. Land use categories 
include cropland, developed water resources, fish and wildlife 
habitat, forestry, grazing land, industrial or commercial, 
pastureland, land occasionally cut for hay, recreation, or 
residential.''
    (a) [remains the same]
    (b) ``Pastureland'' is defined in 82-4-203, MCA, as ``land used 
primarily for the long-term production of adapted, domesticated 
forage plants to be grazed by livestock or occasionally cut and 
cured for livestock feed.''
    (c) ``Grazing land'' is defined in 82-4-203, MCA, as ``land used 
for grasslands and forest lands where the indigenous vegetation is 
actively managed for livestock grazing or browsing or occasional hay 
production.''
    (d) ``Forestry'' is defined in 82-4-203, MCA, as ``land used or 
managed for the long-term production of wood, wood fiber, or wood-
derived products.''
    (e) Through (f)(ii) [remain the same]
    (g) ``Recreation'' is defined in 82-4-203, MCA, as ``land used 
for public or private leisure-time activities, including developed 
recreation facilities, such as parks, camps, and amusement areas, as 
well as areas for less intensive uses, such as hiking, canoeing, and 
other undeveloped recreational uses.''
    (h) ``Fish and wildlife habitat'' is defined in 82-4-203, MCA, 
as ``land dedicated wholly or partially to the production, 
protection, or management of species of fish or wildlife.''
    (i) [remains the same]


[[Page 71431]]


    (67) a new definition of ``material damage'' is proposed to be 
added to quote the statutory definition at 82-4-203(30), MCA.
    (68) the definition of ``materially damage the quantity or quality 
of water'' is proposed to be revised by deleting references to other 
definitions.
    (90) the definition of ``prime farmland'' is proposed to be revised 
to quote the statutory definition at 82-4-203(40), MCA.
    (103) the definition of ``reference area'' is proposed to be 
revised to quote the statutory definition at 82-4-203(44).
    (107) the definition of ``road'' is proposed to be revised to 
delete the final sentence of the main clause, which currently reads:

    The term does not include pioneer or construction roadways that 
are used for part of the road construction procedure and that are 
promptly replaced by roads associated with the prospecting or mining 
operation in the identical right-of-way as the pioneer or 
construction roadway.

    Further, subparagraph (107)(b), defining ``haul road,'' is proposed 
to be revised to read as follows: `` `Haul road' means a road used for 
more than six months to transport coal, soil, or spoil.''
    (143) a new definition of ``wildlife habitat enhancement features'' 
is proposed to be added to quote from the statutory definition at 82-4-
203(55), MCA.
    17.24.302, permit application requirements. Montana proposes to 
revise subparagraphs (1) and (2) to require that information in the 
application must be accurate, and that all tests, analyses, surveys, 
and data collection must be carried out at appropriate times and under 
appropriate conditions.
    17.24.303, permit application legal and financial requirements. 
Montana proposes to require that applications include a copy of the 
proposed newspaper advertisement and proof of publication after it is 
published.
    17.24.304, permit environmental baseline information. Montana 
proposes to: (1) Add a requirement that the uses of springs and uses of 
surface water bodies be added to the required listings; (2) revise the 
requirements for vegetation information to change the word 
``vegetative'' to ``vegetation,'' revise the description of dominant 
species by deleting the phrase ``2 or more'' and change the term 
``number'' to ``density''; (3) delete the requirements for a narrative 
discussing current condition or trend for plant community sub-types and 
also delete the requirement for a range site map; (4) specify that the 
operator contact the department (of Environmental Quality) at least 
three months before planning the required wildlife survey; (5) revise 
the requirement for a listing of fish and wildlife species by 
specifying all species and deleting the non-inclusive list that now 
exists; and (6) revising land use information to require the condition, 
capability, productivity, and history of use of the land and vegetation 
within the proposed permit area.
    17.24.305, maps and plans. Montana proposes: (1) To revise 
subparagraph (1)(j) to require that maps showing the land to be 
affected include the pre-mine topography; (2) to revise subparagraph 
(2)(a) to require that map certifications submitted separately from the 
map must be in affidavit form; (3) revise subparagraph (2)(b) to add to 
the list of maps, plans, and cross-sections that must be prepared by 
(or under the direction of) and certified by a licensed professional 
engineer, the materials required under subparagraphs (1)(d), (e), (j), 
(k), (p), (q), (x), and (z); and (4) revise subparagraph (2)(b)(i) to 
add to the list of required materials that may be prepared by (or under 
the direction of) and certified by a licensed professional land 
surveyor, the materials required under subparagraphs (1)(d), (p), (x), 
and (z).
    17.24.308, operations plan. Montana proposes to: (1) Revise the 
description of the operations for which a description is required by 
deleting the word ``mining'' and the phrase ``within the proposed mine 
plan area''; (2) add to the requirements for which the narrative must 
demonstrate compliance the applicable rules of subchapter 10 
(underground mining); and (3) add to the proposed operations for which 
compliance must be demonstrated a new subsection which reads as 
follows:

    (vii) facilities or sites and associated access routes for 
environmental monitoring and data gathering activities [or] for the 
gathering of subsurface data by trenching, drilling, geophysical or 
other techniques to determine the nature, depth, and thickness of 
all known strata, overburden, and coal seams.

    Montana notes that the bracketed word ``or'' was mistakenly omitted 
but will be added in the next rule-making.
    17.24.312, fish and wildlife plan. Montana proposes: (1) To change 
from ``statement'' to ``description'' the description of the required 
plan; (2) to delete the statement that nothing ``herein'' may be 
construed to weaken the requirement of 82-4-233(1)(a), MCA; and (3) to 
add a requirement for a description of the wildlife habitat enhancement 
features that will be integrated with other land uses, pursuant to 82-
4-232(9), MCA, and ARM 17.24.313.
    17.24.313, reclamation plan. Montana proposes: (1) To require that 
the reclamation plan include the proposed postmining land use pursuant 
to ARM 17.24.762; (2) to require that the timetable for completion of 
reclamation steps be ``detailed''; (3) add ``other means as approved by 
the department'' to other specified means for showing the plan of 
highwall backfilling, reduction, ``or an alternative thereof''; (4) 
deleting a provision for ``alternate plans other than highwall 
reduction'' if ``consistent with the purposes of 82-4-232(7), MCA, and 
ARM 17.24.821 through 17.24.824''; (5) add a new requirement that the 
backfilling plan contain:

a demonstration that the proposed postmining topography can be 
achieved. This demonstration must include a cross-section or set of 
cross-sections, or other method as approved by the department, to 
depict the removal of overburden and mineral and the replacement of 
the swelled spoil;

    (6) delete an existing requirement for a plan for early detection 
of grading problems; (7) add a requirement to include:

a description of postmining drainage basin reclamation that ensures 
protection of the hydrologic balance, achievement of postmining land 
use performance standards, and prevention of material damage to the 
hydrologic balance in adjacent areas, including:
    (i) A comparison of premining and postmining drainage basin 
size, drainage density, and drainage profiles as necessary to 
identify characteristics not distinguishable on the premining and 
postmining topographic maps;
    (ii) A discussion of how, within drainage basins:
    (A) The plan meets each performance standard in ARM 17.24.634;
    (B) The requirements of 82-4-231(10)(k), MCA, and ARM 17.24.314 
will be met where the postmining topography differs from the 
premining as allowed by ARM 17.24.301(13)(c);
    (f) Drainage channel designs appropriate for preventing material 
damage to the hydrologic balance in the adjacent area and to meet 
the performance standards of ARM 17.24.634, including:
    (i) Detailed drainage designs for channels that contain critical 
hydrologic, ecologic or land use functions not already addressed in 
this rule such as alluvial valley floors, wetlands, steep erosive 
upland drainages, drainages named on USGS topographic maps, or 
intermittent or perennial streams. Detailed drainage designs include 
fluvial and geomorphic characteristics pertinent to the specific 
drainages being addressed; and
    (ii) For all other channels, typical designs and discussions of 
general fluvial and geomorphic habit, pattern, and other relevant 
functional characteristics;

    (8) revise the plans for material handling to require:


[[Page 71432]]


plans for removal, storage, and redistribution of soil, overburden, 
spoils, and other material in accordance with ARM 17.24.501, 
17.24.502, 17.24.503, 17.24.504, 17.24.505, 17.24.507, 17.24.510, 
17.24.514, 17.24.515, 17.24.516, 17.24.517, 17.24.518, 17.24.519, 
17.24.520, 17.24.521, and 17.24.522, and 17.24.701 through 
17.24.703;

    (9) require that the operator must submit plans for any necessary 
monitoring of soils, overburden, spoils, or other materials; (10) 
require that the narrative of revegetation methods include a discussion 
of revegetation types, including the acreage of each; and (11) require 
that the discussion of measures to be used to determine the success of 
revegetation include the use of reference areas and/or technical 
standards in relation to the revegetation types.
    17.24.315, plans for ponds and embankments. Montana proposes to 
change the phrase ``registered professional engineer'' to the phrase 
``licensed professional engineer'' in three places.
    17.24.321, transportation facilities plan. Montana proposes (1) to 
delete the limiting words ``haul'' and ``access,'' leaving the general 
word ``road''; (2) revise the requirements for application materials to 
``the following as appropriate for the type of construction'' and 
deleting in several subsequent itemized requirements the word 
``appropriate''; (3) to change the phrase ``registered professional 
engineer'' to the phrase ``licensed professional engineer''; (4) add 
low water crossings to the plans and drawings required to be prepared 
by (or under the direction of), and certified by, a ``licensed 
professional engineer''; and (5) add 17.24.602, 17.24.603, 17.24.605, 
and delete 17.24.606, to and from the specified performance standards.
    17.24.322, geologic information and coal conservation plan. Montana 
proposes: (1) To delete, from the coal conservation plan requirements, 
the location and dimensions of existing areas of spoil, waste, and 
garbage and other debris disposal, dams, embankments, other 
impoundments, and water treatment and air pollution control facilities 
within the proposed permit area; and (2) to add a requirement that:

    For an operator with a federal resource recovery and protection 
plan, the department may review all applicable coal recovery 
information retained by the bureau of land management, in lieu of or 
in addition to the information requirements under (3).

    17.24.323, grazing plan. Montana proposes to delete this rule.
    17.24.324, prime farmland special application requirements. Montana 
proposes to delete ARM 17.24.821 through 17.24.825 (alternate 
reclamation) from the performance standards which the prime farmland 
reclamation plan must address.
    17.24.401, filing of permit application and notice. Montana 
proposes in two places to revise the phrase ``alternate reclamation 
plan(s)'' to the phrase ``alternative postmining land use plan(s).''
    17.24.404, review of application. Montana proposes: (1) To delete 
paragraph (9), which provides the applicant with the opportunity for a 
hearing under the Montana Administrative Procedure Act; and (2) to 
delete paragraph (10), which forbids the department to approve 
applications that may be inconsistent with other existing, proposed, or 
anticipated coal mining and reclamation operations in adjacent areas.
    17.24.405, findings and notice of decision. Montana proposes: (1) 
To revise the date by which the department must approve or deny an 
application to ``no later than 45 days from the date of the 
acceptability determination except as provided by 75-1-208(4)(b), MCA; 
(2) revise the allowed time for an environmental impact statement from 
``within 365 days of its notice given pursuant to ARM 17.24.401(2)'' to 
``in accordance with 82-4-231, MCA''; (3) delete a requirement that the 
department publish a summary of the decision in a newspaper in the 
vicinity of the proposed project; (4) among the required findings, 
revise the finding dealing with ``alternate reclamation'' to 
``alternative postmining land use'' and add 17.24.821 to the 
requirements that must be met; and (5) delete paragraph (7), which 
provides the applicant with an opportunity for a contested case hearing 
if prior violations prohibit issuance of the permit.
    17.24.412, extension of time to commence mining. Montana proposes: 
(1) To add a requirement that requests for extensions are subject to 
the public participation requirements of 17.24.401-17.24.403; and (2) 
to delete from paragraph (3) a requirement for special newspaper 
notices of the request.
    17.24.413, conditions of permits. Montana proposes to add an 
additional condition to all permits, to read as follows:

    A permittee shall immediately notify the department whenever a 
creditor of the permittee has attached or obtained a judgment 
against the permittee's equipment or materials in the permit area or 
on the collateral pledged to the department.

    17.24.416, permit renewals. Montana proposes to revise the required 
newspaper notice so that the renewal application must include the 
proposed newspaper notice and proof of publication in a newspaper 
approved by the department.
    17.24.427, change of contractor. Montana proposes: (1) To revise 
paragraph (1) to require that the permittee must notify the department 
of any proposed new contractor or changes in an existing contractor, 
and require that notification to the department is required prior to 
proposed contractor changes if the permit has not been transferred; and 
(2) to revise paragraph (2) by deleting the existing requirement and 
adding a new requirement to ensure that the contractor may not conduct 
any activities on the permit area unless and until the department 
determines that the information submitted is acceptable and satisfies 
the requirements of ARM 17.24.303.
    17.24.501, general backfilling and grading requirements. Montana 
proposes to revise paragraph (4) to: (1) Require that grading to 
approximate original contour must be in accordance with 82-4-232(1), 
MCA; (2) delete existing requirements that final slopes be graded to 
prevent slope failure, not exceed the angle of repose, and achieve a 
minimum long-term safety factor of 1.3; (3) revise subparagraph (4)(a) 
to require that the operator transport, backfill, and compact to ensure 
compliance with subparagraph (3)(b) and ARM 17.24.505; (4) further 
revise subparagraph (4)(a) to require that highwalls must be reduced or 
backfilled in compliance with ARM 17.24.515(1) or approved highwall 
reduction alternatives in compliance with ARM 17.24.515(2); and (5) 
still further revise subparagraph (4)(a) to delete existing 
requirements pertaining to box-cut spoils. Montana further proposes to 
revise paragraph (4) by adding a requirement that depressions must be 
eliminated except as provided in ARM 17.24.503(1).
    Montana also proposes to revise 17.24.501, subparagraph (6)(d), to 
require that all backfilling and grading achieve the approved 
postmining topography. Montana also proposes to add a new paragraph 
(7), requiring the operator to notify the department, in writing, upon 
detection of grading problems that would result in topography not 
consistent with the approved postmine topography.
    17.24.515, highwall reduction. Montana proposes to revise paragraph 
(1) to require that highwalls must be eliminated and the reduced 
highwall slope must be no greater than whatever slope is necessary to 
achieve a minimum long-term static safety factor

[[Page 71433]]

of 1.3. Montana also proposes to revise paragraph (2) by deleting 
existing subparagraph (2)(c) (which provides that highwall reduction 
alternatives must comply with 17.24.313, 17.24.821-17.21.824). Montana 
proposes additional new language to read as follows:

    (2) Highwall reduction alternatives may be permitted only to 
replace bluff features that existed before mining and where the 
department determines that:
    (a) Postmining bluffs are compatible with the proposed 
postmining land use;
    (b) Postmining bluffs are stable, achieving a minimum long-term 
static safety factor of 1.3;
    (c) Similar geometry and function exists between pre- and 
postmining bluffs;
    (d) The horizontal linear extent of postmining bluffs does not 
exceed that of the premining condition; and
    (e) Highwalls will be backfilled to the extent that the 
uppermost mineable coal seam is buried in accordance with ARM 
17.24.505(1).

    17.24.520, thick overburden and excess spoil. Montana proposes to 
change the phrase ``registered professional engineer'' to ``licensed 
professional engineer.'' Montana further proposes in subparagraph 
(3)(k) to delete a reference to 17.24.520(13) in addressing coal mine 
wastes disposed in mine excavations. Montana further proposes to revise 
at subparagraph (3)(m) the requirements for a program to return wastes 
to underground workings to include the performance standards of 
17.24.920, 17.24.924(1), 17.24.930, and 17.24.932(1).
    17.24.522, permanent cessation of operations. Montana proposes to 
delete the first two sentences of paragraph (3), which provide for 
completion of backfilling and grading within 90 days after the 
department determines the operation is completed, and that final pit 
reclamation must be as close to the coal loading operation as technical 
factors allow.
    17.24.523, coal fires and coal conservation. Montana proposes to 
add a second paragraph to read as follows:

    (2) Strip or underground mining operation must be conducted to 
prevent failure to conserve coal, utilizing the best technology 
currently available to maintain appropriate environmental 
protection.
    The operator shall adhere to the approved coal conservation plan 
required in ARM 17.24.322.

    17.24.601, road and railroad facility construction requirements. 
Montana proposes to change the phrase ``registered professional 
engineer'' to ``licensed professional engineer.''
    17.24.602, location of roads and railroad facilities. Montana 
proposes to delete a requirement that the proposed locations of these 
facilities be marked on site prior to pre-inspection of the proposed 
operation.
    17.24.603, road and railroad embankments. Montana proposes at 
paragraph (4) to delete a requirement for a minimum seismic safety 
factor, and revise the required minimum static safety factor from 1.5 
to 1.3.
    17.24.605, hydrologic impact of roads and railroads. Montana 
proposes to revise the existing requirement that drainage structures 
are required for stream channel crossings. The revision would allow the 
use of riprap for road crossings of ephemeral streams that are too 
shallow for placement of a culvert.
    17.24.609, other support facilities. This rule requires that 
certain support structures meet certain design and construction 
requirements. Montana proposes to revise the rule to specify additional 
facilities, including septic systems and sewage lagoons, fuel storage 
and distribution facilities, and environmental monitoring sites.
    17.24.623, blasting schedule. Montana proposes to revise paragraph 
(2) to require that blasting schedules be delivered to each residence 
within one-half mile of the permit area. Montana further proposes to 
revise at subparagraph (5)(b) the information required in blasting 
schedules, to include the township, range, and section of the specific 
areas, and to delete the requirement that specific blasting areas that 
are described be compact and no larger than 100 acres.
    17.24.624, surface blasting requirements. Montana proposes to 
revise paragraph (4) to delete the phrase ``at all points'' within the 
one-half mile range for audibility of blast warnings. Montana proposes 
to revise subparagraph (6)(a) to require that airblast be controlled at 
any dwelling, or public, commercial, community or institutional 
building, unless the structure is owned by the operator. Similarly, 
Montana proposes to revise subparagraph (7)(a) to require that (unless 
approved by the department), no blasting be conducted within 1,000 feet 
of any dwelling or public, commercial, community or institutional 
building. Montana proposes to revise paragraph (11) to specify that 
peak particle velocities apply at any dwelling, or public, commercial, 
community or institutional building. Montana proposes to revise 
paragraph (14) to specify that the scaled-distance formula be 
calculated from the blast hole nearest to a dwelling, or public, 
commercial, community or institutional building, except as noted in 
paragraph (12).
    17.24.626, blasting records. Montana proposes to revise 
subparagraph (1)(d) to require that blast records include direction and 
distance, in feet, from the blast hole nearest to a dwelling or 
commercial, public, community, or institutional building. Montana 
proposes to revise subparagraph (1)(j) to require blast records to 
contain total weight of explosives used and total weight of explosives 
used in each hole.
    17.24.633, water quality performance standards. Montana proposes to 
revise paragraph (2) to read as follows:

    (2) Sediment control through BTCA [best technology currently 
available] practices must be maintained until the disturbed area has 
been restored, the revegetation requirements of ARM 17.24.711, 
17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 
17.24.723 through 17.24.726, and 17.24.731 have been met, the area 
meets state and federal requirements for the receiving stream, and 
evidence is provided that demonstrates that the drainage basin has 
been stabilized consistent with the approved postmining land use.

    17.24.634, reclamation of drainage basins. Montana proposes 
numerous revisions to paragraph (1); the proposed paragraph (1) reads 
as follows:

    (1) Reclaimed drainage basins, including valleys, channels, and 
floodplains must be constructed to:
    (a) Comply with the postmining topography map required by ARM 
17.24.313(1)(d)(iv) and approved by the department;
    (b) Approximate original contour;
    (c) An appropriate geomorphic habit or characteristic pattern 
consistent with 82-4-231(10)(k), MCA;
    (d) [Remains the same]
    (e) Provide separation of flow between adjacent drainages and 
safely pass the runoff from a six-hour precipitation event with a 
100-year recurrence interval, or larger event as specified by the 
department;
    (f) Provide for the long-term relative stability of the 
landscape. The term ``relative'' refers to a condition comparable to 
an unmined landscape with similar climate, topography, vegetation 
and land use;
    (g) Provide an average channel gradient that exhibits a concave 
longitudinal profile;
    (h) Establish or restore a diversity of habitats that are 
consistent with the approved postmining land use, and restore, 
enhance where practicable, or maintain natural riparian vegetation 
as necessary to comply with ARM subchapter 7; and
    (i) Exhibit dimensions and characteristics that will blend with 
the undisturbed drainage system above and below the area to be 
reclaimed and that will accommodate the approved revegetation and 
postmining land use requirements.

    Montana also proposes to revise paragraph (2) to change the phrase 
``registered professional engineer'' to ``licensed professional 
engineer.''
    17.24.635, general requirements for diversions. Montana proposes to 
revise paragraph (5) to change the phrase

[[Page 71434]]

``registered professional engineer'' to ``licensed professional 
engineer.'' Montana also proposes to delete paragraphs (6) and (7).
    17.24.636, special requirements for temporary diversions. Montana 
proposes several revisions to existing paragraph (1), to read 
(renumbered) as follows:

    (1)(a) remains the same, but is renumbered (1).
    (2) If channel lining is required to prevent erosion, the 
channel lining must be designed using standard engineering practices 
to safely pass design velocities.
    (3) Freeboard must be as specified by the department, but no 
less than 1.0 foot.

    Montana also proposes to delete existing subparagraph (2)(a).
    17.24.638, sediment control measures. Montana proposes to revise 
subparagraph (2)(a) to change the specified performance standards that 
must be met to minimize sediment, to include ARM 17.24.711, 17.24.713, 
17.24.714, 17.24.716 through 17.24.721, and 17.24.723 through 
17.24.726.
    17.24.639, sediment ponds and other treatment facilities. Montana 
proposes to add a new subparagraph (1)(e), to require that sediment 
ponds be constructed as approved unless modified under ARM 
17.24.642(7). Montana further proposes to revise paragraph (2) by 
deleting the final clause of existing subparagraph (2)(a) [``except as 
provided below''] and existing subparagraphs (b) through (e). Montana 
proposes to revise paragraph (3) to specify that the inlet to 
dewatering devises must not be below the maximum elevation of the 
sediment storage volume. Montana proposes to revise subparagraph (7)(a) 
to require that spillway designs assume the impoundment is at full 
pool; and further to delete a provision that no spillway is required if 
the sediment pond is entirely excavated. Montana proposes to revise 
paragraph (10) by adding a provision allowing the department to exempt 
the top-width requirement for some ponds. Montana proposes to revise 
paragraph (11) to require that the side slopes of the settled 
embankment must not be steeper than 3h:1v upstream and 2h:1v 
downstream, unless otherwise approved by the department. Montana 
proposes to revise paragraph (17) to change the phrase ``registered 
professional engineer'' to ``licensed professional engineer.'' Montana 
proposes to revise subparagraph (20)(a) to require that spillway 
designs assume the impoundment is at full pool. Montana proposes to 
revise subparagraph (22)(a) to read as follows:

    (22)(a) All ponds with embankments must be designed and 
inspected regularly during construction under the supervision of, 
and certified after construction by, a qualified licensed 
professional engineer experienced in the construction of 
impoundments. After construction, inspections and certifications 
must be made and reports filed with the department, pursuant to ARM 
17.24.642(4). Inspection and certification reports must be submitted 
until the embankments are removed.

    Montana further proposes to delete subparagraph (22)(c). Montana 
proposes to revise paragraph (23) to limit inspection requirements to 
ponds with embankments. At newly renumbered paragraph (25), Montana 
proposes to change the list of required revegetation performance 
standards to include ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 
through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and 
17.24.731. At renumbered subparagraph (28)(a), Montana proposes that 
excavated sediment ponds require no spillway and must be able to 
contain the 10-year, 24-hour precipitation event, and conform with 
paragraphs (1), (2), (4), (6), (18), (22)(a), (24) and (27). At 
subparagraph (28)(b), Montana proposes to change the phrase 
``registered professional engineer'' to ``licensed professional 
engineer.''
    17.24.642, permanent impoundments and flood control impoundments. 
Montana proposes to revise paragraph (1) to read as follows:

    (1) Permanent impoundments are prohibited unless constructed in 
accordance with ARM 17.24.504 and 17.24.639, and have open-channel 
spillways that will safely discharge runoff resulting from a 100-
year, 24-hour precipitation event, assuming the impoundment is at 
full pool for spillway design, or larger event specified by the 
department. The department may approve a permanent impoundment upon 
the basis of a demonstration that:
    Montana further proposes to delete subparagraphs (1)(g), (1)(h), 
and (1)(i). At paragraph (2), Montana proposes to limit to permanent 
impoundments the existing requirement that impoundments meet the 
performance requirements of 17.24.639. Montana proposes to delete 
paragraphs (3) through (6). Montana proposes to revise the 
maintenance provisions of renumbered paragraph (3) to require that 
all permanent impoundments be routinely maintained, and that ditches 
and spillways must be cleaned. Montana proposes to revise the 
inspection and certification provisions of renumbered paragraph (4) 
to limit the requirement to permanent impoundments, change the 
phrase ``registered professional engineer'' to ``licensed 
professional engineer,'' and require inspection reports until phase 
IV bond release. In the content requirements for inspection reports 
at subparagraphs (4)(c) and (4)(d), Montana proposes to change the 
phrases ``dam or embankment'' to the term ``impoundment.'' Montana 
proposes to delete existing paragraphs (9) and (10). Montana 
proposes new requirements to read as follows:
    (5)(a) Flood control impoundments are located upstream of 
disturbance areas for the purpose of preventing or controlling 
flooding or discharge and are not designed for sediment control or 
to be permanent.
    (b) Flood control impoundments with embankments must be 
constructed in accordance with (1)(f) and ARM 17.24.639(7) through 
(21), and be inspected, maintained and certified according to (3), 
(4)(a), (4)(d), and (6) and ARM 17.24.639(22) and (23).
    (c) Excavated flood control impoundments:
    (i) Must be in compliance with ARM 17.24.639(18);
    (ii) Must have perimeter slopes that are stable; and
    (iii) Must be protected against erosion where surface runoff 
enters the impoundment area.
    (d) An initial pond certification report and inspections must be 
made for excavated flood control impoundments in accordance with ARM 
17.24.639(28)(b). If the volume of the flood control impoundment is 
used in determination of required volume for a downstream pond, 
annual certification reports are required in accordance with (4)(a), 
(4)(c), and (4)(d).
    (e) Prior to construction, flood control impoundments must be 
approved by the department.
    (6) Permanent impoundments and flood control impoundments with 
embankments meeting the size or other criteria of 30 CFR 77.216(a) 
or the Class B or C criteria for dams in TR-60 [Technical Release 
60] must be routinely inspected by a qualified licensed professional 
engineer or by someone under the supervision of a qualified licensed 
professional engineer, in accordance with 30 CFR 77.216-3.
    (7) Plans for any enlargement, reduction in size, 
reconstruction, or other modifications of permanent impoundments and 
flood control impoundments must be submitted to the department and 
must comply with the requirements of this subchapter. Except where a 
modification is required to eliminate an emergency condition 
constituting a hazard to public health, safety, or the environment, 
the modification must not be initiated until the department approves 
the plans.


    17.24.645, ground water monitoring. Montana proposes to revise 
paragraph (1) by deleting ``infiltration rates'' from the required 
parameters, and adding that the monitoring must be based on the 
monitoring program under 17.24.314, and changing the phrase ``in the 
mine plan and adjacent areas'' to ``in the permit and adjacent areas.'' 
In paragraph (3), Montana proposes to revise the allowance for 
additional ``hydrologic tests'' to additional ``observations and 
analyses.'' At paragraph (6), Montana proposes to update the citations 
of water sampling guidelines and the department's address where the 
guidelines may be obtained.
    17.24.646, surface water monitoring. Montana proposes to revise 
paragraph

[[Page 71435]]

(1) to require that the monitoring be based on the information 
submitted under 17.24.304. At paragraph (4), Montana proposes that data 
from post-grading monitoring must be used to determine whether runoff 
meets requirements, that those data must be used by the department to 
review requests for water treatment systems; also, other information 
may be used for those purposes with departmental approval. At paragraph 
(6), Montana proposes to update the citations of water sampling 
guidelines and the department's address where the guidelines may be 
obtained.
    17.24.701, removal of soil. Montana proposes to delete existing 
paragraph (3), and add a new paragraph (4) providing that soil removal 
is not required for minor disturbances which occur at the site of small 
structures such as power poles, signs or fences or where operations 
will not destroy vegetation and cause erosion.
    17.24.702, redistribution and stockpiling of soil. Montana proposes 
to revise paragraph (4) to include requirements for the distribution of 
soil substitutes, and too revise subparagraph (4)(b) to provide that 
the department may grant exemptions from the requirement to scarify 
spoil materials, and provide that if no adverse effects to the 
redistributed material or postmining land use will occur, such 
treatments may be conducted after the soil or soil substitute is 
replaced. At paragraph (6), Montana proposes to delete a requirement 
that soil replacement be done on the contour whenever possible.
    17.24.703, soil substitutes. Montana proposes that one requirement 
for soil substitutes is that the medium must be the best available in 
the permit area to support revegetation.
    17.24.711, establishment of vegetation. Montana proposes extensive 
revisions, to read as follows:

    (1) Vegetation must be reestablished in accordance with 82-4-
233(1), (2), (3), and (5), MCA, as follows:
    (a) Sections 82-4-233(1), (2), and (3), MCA, state: ``(1) The 
operator shall establish on regraded areas and on all other 
disturbed areas, except water areas, surface areas of roads, and 
other constructed features approved as part of the postmining land 
use, a vegetative cover that is in accordance with the approved 
permit and reclamation plan and that is:
    ``(a) diverse, effective, and permanent;
    ``(b) composed of species native to the area or of introduced 
species when desirable and necessary to achieve the postmining land 
use and when approved by the department;
    ``(c) at least equal in extent of cover to the natural 
vegetation of the area; and
    ``(d) capable of stabilizing the soil surface in order to 
control erosion to the extent appropriate for the approved 
postmining land use.
    ``(2) The reestablished plant species must:
    ``(a) be compatible with the approved postmining land use;
    ``(b) have the same seasonal growth characteristics as the 
original vegetation;
    ``(c) be capable of self-regeneration and plant succession;
    ``(d) be compatible with the plant and animal species of the 
area; and
    ``(e) meet the requirements of applicable seed, poisonous and 
noxious plant, and introduced species laws or regulations.
    ``(3) Reestablished vegetation must be appropriate to the 
postmining land use so that when the postmining land use is:
    ``(a) cropland, the requirements of subsections (1)(a), (1)(c), 
(2)(b), and (2)(c) are not applicable;
    ``(b) pastureland or grazing land, reestablished vegetation must 
have use for grazing by domestic livestock at least comparable to 
premining conditions or enhanced when practicable;
    ``(c) fish and wildlife habitat, forestry, or recreation, trees 
and shrubs must be planted to achieve appropriate stocking rates.''
    (b) Section 82-4-233(5), MCA, states: ``For land that was mined, 
disturbed, or redisturbed after May 2, 1978, and that was seeded 
prior to January 1, 1984, using a seed mix that was approved by the 
department and on which the reclaimed vegetation otherwise meets the 
requirements of subsections (1) and (2) and applicable state and 
federal seed and vegetation laws and rules, introduced species are 
considered desirable and necessary to achieve the postmining land 
use and may compose a major or dominant component of the reclaimed 
vegetation.''
    (2) For areas designated prime farmland, the requirements of ARM 
17.24.811 and 17.24.815 must be met.
    (3) The department shall determine cover, planting, and stocking 
specifications either on a programmatic basis or for each operation 
based on local and regional conditions after consultation with and 
approval by:
    (a) [remains the same]
    (b) the department of natural resources and conservation for 
reclamation to land uses involving forestry.

    17.24.714, soil stabilization. Montana proposes to revise this rule 
to read as follows:

    (1) Such practices as seedbed preparation, mulching, or cover 
cropping must be used on all regraded and resoiled areas to control 
erosion, to promote germination of seeds, and to increase the 
moisture retention of the soil until an adequate, permanent cover is 
established. This requirement may be suspended if the operator 
demonstrates to the department's satisfaction that it is not needed 
to control air or water pollution and erosion.

    17.24.716, method of revegetation. Montana proposes to revise 
paragraph (1) by changing the phrase ``manner that encourages a prompt 
vegetative cover and recovery of productivity levels'' to ``manner that 
encourages prompt vegetation establishment.'' At paragraph (3), Montana 
proposes to delete a requirement that the operator shall utilize seed 
and seedlings genotypically adapted to the area when available in 
sufficient quality and quantity. Montana proposes to revise paragraph 
(4) by deleting a requirement that the department approve specific weed 
control plans. Montana also proposes to delete existing paragraph (5), 
addressing the use of introduced species.
    17.24.717, planting of trees and shrubs. Montana proposes several 
revisions, to read as follows:

    (1) Tree or shrub species necessary to meet the approved 
postmining land use must be adapted for local site conditions and 
climate. Trees and shrubs must be planted in combination with 
herbaceous species as necessary to achieve the postmining land use 
and as approved by the department. If necessary to increase tree and 
shrub survival, seeding of the herbaceous species may be delayed 
providing that measures are taken to control air and water pollution 
and erosion.

    17.24.718, soil amendments and management practices. Montana 
proposes to revise paragraph (2) and add a new paragraph (3) to read as 
follows:

    (2) An operator may use only normal husbandry practices to 
ensure the establishment of vegetation consistent with the approved 
reclamation plan.
    (3) Reclamation land use practices including, but not limited 
to, grazing, haying, or chemical applications, may not be conducted 
in a manner or at a time that interferes with establishment and/or 
persistence of seeded and planted grasses, forbs, shrubs, and trees 
or with other reclamation requirements.

    17.24.719, livestock grazing. Montana proposes to delete this rule.
    17.24.720, annual inspections of revegetated areas. Montana 
proposes to delete this rule.
    17.24.723, reclamation monitoring. Montana proposes to revise 
paragraph (1) to require monitoring under plans submitted under ARM 
17.24.312(1)(d) and 17.24.313(1)(f)(iv) and (1)(g)(ix) and the approved 
postmining land use as approved by the department. Paragraph (2) is 
proposed to be revised by adding that monitoring is to demonstrate 
compliance with other State and Federal laws, in addition to Montana's 
equivalent of SMCRA. Montana proposes to revise paragraph (3) to delete 
the requirement that corrective actions be proposed to and approved by 
the department, but also to require the operator to implement measures 
to comply with permit requirements. Montana also proposes to delete 
paragraph (5), which referred the reader

[[Page 71436]]

to ARM 17.24.645, 17.24.646, and 17.24.1129.
    17.24.724, revegetation success criteria. Montana proposed 
extensive revision to this rule, to read as follows:

    (1) Success of revegetation must be determined by comparison 
with unmined reference areas or by comparison with technical 
standards. Reference areas and standards must be representative of 
vegetation and related site characteristics occurring on lands 
exhibiting good ecological integrity. The department must approve 
the reference areas, technical standards, and methods of comparison.
    (2) Reference areas are parcels of land chosen for comparison to 
revegetated areas. A reference area is not required for vegetation 
parameters with approved technical standards. Reference areas must 
be in a condition that does not invalidate or preclude comparison to 
revegetated areas and the operator must:
    (a) Have legal right to control the management of all approved 
reference areas; and
    (b) Manage reference areas in a manner that is comparable to the 
management of the revegetated areas and in accordance with the 
approved postmining land use.
    (3) Technical standards may be derived from:
    (a) Historical data generated for a sufficient time period to 
encompass the range in climatic variations typical of the premine or 
other appropriate area; or
    (b) Data generated from revegetated areas that are compared to 
historical data representing the range of climatic conditions 
comparable to those conditions existing at the time revegetated 
areas are sampled; or
    (c) U.S. department of agriculture, U.S. department of the 
interior, or other publications or sources relevant to the area and 
land use of interest and approved by the department.

    17.24.725, period of responsibility. Montana proposes to revise 
paragraph (1) so that the responsibility period begins after any 
activity related to phase III (rather than final) reclamation.
    17.24.726, vegetation measurements. Montana proposes to revise this 
rule extensively, to read as follows:

    (1) Standard and consistent field and laboratory methods must be 
used to obtain and evaluate vegetation data consistent with 82-4-233 
and 82-4-235, MCA, and to compare revegetated area data with 
reference area data and/or with technical standards. Specific field 
and laboratory methods used and schedules of assessments must be 
detailed in a plan of study and be approved by the department. 
Sample adequacy must be demonstrated. In addition to these and other 
requirements described in this rule, the department shall supply 
guidelines regarding acceptable field and laboratory methods.
    (2) Production, cover, and density shall be considered equal to 
the approved success standard when they are equal to or greater than 
90% of the standard with 90% statistical confidence, using an 
appropriate (parametric or non-parametric) one-tail test with a 10% 
alpha error.
    (3) The revegetated areas must meet the performance standards in 
(1) and (2) for at least two of the last four years of the phase III 
bond period. Pursuant to ARM 17.24.1113, the department shall 
evaluate the vegetation at the time of the bond release inspection 
for phase III to confirm the findings of the quantitative data.
    (existing 9) remains the same, but is renumbered (4).

    17.24.728, composition of vegetation. Montana proposes to delete 
this rule.
    17.24.730, season of use. Montana proposes to delete this rule.
    17.24.732, vegetation requirements for previously cropped areas. 
Montana proposes to delete this rule.
    17.24.733, measurement standards for trees and shrubs. Montana 
proposes to delete this rule.
    17.24.751, fish and wildlife. Montana proposes to revise paragraph 
(1) by adding a requirement for the operator to report any bald or 
golden eagle roost site, seasonal concentration area, or breeding 
territory; and also by adding a requirement that protective measures 
required by the U.S. Fish & Wildlife Service must be implemented when 
determined by the department in consultation with the U.S. Fish & 
Wildlife Service. Montana proposes to revise subparagraph (2)(a) by 
requiring that all powerlines be constructed in accordance with 
``Suggested Practices for Raptor Protection on Power Lines: The State 
of the Art in 1996 (Avian Power Line Interaction Committee, 1996)''; 
and further by deleting a requirement that distribution lines must be 
designed and constructed in accordance with ``REA Bulletin 61-10, 
Powerline Contacts by Eagles and Other Large Birds,'' or in alternative 
guidance manuals approved by the department. Montana proposes to revise 
subparagraph (2)(c) to require operators to design and construct 
fences, overland conveyers, and other potential structures to permit 
passage of large mammals, except where the department determines that 
such requirements are unnecessary. Montana proposes to revise 
subparagraph (2)(e) to delete a requirement that that reclamation 
provide habitat in an equal or greater capacity than was provided prior 
to mining, and replace it with a requirement to provide habitat in 
accordance with the approved postmining land use; a requirement for 
inanimate habitat features is proposed to be revised by citing 82-4-
231(10)(j) and 82-4-232(9), MCA; and a requirement that vegetative 
cover may not be less than that required by the approved postmining 
land use is proposed for deletion. Montana proposes to revise 
subparagraph (2)(f) to add the requirements of 82-4-231(10)(j), 82-4-
232(9) for wetlands, riparian vegetation along rivers and streams and 
bordering ponds and lakes. Montana proposes to delete subparagraphs 
(2)(g), (2)(i), and (2)(j).
    17.24.761, air resources protection. Montana proposes to delete 
most of this rule, leaving only existing paragraph (4) (renumbered as 
paragraph (2)) and, in paragraph (1), the requirement that operators 
employ fugitive dust controls in accordance with 82-4-231(10)(m), MCA, 
the operator's air quality permit.
    17.24.762, postmining land use. Montana proposes to largely revise 
this rule, to read as follows:

    (1) The postmining land use must satisfy 82-4-203(28) and 82-4-
232(7), MCA. In applying 82-4-232(7), MCA, the following principles 
apply:
    (a) The premining uses of the land to which the postmining land 
use is compared are those that the land previously supported or 
could have supported if the land had not been mined and had been 
properly managed.
    (b) The postmining land use for land that has been previously 
mined and not reclaimed must be judged on the basis of the land use 
that existed prior to any mining. If the land cannot be reclaimed to 
the use that existed prior to any mining because of the previously 
mined condition, the postmining land use must be judged on the basis 
of the highest and best use that can be achieved and is compatible 
with surrounding areas.
    (c) The postmining land use for land that has received improper 
management must be judged on the basis of the premining use of 
surrounding lands that have received proper management.
    (d) If the premining use of the land was changed within five 
years of the beginning of mining, the comparison of postmining use 
to premining use must include a comparison with the use of the land 
prior to the change as well as its uses immediately preceding 
mining.
    (2) Alternative postmining land uses may be proposed and must be 
determined in accordance with 82-4-232(7) and (8), MCA, and ARM 
17.24.821 and 17.24.823.
    (3) Certain premining facilities may be replaced pursuant to 82-
4-232(10), MCA.

    17.24.764, cropland reclamation. Montana proposes to add this new 
rule, to read as follows:

    17.24.764 CROPLAND RECLAMATION (1) The department may not 
approve a postmining land use of cropland unless the following 
criteria are met:
    (a) Prior to mining, all soils within the proposed cropland 
reclamation area must have been at least capability class IV, based 
on U.S. natural resources conservation service criteria;
    (b) Soils proposed for use must have the following properties:
    (i) Loamy texture, as defined by the U.S. soil conservation 
service in the Soil Survey

[[Page 71437]]

Manual, chapter 4 as revised May, 1981, pp. 4-56 and 4-57;
    (ii) Rock fragment (gravels, cobbles, and channers only) 
contents less than 20% in the first lift and less than 35% in the 
second lift;
    (iii) After materials are replaced, no greater than moderate 
wind and water erosion hazards as determined by U.S. natural 
resources conservation service procedures; and
    (iv) Levels of electrical conductivity, sodium adsorption ratio, 
and plant available water-holding capacity meeting the criteria for 
class III soils according to the ``Land Capability Guide for 
Montana, U.S. Soil Conservation Service, June 1988'', which is 
incorporated by reference into this rule. A copy of this document 
may be obtained from the Natural Resources Conservation Service, 10 
E. Babcock St., Bozeman, MT 59715;
    (c) Soil materials must be capable of selection and handling in 
such a way, and redistribution to such a thickness, and the 
underlying regraded spoil properties must be of sufficient quality, 
that the postmining productivity of the root zone will be sufficient 
to support cropland as the postmining land use;
    (d) Slope gradients must not exceed 8%;
    (e) The area must receive a minimum of 12 inches average annual 
precipitation, or there must be sufficient irrigation water 
available and committed to maintain crop production;
    (f) The area must not be subject to flooding that would impair 
its suitability as cropland due to flood effects including, but not 
limited to, erosion, siltation, and inundation;
    (g) The area must have a minimum of 90 frost-free days per year; 
and
    (h) The department must determine that:
    (i) Saline seep on the proposed cropland area will not occur; 
and
    (ii) The reclaimed area will not function as a saline seep 
recharge area for lands down-gradient.
    (2) The operator shall comply with the following requirements in 
reclaiming to cropland:
    (a)(i) Soil materials must be selected and handled in such a way 
and redistributed to such a thickness, and the underlying regraded 
spoil properties must be of sufficient quality such that the 
postmining productivity of the root zone will be sufficient to 
support cropland as the postmining land use.
    (ii) The following minimum requirements must be met:
    (A) Soils must be replaced to a minimum thickness of 24 inches; 
and
    (B) The root zone thickness must be consistent with the 
requirements of ARM 17.24.501(2);
    (b) If necessary to protect replaced soil materials from wind 
and water erosion, or if necessary to enhance soil productivity, 
stability or the capacity for root penetration, a grass-legume 
mixture must be planted and maintained as determined by the 
department; and
    (c) Soil amendments must be added in accordance with ARM 
17.24.718.

    17.24.815, prime farmland revegetation. Montana proposes to create 
a new subparagraph (1)(a) to require that if the approved postmining 
land use is not cropland, either (1) test plots must be cropped to 
demonstrate restoration of productivity; the rest of the area, and the 
test plots after productivity demonstration, must be revegetated in 
accordance with the standards of ARM 17.24.711, 17.24.713, 17.24.714, 
17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, 
and 17.24.731 and with the approved postmining land use; or (2), the 
entire disturbed area might be cropped until productivity 
demonstration, after which the entire area must be revegetated as 
above. Montana also proposes a new subparagraph (1)(b) to provide that 
if the approved postmining land use is cropland, that the area be 
permanently reclaimed to cropland.
    17.24.821. Montana proposes to change the title of this rule from 
``Alternate Reclamation'' to ``Alternative Postmining Land Uses: 
Submission of Plan.'' The body of the rule is proposed to be revised 
extensively, to read:

    (1) An operator may propose to the department a plan for a 
higher or better use as an alternative postmining land use pursuant 
to 82-4-232(7) and (8), MCA. With appropriate maps, narrative, and 
other materials, the plan must:
    (a) describe the nature of the alternative postmining land use;
    (b) address all of the criteria in 82-4-232(8) and (9), MCA; and
    (c) address the applicable requirements of ARM 17.24.823(1).
    (2) Each application for alternative postmining land use is 
subject to public review requirements of subchapter 4 either as part 
of a new application or as an application for a major revision. 
However, in its notice of application to government entities 
pursuant to ARM 17.24.401, the department shall allow 60 days for 
submission of comments from authorities having jurisdiction over 
land use policies and plans, and from appropriate state and federal 
fish and wildlife agencies.

    17.24.823. Montana proposes to change the title of this rule from 
``Alternate Reclamation: Approval Of Plan And Review Of Operation'' to 
``Alternative Postmining Land Uses: Approval of Plan.'' The body of the 
rule is proposed to be revised extensively, to read:

    (1) The department may approve a proposed alternative postmining 
land use if all of the following criteria are met:
    (a) the requirements of 82-4-232(8) and (9), MCA;
    (b) the proposed postmining land use is compatible, where 
applicable, with existing local, state or federal land use policies 
or plans relating to the permit area. Demonstration of compatibility 
with land use policies and plans must include, but is not limited 
to:
    (i) written statement of the authorities with statutory 
responsibilities for land use policies and plans submitted pursuant 
to ARM 17.24.821(2); and
    (ii) as applicable, obtaining any required approval, including 
any necessary zoning or other changes required for land use by 
local, state or federal land management agencies. This approval must 
remain valid throughout the strip or underground mining operations;
    (c) specific plans are submitted to the department that show the 
feasibility of the postmining land use as related to projected land 
use trends and markets and that include a schedule showing how the 
proposed use will be financed, developed, and achieved within a 
reasonable time after mining and how it will be sustained. These 
plans must be supported, if appropriate, by letters of commitment 
from parties other than the operator;
    (d) as applicable, provision of any necessary public facilities 
is ensured as evidenced by letters of commitment from parties other 
than the operator as appropriate, to provide the public facilities 
in a manner compatible with the plans submitted;
    (e) plans for the postmining land use are designed under the 
general supervision of a licensed professional engineer, or other 
appropriate professional, to ensure that the plans conform to 
applicable accepted standards for adequate land stability, drainage, 
and aesthetic design appropriate for the postmining use of the site;
    (f) the use will not involve unreasonable delays in reclamation; 
and
    (g) appropriate measures submitted by state and federal fish and 
wildlife management agencies to prevent or mitigate adverse effects 
on fish, wildlife, and related environmental values and threatened 
or endangered plants have been incorporated into the plan.

    17.24.824, alternate reclamation; alternative postmining land uses. 
Montana proposes to delete this rule.
    17.24.825, alternate reclamation; alternative revegetation. Montana 
proposes to delete this rule.
    17.24.826, alternate reclamation; period of responsibility for 
alternate revegetation. Montana proposes to delete this rule.
    17.24.832, auger mining performance standards. Montana proposes to 
revise paragraph (4) by deleting the existing contemporaneous 
reclamation standard and replacing it with a cross-reference to the 
requirements of 17.24.501(6)(c). Montana also proposes to add a new 
subparagraph (5)(b) to require that each auger hole discharging water 
not containing acid- or toxic-forming materials must be sealed with an 
impervious noncombustible material, as contemporaneously as practicable 
with the augering operation, as approved by the department. And Montana 
proposes to revise subparagraph (5)(c) to change the requirement for 
auger holes not discharging water to be sealed within 30 days to ``as 
contemporaneously as

[[Page 71438]]

practicable with the augering operation.''
    17.24.903, underground mining, general performance standards. 
Montana proposes to add a new paragraph (2) to require that adversely 
affected water supplies must be replaced in accordance with 82-4-243 
and 82-4-253, MCA, and ARM 17.24.648.
    17.24.911, subsidence control. Montana proposes to delete 
subparagraph (7)(d), which required replacement of any adversely 
affected domestic water supply.
    17.24.924, disposal of underground development waste, general 
requirements. At subparagraphs (4)(a), (18)(a), and (18)(d), Montana 
proposes to change the phrase ``registered professional engineer'' to 
``licensed professional engineer.'' At paragraph (9), Montana proposes 
to revise the list of revegetation performance standards, to include 
ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 
17.24.721, 17.24.723 through 17.24.726, and 17.24.731.
    17.24.927, disposal of underground development waste, durable rock 
fills. In paragraphs (1) and (2), Montana proposes to change the phrase 
``registered professional engineer'' to ``licensed professional 
engineer.''
    17.24.930, placement and disposal of coal processing waste: special 
application requirements. At subparagraph (2)(a)(i), Montana proposes 
to change the phrase ``registered professional engineer'' to ``licensed 
professional engineer.''
    17.24.932, disposal of coal processing waste. At subparagraph 
(5)(a), Montana proposes to change the phrase ``registered professional 
engineer'' to ``licensed professional engineer.''
    17.24.1001, prospecting permit requirement. At subparagraph (1)(b), 
Montana proposes to add a requirement for a prospecting permit if 
conducted on an area designated unsuitable for strip or underground 
coal mining pursuant to ARM 17.24.1131. Montana also proposes to add a 
new subparagraph (2)(d), to read as follows:

    (d) For any lands protected under 82-4-227(13), MCA, or ARM 
17.24.1131, a demonstration that, to the extent technologically and 
economically feasible, the proposed prospecting activities will 
minimize interference with the values for which those lands were 
designated. The application must include documentation of 
consultation with the owner of the feature causing the land to come 
under the designation, and, when applicable, with the agency with 
primary jurisdiction over the feature with respect to the values 
that caused the land to be so designated;

    Montana further proposes to add a new subparagraph (1)(q), to 
require a public notice and proof of publication in accordance with 
17.24.303(23), and providing that the procedures of 17.24.401(3) and 
(5), 17.24.402, and 17.24.403 must be followed. Montana further 
proposes several new provisions, to read as follows:

    (6) The department may not approve a prospecting permit 
application unless the application affirmatively demonstrates and 
the department finds in writing, on the basis of information set 
forth in the application or information otherwise available that is 
compiled by the department, that:
    (a) The application is complete and accurate and that the 
prospecting and reclamation will be conducted in accordance with all 
applicable requirements of this subchapter;
    (b) The proposed prospecting operation will not jeopardize the 
continued existence of endangered or threatened species or result in 
destruction or adverse modifications of their critical habitats;
    (c) The application complies with applicable federal and state 
cultural resource requirements, including ARM 17.24.318, 17.24.1131 
and 17.24.1137; and
    (d) The proposed prospecting activities will meet the 
requirements of (2)(d) and that the owner of the feature causing any 
land to come under a protected designation, pursuant to 82-4-
227(13), MCA, or ARM 17.24.1131, and, when applicable, with the 
agency with primary jurisdiction over the feature with respect to 
the values that caused the land to be so designated, have been 
provided the opportunity to comment on the department's finding on 
this matter.
    (7) Prospecting related activities or facilities that are 
conducted or created in accordance with this rule and ARM 17.24.1002 
through 17.24.1014 and 17.24.1016 through 17.24.1018 must be 
transferred to a valid strip or underground mining permit whenever 
such activities or facilities become part of mine operations in 
conjunction with ARM 17.24.308(2) or 17.24.609.

    17.24.1003, renewal and transfer of permits. Montana proposes only 
to revise the title of this rule by adding the words ``and transfer.''
    17.24.1018, notice of intent to prospect. Montana proposes to 
revise this rule by deleting existing subparagraph (1)(b)(i), which 
provides for a notice of intent if the purpose of the prospecting is 
not to determine the location, quality or quantity of a natural mineral 
deposit. Montana also proposes to add a new paragraph (2), to provide 
for a notice of intent if the prospecting is to gather environmental 
data. Montana also proposes to revise paragraph (9) to require that ARM 
17.24.1001(2)(k) and (q) are applicable to notices of intent.
    17.24.1104, bonding, adjustment of amount. Montana proposes to 
revise paragraph (1) to change bond ``adjustments'' to ``bond 
increases'' and ``area revised'' or ``work changes'' to ``increases.'' 
Montana proposes to revise paragraph (3) to limit bond adjustments for 
``other circumstances'' to those not related to the completion of 
reclamation work, and to provide that bond reductions involving 
disturbed land previously released from reclamation liability in 
accordance with ARM 17.24.1111 through 17.24.1115 and 17.24.1116(6) are 
not considered bond releases subject to 17.24.1111.
    17.24.1106, bonding: terms and conditions of bond. Montana proposes 
to delete existing paragraph (1), which provides that the department 
may not accept surety bonds in excess of 10% of the surety company's 
capital surplus account as shown on a balance sheet certified by a 
certified public accountant. Montana also proposes to add a new 
subparagraph (1)(b) providing that the department may not accept surety 
bonds from a surety company that is not listed in the U.S. Department 
of the Treasury's listing of approved sureties (Circular 570).
    17.24.1108, bonding, certificates of deposit. Montana proposes to 
revise paragraph (1) to allow additional institutions to determine the 
maximum insurable amount. Montana also proposes to revise paragraph (2) 
to limit automatically renewable certificates of deposit to banks 
insured by the FDIC or credit unions insured by the national credit 
union administration.
    17.24.1109, bonding, letters of credit. Montana proposes to revise 
subparagraph (1)(d), and add new subparagraphs (1)(e) through (1)(g), 
to read as follows:

    (d) The letter must not be for an amount in excess of 10% of the 
bank's capital surplus account as shown on a balance sheet certified 
by a certified public accountant for the most recent annual 
reporting period.
    (e) Using the balance sheet referenced in (1)(d) and a certified 
income and revenue sheet, the bank must meet the three following 
criteria:
    (i) The bank must be earning at least a 1% return on total 
assets (net income/total assets = 0.01 or more);
    (ii) The bank must be earning at least a 10% return on equity 
(net income/total stockholders equity = 0.1 or more); and
    (iii) Capital or stockholders' equity must be at least 5.5% of 
total assets ((total stockholders equity [shareholders equity + 
capital surplus + retained earnings])/total assets = 0.055 or more).
    (f) Under a general financial health category, from either 
Sheshunoff Information Services, Moody's (Mergent Ratings Service) 
or Standard and Poor's, the bank must have a b+ or better rating for 
the current and previous two quarters.

[[Page 71439]]

    (g) The bank's qualifications must be reviewed yearly prior to 
the time the letter of credit is renewed.

    17.24.1116, bonding, criteria and schedule for release. Montana 
proposes to delete paragraph (6), which addresses alternate 
reclamation. Montana also proposes to revise subparagraphs (6)(b) 
through (6)(d), and to add a new paragraph (7), to read as follows:

    (b) Reclamation phase II is deemed to have been completed when:
    (i) [remains the same].
    (ii) At least two growing seasons (spring and summer for two 
consecutive years) have elapsed since seeding or planting of the 
affected area;
    (iii) Vegetation is establishing that is consistent with the 
species composition, cover, production, density, diversity, and 
effectiveness required by the revegetation criteria in ARM 
17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 
17.24.721, 17.24.723 through 17.24.726, 17.24.731 and 17.24.815 and 
the approved postmining land use;

(iii) through (v) remain the same, but are renumbered (iv) through 
(vi).
    (c) Reclamation phase III is deemed to have been completed when:
    (i) The applicable responsibility period (which commences with 
the completion of any reclamation treatments as defined in ARM 
17.24.725) has expired and the revegetation criteria in ARM 
17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 
17.24.721, 17.24.723 through 17.24.726, 17.24.731 and 17.24.815, as 
applicable to and consistent with the approved postmining land use 
are met;
    (ii) A stable landscape has been established consistent with the 
approved postmining land use;
    (iii) The lands are not contributing suspended solids to stream 
flow or runoff outside the permit area in excess of the requirements 
of ARM 17.24.633 or the permit; and
    (iv) As applicable, the provisions of a plan approved by the 
department for the sound future management of any permanent 
impoundment by the permittee or landowner have been implemented to 
the satisfaction of the department; or
    (v) The lands meet the special conditions provided in 82-4-
235(3)(a), MCA;
    (d) Reclamation phase IV is deemed to have been completed when:
    (i) All disturbed lands within any designated drainage basin 
have been reclaimed in accordance with the phase I, II, and III 
requirements;
    (ii) through (v) [remain the same].
    (vi) Implementation of any alternative land use plan approved 
pursuant to ARM 17.24.821 and 17.24.823 has been successfully 
achieved; and
    (vii) [remains the same].
    (7) Information from annual reports and monitoring data, 
generated pursuant to ARM 17.24.645, 17.24.646, 17.24.723, and 
17.24.1129, and from department inspection reports may be used or 
referenced to support applications for bond release.

    17.24.1125, liability insurance. Montana proposes to revise 
paragraph (2) to require that liability insurance policies must be 
maintained in full force until final bond release on the permit area.
    17.24.1129, annual report. Montana proposes to revise subparagraph 
(2)(e) to require to be included in annual reports any vegetation 
monitoring data and analyses pursuant to 17.24.723. Montana also 
proposes to revise paragraph (3) to clarify that only maps containing 
information listed in ARM 17.24.305(1) must be certified in accordance 
with ARM 17.24.305.
    17.24.1131, protection of parks, historic sites, and other lands. 
Montana proposes to revise this rule to clarify that it applies to 
lands protected under paragraph (13) of 82-4-227, MCA.
    17.24.1132, lands where mining is prohibited. Montana proposes to 
revise subparagraph (1)(a) to define ``valid existing rights'' to have 
the same definition as the definition of the term contained in 30 CFR 
761.5 (2003), which is incorporated by reference into the rule.
    17.24.1133, lands where mining is prohibited, procedures. Montana 
proposes to revise paragraph (2), add new subparagraphs (2)(a) and 
(2)(b) and new paragraph (3), to read as follows:

    (2) Whenever a proposed operation would be located on any lands 
listed in 82-4-227(7) or (13), MCA, (except for proximity to public 
roads) or ARM 17.24.1131, the department shall reject the 
application unless:
    (a) The applicant has valid existing rights for the proposed 
permit area; or
    (b) The operation existed when the land came under the 
protection of 82-4-227(7) or (13), MCA, (except the proximity of 
public roads) or ARM 17.24.1131. This exception applies only to land 
within the permit area as it exists when the land comes under this 
protection.
    (3) Procedures for submitting requests and for determining valid 
existing rights must be conducted in accordance with 30 CFR 761.16 
(2003), which is incorporated into this rule by this reference. 
Copies of 30 CFR 761.16 may be obtained from the department at its 
Helena office.

    17.24.1201, inspections. Montana proposes several revisions to this 
rule, to read as follows:

    (1) The department shall conduct an average of at least one 
partial inspection per month of each active mining operation and 
such partial inspections of each inactive mining operation as are 
necessary to enforce the Act, the rules adopted under the Act and 
the permit, at least one complete inspection per calendar quarter of 
each active and inactive mining operation, and such periodic partial 
or complete inspections of prospecting operations as are necessary 
to enforce the Act, the rules adopted pursuant thereto, and the 
permit.
    (2) A partial inspection is an on-site or aerial observation of 
the operator's compliance with some of the mining or prospecting 
permit conditions and requirements. Aerial inspections shall be 
conducted in a manner and at a time that reasonably ensure the 
identification and documentation of conditions at each operation in 
relation to permit conditions and requirements.
    (3) A complete inspection is an on-site observation of the 
operator's compliance with all of the mining or prospecting permit 
conditions and requirements within the entire area disturbed or 
affected by the operation.
    (4) Inspections must occur without prior notice to the 
permittee, except for necessary on-site meetings, be conducted on an 
irregular basis, and be scheduled to detect violations on nights, 
weekends, and holidays.

    17.24.1202. Montana proposes revisions to both the title and body 
of this rule, to read as follows:

    17.24.1202 CONSEQUENCES OF INSPECTIONS AND COMPLIANCE REVIEWS
    (1) Inspectors shall examine mining and reclamation activities 
and promptly file with the department inspection reports adequate to 
determine whether violations exist.
    (2) If it is determined on the basis of an inspection that the 
permittee is, or any condition or practice exists, in violation of 
any requirement of this part or any permit condition required by 
this part, the director or an authorized representative shall 
promptly issue a notice of noncompliance or order of cessation for 
the operation or the portion of the operation relevant to the 
condition, practice, or violation in accordance with 82-4-251, MCA, 
and this subchapter.
    (3) The department may order changes in mining and reclamation 
plans as are necessary to ensure compliance with the Act and the 
rules adopted pursuant thereto.
    (4) If on the basis of field inspection or review of records or 
reports the department determines that reclamation is unsuccessful 
in terms of the Act, the rules adopted pursuant thereto or permit 
conditions or requirements, the department shall order the operator 
to immediately investigate and determine the cause. The operator 
shall subsequently submit an investigative report along with a 
prescribed course of corrective action, so that alternatives can be 
employed to promptly ensure compliance with the Act, the rules 
adopted pursuant thereto, and the permit.

    17.24.1206, enforcement. Montana proposes to revise paragraph (4) 
to delete a provision that if a notice of noncompliance or cessation 
order does not require any abatement, terminations of abatement need 
not be issued. Montana proposes to revise subparagraph (5)(d) to 
clarify that requests for abatement extensions beyond 90 days must be 
submitted to the board of environmental review, and that hearings must 
be a contested case

[[Page 71440]]

hearings in accordance with 82-4-206, MCA.
    17.24.1211, civil penalties. Montana proposes to revise paragraph 
(2) to clarify that to contest the fact of violation or the amount of 
penalty, requests for hearings must be submitted to the board of 
environmental review, and that hearings must be a contested case 
hearings in accordance with 82-4-206, MCA.
    17.24.1212, civil penalty point system. Montana proposes to revise 
paragraph (4) to clarify that the hearings specified are those 
requested under 82-4-254(3), MCA.
    17.24.1219, individual civil penalties, procedures. Montana 
proposes to revise paragraph (2) to reduce the time for an assessment 
to become final from 30 days to 20 days, and decreases the length of 
time allowed for an individual to request a hearing from 30 days to 20 
days; also, Montana proposes that a request for hearing is a hearing 
under 82-4-254(3), MCA. Montana proposes to revise paragraph (4) to 
provide that the hearing on the individual civil penalty must be a 
contested case hearing conducted in accordance with 82-4-206(2), MCA.
    17.24.1226, small operator assistance, qualifications of providers. 
Montana proposes to revise subparagraph (2)(a)(vi) to require providers 
to be capable of meeting the applicable standards and methods contained 
in ARM 17.24.645 and 17.24.646.
    17.24.1263, suspension or revocation of blasters license. Montana 
proposes to revise paragraph (3) to clarify that blasters have a right 
to request a contested case hearing before the board of environmental 
review.
    17.24.1302, revision of permits. Montana proposes many revisions to 
this rule, to read as follows:

    (1) Within one year of October 22, 2004, each operator and each 
test pit prospector shall submit to the department an application 
for all permit revisions necessary to bring the permit and 
operations conducted thereunder into compliance with subchapters 3 
through 12 as they read on October 22, 2004.
    (2) A permit revision application submitted solely for purposes 
of (1) is a minor revision for purposes of subchapter 4.
    (3) No permittee may continue to mine or reclaim under an 
operating permit after the midterm (date that is two and one-half 
years after permit issuance or renewal) of the permit or the permit 
renewal date, whichever occurs later, unless the permit has been 
revised to comply with subchapters 3 through 12, as amended on 
October 22, 2004.

    In addition to the proposed revisions described above, Montana 
proposed numerous editorial revisions and codification changes 
necessitated by additions or deletions of provisions.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Montana program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your comments should be specific, pertain only to the 
issues proposed in this rulemaking, and include explanations in support 
of your recommendations. We will not consider or respond to your 
written comments when developing the final rule if they are received 
after the close of the comment period (see DATES). We will make every 
attempt to log all comments into the administrative record, but 
comments delivered to an address other than the Casper Field Office may 
not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SATS No. MT-025-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Casper Field Office at 
(307) 261-6550. In the final rulemaking, we will not consider or 
include in the administrative record any electronic comments received 
after the time indicated under DATES or at e-addresses other than the 
Casper Field Office.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.s.t. on 
December 14, 2005. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of

[[Page 71441]]

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. 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 one or more Indian Tribes, 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 rule does not involve or affect Indian Tribes in any way.

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

    No environmental impact statement is required for this rule since 
agency decisions on proposed State regulatory programs and amendments 
thereof are categorically excluded from compliance with the National 
Environmental Policy Act (42 U.S.C. 4321 et seq.) by the Manual of the 
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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. 
3501 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2) of the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

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

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 27, 2005.
James F. Fulton,
Acting Regional Director, Western Region.
[FR Doc. 05-23396 Filed 11-28-05; 8:45 am]
BILLING CODE 4310-05-P