[Federal Register Volume 72, Number 195 (Wednesday, October 10, 2007)]
[Rules and Regulations]
[Pages 57822-57838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-19851]



[[Page 57821]]

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Part V





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 926



Montana Regulatory Program; Final Rule

  Federal Register / Vol. 72, No. 195 / Wednesday, October 10, 2007 / 
Rules and Regulations  

[[Page 57822]]


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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: Final rule; approval of amendment with certain exceptions and 
an additional requirement.

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SUMMARY: We are approving, with certain exceptions and an additional 
requirement, an amendment to the Montana regulatory program (the 
``Montana program'') under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA or the Act). Montana proposed revisions to, 
additions of, and deletions of its program rules (ARM 17.24.301-1309). 
The amendment included changes to: 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 revised its program to be consistent with the 
corresponding Federal regulations and to implement previous statutory 
changes already approved by OSM.

DATES: Effective Date: October 10, 2007.

FOR FURTHER INFORMATION CONTACT: Jeffrey W. Fleischman, Telephone: 
307.261.6550, E-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

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

I. Background on the Montana Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Montana program on April 1, 1980. You can 
find background information on the Montana program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the April 1, 1980, Federal Register (45 FR 21560). You can 
also find later actions concerning Montana's program and program 
amendments at 30 CFR 926.15, 926.16, and 926.30.
    Rules for the Montana program are contained in ARM, Title 17 
Chapter 24 entitled ``Reclamation.'' The enabling statutes for the 
Montana program are contained largely under Title 82 entitled 
``Minerals, Oil, and Gas,'' and Chapter 4 entitled ``Reclamation.'' 
Permitting, performance standards, enforcement, and most program 
requirements are found in Part 2 of 82-4, Montana Code Annotated (MCA), 
entitled ``Coal and Uranium Mine Reclamation,'' and the provisions for 
penalties, fees, and interest are found in Part 10. The procedures for 
initiating and holding contested case administrative hearings are found 
at 82-4-206, MCA, and Title 2, Chapter 4, Part 6 of the Montana 
Administrative Procedure Act, and the provisions providing for judicial 
review of contested case decisions are set forth in Part 7.

II. Submission of the Proposed Amendment

    By letter dated August 29, 2005, Montana sent us an amendment to 
revise its regulatory program under SMCRA (30 U.S.C. 1201 et seq.) 
(Administrative Record No. MT-22-1). The proposed revisions are largely 
in response to changes to the Montana Strip and Underground Mine 
Reclamation Act that were the result of House Bill (HB) 373, which was 
enacted in 2003. OSM approved, with several exceptions, the changes to 
the statute in the February 16, 2005, Federal Register (70 FR 8001). 
Montana's proposed amendment is also in response to the required 
program amendments at 30 CFR 926.16(e)(1), (k), (l), and (m), and 
includes changes made at its own initiative, and provides clarification 
and specificity.
    We announced receipt of the proposed amendment in the November 29, 
2005, Federal Register (70 FR 71428). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on December 29, 2005. Three parties requested an 
extension of the comment period. We reopened and extended the public 
comment period in the February 13, 2006, Federal Register (71 FR 7475); 
the extended comment period ended on February 28, 2006. We received 
comments from one citizen's group and two individuals.

III. OSM's Findings

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

A. Explanation of Findings

    30 CFR 732.17(h)(10) requires that State program amendments meet 
the criteria for approval of State programs set forth in 30 CFR 732.15, 
including that the State's laws and regulations are in accordance with 
the provisions of the Act and consistent with the requirements of 30 
CFR part 700. In 30 CFR 730.5, OSM defines ``consistent with'' and ``in 
accordance with'' to mean (a) with regard to SMCRA, the State laws and 
regulations are no less stringent than, meet the minimum requirements 
of, and include all applicable provisions of the Act and (b) with 
regard to the Federal regulations, the State laws and regulations are 
no less effective than the Federal regulations in meeting the 
requirements of SMCRA.
Montana Rules Previously Disapproved by OSM
    Included in HB 373 (at Section 15: ``contingent voidness'') was a 
provision that if any other provision of HB 373 were to be disapproved 
by OSM, then that disapproved portion would be automatically void. For 
that reason, in its decision on the statute OSM did not require Montana 
to delete the provisions that were disapproved. A review of current 
postings of Montana's statutes shows that the disapproved provisions 
have been removed. Montana has no authority to propose a regulation 
under statutory provisions that were voided and removed from the 
statute because they were disapproved by OSM. However, this proposed 
amendment contains regulations to implement the previously-disapproved 
statutory provisions, apparently because the proposed regulations were 
developed

[[Page 57823]]

prior to OSM's decision on the statute. Montana recognizes this problem 
in its submission and states that the regulations will be removed in 
the State's next rulemaking.
    Nevertheless, OSM must formally disapprove these provisions in this 
decision. On this basis, OSM is disapproving the phrase ``and the 
hydrologic balance is protected as necessary to support postmining land 
uses within the area affected and the adjacent area'' in proposed 
subparagraph (c) of the definition of ``Approximate original contour'' 
at 17.24.301(13). OSM is also disapproving the final phrase ``as they 
relate to uses of land and water within the area affected by mining and 
the adjacent area'' in the definition of ``Hydrologic balance'' at 
proposed 17.24.301(54). Because Montana has committed to removing these 
provisions in its next rulemaking and because the offending provisions 
have no statutory basis, OSM is not establishing any required program 
amendments for them.

B. Minor Wording, Editorial, Punctuation, Grammatical and 
Recodification Changes to Previously Approved Regulations

    Montana proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved rules. In addition to the renumbering and reformatting, 
Montana also proposed in many instances to revise the statutory and 
implementing authority references after each section. No substantive 
changes to the text of these regulations were proposed. Further, 
Montana proposed numerous revisions to its regulatory program to 
simplify references to applicable rules, reduce unnecessary, redundant, 
and duplicative language, reorganize and/or relocate already existing 
language to a more appropriate place within the regulations, and to 
provide clarification and specificity to provisions that were 
previously approved by OSM. Because the proposed revisions to these 
previously-approved rules are minor in nature and do not change any 
fundamental requirements or weaken Montana's authority to enforce them, 
we are approving the changes and find that they are no less effective 
than the Federal regulations at Title 30 (Mineral Resources), Chapter 
VII (Office of Surface Mining Reclamation and Enforcement, Department 
of the Interior), parts 700 through 887.
    ARM 17.24.301(37) through (141)(b) recodified; definitions.
    ARM 17.24.301(53)(a) and (b); definition of ``Historically used for 
cropland.''
    ARM 17.24.301(68); definition of ``Materially damage the quantity 
and quality of water.''
    ARM 17.24.301(107)(d); definition of ``Ramp road.''
    ARM 17.24.303 recodified; Legal, Financial, Compliance, and Related 
Information.
    ARM 17.24.304(1)(f)(i)(C) and (ii)(A), and (i)-(l); recodified; 
Baseline Information: Environmental Resources.
    ARM 17.24.305(1)(j) and (2)(a); Maps.
    ARM 17.24.306; Baseline Information: Prime Farmland Investigation.
    ARM 17.24.308(1)(b)(vi); recodified; Operations Plan.
    ARM 17.24.312(1)(a), (d)(ii) and (2); Fish and Wildlife Plan.
    ARM 17.24.313(1)(g)(i) and (ii); recodification; Reclamation Plan.
    ARM 17.24.315; Plan for Ponds and Embankments; change 
``registered'' to ``licensed professional engineer'' in (1)(a)(i), 
(b)(i), and (d)(i).
    ARM 17.24.321(1)(a), (b) and (d); Transportation Facilities Plan.
    ARM 17.24.322(2)(a), (viii) and (ix); Geologic Information and Coal 
Conservation Plan.
    ARM 17.24.405(5)(a) and (b), (7)(a)(i), and (8)(a)(i); Findings and 
Notice of Decision.
    ARM 17.24.412(2) and (3); Extension of Time to Commence Mining.
    ARM 17.24.413(1)(d); recodified; Conditions of Permit.
    ARM 17.24.501(7); General Backfilling and Grading Requirements.
    ARM 17.24.520(3)(k) and (m); Thick Overburden and Disposal of 
Excess Spoil; change ``registered'' to ``licensed professional 
engineer'' in (3)(c), (i), (j)(ii) and (iv)(A).
    ARM 17.24.523(2); Coal Fires and Coal Conservation.
    ARM 17.24.601(8); General Requirements for Road and Railroad Loop 
construction; change ``registered'' to ``licensed professional 
engineer.''
    ARM 17.24.602(1); Location of Roads and Railroad Loops.
    ARM 17.24.605(3)(a)-(f) recodified; Hydrologic Impact of Roads and 
Railroad Loops.
    ARM 17.24.623(1), (5)(f), (6) and (7); recodification; Blasting 
Schedule.
    ARM 17.24.626(1); recodified; Records of Blasting Operations.
    ARM 17.24.634(1)(b), (e), (g), (h), (i), (2) and (3); 
recodification; Reclamation of Drainage Basins; change ``registered'' 
to ``licensed professional engineer'' in (2).
    ARM 17.24.635(6) and (7); General Requirements for Temporary and 
Permanent Diversion of Overland Flow, Through Flow, Shallow Ground 
Water Flow, Ephemeral Drainageways, and Intermittent and Perennial 
Streams; change ``registered'' to ``licensed professional engineer'' in 
(5).
    ARM 17.24.636 recodified; Special Requirements for Temporary 
Diversions.
    ARM 17.24.638(2)(a); Sediment Control Measures.
    ARM 17.24.639(1)(c)(ii), (d) and (e), (10), (11), (20)(a),(22), 
(23), (25), and (28)(a); Sedimentation Ponds and Other Treatment 
Facilities; change ``registered'' to ``licensed professional engineer'' 
in (17) and 28(b); and recodification of (24)(b)-(27).
    ARM 17.24.645(1), (3) and (6); Ground Water Monitoring.
    ARM 17.24.646(1) and (6); Surface Water Monitoring.
    ARM 17.24.702(4)(a); Redistribution and Stockpiling of Soil.
    ARM 17.24.703(1)(a); Substitution of Other Materials for Soil.
    ARM 17.24.711(2) and (3); Establishment of Vegetation.
    ARM 17.24.723(1), (2), (3) and (5); Monitoring.
    ARM 17.24.724 recodification; Revegetation Success Criteria.
    ARM 17.24.725(1); Period of Responsibility.
    ARM 17.24.726(3) and (4); recodified; Vegetation Measurements.
    ARM 17.24.730; Season of Use.
    ARM 17.24.732; Vegetation Requirements for Previously Cropped 
Areas.
    ARM 17.24.733; Measurement Standards for Trees, Shrubs, and Half-
Shrubs.
    ARM 17.24.751(2)(g), (h), (i), and (j); Protection and Enhancement 
of Fish, Wildlife, and Related Environmental Values.
    ARM 17.24.761(1)-(4); Air Resources Protection.
    ARM 17.24.815(2)(e)(i)(C); Prime Farmland Revegetation.
    ARM 17.24.824(2) and (4); Alternate Reclamation: Alternate 
Postmining Land Uses.
    ARM 17.24.825(1)(b)-(2); Alternate Reclamation: Alternate 
Revegetation.
    ARM 17.24.832(5)(a); Auger Mining: Specific Performance Standards.
    ARM 17.24.901(1)(c)(i)(G); General Application and Review 
Requirements.
    ARM 17.24.924(9); Disposal of Underground Development Waste: 
General Requirements; change ``registered'' to ``licensed professional 
engineer in (4)(a), (18)(a) and (d).''
    ARM 17.24.927; Disposal of Underground Development Waste: Durable 
Rock Fills; change ``registered'' to ``licensed professional engineer'' 
in (1) and (2).
    ARM 17.24.930; Placement and Disposal of Coal Processing Waste:

[[Page 57824]]

Special Application Requirements; change ``registered'' to ``licensed 
professional engineer'' in (2)(a)(i).
    ARM 17.24.932; Disposal of Coal Processing Waste; change 
``registered'' to ``licensed professional engineer'' in (5)(a).
    ARM 17.24.1001(1)(a), (b) and (2)(c); Permit Requirement; 
recodification of (d)-(m), (n) and (o).
    ARM 17.24.1002(2)(a)(j); Information and Monthly Reports.
    ARM 17.24.1003; Renewal and Transfer of Permits.
    ARM 17.24.1017(1)(b)(i); Bond Release Procedures for Drilling 
Operations.
    ARM 17.24.1018(1)(a), (b), (5)(a), (6)(a), and (9); Notice of 
Intent to Prospect.
    ARM 17.24.1104(2); Bonding: Adjustment of Amount of Bond.
    ARM 17.24.1106(1)(a) and (b); recodified; Bonding: Terms and 
Conditions of Bond.
    ARM 17.24.1109 (1) and (5); recodified; Bonding: Letters of Credit.
    ARM 17.24.1116(6)(b)(ii), (c)(iv), (d)(i), (vi) and (7); Bonding: 
Criteria and Schedule for Release of Bond.
    ARM 17.24.1129(2)(e) and (3); Annual Report.
    ARM 17.24.1131(1); recodified; Protection of Parks, Historic Sites, 
and Other Lands.
    ARM 17.24.1206(1), (4), (5)(a) and (d); Notices, Orders of 
Abatement and Cessation Orders: Issuance and Service.
    ARM 17.24.1211(2); Procedure for Assessment and Waiver of Civil 
Penalties.
    ARM 17.24.1212(1)(a)-(d), (2) and (4); Point System for Civil 
Penalties and Waivers.
    ARM 17.24.1219(2)(a) and (4); Individual Civil Penalties: Procedure 
for Assessment.
    ARM 17.24.1225(2)(a)(i), (b), (d), (f)-(j) and (3); Small Operator 
Assistance Program: Data Requirements.
    ARM 17.24.1226(2)(a)(vi) and (vii); Small Operator Assistance 
Program: Qualification of Laboratories, Consultants, and Contractors.
    ARM 17.24.1250(1); Restrictions on Employee Financial Interests: 
Contents of Statement.
    ARM 17.24.1255(1); Restrictions on Employee Financial Interests: 
Multiple Interest Advisory Boards.
    ARM 17.24.1263(1)(a) and (3); Suspension or Revocation of Blaster 
Certification.

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

    Montana proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations and/or SMCRA. Therefore we are approving 
them.
    ARM 17.24.301(26); definition of ``Community or institutional 
building'' [30 CFR 816.61(d)(1)(i), 816.67(b)(1)(i) and 816.68(d)].
    ARM 17.24.301(36); definition of ``Dwelling'' [30 CFR 
816.61(d)(1)(i), 816.67(b)(1)(i) and 816.68(d)].
    ARM 17.24.301(59); definition of ``Incidental boundary revision'' 
[30 CFR 774.13(d) and SMCRA Section 511(3)].
    ARM 17.24.301(107)(b); definition of ``Haul road'' [30 CFR 701.5 
and 816/817.150(a)(2)(ii)].
    ARM 17.24.302; Format, Data Collection, and Supplemental 
Information [30 CFR 777.11(a) and 777.13].
    ARM 17.24.303(1)(w), (x), and (y); Legal, Financial, Compliance, 
and Related Information [30 CFR 778.21 and 777.14(b)].
    ARM 17.24.305(2)(b)(i); Maps [30 CFR 779.25(b), 780.14(c) and 
783.25(b)].
    ARM 17.24.313(1)(b), (d)(ii) and (iv), (g), and (h); Reclamation 
Plan [30 CFR 780.18(b)(1), (3), (4) and (5)].
    ARM 17.24.321(1) and (3); Transportation Facilities Plan [30 CFR 
780.37(a)(5) and 784.24(a)(5)].
    ARM 17.24.322(2)(a)(x) and (4); Geologic Information and Coal 
Conservation Plan [30 CFR 780.18(b)(6) and 816.59].
    ARM 17.24.416(1)(b); Permit Renewal [30 CFR 774.15(b)(2)(iv)].
    ARM 17.24.427(1)(a), (c) and (2); Change of Contractor [30 CFR 
774.17(a),(b), and (d)].
    ARM 17.24.501(4)(d); General Backfilling and Grading Requirements 
[30 CFR 816.102(a)(2)].
    ARM 17.24.501(6)(d); General Backfilling and Grading Requirements 
[30 CFR 816.102(a)].
    ARM 17.24.603(4); Road and Railroad Loop Embankments [30 CFR 
816.151(b)].
    ARM 17.24.605(8); Hydrologic Impact of Roads and Railroad Loops [30 
CFR 816.151(d)(6)].
    ARM 17.24.609(1); Other Support Facilities [30 CFR 816.181(b)].
    ARM 17.24.623(2); Blasting Schedule [30 CFR 816.64(b)(2)].
    ARM 17.24.623(5)(b); Blasting Schedule [30 CFR 816.64(c)(2)].
    ARM 17.24.624(4); Surface Blasting Requirements [30 CFR 816.66(b)].
    ARM 17.24.626(1)(j); Records of Blasting Operations [30 CFR 
816.68(j)].
    ARM 17.24.636(2) and (3); Special Requirements for Temporary 
Diversions [30 CFR 816.43(a)(2)(i) and (iii)].
    ARM 17.24.639(2), (3) and (7); Sedimentation Ponds and Other 
Treatment Facilities; [30 CFR 816.46(c)(1) and (2)].
    ARM 17.24.642(1)-(7); Permanent Impoundments and Flood Control 
Impoundments [30 CFR 816.49(a)(9) and (b)].
    ARM 17.24.646(4); Surface Water Monitoring [30 CFR 816.42].
    ARM 17.24.701(4); Removal of Soil [30 CFR 816.22(a)(3)].
    ARM 17.24.702(4)(b) and (6); Redistribution and Stockpiling of 
Soil; [30 CFR 816.22(d)(1)(i) and (2)].
    ARM 17.24.714(1); Soil Stabilizing Practices [30 CFR 816.114].
    ARM 17.24.716(1), (3), (4), and (5); Method of Revegetation; [30 
CFR 816.111(a) and (b) and 780.18(b)(5)].
    ARM 17.24.717(1); Planting of Trees and Shrubs [30 CFR 816.111(b) 
and 816.116(a) and (b)(3)(ii) and (iii)].
    ARM 17.24.718(3); Soil Amendments, Management Techniques, and Land 
Use Practices [30 CFR 816.116(c)(4)].
    ARM 17.24.724(1)-(3); Revegetation Success Criteria [30 CFR 
816.116(a)(1) and (b)].
    ARM 17.24.726(2) and (3); Vegetation Measurements [30 CFR 
816.116(a)(2) and 816.116(c)(3)(i)].
    ARM 17.24.751(1) and (2)(a), (c) and (f); Protection and 
Enhancement of Fish, Wildlife, and Related Environmental Values [30 CFR 
816.97(b), (c), (e)(1) and (3), (f) and the MOU between OSM and the 
USFWS].
    ARM 17.24.762(1)(a)-(d); Postmining Land Use [30 CFR 816/817.133(b) 
and 780.23(a)(1)].
    ARM 17.24.832(4) and (5)(b) and (c); Auger Mining: Specific 
Performance Standards [30 CFR 819.19(a) and 819.15(b)(2)].
    ARM 17.24.1001; Permit Requirement; (2)(d) [30 CFR 772.12(b)(14)].
    ARM 17.24.1104(1) and (3); Bonding: Adjustment of Amount of Bond 
[30 CFR 800.15].
    ARM 17.24.1108(1), (2) and (4); Bonding: Certificates of Deposit 
[30 CFR 800.21(a)].
    ARM 17.24.1125(2); Liability Insurance [30 CFR 800.60(b)].
    ARM 17.24.1132(1)(a); Definition of ``valid existing rights;'' 
[incorporates by reference the Federal definition at 30 CFR 761.5].
    ARM 17.24.1133; Areas Upon Which Coal Mining is Prohibited: 
Procedures for Determination; (2)(a), (b) [30 CFR 761.11 and 761.12] 
and (3) [incorporates by reference the Federal requirements and 
criteria for submission and processing of requests for valid existing 
rights determinations at 30 CFR 761.16].
    ARM 17.24.1201(1)-(4); Frequency and Methods of Inspections [30 CFR 
840.11(a), (b), (d)(1), and (e)(1) and (2)].

[[Page 57825]]

    ARM 17.24.1202(1); Consequences of Inspection and Compliance 
Reviews [30 CFR 840.11(e)(3)].
    ARM 17.24.1301; Modification of Existing Permits: Issuance of 
Revisions and Permits [774.10(a)(1) and (b)].

D. Revisions Adopting or Deleting Language Consistent With the 
Revisions to the Montana Statute Approved by OSM

    Montana proposes several revisions to its rules that are consistent 
with and reflect enactment of the provisions in HB 373 that were 
approved in our decision published in the February 16, 2005, Federal 
Register (70 FR 8001). We are approving these previously-approved 
changes. Montana also proposes to eliminate language and citations that 
are no longer necessary due to the approval of those statutory changes 
in the February 16, 2005, Federal Register. We are also approving these 
ancillary changes.
    ARM 17.24.301(6); definition of ``Adjacent area.''
    ARM 17.24.301(11); definition of ``Alternative postmining land 
use.''
    ARM 17.24.301(13); the introductory text, subparagraphs (a), (b), 
and (d) of the definition of ``Approximate original contour.''
    ARM 17.24.301(38); definition of ``Ephemeral drainageway.''
    ARM 17.24.301(50); definition of ``Higher or better uses.''
    ARM 17.24.301(54); definition of ``Hydrologic balance.''
    ARM 17.24.301(64); definition of ``Land use.''
    ARM 17.24.301(64)(b); deleting the definition of ``Special use 
pasture'' and substituting with the definition of ``Pastureland.''
    ARM 17.24.301(64)(c); definition of ``Grazing land.''
    ARM 17.24.301(64)(d); deleting the definition of ``Commercial 
forest land and substituting with the definition of ``Forestry.''
    ARM 17.24.301(64)(g); definition of ``Recreation.''
    ARM 17.24.301(64)(h); definition of ``Fish and wildlife habitat.''
    ARM 17.24.301(67); definition of ``Material damage.''
    ARM 17.24.301(90); definition of ``Prime Farmland.''
    ARM 17.24.301(103); definition of ``Reference area.''
    ARM 17.24.301(143); definition of ``Wildlife habitat enhancement 
feature.''
    ARM 17.24.312(1)(b); Fish and Wildlife Plan.
    ARM 17.24.313(1)(a); Reclamation Plan.
    ARM 17.24.324(1)(e); Prime Farmlands: Special Application 
Requirements; deletion of cross-references resulting from statutory 
changes.
    ARM 17.24.401(3)(f) and (5)(a)(iv); Filing of Application and 
Notice.
    ARM 17.24.405(1) and (2), (6)(j), and deletion of (7); Findings and 
Notice of Decision.
    ARM 17.24.501(4)(a); General Backfilling and Grading Requirements.
    ARM 17.24.634(c); Reclamation of Drainage Basins.
    ARM 17.24.711(1)(a)(2) and (3), and (1)(b); Establishment of 
Vegetation.
    ARM 17.24.726; Vegetation Measurements; deletion of (3), (5) and 
(7).
    ARM 17.24.728; Composition of Vegetation.
    ARM 17.24.751(2)(e); Protection and Enhancement of Fish, Wildlife, 
and Related Environmental Values.
    ARM 17.24.762(1), (2), and (3); Postmining Land Use.
    ARM 17.24.764; Cropland Reclamation.
    ARM 17.24.815(1)(a)(i), (ii) and (b); Prime Farmland Revegetation.
    ARM 17.24.821; Alternative Postmining Land Uses: Submission of 
Plan.
    ARM 17.24.823(1)(a); Alternative Postmining Land Uses: Approval of 
Plan.
    ARM 17.24.824(1), (3), and (5); Alternate Reclamation: Alternate 
Postmining Land Uses.
    ARM 17.24.1116(6), (c)(v) and (d)(vi); Bonding: Criteria and 
Schedule for Release of Bond.

E. Revisions to Montana's Rules With No Corresponding Federal Statute 
or Regulation

    Montana proposed several revisions to its regulatory program for 
which there is no Federal counterpart provision.
    1. ARM 17.24.301(46); Definition of ``Good Ecological Integrity.'' 
Montana proposes to add a new definition for ``Good ecological 
integrity'' 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.

    Montana maintains that this definition is needed to adequately and 
appropriately describe the desired condition for reference and 
reclaimed areas. Specifically, Montana states that following an 
extensive literature review, it was determined that this term is 
regularly accepted, used and recommended by a variety of professional 
ecologists. Montana further notes that the term emphasizes the 
combination of ecological, social and economic factors at different 
temporal and spatial scales, and that the desired result is the 
maintenance of a diversity of life forms, ecological processes and 
human cultures. Montana goes on to explain that ``Good'' is a commonly 
and conventionally accepted minimum standard insisted on by competent 
land managers and by land management agencies as a condition and/or 
goal necessary to sustain the utility and economic value of vegetation, 
land uses and ecosystems. Lastly, Montana states that the term 
``ecological integrity'' is consistent with vegetation, land and 
resource valuation systems being commonly used by federal and state 
land management agencies, academia, consultants and private land 
managers. The rationale Montana provided for justifying the addition of 
this definition is reasonable, and the lack of a Federal counterpart 
definition does not render this proposed rule less effective than the 
Federal regulations. Therefore, we approve it.
    2. ARM 17.24.323; Grazing Plan. Montana proposes to delete this 
rule and explains that grazing is discretionary management to be used 
by a mine operator to achieve the approved revegetation and postmining 
land use results, and that the State Board has determined that 
implementation and management of grazing within a mine permit area 
should be the responsibility of the operator. If the operator fails to 
appropriately use grazing, the desired/approved revegetative/land use 
results will probably not be obtained and phase III bond release will 
not be realized. Lastly, Montana notes that it has the power to require 
appropriate practices or to pursue enforcement actions if the operator 
violates any rules regarding revegetation or land use.
    The Federal grazing rules, previously located at 30 CFR 816.115, 
required livestock grazing for the last two years of the responsibility 
period when the approved postmining land use is range or pasture land. 
This requirement was intended to assure that the vegetation would 
support about the same number of livestock that would be supported had 
the area not been mined. OSM suspended previous 30 CFR 816.115 on 
August 4, 1980 (45 FR 51549), in response to a U.S. District Court 
ruling that section 515(b)(19) of the Act does not require lands with a 
postmining use

[[Page 57826]]

of pasture or grazing to be actually subjected to grazing activities. 
In re: Permanent Surface Mining Regulation Litigation, 617 F.2d 807 
(1980). On September 2, 1983 (48 FR 40140) OSM removed the previously 
suspended regulation at 30 CFR 816.115, thereby eliminating any 
reference to required grazing from the Federal regulations.
    For these reasons, Montana's deletion of the grazing plan rule and 
its rationale for doing so is acceptable and does not render Montana's 
rules less effective than SMCRA and the Federal regulations. Therefore, 
we are approving the deletion. For these same reasons, we are approving 
Montana's proposed deletion of its requirements for livestock grazing 
at ARM 17.24.719.
    3. ARM 17.24.413; Conditions of Permit. Montana proposes to add an 
additional condition to all permits at subparagraph (1)(f), 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.

    The Federal regulations at 30 CFR 800.16(e) require that 
performance bonds provide a mechanism for a bank or surety company to 
give prompt notice to the regulatory authority and the permittee of any 
action filed alleging the insolvency or bankruptcy of the surety 
company, the bank, or the permittee, or alleging any violation which 
would result in the suspension or revocation of the surety or the bank 
charter or license to do business. Montana's proposed rule provides 
guidance beyond that contained in the Federal regulations to the extent 
that it requires the permittee to personally and immediately notify the 
Department of Environmental Quality (Department) of its financial 
inability to perform reclamation operations and supply it with relevant 
information to that effect. Accordingly, the proposed rule is no less 
effective than the Federal regulations and we approve it.
    4. ARM 17.24.522; Permanent Cessation of Operations. Montana 
proposes to delete the first two sentences of paragraph (3), which 
provides 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. Montana's explanatory note states that the 
proposed deletion is necessary because the provision conflicts with ARM 
17.24.501(6)(b), which requires backfilling and grading to be completed 
within two years after coal removal, and the 90-day requirement is 
unrealistic for large coal mining operations. We agree. The Federal 
time and distance requirements for backfilling and grading at 30 CFR 
816.101 were suspended indefinitely on August 31, 1992 (57 FR 33875, 
July 31, 1992). Moreover, the permanent cessation of operations 
regulations at 30 CFR 816.132(a) requires persons who permanently cease 
surface mining operations to close or backfill or otherwise permanently 
reclaim all affected areas in accordance with the permit approved by 
the regulatory authority. In other words, the regulatory authority has 
discretion in determining time and distance requirements for 
backfilling and grading operations. The provision which Montana 
proposed for deletion falls within the State's discretion to specify, 
according to the Federal regulations. There is no exact Federal 
equivalent. Therefore, we find the proposed revision is not 
inconsistent with the applicable Federal provisions and we approve it.
    5. ARM 17.24.633; Water Quality Performance Standards. Montana 
proposes to revise paragraph (2) of this rule to require a 
demonstration that drainage basins have been stabilized consistent with 
the approved postmining land use. Montana explains that the rule change 
modifies the evaluation of drainage basin stability to reflect 
enactment of HB 373 by the 2003 Legislature. Under HB 373, there is a 
greater opportunity for having a postmining land use that is different 
from the premining land use and, thus, drainage basin stability must be 
evaluated in that context. We agree. In the February 16, 2005, Federal 
Register (70 FR 8001, 8004), we approved subparagraph (c) of Montana's 
statutory definition of ``Approximate Original Contour'' at 82-4-203(4) 
which stated that ``postmining drainage basins may differ in size, 
location, configuration, orientation, and density of ephemeral 
drainageways compared to the premining topography if they are 
hydrologically stable, soil erosion is controlled to the extent 
appropriate for the postmining land use, and the hydrologic balance is 
protected.'' In approving this language, we noted that it provides 
guidance beyond that contained in the Federal definition of approximate 
original contour. This same rational applies here. Further, as we note 
in Finding III.F.8., OSM has previously granted regulatory authorities 
the flexibility to develop stabilization measures consistent with local 
terrain, climate, soils, and other conditions existing within the State 
with respect to exposed surface areas, including drainage basins (48 FR 
1160, January 10, 1983). For these reasons, we find that Montana's 
proposed rule change is no less stringent than SMCRA and we are 
approving it.
    6. ARM 17.24.711; Establishment of Vegetation. Montana proposes to 
revise its rules by adding new subparagraph (1)(a) that implements 
statutory language previously approved by OSM in our decision published 
in the February 16, 2005, Federal Register (70 FR 8001, 8008). With one 
exception, Montana's proposed revision provides revegetation 
requirements equivalent to SMCRA 515(b)(19) and 30 CFR 816/817.111(a). 
The exception, as was discussed in the February 16, 2005 Federal 
Register Notice (Finding C.14.a) addressing the identical statutory 
language, is that Montana's proposal at proposed subparagraph (1)(a) 
would not require operators to plant water areas, surface areas of 
roads, ``and other constructed features.'' The Federal requirements of 
SMCRA 515(b)(19), as implemented at 30 CFR 816/817.111(a), provide only 
the first two exemptions. The third exemption provided by Montana, 
``and other constructed features,'' is undefined. All of reclamation 
could be considered ``constructed,'' so this exemption could broadly be 
construed to apply to the whole affected area. We believe that Montana 
intended here that this exemption would be applied to parking lots, 
material storage yards, etc., that are limited in size and slope, and 
are stabilized against erosion by paving or gravel. Therefore, 
consistent with our decision in the February 16, 2005, Federal 
Register, we are approving ARM 17.24.711(1)(a) with the proviso that 
the exemption for ``and other constructed features approved as part of 
the postmining land use'' not be applied until (1) Montana promulgates 
rules that provide for a clear definition of ``other constructed 
features'' and provide for limits on size and slope and stabilization 
against erosion, and other factors that may affect environmental 
stability, and (2) those rules are approved by OSM.
    Montana also amends its rules at ARM 17.24.711(1)(a)(1), 
subparagraph (d), by proposing a limitation that the revegetation need 
only be capable of stabilizing soil erosion to the extent appropriate 
for the postmining land use. Consistent with our decision in the 
February 16, 2005, Federal Register notice, we are approving Montana's 
proposed amendment with the understanding that revegetation success 
standards must be representative of

[[Page 57827]]

unmined lands under that proposed postmining land use in the area. In 
other words, the erosion control achieved by revegetation that meets 
the success standards will be equivalent to the erosion protection of 
unmined lands being used for the same purpose within that general 
vicinity. This is particularly true when an alternative ``higher or 
better,'' land use is being established during reclamation.
    7. ARM 17.24.1109; Bonding: Letters of Credit. Montana proposes to 
revise subparagraph (1)(d), and add new subparagraphs (1)(e), (f), and 
(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.
    (g) The bank's qualifications must be reviewed yearly prior to 
the time the letter of credit is renewed.

    There are no similar provisions in SMCRA or the Federal 
regulations. Montana states that the proposed amendment to (1)(d) 
requires the balance sheet to be for the most recent annual reporting 
period to assure that the Department bases its evaluation of the 
financial condition of the bank on current financial information. 
Montana also notes that the proposed addition of (1)(e) and (f) 
provides prudent standards for the Department to follow when evaluating 
whether to accept a letter of credit from an issuing bank, and goes on 
to explain that these financial tests were developed in consultation 
with the Banking and Financial Division of the Montana Department of 
Commerce and are used by the Office of Surface Mining in accepting 
letters of credit. Lastly, Montana states that the proposed addition of 
(1)(g) is necessary because a bank's financial health may change over 
time.
    We agree with Montana that the proposed revisions requiring an up-
to-date balance sheet, applying additional financial tests and criteria 
regarding the acceptance of letters of credit, and performing annual 
evaluations of a bank's qualifications will allow for a stronger 
analysis of a lending institution's current financial condition and 
will provide further assurance of a bank's financial strength. 
Montana's proposed amendment provides guidance beyond that contained in 
the Federal regulations. We find that the underlying rationale Montana 
provided for justifying the addition of these provisions is reasonable 
and the lack of exact Federal counterpart requirements do not render 
them less effective than the Federal regulations. Therefore, we approve 
them.

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

    1. ARM 17.24.301(33); Definition of ``Diversion.'' Montana proposes 
to revise the definition of ``Diversion'' 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.

    The Federal definition at 30 CFR 701.5 states that ``Diversion 
means a channel, embankment, or other manmade structure constructed to 
divert water from one area to another.''
    Montana's proposed definition applies only to structures designed 
to divert water around the operation. The Federal definition includes 
all structures constructed to divert water, but its application in 30 
CFR 816.43 involves only structures designed to divert water around an 
operation. Therefore Montana's proposed change is consistent with and 
no less effective than the Federal definition and we are approving it.
    2. ARM 17.24.308; Operations Plan. Montana proposes to revise 
subparagraph (1)(b) by adding the following new subsection to the 
proposed operations for which compliance must be demonstrated:

    (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.

    In its explanatory note, Montana states that the proposed addition 
of (b)(vii) specifies additional information that needs to be included 
in a plan of operations when prospecting activities and facilities are 
transferred to a strip or underground mining permit pursuant to ARM 
17.24.1001(7). Further, Montana notes that the word ``or'' was 
mistakenly left out of this provision as printed in the final rule 
notice by the Secretary of State, and will need to be added in the next 
rulemaking. Montana's proposed addition of this rule provides needed 
specificity with respect to requiring additional facilities 
information, is more stringent than the Federal requirements, and 
therefore is not inconsistent with the Federal rules at 30 CFR 
780.11(b). For these reasons, we approve it.
    3. ARM 17.24.313; Reclamation Plan. Montana proposes to add a new 
provision at (1)(d)(v) requiring that the plan for backfilling 
demonstrate that the proposed postmining topography can be achieved. 
Montana further proposes to add provisions at (1)(e) and (f), 
respectively, that require each reclamation plan to contain 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, as well as drainage channel 
designs appropriate for preventing material damage to the hydrologic 
balance in the adjacent area and to meet the performance standards for 
the reclamation of drainage basins at ARM 17.24.634.
    Montana's proposed rule at ARM 17.24.313(1)(d)(v) is added to 
restate more clearly the requirement that a reclamation plan contain a 
demonstration that the postmining topography can be achieved. The 
proposed revision simply provides additional guidance and specificity 
regarding information to be supplied by an operator to gauge the 
potential for success with respect to achieving postmining topography. 
The proposed rules at subparagraphs (e) and (f) essentially replace and 
are more comprehensive than the design requirements for drainage 
channels currently located at ARM 17.24.634(2), which is proposed for 
deletion. These additional requirements are no less effective than the 
Federal hydrologic reclamation plan requirements set forth at 30 CFR 
780.21(h). For the reasons discussed above, we are approving Montana's 
proposed rules.
    4. ARM 17.24.313(b) (second sentence), 17.24.515(2), 17.24.821, 
17.24.823, 17.24.824, and 17.24.825; Revisions to ``Alternate 
Reclamation'' Rules. In a previous amendment, Montana proposed to 
delete its statutory provisions at MCA 82-4-232(7) and (8) addressing 
``alternate reclamation'' and

[[Page 57828]]

replace them with new paragraphs providing requirements for ``land 
capability and alternative land uses.'' We approved Montana's proposed 
statutory changes in the February 16, 2005, Federal Register (70 FR 
8001, 8007, Finding C.12), and noted that several rules within the 
Montana program were statutorily authorized only by the deleted 
paragraphs. We further stated that since the statutory authorization 
for these rules would no longer exist, Montana would have to remove 
these rules when promulgating new rules to implement the statutory 
changes.
    Consistent with our February 16, 2005 decision, Montana now 
proposes to revise its implementing rules for ``alternate reclamation'' 
at ARM 17.24.313(b) (second sentence), 17.24.515(2), 17.24.821, 
17.24.823, 17.24.824, and 17.24.825, respectively, by deleting 
paragraphs addressing ``alternatives'' to backfilling, grading, 
highwall elimination, topsoiling, and planting of a permanent diverse 
cover. Because the statutory authorization for these rules and 
paragraphs referencing ``alternate reclamation'' no longer exists, we 
approve their deletion. In their place, Montana proposes to substitute 
new criteria at ARM 17.24.821 and 17.24.823 for ``alternative 
postmining land uses'' as enacted in HB 373 and approved by us in the 
February 16, 2005, Federal Register as being consistent with and no 
less effective than SMCRA 515(b)(2) and the Federal regulations at 30 
CFR 816/817.133. Thus, Montana's proposed revisions to its rules 
implementing the previously approved statutory alternative postmining 
land use criteria are appropriate and we approve them. Montana also 
proposes to delete its ``alternate reclamation'' rule at ARM 17.24.826 
addressing ``period of responsibility for alternative revegetation'' 
due to changes enacted in HB 373. For the same reasons explained above, 
we approve it.
    5. ARM 17.24.404; Review of Application. Montana proposes to delete 
paragraph (9) of this rule because the right to appeal a permitting 
decision is already covered in Montana's statutes at 82-4-231(9), MCA. 
Paragraph (10) is proposed for deletion because Montana applies the 
same standards to all applications and 82-4-231(11), MCA, requires 
operations to be conducted in such a manner so as to protect property 
adjacent to the permit area. Existing ARM 17.24.404(9) grants the right 
to an administrative hearing only to applicants who are subject to a 
denial of a permit application or major revision under 82-4-227(11), 
MCA. 82-4-231(9), MCA, is much broader in the sense that it entitles 
any person with an interest that is or may adversely be affected by the 
Department's permit decision to a contested case hearing governed by 
the Montana Administrative Procedures Act and before the Board of 
Environmental Review. Thus, Montana's proposed deletion of ARM 
17.24.404(9), in reliance on 82-4-231(9), MCA, is no less stringent 
than SMCRA 514(c) and we approve it. Existing ARM 17.24.404 (10) is 
duplicative of and less specific than the standards set forth in 82-4-
231(11), MCA, regarding the protection of areas outside the permit 
area. Similarly, Montana's proposed deletion of 17.24.404(10), in 
reliance on 82-4-231(11), MCA, is no less stringent than SMCRA 
515(b)(21) and we also approve it.
    6. ARM 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 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 ARM 17.24.313, 17.24.821-17.21.824 (see 
Finding No. III.F4). Montana deleted these cross-references because the 
rules have either been eliminated or are no longer relevant due to 
statutory modifications that we approved in the February 16, 2005, 
Federal Register (70 FR 8001, 8007). In their place, Montana now 
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).

    Previously, OSM approved similar provisions for the New Mexico and 
Utah State regulatory programs (45 FR 86464, December 31, 1980 and 60 
FR 28040, May 30, 1995). In the New Mexico and Utah approvals, OSM 
required the State programs to contain the following provisions: (1) 
Requirement for regulatory authority approval; (2) restrictions on 
allowable height and length of the retained highwall in relation to 
natural escarpments and cliffs; (3) requirement that a retained 
highwall replace a preexisting cliff or similar natural premining 
feature that was removed by the mining operation; and (4) requirement 
for the permit applicant to demonstrate that the retained highwall 
feature is stable and will achieve a long-term static safety factor of 
1.3 and will not pose a hazard to the public health and safety. With 
these restrictions, OSM found provisions for limited highwall retention 
in the New Mexico and Utah regulatory programs to be in accordance with 
the requirements of SMCRA 515(b)(3) and consistent with the Federal 
regulations at 30 CFR 816.102(a)(2) to backfill and grade to achieve 
the approximate original contour (AOC). AOC in these requirements 
includes the provision to eliminate all highwalls. The establishment of 
the above restrictions however, ensures that for a limited stretch of 
highwall to be retained, it must replace a similar feature that exists 
in the original contours thereby meeting the requirement to restore 
AOC. In the approval of the provision for New Mexico, OSM found that if 
an operator can demonstrate to the satisfaction of the Director (State) 
that all of the above criteria can be met, then the limited highwall 
retention is available. Such retention in these instances actually 
reflects the intent of ``approximate original contour'' since these 
features were part of the natural pre-mined landscape. These same 
criteria were recently applied in approving a Wyoming proposal to allow 
for the retention of limited stretches of highwall to replace 
escarpments and cliffs that exist naturally in the area of the mine 
prior to the mine operations (71 FR 50852, August 28, 2006).
    Similarly, Montana's provisions for highwall retention to replace 
existing natural features are contained in ARM 17.24.515. As we 
required in the New Mexico, Utah, and Wyoming programs, Montana 
requires the features to be approved by the regulatory authority. In 
addition, Montana's provisions ensure stability and a factor of safety 
of 1.3; contain restrictions on allowable length in relation to premine 
features; and replacement of natural features that were mined out or 
are planned to be mined out under the current mine plan. Montana's 
proposed revisions do not contain specific language regarding habitat 
replacement, public health and safety, height restrictions, or define 
the term ``bluff.'' Nevertheless, we interpret

[[Page 57829]]

the meaning of the phrase ``postmining land use'' in subparagraph 
(2)(a) to include plant and wildlife habitat, and the language in 
subparagraph (2)(b) to represent that postmining bluffs will not pose a 
threat to public health and safety. We also interpret the meaning of 
the phrase ``similar geometry'' found in subparagraph (2)(c) of 
Montana's provisions to include the restriction that the vertical 
height of bluffs not exceed the premine height. Lastly, we interpret 
the term ``bluff'' to mean a vertical or near vertical feature in the 
landscape. Based on these interpretations and the discussion above, we 
find Montana's provisions for limited highwall retention to be in 
accordance with SMCRA 515(b)(3) and consistent with 30 CFR 
816.102(a)(2).
    7. ARM 17.24.624; Surface Blasting Requirements. Montana proposes 
to revise its rules at subparagraphs (6)(a), (7)(a), and paragraphs 
(11) and (14) to simplify and provide consistency to the description of 
structures that are subject to blasting restrictions as they pertain to 
airblast, proximity of blasting operations, peak particle velocity, and 
the maximum weight of explosives to be detonated. These structures 
include ``any dwelling, or public, commercial, community or 
institutional building.''
    Montana defines ``Community or institutional building'' in its 
rules at ARM 17.24.301(26) to mean ``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.'' The Federal 
regulations at 30 CFR 816.61(d)(1)(i), 816.67(b)(1)(i) and 816.68(d) 
consistently identify the structures subject to blasting restrictions 
as ``dwelling, public building, school, church, community or 
institutional building.'' Montana's proposed revisions, when read in 
the context of its definition of ``community or institutional 
building,'' are consistent with and no less effective than the Federal 
regulations. Therefore, we are approving Montana's proposed rule 
changes. For the same reasons discussed above, we are approving 
Montana's proposed revision to its rules at ARM 17.24.626(1)(d) 
regarding Records of Blasting Operations.
    8. ARM 17.24.634; Reclamation of Drainage Basins. Montana proposes 
numerous revisions to reorganize ARM 17.24.634 so that all of the 
substantive requirements for reclaiming drainage basins, including 
valleys, channels and floodplains, are listed after introductory 
paragraph (1). Proposed revised 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.

    We note that reclaimed drainages meet the definition of 
``diversion'' at ARM 17.24.301(33), and in particular are permanent 
diversions. Montana's proposed rule is consistent with 30 CFR 
816.43(a)(3) requiring that a permanent diversion or stream channel 
that is reclaimed after removal of a temporary diversion be designed 
and constructed so as to restore or approximate the premining 
characteristics of the original stream channel, as well as the 
regulations at 30 CFR 780.21(h), 816.41(a) and (d), and 816/817.43(b) 
requiring that diversions protect the hydrologic balance, water 
quality, and channel volume. The proposed rule also includes 
approximate original contour considerations consistent with those set 
forth in 30 CFR 816.102(a), and provides standards for the 
stabilization of reclaimed surface areas to effectively control erosion 
in accordance with 30 CFR 816.95(a). While there is no exact Federal 
counterpart to Montana's proposed rule, we find the revisions to be 
consistent with these Federal requirements.
    Montana's explanatory note justifying the proposed rule revision at 
(1)(f) ``acknowledges that success in terms of stability cannot be 
measured using a one-size-fits-all standard. Rather, it must be made on 
a case-by-case basis comparing the reclaimed land to unmined landscapes 
with comparable conditions.'' We agree with Montana's logic and a 
discussion responding to comments on the promulgation of 30 CFR 
816.95(a) in a January 10, 1983 Federal Register notice (48 FR 1160) is 
supportive of this position. Specifically, we stated that ``[A]s with 
other performance standards proposed by OSM, regulatory authorities 
will have flexibility to develop stabilization measures consistent with 
local terrain, climate, soils, and other conditions existing within the 
State. Appropriate techniques to stabilize exposed areas can be 
determined by the regulatory authority and operators in conjunction 
with local Soil Conservation Districts and air quality agencies, as 
appropriate.'' Therefore, Montana has been afforded discretion to 
implement necessary stabilization measures with respect to exposed 
surface areas, including the reclamation of drainage basins. For the 
reasons discussed above, we find that Montana's proposed revisions are 
no less effective than the Federal requirements and we approve them.
    9. ARM 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.

    Montana explains that the proposed revision to paragraph (2) 
requires operators to use only normal husbandry practices to manage 
reclaimed areas following seeding. Montana further states that normal 
husbandry practices are widely used and accepted by private, state, and 
federal land managers and land owners and have a proven track record of 
achieving appropriate revegetation for approved postmining land uses.
    The Federal regulations at 30 CFR 816.116(c)(4) provide that the 
regulatory authority may approve selective husbandry practices, 
excluding augmented seeding, fertilization, or irrigation, provided it 
obtains prior approval from the Director of OSM, in

[[Page 57830]]

accordance with 30 CFR 732.17, that the practices are normal husbandry 
practices, without extending the period of responsibility for 
revegetation success and bond liability, if such practices can be 
expected to continue as part of the postmining land use or if 
discontinuance of the practices after the liability period expires will 
not reduce the probability of permanent revegetation success. Approved 
practices shall be normal husbandry practices within the region for 
unmined lands having land uses similar to the approved postmining land 
use of the disturbed area, including such practices as disease, pest, 
and vermin control; and any pruning, reseeding, and transplanting 
specifically necessitated by such actions. Montana's proposed ARM 
17.24.718(2) does not actually identify husbandry practices. It merely 
states that an operator may use only normal husbandry practices to 
ensure the establishment of vegetation consistent with the approved 
reclamation plan.
    Based on the above discussion, we do not approve the proposed 
revision to ARM 17.24.718(2) and find that it is less effective than 
the Federal regulations at 30 CFR 816.116(c)(4) to the extent that it 
could be construed to authorize any normal husbandry practices other 
than those identified in proposed new paragraph ARM 17.24.718(3). If 
Montana wishes to include any normal husbandry practices other than 
those identified in ARM 17.24.718(3) that would not restart the 
liability period, they must be submitted as a program amendment and 
approved by OSM.
    At its own initiative, Montana proposes new paragraph (3) to 
address management practices that could, if applied improperly, 
negatively impact revegetation and affect the operator's ability to 
obtain phase III bond release. The practices used by operators to 
manage vegetation on reclaimed areas include livestock grazing as well 
as haying and chemical applications. Montana further notes that under 
the proposed amendment, the operator would be responsible for using 
management practices that do not interfere with reclamation 
requirements.
    We agree with Montana's rationale. Montana's proposed rule in 
paragraph (3) concerning reclamation land use practices is consistent 
with and no less effective than the Federal requirements for approved 
postmining land uses of the disturbed area set forth in 30 CFR 
816.116(c)(4).
    Therefore, with the exception of proposed ARM 17.24.718(2), which 
does not identify husbandry practices and allows an operator to use 
normal husbandry practices that have not received approval from OSM in 
accordance with 30 CFR 732.17, we approve Montana's proposed revisions 
to ARM 17.24.718.
    10. ARM 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.
    (4) The reestablished vegetation must meet the requirements of 
the Noxious Weed Management Act (7-22-2101 through 7-22-2153, MCA, 
as amended). (History: 82-4-204, MCA;  IMP, 82-4-233, 82-4-235, MCA; 
NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/
90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR 
p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, 
Eff. 10/22/04.)


    Several of Montana's proposed revisions, including combining 
existing paragraphs (2) and (3) regarding statistical standards and 
deleting existing paragraphs (4) through (7) pertaining to diversity 
and seasonality standards, are the result of and reflect enactment of 
the provisions in HB 373 that were approved in our decision published 
in the February 16, 2005, Federal Register (70 FR 8001). Montana 
proposes to revise paragraph (1) by deleting the requirement that 
specific field and laboratory methods be detailed in the permit 
application, and replaces it with the requirement that such sampling 
methods be included in a plan of study approved by the Department. In 
its explanatory note, Montana states that ``submittal of a plan of 
study prior to conducting vegetation monitoring or sampling offers an 
opportunity to make adjustments when needed; if the plan is in the 
approved permit, revisions must be done through the minor revision 
process. Thus, the last change to this section is recommended as a more 
workable, as well as flexible, avenue for submittal and approval of 
vegetation monitoring/sampling plans.''
    Montana's proposed revision conflicts with the Federal regulations 
at 30 CFR 780.18(b)(5)(vi), which require that each permit application 
contain a plan for reclamation and include measures proposed to be used 
to determine the success of revegetation, as required in 30 CFR 
816.116, for the proposed permit area. In addition, the August 30, 2006 
(71 FR 51684, 51691) Federal Register notice promulgating Federal 
revegetation success standards and responding to commenters' concerns 
noted that ``[B]ecause Sec.  780.18(b)(5) requires each permit 
application to identify its proposed success standards and sampling 
techniques, this information is also available for public review.'' 
Therefore, Montana is free to require the submittal of a plan of study 
from operators, but sampling methods must be included in the permit 
application. For these reasons, we do not approve Montana's proposal in 
paragraph (1) to delete the requirement that sampling methods be 
included and detailed in the permit application.
    11. ARM 17.24.1116; Bonding Criteria and Schedule for Release of 
Bond. Montana proposes to revise this rule by adding a new provision at 
subparagraph (6)(b)(iii) that provides previously undefined 
revegetation standards for Phase II bond release. The new provision 
states that reclamation phase II is deemed to have been completed when:

    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;

    Montana notes that while renumbered (6)(b)(iv) requires the 
establishment of revegetation to the extent required to protect soil 
from accelerated erosion as a condition of phase II bond release, the 
rule does not provide standards for revegetation. Montana further 
states that the proposed amendment requires the revegetation to be 
consistent with the species composition, cover, production, density, 
diversity, and effectiveness criteria of the applicable rules and the 
approved postmining land use, although not to the extent that these 
standards have been achieved.

[[Page 57831]]

    The Federal regulations at 30 CFR 800.40(c)(2) require that 
revegetation be established on regraded mined lands in accordance with 
the approved reclamation plan prior to Phase II bond release. The 
Federal regulations at 30 CFR 816/817.111(a) require that permittees 
establish on all regraded areas and disturbed areas a vegetative cover 
that is in accordance with the approved permit and reclamation plan and 
that is (1) diverse, effective and permanent; and (2) comprised of 
species native to the area, or introduced species where desirable and 
necessary to achieve the approved postmining land use and approved by 
the regulatory authority. Moreover, the Federal regulations at 30 CFR 
816/817.116(a) and (b), respectively, require that the success of 
revegetation shall be judged on the effectiveness of the vegetation for 
the approved postmining land use and provide minimum required 
revegetation success standards to be applied with each approved 
postmining land use.
    The cross-referenced provisions in Montana's proposed rule 
addresses the requirements for establishing successful revegetation on 
regraded and disturbed areas. The proposed rule provides additional 
guidance and specificity to ensure that the established revegetation is 
compatible with the approved postmining land use, and the standards for 
success are in accordance with the requirements necessary to secure 
phase II bond release. For these reasons, Montana's proposed rule 
defining revegetation standards for Phase II bond release is no less 
effective than the Federal regulations at 30 CFR 800.40(c)(2), 816/
817.111(a), and 816/817.116(a) and (b) and we are approving it.
    Montana also proposes to revise its rules at subparagraphs 
(6)(c)(i), (ii), and (iii) by ensuring that evaluations of reclamation 
success at Phase III bond release are applicable to and consistent with 
the approved postmining land use. For the same reasons discussed above, 
we approve Montana's proposed revisions as being no less effective than 
the Federal regulations at 30 CFR 800.40(c)(3) and 816/817.116(a) and 
(b).
    12. ARM 17.24.1202; Consequences of Inspections and Compliance 
Reviews. Montana proposes to revise this rule by adding criteria in 
paragraph (2) concerning the Department's issuance of notices of 
noncompliance and orders of cessation in accordance with 82-4-251, MCA, 
which may result from an inspection; adding a provision in paragraph 
(3) reflecting the Department's statutory authority, as contained in 
82-4-237(3), MCA, to order changes in the mining and reclamation plans 
to give a complete list of actions the Department may take to ensure 
compliance with the Act following an inspection; and adding a provision 
in paragraph (4) that allows the Department to order an operator to 
investigate and submit a report detailing a corrective course of action 
for unsuccessful reclamation efforts when they cannot be cured by an 
abatement order in the context of a violation action because they were 
conducted according to the permit.
    Montana's proposed revision to paragraph (2) is consistent with the 
Federal regulations at 30 CFR 840.13(b) regarding enforcement 
authority, as well as the cross-referenced provision at 30 CFR 
843.12(a)(1) addressing determinations as to when a notice of violation 
is to be issued. Moreover, paragraph (2) is consistent with Montana's 
approved statutory provision at 82-4-251, MCA, regarding noncompliance 
and the suspension of permits. Paragraphs (3) and (4) impose additional 
requirements on permittees as a result of enforcement actions. 
Paragraph (3) is consistent with the statutory provision at 82-4-
237(3), MCA, requiring changes in the mining and reclamation plans. 
Lastly, both SMCRA 521(d) and the Federal regulations at 30 CFR 
840.13(d) provide that nothing therein ``shall be construed as 
eliminating any additional enforcement rights or procedures which are 
available under State law to a State regulatory authority but which are 
not specifically enumerated'' in either SMCRA or the Federal 
regulations. Therefore, the additional compliance requirements in 
paragraphs (3) and (4) are no less stringent than SMCRA and are 
consistent with the Federal regulations. For the reasons discussed 
above, we are approving Montana's proposed rules at ARM 17.24.1202(2)-
(4).
    Related to the finding above is Montana's proposed repeal of its 
existing provision at ARM 17.24.720 regarding Annual Inspections for 
Revegetated Areas. The cross-reference to this provision was previously 
located in existing ARM 17.24.1202(2), which has also been proposed for 
deletion. Montana's stated purpose for proposing both revisions is 
because the provisions for inspecting revegetated areas are restated in 
a broader context in paragraph (4) of proposed ARM 17.24.1202. Under 
that rule, the Department is required, based on a field inspection or 
review of records or reports, to order the operator to immediately 
investigate the cause of unsuccessful revegetation and the operator is 
required to subsequently submit an investigative report detailing a 
corrective course of action. This approach is appropriate to address 
other aspects of reclamation that are discovered to be unsuccessful. 
Nevertheless, quarterly and annual Departmental oversight of 
reclamation efforts (including revegetation) will continue through both 
the partial and complete inspection requirements of ARM 17.24.1201. For 
these reasons, we are approving Montana's proposed repeal of ARM 
17.24.720.

G. Removal of Required Amendments

1. Required Amendment at 30 CFR 926.16(e)(1), the Definition of 
``Road''
    In response to the required program amendment at 30 CFR 
926.16(e)(1), Montana proposes to revise its rules at ARM 
17.24.301(107) regarding the definition of ``Road'' by deleting 
language that excluded pioneer and construction roadways. The Federal 
definition at 30 CFR 701.5 was revised on November 8, 1988 (53 FR 
45190, 45210), to eliminate the previous exclusion of pioneer and 
construction roadways, thereby making them subject to those road 
performance standards at 30 CFR 816/817.150-151 which are applicable to 
road construction. For this reason, we noted in the August 19, 1992, 
Federal Register (57 FR 37438), that Montana's proposed definition of 
``road,'' by excluding pioneer and construction roadways, was less 
effective than the Federal definition. Consequently, we required 
Montana to clarify that pioneer and construction roadways are subject 
to any general performance standards applicable to road construction. 
Montana's proposed deletion of the provision excluding pioneer and 
construction from its definition of ``road'' makes it consistent with 
and no less effective than the Federal definition at 30 CFR 701.5 and 
the performance standards for road construction set forth at 30 CFR 
816/817.150-151, and we are removing the required program amendment at 
30 CFR 926.16(e)(1).
2. Required Amendment at 30 CFR 926.16(k), the Definition of 
``Historically Used for Cropland''
    In response to the required program amendment at 30 CFR 926.16(k), 
Montana proposes to revise its rules at ARM 17.24.301(53) regarding the 
definition of ``Historically used for cropland'' by adding provision 
(c) to address lands that likely would have been used as cropland for 
any five or more years out of the 10 years immediately preceding their 
acquisition [including purchase, lease, or option of

[[Page 57832]]

the land for the purpose of conducting or allowing, through resale, 
lease or option, strip of underground coal mining and reclamation 
operations] but for the same fact of ownership or control of the land 
unrelated to the productivity of the land, in accordance with the 
Federal regulations at 30 CFR 701.5.
    Montana's proposed definition is substantively the same as the 
Federal definition of ``Historically used for cropland.'' Therefore, we 
have determined that Montana's program is consistent with and no less 
effective than the Federal regulations at 30 CFR 701.5 and remove the 
required program amendment at 30 CFR 926.16(k).
3. Required Amendment at 30 CFR 926.16(l), Public Notice and 
Opportunity to Comment on Coal Prospecting Permit Applications
    In response to the required program amendment at 30 CFR 926.16(l), 
Montana proposes to revise its rules at ARM 17.24.1001(2)(q) concerning 
Permit Requirement by adding cross-references that modify its program 
to conform to the permit issuance procedures for public notice and 
opportunity to comment on coal prospecting permit applications and be 
no less effective than the Federal requirements at 30 CFR 772.12(c). 
Specifically, Montana proposes language requiring that an application 
for a prospecting permit must be made on forms provided by the 
Department and must be accompanied by ``the proposed publication, in 
accordance with ARM 17.24.303(23). The procedures of ARM 17.24.401(3) 
and (5), 17.24.402, and 17.24.403 must be followed in the processing of 
a prospecting permit application.'' Montana's reference to ARM 
17.24.303(23) is a typographical error and should read as ARM 
17.24.303(1)(w). Montana is aware of this typographical error and has 
indicated that it will correct the mistake in the State's next 
rulemaking (Administrative Record No. MT-22-13). Referenced ARM 
17.24.401(3) addresses the requirements associated with the filing of 
an application and notice. These provisions are consistent with and no 
less effective than the corresponding Federal requirements at 30 CFR 
772.12(c)(1) and (2) regarding public notice and opportunity to 
comment. ARM 17.24.401(3)(c) also references paragraph (6), which 
requires that the complete permit application be made available for 
public inspection and copying. This provision is consistent with and no 
less effective than the corresponding Federal requirements at 30 CFR 
772.15(a) addressing public availability of information. Although it is 
not referenced in proposed ARM 17.24.1001(2)(q), Montana's rules at ARM 
17.24.303 address the legal, financial, compliance and related 
information required in permit applications. Specifically, ARM 
17.24.303(n) states, in pertinent part, that ``* * * The applicant may 
request confidentiality on any proprietary information within such 
documents.'' This provision is consistent with and no less effective 
than the corresponding Federal requirement at 30 CFR 772.15(b) 
regarding an applicant's request that proprietary information submitted 
as part of a permit application be kept confidential. Referenced ARM 
17.24.401(5) addresses the requirement to provide written notification 
of Departmental decisions on permit applications to appropriate 
Federal, state, and local government officials. These provisions are 
consistent with and no less effective than the corresponding Federal 
requirements at 30 CFR 772.12(e)(1).
    In the January 22, 1999 Federal Register (64 FR 3615) notice, we 
stated that Montana's proposal did not provide for permit issuance 
procedures which would include such requirements as ``administrative 
and judicial appeals.'' In proposed ARM 17.24.1001(2)(q), referenced 
ARM 17.24.403 allows any person whose interests are or may be adversely 
affected by the Department's decision on a prospecting permit 
application submitted pursuant to ARM 17.24.401(1) to request that the 
Department hold an informal conference on that application. In 
addition, Montana's rules at ARM 17.24.425 provide for administrative 
review in the form of a contested case hearing to review the final 
decision of the Department concerning prospecting permit applications 
submitted under ARM 17.24.401. These provisions are consistent with and 
no less effective than the corresponding Federal requirements at 30 CFR 
772.12(e)(2) insofar as the requirement to provide an opportunity for 
administrative appeal and review of Departmental decisions is 
concerned.
    Montana's statutes at 82-4-206(1)(b), MCA, allow an applicant, 
permittee, or person with an interest that is or may be adversely 
affected by a decision by the Department approving or denying an 
application for a prospecting permit to request, in writing, a hearing 
before the Montana Board of Environmental Review within 30 days after 
the Department's decision. Montana's statute at 82-4-206(2), MCA, 
states that the contested case provisions of the Montana Administrative 
Procedure Act, Title 2, chapter 4, part 6, apply to a hearing before 
the board under subsection (1). After a contested case is heard before 
the Board of Environmental Review and it has rendered a decision, the 
decision may be appealed to district court, pursuant to the Montana 
Administrative Procedures Act provisions at 2-4-702, MCA. These 
provisions are consistent with and no less effective than the 
corresponding Federal requirements at 30 CFR 772.12(e)(2) insofar as 
the requirement to provide an opportunity for judicial appeal and 
review of Departmental decisions is concerned.
    Referenced ARM 17.24.402 addresses requirements for submitting 
comments and written objections to Department decisions on permit 
applications. Specifically, ARM 17.24.402(2)(a) affords any person 
whose interests are or may be adversely affected or an officer or head 
of any federal, state, or local government agency or authority the 
right to file written objections to an initial or revised application 
with the Department within 30 days after the last publication of the 
newspaper notice required in ARM 17.24.401(3). This provision is 
consistent with and no less effective than the corresponding Federal 
requirements at 30 CFR 772.12(c)(3).
    Montana also proposes to revise its rules by adding new language at 
ARM 17.24.1001(6)(a)-(d) to maintain consistency with the Federal 
requirements regarding decisions on coal prospecting permit 
applications. These provisions are consistent with and no less 
effective than the corresponding Federal requirements at 30 CFR 
772.12(d)(1) and (2).
    Lastly, Montana proposes to add a new provision in paragraph (7) 
that provides an administrative mechanism for transferring prospecting-
related activities and facilities to a valid mining permit whenever 
such activities or facilities become part of mine operations. The 
Federal regulations at 30 CFR 772.12(d)(3) require that terms of 
approval for coal exploration permit applications issued by regulatory 
authorities shall contain conditions necessary to ensure that the 
exploration and reclamation will be conducted in compliance with the 
regulatory program. Proposed paragraph (7) imposes just such a 
condition. Therefore, while there is no exact Federal counterpart to 
Montana's newly-added provision, we find it to be no less effective 
than the Federal requirements. We also note that the cross-reference to 
ARM 17.24.308(2) in proposed paragraph (7) is a typographical error and 
should read as

[[Page 57833]]

ARM 17.24.308(b). Montana is aware of this typographical error and has 
indicated that it will correct the mistake in the State's next 
rulemaking (Administrative Record No. MT-22-14).
    For the reasons discussed above, we have determined that Montana's 
program is consistent with and no less effective than the Federal 
regulations at 30 CFR 772.12(c), (d) and (e), and 772.15, and we are 
removing the required program amendment at 30 CFR 926.16(l).
4. Required Amendment at 30 CFR 926.16(m), Replacement of Adversely 
Affected Domestic Water Supplies
    In response to the required program amendment at 30 CFR 926.16(m), 
Montana proposes to revise its rules at ARM 17.24.903(2) regarding 
General Performance Standards for underground coal mining by adding 
language that requires adversely affected water supplies to be replaced 
in accordance with the statutory provisions at MCA 82-4-243 
(subsidence) and 82-4-253 (suit for damage to water supply), 
respectively, and its rule at ARM 17.24.648 (water rights and 
replacement), which refers to water supply for ``domestic'' use. 
Montana also deletes the requirement at ARM 17.24.911(7)(d) regarding 
Subsidence Control to ``replace any adversely affected domestic water 
supply.''
    In the August 6, 2003, Federal Register (68 FR 46477) notice, we 
stated that Montana's proposed rule at ARM 17.24.911(7)(d) was too 
narrow in scope because it limited the water-replacement requirement to 
instances where subsidence has occurred and that subsidence has caused 
material damage or reduced the value or use of surface lands. The 
Federal requirement at 30 CFR 817.41(j) is not so limited, and applies 
to water supply contamination, diminishment, or interruption by any 
underground mining activities, regardless whether or not subsidence has 
occurred. We further noted that the sentence requiring water 
replacement in Montana's statutory provision for water replacement for 
underground mines at MCA 82-4-243 does not contain any limitation to 
subsidence, even though the entire section is entitled ``Subsidence.'' 
For this reason, we did not approve the proposed rule and required 
Montana to further amend its rules to require the prompt replacement of 
any drinking, domestic or residential water supply that is 
contaminated, diminished, or interrupted by underground mining 
activities, regardless of the occurrence of subsidence or whether 
subsidence has caused material damage or reduced the value or use of 
surface lands, to be no less effective in meeting the requirements of 
SMCRA 720(a)(2) than is 30 CFR 817.41(j).
    As was mentioned previously, Montana's statutory provision for 
water replacement for underground mines at MCA 82-4-243(1)(b) does not 
contain any limitation to subsidence. In addition, the statutory 
requirement for replacement of water supplies affected by mining 
generally is provided for in MCA 82-4-253(3). Lastly, Montana's 
proposal to move the provision requiring replacement of adversely 
affected domestic water supplies from ARM 17.24.911(7)(d) to ARM 
17.24.903, which contains general performance standards and requires 
replacement of all water supplies adversely affected by a permittee's 
operation, addresses our concern that water replacement for underground 
mines was limited to instances where subsidence had occurred. Based on 
the information provided by Montana, we have determined that Montana's 
program is consistent with and no less effective in meeting the 
requirements of SMCRA 720(a)(2) than is 30 CFR 817.41(j), and remove 
the required program amendment at 30 CFR 926.16(m).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. MT-22-3) and received four comment letters (two from the 
same group).
    We received an extensive comment letter from a private citizen on 
January 18, 2006 (Administrative Record No. MT-22-7). The letter 
contained both general and narrative comments, as well as many section-
by-section and minor editorial comments.
    We also received two comment letters from the Bull Mountain Land 
Alliance (BMLA) (Administrative Record Nos. MT-22-8 and MT-22-11). 
These letters also contained both general and narrative comments, as 
well as several section-by-section comments that identified and 
asserted, without additional explanation, specific portions of 
Montana's proposed rule changes as being in conflict or inconsistent 
with our decision in the February 16, 2005, Federal Register notice.
    Lastly, we received a comment letter from a second private citizen 
on January 28, 2006 (Administrative Record No. MT-22-9). The letter 
contained general and narrative comments regarding the restoration of 
hydrologic balance.
    All four of the letters contained both general and narrative, as 
well as section-by-section comments that were directed either 
explicitly or implicitly to the Montana Department of Environmental 
Quality for response. In addition, several of the comments focused on 
the previously identified flaws in HB 373 (MT-024-FOR) and OSM's 
subsequent decision thereon in the February 16, 2005 Federal Register 
Notice. In this case, the provisions that were disapproved by OSM in 
that amendment are also disapproved here and do not need to be 
addressed again. Also noted among the general comments were statements 
that the current sections of the MCA that are posted on the internet 
have been cleaned up to comply with OSM's February 16, 2005 decision 
regarding HB 373, but that extensive noncompliant language has not been 
deleted from the proposed regulations. In response, Montana notes in 
its proposed regulations that it has not yet deleted the unacceptable 
language because it will take another rulemaking to do so. Finally, a 
number of the comments alleged generally perceived problems with the 
Montana Program and its interpretation and anticipated implementation 
of the proposed rules.
    In response, we note that we cannot comment here on how statutory 
or regulatory requirements are applied. The application of requirements 
to specific cases, including what standards are applicable to which 
parts of which mines over time, is subject to administrative and 
judicial review as part of the Montana program, and possibly under 
other parts of Montana law as well. In its regular oversight of State 
regulatory programs, OSM reviews the implementation of regulatory 
programs; OSM seeks input from the public (including the industry) in 
determining what parts of program implementation to review. Here we can 
comment only on the establishment of statutory and/or regulatory 
requirements. We note that when we initially approved the Montana 
program under SMCRA in 1980, OSM determined that the Montana program 
met SMCRA requirements. And in this action, we are also determining 
whether the proposed amendment is in accordance with SMCRA and the 
Federal regulations.
    OSM's standard for review of State programs, as set forth in SMCRA 
503(a), requires a State to demonstrate that it has the capability to 
carry out the provisions of the Act and meet its purposes through: (1) 
A State law which provides for the regulation of surface coal mining 
and reclamation operations in accordance with the requirements of 
SMCRA; and (2) rules and regulations

[[Page 57834]]

consistent with regulations issued by the Secretary pursuant to SMCRA. 
Therefore, we will only address substantive comments to Montana's 
proposed rules that specifically allege inconsistencies and conflicts 
with SMCRA and/or the Federal regulations, and not general comments 
regarding internal decisionmaking and implementation functions that 
exist within the Montana program.
    One private citizen and the BMLA commented that subparagraph (c) of 
Montana's revised definition of ``approximate original contour'' at ARM 
17.24.301(13) concerning the phrase ``and the hydrologic balance is 
protected as necessary to support postmining land uses within the area 
affected and the adjacent area'' is in conflict and inconsistent with 
OSM's decision in the February 16, 2005, Federal Register notice 
regarding HB 373. In response, we refer the commenters to the 
discussion at Finding No. III.A. above regarding ``contingent 
voidness.'' The BMLA also commented that subparagraph (d) of the 
definition requiring that the reclaimed surface configuration be 
appropriate for the postmining land use is in conflict and inconsistent 
with OSM's decision in the February 16, 2005, Federal Register notice. 
In response, we note that this requirement is identical to the 
corresponding statutory provision at 82-4-203(4)(d), MCA, that we 
approved in the February 16, 2005, Federal Register notice (70 FR 8001, 
8004) regarding HB 373. In approving that provision, we found that it 
did not render the definition inconsistent with SMCRA, ``provided the 
definition is interpreted as requiring that all four subparagraphs 
apply; that is, that subparagraph (d) does not take precedence over 
subparagraphs (a) through (c).'' We further stated that ``[T]o be no 
less effective than the Federal definition of AOC, subparagraph (d) may 
not be interpreted as authorizing selection of a postmining land use 
that would necessitate a deviation from the remainder of the AOC 
definition; i.e., the postmining land topography must still closely 
resemble the general surface configuration of the land prior to mining 
regardless of the nature of the approved postmining land use.'' 
Consistent with the above reasoning, we are approving subparagraph (d) 
of Montana's revised definition of ``approximate original contour'' at 
ARM 17.24.301(13)(d).
    All three commenters either generally or specifically noted that 
Montana's proposed definition of ``hydrologic balance'' at ARM 
17.24.301(54) concerning the phrase ``as they relate to uses of land 
and water within the area affected by mining and the adjacent area'' 
does not comply with SMCRA, the Federal regulations, and OSM's decision 
in the February 16, 2005, Federal Register notice regarding HB 373. In 
response to these concerns, we again direct the commenters to the 
discussion at Finding No. III.A. above regarding ``contingent 
voidness.''
    One private citizen commented that Montana's proposed revision to 
the definition of ``incidental boundary revisions'' at ARM 
17.24.301(59) equates to a 10-times increase and is rather significant. 
Montana's stated reason for proposing the revision is that incidental 
boundary revisions are exempt from public notice and comment provisions 
applicable to permit amendments, and for strip mines 100 acres is a 
small area compared to the total mine acreage. Furthermore, incidental 
boundary revisions may not be used to increase the mined area. They 
only involve associated disturbances that have less impact than mining. 
OSM Directive REG-19, which delineates the criteria for determining 
incidental boundary revisions, does not include limitations on acreage. 
Moreover, we agree with the logic underlying Montana's proposal to 
increase its incidental boundary revision criteria from 10 to 100 acres 
and find it to be reasonable with respect to regional strip mining 
conditions, consistent with 30 CFR 774.13(d), and no less stringent 
than SMCRA 511(3).
    The BMLA commented that Montana's proposed definition of ``material 
damage'' at ARM 17.24.301(67) is in conflict with OSM's February 16, 
2005 final rule Federal Register notice. In response, we note that 
Montana's proposed definition contains identical language to the 
``material damage'' definition we approved in the February 16, 2005 
final rule and refer the commenter to Finding No. III.D.
    The BMLA also commented that subparagraphs (1)(e)(ii), (f), (h)(i) 
and (x) of Montana's proposed rule at ARM 17.24.313 concerning 
reclamation plan requirements are in conflict with OSM's February 16, 
2005 final rule Federal Register notice. In response, we refer the 
commenter to Finding Nos. III.C. and III.F.3. for an explanation as to 
why these provisions are being approved in accordance with the Federal 
regulations.
    Next, the BMLA commented that Montana's proposed deletion of its 
grazing plan rules at ARM 17.24.323 is in conflict with OSM's February 
16, 2005 final rule Federal Register notice. In response, we refer the 
commenter to Finding No. III.E.2. for an explanation as to why this 
deletion is being approved.
    One private citizen commented that Montana's proposed deletion of 
subparagraph (3) of its rules at ARM 17.24.522, concerning permanent 
cessation of operations, provides an open-ended time frame for 
reclamation to be completed. We disagree with this comment and submit 
that the deletion of subparagraph (3) does not leave an open-ended time 
frame as ARM 17.24.501(6)(b) requires backfilling and grading to be 
completed within two years after coal removal. Considering the size and 
extent of the surface mining operations in Montana, requiring operators 
to complete backfilling and grading operations within 2 years after 
coal removal ceases is both reasonable and realistic. The commenter is 
referred to Finding No. III.E.4. for an explanation as to why this 
deletion is being approved.
    One private citizen and the BMLA commented that Montana's proposed 
revision to paragraph (2) of ARM 17.24.633, concerning water quality 
performance standards, is in conflict with SMCRA and inconsistent with 
OSM's decision in the February 16, 2005, Federal Register notice. In 
response, we refer the commenters to Finding No. III.E.5. for an 
explanation as to why this proposed revision is being approved.
    One private citizen and the BMLA also commented that Montana's 
proposed revision to subparagraphs (1)(f), (h), and (i) of ARM 
17.24.634, concerning reclamation of drainage basins, is in conflict 
with SMCRA and inconsistent with OSM's decision in the February 16, 
2005, Federal Register notice. In response, we refer the commenters to 
Finding No. III.F.8. for an explanation as to why this proposed 
revision is being approved.
    One private citizen commented that section (1)(e) of proposed ARM 
17.24.639, concerning sedimentation ponds and other treatment 
facilities, does not make sense when reference 17.24.642(3) is 
consulted. The commenter is mistaken regarding this reference. ARM 
17.24.639(1)(e) references paragraph (7) of 17.24.642 and not paragraph 
(3).
    Both the BMLA, and to a lesser extent one private citizen, 
commented that proposed subparagraphs (1)(a)(1) and (2) of ARM 
17.24.711, concerning establishment of vegetation, is in conflict with 
SMCRA and inconsistent with OSM's decision in the February 16, 2005, 
Federal Register notice. In response, we refer the commenters to 
Finding No. III.E.6. for an explanation as to why proposed subparagraph 
(1)(a)(1) is being approved, and Finding No. III.D. for subparagraph 
(1)(a)(2).

[[Page 57835]]

    The BMLA commented that Montana's proposed revision to paragraph 
(1) of ARM 17.24.716, concerning method of revegetation, is in conflict 
or inconsistent with OSM's decision in the February 16, 2005, Federal 
Register notice. In its explanatory note, Montana states that the 
proposed amendment to paragraph (1) deletes unnecessary language and 
that cover and productivity standards are covered later in subchapter 
7. We agree with Montana's reasoning and note that Montana's proposed 
amendment essentially provides more specificity than do the Federal 
rules. Moreover, this provision has been included under Finding No. 
III.C. as having the same meaning as the Federal regulations at 30 CFR 
816.111(a) and (b) regarding general revegetation requirements, and 
780.18(b)(5) concerning general reclamation plan revegetation 
requirements.
    The BMLA further commented that Montana's proposed revision to 
paragraph (1) of ARM 17.24.717, concerning planting of trees and 
shrubs, is in conflict or inconsistent with OSM's decision in the 
February 16, 2005, Federal Register notice. We disagree. In its 
explanatory note, Montana states that the proposed amendment fills a 
gap in the current rules by broadening ARM 17.24.717 to include 
planting requirements for shrubs. Montana further notes that shrubs are 
a woody species like trees and, thus, should be treated similarly. 
Lastly, Montana explains that the additional provisions of the proposed 
amendment require the planting of trees and shrubs as necessary to 
achieve the postmining land use to reflect the statutory requirement of 
82-4-233(2)(a), MCA, and allow an operator flexibility in the timing of 
herbaceous seeding to reduce competition with the tree and shrub 
plantings/seedings. We agree with Montana's reasoning and note that the 
statutory requirement was approved by us in the February 16, 2005, 
Federal Register notice as exactly duplicating the Federal rules at 30 
CFR 816/817.111(b) regarding general revegetation requirements. 
Accordingly, this provision has been included under Finding No. III.C. 
as having the same meaning as the Federal regulations at 30 CFR 
816.111(b) regarding general revegetation requirements, and 
816.116(b)(3)(ii) and (iii) concerning the postmining land use 
requirements for trees, shrubs, and vegetative cover.
    The BMLA commented that Montana's proposed revision to paragraph 
(2) and addition of paragraph (3) to its rules at ARM 17.24.718, 
concerning soil amendments, management techniques, and land use 
practices, is in conflict with OSM's February 16, 2005 final rule 
Federal Register notice. In response, we refer the commenter to Finding 
III.F.9. for an explanation regarding these proposed revisions.
    One private citizen commented that newly-added section (2) of ARM 
17.24.724, concerning revegetation success criteria, says nothing about 
the reference area being unmined, and that one of the standards by 
which to judge reclamation is by comparison to unmined reference areas. 
The commenter's concerns are misplaced. Section (2) provides a 
description of reference areas chosen for comparison, whereas revised 
section (1) requires that the success of revegetation be determined by 
comparison with unmined reference areas, or by comparison with 
technical standards.
    The BMLA commented that Montana's proposed deletion of paragraph 
(4) of its rules at ARM 17.24.726, concerning vegetation measurements, 
is in conflict with OSM's February 16, 2005 final rule Federal Register 
notice. In its explanatory note, Montana states that the diversity 
standards currently existing in (4) were modified by the 2003 
legislative changes to the Act (codified in 82-4-235(1)(d), MCA), and 
are proposed for deletion. However, OSM's decision on these legislative 
changes published in the February 16, 2005, Federal Register disallowed 
the diversity standard in 82-4-235(1)(d), MCA, as promulgated by the 
2003 legislature. Thus, Montana notes that it may need to reestablish a 
diversity standard in its next rule-making. For the reasons that 
follow, we will defer to the State with regard to this decision.
    Neither SMCRA nor the Federal regulations define ``diverse.'' But 
pertinent discussion is found in preambles to Federal regulations, 
which themselves discuss House Report No. 95-218 (see 47 FR 12597, 
March 23, 1982, and 48 FR 48141-48146, September 2, 1983). The rule 
preambles cited above state that: ``Diverse'' means sufficiently varied 
amounts and types of vegetation to achieve ground cover and support the 
postmining land use. The precise numbers required to achieve this 
diversity should be determined by regional climate and soil conditions. 
However, the ultimate test will be the sufficiency of the plant 
communities to assure survival of adequate number and varieties to 
achieve the postmining land use and the required extent of ground 
cover.
    The standards set forth in Montana's statutes at 82-4-233(1), MCA, 
regarding the general requirements for a diverse, effective, and 
permanent vegetative ground cover approved as part of the postmining 
land use and in accordance with the approved permit and reclamation 
plan are consistent with the Federal regulations at 30 CFR 816.111(a) 
which directly implement, with increased detail, SMCRA 515(b)(19). 
Further, 816.116(a)(1) provides that standards for success shall be 
selected by the regulatory authority. Therefore, while there is no 
exact Federal equivalent with respect to diversity standards, Montana's 
proposed deletion of paragraph (4) noted in Finding No. III.F.10 falls 
within the State's discretion to specify, according to the Federal 
regulations.
    The BMLA commented that Montana's proposed addition to its rules at 
ARM 17.24.762(1)(a)-(d) concerning postmining land use, is in conflict 
with OSM's February 16, 2005 final rule Federal Register notice. We 
disagree and refer the commenter to Finding No. III.C. In its 
explanatory note, Montana states that the proposed amendment to 
paragraph (1) reflects the 2003 Legislature's enactment of HB 373 by 
adding references to 82-4-203(28) and 82-4-232(7), MCA, the statutory 
provisions reflecting the new reclamation standards. Montana further 
notes that the proposed addition of subparagraphs (1)(a) through (d) 
incorporates provisions that are necessary, in some instances, to 
determine the premining land use and compare the alternative postmining 
land use with the premining land use. These provisions were previously 
set forth in ARM 17.24.824, a rule addressing alternate reclamation 
that is proposed for repeal. In promulgating ARM 17.24.824, Montana 
relied on Federal regulations that actually applied to ``alternative 
postmining land uses.'' Thus, Montana asserts that it is appropriate to 
transfer these provisions from ARM 17.24.824 to 17.24.762 because they 
are still relevant and required by Federal regulations at 30 CFR 816/
817.133.
    We agree with Montana's underlying rationale for relocating 
existing language from its alternate reclamation rules at ARM 
17.24.824(2) to implement the statutory alternative postmining land use 
requirements at 82-4-232(7), MCA, regarding land use capability, that 
were enacted in HB 373 and approved by us in the February 16, 2005, 
Federal Register (70 FR 8002) as being consistent with and no less 
effective than SMCRA 515(b)(2) and the Federal regulations at 30 CFR 
816/817.133.
    The BMLA further commented that Montana's proposed revision to

[[Page 57836]]

subparagraphs (1)(a) of ARM 17.24.823, concerning the approval of 
alternative postmining land use plans, is in conflict or inconsistent 
with OSM's decision in the February 16, 2005, Federal Register notice. 
We disagree and refer the commenter to our discussion in Finding No. 
III.F.4. In its explanatory note, Montana states that the proposed 
amendment to paragraph (1) reflects the 2003 Legislature's enactment of 
HB 373, substituting ``alternative postmining land use'' for 
``alternate reclamation.'' Montana further explains that the proposed 
amendment to subparagraph (1)(a) cites approval criteria for 
alternative postmining land uses enacted by the 2003 Legislature in HB 
373. We agree with Montana and note that the ``alternative postmining 
land use'' requirements at 82-4-232(8), MCA, regarding land use 
capability were enacted in HB 373 and approved by us in the February 
16, 2005, Federal Register (70 FR 8002) as being consistent with and no 
less stringent than SMCRA 515(b)(2) and no less effective than the 
Federal regulations at 30 CFR 816/817.133. Similarly, the alternative 
postmining land use requirements at 82-4-232(9), MCA, concerning 
wildlife enhancement were approved (70 FR 8002) as being no less 
stringent than SMCRA 515(b)(24). Thus, Montana's proposed revisions to 
its rules implementing the previously approved statutory alternative 
postmining land use criteria are appropriate.
    Both the BMLA, and to a lesser extent one private citizen, 
commented that proposed subparagraph (6)(b)(iii) of ARM 17.24.1116, 
concerning bonding criteria and schedule for release of bond, is in 
conflict with SMCRA and inconsistent with OSM's decision in the 
February 16, 2005, Federal Register notice. In response, we refer the 
commenters to Finding No. III.F.11. for an explanation as to why 
proposed subparagraph (6)(b)(iii) is being approved. The same finding 
addresses the BMLA's similar comment regarding revised subparagraphs 
(6)(c)(i), (ii) and (iii).
    Both the BMLA and one private citizen commented that Montana's 
proposed revisions to its rules at ARM 17.24.1202, regarding 
consequences of inspections and compliance reviews, weakens the concept 
of the powers of an inspector on the ground below Federal standards. 
The commenters further stated that Section 517(e) of SMCRA says that 
upon detection of a violation, the inspector informs the operators and 
reports in writing any such violation to the regulatory authority. The 
Department can rule on the violation later, but the inspector on the 
ground has the power to write it. Lastly, the commenters asserted that 
the inspector is a law enforcement officer and his ability to write 
violations is central to effective enforcement. In response, we refer 
the commenters to Finding No. III.F.12. for an explanation as to why 
Montana's proposed revisions to ARM 17.24.1202 are approved as being no 
less stringent than SMCRA and no less effective than the Federal 
regulations.
    The private citizen further commented that Montana's proposed 
revision to its rules at ARM 17.24.1201, concerning frequency and 
methods of inspections, omits a counterpart to the Federal rules at 30 
CFR 840.11(d)(2) regarding reporting requirements for aerial 
inspections. We agree with the commenter and note that Montana 
recognizes this omission and has committed to propose a State 
counterpart provision in its next rulemaking (Administrative Record No. 
MT-22-12).

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Montana program (Administrative 
Record No. MT-22-3). We received comments from two Federal Agencies.
    The Bureau of Land Management (BLM) commented in an October 6, 2005 
letter (Administrative Record No. MT-22-4), and the Bureau of Indian 
Affairs (BIA) commented in an October 12, 2005 memorandum 
(Administrative Record No. MT-22-5).
    The BLM commented on Montana's proposed addition of subparagraph 
(4) to ARM 17.24.322, concerning Geologic Information and Coal 
Conservation Plan, which allows the Department to review all applicable 
coal recovery information retained by the BLM for an operator with a 
Federal Resource Recovery and Protection Plan in lieu of or in addition 
to other information requirements. Specifically, the BLM stated that it 
treats information designated as Proprietary/Confidential contained in 
the Resource Recovery and Protection Plan subject to the requirements 
of the Freedom of Information Act (FOIA). The BLM further stated that 
release of this information to the Montana DEQ will require compliance 
with established rules and procedures. In response, we agree with the 
BLM's comment that any proprietary and confidential information sought 
by the Montana DEQ and contained in the Resource Recovery and 
Protection Plan will need to be scrutinized under the protections of 
the FOIA.
    The BLM also commented on Montana's explanatory note which states 
that the proposed addition of paragraph (4) provides for an alternative 
source of relevant information for Department review that may preclude 
the need for the applicant to generate new or additional documents. 
Specifically, the BLM stated that the rationale is vague in that 
information contained in the Resource Recovery and Protection Plan is 
not ``new'' data, and that the operator already has this information on 
hand and would gladly supply it to the Montana DEQ if requested. In 
response, we acknowledge the BLM's comment and suggest that since the 
information contained in the Resource Recovery and Protection Plan has 
traditionally not been requested from operators in the past, it may be 
considered to be an alternative, new, and additional source of 
information in the context of the Montana DEQ's newly-proposed rule.
    The BIA indicated that it did not have concerns about the proposed 
amendment, but provided specific concerns of an editorial nature as 
follows:
    Page 13, Section 17.24.306(3): The U.S. natural resources 
conservation service should be capitalized.
    Page 15, Section 17.24.312(2): The U.S. fish and wildlife 
service should be capitalized.
    Page 21, Section 17.24.322(4): The bureau of land management 
should be capitalized.
    Page 21, Section 17.24.323 has been struck. However, the 
``History'' section remains. We don't understand the rationale for 
leaving the ``History'' component.
    Page 24, Section 17.24.405(5): The end of the sentence is marked 
by a division symbol than a hyphen or colon.

    In response, we acknowledge the BIA's editorial comments and are 
alerting Montana of the need to make these corrections by virtue of 
this Federal Register final rule notice. We also note that, according 
to Montana, the ``History'' section remains in Montana's rules 
following the deletion of a provision because of the State requirement 
for repealed rules in which the rule number, title, and history must 
remain intact. This requirement is to allow for tracking of repealed 
rules, and to indicate a rule number that can never be used again.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the 
amendment from EPA (Administrative Record No. MT-22-3). EPA did not 
respond to our request.

[[Page 57837]]

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On September 13, 2005, we requested comments on Montana's 
amendment (Administrative Record No. MT-22-3), but neither responded to 
our request.

V. OSM's Decision

    Based on the above findings, we approve, with certain exceptions 
and an additional requirement, Montana's August 29, 2005 amendment. We 
do not approve the following provisions or parts of provisions.
    As discussed in Finding No. III.E.6, and consistent with the 
February 16, 2005 Federal Register Notice addressing identical 
statutory language, we are approving ARM 17.24.711(1)(a) with the 
proviso that the exemption for ``and other constructed features'' not 
be applied until Montana promulgates implementing rules to limit the 
exemption and OSM has approved those rules.
    We are removing existing required amendments and approving, as 
discussed in: Finding No. III.G.1, ARM 17.24.301(107), concerning the 
definition of ``Road;''; Finding No. III.G.2, ARM 17.24.301(53), 
concerning the definition of ``Historically used for cropland;'' 
Finding No. III.G.3, ARM 17.24.1001(2)(q), concerning permit issuance 
procedures for public notice and opportunity to comment on coal 
prospecting permit applications; and Finding No. III.G.4, ARM 
17.24.903(2), concerning replacement of water supplies harmed by 
underground mining activities.
    As discussed in Finding No. III.F.9, we do not approve revised ARM 
17.24.718(2), concerning Montana's allowance for an operator to use 
husbandry practices that have not received approval from OSM.
    As discussed in Finding No. III.F.10, we do not approve revised ARM 
17.24.726(1), concerning Montana's proposal to delete the requirement 
that sampling methods be included and detailed in the permit 
application.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 926, which codify decisions concerning the Montana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the Montana program, we will recognize only the statutes, 
regulations and other materials we have approved, together with any 
consistent implementing policies, directives and other materials. We 
will require Montana to enforce only approved provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

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

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on 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

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 CFR U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C) et seq.).

[[Page 57838]]

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: July 2, 2007.
Allen D. Klein,
Regional Director, Western Region.

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

PART 926--MONTANA

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

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

0
2. Section 926.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec.  926.15  Approval of Montana regulatory program amendments.

* * * * *

------------------------------------------------------------------------
   Original amendment           Date of final
     submission date             publication        Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
August 31, 2005.........  October 10, 2007........  ARM 17.24.301(6);
                                                     17.24.301(11);
                                                     17.24.301(13)
                                                     (intro) and (a),
                                                     (b), and (d);
                                                     17.24.301(26);
                                                     17.24.301(33);
                                                     17.24.301(36);
                                                     17.24.301(38);
                                                     17.24.301(46);
                                                     17.24.301(50);
                                                     17.24.301(54);
                                                     17.24.301(59);
                                                     17.24.301(64);
                                                     17.24.301(64)(b),
                                                     (c), (d), (g), and
                                                     (h); 17.24.301(67);
                                                     17.24.301(90);
                                                     17.24.301(103);
                                                     17.24.301(107)(b);
                                                     17.24.301(143);
                                                     17.24.302;
                                                     17.24.303(1)(w),
                                                     (x), and (y);
                                                     17.24.305(2)(b)(i);
                                                     17.24.308(1)(b)(vii
                                                     ); 17.24.312(1)(b);
                                                     17.24.313;
                                                     17.24.321(1) and
                                                     (3);
                                                     17.24.322(2)(a)(x)
                                                     and (4); 17.24.323;
                                                     17.24.324(1)(e);
                                                     17.24.401(3)(f) and
                                                     (5)(a)(iv);
                                                     17.24.404(9) and
                                                     (10); 17.24.405(1)
                                                     and (2), (6)(j),
                                                     and (7);
                                                     17.24.416(1)(b);
                                                     17.24.413(1)(f);
                                                     17.24.427(1)(a),
                                                     (c) and (2);
                                                     17.24.501(4)(a),
                                                     (d) and (6)(d);
                                                     17.24.515;
                                                     17.24.522(3);
                                                     17.24.603(4);
                                                     17.24.605(8);
                                                     17.24.609(1);
                                                     17.24.623(2) and
                                                     (5)(b);
                                                     17.24.624(4),
                                                     (6)(a), (7)(a),
                                                     (11) and (14);
                                                     17.24.626(1)(j);
                                                     17.24.633(2);
                                                     17.24.634;
                                                     17.24.636(2) and
                                                     (3); 17.24.639(2),
                                                     (3) and (7);
                                                     17.24.642(1)-(7);
                                                     17.24.646(4);
                                                     17.24.701(4);
                                                     17.24.702(4)(b) and
                                                     (6); 17.24.711;
                                                     17.24.714(1);
                                                     17.24.716(1), (3),
                                                     (4), and (5);
                                                     17.24.717(1);
                                                     17.24.718(3);
                                                     17.24.719;
                                                     17.24.720;
                                                     17.24.724(1)-(3);
                                                     17.24.726 except at
                                                     (1) the proposed
                                                     deletion of the
                                                     phrase ``the
                                                     application and
                                                     must;'' 17.24.728;
                                                     17.24.751(1) and
                                                     (2)(a), (c), (e),
                                                     and (f);
                                                     17.24.762(1)(a)-(d)
                                                     , (2), and (3);
                                                     17.24.764;
                                                     17.24.815(1)(a)(i),
                                                     (ii) and (b);
                                                     17.24.821;
                                                     17.24.823;
                                                     17.24.824;
                                                     17.24.825;
                                                     17.24.826;
                                                     17.24.832(4) and
                                                     (5)(b) and (c);
                                                     17.24.1001;
                                                     17.24.1104(1) and
                                                     (3); 17.24.1108(1),
                                                     (2) and (4);
                                                     17.24.1109(1)(d)-(g
                                                     ); 17.24.1116;
                                                     17.24.1125(2);
                                                     17.24.1132(1)(a);
                                                     17.24.1133(2)(a),
                                                     (b), and (3);
                                                     17.24.1201(1)-(4);
                                                     17.24.1202;
                                                     17.24.1301; also
                                                     all minor,
                                                     editorial, and
                                                     codification
                                                     changes.
------------------------------------------------------------------------

Sec.  926.16  [Amended]

0
3. Section 926.16 is amended by removing and reserving paragraphs 
(e)(1), (k), (l) and (m).

[FR Doc. E7-19851 Filed 10-9-07; 8:45 am]
BILLING CODE 4310-05-P