Montana Regulatory Program, 57822-57838 [E7-19851]
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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
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment with certain exceptions and
an additional requirement.
AGENCY:
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:
jfleischman@osmre.gov.
SUMMARY:
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
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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
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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
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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
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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.
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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 previouslyapproved 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.
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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,
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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 HalfShrubs.
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:
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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
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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
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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)].
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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)].
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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 previouslyapproved 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
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Requirements; deletion of crossreferences 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
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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
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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:
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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
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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
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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
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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:
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(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-
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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
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57827
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
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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),
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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 crossreferences 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)
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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
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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
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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)
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‘‘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
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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
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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
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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 § 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.
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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
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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
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57831
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
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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 crossreferences 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)
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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
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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
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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 waterreplacement 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
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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-
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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
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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
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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.
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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).
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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,
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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 rulemaking. 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
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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
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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
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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
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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.
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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.
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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
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17:39 Oct 09, 2007
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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.
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57837
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.).
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Federal Register / Vol. 72, No. 195 / Wednesday, October 10, 2007 / Rules and Regulations
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.
For the reasons set out in the
preamble, 30 CFR part 926 is amended
as set forth below:
I
PART 926—MONTANA
1. The authority citation for part 926
continues to read as follows:
I
Authority: 30 U.S.C. 1201 et seq.
2. Section 926.15 is amended in the
table by adding a new entry in
chronological order by ‘‘Date of Final
Publication’’ to read as follows:
I
§ 926.15 Approval of Montana regulatory
program amendments.
*
*
*
*
*
Original amendment
submission date
Date of final 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.
§ 926.16
[Amended]
3. Section 926.16 is amended by
removing and reserving paragraphs
(e)(1), (k), (l) and (m).
I
[FR Doc. E7–19851 Filed 10–9–07; 8:45 am]
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Agencies
[Federal Register Volume 72, Number 195 (Wednesday, October 10, 2007)]
[Rules and Regulations]
[Pages 57822-57838]
From the Federal Register Online via the Government Printing 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
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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: jfleischman@osmre.gov.
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), whic