Montana Regulatory Program

Published date23 October 2019
Record Number2019-22945
SectionRules and Regulations
CourtSurface Mining Reclamation And Enforcement Office
Federal Register, Volume 84 Issue 205 (Wednesday, October 23, 2019)
[Federal Register Volume 84, Number 205 (Wednesday, October 23, 2019)]
                [Rules and Regulations]
                [Pages 56689-56696]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-22945]
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                DEPARTMENT OF THE INTERIOR
                Office of Surface Mining Reclamation and Enforcement
                30 CFR Part 926
                [SATS No. MT-035-FOR; Docket ID: OSM-2013-0009; S1D1S SS08011000
                SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]
                Montana Regulatory Program
                AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
                ACTION: Final rule; approval of amendment.
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                SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
                (OSMRE), are approving 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 and
                additions to the Montana statute, known as the Montana Code Annotated
                (MCA) about permit application requirements, coal prospecting
                requirements, annual reporting requirements for coal permittees, and
                lawsuits related to damages to water supplies. Montana also proposed to
                revise its regulations, the Administrative Rules of Montana (ARM), to
                incorporate changes about a new short form coal prospecting permit
                process.
                DATES: The effective date is November 22, 2019.
                FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Chief, Denver
                Field Division, Telephone: (307) 261-6550. Email address:
                [email protected].
                SUPPLEMENTARY INFORMATION:
                I. Background on the Montana Program
                II. Submission of the Proposed Amendment
                III. OSMRE's Findings
                IV. Summary and Disposition of Comments
                V. OSMRE's Decision
                VI. Statutory and Executive Order Reviews
                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
                [[Page 56690]]
                reclamation operations on non-Federal and non-Indian lands within its
                borders by demonstrating that its program includes, among other things,
                state laws and regulations that govern surface coal mining and
                reclamation operations in accordance with the Act and consistent with
                the Federal regulations. 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). Additionally, the removal of the
                conditions of approval of the Montana program can be found in the
                February 11, 1982, Federal Register (47 FR 6266). You can also find
                later actions concerning Montana's program and program amendments at 30
                CFR 926.12, 926.15, 926.16, and 926.30.
                II. Submission of the Proposed Amendment
                 By letter dated August 20, 2013, Montana sent OSMRE a proposed
                amendment to its regulatory program (Administrative Record Document ID
                No. OSM-2013-0009-0002) under SMCRA (30 U.S.C. 1201 et seq.). The
                proposed revisions were in response to changes made to the Montana
                Strip and Underground Mine Reclamation Act and the ARM that were a
                result of Montana Senate Bill 286 and subsequent Montana Senate Bill
                92, which were approved at the 2011 and 2013 Montana legislative
                sessions.
                 We announced receipt of the proposed amendment in the October 25,
                2013, Federal Register (78 FR 63911). In the same document, we opened
                the public comment period and provided an opportunity for a public
                hearing or meeting on the amendment's adequacy (Administrative Record
                No. OSM-2013-0009-0001). We did not hold a public hearing or meeting,
                as neither were requested. The public comment period ended on November
                25, 2013. We did not receive any public comments but did receive
                comments from two Federal agencies.
                III. OSMRE'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.
                A. Minor Revisions to Montana's Statutes or Regulations
                 Montana proposed minor wording, editorial, punctuation,
                grammatical, citation, and cross-reference changes to the following
                previously approved rules and statutes. No substantive changes to the
                text of these regulations were proposed. Because these changes are
                minor, we find that they will not make Montana's statute or regulations
                inconsistent with Federal statute or regulations, less stringent than
                SMCRA, or less effective than the corresponding Federal regulations.
                The specific, minor changes are as follows:
                 MCA 82-4-227(8), related to the applicant violator system;
                minor editorial change; counterpart Federal provision found at SMCRA
                515(b)(12) (30 U.S.C. 1265(b)(12);
                 MCA 82-4-237(1), (1)(a), (1)(b), (1)(c), (2), and (3),
                related to the operator filing annual reports; minor changes to statute
                with no Federal counterpart;
                 ARM 17.24.1002(3), related to information and monthly
                reports; minor citation and cross-reference modifications; no Federal
                counterpart;
                 ARM 17.24.1003(1), related to renewal and transfer of
                permits; minor changes to regulation with no Federal counterpart;
                 ARM 17.24.1005(2)(d), related to drill holes; minor
                grammatical corrections; counterpart Federal regulations are found at
                30 CFR 816.13, 816.14, and 816.15; and
                 ARM 17.24.1016(3), related to bond requirements for
                drilling operations; minor changes to regulation with no Federal
                counterpart.
                B. Revisions to Montana's Statutes and Regulations That Are in
                Accordance With and No Less Effective Than the Corresponding Provisions
                of SMCRA and the Federal Regulations
                 Montana proposed revisions to the following statutes or regulations
                containing language that is in accordance with and no less stringent
                than SMCRA. In addition, Montana's proposed revisions are no less
                effective than the corresponding sections of the Federal regulations.
                We are therefore approving the following changes:
                 MCA 82-4-222(1)(k), (1)(l), (2), (2)(l), (2)(m), and (8),
                Permit application--application revisions; [SMCRA Sec. 507(b)(14) (30
                U.S.C. 1257(b)(14)];
                 MCA 82-4-226(1), (2), (7), (7)(b)(i), (7)(b)(ii), and (8),
                Prospecting permit; [SMCRA Sec. 512 (30 U.S.C. 1262) and 30 CFR 772];
                 MCA 82-4-253(3)(d), Suit for damage to water supply;
                [SMCRA Sec. 717 (30 U.S.C. 1307)];
                 ARM 17.24.1001(1)(b), (1)(c), (2), (2)(h)(iii)(F), (2)(q),
                and (7), related to permit requirements; [30 CFR 772.12 and 772.13];
                and
                 ARM 17.24.1019, Permit Requirement--Short Form; [30 CFR
                772.11].
                1. MCA 82-4-222(1)(k), (1)(l), (2), (2)(l), (2)(m), and (8)
                 The changes to MCA 82-4-222 are associated with general
                requirements that must be met upon submittal of a permit application to
                conduct coal mining. Montana's statute contains language that
                corresponds to SMCRA section 507(b) (30 U.S.C. 1257(b)) and the Federal
                regulations at 30 CFR 773.6, 779.24, 779.25, 783.24, and 783.25. The
                new language does not render Montana's statute less stringent than
                SMCRA nor less effective than the Federal regulations.
                 The change at MCA 82-4-222(1)(k) concerns the number of copies of
                geologic cross sections that must be submitted for a permit
                application. Montana proposes to change the number from ``two copies
                each of two sets'' to ``two sets.'' The counterpart SMCRA section
                507(b)(14) (30 U.S.C. 1257(b)(14)) and the regulations at 30 CFR
                779.25(a) and 783.25(a) do not specify the number of copies required,
                merely stating that the application shall include cross sections, maps,
                and plans showing elevations and locations of test borings and core
                samplings.
                 The change at MCA 82-4-222(1)(l) pertains to the type of newspaper
                that the permittee may use to give public notification of a permit
                application, significant permit revision, or permit renewal. Montana is
                changing the type of newspaper from a daily newspaper to any newspaper;
                however, the requirement that the notification must be published in the
                newspaper once a week for four consecutive weeks is unchanged. SMCRA
                sections 507(b)(6) and 513 (30 U.S.C. 1257(b)(6) and 30 U.S.C. 1263,
                respectively), and Federal regulations at 30 CFR 773.6 state that the
                notification must be published once per week for four weeks, but does
                not specify whether the newspaper must be published daily.
                Additionally, Montana is adding language that clarifies that the
                applicant must provide this public notification in a newspaper that is
                published in the locality of the proposed operation and that it will be
                published again within the State if an initial announcement was
                published outside of Montana. Federal requirements also mandate that
                publication in a local newspaper of general circulation in the locality
                of the proposed mining operation must occur.
                 The change to MCA 82-4-222(2) outlines the requirement that a
                prospective permit applicant must submit maps as part of the permit
                [[Page 56691]]
                application package, permit renewal, or significant permit revision.
                Montana proposes to simplify the requirement in this subsection from
                two copies of each map to an unspecified number of ``maps.'' The
                counterpart Federal regulations located at 30 CFR 779.24, 779.25,
                783.24, and 783.25 similarly do not specify how many copies of each map
                must be submitted, only that the maps must be submitted.
                 Montana's modification to MCA 82-4-222(2)(l) concerns the
                requirement for a permit application to include information on pre-
                mining vegetation. Montana is proposing to eliminate references to
                ``varieties'' of plants and replace these references to ``species'' of
                plants and trees. In botanical nomenclature, variety is a taxonomic
                rank below species. In practice, it may be difficult and unnecessary to
                inventory existing vegetation at this level of specificity. Providing
                vegetation species information, including abundance per acre and
                general distribution, provides the regulatory authority with sufficient
                information to characterize the premining vegetation community
                composition and structure. Montana is also deleting language indicating
                that the required vegetation information will include, but not be
                limited to, grasses, shrubs, legumes, forbs, and trees. The revised
                provision is interpreted as requiring descriptions of all vegetation
                life forms without such enumeration.
                 The counterpart Federal regulations at 30 CFR 779.19 and 783.19
                employ the terms ``vegetative types'' and ``plant communities'' and
                also grant the regulatory authority discretion on whether to require
                information on these topics in an application. Although there is no
                specific statutory basis to refer to, SMCRA section 515(b)(19) (30
                U.S.C. 1265(b)(19)) requires that a permanent vegetative cover of the
                same seasonal variety native to the area must be established on
                reclaimed lands with limited exceptions. Implicit in provision is a
                requirement to collect information on pre-mining vegetation. OSMRE
                finds that this minor modification to MCA 82-4-222(2)(l) should have no
                effect on the implementation of this law because sufficient pre-mining
                vegetation information will be collected and provided in the permit
                application. This information, along with soils, climate, and land use
                information, will assist the regulatory authority in assessing the
                appropriateness of proposed revegetation plans and in predicting the
                potential for reestablishing vegetation upon final reclamation.
                 The change to MCA 82-4-222(2)(m) pertains to the certification and
                notarization of maps that are submitted as part of a permitting
                application. Montana is removing the language that previously
                stipulated the wording of professional certifications, and now simply
                requires certification by a professional engineer or professional land
                surveyor licensed as provided by Title 37, Chapter 67 of the MCA. SMCRA
                section 507(b)(14) (30 U.S.C. 1257(b)(14)) requires maps to be
                certified by a professional engineer or a professional geologist with
                assistance from experts in related fields, such as land surveying and
                landscape architecture. There are no implementing Federal regulations
                that specify the language to be included in certifications of these
                professionals.
                 The change to MCA 82-4-222(8) pertains to the public availability
                of a permit application, significant revision, or permit renewal.
                Specifically, Montana is adding language to the existing statute to
                allow this information to be made available at any accessible public
                office or facility approved by the regulatory authority. Previously,
                the public review file was required to be held by the clerk and
                recorder at the courthouse of the county where a major portion of the
                mining is to occur. Montana's change adds flexibility to the provision,
                while ensuring permit applications are publicly available at
                appropriate locations approved by the Montana Department of
                Environmental Quality (DEQ). SMCRA section 507(e) (30 U.S.C. 1257(e))
                affords similar flexibility, providing that the application be publicly
                available either through the recorder at the courthouse of the county
                or an appropriate public office approved by the regulatory authority
                where the mining is to occur.
                2. MCA 82-4-226(1), (2), (7), (7)(b)(i), (7)(b)(ii), and (8)
                 Montana is amending MCA 82-4-226 to modify coal-prospecting
                procedures to allow for a new type of prospecting permit when the
                prospecting is conducted to determine the location, quantity, and
                quality of coal that is outside an area designated as unsuitable, does
                not remove more than 250 tons of coal, and does not substantially
                disturb the land surface. The effect of the modifications to Montana's
                coal prospecting statute causes the process to have three tiers of
                prospecting regulation, rather than the existing two tiers.
                 The first tier is submittal of a notice of intent (NOI) to gather
                baseline data, identify access routes, locate drill hole locations and
                other relevant information outside an area designated as unsuitable for
                coal mining. Coal removal is not authorized under an NOI in Montana.
                The new second tier is referred to as the short form prospecting
                permit, which would be used for prospecting outside of areas designated
                as unsuitable for mining and where prospecting is conducted to
                determine the location, quantity, or quality of coal, but would not be
                used to authorize removal of more than 250 tons. The third tier is
                Montana's existing prospecting permit process, which the State will
                continue to follow in instances when prospecting activities will
                substantially disturb the land surface, remove more than 250 tons of
                coal, or be conducted within an area designated as unsuitable for coal
                mining. The performance standards about coal prospecting are codified
                in ARM Title 17, Chapter 24, Subchapter 10, and many of these standards
                are also being revised under this rulemaking. All prospecting
                activities discussed here are to occur outside of a valid coal mining
                permit area. When prospecting activities occur within a valid mining
                permit, those activities are appropriately regulated under the mining
                permit and a separate NOI or prospecting permit is unnecessary.
                 Montana is modifying MCA 82-4-226(1) to clarify that the standard
                prospecting permit requirements identified therein do not apply to
                activities conducted under either an NOI or the new short form permit
                processes. These exclusions clarify the distinction between the
                requirements for prospecting activities that will involve more
                significant land disturbances and therefore require a standard long
                form permit process and the requirements for prospecting activities
                that involve less significant surface disturbances and will therefore
                require either a short form permit or NOI.
                 Changes to subsection 7(a) further clarify that coal prospecting,
                which is not conducted on lands designated as unsuitable for mining, is
                not conducted to determine the characteristics of a coal deposit, and
                does not remove more than 250 tons of coal, requires an NOI rather than
                a prospecting permit. Montana's NOI process allows access to lands to
                gather baseline data or for planning purposes where very little surface
                disturbance is anticipated. A prospector may then apply for either a
                short or long form prospecting permit to remove coal and characterize
                the coal seam. Language deleted from existing subsection (7)(a) removes
                the ability to conduct prospecting to determine the location, quality,
                or quantity of a mineral deposit under an NOI. This type of activity
                now requires a short form prospecting permit.
                [[Page 56692]]
                 The new short form prospecting permit process is outlined in
                subsections 7(b) and (8). The short form permit process applies to coal
                prospecting that is conducted to determine the characteristics of a
                coal deposit, does not significantly disturb the land surface, does not
                remove more than 250 tons of coal, and is conducted in an area that is
                not designated as unsuitable for coal mining. The addition of this
                section causes Montana to go from a two-tiered process to a more
                comprehensive, three-tiered process related to coal prospecting, as
                discussed above. Montana's short form prospecting permit is applicable
                to activities that would be regulated under an NOI under the approved
                Montana program.
                 Drilling operations, associated disposal pits, and groundwater
                monitoring wells will not be considered ``substantial surface
                disturbance'' for the purpose of this part and may be regulated under
                the short form permit process. Comparison of this proposed statutory
                basis for a definition of ``substantially disturb'' to the Federal
                definition located in 30 CFR 701.5 does not yield any conflicts that
                would render the Montana revisions less effective than the Federal
                regulations. The Federal definition of ``substantially disturb'' at 30
                CFR 701.5 does not explicitly include or mention disturbance caused by
                exploration drilling or water monitoring well installation. The Federal
                definition indicates that substantial disturbance involves removal of
                more than 250 tons of coal, the same criterion that would invoke a more
                involved permitting process under the Montana program. Montana's use of
                the term ``associated disposal pits'' refers to drilling mud pits that
                constitute a disturbance less than that of the drilling pad, generally
                about one quarter to one half of an acre.
                 New section MCA 82-4-226(8) specifies the requirements for the new
                short form permits, including application contents, DEQ review and
                decision timeframes and procedures, public notification and comment
                procedures, and the approval processes. Short form permits must include
                specific contact information, a narrative description of the proposed
                area or a map of the area showing drill hole locations, occupied
                dwellings, roads, topography, hydrologic features, and pipelines. The
                application must also include documentation of the legal right to
                prospect, a statement of the period of intended prospecting, and a
                description of methods for prospecting and for reclaiming disturbances.
                 Under new subsection (8)(b), the DEQ will notify the applicant
                whether the application is complete and preliminarily acceptable within
                10 working days of receipt. New subsection (8)(c) provides the
                applicant five working days to respond to any identified deficiencies.
                New subsection (8)(d) provides that when DEQ notifies the applicant
                that the application is complete, it will also indicate the required
                bond amount. New subsection (8)(e) indicates that after receipt of the
                completeness determination, the applicant will publish an advertisement
                in a newspaper of general circulation in the locality of the proposed
                prospecting activity describing the application and identifying where
                the public may review its contents and how to submit comments. The
                public is allowed 10 days from the date of publication to submit
                comments. Under new subsection (8)(f), the DEQ will issue its decision
                to accept or reject the application within five days of the close of
                the public comment period if no comments were received and within 10
                days if comments are received. DEQ may identify necessary changes to
                the bond amount at that time.
                 New subsection (8)(g) indicates that short form permits are subject
                to subsections (3) through (6). This clarifies the exemption in
                subsection (1), which otherwise might be interpreted as excluding both
                NOI and short form prospecting permits from all requirements of
                subsections (1) through (6). Subsections (3) through (6) include
                requirements, such as performance bonds, a one-year renewable permit
                term, filing of progress reports, and other required, relevant
                information, which exceed the requirements for this type of exploration
                under Federal statute and regulation and the Montana program.
                 MCA 82-4-226(8) sets out substantively more requirements for the
                short form permitting process than the Federal counterpart provisions,
                which regulate this type of exploration activity under an NOI.
                Montana's short form prospecting requirements are no less stringent
                than SMCRA and no less effective than the implementing regulations.
                Specifically, OSMRE finds that the changes to MCA section 82-4-226 are
                no less stringent than SMCRA section 512 (30 U.S.C. 1262) and no less
                effective than the Federal regulations governing coal exploration at 30
                CFR part 772.
                3. MCA 82-4-253(3)(d)
                 Montana is amending its statute to make clear that coal mine
                operators are liable for replacing water supplies that have been
                diminished, interrupted, or contaminated by mining, regardless of
                whether surface or underground mining methods are employed. Although
                MCA 82-4-253 clearly applies to surface and underground mining
                operations, previous wording at subsection (3)(d) appeared to apply
                only to surface mines. This change clarifies the scope of the existing
                statute, which is consistent with and no less stringent than SMCRA and
                no less effective than the Federal regulations.
                4. ARM 17.24.1001(1)(b), (2), (2)(h)(iii)(F), (2)(q), and (7)
                 Montana passed Senate Bill 286 to allow for a new type of coal
                prospecting permit, which caused Montana to have three tiers of
                prospecting processes depending on the specific conditions of the
                operation. ARM section 17.24.1001 formerly pertained to the only level
                of prospecting permit requirements in Montana, and is now being amended
                to acknowledge the addition of the short form permit process.
                Prospecting conducted under an NOI is not considered a permit and is
                not subject to ARM 17.24.1001.
                 Montana's change at ARM 17.24.1001(1)(b) adds language indicating
                that prospecting permit requirements apply where activities will be
                conducted to determine the location, quality, or quantity of the
                mineral using drilling methods. Drilling operations conducted to
                characterize the coal seam that remove less than 250 tons of coal and
                occur outside an area designated as unsuitable for mining would be
                subject to the short form permit requirements. This revision
                acknowledges that the short form is still a permit under Montana's
                program and that if drilling operations remove more than 250 tons of
                coal they would be regulated under the standard permit process. There
                are no Federal provisions that describe standards for prospecting or
                exploration operations analogous to Montana's program. SMCRA and the
                regulations promulgated thereunder regulate exploration operations that
                remove less than 250 tons of coal from lands outside those areas
                designated as unsuitable for mining under NOI requirements. These types
                of operations carry a lesser regulatory burden in terms of reporting,
                mapping, and bonding. Furthermore, exploration operations that remove
                more than 250 tons of coal or occur within lands designated unsuitable
                for mining under an exploration permit analogous to Montana's existing
                long form prospecting permit are regulated pursuant to SMCRA and the
                regulations promulgated thereunder. The Montana program applies
                prospecting permit
                [[Page 56693]]
                requirements to more types of activities than required under
                corresponding Federal exploration requirements as enumerated in 30
                U.S.C. 1262.
                 The modification at ARM 17.24.1001(2) adds an exception to the
                listed permit requirements for drilling operations, which are subject
                to the short form permit requirements under MCA 82-4-226(8). This
                change clarifies the distinction between the standard prospecting
                permit and the new short form prospecting permit under MCA 82-4-226(8).
                 Montana's change at ARM 17.24.1001(2)(h)(iii)(F) is an editorial
                correction that fixes a reference to fish and wildlife habitat and
                species information that must be provided in maps.
                 The modification to ARM 17.24.1001(2)(q) corrects a reference to
                public notification requirements that must be satisfied upon submittal
                of a coal prospecting permit. This regulation now correctly refers the
                reader to ARM 17.24.303(1)(x), which concerns the filing of a newspaper
                advertisement and proof of publication.
                 Montana's existing ARM 17.24.1001(7) concerns the transfer of coal
                prospecting activities to a mining permit when such activities become
                part of a mining operation. Montana correctly incorporates reference to
                ARM 17.24.1019, which is the new short form permitting process, and
                also corrects a previously inaccurate cross-reference to ARM
                17.24.308(1)(b) for mine permit operations plans.
                5. ARM 17.24.1019
                 Montana is incorporating a short form permitting process for coal
                prospecting operations that are outside an area designated unsuitable
                for mining, do not remove more than 250 tons of coal, and do not
                substantially disturb the natural land surface. Montana's short form
                prospecting permit covers the types of activities that the Federal
                statute and regulations would capture under an NOI. Specifically, the
                Federal regulations at 30 CFR 772.11 dictate that the analogous
                requirements apply outside of a mining permit area. Although Montana's
                provision does not indicate that it applies only outside of a mining
                permit area, exploration activities within a valid mining permit would
                be regulated under the mining permit. The Montana DEQ does not intend
                to require a short form exploration permit within mining permit areas.
                 The content requirements for short form permits are primarily
                codified under Montana's statute at MCA 82-4-226(8). New regulation
                language at ARM 17.24.1019 reiterates the types of activities are
                regulated under the short form, stipulates that the short form must be
                filed with the DEQ on a provided form, and that the application must be
                reviewed and approved prior to the initiation of operations.
                 Montana will apply all parts of ARM 17.24 subchapter 10, except ARM
                17.24.1001(1), (2), and (4) through (6), 17.24.1006(2), and (3)(b) and
                (c), 17.24.1007, 17.24.1009, 17.24.1014, and 17.24.1018, to short form
                prospecting permits. These are the standard long form permitting and
                NOI requirements, which appropriately do not apply to short form
                prospecting operations.
                 All the Montana proposed statute and regulation changes listed
                above contain language that is no less stringent than and no less
                effective than SMCRA and the corresponding Federal regulations.
                Furthermore, Montana's changes are not inconsistent with SMCRA and
                other provisions of the Federal regulations. Consequently, we are
                approving the amendments.
                C. Revisions to Montana's Rules With No Corresponding Federal
                Regulations
                 Montana's proposed revisions to the following rules contain
                language that has no Federal counterpart, but also is no less stringent
                than SMCRA and is no less effective than the Federal regulations. We
                are therefore approving these changes.
                1. ARM 17.24.1018(1)(b), (2), (4), (5)(a), (6), (7), (8), and (9)
                 Montana is changing ARM 17.24.1018, Notice of Intent to Prospect,
                to reflect the distinction between NOIs and the new short form
                prospecting permits. Language deleted from ARM 17.24.1018(1)(b) removes
                the ability to conduct prospecting activities for the purpose of
                determining the location, quality, or quantity of the coal without
                substantially disturbing the land surface under an NOI. These
                activities must now be conducted under a short form prospecting permit.
                Language added to ARM 17.24.1018(1)(b) indicates that activities such
                as locating drill holes and identifying access routes are appropriately
                conducted under an NOI. Although the Federal program does not make a
                similar distinction, this language is consistent with Montana's
                statutory authority under MCA 82-4-226. The Federal program allows coal
                extraction through drilling to occur under an NOI, while Montana's
                program now requires a short form permit for such activities.
                 Changes to ARM 17.24.1018(2) clarify that the existing regulation
                pertains only to NOIs and that NOIs must meet the requirements of ARM
                17.24.1018(3) and (4). The change to ARM 17.24.1018(4) replaces
                ``permit'' with ``notice of intent'' because this section now only
                applies to NOIs. Changes to ARM 17.24.1018(5) delete the reference to
                prospecting permit requirements at ARM 17.24.1001(2)(a) through (i),
                and (2)(l) through (n) and replace these references with NOI
                requirements for maps specifying base layers, topography, hydrologic
                features, surface ownership, roads and access routes, locations of
                proposed monitoring facilities, and locations of pipelines and occupied
                dwellings. The Federal program does not delineate a tier of
                exploration, which involves only planning and monitoring activities
                without authority to construct roads or remove coal to characterize the
                seam. It is therefore not possible to compare the two programs in this
                regard. However, Montana's new language is similar to the mapping
                requirements for Federal NOIs under 30 CFR 772.11(b)(3) with the
                exception that drill holes and trenches and proposed roads would not be
                authorized under an NOI in Montana and as such are not included within
                the NOI map requirements.
                 Changes to ARM 17.24.1018(6) specify that the requirements of that
                part pertain only to the extent that the requirements are applicable to
                the proposed prospecting operation. Coal removal is not authorized
                under an NOI in Montana; therefore, surface disturbances would include
                only activities such as access road development or installation of
                monitoring equipment. The existing provision includes multiple cross
                references, which apply to operations involving coal removal or
                activities on protected lands. Because such activities would not be
                authorized under an NOI, Montana's revisions clarify that only the
                referenced provisions which are applicable to the proposed prospecting
                operation would be applied.
                 Changes to ARM 17.24.1018(7) are editorial in nature and clarify
                that when an applicant submits an NOI, the DEQ has 30 days to review
                and notify the person whether the NOI meets all applicable
                requirements.
                 Changes to ARM 17.24.1018(8) clarify that the requirement to have a
                copy of the NOI on-site pertains to all NOIs rather than only those
                that substantially disturb the land surface.
                 Changes to ARM 17.24.1018(9) update the list of prospecting permit
                requirements that do not apply to activities conducted under an NOI.
                These changes are appropriate due to the distinction between the types
                of activities authorized under NOIs and
                [[Page 56694]]
                prospecting permits and the requirements specified under each.
                 Because there are no Federal counterpart regulations to this
                portion of Montana's rules and because the use of the NOI process
                before issuing a prospecting permit is not inconsistent with provisions
                of the Federal program, OSMRE finds Montana's proposed changes to ARM
                17.24.1018 to be no less effective than the Federal program.
                IV. Summary and Disposition of Comments
                Public Comments
                 We asked for public comments on the amendment (Administrative
                Record Document ID No. OSM-2013-0009-0001), but did not receive any.
                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. On August 28,
                2013, we requested comments on Montana's amendment (Administrative
                Record Document ID No. OSM-2013-0009-0007).
                 We received one response letter dated October 25, 2013, from the
                Mine Safety and Health Administration (MSHA) stating that they had no
                comment (Administrative Record Document ID No. OSM-2013-0009-0008).
                 We also received an email from the National Park Service (NPS) on
                October 23, 2013, stating that they had no comment on the amendment
                (Administrative Record Document ID No. OSM-2013-0009-0009).
                Environmental Protection Agency (EPA) Concurrence and Comments
                 Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get
                concurrence from EPA for those provisions of the program amendment that
                relate to air or water quality standards issued under the authority of
                the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
                U.S.C. 7401 et seq.). None of the revisions that Montana proposed to
                make in this amendment pertains to air or water quality standards.
                Therefore, we did not ask EPA to concur on the amendment.
                State Historic Preservation Officer (SHPO) and the Advisory Council on
                Historic Preservation (ACHP)
                 Under 30 CFR 732.17(h)(4), we are required to request comments from
                the SHPO and ACHP on amendments that may have an effect on historic
                properties. On August 28, 2013, we requested comments on Montana's
                amendment from the SHPO and the ACHP (Administrative Record Document ID
                No. OSM-2013-0009-0007), but neither responded to our request.
                V. OSMRE's Decision
                 Based on the above findings, we approve Montana's August 20, 2013,
                amendment. To implement this decision, we are amending the Federal
                regulations at 30 CFR part 926, which codify decisions concerning the
                Montana program. In accordance with the Administrative Procedure Act (5
                U.S.C. 500 et seq.), this rule will take effect 30 days after the date
                of publication. Section 503(a) of SMCRA (30 U.S.C. 1253) requires that
                the State's program demonstrate that it has the capability of carrying
                out the provisions of the Act and meeting its purposes. SMCRA requires
                consistency between State and Federal standards.
                VI. Statutory and Executive Order Reviews
                Executive Order 12630--Governmental Actions and Interference With
                Constitutionally Protected Property Rights
                 This rule would not effect a taking of private property or
                otherwise have taking implications that would result in public property
                being taken for government use without just compensation under the law.
                Therefore, a takings implication assessment is not required. This
                determination is based on an analysis of the corresponding Federal
                regulations.
                Executive Orders 12866--Regulatory Planning and Review and 13563--
                Improving Regulation and Regulatory Review
                 Executive Order 12866 provides that the Office of Information and
                Regulatory Affairs in the Office of Management and Budget (OMB) will
                review all significant rules. Pursuant to OMB guidance, dated October
                12, 1992, the approval of state program amendments is exempted from OMB
                review under Executive Order 12866. Executive Order 13563, which
                reaffirms and supplements Executive Order 12866, retains this
                exemption.
                Executive Order 13771--Reducing Regulation and Controlling Regulatory
                Costs
                 State program amendments are not regulatory actions under Executive
                Order 13771 because they are exempt from review under Executive Order
                12866.
                Executive Order 12988--Civil Justice Reform
                 The Department of the Interior has reviewed this rule as required
                by Section 3 of Executive Order 12988. The Department determined that
                this Federal Register notice meets the criteria of Section 3 of
                Executive Order 12988, which is intended to ensure that the agency
                review its legislation and proposed regulations to eliminate drafting
                errors and ambiguity; that the agency write its legislation and
                regulations to minimize litigation; and that the agency's legislation
                and regulations provide a clear legal standard for affected conduct,
                rather than a general standard, and promote simplification and burden
                reduction. Because Section 3 focuses on the quality of Federal
                legislation and regulations, the Department limited its review under
                this Executive Order to the quality of this Federal Register notice and
                to changes to the Federal regulations. The review under this Executive
                Order did not extend to the language of the State regulatory program or
                to the program amendment that the State of Montana drafted.
                Executive Order 13132--Federalism
                 This rule is not a ``[p]olicy that [has] Federalism implications''
                as defined by Section 1(a) of Executive Order 13132 because it does not
                have ``substantial direct effects on the States, on the relationship
                between the national government and the States, or on the distribution
                of power and responsibilities among the various levels of government.''
                Instead, this rule approves an amendment to the Montana program
                submitted and drafted by that State. OSMRE reviewed the submission with
                fundamental federalism principles in mind, as set forth in Sections 2
                and 3 of the Executive Order and with the principles of cooperative
                federalism, as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As
                such, pursuant to Section 503(a)(1) and (7)(30 U.S.C. 1253(a)(1) and
                (7)), OSMRE reviewed the program amendment to ensure that it is ``in
                accordance with'' the requirements of SMCRA and is ``consistent with''
                the regulations issued by the Secretary pursuant to SMCRA.
                Executive Order 13175--Consultation and Coordination With Indian Tribal
                Governments
                 The Department of the Interior strives to strengthen its
                government-to-government relationship with Tribes though a commitment
                to consultation with Tribes and recognition of their right to self-
                governance and Tribal
                [[Page 56695]]
                sovereignty. We have evaluated this rule under the Department's
                consultation policy and under the criteria in Executive Order 13175,
                and have determined that it has no substantial direct effects on
                federally recognized Tribes or on the distribution of power and
                responsibilities between the Federal government and Tribes. Therefore,
                consultation under the Department's Tribal consultation policy is not
                required. The basis for this determination is that our decision is on
                the Montana program that does not include Tribal lands or regulation of
                activities on Tribal lands. Tribal lands are regulated independently
                under the applicable, approved Federal program.
                Executive Order 13211--Actions Concerning Regulations That
                Significantly Affect Energy Supply, Distribution, or Use
                 Executive Order 13211 requires agencies to prepare a Statement of
                Energy Effects for a rulemaking 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
                a significant energy action under the definition in Executive Order
                13211, a Statement of Energy Effects is not required.
                Executive Order 13405--Protection of Children From Environmental Health
                Risks and Safety Risks
                 This rule is not subject to Executive Order 13045 because this is
                not an economically significant regulatory action as defined by
                Executive Order 12866; and this action does not address environmental
                health or safety risks disproportionately affecting children.
                National Environmental Policy Act
                 Consistent with Sections 501(a) and 702(d) of SMCRA (30 U.S.C.
                1251(a) and 1292(d), respectively) and the Department of the Interior
                Departmental Manual, part 516, Section 13.5(A), State program
                amendments are not major Federal actions within the meaning of Section
                102(2)(C) of the National Environmental Policy Act (42 U.S.C.
                4332(2)(C)).
                National Technology Transfer and Advancement Act
                 Section 12(d) of the National Technology Transfer and Advancement
                Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus
                standards in its regulatory activities unless to do so would be
                inconsistent with applicable law or otherwise impractical. (OMB
                Circular A-119 at p. 14). This action is not subject to the
                requirements of Section 12(d) of the NTTAA because application of those
                requirements would be inconsistent with SMCRA.
                Paperwork Reduction Act
                 This rule does not include requests and requirements of an
                individual, partnership, or corporation to obtain information and
                report it to a Federal agency. As this rule does not contain
                information collection requirements, a submission to OMB under the
                Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.
                Regulatory Flexibility Act
                 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 corresponding 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 corresponding
                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; and (c) does not have significant adverse effects on
                competition, employment, investment, productivity, innovation, or the
                ability of U.S. based enterprises to compete with foreign-based
                enterprises. This determination is based on an analysis of the
                corresponding Federal regulations, which were determined not to
                constitute a major rule.
                Unfunded Mandates
                 This rule does not impose an unfunded mandate on State, local, or
                Tribal governments, or the private sector of more than $100 million per
                year. This rule does not have a significant or unique effect on State,
                local or Tribal governments or the private sector. This determination
                is based on an analysis of the corresponding Federal regulations, which
                were determined not to impose an unfunded mandate. Therefore, a
                statement containing the information required by the Unfunded Mandates
                Reform Act (2 U.S.C. 1531 et seq.) is not required.
                List of Subjects in 30 CFR Part 926
                 Intergovernmental relations, surface mining, underground mining.
                 Dated: August 21, 2019.
                David Berry,
                Director, Western Region, Regions 5, 7, 8, 9, 10, 11.
                 For the reasons set out in the preamble, 30 CFR part 926 is amended
                as set forth below:
                PART 926--MONTANA
                0
                1. The authority citation for part 926 continues to read as follows:
                 Authority: 30 U.S.C. 1201 et seq.
                0
                2. Section 926.15 is amended in the table by adding an entry in
                chronological order by ``date of final publication'' to read as
                follows:
                Sec. 926.15 Approval of Montana regulatory program amendments.
                * * * * *
                [[Page 56696]]
                ----------------------------------------------------------------------------------------------------------------
                 Original amendment submission date Date of final publication Citation/description
                ----------------------------------------------------------------------------------------------------------------
                
                 * * * * * * *
                August 20, 2013......................... October 23, 2019....................... ARM 17.24.1001(1)(b), (1)(c),
                 (2), (2)(h)(iii)(F), (2)(q),
                 and (7), Permit Requirement;
                 ARM 17.24.1002(3),
                 Information and Monthly
                 Reports; ARM 17.24.1003(1),
                 Renewal and Transfer of
                 Permits; ARM
                 17.24.1005(2)(d), Drill
                 holes; ARM 17.24.1016(3),
                 Bond Requirements for
                 Drilling Operations; ARM
                 17.24.1018(1)(b), (2), (4),
                 (5)(a), (6), (7), (8), and
                 (9), Notice of Intent to
                 Prospect; ARM 17.24.1019,
                 Permit requirement--short
                 form; MCA 82-4-222(1)(k),
                 (1)(l), (2), (2)(l), (2)(m),
                 and (8), Permit application--
                 application revisions; MCA
                 82-4-226(1), (2), (7)(a),
                 (7)(b)(i), (7)(b)(ii), and
                 (8), Prospecting permit; MCA
                 82-4-227 (8), Refusal of
                 permit--applicant violator
                 system; MCA 82-4-237(1),
                 (1)(a), (1)(b), (1)(c), (2),
                 and (3), Operator to file
                 annual reports; MCA 82-4-
                 253(3)(d), Suit for damage
                 to water supply.
                ----------------------------------------------------------------------------------------------------------------
                [FR Doc. 2019-22945 Filed 10-22-19; 8:45 am]
                 BILLING CODE 4310-05-P
                

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