[Federal Register Volume 62, Number 7 (Friday, January 10, 1997)]
[Proposed Rules]
[Pages 1408-1420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-582]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926


Surface Coal Mining and Reclamation Operations Under the Federal 
Lands Program; State-Federal Cooperative Agreements; Montana

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

ACTION: Proposed rule.

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SUMMARY: The State of Montana (Governor) and the Secretary of the 
Department of the Interior (Secretary) are proposing to amend the 
cooperative agreement between the Department of the Interior and the 
State of Montana for the regulation of surface coal mining and 
reclamation operations on Federal lands within Montana under the 
permanent regulatory program. The proposed rulemaking would streamline 
the permitting process in Montana by delegating to Montana the sole 
responsibility to issue permits for coal mining and reclamation 
operations on Federal lands under the revised Federal lands program 
regulations, and would eliminate duplicative permitting requirements, 
thereby increasing governmental efficiency, which is one of the 
purposes of the cooperative agreement. This amendment would also update 
the cooperative agreement to reflect current regulations and agency 
structures. Cooperative agreements are provided for under section 
523(c) of the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). This notice provides information on the proposed changes to 
the cooperative agreement.

DATES: Written comments: Written comments must be received by 4:00 
p.m., M.S.T. on March 11, 1997.
    Public hearing: Anyone wishing to testify at a public hearing must 
submit a request on or before 4:00 p.m., M.S.T. on January 31, 1997. 
Because OSM will hold a public hearing only if one is requested, 
hearing arrangements, dates and times, if any, will be announced in a 
subsequent Federal Register notice. If no one requests an opportunity 
to testify at the public hearing, the hearing will not be held. Any 
disabled individual who has need for special accommodation to attend a 
public hearing should contact the individual listed under FOR FURTHER 
INFORMATION CONTACT.
    Public Meeting: If only one person requests an opportunity to 
testify at a hearing, a public meeting, rather than a public hearing, 
may be held. Persons wishing to meet with OSM representatives to 
discuss the proposed amendment may request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
will be open to the public and, if possible, notices of meetings will 
be posted at the locations listed under ADDRESSES. A written summary of 
each meeting will be made a part of the administrative record.

ADDRESSES: Written comments should be mailed or hand delivered to the 
Office of Surface Mining Reclamation and Enforcement, Western Regional 
Coordinating Center, Suite 3320, 1999 Broadway, Denver, CO 80202-5733.
    Copies of the Montana program, proposed amendments to the 
cooperative agreement and the related information required under 30 CFR 
Part 745 will be available for public review at the addresses listed 
below during normal business hours, Monday through Friday, excluding 
holidays. Each requester may receive one free copy of the proposed 
revisions by contacting any one of the following persons.


[[Page 1409]]


Ranvir Singh, Western Regional Coordinating Center, Office of Surface 
Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, 
CO 80202-5733, Telephone: (303) 844-1489.
Guy Padgett, Director, Casper Field Office, Office of Mining 
Reclamation and Enforcement, 100 East ``B'' Street, Room 2128, Casper, 
WY 82601-1918, Telephone: (307) 261-6550.
Jan Sensibaugh, Montana Department of Environmental Quality, 1520 East 
Sixth Avenue, Helena, MT 59620-0901, Telephone: (406) 444-5270.

FOR FURTHER INFORMATION CONTACT:
Ranvir Singh, Western Regional Coordinating Center, Office of Surface 
Mining Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, 
CO, 80202-5733, Telephone: (303) 844-1489.

SUPPLEMENTARY INFORMATION:

I. Background on the Montana Cooperative Agreement

    On June 4, 1980, the Governor submitted a request for a cooperative 
agreement between the Department of the Interior and the State of 
Montana to give the State primacy in the administration of its approved 
regulatory program on Federal lands within Montana. The Secretary 
approved the cooperative agreement on January 19, 1981 (46 FR 20983, 
April 8, 1981). The text of the existing cooperative agreement can be 
found at 30 CFR Sec. 926.30.
    On July 5, 1994, the Governor, pursuant to 30 CFR Sec. 745.14 and 
at the recommendation of OSM, submitted a proposed modified cooperative 
agreement to address among other things, elimination of duplicative 
State/Federal permitting efforts and streamlining of the permitting 
processes. The proposed modifications would amend the existing 
cooperative agreement and delegate to Montana the sole responsibility 
to issue coal mining and reclamation permits on Federal lands 
consistent with the revised Federal lands regulations at 30 CFR Part 
740 (48 FR 6912, February 16, 1983). This rulemaking would also amend 
the existing cooperative agreement to reflect current agency 
organizations.
    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Montana program.

II. Proposed Revisions to the Cooperative Agreement

    A summary of the proposed changes to the existing cooperative 
agreement appears below. These proposed revisions are subject to 
further changes because of public comments and further discussions with 
Montana. The full text of the proposed revised cooperative agreement is 
being published for continuity, and the convenience of the reader.
    The introductory language preceding existing Article I would be 
revised to read ``(t)he Governor of the State of Montana (Governor) and 
the Secretary of the Department of the Interior (Secretary) enter into 
a State-Federal Cooperative Agreement (Agreement) to read as follows:'' 
This change would be made to assure language consistency with other 
State-Federal cooperative agreements, and to specify position 
designations of representatives of the two entities of the State and 
Federal governments that would sign the cooperative agreement. The 
second paragraph of the existing introductory language would be deleted 
because it would essentially duplicate the proposed language.

Existing Article I: Introduction and Purpose

Proposed Revised Article I: Authority, Purposes, and Responsible 
Agencies
    The heading of existing Article I would be revised to read Article 
I: Authority, Purposes, and Responsible Agencies. This revision is 
proposed so that the revised heading correctly represent the three 
paragraphs that comprise this article as described below.
Authority
    Existing paragraph A would be given the heading A. Authority to 
make it consistent with other cooperative agreements. The language in 
existing paragraph A would be revised to delegate to Montana the 
responsibility to review and approve coal exploration operations that 
are not subject to 43 CFR Group 3400. This change is in conformance 
with the Federal lands regulations at 30 CFR 740.4(c)(6).
Purposes
    Existing paragraph B would be given the heading B. Purposes, and 
minor word changes would be made for clarity.
Responsible Agencies
    A new paragraph C. Responsible Agencies would be added to replace 
and consolidate in one place the provisions of paragraphs A and B of 
existing Article IV and would specify, as in the existing cooperative 
agreement, that the Office of Surface Mining Reclamation and 
Enforcement (OSM) would administer the cooperative agreement on behalf 
of the Secretary. However, since there has been a change in the name of 
the State agency with authority to regulate coal mining in Montana 
subsequent to the date of existing cooperative agreement, the Montana 
Department of Environmental Quality (DEQ), instead of the Montana 
Department of State Lands (State Lands), would administer the 
cooperative agreement on behalf of the Governor.

Existing Article II: Effective Date

Proposed Revised Article II: Effective Date
    Existing Article II would be revised by replacing the roman numeral 
``X'' at the end of the last sentence with roman numeral ``XI'' to 
correspond to the proposed renumbering of existing Article X. No change 
in effect is intended.

Existing Article XVI: Definitions

Proposed Revised Article III: Definitions
    Existing Article XVI: Definitions would be renumbered to read 
Article III: Definitions. This change is proposed to assure that this 
article appears in the same sequence as in other State-Federal 
cooperative agreements. The existing language would be retained to 
provide that the terms and phrases used in the cooperative agreement 
would have the same meanings as they have in SMCRA, 30 CFR Parts 700, 
701, 740, and the State Program. Additional language would be included 
to define the term ``Permit Application Package (PAP)'' to describe the 
material submitted by an applicant for a surface coal mining and 
reclamation operation permit on Federal lands (See 48 FR 6912, February 
16, 1983). OSM adopted the term because there are requirements for 
mining on Federal lands that are in addition to those required by 
permit application under the State program for non-Federal lands. For 
example, operations on Federal lands may be subject to requirements of 
the Federal land management agency or of the Secretary under Federal 
laws other than SMCRA. The PAP would include such additional 
information as would be required by the State program. See definition 
of ``permit application package'' under 30 CFR 740.5.
    The definition of PAP in the revised cooperative agreement includes 
the term ``permit amendment'' in addition to all other terms in the 
definition of PAP

[[Page 1410]]

under CFR 740.5. The term ``permit amendment'' under the Montana State 
Program means any change in the mine or reclamation plan that results 
in expansion or decrease of the operation's permitted boundaries, 
excluding incidental boundary changes (ARM 26.4.301(13).

Existing Article III: Scope

Proposed Revised Article IV: Applicability
    The heading of existing Article III would be revised to read 
Article IV: Applicability. This revision is proposed because the word 
``applicability'' is more appropriate than the word ``scope'' to 
describe what is contained in this article. The new heading would also 
be consistent with that in other State-Federal cooperative agreements. 
Existing language would be revised to delete an obsolete reference to 
conditional approval of Montana's permanent State program, and to 
include additional current regulatory and statutory references that are 
relevant but are not presently included. These revisions would not 
change the intent of existing Article III.

Existing Article IV: Requirements for Cooperative Agreement

Proposed Revised Article V: Requirements for the Agreement
    Existing Article IV would be renumbered and retitled to read 
Article V: Requirements for the Agreement. This as well as other 
proposed changes to Article IV are discussed below.
    The change from the existing roman numeral IV to roman numeral V is 
being made to conform to the revised numbering of preceding articles. 
The word ``agreement'' would be used in place of phrase ``cooperative 
agreement'' to conform to the introductory paragraph of the Cooperative 
Agreement and is intended to be merely an editorial change.
    As explained above, the provisions of existing paragraphs A and B 
have been consolidated into new paragraph C. Responsible Agencies of 
proposed Article I. The remaining provisions of existing Article IV 
would be reorganized into six paragraphs as explained below. The 
introductory language in the existing Article IV would be included 
without any substantive changes in paragraph A to affirm that the 
Governor and the Secretary would comply with all provisions of the 
Agreement.
Funds
    Existing paragraph C. Funds would become paragraph B. Funds of 
proposed Article V, and would consist of three proposed subparagraphs.
    Proposed subparagraph 1 would retain all the language of the first 
two sentences of existing paragraph C. This subparagraph would also 
provide that the Federal Assistance Manual (FAM) would be used in 
determining the amount of grant funds to be reimbursed to DEQ. The 
existing cooperative agreement does not include this provision. 
Therefore, in order to comply with regulations at 30 CFR Part 735, 
reference to the use of FAM would be included to specify that the 
amount of reimbursement of DEQ for administration and enforcement on 
Federal lands is not limitless but is subject to the provisions of FAM.
    Proposed subparagraph 2 contains a new provision to address the 
possibility when necessary funds referred to in subparagraph 1 may not 
be appropriated to OSM to reimburse the State. This new provision would 
describe the procedure to be used in dealing with the emergencies that 
may be caused by unavailability of sufficient Federal funds, and to 
insure that mining operations on Federal lands in Montana would be 
regulated in accordance with the State Program.
    Proposed subparagraph 3 would be added to clarify that the amount 
of funds reimbursed to DEQ are not fixed but are subject to adjustments 
in accordance with the program income provisions of 43 CFR Part 12. 
This provision is added to comply with Financial Management 
requirements of 30 CFR 735.25.
Reports and Records
    Existing paragraph D. Reports and Records would become paragraph C. 
Reports and Records of proposed Article V, and would be revised to make 
minor changes to improve clarity, and to remove reference to an OSM 
organizational structure that is no longer in use. As stated above OSM 
would administer the cooperative agreement on behalf of the Secretary, 
the word ``Secretary'' has been replaced by the acronym ``OSM''. A new 
provision has been added regarding the final evaluation report that OSM 
prepares and submits to the Congress and other interested parties about 
State administration and enforcement of the cooperative agreement. 
According to this provision OSM would be required to attach DEQ's 
comments on the report prior to its being submitted to the Congress and 
disseminated to other interested parties. This requirement would 
provide the Congress and the public an opportunity to know not only how 
OSM considers the State's performance but also the State's views on its 
own performance.
Personnel
    Existing paragraph E. Personnel would become paragraph D. Personnel 
of proposed Article V, and the existing language would be incorporated 
in the renumbered paragraph. No change in the meaning is intended.
Equipment and Facilities
    Heading of the existing paragraph F. Equipment and Laboratories 
would be revised to read as E. Equipment and Facilities, to more 
appropriately describe the contents of this paragraph. The language in 
the existing paragraph would be retained without any substantive 
changes in its intent.
Permit Application Fees and Civil Penalties
    Existing paragraph G. Permit Application Fees would be renumbered 
and retitled as paragraph F. Permit Application Fees and Civil 
Penalties. The change in title is to assure conformance with other 
cooperative agreements. The existing provision regarding all permit 
fees to retained by the State and deposited in the General Fund would 
be deleted because it does not comply with revised Federal regulations. 
In order to comply with the Federal regulations regarding financial 
management, new language would be added to incorporate current 
regulatory references, and Federal and State program requirements with 
respect to civil penalties that are not included in the existing 
cooperative agreement.

Existing Article V: Policies and Procedures: Mine Plan Review

Proposed Revised Article VI: Review and Approval of the PAP or 
Application for Transfer, Assignment or Sale of Permit Rights
    The number and heading of the existing Article V: Policies and 
Procedures: Mine Plan Review would be revised to read Article VI: 
Review and Approval of the PAP or Application for Transfer, Assignment 
or Sale of Permit Rights. Renumbering is necessary to conform to 
revised numbering of preceding articles. The change in heading is 
proposed to accurately represent various topics that are parts of this 
article.
    Provisions of existing Article V would be revised to be consistent 
with other cooperative agreements, to include additional requirements 
of the Federal lands program regulations at 30 CFR Parts 740, 745, and 
746, to delete references to obsolete regulations, and to add 
references to current regulations.

[[Page 1411]]

The proposed Article VI would include all relevant provisions of 
existing Article V, and would consist of three major headings A, B, and 
C as described below.
Receipt and Distribution of the PAP or Application for Transfer, 
Assignment or Sale of Permit Rights
    The title of existing paragraph A would be revised to read A. 
Receipt and Distribution of the PAP or Application for Transfer, 
Assignment or Sale of Permit Rights. This change is proposed to assure 
consistency with the revised Federal lands regulations at 30 CFR 740.
    Some of the provisions of existing paragraph A would be revised and 
incorporated in proposed subparagraph A.1. The existing requirement 
that the operator submit to the State and the Regional Director an 
appropriate number of identical copies of the mining and reclamation 
plan and permit application or an application for major modification to 
an approved mining plan and permit, would be replaced by the provision 
that the applicant submit to DEQ an appropriate number of copies of the 
PAP or application for transfer, assignment or sale of permit rights. 
This change is proposed to eliminate duplication and make DEQ the sole 
recipient of the permit applications. Other existing requirements with 
respect to the form and contents of the application to ascertain 
compliance with various State and Federal laws and regulations would be 
retained in subparagraph A.1 but would be revised to incorporate minor 
editorial changes and current statutory and regulatory citations.
    A new subparagraph A.2 would be added to provide that after receipt 
of the PAP, or application for transfer, assignment or sale of permit 
rights, DEQ would ensure that an appropriate number of copies of the 
PAP or applicant for transfer, assignment or sale of permit rights, are 
provided to OSM, the Federal Land Management Agency, and any other 
appropriate Federal agency. This provision would further give DEQ the 
sole responsibility for distributing copies of permit applications to 
appropriate agencies, and would eliminate duplication of effort.
Review of the PAP or Application for Transfer, Assignment or Sale of 
Permit Rights
    The title of existing paragraph B. Mine Plan Review Procedures 
would be revised to read B. Review of the PAP Application for Transfer, 
Assignment or Sale of Permit Rights. This change is being proposed to 
assure clarity, and consistency with Federal lands regulations at 30 
CFR Part 740.
    Most of the relevant provisions of existing paragraph B comprised 
of subparagraph 1 through 9 would be incorporated into four 
subparagraphs of the proposed paragraph B. However, in order to keep 
the various provisions in a logical sequence and under appropriate 
headings, the relevant language would be moved from the existing 
subparagraph to another proposed subparagraph. Also, the phrase ``mine 
plan and permit application'' extensively used in the existing 
cooperative agreement would be replaced by the phrase ``permit 
application package (PAP) or application for transfer, assignment or 
sale of permit rights'' to conform to the language in revised Federal 
regulations. Furthermore, the phrase ``State Lands'' would be replaced 
by Department of Environmental Quality (DEQ), and the ``Regional 
Director'' and ``Secretary'' would be replaced by ``OSM'', where 
appropriate. These modifications are proposed because of recent changes 
in the organizational structure of the Montana State government and 
OSM.
Responsibilities of DEQ, OSM and the Secretary
    As described below, the proposed paragraph B would consist of four 
subparagraphs delineating the responsibilities of DEQ, OSM and the 
Secretary relating to the review of the PAP or application for 
transfer, assignment or sale of permit rights, and coordination 
procedures between DEQ and OSM before and after DEQ's approval of a 
permit.
    The provision in existing paragraph B.1 that State Lands shall 
assume responsibility for the analysis and review of applications 
required by 30 CFR 741.13 for surface coal mining and reclamation 
permits on Federal lands in Montana, would be revised by deleting 
reference to an obsolete regulation at 30 CFR 741.13. The revised 
language would be moved, without any changes in its meaning, to 
proposed subparagraph B.1.a(2) in order to keep this provision in a 
logical sequence and under the appropriate subparagraph heading. The 
requirement in existing paragraph B.1 that the Secretary shall, as 
requested, assist the State through the Regional Director in the 
analysis and review of applications, would be changed to provide that 
OSM would review the appropriate portions of applications. The revised 
language would be moved and included as subparagraph a(2) of proposed 
paragraph B.2 where other responsibilities of OSM are described. The 
remaining provision in existing paragraph B.1 stating that the 
Secretary shall, in addition, evaluate the State's analysis and 
conclusions as necessary to independently determine whether the 
Secretary concurs in the State's decision, would be deleted. Such 
Secretarial concurrence would be duplication of effort and hence, would 
not be necessary if, as proposed in this agreement (see proposed 
subparagraph C.1), DEQ assumes the responsibility to make a decision on 
approval, conditional approval, or disapproval of the permit 
application component of the PAP or application for transfer, 
assignment or sale of permit rights.
    Thus, the proposed paragraph B.1 which describes the 
responsibilities of DEQ, would incorporate some of the provisions of 
existing paragraph B.1 as described above, also of existing paragraphs 
B.2, B.7 of Article V, and of paragraph B of existing Article VIII as 
discussed below. In addition, the following new requirements would be 
included in the proposed paragraph B.1. The first new requirement in 
proposed subparagraph B.1.a(3) would make DEQ responsible to obtain the 
requests from Federal agencies with jurisdiction or responsibility over 
Federal lands for additional information, comments and findings. This 
requirement is necessary to provide Federal agencies the full 
opportunity to communicate to DEQ their concerns and comments before 
DEQ approves a permit. The second new provision in proposed 
subparagraph B.1.a(4) would require DEQ to obtain OSM's determination 
whether or not the PAP involving leased Federal coal would require a 
mining plan modification under 30 CFR 746.18 and informing the 
applicant of such determination. This provision would ensure that the 
applicant, in addition to obtaining a DEQ permit, would also need to 
get a mining plan approval from the Secretary as required by the 
Mineral Leasing Act, and regulations at 30 CFR 746.11. Proposed 
subparagraph a(5) would require DEQ to consult with and obtain the 
consent, as necessary, of Federal land management agency would respect 
to post-mining land use and to any special requirements to protect non-
coal resources. This new responsibility would be delegated to DEQ as 
provided in 30 CFR 740.4(c)(2). Proposed subparagraph a(6) would be 
added to delegate to DEQ the responsibility to consult with and obtain 
consent, as necessary, of the Bureau of Land Management (BLM) with 
respect to requirements relating to the development, production and 
recovery of mineral resources on lands that may

[[Page 1412]]

be affected by coal mining operations involving leased Federal coal, as 
authorized by 30 CFR 740.4(c)(3). Proposed subparagraph a(7) would 
provide for delegation to DEQ the responsibilities of approval and 
release of performance bonds with the concurrence of OSM, and approval 
and maintenance of liability insurance as authorized by 30 CFR 
740.49(c)(4). Another new requirement in proposed subparagraph a(8) 
would delegate to DEQ the responsibility to review and approve 
exploration operations that are not subject to the requirements of 43 
CFR Group 3400, as provided in 30 CFR 740.4(c)(6).
    Proposed new subparagraph B.1.b(2) would require DEQ to prepare a 
State decision document in cases when a mining plan action would need 
to be taken by the Secretary. This decision document is one of the 
documents that comprises the mining plan decision document and serves 
the basis for OSM's recommendation to the Secretary for an action on a 
mining plan.
    The provision in existing paragraph B.2 that State Lands will be 
the primary contact for operators regarding the processing of mining 
plans and permit applications, would be revised to make, in addition to 
those already mentioned, a number of corrections to conform to the 
current regulations. The word ``applicant'' would be used in place of 
the word ``operators'' to more accurately define the person submitting 
the PAP. The revised language would be moved to proposed subparagraph 
B.1.a(1) so that this provision is in a logical sequence and under the 
appropriate subparagraph heading without making any change in its 
intent.
    The requirement of existing paragraph B.2 regarding State Lands 
being responsible for informing the applicant of all joint State-
Federal determinations would be moved to the proposed paragraph C.4 of 
this article in order to keep this provision under the appropriate 
subject heading. However, the phrase ``joint State-Federal 
determinations'' would be deleted because DEQ would assume the primary 
responsibility to make determinations on approval or disapproval of 
permits.
    The provision in existing paragraph B.2 requiring that State Lands 
shall send a copy of all correspondence with the applicant and any 
information received from the applicant which may have a bearing on 
decisions regarding the mine plan and permit application to the 
Regional Director, and the provision that requires OSM to send to the 
State a copy of all independent correspondence with the applicant that 
may have a bearing on decisions regarding the mining plan and permit 
application, would be modified and moved to subparagraph B.4.d where 
coordination responsibilities of OSM and DEQ are described.
    The provision in existing paragraph B.2 stating, ``Except in 
exigent circumstances, OSM will not independently initiate contacts 
with applicants regarding completeness or deficiencies of plans and 
applications with respect to matters which are properly within the 
jurisdiction of State Lands'', would be moved to proposed subparagraph 
B.4.a. No change in the meaning is intended.
    The existing paragraph B.2 provides that the Secretary shall 
reserve the right to act independently of the State to carry out his 
responsibilities under laws other than the Federal Act and in instances 
of disagreement under the Federal Act, would be moved to subparagraph 
B.3.b where other responsibilities and rights of the Secretary are 
listed.
    The proposed paragraph B.2, which describes the responsibilities of 
OSM, would incorporate the appropriate requirements of existing 
paragraphs B.1, B.4, B.5, B.7, and B.8. In addition, this paragraph 
would include four new provisions required by Federal regulations. The 
first new provision would be proposed subparagraph B.2.a(3), that would 
require OSM to consult with the Federal land management agency to 
determine whether the PAP constitutes a mining plan modification, and 
to inform DEQ of such determination within 30 days of receiving a copy 
of the PAP. This provision is required to comply with 30 CFR 
746.18(c)(1). The second new provision, proposed subparagraph B.2.b(1), 
would be included to comply with the requirements of 30 CFR 746.13(e). 
Proposed subparagraph B.2.b(1) would require OSM to consult with and 
obtain the concurrences of BLM, and the Federal land management agency, 
or any other Federal agency, as necessary, prior to recommending to the 
Secretary to approve or disapprove the mining plan. The third new 
proposed subparagraph B.2.b(2) would address the situations that may 
arise when DEQ would be unable to include in the permit certain 
conditions that other Federal agencies may require to assure compliance 
with Federal laws other than SMCRA. In order to assure compliance with 
30 CFR 740.13(c)(1), proposed paragraph C in subparagraph 2 would 
require DEQ to consider the comments of Federal agencies and, to the 
extent allowed by Montana law, include in the permit, terms and 
conditions imposed by the Federal law management agency or any other 
Federal agency with any interest in the proposed project. Montana is 
concerned that 30 CFR 740.13(c)(1) appears to require the State to 
include and enforce conditions required by other Federal laws. The 
State has pointed out that it lacks the authority to enforce other 
Federal laws and regulations.
    The proposed amendments to the Cooperative Agreement do not require 
nor authorize the State of Montana to enforce Federal laws other than 
SMCRA. However, the State will enforce its own permits, including those 
permit conditions required under 30 CFR 740.13(c)(1). The State must 
consider the comments of Federal agencies in the context of permit 
issuance and must document these comments in the record of permit 
decisions. After considering the comments and proposed conditions of 
Federal agencies, the State may adopt the recommended conditions. If 
the State does not incorporate a permit condition proposed pursuant to 
other Federal laws and regulations, the State will document why the 
condition was not accepted and transmit the documentation to OSM. OSM 
may agree with the State that the condition is not necessary. When OSM 
believes the proposed conditions are necessary, it has a variety of 
options to consider to improve those conditions:
    (1) OSM may work with the Federal land management agency to find 
another means to resolve the issue.
    (2) Those conditions associated with Federal laws other than SMCRA 
could be included as part of the mining plan approval, surface use 
permit, or other Federal authorization.
    (3) In rare instances where no other Federal authorizations would 
be required, OSM will, after consulting with other Federal agencies as 
required by the Cooperative Agreement, issue a supplemental SMCRA 
permit attaching only those conditions which are necessary to assure 
compliance with other Federal laws. The State shall not be required to 
enforce the conditions of the Federal permit.
    The fourth new proposed subparagraph B.2.b(3) would provide for OSM 
to be responsible for providing a mining plan decision document to the 
Secretary recommending approval, disapproval, or conditional approval 
of mining plans or modifications thereof. This new provision is needed 
to assure compliance with 30 CFR 740.4(b) and 746.13.
    The gist of the first sentence of existing paragraph B.3 making the 
Regional Director responsible to ensure that any information OSM 
receives concerning the application is sent to

[[Page 1413]]

State Lands, would be contained in proposed subparagraph B.4.d where 
other coordination responsibilities of OSM and DEQ are described. The 
requirement of the second sentence of existing paragraph B.3 would be 
moved to proposed subparagraph B.4.b where other responsibilities of 
OSM and DEQ regarding coordination are described.
    Proposed paragraph B.3, which delineates the responsibilities of 
the Secretary, in addition to incorporating in proposed subparagraph 
B.3.b the requirements of existing paragraph B.2 as discussed above, 
would also include two new subparagraphs. The first proposed 
subparagraph B.3.a would be added to provide for the Secretary to 
concurrently carry out the non-delegable responsibilities listed in 30 
CFR 745.13. This is necessary to expedite the mining plan approval 
process such that the Secretary simultaneously carries out his 
responsibilities without waiting for the State to complete its actions. 
The second proposed subparagraph B.3.c would be added to implement 30 
CFR 740.4(a) which requires the Secretary to be responsible for 
approval, disapproval, or conditional approval of a mining plan action 
pursuant to the Mineral Leasing Act of 1920.
    The provision in existing paragraph B.4 making the Regional 
Director responsible for obtaining, on a timely basis, the views of all 
Federal agencies with jurisdiction or responsibility over a mine plan 
or permit application on Federal lands in Montana and for making these 
views known to State Lands, would be revised. The proposed amendments 
to the Agreement would delegate this responsibility to DEQ as provided 
in proposed subparagraphs B.1.a(3). This delegation is permissible 
under 30 CFR 740.4(c). But as provided in subparagraph B.2.a(5)(b), OSM 
may also assist DEQ, if requested, in obtaining comments and findings 
of other Federal agencies. Another provision in existing paragraph B.4 
requiring State Lands to keep the Regional Director informed of 
findings during the review which bear on the responsibilities of other 
Federal agencies, would be included in proposed subparagraph B.4. after 
making appropriate modifications regarding the name of the State 
regulatory agency. Another provision of existing paragraph B.4 
requiring the Regional Director to take appropriate steps to facilitate 
discussions between State Lands and the concerned agencies wherever 
desirable to resolve issues or problems, would be included in the 
proposed subparagraphs B.2a(5)(a) and B.2.a(5)(c), where other OSM 
responsibilities are listed, without making any change in its meaning.
    As discussed above and in the following paragraph B.5, the proposed 
paragraph B.4 would incorporate some of the provisions of existing 
paragraphs B.2, B.3, B.4, and B.5. In addition, five new subparagraphs 
would be added to comply with the Federal regulations that were 
promulgated subsequent to the date the existing Agreement became 
effective. The first proposed subparagraph B.4.c would provide for OSM 
and DEQ to coordinate with each other for scheduling a meeting with the 
applicant. This is necessary to enhance communications between the two 
agencies as they interact with the applicant, as well as to minimize 
duplication of communications with the applicant. The second proposed 
subparagraph B.4.e would be added to comply with the provisions of 30 
CFR 745.12(g)(1) that requires DEQ to allow OSM access to files 
relating to coal mining operations on Federal lands. This is necessary 
to safeguard the interests of the Federal government. The third 
proposed subparagraph B.4.g would be added to ensure compliance with 
the provisions of 30 CFR 740.4 (c) and (d) relating to coordination 
between BLM and DEQ on matters relating to regulations at 43 CFR Group 
3400. The fourth proposed subparagraph B.4.h would allow OSM and DEQ to 
develop working agreements specifying any delegable responsibilities of 
other Federal laws and regulations which may be delegated to DEQ 
without amendment to the Agreement. This provision recognizes that in 
the interest of reducing duplication in the review of permit 
application packages (PAPs), DEQ may assume certain responsibilities 
that are fully or partially delegable that would otherwise be performed 
by OSM. For example, a working agreement may specify how DEQ can assist 
the Secretary in meeting his responsibilities under the National 
Environmental Policy Act (NEPA). It is possible for DEQ to perform much 
of the basic research and analysis required for the Secretary to meet 
his NEPA responsibilities, although the Secretary will assume full 
responsibility for ensuring compliance with NEPA. Joint preparation of 
NEPA documents is an authorized means of achieving that compliance and 
is consistent with 30 CFR 740.4(c)(7). The fifth new provision in 
proposed subparagraph B.4.i provides that when valid existing rights 
(VER) are determined to exist on Federal lands under section 522(e)(3) 
of SMCRA and the proposed operation will adversely affect either a 
publicly-owned park or a historic place listed on the National Register 
of Historic Places (NRHP), DEQ would work with the agency that has 
jurisdiction over the publicly-owned park, or with the agency that has 
jurisdiction over the historic place, to develop mutually acceptable 
terms and conditions for incorporation into the permit to mitigate 
adverse impacts.
    In existing paragraph B.5, the Regional Director is required to 
begin a review of a mining plan and permit application for apparent 
completeness. As provided in 30 CFR 740.4(c)(1), this requirement would 
be revised to delegate the responsibility to DEQ and moved to proposed 
subparagraphs B.1.a(2) where other DEQ responsibilities are described, 
and to proposed subparagraph B.2.a(5)(d) OSM's responsibilities to 
assist DEQ are described. The provision in paragraph B.5 requiring 
State Lands to inform the Regional Director where OSM assistance will 
be needed to perform any specific or general analysis or prepare any 
studies or similar work, would be paraphrased and included in proposed 
subparagraph B.2.a(5)(e). The remaining provisions of existing 
paragraph B.5, would be modified to make editorial changes and would be 
included in proposed subparagraph B.4.f.
    The requirements of existing paragraph B.6 providing for joint 
public meetings and hearings on permit decisions, would be deleted 
because all permit decisions would be made by DEQ under the amended 
cooperative agreement.
    The requirements of existing paragraph B.7 relating to the 
preparation of an environmental impact statement and/or environmental 
assessment to comply with NEPA and the Montana Environmental Policy Act 
(MEPA) would remain the same and would be included in proposed 
subparagraph B.1.b(1) where all other responsibilities of DEQ are 
described. In addition, the gist of the last sentence of existing 
paragraph B.7 relating to independent evaluation and approval of a NEPA 
compliance documents would be included as proposed subparagraph 
B.2.a(1).
    Existing paragraph B.8 would be revised significantly relating to 
the preparation of a technical analysis, environmental analysis, and 
proposed written decision on the mining plan and permit application 
review, independent evaluation of these documents, written concurrence 
by the Regional Director, and the requirement that ``State Lands shall 
consider the comments of the Regional Director and send a final 
technical analysis, environmental analysis, and proposed decision to 
the

[[Page 1414]]

Regional Director for his written concurrence. The Regional Director 
shall have 30 days to act after receipt of State Lands' final technical 
analysis, environmental analysis, and proposed decision. If no further 
changes are required, the Regional Director shall proceed in accordance 
with 30 CFR 741.21.'' The regulation at 30 CFR 741.21(a)(2), and now 
superseded by current regulation, was promulgated on March 13, 1979 and 
required that ``(t)he Director approve, or deny all applications for 
permits under the Federal lands program. .*.*.'' (44 FR 15335, March 
13, 1979). In accordance with the Circuit Court of Appeals decision 
(National Wildlife Federation vs. Donald Hodel, 839 F.2d 694 (D.C. Cir. 
1988)) that upheld OSM's 1983 Federal program regulations (48 FR 6936, 
February 16, 1983), OSM is not required to issue permits under the 
Federal lands program in States that have a State-Federal cooperative 
agreement. However, due to the above language in paragraph B.8 of 
existing Article V, OSM has continued to issue Federal permits in 
Montana under the Federal lands program. It is the intent of these 
proposed amendments that OSM would not issue Federal permits in Montana 
under the Federal lands program.
    Therefore, in accordance with regulations at 30 CFR 740.4(c)(1), 
OSM would delegate to DEQ the responsibility to make a decision on 
approval, disapproval, or conditional approval of the permit 
application component of the PAP as provided in proposed paragraph C.1 
of Article VI. The existing requirement that ``the Regional Director 
shall have 30 days to act after receipt of State Lands' final technical 
analysis, environmental analysis, and proposed decision'', has been 
included in proposed subparagraph B.2.a(4) after making two 
modifications. First, the existing requirement for ``the Regional 
Director to act on State Lands' technical analysis, environmental 
analysis and proposed decision'' has been replaced by the catchall 
phrase ``exercising its responsibilities''. Two, the ``30-day'' time 
limit has been replaced by the phrase ``timely manner governed, to the 
extent possible, by the deadlines established in the State Program''. 
As stated above DEQ would have the responsibility to make a decision on 
approval, disapproval, or conditional approval of the permit 
application component of the PAP, and OSM would not need to act on 
DEQ's final technical analysis, environmental analysis, and proposed 
decision. Further, due to dwindling staff resources adherence to strict 
time limits could be very difficult.
    The provisions in existing paragraph B.9 refer to sections of 
obsolete regulations at 30 CFR 741.16, 741.17 and 741.21, and hence 
would be deleted.
Approval of the PAP or Application for Transfer, Assignment or Sale of 
Permit Rights
    Proposed paragraph C would be titled Approval of the PAP or 
Application for Transfer, Assignment or Sale of Permit Rights. As 
discussed earlier subparagraph C.1 would provide that DEQ shall make a 
decision on approval, conditional approval or disapproval of the permit 
application component of the PAP or application for transfer, 
assignment or sale of permit rights on Federal lands as authorized by 
30 CFR 740.4(c)(1). Proposed subparagraph C.2 would require DEQ to 
consider the comments of the Federal agencies and, to the extent 
allowed by the State Act, incorporate in the permit any terms or 
conditions imposed by the Federal land management agency pursuant to 
applicable Federal laws and regulations as required by 30 CFR 
740.13(c)(1). Proposed subparagraph C.3 would provide that when a 
mining plan is required to be approved by the Secretary, DEQ may make a 
decision on the permit application component of the PAP on Federal 
lands prior to the necessary Secretarial decision on the mining plan, 
provided that DEQ advises the applicant that Secretarial approval of 
the mining plan must be obtained before the applicant may conduct 
surface coal mining and reclamation operations on the Federal lands. 
This provision would serve two purposes. One, it would enable DEQ to 
issue a State permit within time limits dictated by the State program, 
and two, it would inform the applicant that a mining plan approval from 
the Secretary must be obtained, when necessary, prior to commencing 
certain coal mining operations. Finally, to bring the permitting 
process to conclusion and close the communication loop, proposed 
subparagraph C.4 would require that after DEQ has made a decision on 
the permit application component of the PAP, DEQ shall send a copy of 
the signed permit form and State decision document to the applicant, 
OSM, the Federal land management agency and, when necessary, to the 
agency with jurisdiction over a publicly-owned park or historic 
property listed in the NRHP that would be adversely affected by the 
surface coal mining and reclamation operations.

Existing Article VI: Inspections

Proposed Revised Article VII: Inspections
    This article would be renumbered as Article VII: Inspections to 
correspond to the revised numbering of preceding articles. Existing 
paragraphs A, B, C, D, and E would be reorganized and revised to delete 
references to OSM's organizational structure that is no longer in use, 
and obsolete regulations. In order to increase clarity, existing 
paragraph F would be moved under proposed Article VIII: Enforcement to 
become paragraph E. No change in the meaning is intended.

Existing Article VII: Enforcement

Proposed Revised Article VIII: Enforcement
    This article would be renumbered as Article VIII: Enforcement to 
correspond to the revised numbering of preceding articles. Changes in 
the language are for clarification purposes only, and also to ensure 
consistency with other cooperative agreements.
    Existing paragraph A would be revised to include references to 30 
CFR Part 740, to replace ``State Lands'' with ``DEQ'', and to add that 
enforcement authority given to the Secretary under other Federal laws 
and Executive Orders, including but not limited to those listed in 
Appendix A, is reserved to the Secretary. No change in its meaning is 
intended.
    Existing paragraph B would essentially remain the same except for 
few word changes for clarification purposes.
    In order to comply with revised Federal regulations a new paragraph 
C would be added to provide that during any inspection made solely by 
OSM or during any joint inspection where DEQ and OSM fail to agree 
regarding the propriety of any particular enforcement action, OSM may 
take any enforcement action necessary to comply with 30 CFR parts 842, 
843, 845 and 846.
    Existing paragraph C would be renumbered D but would retain the 
same provisions. As mentioned above a proposed paragraph E would be 
added to incorporate the language of existing paragraph F of Article 
VI: Inspections.
    Existing paragraph D would be renumbered F, without making any 
change in its meaning.

Existing Article VIII: Bonds

Proposed Revised Article IX: Bonds
    This article would be renumbered as Article IX: Bonds to correspond 
to the revised numbering of preceding articles.

[[Page 1415]]

    Existing paragraph A would be revised to delete reference to the 
Regional Director because of organizational changes in OSM. Addition of 
the new word ``performance'' in front of the word ``bond'' is necessary 
to conform to the regulatory language. The phrase ``jointly payable to 
both the United States and DEQ'', and the sentence ``such bond shall 
provide that if this Agreement is terminated under the provisions of 30 
CFR 745.15, the portion of the bond covering the Federal lands shall be 
payable only to the United States'' would be added to ensure 
conformance with the provisions of Federal lands program regulations at 
30 CFR 740.15(b).
    Existing paragraph B would be expanded to provide DEQ with the 
primary responsibility for approval and release of performance bonds. 
The revised paragraph B would require OSM concurrence in the release by 
DEQ of a performance bond on lands subject to an approved mining plan. 
However, prior to such concurrence, OSM shall coordinate with other 
Federal agencies that have authority over the lands involved. This 
requirement would ensure the protection of interests of all Federal 
agencies. DEQ would also be required to annually advise OSM of 
adjustments to the performance bond as provided in the existing 
paragraph B.
    Proposed paragraph C would be added to safeguard the interests of 
the U.S. government, and provide that performance bonds will be subject 
to forfeiture with the concurrence of OSM, in conformance with the 
requirement of the State program, and OSM may not withhold its 
concurrence unless DEQ's forfeiture decision is not in accordance with 
the requirements and procedures of the State program.
    Proposed paragraph D would be added to ensure consistency with 
other cooperative agreements. This paragraph would seek to remind the 
applicant, OSM, and DEQ that submission of a performance bond does not 
satisfy the requirements of a Federal lease bond required by 43 CFR 
3474, or the requirements of a Federal lessee protection bond pursuant 
to section 715 of SMCRA. Distinct from the performance bond, the 
Federal lease bond, made payable to the United States through BLM, is 
required to be posted by the applicant for a coal lease to assure 
compliance with the terms and conditions of a Federal coal lease, 
whereas the Federal lessee protection bond, made payable to the United 
States or the State, whichever is applicable, is required to be posted 
by the applicant for a coal mine and reclamation permit for use and 
benefit of a permittee or lessee of surface lands to secure payment of 
any damages to crops or tangible improvements on Federal lands.

Existing Article IX: Designation of Lands as Unsuitable

Proposed Revised Article X: Designating Land Areas Unsuitable for All 
or Certain Types of Surface Coal Mining and Reclamation Operations and 
Activities, and Valid Existing Rights and Compatibility Determinations
    This article would be renumbered and retitled as Article X: 
Designating Land Areas Unsuitable for All or Certain Types of Surface 
Coal Mining and Reclamation Operations and Activities, and Valid 
Existing Rights and Compatibility Determinations. The change in 
numbering would ensure conformance with the revised numbering of 
preceding articles. The change in article heading would reflect 
expansion in the subject matter to incorporate regulatory requirements 
that have been promulgated over the years since the execution of the 
existing cooperative agreement. Proposed article X would consist of two 
paragraphs.
Unsuitability Petitions
    Existing paragraph A would be redesignated A. Unsuitability 
Petitions, and would include two proposed subparagraphs.
    Proposed subparagraph A.1 would include the opening language from 
existing paragraph B stating that the authority to designate Federal 
lands as unsuitable for mining, would be reserved to the Secretary. The 
language in the second sentence of existing paragraph B would be 
modified and included in proposed subparagraph A.1. The modified 
language would state that unsuitability petitions would be filed with 
OSM and would be processed in accordance with 30 CFR 769.
    Proposed subparagraph A.2 would include the existing requirements 
of paragraph A regarding cooperation between OSM and DEQ in processing 
petitions to designate lands as unsuitable for mining. During 
processing of such petitions, OSM would also be required to coordinate 
with, and solicit comments from the appropriate Federal land management 
agency.
Valid Existing Rights (VER) and Compatibility Determinations
    Existing paragraph B would be redesignated B. Valid Existing Rights 
(VER) and Compatibility Determinations.
    As stated above the provisions of existing paragraph B would be 
incorporated in subparagraph A.1. Proposed paragraph B would include 
five proposed subparagraphs that would describe roles and 
responsibilities of OSM and DEQ in VER and compatibility determinations 
for coal mining operations pursuant to the requirements of section 
522(e) of SMCRA.
    Proposed subparagraph B.1 would provide that the Secretary will 
make the VER determination for Federal lands within the boundaries of 
areas specified under section 522(e)(1) of SMCRA. For coal mining 
operations conducted both on Federal and non-Federal lands, the 
Secretary will make the VER determinations for the Federal lands and 
DEQ will make such determinations for the State and private lands.
    Subparagraph B.2 would provide that the Secretary will make VER 
determinations for Federal lands within the boundaries of any area 
specified in section 522(e)(2), and OSM will process requests for 
determination of compatibility for these areas.
    Subparagraph B.3 would provide that DEQ will make the VER 
determination for the publicly-owned park or places included in the 
National Register of Historic Places (NRHP) protected under section 
522(e)(3) of SMCRA; DEQ will consult with the State Historic 
Preservation Officer to determine if the proposed operation will 
adversely affect any publicly-owned park or place listed on the NRHP. 
This subparagraph would also provide that surface coal mining and 
reclamation operations may be permitted on Federal lands protected 
under section 522(e)(3) of SMCRA if jointly approved by DEQ, and the 
Federal, State, or local agency with jurisdiction over the publicly-
owned park or the historic place, and DEQ will coordinate with these 
agencies for developing mutually acceptable permit conditions to 
mitigate environmental impacts on such park and place.
    Subparagraph B.4 would provide that DEQ will make the VER 
determination, on Federal lands for all areas specified in section 
522(e) (4) and (5) of SMCRA as unsuitable for mining.
    Subparagraph B.5 summarizes that whenever DEQ will make VER 
determinations for Federal lands, DEQ will consult with OSM and the 
appropriate Federal agency.
    Existing Articles X through XII would be renumbered as proposed 
Articles XI through XIII. The word ``cooperative'' before the word 
``agreement'', however, would be deleted from the heading of each 
Article in conformance with the introductory language preceding Article 
I. No substantive changes are proposed.

[[Page 1416]]

Existing Article XIII: Changes in State or Federal Standards

Proposed Revised Article XIV: Changes in State or Federal Standards
    Article XIII would be renumbered to read Article XIV: Changes in 
State or Federal Standards. It would include two paragraphs that would 
include revisions in existing language to increase clarity and to add 
relevant statutory and regulatory cites.

Existing Article XIV: Changes in Personnel and Organization

Proposed Revised Article XV: Changes in Personnel and Organization
    Article XIV would be renumbered to read: Article XV: Changes in 
Personnel and Organization. Paragraph A of this Article would include 
the language of existing Article XIV but would be revised to make minor 
editorial changes to increase clarity. The new paragraph B would be 
added to obviate the need for changes to this agreement in the event of 
any changes in the State Act that may transfer administration of this 
Agreement to another State agency. In that event, all references to DEQ 
in this agreement would apply to that agency.

Existing Article XV: Reservation of Rights

Proposed Revised Article XVI: Reservation of Rights
    Article XV would be renumbered to read: Article XVI: Reservation of 
Rights. Existing language would be revised to make minor editorial 
changes to delete references to several statutes without changing its 
meaning.
    Article XVI: Definitions would be renumbered as proposed Article 
III: Definitions and would be revised to include additional 30 CFR 
references.

III. Procedural Determinations

1. Executive Order 12866

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

2. Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) 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 since each such 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.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval under the Paperwork Reduction Act (44 U.S.C. 3507 et 
seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined 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 rule would amend the cooperative agreement between the Department 
of the Interior and the State of Montana for the regulation of surface 
coal mining and reclamation operations on Federal lands within Montana 
under the permanent regulatory program. The proposed rulemaking would 
streamline the permitting process in Montana by delegating to Montana 
the sole responsibility to issue permits for coal mining and 
reclamation operations on Federal lands under the Federal lands program 
regulations, and would eliminate duplicative permitting requirements, 
thereby increasing governmental efficiency, which is one of the 
purposes of the cooperative agreement. This amendment would also update 
the cooperative agreement to reflect current regulations and agency 
structures.

6. Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

7. Author

    The principal author of these proposed regulations is Ranvir Singh, 
P.E., Western Regional Coordinating Center, 1999 Broadway, Suite 3320, 
Denver, CO 80202-5733.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: January 3, 1997.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.

    For the reasons set out in the preamble, 30 CFR part 926 is 
proposed to be amended as follows:

PART 926--[AMENDED]

    1. The authority citation for Part 926 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., Public Law 95-87.

    2. Section 926.30 is revised to read as follows:


Sec. 926.30  State-Federal cooperative agreement.

    The Governor of the State of Montana (Governor) and the 
Secretary of the Department of the Interior (Secretary) enter into a 
State-Federal Cooperative Agreement (Agreement) to read as follows:

Article I: Authority, Purposes, and Responsible Agencies

A. Authority

    This Agreement is authorized by section 523(c) of the Surface 
Mining Control and Reclamation Act (SMCRA), 30 U.S.C. Sec. 1273(c), 
which allows a State with a permanent regulatory program approved by 
the Secretary, under 30 U.S.C. 1253, to elect to enter into an 
agreement for State control and regulation of surface coal mining 
and reclamation operations on Federal lands. This Agreement provides 
for State regulation of coal exploration operations \1\ not subject 
to 43 CFR Group 3400, and surface coal mining and reclamation 
operations and activities in Montana on Federal lands consistent 
with SMCRA, the Federal lands program (30 CFR Chapter VII, 
Subchapter D), and the Montana State Program (State Program), 
including among other things, the Montana Strip and Underground Mine 
Reclamation Act, Part 2, Chapter 4, Title 82, Montana Code Annotated 
(State Act or MCA).
---------------------------------------------------------------------------

    \1\ The term ``Exploration operations'' is referred to as 
``Prospecting'' in the Montana State Program.
---------------------------------------------------------------------------

B. Purposes

    The purposes of the Agreement are to (1) foster State-Federal 
cooperation in the regulation of surface coal mining and reclamation 
operations on Federal lands and coal exploration operations not 
subject to 43 CFR Group 3400; (2) minimize intergovernmental overlap 
and duplication; and (3) provide effective and uniform

[[Page 1417]]

application of the State Program on all non-Indian lands in Montana.

C. Responsible Agencies

    The Montana Department of Environmental Quality (DEQ) has, and 
shall continue to have, authority under State law to administer this 
Agreement on behalf of the Governor. The Office of Surface Mining 
Reclamation and Enforcement (OSM) shall administer this Agreement on 
behalf of the Secretary.

Article II: Effective Date

    Upon signing by the Secretary and the Governor, this Agreement 
will take effect [30 days after final publication as rule making in 
the Federal Register].\2\ This Agreement shall remain in effect 
until terminated as provided in Article XI.
---------------------------------------------------------------------------

    \2\ See explanation in Article II at 46 FR 20983, April 8, 1981.
---------------------------------------------------------------------------

Article III: Definitions

    The terms and phrases used in this Agreement, except the term 
``permit application package (PAP),'' will be given the meanings set 
forth in SMCRA, 30 CFR Parts 700, 701, 740, and 761, and the State 
Program, including the State Act and the regulations promulgated 
pursuant to the State Act. Where there is a conflict between the 
above-referenced State and Federal definitions, the definitions used 
in the State Program will apply, unless otherwise required by 
Federal regulation.
    The term ``permit application package (PAP),'' for the purposes 
of this cooperative agreement, means a proposal to conduct surface 
coal mining and reclamation operations on Federal lands, including 
an application for a permit, permit revision, permit amendment, or 
permit renewal, and all information required by SMCRA, the Federal 
regulations, the State Program, this agreement, and all other 
applicable laws and regulations, including, with respect to leased 
Federal coal, the Mineral Leasing Act and its implementing 
regulations.

Article IV: Applicability

    In accordance with the Federal lands program, the laws, 
regulations, terms and conditions of the State Program are 
applicable to Federal lands in Montana except as otherwise stated in 
this Agreement, SMCRA, 30 CFR 740.4, 740.11(a), and 745.13 or other 
applicable Federal laws, Executive Orders, or regulations.

Article V: Requirements for the Agreement

    A. The Governor and the Secretary affirm that they will comply 
with all provisions of this Agreement.

B. Funds

    1. The State shall devote adequate funds to the administration 
and enforcement on Federal lands in Montana of the requirements 
contained in the State Program. If the State complies with the terms 
of this Agreement, and if necessary funds have been appropriated, 
OSM shall reimburse the State as provided in section 705(c) of SMCRA 
and 30 CFR 735.16 for the costs associated with carrying out 
responsibilities under this Agreement. The amount of such funds 
shall be determined in accordance with the provisions of Chapter 3-
10 and Appendix 111 of the Federal Assistance Manual.
    2. If DEQ applies for a grant but sufficient funds have not been 
appropriated to OSM, OSM and DEQ shall promptly meet to decide on 
appropriate measures that will insure that surface coal mining and 
reclamation operations on Federal lands in Montana are regulated in 
accordance with the State Program.
    3. Funds provided to DEQ under this Agreement will be adjusted 
in accordance with the program income provisions of 43 CFR Part 12.

C. Reports and Records

    DEQ shall submit annual reports to OSM containing information 
with respect to its compliance with the terms of this Agreement 
pursuant to 30 CFR 745.12(d). Upon request, DEQ and OSM shall 
exchange, except where prohibited by Federal or State law, 
information developed under this Agreement. OSM shall provide DEQ 
with a copy of any final evaluation report prepared concerning State 
administration and enforcement of this Agreement. DEQ comments on 
the report will be attached before being sent to the Congress or 
other interested parties.

D. Personnel

    DEQ shall maintain the necessary personnel to fully implement 
this Agreement in accordance with the provisions of SMCRA, the 
Federal lands program, and the State Program.

E. Equipment and Facilities

    DEQ shall assure itself access to equipment, laboratories, and 
facilities with which all inspections, investigations, studies, 
tests, and analyses can be performed and which are necessary to 
carry out the requirements of this Agreement.

F. Permit Application Fees and Civil Penalties

    The amount of the fee accompanying an application for a permit 
to conduct surface coal mining and reclamation operations on Federal 
lands in Montana shall be determined in accordance with section 82-
4-223(1) of MCA, and the applicable provisions of Federal law. All 
permit fees and civil penalty fines shall be accounted for in 
accordance with the provisions of 43 CFR Part 12. Permit fees will 
be considered program income. Civil penalties will not be considered 
program income. The Financial Status Report submitted pursuant to 30 
CFR 735.26 shall include the amount of permit application fees 
collected and attributable to Federal lands during the State fiscal 
year.

Article VI: Review and Approval of the PAP or Application for 
Transfer, Assignment or Sale of Permit Rights

A. Receipt and Distribution of the PAP or Application for Transfer, 
Assignment or Sale of Permit Rights

    1. DEQ shall require an applicant proposing to conduct surface 
coal mining and reclamation operations on Federal lands to submit to 
DEQ the appropriate number of copies of a PAP or application for 
transfer, assignment or sale of permit rights. The PAP or 
application for transfer, assignment or sale of permit rights shall 
meet the requirements of 30 CFR Part 740, shall be in the form 
required by DEQ, and shall contain, at a minimum, the information 
required by 30 CFR 740.13(b), including:
    a. Information necessary for DEQ to make a determination of 
compliance with the State Program;
    b. Any supplemental information required by OSM, the Bureau of 
Land Management (BLM), and the Federal land management agency. This 
information shall be appropriate and adequate for OSM and the 
appropriate Federal agencies to make determinations of compliance 
with applicable requirements of SMCRA, the Mineral Leasing Act (MLA) 
of 1920, as amended, the Federal lands program, and other Federal 
laws, Executive Orders, and regulations which these agencies 
administer.
    2. Except as otherwise agreed in writing by Federal agencies, 
upon receipt of a PAP or application for transfer, assignment or 
sale of permit rights, DEQ shall ensure that an appropriate number 
of copies of the PAP or application for transfer, assignment or sale 
of permit rights are provided to OSM, the Federal land management 
agency, and any other appropriate Federal agency.

B. Review of the PAP or Application for Transfer, Assignment or Sale of 
Permit Rights

    1. DEQ is responsible for:
    a. As authorized by 30 CFR 740.4(c),
    (1) Being the primary point of contact with the applicant 
regarding the review of the PAP or application for transfer, 
assignment or sale of permit rights and communications regarding all 
decisions and determinations with respect to the PAP or application 
for transfer, assignment or sale of permit rights;
    (2) Analysis, review, and approval, conditional approval, or 
disapproval of the permit application component of the PAP or 
application for transfer, assignment or sale of permit rights for 
surface coal mining and reclamation operations on Federal lands in 
Montana;
    (3) Obtaining the comments and findings of Federal agencies with 
jurisdiction or responsibility over Federal lands affected by the 
operations proposed in the PAP or application for transfer, 
assignment or sale of permit rights, unless otherwise agreed in 
writing by Federal agencies. DEQ shall request such Federal agencies 
to provide to DEQ their requests for additional information or their 
findings within 45 days of the receipt of the request;
    (4) Obtaining OSM's determination whether the PAP involving 
leased Federal coal constitutes a mining plan modification under 30 
CFR 746.18, and informing the applicant of such determination;
    (5) Consulting with and obtaining the consent, as necessary, of 
the Federal land management agency pursuant to 30 CFR 740.4(c)(2), 
with respect to post-mining land use and to any special requirements 
necessary to protect non-coal resources of the areas that will be 
affected by surface coal mining and reclamation operations;
    (6) Consulting with and obtaining the consent, as necessary, of 
BLM pursuant to 30

[[Page 1418]]

CFR 740.4(c)(3), with respect to requirements relating to the 
development, production and recovery of mineral resources on lands 
affected by surface coal mining and reclamation operations involving 
leased Federal coal pursuant to 43 CFR Group 3400;
    (7) Approval and release of performance bonds pursuant to 
Article IX.B, and approval and maintenance of liability insurance;
    (8) Review and approval of exploration operations not subject to 
the requirements of 43 CFR Group 3400, as provided in 30 CFR 
740.4(c)(6).
    b. In addition, where a mining plan action is required under 30 
CFR Part 746, as determined by OSM:
    (1) Preparation of documentation to comply with the requirements 
of the National Environmental Policy Act (NEPA). However, OSM will 
retain the responsibility for the exceptions in 30 CFR 
740.4(c)(7)(i) through (vii). DEQ and OSM shall coordinate and 
cooperate with each other so that, if possible, one Environmental 
Assessment or Environmental Impact Statement is produced to comply 
with NEPA and the Montana Environmental Policy Act (MEPA);
    (2) Preparation of a State decision package, which includes 
written findings indicating that permit application component of the 
PAP is in compliance with the terms of the State Program, a 
technical analysis of the PAP, and supporting documentation.
    2. OSM is responsible for:
    a. When the PAP includes Federal lands,
    (1) Making determinations and evaluations for NEPA compliance 
documents as required by 30 CFR 740.4(c)(7)(i) through (vii);
    (2) Reviewing the appropriate portions of the PAP for compliance 
with the non-delegable responsibilities of the Secretary pursuant to 
SMCRA and 30 CFR 745.13, and for compliance with the requirements of 
other Federal laws, Executive Orders, and regulations;
    (3) Consulting with the Federal land management agency, and 
determining whether the PAP constitutes a mining plan modification 
under 30 CFR 746.18, and informing DEQ, whenever practical within 30 
days of receiving a copy of the PAP for operations on Federal lands, 
of such determination;
    (4) Exercising its responsibilities in a timely manner governed, 
to the extent possible, by the deadlines established in the State 
Program;
    (5) Assisting DEQ, upon request, in carrying out its 
responsibilities by:
    (a) Coordinating resolution of conflicts between DEQ and other 
Federal agencies in a timely manner;
    (b) Obtaining comments and findings of other Federal agencies 
with jurisdiction or responsibility over Federal lands;
    (c) Scheduling joint meetings between DEQ and Federal agencies;
    (d) Reviewing and analyzing the PAP, to the extent possible, and 
providing to DEQ the work product within 50 days of receipt of the 
State's request for such assistance, unless a different time is 
agreed upon by OSM and DEQ; and
    (e) Providing technical assistance, if available OSM resources 
allow.
    b. In addition, where a mining plan action is required pursuant 
to 30 CFR Part 746:
    (1) Consulting with and obtaining the concurrences of BLM, the 
Federal land management agency, and any other Federal agency, as 
necessary, prior to making recommendation to the Secretary 
concerning approval of the mining plan;
    (2) Upon notification from the DEQ that certain permit 
conditions required by the Federal land management agency are not 
incorporated in the State permit, OSM will determine whether such 
conditions are necessary. When OSM believes the conditions are 
necessary, OSM will work with the Federal land management agency to 
find another means to resolve the issue and, where appropriate, OSM 
will facilitate the attachment of conditions to the appropriate 
Federal authorizations; and
    (3) Providing a decision document to the Secretary recommending 
approval, disapproval, or conditional approval of mining plans or 
modifications thereof.
    3. The Secretary:
    a. Shall concurrently carry out his responsibilities that cannot 
be delegated to DEQ pursuant to SMCRA and 30 CFR 745.13, the Federal 
lands program, the Mineral Leasing Act (MLA), NEPA, this Agreement, 
and other applicable Federal laws including, but not limited to, 
those listed in Appendix A. The Secretary shall carry out these 
responsibilities in a timely manner and will avoid, to the extent 
possible, duplication of the responsibilities of the State as set 
forth in this Agreement and the State Program;
    b. Reserves the right to act independently of DEQ to carry out 
his responsibilities under laws other than SMCRA, and where Federal 
law permits, to delegate some of the responsibilities to OSM; and
    c. Shall be responsible for approval, disapproval, or 
conditional approval of mining plans and modifications thereof with 
respect to lands containing leased Federal coal in accordance with 
30 CFR 740.4(a)(1).
    4. Coordination:
    a. As a matter of practice, OSM will not independently initiate 
contacts with applicants regarding completeness or deficiencies of a 
PAP or application for transfer, assignment or sale of permit rights 
with respect to matters covered by the State Program.
    b. OSM and DEQ shall coordinate with each other during the 
review process of a PAP or application for transfer, assignment or 
sale of permit rights as needed.
    c. OSM and DEQ may request and schedule meetings with the 
applicant with adequate advance notice to each other.
    d. DEQ shall keep OSM informed of findings made during the 
review process which bear on the responsibilities of OSM or other 
Federal agencies. DEQ shall send to OSM copies of any correspondence 
with the applicant and any information received from the applicant 
regarding the PAP or application for transfer, assignment or sale of 
permit rights. OSM shall send to DEQ copies of all OSM 
correspondence with the applicant and any other information received 
from the applicant which may have a bearing on the PAP or 
application for transfer, assignment or sale of permit rights. Any 
conflicts or differences of opinions that may develop during the 
review process should be resolved at the lowest possible staff 
level.
    e. OSM shall have access to DEQ files concerning operations on 
Federal lands.
    f. Where a mining plan action is required pursuant to 30 CFR 
Part 746, OSM and DEQ shall develop a work plan and schedule for the 
PAP review and each will designate a project leader. The project 
leaders will serve as the primary points of contact between OSM and 
DEQ throughout the review process. Not later than 50 days after 
receipt of the PAP, unless a different time is agreed upon, OSM 
shall furnish DEQ with its review comments on the PAP and specify 
any requirements for additional data. DEQ shall provide OSM all 
available information that may assist OSM in preparing any findings 
for the mining plan action.
    g. On matters concerned exclusively with regulations under 43 
CFR Group 3400, BLM will be the primary contact with the applicant 
and shall inform DEQ of its actions and provide DEQ with a copy of 
documentation on all decisions.
    h. Responsibilities and decisions which can be delegated to DEQ 
under applicable Federal laws other than SMCRA may be specified in 
working agreements between OSM and DEQ, with the concurrence of any 
Federal agency involved, and without amendment to this Agreement.
    i. In the case that valid existing rights (VER) are determined 
to exist on Federal lands under section 522(e)(3) of SMCRA where the 
proposed operation will adversely affect either a publicly-owned 
park, or a historic place listed in the NRHP, DEQ shall work, 
respectively, with the agency with jurisdiction over the publicly-
owned park or the agency with jurisdiction over the historic place, 
to develop mutually acceptable terms and conditions for 
incorporation into the permit to mitigate adverse impacts.

C. Approval of the PAP or Application for Transfer, Assignment or Sale 
of Permit Rights

    1. DEQ shall make a decision on approval, conditional approval, 
or disapproval of permit application component of the PAP or 
application for transfer, assignment or sale of permit rights on 
Federal lands.
    2. DEQ must consider the comments of Federal agencies in the 
context of permit issuance and will document these comments in the 
record of permit decisions. To the extent allowed by Montana law, 
permits issued by DEQ will include terms and conditions imposed by 
the Federal land management agency pursuant to applicable Federal 
laws and regulations other than SMCRA, in accordance with 30 CFR 
740.13(c)(1). When Federal agencies recommend permit conditions and 
these conditions are not adopted by DEQ, DEQ will provide OSM with 
documentation as to why they were not incorporated as permit 
conditions.
    3. When a mining plan action is required pursuant to 30 CFR part 
746, DEQ may make a decision on approval, conditional approval, or 
disapproval of permit application component of the PAP on Federal 
lands in accordance with the State Program prior to the necessary 
Secretarial decision on the mining plan, provided that DEQ advises 
the applicant that Secretarial approval of the mining plan action 
must be obtained before the applicant may conduct surface coal

[[Page 1419]]

mining and reclamation operations on the Federal lands. To the 
extent allowed by the State law, DEQ shall reserve the right to 
amend or rescind any requirements of the permit to conform with any 
terms or conditions imposed by the Secretary in the approval of the 
mining plan.
    4. After making its decision on the permit application component 
of the PAP, DEQ shall send a copy of the signed permit form and 
State decision document to the applicant, OSM, the Federal land 
management agency, and any agency with jurisdiction over a publicly-
owned park, or historic property included in the National Register 
of Historic Places (NRHP) which would be adversely affected by the 
surface coal mining and reclamation operations.

Article VII: Inspections

    A. DEQ shall conduct inspections on Federal lands in accordance 
with 30 CFR 740.4(c)(5) and prepare and file inspection reports in 
accordance with the approved State Program.
    B. DEQ shall, subsequent to conducting any inspection on Federal 
lands, file with OSM's appropriate Field Office an inspection report 
describing: (1) The general conditions of the lands under the lease, 
permit, or license; (2) the manner in which the operations are being 
conducted; and (3) whether the operator is complying with applicable 
performance standards and reclamation requirements.
    C. DEQ will be the point of contact and inspection authority in 
dealing with the operator concerning operations and compliance with 
requirements covered by this Agreement, except as described in this 
Agreement and in the Secretary's regulations. Nothing in this 
Agreement shall prevent inspections by authorized Federal or State 
agencies for purposes other than those covered by this Agreement.
    D. Authorized representatives of the Secretary may conduct any 
inspections necessary to comply with 30 CFR Parts 842 and 843, and 
with the Secretary's obligations under laws other than SMCRA.
    E. OSM shall give DEQ reasonable notice of its intent to conduct 
an inspection in order to provide State inspectors with an 
opportunity to join in the inspection. When OSM is responding to a 
citizen complaint supplying adequate proof of an imminent danger to 
the public health and safety, or a significant imminent 
environmental harm to land, air, or water resources, pursuant to 30 
CFR 842.11(b)(1)(ii)(C), it shall contact DEQ no less than 24 hours 
prior to the Federal inspection, if practicable, to facilitate a 
joint Federal/State inspection. All citizen complaints which do not 
involve an imminent danger to the public health and safety, or a 
significant imminent environmental harm to land, air, or water 
resources, must be referred initially to DEQ for action. The 
Secretary reserves the right to conduct inspections without prior 
notice to DEQ, if necessary, to carry out his responsibilities under 
SMCRA.

Article VIII: Enforcement

    A. DEQ shall have primary enforcement authority under SMCRA 
concerning compliance with the requirements of this Agreement and 
the State Program in accordance with 30 CFR 740.4(c)(5) and 
740.17(a)(2). Enforcement authority given to the Secretary under 
SMCRA, and its implementing regulations, or other Federal laws and 
Executive Orders, including, but not limited to, those listed in 
Appendix A, is reserved to the Secretary.
    B. During any joint inspection by OSM and DEQ, DEQ will have 
primary responsibility for enforcement procedures, including 
issuance of cessation orders and notices of violation. DEQ shall 
consult with OSM prior to issuance of any decision to suspend, 
rescind or revoke a permit on Federal lands. DEQ shall notify BLM of 
any suspension, rescission or revocation of a permit containing 
leased Federal coal pursuant to 30 CFR 740.13(f)(2).
    C. During any inspection made solely by OSM or any joint 
inspection where DEQ and OSM fail to agree regarding the propriety 
of any particular enforcement action, OSM may take any enforcement 
action necessary to comply with 30 CFR Parts 842, 843, 845 and 846.
    D. DEQ and OSM shall promptly notify each other of all 
violations and of all actions taken with respect to such violations.
    E. Personnel of DEQ and OSM shall be mutually available to serve 
as witnesses in enforcement actions taken by either party.
    F. This Agreement does not affect or limit the Secretary's 
authority to enforce violations of Federal laws other than SMCRA.

Article IX: Bonds

    A. DEQ and the Secretary shall require all operators on Federal 
lands to submit a single performance bond jointly payable to both 
the United States and DEQ. The bond shall be of sufficient amount to 
cover the operator's responsibilities under SMCRA and the State 
Program. The bond shall be conditioned upon continued compliance 
with all requirements of SMCRA, 30 CFR Chapter VII, the State 
Program, and the permit. Such bond shall provide that if this 
Agreement is terminated under the provisions of 30 CFR 745.15, the 
portion of the bond covering the Federal lands shall be payable only 
to the United States.
    B. DEQ will have primary responsibility for the approval and 
release of performance bonds required for surface coal mining and 
reclamation operations on Federal lands. However, release of a 
performance bond on lands subject to an approved mining plan 
requires the concurrence of OSM as provided in 30 CFR 740.15(d)(3). 
Prior to such concurrence, OSM shall coordinate with other Federal 
agencies having the authority over the lands involved. DEQ shall 
annually advise OSM of adjustments to the performance bond.
    C. Performance bonds will be subject to forfeiture with the 
concurrence of OSM, in accordance with the procedures and 
requirements of the State Program. OSM may not withhold its 
concurrence unless DEQ's forfeiture decision is not in accordance 
with the requirements and procedures of the State program.
    D. Submission of a performance bond does not satisfy the 
requirements for either a Federal lease bond required by 43 CFR Part 
3474 or a lessee protection bond which is required in certain 
circumstances by section 715 of SMCRA.

Article X: Designating Land Areas Unsuitable for All or Certain 
Types of Surface Coal Mining and Reclamation Operations and 
Activities, and Valid Existing Rights and Compatibility 
Determinations

A. Unsuitability Petitions

    1. Authority to designate or terminate the designation of areas 
of Federal lands as unsuitable for mining is reserved to the 
Secretary. Unsuitability petitions shall be filed with OSM and would 
be processed in accordance with 30 CFR 769.
    2. When either DEQ or OSM receives a petition that could impact 
adjacent Federal or non-Federal lands pursuant to section 522(c) of 
SMCRA, the agency receiving the petition will notify the other of 
receipt of the petition and the anticipated schedule for reaching a 
decision. OSM shall coordinate with and solicit comments from the 
applicable Federal land management agency. OSM and DEQ shall fully 
consider data, information, and recommendations of all agencies.

B. Valid Existing Rights (VER) and Compatibility Determinations

    The following actions will be taken when requests for 
determinations of VER pursuant to section 522(e) of SMCRA, or for 
determinations of compatibility pursuant to section 522(e)(2) of 
SMCRA are received:
    1. For Federal lands within the boundaries of any areas 
specified under section 522(e)(1) of SMCRA, Secretary will make the 
VER determination. If surface coal mining and reclamation operations 
would be conducted on both Federal and non-Federal lands within such 
areas, the Secretary will make the VER determination for the Federal 
lands and DEQ will make the VER determination for State and private 
lands.
    2. For Federal lands within the boundaries of any national 
forest where proposed surface coal mining and reclamation operations 
are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR 
761.11(b), the Secretary will make VER determinations. OSM will 
process requests for determinations of compatibility under section 
522(e)(2) of SMCRA and part 30 CFR 761.12(c).
    3. Where a VER determination is requested for Federal lands 
protected under section 522(e)(3), DEQ will make the VER 
determination. DEQ will determine, in consultation with the State 
Historic Preservation Officer, whether any proposed operation will 
adversely affect any publicly-owned park or place listed on the 
NRHP.
    Surface coal mining and reclamation operations of Federal lands 
protected under section 522(e)(3) of SMCRA may be permitted if 
approved jointly by DEQ, and the Federal, State, or local agency 
with jurisdiction over the park or historic place. DEQ will 
coordinate with any agency with jurisdiction over the publicly-owned 
park or historic place to develop mutually acceptable terms and 
conditions for incorporation into the permit in order to mitigate 
environmental impacts.
    4. DEQ will process determinations of VER on Federal lands for 
all areas limited or

[[Page 1420]]

prohibited by section 522(e)(4) and (5) of SMCRA as unsuitable for 
mining.
    5. For operations on Federal lands, whenever DEQ is responsible 
for making the VER determinations, DEQ will consult with OSM and any 
affected agency.

Article XI: Termination of the Agreement

    This Agreement may be terminated by the Governor or the 
Secretary under the provisions of 30 CFR 745.15.

Article XII: Reinstatement of the Agreement

    If this Agreement has been terminated in whole or part, it may 
be reinstated under the provisions of 30 CFR 745.16.

Article XIII: Amendments of the Agreement

    This Agreement may be amended by mutual agreement of the 
Governor and the Secretary in accordance with 30 CFR 745.14.

Article XIV: Changes in State or Federal Standards

    A. The Secretary or the State may, from time to time, revise and 
promulgate new or revised performance or reclamation requirements or 
enforcement and administrative procedures. Each party shall, if it 
determines it to be necessary to keep this Agreement in force, 
change or revise its respective laws or regulations or request 
necessary legislative action. Such changes will be made under the 
procedures of 30 CFR Part 732 for changes to the State Program and 
under the procedures of section 501 of SMCRA for changes to the 
Federal lands program.
    B. DEQ and OSM shall provide each other with copies of any 
changes to their respective laws, rules, regulations, and standards 
pertaining to the enforcement and administration of this Agreement.

Article XV: Changes in Personnel and Organization

    A. DEQ and OSM shall, consistent with 30 CFR Part 745, advise 
each other of changes in the organization, structure, functions, 
duties and funds of the offices, departments, divisions, and persons 
within their organizations which could affect administration and 
enforcement of this Agreement. Each shall promptly advise the other 
in writing of changes in key personnel, including the head of a 
department or division, or changes in the functions or duties of the 
principal offices of the program. DEQ and OSM shall advise each 
other in writing of changes in the location of their respective 
offices, addresses, telephone numbers, as well as changes in the 
names, addresses, and telephone numbers of their respective 
personnel.
    B. Should the State Act be amended to transfer administration of 
the State Act to another agency, all references to DEQ in this 
Agreement shall be deemed to apply to the successor regulatory 
agency as of the date of transfer. The provisions in this Agreement 
shall thereafter apply to that agency.

Article XVI: Reservation of Rights

    In accordance with 30 CFR 745.13, this Agreement shall not be 
construed as waiving or preventing the assertion of any rights that 
have not been expressly addressed in this Agreement that the State 
or the Secretary may have under laws other than the Act and the 
State Program, including, but not limited to those listed in 
Appendix A.

    Dated:

Governor of Montana

    Dated:

Secretary of the Interior

Appendix A

1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et 
seq., and implementing regulations.
2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and 
implementing regulations, including 43 CFR Part 3480.
3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq., and implementing regulations, including 40 CFR Part 1500.
4. The Endangered Species Act, 16 U.S.C. 1531 et seq., and 
implementing regulations, including 50 CFR Part 402.
5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et 
seq., and implementing regulations, including 36 CFR Part 800.
6. Native American Graves Protection and Repatriation Act, 25 U.S.C. 
Secs. 3001 et seq.
7. The American Indian Religious Freedom Act, 42 U.S.C. 1986 et seq.
8. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 
470aa et seq.
9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing 
regulations.
10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., 
and implementing regulations.
11. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 
6901 et seq., and implementing regulations.
12. The Reservoir Salvage Act of 1960, amended by the Preservation 
of Historical and Archaeological Data Act of 1974, 16 U.S.C. 469 et 
seq.
13. Executive Order 11593 (May 13, 1971), Cultural Resource 
Inventories on Federal Lands.
14. Executive Order 11988 (May 24, 1977), for flood plain 
protection.
15. Executive Order 11990 (May 24, 1977), for wetlands protection.
16. Executive Order 12898 (February 11, 1994) for Federal Actions to 
Address Environmental Justice on Minority Populations and Low Income 
Populations.
17. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et 
seq., and implementing regulations.
18. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
19. The Constitution of the United States.
20. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 
1201 et seq.
21. 30 CFR Chapter VII.
22. The Constitution of the State of Montana.
23. Montana Strip and Underground Mine Reclamation Act (MSUMRA), 
Part 2, Chapter 4, Title 82, Montana Code Annotated.
24. Title 26, Chapter 4, Subchapter 3, Administrative Rules of 
Montana.
25. Montana Environmental Policy Act (MEPA).

[FR Doc. 97-582 Filed 1-9-97; 8:45 am]
BILLING CODE 4310-05-M