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###### Department of the Interior

###### Office of Surface Mining Reclamation and Enforcement 

          - 30 CFR Part 926 
          - [SPATS No. MT-003-FOR]

# AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior. 

# ACTION:

Proposed rule; reopening and extension of public comment period and opportunity for public hearing on proposed amendment. 

# SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is announcing receipt of revisions and additional explanatory information pertaining to a previously proposed amendment to the Montana regulatory program (hereinafter, the “Montana program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Montana proposes revisions to Title 26, Chapter 4, of the Administrative Rules of Montana (ARM) and additional explanatory information about surface water baseline monitoring requirements, conditions of the permit, temporary waste impoundments, dam spillway specifications, and alternate underdrain systems. Montana intends to revise its program to be consistent with the corresponding Federal regulations, incorporate the additional flexibility afforded by the revised Federal regulations, clarify ambiguities, and improve operational efficiency. 

# DATES:

We will accept written comments on this amendment until 4 p.m., m.d.t. July 2, 2001. If requested, we will hold a public hearing on the amendment on June 26, 2001. We will accept requests to speak until 4 p.m., m.d.t. on June 18, 2001. 

# ADDRESSES:

You should mail or hand deliver written comments and requests to speak at the hearing to Guy Padgett at the address listed below. You may review copies of the Montana program, this amendment, a listing of any scheduled public hearings, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendments by contacting OSM's Casper Field Office. 

Guy Padgett, Director, Casper Field Office, Office of Surface Mining Reclamation and Enforcement, 100 East B Street, Room 2128, Casper, WY 82601-1918, Telephone: (307) 261-6550 

Neil Harrington, Acting Chief, Industrial and Energy Minerals Bureau, Montana Department of Environmental Quality, 1520 E. Sixth Ave., P.O. Box 200901, Helena, MT 59620-0901, Telephone: (307) 444-4973 

# FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (307) 261-6550, Internet address: gpadgett@osmre.gov. 

# SUPPLEMENTARY INFORMATION:

I. Background on the Montana Program 

                        II. Description of the Proposed Amendment                               ( print page 29742)    

III. Public Comment Procedures 

IV. 10 Procedural Determinations 

## I. Background on the Montana Program 

                    On April 1, 1980, the Secretary of the Interior conditionally approved the Montana program. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program in the April 1, 1980,                     **Federal Register**                     (45 FR 21560). You can also find later actions concerning Montana's program and program amendments can be found at 30 CFR 926.15, 926.16, and 926.30.                 

## II. Proposed Amendment 

                    By letters dated February 1, 1995, and February 28, 1995, Montana sent us a proposed amendment to its program (Administrative Record Nos. MT-12-01 and MT-12-05) under SMCRA (30 U.S.C. 1201*et seq.*). Montana sent the proposed amendment in response to letters dated July 2, 1985; May 11, 1989; and March 29, 1990 (Administrative Record Nos. MT-60-01, MT-60-04, and MT-60-07) that OSM sent to Montana in accordance with 30 CFR 732.17(c); in response to the required program amendments at 30 CFR 926.16(b), (c), (d), (e)(2), (e)(3), (e)(4), (e)(5), (e)(6), (e)(7), (e)(8), (f), (h), (i), and (j); and at its own initiative.                 

Montana originally proposed to revise: ARM 26.4.301, definitions; ARM 26.4.303, legal, financial, compliance, and related information; ARM 26.4.304, baseline information: environmental resources; ARM 26.4.308, operations plan; ARM 26.4.314, plan for protection of the hydrologic balance; ARM 26.4.321, transportation facilities plan; ARM 26.4.404, review of application; ARM 26.4.405, findings and notice of decision; ARM 26.4.405A, improvidently issued permits: general requirements; ARM 26.4.405B, improvidently issued permits: revocation; ARM 26.4.407, conditions of permit; ARM 26.4.410, permit renewal; ARM 26.4.501A, final grading requirements; ARM 26.4.505, burial and treatment of waste materials; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.524, signs and markers; 

ARM 26.4.601, general requirements for road and railroad loop construction; ARM 26.4.602, location of roads and railroad loops; ARM 26.4.603, embankments; ARM 26.4.604, hydrologic impacts of roads and railroad loops; ARM 26.4.623, blasting schedule; ARM 26.4.633, water quality performance standards; ARM 26.4.634, reclamation of drainages; ARM 26.4.638, sediment control measures; ARM 26.4.639, sedimentation ponds and other treatment facilities; ARM 26.4.642, permanent and temporary impoundments; ARM 26.4.645, groundwater monitoring; ARM 26.4.646, surface water monitoring; ARM 26.4.702, redistribution and stockpiling of soil; ARM 26.4.711, establishment of vegetation; ARM 26.4.721, eradication of rills and gullies; ARM 26.4.724, use of revegetation comparison success standards; ARM 26.4.726, vegetation production, cover, diversity, density, and utility requirements; ARM 26.4.821, alternate reclamation: submission of plan; ARM 26.4.825, alternate reclamation: alternate revegetation; ARM 26.4.924, disposal of underground development waste: general requirements; ARM 26.4.927, disposal of underground development waste: durable rock fills; ARM 26.4.930, placement and disposal of coal processing waste: special application requirements; ARM 26.4.932, disposal of coal processing waste; ARM 26.4.1001, application requirements; 

ARM 26.4.1001A, notice of intent to prospect; ARM 26.4.1002, information and monthly reports; ARM 26.4.1005, drill holes; ARM 26.4.1006, roads and other transportation facilities; ARM 26.4.1007, grading, soil salvage, storage, and redistribution; ARM 26.4.1009, diversions; ARM 26.4.1011, hydrologic balance; ARM 26.4.1014, test pits: application requirements, review procedures, bonding, and additional performance standards; ARM 26.4.1116, bonding: criteria and schedule for release of bond; ARM 26.4.1116A, reassertion of jurisdiction; ARM 26.4.1141, designation of lands unsuitable: definition; ARM 26.4.1206, notices, orders of abatement and cessation orders: issuance and service; and ARM 26.4.1212, point system for civil penalties and waivers. 

                    We announced receipt of the proposed amendment in the March 15, 1995,                     **Federal Register**                     (60 FR 13932; Administrative Record No. MT-12-12). In that                     **Federal Register**                    , we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on April 14, 1995.                 

During our review of the amendment, we identified rules requiring clarification prior to making an evaluation of the proposed revisions. Those rules requiring clarification were: ARM 26.4.301(78), the definition of “owned or controlled;” ARM 26.4.303, legal, financial, compliance, and related information; ARM 26.4.304, baseline information: environmental resources; ARM 26.4.314, plan for the protection of the hydrologic balance; ARM 26.4.404, review of application; ARM 26.4.407, conditions of a permit; ARM 26.4.410, permit renewal; ARM 26.4.505 and 26.4.510, burial and treatment of waste materials and disposal of offsite-generated waste and fly ash; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.603 and 26.4.639, sedimentation ponds and other treatment facilities; ARM 26.4.645 and 26.4.646, groundwater and surface water monitoring; ARM 26.4.721, eradication of rills and gullies; ARM 26.4.821, alternate reclamation: submission of plan; ARM 26.4.924, disposal of underground development waste: general requirements; ARM 26.4.927, disposal of underground development waste: durable rock fills; and ARM 26.4.1001 through 26.4.1007 and 26.4.1014, prospecting. 

We notified Montana of those rules requiring clarification by letter dated October 17, 1995 (Administrative Record No. 12-16). Montana responded with further explanation in a letter dated February 6, 1996 (Administrative Record No. MT-12-19). Following receipt of Montana's February 6, 1996, letter, we identified concerns with ARM 26.4.304, baseline information: environmental resources; ARM 26.4.404, review of application; ARM 26.4.505 and 26.4.510, burial and treatment of waste materials and disposal of off-site generated waste and fly ash; ARM 26.4.519A, thick overburden and excess spoil; ARM 26.4.639, sediment ponds and other treatment facilities; ARM 26.4.821, alternate reclamation; ARM 26.4.924 and 26.4.927, disposal of underground development waste; and ARM 26.4.1014, prospecting. We notified Montana of these concerns by letter dated July 10, 1997 (Administrative Record No. MT-12-20). 

                    Meanwhile, at the same time we were reviewing this amendment, Montana made subsequent changes to some of the rules contained in this amendment and submitted them in another amendment dated March 5, 1996 (SPATS No. MT-018-FOR; Administrative Record No. MT-15-01). Those rules were: ARM 26.4.410, permit renewal, ARM 26.4.1001, prospecting permit requirement; and ARM 26.4.1001A, notice of intent to prospect. OSM and Montana subsequently decided to withdraw the prospecting and permit renewal rules from SPATS No. MT-003-FOR and consider them in SPATS No. MT-018-FOR (Administrative Record Nos. MT-12-21 and MT-15-14). These withdrawn rules addressed the                           ( print page 29743)                        required program amendments at 30 CFR 926.16(f), (h), (i), and (j).                 

                    Montana responded by letter dated July 17, 2000 (Administrative Record No. MT-12-23), that it would not submit further revisions to SPATS No. MT-003-FOR. Montana requested that OSM proceed with the final rule                     **Federal Register**                     notice. Montana stated that it would address the existing deficiencies in this amendment in a new submission.                

                    Following receipt of the July 17, 2000, letter, OSM proceeded writing the final rule                     **Federal Register**                     notice on MT-003-FOR. However, during the process, OSM decided to request a meeting with Montana to discuss the unresolved issues in MT-003-FOR. The meeting was held at the Montana Department of Environmental Quality (DEQ), Helena, MT, on February 27, 2001. Because the public was not notified of the meeting beforehand, OSM is making available the meeting minutes (Administrative Record No. MT-12-24) from that meeting by this                     **Federal Register**                     notice. During the February 27, 2001, meeting, OSM and the Montana DEQ decided that some issues were, in fact, resolvable due to a re-interpretation of Montana's responses and/or a subsequent revision of Montana's rules.                

                    In response to discussions at the February 27, 2001, meeting, Montana has now submitted subsequent rule revisions and/or explanatory information by letter dated May 15, 2001 (Administrative Record No. MT-12-25). Montana proposes additional explanatory information concerning the lack of acid-forming materials in the Montana coal fields to address the issue with ARM 26.4.304(6)(b)(ii)(B). Montana proposes editorial changes to ARM 26.4.407(4). Montana proposes new language at ARM 26.4.505(5) to prohibit acid, acid-forming, toxic, or toxic-forming wastes from being used in an impoundment. Montana proposes new language at ARM 26.4.505(7) to provide that the same notification requirements concerning potential hazards at waste disposal sites also pertain to temporary waste impoundments. Montana proposes new language at ARM 26.4.639 address the construction of a single spillway and to state that an excavation requires no spillway. Montana proposes to delete subsection at ARM 26.4.924(15) which OSM disapproved in the August 19, 1992,                     **Federal Register**                     notice, and to delete cross-reference to it at ARM 26.4.927(3)(a).                

## III. Public Comment Procedures 

### Written Comments

                    Send your written comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. In the final rulemaking, we will not necessarily consider or include in the Administrative Record any comments received after the time indicated under                     **DATES**                     or at locations other than the Casper Field Office.                

### Electronic Comments

Please submit Internet comments as an ASCII file avoiding the use of special characters and any form of encryption. Please also include “Attn: SPATS No. MT-003-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Casper Field Office at (307) 261-6550.

### Availability of Comments 

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

### Public Hearing 

                    If you wish to speak at the public hearing, contact the person listed under                     **FOR FURTHER INFORMATION CONTACT**                     by 4 p.m., m.d.t. on June 18, 2001. If you are disabled and need special accommodations to attend a public hearing, contact the person listed under                     **FOR FURTHER INFORMATION CONTACT.**                     We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.                

### Public Meeting

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

## IV. Procedural Determinations

### Executive Order 12630—Takings

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

### Executive Order 12866—Regulatory Planning and Review

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

### Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that, to the extent allowable by law, 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.

### Executive Order 13132—Federalism

                    This rule does not have Federalism implications. SMCRA delineates the                           ( print page 29744)                        roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA.                

### National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

### Paperwork Reduction Act

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

### 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 State submittal that is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.                

### Small Business Regulatory Enforcement Fairness Act

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

### Unfunded Mandates

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

# List of Subjects in 30 CFR Part 926

      - Intergovernmental relations
      - Surface mining
      - Underground mining

Dated: May 23, 2001. 

James Fulton,

Acting Regional Director, Western Regional Coordinating Center. 

[FR Doc. 01-13786 Filed 5-31-01; 8:45 am] 

BILLING CODE 4310-05-P