[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Rules and Regulations]
[Pages 58375-58381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29106]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SPATS No. MT-022-FOR]


Montana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving a proposed amendment to the Montana regulatory program 
(hereinafter, the Montana program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or ``the Act''). Montana proposed a 
statutory revision concerning transfer of a revoked permit. HB-495 was 
passed by the Montana legislature and signed into law by the Governor 
to enable the transfer of a revoked permit to a new party so as to 
continue the original proposed coal mining and reclamation operation. 
The State intends to revise its program to improve operational 
efficiency.

EFFECTIVE DATE: November 21, 2001.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Director, Casper Field 
Office; Telephone: 307-261-6550; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:   

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

I. Background on the Montana Program

    Section 503(a) of SMCRA permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Montana program on April 1, 1980. You can 
find background information on the Montana program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Montana regulatory program in the April 1, 1980, 
Federal Register (45 FR 21560). You can also find later actions 
concerning Montana's program and program amendments at 30 CFR 926.15, 
926.16, and 926.30.

II. Submission of the Proposed Amendment

    By letter dated April 27, 2001, Montana sent us a proposed 
amendment

[[Page 58376]]

to its program (Administrative Record No. MT-19-01) under SMCRA (30 
U.S. 1201 et seq.). Montana submitted the amendment after the State 
Legislature passed HB-495. Governor Judy Martz signed the bill into law 
on May 1, 2001. The amendment changes the Montana Strip and Underground 
Mine Reclamation Act (MSUMRA), which governs the State's regulatory 
program. Specifically, the proposed amendment provides the following:
    Section 1. Operating permit revocation--permit transfer; that a 
revoked operating permit will not terminate until five years after 
revocation, or until substantial revegetation occurs. The amendment 
allows a person to apply for the transfer of a revoked permit that has 
not terminated by submitting to the Department of Environmental Quality 
(the department) an application that contains information required for 
a permit applicant by section 82-4-222 of Montana's statute. The 
amendment requires the department to stop reclamation activities on the 
permit area upon receipt of a transfer application. It also provides 
that a person who applies for a revoked permit need not submit any 
additional information unless the department can show that significant 
changes in the environmental baseline data occurred. Under the proposed 
amendment, the department must process transfer applications under time 
frames already in Montana's statutes. The amendment provides that, 
after a public comment period, the department must transfer the permit 
when the new operator provides proof of site ownership or control and 
adequate bonding. It further requires all pre-existing permit 
deficiencies and necessary modifications to be corrected to the 
department's satisfaction before additional surface is disturbed, and 
that pre-established environmental monitoring requirements continue. 
The proposed amendment specifies conditions under which the department 
may not transfer a permit, including the need for significant changes 
in the operating or reclamation plans and if the applicant or owners or 
controllers of the applicant have outstanding violations. This 
amendment provides that the department is not required to reimburse the 
former permittee or surety for funds expended for reclamation, 
monitoring or site maintenance. This statutory change does not apply to 
the revocation or transfer of an operating permit that authorizes 
mining on Federal lands.
    Section 2. Codification instruction; states that Section 1 is 
intended to be codified as an integral part of Title 82, chapter 4, 
part 2, and the provisions of Title 82, chapter 4, part 2, apply to 
Section 1.
    Section 3. Effective date; states this act is effective on passage 
and approval.
    Section 4. Applicability: States Section 1 applies to mine 
operating permits that are in effect as of the effective date of this 
act and applies retroactively, within the meaning of 1-2-109, to 
permits that were revoked no more than 5 years before the effective 
date of this act.
    Section 5. Termination B contingent termination; states except as 
provided in subsection (2), this act terminates October 1, 2005.
    We announced receipt of the proposed amendment in the May 24, 2001, 
Federal Register (66 FR 28680; Administrative Record No. MT-019-04). In 
the same document, we opened the public comment period and provided an 
opportunity for a public hearing on the amendment's adequacy. We did 
not hold a public hearing because nobody requested one. The public 
comment period ended on June 25, 2001. We received written comments 
from one private citizen, one industry group, one environmental group, 
the Governor of Montana, and two Federal agencies.

III. Director's Finding

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

1. Standard Applied in Reviewing This Amendment

    The proposed change to the Montana statute has no counterpart in 
either SMCRA or the Federal regulations. However, that does not mean 
that it must automatically be disapproved. Section 505(b) of SMCRA 
provides that ``Any provision of any State law or regulation in effect 
on the date of enactment of this Act, or which may become effective 
thereafter, which provides for the control and regulation of surface 
mining reclamation operations for which no provision is contained in 
this Act shall not be construed to be inconsistent with this Act.''
    The criteria for deciding whether this proposed amendment should be 
approved or disapproved are whether or not the proposed amendment is in 
accordance with the provisions of the SMCRA and consistent with the 
requirements of the Federal regulations. As those phrases are defined 
in 30 CFR 730.5, the proposed amendment should be no less stringent 
than SMCRA and be no less effective than the Federal regulations in 
meeting the requirements of SMCRA in order to be approved. For the 
reasons articulated below, we conclude that the proposed amendment is 
no less stringent than SMCRA and no less effective than the Federal 
regulations and, therefore, may be approved.

2. Assumption of a Revoked Permit by Another Party in Order To 
Reinitiate Mining

    The basic objective of the proposed amendment is to allow another 
party to assume a revoked permit and begin mining under the terms of 
that permit. While SMCRA and the Federal regulations clearly provide 
for the revocation of permits and separately provide for the transfer, 
assignment, or sale of permit rights, there is no express Federal 
counterpart to the changes Montana proposes to make to MSUMRA in this 
amendment which would allow another party to assume a revoked permit 
and begin mining under the terms of that permit. The question, then, is 
whether or not such a provision is inconsistent with SMCRA.
    We have previously addressed this basic question in relation to a 
statutory change proposed by another State. West Virginia proposed a 
somewhat comparable amendment to its approved statutory requirements on 
April 28, 1997. That amendment allows a revoked permit to be reinstated 
within one year following the notice of permit revocation, subject to 
the discretion of the West Virginia Division of Environmental 
Protection's (WVDEP) director and based on WVDEP's receipt of a 
petition for reinstatement. The amendment further provided that a 
reinstated permit may be assigned to any person who meets the permit 
eligibility requirements of West Virginia's regulatory program.
    We published our approval of West Virginia's proposed statutory 
change in the February 9, 1999, Federal Register (64 FR 6201). In our 
decision, we noted that the Federal enforcement requirements of section 
521 of SMCRA do not specifically prohibit reinstating a revoked permit. 
Therefore, we approved the proposed statutory revision in so far as it 
did not contain any provisions that are less stringent than the 
requirements of SMCRA.
    That same rationale applies here. While the proposed Montana 
amendment provides that revoked permits do not actually terminate for a 
specified period (five years) after revocation, rather than allowing 
for reinstatement as with the approved

[[Page 58377]]

West Virginia program, the effect is the same. Either program would 
allow another party to assume a revoked permit and begin mining within 
the terms of that permit. To disapprove one approach after approving 
the other would be inconsistent. Further, providing a mechanism for 
other operators to assume the reclamation liability and commence mining 
at forfeited sites that have not yet been reclaimed is consistent with 
the objective of section 515(b)(1) of SMCRA which is to maximize 
recovery of the coal resource in order to minimize reaffecting 
reclaimed land through future mining operations. It is also consistent 
with our re-mining initiatives. Therefore, we find that the basic 
concept embodied in the proposed revision to the Montana program may be 
approved since it is not specifically prohibited by SMCRA and is not 
less stringent than SMCRA.
    Permits issued under the approved Montana program are valid for 
five years and are subject to renewal. However, under this provision, a 
revoked permit does not terminate until five years after revocation. 
Based upon this provision, we understand that should a permit be 
transferred during that five-year period, it would still expire at the 
end of those five years unless renewed by the new owners of the permit. 
For example, if a transfer takes effect three years after revocation, 
the transferred permit will terminate two years after the transfer 
unless renewed. Our determination that the provision is no less 
stringent than SMCRA is based upon this understanding.

3. Process for Another Party To Assume a Revoked Permit

    While the proposed statutory change to the West Virginia program 
was approved on February 9, 1999, that same Federal Register notice 
made clear that the State was barred from implementing the change until 
its program was further amended to specify procedures for implementing 
the approved change. Thus, while the statutory change providing the 
concept was found no less stringent than SMCRA, it was not yet clear 
that the processes to be used to implement the provision would be no 
less effective than the Federal regulations. Therefore, we notified 
West Virginia that, before implementing the provision, it must 
establish provisions governing such transfers that provide adequate 
safeguards to ensure that the reinstated permit will satisfy all the 
requirements of the West Virginia Surface Mining Control and 
Reclamation Act (WVSMCRA). In addition to eligibility requirements, 
which were already covered in the approved amendment (and which are 
also adequately covered in the proposed Montana amendment), we notified 
West Virginia that it must establish procedures that (1) allow for 
public participation, (2) require that the revoked permit meet 
appropriate permitting requirements of the WVSMCRA, and (3) require 
that the mining and reclamation plan be modified to address any 
outstanding violations. We also stated that (4) in no event can a 
reinstated permit be approved in advance of the close of the public 
comment period, and (5) the party seeking reinstatement must post a 
performance bond that will be in effect before, during, and after the 
reinstatement of the revoked permit.
    On March 14, 2000, West Virginia sent to us amendments primarily 
incorporating reinstatement provisions into its transfer regulations. 
In the August 18, 2000, Federal Register (65 FR 50409) largely 
approving the procedures proposed by West Virginia, we seemed to add a 
sixth criterion by stating that procedures must not result in the 
intentional delay of bond forfeiture reclamation. These six criteria, 
articulated to evaluate whether or not the procedures adopted by West 
Virginia are no less effective than the Federal regulations, provide a 
reasonable standard for evaluating whether or not this proposed 
amendment to Montana's approved program contains adequate procedural 
safeguards for implementing the concept of allowing another party to 
assume mining at the site of a revoked permit. Therefore, to the extent 
the proposed amendment meets these criteria, it can be found no less 
effective than the Federal regulations.

4. Comparison of Montana's Proposed Amendment With the Specific 
Criteria Established by OSM for the West Virginia Proposal

    Based upon application of the six criteria established to evaluate 
the West Virginia proposal to the proposed Montana amendment, we find 
that Montana's proposed amendment is no less effective than the Federal 
regulations pertaining to the transfer, assignment, or sale of permit 
rights at 30 CFR 774.17.
    Of the six criteria established to evaluate the West Virginia 
proposal, the first and fourth dealt with the issue of public 
participation. The first criterion required public notice, and the 
fourth criterion required that the transfer not occur until the close 
of the public comment period. The proposed Montana amendment meets 
these requirements. Proposed Section 1.(6) provides for transfer only 
after public notice and opportunity for comment. This requirement is 
not inconsistent with 30 CFR 774.17(c) and is no less effective than 
the Federal regulations so long as it is implemented in a manner 
consistent with that Federal provision.
    The second criterion established to evaluate the West Virginia 
proposal was that the revoked permit meet appropriate permitting 
requirements. The proposed Montana amendment meets this requirement. 
Proposed Section 1.(2) requires that the application for transfer of a 
revoked permit contain the information required for a permit applicant 
in sections 82-4-222(1)(b) through (i) of the Montana program. Those 
sections generally require information pertaining to ownership and 
control of both the subject site and mining operation and other legal, 
financial, and compliance matters.
    An area of potential concern regarding the second criterion is that 
proposed Section 1.(3) would preclude Montana from requiring additional 
information from the applicant unless Montana can show that significant 
changes in the environmental baseline data have occurred. However, this 
limitation is mitigated by several provisions of the proposed amendment 
which require the submission of information to correct both paperwork 
deficiencies and operational violations of the previously approved 
mining and reclamation plan. First, proposed Section 1.(2) requires the 
applicant to submit all of the compliance information for outstanding 
violations required by 82-4-222(1)(g) of the Montana program, and 
proposed Section 1.(7)(c) prohibits transfer of a revoked permit unless 
those violations are corrected. Second, proposed Section 1.(6)(b) 
requires, as a condition of permit transfer, that, prior to creating 
any additional disturbance at the site, all preexisting permit 
deficiencies must be corrected to the satisfaction of Montana and, 
also, that any preestablished environmental monitoring requirements 
must continue. Third, proposed Sections 1.(7)(a) and (b) prohibit 
permit transfer where Montana can show that significant changes to the 
operating or reclamation plan are necessary or where program 
requirements for backfilling, grading, subsidence stabilization, water 
control, highwall reduction, topsoiling, revegetation, or reclamation 
of the affected area cannot be met. Finally, proposed Section 2 applies 
the provisions of the entire Montana program, namely, Title 82, Chapter 
4, Part 2, to proposed Section 1. We

[[Page 58378]]

understand this to mean that all of the provisions of the Montana 
program apply to the process for transfer of a revoked permit, except 
those which are expressly modified by Section 1. We find that, taken 
together, these provisions of the proposed Montana amendment are fully 
sufficient to assure that the informational requirements for transfer 
of a revoked permit are no less effective than 30 CFR 773.17(b) and 
(c).
    The third criterion established to evaluate the West Virginia 
proposal was that the mining and reclamation plan be modified to 
address any outstanding violations. The proposed Montana amendment 
meets this requirement. Proposed Section 1.(7)(c) prohibits transfer of 
a revoked permit where Montana can show that it would otherwise be 
precluded from doing so because of an outstanding violation or pattern 
of violations pursuant to 82-4-227(11) or (12) of the Montana program. 
Also, proposed Section 1.(6)(b) requires, as a condition of permit 
transfer, that, prior to creating any additional disturbance at the 
site, all preexisting permit deficiencies, including modifications 
necessary because of reclamation that has been conducted at the site, 
be corrected to Montana's satisfaction. Taken together, these sections 
of the proposed Montana amendment are no less effective than 30 CFR 
773.17(d)(1).
    The fifth criterion established to evaluate the West Virginia 
proposal was that a bond be posted. The proposed amendment, at Section 
1.(6)(a), stipulates that adequate bonding, as required by the program, 
must be provided before the transfer can occur. This is consistent with 
the requirement and no less effective than the Federal regulations.
    The sixth and final criterion, added in the August 18, 2000, 
Federal Register notice, was that the procedures must not result in an 
intentional delay of bond forfeiture reclamation. One area of potential 
concern with the proposed amendment is that, unlike the West Virginia 
provision that limits reinstatement of a revoked permit to within 1 
year of revocation, this proposal provides that a revoked permit does 
not terminate until five years after revocation or substantial 
completion of seeding and planting on disturbed areas, whichever occurs 
earlier. It has been OSM's experience, working with many States over 
several years, that it is not uncommon for 1 to 5 years, or even more, 
to lapse between the time of permit revocation and the completion of 
reclamation with forfeited funds. Therefore, the proposed time limit of 
5 years is not unreasonable, particularly since the time will be less 
if reclamation with forfeited funds is substantially completed in less 
than five years. Our finding that this provision will not result in 
intentional delays in bond forfeiture reclamation is based upon our 
understanding that Montana will continue to proceed to reclaim 
forfeited sites in a timely manner within the 5-year time limit in this 
provision unless an application for transfer is received. Should we 
find in future reviews that Montana is intentionally delaying 
reclamation to allow the full 5 years to lapse, we will reconsider this 
finding and may require an amendment.
    A potential concern with the proposed amendment related to 
reclamation delays is the provision that, upon receipt of an eligible 
application, the department shall cease reclamation activities on the 
permit area. On its face, it seems very reasonable and prudent to cease 
reclamation activities when it appears that another party will likely 
take over the permit and resume mining. In fact, to not cease 
reclamation activities would be to potentially waste forfeiture funds 
while increasing the disturbance necessary to resume mining. In 
addition, the proposal makes clear that an application must contain all 
the ownership and violation information necessary to determine 
eligibility for a permit and that reclamation activities should cease 
only when an application is received from an eligible applicant. 
Therefore, our finding that this provision will not cause intentional 
delays in bond forfeiture reclamation is based upon our understanding 
that, consistent with these provisions, Montana will not cease 
reclamation activities with forfeited funds until it has checked the 
application to make sure that the information required by 82-4-
222(1)(b) through (1)(i) is contained in the application and Montana 
has determined that the applicant is eligible for a permit. Only then, 
as we understand this proposal, would Montana cease reclamation with 
forfeited funds. If, in future reviews, we should determine that 
Montana is applying this provision inconsistent with this finding, a 
further amendment may be required.
    Although not expressly addressed in the proposed Montana amendment 
nor in the Federal permit transfer regulations in 30 CFR 774.17, having 
liability insurance is also a requirement for all permittees under the 
Federal program. However, Section 2 of the amendment applies the 
provisions of Title 82, chapter 4, part 2, to Section 1. As stated 
above, we understand this to mean that the provisions of Title 
82,chapter 4, part 2 apply to the process for application for transfer 
of a revoked permit, except as expressly modified by Section 1. The 
application of section 82-4-222(5), which requires an applicant for a 
transfer to submit a certificate of public liability insurance, has not 
been modified by Section 1. Therefore, we understand the amendment to 
include the requirement for a certificate of public liability 
insurance. Our finding that the proposal is no less effective than the 
Federal regulations and not less stringent than SMCRA is based upon 
that understanding.

IV. Summary and Disposition of Comments

Public Comments

    We received six letters concerning the proposed amendment, 
primarily in response to our request for comments. Following are 
summaries of all written comments on the proposed amendment that we 
received and our responses to those comments.
    B.M.P. Investments, Inc. (BMP) responded in a June 13, 2001, 
letter, by expressing its support for the proposed amendment 
(Administrative Record No. MT-19-06). BMP asserted that neither SMCRA 
nor the 30 CFR regulations contain any provisions precluding our 
approval of Montana's proposed amendment. It further asserted that 
there is no language in SMCRA or the Federal regulations that prohibits 
a State from reissuing a revoked mine permit under the conditions 
contained in Montana's new statutory amendment (HB-495).
    We agree with these comments as we discussed above in Part III, 
Director's Findings, of this final rule.
    In a letter dated June 28, 2001, Montana Governor Judy Martz 
expressed to the Secretary of the Interior her support for the 
amendment on the basis that it expedites the resumption of mining at a 
site that is already reviewed and permitted (Administrative Record No. 
MT-19-09). Governor Martz requested that we allow Montana to implement 
the statute. She noted that the amendment safeguards against 
environmental damage by requiring preexisting permit deficiencies to be 
corrected, additional information if there have been significant 
changes in baseline data, and preestablished environmental monitoring 
requirements to continue. The Governor also noted that a revoked permit 
may not be transferred if existing requirements of the statutes cannot 
be met, significant changes in the operating or reclamation plan are 
needed, or the applicant has

[[Page 58379]]

uncorrected violations. She further noted the amendment's provisions 
for public notice and comment, site ownership and control, and adequate 
bonding.
    The Northern Plains Resource Council (NPRC) expressed several 
concerns for the proposed amendment in a letter dated June 21, 2001 
(Administrative Record No. MT-19-08). NPRC asserted that Montana's 
amendment goes beyond the scope and authority of SMCRA and that there 
is no authority to resurrect a permit that has ceased to be. NPRC 
stated that, by definition, a revoked permit does not exist and SMCRA 
does not provide for rehabilitation of revoked permits through permit 
transfer. We disagree with this comment. As we stated under Part III, 
Director's Findings, we previously approved an amendment proposed by 
West Virginia that raised the issue of reinstating revoked permits. In 
that approval, we held that SMCRA does not specifically prohibit the 
reinstatement of a revoked permit and we approved the transfer of such 
permits to a third party. In doing so, we specified the criteria that 
would be necessary for full approval and operation of this provision. 
We also noted previously in this final rule that section 505(b) of 
SMCRA provides that ``Any provision of any State law or regulation in 
effect on the date of enactment of this Act, or which may become 
effective thereafter, which provides for the control and regulation of 
surface mining and reclamation operations for which no provision is 
contained in this Act shall not be construed to be inconsistent with 
this Act.''
    NPRC noted that Montana's proposed amendment requires the State to 
stop reclamation activities upon receipt of an application for transfer 
of a revoked permit. NPRC maintained that stopping such activities 
would cause even further delay of reclamation with forfeited funds. We 
expressly address this issue above in the findings section in our 
discussion of this provision. Again, while we recognize it as an area 
of potential concern, we reiterate that it is not only reasonable but 
also prudent to stop reclamation activities when an application has 
been received that indicates a strong likelihood that mining will 
resume in the near future. This would be true even without this 
provision. It would still be reasonable for any Regulatory Authority to 
suspend reclamation using forfeited funds if it received an entirely 
new permit application seeking to mine an area where a permit had been 
previously revoked and reclamation with forfeited funds was underway. 
Knowing that it has received a complete application for transfer of the 
revoked permit and finding that the applicant is not precluded from 
holding a permit pursuant to the Montana program, we believe that it 
would be prudent for Montana to then halt expenditure of forfeited 
funds on reclamation as required by the proposed amendment. However, 
the amendment does not change existing obligations on Montana to 
proceed with reclamation in the event of bond forfeiture until a 
transfer application is received.
    NPRC stated that the party filing the application assumes no 
liability for the site until approval while extending the State's 
liability by further delaying reclamation. We note that liability for 
the site remains with the original permittee until the site is 
reclaimed by the State with forfeited bond funds or is taken over by 
another party.
    NPRC asserted that the proposed process does not evaluate the 
financial ability of the applicant against the financial requirements 
of taking over the permit. While that is true, such an evaluation has 
never been part of the permitting process under SMCRA nor does SMCRA 
expressly authorize or require such a review. Therefore, we would have 
no basis to require it in relation to this amendment. However, 
Montana's amendment only allows the State to transfer a permit to a new 
operator if that new operator provides proof of adequate bonding as 
required by MSUMRA. The bond is the financial guarantee that 
reclamation work will be performed.
    The NPRC expressed concerns that, because the information required 
for a transfer of permit under the proposed amendment is minimal and 
administrative, changes in field conditions or in the proposed 
operation/reclamation plan would not be adequately addressed prior to 
permit transfer. It is true that, in most circumstances, the 
information required in the application is limited to administrative 
information. However, that is also true of the Federal rules at 30 CFR 
774.17(b) for permit transfer which formed the basis for the approach 
taken by West Virginia in response to our requirement to establish 
procedures for implementing the reinstatement of revoked permits. 
Further, while Montana is precluded from preparing a full review under 
75-1-201, it is not precluded from using information it receives during 
the public comment period or information it already has from its permit 
files, inspection and enforcement files, or forfeiture reclamation work 
to evaluate the application. In fact, it would have to do so to 
determine whether or not it can show that significant changes to the 
operating plan or reclamation plan are necessary or that certain 
reclamation requirements cannot be met. Either finding would preclude 
issuance of the transfer. Governor Martz recognized these limitations 
on permit transfers under the proposed amendment by stating in her 
comment letter that ``if the existing requirements of the statutes 
cannot be met, significant changes in the operating plan or reclamation 
plan are necessary, or the applicant is in violation of Public Law 95-
87, the department may not transfer the permit * * * '' (Administrative 
Record No. MT-19-09; emphasis added). Therefore, it is clear that 
Montana will undertake sufficient analysis to determine if these 
conditions exist. Our finding that the proposed amendment is no less 
effective than the Federal rules and meets the criteria outlined for 
West Virginia is based upon Montana undertaking that level of analysis. 
Also, Montana can require additional information as part of the 
application if significant changes occurred in the environmental 
baseline data during the period of operation or since the original 
permit was revoked. Further, as previously discussed, as a condition of 
the transfer, all preexisting problems must be addressed to the 
satisfaction of Montana before additional disturbance is created.
    The NPRC stated that the permit that is the immediate subject of 
this proposed amendment is the Bull Mountain Mine No. 1 permit. NRPC 
goes on to allege numerous concerns with the Bull Mountain mine. While 
we make no judgment with respect to these allegations, how that mine 
was operated with regard to the permit is not a factor in our 
consideration of the proposed amendment. Under this amendment, Montana 
can only approve a transfer if the permit transfer application is 
complete and (1) it cannot show that either the operation plan or the 
reclamation plan needs to be changed, (2) it cannot show that the 
requirements of MSUMRA and the administrative rules for operation, 
backfilling, grading, subsidence stabilization, water control, highwall 
reduction, topsoiling, revegetation, and reclamation of the affected 
area cannot be met, (3) proof of ownership or control has been 
provided, (4) the applicant is eligible to receive a permit, and (5) 
adequate bond has been posted. Also, liability insurance is required. 
Further, that transfer will be conditioned to require that all 
preexisting permit deficiencies be corrected to the satisfaction of 
Montana before additional disturbance is

[[Page 58380]]

allowed. We make no judgment of whether or not the Bull Mountain No. 1 
permit could qualify for a transfer under the proposed amendment. 
However, we believe the above provisions are adequate to assure that 
mining could only resume at that site if concerns such as NPRC alleges 
are addressed.
    We also received comments in a letter dated July 16, 2001, from a 
citizen involved in the purchase of property nearby the Bull Mountain 
mine (Administrative Record No. MT-19-10). The citizen expressed 
concern that he considered the permit revocation to be final but that 
the change in Montana's law that is the subject of this amendment has 
made it an issue again. The commenter stated that the mine's uncertain 
status makes it difficult for anyone to decide whether or not to live 
and invest in the area. He argued that there should be another 
opportunity for local public input into the permitting decision, noting 
that conditions have changed since the permit was revoked and local 
residents appear to be ill-informed about the mine's status. As we 
noted previously in this final rule, the amendment requires the 
department to provide for public notice and the opportunity for comment 
while processing an application for transferring a revoked permit. We 
also noted previously that this proposed amendment allows the 
department to request additional information from the applicant if it 
can show that significant changes in environmental baseline data have 
occurred. We noted further that this amendment precludes the department 
from transferring a revoked permit if it can show that significant 
changes in the operation/reclamation plan are needed or that other 
requirements of Montana's statute and rules cannot be met. Governor 
Martz reiterated these requirements in her June 28, 2001, letter to us 
(Administrative Record No. MT-19-09). Finally, we note that anyone 
investing in areas of known coal reserves or an inactive mine owned by 
others cannot be guaranteed that future mining will not occur. Even 
without a provision such as proposed in this amendment, inactive or 
reclaimed mines can be reactivated under completely new permits if they 
meet requirements that already exist in applicable Federal and State 
laws and regulations.

Federal Agency Comments

    Under 30 CFR 731.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment in letters dated May 15, 2001, from 
various Federal agencies with an actual or potential interest in the 
Montana program (Administrative Record No. MT-19-03).
    In a letter dated June 18, 2001, the U.S. Department of Labor, Mine 
Safety and Health Administration (MSHA) stated that Montana's proposed 
amendment will not affect MSHA's enforcement of the Federal Mine Safety 
and Health Act of 1977 (Administrative Record No. MT-19-05).
    The U.S. Department of the Interior, Bureau of Indian Affairs 
(BIA), responded to our request for comments in a letter dated June 22, 
2001 (Administrative Record No. MT-19-07). The BIA stated that it is 
comfortable with the procedures and requirements Montana advocates in 
its amendment. It added that only one mine in Montana currently 
produces Indian owned coal, and that it does not anticipate that mine's 
permit being revoked or transferred.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a 
written agreement from EPA for those provisions of the program 
amendment that related to air or water quality standards issued under 
the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the 
Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that 
Montana proposed to make in this amendment pertain to air or water 
quality standards. As a result, we did not ask EPA to agree on the 
amendment.
    However, we did request comments from EPA under 30 CFR 
732.17(h)(11)(i) in a letter dated May 15, 2001 (Administrative Record 
No. MT-19-03). EPA did not respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On May 15, 2001, we requested comments from them on 
Montana's amendment (Administrative Record No. MT-19-03). Neither the 
SHPO nor the ACHP responded to our request.

V. Director's Decision

    Based on the above finding, we approve the amendment Montana sent 
to us on April 27, 2001.
    We approve, as discussed in Part III, finding number 1: Section 1 
of Title 82, chapter 4, part 2 of the Montana Strip and Underground 
Mine Reclamation Act, providing for transfer of revoked operating 
permits, including provisions for applying for a transfer, processing 
transfer applications, approving and not approving transfer requests, 
requirements for reimbursement of expended funds, and restricting 
transfer requests to non-Federal lands.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 926, which codify decisions concerning the Montana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have significant takings implications and 
therefore a takings implication assessment is not required. The basic 
objective of the amendment is to allow a new party to assume a revoked 
permit and begin mining under the terms of that permit.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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.

[[Page 58381]]

Executive Order 13132--Federalism

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

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866, and because it is not expected to have a 
significant adverse effect on the supply, distribution, or use of 
energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 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)).

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 certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The basic objective of the amendment is to allow a new party to assume 
a revoked permit and begin mining under the terms of that permit. 
Because the application of the rule is limited and because the party 
assuming the revoked permit stands to gain an economic benefit, we have 
concluded that the rule will not have a significant economic impact on 
a substantial number of small entities.

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, Federal, State, or local government agencies, or geographic 
regions; and c. does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.
    This determination is based on the fact that the application of the 
rule is limited and the party assuming the revoked permit stands to 
gain an economic benefit.

Unfunded Mandates

    OSM has determined under the Unfunded Mandates Reform Act (2 U.S.C. 
1502 et seq.) that this rule will not impose a cost of $100 million or 
more in any given year on any local, State, or Tribal governments or 
private entities.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, surface mining, underground mining.

    Dated: November 6, 2001.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.

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

PART 926--MONTANA

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

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

    2. Section 926.15 is amended in the table by adding a new entry in 
chronological order by November 21, 2001 to read as follows:


926.15  Approval of Montana regulatory program amendments.

------------------------------------------------------------------------
 Original amendment  submission     Date of final         Citation/
              date                   publication         Description
------------------------------------------------------------------------
April 27, 2001.................  November 21, 2001.  MCA 82-4 Part 2
                                                      Operating permit
                                                      revocation--permit
                                                      transfer
------------------------------------------------------------------------

[FR Doc. 01-29106 Filed 11-20-01; 8:45 am]
BILLING CODE 4310-05-P