[Federal Register Volume 70, Number 228 (Tuesday, November 29, 2005)]
[Proposed Rules]
[Pages 71428-71441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23396]
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[MT-025-FOR]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
-----------------------------------------------------------------------
SUMMARY: We are announcing receipt of 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 proposes revisions to, additions of, and deletions of
rules about: Definitions; permit application requirements; application
processing and public participation; application review, findings, and
issuance; permit conditions; permit renewal; performance standards;
prospecting permits and notices of intent; bonding and insurance;
protection of parks and historic sites; lands where mining is
prohibited; inspection and enforcement; civil penalties; small operator
assistance program (SOAP); restrictions on employee financial
interests; blasters license; and revision of permits.
Montana intends to revise its program to be consistent with the
corresponding Federal regulations and SMCRA, and to clarify
ambiguities.
This document gives the times and locations that the Montana
program and proposed amendment to that program are available for your
inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we
[[Page 71429]]
will follow for the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
m.s.t. December 29, 2005. If requested, we will hold a public hearing
on the amendment on December 27, 2005. We will accept requests to speak
until 4 p.m., m.s.t. on December 14, 2005.
ADDRESSES: You may submit comments, identified by ``MT-025-FOR,'' by
any of the following methods:
E-mail: [email protected]. Include ``MT-025-FOR'' in the
subject line of the message.
Mail, Hand Delivery/Courier: Richard Buckley, Acting
Director, Casper Field Office, Office of Surface Mining Reclamation and
Enforcement, Federal Building, 150 East B Street, Room 1018, Casper, WY
82601-1018, (307) 261-6550.
Fax: (307) 261-6552.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name
and the identifier ``MT-025-FOR.'' For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: Access to the docket, to 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, may be
obtained at the addresses listed below during normal business hours,
Monday through Friday, excluding holidays. You may receive one free
copy of the amendment by contacting Office of Surface Mining
Reclamation and Enforcement (OSM) Casper Field Office. In addition, you
may review a copy of the amendment during regular business hours at the
following locations:
Richard Buckley, Acting Director, Casper Field Office, Office of
Surface Mining Reclamation and Enforcement, Federal Building, 150 East
B Street, Room 1018, Casper, WY 82601-1018, (307) 261-6550,
[email protected].
Neil Harrington, Chief, Industrial and Energy Minerals Bureau,
Montana Department of Environmental Quality, P.O. Box 200901, Helena,
MT 59620-0901, (406) 444-2544, [email protected].
FOR FURTHER INFORMATION CONTACT: Richard Buckley, Telephone: (307) 261-
6550. E-mail: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determination
I. Background on the Montana Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Montana program on April 1, 1980. You can
find background information on the Montana program, including the
Secretary's findings, the disposition of comments, and conditions of
approval 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 at 30 CFR 926.15, 926.16, and 926.30.
II. Description of the Proposed Amendment
By letter dated August 29, 2005, Montana sent us a proposed
amendment to its program (MT-025-FOR, Administrative Record No. MT-22-
1) under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment in
response to legislative revisions to its statutes, to the required
program amendments at 30 CFR 926.16(e)(1), (k), (l), and (m), and to
include the changes made at its own initiative. The full text of the
program amendment is available for you to read at the locations listed
above under ADDRESSES.
The provisions of the Administrative Rules of Montana (ARM) that
Montana proposes to revise, delete, and/or add are: ARM 17.24.301,
definitions; 17.24.302, permit application format; 17.24.303,
application requirements for legal, financial, and compliance
information; 17.24.306, application requirements for baseline
environmental information; 17.24.305, permit application map
requirements; 17.24.306, prime farmland investigation; 17.24.308,
operations plan; 17.24.312, fish and wildlife plan; 17.24.313,
reclamation plan; 17.24.315, plans for ponds and embankments;
17.24.321, transportation facilities plan; 17.24.322, geologic
information and coal conservation; 17.24.323, grazing plan; 17.24.324,
prime farmland special application requirements; 17.24.401, application
filing and notice; 17.24.404, application review; 17.24.405, findings
and decision; 17.24.412, extension of time to commence mining;
17.24.413, permit conditions; 17.24.416, permit renewal; 17.24.427,
change of contractor; 17.24.501, backfilling and grading; 17.24.515,
highwall reduction; 17.24.520, thick overburden and excess spoil;
17.24.522, permanent cessation of operations; 17.24.523, coal fires and
coal conservation; 17.24.602, location of roads and railroads;
17.24.603, road and railroad embankments; 17.24.605, hydrologic impact
of roads and railroads; 17.24.609, other support facilities; 17.24.623,
blasting schedule; 17.24.624, surface blasting requirements; 17.24.626,
blasting records; 17.24.633, water quality performance standards;
17.24.634, reclamation of drainage basins; 17.24.635, diversions;
17.24.636, temporary diversions; 17.24.638, sediment control;
17.24.639, sediment ponds and other treatment facilities; 17.24.642,
permanent impoundments; 17.24.645, ground water monitoring; 17.24.646,
surface water monitoring; 17.24.701, soil removal; 17.24.702, soil
storage and redistribution; 17.24.703, soil substitutes; 17.24.711,
revegetation establishment; 17.24.714, soil stabilization; 17.24.716,
revegetation methods; 17.24.717, tree and shrub planting; 17.24.718,
soil amendments and land use practices; 17.24.719, grazing; 17.24.720,
revegetation inspections; 17.24.723, revegetation monitoring;
17.24.724, revegetation success standards; 17.24.725, responsibility
period; 17.24.726, vegetation measurement; 17.24.730, seasonality;
17.24.732, revegetation of previously cropped areas; 17.24.733,
measurement of trees and shrubs; 17.24.751, fish and wildlife
protection; 17.24.761, air quality protection; 17.24.762, postmining
land use; 17.24.764, cropland; 17.24.815, prime farmland revegetation;
17.24.821, alternate reclamation--alternative postmining land use,
plans; 17.24.823, alternate reclamation-- alternative postmining lands
use, approval of plan; 17.24.824, alternate reclamation and alternative
postmining land use; 17.24.825, alternate reclamation, alternate
revegetation; 17.24.826, alternate reclamation, liability period;
17.24.832, auger mining; 17.24.901, underground mining application
requirements; 17.24.903, underground mining performance standards;
17.24.911, subsidence control;
[[Page 71430]]
17.24.924, underground development waste, general; 17.24.927, durable
rock fills; 17.24.930, coal processing waste; 17.24.932, disposal of
coal processing waste; 17.24.1001, prospecting permit application;
17.24.1002, prospecting monthly reports; 17.24.1003, renewal and
transfer of prospecting permits; 17.24.1017, bond release for drilling
operations; 17.24.1018, notice of intent to prospect; 17.24.1104,
bonding amounts; 17.24.1106, bond terms and conditions; 17.24.1108,
certificates of deposit; 17.24.1109, letters of credit; 17.24.1116,
bond release; 17.24.1125, liability insurance; 17.24.1129, annual
report; 17.24.1131, protection of parks and historic sites; 17.24.1132,
lands prohibited, definitions and standards; 17.24.1133, lands
prohibited, procedures; 17.24.1201, inspections; 17.24.1202, compliance
reviews; 17.24.1206, enforcement; 17.24.1211, civil penalties;
17.24.1212, civil penalty point system; 17.24.1219, individual civil
penalties; 17.24.1225, small operator assistance program (SOAP);
17.24.1226, SOAP providers; 17.24.1250, restrictions on employee
financial interests; 17.24.1255, multiple interest advisory boards;
17.24.1263, revocation or suspension of blasters license; and
17.24.1301, revision of existing permits.
Specifically, Montana proposes to the following revisions to its
rules, all contained within the Administrative Rules of Montana (ARM).
We note that in many but not all cases, Montana has proposed changing
the numbering scheme for sub-requirements within the revised rules.
17.24.301, Definitions
(6) ``adjacent area'' proposed to be revised by deleting the
existing definition and incorporating the statutory definition at 82-4-
203(2), Montana Code Annotated (MCA).
(11) the definition is proposed to be changed from ``alternate
reclamation'' to ``alternative postmining land use''.
(13) ``approximate original contour'' is proposed to be extensively
revised to read as follows:
``Approximate original contour'' is defined in 82-4-203, MCA, as
``that surface configuration achieved by backfilling and grading of
the mined areas so that the reclaimed area, including any terracing
or access roads, closely resembles the general surface configuration
of the land prior to mining and blends into and complements the
drainage pattern of the surrounding terrain, with all highwalls,
spoil piles, and coal refuse piles eliminated so that:
(a) the reclaimed terrain closely resembles the general surface
configuration if it is comparable to the premine terrain. For
example, if the area was basically level or gently rolling before
mining, it should retain these features after mining, recognizing
that rolls and dips need not be restored to their original locations
and that level areas may be increased;
(b) the reclaimed area blends with and complements the drainage
pattern of the surrounding area so that water intercepted within or
from the surrounding terrain flows through and from the reclaimed
area in an unobstructed and controlled manner;
(c) postmining drainage basins may differ in size, location,
configuration, orientation, and density of ephemeral drainageways
compared to the premining topography if they are hydrologically
stable, soil erosion is controlled to the extent appropriate for the
postmining land use, and the hydrologic balance is protected as
necessary to support postmining land uses within the area affected
and the adjacent area; and
(d) the reclaimed surface configuration is appropriate for the
postmining land use.''
(26) ``community or institutional building'' is proposed to be
extensively revised to read as follows:
``Community or institutional building'' means any structure,
other than a public building or a dwelling, which is used primarily
for meetings, gatherings or functions of local civic organizations
or other community groups; functions as an educational, cultural,
historic, religious, scientific, correctional, mental-health or
physical health care facility; or is used for public services,
including, but not limited to, water supply, power generation or
sewage treatment.
(33) ``diversion'' is proposed to be extensively revised to read as
follows:
``Diversion'' means a channel, embankment, or other manmade
structure constructed to divert undisturbed runoff around an area of
disturbance and back to an undisturbed channel.
(36) a new definition of ``dwelling'' is proposed to be added to
read as follows:
``Dwelling'' means a building inhabited by or useful for
habitation by a person or persons.
(38) the existing definition of ``ephemeral stream'' is proposed to
be revised to quote the statutory definition of ``ephemeral
drainageway'' at 82-4-203(17), MCA.
(46) a new definition of ``good ecological integrity'' is proposed
to be added to read as follows:
``Good ecological integrity'' means that the complex of
community of organisms and its environment functioning as an
ecological unit possesses components and processes in good working
order. Pastureland and cropland managed in accordance with county or
local conservation district or state or federal best management
practices (resource management strategies, such as normal husbandry
practices, used to manage or protect a resource and promote
ecological and economic sustainability) generally reflect good
ecological integrity with regard to such land uses.
(50) the definition of ``higher or better uses'' is proposed to be
revised to quote the statutory definition at 82-4-203(23), MCA.
(53) the definition of ``historically used for cropland'' is
proposed to be revised by adding a new subparagraph (53)(c) to read as
follows:
(c) lands that would likely have been used for cropland for any
five or more years out of the 10 years immediately preceding such
acquisition but for the same fact of ownership or control of the
land as in (53)(a) unrelated to the productivity of the land.
(53) the definition of ``hydrologic balance'' is proposed to be
revised to quote the statutory definition at 82-4-203(24), MCA.
(59) the definition of ``incidental boundary change'' is proposed
to be revised to read ``incidental boundary revision''.
(64) The introduction to and subparagraphs (b), (c), (d), (g), and
(h) of the definition of ``land use'' is proposed to be revised to
quote from the statutory definitions at 82-4-203, subparagraphs (28),
(37), (22), (21), (43), and (20), MCA, to read as follows:
``Land use'' is defined in 82-4-203, MCA, as ``specific uses or
management-related activities, rather than the vegetative cover of
the land. Land uses may be identified in combination when joint or
seasonal uses occur and may include land used for support facilities
that are an integral part of the land use. Land use categories
include cropland, developed water resources, fish and wildlife
habitat, forestry, grazing land, industrial or commercial,
pastureland, land occasionally cut for hay, recreation, or
residential.''
(a) [remains the same]
(b) ``Pastureland'' is defined in 82-4-203, MCA, as ``land used
primarily for the long-term production of adapted, domesticated
forage plants to be grazed by livestock or occasionally cut and
cured for livestock feed.''
(c) ``Grazing land'' is defined in 82-4-203, MCA, as ``land used
for grasslands and forest lands where the indigenous vegetation is
actively managed for livestock grazing or browsing or occasional hay
production.''
(d) ``Forestry'' is defined in 82-4-203, MCA, as ``land used or
managed for the long-term production of wood, wood fiber, or wood-
derived products.''
(e) Through (f)(ii) [remain the same]
(g) ``Recreation'' is defined in 82-4-203, MCA, as ``land used
for public or private leisure-time activities, including developed
recreation facilities, such as parks, camps, and amusement areas, as
well as areas for less intensive uses, such as hiking, canoeing, and
other undeveloped recreational uses.''
(h) ``Fish and wildlife habitat'' is defined in 82-4-203, MCA,
as ``land dedicated wholly or partially to the production,
protection, or management of species of fish or wildlife.''
(i) [remains the same]
[[Page 71431]]
(67) a new definition of ``material damage'' is proposed to be
added to quote the statutory definition at 82-4-203(30), MCA.
(68) the definition of ``materially damage the quantity or quality
of water'' is proposed to be revised by deleting references to other
definitions.
(90) the definition of ``prime farmland'' is proposed to be revised
to quote the statutory definition at 82-4-203(40), MCA.
(103) the definition of ``reference area'' is proposed to be
revised to quote the statutory definition at 82-4-203(44).
(107) the definition of ``road'' is proposed to be revised to
delete the final sentence of the main clause, which currently reads:
The term does not include pioneer or construction roadways that
are used for part of the road construction procedure and that are
promptly replaced by roads associated with the prospecting or mining
operation in the identical right-of-way as the pioneer or
construction roadway.
Further, subparagraph (107)(b), defining ``haul road,'' is proposed
to be revised to read as follows: `` `Haul road' means a road used for
more than six months to transport coal, soil, or spoil.''
(143) a new definition of ``wildlife habitat enhancement features''
is proposed to be added to quote from the statutory definition at 82-4-
203(55), MCA.
17.24.302, permit application requirements. Montana proposes to
revise subparagraphs (1) and (2) to require that information in the
application must be accurate, and that all tests, analyses, surveys,
and data collection must be carried out at appropriate times and under
appropriate conditions.
17.24.303, permit application legal and financial requirements.
Montana proposes to require that applications include a copy of the
proposed newspaper advertisement and proof of publication after it is
published.
17.24.304, permit environmental baseline information. Montana
proposes to: (1) Add a requirement that the uses of springs and uses of
surface water bodies be added to the required listings; (2) revise the
requirements for vegetation information to change the word
``vegetative'' to ``vegetation,'' revise the description of dominant
species by deleting the phrase ``2 or more'' and change the term
``number'' to ``density''; (3) delete the requirements for a narrative
discussing current condition or trend for plant community sub-types and
also delete the requirement for a range site map; (4) specify that the
operator contact the department (of Environmental Quality) at least
three months before planning the required wildlife survey; (5) revise
the requirement for a listing of fish and wildlife species by
specifying all species and deleting the non-inclusive list that now
exists; and (6) revising land use information to require the condition,
capability, productivity, and history of use of the land and vegetation
within the proposed permit area.
17.24.305, maps and plans. Montana proposes: (1) To revise
subparagraph (1)(j) to require that maps showing the land to be
affected include the pre-mine topography; (2) to revise subparagraph
(2)(a) to require that map certifications submitted separately from the
map must be in affidavit form; (3) revise subparagraph (2)(b) to add to
the list of maps, plans, and cross-sections that must be prepared by
(or under the direction of) and certified by a licensed professional
engineer, the materials required under subparagraphs (1)(d), (e), (j),
(k), (p), (q), (x), and (z); and (4) revise subparagraph (2)(b)(i) to
add to the list of required materials that may be prepared by (or under
the direction of) and certified by a licensed professional land
surveyor, the materials required under subparagraphs (1)(d), (p), (x),
and (z).
17.24.308, operations plan. Montana proposes to: (1) Revise the
description of the operations for which a description is required by
deleting the word ``mining'' and the phrase ``within the proposed mine
plan area''; (2) add to the requirements for which the narrative must
demonstrate compliance the applicable rules of subchapter 10
(underground mining); and (3) add to the proposed operations for which
compliance must be demonstrated a new subsection which reads as
follows:
(vii) facilities or sites and associated access routes for
environmental monitoring and data gathering activities [or] for the
gathering of subsurface data by trenching, drilling, geophysical or
other techniques to determine the nature, depth, and thickness of
all known strata, overburden, and coal seams.
Montana notes that the bracketed word ``or'' was mistakenly omitted
but will be added in the next rule-making.
17.24.312, fish and wildlife plan. Montana proposes: (1) To change
from ``statement'' to ``description'' the description of the required
plan; (2) to delete the statement that nothing ``herein'' may be
construed to weaken the requirement of 82-4-233(1)(a), MCA; and (3) to
add a requirement for a description of the wildlife habitat enhancement
features that will be integrated with other land uses, pursuant to 82-
4-232(9), MCA, and ARM 17.24.313.
17.24.313, reclamation plan. Montana proposes: (1) To require that
the reclamation plan include the proposed postmining land use pursuant
to ARM 17.24.762; (2) to require that the timetable for completion of
reclamation steps be ``detailed''; (3) add ``other means as approved by
the department'' to other specified means for showing the plan of
highwall backfilling, reduction, ``or an alternative thereof''; (4)
deleting a provision for ``alternate plans other than highwall
reduction'' if ``consistent with the purposes of 82-4-232(7), MCA, and
ARM 17.24.821 through 17.24.824''; (5) add a new requirement that the
backfilling plan contain:
a demonstration that the proposed postmining topography can be
achieved. This demonstration must include a cross-section or set of
cross-sections, or other method as approved by the department, to
depict the removal of overburden and mineral and the replacement of
the swelled spoil;
(6) delete an existing requirement for a plan for early detection
of grading problems; (7) add a requirement to include:
a description of postmining drainage basin reclamation that ensures
protection of the hydrologic balance, achievement of postmining land
use performance standards, and prevention of material damage to the
hydrologic balance in adjacent areas, including:
(i) A comparison of premining and postmining drainage basin
size, drainage density, and drainage profiles as necessary to
identify characteristics not distinguishable on the premining and
postmining topographic maps;
(ii) A discussion of how, within drainage basins:
(A) The plan meets each performance standard in ARM 17.24.634;
(B) The requirements of 82-4-231(10)(k), MCA, and ARM 17.24.314
will be met where the postmining topography differs from the
premining as allowed by ARM 17.24.301(13)(c);
(f) Drainage channel designs appropriate for preventing material
damage to the hydrologic balance in the adjacent area and to meet
the performance standards of ARM 17.24.634, including:
(i) Detailed drainage designs for channels that contain critical
hydrologic, ecologic or land use functions not already addressed in
this rule such as alluvial valley floors, wetlands, steep erosive
upland drainages, drainages named on USGS topographic maps, or
intermittent or perennial streams. Detailed drainage designs include
fluvial and geomorphic characteristics pertinent to the specific
drainages being addressed; and
(ii) For all other channels, typical designs and discussions of
general fluvial and geomorphic habit, pattern, and other relevant
functional characteristics;
(8) revise the plans for material handling to require:
[[Page 71432]]
plans for removal, storage, and redistribution of soil, overburden,
spoils, and other material in accordance with ARM 17.24.501,
17.24.502, 17.24.503, 17.24.504, 17.24.505, 17.24.507, 17.24.510,
17.24.514, 17.24.515, 17.24.516, 17.24.517, 17.24.518, 17.24.519,
17.24.520, 17.24.521, and 17.24.522, and 17.24.701 through
17.24.703;
(9) require that the operator must submit plans for any necessary
monitoring of soils, overburden, spoils, or other materials; (10)
require that the narrative of revegetation methods include a discussion
of revegetation types, including the acreage of each; and (11) require
that the discussion of measures to be used to determine the success of
revegetation include the use of reference areas and/or technical
standards in relation to the revegetation types.
17.24.315, plans for ponds and embankments. Montana proposes to
change the phrase ``registered professional engineer'' to the phrase
``licensed professional engineer'' in three places.
17.24.321, transportation facilities plan. Montana proposes (1) to
delete the limiting words ``haul'' and ``access,'' leaving the general
word ``road''; (2) revise the requirements for application materials to
``the following as appropriate for the type of construction'' and
deleting in several subsequent itemized requirements the word
``appropriate''; (3) to change the phrase ``registered professional
engineer'' to the phrase ``licensed professional engineer''; (4) add
low water crossings to the plans and drawings required to be prepared
by (or under the direction of), and certified by, a ``licensed
professional engineer''; and (5) add 17.24.602, 17.24.603, 17.24.605,
and delete 17.24.606, to and from the specified performance standards.
17.24.322, geologic information and coal conservation plan. Montana
proposes: (1) To delete, from the coal conservation plan requirements,
the location and dimensions of existing areas of spoil, waste, and
garbage and other debris disposal, dams, embankments, other
impoundments, and water treatment and air pollution control facilities
within the proposed permit area; and (2) to add a requirement that:
For an operator with a federal resource recovery and protection
plan, the department may review all applicable coal recovery
information retained by the bureau of land management, in lieu of or
in addition to the information requirements under (3).
17.24.323, grazing plan. Montana proposes to delete this rule.
17.24.324, prime farmland special application requirements. Montana
proposes to delete ARM 17.24.821 through 17.24.825 (alternate
reclamation) from the performance standards which the prime farmland
reclamation plan must address.
17.24.401, filing of permit application and notice. Montana
proposes in two places to revise the phrase ``alternate reclamation
plan(s)'' to the phrase ``alternative postmining land use plan(s).''
17.24.404, review of application. Montana proposes: (1) To delete
paragraph (9), which provides the applicant with the opportunity for a
hearing under the Montana Administrative Procedure Act; and (2) to
delete paragraph (10), which forbids the department to approve
applications that may be inconsistent with other existing, proposed, or
anticipated coal mining and reclamation operations in adjacent areas.
17.24.405, findings and notice of decision. Montana proposes: (1)
To revise the date by which the department must approve or deny an
application to ``no later than 45 days from the date of the
acceptability determination except as provided by 75-1-208(4)(b), MCA;
(2) revise the allowed time for an environmental impact statement from
``within 365 days of its notice given pursuant to ARM 17.24.401(2)'' to
``in accordance with 82-4-231, MCA''; (3) delete a requirement that the
department publish a summary of the decision in a newspaper in the
vicinity of the proposed project; (4) among the required findings,
revise the finding dealing with ``alternate reclamation'' to
``alternative postmining land use'' and add 17.24.821 to the
requirements that must be met; and (5) delete paragraph (7), which
provides the applicant with an opportunity for a contested case hearing
if prior violations prohibit issuance of the permit.
17.24.412, extension of time to commence mining. Montana proposes:
(1) To add a requirement that requests for extensions are subject to
the public participation requirements of 17.24.401-17.24.403; and (2)
to delete from paragraph (3) a requirement for special newspaper
notices of the request.
17.24.413, conditions of permits. Montana proposes to add an
additional condition to all permits, to read as follows:
A permittee shall immediately notify the department whenever a
creditor of the permittee has attached or obtained a judgment
against the permittee's equipment or materials in the permit area or
on the collateral pledged to the department.
17.24.416, permit renewals. Montana proposes to revise the required
newspaper notice so that the renewal application must include the
proposed newspaper notice and proof of publication in a newspaper
approved by the department.
17.24.427, change of contractor. Montana proposes: (1) To revise
paragraph (1) to require that the permittee must notify the department
of any proposed new contractor or changes in an existing contractor,
and require that notification to the department is required prior to
proposed contractor changes if the permit has not been transferred; and
(2) to revise paragraph (2) by deleting the existing requirement and
adding a new requirement to ensure that the contractor may not conduct
any activities on the permit area unless and until the department
determines that the information submitted is acceptable and satisfies
the requirements of ARM 17.24.303.
17.24.501, general backfilling and grading requirements. Montana
proposes to revise paragraph (4) to: (1) Require that grading to
approximate original contour must be in accordance with 82-4-232(1),
MCA; (2) delete existing requirements that final slopes be graded to
prevent slope failure, not exceed the angle of repose, and achieve a
minimum long-term safety factor of 1.3; (3) revise subparagraph (4)(a)
to require that the operator transport, backfill, and compact to ensure
compliance with subparagraph (3)(b) and ARM 17.24.505; (4) further
revise subparagraph (4)(a) to require that highwalls must be reduced or
backfilled in compliance with ARM 17.24.515(1) or approved highwall
reduction alternatives in compliance with ARM 17.24.515(2); and (5)
still further revise subparagraph (4)(a) to delete existing
requirements pertaining to box-cut spoils. Montana further proposes to
revise paragraph (4) by adding a requirement that depressions must be
eliminated except as provided in ARM 17.24.503(1).
Montana also proposes to revise 17.24.501, subparagraph (6)(d), to
require that all backfilling and grading achieve the approved
postmining topography. Montana also proposes to add a new paragraph
(7), requiring the operator to notify the department, in writing, upon
detection of grading problems that would result in topography not
consistent with the approved postmine topography.
17.24.515, highwall reduction. Montana proposes to revise paragraph
(1) to require that highwalls must be eliminated and the reduced
highwall slope must be no greater than whatever slope is necessary to
achieve a minimum long-term static safety factor
[[Page 71433]]
of 1.3. Montana also proposes to revise paragraph (2) by deleting
existing subparagraph (2)(c) (which provides that highwall reduction
alternatives must comply with 17.24.313, 17.24.821-17.21.824). Montana
proposes additional new language to read as follows:
(2) Highwall reduction alternatives may be permitted only to
replace bluff features that existed before mining and where the
department determines that:
(a) Postmining bluffs are compatible with the proposed
postmining land use;
(b) Postmining bluffs are stable, achieving a minimum long-term
static safety factor of 1.3;
(c) Similar geometry and function exists between pre- and
postmining bluffs;
(d) The horizontal linear extent of postmining bluffs does not
exceed that of the premining condition; and
(e) Highwalls will be backfilled to the extent that the
uppermost mineable coal seam is buried in accordance with ARM
17.24.505(1).
17.24.520, thick overburden and excess spoil. Montana proposes to
change the phrase ``registered professional engineer'' to ``licensed
professional engineer.'' Montana further proposes in subparagraph
(3)(k) to delete a reference to 17.24.520(13) in addressing coal mine
wastes disposed in mine excavations. Montana further proposes to revise
at subparagraph (3)(m) the requirements for a program to return wastes
to underground workings to include the performance standards of
17.24.920, 17.24.924(1), 17.24.930, and 17.24.932(1).
17.24.522, permanent cessation of operations. Montana proposes to
delete the first two sentences of paragraph (3), which provide for
completion of backfilling and grading within 90 days after the
department determines the operation is completed, and that final pit
reclamation must be as close to the coal loading operation as technical
factors allow.
17.24.523, coal fires and coal conservation. Montana proposes to
add a second paragraph to read as follows:
(2) Strip or underground mining operation must be conducted to
prevent failure to conserve coal, utilizing the best technology
currently available to maintain appropriate environmental
protection.
The operator shall adhere to the approved coal conservation plan
required in ARM 17.24.322.
17.24.601, road and railroad facility construction requirements.
Montana proposes to change the phrase ``registered professional
engineer'' to ``licensed professional engineer.''
17.24.602, location of roads and railroad facilities. Montana
proposes to delete a requirement that the proposed locations of these
facilities be marked on site prior to pre-inspection of the proposed
operation.
17.24.603, road and railroad embankments. Montana proposes at
paragraph (4) to delete a requirement for a minimum seismic safety
factor, and revise the required minimum static safety factor from 1.5
to 1.3.
17.24.605, hydrologic impact of roads and railroads. Montana
proposes to revise the existing requirement that drainage structures
are required for stream channel crossings. The revision would allow the
use of riprap for road crossings of ephemeral streams that are too
shallow for placement of a culvert.
17.24.609, other support facilities. This rule requires that
certain support structures meet certain design and construction
requirements. Montana proposes to revise the rule to specify additional
facilities, including septic systems and sewage lagoons, fuel storage
and distribution facilities, and environmental monitoring sites.
17.24.623, blasting schedule. Montana proposes to revise paragraph
(2) to require that blasting schedules be delivered to each residence
within one-half mile of the permit area. Montana further proposes to
revise at subparagraph (5)(b) the information required in blasting
schedules, to include the township, range, and section of the specific
areas, and to delete the requirement that specific blasting areas that
are described be compact and no larger than 100 acres.
17.24.624, surface blasting requirements. Montana proposes to
revise paragraph (4) to delete the phrase ``at all points'' within the
one-half mile range for audibility of blast warnings. Montana proposes
to revise subparagraph (6)(a) to require that airblast be controlled at
any dwelling, or public, commercial, community or institutional
building, unless the structure is owned by the operator. Similarly,
Montana proposes to revise subparagraph (7)(a) to require that (unless
approved by the department), no blasting be conducted within 1,000 feet
of any dwelling or public, commercial, community or institutional
building. Montana proposes to revise paragraph (11) to specify that
peak particle velocities apply at any dwelling, or public, commercial,
community or institutional building. Montana proposes to revise
paragraph (14) to specify that the scaled-distance formula be
calculated from the blast hole nearest to a dwelling, or public,
commercial, community or institutional building, except as noted in
paragraph (12).
17.24.626, blasting records. Montana proposes to revise
subparagraph (1)(d) to require that blast records include direction and
distance, in feet, from the blast hole nearest to a dwelling or
commercial, public, community, or institutional building. Montana
proposes to revise subparagraph (1)(j) to require blast records to
contain total weight of explosives used and total weight of explosives
used in each hole.
17.24.633, water quality performance standards. Montana proposes to
revise paragraph (2) to read as follows:
(2) Sediment control through BTCA [best technology currently
available] practices must be maintained until the disturbed area has
been restored, the revegetation requirements of ARM 17.24.711,
17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721,
17.24.723 through 17.24.726, and 17.24.731 have been met, the area
meets state and federal requirements for the receiving stream, and
evidence is provided that demonstrates that the drainage basin has
been stabilized consistent with the approved postmining land use.
17.24.634, reclamation of drainage basins. Montana proposes
numerous revisions to paragraph (1); the proposed paragraph (1) reads
as follows:
(1) Reclaimed drainage basins, including valleys, channels, and
floodplains must be constructed to:
(a) Comply with the postmining topography map required by ARM
17.24.313(1)(d)(iv) and approved by the department;
(b) Approximate original contour;
(c) An appropriate geomorphic habit or characteristic pattern
consistent with 82-4-231(10)(k), MCA;
(d) [Remains the same]
(e) Provide separation of flow between adjacent drainages and
safely pass the runoff from a six-hour precipitation event with a
100-year recurrence interval, or larger event as specified by the
department;
(f) Provide for the long-term relative stability of the
landscape. The term ``relative'' refers to a condition comparable to
an unmined landscape with similar climate, topography, vegetation
and land use;
(g) Provide an average channel gradient that exhibits a concave
longitudinal profile;
(h) Establish or restore a diversity of habitats that are
consistent with the approved postmining land use, and restore,
enhance where practicable, or maintain natural riparian vegetation
as necessary to comply with ARM subchapter 7; and
(i) Exhibit dimensions and characteristics that will blend with
the undisturbed drainage system above and below the area to be
reclaimed and that will accommodate the approved revegetation and
postmining land use requirements.
Montana also proposes to revise paragraph (2) to change the phrase
``registered professional engineer'' to ``licensed professional
engineer.''
17.24.635, general requirements for diversions. Montana proposes to
revise paragraph (5) to change the phrase
[[Page 71434]]
``registered professional engineer'' to ``licensed professional
engineer.'' Montana also proposes to delete paragraphs (6) and (7).
17.24.636, special requirements for temporary diversions. Montana
proposes several revisions to existing paragraph (1), to read
(renumbered) as follows:
(1)(a) remains the same, but is renumbered (1).
(2) If channel lining is required to prevent erosion, the
channel lining must be designed using standard engineering practices
to safely pass design velocities.
(3) Freeboard must be as specified by the department, but no
less than 1.0 foot.
Montana also proposes to delete existing subparagraph (2)(a).
17.24.638, sediment control measures. Montana proposes to revise
subparagraph (2)(a) to change the specified performance standards that
must be met to minimize sediment, to include ARM 17.24.711, 17.24.713,
17.24.714, 17.24.716 through 17.24.721, and 17.24.723 through
17.24.726.
17.24.639, sediment ponds and other treatment facilities. Montana
proposes to add a new subparagraph (1)(e), to require that sediment
ponds be constructed as approved unless modified under ARM
17.24.642(7). Montana further proposes to revise paragraph (2) by
deleting the final clause of existing subparagraph (2)(a) [``except as
provided below''] and existing subparagraphs (b) through (e). Montana
proposes to revise paragraph (3) to specify that the inlet to
dewatering devises must not be below the maximum elevation of the
sediment storage volume. Montana proposes to revise subparagraph (7)(a)
to require that spillway designs assume the impoundment is at full
pool; and further to delete a provision that no spillway is required if
the sediment pond is entirely excavated. Montana proposes to revise
paragraph (10) by adding a provision allowing the department to exempt
the top-width requirement for some ponds. Montana proposes to revise
paragraph (11) to require that the side slopes of the settled
embankment must not be steeper than 3h:1v upstream and 2h:1v
downstream, unless otherwise approved by the department. Montana
proposes to revise paragraph (17) to change the phrase ``registered
professional engineer'' to ``licensed professional engineer.'' Montana
proposes to revise subparagraph (20)(a) to require that spillway
designs assume the impoundment is at full pool. Montana proposes to
revise subparagraph (22)(a) to read as follows:
(22)(a) All ponds with embankments must be designed and
inspected regularly during construction under the supervision of,
and certified after construction by, a qualified licensed
professional engineer experienced in the construction of
impoundments. After construction, inspections and certifications
must be made and reports filed with the department, pursuant to ARM
17.24.642(4). Inspection and certification reports must be submitted
until the embankments are removed.
Montana further proposes to delete subparagraph (22)(c). Montana
proposes to revise paragraph (23) to limit inspection requirements to
ponds with embankments. At newly renumbered paragraph (25), Montana
proposes to change the list of required revegetation performance
standards to include ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716
through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, and
17.24.731. At renumbered subparagraph (28)(a), Montana proposes that
excavated sediment ponds require no spillway and must be able to
contain the 10-year, 24-hour precipitation event, and conform with
paragraphs (1), (2), (4), (6), (18), (22)(a), (24) and (27). At
subparagraph (28)(b), Montana proposes to change the phrase
``registered professional engineer'' to ``licensed professional
engineer.''
17.24.642, permanent impoundments and flood control impoundments.
Montana proposes to revise paragraph (1) to read as follows:
(1) Permanent impoundments are prohibited unless constructed in
accordance with ARM 17.24.504 and 17.24.639, and have open-channel
spillways that will safely discharge runoff resulting from a 100-
year, 24-hour precipitation event, assuming the impoundment is at
full pool for spillway design, or larger event specified by the
department. The department may approve a permanent impoundment upon
the basis of a demonstration that:
Montana further proposes to delete subparagraphs (1)(g), (1)(h),
and (1)(i). At paragraph (2), Montana proposes to limit to permanent
impoundments the existing requirement that impoundments meet the
performance requirements of 17.24.639. Montana proposes to delete
paragraphs (3) through (6). Montana proposes to revise the
maintenance provisions of renumbered paragraph (3) to require that
all permanent impoundments be routinely maintained, and that ditches
and spillways must be cleaned. Montana proposes to revise the
inspection and certification provisions of renumbered paragraph (4)
to limit the requirement to permanent impoundments, change the
phrase ``registered professional engineer'' to ``licensed
professional engineer,'' and require inspection reports until phase
IV bond release. In the content requirements for inspection reports
at subparagraphs (4)(c) and (4)(d), Montana proposes to change the
phrases ``dam or embankment'' to the term ``impoundment.'' Montana
proposes to delete existing paragraphs (9) and (10). Montana
proposes new requirements to read as follows:
(5)(a) Flood control impoundments are located upstream of
disturbance areas for the purpose of preventing or controlling
flooding or discharge and are not designed for sediment control or
to be permanent.
(b) Flood control impoundments with embankments must be
constructed in accordance with (1)(f) and ARM 17.24.639(7) through
(21), and be inspected, maintained and certified according to (3),
(4)(a), (4)(d), and (6) and ARM 17.24.639(22) and (23).
(c) Excavated flood control impoundments:
(i) Must be in compliance with ARM 17.24.639(18);
(ii) Must have perimeter slopes that are stable; and
(iii) Must be protected against erosion where surface runoff
enters the impoundment area.
(d) An initial pond certification report and inspections must be
made for excavated flood control impoundments in accordance with ARM
17.24.639(28)(b). If the volume of the flood control impoundment is
used in determination of required volume for a downstream pond,
annual certification reports are required in accordance with (4)(a),
(4)(c), and (4)(d).
(e) Prior to construction, flood control impoundments must be
approved by the department.
(6) Permanent impoundments and flood control impoundments with
embankments meeting the size or other criteria of 30 CFR 77.216(a)
or the Class B or C criteria for dams in TR-60 [Technical Release
60] must be routinely inspected by a qualified licensed professional
engineer or by someone under the supervision of a qualified licensed
professional engineer, in accordance with 30 CFR 77.216-3.
(7) Plans for any enlargement, reduction in size,
reconstruction, or other modifications of permanent impoundments and
flood control impoundments must be submitted to the department and
must comply with the requirements of this subchapter. Except where a
modification is required to eliminate an emergency condition
constituting a hazard to public health, safety, or the environment,
the modification must not be initiated until the department approves
the plans.
17.24.645, ground water monitoring. Montana proposes to revise
paragraph (1) by deleting ``infiltration rates'' from the required
parameters, and adding that the monitoring must be based on the
monitoring program under 17.24.314, and changing the phrase ``in the
mine plan and adjacent areas'' to ``in the permit and adjacent areas.''
In paragraph (3), Montana proposes to revise the allowance for
additional ``hydrologic tests'' to additional ``observations and
analyses.'' At paragraph (6), Montana proposes to update the citations
of water sampling guidelines and the department's address where the
guidelines may be obtained.
17.24.646, surface water monitoring. Montana proposes to revise
paragraph
[[Page 71435]]
(1) to require that the monitoring be based on the information
submitted under 17.24.304. At paragraph (4), Montana proposes that data
from post-grading monitoring must be used to determine whether runoff
meets requirements, that those data must be used by the department to
review requests for water treatment systems; also, other information
may be used for those purposes with departmental approval. At paragraph
(6), Montana proposes to update the citations of water sampling
guidelines and the department's address where the guidelines may be
obtained.
17.24.701, removal of soil. Montana proposes to delete existing
paragraph (3), and add a new paragraph (4) providing that soil removal
is not required for minor disturbances which occur at the site of small
structures such as power poles, signs or fences or where operations
will not destroy vegetation and cause erosion.
17.24.702, redistribution and stockpiling of soil. Montana proposes
to revise paragraph (4) to include requirements for the distribution of
soil substitutes, and too revise subparagraph (4)(b) to provide that
the department may grant exemptions from the requirement to scarify
spoil materials, and provide that if no adverse effects to the
redistributed material or postmining land use will occur, such
treatments may be conducted after the soil or soil substitute is
replaced. At paragraph (6), Montana proposes to delete a requirement
that soil replacement be done on the contour whenever possible.
17.24.703, soil substitutes. Montana proposes that one requirement
for soil substitutes is that the medium must be the best available in
the permit area to support revegetation.
17.24.711, establishment of vegetation. Montana proposes extensive
revisions, to read as follows:
(1) Vegetation must be reestablished in accordance with 82-4-
233(1), (2), (3), and (5), MCA, as follows:
(a) Sections 82-4-233(1), (2), and (3), MCA, state: ``(1) The
operator shall establish on regraded areas and on all other
disturbed areas, except water areas, surface areas of roads, and
other constructed features approved as part of the postmining land
use, a vegetative cover that is in accordance with the approved
permit and reclamation plan and that is:
``(a) diverse, effective, and permanent;
``(b) composed of species native to the area or of introduced
species when desirable and necessary to achieve the postmining land
use and when approved by the department;
``(c) at least equal in extent of cover to the natural
vegetation of the area; and
``(d) capable of stabilizing the soil surface in order to
control erosion to the extent appropriate for the approved
postmining land use.
``(2) The reestablished plant species must:
``(a) be compatible with the approved postmining land use;
``(b) have the same seasonal growth characteristics as the
original vegetation;
``(c) be capable of self-regeneration and plant succession;
``(d) be compatible with the plant and animal species of the
area; and
``(e) meet the requirements of applicable seed, poisonous and
noxious plant, and introduced species laws or regulations.
``(3) Reestablished vegetation must be appropriate to the
postmining land use so that when the postmining land use is:
``(a) cropland, the requirements of subsections (1)(a), (1)(c),
(2)(b), and (2)(c) are not applicable;
``(b) pastureland or grazing land, reestablished vegetation must
have use for grazing by domestic livestock at least comparable to
premining conditions or enhanced when practicable;
``(c) fish and wildlife habitat, forestry, or recreation, trees
and shrubs must be planted to achieve appropriate stocking rates.''
(b) Section 82-4-233(5), MCA, states: ``For land that was mined,
disturbed, or redisturbed after May 2, 1978, and that was seeded
prior to January 1, 1984, using a seed mix that was approved by the
department and on which the reclaimed vegetation otherwise meets the
requirements of subsections (1) and (2) and applicable state and
federal seed and vegetation laws and rules, introduced species are
considered desirable and necessary to achieve the postmining land
use and may compose a major or dominant component of the reclaimed
vegetation.''
(2) For areas designated prime farmland, the requirements of ARM
17.24.811 and 17.24.815 must be met.
(3) The department shall determine cover, planting, and stocking
specifications either on a programmatic basis or for each operation
based on local and regional conditions after consultation with and
approval by:
(a) [remains the same]
(b) the department of natural resources and conservation for
reclamation to land uses involving forestry.
17.24.714, soil stabilization. Montana proposes to revise this rule
to read as follows:
(1) Such practices as seedbed preparation, mulching, or cover
cropping must be used on all regraded and resoiled areas to control
erosion, to promote germination of seeds, and to increase the
moisture retention of the soil until an adequate, permanent cover is
established. This requirement may be suspended if the operator
demonstrates to the department's satisfaction that it is not needed
to control air or water pollution and erosion.
17.24.716, method of revegetation. Montana proposes to revise
paragraph (1) by changing the phrase ``manner that encourages a prompt
vegetative cover and recovery of productivity levels'' to ``manner that
encourages prompt vegetation establishment.'' At paragraph (3), Montana
proposes to delete a requirement that the operator shall utilize seed
and seedlings genotypically adapted to the area when available in
sufficient quality and quantity. Montana proposes to revise paragraph
(4) by deleting a requirement that the department approve specific weed
control plans. Montana also proposes to delete existing paragraph (5),
addressing the use of introduced species.
17.24.717, planting of trees and shrubs. Montana proposes several
revisions, to read as follows:
(1) Tree or shrub species necessary to meet the approved
postmining land use must be adapted for local site conditions and
climate. Trees and shrubs must be planted in combination with
herbaceous species as necessary to achieve the postmining land use
and as approved by the department. If necessary to increase tree and
shrub survival, seeding of the herbaceous species may be delayed
providing that measures are taken to control air and water pollution
and erosion.
17.24.718, soil amendments and management practices. Montana
proposes to revise paragraph (2) and add a new paragraph (3) to read as
follows:
(2) An operator may use only normal husbandry practices to
ensure the establishment of vegetation consistent with the approved
reclamation plan.
(3) Reclamation land use practices including, but not limited
to, grazing, haying, or chemical applications, may not be conducted
in a manner or at a time that interferes with establishment and/or
persistence of seeded and planted grasses, forbs, shrubs, and trees
or with other reclamation requirements.
17.24.719, livestock grazing. Montana proposes to delete this rule.
17.24.720, annual inspections of revegetated areas. Montana
proposes to delete this rule.
17.24.723, reclamation monitoring. Montana proposes to revise
paragraph (1) to require monitoring under plans submitted under ARM
17.24.312(1)(d) and 17.24.313(1)(f)(iv) and (1)(g)(ix) and the approved
postmining land use as approved by the department. Paragraph (2) is
proposed to be revised by adding that monitoring is to demonstrate
compliance with other State and Federal laws, in addition to Montana's
equivalent of SMCRA. Montana proposes to revise paragraph (3) to delete
the requirement that corrective actions be proposed to and approved by
the department, but also to require the operator to implement measures
to comply with permit requirements. Montana also proposes to delete
paragraph (5), which referred the reader
[[Page 71436]]
to ARM 17.24.645, 17.24.646, and 17.24.1129.
17.24.724, revegetation success criteria. Montana proposed
extensive revision to this rule, to read as follows:
(1) Success of revegetation must be determined by comparison
with unmined reference areas or by comparison with technical
standards. Reference areas and standards must be representative of
vegetation and related site characteristics occurring on lands
exhibiting good ecological integrity. The department must approve
the reference areas, technical standards, and methods of comparison.
(2) Reference areas are parcels of land chosen for comparison to
revegetated areas. A reference area is not required for vegetation
parameters with approved technical standards. Reference areas must
be in a condition that does not invalidate or preclude comparison to
revegetated areas and the operator must:
(a) Have legal right to control the management of all approved
reference areas; and
(b) Manage reference areas in a manner that is comparable to the
management of the revegetated areas and in accordance with the
approved postmining land use.
(3) Technical standards may be derived from:
(a) Historical data generated for a sufficient time period to
encompass the range in climatic variations typical of the premine or
other appropriate area; or
(b) Data generated from revegetated areas that are compared to
historical data representing the range of climatic conditions
comparable to those conditions existing at the time revegetated
areas are sampled; or
(c) U.S. department of agriculture, U.S. department of the
interior, or other publications or sources relevant to the area and
land use of interest and approved by the department.
17.24.725, period of responsibility. Montana proposes to revise
paragraph (1) so that the responsibility period begins after any
activity related to phase III (rather than final) reclamation.
17.24.726, vegetation measurements. Montana proposes to revise this
rule extensively, to read as follows:
(1) Standard and consistent field and laboratory methods must be
used to obtain and evaluate vegetation data consistent with 82-4-233
and 82-4-235, MCA, and to compare revegetated area data with
reference area data and/or with technical standards. Specific field
and laboratory methods used and schedules of assessments must be
detailed in a plan of study and be approved by the department.
Sample adequacy must be demonstrated. In addition to these and other
requirements described in this rule, the department shall supply
guidelines regarding acceptable field and laboratory methods.
(2) Production, cover, and density shall be considered equal to
the approved success standard when they are equal to or greater than
90% of the standard with 90% statistical confidence, using an
appropriate (parametric or non-parametric) one-tail test with a 10%
alpha error.
(3) The revegetated areas must meet the performance standards in
(1) and (2) for at least two of the last four years of the phase III
bond period. Pursuant to ARM 17.24.1113, the department shall
evaluate the vegetation at the time of the bond release inspection
for phase III to confirm the findings of the quantitative data.
(existing 9) remains the same, but is renumbered (4).
17.24.728, composition of vegetation. Montana proposes to delete
this rule.
17.24.730, season of use. Montana proposes to delete this rule.
17.24.732, vegetation requirements for previously cropped areas.
Montana proposes to delete this rule.
17.24.733, measurement standards for trees and shrubs. Montana
proposes to delete this rule.
17.24.751, fish and wildlife. Montana proposes to revise paragraph
(1) by adding a requirement for the operator to report any bald or
golden eagle roost site, seasonal concentration area, or breeding
territory; and also by adding a requirement that protective measures
required by the U.S. Fish & Wildlife Service must be implemented when
determined by the department in consultation with the U.S. Fish &
Wildlife Service. Montana proposes to revise subparagraph (2)(a) by
requiring that all powerlines be constructed in accordance with
``Suggested Practices for Raptor Protection on Power Lines: The State
of the Art in 1996 (Avian Power Line Interaction Committee, 1996)'';
and further by deleting a requirement that distribution lines must be
designed and constructed in accordance with ``REA Bulletin 61-10,
Powerline Contacts by Eagles and Other Large Birds,'' or in alternative
guidance manuals approved by the department. Montana proposes to revise
subparagraph (2)(c) to require operators to design and construct
fences, overland conveyers, and other potential structures to permit
passage of large mammals, except where the department determines that
such requirements are unnecessary. Montana proposes to revise
subparagraph (2)(e) to delete a requirement that that reclamation
provide habitat in an equal or greater capacity than was provided prior
to mining, and replace it with a requirement to provide habitat in
accordance with the approved postmining land use; a requirement for
inanimate habitat features is proposed to be revised by citing 82-4-
231(10)(j) and 82-4-232(9), MCA; and a requirement that vegetative
cover may not be less than that required by the approved postmining
land use is proposed for deletion. Montana proposes to revise
subparagraph (2)(f) to add the requirements of 82-4-231(10)(j), 82-4-
232(9) for wetlands, riparian vegetation along rivers and streams and
bordering ponds and lakes. Montana proposes to delete subparagraphs
(2)(g), (2)(i), and (2)(j).
17.24.761, air resources protection. Montana proposes to delete
most of this rule, leaving only existing paragraph (4) (renumbered as
paragraph (2)) and, in paragraph (1), the requirement that operators
employ fugitive dust controls in accordance with 82-4-231(10)(m), MCA,
the operator's air quality permit.
17.24.762, postmining land use. Montana proposes to largely revise
this rule, to read as follows:
(1) The postmining land use must satisfy 82-4-203(28) and 82-4-
232(7), MCA. In applying 82-4-232(7), MCA, the following principles
apply:
(a) The premining uses of the land to which the postmining land
use is compared are those that the land previously supported or
could have supported if the land had not been mined and had been
properly managed.
(b) The postmining land use for land that has been previously
mined and not reclaimed must be judged on the basis of the land use
that existed prior to any mining. If the land cannot be reclaimed to
the use that existed prior to any mining because of the previously
mined condition, the postmining land use must be judged on the basis
of the highest and best use that can be achieved and is compatible
with surrounding areas.
(c) The postmining land use for land that has received improper
management must be judged on the basis of the premining use of
surrounding lands that have received proper management.
(d) If the premining use of the land was changed within five
years of the beginning of mining, the comparison of postmining use
to premining use must include a comparison with the use of the land
prior to the change as well as its uses immediately preceding
mining.
(2) Alternative postmining land uses may be proposed and must be
determined in accordance with 82-4-232(7) and (8), MCA, and ARM
17.24.821 and 17.24.823.
(3) Certain premining facilities may be replaced pursuant to 82-
4-232(10), MCA.
17.24.764, cropland reclamation. Montana proposes to add this new
rule, to read as follows:
17.24.764 CROPLAND RECLAMATION (1) The department may not
approve a postmining land use of cropland unless the following
criteria are met:
(a) Prior to mining, all soils within the proposed cropland
reclamation area must have been at least capability class IV, based
on U.S. natural resources conservation service criteria;
(b) Soils proposed for use must have the following properties:
(i) Loamy texture, as defined by the U.S. soil conservation
service in the Soil Survey
[[Page 71437]]
Manual, chapter 4 as revised May, 1981, pp. 4-56 and 4-57;
(ii) Rock fragment (gravels, cobbles, and channers only)
contents less than 20% in the first lift and less than 35% in the
second lift;
(iii) After materials are replaced, no greater than moderate
wind and water erosion hazards as determined by U.S. natural
resources conservation service procedures; and
(iv) Levels of electrical conductivity, sodium adsorption ratio,
and plant available water-holding capacity meeting the criteria for
class III soils according to the ``Land Capability Guide for
Montana, U.S. Soil Conservation Service, June 1988'', which is
incorporated by reference into this rule. A copy of this document
may be obtained from the Natural Resources Conservation Service, 10
E. Babcock St., Bozeman, MT 59715;
(c) Soil materials must be capable of selection and handling in
such a way, and redistribution to such a thickness, and the
underlying regraded spoil properties must be of sufficient quality,
that the postmining productivity of the root zone will be sufficient
to support cropland as the postmining land use;
(d) Slope gradients must not exceed 8%;
(e) The area must receive a minimum of 12 inches average annual
precipitation, or there must be sufficient irrigation water
available and committed to maintain crop production;
(f) The area must not be subject to flooding that would impair
its suitability as cropland due to flood effects including, but not
limited to, erosion, siltation, and inundation;
(g) The area must have a minimum of 90 frost-free days per year;
and
(h) The department must determine that:
(i) Saline seep on the proposed cropland area will not occur;
and
(ii) The reclaimed area will not function as a saline seep
recharge area for lands down-gradient.
(2) The operator shall comply with the following requirements in
reclaiming to cropland:
(a)(i) Soil materials must be selected and handled in such a way
and redistributed to such a thickness, and the underlying regraded
spoil properties must be of sufficient quality such that the
postmining productivity of the root zone will be sufficient to
support cropland as the postmining land use.
(ii) The following minimum requirements must be met:
(A) Soils must be replaced to a minimum thickness of 24 inches;
and
(B) The root zone thickness must be consistent with the
requirements of ARM 17.24.501(2);
(b) If necessary to protect replaced soil materials from wind
and water erosion, or if necessary to enhance soil productivity,
stability or the capacity for root penetration, a grass-legume
mixture must be planted and maintained as determined by the
department; and
(c) Soil amendments must be added in accordance with ARM
17.24.718.
17.24.815, prime farmland revegetation. Montana proposes to create
a new subparagraph (1)(a) to require that if the approved postmining
land use is not cropland, either (1) test plots must be cropped to
demonstrate restoration of productivity; the rest of the area, and the
test plots after productivity demonstration, must be revegetated in
accordance with the standards of ARM 17.24.711, 17.24.713, 17.24.714,
17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726,
and 17.24.731 and with the approved postmining land use; or (2), the
entire disturbed area might be cropped until productivity
demonstration, after which the entire area must be revegetated as
above. Montana also proposes a new subparagraph (1)(b) to provide that
if the approved postmining land use is cropland, that the area be
permanently reclaimed to cropland.
17.24.821. Montana proposes to change the title of this rule from
``Alternate Reclamation'' to ``Alternative Postmining Land Uses:
Submission of Plan.'' The body of the rule is proposed to be revised
extensively, to read:
(1) An operator may propose to the department a plan for a
higher or better use as an alternative postmining land use pursuant
to 82-4-232(7) and (8), MCA. With appropriate maps, narrative, and
other materials, the plan must:
(a) describe the nature of the alternative postmining land use;
(b) address all of the criteria in 82-4-232(8) and (9), MCA; and
(c) address the applicable requirements of ARM 17.24.823(1).
(2) Each application for alternative postmining land use is
subject to public review requirements of subchapter 4 either as part
of a new application or as an application for a major revision.
However, in its notice of application to government entities
pursuant to ARM 17.24.401, the department shall allow 60 days for
submission of comments from authorities having jurisdiction over
land use policies and plans, and from appropriate state and federal
fish and wildlife agencies.
17.24.823. Montana proposes to change the title of this rule from
``Alternate Reclamation: Approval Of Plan And Review Of Operation'' to
``Alternative Postmining Land Uses: Approval of Plan.'' The body of the
rule is proposed to be revised extensively, to read:
(1) The department may approve a proposed alternative postmining
land use if all of the following criteria are met:
(a) the requirements of 82-4-232(8) and (9), MCA;
(b) the proposed postmining land use is compatible, where
applicable, with existing local, state or federal land use policies
or plans relating to the permit area. Demonstration of compatibility
with land use policies and plans must include, but is not limited
to:
(i) written statement of the authorities with statutory
responsibilities for land use policies and plans submitted pursuant
to ARM 17.24.821(2); and
(ii) as applicable, obtaining any required approval, including
any necessary zoning or other changes required for land use by
local, state or federal land management agencies. This approval must
remain valid throughout the strip or underground mining operations;
(c) specific plans are submitted to the department that show the
feasibility of the postmining land use as related to projected land
use trends and markets and that include a schedule showing how the
proposed use will be financed, developed, and achieved within a
reasonable time after mining and how it will be sustained. These
plans must be supported, if appropriate, by letters of commitment
from parties other than the operator;
(d) as applicable, provision of any necessary public facilities
is ensured as evidenced by letters of commitment from parties other
than the operator as appropriate, to provide the public facilities
in a manner compatible with the plans submitted;
(e) plans for the postmining land use are designed under the
general supervision of a licensed professional engineer, or other
appropriate professional, to ensure that the plans conform to
applicable accepted standards for adequate land stability, drainage,
and aesthetic design appropriate for the postmining use of the site;
(f) the use will not involve unreasonable delays in reclamation;
and
(g) appropriate measures submitted by state and federal fish and
wildlife management agencies to prevent or mitigate adverse effects
on fish, wildlife, and related environmental values and threatened
or endangered plants have been incorporated into the plan.
17.24.824, alternate reclamation; alternative postmining land uses.
Montana proposes to delete this rule.
17.24.825, alternate reclamation; alternative revegetation. Montana
proposes to delete this rule.
17.24.826, alternate reclamation; period of responsibility for
alternate revegetation. Montana proposes to delete this rule.
17.24.832, auger mining performance standards. Montana proposes to
revise paragraph (4) by deleting the existing contemporaneous
reclamation standard and replacing it with a cross-reference to the
requirements of 17.24.501(6)(c). Montana also proposes to add a new
subparagraph (5)(b) to require that each auger hole discharging water
not containing acid- or toxic-forming materials must be sealed with an
impervious noncombustible material, as contemporaneously as practicable
with the augering operation, as approved by the department. And Montana
proposes to revise subparagraph (5)(c) to change the requirement for
auger holes not discharging water to be sealed within 30 days to ``as
contemporaneously as
[[Page 71438]]
practicable with the augering operation.''
17.24.903, underground mining, general performance standards.
Montana proposes to add a new paragraph (2) to require that adversely
affected water supplies must be replaced in accordance with 82-4-243
and 82-4-253, MCA, and ARM 17.24.648.
17.24.911, subsidence control. Montana proposes to delete
subparagraph (7)(d), which required replacement of any adversely
affected domestic water supply.
17.24.924, disposal of underground development waste, general
requirements. At subparagraphs (4)(a), (18)(a), and (18)(d), Montana
proposes to change the phrase ``registered professional engineer'' to
``licensed professional engineer.'' At paragraph (9), Montana proposes
to revise the list of revegetation performance standards, to include
ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718,
17.24.721, 17.24.723 through 17.24.726, and 17.24.731.
17.24.927, disposal of underground development waste, durable rock
fills. In paragraphs (1) and (2), Montana proposes to change the phrase
``registered professional engineer'' to ``licensed professional
engineer.''
17.24.930, placement and disposal of coal processing waste: special
application requirements. At subparagraph (2)(a)(i), Montana proposes
to change the phrase ``registered professional engineer'' to ``licensed
professional engineer.''
17.24.932, disposal of coal processing waste. At subparagraph
(5)(a), Montana proposes to change the phrase ``registered professional
engineer'' to ``licensed professional engineer.''
17.24.1001, prospecting permit requirement. At subparagraph (1)(b),
Montana proposes to add a requirement for a prospecting permit if
conducted on an area designated unsuitable for strip or underground
coal mining pursuant to ARM 17.24.1131. Montana also proposes to add a
new subparagraph (2)(d), to read as follows:
(d) For any lands protected under 82-4-227(13), MCA, or ARM
17.24.1131, a demonstration that, to the extent technologically and
economically feasible, the proposed prospecting activities will
minimize interference with the values for which those lands were
designated. The application must include documentation of
consultation with the owner of the feature causing the land to come
under the designation, and, when applicable, with the agency with
primary jurisdiction over the feature with respect to the values
that caused the land to be so designated;
Montana further proposes to add a new subparagraph (1)(q), to
require a public notice and proof of publication in accordance with
17.24.303(23), and providing that the procedures of 17.24.401(3) and
(5), 17.24.402, and 17.24.403 must be followed. Montana further
proposes several new provisions, to read as follows:
(6) The department may not approve a prospecting permit
application unless the application affirmatively demonstrates and
the department finds in writing, on the basis of information set
forth in the application or information otherwise available that is
compiled by the department, that:
(a) The application is complete and accurate and that the
prospecting and reclamation will be conducted in accordance with all
applicable requirements of this subchapter;
(b) The proposed prospecting operation will not jeopardize the
continued existence of endangered or threatened species or result in
destruction or adverse modifications of their critical habitats;
(c) The application complies with applicable federal and state
cultural resource requirements, including ARM 17.24.318, 17.24.1131
and 17.24.1137; and
(d) The proposed prospecting activities will meet the
requirements of (2)(d) and that the owner of the feature causing any
land to come under a protected designation, pursuant to 82-4-
227(13), MCA, or ARM 17.24.1131, and, when applicable, with the
agency with primary jurisdiction over the feature with respect to
the values that caused the land to be so designated, have been
provided the opportunity to comment on the department's finding on
this matter.
(7) Prospecting related activities or facilities that are
conducted or created in accordance with this rule and ARM 17.24.1002
through 17.24.1014 and 17.24.1016 through 17.24.1018 must be
transferred to a valid strip or underground mining permit whenever
such activities or facilities become part of mine operations in
conjunction with ARM 17.24.308(2) or 17.24.609.
17.24.1003, renewal and transfer of permits. Montana proposes only
to revise the title of this rule by adding the words ``and transfer.''
17.24.1018, notice of intent to prospect. Montana proposes to
revise this rule by deleting existing subparagraph (1)(b)(i), which
provides for a notice of intent if the purpose of the prospecting is
not to determine the location, quality or quantity of a natural mineral
deposit. Montana also proposes to add a new paragraph (2), to provide
for a notice of intent if the prospecting is to gather environmental
data. Montana also proposes to revise paragraph (9) to require that ARM
17.24.1001(2)(k) and (q) are applicable to notices of intent.
17.24.1104, bonding, adjustment of amount. Montana proposes to
revise paragraph (1) to change bond ``adjustments'' to ``bond
increases'' and ``area revised'' or ``work changes'' to ``increases.''
Montana proposes to revise paragraph (3) to limit bond adjustments for
``other circumstances'' to those not related to the completion of
reclamation work, and to provide that bond reductions involving
disturbed land previously released from reclamation liability in
accordance with ARM 17.24.1111 through 17.24.1115 and 17.24.1116(6) are
not considered bond releases subject to 17.24.1111.
17.24.1106, bonding: terms and conditions of bond. Montana proposes
to delete existing paragraph (1), which provides that the department
may not accept surety bonds in excess of 10% of the surety company's
capital surplus account as shown on a balance sheet certified by a
certified public accountant. Montana also proposes to add a new
subparagraph (1)(b) providing that the department may not accept surety
bonds from a surety company that is not listed in the U.S. Department
of the Treasury's listing of approved sureties (Circular 570).
17.24.1108, bonding, certificates of deposit. Montana proposes to
revise paragraph (1) to allow additional institutions to determine the
maximum insurable amount. Montana also proposes to revise paragraph (2)
to limit automatically renewable certificates of deposit to banks
insured by the FDIC or credit unions insured by the national credit
union administration.
17.24.1109, bonding, letters of credit. Montana proposes to revise
subparagraph (1)(d), and add new subparagraphs (1)(e) through (1)(g),
to read as follows:
(d) The letter must not be for an amount in excess of 10% of the
bank's capital surplus account as shown on a balance sheet certified
by a certified public accountant for the most recent annual
reporting period.
(e) Using the balance sheet referenced in (1)(d) and a certified
income and revenue sheet, the bank must meet the three following
criteria:
(i) The bank must be earning at least a 1% return on total
assets (net income/total assets = 0.01 or more);
(ii) The bank must be earning at least a 10% return on equity
(net income/total stockholders equity = 0.1 or more); and
(iii) Capital or stockholders' equity must be at least 5.5% of
total assets ((total stockholders equity [shareholders equity +
capital surplus + retained earnings])/total assets = 0.055 or more).
(f) Under a general financial health category, from either
Sheshunoff Information Services, Moody's (Mergent Ratings Service)
or Standard and Poor's, the bank must have a b+ or better rating for
the current and previous two quarters.
[[Page 71439]]
(g) The bank's qualifications must be reviewed yearly prior to
the time the letter of credit is renewed.
17.24.1116, bonding, criteria and schedule for release. Montana
proposes to delete paragraph (6), which addresses alternate
reclamation. Montana also proposes to revise subparagraphs (6)(b)
through (6)(d), and to add a new paragraph (7), to read as follows:
(b) Reclamation phase II is deemed to have been completed when:
(i) [remains the same].
(ii) At least two growing seasons (spring and summer for two
consecutive years) have elapsed since seeding or planting of the
affected area;
(iii) Vegetation is establishing that is consistent with the
species composition, cover, production, density, diversity, and
effectiveness required by the revegetation criteria in ARM
17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718,
17.24.721, 17.24.723 through 17.24.726, 17.24.731 and 17.24.815 and
the approved postmining land use;
(iii) through (v) remain the same, but are renumbered (iv) through
(vi).
(c) Reclamation phase III is deemed to have been completed when:
(i) The applicable responsibility period (which commences with
the completion of any reclamation treatments as defined in ARM
17.24.725) has expired and the revegetation criteria in ARM
17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718,
17.24.721, 17.24.723 through 17.24.726, 17.24.731 and 17.24.815, as
applicable to and consistent with the approved postmining land use
are met;
(ii) A stable landscape has been established consistent with the
approved postmining land use;
(iii) The lands are not contributing suspended solids to stream
flow or runoff outside the permit area in excess of the requirements
of ARM 17.24.633 or the permit; and
(iv) As applicable, the provisions of a plan approved by the
department for the sound future management of any permanent
impoundment by the permittee or landowner have been implemented to
the satisfaction of the department; or
(v) The lands meet the special conditions provided in 82-4-
235(3)(a), MCA;
(d) Reclamation phase IV is deemed to have been completed when:
(i) All disturbed lands within any designated drainage basin
have been reclaimed in accordance with the phase I, II, and III
requirements;
(ii) through (v) [remain the same].
(vi) Implementation of any alternative land use plan approved
pursuant to ARM 17.24.821 and 17.24.823 has been successfully
achieved; and
(vii) [remains the same].
(7) Information from annual reports and monitoring data,
generated pursuant to ARM 17.24.645, 17.24.646, 17.24.723, and
17.24.1129, and from department inspection reports may be used or
referenced to support applications for bond release.
17.24.1125, liability insurance. Montana proposes to revise
paragraph (2) to require that liability insurance policies must be
maintained in full force until final bond release on the permit area.
17.24.1129, annual report. Montana proposes to revise subparagraph
(2)(e) to require to be included in annual reports any vegetation
monitoring data and analyses pursuant to 17.24.723. Montana also
proposes to revise paragraph (3) to clarify that only maps containing
information listed in ARM 17.24.305(1) must be certified in accordance
with ARM 17.24.305.
17.24.1131, protection of parks, historic sites, and other lands.
Montana proposes to revise this rule to clarify that it applies to
lands protected under paragraph (13) of 82-4-227, MCA.
17.24.1132, lands where mining is prohibited. Montana proposes to
revise subparagraph (1)(a) to define ``valid existing rights'' to have
the same definition as the definition of the term contained in 30 CFR
761.5 (2003), which is incorporated by reference into the rule.
17.24.1133, lands where mining is prohibited, procedures. Montana
proposes to revise paragraph (2), add new subparagraphs (2)(a) and
(2)(b) and new paragraph (3), to read as follows:
(2) Whenever a proposed operation would be located on any lands
listed in 82-4-227(7) or (13), MCA, (except for proximity to public
roads) or ARM 17.24.1131, the department shall reject the
application unless:
(a) The applicant has valid existing rights for the proposed
permit area; or
(b) The operation existed when the land came under the
protection of 82-4-227(7) or (13), MCA, (except the proximity of
public roads) or ARM 17.24.1131. This exception applies only to land
within the permit area as it exists when the land comes under this
protection.
(3) Procedures for submitting requests and for determining valid
existing rights must be conducted in accordance with 30 CFR 761.16
(2003), which is incorporated into this rule by this reference.
Copies of 30 CFR 761.16 may be obtained from the department at its
Helena office.
17.24.1201, inspections. Montana proposes several revisions to this
rule, to read as follows:
(1) The department shall conduct an average of at least one
partial inspection per month of each active mining operation and
such partial inspections of each inactive mining operation as are
necessary to enforce the Act, the rules adopted under the Act and
the permit, at least one complete inspection per calendar quarter of
each active and inactive mining operation, and such periodic partial
or complete inspections of prospecting operations as are necessary
to enforce the Act, the rules adopted pursuant thereto, and the
permit.
(2) A partial inspection is an on-site or aerial observation of
the operator's compliance with some of the mining or prospecting
permit conditions and requirements. Aerial inspections shall be
conducted in a manner and at a time that reasonably ensure the
identification and documentation of conditions at each operation in
relation to permit conditions and requirements.
(3) A complete inspection is an on-site observation of the
operator's compliance with all of the mining or prospecting permit
conditions and requirements within the entire area disturbed or
affected by the operation.
(4) Inspections must occur without prior notice to the
permittee, except for necessary on-site meetings, be conducted on an
irregular basis, and be scheduled to detect violations on nights,
weekends, and holidays.
17.24.1202. Montana proposes revisions to both the title and body
of this rule, to read as follows:
17.24.1202 CONSEQUENCES OF INSPECTIONS AND COMPLIANCE REVIEWS
(1) Inspectors shall examine mining and reclamation activities
and promptly file with the department inspection reports adequate to
determine whether violations exist.
(2) If it is determined on the basis of an inspection that the
permittee is, or any condition or practice exists, in violation of
any requirement of this part or any permit condition required by
this part, the director or an authorized representative shall
promptly issue a notice of noncompliance or order of cessation for
the operation or the portion of the operation relevant to the
condition, practice, or violation in accordance with 82-4-251, MCA,
and this subchapter.
(3) The department may order changes in mining and reclamation
plans as are necessary to ensure compliance with the Act and the
rules adopted pursuant thereto.
(4) If on the basis of field inspection or review of records or
reports the department determines that reclamation is unsuccessful
in terms of the Act, the rules adopted pursuant thereto or permit
conditions or requirements, the department shall order the operator
to immediately investigate and determine the cause. The operator
shall subsequently submit an investigative report along with a
prescribed course of corrective action, so that alternatives can be
employed to promptly ensure compliance with the Act, the rules
adopted pursuant thereto, and the permit.
17.24.1206, enforcement. Montana proposes to revise paragraph (4)
to delete a provision that if a notice of noncompliance or cessation
order does not require any abatement, terminations of abatement need
not be issued. Montana proposes to revise subparagraph (5)(d) to
clarify that requests for abatement extensions beyond 90 days must be
submitted to the board of environmental review, and that hearings must
be a contested case
[[Page 71440]]
hearings in accordance with 82-4-206, MCA.
17.24.1211, civil penalties. Montana proposes to revise paragraph
(2) to clarify that to contest the fact of violation or the amount of
penalty, requests for hearings must be submitted to the board of
environmental review, and that hearings must be a contested case
hearings in accordance with 82-4-206, MCA.
17.24.1212, civil penalty point system. Montana proposes to revise
paragraph (4) to clarify that the hearings specified are those
requested under 82-4-254(3), MCA.
17.24.1219, individual civil penalties, procedures. Montana
proposes to revise paragraph (2) to reduce the time for an assessment
to become final from 30 days to 20 days, and decreases the length of
time allowed for an individual to request a hearing from 30 days to 20
days; also, Montana proposes that a request for hearing is a hearing
under 82-4-254(3), MCA. Montana proposes to revise paragraph (4) to
provide that the hearing on the individual civil penalty must be a
contested case hearing conducted in accordance with 82-4-206(2), MCA.
17.24.1226, small operator assistance, qualifications of providers.
Montana proposes to revise subparagraph (2)(a)(vi) to require providers
to be capable of meeting the applicable standards and methods contained
in ARM 17.24.645 and 17.24.646.
17.24.1263, suspension or revocation of blasters license. Montana
proposes to revise paragraph (3) to clarify that blasters have a right
to request a contested case hearing before the board of environmental
review.
17.24.1302, revision of permits. Montana proposes many revisions to
this rule, to read as follows:
(1) Within one year of October 22, 2004, each operator and each
test pit prospector shall submit to the department an application
for all permit revisions necessary to bring the permit and
operations conducted thereunder into compliance with subchapters 3
through 12 as they read on October 22, 2004.
(2) A permit revision application submitted solely for purposes
of (1) is a minor revision for purposes of subchapter 4.
(3) No permittee may continue to mine or reclaim under an
operating permit after the midterm (date that is two and one-half
years after permit issuance or renewal) of the permit or the permit
renewal date, whichever occurs later, unless the permit has been
revised to comply with subchapters 3 through 12, as amended on
October 22, 2004.
In addition to the proposed revisions described above, Montana
proposed numerous editorial revisions and codification changes
necessitated by additions or deletions of provisions.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Montana program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your comments should be specific, pertain only to the
issues proposed in this rulemaking, and include explanations in support
of your recommendations. We will not consider or respond to your
written comments when developing the final rule if they are received
after the close of the comment period (see DATES). We will make every
attempt to log all comments into the administrative record, but
comments delivered to an address other than the Casper Field Office may
not be logged in.
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: SATS No. MT-025-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. In the final rulemaking, we will not consider or
include in the administrative record any electronic comments received
after the time indicated under DATES or at e-addresses other than the
Casper Field Office.
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.s.t. on
December 14, 2005. 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 given an opportunity to be 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 regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of
[[Page 71441]]
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 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.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal Government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State regulatory programs and amendments
thereof are categorically excluded from compliance with the National
Environmental Policy Act (42 U.S.C. 4321 et seq.) by the Manual of the
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2) of the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 27, 2005.
James F. Fulton,
Acting Regional Director, Western Region.
[FR Doc. 05-23396 Filed 11-28-05; 8:45 am]
BILLING CODE 4310-05-P