Part 926, Montana
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Subchapter T Part 926, Montana |
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SUBCHAPTER T -- PROGRAMS FOR THE CONDUCT OF SURFACE MINING OPERATIONS WITHIN
EACH STATE
PART 926 -- MONTANA
Sec.
926.10 State program approval
926.15 Approval of Montana regulatory program amendments
926.16 Required program amendments
926.20 Approval of Montana abandoned mine land reclamation plan
926.25 Approval of Montana abandoned mine land reclamation plan amendments
926.30 State-Federal cooperative agreement
AUTHORITY: 30 U.S.C. 1201 et seq.
[For the list of Final Rules affecting these sections, as published in the Federal Register, see
"Regulation History - Changes to the Regulations Parts 900-955, 3/13/79 - 6/30/00".]
30 CFR Sec. 926.10 State regulatory program approval.
The Montana permanent program submitted on August 3, 1979, as amended November 13, 1979; January 4,
January 9, January 10, January 12, January 13, January 30, February 1, and February 20, 1980; November 3, 1980;
and August 26, 1981, is approved effective February 10, 1982. Copies of the approved program, as amended, are
available at:
(a) Montana Department of Environmental Quality, Industrial and Energy Minerals Bureau, P.O. Box 200901,
Helena, Montana 59620-0901, (406) 444-1923.
(b) Casper Field Office, Office of Surface Mining Reclamation and Enforcement, 100 East B Street, room 2128,
Casper, WY 82601-1918, Telephone: (307) 261-5776.
[47 FR 6268, Feb. 11, 1982; 59 FR 17932, Apr. 15, 1994; 64 FR 3604, 3610, Jan. 22, 1999]
[EFFECTIVE DATE NOTE: 64 FR 3604, 3610, Jan. 22, 1999, revised paragraph (a), effective Jan. 22, 1999.]
30 CFR Sec. 926.15 Approval of Montana regulatory program amendments.
The following is a list of the dates amendments were submitted to OSM, the dates when the Director's decision
approving all, or portions of these amendments, were published in the Federal Register and the State citations or a
brief description of each amendment. The amendments in this table are listed in order of the date of final publication
in the Federal Register.
________________________________________________________________________________
Original amendment Date of final Citation/description
submission date publication
Sept. 13, 1983 Jan. 3, 1984 MCA 82-4-237, -251(4), -254.
April 2, 1984 Jan. 3, 1985 ARM 26.4.1206 through .1209, .1211, .1212.
Jan. 3, 1984 Nov. 18, 1985 ARM 26.4.310, .621 through .626, .1260 through .1263.
July 3, 1985 Feb. 14, 1986 MCA 82-4-231, 232, 254.
April 23, 1987 Dec. 31, 1987 MCA 82-4-203, 222, 223.
Dec. 21, 1988 May 11, 1990 ARM 26.4 subchapters 3, definitions and strip mine permit
application requirements; 4, mine permit and test pit
prospecting permit procedures; 5, backfilling and grading
requirements; 6, transportation facilities, explosives and
hydrology; 7, topsoiling, revegetation, and protection of
wildlife and air resources; 8, alluvial valley floors, prime
farmlands, alternate reclamation, and auger mining;
9, underground coal and uranium mining; 10, prospecting;
11, bonding, insurance reporting, and special areas;
12, special departmental procedures;
13, miscellaneous provisions.
June 19, 1990 March 20, 1991, ARM 26.4.724 through 726, .728, .730 through .733,
August 19, 1992 .1301A, .724; ARM 26.4.920, .924 through .927, .930,
.932; ARM 26.4 subchapters 3, 5, 8, 11, 12.
Oct. 19, 1992 Feb. 25, 1994 MCA 82-4-203(26).
June 16, 1993, Feb. 1, 1995 MCA 82-4-203, subsections (14), (16), (21), (23), (29), (34),
July 28, 1993 (35), (36), definitions; 82-4-224, surface owner consent;
82-4-226, subsections (1), (2), (3), (5), (6), (8),
prospecting permits and notices of intent; 82-4-227,
subsections (1), (2), (3), (7) through (13),
permit approval/denial criteria.
May 16, 1995 Jan. 22, 1999 MCA 2-15-3501, 2-15-3502, 82-4-203(1) through (35),
except (24); MCA 82-4-204; MCA 82-4-205;
MCA 82-4-221; MCA 82-4-223; MCA 82-4-226(8);
MCA 82-4-227; MCA 82-4-231; MCA 82-4-232(6) and
(7); MCA 82-4-235; MCA 82-4-240; MCA 82-4-242;
MCA 82-4-251; and MCA 82-4-254(1) through (3).
Decision deferred on MCA 82-4-239;
MCA 82-4-203(24) disapproved.
March 5, 1996 Jan. 22, 1999 ARM 26.4.301(114); 26.4.410; 26.4.1001; and 26.4.1001A.
________________________________________________________________________________
[49 FR 67, Jan. 3, 1984, as amended at 50 FR 260, Jan. 3, 1985; 50 FR 47388, Nov. 18, 1985; 51 FR 5517, Feb. 14,
1986; 52 FR 49403, Dec. 31, 1988; 55 FR 19736, May 11, 1990; 56 FR 11671, Mar. 20, 1991; 57 FR 37446, Aug.
19, 1992; 59 FR 9087, Feb. 25, 1994; 60 FR 6013, Feb. 1, 1995; 62 FR 9932, 9946, March 5, 1997; 64 FR 3604,
3610, 3611, 3615, Jan. 22, 1999]
[EFFECTIVE DATE NOTE: 64 FR 3604, 3610, 3611, 3615, Jan. 22, 1999, added the entries for "January 22, 1999"
in the table, effective Jan. 22, 1999.]
30 CFR Sec. 926.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Montana is required to submit to OSM by the specified date the following
written, proposed program amendment, or a description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is consistent with Montana's established
administrative or legislative procedures.
(a) [Reserved]
(b) By July 10, 1990, Montana shall submit a proposed revision to its rules at ARM 26.4.301(117) to eliminate the
phrase "or for the purpose of developing a test market" from the definition of test pit.
( c) By July 10, 1990, Montana shall submit a proposed revision to its rules at ARM 26.4.404(5)(b) to require that
a determination of effects is completed for all properties listed on or eligible for listing on the National Register of
Historic Properties.
(d) By July 10, 1990, Montana shall submit a proposed revision to its rules at ARM 26.4.405(6)(1) to correct the
cross reference in the rule to cite rule ARM 26.4.1302, governing the use of existing structures, rather than the
deleted rule ARM 26.4.309.
(e) By October 19, 1992, Montana shall:
(1) Submit proposed revisions to ARM 26.4.301(100), or other revision, to include pioneer and construction
roadways in the definition of "road";
(2) Submit proposed revisions to ARM 26.4.505 and 26.5.510, or other program revision, to incorporate
requirements for the disposal of "waste" on surface mines no less effective than 30 CFR 816.81-816.84 and Sec.
816.102(e);
(3) Submit proposed revisions to ARM 26.4.321(3), or other revisions, to specify certification content
requirements no less effective than 30 CFR 780.37(b) and Sec. 784.24(b);
(4) Submit proposed revisions to ARM 26.4.321, or other revisions, to incorporate application requirements no
less effective than 30 CFR 780.37(a) (2), (3), (6) and Sec. 784.24(a) (2), (3), (6);
(5) Submit proposed revisions to ARM 26.4.924 and 26.4.932, or other revisions, to specify whether the waste
disposal governed by these rules is within or outside mine surface excavations, and to clarify what constitutes a
"waste disposal structure";
(6) Submit proposed revisions to ARM 26.4.924(4), or other revisions, to require that all non-impounding
underground development waste disposal structures meet the MSHA requirements at 30 CFR 77.214 and Sec.
77.215 and also to clarify what constitutes a "coal waste refuse structure";
(7) Submit proposed revisions to ARM 26.4.924, or other revisions, to incorporate a requirement no less effective
than 30 CFR 817.83( c)(4);
(8) Submit proposed revisions to ARM 26.4.930, or other revisions, to add application requirements that are no
less effective than 30 CFR 784.16(e); and
(9) Submit proposed revisions to remove the following parts of this State initiative that the Director is not
approving but which have been promulgated by Montana:
ARM 26.4.301(48) and (128), the word "non-coal"; ARM 26.4.305(2)(b) and 26.4.321(3), the phrases "* * *,
registered land surveyor, * * * " and "* * * , or a registered land surveyor, * * *"; and ARM 26.4.924, subsection
ARM 26.4.924(14).
(f) [Reserved]
(g) [Reserved]
(h) [Reserved]
(i) [Reserved]
(j) [Reserved]
(k) By March 23, 1999, Montana shall revise ARM 26.4.301(52), or otherwise modify its program, to require that
the definition of "Historically used for cropland" address lands that would have been likely used as cropland for any
5 out of the last 10 years, immediately preceding such acquisition but for the same fact of ownership or control of the
land unrelated to the productivity of the land.
(l) By March 23, 1999, Montana shall revise ARM 26.4.1001, ARM 26.4.401, or otherwise modify its program, to
provide for public notice and opportunity to comment on prospecting permit applications, regulatory authority
decisions on such applications, and notice and hearing requirements on prospecting permit applications, to be no less
effective than 30 CFR 772.12( c), (d), and (e), and 772.15.
[49 FR 20287, May 14, 1989, as amended at 55 FR 19736, May 11, 1990; 57 FR 37446, Aug. 19, 1992; 58 FR
65928, Dec. 17, 1993; 59 FR 9087, Feb. 25, 1994; 60 FR 6013, Feb. 1, 1995; 64 FR 3604, 3610, 3611, 3615, Jan.
22, 1999]
[EFFECTIVE DATE NOTE: 64 FR 3604, 3610, 3611, 3615, Jan. 22, 1999, removed and reserved paragraphs (f)
through (j) and added paragraphs (k) and (l), effective Jan. 22, 1999.]
30 CFR Sec. 926.20 Approval of Montana Abandoned Mine Land Reclamation Plan.
The Montana Abandoned Mine Land Reclamation Plan, as submitted on June 16, 1980, and as revised on July 28,
1980, is approved effective November 24, 1980. Copies of the approved plan are available at:
(a) Montana Department of Environmental Quality, 1625 Eleventh Avenue, Helena, MT 59620-1601.
(b) Office of Surface Mining Reclamation and Enforcement, Casper Field Office, 100 East B Street, Room 2128,
Casper, WY 82601-1918.
[48 FR 37384, Aug. 18, 1983; 59 FR 17932, Apr. 15, 1994; 60 FR 37002, July 19, 1995]
30 CFR Sec. 926.21 Required abandoned mine land plan amendments.
Pursuant to 30 CFR 884.15, Montana is required to submit for OSM's approval the following proposed plan
amendment by the date specified.
(a) By March 23, 1999, Montana shall submit a copy of the State's reorganization of the abandoned mine land
reclamation plan, as well as all statutes and rules relating to the abandoned mine land reclamation plan revised
subsequent to the final rule published in the Federal Register dates July 19, 1995 (60 FR 36998).
(b) [Reserved].
[64 FR 3604, 3610, Jan. 22, 1999]
[EFFECTIVE DATE NOTE: 64 FR 3604, 3610, Jan. 22, 1999, added this section, effective Jan. 22, 1999.]
30 CFR Sec. 926.25 Approval of Montana abandoned mine land reclamation plan amendments.
(a) Montana certification of completing all known coal-related impacts is accepted, effective July 9, 1990.
(b) The following is a list of the dates amendments were submitted to OSM, the dates when the Director's decision
approving all, or portions of these amendments, were published in the Federal Register and the State citations or a
brief description of each amendment. The amendments in this table are listed in order of the date of final publication
in the Federal Register.
________________________________________________________________________________
Original amendment Date of final Citation/description
submission date publication
April 20, 1983 Aug. 18, 1983 Liens on noncoal projects; noncoal additions to
Montana Abandoned Mine Land Inventory;
emergency response reclamation program;
organizational restructure.
March 22, 1995 July 19, 1995 Reclamation of interim program and bankrupt surety coal sites;
future set-aside program; water supply facilities and
water replacement; other policies and procedures.
________________________________________________________________________________
[60 FR 37002, July 19, 1995; 62 FR 9932, 9947, March 5, 1997]
[EFFECTIVE DATE NOTE: 62 FR 9932, 9947, March 5, 1997, revised this section, effective April 4, 1997.]
30 CFR Sec. 926.30 State-Federal cooperative agreement.
COOPERATIVE AGREEMENT
The Governor of the State of Montana (Governor) and the Secretary of the Department of the Interior (Secretary)
enter into a State-Federal Cooperative Agreement (Agreement) to read as follows:
Article I: Authority, Purposes, and Responsible Agencies
A. Authority
This Agreement is authorized by section 523( c) of the Surface Mining Control and Reclamation Act (SMCRA),
30 U.S.C. 1273( c), which allows a State with a permanent regulatory program approved by the Secretary, under 30
U.S.C. 1253, to elect to enter into an agreement for State control and regulation of surface coal mining and
reclamation operations on Federal lands. This Agreement provides for State regulation of coal exploration operations
n1 not subject to 43 CFR Group 3400, and surface coal mining and reclamation operations and activities in Montana
on Federal lands consistent with SMCRA, the Federal lands program (30 CFR) Chapter VII, Subchapter D), and the
Montana State Program (State Program), including among other things, the Montana Strip and Underground Mine
Reclamation Act, Part 2, Chapter 4, Title 82, Montana Code Annotated (State Act or MCA).
n1 The term "Exploration Operations" is referred to as "Prospecting" in the Montana State Program.
B. Purposes
The purposes of the Agreement are to (1) foster State-Federal cooperation in the regulation of surface coal mining
and reclamation operations on Federal lands and coal exploration operations not subject to 43 CFR Group 3400; (2)
minimize intergovernmental overlap and duplication; and (3) provide effective and uniform application of the State
Program on all non-Indian lands in Montana.
C. Responsible Agencies
The Montana Department of Environmental Quality (DEQ) shall administer this Agreement on behalf of the
Governor. The Office of Surface Mining Reclamation and Enforcement (OSM) shall administer this Agreement on
behalf of the Secretary.
Article II: Effective Date
Upon signing by the Secretary and the Governor, this Agreement will take effect 30 days after final publication as
a rule making in the Federal Register. n2 This Agreement shall remain in effect until terminated as provided in
Article XI.
n2 See explanation in Article II at 46 FR 20983, April 8, 1981.
Article III: Definitions
The term and phrases used in this Agreement, except the term "permit application package (PAP)," will be given
the meanings set forth in SMCRA, 30 CFR Parts 700, 701, 740, and 761, and the State Program, including the State
Act and the regulations promulgated pursuant to the State Act. Where there is a conflict between the above-
referenced State and Federal definitions, the definitions used in the State Program will apply, unless otherwise
required by Federal regulation.
The term "permit application package (PAP)" for the purposes of this Agreement, means a proposal to conduct
surface coal mining and reclamation operations on Federal lands, including an application for a permit, permit
revision, permit amendment, or permit renewal, and all information required by SMCRA, the Federal regulations, the
State Program, this Agreement, and all other applicable laws and regulations, including, with respect to leased
Federal coal, the Mineral Leasing Act of 1920 (MLA) and its implementing regulations.
Article IV: Applicability
In accordance with the Federal lands program, the laws, regulations, terms and conditions of the State Program are
applicable to Federal lands in Montana except as otherwise stated in this Agreement, SMCRA, 30 CFR 740.4,
740.11(a), and 745.13 or other applicable Federal laws, Executive Orders, or regulations.
Article V: Requirements for the Agreement
The Governor and the Secretary affirm that they will comply with all provisions of this Agreement.
A. Funds
1. The State shall devote adequate funds to the administration and enforcement on Federal lands in Montana of the
requirements contained in the State Program. If the State complies with the terms of this Agreement, and if necessary
funds have been appropriated, OSM shall reimburse the State as provided in section 705( c) of SMCRA and 30 CFR
735.16 for the costs associated with carrying out responsibilities under this Agreement. The amount of such funds
shall be determined in accordance with the provisions of Chapter 3-10 and Appendix 111 of the Federal Assistance
Manual.
2. If DEQ applies for a grant but sufficient funds have not been appropriated to OSM, OSM and DEQ shall
promptly meet to decide on appropriate measures that will insure that surface coal mining and reclamation operations
on Federal lands in Montana are regulated in accordance with the State Program.
3. Funds provided to DEQ under this Agreement will be adjusted in accordance with the program income
provisions of 43 CFR Part 12.
B. Reports and Records
1. DEQ shall submit annual reports to OSM containing information with respect to its compliance with the terms
of this Agreement pursuant to 30 CFR 745.12(d). Upon request, DEQ and OSM shall exchange, except where
prohibited by Federal or State law, information developed under this Agreement. OSM shall provide DEQ with a
copy of any final evaluation report prepared concerning State administration and enforcement of this Agreement.
DEQ comments on the report will be attached before being sent to the Congress or other interested parties.
C. Personnel
DEQ shall maintain the necessary personnel to fully implement this Agreement in accordance with the provisions
of SMCRA, the Federal lands program, and the State Program.
D. Equipment and Facilities
DEQ shall assure itself access to equipment, laboratories, and facilities with which all inspections, investigations,
studies, tests, and analyses can be performed and which are necessary to carry out the requirements of this
Agreement.
E. Permit Application Fees and Civil Penalties
The amount of the fee accompanying the PAP shall be determined in accordance with section 82-4-223(1), of
MCA, and the applicable provisions of Federal law. All permit fees and civil penalty fines shall be accounted for in
accordance with the provisions of 43 CFR Part 12. Permit fees will be considered program income. Civil penalties
will not be considered program income. The Financial Status Report submitted pursuant to 30 CFR 735.26 shall
include the amount of the permit application fees collected and attributable to Federal lands during the State fiscal
year.
Article VI: Review and Approval of the PAP or Application for Transfer, Assignment or Sale of Permit
Rights (Transfer Application)
A. Receipt and Distribution of the PAP or Transfer Application
1. DEQ shall require an applicant proposing to conduct surface coal mining and reclamation operations on Federal
lands to submit to DEQ the appropriate number of copies of a PAP or transfer application. The PAP or transfer
application shall meet the requirements of 30 CFR Part 740, shall be in the form required by DEQ, and shall contain,
at a minimum, the information required by 30 CFR 740.13(b), including:
a. Information necessary for DEQ to make a determination of compliance with the State Program;
b. Any supplement information required by OSM, the Bureau of Land Management (BLM), and the Federal Land
Management Agency. This information shall be appropriate and adequate for OSM and the appropriate Federal
agencies to make determinations of compliance with applicable requirements of SMCRA,the MLA, as amended, the
Federal lands program, and other Federal laws, Executive Orders, and regulations which these agencies administer.
2. Except as otherwise agreed in writing by Federal agencies, upon receipt of a PAP or transfer application, DEQ
shall ensure that an appropriate number of copies of the PAP or transfer application are provided to OSM, Federal
land management agency, and any other appropriate Federal agency.
B. Review of the PAP or Transfer Application
1. DEQ is responsible for:
a. As authorized by 30 CFR 740.4( c),
(1) Being the primary point of contact with the applicant regarding the review of the PAP or transfer application
and communications regarding all decisions and determinations with respect to the PAP or transfer application;
(2) Analysis, review, and approval, conditional approval, or disapproval of the permit application component of
the PAP or the transfer application for surface coal mining and reclamation operations on Federal lands in Montana;
(3) Obtaining the comments and findings of Federal agencies with jurisdiction or responsibility over Federal lands
affected by the operations proposed in the PAP or transfer application, unless otherwise agreed in writing by Federal
agencies. DEQ shall request such Federal agencies to provide to DEQ their requests for additional information or
their findings within 45 days of the receipt of the request;
(4) Obtaining OSM's determination whether the PAP involving leased Federal coal constitutes a mining plan
modification under 30 CFR 746.18, and informing the applicant of such determination;
(5) Consulting with and obtaining the consent, as necessary, of the Federal land management agency pursuant to
30 CFR 740.4( c)(2), with respect to post-mining land use and to any special requirements necessary to protect non-
coal resources of the areas that will be affected by surface coal mining and reclamation operations;
(6) Consulting with and obtaining the consent, as necessary, of BLM pursuant to 30 CFR 740.4( c)(3), with
respect to requirements relating to the development, production and recovery of mineral resources on lands affected
by surface coal mining and reclamation operations involving leased Federal coal pursuant to 43 CFR Group 3400;
(7) Approval and release of performance bonds pursuant to Article IX.B, and approval and maintenance of
liability insurance;
(8) Review and approval of exploration operations not subject to the requirements of 43 CFR Group 3400, as
provided in 30 CFR 740.4( c)(6).
b. In addition, where a mining plan action is required under 30 CFR Part 746, as determined by OSM:
(1) Preparation of documentation to comply with the requirements of National Environmental Policy Act (NEPA).
However, OSM will retain the responsibility for the exceptions in 30 CFR 740.4( c)(7)(l) through (vii). DEQ and
OSM shall coordinate and cooperate with each other so that, if possible, one Environmental Assessment or
Environmental Impact Statement is produced to comply with NEPA and the Montana Environmental Policy Act
(MEPA);
(2) Preparation of a State decision package, which includes written findings indicating that the permit application
component of the PAP is in compliance with the terms of the State Program, a technical analysis of the PAP, and
supporting documentation.
2. OSM is responsible for:
a. When the PAP includes Federal lands,
(1) Making determinations and evaluations for NEPA compliance documents as required by 30 CFR 740.4(
c)(7)(l) through (vii);
(2) Reviewing the appropriate portions of the PAP for compliance with the non-delegable responsibilities of the
Secretary pursuant to SMCRA and 30 CFR 745.13, and for compliance with the requirements of other Federal laws,
Executive Orders, and regulations;
(3) Consulting with the Federal land management agency, and determining whether the PAP constitutes a mining
plan modification under 30 CFR 746.18, and informing DEQ, whenever practical within 30 days of receiving a copy
of the PAP for operations on Federal lands, of such determination;
(4) Exercising its responsibilities in a timely manner governed, to the extent possible, by the deadlines established
in the State Program;
(5) Assisting DEQ, upon request, in carrying out its responsibilities by:
(a) Coordinating resolution of conflicts between DEQ and other Federal agencies in a timely manner;
(b) Obtaining comments and findings of other Federal agencies with jurisdiction or responsibility over Federal
lands;
( c) Scheduling joint meetings between DEQ and Federal agencies;
(d) Reviewing and analyzing the PAP, to the extent possible, and providing to DEQ the work product within 50
days of receipt of the State's request for such assistance, unless a different time is agreed upon by OSM and DEQ;
and
(e) Providing technical assistance, if available OSM resources allow.
b. In addition, where a mining plan action is required pursuant to 30 CFR Part 746:
(1) Consulting with and obtaining the concurrences of BLM, the Federal land management agency, and any other
Federal agency, as necessary, prior to making recommendation to the Secretary concerning approval of the mining
plan;
(2) Upon notification from the DEQ that certain permit conditions required by the Federal land management
agency are not incorporated in the State permit, OSM will determine whether such conditions are necessary. When
OSM believes the conditions are necessary, OSM will work with the Federal land management agency to find
another means to resolve the issue and, where appropriate, OSM will facilitate the attachment of conditions to the
appropriate Federal authorizations; and
(3) Providing a decision document to the Secretary recommending approval, disapproval, or conditional approval
of mining plans or modifications thereof.
3. The Secretary:
a. Shall concurrently carry out his responsibilities that cannot be delegated to DEQ pursuant to SMCRA and 30
CFR 745.13, the Federal lands program, the MLA, NEPA, this Agreement, and other applicable Federal laws
including, but not limited to, those listed in Appendix A. The Secretary shall carry out these responsibilities in a
timely manner and will avoid, to the extent possible, duplication of the responsibilities of the State as set forth in this
Agreement and the State Program;
b. Reserves the right to act independently of DEQ to carry out his responsibilities under laws other than SMCRA,
and where Federal law permits, to delegate some of the responsibilities to OSM; and
c. Shall be responsible for approval, disapproval, or conditional approval of mining plans and modifications
thereof with respect to lands containing leased Federal coal in accordance with 30 CFR 740.4(a)(1).
4. Coordination:
a. As a matter of practice, OSM will not independently initiate contacts with applicants regarding completeness or
deficiencies of a PAP or transfer application with respect to matters covered by the State Program.
b. OSM and DEQ shall coordinate with each other during the review process of a PAP or transfer application as
needed.
c. OSM and DEQ may request and schedule meetings with the applicant with adequate advance notice to each
other.
d. DEQ shall keep OSM informed of findings made during the review process which bear on the responsibilities
of OSM or other Federal agencies. DEQ shall send to OSM copies of any correspondence with the applicant and any
information received from the applicant regarding the PAP or transfer application. OSM shall send to DEQ copies of
all OSM correspondence with the applicant and any other information received from the applicant which may have a
bearing on the PAP or transfer application. Any conflicts or differences of opinions that may develop during the
review process should be resolved at the lowest possible staff level.
e. OSM shall have access to DEQ files concerning operations on Federal lands.
f. Where a mining plan action is required pursuant to 30 CFR Part 746, OSM and DEQ shall develop a work plan
and schedule for the PAP review and each will designate a project leader. The project leaders will serve as the
primary points of contact between OSM and DEQ throughout the review process. Not later than 50 days after receipt
of the PAP, unless a different time is agreed upon, OSM shall furnish DEQ with its review comments on the PAP
and specify any requirements for additional data. DEQ shall provide OSM all available information that may assist
OSM in preparing any findings for the mining plan action.
g. On matters concerned exclusively with regulations under 43 CFR Group 3400, BLM will be the primary contact
with the applicant and shall inform DEQ of its actions and provide DEQ with a copy of documentation on all
decisions.
h. Responsibilities and decisions which can be delegated to DEQ under applicable Federal laws other than
SMCRA may be specified in working agreements between OSM and DEQ, with the concurrence of any Federal
agency involved, and without amendment to this Agreement.
i. In the case that valid existing rights (VER) are determined to exist on Federal lands under section 522(e)(3) of
SMCRA where the proposed operation will adversely affect either a publicly-owned park, or a historic place listed in
the National Register of Historic Sites, DEQ shall work, respectively, with the agency with jurisdiction over the
publicly-owned park or the agency with jurisdiction over the historic place, to develop mutually acceptable terms and
conditions for incorporation into the permit to mitigate adverse impacts.
C. Approval of the PAP or Transfer Application
1. DEQ shall make a decision on approval, conditional approval, or disapproval of the permit application
component of the PAP or the transfer application on Federal lands.
2. DEQ must consider the comments of Federal agencies in the context of permit issuance and will document these
comments in the record of permit decisions. To the extent allowed by Montana law, permits issued by DEQ will
include terms and conditions imposed by the Federal land management agency pursuant to applicable Federal laws
and regulations other than SMCRA, in accordance with 30 CFR 740.13( c)(1). When Federal agencies recommend
permit conditions and these conditions are not adopted by DEQ. DEQ will provide OSM with documentation as to
why they were not incorporated as permit conditions.
3. When a mining plan action is required pursuant to 30 CFR Part 746, DEQ may make a decision on approval,
conditional approval, or disapproval of the permit application component of the PAP on Federal lands in accordance
with the State Program prior to the necessary Secretarial decision on the mining plan, provided that DEQ advises the
applicant that Secretarial approval of the mining plan action must be obtained before the applicant may conduct
surface coal mining and reclamation operations on the Federal lands. To the extent allowed by the State law, DEQ
shall reserve the right to amend or rescind any requirements of the permit to conform with any terms or conditions
imposed by the Secretary in the approval of the mining plan.
4. After making its decision on the permit application component of the PAP or transfer application, DEQ shall
send a copy of the signed permit form and State decision document to the applicant, OSM, the Federal land
management agency, and any agency with jurisdiction over a publicly-owned park, or historic property included in
the NRHS which would be adversely affected by the surface coal mining and reclamation operations.
Article VII: Inspections
A. DEQ shall conduct inspections on Federal lands in accordance with 30 CFR 740.4( c)(5) and prepare and file
inspection reports in accordance with the approved State Program.
B. DEQ shall, subsequent to conducting any inspection on Federal lands, file with OSM's appropriate Field Office
an inspection report describing: (1) the general conditions of the lands under the lease, permit, or license; (2) the
manner in which the operations are being conducted; and (3) whether the operator is complying with applicable
performance standards and reclamation requirements.
C. DEQ will be the point of contact and inspection authority in dealing with the operator concerning operations
and compliance with requirements covered by this Agreement, except as described in this Agreement and in the
Secretary's regulations. Nothing in this Agreement shall prevent inspections by authorized Federal or State agencies
for purposes other than those covered by this Agreement.
D. Authorized representatives of the Secretary may conduct any inspections necessary to comply with 30 CFR
Parts 842 and 843, and with the Secretary's obligations under laws other than SMCRA.
E. OSM shall give DEQ reasonable notice of its intent to conduct an inspection in order to provide State
inspectors with an opportunity to join in the inspection. When OSM is responding to a citizen complaint supplying
adequate proof of an imminent danger to the public health and safety, or a significant imminent environmental harm
to land, air, or water resources, pursuant to 30 CFR 842.11(b)(1)(ii)( C), it shall contact DEQ no less than 24 hours
prior to the Federal inspection, if practicable, to facilitate a joint Federal/State inspection. All citizen complaints
which do not involve an imminent danger to the public health and safety, or a significant imminent environmental
harm to land, air, or water resources, must be referred initially to DEQ for action. The Secretary reserves the right to
conduct inspections without prior notice to DEQ, if necessary, to carry out his responsibilities under SMCRA.
Article VIII: Enforcement
A. DEQ shall have primary enforcement authority under SMCRA concerning compliance with the requirements of
this Agreement and the State Program in accordance with 30 CFR 740.4( c)(5) and 740.17(a)(2). Enforcement
authority given to the Secretary under SMCRA, and its implementing regulations, or other Federal laws and
Executive Orders, including, but not limited to, those listed in Appendix A, is reserved to the Secretary.
B. During any joint inspection by OSM and DEQ, DEQ will have primary responsibility for enforcement
procedures, including issuance of cessation orders and notices of violation. DEQ shall consult with OSM prior to
issuance of any decision to suspend, rescind or revoke a permit on Federal lands. DEQ shall notify BLM of any
suspension, rescission or revocation of a permit containing leased Federal coal pursuant to 30 CFR 740.13(f)(2).
C. During any inspection made solely by OSM or any joint inspection where DEQ an OSM fail to agree regarding
the propriety of any particular enforcement action, OSM may take any enforcement action necessary to comply with
30 CFR Parts 842, 843, 845 and 846.
D. DEQ and OSM shall promptly notify each other of all violations and of all actions taken with respect to such
violations.
E. Personnel of DEQ and OSM shall be mutually available to serve as witnesses in enforcement actions taken by
either party.
F. This Agreement does not affect or limit the Secretary's authority to enforce violations of Federal laws other than
SMCRA.
Article IX: Bonds
A. DEQ and the Secretary shall require all operators on Federal lands to submit a single performance bond jointly
payable to both the United States and DEQ. The board shall be of sufficient amount to cover the operator's
responsibilities under SMCRA and the State Program. The bond shall be conditioned upon continued compliance
with all requirements of SMCRA, 30 CFR Chapter VII, the State Program, and the permit. Such bond shall provide
that if this Agreement is terminated under the provisions of 30 CFR 745.15, the portion of the bond covering the
Federal lands shall be payable only to the United States.
B. DEQ will have primary responsibility for the approval and release of performance bonds required for surface
coal mining and reclamation operations on Federal lands. However, release of a performance bond on lands subject
to an approved mining plan requires the concurrence of OSM as provided in 30 CFR 740.15(d)(3). Prior to such
concurrence, OSM shall coordinate with other Federal agencies having the authority over the lands involved. DEQ
shall annually advice OSM of adjustments to the performance bond.
C. Performance bonds will be subject to forfeiture with he concurrence of OSM, in accordance with the
procedures and requirements of the State Program. OSM may not withhold its concurrence unless DEQ's forfeiture
decision is not in accordance with the requirements and procedures of the State program.
D. Submission of a performance bond does not satisfy the requirements for either a Federal lease bond required by
43 CFR Part 3474 or a lessee protection bond which is required in certain circumstances by section 715 of SMCRA.
Article X: Designating Land Areas Unsuitable for All or Certain Types of Surface Coal Mining and
Reclamation Operations and Activities, and Valid Existing Rights and Compatibility Determinations
A. Unsuitability Petitions
1. Authority to designate or terminate the designation of areas of Federal lands as unsuitable for mining is reserved
to the Secretary. Unsuitability petitions shall be filed with OSM and would be processed in accordance with 30 CFR
769.
2. When either DEQ or OSM receives a petition that could impact adjacent Federal or non-Federal lands pursuant
to section 522( c) of SMCRA, the agency receiving the petition will notify the other of receipt of the petition and the
anticipated schedule for reaching a decision. OSM shall coordinate with and solicit comments from the applicable
Federal land management agency. OSM and DEQ shall fully consider data, information, and recommendations of all
agencies.
B. Valid Existing Rights (VER) and Compatibility Determinations
The following actions will be taken when requests for determinations of VER pursuant to section 522(e) of
SMCRA, or for determinations of compatibility pursuant to section 522(e)(2) of SMCRA are received:
1. For Federal lands within the boundaries of any areas specified under section 522(e)(1) of SMCRA, the
Secretary will make the VER determination. If surface coal mining and reclamation operations would be conducted
on both Federal and non-Federal lands within such areas, the Secretary will make the VER determination for the
Federal lands and DEQ will make the VER determination for State and private lands.
2. For Federal lands within the boundaries of any national forest where proposed surface coal mining and
reclamation operations are prohibited or limited by section 522(e)(2) of SMCRA and 30 CFR 761.11(b), the
Secretary will make VER determinations. OSM will process requests for determinations of compatibility under
section 522(e)(2) of SMCRA and part 30 CFR 761.12( c).
3. Where a VER determination is requested for Federal lands protected under section 522(e)(3), DEQ will make
the VER determination. DEQ will determine, in consultation with the State Historic Preservation Officer, whether
any proposed operation will adversely affect any publicly-owned park or historic place listed on the National
Register of Historic Sites (NRHS).
Surface coal mining and reclamation operations of Federal lands protected under section 522(e)(3) of SMCRA
may be permitted if approved jointly by DEQ, and the Federal, State, or local agency with jurisdiction over the park
or historic place. DEQ will coordinate with any agency with jurisdiction over the publicly-owned park or historic
place to develop mutually acceptable terms and conditions for incorporation into the permit in order to mitigate
environmental impacts.
4. DEQ will process determinations of VER on Federal lands for all areas limited or prohibited by section
522(e)(4) and (5) of SMCRA as unsuitable for mining.
5. For operations on Federal lands, whenever DEQ is responsible for making the VER determinations, DEQ will
consult with OSM and any affected agency.
Article XI: Termination of the Agreement
This Agreement may be terminated by the Governor or the Secretary under the provisions of 30 CFR 745.15.
Article XII: Reinstatement of the Agreement
If this Agreement has been terminated in whole or part, it may be reinstated under the provisions of 30 CFR
745.16.
Article XIII: Amendments of the Agreement
This Agreement may be amended by mutual agreement of the Governor and the Secretary in accordance with 30
CFR 745.14.
Article XIV: Changes in State or Federal Standards
A. The Secretary or the State may, from time to time, revise and promulgate new or revised performance or
reclamation requirements or enforcement and administrative procedures. Each party shall, if it is determined to be
necessary to keep this Agreement in force, change or revise its respective laws or regulations or request necessary
legislative action. Such changes will be made under the procedures of 30 CFR Part 732 for changes to the State
Program and under the procedures of section 501 of SMCRA for changes to the Federal lands program.
B. DEQ and OSM shall provide each other with copies of any changes to their respective laws, rules, regulations,
and standards pertaining to the enforcement and administration of this Agreement.
Article XV: Changes in Personnel and Organization
A. DEQ and OSM shall, consistent with 30 CFR Part 745, advise each other of changes in the organization,
structure, functions, duties and funds of the offices, departments, divisions, and persons within their organizations
which could affect administration and enforcement of this Agreement. Each shall promptly advise the other in
writing of changes in key personnel, including the head of a department or division, or changes in the functions or
duties of the principal offices of the program. DEQ and OSM shall advise each other in writing of changes in the
location of their respective offices, addresses, telephone numbers, as well as changes in the names, addresses, and
telephone numbers of their respective personnel.
B. Should the State Act be amended to transfer administration of the State Act to another agency, all references to
DEQ in this Agreement shall be deemed to apply to the successor regulatory agency as of the date of the transfer.
The provisions in this Agreement shall thereafter apply to that agency.
Article XVI: Reservation of Rights
In accordance with 30 CFR 745.13, this Agreement shall not be construed as waiving or preventing the assertion
of any rights that have not been expressly addressed in this Agreement that the State or the Secretary may have under
laws other than the Act and the State Program, including, but not limited to those listed in Appendix A.
Approved:
Dated: May 8, 1998.
Marc Racicot,
Governor of Montana.
Dated: July 7, 1998.
Bruce Babbitt,
Secretary of the Interior.
Appendix A
1. The Federal Land Policy and Management Act, 43 U.S.C. 1701 et seq., and implementing regulations.
2. The Mineral Leasing Act of 1920, 30 U.S.C. 181 et seq., and implementing regulations, including 43 CFR Part
3480.
3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and implementing regulations,
including 40 CFR Part 1500.
4. The Endangered Species Act, 16 U.S.C. 1531 eq seq., and implementing regulations, including 50 CFR Part
402.
5. The National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq., and implementing regulations, including
36 CFR Part 800.
6. Native American Graves Protection and Repatriation Act, 25 U.S.C. 3001 et seq.
7. The American Indian Religious Freedom Act, 42 U.S.C. 1986 et seq.
8. The Archaeological Resources Protection Act of 1979, 16 U.S.C. 470aa et seq.
9. The Clean Air Act, 42 U.S.C. 7401 et seq., and implementing regulations.
10. The Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., and implementing regulations.
11. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq., and implementing regulations.
12. The Reservoir Salvage Act of 1960, amended by the Preservation of Historical and Archaeological Data Act
of 1974, 16 U.S.C. 469 et seq.
13. Executive Order 11593 (May 13, 1971), Cultural Resource Inventories on Federal Lands.
14. Executive Order 11988 (May 24, 1977), for flood plain protection.
15. Executive Order 11990 (May 24, 1977), for wetlands protection.
16. Executive Order 12898 (February 11, 1994) for Federal Actions to Address Environmental Justice on
Minority Populations and Low Income Populations.
17. The Mineral Leasing Act for Acquired Lands, 30 U.S.C. 351 et seq., and implementing regulations.
18. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291 et seq.
19. The Constitution of the United States.
20. Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq.
21. 30 CFR Chapter VII.
22. The Constitution of the State of Montana.
23. Montana Strip and Underground Mine Reclamation Act (MSUMRA), Part 2, Chapter 4, Title 82, Montana
Code Annotated.
24. Title 26, Chapter 4, Subchapter 3, Administrative Rules of Montana.
25. Montana Environmental Policy Act (MEPA).
(Pub. L. 95-87, sec. 523( c), (30 U.S.C. 1273( c)))
[46 FR 20993, Apr. 8, 1981; 63 FR 40790, 40794, July 30, 1998]
[EFFECTIVE DATE NOTE: 63 FR 40790, 40794, July 30, 1998, revised this section, effective Aug. 31, 1998.]
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