Rule2026-02981
Montana Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 13, 2026
Effective
March 16, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
The Office of Surface Mining Reclamation and Enforcement (OSM) approves an amendment to the Montana regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Montana proposed an addition to the Montana Code Annotated (MCA), which would revise and add regulations in the Administrative Rules of Montana (ARM) pertaining to ownership and control. These changes were required by an October 2, 2009, letter from OSM to Montana and in response, Senate bill 92, was approved by the 2013 Montana Legislature. Montana also proposed other ARM revisions unrelated to ownership and control.
Full Text
<html>
<head>
<title>Federal Register, Volume 91 Issue 30 (Friday, February 13, 2026)</title>
</head>
<body><pre>
[Federal Register Volume 91, Number 30 (Friday, February 13, 2026)]
[Rules and Regulations]
[Pages 6760-6770]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02981]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-037-FOR; Docket ID: OSM-2021-0006; S1D1S SS08011000
SX064A000 212S180110; S2D2S SS08011000 SX064A000 21XS501520]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
approves an amendment to the Montana regulatory program under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act).
Montana proposed an addition to the Montana Code Annotated (MCA), which
would revise and add regulations in the Administrative Rules of Montana
(ARM) pertaining to ownership and control. These changes were required
by an October 2, 2009, letter from OSM to Montana and in response,
Senate bill 92, was approved by the 2013 Montana Legislature. Montana
also proposed other ARM revisions unrelated to ownership and control.
DATES: The effective date is March 16, 2026.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Division Chief,
Office of Surface Mining Reclamation and Enforcement, 100 East B
Street, Casper, Wyoming 82602. Telephone: (307) 204-4397, Email:
<a href="/cdn-cgi/l/email-protection#d7bdb1bbb2bea4b4bfbab6b997b8a4baa5b2f9b0b8a1"><span class="__cf_email__" data-cfemail="2349454f464a50404b4e424d634c504e51460d444c55">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Statutory and Executive Order Reviews
I. Background on the Montana Program
Subject to OSM's oversight, 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 program includes, among other things,
State laws and regulations that govern surface coal mining and
reclamation operations in accordance with the Act and consistent with
the Federal regulations. 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 the Montana program and program
amendments at 30 CFR 926.15, 926.16, and 926.30.
II. Submission of the Amendment
By letter dated July 28, 2021 (FDMS Document ID No. OSM-2021-0006-
0001), Montana sent us an amendment to its program under SMCRA (30
U.S.C. 1201 et seq.) that proposed revisions to existing ARM that would
satisfy the statutory changes in the MCA, including revisions to
17.24.301 (Definitions), 17.24.302 (Format, Data Collection, and
Supplemental Information), 17.24.303 (Legal, Financial, Compliance, and
Related Information), 17.24.416 (Permit Renewal), and 17.24.418
(Transfer of Permits). New provisions in the ARM proposed by Montana
that would satisfy the statutory changes in the MCA include 17.24.1229
(Criminal Penalties and Civil Actions), 17.24.1264 (Montana Department
of Environmental Quality Obligations Regarding the Applicant Violator
System), 17.24.1265 (Montana Department of Environmental Quality
Eligibility Review), 17.24.1266 (Questions About and Challenges to
Ownership or Control Findings), and 17.24.1267 (Information
Requirements for Permittees). Montana also proposed minor revisions to
the existing ARM that are unrelated to Senate bill 92, at 17.24.304
(Baseline Information: Environmental Resources), 17.24.308 (Operations
Plan), 17.24.313 (Reclamation Plan), 17.24.314 (Plan for Protection of
the Hydrologic Balance), 17.24.401 (Filing of Application and Notice),
17.24.403 (Informal Conference), 17.24.425 (Administrative Review), and
17.24.1201 (Frequency and Methods of Inspections) that are unrelated to
ownership and control.
Montana's submission of Senate bill 92 and proposed changes to the
ARM will allow Montana to fulfill the requirements of a letter OSM sent
to Montana on October 2, 2009 (hereinafter 732 letter) under the
authority of 30 CFR 732.17(d), by promulgating counterpart rules that
are no less effective than Federal counterpart regulations. The 732
letter required Montana to submit a State program amendment that
pertained to the Applicant Violator System and ownership and control
provisions. The Applicant Violator System and challenges to listings in
the Applicant Violator System are found in
[[Page 6761]]
SMCRA's implementing regulations, at 30 CFR 773.25, 773.26, and 773.28.
We announced receipt of the proposed amendment in the January 11,
2022, Federal Register (87 FR 1372). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the amendment. No public hearing
was held because no request for a public hearing was received. We
received two public comments about the program amendment, and the
public comment period ended on February 10, 2022. During our review of
the amendment, we identified five concerns with the program amendment
as submitted. Our concerns included (1) typographical and grammatical
errors, (2) requiring Taxpayer Identification Numbers for the applicant
and operator of the pending permit application, (3) requiring
``Partner'' and ``Member'' of the applicant and operator to submit
information as required by Federal counterpart rules, (4) applying a
willful or knowing standard for liability regarding characterizing
criminal penalties and civil actions consistent with Federal
counterpart rules, and (5) including clarifying language similar to
Federal counterpart rules. We notified Montana of these concerns by
letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). We delayed
final rulemaking to afford Montana the opportunity to submit new
material to address the deficiencies. Montana responded in a letter
dated May 3, 2023, and provided us with a revised program amendment
proposal, which addressed all of the concerns identified in our March
30, 2023, letter (Docket ID: OSM-2021-0006-0004). On August 7, 2023,
OSM announced receipt of the revised program amendment proposal in the
Federal Register (88 FR 52082) (Docket ID: OSM-2021-0006-0005). In the
same document, we opened the public comment period and provided an
opportunity for a public hearing or meeting on the adequacy of the
amendment. No public hearing was held because no request for a public
hearing was received. No comments were received. The public comment
period ended August 22, 2023. Because Montana addressed all our
concerns with the initial program amendment submission and we had no
additional concerns with the revised program amendment submission, we
are proceeding with the final rule notice of approval.
III. OSM's Findings
SMCRA sections 503 and 505, and the Federal regulations at 30 CFR
730.5, establish the criteria for approval of State SMCRA programs. A
State program must set forth requirements that satisfy the Federal
minimum standards and must include provisions that are no less
stringent than SMCRA and no less effective than the Federal
regulations.
The following is a summary of the proposed statutory and rule
changes submitted by Montana, as well as OSM's findings concerning
Montana's amendment under SMCRA and the Federal regulations at 30 CFR
732.15 and 732.17. For the reasons discussed below, we are approving
the amendment.
A. MCA 82-4-222--Permit Application--Application Revisions
Senate bill 92, passed in the 2013 Montana legislature and as
submitted as part of this formal program amendment, contained some
provisions that were already reviewed and approved by OSM (84 FR
56689). Those provisions include the changes proposed by Montana in
their formal program amendment submittal SATS No. MT-035-FOR and
include the changes in MCA 82-4-222(1)(k), MCA 82-4-222 (1)(l), MCA 82-
4-222 (1)(r)(2), MCA 82-4-222 (1)(r)(2)(l), MCA 82-4-222 (1)(r)(2)(m),
MCA 82-4-222 (1)(r)(2)(n), and MCA 82-4-222 (1)(r)(8).
B. MCA 82-4-226--Prospecting Permit
Senate bill 92, passed in the 2013 Montana legislature and as
submitted as part of this formal program amendment, contained
provisions that were already reviewed and approved by OSM (84 FR
56689). Those provisions include the changes proposed by Montana in
their formal program amendment submittal SATS No. MT-035-FOR and
include the changes in MCA 82-4-226(2), (7), MCA 82-4-226 (7)(b)(i),
and MCA 82-4-226 (7)(b)(ii).
C. MCA 82-4-227--Refusal of Permit--Applicant Violator System
Senate bill 92, passed in the 2013 Montana legislature and as
submitted as part of this formal program amendment, contained
provisions that were already reviewed and approved by OSM (84 FR
56689). Those provisions include the changes proposed by Montana in
their formal program amendment submittal SATS No. MT-035-FOR and
include the changes in MCA 82-4-227(8). Our findings related to the
remaining changes in Senate bill 92 follow.
Montana proposes to add language to the MCA 82-4-227 under the
Montana Strip and Underground Mine Reclamation Act (MSUMRA). New
language in subsection (14) of MCA 82-4-227 allows a person listed in
the Applicant Violator System as owning or controlling a strip-mining
or underground mining operation to challenge the ownership or control
listing. This subsection also outlines the responsibilities of the
Montana Department of Environmental Quality (MDEQ), which is the State
regulatory authority in Montana, pertaining to a challenge to ownership
or control listings as well as hearing rights of the person listed in
the Applicant Violator System once receiving a response from the MDEQ
on that challenge.
During our review of this provision in Montana's July 28, 2021
amendment submittal, we found that Montana would need to include
clarifying language in this proposed statute similar to language found
in 30 CFR 773.26(b), which clarifies that the provisions of this
section apply only to challenges to ownership or control listings or
findings and that these provisions may not be used to challenge
liability or responsibility under any other provision of the Act or its
implementing regulations. On May 3, 2023, Montana made this required
change in their resubmittal of the formal program amendment with this
clarifying language.
This provision of Montana's amendment (as submitted on July 28,
2021, and as revised on May 3, 2023) summarizes the Federal counterpart
rules which address how to challenge ownership and control findings and
listings in the Applicant Violator System, requirements of the
applicant and regulatory authority, and clarifying language similar to
30 CFR 733.26(b), and we find these provisions to be no less effective
than counterpart Federal regulations. This statutory provision is
therefore in accordance with SMCRA and consistent with the Federal
regulations, and we are therefore approving the incorporation of MCA
Sec. 82-4-227, subsection 14, into the Montana program.
D. Minor Revisions to the ARM
In its program amendment submission, Montana proposes
recodifications and other minor wording, editorial, punctuation,
grammatical, citation, and cross-reference changes in ARM 17.24.301,
which will define terms related to the Applicant Violator System and to
also clarify and streamline existing definitions. No substantive
changes to the text of these rules were proposed. Because these changes
are minor, and, as explained in more detail below, OSM finds that the
proposed changes are no less stringent than SMCRA and no less
[[Page 6762]]
effective than the counterpart Federal regulations. Therefore, we are
approving the following proposed rule changes.
<bullet> ARM 17.24.301 (13); added new ``applicant violator
system'' definition. ARM 17.24.301 (13) to ARM 17.24.301 (14);
recodification and deletion of ``approximate original contour''
definition; refer reader to definition of ``approximate original
contour'' in MCA 82-4-203. ARM 17.24.301 (14) to ARM 17.24.301 (15);
recodify ``aquifer'' definition. ARM 17.24.301 (15) to ARM 17.24.301
(16); recodify ``area of land affected'' definition. ARM 17.24.301 (16)
to ARM 17.24.301 (17); recodify ``arid and semiarid area'' definition.
ARM 17.24.301 (17) to ARM 17.24.301 (18); recodify ``auger mining''
definition. ARM 17.24.301 (18) to ARM 17.24.301 (19); recodify
``bench'' definition. ARM 17.24.301 (19) to ARM 17.24.301 (20);
recodify ``best technology currently available or BTCA'' definition.
ARM 17.24.301 (20) to ARM 17.24.301 (21); recodify ``cemetery''
definition. ARM 17.24.301 (21) to ARM 17.24.301 (22); recodify ``coal
conservation plan'' definition. ARM 17.24.301 (22) to ARM 17.24.301
(23); recodify ``coal preparation and coal preparation plant''
definition. ARM 17.24.301(23) to ARM 17.24.301 (24); recodify ``coal
processing waste'' definition. ARM 17.24.301(24) to ARM 17.24.301 (25);
recodify ``collateral bond'' definition. ARM 17.24.301(25) to ARM
17.24.301 (26); recodify ``combustible material'' definition. ARM
17.24.301(26) to ARM 17.24.301 (27); recodify ``community or
institutional building'' definition. ARM 17.24.301(27) to ARM 17.24.301
(28); recodify ``contour strip mining'' definition. ARM 17.24.307(28)
to 17.24.301 (29); added new definition of ``control or controller''.
ARM 17.24.301 (30); recodify ``cover'' definition. ARM 17.24.301 (29)
to ARM 17.24.301 (31); recodify ``cultural resources'' definition. ARM
17.24.301 (30) to ARM 17.24.301 (32); recodify ``cumulative hydrologic
impacts'' definition. ARM 17.24.301 (31) to ARM 17.24.301 (33);
recodify ``cumulative hydrologic impact area'' definition. ARM
17.24.301 (32) to ARM 17.24.301 (34); recodify ``disturbed area''
definition. ARM 17.24.301 (33) to ARM 17.24.301 (35); recodify
``diversion'' definition. ARM 17.24.301 (34) to ARM 17.24.301 (36);
recodify ``domestic water supply'' definition. ARM 17.24.301 (35) to
ARM 17.24.301 (37); recodify ``downslope'' definition. ARM 17.24.301
(36) to ARM 17.24.301 (38); recodify ``dwelling'' definition. ARM
17.24.301 (37) to ARM 17.24.301 (39); recodify ``embankment''
definition. ARM 17.24.301 (38) to ARM 17.24.301 (40); recodify
``ephemeral drainageway'' definition. ARM 17.24.301 (39) to ARM
17.24.301 (41); recodify ``essential hydrologic functions'' definition.
ARM 17.24.301 (40) to ARM 17.24.301 (42); recodify ``excess spoil''
definition. ARM 17.24.301 (41) to ARM 17.24.301 (43); recodify ``farm''
definition. ARM 17.24.301 (42) to ARM 17.24.301 (44); recodify
``federal coal regulatory authority'' definition. ARM 17.24.301 (43) to
ARM 17.24.301 (45); recodify ``flood irrigation'' definition. ARM
17.24.301 (44) to ARM 17.24.301 (46); recodify ``fragile lands''
definition. ARM 17.24.301 (45) to ARM 17.24.301 (47); recodify
``fugitive dust'' definition. ARM 17.24.301 (46) to ARM 17.24.301 (48);
recodify ``good ecological integrity'' definition. ARM 17.24.301 (47)
to ARM 17.24.301 (49); recodify ``ground water'' definition. ARM
17.24.301 (48) to ARM 17.24.301 (50); recodify ``habitat or
characteristic pattern'' definition. ARM 17.24.301 (49) to ARM
17.24.301 (51); recodify ``head-of-hollow fill'' definition. ARM
17.24.301 (50) to ARM 17.24.301 (52); recodify ``higher or better
uses'' definition. ARM 17.24.301 (51) to ARM 17.24.301 (53); recodify
``highwall'' definition. ARM 17.24.301 (52) to ARM 17.24.301 (54);
recodify ``historic lands'' definition. ARM 17.24.301 (53) to ARM
17.24.301 (55); recodify ``historically used for cropland'' definition.
ARM 17.24.301 (54) to ARM 17.24.301 (56); recodify and delete
``hydrologic balance'' definition; refer reader to definition of
``hydrologic balance'' in MCA 82-4-203. ARM 17.24.301 (55) to ARM
17.24.301 (57); recodify ``hydrologic regime'' definition. ARM
17.24.301 (56) to ARM 17.24.301 (58); recodify ``imminent danger to the
health and safety of the public'' definition. ARM 17.24.301 (57) to ARM
17.24.301 (59); recodify ``impoundment'' definition. ARM 17.24.301 (58)
to ARM 17.24.301 (60); recodify ``inactive mining operation''
definition. ARM 17.24.301 (59) to ARM 17.24.301 (61); recodify
``incidental boundary revision'' definition. ARM 17.24.301 (60) to ARM
17.24.301 (62); recodify ``intermittent stream'' definition. ARM
17.24.301 (61) to ARM 17.24.301 (63); recodify ``in situ processing''
definition. ARM 17.24.301 (62) to ARM 17.24.301 (64); recodify
``irreparable damage to the environment'' definition. ARM 17.24.301
(63) to ARM 17.24.301 (65); recodify ``knowingly'' definition; remove
``an individual'' in the definition and replace with ``a person''. ARM
17.24.301 (64) to ARM 17.24.301 (66); recodify ``land use'' definition.
ARM 17.24.301 (65) to ARM 17.24.301 (67); recodify ``major revision''
definition. ARM 17.24.301 (66) to ARM 17.24.301 (68); recodify
``material damage'' definition as it relates to the ARM subchapter 9
rules (Strip and Underground Mine Reclamation Act: Underground Coal and
Uranium Mining). ARM 17.24.301 (67) to ARM 17.24.301 (69); recodify
``material damage'' definition as defined in MCA 82-4-203. ARM
17.24.301 (68) to ARM 17.24.301 (70); recodify ``materially damage the
quantity or quality of water'' definition. ARM 17.24.301 (69) to ARM
17.24.301 (71); recodify ``mine plan area'' definition. ARM 17.24.301
(70) to ARM 17.24.301 (72); recodify ``mineral'' definition. ARM
17.24.301 (71) to ARM 17.24.301 (73); recodify ``minor revision''
definition. ARM 17.24.301 (72) to ARM 17.24.301 (74); recodify
``mulch'' definition. ARM 17.24.301 (73) to ARM 17.24.301 (75);
recodify ``natural hazard lands'' definition. ARM 17.24.301 (74) to ARM
17.24.301 (76); recodify ``non-commercial building'' definition. ARM
17.24.301 (75) to ARM 17.24.301 (77); recodify ``noxious plants''
definition. ARM 17.24.301 (76) to ARM 17.24.301 (78); recodify
``occupied residential dwelling and structures related thereto''
definition. ARM 17.24.301 (77) to ARM 17.24.301 (79); recodify
``operation'' definition. ARM 17.24.301 (78) to ARM 17.24.301 (80);
recodify ``operator'' definition. ARM 17.24.301 (79) to ARM 17.24.301
(81); recodify ``other treatment facilities'' definition. ARM 17.24.301
(80) to ARM 17.24.301 (82); recodify ``outslope'' definition. ARM
17.24.301 (81) to ARM 17.24.301 (83); recodify ``overburden''
definition. ARM 17.24.301 (82) to ARM 17.24.301 (84); reword the
definition of ``owned, controlled and owns or controls by removing
``owned'', ``controlled'', and ``owns or controls'' and adding ``own,
owner or ownership''; recodify new ``own, owner, or ownership''
definition. ARM 17.24.301 (83) to ARM 17.24.301 (85); recodify
``perennial stream'' definition. ARM 17.24.301 (84) to ARM 17.24.301
(86); recodify ``permanent diversion'' definition. ARM 17.24.301 (85)
to ARM 17.24.301 (87); recodify ``permanent impoundment'' definition.
ARM 17.24.301 (86) to ARM 17.24.301 (88); recodify ``permit area''
definition. ARM 17.24.301 (87) to ARM 17.24.301 (89); recodify ``person
having an interest which is or may be adversely affected or person with
a valid legal interest'' definition. ARM 17.24.301 (88) to ARM
17.24.301 (90); recodify ``precipitation event'' definition. ARM
17.24.301 (89) to ARM 17.24.301 (91); recodify ``previously mined
area'' definition.
[[Page 6763]]
ARM 17.24.301 (90) to ARM 17.24.301 (92); recodify ``prime farmland''
definition. ARM 17.24.301 (91) to ARM 17.24.301 (93); recodify
``principal shareholder'' definition. ARM 17.24.301 (92) to ARM
17.24.301 (94); recodify ``probable hydrologic consequences''
definition. ARM 17.24.301 (93) to ARM 17.24.301 (95); recodify
``productivity'' definition. ARM 17.24.301 (94) to ARM 17.24.301 (96);
recodify ``prospecting'' definition. ARM 17.24.301 (95) to ARM
17.24.301 (97); recodify ``public building'' definition. ARM 17.24.301
(96) to ARM 17.24.301 (98); recodify ``public office'' definition. ARM
17.24.301 (97) to ARM 17.24.301 (99); recodify ``public park''
definition. ARM 17.24.301 (98) to ARM 17.24.301 (100); recodify
``railroad loop'' definition. ARM 17.24.301 (99) to ARM 17.24.301 (101)
recodify ``rangeland'' definition. ARM 17.24.301 (100) to ARM 17.24.301
(102); recodify ``recharge capacity'' definition. ARM 17.24.301 (101)
to ARM 17.24.301 (103); recodify ``reclamation'' definition. ARM
17.24.301 (102) to ARM 17.24.301 (104); recodify ``recurrence
interval'' definition. ARM 17.24.301 (103) to ARM 17.24.301 (105);
recodify ``reference area'' definition. ARM 17.24.301 (104) to ARM
17.24.301 (106); recodify ``remining'' definition. ARM 17.24.301 (105)
to ARM 17.24.301 (107); recodify ``renewable resource lands''
definition. ARM 17.24.301 (106) to ARM 17.24.301 (108); recodify
``replace adversely affected domestic water supply'' definition. ARM
17.24.301 (107) to ARM 17.24.301 (109); recodify ``road'' definition
and add ``subcategories of roads are as follows:'' clarifying language
to the definition. ARM 17.24.301 (108) to ARM 17.24.301 (110); recodify
``safety factor'' definition. ARM 17.24.301 (109) to ARM 17.24.301
(111); recodify ``sediment'' definition. ARM 17.24.301 (110) to ARM
17.24.301 (112); recodify ``sedimentation pond'' definition. ARM
17.24.301 (111) to ARM 17.24.301 (113); recodify ``significant,
imminent environmental harm to land, air or water resources''
definition. ARM 17.24.301 (112) to ARM 17.24.301 (114); recodify
``soil'' definition. ARM 17.24.301 (113) to ARM 17.24.301 (115);
recodify ``soil horizon'' definition. ARM 17.24.301 (114) to ARM
17.24.301 (116); recodify ``soil survey'' definition. ARM 17.24.301
(115) to ARM 17.24.301 (117); recodify ``spoil'' definition. ARM
17.24.301 (116) to ARM 17.24.301 (118); recodify ``stabilize''
definition. ARM 17.24.301 (117) to ARM 17.24.301 (119); recodify
``subirrigation'' definition. ARM 17.24.301 (118) to ARM 17.24.301
(120); recodify ``subsidence'' definition. ARM 17.24.301 (119) to ARM
17.24.301 (121); recodify ``substantial legal and financial
commitments'' definition. ARM 17.24.301 (120) to ARM 17.24.301 (122);
recodify and add ``of uranium prospecting holes'' and ``Drilling of
coal prospecting holes and installation and use of associated disposal
pits or installation of ground water monitoring wells does not
constitute substantial disturbance'' to the definition of
``substantially disturb''. Montana's proposal to add language to this
definition in relation to prospecting permits conforms to the changes
reviewed and approved by OSM in the Federal Register (84 FR 56689). ARM
17.24.301 (121) to ARM 17.24.301 (123); recodify ``successor in
interest'' definition. ARM 17.24.301 (122) to ARM 17.24.301 (124);
recodify ``surety bond'' definition. ARM 17.24.301 (123) to ARM
17.24.301 (125); recodify ``surface water'' definition. ARM 17.24.301
(124) to ARM 17.24.301 (126); recodify ``suspended solids or
nonfilterable residue'' definition. ARM 17.24.301 (125) to ARM
17.24.301 (127); recodify ``temporary diversion'' definition. ARM
17.24.301 (126) to ARM 17.24.301 (128); recodify ``temporary
impoundment'' definition. ARM 17.24.301 (127) to ARM 17.24.301 (129);
recodify ``test pit'' definition. ARM 17.24.301 (128) to ARM 17.24.301
(130); recodify ``toxic-forming materials'' definition. ARM 17.24.301
(129) to ARM 17.24.301 (131); recodify ``toxic mine drainage''
definition. ARM 17.24.301 (130) to ARM 17.24.301 (132); recodify and
remove ``in ownership or other effective control over the right to
conduct strip or underground mining operations under a permit issued by
the department'' and add ``of a permittee'' to ``transfer, assignment,
or sale of permit rights'' definition. ARM 17.24.301 (131) to ARM
17.24.301 (133); recodify ``unconsolidated streamlaid deposits holding
streams'' definition. ARM 17.24.301 (132) to ARM 17.24.301 (134);
recodify ``underground development waste'' definition. ARM 17.24.301
(133) to ARM 17.24.301 (135); recodify ``undeveloped rangeland''
definition. ARM 17.24.301 (134) to ARM 17.24.301 (136); recodify
``unwarranted failure to comply'' definition. ARM 17.24.301 (135) to
ARM 17.24.301 (137); recodify ``upland areas'' definition. ARM
17.24.301 (136) to ARM 17.24.301 (138); recodify ``valley fill''
definition. ARM 17.24.301 (137) to ARM 17.24.301 (139); recodify
``valid existing rights'' definition. ARM 17.24.301 (138) to ARM
17.24.301 (140); recodify ``violation notice'' definition. ARM
17.24.301 (140) to ARM 17.24.301 (142); recodify ``waste'' definition.
ARM 17.24.301 (141) to ARM 17.24.301 (143); recodify ``waste disposal
structure'' definition. ARM 17.24.301 (142) to ARM 17.24.301 (144);
recodify ``water table'' definition. ARM 17.24.301 (143) to ARM
17.24.301 (145); recodify ``wildlife habitat enhancement feature''
definition. ARM 17.24.301 (144) to ARM 17.24.301 (146); recodify
``willful violation'' definition. ARM 17.24.301 (145) to ARM 17.24.301
(147); recodify ``willfully definition; strike the words ``an
individual'' and add the word ``person'' to the definition. These
changes are no less stringent than SMCRA and no less effective than the
requirements found in the counterpart Federal regulations.
<bullet> ARM 17.24.302(1)--Montana proposed to add the language
``submitted in a format acceptable to the department''. This change is
no less stringent than SMCRA and no less effective than the
requirements found in counterpart Federal regulations at 30 CFR
777.11(a)(3).
<bullet> ARM 17.24.304(1)(f)(iv)(i) to ARM 17.24.304(1)(g);
recodification. ARM 17.24.304(1)(f)(iv)(i)(A) to ARM
17.24.304(1)(g)(i); recodification. ARM 17.24.304(1)(f)(iv)(i)(B) to
ARM 17.24.304(1)(g)(ii); recodification. ARM 17.24.304(1)(f)(iv)(i)(C)
to ARM 17.24.304(1)(g)(iii); recodification. ARM
17.24.304(1)(f)(iv)(i)(D) to ARM 17.24.304(1)(g)(iv); recodification
and rule references from (6) to (1)(f), (7)(a)(ii) and (iii) to
(1)(g)(ii) and (iii). ARM 17.24.304(1)(f)(iv)(i)(E) to ARM
17.24.304(1)(g)(v); recodification and punctuation revisions (semi-
colon struck and period added). ARM 17.24.304(1)(f)(iv)(ii);
recodification to an additional sentence in ARM 17.24.304(1)(g)(v);
remove the words ``in this regard'' and add ``conducted under (g)''.
ARM 17.24.304(1)(j)(iv); minor grammatical changes; remove ``through
(h)'' and add ``and (g)''. These changes are no less stringent than
SMCRA and no less effective than the requirements found in counterpart
Federal regulations at 30 CFR part 779.
<bullet> ARM 17.24.308(1)(b)(vii); minor grammatical changes;
addition of the word ``or''. These changes are no less stringent than
SMCRA and no less effective than the requirements found in counterpart
Federal regulations at 30 CFR part 780.
<bullet> ARM 17.24.313(1)(h)(x); addition of the language
``pursuant to ARM 17.24.724 and 17.24.726''. ARM 17.24.313(1)(j); minor
grammatical changes; remove ``(2)'' and add ``(1)(b)''. These changes
are no less stringent than SMCRA and no less effective than the
requirements found in counterpart Federal regulations at 30 CFR part
780.
[[Page 6764]]
<bullet> ARM 17.24.314(1)(c); minor grammatical changes; remove
``(5)'' and add ``(1)(e)''; remove ``(6)'' and add ``(f)''. ARM
17.24.314(2)(d); minor grammatical changes; remove ``(5)'' and add
``(1)(e)''; remove ``(6)'' and add ``(f)''; and add a comma after
``17.24.645''. These changes are no less stringent than SMCRA and no
less effective than the requirements found in counterpart Federal
regulations at 30 CFR part 780.
<bullet> ARM 17.24.401(3)(b)(ii); minor grammatical changes; add
the word ``and''. ARM 17.24.401(3)(b)(iii); remove ``state the names of
the US geological survey 7.5 or 15 minute quadrangle maps that contain
the area shown or described, if available; and''. ARM
17.24.401(3)(b)(iv); recodification to ARM 17.24.401(3)(b)(iii). These
changes are no less stringent than SMCRA and no less effective than the
requirements found in counterpart Federal regulations at 30 CFR 779.24
and 30 CFR 779.25.
<bullet> ARM 17.24.403(2)(c); remove ``mine plan'' and add the
language ``proposed mining''. These changes are no less stringent than
SMCRA and no less effective than the requirements found in counterpart
Federal regulations at 30 CFR 773.6.
<bullet> ARM 17.24.416(4)(a) to ARM 17.24.416(4); recodification.
ARM 17.24.416(4)(a)(i) to ARM 17.24.416(4) (a); recodification. ARM
17.24.416(4)(a)(ii) to ARM 17.24.416(4)(b); recodification. ARM
17.24.416(4)(a)(iii) to ARM 17.24.416(4)(c); recodification. ARM
17.24.416(4)(a)(iv) to ARM 17.24.416(4)(d); recodification. ARM
17.24.416(4)(a)(iv)(A) to ARM 17.24.416(4)(d)(i); recodification. ARM
17.24.416(4)(a)(iv)(B) to ARM 17.24.416(4)(d)(ii); recodification. ARM
17.24.416(4)(a)(v) to ARM 17.24.416(4)(e); recodification. ARM
17.24.416(4)(a)(vi) to ARM 17.24.416(4)(f); recodification. ARM
17.24.416(4)(a)(vii) to ARM 17.24.416(4)(g); recodification. ARM
17.24.416(4)(a)(viii) to ARM 17.24.416(4)(h); recodification. ARM
17.24.416(4)(i); add the language ``the department determines following
an eligibility review and determination as described in ARM 17.24.1265,
that the owner or operator is not eligible for a permit,''. ARM
17.24.416(4)(b) to ARM 17.24.416(5); recodification. ARM
17.24.416(4)(c) to ARM 17.24.416(6); recodification. ARM
17.24.416(4)(d) to ARM 17.24.416(7); recodification. ARM 17.24.416(5)
to ARM 17.24.416(8); recodification. These changes are no less
stringent than SMCRA and no less effective than the requirements found
in counterpart Federal regulations at 30 CFR 774.15.
<bullet> ARM 17.24.418(1); minor grammatical changes; add ``,'',
remove ``or'', and add ``, or sale''. ARM 17.24.418(2); minor
grammatical changes; add ``,'', remove ``or'', add ``, or sale'', and
add ``rights''. ARM 17.24.418(2)(b)(iii); minor grammatical changes;
remove ``subchapter 3'' and add ``ARM 17.24.303''. ARM 17.24.418(4);
minor grammatical changes; add ``assignment, or'' and remove ``, or
assignment''. These changes are no less stringent than SMCRA and no
less effective than the requirements found in counterpart Federal
regulations at 30 CFR 774.17.
<bullet> ARM 17.24.425(1); minor grammatical changes; remove
``sale, or'' and add ``, or sale'' and ``permit''. Minor grammatical
changes; ARM 17.24.425(3); remove ``department'' and add ``board''. ARM
17.24.425(6); minor grammatical changes; remove ``department'', add
``board'', remove ``department'', and add ``board''. These changes are
no less stringent than SMCRA and no less effective than the
requirements found in counterpart Federal regulations at 30 CFR 775.11.
<bullet> ARM 17.24.1201(2); add ``Any potential violation observed
during an aerial inspection shall be investigated on site within three
days, provided that any indication of a violation, condition, or
practice that creates an imminent danger to the health or safety of the
public or is causing or can reasonably be expected to cause significant
and imminent environmental harm to land, air, or water resources shall
be investigated immediately. On-site investigations of potential
violations observed during an aerial inspection may not be considered
to be an additional partial or complete inspection for the purposes of
ARM 17.24.1201.'' These changes are no less stringent than SMCRA and no
less effective than the requirements found in counterpart Federal
regulations at 30 CFR 840.11(d)(2).
E. Substantive Revisions to the ARM
1. ARM 17.24.301 Definitions
ARM 17.24.301(139) to ARM 17.24.301(141); in addition to the
recodification of the definition of ``violation,'' ``failure,'' or
``refusal'', at ARM 17.24.301(139), to ARM 17.24.301(141), Montana
proposed to add reference to ARM 17.24.1265 (proposed rule pertaining
to the Applicant Violator System and permit eligibility determinations)
in their current definition of violation, failure, or refusal.
Montana's proposed change to the definition of violation, failure,
or refusal would be for the purposes of ARM 17.24.1217 (individual
civil penalties) and their proposed Applicant Violator System rules, at
ARM 17.24.1265. The Federal definition of violation, failure, or
refusal is for the purposes of individual civil penalties only and not
for the Federal rules that pertain to the Applicant Violator System. As
proposed, Montana's changes to the definition of violation, failure, or
refusal would comply with the Federal program in terms of the
definition of violation, failure, or refusal for the purposes of
individual civil penalties. The addition of the language that would
make the definition of violation, failure, or refusal also apply to the
proposed regulation at ARM 17.24.1265 would not render the Montana
program less stringent than SMCRA or less effective than the Federal
regulations. Montana's current definition of violation, although not as
verbose as the Federal definition of violation, still remains all-
encompassing and, therefore, at least as effective as the Federal
regulations.
Montana's proposed additions to the ARM, at 17.24.301(1)(a)
requiring information of the applicant, applicant's resident agent
(i.e., the person who is designated for accepting service of process),
and the applicant's operator, if any, are consistent with and as
effective as Federal regulations at 30 CFR 778.11. We approve this
change. Montana's deletion of the words ``the person who will pay the
abandoned mine reclamation fee pursuant to 30 U.S.C. 1232;'' in ARM
17.24.301(1)(a) does not render their program less stringent than SMCRA
or less effective than the Federal regulations at 30 CFR 778.11, and we
approve this deletion. However, as proposed, ARM 17.24.303(1)(a) still
does not require the applicant, applicant's resident agent and
applicant's operator taxpayer identification numbers for the pending
permit application. ARM 17.24.303(1)(a) requires employer
identification numbers of the applicant, applicant's resident agent,
and applicant's operator, but not taxpayer identification numbers. To
be consistent with and as effective as Federal regulations at 30 CFR
778.11(a)(2), Montana would need to require taxpayer identification
numbers for the applicant and operator in ARM 17.24.303(1)(a). We
notified Montana of this concern by letter dated March 30, 2023 (Docket
ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3,
2023, and provided us with a follow-up formal program amendment with
these required changes
[[Page 6765]]
(Docket ID: OSM-2021-0006-0007). Because Montana has submitted changes
that would require taxpayer identification numbers for the applicant
and operator in ARM 17.24.303(1)(a), we find that these proposed
changes with revisions would be no less stringent than SMCRA and no
less effective as the Federal regulations at 30 CFR 778.11(a)(2) and
approve these changes.
2. ARM 17.24.303 Legal, Financial, Compliance, and Related Information
ARM 17.24.303(1)(e)--Montana proposed to delete the language in ARM
17.24.303(1)(e), which required ``the names and addresses of any
persons who are engaged in strip or underground mining on behalf of the
applicant and any person who will conduct such operations should the
permit be granted;''. This language is no longer needed as these
requirements are now in ARM 17.24.303(1)(a). This proposed deletion of
ARM 17.24.303(1)(e) would not render their program less stringent than
SMCRA or less effective the Federal regulations at 30 CFR 778.11, and
we approve this deletion. Montana also recodified ARM 17.24.303(1)(f)
to ARM 17.24.303(1)(e) and added the requirement that in addition to
the applicant, the operator also provide business entity information.
We approve this recodification.
In new ARM 17.24.303(1)(f), Montana has proposed adding ``each
business entity in the applicant's an/or operator's organizational
structure, up to and including the ultimate parent entity of the
applicant and operator, for every such business entity, the applicant
must also provide the required information for every president, chief
executive officer, and director (or persons in similar positions), and
every person who owns, or records, 10 percent or more of the entity;''.
This language is no less stringent than SMCRA and no less effective
than the Federal regulations at 30 CFR 778.11, specifically 30 CFR
778.11(c). The terms ``partner'' and ``member'' were omitted from the
rule that Montana as initially proposed. The Federal regulations at 30
CFR 778.11(c) include these terms, and so Montana would need to include
these terms in their proposed rule for their rule to be consistent with
the Federal regulations. We notified Montana of this concern by letter
dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana responded
in a letter dated May 3, 2023, and resubmitted a revised program
amendment with these required changes (Docket ID: OSM-2021-0006-0007).
Because Montana has now submitted changes that would also require
partners and members to provide the required information, we find that
these proposed changes with revisions to be no less stringent than
SMCRA and no less effective than the Federal regulations at 30 CFR
778.11(c), and we approve these changes.
In new ARM 17.24.303(1)(g), Montana proposed to add certain
language, but the language initially submitted had numerous typos and
grammatical errors that were pointed out by OSM in our concern letter
to Montana dated March 30, 2023 (Docket ID: OSM-2021-0006-0004).
Montana responded in a letter dated May 3, 2023, and resubmitted a
revised program amendment with corrections (Docket ID: OSM-2021-0006-
0007). As revised, this rule states: ``a list of all names under which
the applicant, operator, partners or principal shareholders, and
operator's partners or principal shareholders who operate or previously
operated a surface coal mine operation in the United States within the
five-year period preceding the date of submission of the application.''
Because the revised language is no less stringent than SMCRA and no
less effective than the Federal regulations at 30 CFR 778.11, we
approve these changes.
In ARM 17.24.303(1)(g)(i)-(iv), Montana proposed minor changes to
these rules. As submitted, the changes in ARM 17.24.303(1)(g)(i)
contained a minor typographical error. We notified Montana of the typo
by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana
responded in a letter dated May 3, 2023, and resubmitted a revised
program amendment with the necessary correction (Docket ID: OSM-2021-
0006-0007). In addition, Montana's revised program amendment also
proposed to add the requirement that the person's phone number be
included, along with other information for each name on the permit
application. These changes are no less stringent than SMCRA and no less
effective than the Federal regulations at 30 CFR 778.11, and we approve
both.
Montana also proposed, and we approve, the following changes:
[cir] deletion of the requirement that the persons named in the
application provide the control relationship to the applicant in ARM
17.24.303(1)(g)(ii),
[cir] addition of language in ARM 17.24.303(1)(g)(iv) requiring the
applicant to submit information related to the regulatory authority
with jurisdiction over the permit,
[cir] deletion of the unneeded owner or controller or previously
owned or controlled language in ARM 17.24.303(1)(g)(iv), and;
[cir] addition of the requirement at ARM 17.24.303(1)(h) that
persons on the application provide additional information for persons
who operate or previously operated coal mining and reclamation
operations in the United States within the five years preceding the
date of the application.
We approve these proposed additions and deletions as they are no less
stringent than SMCRA and no less effective than the Federal
regulations, including 30 CFR 778.12.
Montana's proposed recodification, from ARM 17.24.303(1)(i) to ARM
17.24.303(1)(j), has no substantive effect and is in accordance with
SMCRA and consistent with the Federal regulations at 30 CFR 778.11 and
30 CFR 778.13. Thus, we approve these changes.
Montana proposed to recodify ARM 17.24.303(1)(j) to ARM
17.24.303(1)(k), and to keep permit application information
confidential, including interests or the holding of lands that share a
common border with the permit. We approve these changes as they are no
less stringent than SMCRA and no less effective than the Federal
regulations at 30 CFR 778.13.
Montana's proposed recodification from ARM 17.24.303(1)(k) to ARM
17.24.303(1)(l) has no substantive effect and would not render their
program less stringent than SMCRA or less effective than the Federal
regulations at 30 CFR 778.11 and 30 CFR 778.13. We approve these
changes.
Montana also proposed to recodify ARM 17.24.303(1)(l) to ARM
17.24.303(1)(m) and proposed new language at ARM 17.24.303(1)(m) to
require information from the permit applicant related to permit
suspensions, revocations, or performance bond forfeiture for a five-
year period preceding the date of the application. The facts involved
in each case must also be submitted. Montana also proposed new language
in ARM 17.24.303(1)(m)(i), which describes what specific information is
required to be submitted if a permit suspension, revocation, or
performance bond forfeiture has occurred. Finally, Montana proposed to
delete the requirement that the permit issuance date be included with
the specific information to be submitted in the event a permit
suspension, revocation, or performance bond forfeiture had occurred.
Montana's recodification and proposed additions and minor deletion to
the ARM, at 17.24.303(1)(m), are no less stringent than SMCRA and no
less effective than the Federal regulations at
[[Page 6766]]
30 CFR 778.14. We approve these changes.
Montana proposed to recodify ARM 17.24.303(1)(m) to ARM
17.24.303(1)(n) and to add new language at ARM 17.24.303(1)(n) to
require information pertaining to violation notices the applicant or
operator has received during the three-year period preceding the date
of the permit application as well as current unabated or uncorrected
violation notices. Montana has added the requirement that the applicant
or operator provide identification numbers of the violation notices
mentioned above and removed the requirement that the Mine Safety and
Health Administration number of the violation also be included (ARM
17.24.303(1)(n)(i)). Montana has also added the requirement that if
applicable, current violation abatement information be included.
Montana's recodification and proposed additions and minor deletions to
the ARM, at 17.24.303(1)(n), are no less stringent than SMCRA and no
less effective than the Federal regulations at 30 CFR 778.14. We
approve these changes.
Montana's recodifications to the ARM at 17.24.303(1)(o), ARM
17.24.303(1)(p), and ARM 17.24.303(1)(q) have no effect and would not
render their program less stringent than SMCRA or less effective than
the Federal regulations at 30 CFR 778.14. We approve these changes.
Montana proposed minor changes to the ARM, at 17.24.303(1)(r),
about mining within 100 feet of a public road and specifying that the
requirements of ARM 17.24.1134, ARM 17.24.1135, and ARM 17.24.1136
would apply. Montana's recodification and proposed additions and
deletions to the ARM at 17.24.303(1)(r) are no less stringent than
SMCRA and no less effective than the Federal regulations at 30 CFR
778.16. In addition, the cross-references in the ARM at 17.24.303(1)(r)
are no less stringent than SMCRA and no less effective than the Federal
regulations at 30 CFR 778.16, which references 30 CFR 761.14 and
761.15. We approve these changes.
Montana proposed to recodify ARM 17.24.303(1)(r) to ARM
17.24.303(1)(s); ARM 17.24.303(1)(s) to ARM 17.24.303(1)(t); ARM
17.24.303(1)(t) to ARM 17.24.303(1)(u); ARM 17.24.303(1)(u) to ARM
17.24.303(1)(v); ARM 17.24.303(1)(v) to ARM 17.24.303(1)(w); ARM
17.24.303(1)(w) to ARM 17.24.303(1)(x); ARM 17.24.303(1)(x) to ARM
17.24.303(1)(y); and ARM 17.24.303(1)(y) to ARM 17.24.303(1)(z). These
recodifications have no substantive effect and would be in accordance
with SMCRA and consistent with the Federal regulations at 30 CFR part
778. We approve these changes.
3. ARM 17.24.1229 Criminal Penalties and Civil Actions
Montana is proposing to add a new provision at ARM 17.24.1229(1)
that would add alternative enforcement provisions to their existing
rules. ARM 17.24.1229(1) directs MDEQ to update the Applicant Violator
System when a court enters a judgment against or convicts a person
under the MCA for a civil penalty resulting from a violation under Part
1 (82-4-141), permit suspension (82-4-251), or civil penalty resulting
from a violation under Part 2 (82-4-254). Montana's proposed new
language at ARM 17.24.1229(1) is no less stringent than SMCRA and no
less effective the Federal regulations at 30 CFR 847.2(a). We approve
these changes.
Montana's proposed new rule at ARM 17.24.1229(2) that specifies
that the existence of a performance bond or bond forfeiture could not
be the only reason for deciding against using alternative enforcement,
is also no less stringent than SMCRA and no less effective than the
Federal regulations at 30 CFR 847.2(b). We approve these changes.
Montana's proposed new rule at ARM 17.24.1229(3) provides that this
rule would not preclude the use of other State of Montana or Federal
laws about other enforcement or procedures and is no less stringent
than SMCRA and no less effective than the Federal regulations at 30 CFR
847.2(d). We approve these changes.
Montana's proposed new rule at ARM, at 17.24.1229(4) states that
``MDEQ may request a criminal justice agency to pursue criminal
penalties pursuant to 82-4-141(3) or 82-4-251(6) or (7) MCA.'' The MCA,
at 82-4-141(3), pertains to persons that purposely or knowingly violate
any of the provisions of MCA 82-4-141 or order adopted under the same
regulation that has become final. The MCA, at 82-4-251(6), pertains to
notices (violations) or orders (cessation orders). The MCA, at 82-4-
251(7), pertains to attorney fees. The Federal regulations at 30 CFR
847.11 apply a willful or knowing standard before pursuing criminal
penalties. The ARM, at 17.24.1229(4), citing MCA 82-4-251(6) does not
appear to use the willful or knowing standard before pursuing criminal
penalties. To the extent that the willful or knowing standard is not
necessary before pursuing criminal penalties in Montana, this provision
would be more stringent than SMCRA, and it would be no less effective
than the Federal regulations at 30 CFR 847.11.
As proposed, Montana's new language at ARM 17.24.1229(4) appears to
cite incorrect references to the MCA. The referenced section, MCA 82-4-
251(7), in the proposed rule at ARM 17.24.1229(4) pertains to attorney
fees. We notified Montana of this typo by letter dated March 30, 2023
(Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated
May 3, 2023, and resubmitted a revised program amendment with the
citation corrected (Docket ID: OSM-2021-0006-0007). Montana proposes to
now cite MCA 82-4-254(6) or (7) in the ARM 17.24.1229(4) instead of MCA
82-4-251(6) or (7). This correction is no less stringent than SMCRA and
no less effective than the Federal regulations at 30 CFR 847.11(c), and
we approve this change.
Montana proposed new language at ARM 17.24.1229(5), when applied in
conjunction with the referenced MCA provisions at 82.4.254(3)(c) and
(4), is no less stringent than SMCRA and no less effective than the
Federal regulations at 30 CFR 847.11 and 30 CFR 847.16. We therefore
approve these changes.
4. ARM 17.24.1264 MDEQ's Obligations Regarding the Applicant Violator
System
Montana's proposed new rule at ARM 17.24.1264 outlines the
requirements of Montana about data entry into the Applicant Violator
System, including permit applicant and operator information, permit
history information, unabated or uncorrected violation information, and
other information identified in the review of the permit application.
Timelines for data entry, preliminary findings of ownership or control,
and timeframes for owner or controller challenges to a finding by
Montana are also included. Finally, Montana included requirements to
include information regarding judgments or convictions, as well as
permanent permit ineligibility into the Applicant Violator System.
Montana's proposed new language at ARM 17.24.1264 is no less stringent
than SMCRA and no less effective than the Federal regulations at 30 CFR
773.8 and 30 CFR 774.11(c) through (h). In addition, when ARM
17.24.1264 is applied with Montana's new statute, MCA 82-4-227(14),
which corresponds to section 510(c) of SMCRA and 30 CFR 774.11(c)
through (e) pertaining to permanent permit ineligibility, it is no less
stringent than SMCRA and no less effective than the Federal
regulations. We, therefore, approve these changes.
[[Page 6767]]
5. ARM 17.24.1265 MDEQ's Eligibility Review
Montana has proposed a new rule, at ARM 17.24.1265(1)(a)-(d), which
outlines Montana's requirements in making permit eligibility
determinations and the information used in making such determinations.
The new rule references permit information requirements in ARM
17.24.303, the Applicant Violator System, and other information
available to Montana including ownership and control information,
permit history, previous mining experience, compliance history with
SMCRA and MSUMRA, permits, and air or water quality laws. This new rule
is no less stringent than SMCRA and no less effective than the Federal
regulations at 30 CFR 773.9, 30 CFR 773.10, 30 CFR 773.11, and 30 CFR
773.12. Therefore, we approve these changes.
Montana has proposed new language at ARM 17.24.1265(2) giving
Montana the authority to conduct additional reviews for an applicant
and operator that have no previous mining experience in determining
permit eligibility. This provision is no less stringent than SMCRA and
no less effective than the Federal regulations at 30 CFR 773.10. We
approve this rule.
Montana has proposed new language at ARM 17.24.1265(3)(a)-(c),
which relates to permanent permit ineligibility and the reasons for
making a permanent permit ineligibility decision. The new rule
references MCA 82-4-227(12), ARM 17.24.405(6)(h), and generally
references SMCRA and MSUMRA. After review of this proposed new rule, we
notified Montana of two typos by letter dated March 30, 2023 (Docket
ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3,
2023, and resubmitted a revised program amendment with these
corrections. (Docket ID: OSM-2021-0006-0007). This revised proposed new
rule is now no less stringent than SMCRA and no less effective than the
Federal regulations at 30 CFR 773.12, which references section 510(c)
of SMCRA, and 30 CFR 773.9, 773.10, 773.11, 773.13, 773.14, 774.11(c),
773.15, 778.9(d), and 773.19, as well as the general appeal rights in
30 CFR part 775 and 43 CFR 4.1360 through 4.1369. We approve these
changes.
Montana has proposed new language at ARM 17.24.1265(4)(a)-(b),
which provides for an additional review after permit approval but
before permit issuance. This review relies on permit information
requirements found in the ARM, at 17.24.303(1)(a), (c), (d), (g), (h),
(i), (k), Montana's new Applicant Violator System rules at ARM
17.24.1264(1), and compliance history from the Applicant Violator
System. The review must also be conducted within five business days
before permit issuance under ARM 17.24.405. After review of this new
rule, we notified Montana of one typo by letter dated March 30, 2023
(Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated
May 3, 2023, and Montana resubmitted a revised program amendment with
this correction. (Docket ID: OSM-2021-0006-0007). This revised proposed
new rule is now no less stringent than SMCRA and no less effective than
the Federal regulations at 30 CFR 778.9(d), which also references 30
CFR 778.11 through 30 CFR 778.14. We approve these changes.
Montana has proposed new rule at ARM 17.24.1265(5)(a)-(b) that
outlines steps to be taken by Montana and the applicant when MDEQ makes
a finding that the applicant is ineligible for a permit. When such a
finding is made under the proposed new rule, Montana must provide
written notification of the decision to the applicant with appeal
rights and procedures. The applicant can also challenge a permit
ineligibility finding under this new rule as outlined in ARM
17.24.1266(12). This proposed new rule is no less stringent than SMCRA
and no less effective than the Federal regulations at 30 CFR 778.9(b)
and 30 CFR 773.25, and we approve these changes.
6. ARM 17.24.1266 Questions About and Challenges to Ownership or
Control Findings
Montana has proposed a new rule, at ARM 17.24.1266(1), that
provides procedures for inquiries about owner or controller listings in
the Applicant Violator System. This proposed new rule is no less
stringent than SMCRA and no less effective than the Federal regulations
at 30 CFR 773.26(e), and we approve this change.
Montana has proposed new language at ARM 17.24.1266(2)(a)-(b) that
outlines procedures for challenging owner or controller findings in the
Applicant Violator System, as well as the tribunal that would hear such
a challenge. This rule is no less stringent than SMCRA and no less
effective than the Federal regulations at 30 CFR 773.25, and we approve
this change.
Montana has proposed new language at ARM 17.24.1266(3)(a)-(b) that
provides procedures for challenges to ownership or control listing in
the Applicant Violator System that fall under Montana jurisdiction.
This new rule is no less stringent than SMCRA and no less effective
than the Federal regulations at 30 CFR 773.26, and we approve this
change.
Montana has proposed new language at ARM 17.24.1266(4) that
outlines the requirements for challenging ownership and control
designations made by another regulatory authority. This rule is no less
stringent than SMCRA and no less effective than the Federal regulations
at 30 CFR 773.26, and we approve this change.
Montana has proposed new language at ARM 17.24.1266(5)(a)-(b) that
lists the requirements that must be met to challenge Montana's finding
or a listing of ownership and control. This rule is no less stringent
than SMCRA and no less effective than the Federal regulations at 30 CFR
773.27.
Montana has proposed new language at ARM 17.24.1266(6) that further
defines the burden of proof requirements for a person who challenges
Montana's finding or listing of ownership and control. This addition is
no less stringent than SMCRA and no less effective than the Federal
regulations at 30 CFR 773.27.
Montana has proposed new language at ARM 17.24.1266(7)(a)-(d) that
further explains the burden of proof needed in challenges to Montana's
finding or listing of ownership and control. After review of this new
rule, we notified Montana of one typo by letter dated March 30, 2023
(Docket ID: OSM-2021-0006-0004). Montana responded in a letter dated
May 3, 2023, and resubmitted a revised program amendment with this
correction. (Docket ID: OSM-2021-0006-0007). With this correction, we
have determined that this proposed new rule is no less stringent than
SMCRA and no less effective than the Federal regulations at 30 CFR
773.27, and we approve these changes.
Montana has proposed new language at ARM 17.24.1266(8) that
outlines what Montana does when it receives a written challenge to an
ownership or control listing. This provision is no less stringent than
SMCRA and no less effective than the Federal regulations at 30 CFR
773.28. We approve this change.
Montana has proposed new language at ARM 17.24.1266(9) that allows
MDEQ to consult with other regulatory authorities about challenges to
ownership or control listings where a violation is in a different
jurisdiction. After review of this new rule, we notified Montana of one
typo by letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004).
Montana responded in a letter dated May 3, 2023, and resubmitted a
revised program amendment with this correction.
[[Page 6768]]
(Docket ID: OSM-2021-0006-0007). As revised, this proposed new rule is
no less stringent than SMCRA and no less effective than the Federal
regulations at 30 CFR 773.26(c). We approve these changes.
Montana has proposed new language at ARM 17.24.1266(10) that
requires Montana to provide all decisions made under this rule to the
Applicant Violator System. After review of this new rule, we notified
Montana of one suggested edit by letter dated March 30, 2023 (Docket
ID: OSM-2021-0006-0004). Montana responded in a letter dated May 3,
2023, and resubmitted a revised program amendment with our suggested
edit incorporated into this new rule (Docket ID: OSM-2021-0006-0007).
With this revision, this proposed new rule is no less stringent than
SMCRA and no less effective than the Federal regulations at 30 CFR
773.28(d). We approve these changes.
Montana has proposed new language at ARM 17.24.1266(11) that
requires Montana, upon completion of a written decision under this
rule, to review the information in the Applicant Violator System for
accuracy. This new language is no less stringent than SMCRA and no less
effective than the Federal regulations at 30 CFR 773.28(f), and we
approve this change.
Montana has proposed new language at ARM 17.24.1266(12) that
extends hearing rights to applicants, permittees, or persons that may
be adversely affected by a decision from Montana under this new rule.
After review of this initial program amendment submission, we notified
Montana of two typos by letter dated March 30, 2023 (Docket ID: OSM-
2021-0006-0004). Montana responded in a letter dated May 3, 2023, and
resubmitted a revised program amendment with corrections (Docket ID:
OSM-2021-0006-0007). As revised, this proposed new rule is no less
stringent than SMCRA and no less effective than the Federal regulations
at 30 CFR 773.28(e). We approve these changes.
We note, however, that even with proposed ARM 17.24.1266,
additional language similar to 30 CFR 773.26(b), which specifies that
applicants can only use the procedures set forth in 30 CFR 773.26
through 773.28 to challenge ownership and control findings and not for
any challenge to liability or responsibility under any other provision
of the Act or its implementing regulations, should be considered for
inclusion in Montana's rule. We notified Montana of this deficiency in
a letter dated March 30, 2023 (Docket ID: OSM-2021-0006-0004). Montana
responded in a letter dated May 3, 2023, and resubmitted a revised
program amendment with the addition of ARM 17.24.1266(13), which
states: ``The provisions of this section apply only to challenges to
ownership or control listings or findings. These provisions may not be
used to challenge liability or responsibility under any other provision
of MSUMRA or its implementing regulations.'' (Docket ID: OSM-2021-0006-
0007). As revised, this rule is no less stringent than SMCRA and no
less effective than the Federal regulations at 30 CFR 773.26(b). We
approve this addition.
7. ARM 17.24.1267 Information Requirements for Permittees
Montana has proposed new language at ARM 17.24.1267(1)(a)-(g) that
would require permittees to update applicant or operator information in
the Applicant Violator System after receiving a cessation order. This
revision is no less stringent than SMCRA and no less effective than the
Federal regulations at 30 CFR 774.12, which require updates to
information required under 30 CFR 778.11. Information requirements
under 30 CFR 778.11 are found in State counterpart rules at ARM
17.24.303. We approve these changes.
Montana has proposed new language at ARM 17.24.1267(2) that would
not require the permittee to provide the updated information required
of the ARM 17.24.1267(1) (a)-(g) if a court of competent jurisdiction
grants a stay of the cessation order and the stay remains in effect.
This proposal is no less stringent than SMCRA and no less effective
than the Federal regulations at 30 CFR 774.12(b). We approve this
change.
Montana has proposed new language at ARM 17.24.1267(3)(a)-(b) that
requires the permittee to update information within 60 days of any
addition, departure, or change of any person identified in the ARM
17.24.1267(1)(e). This proposal is no less stringent than SMCRA and no
less effective than the Federal regulations at 30 CFR 774.12(c). We
approve this change.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment and received two
general comments about the mining industry and regulation in Montana.
These comments do not require a response.
Federal Agency Comments
On August 5, 2021, under 30 CFR 732.17(h)(11)(i) and section 503(b)
of SMCRA, we requested comments on the proposed amendment from various
Federal agencies with an actual or potential interest in the Montana
program (Administrative Record No. MT-37-06). On August 6, 2021, the
U.S. Department of Energy responded that it did not have any comments.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). None of the revisions that Montana proposed to
make in this amendment pertain to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment. However, on
August 5, 2021, under 30 CFR 732.17(h)(11)(i), we requested comments
from the EPA on the proposed amendment (Administrative Record No. MT-
37-06). On August 5, 2021, the EPA responded that it did not have any
comments.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on proposed amendments that may have an effect on
historic properties. On August 5, 2021, we requested comments on the
proposed Montana amendment from the SHPO and the ACHP (Administrative
Record Numbers MT-37-04 and MT-37-05, respectively). On August 16,
2021, the SHPO responded with no comments.
V. OSM's Decision
Based on the above findings, we are approving the submittal that
Montana sent to us on July 28, 2021 (Administrative Record No. MT-037-
01) as revised by the re-submittal that Montana sent to us on May 3,
2023.
VI. Statutory and Executive Order Reviews
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not affect a taking of private property or
otherwise have taking implications that would result in private
property being taken for government use without just compensation under
the law. Therefore, a takings implication assessment is not required.
This determination is based on
[[Page 6769]]
an analysis of the corresponding Federal regulations.
Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB memorandum M-94-3, dated
October 12, 1993, the approval of State program amendments is exempted
from OMB review under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior reviewed this rule as required by
section 3 of Executive Order 12988. The Department determined that this
Federal Register document meets the criteria of section 3 of Executive
Order 12988, which is intended to ensure that the agency reviews its
legislation and proposed regulations to eliminate drafting errors and
ambiguity; that the agency write its legislation and regulations to
minimize litigation; and that the agency's legislation and regulations
provide a clear legal standard for affected conduct rather than a
general standard and promote simplification and burden reduction.
Because section 3 focuses on the quality of Federal legislation and
regulations, the Department limited its review under this Executive
order to the quality of this Federal Register document and to changes
to the Federal regulations. The review under this Executive order did
not extend to the language of the State regulatory program or amendment
that Montana drafted.
Executive Order 13132--Federalism
This rule has potential federalism implications as defined under
section 1(a) of Executive Order 13132. Executive Order 13132 directs
agencies to ``grant the States the maximum administrative discretion
possible'' with respect to Federal statutes and regulations
administered by the States.
Montana, through its approved regulatory program, implements and
administers SMCRA and its implementing regulations at the State level.
This rule approves an amendment to the Montana program submitted and
drafted by the State and, thus, is consistent with the direction to
provide maximum administrative discretion to States.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their Tribal right to
self-governance and sovereignty. We have evaluated this rule under the
Department's consultation policy and under the criteria in Executive
Order 13175.
We have determined that it has no substantial direct effects on
federally recognized Tribes or on the distribution of power and
responsibilities between the Federal Government and Tribes. Therefore,
consultation under the Department's Tribal consultation policy is not
required. The basis for this determination is that our decision is on
the Montana State program that does not include the regulation of
Indian lands or regulation of activities on Indian lands as that term
is defined in 30 U.S.C. 1291(9).
Indian lands are regulated independently under the applicable,
approved Federal Indian lands program, with the exception of the Crow
Tribe's ``Ceded Strip'' in Montana. The Ceded Strip is a unique and
special situation because, under the terms of the memorandum of
understanding, the Department of the Interior and State of Montana
agreed to coordinate the administration of applicable surface mining
requirements in the Strip. Even though we are approving the amendment
and revisions to the original amendment, our action will not have any
significant effects on the regulation of surface coal mining operations
within the Crow Ceded Strip.
The Departmental Manual, part 512, chapter 4 (``Department of the
Interior Policy on Consultation with Indian Tribes'') also acknowledges
that our rules may have Tribal implications where the State proposing
the amendment encompasses ancestral lands in areas with mineable coal.
We are currently working to identify and engage appropriate Tribal
stakeholders to devise a constructive approach for consulting on these
amendments. Our approval of the amendment and revisions to the original
amendment is an action without Tribal implications under section 4.3B
of 512 Departmental Manual 4.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a statement of
energy effects for a rulemaking 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
significant energy action under the definition in Executive Order
13211, a statement of energy effects is not required.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C.
1251(a) and 1292(d), respectively) and the Departmental Manual, part
516, section 13.5(A), State program amendments are not major Federal
actions within the meaning of section 102(2)(C) of the National
Environmental Policy Act (42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
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 corresponding 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 corresponding
Federal regulations.
Congressional Review Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) does not
have an annual effect `on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or
[[Page 6770]]
local government agencies, or geographic regions; and (c) does not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.-based enterprises to
compete with foreign-based enterprises. This determination is based on
an analysis of the corresponding Federal regulations, which were
determined not to constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
Marcelo Calle,
Acting Regional Director, Western Region.
For the reasons set out in the preamble, 30 CFR part 926 is amended
as set forth below:
PART 926--MONTANA
0
1. The authority citation for part 926 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 926.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 926.15 Approval of Montana regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
July 28, 2021................................. 2/13/2026 Mont. Code Ann. 82-4-227--Refusal of Permit--
Applicant Violator System. Rulemaking ARM
17.24.301 Definitions, ARM 17.24.302 Format,
Data Collection, and Supplemental Information,
ARM 17.24.303 Legal, Financial, Compliance, and
Related Information, ARM 17.24.416 Permit
Renewal, ARM 17.24.418 Transfer of Permits. ARM
17.24.1229 Criminal Penalties and Civil
Actions, ARM 17.24.1264 The Department's
Obligations Regarding the Applicant Violator
System, ARM 17.24.1265 Department Eligibility
Review, ARM 17.24.1266 Questions About and
Challenges to Ownership or Control Findings,
ARM 17.24.1267 Information Requirements for
Permittees, ARM 17.24.304 Baseline Information:
Environmental Resources, ARM 17.24.308
Operations Plan, ARM 17.24.313 Reclamation
Plan, ARM 17.24.314 Plan for Protection of the
Hydrologic Balance, ARM 17.24.401 Filing of
Application and Notice, ARM 17.24.403 Informal
Conference, ARM 17.24.425 Administrative
Review, and ARM 17.24.1201 Frequency and
Methods of Inspections.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 2026-02981 Filed 2-12-26; 8:45 am]
BILLING CODE 4310-05-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 13, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.