Federal Register: Part V [30 CFR Part 926]

DEPARTMENT OF THE INTERIOR

Western Area Power Administration

CFR Citation: 30 CFR Part 926

MT ID: [MT-025-FOR]

NOTICE: Part V

DOCUMENT ACTION: Final rule; approval of amendment with certain exceptions and an additional requirement.

SUBJECT CATEGORY: Montana Regulatory Program

DATES: Effective Date: October 10, 2007.

DOCUMENT SUMMARY: We are approving, with certain exceptions and an additional requirement, an amendment to the Montana regulatory program (the ``Montana program'') under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Montana proposed revisions to, additions of, and deletions of its program rules (ARM 17.24.3011309). The amendment included changes to: Definitions; permit application requirements; application processing and public participation; application review, findings, and issuance; permit conditions; permit renewal; performance standards; prospecting permits and notices of intent; bonding and insurance; protection of parks and historic sites; lands where mining is prohibited; inspection and enforcement; civil penalties; small operator assistance program (SOAP); restrictions on employee financial interests; blasters license; and revision of permits. Montana revised its program to be consistent with the corresponding Federal regulations and to implement previous statutory changes already approved by OSM.

SUMMARY: Interior Department, Surface Mining Reclamation and Enforcement Office,

SUPPLEMENTAL INFORMATION

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

I. Background on the Montana Program

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

Rules for the Montana program are contained in ARM, Title 17 Chapter 24 entitled ``Reclamation.'' The enabling statutes for the Montana program are contained largely under Title 82 entitled ``Minerals, Oil, and Gas,'' and Chapter 4 entitled ``Reclamation.'' Permitting, performance standards, enforcement, and most program requirements are found in Part 2 of 824, Montana Code Annotated (MCA), entitled ``Coal and Uranium Mine Reclamation,'' and the provisions for penalties, fees, and interest are found in Part 10. The procedures for initiating and holding contested case administrative hearings are found at 824206, MCA, and Title 2, Chapter 4, Part 6 of the Montana Administrative Procedure Act, and the provisions providing for judicial review of contested case decisions are set forth in Part 7. II. Submission of the Proposed Amendment

By letter dated August 29, 2005, Montana sent us an amendment to revise its regulatory program under SMCRA (30 U.S.C. 1201 et seq.) (Administrative Record No. MT221). The proposed revisions are largely in response to changes to the Montana Strip and Underground Mine Reclamation Act that were the result of House Bill (HB) 373, which was enacted in 2003. OSM approved, with several exceptions, the changes to the statute in the February 16, 2005, Federal Register (70 FR 8001). Montana's proposed amendment is also in response to the required program amendments at 30 CFR 926.16(e)(1), (k), (l), and (m), and includes changes made at its own initiative, and provides clarification and specificity.

We announced receipt of the proposed amendment in the November 29, 2005, Federal Register (70 FR 71428). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on December 29, 2005. Three parties requested an extension of the comment period. We reopened and extended the public comment period in the February 13, 2006, Federal Register (71 FR 7475); the extended comment period ended on February 28, 2006. We received comments from one citizen's group and two individuals.

III. OSM's Findings

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

A. Explanation of Findings

30 CFR 732.17(h)(10) requires that State program amendments meet the criteria for approval of State programs set forth in 30 CFR 732.15, including that the State's laws and regulations are in accordance with the provisions of the Act and consistent with the requirements of 30 CFR part 700. In 30 CFR 730.5, OSM defines ``consistent with'' and ``in accordance with'' to mean (a) with regard to SMCRA, the State laws and regulations are no less stringent than, meet the minimum requirements of, and include all applicable provisions of the Act and (b) with regard to the Federal regulations, the State laws and regulations are no less effective than the Federal regulations in meeting the requirements of SMCRA.

Montana Rules Previously Disapproved by OSM

Included in HB 373 (at Section 15: ``contingent voidness'') was a provision that if any other provision of HB 373 were to be disapproved by OSM, then that disapproved portion would be automatically void. For that reason, in its decision on the statute OSM did not require Montana to delete the provisions that were disapproved. A review of current postings of Montana's statutes shows that the disapproved provisions have been removed. Montana has no authority to propose a regulation under statutory provisions that were voided and removed from the statute because they were disapproved by OSM. However, this proposed amendment contains regulations to implement the previouslydisapproved statutory provisions, apparently because the proposed regulations were developed
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prior to OSM's decision on the statute. Montana recognizes this problem in its submission and states that the regulations will be removed in the State's next rulemaking.

Nevertheless, OSM must formally disapprove these provisions in this decision. On this basis, OSM is disapproving the phrase ``and the hydrologic balance is protected as necessary to support postmining land uses within the area affected and the adjacent area'' in proposed subparagraph (c) of the definition of ``Approximate original contour'' at 17.24.301(13). OSM is also disapproving the final phrase ``as they relate to uses of land and water within the area affected by mining and the adjacent area'' in the definition of ``Hydrologic balance'' at proposed 17.24.301(54). Because Montana has committed to removing these provisions in its next rulemaking and because the offending provisions have no statutory basis, OSM is not establishing any required program amendments for them.
B. Minor Wording, Editorial, Punctuation, Grammatical and

Recodification Changes to Previously Approved Regulations

Montana proposed minor wording, editorial, punctuation, grammatical, and recodification changes to the following previously approved rules. In addition to the renumbering and reformatting, Montana also proposed in many instances to revise the statutory and implementing authority references after each section. No substantive changes to the text of these regulations were proposed. Further, Montana proposed numerous revisions to its regulatory program to simplify references to applicable rules, reduce unnecessary, redundant, and duplicative language, reorganize and/or relocate already existing language to a more appropriate place within the regulations, and to provide clarification and specificity to provisions that were previously approved by OSM. Because the proposed revisions to these previouslyapproved rules are minor in nature and do not change any fundamental requirements or weaken Montana's authority to enforce them, we are approving the changes and find that they are no less effective than the Federal regulations at Title 30 (Mineral Resources), Chapter VII (Office of Surface Mining Reclamation and Enforcement, Department of the Interior), parts 700 through 887.

ARM 17.24.301(37) through (141)(b) recodified; definitions.

ARM 17.24.301(53)(a) and (b); definition of ``Historically used for cropland.''

ARM 17.24.301(68); definition of ``Materially damage the quantity and quality of water.''

ARM 17.24.301(107)(d); definition of ``Ramp road.''

ARM 17.24.303 recodified; Legal, Financial, Compliance, and Related Information.

ARM 17.24.304(1)(f)(i)(C) and (ii)(A), and (i)(l); recodified; Baseline Information: Environmental Resources.

ARM 17.24.305(1)(j) and (2)(a); Maps.

ARM 17.24.306; Baseline Information: Prime Farmland Investigation.

ARM 17.24.308(1)(b)(vi); recodified; Operations Plan.

ARM 17.24.312(1)(a), (d)(ii) and (2); Fish and Wildlife Plan.

ARM 17.24.313(1)(g)(i) and (ii); recodification; Reclamation Plan.

ARM 17.24.315; Plan for Ponds and Embankments; change ``registered'' to ``licensed professional engineer'' in (1)(a)(i), (b)(i), and (d)(i).

ARM 17.24.321(1)(a), (b) and (d); Transportation Facilities Plan.

ARM 17.24.322(2)(a), (viii) and (ix); Geologic Information and Coal Conservation Plan.

ARM 17.24.405(5)(a) and (b), (7)(a)(i), and (8)(a)(i); Findings and Notice of Decision.

ARM 17.24.412(2) and (3); Extension of Time to Commence Mining.

ARM 17.24.413(1)(d); recodified; Conditions of Permit.

ARM 17.24.501(7); General Backfilling and Grading Requirements.

ARM 17.24.520(3)(k) and (m); Thick Overburden and Disposal of Excess Spoil; change ``registered'' to ``licensed professional engineer'' in (3)(c), (i), (j)(ii) and (iv)(A).

ARM 17.24.523(2); Coal Fires and Coal Conservation.

ARM 17.24.601(8); General Requirements for Road and Railroad Loop construction; change ``registered'' to ``licensed professional engineer.''

ARM 17.24.602(1); Location of Roads and Railroad Loops.

ARM 17.24.605(3)(a)(f) recodified; Hydrologic Impact of Roads and Railroad Loops.

ARM 17.24.623(1), (5)(f), (6) and (7); recodification; Blasting Schedule.

ARM 17.24.626(1); recodified; Records of Blasting Operations.

ARM 17.24.634(1)(b), (e), (g), (h), (i), (2) and (3); recodification; Reclamation of Drainage Basins; change ``registered'' to ``licensed professional engineer'' in (2).

ARM 17.24.635(6) and (7); General Requirements for Temporary and Permanent Diversion of Overland Flow, Through Flow, Shallow Ground Water Flow, Ephemeral Drainageways, and Intermittent and Perennial Streams; change ``registered'' to ``licensed professional engineer'' in (5).

ARM 17.24.636 recodified; Special Requirements for Temporary Diversions.

ARM 17.24.638(2)(a); Sediment Control Measures.

ARM 17.24.639(1)(c)(ii), (d) and (e), (10), (11), (20)(a),(22), (23), (25), and (28)(a); Sedimentation Ponds and Other Treatment Facilities; change ``registered'' to ``licensed professional engineer'' in (17) and 28(b); and recodification of (24)(b)(27).

ARM 17.24.645(1), (3) and (6); Ground Water Monitoring.

ARM 17.24.646(1) and (6); Surface Water Monitoring.

ARM 17.24.702(4)(a); Redistribution and Stockpiling of Soil.

ARM 17.24.703(1)(a); Substitution of Other Materials for Soil.

ARM 17.24.711(2) and (3); Establishment of Vegetation.

ARM 17.24.723(1), (2), (3) and (5); Monitoring.

ARM 17.24.724 recodification; Revegetation Success Criteria.

ARM 17.24.725(1); Period of Responsibility.

ARM 17.24.726(3) and (4); recodified; Vegetation Measurements.

ARM 17.24.730; Season of Use.

ARM 17.24.732; Vegetation Requirements for Previously Cropped Areas.

ARM 17.24.733; Measurement Standards for Trees, Shrubs, and Half Shrubs.

ARM 17.24.751(2)(g), (h), (i), and (j); Protection and Enhancement of Fish, Wildlife, and Related Environmental Values.

ARM 17.24.761(1)(4); Air Resources Protection.

ARM 17.24.815(2)(e)(i)(C); Prime Farmland Revegetation.

ARM 17.24.824(2) and (4); Alternate Reclamation: Alternate Postmining Land Uses.

ARM 17.24.825(1)(b)(2); Alternate Reclamation: Alternate Revegetation.

ARM 17.24.832(5)(a); Auger Mining: Specific Performance Standards.

ARM 17.24.901(1)(c)(i)(G); General Application and Review Requirements.

ARM 17.24.924(9); Disposal of Underground Development Waste: General Requirements; change ``registered'' to ``licensed professional engineer in (4)(a), (18)(a) and (d).''

ARM 17.24.927; Disposal of Underground Development Waste: Durable Rock Fills; change ``registered'' to ``licensed professional engineer'' in (1) and (2).

ARM 17.24.930; Placement and Disposal of Coal Processing Waste: [[Page 57824]]
Special Application Requirements; change ``registered'' to ``licensed professional engineer'' in (2)(a)(i).

ARM 17.24.932; Disposal of Coal Processing Waste; change ``registered'' to ``licensed professional engineer'' in (5)(a).

ARM 17.24.1001(1)(a), (b) and (2)(c); Permit Requirement; recodification of (d)(m), (n) and (o).

ARM 17.24.1002(2)(a)(j); Information and Monthly Reports.

ARM 17.24.1003; Renewal and Transfer of Permits.

ARM 17.24.1017(1)(b)(i); Bond Release Procedures for Drilling Operations.

ARM 17.24.1018(1)(a), (b), (5)(a), (6)(a), and (9); Notice of Intent to Prospect.

ARM 17.24.1104(2); Bonding: Adjustment of Amount of Bond.

ARM 17.24.1106(1)(a) and (b); recodified; Bonding: Terms and Conditions of Bond.

ARM 17.24.1109 (1) and (5); recodified; Bonding: Letters of Credit.

ARM 17.24.1116(6)(b)(ii), (c)(iv), (d)(i), (vi) and (7); Bonding: Criteria and Schedule for Release of Bond.

ARM 17.24.1129(2)(e) and (3); Annual Report.

ARM 17.24.1131(1); recodified; Protection of Parks, Historic Sites, and Other Lands.

ARM 17.24.1206(1), (4), (5)(a) and (d); Notices, Orders of Abatement and Cessation Orders: Issuance and Service.

ARM 17.24.1211(2); Procedure for Assessment and Waiver of Civil Penalties.

ARM 17.24.1212(1)(a)(d), (2) and (4); Point System for Civil Penalties and Waivers.

ARM 17.24.1219(2)(a) and (4); Individual Civil Penalties: Procedure for Assessment.

ARM 17.24.1225(2)(a)(i), (b), (d), (f)(j) and (3); Small Operator Assistance Program: Data Requirements.

ARM 17.24.1226(2)(a)(vi) and (vii); Small Operator Assistance Program: Qualification of Laboratories, Consultants, and Contractors.

ARM 17.24.1250(1); Restrictions on Employee Financial Interests: Contents of Statement.

ARM 17.24.1255(1); Restrictions on Employee Financial Interests: Multiple Interest Advisory Boards.

ARM 17.24.1263(1)(a) and (3); Suspension or Revocation of Blaster Certification.
C. Revisions to Montana's Rules That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations

Montana proposed revisions to the following rules containing language that is the same as or similar to the corresponding sections of the Federal regulations and/or SMCRA. Therefore we are approving them.

ARM 17.24.301(26); definition of ``Community or institutional building'' [30 CFR 816.61(d)(1)(i), 816.67(b)(1)(i) and 816.68(d)].

ARM 17.24.301(36); definition of ``Dwelling'' [30 CFR 816.61(d)(1)(i), 816.67(b)(1)(i) and 816.68(d)].

ARM 17.24.301(59); definition of ``Incidental boundary revision'' [30 CFR 774.13(d) and SMCRA Section 511(3)].

ARM 17.24.301(107)(b); definition of ``Haul road'' [30 CFR 701.5 and 816/817.150(a)(2)(ii)].

ARM 17.24.302; Format, Data Collection, and Supplemental Information [30 CFR 777.11(a) and 777.13].

ARM 17.24.303(1)(w), (x), and (y); Legal, Financial, Compliance, and Related Information [30 CFR 778.21 and 777.14(b)].

ARM 17.24.305(2)(b)(i); Maps [30 CFR 779.25(b), 780.14(c) and 783.25(b)].

ARM 17.24.313(1)(b), (d)(ii) and (iv), (g), and (h); Reclamation Plan [30 CFR 780.18(b)(1), (3), (4) and (5)].

ARM 17.24.321(1) and (3); Transportation Facilities Plan [30 CFR 780.37(a)(5) and 784.24(a)(5)].

ARM 17.24.322(2)(a)(x) and (4); Geologic Information and Coal Conservation Plan [30 CFR 780.18(b)(6) and 816.59].

ARM 17.24.416(1)(b); Permit Renewal [30 CFR 774.15(b)(2)(iv)].

ARM 17.24.427(1)(a), (c) and (2); Change of Contractor [30 CFR 774.17(a),(b), and (d)].

ARM 17.24.501(4)(d); General Backfilling and Grading Requirements [30 CFR 816.102(a)(2)].

ARM 17.24.501(6)(d); General Backfilling and Grading Requirements [30 CFR 816.102(a)].

ARM 17.24.603(4); Road and Railroad Loop Embankments [30 CFR 816.151(b)].

ARM 17.24.605(8); Hydrologic Impact of Roads and Railroad Loops [30 CFR 816.151(d)(6)].

ARM 17.24.609(1); Other Support Facilities [30 CFR 816.181(b)].

ARM 17.24.623(2); Blasting Schedule [30 CFR 816.64(b)(2)].

ARM 17.24.623(5)(b); Blasting Schedule [30 CFR 816.64(c)(2)].

ARM 17.24.624(4); Surface Blasting Requirements [30 CFR 816.66(b)].

ARM 17.24.626(1)(j); Records of Blasting Operations [30 CFR 816.68(j)].

ARM 17.24.636(2) and (3); Special Requirements for Temporary Diversions [30 CFR 816.43(a)(2)(i) and (iii)].

ARM 17.24.639(2), (3) and (7); Sedimentation Ponds and Other Treatment Facilities; [30 CFR 816.46(c)(1) and (2)].

ARM 17.24.642(1)(7); Permanent Impoundments and Flood Control Impoundments [30 CFR 816.49(a)(9) and (b)].

ARM 17.24.646(4); Surface Water Monitoring [30 CFR 816.42].

ARM 17.24.701(4); Removal of Soil [30 CFR 816.22(a)(3)].

ARM 17.24.702(4)(b) and (6); Redistribution and Stockpiling of Soil; [30 CFR 816.22(d)(1)(i) and (2)].

ARM 17.24.714(1); Soil Stabilizing Practices [30 CFR 816.114].

ARM 17.24.716(1), (3), (4), and (5); Method of Revegetation; [30 CFR 816.111(a) and (b) and 780.18(b)(5)].

ARM 17.24.717(1); Planting of Trees and Shrubs [30 CFR 816.111(b) and 816.116(a) and (b)(3)(ii) and (iii)].

ARM 17.24.718(3); Soil Amendments, Management Techniques, and Land Use Practices [30 CFR 816.116(c)(4)].

ARM 17.24.724(1)(3); Revegetation Success Criteria [30 CFR 816.116(a)(1) and (b)].

ARM 17.24.726(2) and (3); Vegetation Measurements [30 CFR 816.116(a)(2) and 816.116(c)(3)(i)].

ARM 17.24.751(1) and (2)(a), (c) and (f); Protection and Enhancement of Fish, Wildlife, and Related Environmental Values [30 CFR 816.97(b), (c), (e)(1) and (3), (f) and the MOU between OSM and the USFWS].

ARM 17.24.762(1)(a)(d); Postmining Land Use [30 CFR 816/817.133(b) and 780.23(a)(1)].

ARM 17.24.832(4) and (5)(b) and (c); Auger Mining: Specific Performance Standards [30 CFR 819.19(a) and 819.15(b)(2)].

ARM 17.24.1001; Permit Requirement; (2)(d) [30 CFR 772.12(b)(14)].

ARM 17.24.1104(1) and (3); Bonding: Adjustment of Amount of Bond [30 CFR 800.15].

ARM 17.24.1108(1), (2) and (4); Bonding: Certificates of Deposit [30 CFR 800.21(a)].

ARM 17.24.1125(2); Liability Insurance [30 CFR 800.60(b)].

ARM 17.24.1132(1)(a); Definition of ``valid existing rights;'' [incorporates by reference the Federal definition at 30 CFR 761.5].

ARM 17.24.1133; Areas Upon Which Coal Mining is Prohibited: Procedures for Determination; (2)(a), (b) [30 CFR 761.11 and 761.12] and (3) [incorporates by reference the Federal requirements and criteria for submission and processing of requests for valid existing rights determinations at 30 CFR 761.16].

ARM 17.24.1201(1)(4); Frequency and Methods of Inspections [30 CFR 840.11(a), (b), (d)(1), and (e)(1) and (2)].

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ARM 17.24.1202(1); Consequences of Inspection and Compliance Reviews [30 CFR 840.11(e)(3)].

ARM 17.24.1301; Modification of Existing Permits: Issuance of Revisions and Permits [774.10(a)(1) and (b)].
D. Revisions Adopting or Deleting Language Consistent With the Revisions to the Montana Statute Approved by OSM

Montana proposes several revisions to its rules that are consistent with and reflect enactment of the provisions in HB 373 that were approved in our decision published in the February 16, 2005, Federal Register (70 FR 8001). We are approving these previouslyapproved changes. Montana also proposes to eliminate language and citations that are no longer necessary due to the approval of those statutory changes in the February 16, 2005, Federal Register. We are also approving these ancillary changes.

ARM 17.24.301(6); definition of ``Adjacent area.''

ARM 17.24.301(11); definition of ``Alternative postmining land use.''

ARM 17.24.301(13); the introductory text, subparagraphs (a), (b), and (d) of the definition of ``Approximate original contour.''

ARM 17.24.301(38); definition of ``Ephemeral drainageway.''

ARM 17.24.301(50); definition of ``Higher or better uses.''

ARM 17.24.301(54); definition of ``Hydrologic balance.''

ARM 17.24.301(64); definition of ``Land use.''

ARM 17.24.301(64)(b); deleting the definition of ``Special use pasture'' and substituting with the definition of ``Pastureland.''

ARM 17.24.301(64)(c); definition of ``Grazing land.''

ARM 17.24.301(64)(d); deleting the definition of ``Commercial forest land and substituting with the definition of ``Forestry.''

ARM 17.24.301(64)(g); definition of ``Recreation.''

ARM 17.24.301(64)(h); definition of ``Fish and wildlife habitat.''

ARM 17.24.301(67); definition of ``Material damage.''

ARM 17.24.301(90); definition of ``Prime Farmland.''

ARM 17.24.301(103); definition of ``Reference area.''

ARM 17.24.301(143); definition of ``Wildlife habitat enhancement feature.''

ARM 17.24.312(1)(b); Fish and Wildlife Plan.

ARM 17.24.313(1)(a); Reclamation Plan.

ARM 17.24.324(1)(e); Prime Farmlands: Special Application Requirements; deletion of crossreferences resulting from statutory changes.

ARM 17.24.401(3)(f) and (5)(a)(iv); Filing of Application and Notice.

ARM 17.24.405(1) and (2), (6)(j), and deletion of (7); Findings and Notice of Decision.

ARM 17.24.501(4)(a); General Backfilling and Grading Requirements.

ARM 17.24.634(c); Reclamation of Drainage Basins.

ARM 17.24.711(1)(a)(2) and (3), and (1)(b); Establishment of Vegetation.

ARM 17.24.726; Vegetation Measurements; deletion of (3), (5) and (7).

ARM 17.24.728; Composition of Vegetation.

ARM 17.24.751(2)(e); Protection and Enhancement of Fish, Wildlife, and Related Environmental Values.

ARM 17.24.762(1), (2), and (3); Postmining Land Use.

ARM 17.24.764; Cropland Reclamation.

ARM 17.24.815(1)(a)(i), (ii) and (b); Prime Farmland Revegetation.

ARM 17.24.821; Alternative Postmining Land Uses: Submission of Plan.

ARM 17.24.823(1)(a); Alternative Postmining Land Uses: Approval of Plan.

ARM 17.24.824(1), (3), and (5); Alternate Reclamation: Alternate Postmining Land Uses.

ARM 17.24.1116(6), (c)(v) and (d)(vi); Bonding: Criteria and Schedule for Release of Bond.
E. Revisions to Montana's Rules With No Corresponding Federal Statute or Regulation

Montana proposed several revisions to its regulatory program for which there is no Federal counterpart provision.

1. ARM 17.24.301(46); Definition of ``Good Ecological Integrity.'' Montana proposes to add a new definition for ``Good ecological integrity'' as follows:
``Good ecological integrity'' means that the complex of community of organisms and its environment functioning as an ecological unit possesses components and processes in good working order. Pastureland and cropland managed in accordance with county or local conservation district or state or federal best management practices (resource management strategies, such as normal husbandry practices, used to manage or protect a resource and promote ecological and economic sustainability) generally reflect good ecological integrity with regard to such land uses.

Montana maintains that this definition is needed to adequately and appropriately describe the desired condition for reference and reclaimed areas. Specifically, Montana states that following an extensive literature review, it was determined that this term is regularly accepted, used and recommended by a variety of professional ecologists. Montana further notes that the term emphasizes the combination of ecological, social and economic factors at different temporal and spatial scales, and that the desired result is the maintenance of a diversity of life forms, ecological processes and human cultures. Montana goes on to explain that ``Good'' is a commonly and conventionally accepted minimum standard insisted on by competent land managers and by land management agencies as a condition and/or goal necessary to sustain the utility and economic value of vegetation, land uses and ecosystems. Lastly, Montana states that the term ``ecological integrity'' is consistent with vegetation, land and resource valuation systems being commonly used by federal and state land management agencies, academia, consultants and private land managers. The rationale Montana provided for justifying the addition of this definition is reasonable, and the lack of a Federal counterpart definition does not render this proposed rule less effective than the Federal regulations. Therefore, we approve it.

2. ARM 17.24.323; Grazing Plan. Montana proposes to delete this rule and explains that grazing is discretionary management to be used by a mine operator to achieve the approved revegetation and postmining land use results, and that the State Board has determined that implementation and management of grazing within a mine permit area should be the responsibility of the operator. If the operator fails to appropriately use grazing, the desired/approved revegetative/land use results will probably not be obtained and phase III bond release will not be realized. Lastly, Montana notes that it has the power to require appropriate practices or to pursue enforcement actions if the operator violates any rules regarding revegetation or land use.

The Federal grazing rules, previously located at 30 CFR 816.115, required livestock grazing for the last two years of the responsibility period when the approved postmining land use is range or pasture land. This requirement was intended to assure that the vegetation would support about the same number of livestock that would be supported had the area not been mined. OSM suspended previous 30 CFR 816.115 on August 4, 1980 (45 FR 51549), in response to a U.S. District Court ruling that section 515(b)(19) of the Act does not require lands with a postmining use
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of pasture or grazing to be actually subjected to grazing activities. In re: Permanent Surface Mining Regulation Litigation, 617 F.2d 807 (1980). On September 2, 1983 (48 FR 40140) OSM removed the previously suspended regulation at 30 CFR 816.115, thereby eliminating any reference to required grazing from the Federal regulations.

For these reasons, Montana's deletion of the grazing plan rule and its rationale for doing so is acceptable and does not render Montana's rules less effective than SMCRA and the Federal regulations. Therefore, we are approving the deletion. For these same reasons, we are approving Montana's proposed deletion of its requirements for livestock grazing at ARM 17.24.719.

3. ARM 17.24.413; Conditions of Permit. Montana proposes to add an additional condition to all permits at subparagraph (1)(f), to read as follows:

A permittee shall immediately notify the department whenever a creditor of the permittee has attached or obtained a judgment against the permittee's equipment or materials in the permit area or on the collateral pledged to the department.

The Federal regulations at 30 CFR 800.16(e) require that performance bonds provide a mechanism for a bank or surety company to give prompt notice to the regulatory authority and the permittee of any action filed alleging the insolvency or bankruptcy of the surety company, the bank, or the permittee, or alleging any violation which would result in the suspension or revocation of the surety or the bank charter or license to do business. Montana's proposed rule provides guidance beyond that contained in the Federal regulations to the extent that it requires the permittee to personally and immediately notify the Department of Environmental Quality (Department) of its financial inability to perform reclamation operations and supply it with relevant information to that effect. Accordingly, the proposed rule is no less effective than the Federal regulations and we approve it.

4. ARM 17.24.522; Permanent Cessation of Operations. Montana proposes to delete the first two sentences of paragraph (3), which provides for completion of backfilling and grading within 90 days after the Department determines the operation is completed, and that final pit reclamation must be as close to the coal loading operation as technical factors allow. Montana's explanatory note states that the proposed deletion is necessary because the provision conflicts with ARM 17.24.501(6)(b), which requires backfilling and grading to be completed within two years after coal removal, and the 90day requirement is unrealistic for large coal mining operations. We agree. The Federal time and distance requirements for backfilling and grading at 30 CFR 816.101 were suspended indefinitely on August 31, 1992 (57 FR 33875, July 31, 1992). Moreover, the permanent cessation of operations regulations at 30 CFR 816.132(a) requires persons who permanently cease surface mining operations to close or backfill or otherwise permanently reclaim all affected areas in accordance with the permit approved by the regulatory authority. In other words, the regulatory authority has discretion in determining time and distance requirements for backfilling and grading operations. The provision which Montana proposed for deletion falls within the State's discretion to specify, according to the Federal regulations. There is no exact Federal equivalent. Therefore, we find the proposed revision is not inconsistent with the applicable Federal provisions and we approve it.

5. ARM 17.24.633; Water Quality Performance Standards. Montana proposes to revise paragraph (2) of this rule to require a demonstration that drainage basins have been stabilized consistent with the approved postmining land use. Montana explains that the rule change modifies the evaluation of drainage basin stability to reflect enactment of HB 373 by the 2003 Legislature. Under HB 373, there is a greater opportunity for having a postmining land use that is different from the premining land use and, thus, drainage basin stability must be evaluated in that context. We agree. In the February 16, 2005, Federal Register (70 FR 8001, 8004), we approved subparagraph (c) of Montana's statutory definition of ``Approximate Original Contour'' at 824203(4) which stated that ``postmining drainage basins may differ in size, location, configuration, orientation, and density of ephemeral drainageways compared to the premining topography if they are hydrologically stable, soil erosion is controlled to the extent appropriate for the postmining land use, and the hydrologic balance is protected.'' In approving this language, we noted that it provides guidance beyond that contained in the Federal definition of approximate original contour. This same rational applies here. Further, as we note in Finding III.F.8., OSM has previously granted regulatory authorities the flexibility to develop stabilization measures consistent with local terrain, climate, soils, and other conditions existing within the State with respect to exposed surface areas, including drainage basins (48 FR 1160, January 10, 1983). For these reasons, we find that Montana's proposed rule change is no less stringent than SMCRA and we are approving it.

6. ARM 17.24.711; Establishment of Vegetation. Montana proposes to revise its rules by adding new subparagraph (1)(a) that implements statutory language previously approved by OSM in our decision published in the February 16, 2005, Federal Register (70 FR 8001, 8008). With one exception, Montana's proposed revision provides revegetation requirements equivalent to SMCRA 515(b)(19) and 30 CFR 816/817.111(a). The exception, as was discussed in the February 16, 2005 Federal Register Notice (Finding C.14.a) addressing the identical statutory language, is that Montana's proposal at proposed subparagraph (1)(a) would not require operators to plant water areas, surface areas of roads, ``and other constructed features.'' The Federal requirements of SMCRA 515(b)(19), as implemented at 30 CFR 816/817.111(a), provide only the first two exemptions. The third exemption provided by Montana, ``and other constructed features,'' is undefined. All of reclamation could be considered ``constructed,'' so this exemption could broadly be construed to apply to the whole affected area. We believe that Montana intended here that this exemption would be applied to parking lots, material storage yards, etc., that are limited in size and slope, and are stabilized against erosion by paving or gravel. Therefore, consistent with our decision in the February 16, 2005, Federal Register, we are approving ARM 17.24.711(1)(a) with the proviso that the exemption for ``and other constructed features approved as part of the postmining land use'' not be applied until (1) Montana promulgates rules that provide for a clear definition of ``other constructed features'' and provide for limits on size and slope and stabilization against erosion, and other factors that may affect environmental stability, and (2) those rules are approved by OSM.

Montana also amends its rules at ARM 17.24.711(1)(a)(1), subparagraph (d), by proposing a limitation that the revegetation need only be capable of stabilizing soil erosion to the extent appropriate for the postmining land use. Consistent with our decision in the February 16, 2005, Federal Register notice, we are approving Montana's proposed amendment with the understanding that revegetation success standards must be representative of
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unmined lands under that proposed postmining land use in the area. In other words, the erosion control achieved by revegetation that meets the success standards will be equivalent to the erosion protection of unmined lands being used for the same purpose within that general vicinity. This is particularly true when an alternative ``higher or better,'' land use is being established during reclamation.

7. ARM 17.24.1109; Bonding: Letters of Credit. Montana proposes to revise subparagraph (1)(d), and add new subparagraphs (1)(e), (f), and (g) to read as follows:
(d) The letter must not be for an amount in excess of 10% of the bank's capital surplus account as shown on a balance sheet certified by a certified public accountant for the most recent annual reporting period.
(e) Using the balance sheet referenced in (1)(d) and a certified income and revenue sheet, the bank must meet the three following criteria:
(i) The bank must be earning at least a 1% return on total assets (net income/total assets = 0.01 or more);
(ii) The bank must be earning at least a 10% return on equity (net income/total stockholders equity = 0.1 or more); and
(iii) Capital or stockholders' equity must be at least 5.5% of total assets (total stockholders equity [shareholders equity + capital surplus + retained earnings])/total assets = 0.055 or more). (f) Under a general financial health category, from either Sheshunoff Information Services, Moody's (Mergent Ratings Service) or Standard and Poor's, the bank must have a b+ or better rating for the current and previous two quarters.
(g) The bank's qualifications must be reviewed yearly prior to the time the letter of credit is renewed.

There are no similar provisions in SMCRA or the Federal regulations. Montana states that the proposed amendment to (1)(d) requires the balance sheet to be for the most recent annual reporting period to assure that the Department bases its evaluation of the financial condition of the bank on current financial information. Montana also notes that the proposed addition of (1)(e) and (f) provides prudent standards for the Department to follow when evaluating whether to accept a letter of credit from an issuing bank, and goes on to explain that these financial tests were developed in consultation with the Banking and Financial Division of the Montana Department of Commerce and are used by the Office of Surface Mining in accepting letters of credit. Lastly, Montana states that the proposed addition of (1)(g) is necessary because a bank's financial health may change over time.

We agree with Montana that the proposed revisions requiring an up todate balance sheet, applying additional financial tests and criteria regarding the acceptance of letters of credit, and performing annual evaluations of a bank's qualifications will allow for a stronger analysis of a lending institution's current financial condition and will provide further assurance of a bank's financial strength. Montana's proposed amendment provides guidance beyond that contained in the Federal regulations. We find that the underlying rationale Montana provided for justifying the addition of these provisions is reasonable and the lack of exact Federal counterpart requirements do not render them less effective than the Federal regulations. Therefore, we approve them.
F. Revisions to Montana's Rules That Are Not the Same as the Corresponding Provisions of SMCRA and/or the Federal Regulations

1. ARM 17.24.301(33); Definition of ``Diversion.'' Montana proposes to revise the definition of ``Diversion'' to read as follows: ``Diversion'' means a channel, embankment, or other manmade structure constructed to divert undisturbed runoff around an area of disturbance and back to an undisturbed channel.

The Federal definition at 30 CFR 701.5 states that ``Diversion means a channel, embankment, or other manmade structure constructed to divert water from one area to another.''

Montana's proposed definition applies only to structures designed to divert water around the operation. The Federal definition includes all structures constructed to divert water, but its application in 30 CFR 816.43 involves only structures designed to divert water around an operation. Therefore Montana's proposed change is consistent with and no less effective than the Federal definition and we are approving it.

2. ARM 17.24.308; Operations Plan. Montana proposes to revise subparagraph (1)(b) by adding the following new subsection to the proposed operations for which compliance must be demonstrated: (vii) Facilities or sites and associated access routes for environmental monitoring and data gathering activities [or] for the gathering of subsurface data by trenching, drilling, geophysical or other techniques to determine the nature, depth, and thickness of all known strata, overburden, and coal seams.

In its explanatory note, Montana states that the proposed addition of (b)(vii) specifies additional information that needs to be included in a plan of operations when prospecting activities and facilities are transferred to a strip or underground mining permit pursuant to ARM 17.24.1001(7). Further, Montana notes that the word ``or'' was mistakenly left out of this provision as printed in the final rule notice by the Secretary of State, and will need to be added in the next rulemaking. Montana's proposed addition of this rule provides needed specificity with respect to requiring additional facilities information, is more stringent than the Federal requirements, and therefore is not inconsistent with the Federal rules at 30 CFR 780.11(b). For these reasons, we approve it.

3. ARM 17.24.313; Reclamation Plan. Montana proposes to add a new provision at (1)(d)(v) requiring that the plan for backfilling demonstrate that the proposed postmining topography can be achieved. Montana further proposes to add provisions at (1)(e) and (f), respectively, that require each reclamation plan to contain a description of postmining drainage basin reclamation that ensures protection of the hydrologic balance, achievement of postmining land use performance standards, and prevention of material damage to the hydrologic balance in adjacent areas, as well as drainage channel designs appropriate for preventing material damage to the hydrologic balance in the adjacent area and to meet the performance standards for the reclamation of drainage basins at ARM 17.24.634.

Montana's proposed rule at ARM 17.24.313(1)(d)(v) is added to restate more clearly the requirement that a reclamation plan contain a demonstration that the postmining topography can be achieved. The proposed revision simply provides additional guidance and specificity regarding information to be supplied by an operator to gauge the potential for success with respect to achieving postmining topography. The proposed rules at subparagraphs (e) and (f) essentially replace and are more comprehensive than the design requirements for drainage channels currently located at ARM 17.24.634(2), which is proposed for deletion. These additional requirements are no less effective than the Federal hydrologic reclamation plan requirements set forth at 30 CFR 780.21(h). For the reasons discussed above, we are approving Montana's proposed rules.

4. ARM 17.24.313(b) (second sentence), 17.24.515(2), 17.24.821, 17.24.823, 17.24.824, and 17.24.825; Revisions to ``Alternate Reclamation'' Rules. In a previous amendment, Montana proposed to delete its statutory provisions at MCA 824232(7) and (8) addressing ``alternate reclamation'' and
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replace them with new paragraphs providing requirements for ``land capability and alternative land uses.'' We approved Montana's proposed statutory changes in the February 16, 2005, Federal Register (70 FR 8001, 8007, Finding C.12), and noted that several rules within the Montana program were statutorily authorized only by the deleted paragraphs. We further stated that since the statutory authorization for these rules would no longer exist, Montana would have to remove these rules when promulgating new rules to implement the statutory changes.

Consistent with our February 16, 2005 decision, Montana now proposes to revise its implementing rules for ``alternate reclamation'' at ARM 17.24.313(b) (second sentence), 17.24.515(2), 17.24.821, 17.24.823, 17.24.824, and 17.24.825, respectively, by deleting paragraphs addressing ``alternatives'' to backfilling, grading, highwall elimination, topsoiling, and planting of a permanent diverse cover. Because the statutory authorization for these rules and paragraphs referencing ``alternate reclamation'' no longer exists, we approve their deletion. In their place, Montana proposes to substitute new criteria at ARM 17.24.821 and 17.24.823 for ``alternative postmining land uses'' as enacted in HB 373 and approved by us in the February 16, 2005, Federal Register as being consistent with and no less effective than SMCRA 515(b)(2) and the Federal regulations at 30 CFR 816/817.133. Thus, Montana's proposed revisions to its rules implementing the previously approved statutory alternative postmining land use criteria are appropriate and we approve them. Montana also proposes to delete its ``alternate reclamation'' rule at ARM 17.24.826 addressing ``period of responsibility for alternative revegetation'' due to changes enacted in HB 373. For the same reasons explained above, we approve it.

5. ARM 17.24.404; Review of Application. Montana proposes to delete paragraph (9) of this rule because the right to appeal a permitting decision is already covered in Montana's statutes at 824231(9), MCA. Paragraph (10) is proposed for deletion because Montana applies the same standards to all applications and 824231(11), MCA, requires operations to be conducted in such a manner so as to protect property adjacent to the permit area. Existing ARM 17.24.404(9) grants the right to an administrative hearing only to applicants who are subject to a denial of a permit application or major revision under 824227(11), MCA. 824231(9), MCA, is much broader in the sense that it entitles any person with an interest that is or may adversely be affected by the Department's permit decision to a contested case hearing governed by the Montana Administrative Procedures Act and before the Board of Environmental Review. Thus, Montana's proposed deletion of ARM 17.24.404(9), in reliance on 824231(9), MCA, is no less stringent than SMCRA 514(c) and we approve it. Existing ARM 17.24.404 (10) is duplicative of and less specific than the standards set forth in 824 231(11), MCA, regarding the protection of areas outside the permit area. Similarly, Montana's proposed deletion of 17.24.404(10), in reliance on 824231(11), MCA, is no less stringent than SMCRA 515(b)(21) and we also approve it.

6. ARM 17.24.515; Highwall Reduction. Montana proposes to revise paragraph (1) to require that highwalls must be eliminated and the reduced highwall slope must be no greater than whatever slope is necessary to achieve a minimum longterm static safety factor of 1.3. Montana also proposes to revise paragraph (2) by deleting existing subparagraph (2)(c), which provides that highwall reduction alternatives must comply with ARM 17.24.313, 17.24.82117.21.824 (see Finding No. III.F4). Montana deleted these crossreferences because the rules have either been eliminated or are no longer relevant due to statutory modifications that we approved in the February 16, 2005, Federal Register (70 FR 8001, 8007). In their place, Montana now proposes additional new language to read as follows:
(2) Highwall reduction alternatives may be permitted only to replace bluff features that existed before mining and where the department determines that:
(a) Postmining bluffs are compatible with the proposed postmining land use;
(b) Postmining bluffs are stable, achieving a minimum longterm static safety factor of 1.3;
(c) Similar geometry and function exists between pre and postmining bluffs;
(d) The horizontal linear extent of postmining bluffs does not exceed that of the premining condition; and
(e) Highwalls will be backfilled to the extent that the uppermost mineable coal seam is buried in accordance with ARM 17.24.505(1).

Previously, OSM approved similar provisions for the New Mexico and Utah State regulatory programs (45 FR 86464, December 31, 1980 and 60 FR 28040, May 30, 1995). In the New Mexico and Utah approvals, OSM required the State programs to contain the following provisions: (1) Requirement for regulatory authority approval; (2) restrictions on allowable height and length of the retained highwall in relation to natural escarpments and cliffs; (3) requirement that a retained highwall replace a preexisting cliff or similar natural premining feature that was removed by the mining operation; and (4) requirement for the permit applicant to demonstrate that the retained highwall feature is stable and will achieve a longterm static safety factor of 1.3 and will not pose a hazard to the public health and safety. With these restrictions, OSM found provisions for limited highwall retention in the New Mexico and Utah regulatory programs to be in accordance with the requirements of SMCRA 515(b)(3) and consistent with the Federal regulations at 30 CFR 816.102(a)(2) to backfill and grade to achieve the approximate original contour (AOC). AOC in these requirements includes the provision to eliminate all highwalls. The establishment of the above restrictions however, ensures that for a limited stretch of highwall to be retained, it must replace a similar feature that exists in the original contours thereby meeting the requirement to restore AOC. In the approval of the provision for New Mexico, OSM found that if an operator can demonstrate to the satisfaction of the Director (State) that all of the above criteria can be met, then the limited highwall retention is available. Such retention in these instances actually reflects the intent of ``approximate original contour'' since these features were part of the natural premined landscape. These same criteria were recently applied in approving a Wyoming proposal to allow for the retention of limited stretches of highwall to replace escarpments and cliffs that exist naturally in the area of the mine prior to the mine operations (71 FR 50852, August 28, 2006).

Similarly, Montana's provisions for highwall retention to replace existing natural features are contained in ARM 17.24.515. As we required in the New Mexico, Utah, and Wyoming programs, Montana requires the features to be approved by the regulatory authority. In addition, Montana's provisions ensure stability and a factor of safety of 1.3; contain restrictions on allowable length in relation to premine features; and replacement of natural features that were mined out or are planned to be mined out under the current mine plan. Montana's proposed revisions do not contain specific language regarding habitat replacement, public health and safety, height restrictions, or define the term ``bluff.'' Nevertheless, we interpret
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the meaning of the phrase ``postmining land use'' in subparagraph (2)(a) to include plant and wildlife habitat, and the language in subparagraph (2)(b) to represent that postmining bluffs will not pose a threat to public health and safety. We also interpret the meaning of the phrase ``similar geometry'' found in subparagraph (2)(c) of Montana's provisions to include the restriction that the vertical height of bluffs not exceed the premine height. Lastly, we interpret the term ``bluff'' to mean a vertical or near vertical feature in the landscape. Based on these interpretations and the discussion above, we find Montana's provisions for limited highwall retention to be in accordance with SMCRA 515(b)(3) and consistent with 30 CFR 816.102(a)(2).

7. ARM 17.24.624; Surface Blasting Requirements. Montana proposes to revise its rules at subparagraphs (6)(a), (7)(a), and paragraphs (11) and (14) to simplify and provide consistency to the description of structures that are subject to blasting restrictions as they pertain to airblast, proximity of blasting operations, peak particle velocity, and the maximum weight of explosives to be detonated. These structures include ``any dwelling, or public, commercial, community or institutional building.''

Montana defines ``Community or institutional building'' in its rules at ARM 17.24.301(26) to mean ``any structure, other than a public building or a dwelling, which is used primarily for meetings, gatherings or functions of local civic organizations or other community groups; functions as an educational, cultural, historic, religious, scientific, correctional, mentalhealth or physical health care facility; or is used for public services including, but not limited to, water supply, power generation or sewage treatment.'' The Federal regulations at 30 CFR 816.61(d)(1)(i), 816.67(b)(1)(i) and 816.68(d) consistently identify the structures subject to blasting restrictions as ``dwelling, public building, school, church, community or institutional building.'' Montana's proposed revisions, when read in the context of its definition of ``community or institutional building,'' are consistent with and no less effective than the Federal regulations. Therefore, we are approving Montana's proposed rule changes. For the same reasons discussed above, we are approving Montana's proposed revision to its rules at ARM 17.24.626(1)(d) regarding Records of Blasting Operations.

8. ARM 17.24.634; Reclamation of Drainage Basins. Montana proposes numerous revisions to reorganize ARM 17.24.634 so that all of the substantive requirements for reclaiming drainage basins, including valleys, channels and floodplains, are listed after introductory paragraph (1). Proposed revised paragraph (1) reads as follows: (1) Reclaimed drainage basins, including valleys, channels, and floodplains must be constructed to:
(a) Comply with the postmining topography map required by ARM 17.24.313(1)(d)(iv) and approved by the department;
(b) Approximate original contour;
(c) An appropriate geomorphic habit or characteristic pattern consistent with 824231(10)(k), MCA;
(d) [Remains the same]
(e) Provide separation of flow between adjacent drainages and safely pass the runoff from a sixhour precipitation event with a 100year recurrence interval, or larger event as specified by the department;
(f) Provide for the longterm relative stability of the landscape. The term ``relative'' refers to a condition comparable to an unmined landscape with similar climate, topography, vegetation and land use;
(g) Provide an average channel gradient that exhibits a concave longitudinal profile;
(h) Establish or restore a diversity of habitats that are consistent with the approved postmining land use, and restore, enhance where practicable, or maintain natural riparian vegetation as necessary to comply with ARM subchapter 7; and
(i) Exhibit dimensions and characteristics that will blend with the undisturbed drainage system above and below the area to be reclaimed and that will accommodate the approved revegetation and postmining land use requirements.

We note that reclaimed drainages meet the definition of ``diversion'' at ARM 17.24.301(33), and in particular are permanent diversions. Montana's proposed rule is consistent with 30 CFR 816.43(a)(3) requiring that a permanent diversion or stream channel that is reclaimed after removal of a temporary diversion be designed and constructed so as to restore or approximate the premining characteristics of the original stream channel, as well as the regulations at 30 CFR 780.21(h), 816.41(a) and (d), and 816/817.43(b) requiring that diversions protect the hydrologic balance, water quality, and channel volume. The proposed rule also includes approximate original contour considerations consistent with those set forth in 30 CFR 816.102(a), and provides standards for the stabilization of reclaimed surface areas to effectively control erosion in accordance with 30 CFR 816.95(a). While there is no exact Federal counterpart to Montana's proposed rule, we find the revisions to be consistent with these Federal requirements.

Montana's explanatory note justifying the proposed rule revision at (1)(f) ``acknowledges that success in terms of stability cannot be measured using a onesizefitsall standard. Rather, it must be made on a casebycase basis comparing the reclaimed land to unmined landscapes with comparable conditions.'' We agree with Montana's logic and a discussion responding to comments on the promulgation of 30 CFR 816.95(a) in a January 10, 1983 Federal Register notice (48 FR 1160) is supportive of this position. Specifically, we stated that ``[A]s with other performance standards proposed by OSM, regulatory authorities will have flexibility to develop stabilization measures consistent with local terrain, climate, soils, and other conditions existing within the State. Appropriate techniques to stabilize exposed areas can be determined by the regulatory authority and operators in conjunction with local Soil Conservation Districts and air quality agencies, as appropriate.'' Therefore, Montana has been afforded discretion to implement necessary stabilization measures with respect to exposed surface areas, including the reclamation of drainage basins. For the reasons discussed above, we find that Montana's proposed revisions are no less effective than the Federal requirements and we approve them.

9. ARM 17.24.718; Soil Amendments and Management Practices. Montana proposes to revise paragraph (2) and add a new paragraph (3) to read as follows:
(2) An operator may use only normal husbandry practices to ensure the establishment of vegetation consistent with the approved reclamation plan.
(3) Reclamation land use practices including, but not limited to, grazing, haying, or chemical applications, may not be conducted in a manner or at a time that interferes with establishment and/or persistence of seeded and planted grasses, forbs, shrubs, and trees or with other reclamation requirements.

Montana explains that the proposed revision to paragraph (2) requires operators to use only normal husbandry practices to manage reclaimed areas following seeding. Montana further states that normal husbandry practices are widely used and accepted by private, state, and federal land managers and land owners and have a proven track record of achieving appropriate revegetation for approved postmining land uses.

The Federal regulations at 30 CFR 816.116(c)(4) provide that the regulatory authority may approve selective husbandry practices, excluding augmented seeding, fertilization, or irrigation, provided it obtains prior approval from the Director of OSM, in
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accordance with 30 CFR 732.17, that the practices are normal husbandry practices, without extending the period of responsibility for revegetation success and bond liability, if such practices can be expected to continue as part of the postmining land use or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation success. Approved practices shall be normal husbandry practices within the region for unmined lands having land uses similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control; and any pruning, reseeding, and transplanting specifically necessitated by such actions. Montana's proposed ARM 17.24.718(2) does not actually identify husbandry practices. It merely states that an operator may use only normal husbandry practices to ensure the establishment of vegetation consistent with the approved reclamation plan.

Based on the above discussion, we do not approve the proposed revision to ARM 17.24.718(2) and find that it is less effective than the Federal regulations at 30 CFR 816.116(c)(4) to the extent that it could be construed to authorize any normal husbandry practices other than those identified in proposed new paragraph ARM 17.24.718(3). If Montana wishes to include any normal husbandry practices other than those identified in ARM 17.24.718(3) that would not restart the liability period, they must be submitted as a program amendment and approved by OSM.

At its own initiative, Montana proposes new paragraph (3) to address management practices that could, if applied improperly, negatively impact revegetation and affect the operator's ability to obtain phase III bond release. The practices used by operators to manage vegetation on reclaimed areas include livestock grazing as well as haying and chemical applications. Montana further notes that under the proposed amendment, the operator would be responsible for using management practices that do not interfere with reclamation requirements.

We agree with Montana's rationale. Montana's proposed rule in paragraph (3) concerning reclamation land use practices is consistent with and no less effective than the Federal requirements for approved postmining land uses of the disturbed area set forth in 30 CFR 816.116(c)(4).

Therefore, with the exception of proposed ARM 17.24.718(2), which does not identify husbandry practices and allows an operator to use normal husbandry practices that have not received approval from OSM in accordance with 30 CFR 732.17, we approve Montana's proposed revisions to ARM 17.24.718.

10. ARM 17.24.726; Vegetation Measurements. Montana proposes to revise this rule extensively, to read as follows:
(1) Standard and consistent field and laboratory methods must be used to obtain and evaluate vegetation data consistent with 824233 and 824235, MCA, and to compare revegetated area data with reference area data and/or with technical standards. Specific field and laboratory methods used and schedules of assessments must be detailed in a plan of study and be approved by the department. Sample adequacy must be demonstrated. In addition to these and other requirements described in this rule, the department shall supply guidelines regarding acceptable field and laboratory methods. (2) Production, cover, and density shall be considered equal to the approved success standard when they are equal to or greater than 90% of the standard with 90% statistical confidence, using an appropriate (parametric or nonparametric) onetail test with a 10% alpha error.
(3) The revegetated areas must meet the performance standards in (1) and (2) for at least two of the last four years of the phase III bond period. Pursuant to ARM 17.24.1113, the department shall evaluate the vegetation at the time of the bond release inspection for phase III to confirm the findings of the quantitative data. (4) The reestablished vegetation must meet the requirements of the Noxious Weed Management Act (7222101 through 7222153, MCA, as amended). (History: 824204, MCA; IMP, 824233, 824235, MCA; NEW, 1980 MAR p. 725, Eff. 4/1/80; AMD, 1990 MAR p. 964, Eff. 5/18/ 90; AMD, 1994 MAR p. 2957, Eff. 11/11/94; TRANS, from DSL, 1996 MAR p. 3042; AMD, 1999 MAR p. 811, Eff. 4/23/99; AMD, 2004 MAR p. 2548, Eff. 10/22/04.)

Several of Montana's proposed revisions, including combining existing paragraphs (2) and (3) regarding statistical standards and deleting existing paragraphs (4) through (7) pertaining to diversity and seasonality standards, are the result of and reflect enactment of the provisions in HB 373 that were approved in our decision published in the February 16, 2005, Federal Register (70 FR 8001). Montana proposes to revise paragraph (1) by deleting the requirement that specific field and laboratory methods be detailed in the permit application, and replaces it with the requirement that such sampling methods be included in a plan of study approved by the Department. In its explanatory note, Montana states that ``submittal of a plan of study prior to conducting vegetation monitoring or sampling offers an opportunity to make adjustments when needed; if the plan is in the approved permit, revisions must be done through the minor revision process. Thus, the last change to this section is recommended as a more workable, as well as flexible, avenue for submittal and approval of vegetation monitoring/sampling plans.''

Montana's proposed revision conflicts with the Federal regulations at 30 CFR 780.18(b)(5)(vi), which require that each permit application contain a plan for reclamation and include measures proposed to be used to determine the success of revegetation, as required in 30 CFR 816.116, for the proposed permit area. In addition, the August 30, 2006 (71 FR 51684, 51691) Federal Register notice promulgating Federal revegetation success standards and responding to commenters' concerns noted that ``[B]ecause Sec. 780.18(b)(5) requires each permit application to identify its proposed success standards and sampling techniques, this information is also available for public review.'' Therefore, Montana is free to require the submittal of a plan of study from operators, but sampling methods must be included in the permit application. For these reasons, we do not approve Montana's proposal in paragraph (1) to delete the requirement that sampling methods be included and detailed in the permit application.

11. ARM 17.24.1116; Bonding Criteria and Schedule for Release of Bond. Montana proposes to revise this rule by adding a new provision at subparagraph (6)(b)(iii) that provides previously undefined revegetation standards for Phase II bond release. The new provision states that reclamation phase II is deemed to have been completed when:

Vegetation is establishing that is consistent with the species composition, cover, production, density, diversity, and
effectiveness required by the revegetation criteria in ARM 17.24.711, 17.24.713, 17.24.714, 17.24.716 through 17.24.718, 17.24.721, 17.24.723 through 17.24.726, 17.24.731 and 17.24.815 and the approved postmining land use;

Montana notes that while renumbered (6)(b)(iv) requires the establishment of revegetation to the extent required to protect soil from accelerated erosion as a condition of phase II bond release, the rule does not provide standards for revegetation. Montana further states that the proposed amendment requires the revegetation to be consistent with the species composition, cover, production, density, diversity, and effectiveness criteria of the applicable rules and the approved postmining land use, although not to the extent that these standards have been achieved.

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The Federal regulations at 30 CFR 800.40(c)(2) require that revegetation be established on regraded mined lands in accordance with the approved reclamation plan prior to Phase II bond release. The Federal regulations at 30 CFR 816/817.111(a) require that permittees establish on all regraded areas and disturbed areas a vegetative cover that is in accordance with the approved permit and reclamation plan and that is (1) diverse, effective and permanent; and (2) comprised of species native to the area, or introduced species where desirable and

FOR FURTHER INFORMATION CONTACT Jeffrey W. Fleischman, Telephone: 307.261.6550, Email address: jfleischman@osmre.gov.