MONTANA
FEDERAL REGISTER CITE: 46 FR 20983 (20993)
PUBLISHED DATE: 04/08/81
EFFECTIVE DATE: 05/08/81
COOPERATIVE AGREEMENT
The State of Montana and the Department of the Interior enter
into a State/Federal Cooperative Agreement to read as follows:
This is a Cooperative Agreement between the State of Montana,
acting by and through the Governor (referred to as the
"Governor") and the United States Department of the Interior,
acting by and through the Secretary of the Interior (referred to
as the "Secretary").
Article I: Introduction and Purpose
A. This Agreement is authorized by Section 523(c) of the
Surface Mining Control and Reclamation Act (Federal Act), Pub. L.
95-87, 30 U.S.C. 1273(c), which allows a State with a permanent
regulatory program approved under 30 U.S.C. 1253, to elect to
enter into an agreement for the regulation and control of surface
coal mining on Federal lands, and by the Montana Strip and
Underground Mine Reclamation Act, Part 2, Chapter 4, Title 82,
Montana Code Annotated (hereinafter "State Act"). This agreement
provides for State regulations of surface coal mining and
reclamation operations on Federal lands consistent with the State
and Federal Acts and the Federal lands program.
B. The purpose of the Agreement is to (1) foster State-Federal
cooperation in the regulation of surface coal mining and
reclamation operations; (2) eliminate unnecessary
intergovernmental overlap and duplication; and (3) provide
effective regulation of surface coal mining operations on Federal
lands and uniform regulation on all non-Indian lands.
Article II: Effective Date
This Cooperative Agreement is effective following signing by
the Secretary and the Governor and upon final publication as
rulemaking in the Federal Register. This Agreement shall remain
in effect until terminated as provided in Article X.
See explanation of Article II in the preamble of this
document.
Article III: Scope
This Agreement makes the laws, regulations, terms and
conditions of Montana's permanent State program conditionally
approved effective April 1, 1980, as amended, 30 CFR Part 926
(State program) for the administration of the Federal Act,
applicable to Federal lands within Montana except as otherwise
stated in this Agreement, the Federal Act, 30 CFR 745.13, or
other applicable laws.
Article IV: Requirements for Cooperative Agreement
The Governor and the Secretary affirm that they will comply
with all of the provisions of this Agreement and will continue to
meet all conditions and requirements specified in this Article.
A. Responsible Administrative Agency. The Montana Department
of State Lands (State Lands) is, and shall continue to be, the
sole agency responsible for administering this Agreement on
behalf of the Governor on Federal lands throughout the State.
The Office of Surface Mining Reclamation and Enforcement (OSM)
shall administer this Agreement on behalf of the Secretary, in
accordance with the Regulations in 30 CFR Chapter VII.
B. Authority of State Agency. State Lands has and shall
continue to have authority under State law to carry out this
Agreement.
C. Funds. The State will devote adequate funds to the
administration and enforcement on Federal lands in Montana of the
requirements contained in the State program. If the State
complies with the terms of this Agreement, and if necessary funds
have been appropriated, OSMRE shall reimburse the State as
provided in Section 705(c) of the Federal Act and 30 CFR 735.16
for costs associated with carrying out responsibilities under
this Agreement.
D. Reports and Records. State lands shall make reports to the
OSMRE Regional Director, Region V (Regional Director), containing
information respecting its compliance with the terms of this
Agreement as the Regional Director shall from time to time
require pursuant to 30 CFR 745.12(c). State lands and the
Secretary shall exchange, upon request, information developed
under this Agreement. The Secretary shall provide State lands
with a copy of any approved evaluation report prepared concerning
State administration and enforcement of this Agreement.
E. Personnel. State lands shall have the necessary personnel
to fully implement this Agreement in accordance with the
provisions of the Federal and State Acts and the State Program.
F. Equipment and Laboratories. State Lands shall have access
to equipment, laboratories, and facilities with which all
inspections, investigations, studies, tests, and analyses can be
performed and which are necessary to carry out the requirements
of this Agreement.
G. Permit Application Fees. The amount of the fee
accompanying an application for a permit shall be determined in
accordance with Section 82-4-223(1) MCA. All permit fees shall
be retained by the State and deposited in the General Fund. The
Financial Status Report submitted pursuant to 30 CFR 725.23 shall
include a report of the amount of permit application fees
collected and attributable to Federal lands during the prior
Federal fiscal year. This amount shall be deducted from the
reimbursement to the State provided for in Section 705(c) of the
Federal Act, 30 CFR 735.16 and Paragraph IV C of this Agreement.
Article V: Policies and Procedures: Mine Plan Review
A. Contents of Mining Plans and Permits. The Governor and the
Secretary agree and hereby require that an operator on Federal
lands shall submit an identical mining and reclamation plan and
permit application or an application for a major modification to
an approved mining plan and permit in an appropriate number of
copies to State Lands and the Regional Director. The plan and
permit application shall be in the form required by State Lands
and include any supplemental forms required by the Secretary.
The plan and application shall include the information required
by, or necessary for, State Lands and the Secretary to make a
determination of compliance with:
(1) Section 82-4-222 MCA;
(2) Title 26, Chapter 4, Subchapter 3, Administrative Rules of
Montana;
(3) Applicable terms and conditions of the Federal coal lease;
(4) Applicable requirements of other Federal laws and
regulations and the State Program.
A permit applicant on Federal lands in Montana shall satisfy
the requirements of 30 CFR 741.12(b)(1) and 30 CFR 741.13(c) by
submitting the information required by Montana.
B. Mine Plan Review Procedures. 1. State Lands shall assume
primary responsibility for the analysis and review of
applications required by 30 CFR 741.13 for surface coal mining
reclamation permits on Federal lands in Montana. The Secretary
shall, as requested, assist the State through the Regional
Director in this analysis and review. The Secretary shall, in
addition, evaluate the State's analysis and conclusions as
necessary to independently determine whether the Secretary
concurs in the State's decision.
2. State Lands will be the primary point of contact for
operators regarding the processing of mining plans and permit
applications. State lands will be responsible for informing the
applicant of all joint State-Federal determinations. State Lands
shall send a copy of all correspondence with the applicant and
any information received from the applicant which may have a
bearing on decisions regarding the mine plan and permit
application to the Regional Director. Except in exigent
circumstances, OSMRE will not independently initiate contacts
with applicants regarding completeness or deficiencies of plans
and applications with respect to matters which are properly
within the jurisdiction of State Lands. The Secretary reserves
the right to act independently of the State to carry out his
responsibilities under laws other than the Federal Act and in
instances of disagreement under the Federal Act. A copy of all
independent correspondence with the applicant that may have a
bearing on decisions regarding the mining plan and permit
application shall be sent to the State.
3. The Regional Director is responsible to ensure that any
information OSMRE receives concerning the application is sent to
State Lands. The Regional Director and State Lands shall
regularly coordinate with each other during the permit review
process as needed.
4. The Regional Director shall be responsible for obtaining,
on a timely basis, the views of all Federal agencies with
jurisdiction or responsibility over a mine plan and permit
application on Federal lands in Montana and for making these
views known to State Lands. State Lands shall keep the Regional
Director informed of findings during the review which bear on the
responsibilities of other Federal agencies. The Regional Director
shall take appropriate steps to facilitate discussions between
State Lands and the concerned agencies wherever desirable to
resolve issues or problems identified in the review.
5. Upon receipt of a mining plan and permit application, the
Regional Director shall begin a review of apparent completeness
of the application. The Regional Director shall identify a person
as the OSMRE application manager. The OSMRE application manager
shall serve as the primary point of contact between OSMRE and
State Lands throughout the review process and shall be
responsible for identifying areas of avoidable duplication of
review and analysis, which shall be eliminated by the Regional
Director. Not later than 90 days after an application has been
received, OSMRE and State Lands shall meet to discuss the
application and agree upon a work plan and schedule for the
review of the application. The Regional Director shall also
inform State Lands of any specificor general areas of concern
which require special handling or analysis. State Lands shall
inform the Regional Director where OSMRE assistance will be
needed to perform any specific or general analysis or prepare any
studies or similar work.
6. Compliance with Montana ARM 26.4.401 through .411 replaces
the requirements of 30 CFR 741.18 except that all public meetings
and hearings during the period prior to the initial permit
decision shall be announced and conducted jointly.
7. Except as otherwise agreed for a specific mine plan and
permit application, all environmental assessments and analyses to
comply with NEPA and MEPA shall be conducted as authorized by 40
CFR 1506.2. To the extent allowed by Federal law and regulation,
State Lands and OSMRE will cooperate to the fullest extent
possible so that one Environmental Impact Statement and/or
Environmental Assessment will be produced to comply with MEPA and
NEPA for a proposed mining and reclamation plan. Such document
will be prepared by State Lands if the Secretary provides the
State with any necessary funding to complete the statement. The
Secretary shall independently evaluate and approve the final
document.
8. Unless the work plan provides otherwise, State Lands shall
prepare a technical analysis, environmental analysis, and
proposed written decision on the mining plan and permit
application. Copies of drafts of these documents shall be sent
to the Regional Director for his review and comment. The
Regional Director shall independently evaluate the documents and
inform State Lands within 30 days, unless a later date is
mutually agreed upon, of any changes that should be made. State
Lands shall consider the comments of the Regional Director and
send a final technical analysis, environmental analysis, and
proposed decision to the Regional Director for his written
concurrence. The Regional Director shall have 30 days to act
after receipt of State Lands' final technical analysis,
environmental analysis, and proposed decision. If no further
changes are required, the Regional Director shall proceed in
accordance with 30 CFR 741.21 and inform State Lands of his
action. In the event State Lands and the Regional Director
cannot agree to the final actions to be taken by State Lands and
the Department on the mining plan and permit application, the
matter shall be referred to the Governor and Secretary for
resolution.
9. Nothing in this agreement shall be construed to limit the
Secretary's authority in 30 CFR 741.16, .17, and .21.
Article VI: Inspections
A. State Lands shall conduct inspections on Federal lands and
prepare and file inspection reports in accordance with the
approved State Program.
B. State Lands shall, within 15 days of conducting any
inspection on Federal lands, file with the Regional Director an
inspection report describing (1) the general conditions of the
lands under the lease, permit, or license; (2) the manner in
which the operations are being conducted; and (3) whether the
operator is complying with applicable performance and reclamation
requirements.
C. State Lands will be the point of contact and sole
inspection authority in dealing with the operator concerning
operations and compliance with requirements covered by this
Agreement, except as described in this Agreement and in the
Secretary's regulations. Nothing in this Agreement shall prevent
inspections by authorized Federal or State agencies for purposes
other than those covered by this Agreement.
D. The Department may conduct any inspections necessary to
comply with 30 CFR Part 842 and its obligation under laws other
than the Act.
E. The Regional Director shall give State Lands reasonable
notice of his intent to conduct an inspection in order to provide
State inspectors with an opportunity to join in the inspection.
When Interior is responding to a citizen complaint of an imminent
environmental danger or a threat to human health, pursuant to 30
CFR 842.11(b)(1)(ii)(C), it will contact the State no less than
24 hours prior to the Federal inspection, if practicable, to
facilitate a joint Federal/State inspection. The Secretary
reserves the right to conduct inspections without prior notice to
State Lands if necessary to carry out his responsibilities under
the Federal Act.
F. Personnel of the State and Interior shall be mutually
available to serve as witnesses in enforcement actions taken by
either party.
Article VII: Enforcement
A. State Lands shall take enforcement action on Federal lands
in accordance with the State program and this Agreement.
B. During any joint inspection by Interior and State Lands,
State Lands shall take enforcement action, including issuance of
orders of cessation and notices of violation. Interior and State
Lands shall consult prior to issuance of any decision to suspend
or revoke a permit.
C. State Lands and OSMRE shall promptly notify each other of
all violations of applicable laws; regulations, orders, approved
mining and reclamation plans and permits subject to this
Agreement and of all actions taken with respect to such
violations.
D. This Agreement does not limit the Secretary's authority to
enforce violations of Federal law or conditions of a permit.
Article VIII: Bonds
A. State lands and the Regional Director shall require all
operators on Federal lands to submit a single bond to cover the
operators's responsibilities under the Federal Act and the State
Program, payable to both the United States and State Lands. The
bond shall be of sufficient amount to comply with the
requirements of both State and Federal law, and release of the
bond shall be conditioned upon compliance with all applicable
requirements.
B. Prior to releasing the operator from an obligation required
under the State Program under the bond for any Federal lands,
State Lands shall obtain the consent of the Regional Director.
State Lands shall also advise the Regional Director of
adjustments to the bond.
Article IX: Designation of Lands as Unsuitable
A. State Lands and the Regional Director shall cooperate with
each other in the review and processing of petitions to designate
lands as unsuitable for surface coal mining operations. When
either agency receives a petition that could impact adjacent
Federal or non-Federal lands, respectively, the agency shall (1)
notify the other of its receipt and of the anticipated schedule
for reaching a decision; and (2) request and fully consider data,
information and views of the other.
B. The authority to designate Federal lands as unsuitable for
mining is reserved to the Secretary or his designated
representative. Petitions for designation shall be filed with
the Regional Director and processed in accordance with 30 CFR
Part 769.
Article X: Termination of Cooperative Agreement
This Agreement may be terminated by the State or the Secretary
under the provisions of 30 CFR 745.15.
Article XI: Reinstatement of Cooperative Agreement
If this Agreement has been terminated in whole or part, it may
be reinstated under the provisions of 30 CFR 745.16.
Article XII: Amendments of Cooperative Agreement
This Agreement may be amended by mutual agreement of Governor
and Secretary in accordance with 30 CFR 745.14.
Article XIII: Changes in State or Federal Standards
A. Interior or the State may from time to time revise and
promulgate new or revised performance or reclamation requirements
or enforcement an administrative procedures. Interior and the
State shall immediately inform each other of any proposed or
final changes in their respective laws or regulations as provided
in30 CFR 732.17. Each party shall, if it determines it to be
necessary to keep this Agreement in force, change or revise its
respective laws or regulations. For changes which may be
accomplished by rulemaking, each party shall have six months in
which to make such changes, unless mutually extended. For
changes which require legislative authorization, the State shall
have until the close of its next regular legislative session in
which to make the changes.
B. The State and Interior shall provide each other with copies
of any changes to their respective laws, rules, regulations, and
standards pertaining to the enforcement and administration of
this Agreement.
Article XIV: Changes in Personnel and Organization
The State and Interior shall, consistent with 30 CFR 745,
advise each other of changes in the organization, structure,
functions, duties and funds of the offices, departments,
divisions and persons within their organizations which could
affect administration and enforcement of this Agreement. Each
shall promptly advise the other in writing of changes in key
personnel, including the heads of a department or division, or
changes in the functions of or duties of persons occupying the
principal offices within the structure of the program. The State
and Interior shall advise each other in writing of changes in the
location of offices, addresses, telephone number, and changes in
the names, location, and telephone numbers of their respective
mine inspectors and the area within the State for which such
inspectors are responsible.
Article XV: Reservation of Rights
In accordance with 30 CFR 745.13, this Agreement shall not be
construed as waiving or preventing the assertion of any rights
that have not been expressly addressed in this Agreement that the
State or the Secretary may have under other laws and regulations,
including the Mineral Leasing Act, as amended, the Mineral
Leasing Act for Acquired Lands, the Stockraising Homestead Act,
the Surface Mining Control and Reclamation Act of 1977, the
Federal Land Policy Management Act, the Constitution of the
United States, the Constitution of the State, or State laws.
Article XVI: Definitions
Terms and phrases used in this Agreement which are defined in
30 CFR Parts 700 and 701 shall be given the meanings set forth in
said definitions.
Dated: February 6, 1981.
Ted Schwinden,
Governor of Montana.
Dated: January 19, 1981.
James A. Joseph,
Secretary of the Interior.
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