[Federal Register Volume 76, Number 100 (Tuesday, May 24, 2011)]
[Rules and Regulations]
[Pages 30010-30014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-12746]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-030-FOR; Docket ID No. OSM-2009-0007]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving 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 and additions of statutes about bond release
responsibility periods for water management facilities and other
support facilities comprising less than 10 percent of the total bond
release area. Montana revised its program to clarify ambiguities and
improve operational efficiency.
DATES: Effective Date: May 24, 2011.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Casper Field
Office Director, Telephone: (307) 261-6550, Internet address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (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 non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Montana program on April 1, 1980. You can
find background information on the Montana program, including the
Secretary's findings, the disposition of comments, and conditions of
approval in the April 1, 1980, Federal Register (45 FR 21560). You can
also find later actions concerning Montana's program and program
amendments at 30 CFR 926.15, 926.16, and 926.30.
II. Submission of the Proposed Amendment
By letter dated May 12, 2009, Montana sent us an amendment to its
program (Administrative Record No. MT-27-01, Regulations.gov Document
ID No. OSM-2009-0007-0002) under SMCRA (30 U.S.C. 1201 et seq.).
Montana sent the amendment to include changes made at its own
initiative.
We announced receipt of the proposed amendment in the August 12,
2009, Federal Register (74 FR 40537). 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 (Administrative Record
No. MT-27-05; Regulations.gov Document ID No. OSM-2009-0007-0001). We
did not hold a public hearing or meeting because no one requested one.
The public comment period ended on September 11, 2009. We received one
public comment and one Federal agency comment. During our review of
Montana's original submittal and the comments received, we identified
concerns with the amendment proposal. We conveyed our
[[Page 30011]]
concerns to Montana by letter dated March 19, 2010 (Administrative
Record No. MT-27-08; Regulations.gov Document ID No. OSM-2009-0007-
0006). In response to our concerns, Montana revised its proposed
language at MCA 82-4-235(3)(a) by letter dated April 12, 2010
(Administrative Record No. MT-27-09; Regulations.gov Document ID No.
OSM-2009-0007-0007). We then reopened the public comment period on the
amendment's adequacy (75 FR 43476; Regulations.gov Document ID No. OSM-
2009-0007-0008). We did not receive any comments on the revised
amendment proposal.
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.
A. Minor Revisions to Montana's Statutes
Montana proposed minor wording, editorial, and recodification
changes to the following previously-approved statutes: 82-4-235(2); 82-
4-235(3) recodififed as 82-4-235(4)(a) and 82-4-235(4)(b). These minor
revisions were necessary to implement the changes made at 82-4-
235(3)(a) and (b) discussed below.
These minor, editorial, and recodification changes, which are
necessary to implement the changes to MCA 82-4-235(3)(a) and (b)
approved below, do not impact the effectiveness of the current statute.
We find that they are no less stringent than SMCRA and therefore we
approve them.
B. Revisions to Montana's Statute With No Federal Counterpart (82-4-
235(3)(a) and (b))
Montana proposed to revise its regulations for bond release
procedures to allow areas that were utilized for water management and
other support facilities to be exempt from the ten-year revegetation
responsibility period. Water management and other support facilities in
the proposal include sedimentation ponds, diversions, other water
management structures, soil stockpiles, and access roads. The exemption
cannot comprise more than ten percent of a bond release area. The
exempted areas will still be subject to all other applicable
reclamation and revegetation requirements under Montana's regulatory
program.
Section 515(b)(20) of SMCRA provides that the revegetation
responsibility period shall commence ``after the last year of augmented
seeding, fertilizing, irrigation, or other work'' needed to assure
revegetation success. In the absence of any indication of Congressional
intent in the legislative history, OSM interprets this requirement as
applying to the increment or permit area as a whole, not individually
to those lands within the permit area upon which revegetation is
delayed solely because of their use in support of the reclamation
effort on the replanted area. As implied in the preamble discussion of
30 CFR 816.46(b)(5), which prohibits the removal of ponds or other
siltation structures until 2 years after the last augmented seeding,
planting of the sites from which such structures are removed need not
be considered an augmented seeding necessitating an extended or
separate responsibility period (48 FR 44038-44039; September 26,1983).
Indeed, given the Federal regulation that prohibits removal of sediment
ponds until two years after the last augmented seeding, restarting the
ten year responsibility period when a sediment pond is removed would
result in the responsibility period being a minimum of twelve years in
all cases. This is clearly not consistent with the ten year minimum
period mandated by SMCRA at section 515(b)(20)(A). Montana's
counterpart Administrative Rule prohibiting sedimentation ponds and
other water treatment facilities from being removed sooner than 2 years
after the last augmented seeding of reclaimed land within the drainage
basin can be found at MAR 26.4.639(22)(a)(i).
The purpose of the revegetation responsibility period is to ensure
that the mined area has been reclaimed to a condition capable of
supporting the desired permanent vegetation. Achievement of this
purpose will not be adversely affected by this interpretation of
section 515(b)(20) of SMCRA because (1) the lands involved are small in
size and widely dispersed, and (2) the delay in establishing
revegetation on these sites is due not to reclamation deficiencies or
the facilitation of mining, but rather to the regulatory requirement
that ponds and diversions be retained and maintained to control runoff
from the planted area until vegetation is sufficiently established to
render such structures unnecessary for the protection of water quality.
In addition, the affected areas are not likely to be larger than
those which could be reseeded (without restarting the responsibility
period) in the course of performing normal husbandry practices, as that
term is defined in 30 CFR 816.116(c)(4) and explained in the preamble
to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012,
28016; July 27, 1987). Areas this small would have a negligible impact
on any evaluation of the permit area as a whole. Most importantly, this
interpretation is unlikely to adversely affect the regulatory
authority's ability to make a statistically valid determination as to
whether a diverse, effective, and permanent vegetative cover has been
successfully established in accordance with the appropriate
revegetation success standards.
From a practical standpoint, it is usually difficult to identify
precisely where such areas are located in the field once vegetation is
established in accordance with the approved reclamation plan. The above
discussion of the rules in 30 CFR part 816, which applies to surface
mining activities, also pertains to similarly or identically
constructed section 30 CFR part 817, which applies to underground
mining activities.
For the reasons outlined above, OSM adopted a policy to allow the
approval of State program amendment provisions specifying that areas
reclaimed following the removal of siltation structures, associated
diversions, and access roads are not subject to a revegetation
responsibility period and bond liability period separate from that of
the permit area or increment thereof served by such facilities (58 FR
48333; September 15, 1993). OSM has since taken a consistent position
in approving amendments of this sort. Such amendments to the Colorado
(61 FR 26792; May 29, 1996), Illinois (62 FR 54765; October 22, 1997),
Kentucky (63 FR 41423; August 4, 1998), and Ohio (63 FR 51829;
September 29, 1998) State programs have already been approved. OSM's
policy clearly distinguishes which types of areas may be excluded from
the revegetation responsibility period. Montana proposed to allow
sedimentation ponds, diversions, other water management structures,
soil stockpiles, and access roads to be exempted from the revegetation
responsibility period.
Water management structures including sedimentation ponds and
diversions form the basis for OSM's policy to allow State program
amendments such as what Montana proposed. These are the areas which are
required to be retained for two years after surrounding areas have been
reclaimed. These relatively small areas are retained in support of
reclamation. This retention is not due to any deficiency in reclamation
or in support of mining activities.
Access roads would be maintained in order to provide access to
sediment ponds and other water treatment
[[Page 30012]]
facilities. Access roads are generally smaller and less traveled than
haul roads or primary roads and are therefore less likely to encompass
a significant portion of the permit area or cause significant
environmental harm. Additionally, access roads are not used to haul
coal or spoil, so they are not retained to facilitate mining.
Soil stockpiles would be depleted because soil would already be
spread over at least 90% of the bond release area before the
revegetation responsibility period begins. Small soil stockpiles would
be temporarily retained in order to reclaim water treatment facilities
and associated access road areas. Therefore, they would be temporarily
retained in support of reclamation and not due to any deficiency in
reclamation or in support of mining activities. Soil stockpile areas
must be reclaimed and revegetated in order to meet all bond release
requirements other than the ten-year responsibility period.
The effect of this provision will be to start the responsibility
``clock'' for an entire bond release area when reclamation work has
been completed on at least ninety percent of the land. Successfully
reclaimed areas that had been utilized for water treatment facilities
and associated soil stockpile and access road areas will not need to be
delineated and held out of the bond release when surrounding areas have
completed the responsibility timeframe. The entire bond release area
will be sampled for vegetation adequacy and inspected for compliance
with bond release requirements.
This amendment helps facilitate timely bond release for areas
disturbed by the removal of overburden and coal that are properly
backfilled, reclaimed, and meet revegetation success standards for the
ten year responsibility period. Bond release for the majority of the
reclaimed area will not be held up by reclamation of the small areas
associated with support facilities. All areas will be sampled and
assessed for reclamation success. Small parcels of more recently
reclaimed land within the bond release area must demonstrate stability
and reclamation success as if vegetation has had ten years to
establish. If reclamation success cannot be demonstrated, bond release
cannot be approved.
As discussed above, OSM has an established policy permitting
regulatory authorities to promulgate amendments providing for bond
releases to be conducted as Montana proposed. The amendment is
consistent with SMCRA section 515(b)(20) and we approve it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the original amendment proposal (74
FR 40537; Regulations.gov Document ID No. OSM-2009-0007-0001). We
received one public comment. The commenter did not believe that the
proposed amendment complied with SMCRA.
Montana's original submittal was proposing to exempt more types of
areas than permissible under OSM's interpretation of SCMRA 515(b)(20).
We sent a concern letter to Montana identifying problematic language
(``but are not limited to,'' ``segments of haul roads, and electrical
substations''). Montana responded by deleting this language from the
amendment proposal.
OSM's interpretation of SMCRA 515(b)(20) pertaining to this type of
State program amendment was established in 1993. Since then OSM has
taken a consistent stance on such State program amendments, provided
that they meet the standards put forth in 58 FR 48333, as discussed
above. The intent of SMCRA's revegetation responsibility period is to
ensure the establishment of a diverse, effective, and permanent
vegetative cover on reclaimed mine lands. All revegetation and
stability standards must be met on all lands before being released from
bond. The intent of SMCRA is met while allowing the regulatory
authority to process bond releases on logical units of land in a timely
manner. OSM believes that the revised amendment is not inconsistent
with SMCRA.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Montana program (Administrative
Record ID No. MT-27-03; Regulations.gov Document ID No. OSM-2009-0007-
0003).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the
amendment from EPA (Administrative Record ID No. MT-27-03;
Regulations.gov Document ID No. OSM-2009-0007-0004). EPA responded on
July 9, 2009, stating its agreement that granting some relaxation from
the 10-year responsibility period for the last types of disturbances to
be reclaimed may be warranted (Administrative Record ID No. MT-27-04;
Regulations.gov Document ID No. OSM-2009-0007-0005.1). We agree that a
small percentage of land containing structures which by necessity must
be reclaimed last need not restart the reclamation responsibility
period, and are approving this amendment.
State Historic 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 amendments that may have an effect on historic
properties. Although this amendment does not pertain to historic
preservation, we requested SHPO comments on Montana's amendment by
letter dated on June 9, 2009 (Administrative Record ID No. MT-27-03;
Regulations.gov Document ID No. OSM-2009-0007-0004). We did not receive
a response to our request.
V. OSM's Decision
Based on the above findings, we approve Montana's May 12, 2009, as
revised on April 12, 2010, amendment.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 926, which codify decisions concerning the Montana
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate that the State has the
capability of carrying out the provisions of the Act and meeting its
purposes. Making this regulation effective immediately will expedite
that process. SMCRA requires consistency of State and Federal
standards.
Effect of OSM's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an
approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
changes to approved State programs that are not approved by OSM. In the
oversight of the Montana program, we will recognize only the statutes,
regulations, and other materials we have approved, together with any
consistent implementing policies, directives, and other materials. We
will require Montana to enforce only approved provisions.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
[[Page 30013]]
based on the analysis performed for the Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 CFR U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C) et seq.).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
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 Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), of the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon Federal regulations for
which an analysis was prepared and a determination made that the
Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded Mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation did not impose an unfunded mandate.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 16, 2011.
Allen D. Klein,
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.
* * * * *
[[Page 30014]]
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Original amendment submission Date of final Citation/
date publication description
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* * * * * * *
May 12, 2009.................... May 24, 2011...... MCA 82-4-235(2), -
235(3)(a), -
235(3)(b), -
235(4)(a), and -
235(4)(b).
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[FR Doc. 2011-12746 Filed 5-23-11; 8:45 am]
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