[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Rules and Regulations]
[Pages 58022-58025]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-23087]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-034-FOR; Docket ID No. OSM-2011-0018]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
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 statutory definitions of approximate
original contour, in situ coal gasification, and recovery fluid.
Montana revised its program to clarify ambiguities and improve
operational efficiency. Montana intends to promulgate regulations
pertaining to in situ coal gasification within one year. The statutory
revisions discussed here will support that future rulemaking effort.
DATES: Effective Date: September 19, 2012.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Chief, Casper
Field Office, Telephone: (307) 261-6550, email address:
jfleischman@osmre.gov.
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 and 926.30.
II. Submission of the Proposed Amendment
By letter dated August 19, 2011, Montana sent us an amendment to
its
[[Page 58023]]
program (Administrative Record No. MT-31-01) under SMCRA (30 U.S.C.
1201 et seq.). Montana submitted the amendment at its own initiative.
We announced receipt of the proposed amendment in the December 6,
2011, Federal Register (76 FR 76111; Administrative Record No. MT-31-
10). 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
January 5, 2012. We received comments from two Federal agencies, one
State agency, and one industry group.
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 Statute
Montana proposed recodification changes to its statutory
definitions. MCA Sec. 82-4-203(27) through (56) have been recodified
as MCA Sec. 82-4-203(28) through (58). The addition of two new
definitions (discussed below) necessitated these changes. These non-
substantive changes do not alter the definitions' meaning or
effectiveness.
Because these changes are minor, we find the provisions remain no
less stringent than SMCRA.
B. Revisions to Montana's Statute That Are Not the Same as the
Corresponding Provisions of the Federal Statute
Montana proposed revisions to its statutory definition of
Approximate Original Contour (AOC). The existing definition contained
language similar to the Federal definition of AOC as well as additional
stipulations. Montana proposed to reference its definition of
``hydrologic balance'' within its existing AOC definition. The Federal
counterpart definition does not employ the term hydrologic balance.
The proposed addition has no effect beyond referring the reader to
the definition of an existing term. This addition does not alter the
definition's meaning or effectiveness. This definition remains no less
stringent than SMCRA.
C. Revisions to Montana's Statutes With No Corresponding Federal
Statutes
Montana proposed two new definitions which do not have Federal
counterparts under SMCRA: ``in situ coal gasification'' and ``recovery
fluid.''
Montana proposed to define ``in situ coal gasification'' whereas
SMCRA defines ``in situ processing.'' The Federal definition lists in
situ gasification as one type of in situ processing. Montana is
proposing to define a subset of what the Federal Program defines.
Montana's proposed language directly mirrors Wyoming's existing
definition of ``in situ mining.'' Wyoming's definition was approved on
March 31, 1980 (45 FR 20930), under the partial approval of its
original program. That approval set precedent for the definition
Montana recently proposed.
Montana's proposed definition excludes ``the storage of carbon
dioxide in a geologic storage reservoir'' from inclusion under in situ
coal gasification. This phrase precludes in situ gasification projects
from including carbon capture and sequestration (CCS) under the Montana
coal regulatory program.
Montana Senate Bill 498 (SB498) designated the Board of Oil and Gas
Conservation as the regulatory authority for CCS activities within the
State. SB498 generally established that land surface owners own the
pore space below the surface unless it is otherwise documented. As
such, the Board would regulate any proposed CCS activities
appropriately. CCS operations have potential environmental impacts such
as groundwater contamination which, by exclusion from regulation under
in situ coal gasification, would be avoided under Montana's coal
regulatory program (CCS would invoke a separate regulatory scheme). For
this reason, excluding CCS from in situ coal gasification is more
stringent than the Federal Program because the Federal Program does not
address this issue at all.
Montana's new definition provides a technically accurate
description of in situ coal gasification. Because there is precedent
for Montana's proposed definition, the proposed language exceeds what
is defined or restricted under the Federal program, and the definition
is technically accurate, this addition is no less stringent than SMCRA.
Montana proposed to define ``recovery fluid.'' The Federal Program
does not define this term; however, the Wyoming program approved by OSM
on March 31, 1980 (45 FR 20930) defines this term. That approval set
precedent for the definition Montana recently proposed. Montana's new
definition provides a technically accurate description of recovery
fluid. Because there is precedent for Montana's proposed definition,
the proposed language is technically accurate, and Montana exceeds what
is defined under the Federal program, this addition is no less
stringent than SMCRA.
We are approving all of Montana's August 19, 2011 proposed
amendments.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record ID No. MT-31-10), but did not receive any.
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-31-3).
By letter dated November 1, 2011, the Mine Safety and Health
Administration (MSHA) responded to our request (Administrative Record
ID No. MT-31-08). MSHA concurs with the proposed revisions. We agree
with MSHA that the proposed revisions are acceptable.
By letter dated November 1, 2011, the Bureau of Land Management
(BLM) Montana State Office responded to our request (Administrative
Record ID No. MT-31-09). The BLM stated that the proposed changes
appear to be substantially in agreement with the corresponding Federal
regulations and are therefore no less stringent than SMCRA. The BLM has
no objection to the proposed amendments. We agree with BLM's
assessment.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.). None of the revisions that Montana proposed to
make in this amendment pertains to air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment.
Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the
amendment from EPA (Administrative Record Document ID No. MT-31-3) by
letter dated September 28, 2011. EPA did not respond to our request.
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
[[Page 58024]]
SHPO and ACHP on amendments that may have an effect on historic
properties. On September 28, 2011, we requested comments on Montana's
amendment (Administrative Record ID Nos. MT-31-4 and MT-31-5). By
letter dated September 26, 2011, the SHPO responded to our request
(Administrative Record ID No. MT-31-07). The SHPO believes the proposed
changes do not appear to degrade consideration of cultural resources in
any less effective fashion than required in Federal regulations. We
agree with the SHPO's assessment.
V. OSM's Decision
Based on the above findings, we approve Montana's August 19, 2011
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 demonstrates 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.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart 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 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
counterpart 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 counterpart 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 counterpart 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
[[Page 58025]]
is the subject of this rule, is based upon counterpart 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: April 27, 2012.
Allen D. Klein
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
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
August 19, 2011............... September 19, MCA 82-4-203(4)(c)
2012. (definition of AOC);
addition of -203(27)
``in situ coal
gasification;'' -
203(44) ``recovery
fluid;''
recodification of
former -203(27)
through (56).
------------------------------------------------------------------------
[FR Doc. 2012-23087 Filed 9-18-12; 8:45 am]
BILLING CODE 4310-05-P