[Federal Register Volume 59, Number 38 (Friday, February 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4281]
[[Page Unknown]]
[Federal Register: February 25, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
Montana Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: OSM is announcing approval of a proposed amendment to the
Montana permanent regulatory program (hereinafter, the ``Montana
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The proposed amendment would revise the State's definition of
``prospecting'' to more closely conform to the Federal definition of
``coal exploration.''
EFFECTIVE DATE: February 25, 1994.
FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-
5776.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
On April 1, 1980, the Secretary of the Interior conditionally
approved the Montana program as administered by the Department of State
Lands. General background information on the Montana program, including
the Secretary's findings, the disposition of comments, and conditions
of approval of the Montana program can be found in the April 1, 1980
Federal Register (45 FR 21560). Subsequent actions concerning Montana's
program and program amendments can be found at 30 CFR 926.15 and
926.16.
II. Submission of Amendment
By letter dated October 19, 1992, (Administrative Record No. MT-9-
1) Montana submitted a proposed amendment to its permanent program
pursuant to SMCRA. Montana submitted the proposed amendment in response
to a March 29, 1990, letter that OSM sent to Montana in accordance with
30 CFR 732.17(c) (Administrative Record No. MT-8-01). The provision of
the Montana program that Montana proposes to amend is Montana Code
Annotated (MCA) Section 82-4-203(26) (statutory definition of
``prospecting'').
OSM published a notice in the December 14, 1992, Federal Register
(57 FR 59020) announcing receipt of the amendment and inviting public
comment on its adequacy (Administrative Record No. MT-9-8). The public
comment period ended January 13, 1993.
During its review of the amendment, OSM identified concerns
relating to the proposed revision of MCA 82-4-203(26). OSM notified
Montana of the concerns by letter dated February 3, 1993
(Administrative Record No. MT-9-11). Montana responded in a letter
dated July 28, 1993, by submitting a revised proposed definition at MCA
82-4-203(26) (Administrative Record No. MT-9-13). OSM published a
notice in the Federal Register announcing receipt of the revision and
invited public comment on its adequacy (Administrative Record No. MT-9-
18). The public comment period ended September 27, 1993.
In a letter dated November 24, 1993, (Administrative Record No. MT-
9-26) OSM notified the State of concerns related to the proposed
definition submitted by cover letter dated July 28, 1993. Thereafter,
by letter dated January 12, 1994, (Administrative Record No. MT-9-27)
Montana agreed that OSM's concerns with the proposed definition were
justified.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment submitted by Montana on October 19, 1992, and
revised July 28, 1993.
Montana submitted a revised definition of ``prospecting'' at MCA
82-4-203(26) on October 19, 1992, and subsequently, as a result of
OSM's February 3, 1993 letter, submitted a revision to the initially
proposed definition on July 28, 1993. The State is proposing the
following definition of ``prospecting'':
Prospecting means the removal of overburden, core drilling,
construction of roads, or any other disturbance of the surface for
the purpose of determining the location, quantity, or quality of a
natural mineral deposit: the gathering of surface or subsurface
geologic, physical, or chemical data by mapping, trenching,
geophysical or other techniques necessary to determine the quality
and quantity of overburden in an area: or the gathering of
environmental data to establish the conditions of an area before
beginning strip-or underground-coal-mining and reclamation
operations under this part.
The State proposal is similar to the Federal definition of the term
``coal exploration'' at 30 CFR 701.5 insofar as it includes: ``* * *
the gathering of environmental data to establish the conditions of an
area before beginning strip-or underground-coal-mining and reclamation
operations * * *.''
Montana's definition of ``prospecting'' differs from the Federal
definition of ``coal exploration,'' however, in that it distinguishes
between activities that are conducted ``* * * for the purposes of
determining the location, quantity, or quality of a natural mineral
deposit'' and those that are conducted ``* * * to determine the quality
and quantity of overburden in an area.'' Montana defines the term
``mineral'' at MCA 82-4-203(20), to mean coal or uranium.
If activities are conducted to determine the location, quantity, or
quality of a natural mineral deposit, then prospecting ``means the
removal of overburden, core drilling, construction of roads, or any
other disturbance of the surface * * *.'' If, on the other hand,
activities are conducted to determine the quality and quantity of
overburden in an area, then prospecting means ``the gathering of
surface or subsurface geologic, physical, or chemical data by mapping,
trenching, geophysical, or other techniques necessary to determine the
quality and quantity of overburden in [the] area * * *.''
By comparison, the Federal definition of ``coal exploration''
means, in part, the field gathering of surface or subsurface geologic,
physical, or chemical data by mapping, trenching, drilling,
geophysical, or other techniques necessary to determine the quality and
quantity of overburden and coal of an area. Thus, the Federal
definition, unlike the State proposal, does not distinguish between
whether the purpose of the activity conducted is related to the mineral
deposit (coal seam) or the overburden. Additionally, under the Federal
definition of ``coal exploration,'' unlike the State proposal,
activities need not involve surface disturbance to be covered by the
definition. In contrast, the State proposal requires that activities
involve surface disturbance before such activities will be considered
``prospecting'' if the purpose of the activities is to determine the
location, quality, or quantity of the coal deposit.
OSM discussed the broad scope of activities encompassed by the
definition of ``coal exploration'' in the September 18, 1978 Federal
Register (43 FR 41662, 41669) as follows:
The Office has considered the question of whether the terms
``coal exploration operation'' and ``substantially disturb'' should
be proposed to exclude specifically cases where persons enter upon
lands underlain by coal deposits to conduct scientific research or
where very small amounts of coal are removed by hand tools and
access to the area is obtained by foot or by limited use of an
existing road or other access route. After consideration, the Office
has decided not to propose such exclusions, because it is believed
that Congress authorized no categorical exemptions from activities
otherwise covered by section 512 of the Act.
Therefore, to be consistent with the Federal program requirements,
Montana's definition of ``prospecting'' must include the activities of
gathering surface or subsurface geologic, physical, or chemical data by
mapping, trenching, geophysical or other techniques necessary to
determine the quality and quantity of coal of an area, when the purpose
of the activity is to determine location, quantity, or quality of a
mineral deposit. The State must also clarify that an activity need not
involve surface disturbance to be considered ``prospecting.''
The Director is approving the proposed definition of
``prospecting'' because its overall effect would be to increase the
scope of the Montana prospecting program requirements over those
required under the previously approved State definition. The previously
approved definition defined ``prospecting'' to mean:
The removal of overburden, core drilling, construction of roads,
or any other disturbance of the surface for the purpose of
determining the location, quantity, or quality of a natural mineral
deposit.
However, the State is required to further amend its definition of
``prospecting'' so that it includes the activities of gathering surface
or subsurface geologic, physical, or chemical data by mapping,
trenching, geophysical or other techniques necessary to determine the
quality and quantity of coal of an area, when the purpose of the
activity is to determine location, quantity, or quality of a mineral
deposit. The State must also clarify that an activity need not involve
surface disturbance to be considered ``prospecting.''
IV. Summary and Disposition of Comments
1. Public Comments
OSM solicited public comments and provided an opportunity for a
public hearing on the proposed amendment. No public comments were
received. A public hearing was not held because no one requested an
opportunity to testify.
2. Federal Agency Comments
Pursuant to section 503(b) of SMCRA and the implementing
regulations at 30 CFR 732.17(h)(11)(i), comments were solicited from
various Federal agencies with an actual or potential interest in the
Montana program.
The Bureau of Indian Affairs responded that the revision of the
definition of ``prospecting'' does not appear detrimental to lands
within the Indian reservations in Montana (Administrative Record No.
MT-9-06).
The Mine Safety and Health Administration (MSHA), Denver, CO,
responded that the proposed amendment appears not to be in conflict
with MSHA's standards of title 30 of the Federal regulations so long as
``prospecting'' activities do not become mining operations as defined
in 30 CFR 41.1. OSM's duty in reviewing State program amendments
(SPA's) like the one under consideration here is limited to determining
whether the SPA is ``in accordance with'' and ``consistent with'' SMCRA
and its implementing regulations. See sections 503(a)(1) and (a)(7) of
SMCRA. See also 30 CFR 730.5. OSM is not qualified to make a
determination whether a particular SPA is ``in accordance with'' or
``consistent with'' MSHA regulations. Additionally, OSM notes that
section 702(a) of SMCRA specifically requires that nothing in the Act
(SMCRA) shall be construed as superseding, amending, modifying, or
repealing numerous Acts including the Federal Coal Mine Health and
Safety Act of 1969. (Administrative Record No. MT-9-10 and MT-9-16).
The U.S. Fish and Wildlife Service, Mountain-Prairie Region
(Denver, CO) and its Ecological Services (Helena, MT) had no comments
or concerns with the proposed rule change (Administrative Record No.
MT-9-07 and MT-9-20).
The U.S. Army Corps of Engineers, Omaha District (Omaha, NE),
responded that as a part of prospecting, if construction activities
involved temporary or permanent placement of dredged or fill material
into waters of the United States, including wetlands, then a section
404 permit may be required. Also, the placement of any material in any
floodway should be avoided per the Federal Flood Plain Management
criteria. An operator is required to comply with all other applicable
Federal, State and local requirements, including requirements to obtain
other necessary permits needed to conduct an operation. Therefore, all
other required permits, such as the section 404 permit, must be
obtained by an operator (Administrative Record No. MT-9-05).
The U.S. Department of Agriculture's Soil Conservation Service had
no comment on the proposed revision of the term ``prospecting''
(Administrative Record No. MT-9-17).
The Bureau of Mines, Division of Environmental Technology reviewed
the amendment and had no comment (Administrative Record No. MT-9-22).
The Bureau of Land Management responded in support of Montana's
proposed amendment (Administrative Record No. MT--State Historic
Preservation Officer (SHPO) and the Advisory Council on Historic
Preservation (ACHP) Comments.
As required by 30 CFR 732.17(h)(4), OSM provided the proposed
amendment to the SHPO and ACHP for comment. Neither agency responded
with any comments.
Environmental Protection Agency (EPA) Concurrence
Under 30 CFR 732.17(h)(11), the Director is required to obtain the
written concurrence of the Administrator of the EPA with respect to any
provisions of a State program amendment that relate to air or water
quality standards promulgated 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.) By letter dated October 27, 1992, (Administrative Record No. MT-
9-03) the OSM requested that EPA review and concur, if appropriate,
with Montana's proposed amendment. No response was received from the
EPA, Washington DC office, and their concurrence is not required on the
proposed amendment, since it did not address any requirements that
would impact the Clean Water or Clean Air Acts. EPA's Region VIII
Office (Denver, CO) replied that they had no comments on the proposed
amendment (Administrative Record No. MT-9-21).
V. Director's Decision
Based on the above findings, the Director approves Montana's
proposed program amendment as submitted October 19, 1992 and revised on
July 28, 1993 with the provision that Montana further amend its
definition of ``prospecting'' so that it includes the activities of
gathering surface or subsurface geologic, physical, or chemical data by
mapping, trenching, geophysical or other techniques necessary to
determine the quality and quantity of coal of an area, when the purpose
of the activity is to determine location, quantity, or quality of a
mineral deposit. The State must also clarify that an activity need not
involve surface disturbance to be considered ``prospecting.''
The Federal regulations at 30 CFR part 926 codifying decisions
concerning the Montana program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
Compliance With Executive Order 12866
This final rule is exempted from review by the Office of Management
and Budget under Executive Order 12866 (Regulatory Planning and
Review.)
Compliance With Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of the Executive Order 12778 (Civil Justice Reform) and
has determined that, to the extent allowed by law, this rule meets the
applicable standards of subsection (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State regulatory programs and program amendments since each such
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 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.
Compliance With the National Environmental Policy Act
No environmental impact statement is required for this rule since
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).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act, 44 U.S.C. 3507 et seq.
Compliance With the Regulatory Flexibility Act
The Department of the Interior has determined 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. Hence, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. 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.
List of Subjects in 30 CFR 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 17, 1994.
Raymond L. Lowrie,
Assistant Director, Western Support Center.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T, the Code of Federal Regulations is amended as set forth
below.
PART 926--MONTANA
1. The authority citation for part 926 continues to read as
follows:
Authority: Pub. L. 95-87, Surface Mining Control and Reclamation
Act of 1977 (30 U.S.C. 1201 et seq.).
2. Section 926.15 is amended by adding paragraph (k) to read as
follows:
Sec. 926.15 Approval of amendments to State regulatory program.
* * * * *
(k) The amendment to the Montana permanent regulatory program, that
defines ``prospecting'' as submitted to OSM on October 19, 1992, and
revised on July 28, 1993, is approved effective February 25, 1994.
3. Section 926.16 is amended by adding paragraph (f) to read as
follows:
Sec. 926.16 Required program amendments.
* * * * *
(f) By April 26, 1994, Montana shall amend its definition of
``prospecting'' so that it includes the activities of gathering surface
or subsurface geologic, physical, or chemical data by mapping,
trenching, geophysical or other techniques necessary to determine the
quality and quantity of coal of an area, when the purpose of the
activity is to determine location, quantity, or quality of a mineral
deposit. The State must also clarify that an activity need not involve
surface disturbance to be considered ``prospecting.''
[FR Doc. 94-4281 Filed 2-24-94; 8:45 am]
BILLING CODE 4310-05-M