[Federal Register Volume 66, Number 113 (Tuesday, June 12, 2001)]
[Rules and Regulations]
[Pages 31530-31533]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14712]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SPATS No. MT-020-FOR]


Montana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving a proposed amendment to the Montana regulatory program 
(hereinafter, the ``Montana program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). Montana proposed revisions to, and 
additions of statutes about, the notice requirements for alternate 
reclamation plans; the use of introduced species on lands mined, 
disturbed, or redisturbed after May 2, 1978, and reseeded prior to 
January 1, 1984; subsidence; a definition of operator for uranium 
mining; and other editorial revisions. Montana revised its program to 
be consistent with SMCRA, provide additional safeguards, clarify 
ambiguities, and improve operational efficiency.

EFFECTIVE DATE: June 12, 2001.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: (307) 261-
6550, Internet address: [email protected].


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

I. Background on the Montana Program

    On April 1, 1980, the Secretary of the Interior conditionally 
approved the Montana program. 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 letters dated July 20 and August 17, 2000, Montana sent us an 
amendment to its program (Administrative Record No. MT-17-01) under 
SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment in response 
to a June 5, 1996, letter (Administrative Record No. MT-17-03) that we 
sent to Montana in accordance with 30 CFR 732.17(c) and to present 
changes made at its own initiative by the 1997 State legislature. The 
full text of this program amendment is available for you to read at the 
locations listed above under ADDRESSES.
    In this amendment, Montana unnecessarily included revisions from 
the 1995 State legislature which OSM approved in the January 22, 1999, 
Federal Register (64FR3604; Administrative Record No. 14-13.) Those 
revisions are not rediscussed in this rule notice.
    The provisions of the Montana Code Annotated (MCA) that Montana 
proposed to revise, or add, are: 82-4-203(1) and (21)(d), MCA 
(Definitions); 82-4-232(1), (7) and (8), MCA (Area mining required-
bond-alternative plan); 82-4-233(1) and (4), MCA (Planting of 
vegetation following grading of disturbed area); 82-4-243, MCA 
(Subsidence); 82-4-253(1), (2) and (3), MCA (Suit for damage to water 
supply); and 82-4-254(1), (2), (3), (4) and (9), MCA (Violation-
Penalty-Waiver).
    We announced receipt of the proposed amendment in the September 25, 
2000, Federal Register (65 FR 57583). 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-17-05). We did not hold a public hearing or meeting because no 
one requested one. The public comment period ended on October 25, 2000.
    During our review of the amendment, we identified one concern about 
lack of a definition of ``permittee'' in the Montana program. We 
notified Montana of this concern by letter dated December 4, 2000 
(Administrative Record No. MT-17-06). Montana responded in a letter 
dated December 18, 2000 (Administrative Record No. MT-17-07), that it 
would not submit a revision to the amendment at this time. In the 
letter, Montana stated that it would write a definition of 
``permittee'' for the State program and submit it to OSM.

III. Director'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.

1. Minor Revisions to Montana's Statutes

    Montana proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved statutes. The corresponding Federal regulations or SMCRA 
provisions are listed in parentheses.

    82-4-203, MCA, subsection (1), (30 CFR 842.11(e)), Definitions;
    82-4-232, MCA, subsections (1), (7) and (8), (SMCRA Sections 
507(b)(6) and 515(b)(3)), Area mining require--bond--alternative plan;
    82-4-253, MCA, subsections (1), (2) and (3), (SMCRA Section 
717(a)), Suit for damage to water supply; and
    82-4-254, MCA, (1), (2), (3) and (9), (SMCRA Sec. 518), Violation--
penalty--waiver.

    Because these changes are minor, we find that they will not make 
Montana's statutes less stringent than SMCRA.

2. MCA 82-4-203(21)(d), Definition of ``Operator''

    Montana proposed to expand the definition of ``operator'' to 
include a person engaged in ``uranium mining'' using in situ methods. 
Montana currently applies its coal mining regulations in the 
Administrative Rules of Montana (ARM) 26.4, Subchapter 9, to the 
uranium industry. However, there is no definition of what constitutes a 
uranium mining ``operator'' in ARM. By adding this definition, Montana 
is adding clarity and consistency to the State program.
    There is no Federal equivalent statute or rule to the definition of 
a uranium mining operator, as OSM's regulations apply to coal mining 
exclusively. Therefore, OSM finds that Montana's revised definition of 
``operator'' is not inconsistent with the requirements of SMCRA, the 
Federal regulations, and Montana's currently approved program.

[[Page 31531]]

The Director approves MCA 82-4-203(21)(d).

3. MCA 82-4-233(1) and (4), Planting of Vegetation Following Grading of 
Disturbed Area

    At MCA 82-4-233(1) and (4), Montana proposed to allow certain lands 
(those mined, disturbed, or redisturbed after May 2, 1978, and seeded 
prior to January 1, 1984, with a seed mix that was approved by the 
department, lands on which the reclaimed vegetation meets Montana's 
requirements and applicable State and Federal seed and vegetation laws 
and rules) to have introduced species composing a major or dominant 
component of the reclaimed vegetation, as introduced species were, at 
that time, considered to be desirable and necessary to achieve the 
postmining land use.
    Montana's currently approved program in the Administrative Rules of 
Montana (ARM) at 26.4.728 and MCA 82-4-233 and 82-4-235 contain 
revegetation requirements which are no less effective than the Federal 
requirements at 30 CFR 816.111 and no less stringent than the Federal 
requirements at SMCRA Sec. 515(b)(19). Concerning the establishment of 
native species on reclaimed lands, Montana's approved program at ARM 
26.4.728 is more stringent than the Federal requirements as Montana 
requires that the revegetated area must be composed of ``at least 51% 
native species.'' Montana is requesting the proposed exemption at MCA 
82-4-233(1) and (4) from its approved program to cover lands disturbed 
by mining after May 2, 1978 and seeded prior to January 1, 1984, when 
seed mixes recommended by the State of Montana contained highly 
competitive introduced species which took over less-competitive native 
species in the seed mix recommended at that time.
    In support of the statutory revision to provide an exception to ARM 
26.4.728, Montana states that:

    Much of the land disturbed by mining after May 2, 1978 and 
seeded prior to January 1, 1984 was reclaimed and seeded with an 
approved seed mix containing competitive introduced species. The 
competitive nature of several introduced species combined with the 
reduced success of native species resulted in the vegetation of many 
reclaimed fields being dominated by introduced species. With the 
advancement of reclamation techniques and the revision of seed 
mixtures, better reclamation and revegetation with predominantly 
native species have resulted.
    In order to appropriately address the preponderance of 
introduced species in many of the earlier reclaimed stands, the 
Department requested the Montana Legislature to amend The Montana 
Strip and Underground Mine Reclamation Act to include the use of 
introduced species to achieve the postmine lands use, which under 
certain conditions, may be necessary and can provide superior 
wildlife habitat and/or livestock grazing. This provision addresses 
those fields that were disturbed after May 12, 1978 and seeded prior 
to January 1, 1984. The proposed change only addresses the use of 
introduced species, all other vegetation standard remain unchanged. 
Additionally, Montana requires that all fields seeded after January 
1, 1984 must also meet the standard of at least 51% native species 
at the time of bond release.
    While a reduction in the number of native species may be 
realized in selected special use pastures, vegetative production and 
cover standards will be achieved prior to bond release. These 
standards plus the structural diversity apparent in these fields 
will ensure the approved postmine land use (livestock grazing and 
wildlife habitat) is appropriately supported prior to final bond 
release. A minor revision may be necessary to approve those changes.

SMCRA allows the use of introduced species in the revegetation process 
where desirable and necessary to achieve the approved postmining land 
use plan. On lands disturbed by mining after May 2, 1978 and seeded 
prior to January 1, 1984, Montana's approval of the seed mixes 
indicates that Montana determined that the introduced species were 
desirable and necessary to achieve the postmining land use, and allowed 
the inclusion of these species in the approved seed mix during the 
early 1980s. Although the introduced species used during the specified 
time period were unexpectedly competitive, as compared with the 
recommended native species in the same seed mix, vegetation resulting 
from the seed mix still provided wildlife habitat and/or livestock 
grazing.
    Neither SMCRA nor the Federal regulations specify what percentage 
of vegetative cover for reclaimed grazing land or fish and wildlife 
should be comprised of native species, but rather SMCRA allows the use 
of introduced species where desirable and necessary to achieve the 
postmining land use. Montana is documenting its decision prior to 
January 1984 (and changed at that time) that the use of introduced 
species would provide the postmining land uses of wildlife habitat and 
livestock grazing, as provided in SMCRA. Therefore, the Director finds 
the Montana statute revisions at MCA 82-4-233(1) and (4) to be no less 
stringent than SMCRA Sec. 515(19)(b) and no less effective than 30 CFR 
816.111 and is approving the revision.

4. MCA 82-4-243, Subsidence

    In response to a Part 732 letter dated June 5, 1996, concerning the 
Energy Policy Act of 1992, Montana proposed a new statute at MCA 82-4-
243 which provides that the permittee of an underground coal mining 
operation shall promptly repair or compensate for subsidence-caused 
material damage to any noncommercial building or occupied residential 
dwelling and related structures. Repair of damage shall include 
rehabilitation, restoration, or replacement. Compensation must be 
provided to the owner of the damaged property in the full amount of the 
diminution in value resulting from the subsidence. Compensation may be 
accomplished by the purchase, prior to mining, of a noncancellable 
premium-prepaid insurance policy. The statute also requires the prompt 
replacement of drinking, domestic, or residential water supply from a 
well or spring, pre-existing to the permit application, which have been 
contaminated, diminished, or interrupted by underground coal mining 
operations. Nothing in the statute may prohibit or interrupt 
underground coal mining operations. In addition, the Montana statute 
provides that no remedy granted under another statue provision or law 
would be abrogated, impaired, or diminished by MCA 82-4-243.
    The Federal equivalent at SMCRA Sec. 720(a) provides that 
underground coal mining operations shall promptly repair, or compensate 
for, material damage resulting from subsidence caused to any occupied 
residential dwelling and structures related thereto, or non-commercial 
building due to underground coal mining operations. Repair of damage 
shall include rehabilitation, restoration, or replacement of the 
damaged occupied residential dwelling and structures related thereto, 
or non-commercial building. Compensation shall be provided to the owner 
of the damaged occupied residential dwelling and structures related 
thereto or non-commercial building and shall be in the full amount of 
the diminution in value resulting from the subsidence. Compensation may 
be accomplished by the purchase, prior to mining, of a noncancellable 
premium-prepaid insurance policy. The statute also requires prompt 
replacement of any drinking, domestic, or residential water supply from 
a well or spring in existence prior to the application for a surface 
coal mining and reclamation permit affected by contamination, 
diminution or interruption resulting from underground coal mining

[[Page 31532]]

operations. Nothing in the statute shall be construed to prohibit or 
interrupt underground coal mining operations. The Federal statute went 
into effect on October 24, 1992.
    The language of the Montana statute is very similar to the Federal 
counterpart and, therefore, is no less stringent than SMCRA. OSM notes 
that whereas the Federal statute refers to ``underground coal mining 
operations,'' the Montana statute refers to ``the permittee of an 
underground coal mining operation.'' Montana does not have a definition 
of ``permittee'' in the approved program. By letter dated December 18, 
2000, Montana stated that it would write a definition of ``permittee'' 
for the State program and submit it to OSM. Existing MCA 82-4-221 
clarifies that an operator may not engage in strip or underground 
mining without first having obtained from the department a permit. MCA 
82-4-221, as well as other statutes in Montana's currently approved 
program, use the term ``permittee'' for the holder of the required 
permit. OSM believes that Montana's use of the term ``permittee'' and 
its meaning in proposed MCA 82-4-243 is clear, even though the program 
lacks a definition of ``permittee'' at this time. Therefore, OSM finds 
that Montana's proposed MCA 82-4-243 is no less stringent than Section 
720(a) of SMCRA and approves the new statute.

5. MCA 82-4-254(4), Violation--Penalty--Waiver

    The only revision proposed by Montana to this subsection concerns 
the deletion of ``commissioner'' and the substitution of ``director of 
environmental quality.'' This revision reflects the State of Montana 
reorganization in 1995 which, among other things, revised the 
environmental and natural resource functions of the State government. 
Montana made related revisions relating to the State reorganization and 
title changes in the January 22, 1999, Federal Register notice at 
Finding No. 2 (Administrative Record No. MT-14-11; 64 FR 3604), but 
this subsection was overlooked. Therefore, with reference to Finding 
No. 2 in the aforementioned January 22, 1999, Federal Register notice, 
the Director approves this revision to MCA 82-4-254(4) as it implements 
the same State reorganization.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. MT-17-02), 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 No. MT-17-02).
    MSHA responded by letter dated October 5, 2000, that the proposed 
amendment was not in conflict with MSHA regulations (Administrative 
Record No. MT-17-04).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get a 
written agreement 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 pertain to air or water quality standards. Under 30 CFR 
732.17(h)(11)(i), OSM requested comments on the amendment from EPA 
(Administrative Record No. MT-17-02). 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 SHPO and ACHP on amendments that may have an effect on historic 
properties. On September 12, 2000, we requested comments on Montana's 
amendment (Administrative Record No. MT-17-02), but neither responded 
to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment sent to us by 
Montana. We approve, as discussed in: Finding No. 1, MCA 82-4-203(1), 
concerning the definition of ``abandoned;'' MCA 82-4-232(1), (7) and 
(8), concerning area mining required--bond--alternate plan; MCA 82-4-
253(1), (2) and (3), concerning suit for damage to water supply; and 
MCA 82-4-254(1), (2), (3) and (9), concerning violation--penalty--
waiver; Finding No. 2, MCA 82-4-203(21)(d), concerning the definition 
of ``operator'' for uranium mining; Finding No. 3, MCA 82-4-233(1) and 
(4), concerning the use of introduced species on lands mined, 
disturbed, or redisturbed after May 2, 1978, and reseeded prior to 
January 1, 1984; Finding No. 4, MCA 82-4-243, concerning subsidence; 
and Finding No. 5, MCA 82-4-254(4), concerning violation--penalty--
waiver.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 926, which codify decisions concerning the Montana 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage States to 
make their programs conform with the Federal standards. SMCRA requires 
consistency of State and Federal standards.

VI. Procedural Determinations

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 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

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 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by Section 3 of Executive Order 12988 (Civil Justice Reform) 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 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 the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory

[[Page 31533]]

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.

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)).

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. 
3507 et seq.).

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 that 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. Accordingly, 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), 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; and 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

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on any local, State, or Tribal 
governments or private entities.

List of Subjects in 30 CFR Part 926

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 10, 2001.
Brent Wahlquist,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 926 is amended as 
set forth below:

PART 926--MONTANA

    1. The authority citation for part 926 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    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
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*                  *                  *                  *
                  *                  *                  *
July 20 and August 17, 2000....         6/12/01  MCA 82-4-203(1) and
                                                  (21)(d), 82-4-232(1),
                                                  (7) and (8), 82-4-
                                                  233(1) and 4, 82-4-
                                                  243, 82-4-253(1), (2)
                                                  and (3) and 82-4-
                                                  254(1), (2), (3), (4)
                                                  and (9).
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[FR Doc. 01-14712 Filed 6-11-01; 8:45 am]
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