[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.

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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]
BILLING CODE 4310-05-P