[Federal Register Volume 77, Number 182 (Wednesday, September 19, 2012)]
[Rules and Regulations]
[Pages 58022-58025]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-23087]


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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.

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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 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: 
[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 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
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                              * * * * * * *
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).
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[FR Doc. 2012-23087 Filed 9-18-12; 8:45 am]
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