[Federal Register Volume 88, Number 150 (Monday, August 7, 2023)]
[Proposed Rules]
[Pages 52084-52086]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16848]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 926

[SATS No. MT-042-FOR; Docket ID: OSM-2023-0007; S1D1S SS08011000 
SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]


Montana Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are announcing receipt of a proposed amendment to the Montana 
regulatory program (hereinafter, the Montana program) under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). During 
the 2023 legislative session, the Montana legislature passed House Bill 
576 (HB 576), amending the Montana Strip and Underground Mine 
Reclamation Act as well as the Montana Code Annotated (MCA). 
Accordingly, Montana submitted this proposed amendment to OSMRE on its 
own initiative. Montana's proposal amends the definition of ``Material 
Damage,'' by changing the requirements for what is considered 
``Material Damage'' to the hydrologic balance. Montana's proposal also 
amends permit requirements for mine operations related to hydrologic 
information. The amendment removes the requirement that a permit 
applicant must submit hydrologic information to the Montana Depart of 
Environmental Quality (DEQ) before DEQ approves the permit application. 
Lastly, HB 576 adds four contingencies to the proposed amendments of 
the MCA: a severability clause, a contingent voidness clause, an 
effective date clause, and a retroactive applicability clause.
    This document gives the times and locations that the Montana 
program and this proposed amendment to the program are available for 
your inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4:00 
p.m., M.D.T, September 6, 2023. If requested, we may hold a public 
hearing or meeting on the amendment on September 1, 2023. We will 
accept requests to speak at a hearing until 4:00 p.m., M.D.T. on August 
22, 2023.

ADDRESSES: You may submit comments, identified by SATS No. MT-042-FOR, 
by any of the following methods:
     Mail/Hand Delivery: OSMRE, Attn: Jeffrey Fleischman, P.O. 
Box 11018, 100 East B Street, Room 4100, Casper, Wyoming 82602.
     Fax: (307) 261-6552.
     Federal eRulemaking Portal: The amendment has been 
assigned Docket ID: OSM-2023-0007. If you would like to submit 
comments, go to http://www.regulations.gov. Follow the instructions for 
submitting comments.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than the ones 
listed above will be included in the docket for this rulemaking and 
considered.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see the ``Public Comment Procedures'' heading of the 
SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to review copies of the Montana 
program, this amendment, a listing of any scheduled public hearings or 
meetings, and all written comments received in response to this 
document, you must go to the address listed below during normal 
business hours, Monday through Friday, excluding holidays. You may 
receive one free copy of the amendment by contacting OSMRE's Casper 
Field Office or the full text of the program amendment is available for 
you to read at www.regulations.gov.

Attn: Jeffrey Fleischman, Field Office Director, Office of Surface 
Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming 
82602, Telephone: (307) 261-6550, Email: [email protected]

    In addition, you may review a copy of the amendment during regular 
business hours at the following location:

Attn: Dan Walsh, Mining Bureau Chief, Coal and Opencut Mining Bureau, 
Department of Environmental Quality, P.O. Box 200901, Helena, MT 59601-
0901, Telephone: (406) 444-6791, Email: [email protected]

FOR FURTHER INFORMATION CONTACT: 
Attn: Jeffrey Fleischman, Field Office Director, Office of Surface 
Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming 
82602, Telephone: (307) 261-6550, Email: [email protected]

SUPPLEMENTARY INFORMATION: 
I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Montana Program

    Subject to OSMRE's oversight 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 approved, State program includes, 
among other things, State laws and regulations that govern surface coal 
mining and reclamation operations in accordance with the Act and 
consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and 
(7).
    On the basis of these criteria, the Secretary of the Interior 
approved the Montana program on October 24, 1980. You can find 
background information on the Montana program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Montana program in the October

[[Page 52085]]

24, 1980, Federal Register (45 FR 70445). You can also find later 
actions concerning the Montana program and program amendments at 30 CFR 
926.25.

II. Description of the Proposed Amendment

    By letter dated June 1, 2023 (Administrative Record No. MT-042-01), 
Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). We found Montana's proposed amendment to be administratively 
complete on June 5, 2023. Montana submitted this proposed amendment to 
us, of its own volition, following the passage of Montana House Bill 
576 (HB 756) during the 2023 legislative session. HB 576 amends the 
Montana Strip and Underground Mine Reclamation Act as well as Sec.  82-
4-203 and Sec.  82-4-222 of MCA. HB 576 also adds four contingencies 
that apply to the proposed amendments.
    First, Montana proposes several changes to Sec.  82-4-203(32), 
which defines and describes ``Material Damage.'' Currently, this 
section dictates how ``Material Damage'' applies to the protection of 
the hydrologic balance. Montana now proposes to create three sub 
sections under Sec.  82-4-203(32) and will explain how ``Material 
Damage'' applies to each.
    Proposed subsection Sec.  82-4-203(32)(a) would create two 
requirements for an action or inaction to be considered ``Material 
Damage'' to the hydrologic balance. The first requirement is that the 
coal mining operation cause significant, lasting or permanent, adverse 
changes to water quality or quantity that affect the beneficial uses 
of, and rights to, the water outside the permit area. This requirement 
incorporates Sec.  82-4-203(32)'s current language, but with 
modifications. Montana proposes to replace the phrase ``degradation or 
reduction'' with ``significant long term or permanent adverse change.'' 
Montana also removes violations of water quality standards, regardless 
of whether an existing water use is affected, from the definition of 
``Material Damage.'' The second requirement for an action or inaction 
to be considered ``Material Damage'' to the hydrologic balance is that 
a coal mining or reclamation operation cause a lasting or permanent 
exceedance of a water quality standard outside a permit area. There is 
an exception to this second requirement for water bodies whose water 
quality standard is stricter than the baseline conditions the DEQ 
determines when assessing an operation's cumulative hydrologic impacts. 
For those water bodies, this requirement is instead met if the coal 
mining and reclamation operation causes an adverse effect to land use, 
beneficial uses of water, or water rights.
    Proposed subsection Sec.  82-4-203(32)(b) would apply when 
determining if an alluvial valley floor is ``Materially Damaged.'' 
Montana proposes to modify the definition of ``Material Damage'' by 
adding language that accounts for the degradation or a reduction of 
water quality or quantity supplied to an alluvial valley floor by a 
coal mining and reclamation operation, but only if those actions or 
inactions significantly decrease the alluvial valley floor's ability to 
support agricultural activities.
    Proposed subsection Sec.  82-4-203(32)(c) would apply when 
determining if subsidence caused by underground coal mines is 
``Material Damage.'' Subsidence caused by underground coal mines would 
constitute ``Material Damage,'' when there are significant impairments 
to surface lands, features, and structures; physical changes that have 
significant adverse effects on a lands current and reasonably 
foreseeable uses, production, or income; or when there is any 
significant change to a structure's pre-subsidence condition, 
appearance, or utility.
    Next, Montana proposes to amend its coal mine operation permit 
requirements related to hydrologic information by removing two 
sentences from Sec.  82-4-222(1)(m). The first sentence states that the 
DEQ is not required to determine the probable hydrologic consequences 
of a coal mining and reclamation operation until the coal mining permit 
applicant submits the necessary hydrologic information to DEQ. The 
second sentence prohibits the DEQ from approving a coal mining permit 
application until the coal mining operation provides necessary 
hydrologic information to the DEQ.
    Lastly, HB 576 adds four contingencies to the proposed amendments 
of Sec.  82-4-203(32) and Sec.  82-4-222(1)(m) that are not codified 
into the MCA but apply to the amended sections. Section 4 of HB 576 
states that if any or all parts of HB 576 is found invalid, any parts 
found valid will remain in effect. Section 5 of HB 576 states that if 
the Secretary of the Interior disapproves any provision of the HB 576, 
then that portion is void. Section 6 of HB 576 states that HB 576 is 
effective upon passage and approval. Lastly, Section 7 of HB 576 states 
that HB 576 applies retroactively to actions for judicial review or 
other actions challenging permits, amendments, license, arbitration, 
action, certificate, or inspection that are pending on or after the 
effective date.
    The full text of the program and/or plan amendment is available for 
you to read at the locations listed above under ADDRESSES or at 
www.regulations.gov.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the State program.

Electronic or Written Comments

    If you submit written or electronic comments on the proposed rule 
during the 30-day comment period, they should be specific, confined to 
issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment including your personal identifying 
information, may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., MDT. on 
August 22, 2023. If you are disabled and need reasonable accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an

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opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review and Executive 
Order 13563--Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of State program and/or AML plan amendments is 
exempted from OMB review under Executive Order 12866. Executive Order 
13563, which reaffirms and supplements Executive Order 12866, retains 
this exemption.

Other Laws and Executive Orders Affecting Rulemaking

    When a State submits a program amendment to OSMRE for review, our 
regulations at 30 CFR 732.17(h) require us to publish a notice in the 
Federal Register indicating receipt of the proposed amendment, its text 
or a summary of its terms, and an opportunity for public comment.
    We conclude our review of the proposed amendment after the close of 
the public comment period and determine whether the amendment should be 
approved, approved in part, or not approved. At that time, we will also 
make the determinations and certifications required by the various laws 
and executive orders governing the rulemaking process and include them 
in the final rule.

List of Subjects in 30 CFR Part 926

    State regulatory program approval, State-federal cooperative 
agreement, Required program amendments.

David A. Berry,
Regional Director, Unified Regions 5, 7-11.
[FR Doc. 2023-16848 Filed 8-4-23; 8:45 am]
BILLING CODE 4310-05-P