2011-12746. Montana Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

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: [phone], Internet address: [e-mail].

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 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 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 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

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:

§ 926.15

Approval of Montana regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
May 12, 2009	May 24, 2011	MCA 82-4-235(2), -235(3)(a), -235(3)(b), -235(4)(a), and -235(4)(b).