[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.
* * * * *
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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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