[Federal Register Volume 66, Number 225 (Wednesday, November 21, 2001)]
[Rules and Regulations]
[Pages 58375-58381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-29106]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SPATS No. MT-022-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 or ``the Act''). Montana proposed a
statutory revision concerning transfer of a revoked permit. HB-495 was
passed by the Montana legislature and signed into law by the Governor
to enable the transfer of a revoked permit to a new party so as to
continue the original proposed coal mining and reclamation operation.
The State intends to revise its program to improve operational
efficiency.
EFFECTIVE DATE: November 21, 2001.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Director, Casper Field
Office; Telephone: 307-261-6550; e-mail 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
Section 503(a) of SMCRA 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 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 the Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to the 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 of the Montana regulatory program 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 April 27, 2001, Montana sent us a proposed
amendment
[[Page 58376]]
to its program (Administrative Record No. MT-19-01) under SMCRA (30
U.S. 1201 et seq.). Montana submitted the amendment after the State
Legislature passed HB-495. Governor Judy Martz signed the bill into law
on May 1, 2001. The amendment changes the Montana Strip and Underground
Mine Reclamation Act (MSUMRA), which governs the State's regulatory
program. Specifically, the proposed amendment provides the following:
Section 1. Operating permit revocation--permit transfer; that a
revoked operating permit will not terminate until five years after
revocation, or until substantial revegetation occurs. The amendment
allows a person to apply for the transfer of a revoked permit that has
not terminated by submitting to the Department of Environmental Quality
(the department) an application that contains information required for
a permit applicant by section 82-4-222 of Montana's statute. The
amendment requires the department to stop reclamation activities on the
permit area upon receipt of a transfer application. It also provides
that a person who applies for a revoked permit need not submit any
additional information unless the department can show that significant
changes in the environmental baseline data occurred. Under the proposed
amendment, the department must process transfer applications under time
frames already in Montana's statutes. The amendment provides that,
after a public comment period, the department must transfer the permit
when the new operator provides proof of site ownership or control and
adequate bonding. It further requires all pre-existing permit
deficiencies and necessary modifications to be corrected to the
department's satisfaction before additional surface is disturbed, and
that pre-established environmental monitoring requirements continue.
The proposed amendment specifies conditions under which the department
may not transfer a permit, including the need for significant changes
in the operating or reclamation plans and if the applicant or owners or
controllers of the applicant have outstanding violations. This
amendment provides that the department is not required to reimburse the
former permittee or surety for funds expended for reclamation,
monitoring or site maintenance. This statutory change does not apply to
the revocation or transfer of an operating permit that authorizes
mining on Federal lands.
Section 2. Codification instruction; states that Section 1 is
intended to be codified as an integral part of Title 82, chapter 4,
part 2, and the provisions of Title 82, chapter 4, part 2, apply to
Section 1.
Section 3. Effective date; states this act is effective on passage
and approval.
Section 4. Applicability: States Section 1 applies to mine
operating permits that are in effect as of the effective date of this
act and applies retroactively, within the meaning of 1-2-109, to
permits that were revoked no more than 5 years before the effective
date of this act.
Section 5. Termination B contingent termination; states except as
provided in subsection (2), this act terminates October 1, 2005.
We announced receipt of the proposed amendment in the May 24, 2001,
Federal Register (66 FR 28680; Administrative Record No. MT-019-04). In
the same document, we opened the public comment period and provided an
opportunity for a public hearing on the amendment's adequacy. We did
not hold a public hearing because nobody requested one. The public
comment period ended on June 25, 2001. We received written comments
from one private citizen, one industry group, one environmental group,
the Governor of Montana, and two Federal agencies.
III. Director's Finding
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 as described below.
1. Standard Applied in Reviewing This Amendment
The proposed change to the Montana statute has no counterpart in
either SMCRA or the Federal regulations. However, that does not mean
that it must automatically be disapproved. Section 505(b) of SMCRA
provides that ``Any provision of any State law or regulation in effect
on the date of enactment of this Act, or which may become effective
thereafter, which provides for the control and regulation of surface
mining reclamation operations for which no provision is contained in
this Act shall not be construed to be inconsistent with this Act.''
The criteria for deciding whether this proposed amendment should be
approved or disapproved are whether or not the proposed amendment is in
accordance with the provisions of the SMCRA and consistent with the
requirements of the Federal regulations. As those phrases are defined
in 30 CFR 730.5, the proposed amendment should be no less stringent
than SMCRA and be no less effective than the Federal regulations in
meeting the requirements of SMCRA in order to be approved. For the
reasons articulated below, we conclude that the proposed amendment is
no less stringent than SMCRA and no less effective than the Federal
regulations and, therefore, may be approved.
2. Assumption of a Revoked Permit by Another Party in Order To
Reinitiate Mining
The basic objective of the proposed amendment is to allow another
party to assume a revoked permit and begin mining under the terms of
that permit. While SMCRA and the Federal regulations clearly provide
for the revocation of permits and separately provide for the transfer,
assignment, or sale of permit rights, there is no express Federal
counterpart to the changes Montana proposes to make to MSUMRA in this
amendment which would allow another party to assume a revoked permit
and begin mining under the terms of that permit. The question, then, is
whether or not such a provision is inconsistent with SMCRA.
We have previously addressed this basic question in relation to a
statutory change proposed by another State. West Virginia proposed a
somewhat comparable amendment to its approved statutory requirements on
April 28, 1997. That amendment allows a revoked permit to be reinstated
within one year following the notice of permit revocation, subject to
the discretion of the West Virginia Division of Environmental
Protection's (WVDEP) director and based on WVDEP's receipt of a
petition for reinstatement. The amendment further provided that a
reinstated permit may be assigned to any person who meets the permit
eligibility requirements of West Virginia's regulatory program.
We published our approval of West Virginia's proposed statutory
change in the February 9, 1999, Federal Register (64 FR 6201). In our
decision, we noted that the Federal enforcement requirements of section
521 of SMCRA do not specifically prohibit reinstating a revoked permit.
Therefore, we approved the proposed statutory revision in so far as it
did not contain any provisions that are less stringent than the
requirements of SMCRA.
That same rationale applies here. While the proposed Montana
amendment provides that revoked permits do not actually terminate for a
specified period (five years) after revocation, rather than allowing
for reinstatement as with the approved
[[Page 58377]]
West Virginia program, the effect is the same. Either program would
allow another party to assume a revoked permit and begin mining within
the terms of that permit. To disapprove one approach after approving
the other would be inconsistent. Further, providing a mechanism for
other operators to assume the reclamation liability and commence mining
at forfeited sites that have not yet been reclaimed is consistent with
the objective of section 515(b)(1) of SMCRA which is to maximize
recovery of the coal resource in order to minimize reaffecting
reclaimed land through future mining operations. It is also consistent
with our re-mining initiatives. Therefore, we find that the basic
concept embodied in the proposed revision to the Montana program may be
approved since it is not specifically prohibited by SMCRA and is not
less stringent than SMCRA.
Permits issued under the approved Montana program are valid for
five years and are subject to renewal. However, under this provision, a
revoked permit does not terminate until five years after revocation.
Based upon this provision, we understand that should a permit be
transferred during that five-year period, it would still expire at the
end of those five years unless renewed by the new owners of the permit.
For example, if a transfer takes effect three years after revocation,
the transferred permit will terminate two years after the transfer
unless renewed. Our determination that the provision is no less
stringent than SMCRA is based upon this understanding.
3. Process for Another Party To Assume a Revoked Permit
While the proposed statutory change to the West Virginia program
was approved on February 9, 1999, that same Federal Register notice
made clear that the State was barred from implementing the change until
its program was further amended to specify procedures for implementing
the approved change. Thus, while the statutory change providing the
concept was found no less stringent than SMCRA, it was not yet clear
that the processes to be used to implement the provision would be no
less effective than the Federal regulations. Therefore, we notified
West Virginia that, before implementing the provision, it must
establish provisions governing such transfers that provide adequate
safeguards to ensure that the reinstated permit will satisfy all the
requirements of the West Virginia Surface Mining Control and
Reclamation Act (WVSMCRA). In addition to eligibility requirements,
which were already covered in the approved amendment (and which are
also adequately covered in the proposed Montana amendment), we notified
West Virginia that it must establish procedures that (1) allow for
public participation, (2) require that the revoked permit meet
appropriate permitting requirements of the WVSMCRA, and (3) require
that the mining and reclamation plan be modified to address any
outstanding violations. We also stated that (4) in no event can a
reinstated permit be approved in advance of the close of the public
comment period, and (5) the party seeking reinstatement must post a
performance bond that will be in effect before, during, and after the
reinstatement of the revoked permit.
On March 14, 2000, West Virginia sent to us amendments primarily
incorporating reinstatement provisions into its transfer regulations.
In the August 18, 2000, Federal Register (65 FR 50409) largely
approving the procedures proposed by West Virginia, we seemed to add a
sixth criterion by stating that procedures must not result in the
intentional delay of bond forfeiture reclamation. These six criteria,
articulated to evaluate whether or not the procedures adopted by West
Virginia are no less effective than the Federal regulations, provide a
reasonable standard for evaluating whether or not this proposed
amendment to Montana's approved program contains adequate procedural
safeguards for implementing the concept of allowing another party to
assume mining at the site of a revoked permit. Therefore, to the extent
the proposed amendment meets these criteria, it can be found no less
effective than the Federal regulations.
4. Comparison of Montana's Proposed Amendment With the Specific
Criteria Established by OSM for the West Virginia Proposal
Based upon application of the six criteria established to evaluate
the West Virginia proposal to the proposed Montana amendment, we find
that Montana's proposed amendment is no less effective than the Federal
regulations pertaining to the transfer, assignment, or sale of permit
rights at 30 CFR 774.17.
Of the six criteria established to evaluate the West Virginia
proposal, the first and fourth dealt with the issue of public
participation. The first criterion required public notice, and the
fourth criterion required that the transfer not occur until the close
of the public comment period. The proposed Montana amendment meets
these requirements. Proposed Section 1.(6) provides for transfer only
after public notice and opportunity for comment. This requirement is
not inconsistent with 30 CFR 774.17(c) and is no less effective than
the Federal regulations so long as it is implemented in a manner
consistent with that Federal provision.
The second criterion established to evaluate the West Virginia
proposal was that the revoked permit meet appropriate permitting
requirements. The proposed Montana amendment meets this requirement.
Proposed Section 1.(2) requires that the application for transfer of a
revoked permit contain the information required for a permit applicant
in sections 82-4-222(1)(b) through (i) of the Montana program. Those
sections generally require information pertaining to ownership and
control of both the subject site and mining operation and other legal,
financial, and compliance matters.
An area of potential concern regarding the second criterion is that
proposed Section 1.(3) would preclude Montana from requiring additional
information from the applicant unless Montana can show that significant
changes in the environmental baseline data have occurred. However, this
limitation is mitigated by several provisions of the proposed amendment
which require the submission of information to correct both paperwork
deficiencies and operational violations of the previously approved
mining and reclamation plan. First, proposed Section 1.(2) requires the
applicant to submit all of the compliance information for outstanding
violations required by 82-4-222(1)(g) of the Montana program, and
proposed Section 1.(7)(c) prohibits transfer of a revoked permit unless
those violations are corrected. Second, proposed Section 1.(6)(b)
requires, as a condition of permit transfer, that, prior to creating
any additional disturbance at the site, all preexisting permit
deficiencies must be corrected to the satisfaction of Montana and,
also, that any preestablished environmental monitoring requirements
must continue. Third, proposed Sections 1.(7)(a) and (b) prohibit
permit transfer where Montana can show that significant changes to the
operating or reclamation plan are necessary or where program
requirements for backfilling, grading, subsidence stabilization, water
control, highwall reduction, topsoiling, revegetation, or reclamation
of the affected area cannot be met. Finally, proposed Section 2 applies
the provisions of the entire Montana program, namely, Title 82, Chapter
4, Part 2, to proposed Section 1. We
[[Page 58378]]
understand this to mean that all of the provisions of the Montana
program apply to the process for transfer of a revoked permit, except
those which are expressly modified by Section 1. We find that, taken
together, these provisions of the proposed Montana amendment are fully
sufficient to assure that the informational requirements for transfer
of a revoked permit are no less effective than 30 CFR 773.17(b) and
(c).
The third criterion established to evaluate the West Virginia
proposal was that the mining and reclamation plan be modified to
address any outstanding violations. The proposed Montana amendment
meets this requirement. Proposed Section 1.(7)(c) prohibits transfer of
a revoked permit where Montana can show that it would otherwise be
precluded from doing so because of an outstanding violation or pattern
of violations pursuant to 82-4-227(11) or (12) of the Montana program.
Also, proposed Section 1.(6)(b) requires, as a condition of permit
transfer, that, prior to creating any additional disturbance at the
site, all preexisting permit deficiencies, including modifications
necessary because of reclamation that has been conducted at the site,
be corrected to Montana's satisfaction. Taken together, these sections
of the proposed Montana amendment are no less effective than 30 CFR
773.17(d)(1).
The fifth criterion established to evaluate the West Virginia
proposal was that a bond be posted. The proposed amendment, at Section
1.(6)(a), stipulates that adequate bonding, as required by the program,
must be provided before the transfer can occur. This is consistent with
the requirement and no less effective than the Federal regulations.
The sixth and final criterion, added in the August 18, 2000,
Federal Register notice, was that the procedures must not result in an
intentional delay of bond forfeiture reclamation. One area of potential
concern with the proposed amendment is that, unlike the West Virginia
provision that limits reinstatement of a revoked permit to within 1
year of revocation, this proposal provides that a revoked permit does
not terminate until five years after revocation or substantial
completion of seeding and planting on disturbed areas, whichever occurs
earlier. It has been OSM's experience, working with many States over
several years, that it is not uncommon for 1 to 5 years, or even more,
to lapse between the time of permit revocation and the completion of
reclamation with forfeited funds. Therefore, the proposed time limit of
5 years is not unreasonable, particularly since the time will be less
if reclamation with forfeited funds is substantially completed in less
than five years. Our finding that this provision will not result in
intentional delays in bond forfeiture reclamation is based upon our
understanding that Montana will continue to proceed to reclaim
forfeited sites in a timely manner within the 5-year time limit in this
provision unless an application for transfer is received. Should we
find in future reviews that Montana is intentionally delaying
reclamation to allow the full 5 years to lapse, we will reconsider this
finding and may require an amendment.
A potential concern with the proposed amendment related to
reclamation delays is the provision that, upon receipt of an eligible
application, the department shall cease reclamation activities on the
permit area. On its face, it seems very reasonable and prudent to cease
reclamation activities when it appears that another party will likely
take over the permit and resume mining. In fact, to not cease
reclamation activities would be to potentially waste forfeiture funds
while increasing the disturbance necessary to resume mining. In
addition, the proposal makes clear that an application must contain all
the ownership and violation information necessary to determine
eligibility for a permit and that reclamation activities should cease
only when an application is received from an eligible applicant.
Therefore, our finding that this provision will not cause intentional
delays in bond forfeiture reclamation is based upon our understanding
that, consistent with these provisions, Montana will not cease
reclamation activities with forfeited funds until it has checked the
application to make sure that the information required by 82-4-
222(1)(b) through (1)(i) is contained in the application and Montana
has determined that the applicant is eligible for a permit. Only then,
as we understand this proposal, would Montana cease reclamation with
forfeited funds. If, in future reviews, we should determine that
Montana is applying this provision inconsistent with this finding, a
further amendment may be required.
Although not expressly addressed in the proposed Montana amendment
nor in the Federal permit transfer regulations in 30 CFR 774.17, having
liability insurance is also a requirement for all permittees under the
Federal program. However, Section 2 of the amendment applies the
provisions of Title 82, chapter 4, part 2, to Section 1. As stated
above, we understand this to mean that the provisions of Title
82,chapter 4, part 2 apply to the process for application for transfer
of a revoked permit, except as expressly modified by Section 1. The
application of section 82-4-222(5), which requires an applicant for a
transfer to submit a certificate of public liability insurance, has not
been modified by Section 1. Therefore, we understand the amendment to
include the requirement for a certificate of public liability
insurance. Our finding that the proposal is no less effective than the
Federal regulations and not less stringent than SMCRA is based upon
that understanding.
IV. Summary and Disposition of Comments
Public Comments
We received six letters concerning the proposed amendment,
primarily in response to our request for comments. Following are
summaries of all written comments on the proposed amendment that we
received and our responses to those comments.
B.M.P. Investments, Inc. (BMP) responded in a June 13, 2001,
letter, by expressing its support for the proposed amendment
(Administrative Record No. MT-19-06). BMP asserted that neither SMCRA
nor the 30 CFR regulations contain any provisions precluding our
approval of Montana's proposed amendment. It further asserted that
there is no language in SMCRA or the Federal regulations that prohibits
a State from reissuing a revoked mine permit under the conditions
contained in Montana's new statutory amendment (HB-495).
We agree with these comments as we discussed above in Part III,
Director's Findings, of this final rule.
In a letter dated June 28, 2001, Montana Governor Judy Martz
expressed to the Secretary of the Interior her support for the
amendment on the basis that it expedites the resumption of mining at a
site that is already reviewed and permitted (Administrative Record No.
MT-19-09). Governor Martz requested that we allow Montana to implement
the statute. She noted that the amendment safeguards against
environmental damage by requiring preexisting permit deficiencies to be
corrected, additional information if there have been significant
changes in baseline data, and preestablished environmental monitoring
requirements to continue. The Governor also noted that a revoked permit
may not be transferred if existing requirements of the statutes cannot
be met, significant changes in the operating or reclamation plan are
needed, or the applicant has
[[Page 58379]]
uncorrected violations. She further noted the amendment's provisions
for public notice and comment, site ownership and control, and adequate
bonding.
The Northern Plains Resource Council (NPRC) expressed several
concerns for the proposed amendment in a letter dated June 21, 2001
(Administrative Record No. MT-19-08). NPRC asserted that Montana's
amendment goes beyond the scope and authority of SMCRA and that there
is no authority to resurrect a permit that has ceased to be. NPRC
stated that, by definition, a revoked permit does not exist and SMCRA
does not provide for rehabilitation of revoked permits through permit
transfer. We disagree with this comment. As we stated under Part III,
Director's Findings, we previously approved an amendment proposed by
West Virginia that raised the issue of reinstating revoked permits. In
that approval, we held that SMCRA does not specifically prohibit the
reinstatement of a revoked permit and we approved the transfer of such
permits to a third party. In doing so, we specified the criteria that
would be necessary for full approval and operation of this provision.
We also noted previously in this final rule that section 505(b) of
SMCRA provides that ``Any provision of any State law or regulation in
effect on the date of enactment of this Act, or which may become
effective thereafter, which provides for the control and regulation of
surface mining and reclamation operations for which no provision is
contained in this Act shall not be construed to be inconsistent with
this Act.''
NPRC noted that Montana's proposed amendment requires the State to
stop reclamation activities upon receipt of an application for transfer
of a revoked permit. NPRC maintained that stopping such activities
would cause even further delay of reclamation with forfeited funds. We
expressly address this issue above in the findings section in our
discussion of this provision. Again, while we recognize it as an area
of potential concern, we reiterate that it is not only reasonable but
also prudent to stop reclamation activities when an application has
been received that indicates a strong likelihood that mining will
resume in the near future. This would be true even without this
provision. It would still be reasonable for any Regulatory Authority to
suspend reclamation using forfeited funds if it received an entirely
new permit application seeking to mine an area where a permit had been
previously revoked and reclamation with forfeited funds was underway.
Knowing that it has received a complete application for transfer of the
revoked permit and finding that the applicant is not precluded from
holding a permit pursuant to the Montana program, we believe that it
would be prudent for Montana to then halt expenditure of forfeited
funds on reclamation as required by the proposed amendment. However,
the amendment does not change existing obligations on Montana to
proceed with reclamation in the event of bond forfeiture until a
transfer application is received.
NPRC stated that the party filing the application assumes no
liability for the site until approval while extending the State's
liability by further delaying reclamation. We note that liability for
the site remains with the original permittee until the site is
reclaimed by the State with forfeited bond funds or is taken over by
another party.
NPRC asserted that the proposed process does not evaluate the
financial ability of the applicant against the financial requirements
of taking over the permit. While that is true, such an evaluation has
never been part of the permitting process under SMCRA nor does SMCRA
expressly authorize or require such a review. Therefore, we would have
no basis to require it in relation to this amendment. However,
Montana's amendment only allows the State to transfer a permit to a new
operator if that new operator provides proof of adequate bonding as
required by MSUMRA. The bond is the financial guarantee that
reclamation work will be performed.
The NPRC expressed concerns that, because the information required
for a transfer of permit under the proposed amendment is minimal and
administrative, changes in field conditions or in the proposed
operation/reclamation plan would not be adequately addressed prior to
permit transfer. It is true that, in most circumstances, the
information required in the application is limited to administrative
information. However, that is also true of the Federal rules at 30 CFR
774.17(b) for permit transfer which formed the basis for the approach
taken by West Virginia in response to our requirement to establish
procedures for implementing the reinstatement of revoked permits.
Further, while Montana is precluded from preparing a full review under
75-1-201, it is not precluded from using information it receives during
the public comment period or information it already has from its permit
files, inspection and enforcement files, or forfeiture reclamation work
to evaluate the application. In fact, it would have to do so to
determine whether or not it can show that significant changes to the
operating plan or reclamation plan are necessary or that certain
reclamation requirements cannot be met. Either finding would preclude
issuance of the transfer. Governor Martz recognized these limitations
on permit transfers under the proposed amendment by stating in her
comment letter that ``if the existing requirements of the statutes
cannot be met, significant changes in the operating plan or reclamation
plan are necessary, or the applicant is in violation of Public Law 95-
87, the department may not transfer the permit * * * '' (Administrative
Record No. MT-19-09; emphasis added). Therefore, it is clear that
Montana will undertake sufficient analysis to determine if these
conditions exist. Our finding that the proposed amendment is no less
effective than the Federal rules and meets the criteria outlined for
West Virginia is based upon Montana undertaking that level of analysis.
Also, Montana can require additional information as part of the
application if significant changes occurred in the environmental
baseline data during the period of operation or since the original
permit was revoked. Further, as previously discussed, as a condition of
the transfer, all preexisting problems must be addressed to the
satisfaction of Montana before additional disturbance is created.
The NPRC stated that the permit that is the immediate subject of
this proposed amendment is the Bull Mountain Mine No. 1 permit. NRPC
goes on to allege numerous concerns with the Bull Mountain mine. While
we make no judgment with respect to these allegations, how that mine
was operated with regard to the permit is not a factor in our
consideration of the proposed amendment. Under this amendment, Montana
can only approve a transfer if the permit transfer application is
complete and (1) it cannot show that either the operation plan or the
reclamation plan needs to be changed, (2) it cannot show that the
requirements of MSUMRA and the administrative rules for operation,
backfilling, grading, subsidence stabilization, water control, highwall
reduction, topsoiling, revegetation, and reclamation of the affected
area cannot be met, (3) proof of ownership or control has been
provided, (4) the applicant is eligible to receive a permit, and (5)
adequate bond has been posted. Also, liability insurance is required.
Further, that transfer will be conditioned to require that all
preexisting permit deficiencies be corrected to the satisfaction of
Montana before additional disturbance is
[[Page 58380]]
allowed. We make no judgment of whether or not the Bull Mountain No. 1
permit could qualify for a transfer under the proposed amendment.
However, we believe the above provisions are adequate to assure that
mining could only resume at that site if concerns such as NPRC alleges
are addressed.
We also received comments in a letter dated July 16, 2001, from a
citizen involved in the purchase of property nearby the Bull Mountain
mine (Administrative Record No. MT-19-10). The citizen expressed
concern that he considered the permit revocation to be final but that
the change in Montana's law that is the subject of this amendment has
made it an issue again. The commenter stated that the mine's uncertain
status makes it difficult for anyone to decide whether or not to live
and invest in the area. He argued that there should be another
opportunity for local public input into the permitting decision, noting
that conditions have changed since the permit was revoked and local
residents appear to be ill-informed about the mine's status. As we
noted previously in this final rule, the amendment requires the
department to provide for public notice and the opportunity for comment
while processing an application for transferring a revoked permit. We
also noted previously that this proposed amendment allows the
department to request additional information from the applicant if it
can show that significant changes in environmental baseline data have
occurred. We noted further that this amendment precludes the department
from transferring a revoked permit if it can show that significant
changes in the operation/reclamation plan are needed or that other
requirements of Montana's statute and rules cannot be met. Governor
Martz reiterated these requirements in her June 28, 2001, letter to us
(Administrative Record No. MT-19-09). Finally, we note that anyone
investing in areas of known coal reserves or an inactive mine owned by
others cannot be guaranteed that future mining will not occur. Even
without a provision such as proposed in this amendment, inactive or
reclaimed mines can be reactivated under completely new permits if they
meet requirements that already exist in applicable Federal and State
laws and regulations.
Federal Agency Comments
Under 30 CFR 731.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment in letters dated May 15, 2001, from
various Federal agencies with an actual or potential interest in the
Montana program (Administrative Record No. MT-19-03).
In a letter dated June 18, 2001, the U.S. Department of Labor, Mine
Safety and Health Administration (MSHA) stated that Montana's proposed
amendment will not affect MSHA's enforcement of the Federal Mine Safety
and Health Act of 1977 (Administrative Record No. MT-19-05).
The U.S. Department of the Interior, Bureau of Indian Affairs
(BIA), responded to our request for comments in a letter dated June 22,
2001 (Administrative Record No. MT-19-07). The BIA stated that it is
comfortable with the procedures and requirements Montana advocates in
its amendment. It added that only one mine in Montana currently
produces Indian owned coal, and that it does not anticipate that mine's
permit being revoked or transferred.
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 related 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. As a result, we did not ask EPA to agree on the
amendment.
However, we did request comments from EPA under 30 CFR
732.17(h)(11)(i) in a letter dated May 15, 2001 (Administrative Record
No. MT-19-03). 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 May 15, 2001, we requested comments from them on
Montana's amendment (Administrative Record No. MT-19-03). Neither the
SHPO nor the ACHP responded to our request.
V. Director's Decision
Based on the above finding, we approve the amendment Montana sent
to us on April 27, 2001.
We approve, as discussed in Part III, finding number 1: Section 1
of Title 82, chapter 4, part 2 of the Montana Strip and Underground
Mine Reclamation Act, providing for transfer of revoked operating
permits, including provisions for applying for a transfer, processing
transfer applications, approving and not approving transfer requests,
requirements for reimbursement of expended funds, and restricting
transfer requests to non-Federal lands.
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.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have significant takings implications and
therefore a takings implication assessment is not required. The basic
objective of the amendment is to allow a new party to assume a revoked
permit and begin mining under the terms of that permit.
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 (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
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.
[[Page 58381]]
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 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 because it 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)).
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 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 basic objective of the amendment is to allow a new party to assume
a revoked permit and begin mining under the terms of that permit.
Because the application of the rule is limited and because the party
assuming the revoked permit stands to gain an economic benefit, we have
concluded that the rule will not have a significant economic impact on
a substantial number of small entities.
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 on the fact that the application of the
rule is limited and the party assuming the revoked permit stands to
gain an economic benefit.
Unfunded Mandates
OSM has determined 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: November 6, 2001.
Brent T. 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 November 21, 2001 to read as follows:
926.15 Approval of Montana regulatory program amendments.
------------------------------------------------------------------------
Original amendment submission Date of final Citation/
date publication Description
------------------------------------------------------------------------
April 27, 2001................. November 21, 2001. MCA 82-4 Part 2
Operating permit
revocation--permit
transfer
------------------------------------------------------------------------
[FR Doc. 01-29106 Filed 11-20-01; 8:45 am]
BILLING CODE 4310-05-P