[Federal Register Volume 67, Number 119 (Thursday, June 20, 2002)]
[Rules and Regulations]
[Pages 41825-41829]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-15582]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SPATS No. MT-021-FOR]
Montana Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving a proposed amendment to the Montana abandoned mine
land reclamation (AMLR) plan (hereinafter referred to as the ``Montana
plan'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). Montana proposed revisions and additional
explanatory information about the Department of Environmental Quality
(DEQ), its authority, organization, personnel staffing policies, and
purchasing and procurement policies. Montana also provided information
about the AMLR plan, the goals and objectives of the emergency program,
reclamation project ranking and selection, the coordination among
agencies, policies and procedures for land acquisition, reclamation of
private land, consent for entry, the accounting system, and a new
appendix concerning the abandoned inactive mines scoring system
(AIMSS). Montana revised its plan to meet the requirements of the
corresponding Federal regulations and to be consistent with SMCRA, to
clarify ambiguities, and to improve operational efficiency.
EFFECTIVE DATE: June 20, 2002.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Director, Casper Field
Office; Telephone: (307) 261-6550; Internet address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Plan
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Montana Plan
The AMLR Program was established by Title IV of the Act (30 U.S.C.
1201 et seq.) in response to concerns over extensive environmental
damage caused by past coal mining activities. The program is funded by
a reclamation fee which is collected on each ton of coal that is
produced. The money collected is used to finance the reclamation of
abandoned coal mines and for other authorized activities. Section 405
of the Act allows States and Indian tribes to assume exclusive
responsibility for reclamation activity within the State or on Indian
lands if they develop and submit to the Secretary of the Interior for
approval, a program (often referred to as a ``plan'') for the
reclamation of abandoned coal mines.
On November 24, 1980, the Secretary of the Interior approved the
Montana plan. You can find general background information on the
Montana plan, including the Secretary's findings and the disposition of
comments, in the October 24, 1980, Federal Register (45 FR 70445). You
can also find later actions concerning Montana's plan and plan
amendments at 30 CFR 926.21 and 926.25.
II. Submission of the Proposed Amendment
By letter dated August 15, 2000, Montana sent us a proposed
amendment to its plan (SPATS No. MT-021-FOR, Administrative Record No.
MT-18-01) under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the
amendment in response to a required plan amendment at 30 CFR 926.21(a)
and at its own initiative.
Montana proposed to delete its abandoned mine land (AML) rule
definitions of ``abandoned mine land reclamation fund,'' ``emergency,''
and ``extreme danger'' at the Administrative Rules of Montana (ARM)
26.4.301 and its definitions of ``abandoned mine land reclamation
fund,'' ``emergency,'' ``expended,'' ``extreme danger,'' ``fund,''
``left or abandoned in either an unreclaimed or inadequately reclaimed
condition,'' ``Montana abandoned mine reclamation program,'' and
``reclamation activities'' at ARM 26.4.1231. Montana proposed a revised
definition of ``abandoned'' at ARM 26.4.301 and a revised ARM
26.4.1303. Montana also proposed to delete the AML rules at ARM
26.4.1232 through 26.4.1242 and to rely instead on its AMLR plan and on
the statutory provisions at the Montana Code Annotated (MCA) 82-4-239,
242, 323, 371, 372, 424, 445 and 446. Montana proposed revisions to MCA
82-4-239 to reflect the reorganized duties of the Board of
Environmental Review and the DEQ. Montana presented its 1995
reorganization plan abolishing the Department of State Lands and
creating the DEQ.
We announced receipt of the proposed amendment in the September 25,
2000, Federal Register (65 FR 57581; Administrative Record No. MT-18-
06). In the same document, we opened the public comment period and
provided an opportunity for a public hearing or meeting on the
amendment's adequacy. We did not hold a public hearing or meeting
because no one requested one. The public comment period ended on
October 25, 2000. We received comments from three Federal agencies.
During our review of the amendment, we identified concerns relating
to the deletion of Montana's rules concerning non-emergency AML
reclamation, the deletion of Montana's rules concerning emergency
reclamation, the statutes relating to Montana's AMLR plan, cross-
references and quotes in the Montana plan which cited the deleted
rules, and the reference to the former Department of State Lands, now
the DEQ. We notified Montana of these concerns by letter dated January
24, 2001 (Administrative Record No. MT-18-08).
Montana responded in a letter dated April 30, 2001, by submitting
additional explanatory information and a revised 2001 plan amendment
(Administrative Record No. MT-18-11). Montana responded to each of our
January 24, 2001, concerns, in particular, explaining where Montana
believes it retains authority to implement its approved AMLR program
(both emergency and non-emergency reclamation activities) for each
deleted rule, where Montana intends to rely upon Federal authority,
that the 2001 plan amendment supercedes earlier plans which may
conflict with subsequent revisions, and referencing additional statutes
which provide AML authority. Montana revised the AMLR plan to provide
2001 updated information, delete obsolete rule cites, change the State
agency name to the Department of Environmental Quality, provide missing
pages, provide an organizational chart for the DEQ, and make other
editorial changes. By letter dated June 5, 2001 (Administrative Record
No. MT-18-13), Montana provided a complete Attachment C to its revised
plan.
Based on Montana's explanatory information and revised 2001 plan
amendment, we reopened the public comment period in the June 1, 2001,
[[Page 41826]]
Federal Register (66 FR 29744, Administrative Record No. MT-18-12) and
provided an opportunity for a public hearing or meeting on the adequacy
of the revised amendment. We did not hold a public hearing or meeting
because no one requested one. The public comment period closed on July
2, 2001. We received comments from two Federal agencies.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are
approving the amendment.
A. Montana State Reorganization To Create the Board of Environmental
Review and the Department of Environmental Quality
In 1995, the Montana legislature renamed the former Board of Land
Commissioners to become the Board of Environmental Review and created
the DEQ, formerly the Department of State Lands. This reorganization
was performed in order to streamline the natural resource functions of
State government. Montana submitted the statute changes resulting from
the State reorganization in SPATS No. MT-017-FOR (Administrative Record
No. MT-14-01).
When we reviewed the MT-017-FOR submittal, we did not find any
regulatory (Title V) problems with the Montana submittal concerning the
State reorganization. However, we deferred on the approval of MCA 82-4-
239 concerning AML (Title IV) reclamation and placed a required plan
amendment upon the Montana program (30 CFR 926.21(a)) in order to
obtain more information concerning the revised AMLR plan and the AMLR
reorganization. For more information, please refer to the final rule
Federal Register notice dated January 22, 1999, on MT-017-FOR (64 FR
3604; Administrative Record No. MT-14-13).
In the August 15, 2000, submittal (SPATS No. MT-021-FOR;
Administrative Record No. MT-18-01), Montana presented a copy of the
2000 State handbook concerning the creation of the Montana DEQ. This
handbook contains the information we requested regarding a new
organizational chart for the AMLR plan under the DEQ.
In addition, Montana has submitted a rewritten Reclamation Plan
2001 plan amendment. In this document, Montana has updated references
from the former Department of State Lands to reflect management under
the current DEQ. The following pages have been revised to reflect that
name change: pages 1 and 2, Introduction; page 3, the Designation of
the DEQ as Authorized Agency; page 5, Legal Opinion of Authority to
Conduct AML Program; page 7, Goals and Objectives; page 8, Reclamation
Projects Ranking and Selection; page 9, Coordination of Agencies; page
10, Policies and Procedures for Land Acquisition, Management and
Disposal; page 11, Reclamation of Private Land; page 12, Consent for
Entry; pages 13 through 15, Administrative and Management Structure;
page 16, Personnel Staffing Policies; page 17, Purchasing and
Procurement Policies; page 18, Accounting System; page 19, Parameters
Related to Montana AML Reclamation Program; and Attachments C, D, E,
and F concerning Abandoned Inactive Mine Scoring System (AIMSS), DEQ
Personnel Staffing Policies, Purchasing and Procurement Delegation
Agreement, and the Montana Administrative Register which published
notices of the Montana AML plan revision in 1996, respectively.
In the response letter dated April 30, 2001 (Administrative Record
No. MT-18-11), Montana stated that there are no further revisions to
the State AMLR plan, other than what is included in this submittal.
This explanation satisfies the required plan amendment at 30 CFR
926.21(a) as it provides us with adequate information concerning
Montana's reorganization. We find Montana's AMLR plan amendment to be
in compliance with SMCRA and consistent with the Federal regulations.
We remove the required plan amendment at 30 CFR 926.21(a).
B. Deletion of Definitions Concerning ``Abandoned Mine Land Reclamation
Fund,'' ``Emergency'' and ``Extreme Danger'' at ARM 26.4.301; Revision
of Definition of ``Abandoned'' at ARM 26.3.301 and ARM 26.4.1303; and
the Deletion of ARM 26.4.1231, 26.4.1232, 26.4.1233, 26.4.1234,
26.4.1235, 26.4.1236, 26.4.1237, 26.4.1238, 26.4.1239, 26.4.1240,
26.4.1241, and 26.4.1242
As part of the Montana Governor's directive to reduce ARM rules by
at least 5%, Montana proposed to delete all State rules (listed above)
concerning its AMLR program (see Attachment F, 2001 State Plan
Amendment) in 1996. Montana decided to rely on its AMLR plan; the State
statutes at MCA 82-4-239, 242, 323, 371, 372, 424, 445, and 446; and
the Federal authority contained in the Code of Federal Regulations at
30 CFR subchapter R.
In response to these deletions, we sent Montana a letter dated
January 24, 2001, requesting a description of where the deleted
sections were covered elsewhere, either in the approved AMLR plan or
the State statutes (Administrative Record No. MT-18-08). In response,
Montana provided a rewritten AMLR plan, as well as a letter dated April
30, 2001, detailing where the information from the deleted rules is
addressed elsewhere in the State AMLR plan (Administrative Record No.
MT-18-11). The replacement authority for the deleted rules in the
Montana AMLR plan is as follows:
a. Montana's Emergency AMLR Program
Montana states that it will use the Federal definitions for
``emergency'' and ``extreme danger'' which are contained in 30 CFR
870.5. Montana has also attached its approved 1983 Emergency Program
Plan Amendment to the 2001 State Plan Amendment as Attachment A. The
1983 Emergency Program Plan and the original 1980 plan address the
provisions of ARM 26.4.1231 and 26.4.1232 concerning AMLR definitions
and the AMLR fund. Montana states that most of the remaining rule
deletions do not pertain to Montana's emergency AMLR program and are
covered elsewhere in the plan. A copy of Montana's original 1980 AMLR
plan, which is referenced in the following discussions, may be obtained
from the DEQ.
b. ARM 26.4.1233, Abandoned Mine Land Reclamation: Eligible Lands and
Waters
The most current definition of eligible lands and waters is
contained in the 1995 Montana plan amendment (SPATS No. MT-016-FOR;
Administrative Record No. MT-AML-01). This definition was expanded to
include certain coal mine sites where there had been a forfeiture of
inadequate bonds or where bonds were forfeited from an insolvent
surety.
c. ARM 26.4.1234, Abandoned Mine Land Reclamation: Reclamation
Objectives and Priorities
The requirements for this deleted rule are contained in the
original 1980 plan beginning on page 11, Volume 1. The AML goals and
objectives are addressed on page 7 of the 2001 State Plan Amendment
(SPATS No. MT-021-FOR; Administrative Record No. MT-18-11).
d. ARM 26.4.1235, Abandoned Mine Land Reclamation: Reclamation Project
Evaluation
Montana's criteria for AML project ranking and selection are
contained on page 14, Volume 1 of the 1980 original AMLR plan. In
addition, Montana has incorporated at Attachment C of the 2001 State
Plan Amendment, the
[[Page 41827]]
AIMSS, a procedure for ranking and evaluating projects (SPATS No. MT-
021-FOR; Administrative Record No. MT-18-11).
e. ARM 26.4.1236, Abandoned Mine Land Reclamation: Consent to Enter
Lands
Montana's original 1980 plan lists the criteria for AML consent of
entry on page 25, Volume 1. In addition, page 12 of the 2001 State Plan
Amendment addresses consent for entry (SPATS No. MT-021-FOR;
Administrative Record No. MT-18-11).
f. ARM 26.4.1237, Abandoned Mine Land Reclamation: Land Eligible for
Acquisition
Montana's original 1980 plan defines the policies and procedures
for land acquisition, management, and disposal on pages 19 through 21,
Volume 1, as does page 10 of the 2001 State Plan Amendment (SPATS No.
MT-021-FOR; Administrative Record No. MT-18-11).
g. ARM 26.4.1238, Abandoned Mine Land Reclamation: Procedures for
Acquisition
Montana's original 1980 AMLR plan addresses the procedures for land
acquisition on pages 19 through 21, Volume 1, as does the 2001 State
Plan Amendment on page 10 (SPATS No. MT-021-FOR; Administrative Record
No. MT-18-11).
h. ARM 26.4.1239, Abandoned Mine Land Reclamation: Acceptance of Gifts
of Land
Montana's original 1980 AMLR plan defines the policies and
procedures for land acquisition, management, and disposal on pages 19
through 21, Volume 1.
i. ARM 26.4.1240, Abandoned Mine Land Reclamation: Management of
Acquired Lands
Montana's original 1980 AMLR plan defines the policies and
procedures for land acquisition, management and disposal on pages 19
through 21, Volume 1.
j. ARM 26.4.1241, Abandoned Mine Land Reclamation: Disposition of
Reclaimed Lands
Montana's original 1980 AMLR plan defines the policies and
procedures for land acquisition, management, and disposal on pages 19
through 21, Volume 1.
k. ARM 26.4.1242, Abandoned Mine Land Reclamation: Reclamation on
Private Land
The requirement to reclaim private land is addressed in the Montana
Constitution at Article IX, in the original 1980 AMLR plan on page 24,
and in the 2001 State Plan Amendment at page 11 (SPATS No. MT-021-FOR;
Administrative Record No. MT-18-11).
In addition to discussion a. through k. above, pages five through
19 of the 2001 Plan Amendment address the content of an AML plan. The
Federal equivalent is contained at 30 CFR 884.13. Therefore, based on
the above description, we find that the proposed Montana deletions and
revisions, considered together with other statutes and plan amendments,
compare, all together, with applicable requirements of the Federal
regulations and SMCRA sufficient to ensure that the Montana plan, as a
whole, meets all applicable Federal requirements.
C. MCA 82-4-239, Reclamation
Montana revised MCA 82-4-239 in SPATS No. MT-017-FOR to reflect the
reorganized duties of the Board of Environmental Review and the DEQ.
However, we deferred our decision on MCA 82-4-239 in SPATS No. MT-017-
FOR as it was unclear what the new reorganization of the Montana AMLR
plan consisted of, as well as which AMLR rules and statutes had been
revised as a result of the 1995 State reorganization (January 22, 1999,
Federal Register notice; 64 FR 3604).
In MT-021-FOR, Montana has presented the same revisions to MCA 82-
4-239 as we reviewed in MT-017-FOR. However, in MT-021-FOR, Montana has
also presented the information that we requested in the required plan
amendment at 30 CFR 926.21(a). Specifically, Montana has presented an
organizational chart for the new DEQ, a narrative description of
changes made to the AMLR plan in a letter dated May 30, 2001, a
rewritten AMLR plan (see finding B of this final rule), as well as
assurances that no other revisions exist to the AMLR program. With this
information, we can approve revised MCA 82-4-239 as in compliance with
SMCRA and consistent with Federal regulations. We approve the revisions
to MCA 82-4-239.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment by letter dated
September 13, 2000 (Administrative Record No. MT-18-03), but did not
receive any.
Federal Agency Comments
Under 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the Montana plan by letter dated September 13, 2000
(Administrative Record No. MT-18-03). The Bureau of Indian Affairs
(BIA) responded by letters dated September 29, 2000, and May 30, 2001,
that it had no concerns with the proposed Montana AMLR revisions
(Administrative Record Nos. MT-18-05 and MT-18-14). The BIA's September
29, 2000, letter also gave positive comments concerning Montana's
revegetation program, which is the subject of another State Program
Amendment, SPATS No. MT-019-FOR. The Mine Safety and Health
Administration (MSHA) sent in letters from three offices (Denver, CO;
Arlington, VA; and Pittsburgh, PA) which stated that it had no concerns
with the proposed Montana AMLR revisions. Those letters are dated
October 18, 2000, November 13, 2000, and June 11, 2001 (Administrative
Record Nos. MT-18-04, MT-18-07, and MT-18-15).
V. OSM's Decision
Based on the above findings, we approve Montana's August 15, 2000,
amendment as revised by the submittal dated April 30, 2001.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 926, which codify decisions concerning the Montana plan.
We find that good cause exists under 5 U.S.C. 553(d)(3) to make this
final rule effective immediately. Section 405(d) of SMCRA requires that
the State have a program that is in compliance with the procedures,
guidelines, and requirements established under the Act. Making this
regulation effective immediately will expedite that process. SMCRA
requires consistency of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that, to the
extent allowable by law, this rule meets the applicable standards of
subsections (a)
[[Page 41828]]
and (b) of that section. However, these standards are not applicable to
the actual language of State AMLR plans and revisions thereof because
each plan is drafted and promulgated by a specific State, not by OSM.
Decisions on proposed State AMLR plans and revisions thereof submitted
by a State are based on a determination of whether the submittal meets
the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the
applicable Federal regulations at 30 CFR part 884.
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 considered: (1) 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
No environmental impact statement is required for this rule since
agency decisions on proposed State AMLR plans and revisions thereof are
categorically excluded from compliance with the National Environmental
Policy Act (42 U.S.C. 4332) by the Manual of the Department of the
Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).
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 State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), 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
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 counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 926
Abandoned mine reclamation programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: May 13, 2002.
Peter Rutledge,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 926--MONTANA ABANDONED MINE LAND RECLAMATION PROGRAM
1. The authority citation for part 926 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
* * * * *
2. Section 926.25 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 926.25 Approval of Montana abandoned mine land reclamation plan
amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * *
* * *
August 15, 2000............... June 20, 2002.... Deletion of ARM
26.4.301(1), (37),
and (41), 26.4.1231,
26.4.1232,
26.4.1233,
26.4.1234,
26.4.1235,
26.4.1236,
26.4.1237,
26.4.1238,
26.4.1239,
26.4.1240,
26.4.1241, and
26.4.1242; and
revision of ARM
26.4.301(1), ARM
26.4.1303, MCA 82-4-
239, and the Montana
Reclamation Plan
2001 Plan Amendment
are approved.
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[[Page 41829]]
Sec. 926.21 [Amended]
3. Section 926.21 is amended by removing and reserving paragraph
(a).
[FR Doc. 02-15582 Filed 6-19-02; 8:45 am]
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