[Federal Register Volume 70, Number 31 (Wednesday, February 16, 2005)]
[Rules and Regulations]
[Pages 8002-8019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-2905]
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Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 926
Montana Regulatory Program; Final Rule
Federal Register / Vol. 70, No. 31 / Wednesday, February 16, 2005 /
Rules and Regulations
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[MT-024-FOR]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We are approving, with certain exceptions, a proposed
amendment to the Montana regulatory program (the ``Montana program'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or
the Act). Montana proposed revisions to and additions of statutes
about: State policy and findings concerning mining and reclamation;
definitions; the time required to approve or disapprove minor permit
revisions; permit application requirements, including determinations of
probable hydrologic consequences and land use; requirements to protect
the hydrologic balance; area mining, post-mine land use, and wildlife
enhancement; revegetating disturbed areas; timing of reclamation;
standards for successful revegetation; making vegetation the
landowner's property after bond release; jurisdictional venue in right-
of-entry actions; transfer of revoked permits; and mandamus. The State
also proposes to add new provisions to its statutes for: Revising
applications for permits, permit amendments, and permit revisions;
codifying the changes proposed in the amendment; clauses for
severability, saving, and contingent voidness; and a delayed effective
date for the proposed changes. Montana intends to revise its program to
incorporate the additional flexibility afforded by the revised Federal
regulations and SMCRA, as amended, to provide additional clarification,
and to improve operational efficiency.
EFFECTIVE DATE: February 16, 2005.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Director; Casper Field
Office. Telephone: (307) 261-6550. E-mail: gpadgett@osmre.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM's)
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Montana Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Montana program on April 1, 1980. You can
find background information on the Montana program, including the
Secretary's findings, the disposition of comments, and conditions of
approval in the April 1, 1980, Federal Register (45 FR 21560). You can
also find later actions concerning Montana's program and program
amendments at 30 CFR 926.15, 926.16, and 926.30.
II. Submission of the Proposed Amendment
By letter dated July 29, 2003, Montana sent us an amendment to its
program (State Amendment Tracking System (SATS) MT-024-FOR;
Administrative Record No. MT-21-1) under SMCRA (30 U.S.C. 1201 et
seq.). Montana sent the amendment to include the changes made at its
own initiative.
We announced receipt of the proposed amendment in the October 27,
2003, Federal Register (68 FR 61175). 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-21-06). We did not hold a public hearing or meeting because no
one requested one. The public comment period ended on November 26,
2003. We received one comment from a citizens group and two comments
from coal-mining-related entities in Montana.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment with exceptions and additional requirements as
described below.
We note here that most of the revisions proposed in this submittal
were included within House Bill (HB) 373. Included in that legislation
(at Section 15: contingent voidness) was a provision that if any other
provision of HB 373 were to be disapproved by OSM, then that
disapproved portion would be void. For that reason, for any proposed
revisions that we do not approve (as noted below), those portions of HB
373 are automatically void. Therefore we do not need to require Montana
to delete them.
A. Minor Revisions to Montana's Statutes
Montana proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously-
approved statutes.
Montana Code Annotated (MCA) 82-4-202, except new paragraphs (1)
and (3)(c) through (e); legislative intent, policy, and findings.
MCA 82-4-203, except paragraphs (2), (4), (13), (16), (17), (20)
through (24), (26) through (28), (30), (37), (38), (42) through (44),
(46), (47), (50), and (55); definitions.
MCA 82-4-222(1) through (1)(l), and (1)(q) through (6); permit
application requirements.
MCA 82-4-232 recodification; Area mining, bond.
MCA 82-4-233 recodification and (5); Planting of vegetation.
MCA 82-4-234 except last sentence; Commencement of reclamation.
MCA 82-4-235 recodification and (2) through (3)(b); Determination
of successful revegetation.
MCA 82-4-236; Vegetation as property of landowner.
MCA 82-4-252 except (2) deletion of ``in the district court * *
*''; Mandamus.
Because these changes are minor, we find that they will not make
Montana's statutes less effective than the corresponding Federal
regulations and/or less stringent than SMCRA.
B. Revisions to Montana's Statutes That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations and/or SMCRA
Montana proposed revisions to the following statutes containing
language that is the same as or similar to the corresponding sections
of the Federal regulations and/or SMCRA.
MCA 82-4-203(2), (13), (16), (17), (20) through (23), (26), (27),
(28), (37), (38), (42) through (44), and (46) [No SMCRA counterparts;
30 CFR 701.5], definitions.
MCA 82-4-222(1)(m) and (n) [No SMCRA counterparts; 30 CFR
780.21(f)(3), (i), (j)], permit application hydrology requirements.
MCA 82-4-232(7) and (8) (as newly enacted) [SMCRA 515(b)(2), 30 CFR
816/817.133], land use capability.
Because these proposed rules contain language that is the same as
or similar
[[Page 8003]]
to SMCRA and/or the corresponding Federal regulations, we find that
they are no less effective than the corresponding Federal regulations
and no less stringent than SMCRA.
C. Revisions to Montana's Statutes That Are Not the Same as the
Corresponding Provisions of SMCRA and/or the Federal Regulations
C.1. MCA 82-4-203(4) Definition of Approximate Original Contour
(AOC) [SMCRA 701(2), 30 CFR 701.5].
a. Montana proposed to add a new statutory definition of this term.
Under the proposal, `` `approximate original contour' means that
surface configuration achieved by backfilling and grading of the mined
area so that the reclaimed area, including any terracing or access
roads, closely resembles the general surface configuration of the land
prior to mining and blends into and complements the drainage pattern of
the surrounding terrain, with all highwalls, spoil piles, and coal
refuse piles eliminated, so that: * * *.'' This introductory text
duplicates the Federal definition, except that the Montana definition
makes no allowance for impoundments. Impoundments as an aspect of AOC
are addressed in a proposed revision of MCA 82-4-232(1)(a), which is
addressed in a separate finding below. Since this introductory language
is the same as the Federal language, we approve this part of the
proposed definition.
b. The ``so that'' phrase introduces four proposed new
subparagraphs which are intended to provide clarification or refinement
of the definition in the introductory text. Proposed MCA 82-4-203(4)(a)
provides additional guidance on the meaning of the phrase ``closely
resembles the general surface configuration.'' Specifically, it
provides that the regraded area ``closely resembles'' the general
surface configuration if it is comparable to the premine terrain. The
proposal gives as an example that if the area was basically level or
gently rolling before mining, it should retain these features after
mining, recognizing that rolls and dips need not be restored to their
original locations and that level areas may be increased. This
additional guidance in the proposal is consistent with the intent of
SMCRA in that reclaimed surface configuration does not have to
duplicate the premine topography, only approximate it. This means that
not all premine features need necessarily be restored in the same
location as they the existed prior to mining. Nor is it necessary to
restore all the minor undulations that existed prior to mining. We also
note that this language is very similar to that in OSM's policy
guidance contained in Directive INE-26:
The reclaimed area should closely resemble the general surface
configuration of the land prior to mining. This should not be
interpreted, however, as requiring that postmining contours exactly
match the premining contours or that long uninterrupted premining
slopes must remain the same. Rather, the general terrain should be
comparable to the premining terrain; that is, if the area was
basically level or gently rolling before mining, it should retain
these general features after mining. Rolls and dips need not be
restored in their original locations and level areas may be
increased or terraces created in accordance with 30 CFR 816.102.
Since Montana's proposal essentially duplicates the Federal
guidance, we approve proposed subparagraph MCA 82-4-203(4)(a).
c. Proposed MCA 82-4-203(4)(b) provides additional guidance in
implementing the phrase ``complements the drainage pattern of the
surrounding terrain,'' providing that ``the reclaimed area blends with
and complements the drainage pattern of the surrounding area so that
water intercepted within or from the surrounding terrain flows through
and from the reclaimed area in an unobstructed and controlled manner.''
It is one intent of the requirement for restoration of the hydrologic
balance in SMCRA that backfilling and grading restore the flow of
surface water across the site to premining conditions; we note that
water quantity inflow into a hydrologic unit, minus water quantity
outflow from that unit, is the most basic level of ``hydrologic
balance'' (see the Federal definition of ``hydrologic balance'' at 30
CFR 701.5). The proposed language simply clarifies this requirement as
part of the restoration of AOC. We approve proposed MCA 82-4-203(4)(b).
d. Proposed MCA 82-4-203(4)(c) provides still more guidance on the
phrase ``blends into and complements the drainage pattern of the
surrounding terrain,'' providing that ``postmining drainage basins may
differ in size, location, configuration, orientation, and density of
ephemeral drainageways compared to the premining topography if they are
hydrologically stable, soil erosion is controlled to the extent
appropriate for the postmining land use, and the hydrologic balance is
protected as necessary to support postmining land uses within the area
affected and the adjacent area.'' SMCRA and the Federal regulations
lack a counterpart to this language. The initial proposed language
(``postmining drainage basins may differ in size, location,
configuration, orientation, and density of ephemeral drainageways
compared to the premining topography'') provides guidance beyond that
contained in the Federal AOC definition. The remaining proposed
language provides specialized performance standards for protection of
the hydrologic balance and control of soil erosion when postmining
drainage basins differ from premining.
We note first that, since they are being used in defining AOC,
these special performance standards are applicable to the proposed
postmining topography to be created during the reclamation process, and
thus do not apply during the mining process. Second, erosion rates are
controlled by both land shape and vegetation cover (in cases, like mine
reclamation, where precipitation and soil do not change). So, the
erosion control referred to here is that provided by land shape (we
note that erosion control provided by revegetation, as required by
SMCRA 515(b)(19), is addressed in the proposed amendment at MCA 82-4-
233(1)(d), discussed in a separate finding below).
Regarding soil erosion, Federal performance standards at SMCRA
515(b)(4) require all affected areas to be stabilized and protected to
effectively control erosion and attendant air and water pollution.
``Effectively'' is not defined; but the legislative history on
``effective vegetative cover'' indicates control to ``normal premining
background levels'' [``effective'' vegetative cover includes both ``the
productivity of the vegetation concerning its utility for the
postmining land use as well as its capability of stabilizing the soil
surface with respect to reducing siltation to normal premining
background levels'' H. Rep. No. 95-218, pg. 106]. SMCRA 515(b)(10)(B)
requires the use of the best technology currently available to control
sediment, and requires compliance with State and Federal effluent
limits. Neither of these Federal erosion control requirements limits
erosion control, and hence in this instance land shape, to the needs of
the postmining land use.
However, we believe that this does not render the proposed
definition inconsistent with SMCRA, provided the proposed definition is
interpreted as requiring that all four subparagraphs apply; that is,
that subparagraph (c) does not take precedence over subparagraph (a).
To be no less effective than the Federal definition of AOC,
subparagraph (c) may not be interpreted as authorizing selection of a
postmining land use that would necessitate a deviation from the
remainder of the AOC definition; i.e., the postmining
[[Page 8004]]
land topography must still closely resemble the general surface
configuration of the land prior to mining regardless of the nature of
the approved postmining land use. If the reclaimed terrain is
comparable to the premine terrain, then the erosion control provided by
land shape should approximate the normal premining background level.
Regarding protection of the hydrologic balance, SMCRA 515(b)(10)
requires that disturbances to the hydrologic balance on the mine site
be minimized, regardless of the postmining land use. Further, SMCRA
515(b)(10)(E) prohibits channel deepening or enlargement in receiving
streams (an aspect of hydrologic balance protection), regardless of any
effect or lack of effect on postmining land uses.
We conclude that this clarification of the AOC definition, when
applied to the performance standard at MCA 82-4-232(1)(a) to restore
AOC, would conflict with SMCRA's performance standards requiring
protection of the hydrologic balance. Therefore we do not approve, in
this subparagraph, the phrase ``as necessary to support postmining land
uses within the area affected and the adjacent area'' in the clause
regarding hydrologic balance protection.
Based on the above discussion, we approve proposed MCA 82-4-
203(4)(c) except the phrase ``as necessary to support postmining land
uses within the area affected and the adjacent area'' in the clause
regarding hydrologic balance protection.
e. Proposed MCA 82-4-203(4)(d) provides that one part of the
definition of AOC is that the reclaimed surface configuration must be
appropriate for the postmining land use. The SMCRA definition has no
such provision. Here Montana is inserting a performance standard in the
definition of AOC, equivalent to 30 CFR 816.102(a)(5). We believe that
this does not render the definition inconsistent with SMCRA, provided
the definition is interpreted as requiring that all four subparagraphs
apply; that is, that subparagraph (d) does not take precedence over
subparagraphs (a) through (c). To be no less effective than the Federal
definition of AOC, subparagraph (d) may not be interpreted as
authorizing selection of a postmining land use that would necessitate a
deviation from the remainder of the AOC definition; i.e., the
postmining land topography must still closely resemble the general
surface configuration of the land prior to mining regardless of the
nature of the approved postmining land use. Consistent with the above
reasoning, we approve proposed MCA 82-4-203(4)(d).
C.2 MCA 82-4-203(24) Definition of Hydrologic balance [30 CFR
701.5].
Montana proposes here a new definition for ``hydrologic balance,''
as follows:
``Hydrologic balance'' means the relationship between the
quality and quantity of water inflow to, water outflow from, and
water storage in a hydrologic unit, such as a drainage basin,
aquifer, soil zone, lake, or reservoir, and encompasses the dynamic
relationships among precipitation, runoff, evaporation, and changes
in ground water and surface water storage as they relate to uses of
land and water within the area affected by mining and the adjacent
area.
The first part of this duplicates both Montana's regulatory
definition at Administrative Rules of Montana (ARM) 17.24.301(53) and
the Federal definition at 30 CFR 701.5, down through and including the
term ``surface water storage.'' Montana has now added the last clause,
``as they relate to uses of land and water within the area affected by
mining and the adjacent area.'' Under this proposal, dynamic hydrologic
relationships would be considered only to the extent that they relate
to uses of the land and water; in short, Montana proposes to define
hydrologic balance in terms of the anticipated post-mining land use.
Therefore, under the proposal, components of the hydrologic regime
would not be identified, protected, or monitored unless those
components relate to post-mining uses of land and water.
As used in SMCRA and the Federal regulations, ``hydrologic
balance'' describes a natural resource, the hydrologic conditions and
interactions, that exists within and around the area proposed for
mining. These conditions are independent of the intended land use. By
proposing to define ``hydrologic balance'' in terms of the proposed
post-mining land use, the Montana definition is significantly narrower
than the Federal regulatory definition of ``hydrologic balance.'' We
therefore find that this proposal is not consistent with the Federal
regulatory definition. We approve proposed MCA 82-4-203(24) to the
extent that it duplicates ARM 17.24.301(53); we do not approve the
final phrase ``as they relate to uses of land and water within the area
affected by mining and the adjacent area.''
C.3. MCA 82-4-221(3) Permit revisions [SMCRA 511(a)(2)].
Montana proposed to decrease the time allowed to approve or
disapprove an application for minor permit revision from 120 days to 60
days, with an additional 30 day extension by mutual agreement. SMCRA
511(a)(2) requires only that each regulatory program establish a
timeframe. We find that Montana's proposal is consistent with the
Federal requirement, and we approve it.
C.4. MCA 82-4-222(1)(o) Permit application: proposed postmining
topography [SMCRA 507(b)(14), 30 CFR 780.18(b)(3)].
As part of the permit application, proposed MCA 82-4-222(1)(o)
requires submission of maps, cross sections, range diagrams or other
means approved by the Department (the Department of Environmental
Quality) (which is the regulatory authority under SMCRA), that depict
the projected postmining topography, soil placement, overburden swell,
and drainage patterns and their tie-in points to surrounding drainages.
There is no direct comparison to this requirement in either SMCRA or
the Federal regulations. SMCRA section 507(b)(14) does require maps,
cross sections or plans that identify constructed or natural drainways
and the location of any discharges to any surface body of water on the
area of land to be affected or adjacent thereto, and profiles at
appropriate cross sections of the anticipated final surface
configuration that will be achieved pursuant to the operator's proposed
reclamation plan. The Federal regulations at 30 CFR 780.18(b)(3) also
require contour maps or cross sections that show the final surface
configuration. Montana's proposed language provides additional
specificity beyond that in SMCRA or the Federal regulations. We find
that proposed MCA 82-4-222(1)(o) is consistent with and no less
stringent than SMCRA and no less effective than the Federal
regulations. We approve the proposed language.
C.5. MCA 82-4-222(1)(p) Permit Application--Land Capability [SMCRA
508(a)(2)].
The Montana proposed language is identical in all respects to SMCRA
except for the SMCRA requirement that, if applicable, the application
include a soil survey prepared pursuant to section 507(b)(16). Section
507(b)(16) requires a soil survey be done to confirm the location of
prime farmlands, if a reconnaissance inspection suggests that such
lands may be present in those lands in the permit application. The
Montana Act as proposed lacks a counterpart to section 507(b)(16).
However, the Montana rules, at ARM 26.4.306, require a prime
farmland investigation and ARM 26.4.304(11) requires a soil survey
according to the standards of the Natural Cooperative Soil Survey
describing all soils on the proposed permit area. Minimum soils
information, including soil series and phase, mapping unit,
descriptions,
[[Page 8005]]
physical and chemical analysis of all horizons and soils maps, is also
specified as part of this rule. Because the State rules require a soil
survey for all soils within a proposed permit with sufficient
information to identify any prime farmland soils within a proposed
permit area this fulfills the requirements of sections 507(b)(16) and
508(b)(2). Therefore, the lack of a counterpart in MCA 82-4-222(1)(p)
to the Federal requirement that, if applicable, a soil survey be
prepared pursuant to section 507(b)(16), does not render the State
program less stringent. Based on the proposed language at MCA 82-4-
222(1)(p) and the existing requirements of the State rules, we find the
proposed change to be consistent with and no less effective than SMCRA
and the Federal regulations. We approve the proposed revision.
C.6. MCA 82-4-231(10)(k) Protection of Hydrologic Balance [SMCRA
515(b)(10), 30 CFR 816.41(a)].
The existing provision duplicates the Federal provision and
requires the operator to minimize disturbances to the prevailing
hydrologic balance at the mine site and in associated offsite areas and
to minimize disturbances to the quantity and quality of water in the
surface water and ground water systems by a specified list of
techniques. Montana proposed to revise this, first, by changing
``associated offsite areas'' to ``adjacent areas.'' We note that the
SMCRA provision also uses the phrase ``associated offsite areas,'' but
the Act does not define that phrase. In the implementing rules at 30
CFR 816.41(a), the phrase ``within the permit and adjacent areas'' is
substituted, and the rules define both areas (30 CFR 701.5). OSM has
noted in a rule preamble that the final definition of ``adjacent area''
was modified from the proposed definition to delete the spatial concept
of ``near'' or ``contiguous'' to focus instead on protecting the
natural resources which may be impacted. 44 FR 14923; March 13, 1977.
The Montana statute also does not define the phrase ``associated
offsite areas,'' but does define ``adjacent area,'' and that definition
essentially duplicates the Federal rule definition. Therefore we
approve this change.
Montana proposed to further revise this requirement by adding a
limitation that these minimizations would only be required ``as
necessary to support postmining land uses and to prevent material
damage to the hydrologic balance in the adjacent area.'' In other
words, some efforts at minimization would not be required if postmining
land uses would not be adversely affected and material damage in the
adjacent area would not occur. This limitation would render the Montana
statute less stringent than SMCRA and it would not meet SMCRA's minimum
requirements. Montana stated in the submittal that this language was
intended to be consistent with the general performance standard in the
Federal regulations at 30 CFR 816.41(a). However, we find that the
cited Federal regulation establishes three separate performance
standards: surface mining and reclamation must be conducted (1) to
minimize disturbance of the hydrologic balance on permit and adjacent
areas, (2) to prevent material damage to the hydrologic balance outside
the permit area, and (3) to support postmining land uses. This language
does not, like Montana's proposal, limit the application of the first
standard (minimization).
We also note that there is an internal inconsistency within this
proposed new language. The proposed limitation would apply to material
damage in the ``adjacent area.'' But the new definition of ``material
damage'' applies to all areas ``outside of the permit area,'' which is
an area more extensive than ``adjacent area.''
For these reasons, we do not approve the addition of the phrase
``as necessary to support postmining land uses and to prevent material
damage to the hydrologic balance in the adjacent area.''
C.7. MCA 82-4-231(10)(k)(viii) Protection of Hydrologic Balance
[SMCRA 515(b)(10)(G)].
Similar to the provision discussed in the Finding immediately
above, the existing provision duplicates the Federal provision. It
allows the Department to prescribe ``any other actions'' to minimize
the specified disturbances to the hydrologic balance. And similar to
the provision discussed above, Montana proposed to revise this
allowance by adding a limitation. In this case, the Department would be
limited to prescribing actions to minimize the specified disturbances
``to protect the hydrologic balance as necessary to support postmining
land uses within the area affected and to prevent material damage to
the hydrologic balance in adjacent areas.'' In other words, the
Department would not be allowed to prescribe some actions to minimize
disturbances to the hydrologic balance if postmining land uses would
not be adversely affected or if material damage in the adjacent area
would not occur without those actions. This limitation would limit the
discretion of the regulatory authority provided by SMCRA and hence
render the Montana statute less stringent than SMCRA.
Montana again stated in the submittal that this language was
intended to be consistent with the general performance standard in the
Federal regulations at 30 CFR 816.41(a). But we again note that the
cited Federal regulation establishes minimization of disturbance to the
hydrologic balance (on permit and adjacent areas) as a separate goal
from the prevention of material damage to the hydrologic balance
(outside the permit area) and support of the postmining land use.
We again note that there is an internal inconsistency within this
proposed new language. The proposed limitation would apply to material
damage in the ``adjacent area.'' But the new definition of ``material
damage'' applies to all areas ``outside of the permit area,'' which is
an area more extensive than ``adjacent area.''
For these reasons, we do not approve the addition of the phrase
``to protect the hydrologic balance as necessary to support postmining
land uses within the area affected and to prevent material damage to
the hydrologic balance in adjacent areas.''
C.8. MCA 82-4-231(10)(k)(vii) Protection of Hydrologic Balance
[SMCRA 515(b)(10)].
Montana proposed an addition to the existing list of techniques
required to minimize disturbances to the hydrologic balance. The
existing list duplicated the list in SMCRA at 515(b)(10). The proposed
addition would require that disturbances to the hydrologic balance be
minimized by ``designing and constructing reclaimed channels of
intermittent streams and perennial streams to ensure long-term
stability.'' Insofar as this is an addition to the list provided in
SMCRA, this proposed addition would be considered under SMCRA
515(b)(10)(G) as ``such other actions as the regulatory authority may
prescribe,'' the prescription being, in this case, a program-wide one.
There is a question, though, whether by specifying intermittent and
perennial streams, this provision may be interpreted to exclude
ephemeral streams. That is, does this provision implicitly, if not
expressly, state that it is not necessary to design and construct the
reclaimed channels of ephemeral streams to ensure long-term stability?
For the following reasons, we believe that the answer to this question
is ``no.'' We note that under MCA 82-4-231(10)(k)(ii)(A) and (k)(v),
operators are required to prevent additional contributions of sediment
to runoff, and to avoid channel deepening or enlargement when water is
discharged from mines. These requirements effectively require long-term
stability in
[[Page 8006]]
reclaimed channels of ephemeral streams. Thus we find that the proposed
addition is consistent with SMCRA 515(b)(10)(G), and we approve the
language.
C.9. MCA 82-4-232(1)(a) Backfilling & Approximate Original Contour
(AOC) [SMCRA 515(b)(3); 30 CFR 816.102(a)].
Montana proposed to delete language requiring highwall reduction/
elimination and spoil pile elimination, leaving requirements that area
mining is required for strip mines and that the area of land affected
must be backfilled and graded to AOC. Montana further proposed to add
another sentence containing four clauses after the word ``However.''
Clause (i) provides that, if it is consistent with the adjacent unmined
landscape elements, the operator may propose and the Department may
approve a regraded topography gentler than the premining topography if
the gentler topography is consistent with adjacent unmined landscape
elements and if it would enhance the postmining land use, improve
stability, provide greater moisture retention, and reduce erosional
soil losses. Clause (ii) provides that postmining slopes may not exceed
the angle of repose or whatever lesser slope is necessary to achieve a
long-term static safety factor of at least 1.3 and to prevent slides.
Clause (iii) allows the creation of permanent impoundments in some
cases. Clause (iv) provides that the reclaimed topography must be
suitable for the postmining land use.
The corresponding Federal provision in section 515(b)(3) of SMCRA
requires that all surface coal mining operations backfill, compact, and
grade in order to restore the approximate original contour of the land
with all highwalls, spoil piles, and depressions eliminated (except
small depressions for moisture retention). Section 515(b)(8) also
authorizes the creation of permanent impoundments under certain
conditions. The Federal regulations at 30 CFR 816.102(a) require that
disturbed areas be backfilled and graded to--
(1) Achieve the approximate original contour (except as provided in
paragraph (k), which provides exceptions for thin and thick overburden,
mountaintop removal operations, and certain steep-slope operations);
(2) Eliminate all highwalls, spoil piles, and depressions, except
as provided in paragraph (h) (small depressions) and in paragraph
(k)(3)(iii) (previously mined highwalls);
(3) Achieve a postmining slope that does not exceed either the
angle of repose or such lesser slope as is necessary to achieve a
minimum long-term static safety factor of 1.3 and to prevent slides;
(4) Minimize erosion and water pollution both on and off the site;
and
(5) Support the approved postmining land use.
In summary, the Federal requirements are to backfill and grade to
restore AOC (with four specified exemptions); eliminate highwalls,
spoil piles, and depressions (except certain small depressions and
permanent impoundments); achieve long-term stability; minimize erosion
and water pollution; and support the postmining land use.
The Montana proposal deletes the performance standard requiring the
elimination of all highwalls and spoil peaks.
However, it continues to require restoration of AOC. As discussed
in finding C.1. above, Montana also is adding a definition of AOC at
section 82-4-203(4), MCA, that requires the elimination of all
highwalls, spoil piles, and coal refuse piles. Therefore, the deletion
of this requirement from the Montana performance standards does not
render the State program less stringent than SMCRA or less effective
than the Federal regulations. We are predicating this finding upon
interpretation of the sentence beginning ``However,'' in section 82-4-
232(1)(a), as not establishing an exemption to the highwall and spoil
pile elimination requirement. In other words, we are interpreting that
sentence as providing additional parameters for determining when AOC
restoration has been achieved, not as exceptions to the AOC restoration
requirement. With this stipulation, we approve the proposed deletion of
the sentence: ``Reduction, backfilling, and grading must eliminate all
highwalls and spoil peaks.''
Proposed clause (i) in the sentence beginning ``However,'' provides
that, if it is consistent with the adjacent unmined landscape elements,
the operator may propose and the Department may approve a regraded
topography gentler than the premining topography if the gentler
topography is consistent with adjacent unmined landscape elements and
if it would enhance the postmining land use, improve stability, provide
greater moisture retention, and reduce erosional soil losses. We find
that this provision is consistent with the discussion of the meaning of
``approximate original contour'' in OSM Directive INE-26. In pertinent
part, Part 3.a. of that directive specifies that ``the reclamation of
any minesite must take into consideration and accommodate site-specific
and unique characteristics of the surrounding terrain and postmining
land uses.'' Part 3.c.(2)(a) of the directive also clarifies that
``level areas may be increased,'' provided that, as specified in Part
3.c.(2)(c), all highwalls, spoil piles, and unapproved depressions are
eliminated. Therefore we approve this proposed clause (i).
Montana's proposed clause (ii) requires slope stability equivalent
to that required by the Federal regulations, proposed clause (iii)
provides for permanent impoundments equivalent to that provided by the
Federal regulations, and proposed clause (iv) requires compatibility
with the postmining land use equivalent to that required by the Federal
regulations discussed above. Therefore, we approve these three
provisions.
C.10. MCA 82-4-232(1)(b) Backfilling & Approximate Original Contour
(AOC) [30 CFR 816.102].
MCA 82-4-232(1)(b) allows the operator to leave spoil from the
first cut in place so long as highwalls are eliminated, first cut
spoils are blended with the surrounding terrain and AOC is achieved.
There is no direct Federal counterpart addressing whether first-cut
spoil should be transported to the last cut. The Federal regulations at
30 CFR 816.102(d) provide that, in non-steep-slope areas, spoil may be
placed outside the mined-out area under some conditions (this is
informally known as ``blending''). Additionally, in the preamble to the
Federal regulations addressing backfilling and grading, OSM indicates
that the regulatory authority should have the discretion to establish
the final provisions for the disposal of first cut or box cut spoils so
long as (1) the area where the box cut spoils are placed conforms to
other requirements, such as topsoil removal and grading of the mined
area to AOC; (2) the box cut spoils are also graded to AOC or to the
lowest practicable grade; (3) the reclamation achieves an ecologically
sound land use compatible with the surrounding region; and (4) other
provisions pertaining to spoil handling are met (44 FR 15227, March 13,
1977). These are the same conditions specified in 30 CFR 816.102(d).
The preamble goes on to indicate that any excess spoil, including box
cut spoils, which is deposited on lands that satisfy the slope angles
specified in the definitions for head-of-hollow and valley fills must
comply with the excess spoil regulations and that the stockpiling and
transportation of box cut spoil to the final cut is encouraged in order
that the requirements for the elimination of highwalls, spoil piles and
depressions are satisfied. Montana's proposed language complies with
these
[[Page 8007]]
requirements. Highwalls must be eliminated, grading of the box cut
spoils must blend with the surrounding terrain and AOC must be
achieved. In addition, MCA 82-4-232(1)(a)(iv) requires that the grading
must be suitable for the postmining land use.
Thus proposed MCA 82-4-232(1)(b) is consistent with the intent of
SMCRA and the Federal regulations. We approve proposed MCA 82-4-
232(1)(b).
C.11. MCA 82-4-232(1)(c) Backfilling & Approximate Original Contour
(AOC) [SMCRA 515(b)(3)].
At MCA 82-4-232(1)(c), Montana proposed to delete from the
provision, which addresses the creation of terraces and diversions
during final grading, a sentence which allowed the Department to
promulgate rules requiring ``additional restoration work.'' This
provision is newly designated at subparagraph (c); as currently
approved, these are the last two sentences of paragraph (1). Hence, the
``additional restoration work'' applies to the general performance
standard of backfilling and grading, highwall and spoil pile
elimination, and restoration of AOC.
The corresponding Federal provision at SMCRA 515(b)(3) does not
specially provide for the promulgation of additional backfilling and
grading requirements (although SMCRA 515(a) and (b) do provide for the
regulatory authority to promulgate ``other requirements'' and note that
the defined performance standards are minimums). By deleting this
discretionary provision, Montana is not removing from its program
anything required by SMCRA. Therefore we approve the proposed deletion.
C.12. MCA 82-4-232(7) and (8) Alternate Reclamation [SMCRA 515(b)].
Montana has proposed to delete previously existing paragraphs (7)
and (8). [We note that Montana in this submittal has enacted new
paragraphs (7) and (8), providing requirements for land capability and
alternative land uses. These new paragraphs are addressed in Finding B
above.] The deleted paragraphs address ``alternatives'' to backfilling,
grading, highwall elimination, topsoiling, and planting of a permanent
diverse cover; the implementing rules refer to this as ``alternate
reclamation.''
When the Montana program was initially approved, these deleted
paragraphs were a topic of public comment (see 45 FR 21572; April 1,
1980; Disposition of Comments No. 24). At that time, OSM wrote that it
found that the implementing rule ``is analogous to the Federal
alternative postmining land use provisions rather than to the
experimental practices provision.'' The deleted provisions resemble the
Federal experimental practice provision, but also provided the only
means for Montana to provide for postmining land uses other than the
otherwise-required combination of grazing and fish & wildlife habitat.
Since the newly-promulgated paragraphs (7) and (8) now provide
requirements for land capability and alternative land uses (as
addressed in Finding B. above), deletion of the original paragraphs
will not render the Montana program inconsistent with SMCRA. Therefore
we approve these deletions.
However, we note that several rules within the Montana program were
statutorily authorized only by these now-deleted paragraphs. This also
applies to a couple of rules proposed in earlier amendments to the
Montana program on which OSM had deferred decisions (see 55 FR 19728,
19730, May 11, 1990; 67 FR 6395, 6400, February 12, 2002; and 68 FR
46460, 46466, August 6, 2003). Since the statutory authorization for
these Montana rules will no longer exist upon the effective date of
this OSM rule, Montana will have to remove these Montana rules when
promulgating new rules to implement these statutory changes. OSM will
follow up on this matter when such proposed implementing rules are
submitted. The rules this deleted authority applies to are: ARM
17.24.313(3)(b)(second sentence), 17.24.515(2), 17.24.821, 17.24.823,
17.24.824, and 17.24.825.
C.13. MCA 82-4-232(9) Wildlife Enhancement [SMCRA 515(b)(24)].
Montana proposed to add a new paragraph (9) to this statute to
require that wildlife habitat enhancement features be integrated into
the postmining land use plans for ``cropland, grazing land,
pastureland, land occasionally cut for hay, or other uses''; the
features are to enhance habitat diversity, emphasizing big game
animals, game birds, and threatened and endangered species in the area.
Features must also be planned to enhance wetlands and riparian areas.
Finally, the provision states that such wildlife habitat enhancement
features do not constitute a land use change to fish and wildlife
habitat, and may not interfere with the designated postmining land use.
We note that the Montana program already contains, at MCA 82-4-
231(10)(j), an exact duplicate of the Federal requirement at SMCRA
515(b)(24), with both requiring that the operator, to the extent
possible using the best technology currently available, minimize
disturbances and adverse impacts of the operation on fish, wildlife,
and related environmental values and achieve enhancement of such
resources where practicable. Since the proposed new paragraph does not
address minimizing disturbance or adverse impacts, it must be read
together with the last part of the existing Montana and Federal
requirements; that is, read together with the requirement that
operators, where practicable, achieve enhancement of fish, wildlife,
and related environmental values to the extent possible using the best
technology currently available. If the proposed new provision would in
any way limit the existing requirement for ``enhancement where
practicable,'' then the proposed provision would conflict with the
existing Montana and SMCRA requirement.
In one way, the proposed provision is more stringent than the
existing Montana and Federal requirements: by stating that reclamation
plans ``must incorporate appropriate wildlife habitat enhancement
features,'' this provision effectively declares that enhancement of
habitat diversity is always ``practicable.'' At first reading, the
required enhancement appears to be limited to agricultural postmining
land uses. But other postmining land uses are referenced by the
proposed language ``or other uses,'' though this expanded application
would be clearer if the words ``and all'' were added: ``and all other
uses.'' Although the proposed new provision would provide for an
``emphasis'' on three specified ``wildlife types,'' this does not
exclude other wildlife types from the requirement; and a placement of
emphasis is within Montana's discretion. The SMCRA and existing Montana
requirement requires ``enhancement where practicable'' for all
postmining land uses; so we agree that inclusion of those features does
not necessarily turn other postmining land uses into the postmining
land use of fish and wildlife habitat.
The final clause of the proposed new paragraph prohibits
enhancement features from interfering with the postmining land use.
Read together with the requirement that reclamation plans ``must''
incorporate appropriate enhancement features, this clause in effect
requires that if a given type of enhancement feature (for example,
hedgerows) would interfere with a postmining land use (for example,
cropland), then other enhancement features must be employed (for
example, raptor perches or songbird nest boxes) that would be more
appropriate by interfering less. We find this to be consistent with the
existing SMCRA and
[[Page 8008]]
Montana provisions, which require enhancement where practicable.
Based on the above discussion, we approve proposed MCA 82-4-232(9).
C.14. MCA 82-4-233 Planting of revegetation [SMCRA 515(b)(19), 30
CFR 816/817.111].
a. Montana proposed to delete existing paragraph (1), providing
general revegetation requirements, and replace it with a new paragraph
(1) that almost exactly duplicates 30 CFR 816/817.111(a). These Federal
regulations directly implement, with increased detail, SMCRA
515(b)(19). Therefore, the proposed new paragraph, with the two
exceptions noted below, provides revegetation requirements equivalent
to SMCRA 515(b)(19) and 30 CFR 816/817.111(a).
The first exception is that Montana's proposal at proposed
paragraph (1) would not require operators to plant water areas, surface
areas of roads, ``and other constructed features.'' The Federal
requirements of SMCRA 515(b)(19), as implemented at 30 CFR 816/
817.111(a), provide only the first two exemptions. The third exemption
provided by Montana, ``and other constructed features,'' is undefined.
All of reclamation could be considered ``constructed,'' so this
exemption could broadly be construed to apply to the whole affected
area. We believe that Montana intended here that this exemption would
be applied to parking lots, material storage yards, etc., that are
limited in size and slope, and are stabilized against erosion by paving
or gravel. We are approving this language with the proviso that Montana
not apply it until (1) Montana promulgates rules to implement it, which
rules must provide for a clear definition of ``other constructed
features'' and provide for limits on size and slope and stabilization
against erosion, and other factors that may affect environmental
stability, and (2) those rules are approved by OSM.
The second exception is that Montana's proposal adds to new (1)(d)
(corresponding to 30 CFR 816/817.111(a)(4)) a limitation that the
revegetation need only be capable of stabilizing soil erosion to the
extent appropriate for the postmining land use. SMCRA 515(b)(19), by
requiring establishment of vegetation at least equal in extent of cover
to the natural vegetation of the area, might be interpreted as
requiring the revegetation to stabilize soil erosion to the level of
the premining conditions [see note included in Finding C.1. above about
the meaning of ``effective'' vegetation]. However, we note that the
phrase ``of the area'' need not refer to the specific parcel being
mined. This is particularly true when an alternative, ``higher or
better,'' land use is being established during reclamation. OSM's
interpretation of this situation, as indicated in the requirements for
success standards at 30 CFR 816.116(a)(2), is that revegetation success
standards must be representative of unmined lands under that proposed
postmining land use in the area. In this case, the erosion control
achieved by revegetation that meets the success standards will be
equivalent to the erosion protection of unmined lands being used for
the same purpose, within that general vicinity. For example, if an area
that premining was unmanaged grazing land is reclaimed, postmining, to
a ``higher or better'' land use of row crops, the required erosion
control will be that comparable to other (unmined) row crop fields in
the area, not the erosion control that is achieved by grazing land. The
possible increase in soil erosion would be one factor that the
regulatory authority would have to consider in deciding whether row
crops would in fact be a higher or better use than grazing in this
situation. We find Montana's proposal to be consistent with this
interpretation of SMCRA 515(b)(19) as expressed at 30 CFR
816.116(a)(2), and we approve it with this understanding.
For the reasons discussed above, we are approving MCA 82-4-233(1),
with the proviso that the exemption for ``and other constructed
features approved as part of the postmining land use'' not be applied
until Montana promulgates implementing rules to limit the exemption,
and those rules are approved by OSM.
b. We note that existing paragraph (1), proposed for deletion,
required the revegetative cover to be capable of (1) ``feeding and
withstanding grazing pressure from a quantity and mixture of wildlife
and livestock at least comparable to [premining conditions]''
(subparagraph (1)(a)); and (2) ``regenerating under the natural
conditions * * * including occasional drought, heavy snowfalls, and
strong winds.''
Neither SMCRA nor the Federal regulations contain these
requirements. Therefore, deletion of them is not inconsistent with
SMCRA or the Federal regulations. As noted above, the other general
revegetation requirements of existing paragraph (1) have been replaced
by the new paragraph (1). We therefore approve the deletion of existing
paragraph (1). We note, however, that the deleted language of existing
subparagraph (1)(a) [``feeding and withstanding grazing pressure from a
quantity and mixture of wildlife and livestock at least comparable to
[premining conditions''] was the language that up until this time had
been interpreted by Montana as requiring, as a postmining land use, a
combination of grazing and fish & wildlife habitat (unless a higher or
better use was approved). Therefore, upon the effective date of this
approval, Montana will no longer generally require the combination of
grazing and fish & wildlife habitat as a postmining land use. Instead,
Montana will be evaluating premining land use and land use capability
with proposed postmining land uses under the terms of new MCA 82-4-
232(7) and (8) (as newly codified) [equivalent to SMCRA 515(b)(2), 30
CFR 816/817.133], addressing land use capability [approved at Finding B
above].
c. Montana proposed to delete existing MCA 82-4-233(2), which
provided that the regulatory authority (``board'') must define by rule
the requirements for seed mixtures, quantities, and other planting
requirements. SMCRA has no such specific requirement. Therefore
deletion of this requirement is not inconsistent with SMCRA, and we
approve it.
d. Montana proposed to replace deleted existing paragraph (2) with
a new paragraph (2) that exactly duplicates 30 CFR 816/817.111(b). This
Federal regulation, in turn, provides additional detail to SMCRA
515(b)(19). Since the proposed new paragraph (2) is the same as the
Federal regulation, and in accordance with SMCRA, we approve it.
e. Montana proposed to add a new paragraph (3), which requires
revegetation to be appropriate for the postmining land use. This
proposed provision to some extent addresses general revegetation
success standards; but we note that Montana has provided additional
requirements for revegetation success standards at proposed MCA 82-4-
235 (to be addressed in a finding below). At subparagraph (3)(a),
revegetation appropriate for cropland provides exemptions from the
general revegetation requirements of: diverse, effective, permanent; at
least equal in cover to the natural vegetation; having the same
seasonal characteristics of growth as the natural vegetation; and being
capable of self-regeneration and plant succession. This same exemption
for cropland from the general requirements of SMCRA 515(b)(19) is
provided in the Federal regulations at 30 CFR 816/817.111(d).
At subparagraph (3)(b), revegetation appropriate for pastureland or
grazing land must have use for grazing by
[[Page 8009]]
domestic livestock at least comparable to premining conditions, and
enhanced when practicable. Again, we note that proposed success
standards will be addressed below. There is no exact Federal equivalent
to this proposal. It is consistent with the requirements of SMCRA
515(b)(19) that the revegetation be effective and at least equal in
extent of cover to the natural vegetation of the area. The postmining
land uses of grazing and pastureland imply land management practices
directed to livestock use, but this does not preclude wildlife use. We
believe it will usually be the case that if the postmining revegetation
provides for at least as much livestock use as the premining
vegetation, the same would hold true for grazing wildlife. We note that
the definition of ``grazing'' at MCA 82-4-203(22) (addressed above)
requires that the vegetation be indigenous, and hence would be
appropriate for wildlife.
At subparagraph (3)(c), revegetation appropriate for fish and
wildlife habitat, forestry, or recreation requires that trees and
shrubs must be planted to achieve appropriate stocking rates. Again, we
note that proposed success standards will be addressed below; as noted
below, the success standards for these land uses require ground cover
measures. There is no exact Federal equivalent to this proposal. It is
consistent with the requirements of SMCRA 515(b)(19) that the
revegetation be diverse and effective.
For the reasons discussed above, we approve proposed paragraph (3).
C.15. MCA 82-4-234 Commencement of Reclamation [SMCRA 515(b)(16)].
Montana proposed to delete the final sentence of this provision.
The sentence requires that Departmental approval is required before an
operator may redisturb any area already seeded for revegetation.
Neither SMCRA nor the Federal regulations contain such a requirement.
Therefore, deletion of this sentence is not inconsistent with SMCRA,
and we approve it.
C.16. MCA 82-4-235 Determination of Successful Revegetation [SMCRA
515(b)(19) & (20); 30 CFR 816.111, 816.116].
Introductory note: The nature of the material proposed for addition
here (for example, the proposed rule addresses ground cover, crop
production, stem density, and ``reestablished vegetation''), plus the
similarity to the Federal regulations at 30 CFR 816/817.116, suggests
that these proposed new requirements are meant, like 30 CFR 816/817.111
and 816/817.116, to set basic requirements for success standards to
measure when operators have met the requirement of MCA 82-4-233 to
establish a vegetative cover. We have evaluated these requirements with
this understanding. We further note that these basic requirements do
not satisfy the Federal requirements at 30 CFR 816/817.116(a)(1) that
the regulatory authority select detailed success standards (with
consultation with State agencies required in some cases and recommended
in all cases). This has actually already been accomplished by the
Department; see ARM 17.24.711 through 17.24.733.
Montana proposed to change the title of this provision from
``inspection of vegetation'' to ``determination of successful
revegetation,'' with (in both cases) a subtitle of ``final bond
release.'' Montana also proposed to add a new paragraph (1) as follows:
(1) Success of revegetation must be judged on the effectiveness
of the vegetation for the approved postmining land use, the extent
of cover compared to the cover occurring in the natural vegetation,
and the requirements of 82-4-233. Standards for success are:
(a) for areas reclaimed for use as cropland, crop production
must be at least equal to that achieved prior to mining based on
comparison with historical data, comparable reference areas, or
United States department of agriculture (sic) publications
applicable to the area of the operation, as referenced in rules
adopted by the board;
(b) for areas reclaimed for use as pastureland or grazing land,
the ground cover and production of living plants on the revegetated
area must be at least equal to that of a reference area or other
standard approved by the department as appropriate for the
postmining land use;
(c) for areas reclaimed for use as fish and wildlife habitat,
forestry, or recreation, success of revegetation must be determined
on the basis of approved tree density standards or shrub density
standards, or both, and vegetative ground cover required to achieve
the postmining land use;
(d) reestablished vegetation is diverse if multiple plant
species meeting the requirements of 82-4-233(1)(b) are present. The
department may approve a lesser diversity standard for postmining
land uses other than grazing land.
(e) reestablished vegetation is considered effective if the
postmining land use is achieved and erosion is controlled;
(f) reestablished vegetation is considered permanent if it is
diverse and effective at the end of the 10-year responsibility
period specified under subsection (2); and
(g) plant species comprising the reestablished vegetation are
considered to have the same seasonal characteristics of growth as
the original vegetation, to be capable of regeneration and plant
succession, and to be compatible with the plant and animal species
of the area if those plant species are native to the area, are
introduced species that have become naturalized, or are introduced
species approved by the department as desirable and necessary to
achieve the postmining land use.
a. In part, these proposed new requirements are derived from the
Federal regulations at 30 CFR 816/817.116; in particular, proposed
paragraph (1) duplicates 30 CFR 816/817.116(a). And subparagraphs
(1)(a) and (c) effectively duplicate 30 CFR 816/817.116(b)(2) and (3).
Subparagraph (1)(b) duplicates 30 CFR 816/817.116(b)(1), except for the
addition of the phrase ``appropriate for the postmining use.'' Since
proposed paragraph (1) requires success standards to reflect the extent
of cover compared to natural cover, and MCA 82-4-233(1)(c) [addressed
in a finding above] requires the established cover to be at least equal
to the natural cover, any standard approved by the Department as
``appropriate'' under this section would have to exceed this minimum
requirement. And, since subparagraphs MCA 82-4-235(1), (1)(a), (1)(b),
and (1)(c) effectively duplicate the Federal regulations, we approve
these subparagraphs.
b. Subparagraphs (1)(e) and (f) provide definitions of
``effective'' and ``permanent.'' Neither SMCRA nor the Federal
regulations define these terms. But these concepts were discussed in
preambles to Federal regulations, which themselves discuss House Report
No. 95-218 (see 47 FR 12597; March 23, 1982; and 48 FR 48141-48146;
September 2, 1983). According to these preambles:
Effective means * * * both the productivity of the planted
species concerning its utility to the intended postmining land use *
* * as well as its capability of stabilizing the soil surface with
respect to reducing siltation to normal background levels * * *
Permanent means that the plant community as a whole must be capable
of providing the necessary amount of ground cover over time through
plant succession, and not necessarily that every individual plant
species will propagate itself in identical numbers and rations
throughout the future.
Montana's proposed definitions here are consistent with these
preamble discussions. Proposed subparagraph (e) provides that
vegetation is effective if the postmining land use is achieved and
erosion is controlled; these are the same two factors considered in the
Federal preambles. And proposed subparagraph (f) provides that
vegetation is permanent if it is diverse and effective at the end of
the bond liability period. We note, though, that while this definition
of ``permanent'' may serve as a basis for determining criteria for bond
release, it provides little guidance applicable to approving
revegetation plans in permit applications. Since these definitions are
[[Page 8010]]
consistent with the Federal regulations, we approve subparagraphs
(1)(e) and (f).
c. Subparagraph (1)(d) defines ``diverse'' as ``multiple'' plant
species and provides for a ``lesser'' diversity standard for all
postmining land uses except grazing. We understand ``multiple'' as
being more than one. So, this provision could allow as few as two
species, and possibly one if approved by the Department for non-grazing
land.
Neither SMCRA nor the Federal regulations define ``diverse.'' But
pertinent discussion is found in the rule preambles cited above: ``
`Diverse' means sufficiently varied amounts and types of vegetation to
achieve ground cover and support the postmining land use. The precise
numbers required to achieve this diversity should be determined by
regional climate and soil conditions. However, the ultimate test will
be the sufficiency of the plant communities to assure survival of
adequate number and varieties to achieve the postmining land use and
the required extent of ground cover. Diversity does not necessarily
mean that every species or variety of premining grass, shrubs, or trees
be established in identical numbers and ratios after mining.'' See 47
FR 12597; March 23, 1982. We do not believe that this Federal
description for diversity, and the conclusion that the ultimate test is
related to the plant communities' ability to assure survival of
adequate numbers and varieties to achieve the postmining land use and
required extent of cover, is consistent with Montana's proposal, which
could result in as few as two species and possibly one in some cases.
In particular, the postmining land use of fish and wildlife habitat
will often require a fairly high diversity (i.e., sufficiently varied
amounts and types of vegetation) to fulfill the various food and cover
needs of various species of wildlife and other biota.
Based on the above discussion, we find proposed subparagraph (1)(d)
to be less effective than the Federal requirements, and we do not
approve it.
d. Subparagraph (1)(g) describes the criteria required to meet the
terms ``same seasonal characteristics of growth as the original
vegetation,'' ``capable of regeneration and plant succession,'' and
``to be compatible with the plant and animal species of the area.'' In
all three cases, the proposal states that these requirements are met if
the reestablished vegetation species meet one or more of three
criteria: (1) They are native to the area, (2) they are introduced
species that have been naturalized, or (3) they are introduced species
approved by the Department as both necessary and desirable for the
postmining land use.
The Federal regulations do not define the terms ``same seasonal
characteristics of growth as the original vegetation,'' ``capable of
regeneration and plant succession,'' and ``to be compatible with the
plant and animal species of the area''. But preamble discussion (see 47
FR 12597; March 23, 1982) clarifies that ``seasonality'' refers to the
major season of growth. Herbaceous species are generally grouped into
cool season species (which grow mostly in spring or fall, but are
largely dormant in mid-summer) and warm season species (which grow in
late spring and summer, but are dormant in early spring and fall);
woody species may be deciduous or evergreen. Species that are native to
the area would exhibit these characteristics. Introduced species could
be approved by the Department as ``desirable'' only if they exhibit
these characteristics. ``Naturalized species,'' in this context, are
introduced species that were not planted with Department approval;
however, they may have invaded the area after planting, or their seeds
may have been in the soil prior to mining. Since they have not been
planted with approval, it is unknown whether they match the seasonality
of the original vegetation. Based on this discussion, we approve this
definition of ``the same seasonal characteristics of growth as the
original vegetation,'' except for its inclusion of naturalized species.
Regarding capacity for regeneration and plant succession, species
that are native to the area would exhibit these characteristics.
Introduced species could be approved by the Department as ``desirable''
only if they exhibit these characteristics. Since naturalized species
would not have been planted with approval, it is unknown whether they
would have these characteristics. Based on this discussion, we approve
this definition of ``capable of regeneration and plant succession,''
except for its inclusion of naturalized species.
Regarding compatibility with local plants and animals, the native
species are co-adapted with plant and animal species of the area and
therefore have this characteristic. Introduced species could be
approved by the Department as ``desirable'' only if they exhibit this
characteristic. As OSM noted in the preamble to 30 CFR 816.111(b)(4),
``[a]ny species approved for use in reclamation must be compatible with
the plant and animal species of the area. Hence, 816.111(b)(4) is one
of the criteria that the regulatory authority will use in determining
whether to approve or disapprove any plant species proposed for
planting in disturbed areas'' (48 FR 40145; September 2, 1983).
Therefore, introduced species approved by the Department must,
consistent with 30 CFR 816.111(b), be compatible with other species of
the area. Since naturalized species would not have been planted with
approval, it is unknown whether they would have this characteristic.
Based on this discussion, we approve this definition of ``to be
compatible with the plant and animal species of the area,'' except for
its inclusion of naturalized species.
For the reasons discussed above, we approve subparagraph (1)(g)
except insofar as it includes ``introduced species that have become
naturalized.''
C.17. MCA 82-4-252(2) Mandamus [SMCRA 520].
Montana proposed to revise Paragraph (2) of this section to delete
the option for actions of mandamus to be brought in the first judicial
district of the State, thereby requiring that such actions be brought
in the district court of the county in which the land is located.
The Federal citizen suit provision at SMCRA 520 requires that
Federal district courts have jurisdiction for Federal citizen suit
actions. It does not specify jurisdiction for State actions. We find
that Montana's proposal is not inconsistent with this, and we approve
it.
D. Revisions to Montana's Statute With No Corresponding Federal
Regulation and/or Statute
D.1. MCA 82-4-202(1) Policy Intent.
Montana proposed to add a new paragraph (1), stating the
legislature's intent to fulfill its responsibility under the Montana
Constitution. There is no direct Federal counterpart.
We find that the adequacy of this legislation to meet the
obligations of the Montana Constitution is beyond the scope of our
review. We are empowered under SMCRA 503 and 505 only to evaluate
Montana's laws in comparison to SMCRA. Therefore, we take no action on
this proposed new paragraph.
D.2. MCA 82-4-202(3)(c)--(e) Policy Intent.
Montana proposed to add three new subparagraphs (c) through (e) to
renumbered paragraph (3), as follows:
(3)(c) coal mining alters the character of soils and overburden
materials and that duplication of premining topography, soils, and
vegetation composition is not practicable;
(d) the standard for successful reclamation of lands mined for
coal is the reestablishment of sustainable land use comparable to
premining conditions or to higher or better uses; and
(e) standards for successful reclamation must be well-defined,
consistent, and
[[Page 8011]]
attainable so that mine operators can reclaim lands disturbed by
mining with confidence that the release of performance bonds can be
achieved.''
There are no similar provisions in SMCRA. We agree with proposed
subparagraph (c) that surface mining alters soils and geology, and that
an exact duplication of premining conditions is not practicable. This
provision is not inconsistent with the intent of SMCRA. Therefore we
approve subparagraph (3)(c).
In regard to proposed (3)(d), we note that restoration of
sustainable land use is indeed one of the main requirements of SMCRA,
as noted at SMCRA 515(b)(2). But in SMCRA 101(c), Congress also
identified many other adverse effects of mining which SMCRA is intended
to prevent:
(c) many surface mining operations result in disturbances of
surface areas that burden and adversely affect commerce and the
public welfare by destroying or diminishing the utility of land for
commercial, industrial, residential, recreational, agricultural, and
forestry purposes, by causing erosion and landslides, by
contributing to floods, by polluting the water, by destroying fish
and wildlife habitats, by impairing natural beauty, by damaging the
property of citizens, by creating hazards dangerous to life and
property[,] by degrading the quality of life in local communities,
and by counteracting governmental programs and efforts to conserve
soil, water, and other natural resources.
Therefore, in addition to restoring or enhancing sustainable land
use, other standards for successful reclamation include highwall
elimination and restoration of AOC to, for example, prevent impairment
of natural beauty and eliminate hazards dangerous to life and property;
protection and enhancement of fish & wildlife habitat; control of
erosion and other pollution of surface waters and ground waters;
contemporaneous reclamation, etc. Thus the body of SMCRA itself, not
just the findings in section 101, contain postmining reclamation
requirements that are not necessarily limited to the postmining land
use, e.g., hydrologic balance protection outside the permit area and
fish and wildlife protection and enhancement even when fish and
wildlife habitat is not the postmining land use (see also 30 CFR
816.97(a), (h), and (i)). Also, we note that that section 519(c)(3) of
SMCRA specifies that no bond shall be fully released until ``all
reclamation requirements of this Act are fully met.''
Therefore we do not agree with Montana that restoration of
sustainable land use is ``the [one] standard'' for successful
reclamation of lands mined for coal. We additionally note a conflict
between proposed (d) and proposed (e): proposed (d) states that there
is one ``standard'' for successful reclamation, while proposed (e)
addresses plural ``standards for successful reclamation.'' For these
reasons, we find that this provision is inconsistent with the intent of
SMCRA, and we do not approve proposed subparagraph MCA 82-4-202(3)(d).
With regard to proposed subparagraph (3)(e), we agree that
standards for successful reclamation must be well-defined, because as
Montana notes, considerable legal and monetary liability is attached.
The term ``consistent'' can be used in several different ways. We
certainly agree that standards for successful reclamation should be
consistent in the administrative sense; that is, not arbitrarily
created or applied, and applied to all operators equally.
But we disagree that such standards should be, as proposed here,
``attainable.'' Standards for reclamation success must be based on
premining conditions. It is possible that mining and reclamation
technology are not capable of restoring the premining conditions of
some specific geographic areas; hence, reclamation success could not be
attained in those areas. If the standards for successful reclamation
were attainable everywhere, then surface mining operations under SMCRA
could be conducted everywhere. But on the contrary, SMCRA 102(c) states
as one purpose for the Act to ``assure that surface mining operations
are not conducted where reclamation as required by this Act is not
feasible.'' Similarly, SMCRA 510(b)(2) requires that before a permit
application is approved, the regulatory authority must find in writing
that ``the applicant has demonstrated that reclamation as required by
this Act and the [regulatory] program can be accomplished by the
reclamation plan contained in the permit application.'' If the
standards for successful reclamation under SMCRA were always
``attainable,'' these two SMCRA requirements would be rendered
pointless. We additionally note that this Montana provision, if
approved, could provide a basis for Montana's approval of standards
that are inconsistent with those required by SMCRA and the Federal
regulations.
Based on the above discussion, we approve proposed subparagraph MCA
82-4-202(3)(e), except for the words ``and attainable.'' We do not
approve the words ``and attainable.''
D.3. MCA 82-4-203(30) Definition of ``Material damage.''
Montana proposes to add a new definition, as follows:
(30) ``Material damage'' means, with respect to protection of
the hydrologic balance, degradation or reduction by coal mining and
reclamation operations of the quality or quantity of water outside
of the permit area in a manner or to an extent that land uses or
beneficial uses of water are adversely affected, water quality
standards are violated, or water rights are impacted. Violation of a
water quality standard, whether or not an existing water use is
affected, is material damage.
We note that there is no such definition in Montana's rules.
Neither is there a definition in SMCRA or in the Federal regulations.
Because of the great variation nationwide, and even permit-to-permit,
in geologic, hydrologic, climate, and weather systems, OSM has elected
not to establish any fixed criteria to measure material damage except
for compliance with water-quality standards and effluent limits (see 48
FR 43973; September 26, 1983). This proposal is consistent with that
position. We therefore find this proposal to be not inconsistent with
SMCRA, and we approve it.
D.4. MCA 82-4-203(47) Definition of ``Restore or restoration.''
Montana proposes to add a new definition, as follows:
(47) ``Restore'' or ``restoration'' means reestablishment after
mining and reclamation of the land use that existed prior to mining
or to higher or better uses.
We note that the introduction to the ``definitions'' section
provides: ``Definitions. Unless the context requires otherwise, in this
part, the following definitions apply:''. We note further that there is
no such definition in Montana's rules. Neither is there a definition in
SMCRA or in the Federal regulations.
We examined Montana's statute (MCA Title 82, Chapter 4, Part 2) to
determine where these defined words are used. We did not observe any
place where they are used in the sense defined here. We found several
places in which the context requires the usual interpretation of
``restore,'' meaning to return something to its original condition (MCA
82-4-202(2)(d), 82-4-231(10)(k)(i)(C)(iv), 82-4-239, 82-4-243(1)(a)).
Therefore we question the need to add this definition to the Montana
program. However, anyplace where ``restore'' or ``restoration'' are
used in the Montana statute as counterparts to SMCRA provisions, it is
clear from context to mean ``return to original condition.'' Therefore
we do not find this proposed definition to be inconsistent with SMCRA,
and we approve it.
[[Page 8012]]
D.5. MCA 82-4-203(50) Definition of ``Surface owner.''
Montana proposed to revise this existing definition by deleting the
phrase ``and whose principal place of residence is on the land'' from
the defined category of persons holding legal or equitable title to the
land surface. Therefore, Montana has revised this category to make it
more inclusive, so that the Montana program will protect the interests
of more people. Montana also proposed to add a new subparagraph (d) to
provide that ``surface owner'' means the Federal land management agency
when the United States government owns the surface. We agree that this
is accurate, and will simplify permit applications for operators; it is
also consistent with the permit application requirements and land use
requirements of the Federal regulations. Therefore we find this
proposal to be not inconsistent with SMCRA, and we approve it.
D.6. MCA 82-4-203(55) Definition of ``Wildlife habitat enhancement
feature.''
Montana proposed to add a new definition, as follows:
``Wildlife habitat enhancement feature'' means a component of
the reclaimed landscape, established in conjunction with land uses
other than fish and wildlife habitat, for the benefit of wildlife
species, including but not limited to tree and shrub plantings, food
plots, wetland areas, water sources, rock outcrops, microtopography,
or raptor perches.
We examined Montana's statute (MCA Title 82, Chapter 4, Part 2) to
determine where this phrase is used. We found it only at the related
performance standard at MCA 82-4-232(9), where it seems it would be
clear from context. Therefore we question the need to add this
definition to the Montana program. However, we do not find it to be in
conflict with SMCRA 515(b)(24) or 30 CFR 816.97, both dealing with the
protection of fish, wildlife, and related environmental values.
Therefore we find it to be not inconsistent with SMCRA, and we approve
it.
D.7. MCA 82-4-232(10) Pre-existing Facilities & Roads [SMCRA
522(e)(4)].
Montana proposed to add a new paragraph, MCA 82-4-232(10), to
provide that ``facilities existing prior to mining, including but not
limited to public roads, utility lines, railroads, or pipelines, may be
replaced as part of the reclamation plan.''
Of these facilities, only public roads are addressed by SMCRA (at
522(e)(4)), which provides that public roads may be disturbed by mining
operations (other than at mine road intersections with public roads)
only after a public hearing and finding that the interests of the
public and the landowners will be protected. Montana's proposal is not
inconsistent with this Federal requirement. Indeed, Montana has a
duplicate of the SMCRA 522(e)(4) requirement, at MCA 82-4-227(7)(d).
The other types of premining facilities here would be addressed as
right-of-entry questions under SMCRA 507(b)(1) and 510(b)(6). We find
that Montana's proposal is not inconsistent with these requirements,
and we approve the proposal.
D.8. HB 373 Section 11 [not yet codified as submitted], Revision of
Permits or Applications to Incorporate These Statutory Provisions
[SMCRA 511].
This proposed section would allow any existing permits, or
applications for permits or permit revisions, to be revised to
incorporate provisions of House Bill 373 (which includes most of the
revisions proposed in this submittal). SMCRA does not address the
revision of permits to incorporate newly approved regulatory
provisions. But neither does it prohibit this; it appears that such
revisions would be addressed as any other revisions under SMCRA 511.
Montana's rules at ARM 17.24.404(1) address the effects of revisions
upon applications already in the review process. We find that this
proposal is not inconsistent with SMCRA, and we approve it.
D.9. MCA 82-4-239(3) through (5), Reclamation by Department.
One substantive and several minor revisions were proposed for this
section, which was included in this submittal (SATS MT-024-FOR;
Administrative Record No. MT-21-1), and was included in the proposed
rule Federal Register notice for this amendment (68 FR 61175; October
27, 2003). However, upon closer review of this statutory section, we
find that it is not applicable to Montana's regulatory program under
SMCRA Title V, but rather to Montana's Abandoned Mined Land (AML)
program under SMCRA Title IV. Therefore we are taking no action on the
proposed amendments to this statutory section. We will consider them in
connection with a future proposed amendment to the Montana AML program.
D.10. MCA 82-4-250 Operating permit revocation--permit transfer.
Montana proposes to delete from this statutory section a clause
that the section would terminate on October 1, 2005. With the proposed
deletion, MCA 82-4-250 would not terminate, but would remain part of
the Montana program until removed by legislation.
OSM approved MCA 82-4-250 (including the termination clause) as
being no less stringent than SMCRA (see 66 FR 58375; November 21, 2001;
SATS MT-022-FOR). Since MCA 82-4-250 was consistent with SMCRA at that
time, it remains consistent until or unless SMCRA is changed. Therefore
we find that deletion of the termination clause does not affect the
findings made by OSM in approving the entire MCA-82-4-250, and we
approve the deletion.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. MT-21-06), and received three comment letters.
a. We received a letter from Westmoreland Mining LLC (``WML''),
which operates three mines in Montana (Administrative Record No. MT-21-
09). WML commented that one provision in the Montana statute had
remained unchanged since 1973 (thus predating SMCRA by several years).
That provision required that mined land be reclaimed to a postmining
land use of native rangeland and wildlife habitat (with any exceptions
requiring a cumbersome review process). WML further stated that this
statutory provision has increasingly been applied as a requirement to
restore ecological function. The result, WML states, is that
reclamation success has been impossible to define, hence subject to
shifting and varying interpretation by individual staff members, and a
lack of objective evaluation of reclamation success for release of bond
(and therefore, there have been very few final bond releases).
WML goes on to state that this proposed program amendment has been
developed through a cooperative effort by the Montana Coal Council, the
Department, and OSM. The proposed amendment ``is a clear statement of
legislative intent that the `standard for successful reclamation of
lands mined for coal is the reestablishment of sustainable land use
comparable with premining conditions or higher or better uses.' '' WML
comments that approval by OSM will enable Montana to proceed with bond
releases based on standards that are objective, attainable, and
consistent with OSM requirements. WML urges timely approval of the
proposed amendment.
In response, we note that we have approved the proposed deletion of
existing MCA 82-4-233(1)(a), which was the provision interpreted as
requiring a postmining land use of grazing and fish & wildlife habitat.
Further, we are approving proposed new MCA 82-4-232(7) and (8), which
[[Page 8013]]
require restoration of the land to a condition capable of supporting
the premining uses, or higher or better uses. See Findings B. and
C.14.b.
Regarding the statements of legislative intent at proposed MCA 82-
4-202(3)(d) and (e), as discussed in more detail above, we disagree
with the Montana legislature that the reestablishment of a sustainable
land use is the only standard for reclamation success. We note that for
final bond release, SMCRA 519(c)(3) requires that ``all reclamation
requirements of this Act are met.'' This includes such requirements as
elimination of highwalls and restoration of AOC, protection of the
hydrologic balance, and protection and enhancement of fish & wildlife
habitat and related environmental values. See Finding D.2. above. We
also note that SMCRA provides other protections that are applicable
earlier in the operation, but not at final bond release, such as
contemporaneous reclamation, control of blasting, and protection of
surface owner rights. Violations of these requirements delay, hinder,
or reduce the success of mine reclamation.
We also disagree with the Montana legislature that whatever
standards might be applied to measure reclamation success must be
across-the-board ``attainable.'' As noted in Finding D.2. above, mining
and reclamation technology (or the economic aspects of the operation)
may not be able to adequately restore premining conditions (as required
by SMCRA) in all situations. In those situations, the standards for
success would not be attainable with current technology and/or current
investment and coal prices.
b. We received a letter from the Montana Coal Council (``MCC''),
which represents the coal industry before the Montana legislature
(Administrative Record No. MT-21-08). MCC commented that the Montana
program statute had allowed reclamation standards to be set
subjectively, and that in application they had changed over time,
providing a ``moving target.'' MCC believes that this proposed
amendment will allow the coal mining industry to return the land to its
premining condition, and allow input from the entity who will own and
use the land in the future. MCC urges approval of the proposed
amendment.
In response, we note that we cannot comment here on how statutory
or regulatory requirements are applied. The application of requirements
to specific cases, including what standards are applicable to which
parts of which mines over time, is subject to administrative and
judicial review as part of the Montana program, and possibly under
other parts of Montana law as well. In its regular oversight of State
regulatory programs, OSM reviews the implementation of regulatory
programs; OSM seeks input from the public (including the industry) in
determining what parts of program implementation to review. Here we can
comment only on the establishment of the statutory and regulatory
requirements. We note that when we initially approved the Montana
program under SMCRA in 1980, OSM determined that the Montana program
met SMCRA requirements. And in this action, we are also determining
whether the proposed amendment is in accordance with SMCRA.
We interpret the comment about obtaining input from the future land
possessor and user as applying to proposed MCA 82-4-232(8)(b). We note
that this is a valuable addition to the program, and we commend the
industry and the legislature for this service to Montana's citizens.
c. Finally, we received a lengthy and complex comment letter from
the Northern Plains Resource Council (``NPRC'') (Administrative Record
No. MT-21-07), which describes itself on its Web site as follows:
``Northern Plains Resource Council organizes Montana citizens to
protect our water quality, family farms and ranches, and unique
quality of life. We are a grassroots conservation and family
agriculture group that gets the job done--protecting the Northern
Plains and the people who make their home here.''
The letter included some general comments and many section-by-
section comments.
In general comments, NPRC noted that this proposal marks a shift in
the Montana program, from the required postmining land use of
combination grazing/wildlife (with limited alternatives) to a focus on
process, where any operator going through the process can get bond
release. NPRC sees this in the new legislative intent at proposed MCA
82-4-202(2)(c)-(e). NPRC also comments that the Montana legislature has
said it is not practicable to reclaim. NPRC noted that other Western
states find it practicable to reclaim using native grasses, forbs,
shrubs, and trees to attain a climax vegetation; this goal is sought
because if native species can grow as well postmining as they did
premining, then there is a stable, self-regenerating landscape that can
be used in the future for any use that was foreseeable prior to mining
(implying that under the proposed amendment, some of those potential
future land uses would be lost). Further, NPRC comments that the broad
array of now-available postmining land uses are ``pie-in-the-sky,'' and
are poorly delineated.
In response, we agree that Montana in this proposal would eliminate
the grazing/wildlife preference. But it is being replaced with the
SMCRA system of comparing premining and proposed postmining land uses
(which is the system that the other Western states, referred to
positively by NPRC, are using). Regarding alternative postmining land
uses, we note that under the proposal any postmining uses different
from the premining use must: have a likelihood to be achieved; not
present any hazard to public health or safety or any threat of water
diminution or pollution; not be impractical or unreasonable; be
consistent with applicable land use policies or plans; not involve
unreasonable delay in implementation; and not cause or contribute to
violation of federal, state, or local law. See proposed MCA 82-4-232(8)
and Finding B above. SMCRA relies in part on public comment on permit
applications including land use changes. We also note that under the
proposal (see proposed MCA 82-4-203 (20) and (28)), ``fish and wildlife
habitat'' can include land only partially managed for protection or
management of wildlife species. Hence, unless premining grazing land or
pastureland are managed to exclude wildlife, wildlife habitat is
probably a joint use, and must be considered in postmining planting
plans and revegetation success standards.
Regarding native species, we note that under this proposal (see
proposed MCA 82-4-233(1)(b)), just as under SMCRA 515(b)(19),
introduced species may be used only when desirable and necessary.
With regard to NPRC's comment on legislative intent and proposed
MCA 82-4-202(2)(c)-(e), including whether it is practicable to reclaim,
we note that we agree in part with Montana and in part with NPRC. We
agree with Montana that surface mining operations are a radical
disruption of the physical environment (soils, geology, premining
vegetation) that cannot be totally undone; postmining overburden is not
undisturbed geologic strata, reconstructed soils are not undisturbed
soils, and exact replacement of the premining vegetation community is
not possible). But as noted at Finding D.2. above, SMCRA requires, in
addition to restoring or enhancing land productivity, other standards
for successful reclamation, including highwall elimination and
restoration of AOC, protection and enhancement of fish & wildlife
habitat, control of erosion
[[Page 8014]]
and other pollution of surface waters and ground waters,
contemporaneous reclamation, and others. These provisions require
amelioration of the environmental disruption. But as we noted above, we
also agree with NPRC that standards for determining reclamation success
are not always attainable, and even where attainable they are not
always attained; bond release is not automatic.
As a further general comment, the NPRC letter closed with a summary
that this proposal is less protective than the Federal requirements,
especially regarding AOC, alternate land uses, protection of the
hydrologic balance, and not requiring native species. Further, NPRC
thinks that the legislature was unduly influenced by a few mines,
without much thought to how these amendments would change the larger
environment of eastern Montana as more areas are mined. We reply that
SMCRA counts on citizen review and awareness to ensure that the
regulatory programs are properly implemented. We also note that OSM
counts on input from the public in choosing which areas to review in
our regular oversight of State programs; we encourage NPRC to
participate in this process. We thank NPRC for its efforts in reviewing
this submittal.
Specific NPRC comments: regarding the proposed definition of AOC
(proposed MCA 82-4-203(4)), NPRC commented that subparagraph (4)(a) is
too broad, and would allow rolling or hilly terrain to be flattened.
Also, NPRC comments that under the proposed definition a hill might be
moved 500 feet from its premining location, and questions whether that
500 foot shift should have been approved in the reclamation plan,
rather than happening without planning during the last stage of
backfilling and grading.
In response, we disagree that this proposal, like the guidance
provided by OSM in Directive INE-26, would allow hilly or rolling
terrain to be reclaimed as virtually flat. But we do agree that under
both this proposal and OSM's Directive, a hill might be restored in the
postmining landscape 500 feet from its premining location. However, we
note that under both this proposed amendment (at proposed MCA 82-4-
222(1)(o)) and under OSM's Directive, the proposed postmining location
(500 feet removed from the premining location) would have to be
proposed in the permit application, and approved before mining begins.
An operator that actually reconstructed the hill (during backfilling
and grading) shifted 500 feet from the location approved in the permit
would be in violation of the permit and could not obtain Phase I bond
release.
NPRC further comments on proposed subparagraph (4)(c) (addressing
postmining drainage basins), noting that the discretion provided is too
broad, and is coupled with a gradual erosion of State supervision over
several years (under the old definition) of the location and design of
ephemeral streams, with the result that the actual locations are
decided by the equipment operators. In response, as noted above, we
cannot here address field practice, only the statutes and rules. As
noted immediately above, we observe that proposed drainage basins (like
hills) must be shown in permit applications, as part of the postmining
topography. Actual field construction by the equipment operator might
vary a little bit, but not significantly, from the approved postmining
topography. If such field construction does significantly vary from
that approved in the permit, this would be a violation of the permit,
and the operator could not obtain Phase I bond release.
NPRC further comments in regard to proposed subparagraph (4)(c)
that this proposed provision is one instance of a subject that occurs
throughout the entire proposed amendment. Here it is expressed in the
control of adverse effects being required only to the extent
appropriate to the postmining land use. NPRC comments that SMCRA
515(b)(10)(B)(i) requires erosion control using best available
technology. Further, the proposed amendment (unlike SMCRA) ties
protection of the hydrologic balance to the postmining land use. NPRC
comments that in that case, if the postmining land use is industrial,
little or no protection might be applied to the hydrologic balance.
Further, NPRC notes, under such logic there would be many different
standards for protecting the hydrologic balance, depending on the
postmining land use. NPRC comments that the concept of `` `hydrologic
balance * * * protected as necessary to support post mining land uses'
'' is inconsistent with SMCRA, and does not belong either in this
definition or elsewhere in the Montana program.
In response, we note that we largely agree with NPRC on these
comments. We agree that limiting resource protection to that needed for
the postmining land use is a recurrent theme throughout this submittal,
and we have attempted to address it in each case. We also noted that
Montana has at several points drafted proposed definitions to impose
performance standards (or limitations of performance standards). We
believe that we addressed these instances in the Findings above, and
will do so again where applicable in response to these comments.
Finally, we agree that the proposal, in limiting hydrologic balance
protection to the postmining land use, is not in accordance with SMCRA.
As noted at Finding C.1.d. above, we have not approved this language.
However, we disagree that limiting erosion control to that needed for
the postmining land use would be inconsistent with SMCRA
515(b)(10)(B)(i). Erosion control using best available technology is
required in all cases, regardless of any particular proposed postmining
topography. See MCA 82-4-231(10)(k)(ii)(A).
NPRC comments that the proposed definition at MCA 82-4-203(17) of
``drainageway'' sounds very industrial, and that the Federal term
``ephemeral stream'' is more accurate. In response, we note that
Montana is applying the proposed definition not just to the premining
condition (where ``stream'' would indeed be more appropriate) but also
to postmining constructed features. We did not find that it was defined
or used in a way inconsistent with SMCRA; indeed, we only found it used
in the definition of ``approximate original contour.''
NPRC comments that the proposed definition at MCA 82-4-203(24) of
``hydrologic balance'' is another instance of limiting the resource to
be protected according to postmining land uses. We agree with this
comment. As noted at Finding C.2. above, we find that this definition
imposes a limit on the resource to be protected that is not in
accordance with SMCRA; we did not approve this language.
At proposed MCA 82-4-203(22) (the proposed definition of ``grazing
land''), NPRC questioned whether the term ``indigenous'' was in
accordance with SMCRA, noting that the term can mean ``native,'' but
may also have broader meanings. We respond that ``indigenous'' is also
used in the Federal definition of ``grazing land'' (at 30 CFR 701.5).
Thus Montana's proposed definition is consistent with the Federal
definition. It must be kept in mind, though (as noted above), that both
SMCRA and the Montana program require native species unless the land
use cannot be achieved with them.
NPRC commented on the proposed definition of ``reclamation'' at MCA
82-4-203(42). NPRC commented that ``here we see reclamation reduced to
a process without a restoration goal. The goal of reclamation in the
federal regs is to ``restore'' mined land to a postmining land use
approved by [those regs].'' We note that the only change proposed here
was to add that the work is under a plan approved by the Department
``to make
[[Page 8015]]
those lands capable of supporting the uses those lands were capable of
supporting prior to any mining or to higher or better uses.'' So we
understand NPRC to be saying that by adding the clause stating that the
goal is land capability, Montana has removed the restoration goal; and
that goal in the Federal regulations is to actually achieve a
postmining land use rather than merely the capability. We note that the
Federal definition of ``reclamation'' at 30 CFR 701.5 is not used
within the Federal program to determine the applicability of any
requirement or define the success of reclamation. Both SMCRA 515(b)(2)
and 30 CFR 816/817.133(a) require that mined land be restored to a
condition capable of supporting the premining land use or of supporting
higher or better land uses than the premining use. Generally, that
capability is indicated by land stability, hydrologic balance
protection, erosion control, revegetation success, wildlife protection
and enhancement, etc. Despite OSM's regulatory definition of
``reclamation,'' OSM and the courts have held that the operator's
responsibility is to restore the land's capability for the postmining
land use, not to actually implement that postmining land use (with the
exception of prime farmland and cropland). See 48 FR 39897; September
1, 1983. Thus, Montana's proposal is consistent with SMCRA and the
Federal regulations.
NPRC commented that the proposed new definition of ``restore or
restoration'' (MCA 82-4-203(47)) has been narrowed from SMCRA
515(b)(2), which includes ``capability'' for various uses; and that
``capability'' for various uses should be discussed in the permitting
process. We note, as discussed in Finding D.4. above, that we do not
see a need for this definition. We also note that this definition is
essentially the same as the Federal definition of ``reclamation'' at 30
CFR 701.5, commented upon directly above. We further note that the
Montana program requires discussion of land capabilities during the
permitting process, at ARM 17.24.304(12); this requirement is not
dependent upon this statutory definition of ``restoration.''
NPRC commented on the proposed shortening of time to review permit
revisions, at MCA 82-4-221(3); NPRC has reservations that there will be
enough staff, or funding for staff, to make the shorter time work. As
noted in Finding C.3. above, SMCRA does not require a specific time
allowance. We note that the unaltered portion of this Montana provision
provides that the Department may not approve a revision application
unless it finds that reclamation in accordance with the Montana program
would be accomplished. The proposed amendment does not require that
revision applications be automatically approved at the end of the time
allowance.
NPRC commented on the requirements for the determination of
Probable Hydrologic Consequences (PHC) at MCA 82-4-222(1)(m)(iii),
noting that the term ``beneficial uses'' is employed whereas the
Federal regulations at 30 CFR 780.21(f)(3)(iii) employ the term
``legitimate uses.'' NPRC is concerned that this language again
indicates a shift from looking at the resource to looking at the
postmining use. We believe that Montana has chosen the term
``beneficial use'' because that term is used elsewhere in Montana law;
for example:
MCA 85-1-101. Policy considerations. It is hereby declared as
follows:
(1) The general welfare of the people of Montana, in view of the
state's population growth and expanding economy, requires that water
resources of the state be put to optimum beneficial use and not
wasted.
(2) The public policy of the state is to promote the
conservation, development, and beneficial use of the state's water
resources to secure maximum economic and social prosperity for its
citizens.
Some other states use the term ``legitimate use'' for the same
purpose. We believe that State water authorities, and State regulatory
authorities under SMCRA, would protect premining water uses and
potential postmining water uses (beyond merely the use for the
designated postmining land use) under either term, ``legitimate use''
or ``beneficial use.'' NPRC also commented that this new set of
requirements for the PHC does not include a counterpart for the Federal
provision at 30 CFR 780.21(e), which requires information on
alternative water sources (if the PHC indicates that water diminution
or contamination may occur). We respond that this proposal is a non-
exclusive list; the existing statute also does not provide for a
counterpart to the cited Federal provision. However, the requirement
still exists in Montana's regulations, at ARM 17.24.314(4).
NPRC made a similar comment about the term ``beneficial use'' at
MCA 82-4-222(1)(m)(iv)(E). Our response above applies here; we also
note that the corresponding Federal provision at 30 CFR
780.21(f)(3)(iv)(E) allows, but does not require, regulatory
authorities to require information on additional impacts.
NPRC has the same concern about the hydrologic monitoring plan at
subparagraph (1)(n), that it is limited to protecting water use for the
designated postmining land use, not protecting the hydrologic balance
in general. We note that Montana's wording is equivalent to that used
in 30 CFR 780.21(i) and (j).
NPRC commented relevant to proposed MCA 82-4-222 and 82-4-231 that
there does not seem to be a requirement for inclusion in the permit
application for consultation with the landowner about the postmining
land use (other than seeing a newspaper notice, finding and reviewing
the permit application, and filing comments as any member of the public
can do). We would agree with NPRC that the newspaper notice process
does not meet Federal requirements. And we also do not find in the
existing Montana program a general requirement for landowner comments
on the proposed postmining land use. However, we note that up until
this time, when Montana is proposing to delete existing MCA 82-4-231(1)
and 82-3-232(7) and (8), the required postmining land use for all mined
lands has been ``grazing land for livestock and wildlife, fish and
wildlife habitat, or both'' (ARM 17.24.762). Apparently because the
postmining choices were so limited, Montana and OSM decided that
landowner comment was not necessary. Any alternate postmining land use
had to be approved as ``alternate reclamation.'' ARM 17.24.824(4)
requires consultation with the landowner or land management agency for
such alternate uses. We note that under this proposed amendment, at
proposed new MCA 82-4-232(7) and (8), if an alternate postmining land
use is proposed, landowner (or agency) concurrence is required. We note
that Montana will have to promulgate new rules to implement these new
statutory sections; OSM will ensure that the implementing rules contain
counterparts to 30 CFR 780.23(b)/784.15(b).
NPRC commented on proposed MCA 82-4-231(10)(k), noting that
hydrologic balance protection was being limited to protecting
postmining land uses. We agree; as noted in Finding C.6. above, we are
not approving the language proposed for addition in the introductory
subparagraph. NPRC further commented on proposed subparagraph
(10)(k)(vii), saying that there is problem with definitions of
intermittent stream and perennial stream. We wonder if NPRC was
commenting on an earlier version of the legislation; in the official
administrative record document provided to OSM, ``intermittent stream''
and ``perennial stream'' are defined, and there are not definitions of
``drainageways'' other
[[Page 8016]]
than ephemeral drainageways. We also note that Montana has long had
regulatory definitions of ``intermittent stream'' and ``perennial
stream'' at ARM 17.24.301. NPRC commented further on proposed
subparagraph (10)(k)(viii), saying that again, protection of the
hydrologic balance is being limited to that needed by the postmining
land use. We agree; as discussed in Finding C.7. above, we are not
approving the proposed additional language in this subparagraph.
NPRC commented on proposed MCA 82-4-232(1), noting that (1)(a)(i)
is much too broad; total discretion would be given to the equipment
operator or his boss. Also, the Federal regulations (30 CFR 816.102)
allow for only specific variances from AOC under specific conditions,
and those Federal limitations are not contained in the proposal. We
might agree regarding 30 CFR 816.102; however, OSM's Directive INE-26,
as cited in Finding C.9. above, instructs us to allow this much
flexibility. Since the concept of AOC is this flexible, Montana's
proposal need not be considered a variance from AOC. Additionally, we
note that this provision states that ``the operator may propose and the
Department may approve * * *'' such topography. We interpret this to
mean postmining topography proposed and approved in the permit
application or a revision application. Hence, these matters could not
be determined by an equipment operator. NPRC gave a further comment on
proposed (1)(a)(ii); however, the comment is confusing because it seems
to address an AOC variance for higher or better land uses in steep
slope mining, but the cited provision (``MCA 82-4-232(1)(a)(ii)'') is
only a general performance standard for backfilling and grading. Again,
we wonder if NPRC was reviewing an earlier version of the legislation.
NPRC had three comments on proposed new MCA 82-4-232(8). First,
NPRC noted that this section would be better located in the permit
application section, expressing concern that the landowner might not
want this, and that the operator might propose this at the last moment
before bond release. In response, we note that the corresponding SMCRA
provision (515(b)(2)) is also in the performance standard section.
However, we agree with NPRC that the land use must be approved in the
permit application, or possibly changed in a subsequent permit
revision. [Relevant here and to the last response, we note that permit
revisions that change the postmining land use or postmining drainage
pattern are considered ``major revisions'' that must receive public
notice under ARM 17.24.301 and 17.24.409.]
Second, NPRC suggested that the expanded definition of
``landowner'' be moved to the definitions section. We note that
localizing the expanded definition here provides the additional persons
concurrence rights for alternative postmining land uses, but might not
provide them with other rights (for example, bond release
notifications). We also respond that SMCRA and the Federal regulations
recognize the legal and equitable owners of record of the surface, the
holders of record of any leasehold interest, and purchasers of record
under a real estate contract (see 30 CFR 778.13(a)). These same parties
are listed in the Montana program at ARM 17.24.303(3). To the extent
that the parties added here (``a person who has sold the surface estate
to the operator with an option to repurchase the surface estate after
mining and reclamation are complete'') are included under those
parties, they receive SMCRA rights and protections; to the extent that
these ``option holders'' are not included in the Federal regulations,
this proposal is a right and protection that goes beyond SMCRA
minimums, and we cannot require Montana to apply the expanded
definition to other parts of the program.
Third, NPRC stated that these standards are less stringent than
those at SMCRA ``515(3)(B)(i) through (vii) [sic].'' We reply that the
provisions proposed here are near duplicates of SMCRA 515(b)(2) and 30
CFR 816/817.133. The SMCRA provisions cited by NPRC are apparently
those of SMCRA 515(c)(3)(B)(i)-(vii), and refer to the requirements for
alternative postmining land uses to be approved with AOC variances for
mountaintop removal operations; therefore they are not applicable here.
NPRC comments on proposed MCA 82-4-232(9) that there is a concern
that this section is an attempt to evade the need to plant forbs,
trees, and shrubs, and asks if this meets the standards for protecting
threatened and endangered species. We reply that this provision
requires the reclamation plan to incorporate enhancement features;
these are defined in the proposal at MCA 82-4-203(55) as including tree
and shrub plantings, etc. So we do not agree that incorporating such
enhancements might lead to grass monocultures. We further reply that
this proposal, like SMCRA itself, does not specifically address the
required protections for threatened and endangered species; in both
cases, these requirements are in the regulations (for Montana, at ARM
17.24.312 and 17.24.751). NPRC further asks whether under this
proposal, land that premining had dual uses, could one prior use be
dropped postmining? We assume that NPRC is addressing the usual Montana
situation where premining use is both grazing and wildlife habitat. We
reply that under both the definition and under this section, it is
clear that wildlife habitat enhancement features do not make up a
postmining use of wildlife habitat, and that enhancements are different
than habitat land use and are applied to other land uses. In the
premining grazing/wildlife scenario, postmining the land use would also
have to be either: (1) A dual use (all of the area could be reclaimed
to the dual use, or part could be reclaimed to wildlife and the other
part to grazing, which would have to have enhancements); or (2) a
higher or better use, which probably would also require wildlife
enhancement features.
NPRC also commented on proposed MCA 82-4-233, expressing concern
that in promulgating implementing rules, Montana will allow the use of
naturalized introduced species as a substitute for native species. We
reply, as noted in a response to a comment above, that under the
language in this proposal, introduced species are allowed only when
``desirable and necessary'' to achieve the postmining land use. NPRC
further comments that this proposal only requires control of erosion to
the extent required by the postmining land use. We agree; as discussed
in Finding C.14.a. above, OSM's regulations pertaining to revegetation
success standards at 30 CFR 816.116 require the postmining revegetation
to be equivalent not to the premining vegetation, but rather equivalent
to the natural vegetation of unmined lands of that same land use in the
vicinity of the mine. In essence, the ``reducing siltation to normal
background levels'' mentioned in Federal regulation preambles (cited at
Finding C.16.b.), means normal background levels for that postmining
land use, not background levels of that particular parcel as it was
prior to mining. Therefore we are approving the proposal. NPRC further
commented on the encouragement at proposed subparagraph (3)(b) that
carrying capacity of pastureland and grazing land be ``enhanced when
practicable.'' NPRC is concerned that this might re-initiate failed old
efforts using introduced species, fertilizer, and irrigation. We note
that the use of introduced species, irrigation, and fertilizer is what
distinguishes pastureland from grazing land; they would be appropriate
for the
[[Page 8017]]
first, but we agree they may not be used for the second (grazing land).
NPRC commented on proposed MCA 82-4-235, inquiring how certain
success standards fit in with the 10-year bond release period, and how
suitable plants and erosion control are determined. We reply that SMCRA
also has no such detail; compare SMCRA 515(b)(19) and (20). Such detail
is usually in the regulations. Many of these questions are addressed in
the Montana regulations at ARM 17.24.711-17.24.733. Generally, the 10-
year period (and we note that this is a minimum, not a maximum) starts
when the operator completes planting and any supplemental watering or
fertilizer needed to get the revegetation going well. If there is a
subsequent failure or decline of the revegetation, and the operator
must repeat some of that work, the time clock starts over again. There
are some exceptions for replanting trees and shrubs; also for some
cultivation work on pastureland, which is normal husbandry practice for
that land use. NPRC further expressed a concern that the land uses
described in subparagraph (1)(c) [wildlife habitat, forestry, dispersed
recreation, using trees and shrubs] will never be used as postmining
land uses, even if those uses existed premining. We reply that under
this proposal, mined land must be restored to conditions capable of
supporting those premining land uses, meaning those land uses would
have to be selected as postmining land uses, unless a ``higher or
better'' use can be approved.
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-21-03). We received no comments.
Environmental Protection Agency (EPA) Concurrence and Comments
None of the revisions that Montana proposed to make in this
amendment pertains 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-21-04). 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. We requested comments on Montana's amendment
(Administrative Record No. MT-21-03). SHPO responded that it had no
comments (Administrative Record No. MT-21-05). No response was received
from the ACHP.
V. OSM's Decision
Based on the above findings, we approve, with the following
exceptions, Montana's July 29, 2003, amendment.
We do not approve the following provisions or parts of provisions.
1. As discussed in Finding No. D.2., we do not approve MCA 82-4-
202(3)(d), concerning legislative policy on the standard for successful
reclamation.
2. As discussed in Finding No. D.2., MCA 82-4-202(3)(e), concerning
legislative policy on standards for successful reclamation, we do not
approve the words ``and attainable.''
3. As discussed in Finding No. C.1., MCA 82-4-203(4)(c), concerning
the definition of approximate original contour, we do not approve the
phrase ``as necessary to support postmining land uses within the area
affected and the adjacent area'' in the clause regarding hydrologic
balance protection.
4. As discussed in Finding No. C.2., MCA 82-4-203(24), concerning
the definition of hydrologic balance, we do not approve the final
phrase ``as they relate to uses of land and water within the area
affected by mining and the adjacent area.''
5. As discussed in Finding No. C.6., MCA 82-4-231(10)(k),
concerning protection of the hydrologic balance, we do not approve the
added phrase ``as necessary to support postmining land uses and to
prevent material damage to the hydrologic balance in the adjacent
area.''
6. As discussed in Finding No. C.7., MCA 82-4-231(10)(k)(viii),
concerning protection of the hydrologic balance, we do not approve the
added phrase ``to protect the hydrologic balance as necessary to
support postmining land uses within the area affected and to prevent
material damage to the hydrologic balance in adjacent areas.''
7. As discussed in Finding No. C.16.c., we do not approve MCA 82-4-
235(1)(d), concerning diversity in the determination of successful
revegetation.
8. As discussed in Finding No. C.16.d., we do not approve in MCA
82-4-235(1)(g) the phrase ``are introduced species that have become
naturalized.''
As discussed in Finding No. D.1., we are taking no action on MCA
82-4-202(1), as the adequacy of this legislation under the Montana
Constitution is beyond the power and scope of our review.
As discussed in Finding No. D.9., we are taking no action on MCA
82-4-239 because it does not apply to Montana's regulatory program
under SMCRA.
As discussed in Finding C.14.a., we are approving MCA 82-4-233(1)
with the proviso that the exemption for ``and other constructed
features'' not be applied until Montana promulgates implementing rules
to limit the exemption and OSM has approved those rules.
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 demonstrates 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. Additionally, we have been informed that Montana is in
the process of developing implementing regulations for these statutory
revisions; making this rule effective immediately will allow Montana to
focus that work on the correct provisions. SMCRA requires consistency
of State and Federal standards.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. For most of the State
provisions addressed, this determination is based on the analysis
performed for the counterpart Federal regulation. For the remaining
State provisions, this determination is based on the fact that the rule
will not have an impact on the use or value of private property and so,
does not result in significant costs to the government.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory
[[Page 8018]]
programs and program amendments because each program is drafted and
promulgated by a specific State, not by OSM. Under sections 503 and 505
of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that state programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on any Tribe, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes. The
State of Montana, under a Memorandum of Understanding with the
Secretary of the Interior (the validity of which was upheld by the U.S.
District Court for the District of Columbia), does have the authority
to apply the provisions of the Montana regulatory program to mining of
some coal minerals held in trust for the Crow Tribe. This proposed
program amendment does not alter or address the terms of the MOU.
Therefore, this rule does not affect or address the distribution of
power between the Federal Government and Indian Tribes or the
relationship between the Federal Government and Indian Tribes.
Additionally, we note that we provided the proposed amendment to the
Crow Tribe for comment, but we did not receive any comments from it.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 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 State submittal, which is the subject of this rule, is largely
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. For
those State provisions submitted that are not based on counterpart
Federal regulations, we note that the coal mining industry in Montana
consists of a few large companies, and that the industry commenters
urged approval of the submittal.
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. For the reasons stated
above, 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.
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 was made at the State's initiative, and was not the result of
any action mandated by us.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 23, 2004.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
0
For the reasons set out in the preamble, 30 CFR part 926 is amended as
set forth below:
PART 926--MONTANA
0
1. The authority citation for part 926 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
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
* * * * *
[[Page 8019]]
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
July 29, 2003........................ February 16, 2005...... MCA 82-4-202(3)(c); (3)(e) except for the phrase
``and attainable''; 82-4-203(2); 82-4-203(4)
except at (4)(c) the phrase ``as necessary to
support postmining land uses within the area
affected and the adjacent area''; 82-4-203(13),
(16), (17), (20) through (23); (24) except the
phrase ``as they relate to uses of land and
water within the area affected by mining and
the adjacent area''; (26), (27), (28), (30),
(37), (38), (42) through (44), (46), (47),
(50), (55); 82-4-221(3); 82-4-222(1)(m)-(p); 82-
4-231(10)(k) except the phrase ``as necessary
to support postmining land uses and to prevent
material damage to the hydrologic balance in
the adjacent area''; 82-4- 231(10)(k)(vii);
(viii) except the phrase ``to protect the
hydrologic balance as necessary to support
postmining land uses within the area affected
and to prevent material damage to the
hydrologic balance in adjacent areas''; 82-4-
232(1) through (10); 82-4-233; 82-4-234; 82-4-
235(1)-(1)(c); 82-4-235(1)(e)-(f); 82-4-
235(1)(g) except the phrase ``are introduced
species that have become naturalized''; 82-4-
236; HB 373 Section 11; 82-4-252(2); HB 684
repeal of Sec. 5, Chapter 522, Laws of 2001;
also all editorial and codification changes.
We are taking no action on: MCA 82-4-202(1); 82-
4-239.
----------------------------------------------------------------------------------------------------------------
[FR Doc. 05-2905 Filed 2-15-05; 8:45 am]
BILLING CODE 4310-05-P