[Federal Register Volume 74, Number 155 (Thursday, August 13, 2009)]
[Proposed Rules]
[Pages 40799-40802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19365]
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DEPARTMENT OF THE INTERIOR
[SATS No. MT-029-FOR; Docket ID: OSM-2008-0022]
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; reopening and extension of public comment period
on proposed amendment.
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SUMMARY: We are announcing the receipt of revisions pertaining to a
previously proposed amendment to the Montana regulatory program
(hereinafter, the ``Montana program'') under the Surface Mining Control
and Reclamation Act of 1977 (``SMCRA'' or ``the Act''). Montana
proposes additions of rules and revisions to the Administrative Rules
of Montana (ARM) concerning Normal Husbandry Practices. Montana intends
to revise its program to improve operational efficiency.
This document gives the times and locations that the Montana
program and proposed amendment to that program are available for your
inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
mountain daylight time September 14, 2009. If requested, we will hold a
public hearing on the amendment on September 8, 2009. We will accept
requests to speak until 4 p.m., mountain daylight time, on August 28,
2009.
ADDRESSES: You may submit comments, identified by ``MT-029-FOR'' or
Docket ID number OSM-2008-0022, using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
The proposed rule has been assigned Docket ID OSM-2008-0022. If you
would like to submit comments via the Federal eRulemaking portal, go to
http://www.regulations.gov and do the following. Click on the
``Advanced Docket Search'' button on the right side of the screen. Type
in the Docket ID ``OSM-2008-0022'' and click on the ``Submit'' button
at the bottom of the page. The next screen will display the Docket
Search Results for the rule making. If you click on ``OSM-2008-0022'',
you can view the proposed rule and submit a comment. You can also view
supporting material and any comments submitted by others.
Mail, Hand Delivery/Courier: Jeff Fleischman, Director,
Casper Field Office, Office of Surface Mining Reclamation and
Enforcement, Federal Building, 150 East B Street, Room 1018, Casper, WY
82601-1018, (307) 261-6550. Fax: (307) 261-6552.
Instructions: All submissions received must include the agency name
and MT-029-FOR. For detailed instructions on submitting comments and
additional information on the rulemaking process, see the ``Public
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section
of this document.
Docket: Access to the docket to review copies of the Montana
program, this amendment, a listing of any scheduled public hearings,
and all written comments received in response to this document, may be
obtained at the addresses listed below during normal business hours,
Monday through Friday, excluding holidays. You may receive one free
copy of the amendment by contacting the Office of Surface Mining
Reclamation and Enforcement's (OSM's) Casper Field Office. In addition,
you may review a copy of the amendment during regular business hours at
the following locations:
Jeff Fleischman, Director, Casper Field Office, Office of Surface
Mining Reclamation and Enforcement, Federal Building, 150 East B
Street, Room 1018, Casper, WY 82601-1018, Telephone: (307) 261-6550, E-
mail: [email protected].
Neil Harrington, Chief, Industrial and Energy Minerals Bureau, Montana
Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-
0901, Telephone: (406) 444-2544, E-mail: [email protected].
[[Page 40800]]
Or anytime at: http://www.regulations.gov, Docket ID OSM-2008-0022.
FOR FURTHER INFORMATION CONTACT: Jeff Fleischman (307) 261-6550.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 of the Montana program in the April 1, 1980, Federal Register
(45 FR 21560). You can also find later actions concerning Montana's
program and program amendments at 30 CFR 926.15, 926.16, and 926.30.
II. Description of the Proposed Amendment
By letter dated July 3, 2008, Montana sent us a proposed amendment
to its program (SATS No. MT-029-FOR) under SMCRA (30 U.S.C. 1201 et
seq.). Montana sent the amendment to include changes made at its own
initiative. The full text of the original program amendment is
available for you to read at the locations listed above under
ADDRESSES.
We announced receipt of the proposed amendment in the November 10,
2008, Federal Register (73 FR 66569), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (Administrative Record No. OSM-2008-
0022-0001). Because no one requested a public hearing or meeting, none
was held. The public comment period ended on December 10, 2008. We
received one comment that was not relevant to the amendment proposal.
During our review of the amendment, we identified concerns with
regard to the proposed revisions for Normal Husbandry Practices that
would be used for erosion and settling repair and landscaping
activities. We notified Montana of our concerns by letter dated April
16, 2009 (Administrative Record No. OSM-2008-0022-0009). Montana
responded in a letter dated May 12, 2009, by submitting a revised
amendment proposal (Administrative Record No. OSM-2008-0022-0010). The
full text of the revised program amendment is also available for you to
read at the locations listed above under ADDRESSES.
In response to our concerns, Montana made the following changes to
its July 3, 2008, amendment proposal. OSM expressed concerns regarding
Guideline Number 7, Erosion and settling repair. Guidance concerning
the repair of rills and gullies is found in the September 2, 1983,
Federal Register notice (48 FR 40157). In this FR notice, OSM states
that the regulatory authority could allow the repair of rills and
gullies as a husbandry practice without restarting the liability period
only if the general standards of 30 CFR 816.116(c)(4) are met and after
consideration of the normal conservation practices within the region.
To clarify the intent of Guideline Number 7, Erosion and settling
repair, Montana removed National Resource Conservation Standard (NRCS)
No. 578 (stream crossings) from its list of applicable NRCS standards.
In our April 16, 2009, letter to Montana, OSM advised the state to
justify why stream crossings would be applicable to all crossing types
cited in the incorporated NRCS reference, at any time during the
liability period without extending the period of responsibility, or
define reasonable limits. OSM was particularly concerned about large
projects, such as a bridge associated with a road crossing that may be
installed near the end of the liability period. We believe that in
general, stream crossings should be restricted and clearly stated under
what conditions, and what types of stream crossings should be included,
or at least which would be prohibited. OSM requested that Montana also
include a reasonable time limit to demonstrate the stability of such
crossings; and that no negative consequences are reasonably likely
after Phase III bond release. The type of stream crossings allowed,
under what conditions, and time period restrictions should be supported
by appropriate literature references.
Montana omitted stream crossings from the list of standard
practices that can be employed for erosion and sediment control.
Montana explained that stream crossings was deleted because it is
essentially irrelevant to reclamation activities at Montana coal mines.
OSM also expressed concerns about the use of fertilization and
other facilitating practices, i.e. irrigation, that were mentioned in
the incorporated NRCS reference for Critical Area Planting (342) or
elsewhere (e.g. 412--Grassed Waterway). Montana must demonstrate that
fertilization and other facilitating practices will only be allowed
where these practices can be expected to continue as part of the
postmining land use; or if the practices discontinue after the
liability period expires, the probability of permanent vegetation
success will not be reduced.
To clarify the use and intent of fertilizers for erosion and
settling repair, Montana added language stating that ``the use of
fertilization or other facilitating practices (i.e. irrigation), as
mentioned in some normal husbandry practices (e.g. 342--Critical Area
Planting and 412--Grassed Waterway) will not be approved unless it can
be demonstrated that the practice will continue as part of the
postmining land use or if discontinuance of the practice after the
liability period expires will not reduce the probability of permanent
vegetation success.'' OSM is satisfied with Montana's edits to the July
3 amendment proposal regarding erosion and settling repair.
For Guideline Number 9, Agricultural activities, Montana omitted
NRCS standard numbers 441 (micro-irrigation system), 442 (sprinkler
irrigation system), 443 (surface and subsurface irrigation systems),
and 449 (irrigation water management) for consistency, since these
practices were omitted from Guideline Number 7 (Erosion and settling
repair) and Guideline Number 10 (Landscaping activities) to satisfy
OSM's concerns.
To clarify the intent of Guideline Number 10 (Landscaping
activities), Montana removed numbers 422 (hedgerow planting), 441
(micro-irrigation system), 442 (sprinkler irrigation system), 449
(irrigation water management), 578 (stream crossing), 657 (wetland
restoration), 658 (wetland creation), and 659 (wetland enhancement)
from its list of applicable NRCS standards.
In our April 16, 2009, letter to Montana, OSM expressed concerns
regarding the NRCS standard conservation practices for irrigation,
specifically micro-irrigation systems (441), sprinkler irrigation
systems (442), surface and subsurface irrigation systems (443), and
irrigation water management (449). 30 CFR 816.116(c)(4) specifically
excludes augmentative
[[Page 40801]]
irrigation as being approved as a husbandry practice. However, the
preamble to the 1979 revegetation regulations (44 FR 15238, March 13,
1979) clearly states that ``the augmented seeding, fertilizing and
irrigation does not apply to cropland and pastureland that can be
expected to have a similar postmining use and which should be managed
in accordance with acceptable local agricultural practices''. OSM
explained in the September 7, 1988, Federal Register (FR 53 3640) that
``the preamble to the 1979 revegetation regulations which explained
that fertilization, seeding and irrigation in accordance with local
agricultural practices on cropland or pasture land is not considered a
prohibited augmentative practice''. Furthermore, 30 CFR 816.116(c)(4)
specifically requires that any approved husbandry practice must be
expected to continue as part of the postmining land use, or if the
practices are discontinued after the liability period expires,
cessation will not reduce the probability of permanent vegetation
success.
OSM requested that Montana justify why irrigation would be
applicable to all land uses without extending the period of
responsibility, or define when and on what land use such irrigation
practices would be applicable under the constraints cited in the
regulations, thereby specifying when such irrigation practices could be
reasonably considered to be a normal husbandry practice.
In response, Montana removed the following NRCS standard practices
from the list of approved normal husbandry practices for Landscaping
activities: 422 (hedgerow planting), 441 (micro irrigation system), 442
(sprinkler irrigation system), 449 (irrigation water management), 578
(stream crossing), 657 (wetland restoration), 658 (wetland creation),
and 659 (wetland enhancement). Montana explained that a proposal for
the use of irrigation systems will be addressed during the permitting
or permit revision process and will be required to address OSM's
limitations on the use of irrigation.
Regarding wetland related work, OSM expressed concerns that any
activity that requires more than minor stabilization, interseeding, or
replanting would need to be completed at least six (6) years prior to
Phase III bond release. In response to this, Montana omitted numbers
657 (wetland restoration), 658 (wetland creation), and 659 (wetland
enhancement) from its list of applicable NRCS standards used for
Landscaping activities. Montana will address these items through normal
reclamation practices and time frames.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Montana program.
Electronic or Written Comments
Send your written comments to OSM at the addresses given above.
Your comments should be specific, pertain only to the issues proposed
in this rulemaking, and include explanations in support of your
recommended change(s). We appreciate any and all comments, but those
most useful and likely to influence decisions on the final regulations
will be those that either involve personal experience or include
citations to and analyses of SMCRA, its legislative history, its
implementing regulations, case law, other pertinent Tribal or Federal
laws or regulations, technical literature, or other relevant
publications.
We will not consider or respond to your comments when developing
the final rule if they are received after the close of the comment
period (see Dates). We will make every attempt to log all comments into
the administrative record, but comments delivered to an address other
than the Casper Field Office may not be logged in.
Public Availability of Comments
Before including your address, phone number, e-mail address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., mountain
daylight time on August 28, 2009. If you are disabled and need
reasonable accommodations to attend a public hearing, contact the
person listed under FOR FURTHER INFORMATION CONTACT. We will arrange
the location and time of the hearing with those persons requesting the
hearing. If no one requests an opportunity to speak, we will not hold
the hearing. If only one person expresses an interest, a public meeting
rather than a hearing may be held, with the results included in the
docket for this rulemaking.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of
[[Page 40802]]
SMCRA requires that State laws regulating surface coal mining and
reclamation operations be ``in accordance with'' the requirements of
SMCRA. Section 503(a)(7) requires that State programs contain rules and
regulations ``consistent with'' regulations issued by the Secretary
pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 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. 4321 et
seq.).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2) of the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 12, 2009.
Allen D. Klein,
Regional Director, Western Region.
[FR Doc. E9-19365 Filed 8-12-09; 8:45 am]
BILLING CODE 4310-05-P