[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Rules and Regulations]
[Pages 81112-81120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32418]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-029-FOR; Docket ID No. OSM-2008-0022]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement,
Department of the Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement
(OSMRE) is approving an amendment to the Montana regulatory program
(the ``Montana program'') under the Surface Mining Control and
Reclamation Act of 1977 (``SMCRA'' or ``the Act''). Montana is
proposing the addition of guidelines regarding normal husbandry
practices to improve operational efficiency and to ensure that the
husbandry practices used by the permittee during the period of
responsibility for revegetation success and bond liability are normal
husbandry practices within the region for unmined lands.
DATES: Effective Date: December 27, 2010.
FOR FURTHER INFORMATION CONTACT: Jeff Fleischman, Director, Casper
Field Office Telephone: (307) 261-6550 Internet Address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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 3, 2008, Montana sent OSMRE an amendment to
its program (SATS number MT-029-FOR; Administrative Record No. OSM-
2008-0022) 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 November 10,
2008, Federal Register (73 FR 66569). 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. OSM-2008-0022-0001). We did not hold a public hearing or meeting
because no one requested one. The public comment period ended on
December 10, 2008. We did not receive any comments.
During our review of the amendment, we identified concerns
regarding the proposed normal husbandry practices for Landscaping
Activities and Erosion and Settling Repair. We notified Montana of
these concerns by letter dated April 16, 2009 (Administrative Record
No. OSM-2008-0022-0013). Our concerns are explained in detail in
Section III of this notice.
[[Page 81113]]
Montana responded in a letter dated May 12, 2009, by sending us a
revised amendment (Administrative Record No. OSM-2008-0022-0012).
Montana made the appropriate changes to the normal husbandry practices
for Erosion and Settling Repair and Landscaping Activities. The
provisions were acceptable to OSMRE.
Based upon Montana's revisions to its amendment, we reopened the
public comment period in the August 13, 2009, Federal Register (74 FR
40799) and provided an opportunity for a public hearing or meeting on
the adequacy of the revised amendment. We did not hold a public hearing
or meeting because no one requested one. The public comment period
ended on September 14, 2009. We did not receive any comments.
III. OSMRE's Findings
This section contains our findings concerning the amendment to the
Montana program. We are making these findings in accordance with the
criteria and procedural requirements of SMCRA and the Federal
regulations at 30 CFR 732.15 and 732.17. We are approving the
amendment.
What is Montana proposing to change?
Montana proposes the addition of Normal Husbandry Practices
Guidelines to the Administrative Rules of Montana. OSMRE must approve
the list of normal husbandry practices that mine operators may employ
without restarting the responsibility period prior to application for
Phase III bond release. The September 7, 1988, Federal Register notice
(53 FR 34641) states that OSMRE ``would consider, on a practice-by-
practice basis, the administrative record supporting each practice
proposed by a regulatory authority as normal husbandry practice'' and
that the regulatory authority ``would be expected to demonstrate (1)
that the practice is the usual or expected state, form, amount or
degree of management performed habitually or customarily to prevent
exploitation, destruction or neglect of the resource and maintain a
prescribed level of use or productivity of similar unmined lands and
(2) that the proposed practice is not an augmentative practice
prohibited by section 515(b)(20) of [SMCRA].''
The Federal regulations at 30 CFR 816.116(c)(1) for surface mining
operations and 817.116(c)(1) for underground mining operations require
that the period of extended responsibility for successful revegetation
shall begin after the last year of augmented seeding, fertilizing,
irrigation, or other work, excluding husbandry practices that are
approved by the regulatory authority in accordance with 30 CFR
816.116(c)(4) and 817.116(c)(4).
The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4)
require that a regulatory authority may approve selective husbandry
practices, excluding augmented seeding, fertilization, or irrigation,
provided it obtains prior approval from OSMRE's Director that the
practices are normal husbandry practices, without extending the period
of responsibility for revegetation success and bond liability, if such
practices can be expected to continue as part of the postmining land
use or if discontinuance of the practices after the liability period
expires will not reduce the probability of permanent vegetation
success. Approved practices shall be normal husbandry practices within
the region for unmined land having land uses similar to the approved
postmining land use of the disturbed area, including such practices as
disease, pest, and vermin control; and any pruning, reseeding, and
transplanting specifically necessitated by such actions.
Montana is proposing to add ten categories of normal husbandry
practices that will not be considered augmented practices and will not
result in the restart of the responsibility period. Each category has
an associated list of Standard Conservation Practices currently
approved by the Montana State Office of the Natural Resources
Conservation Service that will be included as approved normal husbandry
practices for the category. These National Resources Conservation
Service (NRCS) Standards can be found at http://www.regulations.gov
(Administrative Record No. OSM-2008-0022-0001).
During our initial review of the amendment proposal, OSMRE
identified proposed normal husbandry practices that we determined could
not be considered ``normal'' as defined in 30 CFR 816.116(c)(4) and
817.116(c)(4). These included the proposed normal husbandry practices
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). We delayed final rulemaking to afford
Montana the opportunity to submit new material to address the
deficiencies. By letter dated May 12, 2009, Montana responded to the
concern letter, providing rationale to demonstrate that the proposed
guidelines for Erosion and Settling Repair and Landscaping Activities
can be expected to continue as part of the post mining land use, or if
discontinuance of the practices after the liability period expires, it
will not reduce the probability of permanent revegetation success, as
prescribed in 30 CFR 816.116(c)(4) and 817.116(c)(4) (Administrative
Record No. OSM-2008-0022-0010). Montana also elected to omit the NRCS
practices that were not relevant or that were potentially problematic.
Please see sections III.D. and III.F. for more information about the
proposed revised sections for Erosion and Settling Repair and
Landscaping Activities. OSMRE announced the reopening of the comment
period in the Federal Register on August 13, 2009 (74 FR 40799). The
comment period closed September 14, 2009. No comments were received.
To remain clear and concise and to eliminate repetition, we have
grouped the ten categories of proposed normal husbandry practices as
follows: Interseeding and Supplemental Planting of Tree and Shrub
Seedlings (III.A.); Mechanical Practices, Supplemental Mulching,
Prescribed Burning, Pest Control, and Agricultural Activities (III.B.);
Grazing (III.C.); Erosion and Settling Repair (III.D.); Development and
Maintenance of Water Resources (III.E.); and Landscaping Activities
(III.F.). The findings include whether the practice being approved as
normal husbandry is subject to an acreage limitation. That is, the
practice can be applied only to a percentage of the reclaimed acreage.
Other practices have no acreage limitation.
A. Interseeding and Supplemental Planting of Tree and Shrub
Seedlings. Montana proposes to add the following language regarding
Interseeding and Supplemental Planting:
Interseeding is done to enhance revegetation, rather than to
augment revegetation. Interseeding is defined as a secondary seeding
into established revegetation to improve composition, diversity or
seasonality. In contrast, augmented seeding is reseeding with
fertilization or irrigation, or in response to unsuccessful
revegetation in terms of germination, establishment, or permanence.
Interseeding may be used to take advantage of favorable climatic
conditions and to enhance germination and establishment of
reclamation species requiring extended periods of stratification or
other special environmental conditions. Interseeding may also be
used to improve or alter the compositional balance between forage
species and shrubs, or between warm and cool season grasses.
Interseeding of native species and approved introduced species
may be implemented up to six (6) years prior to Phase III bond
release for grazing land, fish and wildlife habitat, forestry, or
recreation post-mining land uses. Augmented seeding or seeding of
introduced and non-native
[[Page 81114]]
species other than those approved by the Department is not allowed
as a Normal husbandry practice. No reclaimed acreage limit applies
to interseeding.
To promote and enhance establishment of wildlife habitats,
increase diversity, and improve age-class structure in monotypic
stands of trees and shrubs, mine operators may transplant native
trees and shrubs and/or plant tree and shrub nursery stock on
reclamation units up to six (6) years prior to Phase III bond
release for all post-mining land uses. As long as the approved post-
mining land use is being met, no reclaimed acreage limit applies to
interplanting of native transplants or nursery stock.
In all cases, damage to established or emergent vegetation should be
avoided. Methods for interseeding both herbaceous and woody species
may include hand planting, broadcast, range drill or interseeded
applications, and other methods as deemed appropriate by the
operator. Chemical fallowing of existing herbaceous perennial
vegetation may be employed to reduce competition prior to
interplanting of woody species. Operators are encouraged to modify
seeding equipment to optimize planting and reduce soil compaction or
damage to existing vegetation. Use of livestock for trampling seed
and mulch into the soil is also encouraged as an approved husbandry
practice.
In support of the proposed practices for Interseeding and Supplemental
Planting of Tree and Shrub Seedlings, Montana made reference to the
following U.S. Department of Agriculture's Natural Resources
Conservation Service (NRCS) Practice Standards for Montana: Channel
Bank Vegetation (322), Critical Area Planting (342), Windbreak/
Shelterbelt Establishment (380), Field Border (386), Riparian
Herbaceous Cover (390), Riparian Forest Buffer (391), Filter Strip
(393), Stream Habitat Improvement and Management (395), Hedgerow
Planting (422), Range Planting (550), Tree and Shrub Establishment
(612), Restoration and Management of Rare or Declining Habitats (643),
Wetland Wildlife Habitat Management (644), Upland Wildlife Habitat
Management (645), Early Successional Habitat Development/Management
(647), Wetland Restoration (657), Wetland Creation (658), and Wetland
Enhancement (659).
OSMRE previously approved similar language as a normal husbandry
practice in New Mexico (65 FR 65770, November 2, 2000). The Montana
proposal is based on language from the approved New Mexico program.
For regulatory purposes, interseeding is done to enhance
revegetation rather than to augment it. Interseeding is defined as a
secondary seeding into established revegetation to improve composition,
diversity, or seasonality. In contrast, augmented seeding is reseeding
with fertilization or irrigation, or in response to unsuccessful
revegetation in terms of germination, establishment, or permanence.
Based on these references and practices, it is clear that in certain
cases, interseeding is desirable to increase the structural and
vegetative diversity of the reclaimed lands for wildlife habitat and
for rangeland improvement.
OSMRE considers, on a practice-by-practice basis, the
administrative record supporting each normal husbandry practice
proposed by a regulatory authority (53 FR 34641, September 7, 1988). In
1983, OSMRE considered and rejected the idea of allowing interseeding
and supplemental fertilization during the first 5 years of the 10-year
responsibility period. While allowing replanting of trees and shrubs
``to utilize the best technology available'' without extending the
responsibility period, OSMRE determined that augmented seeding,
fertilizing, or irrigation is not allowed during the responsibility
period (See 48 FR 40156, September 2, 1983.)
However, in 1988, (53 FR 34641, September 7, 1988) OSMRE stated in
the context of the Federal regulation at 30 CFR 816.116(c)(4) that
seeding, fertilization, or irrigation performed at levels that do not
exceed those normally applied in maintaining comparable unmined land in
the surrounding area would not be considered prohibited augmentative
activities.
This is consistent with the preamble to the 1979 Revegetation
Regulations (44 FR 15238, March 13, 1979) which states, ``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.'' This was restated on September 7, 1988, in 53
FR 34640: ``* * * 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) and 817.116(c)(4) specifically
require 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. Therefore, any
irrigation or fertilization (such as NRCS Standard Channel Bank
Vegetation, 322), would have to comply with the spirit and intent of
the regulations.
In response to comments received concerning an Ohio program
amendment, OSMRE stated that the legislative history of the Act [SMCRA]
reveals no specific Congressional intent in the use of the term
``augmented seeding.'' Accordingly, OSMRE's interpretation of augmented
seeding is given deference so long as it has a rational basis (see 63
FR 51832, September 29, 1998).
Included in the proposal to allow interseeding as a normal
husbandry practice are proposed definitions for ``augmented seeding''
and ``interseeding'' to distinguish the differences between the two.
Interseeding is done to enhance revegetation, rather than to augment
revegetation. Montana defines interseeding as a secondary seeding into
established revegetation to improve composition, diversity, or
seasonality. In contrast, augmented seeding is defined as reseeding
with fertilization or irrigation, or in response to unsuccessful
revegetation in terms of germination, establishment, or permanence.
Interseeding may be used to take advantage of favorable climatic
conditions and to enhance germination and establishment of reclamation
species requiring extended periods of stratification or other special
environmental conditions. Interseeding may also be used to improve or
alter the compositional balance between forage species and shrubs, or
between warm and cool season grasses.
Interseeding is clearly aimed at establishing species that require
special conditions for germination and the establishment or altering of
species composition. Montana's discussion of interseeding as a normal
husbandry practice further clarifies that interseeding is done to
enhance the revegetation, rather than to augment the revegetation.
Montana reiterates that interseeding is secondary seeding into
established revegetation to improve composition, diversity, or
seasonality. In contrast, augmented seeding is reseeding with
fertilization or irrigation, or in response to unsuccessful
revegetation in terms of germination, establishment, or permanence.
Montana also proposes appropriate time frames limiting the
application of interseeding as a normal husbandry practice without
restarting the bond liability period, requiring that interseeding of
native species and approved introduced species may be implemented up to
six (6) years prior to Phase III bond release for grazing land, fish
and wildlife habitat, forestry, or recreation post-mining land uses.
While it is OSMRE's desire to encourage wetland development and the
[[Page 81115]]
management of such systems in a proper functioning condition, it is
also OSMRE's opinion that anything more than minor wetland related work
(see the referenced NRCS practices cited (wetland restoration (657),
wetland creation (658), and wetland enhancement (659)) would need to be
completed at least six (6) years prior to Phase III bond release.
Appropriate limits on aerial extents and time frames for implementation
have been set for all proposed normal husbandry practices that would
potentially use the wetland restoration, wetland creation, and wetland
enhancement practice standards.
Montana has demonstrated that the proposed normal husbandry
practices for interseeding and supplemental planting are normal
husbandry practices within the region for unmined lands having land
uses similar to the approved post mining land use of the disturbed
area. As appropriate limits on time frames for implementation have been
set for all proposed practices, exceeding these limits would result in
extending the period of responsibility. For these reasons, OSMRE has
determined that the proposed normal husbandry practices for
Interseeding and Supplemental Planting of Tree and Shrub Seedlings meet
the criteria to be approved as normal husbandry practices under 30 CFR
816.116 (c)(4) and 817.116(c)(4). We approve these changes to the
Administrative Rules of Montana.
B. Mechanical Practices, Supplemental Mulching, Prescribed Burning,
Pest Control, and Agricultural Activities. Montana proposes to add the
following language regarding Mechanical Practices:
Selective cutting, mowing and raking to control weeds, reduce
standing dead vegetation or litter, increase decomposition of
organic matter, and stimulate vegetative regrowth are approved
husbandry practices. These practices are applicable to all post-
mining land uses at any time during the liability period. No
reclaimed acreage limit applies.
In support of the proposed practices for Mechanical Practices, Montana
made reference to the following NRCS Practice Standards for Montana:
Brush Management (314), Fuel Break (383), Firebreak (394), Forage
Harvest Management (511), Grazing Land Mechanical Treatment (548),
Upland Wildlife Habitat Management (645), Early Successional Habitat
Development/Management (647), Windbreak/Shelterbelt Renovation (650),
and Forest Stand Improvement (666).
Montana proposes to add the following language regarding
Supplemental Mulching:
Mulching of interseeded areas may be required if little of the
original mulch application remains, there is limited organic matter
in the root zone material, or potential for accelerated erosion
exists. This practice is applicable to all approved post-mining land
uses, and must be completed at least six (6) years prior to Phase
III bond release. No reclaimed acreage limit applies.
In support of the proposed practices for Mechanical Practices,
Montana made reference to the NRCS Practice Standard for Mulching
(484).
Montana proposes to add the following language regarding Prescribed
Burning:
Controlled burning may be used to reduce persistent and common
weeds, undesirable vegetation, litter buildup, or weed seed-load on
reclaimed lands. Prescribed fire may also be used to reduce
vegetative competition and stimulate growth of desired species. This
practice is applicable to all post-mining land uses at any time
during the liability period. No reclaimed acreage limit applies.
In support of the proposed practices for Prescribed Burning,
Montana made reference to the NRCS Practice Standards for Prescribed
Burning (338) and Firebreak (394).
Montana proposes to add the following language regarding Pest
Control, including weeds, vertebrate and invertebrate animals, fungi
and diseases:
Prior to implementing control of weeds and other pests, the
respective county weed board must approve a comprehensive noxious
weed control plan.
Selection of herbicides and mechanical control techniques
represents a compromise between affecting the desirable species in
reclamation units and controlling invasive and damaging organisms.
Application of herbicides to control weeds may be necessary in some
cases where steep slopes and rugged terrain prohibit access for
mechanical control, fencing for managed grazing, or the use of fire.
All herbicide applications, however, must be timed to avoid damage
to shrub seedlings and grass seedlings in stages of growth prior to
the fourth leaf stage. Both spraying (by hand or from a vehicle),
and rope wicking may be used as application techniques. Operators
may modify these techniques or use other forms of application.
The use of fire or controlled grazing are generally encouraged
for the control of annual brome grasses (Bromus tectorum and B.
japonicum) and annual forbs such as Russian thistle (Salsola kali)
or kochia (Kochia scoparia), because most shrub species will recover
from a light fire and/or grazing. Herbicide use, however, may be
necessary, when dealing with persistent, deeply rooted perennial
species such as the knapweeds (Centaurea spp.), Canada thistle
(Cirsium arvense) or leafy spurge (Euphorbia esula). These species
typically do not respond to mechanical control or burning. Treatment
of species such as salt cedar (Tamarix ramosissima) will require
extreme caution to prevent herbicide and herbicide residues from
entering surface waters or the groundwater. Operators proposing to
use restricted chemicals must ensure that these chemicals are
applied by certified applicators. This practice is applicable to all
post-mining land uses and at any time during the liability period.
No reclaimed acreage limit applies.
In support of the proposed practices for Pest Control, Montana made
reference to the NRCS Practice Standards for Prescribed Burning (338)
and Pest Management (595).
Montana proposes to add the following language regarding
Agricultural Activities:
Croplands and pasturelands require ongoing management
activities. Annual or periodic seeding, fertilizing, irrigating, or
other normal agricultural activity carried out on approved cropland
or pastureland are such activities. These practices are applicable
at any time during the liability period for the listed post-mining
land uses, with no reclaimed acreage limits.
In support of the proposed practices for Agricultural Activities,
Montana made reference to the following NRCS Practice Standards for
Montana: Conservation Crop Rotation (328), Residue and Tillage
Management (329), Cover Crop (340), Residue Management, Seasonal (344),
Residue Management, Mulch Till (345), Residue Management, Ridge Till
(346), Field Border (386), Filter Strip (393), Forage Harvest
Management (511), Strip Cropping (585), and Nutrient Management (590).
The Montana proposed husbandry practices for Mechanical Practices,
Supplemental Mulching, Prescribed Burning, Pest Control, and
Agricultural Activities are based on language in the approved New
Mexico program (65 FR 65770).
As proposed, the normal husbandry practices for Mechanical
Practices, Supplemental Mulching, Prescribed Burning, Pest Control, and
Agricultural Activities are normal husbandry practices within the
region for unmined lands having land uses similar to the approved post
mining land use of the disturbed area. In addition, Montana set an
appropriate limit on the time frame for the implementation of the
proposed practice for Supplemental Mulching. If a permittee exceeded
the time limit, the permittee would have to extend the period of
liability for demonstrating success of revegetation. OSMRE finds that
Montana's proposed normal husbandry practices identified above are
consistent with and no less effective than the Federal regulations at
30 CFR 816.116/817.116(c)(1) and (4) in meeting
[[Page 81116]]
the requirements of SMCRA. We approve the proposed changes.
C. Grazing. Montana proposes to add the following language
regarding Grazing:
Livestock grazing is a standard land use and is a management
tool that can be successfully used to increase plant diversity and
production, as well as improve the overall health of a particular
vegetative stand. On the Montana coal lands, grazing is primarily
limited to cattle; however, grazing by sheep, goats or horses should
also be considered when specific vegetation objectives are desired.
The operator may use grazing to remove dead materials, harvest
production, and stimulate vegetative growth as a husbandry practice.
This practice is applicable to cropland, pastureland, grazing
land, fish and wildlife habitat, forestry, and recreation post-
mining land uses. Grazing may be conducted at any time during the
liability period.
Montana proposes to include the NRCS Standards for Fence (382) and
Prescribed Grazing (528) to support Grazing.
Montana's proposal makes it clear that grazing is a management tool
used to meet particular objectives, including increased plant
diversity, overall vegetative health, removal of dead (plant) material,
harvest production, and the stimulation of vegetative growth.
It is also inherent in the approval that management will be within
the bounds of normal husbandry practices within the region for unmined
lands with similar uses regardless of whether or not a grazing plan, a
grazing monitoring plan, or yearly recalculations of carrying
capacities and stocking rates are performed.
Montana limits the practice of Grazing to the following postmining
land uses: Cropland; pastureland; grazing land; fish and wildlife
habitat; forestry; and recreation.
Montana demonstrates that the NRCS standard practices proposed for
Grazing are the usual or expected state, form, amount, or degree of
management performed habitually or customarily to prevent exploitation,
destruction, or neglect of the resource and maintain a prescribed level
of use or productivity of similar unmined lands within the region
having land uses similar to the approved postmining land use of the
disturbed area. The proposed normal husbandry practices for Grazing
meet the criteria for approval under 30 CFR 816/817.116(c)(4). We,
therefore, approve the proposed language.
D. Erosion and Settling Repair. Montana proposes to add the
following language regarding Erosion and Settling Repair:
Repair of rills, gullies, headcuts or similar erosional features
is sometimes necessary. Settling of reclaimed spoils creates
depressions, sink holes and linear features. Additionally, settling
along pipelines, underground utilities, etc. often results in
undesirable features. Features to be repaired must be characteristic
of unmined lands in the region and the damage must not be caused by
a lack of planning, design, or implementation of the mining and
reclamation plan. When deciding whether a particular erosion feature
should be repaired the operator should consult the Department's
Guidelines on Erosional Features. 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.
Repairs considered to be normal husbandry practices include hand
work with shovels and similar tools, mechanical manipulation of
small areas (including hauling fill into small areas of settling),
installation of erosion-control matting, sediment filtration (silt
fence, hay or straw bales, rock berms, check dams, etc.), hand,
broadcast and drill seeding of small areas, and raking. This
practice is applicable to all post-mine land uses at any time during
the liability period. No more than 10% of the respective reclaimed
unit may be repaired as a normal husbandry practice. If erosion and
settling repairs are required on more than 10%, the liability period
will be reinitiated. Erosion and settling repairs completed prior to
the initiation of the 10-year liability period are not included in
the 10%.
Montana proposes to include the NRCS Standards for Channel Bank
Vegetation (322), Critical Area Planting (342), Stream Habitat
Improvement and Management (395), Grassed Waterway (412), Use Exclusion
(472), Range Planting (550), Heavy Use Area Protection (561),
Streambank and Shoreline Protection (580), and Channel Stabilization
(584) to be used for 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). Here OSMRE
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 816/817.116(c)(4) are
met and after consideration of the normal conservation practices within
the region.
Montana's proposed language for Erosion and Settling Repair is
similar to language approved for New Mexico's Program in 65 FR 65770
(November 2, 2000). Montana is specific regarding the unit percentage
of area that may be repaired (no more than ten percent), noting that if
erosion and settling repairs are required on more than ten percent of
the reclaimed unit, the liability period will be reinitiated. Montana
satisfactorily demonstrates that the proposed normal husbandry
practices for Erosion and Settling Repair are normal husbandry
practices within the region for unmined lands having land uses similar
to the approved post mining land use of the disturbed area. We find
that Montana's proposed normal husbandry practices for Erosion and
Settling Repair are consistent with and no less effective than the
Federal regulations at 30 CFR 816/817.116(c)(4) in meeting the
requirements of SMCRA, and we approve them.
E. Development and Maintenance of Water Resources. Montana proposes
to add the following language regarding Development and Maintenance of
Water Resources:
Water resources may be developed to provide for better livestock
distribution, seasonal wildlife habitat, or to take advantage of a
naturally occurring situation, such as a spring or seep that
develops in reclamation. Normal maintenance (cleaning, repair,
upgrading, stabilizing with rock, and interseeding or replanting of
vegetation) and protection (fencing and animal exclusion) of
developed water resources, their shorelines, and the structures
associated with developed water sources is considered a normal
husbandry practice.
This practice is applicable to either water sources that can be
developed or to water sources that have been developed for all
approved post-mining land uses. Cleaning, repair, and upgrading may
be conducted at any time during the liability period, with no
reclaimed acreage limits. Ponds or permanent impoundments must be
permitted in accordance with ARM 17.24.504 and 17.24.642. New
development of ponds, wells, or any activity that requires
stabilization, interseeding, or replanting must be completed at
least six (6) years prior to Phase III bond release and is limited
to no more than 10% of the reclaimed acreage in the bond release
unit.
The proposed language lists the NRCS Standards for Channel Bank
Vegetation (322), Critical Area Planting (342), Ponds (378), Fence
(382), Grassed Waterway (412), Dry Hydrant (432), Micro-irrigation
Systems (441), Sprinkler Irrigation Systems (442), Surface and
Subsurface Irrigation Systems (433), Water Management Irrigation system
(449), Use Exclusion (472), Spring Development (574), Streambank and
Shoreline Protection (580), Channel Stabalization (584), Watering
Facility (614), Water Harvesting Catchment (636), Water Well (642), and
Shallow Water Development and Management (646) as practices used to
develop and maintain water resources.
[[Page 81117]]
As previously mentioned, in 1983, OSMRE considered and rejected the
idea of allowing interseeding and supplemental fertilization during the
first 5 years of the 10-year responsibility period. While allowing
replanting of trees and shrubs ``to utilize the best technology
available'' without extending the responsibility period, OSMRE
determined that augmented seeding, fertilizing, or irrigation is not
allowed during the responsibility period (48 FR 40156, September 2,
1983.)
However, in 1988, (53 FR 34641, September 7, 1988) OSMRE stated, in
the context of the Federal regulation at 30 CFR 816/817.116(c)(4), that
seeding, fertilization, or irrigation performed at levels that do not
exceed those normally applied in maintaining comparable unmined land in
the surrounding area would not be considered prohibited augmentative
activities.
This is consistent with the preamble to the 1979 revegetation
regulations (44 FR 15238, March 13, 1979) which 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.'' This was restated on
September 7, 1988, in FR 53 3640, which states, ``* * * 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 816/817.116(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.
Therefore, any irrigation, fertilization, or seeding such as those
used in the incorporated NRCS Practices for Channel Bank Vegetation
(322), or Critical Area Planting (342), or the NRCS Practices relating
to irrigation, etc., would have to comply with the Federal regulations
at 30 CFR 816/817.116(c)(1) and (c)(4).
It is OSMRE's desire to encourage wetland development and the
management of such systems in a proper functioning condition.
Therefore, all Federal, State, and local laws and regulations need to
be adhered to when working in aquatic or wetland systems, and/or in
ways that might affect water quality. Impacts to existing hydrology
will need to be assessed (e.g. Code 378--Ponds).
Montana demonstrates that the proposed practices for the
Development and Maintenance of Water Resources are normal husbandry
practices within the region for unmined lands having land uses similar
to the approved post mining land use of the disturbed area. As
appropriate limits on time frames and acreages for implementation have
been set for all proposed practices, exceeding these limits would
result in extending the period of responsibility. This proposed
language meets the criteria to be approved under 30 CFR 816/
817.116(c)(4). We approve this proposed change to the Administrative
Rules of Montana.
F. Landscaping Activities. Montana proposes to add the following
language regarding Landscaping Activities:
Periodic landscaping or vegetation management activity can be
carried out on approved pastureland, grazing land, fish and wildlife
habitat, forestry, recreation, industrial, or residential post-
mining land uses. Practices which do not involve the establishment
of new vegetation (seeding and planting) are applicable at any time
during the liability period, with no reclaimed acreage limits.
Practices which involve seeding or planting must be completed at
least six (6) years prior to Phase III bond release. No reclaimed
acreage limit applies.
Initially, Montana proposed the following NRCS Standards to support
Landscaping Activities: Fuel Break (383), Firebreak (394), Hedgerow
Planting (422), Irrigation System, Micro-irrigation (441), Irrigation
System, Sprinkler (442), Irrigation System, Surface and Subsurface
(443), Irrigation Water Management (449), Stream Crossing (578), Tree,
Shrub Establishment (612), Windbreak/Shelterbelt Renovation (650),
Wetland Restoration (657), Wetland Creation (658), Wetland Enhancement
(659), and Forest Stand Improvement (666).
The Standard Conservation Practices that Montana referenced in its
original amendment proposal relating to Irrigation, specifically Micro-
irrigation Systems (441), Sprinkler Irrigation Systems (442), Surface
and Subsurface Irrigation Systems (443), and Water Management
Irrigation Systems (449), did not meet the requirements of 30 CFR 816/
817.116(c)(4), which specifically exclude augmentative irrigation as
being approved as a normal husbandry practice.
The preamble to the 1979 revegetation regulations (44 FR 15238,
March 13, 1979) clearly states, ``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.'' This was
restated on September 7, 1988, in FR 53, 3640: ``* * * 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.''
In our concern letter dated April 16, 2009 (Administrative Record
No. OSM-2008-0022-0013), OSMRE requested that Montana justify why
irrigation would be applicable to all land uses without extending the
period of responsibility, or define when and for 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.
OSMRE reminded Montana that anything more than minor wetland
related work (wetland restoration (657), wetland creation (658), and
wetland enhancement (659)), or 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.
Regarding the Stream Crossings (578), OSMRE felt that this NRCS
standard was overly broad and far-reaching. We requested that Montana
explain 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. Of particular concern are large projects,
such as a bridge associated with a road crossing that might be
installed near the end of the liability period. OSMRE believes 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. OSMRE requested that Montana
include some reasonable time limit before a Phase III bond release
beyond which any stream crossings would be prohibited, so as to
demonstrate the stability of such crossings and that no negative
consequences are reasonably likely after Phase III bond release.
In Montana's May 12, 2009, response letter (Administrative Record
No. OSM-2008-0022-0012), the State elected to eliminate the following
NRCS Standards for Landscaping Activities: Hedgerow Planting (422),
Irrigation System, Micro-irrigation (441), Irrigation System, Sprinkler
(442), Irrigation System,
[[Page 81118]]
Surface and Subsurface (443), Irrigation Water Management (449), Stream
Crossing (578), Tree, Wetland Restoration (657), Wetland Creation
(658), and Wetland Enhancement (659).
Montana expressed that proposals for the use of irrigation systems
will be addressed during the permitting or permit revision process and
will be required to address OSMRE's limitations on the use of
irrigation for landscaping activities. Montana proposed to delete the
Stream Crossing standard (578) as it is essentially irrelevant to
reclamation activities at Montana coal mines. Additionally, Montana
responded to OSMRE's concern regarding Wetland Restoration (657),
Wetland Creation (658), and Wetland Enhancement (659) by deleting these
standards from the list of standards used to support Landscaping
Activities, as they will be addressed through normal reclamation
practices and time frames.
As a result of Montana's May 12, 2009, response to our concern
letter dated April 16, 2009, OSMRE approves only the following NRCS
Standards for Landscaping Activities: Fuel Break (383), Firebreak
(394), Tree, Shrub Establishment (612), Windbreak/Shelterbelt
Renovation (650), and Forest Stand Improvement (666).
For the proposed normal husbandry practice of Landscaping
Activities, Montana referenced the NRCS supplements which support the
use of these practices as normal husbandry for the region and set
appropriate limits on time frames for implementation for all proposed
practices. Exceeding these limits would result in extending the period
of responsibility.
Montana thus has demonstrated that the proposed normal husbandry
practices listed for Landscaping Activities are normal husbandry
practices within the region for unmined lands having land uses similar
to the approved post mining land use of the disturbed area. The changes
that Montana made to the normal husbandry practice for Landscaping
Activities meet the requirements for approval under 30 CFR 816/
817.116(c)(4). We approve the proposed changes.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. OSM-2008-0022-0001), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Montana program (Administrative
Record No. OSM-2008-0022-0014). We did not receive any comments from
other Federal agencies.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
None of the revisions that Montana proposed to make in this
amendment pertains to air or water quality standards. Therefore, we did
not ask EPA to concur on the amendment. We did, however, solicit
comments from EPA in a letter dated October 3, 2008 (Administrative
Record No. OSM-2008-0022-0014). We received an e-mail on October 20,
2008 (Administrative Record No. OSM-2008-0022-0016), notifying OSMRE
that the EPA did not plan to review the proposed changes because they
did not pertain to air or water quality standards.
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. Since this amendment has no effect on historic properties,
OSMRE was not required to request comments from the SHPO and the ACHP.
We did not request comments from the ACHP. The Montana SHPO was
notified of the amendment proposal by a letter dated October 3, 2008,
soliciting comments (Administrative Record No. OSM-2008-0022-0014), but
did not submit any comments regarding this amendment proposal.
V. OSMRE's Decision
Based on the above findings, we approve Montana's July 3, 2008,
proposed amendment for Normal Husbandry Practice Guidelines, as revised
on May 12, 2009. We find that the proposed normal husbandry practices
will not extend the period of responsibility for revegetation success
and bond liability, and the proposed practices can be expected to
continue as part of the postmining land use. If the practices are
discontinued after the liability period expires, the probability of
permanent vegetation success will not be reduced. The proposed
practices listed for each category are normal husbandry practices
within the region for unmined land having land uses similar to the
approved postmining land use of the disturbed area.
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. SMCRA requires consistency of State and Federal
standards.
Effect of OSMRE's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an
approved State program be submitted to OSMRE for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
changes to approved State programs that are not approved by OSMRE. In
the oversight of the Montana program, we will recognize only the
statutes, regulations, and other materials we have approved, together
with any consistent implementing policies, directives, and other
materials. We will require Montana to enforce only those approved
provisions.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that 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
[[Page 81119]]
promulgated by a specific State, not by OSMRE. 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 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 CFR 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) 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 effect 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: July 8, 2010.
Allen D. Klein,
Regional Director, Western Region.
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
* * * * *
----------------------------------------------------------------------------------------------------------------
Date of final
Original amendment submission date publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
July 3, 2008......................... December 27, 2010...... Normal husbandry practices.
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[[Page 81120]]
[FR Doc. 2010-32418 Filed 12-23-10; 8:45 am]
BILLING CODE 4310-05-P