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.

SUMMARY:

We are announcing receipt of revisions pertaining to a previously proposed statutory 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 revised its original amendment proposal to remain consistent with SMCRA and Office of Surface Mining Reclamation and Enforcement (“OSM”) policy. The revised amendment pertains to exempting certain small water treatment and other facilities areas from the 10-year revegetation responsibility period. Montana intends to revise its program to be consistent with OSM's interpretation of SMCRA, clarify ambiguities, and to improve operational efficiency.

DATES:

We will accept written comments on this amendment until 4 p.m., [m.d.t.] August 25, 2010.

ADDRESSES:

You may submit comments, identified by “SATS No. MT-030-FOR” or “Docket ID No. OSM-2009-0007,” by any of the following methods:

• E-mail: cbelka@osmre.gov. Please include “Docket ID No. OSM-2009-0007” in the subject line of the message.
• Mail/Hand Delivery/Courier: Jeffrey Fleischman, Chief, Casper Field Office, Office of Surface Mining, Reclamation and Enforcement, Dick Cheney Federal Building POB 11018, 150 East B Street, Casper, WY 82601-7032, (307) 261-6550.
• Fax: (307) 261-6552.
• Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions below for submitting comments.

Instructions: All submissions received must include the agency name and Docket ID No. OSM-2009-0007. 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 Office of Surface Mining Reclamation and Enforcement (OSM's) Casper Field Office. In addition, you may review a copy of the amendment during regular business hours at the following locations:

Jeffrey Fleischman, Chief, Casper Field Office, Office of Surface Mining Reclamation and Enforcement, Dick Cheney Federal Building POB 11018, 150 East B Street, Casper, WY 82601-7032, (307) 261-6550, jfleischman@osmre.gov.

Edward L. Coleman, Bureau Chief, Industrial and Energy Minerals Bureau, Department of Environmental Quality, P.O. Box 200901, Helena, MT 59620-0901, (406) 444-2544, ecoleman@mt.gov.

FOR FURTHER INFORMATION CONTACT:

Jeffrey Fleischman, Casper Field Office Director. Telephone: (307) 261-6550. Internet address: jfleischman@osmre.gov.

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

Montana originally proposed to revise MCA 82-4-235(2), (3), and (4). These statutory provisions all pertain to revegetation and final bond release. We announced receipt of the original proposed amendment in the August 12, 2009, Federal Register (74 FR 40537), provided an opportunity for a public hearing or meeting on its substantive adequacy, and invited public comment on its adequacy (Document ID #OSM-2009-0007-0001; Administrative Record No. MT-27-05). Because no one requested a public hearing or meeting, none was held. The public comment period ended on September 11, 2009. We received comments from one Federal agency and one private citizen.

During our review of the amendment, we identified concerns relating to the proposed provisions of the Montana Code Annotated at 82-4-235(3)(a), revegetation responsibility periods. We notified Montana of our concerns by letter dated March 19, 2010 (Document ID #OSM-2009-0007-0006; Administrative Record No. MT-27-08). Montana responded in a letter dated April 12, 2010, by submitting a revised amendment proposal (Document ID #OSM-2009-0007-0007; Administrative Record No. MT-27-09).

OSM's concern with Montana's original proposal was that the provision would have allowed different types of areas to be exempted from the revegetation responsibility period than allowed under OSM's interpretation of SMCRA 515(b)(20). OSM proposed a policy in 1993 to allow State regulatory program amendments which would specify that areas reclaimed following the removal of siltation structures and associated diversions and access roads are not subject to a revegetation responsibility period (58 FR 48333). This allows States to elect to exclude these specific areas from the ten-year responsibility period in order to process bond releases on logical increments or permit areas as a whole. Sedimentation ponds and associated diversions or other siltation structures which are prohibited from being removed until two years after the last augmented seeding, fertilizing, irrigation, or other work need not extend the responsibility period or be divided out to have a separate responsibility period. The policy was adopted on May 29, 1996 (61 FR 26792, 26796).

Montana has revised its proposed statutory language to be consistent with this OSM policy and SMCRA. Proposed MCA 82-4-235(3)(a) now reads:

(3)(a) Vegetative cover of water management facilities and other support facilities composing no more than 10% of the area for which bond release is sought is not subject to the 10-year responsibility period. Water management facilities and other support facilities include sedimentation ponds, diversions, other water management structures, soils stockpiles, and access roads.

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

If you submit written comments, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any 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 cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than those listed above (see ADDRESSES) will be included in the docket for this rulemaking and considered.

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 in the electronic docket for this rulemaking at http://www.regulations.gov. 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.

IV. Procedural Determinations

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).

Other Laws and Executive Orders Affecting Rulemaking

When a State submits a program amendment to OSM for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

List of Subjects in 30 CFR Part 926

• Intergovernmental relations
• Surface mining
• Underground mining