[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:
    <bullet> 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.
    <bullet> 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: <a href="/cdn-cgi/l/email-protection#90faf6fcf5f9e3f3f8fdf1fed0ffe3fde2f5bef7ffe6"><span class="__cf_email__" data-cfemail="4a202c262f23392922272b240a253927382f642d253c">[email protected]</span></a>.
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: <a href="/cdn-cgi/l/email-protection#244a414c4556564d4a43504b4a6449500a434b52"><span class="__cf_email__" data-cfemail="caa4afa2abb8b8a3a4adbea5a48aa7bee4ada5bc">[email protected]</span></a>.


[[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


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