Montana Regulatory Program, 10507-10512 [2013-03065]
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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
abuse tests on such covers, is
considered inaccessible to a child,
unless the product or part of the
product, in one dimension, is smaller
than 5 centimeters. However, vinyl (or
other plasticized material) covered
mattresses/sleep surfaces that contain
phthalates that are designed or intended
by the manufacturer to facilitate sleep of
children age 3 and younger, are
considered accessible and would not be
considered inaccessible through the use
of fabric coverings, including sheets and
mattress pads.
(j) The intentional disassembly or
destruction of products by children
older than age 8 years, by means or
knowledge not generally available to
younger children, including use of tools,
will not be considered in evaluating
products for accessibility of phthalatecontaining components.
Dated: February 11, 2013.
Todd A. Stevenson,
Secretary, Consumer Product Safety
Commission.
[FR Doc. 2013–03400 Filed 2–13–13; 8:45 am]
BILLING CODE 6335–01–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 926
Montana Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule.
AGENCY:
We are issuing a final
decision on an amendment to the
Montana regulatory program (the
Montana program) under the Surface
Mining Control and Reclamation Act of
1977 (SMCRA or the Act). We are not
approving the amendment. Montana
proposes changes to the Montana Strip
and Underground Mine Reclamation
Act (MSUMRA) that differentiate
between coal beneficiation and coal
preparation plants. Montana revised its
program to clarify ambiguities and
improve operational efficiency.
DATES: Effective Date: February 14,
2013.
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SUMMARY:
FOR FURTHER INFORMATION CONTACT:
Jeffrey Fleischman, Casper Field Office
Director, Telephone: (307) 261–6550,
Internet address:
jfleischman@OSMRE.gov.
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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
[SATS No. MT–032–FOR; Docket ID No.
OSM–2011–0011]
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and
Enforcement’s (OSMRE’s) Findings
IV. Summary and Disposition of Comments
V. OSMRE’s Decision
VI. Procedural Determinations
By letter dated June 7, 2011, Montana
sent us a proposed amendment to its
program (SATS number: MT–032–FOR,
Administrative Record Docket ID No.
OSM–2011–0011) under SMCRA (30
U.S.C. 1201 et seq.). Montana submitted
the amendment to include changes
made to the MSUMRA as a result of the
Montana Legislature’s 2011 passage of a
Senate Bill (SB 297) relating to coal
beneficiation. Montana sent the
amendment to include changes made at
its own initiative.
We announced receipt of the
proposed amendment in the October 17,
2011, Federal Register (76 FR 64045). In
the same document, we opened the
public comment period and provided an
opportunity for a public hearing or
meeting on the amendment’s adequacy
(Administrative Record No. MT–29–11;
Administrative Record Document ID No.
OSM–2011–0011–0001). We did not
hold a public hearing or meeting
because no one requested one. The
public comment period ended on
November 16, 2011. We received four
public comments and four Federal
agency comments (discussed under ‘‘IV.
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Summary and Disposition of
Comments’’).
During our review of Montana’s
submittal and the comments received,
we identified concerns with the
amendment proposal including its
newly proposed statutory definition of
‘‘Coal beneficiation plant’’ at Montana
Code Annotated (MCA) Section 82–4–
203(9), as well as proposed revisions to
its currently approved statutory
definitions of ‘‘Coal preparation plant’’
at MCA Section 82–4–203(11);
‘‘Operation’’ at MCA Section 82–4–
203(34); ‘‘Operator’’ at MCA Section 82–
4–203(35); ‘‘Strip mining’’ at MCA
Section 82–4–203(48) (b); and
‘‘Underground mining’’ at MCA Section
82–4–203(52). We notified Montana of
these concerns by letter dated February
14, 2012 (Administrative Record No.
MT–29–15; Administrative Record
Document ID No. OSM–2011–0011–
0011).
We delayed final rulemaking to afford
Montana the opportunity to submit new
material to address the deficiencies.
Montana responded in a letter dated
March 14, 2012, that all of the proposed
changes are legislative amendments to
the MSUMRA and because they are
changes in statute and not rule, the
Montana Department of Environmental
Quality (DEQ) has no authority to
amend them (Administrative Record No.
MT–29–16; Administrative Record
Document ID No. OSM–2011–0011–
0012). As a result, Montana stated that
it will not be submitting revised
amendments or draft proposed changes
in response to our February 14, 2012,
letter. Therefore, we are proceeding
with the final rule Federal Register
document.
III. OSMRE’s Findings
30 CFR 732.17(h)(10) requires that
State program amendments meet the
criteria for approval of State programs
set forth in 30 CFR 732.15, including
that the State’s laws and regulations are
in accordance with the provisions of the
Act and consistent with the
requirements of 30 CFR Part 700. In 30
CFR 730.5, OSMRE defines ‘‘consistent
with’’ and ‘‘in accordance with’’ to
mean (a) with regard to SMCRA, the
State laws and regulations are no less
stringent than, meet the minimum
requirements of, and include all
applicable provisions of the Act and (b)
with regard to the Federal regulations,
the State laws and regulations are no
less effective than the Federal
regulations in meeting the requirements
of SMCRA.
Following are the findings we made
concerning the amendment under
SMCRA and the Federal regulations at
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30 CFR 732.15 and 732.17. We are not
approving the amendment as described
below.
A. Minor Revisions to Montana’s
Statutes
Montana proposes minor wording and
editorial changes to its currently
approved statutory definitions of ‘‘Coal
conservation plan’’ at MCA Section 82–
4–203(9); ‘‘Imminent danger to the
health and safety of the public’’ at MCA
Section 82–4–203(25); ‘‘Minable coal’’ at
MCA Section 82–4–203(32);
‘‘Prospecting’’ at MCA Section 82–4–
203(41) (b); and ‘‘Residential’’ at MCA
Section 82–4–203(46).
These minor wording and editorial
changes do not impact the effectiveness
of the current statutes and do not
adversely affect other aspects of the
program. OSMRE was prepared to
approve them. However, in its March
14, 2012, letter Montana explained that
as a matter of state law OSMRE must
approve Chapter 408 as a whole before
any portion of it can take effect [SB 297
was published as Chapter 408, Laws of
2011 by the Secretary of State].
Specifically, Montana referenced
Section 2 of Chapter 408 which
provides:
[This act] is effective on the date that the
office of surface mining reclamation and
enforcement publishes notice in the Federal
Register that [this act] is approved pursuant
to 30 CFR 732.17.
Therefore, Montana advised that the
minor grammatical changes will not
become effective if OSMRE disapproves
any amendments made by Chapter 408.
During our review of Montana’s
submittal, we found that the proposed
amendments to the definitions of ‘‘coal
preparation plant,’’ ‘‘operation,’’
‘‘operator,’’ ‘‘strip mining,’’ and
‘‘underground mining’’ are less effective
than Federal regulations or less
stringent than SMCRA.
Based on Montana’s explanation
above and the ‘‘contingent voidness’’
clause in Section 2 of Chapter 408, we
are not approving the proposed minor
wording and editorial changes.
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B. Revisions to Montana’s Statutes That
Are Not the Same as the Corresponding
Provisions of SMCRA and the Federal
Regulations
1. Definition of ‘‘Coal Beneficiation
Plant’’ at Montana Code Annotated
(MCA) Section 82–4–203(9)
At its own initiative, Montana
proposes a new definition for ‘‘Coal
beneficiation plant’’ at Montana Code
Annotated (MCA) Section 82–4–203(9)
to mean ‘‘a commercial facility where
coal is subject to coal preparation that
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is not operated, owned, or controlled by
the mine operator of the mine providing
the coal.’’ While there are no direct
Federal counterpart provisions, the
definitions of ‘‘Surface coal mining
operations’’ at SMCRA Section
701(28)(A) and 30 CFR 700.5, and the
definitions of ‘‘Coal preparation’’ and
‘‘Coal preparation plant’’ at 30 CFR
701.5 all speak to the activities of
chemical or physical processing,
cleaning, concentrating, or other
processing or preparation of coal.
Similarly, Montana’s definitions of
‘‘Coal preparation’’ and ‘‘Coal
preparation plant’’ include coal
processing and preparation.
In its submittal, Montana expresses its
intent to exclude coal beneficiation
plants from permitting and regulation
under the MSUMRA. Montana’s
proposed definition of ‘‘Coal
beneficiation plant’’ does not
sufficiently distinguish between coal
preparation and coal beneficiation
plants for purposes of regulation under
SMCRA and the MSUMRA. Specifically,
the proposed definition references ‘‘a
commercial facility where coal is
subject to coal preparation.’’ However,
Montana’s currently approved
definition of ‘‘Coal preparation plant’’ at
MCA Section 82–4–203(11) also
references ‘‘a commercial facility where
coal is subject to coal preparation.’’
Montana does propose to revise its
definition of ‘‘Coal preparation plant’’
by specifying that coal preparation is
‘‘in connection with a strip mine or
underground coal mine.’’ Nevertheless,
Montana’s definitions for ‘‘Coal
beneficiation plant’’ and ‘‘Coal
preparation plant’’ both reference a
commercial facility where coal is
subject to coal preparation and as such
are largely synonymous.
In identifying the relationship
necessary for coal preparation to be ‘‘in
connection with’’ a coal mine, the
principle stated by OSMRE in a May 5,
1983, Federal Register (48 FR 20393)
preamble to the definition of ‘‘surface
coal mining operations’’ should be
referenced. In that preamble, OSMRE
stated its belief that the phrase in
Section 701(28)(A) of the Act and 30
CFR 700.5 ‘‘in connection with’’ should
be interpreted broadly. OSMRE also
cited examples of facilities that could be
considered to be ‘‘in connection with’’
a coal mine, including ‘‘facilities which
receive a significant portion of their coal
from a mine; facilities which receive a
significant portion of the output from a
mine; facilities which have an economic
relationship with a mine; or any other
type of integration that exists between a
facility and a mine.’’ Further, OSMRE
stated that a ‘‘facility need not be owned
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by a mine owner to be in connection
with a mine.’’
Therefore, ownership, control, or
operation by someone other than the
mine operator is not the only criterion
that determines whether a coal
beneficiation facility or coal preparation
plant is ‘‘in connection with’’ a coal
mine. OSMRE amended its regulations,
as published in the Federal Register
(November 22, 1988, 53 FR 47384), to
clarify the circumstances under which
coal preparation plants located outside
the permit area of a mine are subject to
the performance standards and
permitting requirements of SMCRA. The
associated preamble clarified that offsite coal preparation is subject to
regulation under SMCRA only when it
is conducted in connection with a coal
mine. No definition of the term ‘‘in
connection with’’ is included in the
rule. OSMRE stated in the preamble that
any attempt to further define this phrase
would unduly restrict the discretion
that the regulatory authority must have
in order to make valid decisions about
the applicability of SMCRA in
individual cases. In the same preamble,
OSMRE stated that the elements of (1)
geographic proximity and (2) functional
relationship are proper factors to
consider in evaluating whether an offsite coal preparation plant is subject to
regulation under SMCRA. As a result of
a subsequent U.S. District Court
decision, OSMRE published a notice in
the Federal Register (January 8, 1993,
58 FR 3466) to clarify that geographic
proximity may not be the decisive factor
in deciding whether to regulate an offsite coal preparation plant. To allow
proximity to be the decisive factor
would render ‘‘in connection with’’
equivalent to ‘‘at or near.’’ That is not
the Secretary’s intent. Instead, the
Secretary’s intent is to provide
regulatory authorities appropriate
guidance and discretion in deciding
which off-site coal processing plants to
regulate.
Since the term ‘‘in connection with’’
is not defined in the rule, OSMRE
clarified in the Federal Register
(November 22, 1988, 53 FR 47384)
several factors that should be
considered in order to determine
whether a coal preparation plant located
outside the permit area of a mine is
operated in connection with a coal
mine, thus constituting a surface coal
mining operation and subject to the
performance standards and permitting
requirements of SMCRA. Specifically, in
addition to geographic proximity and
functional relationship, other factors,
including economic and operational
relationship and point of ultimate use
are to be considered by regulatory
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authorities when evaluating whether
such facilities are subject to regulation
under SMCRA.
Accordingly, we find that Montana’s
proposed definition is too vague to
exclude coal beneficiation plants from
permitting and regulation under
SMCRA and the MSUMRA. In
particular, proposed MCA Section 82–
4–203(9) references ‘‘coal preparation’’
and, in addition to relying solely on
ownership and control considerations,
fails to ensure that coal beneficiation
plants have no functional or economic
relationship to the mine(s) providing the
coal and are the point of end use of the
coal. Consequently, we are not
approving Montana’s proposed
definition of ‘‘Coal beneficiation plant’’
as it is less stringent than SMCRA and
less effective than the Federal
regulations.
Moreover, we are not approving
Montana’s proposed statutory changes
that derive from its disapproved
definition of ‘‘Coal beneficiation plant’’
or their associated recodification.
Specifically, we are not approving
Montana’s proposed revisions to its
currently approved definition of ‘‘Coal
preparation plant’’ at MCA Section 82–
4–203(11); Montana’s proposed
revisions to its currently approved
definition of ‘‘Operation’’ at MCA
Section 82–4–203(34); Montana’s
proposed revision to its currently
approved definition of ‘‘Operator’’ at
MCA Section 82–4–203(35); Montana’s
proposed revisions to its currently
approved definition of ‘‘Strip mining’’ at
MCA Section 82–4–203(48)(b); and
Montana’s proposed revisions to its
currently approved definition of
‘‘Underground mining’’ at MCA Section
82–4–203(52).
IV. Summary and Disposition of
Comments
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Public Comments
We asked for public comments on the
original amendment proposal (76 FR
64045; Administrative Record Docket ID
No. OSM–2011–0011–0001). We
received four public comments.
Westmoreland Resources, Inc.
commented in a July 6, 2011, email
message that it supports the changes to
MSUMRA resulting from passage and
approval of SB 297, and encouraged
OSM to approve the program
amendment (Administrative Record
Document ID No. OSM–2011–0011–
0003).
We received a comment letter from a
private citizen on November 15, 2011
(Administrative Record Document ID
No. OSM–2011–0011–0010). The letter
contained both general and narrative
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comments in opposition to SB 297. The
commenter noted that the definition of
a coal beneficiation plant relates only to
the ownership of the ‘‘commercial
facility,’’ and opined that apparently the
authors of SB 297 and its proposed
amendments to the Montana program
thought that if a coal beneficiation plant
is owned by someone other than the
mine operator, it would have no effect
on anything for which the mine owner/
operator is responsible under MSUMRA
and SMCRA.
The commenter also stated that
Section 507(a) of SMCRA dealing with
application requirements makes it quite
plain that anyone having an interest in
property being permitted must be listed
whether ownership or lease, and
Section 508 indicates that there must be
a reclamation plan for those lands, and
that would include every activity,
including measures to be taken during
mining and reclamation to assure the
protection of surface and ground water
systems, rights of present users to water,
and several other things. As a result, the
commenter expresses a concern that if a
company can avoid reclaiming areas
where some sort of ‘‘beneficiation’’ may
have taken place and may now be
polluted in the soil or water, it can
dodge an expensive cleanup.
Next, the commenter asserted that SB
297 is trying to get coal gasification
exempted from control if it is in a mine
permit. The commenter stated that
SMCRA is quite plain that damaging the
hydrologic balance in a mine site is not
acceptable. The commenter also
referenced 30 CFR Part 828 which
concerns special environmental
protection performance, reclamation
and design standards for in situ
processing of coal and noted that water
is particularly important in that part.
The commenter went on to claim that
SB 297 could be a vehicle to allow most
of a mine permit surface to be sold for
a ‘‘beneficiation’’ plant that would
result in the removal of all bonding and
reclamation problems because the
operator would cease to own most of it.
The commenter continued that if one
attempted to operate on a mine permit,
there would be questions as to where
the waste from the beneficiation plant
would be stored or disposed of. The
commenter then questioned how the
effects of processed water on the
hydrologic balance in the area would
affect the mine operator’s compliance
with SMCRA, and asked what kind of
chemicals would be used in the
beneficiation process and where would
they be stored or disposed of? The
commenter concluded by asserting that
SB 297 is an attempt to avoid complying
with the reclamation laws, and the
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modifications to MSUMRA do not
comply with SMCRA.
Notwithstanding the ancillary
concerns expressed above regarding
hydrologic balance and waste storage
and disposal, we refer the commenter to
Finding No. III.B.1. for a detailed
explanation as to why we are not
approving Montana’s proposed
amendment.
We also received a comment letter
from the Montana Environmental
Information Center (MEIC) on November
16, 2011 (Administrative Record
Document ID No. OSM–2011–0011–
0008). The MEIC opposed Montana’s
proposed changes to the MSUMRA and
asserted that the myriad of proposed
changes would violate Federal law by
eliminating important regulation of coal
beneficiation plants, strip mines, and
underground mines. The MEIC further
stated that the Montana proposal
attempts to differentiate coal
preparation plants by ownership and
asserts that the definition of ‘‘surface
coal mining operations’’ in section
701(28) of SMCRA does not allow for
such arbitrary differentiation. The MEIC
continued that because the definition
does not differentiate operations based
on ownership, the proposal is clearly in
conflict with the Federal requirements
and should be rejected.
Next, the MEIC asserted that
Montana’s proposed change to the
definition of ‘‘operation’’ contains a
broad exclusion of at least three
different types of coal preparation
facilities, railroads, roads, and
equipment that would leave many
communities with no regulation of these
potentially dangerous activities. The
MEIC then stated that the definition
change clearly flies in the face of
SMCRA and should be rejected.
Finally, the MEIC contended that
Montana’s attempt to exclude all
beneficiation activities from regulation
through proposed changes to the
definitions of ‘‘operator,’’ ‘‘strip
mining,’’ and ‘‘underground mining’’ is
counter to the intent of SMCRA and the
definition of ‘‘surface coal mining
operations.’’ For the reasons stated
above, the MEIC urged OSMRE to reject
Montana’s proposal.
In response to the concerns expressed
above, we refer the MEIC to Finding No.
III.B.1. for a detailed explanation as to
why we are not approving Montana’s
proposed amendment.
Lastly, we received a comment letter
from the Northern Plains Resource
Council (NPRC) on November 16, 2011
(Administrative Record Document ID
No. OSM–2011–0011–0009). The NPRC
also opposed Montana’s proposed
changes to the MSUMRA and asserted
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that they eliminate important oversight
responsibilities of OSMRE in relation to
coal preparation, strip mining, and
underground mining and should be
rejected as they clearly violate the intent
of the Federal law. The NPRC continued
that the proposed amendment’s newlycreated definition of ‘‘coal beneficiation
plant’’ exempts these facilities from
regulation under the MSUMRA and
removes the Montana DEQ’s
jurisdictional authority to regulate them.
The NRPC went on to state that the
intent of SB 297 was to create a
regulatory distinction between a coal
preparation facility that is owned,
operated, or controlled by the mine
operator supplying the coal and a ‘‘coal
beneficiation plant’’ that has a potential
different owner, operator, or controller
which results in an arbitrary exclusion
under the law. The NPRC then
referenced the definition of ‘‘surface
coal mining operations’’ in section
701(28) of SMCRA and asserted that
because it does not make a distinction
between ownership, operation, or
control of any such activities being
connected to the mine operator, the
distinction made in the Montana
program would appear to be
inconsistent.
Next, the NPRC commented that the
proposed amendment attempts to
change the definition of ‘‘operation’’ so
that these facilities would no longer be
subject to regulation under the Montana
regulatory program, and would create a
far reaching exemption under law that
would leave significant gaps in
oversight for the development and
reclamation of such activities. The
NRPC then reiterated that such facilities
clearly fall under the definition of
‘‘surface coal mining operations’’ in
SMCRA and asserted that allowing this
exemption would be inconsistent with
Federal law.
The NRPC then cited the Federal
regulations at 30 CFR 785.21 to argue
that all coal preparation facilities,
whether within the mining permit area
or not, are subject to regulation under
SMCRA. Additionally, the NRPC
maintained that the Federal regulations
governing the development of in situ
processing and gasification clearly
indicate that these facilities are to be
regulated under the provisions of
SMCRA. The NRPC concluded by
strongly encouraging OSMRE to reject
the proposed amendment as it is in clear
violation with SMCRA and the Federal
regulations.
In response, we acknowledge the
concerns expressed above and refer the
NPRC to Finding No. III.B.1. for a
detailed explanation as to why we are
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not approving Montana’s proposed
amendment.
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 ID No.
MT–29–03). We received comments
from three Federal Agencies.
The Bureau of Land Management
(BLM) commented in a July 8, 2011
letter (Administrative Record Document
ID No. OSM–2011–0011–0005), the U.S
Geological Survey (USGS) commented
in a July 15, 2011 letter (Administrative
Record Document ID No. OSM–2011–
0011–0006), and the Mine Safety and
Health Administration (MSHA)
commented in a July 29, 2011 letter
(Administrative Record Document ID
No. OSM–2011–0011–0007).
The BLM commented that one of the
proposed changes to the MSUMRA
would differentiate a coal beneficiation
plant from a coal preparation plant by
way of ownership, control, or operations
by someone other than the mine
operator. The BLM continued that the
effect of the change would be that the
DEQ would no longer have regulatory
authority through MSUMRA over
facilities that meet the definition of
‘‘coal beneficiation plant’’ even though
it performs the same processes as a coal
preparation plant. The BLM then
referenced the definition of ‘‘Surface
Coal Mining Operations’’ at 30 CFR
700.5 and ‘‘the cleaning, concentrating,
or other processing or preparation of
coal.’’ The BLM also quoted § 701.11(a),
which requires ‘‘any person who
conducts surface coal mining operations
on non-Indian and non-Federal lands on
or after 8 months from the date of
approval of a State program or
implementation of a Federal program
shall have a permit issued pursuant to
the applicable State or Federal
program.’’ On this basis, the BLM stated
it appears that the operation of a coal
beneficiation plant or coal preparation
plant is to be regulated under SMCRA
and the Federal regulations at 30 CFR
Part 700. The BLM concluded by stating
that the proposed change to the
MSUMRA would render it less stringent
than SMCRA and should not be
allowed.
We agree with the BLM’s concerns
and refer it to Finding No. III.B.1. above
for a detailed explanation as to why we
are not approving Montana’s proposed
amendment.
The USGS commented that, as a nonregulatory agency, it does not have a
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standing position on the issue and could
not provide one.
The MSHA stated its concurrence
with the proposed revisions to the
MSMURA and has no further comment.
Environmental Protection Agency (EPA)
Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i),
OSMRE requested comments on the
amendment from EPA (Administrative
Record ID No. MT–29–03). EPA did not
respond to our request.
State Historic Preservation Officer
(SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are
required to request comments from the
SHPO and ACHP on amendments that
may have an effect on historic
properties. On June 29, 2011, we
requested comments on Wyoming’s
amendment (Administrative Record ID
No. MT–29–03). The SHPO responded
on July 5, 2011, and commented that
apparently the DEQ previously
exercised regulatory authority over coal
beneficiation and coal preparation
facilities prior to the proposed changes
(Administrative Record Document ID
No. OSM–2011–0011–0004). The SHPO
also explained that OSMRE’s
correspondence does not address
whether or not it otherwise has
regulatory authority under SMCRA or
the National Historic Preservation Act
for what would be termed coal
beneficiation under MSUMRA, and
noted that the proposed changes would
seem to constrict the actions or
undertakings under which SMCRA
would/should otherwise apply. The
SHPO then stated that 36 CFR Part 800
does not distinguish regulatory
authority or responsibility on the basis
of ownership, but by permitting,
approval, license, funding or indirect
jurisdiction by a Federal agency. The
SHPO also commented that if, but for
the proposed changes, OSMRE has
regulatory responsibility under SMCRA,
then it would seem the proposed
amendment would pertain to cultural
resources insofar as a section 106 type
review to 36 CFR Part 800 standards
would be foregone. The SHPO
concluded by stating that it is not in a
position to determine that responsibility
as § 800.3(a) states the Federal agency
official shall determine whether an
action is an undertaking using the
criteria of § 800.16(y).
In response, we acknowledge the
aforementioned concerns and refer the
SHPO to Finding No. III.B.1. above for
a detailed explanation as to why we are
not approving Montana’s proposed
amendment.
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V. OSMRE’s Decision
Based on the above findings, we are
not approving Montana’s June 7, 2011,
amendment.
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 the State’s program to
demonstrate 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 OSM 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 OSM. 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 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.
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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
promulgated by a specific State, not by
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OSM. Under sections 503 and 505 of
SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR
730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory
programs and program amendments
submitted by the States must be based
solely on a determination of whether the
submittal is consistent with SMCRA and
its implementing Federal regulations
and whether the other requirements of
30 CFR Parts 730, 731, and 732 have
been met.
Executive Order 13132—Federalism
This rule does not have Federalism
implications. SMCRA delineates the
roles of the Federal and State
governments with regard to the
regulation of surface coal mining and
reclamation operations. One of the
purposes of SMCRA is to ‘‘establish a
nationwide program to protect society
and the environment from the adverse
effects of surface coal mining
operations.’’ Section 503(a)(1) of
SMCRA requires that State laws
regulating surface coal mining and
reclamation operations be ‘‘in
accordance with’’ the requirements of
SMCRA, and section 503(a)(7) requires
that State programs contain rules and
regulations ‘‘consistent with’’
regulations issued by the Secretary
pursuant to SMCRA.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
In accordance with Executive Order
13175, we have evaluated the potential
effects of this rule on Federally
recognized Indian Tribes and have
determined that the rule does not have
substantial direct effects on 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
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
10511
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 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.
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Federal Register / Vol. 78, No. 31 / Thursday, February 14, 2013 / Rules and Regulations
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 26, 2012.
Allen D. Klein,
Director, Western Region.
Editorial Note: This document was
received at the Office of the Federal Register
on February 6, 2013.
For the reasons set out in the
preamble, 30 CFR part 926 is amended
as set forth below:
PART 926—MONTANA
1. The authority citation for part 926
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
■
2. Add § 926.12 to read as follows:
§ 926.12 State program provisions and
amendments not approved.
(a) The amendment submitted by
letter dated June 7, 2011, Docket ID No.
OSM–2011–0011, which proposed
changes to the Montana approved
program as a result of the Montana
Legislature’s 2011 passage of a Senate
Bill (SB 297) relating to coal
beneficiation is not approved.
(b) [Reserved]
[FR Doc. 2013–03065 Filed 2–13–13; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 950
[SATS No. WY–040–FOR; Docket ID OSM–
2011–0004]
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Wyoming Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment with certain exceptions.
AGENCY:
We are issuing a final
decision on an amendment to the
SUMMARY:
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16:39 Feb 13, 2013
Jkt 229001
Wyoming regulatory program (the
‘‘Wyoming program’’) under the Surface
Mining Control and Reclamation Act of
1977 (‘‘SMCRA’’ or ‘‘the Act’’). Our
decision approves in part and
disapproves in part the amendment.
Wyoming proposes revisions and
additions to rules concerning noncoal
mine waste, valid existing rights, and
individual civil penalties. Wyoming
revised its program to be consistent with
the corresponding Federal regulations
and SMCRA, clarify ambiguities, and
improve operational efficiency.
DATES: Effective Date: February 14,
2013.
FOR FURTHER INFORMATION CONTACT:
Jeffrey W. Fleischman, Telephone:
307.261.6550, Email address:
jfleischman@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. OSMRE’s Findings
IV. Summary and Disposition of Comments
V. OSMRE’s Decision
VI. Procedural Determinations
I. Background on the Wyoming
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 Wyoming
program on November 26, 1980. You
can find background information on the
Wyoming program, including the
Secretary’s findings, the disposition of
comments, and the conditions of
approval of the Wyoming program in
the November 26, 1980, Federal
Register (45 FR 78637). You can also
find later actions concerning Wyoming’s
program and program amendments at 30
CFR 950.12, 950.15, 950.16, and 950.20.
II. Submission of the Proposed
Amendment
By letter dated April 28, 2011,
Wyoming sent us a proposed
amendment to its approved regulatory
program (SATS number: WY–040–FOR,
Administrative Record Docket ID No.
OSM–2011–0004) under SMCRA (30
U.S.C. 1201 et seq.). Wyoming
PO 00000
Frm 00014
Fmt 4700
Sfmt 4700
submitted the amendment partly in
response to a February 13, 2008, letter
that we sent to Wyoming notifying the
State that the Office of Surface Mining
Reclamation and Enforcement’s
(OSMRE) December 17, 1999, Valid
Existing Rights (VER) rule changes had
been upheld in court and the State
should respond to our April 2, 2001,
letter sent in accordance with 30 CFR
732.17(c) (‘‘732 letter’’). That letter
required Wyoming to submit
amendments to ensure its program
remains consistent with the Federal
program. This amendment package is
intended to address all required rule
changes pertaining to VER. Wyoming
also submitted the proposed
amendment to address required program
amendments at 30 CFR 950.16(r), (s),
and (t), respectively, and deficiencies
that we identified in a November 7,
1988, 732 letter. These included
changes to Wyoming’s rules for noncoal
mine waste and individual civil
penalties.
We announced receipt of the
proposed amendment in the June 21,
2011, Federal Register (76 FR 36040). 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 Document ID
No. OSM–2011–0004–0001). We did not
hold a public hearing or meeting
because no one requested one. The
public comment period ended on July
21, 2011. We received comments from
three Federal agencies (discussed under
‘‘IV. Summary and Disposition of
Comments’’).
During our review of the amendment,
we identified concerns regarding
Wyoming’s proposed rule changes in
response to the April 2, 2001, 732 letter
including revisions to its definition of
‘‘Valid existing rights’’ at Chapter 1,
Section 2(fl); its newly-proposed
‘‘Needed for and adjacent standard’’
definition at Chapter 1, Section
2(fl)(ii)(B)(IV); its newly-proposed VER
standards for roads rule at Chapter 1,
Section 2(fl)(iii); its procedures for
public road waivers at Chapter 12,
Section 1(a)(v)(D); its VER submission
requirements and procedure rules at
Chapter 12, Section 1(a)(vii)(A)(I) and
(IV); its requirements for initial review
of VER requests at Chapter 12, Section
1(a)(vii)(B)(I) and (IV); its VER public
notice and comment requirements at
Chapter 12, Section 1(a)(vii)(C)(I)(3.),
(C)(II)(2.), and (C)(III); its rules at
Chapter 12, Section 1(a)(vii)(D)(I) and
(III) concerning how a VER decision will
be made; its newly-proposed
requirements at Chapter 12, Section
1(a)(vii)(E) providing for administrative
E:\FR\FM\14FER1.SGM
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]]>Agencies
[Federal Register Volume 78, Number 31 (Thursday, February 14, 2013)]
[Rules and Regulations]
[Pages 10507-10512]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-03065]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-032-FOR; Docket ID No. OSM-2011-0011]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: We are issuing a final decision on an amendment to the Montana
regulatory program (the Montana program) under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA or the Act). We are not
approving the amendment. Montana proposes changes to the Montana Strip
and Underground Mine Reclamation Act (MSUMRA) that differentiate
between coal beneficiation and coal preparation plants. Montana revised
its program to clarify ambiguities and improve operational efficiency.
DATES: Effective Date: February 14, 2013.
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. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's
(OSMRE'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 June 7, 2011, Montana sent us a proposed amendment
to its program (SATS number: MT-032-FOR, Administrative Record Docket
ID No. OSM-2011-0011) under SMCRA (30 U.S.C. 1201 et seq.). Montana
submitted the amendment to include changes made to the MSUMRA as a
result of the Montana Legislature's 2011 passage of a Senate Bill (SB
297) relating to coal beneficiation. Montana sent the amendment to
include changes made at its own initiative.
We announced receipt of the proposed amendment in the October 17,
2011, Federal Register (76 FR 64045). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy (Administrative Record
No. MT-29-11; Administrative Record Document ID No. OSM-2011-0011-
0001). We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on November 16, 2011. We
received four public comments and four Federal agency comments
(discussed under ``IV. Summary and Disposition of Comments'').
During our review of Montana's submittal and the comments received,
we identified concerns with the amendment proposal including its newly
proposed statutory definition of ``Coal beneficiation plant'' at
Montana Code Annotated (MCA) Section 82-4-203(9), as well as proposed
revisions to its currently approved statutory definitions of ``Coal
preparation plant'' at MCA Section 82-4-203(11); ``Operation'' at MCA
Section 82-4-203(34); ``Operator'' at MCA Section 82-4-203(35); ``Strip
mining'' at MCA Section 82-4-203(48) (b); and ``Underground mining'' at
MCA Section 82-4-203(52). We notified Montana of these concerns by
letter dated February 14, 2012 (Administrative Record No. MT-29-15;
Administrative Record Document ID No. OSM-2011-0011-0011).
We delayed final rulemaking to afford Montana the opportunity to
submit new material to address the deficiencies. Montana responded in a
letter dated March 14, 2012, that all of the proposed changes are
legislative amendments to the MSUMRA and because they are changes in
statute and not rule, the Montana Department of Environmental Quality
(DEQ) has no authority to amend them (Administrative Record No. MT-29-
16; Administrative Record Document ID No. OSM-2011-0011-0012). As a
result, Montana stated that it will not be submitting revised
amendments or draft proposed changes in response to our February 14,
2012, letter. Therefore, we are proceeding with the final rule Federal
Register document.
III. OSMRE's Findings
30 CFR 732.17(h)(10) requires that State program amendments meet
the criteria for approval of State programs set forth in 30 CFR 732.15,
including that the State's laws and regulations are in accordance with
the provisions of the Act and consistent with the requirements of 30
CFR Part 700. In 30 CFR 730.5, OSMRE defines ``consistent with'' and
``in accordance with'' to mean (a) with regard to SMCRA, the State laws
and regulations are no less stringent than, meet the minimum
requirements of, and include all applicable provisions of the Act and
(b) with regard to the Federal regulations, the State laws and
regulations are no less effective than the Federal regulations in
meeting the requirements of SMCRA.
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at
[[Page 10508]]
30 CFR 732.15 and 732.17. We are not approving the amendment as
described below.
A. Minor Revisions to Montana's Statutes
Montana proposes minor wording and editorial changes to its
currently approved statutory definitions of ``Coal conservation plan''
at MCA Section 82-4-203(9); ``Imminent danger to the health and safety
of the public'' at MCA Section 82-4-203(25); ``Minable coal'' at MCA
Section 82-4-203(32); ``Prospecting'' at MCA Section 82-4-203(41) (b);
and ``Residential'' at MCA Section 82-4-203(46).
These minor wording and editorial changes do not impact the
effectiveness of the current statutes and do not adversely affect other
aspects of the program. OSMRE was prepared to approve them. However, in
its March 14, 2012, letter Montana explained that as a matter of state
law OSMRE must approve Chapter 408 as a whole before any portion of it
can take effect [SB 297 was published as Chapter 408, Laws of 2011 by
the Secretary of State].
Specifically, Montana referenced Section 2 of Chapter 408 which
provides:
[This act] is effective on the date that the office of surface
mining reclamation and enforcement publishes notice in the Federal
Register that [this act] is approved pursuant to 30 CFR 732.17.
Therefore, Montana advised that the minor grammatical changes will not
become effective if OSMRE disapproves any amendments made by Chapter
408. During our review of Montana's submittal, we found that the
proposed amendments to the definitions of ``coal preparation plant,''
``operation,'' ``operator,'' ``strip mining,'' and ``underground
mining'' are less effective than Federal regulations or less stringent
than SMCRA.
Based on Montana's explanation above and the ``contingent
voidness'' clause in Section 2 of Chapter 408, we are not approving the
proposed minor wording and editorial changes.
B. Revisions to Montana's Statutes That Are Not the Same as the
Corresponding Provisions of SMCRA and the Federal Regulations
1. Definition of ``Coal Beneficiation Plant'' at Montana Code Annotated
(MCA) Section 82-4-203(9)
At its own initiative, Montana proposes a new definition for ``Coal
beneficiation plant'' at Montana Code Annotated (MCA) Section 82-4-
203(9) to mean ``a commercial facility where coal is subject to coal
preparation that is not operated, owned, or controlled by the mine
operator of the mine providing the coal.'' While there are no direct
Federal counterpart provisions, the definitions of ``Surface coal
mining operations'' at SMCRA Section 701(28)(A) and 30 CFR 700.5, and
the definitions of ``Coal preparation'' and ``Coal preparation plant''
at 30 CFR 701.5 all speak to the activities of chemical or physical
processing, cleaning, concentrating, or other processing or preparation
of coal. Similarly, Montana's definitions of ``Coal preparation'' and
``Coal preparation plant'' include coal processing and preparation.
In its submittal, Montana expresses its intent to exclude coal
beneficiation plants from permitting and regulation under the MSUMRA.
Montana's proposed definition of ``Coal beneficiation plant'' does not
sufficiently distinguish between coal preparation and coal
beneficiation plants for purposes of regulation under SMCRA and the
MSUMRA. Specifically, the proposed definition references ``a commercial
facility where coal is subject to coal preparation.'' However,
Montana's currently approved definition of ``Coal preparation plant''
at MCA Section 82-4-203(11) also references ``a commercial facility
where coal is subject to coal preparation.'' Montana does propose to
revise its definition of ``Coal preparation plant'' by specifying that
coal preparation is ``in connection with a strip mine or underground
coal mine.'' Nevertheless, Montana's definitions for ``Coal
beneficiation plant'' and ``Coal preparation plant'' both reference a
commercial facility where coal is subject to coal preparation and as
such are largely synonymous.
In identifying the relationship necessary for coal preparation to
be ``in connection with'' a coal mine, the principle stated by OSMRE in
a May 5, 1983, Federal Register (48 FR 20393) preamble to the
definition of ``surface coal mining operations'' should be referenced.
In that preamble, OSMRE stated its belief that the phrase in Section
701(28)(A) of the Act and 30 CFR 700.5 ``in connection with'' should be
interpreted broadly. OSMRE also cited examples of facilities that could
be considered to be ``in connection with'' a coal mine, including
``facilities which receive a significant portion of their coal from a
mine; facilities which receive a significant portion of the output from
a mine; facilities which have an economic relationship with a mine; or
any other type of integration that exists between a facility and a
mine.'' Further, OSMRE stated that a ``facility need not be owned by a
mine owner to be in connection with a mine.''
Therefore, ownership, control, or operation by someone other than
the mine operator is not the only criterion that determines whether a
coal beneficiation facility or coal preparation plant is ``in
connection with'' a coal mine. OSMRE amended its regulations, as
published in the Federal Register (November 22, 1988, 53 FR 47384), to
clarify the circumstances under which coal preparation plants located
outside the permit area of a mine are subject to the performance
standards and permitting requirements of SMCRA. The associated preamble
clarified that off-site coal preparation is subject to regulation under
SMCRA only when it is conducted in connection with a coal mine. No
definition of the term ``in connection with'' is included in the rule.
OSMRE stated in the preamble that any attempt to further define this
phrase would unduly restrict the discretion that the regulatory
authority must have in order to make valid decisions about the
applicability of SMCRA in individual cases. In the same preamble, OSMRE
stated that the elements of (1) geographic proximity and (2) functional
relationship are proper factors to consider in evaluating whether an
off-site coal preparation plant is subject to regulation under SMCRA.
As a result of a subsequent U.S. District Court decision, OSMRE
published a notice in the Federal Register (January 8, 1993, 58 FR
3466) to clarify that geographic proximity may not be the decisive
factor in deciding whether to regulate an off-site coal preparation
plant. To allow proximity to be the decisive factor would render ``in
connection with'' equivalent to ``at or near.'' That is not the
Secretary's intent. Instead, the Secretary's intent is to provide
regulatory authorities appropriate guidance and discretion in deciding
which off-site coal processing plants to regulate.
Since the term ``in connection with'' is not defined in the rule,
OSMRE clarified in the Federal Register (November 22, 1988, 53 FR
47384) several factors that should be considered in order to determine
whether a coal preparation plant located outside the permit area of a
mine is operated in connection with a coal mine, thus constituting a
surface coal mining operation and subject to the performance standards
and permitting requirements of SMCRA. Specifically, in addition to
geographic proximity and functional relationship, other factors,
including economic and operational relationship and point of ultimate
use are to be considered by regulatory
[[Page 10509]]
authorities when evaluating whether such facilities are subject to
regulation under SMCRA.
Accordingly, we find that Montana's proposed definition is too
vague to exclude coal beneficiation plants from permitting and
regulation under SMCRA and the MSUMRA. In particular, proposed MCA
Section 82-4-203(9) references ``coal preparation'' and, in addition to
relying solely on ownership and control considerations, fails to ensure
that coal beneficiation plants have no functional or economic
relationship to the mine(s) providing the coal and are the point of end
use of the coal. Consequently, we are not approving Montana's proposed
definition of ``Coal beneficiation plant'' as it is less stringent than
SMCRA and less effective than the Federal regulations.
Moreover, we are not approving Montana's proposed statutory changes
that derive from its disapproved definition of ``Coal beneficiation
plant'' or their associated recodification. Specifically, we are not
approving Montana's proposed revisions to its currently approved
definition of ``Coal preparation plant'' at MCA Section 82-4-203(11);
Montana's proposed revisions to its currently approved definition of
``Operation'' at MCA Section 82-4-203(34); Montana's proposed revision
to its currently approved definition of ``Operator'' at MCA Section 82-
4-203(35); Montana's proposed revisions to its currently approved
definition of ``Strip mining'' at MCA Section 82-4-203(48)(b); and
Montana's proposed revisions to its currently approved definition of
``Underground mining'' at MCA Section 82-4-203(52).
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the original amendment proposal (76
FR 64045; Administrative Record Docket ID No. OSM-2011-0011-0001). We
received four public comments.
Westmoreland Resources, Inc. commented in a July 6, 2011, email
message that it supports the changes to MSUMRA resulting from passage
and approval of SB 297, and encouraged OSM to approve the program
amendment (Administrative Record Document ID No. OSM-2011-0011-0003).
We received a comment letter from a private citizen on November 15,
2011 (Administrative Record Document ID No. OSM-2011-0011-0010). The
letter contained both general and narrative comments in opposition to
SB 297. The commenter noted that the definition of a coal beneficiation
plant relates only to the ownership of the ``commercial facility,'' and
opined that apparently the authors of SB 297 and its proposed
amendments to the Montana program thought that if a coal beneficiation
plant is owned by someone other than the mine operator, it would have
no effect on anything for which the mine owner/operator is responsible
under MSUMRA and SMCRA.
The commenter also stated that Section 507(a) of SMCRA dealing with
application requirements makes it quite plain that anyone having an
interest in property being permitted must be listed whether ownership
or lease, and Section 508 indicates that there must be a reclamation
plan for those lands, and that would include every activity, including
measures to be taken during mining and reclamation to assure the
protection of surface and ground water systems, rights of present users
to water, and several other things. As a result, the commenter
expresses a concern that if a company can avoid reclaiming areas where
some sort of ``beneficiation'' may have taken place and may now be
polluted in the soil or water, it can dodge an expensive cleanup.
Next, the commenter asserted that SB 297 is trying to get coal
gasification exempted from control if it is in a mine permit. The
commenter stated that SMCRA is quite plain that damaging the hydrologic
balance in a mine site is not acceptable. The commenter also referenced
30 CFR Part 828 which concerns special environmental protection
performance, reclamation and design standards for in situ processing of
coal and noted that water is particularly important in that part.
The commenter went on to claim that SB 297 could be a vehicle to
allow most of a mine permit surface to be sold for a ``beneficiation''
plant that would result in the removal of all bonding and reclamation
problems because the operator would cease to own most of it. The
commenter continued that if one attempted to operate on a mine permit,
there would be questions as to where the waste from the beneficiation
plant would be stored or disposed of. The commenter then questioned how
the effects of processed water on the hydrologic balance in the area
would affect the mine operator's compliance with SMCRA, and asked what
kind of chemicals would be used in the beneficiation process and where
would they be stored or disposed of? The commenter concluded by
asserting that SB 297 is an attempt to avoid complying with the
reclamation laws, and the modifications to MSUMRA do not comply with
SMCRA.
Notwithstanding the ancillary concerns expressed above regarding
hydrologic balance and waste storage and disposal, we refer the
commenter to Finding No. III.B.1. for a detailed explanation as to why
we are not approving Montana's proposed amendment.
We also received a comment letter from the Montana Environmental
Information Center (MEIC) on November 16, 2011 (Administrative Record
Document ID No. OSM-2011-0011-0008). The MEIC opposed Montana's
proposed changes to the MSUMRA and asserted that the myriad of proposed
changes would violate Federal law by eliminating important regulation
of coal beneficiation plants, strip mines, and underground mines. The
MEIC further stated that the Montana proposal attempts to differentiate
coal preparation plants by ownership and asserts that the definition of
``surface coal mining operations'' in section 701(28) of SMCRA does not
allow for such arbitrary differentiation. The MEIC continued that
because the definition does not differentiate operations based on
ownership, the proposal is clearly in conflict with the Federal
requirements and should be rejected.
Next, the MEIC asserted that Montana's proposed change to the
definition of ``operation'' contains a broad exclusion of at least
three different types of coal preparation facilities, railroads, roads,
and equipment that would leave many communities with no regulation of
these potentially dangerous activities. The MEIC then stated that the
definition change clearly flies in the face of SMCRA and should be
rejected.
Finally, the MEIC contended that Montana's attempt to exclude all
beneficiation activities from regulation through proposed changes to
the definitions of ``operator,'' ``strip mining,'' and ``underground
mining'' is counter to the intent of SMCRA and the definition of
``surface coal mining operations.'' For the reasons stated above, the
MEIC urged OSMRE to reject Montana's proposal.
In response to the concerns expressed above, we refer the MEIC to
Finding No. III.B.1. for a detailed explanation as to why we are not
approving Montana's proposed amendment.
Lastly, we received a comment letter from the Northern Plains
Resource Council (NPRC) on November 16, 2011 (Administrative Record
Document ID No. OSM-2011-0011-0009). The NPRC also opposed Montana's
proposed changes to the MSUMRA and asserted
[[Page 10510]]
that they eliminate important oversight responsibilities of OSMRE in
relation to coal preparation, strip mining, and underground mining and
should be rejected as they clearly violate the intent of the Federal
law. The NPRC continued that the proposed amendment's newly-created
definition of ``coal beneficiation plant'' exempts these facilities
from regulation under the MSUMRA and removes the Montana DEQ's
jurisdictional authority to regulate them. The NRPC went on to state
that the intent of SB 297 was to create a regulatory distinction
between a coal preparation facility that is owned, operated, or
controlled by the mine operator supplying the coal and a ``coal
beneficiation plant'' that has a potential different owner, operator,
or controller which results in an arbitrary exclusion under the law.
The NPRC then referenced the definition of ``surface coal mining
operations'' in section 701(28) of SMCRA and asserted that because it
does not make a distinction between ownership, operation, or control of
any such activities being connected to the mine operator, the
distinction made in the Montana program would appear to be
inconsistent.
Next, the NPRC commented that the proposed amendment attempts to
change the definition of ``operation'' so that these facilities would
no longer be subject to regulation under the Montana regulatory
program, and would create a far reaching exemption under law that would
leave significant gaps in oversight for the development and reclamation
of such activities. The NRPC then reiterated that such facilities
clearly fall under the definition of ``surface coal mining operations''
in SMCRA and asserted that allowing this exemption would be
inconsistent with Federal law.
The NRPC then cited the Federal regulations at 30 CFR 785.21 to
argue that all coal preparation facilities, whether within the mining
permit area or not, are subject to regulation under SMCRA.
Additionally, the NRPC maintained that the Federal regulations
governing the development of in situ processing and gasification
clearly indicate that these facilities are to be regulated under the
provisions of SMCRA. The NRPC concluded by strongly encouraging OSMRE
to reject the proposed amendment as it is in clear violation with SMCRA
and the Federal regulations.
In response, we acknowledge the concerns expressed above and refer
the NPRC to Finding No. III.B.1. for a detailed explanation as to why
we are not approving Montana's proposed amendment.
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 ID No. MT-29-03). We received comments from three Federal
Agencies.
The Bureau of Land Management (BLM) commented in a July 8, 2011
letter (Administrative Record Document ID No. OSM-2011-0011-0005), the
U.S Geological Survey (USGS) commented in a July 15, 2011 letter
(Administrative Record Document ID No. OSM-2011-0011-0006), and the
Mine Safety and Health Administration (MSHA) commented in a July 29,
2011 letter (Administrative Record Document ID No. OSM-2011-0011-0007).
The BLM commented that one of the proposed changes to the MSUMRA
would differentiate a coal beneficiation plant from a coal preparation
plant by way of ownership, control, or operations by someone other than
the mine operator. The BLM continued that the effect of the change
would be that the DEQ would no longer have regulatory authority through
MSUMRA over facilities that meet the definition of ``coal beneficiation
plant'' even though it performs the same processes as a coal
preparation plant. The BLM then referenced the definition of ``Surface
Coal Mining Operations'' at 30 CFR 700.5 and ``the cleaning,
concentrating, or other processing or preparation of coal.'' The BLM
also quoted Sec. 701.11(a), which requires ``any person who conducts
surface coal mining operations on non-Indian and non-Federal lands on
or after 8 months from the date of approval of a State program or
implementation of a Federal program shall have a permit issued pursuant
to the applicable State or Federal program.'' On this basis, the BLM
stated it appears that the operation of a coal beneficiation plant or
coal preparation plant is to be regulated under SMCRA and the Federal
regulations at 30 CFR Part 700. The BLM concluded by stating that the
proposed change to the MSUMRA would render it less stringent than SMCRA
and should not be allowed.
We agree with the BLM's concerns and refer it to Finding No.
III.B.1. above for a detailed explanation as to why we are not
approving Montana's proposed amendment.
The USGS commented that, as a non-regulatory agency, it does not
have a standing position on the issue and could not provide one.
The MSHA stated its concurrence with the proposed revisions to the
MSMURA and has no further comment.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i), OSMRE requested comments on the
amendment from EPA (Administrative Record ID No. MT-29-03). EPA did not
respond to our request.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On June 29, 2011, we requested comments on Wyoming's
amendment (Administrative Record ID No. MT-29-03). The SHPO responded
on July 5, 2011, and commented that apparently the DEQ previously
exercised regulatory authority over coal beneficiation and coal
preparation facilities prior to the proposed changes (Administrative
Record Document ID No. OSM-2011-0011-0004). The SHPO also explained
that OSMRE's correspondence does not address whether or not it
otherwise has regulatory authority under SMCRA or the National Historic
Preservation Act for what would be termed coal beneficiation under
MSUMRA, and noted that the proposed changes would seem to constrict the
actions or undertakings under which SMCRA would/should otherwise apply.
The SHPO then stated that 36 CFR Part 800 does not distinguish
regulatory authority or responsibility on the basis of ownership, but
by permitting, approval, license, funding or indirect jurisdiction by a
Federal agency. The SHPO also commented that if, but for the proposed
changes, OSMRE has regulatory responsibility under SMCRA, then it would
seem the proposed amendment would pertain to cultural resources insofar
as a section 106 type review to 36 CFR Part 800 standards would be
foregone. The SHPO concluded by stating that it is not in a position to
determine that responsibility as Sec. 800.3(a) states the Federal
agency official shall determine whether an action is an undertaking
using the criteria of Sec. 800.16(y).
In response, we acknowledge the aforementioned concerns and refer
the SHPO to Finding No. III.B.1. above for a detailed explanation as to
why we are not approving Montana's proposed amendment.
[[Page 10511]]
V. OSMRE's Decision
Based on the above findings, we are not approving Montana's June 7,
2011, amendment.
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 the State's program to demonstrate 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 OSM 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 OSM. 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 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 promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on 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 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.
[[Page 10512]]
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 26, 2012.
Allen D. Klein,
Director, Western Region.
Editorial Note: This document was received at the Office of the
Federal Register on February 6, 2013.
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. Add Sec. 926.12 to read as follows:
Sec. 926.12 State program provisions and amendments not approved.
(a) The amendment submitted by letter dated June 7, 2011, Docket ID
No. OSM-2011-0011, which proposed changes to the Montana approved
program as a result of the Montana Legislature's 2011 passage of a
Senate Bill (SB 297) relating to coal beneficiation is not approved.
(b) [Reserved]
[FR Doc. 2013-03065 Filed 2-13-13; 8:45 am]
BILLING CODE 4310-05-P
