Montana Abandoned Mine Land Reclamation Plan
| Citation | 86 FR 37039 |
| Record Number | 2021-14766 |
| Published date | 14 July 2021 |
| Section | Rules and Regulations |
| Court | Surface Mining Reclamation And Enforcement Office |
Federal Register, Volume 86 Issue 132 (Wednesday, July 14, 2021)
[Federal Register Volume 86, Number 132 (Wednesday, July 14, 2021)]
[Rules and Regulations]
[Pages 37039-37045]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-14766]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-039-FOR; Docket No. OSM-2020-0004; S1D1S SS08011000
SX064A000 212S180110; S2D2S SS08011000 SX064A000 21XS501520]
Montana Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are approving an amendment to the Montana abandoned mine land
(AML) reclamation plan (Montana Plan) under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). Montana proposed to
repeal and replace its existing AML Plan in response to OSMRE's request
to amend the Plan and to improve the readability and efficiency of the
document. Montana also submitted a statutory provision enacted by the
State legislature in 2007 regarding its AML account for OSMRE approval.
DATES: Effective August 13, 2021.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Office of Surface
Mining Reclamation and Enforcement, Dick Cheney Federal Building, 150
East B Street, Casper, WY 82601-7032. Telephone: (307) 261-6550. Email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Plan
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Procedural Determinations
I. Background on the Montana Plan
The Abandoned Mine Land Reclamation Program was established by
Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns
over extensive environmental damage caused by past coal mining
activities. The program is funded by a reclamation fee collected on
each ton of coal that is produced. The money collected is used to
finance the reclamation of abandoned coal mines and for other
authorized activities. Section 405 of the Act allows States and Indian
Tribes to assume exclusive responsibility for reclamation activity
within the State or on Indian lands if they develop and submit to the
Secretary of the Interior for approval a program (often referred to as
a plan) for the reclamation of abandoned coal mines.
On October 24, 1980, the Secretary of the Interior approved the
Montana Plan. You can find general background information on the
Montana Plan, including the Secretary's findings and the disposition of
comments, in the October 24, 1980, Federal Register (45 FR 70445).
OSMRE announced in the July 9, 1990, Federal Register (55 FR 28022) the
Director's decision accepting certification by Montana that it had
addressed all known coal-related impacts in the State that were
eligible for funding under the Montana Plan. You can also find later
actions concerning Montana's AML Program and Plan amendments at 30 CFR
926.25.
II. Submission of the Amendment
Under the authority of 30 CFR 884.15, OSMRE directed Montana to
update its Plan by letter dated March 6, 2019 (Document ID No. OSM-
2020-0004-0003). OSMRE indicated that the Montana Plan required
revisions to meet the requirements of SMCRA as revised on December 20,
2006, under the Tax Relief and Health Care Act of 2006 (Pub. L. 109-
432), and in response to changes made to the implementing Federal
regulations as revised on November 14, 2008 (73 FR 67576) and February
5, 2015 (80 FR 6435). By letter dated August 4, 2020 (Administrative
Record No. OSM-2020-0004-0002), Montana sent us an amendment to its
State Plan under SMCRA (30 U.S.C. 1201 et seq.). Montana's amendment is
intended to address all required amendments identified in OSMRE's
letter dated March 6, 2019. The State also proposed additional changes
as part of the State's initiative to improve the Plan's readability and
operational efficiency. The State also proposed a statutory addition
enacted by its legislature in 2007. Montana's amendment will repeal and
replace the State's existing Abandoned Mine Lands (AML) Plan.
We announced receipt of the proposed amendment in the December
[[Page 37040]]
17, 2020, Federal Register (85 FR 81862). In the same document, we
opened the public comment period and provided an opportunity for a
public hearing or meeting on the adequacy of the amendment. We did not
hold a public hearing or meeting because none were requested. The
public comment period ended on January 19, 2021.
III. OSMRE's Findings
The following are the findings we made concerning Montana's
amendment under SMCRA and the Federal regulations at 30 CFR 884.14 and
884.15. We are approving the amendment as described below.
Montana's Legislature enacted new statutory language at 82-4-1006,
MCA in 2007 regarding establishment, management, and use of funds in
the State's Abandoned Mine Reclamation Account (Account). This new
statute establishes the State's Abandoned Mine Reclamation Account
within the Federal special revenue fund under existing 17-2-102, MCA.
The Federal special revenue fund consists of money deposited in the
State treasury from Federal sources, including trust income, that is
used for operation of the State government. This is the appropriate
place to create an account for managing Federal grant funds under
SMCRA. The applicable sections of 82-4-1006(1) through (3), MCA
properly identify SMCRA AML Program funding sources, handling of
interest, uses of funds including specific lands and waters eligible
for project funding under the AML Program, and allowable reclamation
activities. The listed eligible lands and waters as well as reclamation
activities are in accordance with those allowed for certified States
under SMCRA Section 411. Creation of such an account is required under
SMCRA Section 401(a), which requires States to establish AML accounts
for grant funds. Montana has fulfilled that responsibility by
establishing its Abandoned Mine Reclamation Account.
According to 82-4-1006(4), MCA money in the Account that is subject
to restrictions on use pursuant to Federal law, regulation, or grant
conditions can only be used for the established purposes of the
applicable Federal provision. Montana's Plan as revised under this
amendment, as well as existing applicable statutory AML provisions,
demonstrate that Montana's AML activities are consistent with SMCRA.
Montana's Plan will prioritize addressing the impacts of historic
mining and will comply with all grant requirements under 2 CFR part
200, Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards. However, 82-4-1006(4), MCA ensures
OSMRE grants, any abandoned mine lands grant funding from other Federal
agencies, and any potential special future OSMRE funding received will
be spent in accordance with applicable Federal restrictions.
Furthermore, 82-4-1006(5), MCA provides that unspent and
unencumbered money must remain in the account at the end of the fiscal
year until spent or appropriated by the State legislature. Montana's
certified AML grants from OSMRE are typically provided on a three-year
performance period, although this performance period can be extended at
the State's request. The performance period begins when the AML grant
agreement is signed. If the State does not expend the funds during the
course of the performance period they must return the unused funds back
to OSMRE. However, the State can retain the unspent funds to carry over
to the next year as long as it is within the performance period.
Because Montana's statutory language at 82-4-1006, MCA fulfills a
requirement for the State to create AML accounts for grant funds at
SMCRA section 401(a), all restrictions on handling and use of funds are
in accordance with requirements for certified States under SMCRA
section 411, and all grant funds will be managed in accordance with 2
CFR part 200, we are approving the addition of 82-4-1006, MCA.
A. Revisions to Montana's Certified AML Plan
Montana is repealing and replacing its AML Plan with a simplified
version that is structured similarly to the Federal AML Plan content
requirements for States at 30 CFR 884.13. Documentation associated with
Montana's original AML Program approval and subsequent Plan revisions
was included within the State's previous Plan, leading to a lengthy and
often duplicative document that was difficult to navigate. Now, Montana
has made multiple editorial changes for brevity and structural
alignment with Federal requirements as well as updates consistent with
the 2006 changes to SMCRA under the Tax Relief and Health Care Act of
2006 (Pub. L. 109-432) and the associated changes to the implementing
Federal regulations on November 14, 2008 (73 FR 67576), and February 5,
2015 (80 FR 6435). In order to simplify the Plan, the new version omits
large and lengthy documentation that is now either incorporated by
reference, is no longer applicable to Montana's AML Program, was in
duplicate copy, was replaced by updated information, or was never
required to be included in the Plan. All changes are discussed below.
In order to simplify its Plan, Montana is removing and referencing
Federal Register documentation regarding its AML Program approval,
Program and Plan revisions, and certification of completion of all
known high priority coal hazards. Removal and incorporation by
reference is appropriate because these documents are not required to be
in the State Plan.
Throughout Montana's revised Plan, applicable State and Federal AML
statutes and regulations are referenced, rather than incorporating the
full text of those provisions. This approach decreases the overall
volume of the Plan and prevents the need to further revise the Plan in
the event of future statutory or regulatory changes. This change
neither alters the statutes or regulations that apply to Montana nor
the State's authority or procedures for implementing its certified AML
Program.
Montana's revised Plan includes subsections entitled Background on
Title IV of SMCRA, Background on the Montana Plan, and Purpose of the
2019 Revision. Inclusion of narrative program summaries is not required
under the Federal program. However, it does provide background and
context for the State's certified AML Plan and does not conflict with
the established AML Plan content requirements at 30 CFR 884.13.
Montana's revised Plan includes copies of the Governor's 1977 and
1995 letters, respectively, initially designating the Department of
State Lands and, then later after an agency reorganization, the
Department of Environmental Quality, as the agency authorized to
administer the State AML Program and to receive and administer grants
under 30 CFR part 886. Because Montana's AML Program is certified, it
no longer receives grant funding from OSMRE under Part 886, but rather
receives certified grant funding under 30 CFR part 885. While the 1977
and 1995 Governor's letters should be replaced with an updated version
reflecting the State's certified grant recipient status and that it
receives funding under 30 CFR part 885, the designated State agency
remains the same as it was prior to certification. Montana has
incorporated the Governor's letters designating the Department of
Environmental Quality as the agency authorized to administer the State
AML Program and receive and administer grants in its Plan as required
under 30 CFR 884.13(a)(1). Montana may replace these letters with an
[[Page 37041]]
updated version without resubmitting that change to OSMRE as an
amendment.
Montana provided an updated June 26, 2020, legal opinion from the
State Attorney General indicating that the Department of Environmental
Quality is the designated agency with the authority to conduct the AML
Program in accordance with all requirements of SMCRA Title IV. Previous
versions of this opinion have been removed from Montana's Plan because
they are superseded by the new opinion. Montana has incorporated the
Attorney General's letter in its Plan as required under 30 CFR
884.13(a)(2).
Federal regulations at 30 CFR 884.13(a)(3) require a description of
the policies and procedures of the State agency, including the purposes
of the State reclamation program. Montana's Plan includes a Policies
and Procedures section that provides succinct descriptions of, and
legal citations for, the purposes of its AML Program consistent with 30
CFR 884.13(a)(3).
Montana's revised Plan includes a section entitled Ranking and
Selection that provides appropriate eligibility and prioritization
criteria for coal and noncoal hazards based upon updated Federal
program requirements, as well as the prioritization matrix Montana uses
to assess and prioritize potential project areas for reclamation. This
section is consistent with the Plan content requirements of 30 CFR
884.13(a)(3)(ii), which requires specific criteria, consistent with
SMCRA, for ranking and identifying projects to be funded.
Montana's revised Plan includes a Limited Liability and
Authorization to Proceed subsection under its Ranking and Selection
section that indicates the State will comply with all applicable
requirements to extend Limited Liability protections under SMCRA
Section 405(l) to both coal and noncoal projects. Reclamation projects
will not be undertaken without first receiving an Authorization to
Proceed from OSMRE. This is in accordance with SMCRA 405(l) and
consistent with 30 CFR 874.15 and 875.19, Limited Liability, which now
provide limited liability coverage to certified State coal and noncoal
reclamation activities, unless the costs or damages were the result of
gross negligence or intentional misconduct.
Montana's revised Plan includes a section entitled Coordination
With Other Programs that indicates the State will coordinate with other
agencies and offices including the Natural Resources Conservation
Service within the Department of Agriculture (formerly known as the
Soil Conservation Service), Indian Tribes, and OSMRE as required, as
well as multiple other State and Federal entities. By indicating it
will coordinate and work with all required agencies, as well as
additional agencies applicable in the State, Montana's proposed section
is consistent with the requirements of 30 CFR 884.13(a)(3)(iii).
To describe how land will be acquired, managed, and disposed of,
Montana's Plan includes a section entitled Land Acquisition, Management
and Disposal that incorporates all applicable State and Federal
statutory sections by reference. This ensures activity will occur in
accordance with established State and Federal AML Program requirements.
Therefore, Montana's Plan includes the State's policies and procedures
for land acquisition, management, and disposition consistent with the
requirements of 30 CFR 884.13(a)(3)(iv).
Montana's revised Plan includes a section entitled Reclamation on
Private Land and Rights of Entry that indicates the State will follow
guidelines in SMCRA Section 407, 30 CFR part 882, and the provisions in
82-4-1006, -239, -371, and -445, MCA regarding reclamation work on
private land. The reference to SMCRA Section 407 is incorrect and OSMRE
advised Montana that the reference should be to Section 408, Liens.
Montana intends to correct this reference in its Plan and does not need
to resubmit that change to OSMRE as an amendment. Montana also
specifies that consent for entry will be obtained before entering
private land, but if consent is denied procedures outlined in 30 CFR
part 877 and 82-4-239, -371, and -445, MCA will be followed. With the
corrected citation, this section of Montana's Plan accurately provides
the State's policies and procedures for reclamation on private lands
and right of entry and is therefore consistent with the Plan content
requirements of 30 CFR 884.13(a)(3)(v) and (vi).
Montana's revised Plan includes a section entitled Public
Participation that indicates which State and Federal laws it will
comply with pertaining to public participation, notice, and comment
procedures for AML project activities and in other actions such as
development of the AML Plan. Because Montana's proposed section
provides the procedures and processes it will follow to ensure public
participation and involvement in the State reclamation program and in
preparation of the State reclamation Plan, this section is consistent
with 30 CFR 884.13(a)(3)(vii).
As discussed above, Montana's revised Plan includes sections
responding to the requirements of 30 CFR 884.13(a)(3)(i) through (vii).
These sections provide updated descriptions of the State's policies and
procedures for conducting its AML Program including: The purposes of
the Program; specific criteria for ranking and identifying projects to
be funded; coordination of reclamation work between the State and all
applicable State and Federal agencies; land acquisition; reclamation on
private land; right of entry; and public involvement in the State
reclamation program. These sections are simplified from previous
versions of the Plan to eliminate unnecessary volume. Montana's revised
Plan is consistent with the AML Plan content requirements of 30 CFR
884.13(a)(3).
Federal regulations at 30 CFR 884.13(a)(4)(i) require a description
of the designated agency's organization and relationship to other State
entities that may participate in or augment the State's AML reclamation
abilities. Montana's Plan includes a section entitled Policies and
Procedures, Department Structure, that provides these descriptions as
well as an organizational chart depicting the entire Division of
Environmental Quality and the AML Program's place within it.
Federal regulations at 30 CFR 884.13(a)(4)(ii) require a
description of the personnel staffing policies that will govern
assignments within the AML Program. Montana's revised Plan includes a
section entitled Staffing and Personnel Policies that references
applicable personnel and procurement policies such as the Age
Discrimination Act of 1975 and the Civil Rights Act of 1964 rather than
incorporating full text versions of these documents, which were
included in the previous version of Montana's Plan. This change does
not alter Montana's personnel or procurement procedures but decreases
the overall volume of the Plan while still providing the information
required under 30 CFR 884.13(a)(4)(ii).
Federal regulations at 30 CFR 884.13(a)(4)(iii) require State
purchasing and procurement systems to meet the requirements of Office
of Management and Budget Circular A-102, Attachment 0, relating to
``Grants and Cooperative Agreements with State and Local Governments''.
Federal grantmaking agencies were previously required to issue a grants
management common rule to adopt governmentwide terms and conditions for
grants to States and local governments. As a result, the attachments to
Circular A-102, including Attachment 0 referenced in 30
[[Page 37042]]
CFR 884.13(a)(4)(iii), have been replaced by the grants management
common rule at 2 CFR part 200. The Federal regulations have not yet
been updated to reflect this change; however, it is reflected in the
State's revised Plan under the section entitled Purchasing and
Procurement, which indicates its purchasing and procurement policies
are consistent with 2 CFR part 200. This section provides descriptions
of purchasing and procurement systems consistent with the requirements
of 30 CFR 884.13(a)(4)(iii).
Montana's revised Plan includes a Contractor Eligibility subsection
under the Purchasing and Procurement section that indicates the State
will comply with SMCRA section 510(c) and 30 CFR 875.20 in determining
the eligibility of bidders on AML Program contracts through the
Applicant Violator System (AVS). By referencing the applicable Federal
statute and regulation, Montana's revised Plan incorporates all
applicable contractor eligibility requirements and is therefore
consistent with the Federal program at SMCRA section 510(c) and 30 CFR
875.20.
Federal regulations at 30 CFR 884.13(a)(4)(iv) require a
description of the accounting system to be used by the agency including
specific procedures for operation of the AML Fund. Montana's new Plan
includes a section entitled Accounting System that describes the
Statewide Accounting, Budgeting and Human Resources System, how it
conforms to 2 CFR part 200, that funds are safeguarded and accounted
for, how audits will be conducted and audit recommendations
implemented, and programmatic and financial reports will be made to
OSMRE as required.
As discussed above, Montana's revised Plan includes four sections
providing revised descriptions of the State's administrative and
management structure: Department Structure; Staffing and Personnel
Policies; Purchasing and Procurement; and Accounting System. By
providing all required descriptions of the administrative and
management structure of the State AML agency, Montana's revised Plan is
consistent with all AML Plan content requirements under 30 CFR
884.13(a)(4).
Montana's revised Plan includes sections entitled Description of
Reclamation Activities, Montana AML Problems, and Plan to Address
Problems that provide general descriptions derived from available data
of the reclamation activities to be conducted under the State Plan
including: A map showing the general location of known or suspected
eligible lands and waters; a description of the problems occurring on
those lands and waters; and how the Plan proposes to address each of
the problems. Because Montana is certified, the State has already
completed all known high priority coal hazards. The revised maps and
information reflect the State's certified status, identifying historic
mining areas where AML hazards may occur, as well as general AML hazard
types and abatement strategies without identifying specific project
areas. Individual project approval and funding are appropriately
handled through the Authorization to Proceed process under 30 CFR
885.16(e). Montana's revised Plan sections entitled Description of
Reclamation Activities, Montana AML Problems and Plan to Address
Problems are consistent with the AML Plan content requirements of 30
CFR 884.13(a)(5) in providing general descriptions of reclamation
activities to be conducted including maps, descriptions of AML
problems, and descriptions of hazard abatement strategies.
Montana's revised Plan includes sections entitled: Geographic Areas
of Montana; Montana Economic Base; Significant Esthetic, Historic or
Cultural, and Recreational Values; and Endangered and Threatened Plant,
Fish, and Wildlife Habitat that provide general descriptions on each
subject derived from available data on the conditions prevailing in the
areas of the state where reclamation may occur. Montana has reduced the
volume of these sections by omitting unnecessary documentation that was
included in the previous version of its Plan such as detailed
demographic information, projected population growth rates, graphics
and charts depicting different population and employment parameters,
and a map depicting the general topographic regions of the state. The
omitted items were outdated and not required to be in the Plan.
Montana's revised Plan provides descriptions of the prevailing
conditions in the State where reclamation may occur consistent with the
requirements of 30 CFR 884.13(a)(6).
Montana's revised Plan includes a section entitled Additional
Requirement for Certified States and Indian Tribes that provides a
commitment to address all eligible coal problems found or occurring
after certification as required under 30 CFR 875.13(a)(3) and
875.14(b). Montana indicates it will prioritize coal hazards over
noncoal hazards unless a noncoal hazard site imminently threatens human
health or the environment, in which case, the State will assess the
need for taking appropriate action in consultation with OSMRE. By
committing to give priority to addressing eligible coal problems found
or occurring after certification as required in 30 CFR 875.13(a)(3) and
875.14(b), Montana's revised Plan is consistent with the AML Plan
content requirements of 30 CFR 884.13(b).
Thus, we find that Montana's Plan, as amended, meets all content
requirements stipulated under 30 CFR 884.13 while also updating the
Plan consistently with changes made to the Federal program in 2006,
2008, and 2015. Montana's revised Plan, therefore, meets the
requirements of OSMRE's March 6, 2019 letter, and we approve it.
B. Sections Removed From the Montana Plan
To simplify its revised Plan, Montana removed and did not replace
extraneous, duplicate, and outdated documentation from the repealed
version. A brief discussion of major sections no longer included in
Montana's Plan is as follows:
Montana has removed its outdated AML hazard inventory, project
planning, and estimated cost information. As a certified State, all
high priority coal hazards have now been abated and such detailed
project planning is neither possible nor required to be incorporated in
Montana's Plan. Proposed projects are now appropriately identified by
the State and approved by OSMRE through the Authorization to Proceed
processes under 30 CFR 885.16(e).
Montana has removed the full text of several statutory and
regulatory provisions from its Plan. As noted in the section above,
many statutes and regulations are now incorporated by reference rather
than copied in the Plan. However, some are removed and not referenced
or replaced in the Plan. This action neither alters any existing
statutes or regulations, which will continue to apply with full force
and effect, nor does it alter which statutes or regulations apply to
Montana's certified AML Program. Removals include: State statutes
establishing the Board of Environmental Review; rules pertaining to
equal opportunity, handicapped person's preference, and purchasing; and
Americans With Disabilities Act implementation plans. Similarly,
Montana has removed some Federal regulation language, including
previous versions of 30 CFR 884.13 through 884.15 and 30 CFR 926.21,
from its Plan. This State and Federal language was never required to be
incorporated in the State Plan. As such, removal is appropriate.
Montana removed historic records related to approval and revision
of its
[[Page 37043]]
AML Program such as transmittal memos, records of public meetings, and
discussion records between the State and OSMRE. Appendix A to the Plan
includes a chronological list of significant Montana AML Program
historical events. The removed historical documents are not required to
be included in the State Plan and removal is therefore appropriate.
Montana has removed sections entitled The New Interim Bond
Forfeiture Projects Initiative and The New Bankrupt Surety Bond
Forfeiture Projects Initiative. To qualify for reclamation under these
programs, sites must have been mined for coal or affected by coal
mining processes and the site left in either an un-reclaimed or
inadequately reclaimed condition (1) between August 4, 1977, and April
1, 1980 (the date on which the Secretary of the Interior approved
Montana's regulatory program pursuant to Section 503 of SMCRA), and any
funds pursuant to a bond or other financial guarantee or from any other
source that would be available for reclamation and abatement were not
sufficient to provide for adequate reclamation or abatement at the
site, or (2) between August 4, 1977, and November 5, 1990, and the
surety of the mining operator became insolvent during such period, and
as of November 5, 1990, funds immediately available from proceedings
relating to such insolvency or from any financial guarantee or other
source were not sufficient to provide for adequate reclamation or
abatement of the site. In addition, to qualify for reclamation or
abatement funding under the initiatives cited above, such sites must
have been either Priority 1 or 2 sites pursuant to section 403(a)(1)
and (2) of SMCRA. Because more than 30 years have passed since any site
could qualify for reclamation under these requirements, this part is no
longer relevant to the Montana Program. As such, removal of the
sections related to these initiatives is appropriate.
Montana is repealing and not replacing its Plan section entitled
The Grant Set Aside for Future Priority I-III Coal, and AMD Abatement/
Treatment Program Initiative because it no longer applies to the
Montana Program. The State retains its Trust Fund for future
expenditures on abandoned mine reclamation (coal or noncoal) and its
OSMRE Trust (coal only). No new grant funds are placed in these
accounts and interest earned is considered State funds in accordance
with 30 CFR 873.12. Montana also has an approved interest-bearing
account earmarked for the operation and maintenance of the Belt Water
Treatment Plant authorized via letter from OSMRE dated July 21, 2010.
However, this is not a set-aside account under SMCRA section 402(g)(6)
and was properly funded using Prior Balance Replacement and Certified
in Lieu Funds. Although Montana is removing this section from its Plan,
its historically approved and created accounts remain in existence and
are properly administered through the State's normal operations and
overseen by OSMRE through routine oversight and grant monitoring
processes.
Montana is removing its Emergency Reclamation Responsibility
section previously approved under SMCRA sections 401(c)(5) and 410 and
30 CFR 877.14, and 30 CFR part 879. This program only applied to
emergency coal hazards and is no longer applicable or necessary under
Montana's certified AML Program.
All content removal support Montana's goals of streamlining and
updating its Plan consistently with updated Federal requirements as
required by OSMRE though its March 6, 2019 letter sent under the
authority of 30 CFR 884.15. We therefore approve these changes.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, but none were
received.
Federal Agency Comments
Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSMRE solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Montana Plan on October 14, 2020
(Administrative Record No. OSM-2020-0004-0004). We did not receive any
comments.
Environmental Protection Agency (EPA) Concurrence and Comments
OSMRE solicited EPA's comments on the proposed amendment
(Administrative Record No. OSM-2020-0004-0004). The EPA did not respond
to our request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
OSMRE solicited comments on the proposed amendment from the SHPO
(Administrative Record No. OSM-2020-0004-0004) and the ACHP
(Administrative Record No. OSM-2020-0004-0005). SHPO did not respond to
our request. By email dated December 4, 2020 (Administrative Record No.
OSM-2020-0004-0006), ACHP indicated its belief that the revised Plan
did not have any involvement with OSMRE's National Historic
Preservation Act (NHPA) Section 106 review process in Montana, and
therefore ACHP does not have any comments on this Plan. OSMRE agrees
with ACHP's assessment that the revised Plan does not alter OSMRE's
NHPA Section 106 review process in Montana.
V. OSMRE's Decision
Based on the above findings, we are approving Montana's AML Plan
amendment that was submitted on August 4, 2020.
To implement this decision, we are amending the Federal
regulations, at 30 CFR part 926, which codify decisions concerning the
Montana Plan. In accordance with the Administrative Procedure Act, this
rule will take effect 30 days after the date of publication. Generally,
SMCRA requires that each State with an AML program must have an
approved State regulatory program pursuant to section 503 of the Act.
Section 503(a) of the Act requires that the State's program demonstrate
that the State has the capability of carrying out the provisions of the
Act and meeting its purposes. SMCRA requires consistency of State and
Federal standards.
VI. Procedural Determinations
Executive Order 12630--Governmental Actions and Interference With
Constitutionally Protected Property Rights
This rule would not affect a taking of private property or
otherwise have taking implications that would result in private
property being taken for government use without just compensation under
the law. Therefore, a takings implication assessment is not required.
This determination is based on an analysis of the corresponding Federal
regulations.
Executive Orders 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs in the Office of Management and Budget (OMB) will
review all significant rules. Pursuant to OMB guidance, dated October
12, 1993, the approval of State program amendments is exempted from OMB
review under Executive Order 12866. Executive Order 13563, which
reaffirms and supplements Executive Order 12866, retains this
exemption.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has reviewed this rule as required
by
[[Page 37044]]
Section 3(a) of Executive Order 12988. The Department has determined
that this Federal Register document meets the criteria of Section 3 of
Executive Order 12988, which is intended to ensure that the agency
review its legislation and regulations to minimize litigation; and that
the agency's legislation and regulations provide a clear legal standard
for affected conduct, rather than a general standard, and promote
simplification and burden reduction. Because section 3 focuses on the
quality of Federal legislation and regulations, the Department limited
its review under this Executive Order to the quality of this Federal
Register document and to changes to the Federal regulations. The review
under this Executive Order did not extend to the language of the
Montana Plan or to the Plan amendment that the State of Montana
submitted.
Executive Order 13132--Federalism
This rule is not a ``[p]olicy that [has] Federalism implications''
as defined by section 1(a) of Executive Order 13132 because it does not
have ``substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government.''
Instead, this rule approves an amendment to the Montana Plan submitted
and drafted by that State. OSMRE reviewed the submission with
fundamental federalism principles in mind as set forth in sections 2
and 3 of the Executive order and with the principles of cooperative
federalism as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As
such, pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and
(7)), OSMRE reviewed Montana's amendment to ensure that it is ``in
accordance with'' the requirements of SMCRA and ``consistent with'' the
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
The Department of the Interior strives to strengthen its
government-to-government relationship with Tribes through a commitment
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under
the Department's consultation policy and under the criteria in
Executive Order 13175 and have determined that it has no substantial
direct effects on federally recognized Tribes or on the distribution of
power and responsibilities between the Federal government and Tribes.
Therefore, consultation under the Department's tribal consultation
policy is not required. The basis for this determination is that our
decision is on the Montana program that does not include Tribal lands
or regulation of activities on Tribal lands. Tribal lands are regulated
independently under the applicable, approved Federal program.
Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to prepare a Statement of
Energy Effects for a rulemaking 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
significant energy action under the definition in Executive Order
13211, a Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. We are not required to
provide a detailed statement under the National Environmental Policy
Act of 1969 (NEPA) because this rule qualifies for a categorical
exclusion under the U.S. Department of the Interior Departmental
Manual, part 516, section 13.5(B)(29).
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. OMB Circular
A-119 at p. 14. This action is not subject to the requirements of
section 12(d) of the NTTAA because application of those requirements
would be inconsistent with SMCRA.
Paperwork Reduction Act
This rule does not include requests and requirements of an
individual, partnership, or corporation to obtain information and
report it to a Federal agency. As this rule does not contain
information collection requirements, a submission to the Office of
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) is not required.
Regulatory Flexibility Act
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 corresponding 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 corresponding
Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), 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; and (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 on an analysis of the
corresponding Federal regulations, which were determined not to
constitute a major rule.
Unfunded Mandates Reform Act
This rule does not impose an unfunded mandate on State, local, or
Tribal governments, or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local, or Tribal governments or the private sector. This determination
is based on an analysis of the corresponding Federal regulations, which
were determined not to impose an unfunded mandate. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
David A. Berry,
Regional Director, Interior Unified Regions 5, 7-11.
For the reasons set out in the preamble, 30 CFR part 926 is amended
as set forth below:
[[Page 37045]]
PART 926--MONTANA
0
1. The authority citation for part 926 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 926.25 is amended in the table by adding an entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 926.25 Approval of Montana abandoned mine land reclamation plan
amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
August 4, 2020.......................... July 14, 2021.............. Repeal and replace Certified AML Plan in
response to OSMRE 884 Letter and State
initiative streamlining of Plan. Updates
Plan to be consistent with changes to
Federal program and extends limited
liability protection for certain coal
and noncoal reclamation projects.
Addition of 82-4-1006, MCA.
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[FR Doc. 2021-14766 Filed 7-13-21; 8:45 am]
BILLING CODE 4310-05-P
