Proposed Rule2023-16848
Montana Regulatory Program
Primary source
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Published
August 7, 2023
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are announcing receipt of a proposed amendment to the Montana regulatory program (hereinafter, the Montana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). During the 2023 legislative session, the Montana legislature passed House Bill 576 (HB 576), amending the Montana Strip and Underground Mine Reclamation Act as well as the Montana Code Annotated (MCA). Accordingly, Montana submitted this proposed amendment to OSMRE on its own initiative. Montana's proposal amends the definition of "Material Damage," by changing the requirements for what is considered "Material Damage" to the hydrologic balance. Montana's proposal also amends permit requirements for mine operations related to hydrologic information. The amendment removes the requirement that a permit applicant must submit hydrologic information to the Montana Depart of Environmental Quality (DEQ) before DEQ approves the permit application. Lastly, HB 576 adds four contingencies to the proposed amendments of the MCA: a severability clause, a contingent voidness clause, an effective date clause, and a retroactive applicability clause. This document gives the times and locations that the Montana program and this proposed amendment to the program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.
Full Text
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<title>Federal Register, Volume 88 Issue 150 (Monday, August 7, 2023)</title>
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[Federal Register Volume 88, Number 150 (Monday, August 7, 2023)]
[Proposed Rules]
[Pages 52084-52086]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16848]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-042-FOR; Docket ID: OSM-2023-0007; S1D1S SS08011000
SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE), are announcing receipt of a proposed amendment to the Montana
regulatory program (hereinafter, the Montana program) under the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). During
the 2023 legislative session, the Montana legislature passed House Bill
576 (HB 576), amending the Montana Strip and Underground Mine
Reclamation Act as well as the Montana Code Annotated (MCA).
Accordingly, Montana submitted this proposed amendment to OSMRE on its
own initiative. Montana's proposal amends the definition of ``Material
Damage,'' by changing the requirements for what is considered
``Material Damage'' to the hydrologic balance. Montana's proposal also
amends permit requirements for mine operations related to hydrologic
information. The amendment removes the requirement that a permit
applicant must submit hydrologic information to the Montana Depart of
Environmental Quality (DEQ) before DEQ approves the permit application.
Lastly, HB 576 adds four contingencies to the proposed amendments of
the MCA: a severability clause, a contingent voidness clause, an
effective date clause, and a retroactive applicability clause.
This document gives the times and locations that the Montana
program and this proposed amendment to the program are available for
your inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4:00
p.m., M.D.T, September 6, 2023. If requested, we may hold a public
hearing or meeting on the amendment on September 1, 2023. We will
accept requests to speak at a hearing until 4:00 p.m., M.D.T. on August
22, 2023.
ADDRESSES: You may submit comments, identified by SATS No. MT-042-FOR,
by any of the following methods:
<bullet> Mail/Hand Delivery: OSMRE, Attn: Jeffrey Fleischman, P.O.
Box 11018, 100 East B Street, Room 4100, Casper, Wyoming 82602.
<bullet> Fax: (307) 261-6552.
<bullet> Federal eRulemaking Portal: The amendment has been
assigned Docket ID: OSM-2023-0007. If you would like to submit
comments, go to <a href="http://www.regulations.gov">http://www.regulations.gov</a>. Follow the instructions for
submitting comments.
We cannot ensure that comments received after the close of the
comment period (see DATES) or sent to an address other than the ones
listed above will be included in the docket for this rulemaking and
considered.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to review copies of the Montana
program, this amendment, a listing of any scheduled public hearings or
meetings, and all written comments received in response to this
document, you must go to the address listed below during normal
business hours, Monday through Friday, excluding holidays. You may
receive one free copy of the amendment by contacting OSMRE's Casper
Field Office or the full text of the program amendment is available for
you to read at <a href="http://www.regulations.gov">www.regulations.gov</a>.
Attn: Jeffrey Fleischman, Field Office Director, Office of Surface
Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming
82602, Telephone: (307) 261-6550, Email: <a href="/cdn-cgi/l/email-protection#69030f050c001a0a0104080729061a041b0c470e061f"><span class="__cf_email__" data-cfemail="58323e343d312b3b3035393618372b352a3d763f372e">[email protected]</span></a>
In addition, you may review a copy of the amendment during regular
business hours at the following location:
Attn: Dan Walsh, Mining Bureau Chief, Coal and Opencut Mining Bureau,
Department of Environmental Quality, P.O. Box 200901, Helena, MT 59601-
0901, Telephone: (406) 444-6791, Email: <a href="/cdn-cgi/l/email-protection#107467717c6378507d643e777f66"><span class="__cf_email__" data-cfemail="2440534548574c6449500a434b52">[email protected]</span></a>
FOR FURTHER INFORMATION CONTACT:
Attn: Jeffrey Fleischman, Field Office Director, Office of Surface
Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming
82602, Telephone: (307) 261-6550, Email: <a href="/cdn-cgi/l/email-protection#442e2228212d37272c29252a042b372936216a232b32"><span class="__cf_email__" data-cfemail="b3d9d5dfd6dac0d0dbded2ddf3dcc0dec1d69dd4dcc5">[email protected]</span></a>
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Montana Program
Subject to OSMRE's oversight 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 approved, State program includes,
among other things, State laws and regulations that govern surface coal
mining and reclamation operations in accordance with the Act and
consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and
(7).
On the basis of these criteria, the Secretary of the Interior
approved the Montana program on October 24, 1980. You can find
background information on the Montana program, including the
Secretary's findings, the disposition of comments, and conditions of
approval of the Montana program in the October
[[Page 52085]]
24, 1980, Federal Register (45 FR 70445). You can also find later
actions concerning the Montana program and program amendments at 30 CFR
926.25.
II. Description of the Proposed Amendment
By letter dated June 1, 2023 (Administrative Record No. MT-042-01),
Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201
et seq.). We found Montana's proposed amendment to be administratively
complete on June 5, 2023. Montana submitted this proposed amendment to
us, of its own volition, following the passage of Montana House Bill
576 (HB 756) during the 2023 legislative session. HB 576 amends the
Montana Strip and Underground Mine Reclamation Act as well as Sec. 82-
4-203 and Sec. 82-4-222 of MCA. HB 576 also adds four contingencies
that apply to the proposed amendments.
First, Montana proposes several changes to Sec. 82-4-203(32),
which defines and describes ``Material Damage.'' Currently, this
section dictates how ``Material Damage'' applies to the protection of
the hydrologic balance. Montana now proposes to create three sub
sections under Sec. 82-4-203(32) and will explain how ``Material
Damage'' applies to each.
Proposed subsection Sec. 82-4-203(32)(a) would create two
requirements for an action or inaction to be considered ``Material
Damage'' to the hydrologic balance. The first requirement is that the
coal mining operation cause significant, lasting or permanent, adverse
changes to water quality or quantity that affect the beneficial uses
of, and rights to, the water outside the permit area. This requirement
incorporates Sec. 82-4-203(32)'s current language, but with
modifications. Montana proposes to replace the phrase ``degradation or
reduction'' with ``significant long term or permanent adverse change.''
Montana also removes violations of water quality standards, regardless
of whether an existing water use is affected, from the definition of
``Material Damage.'' The second requirement for an action or inaction
to be considered ``Material Damage'' to the hydrologic balance is that
a coal mining or reclamation operation cause a lasting or permanent
exceedance of a water quality standard outside a permit area. There is
an exception to this second requirement for water bodies whose water
quality standard is stricter than the baseline conditions the DEQ
determines when assessing an operation's cumulative hydrologic impacts.
For those water bodies, this requirement is instead met if the coal
mining and reclamation operation causes an adverse effect to land use,
beneficial uses of water, or water rights.
Proposed subsection Sec. 82-4-203(32)(b) would apply when
determining if an alluvial valley floor is ``Materially Damaged.''
Montana proposes to modify the definition of ``Material Damage'' by
adding language that accounts for the degradation or a reduction of
water quality or quantity supplied to an alluvial valley floor by a
coal mining and reclamation operation, but only if those actions or
inactions significantly decrease the alluvial valley floor's ability to
support agricultural activities.
Proposed subsection Sec. 82-4-203(32)(c) would apply when
determining if subsidence caused by underground coal mines is
``Material Damage.'' Subsidence caused by underground coal mines would
constitute ``Material Damage,'' when there are significant impairments
to surface lands, features, and structures; physical changes that have
significant adverse effects on a lands current and reasonably
foreseeable uses, production, or income; or when there is any
significant change to a structure's pre-subsidence condition,
appearance, or utility.
Next, Montana proposes to amend its coal mine operation permit
requirements related to hydrologic information by removing two
sentences from Sec. 82-4-222(1)(m). The first sentence states that the
DEQ is not required to determine the probable hydrologic consequences
of a coal mining and reclamation operation until the coal mining permit
applicant submits the necessary hydrologic information to DEQ. The
second sentence prohibits the DEQ from approving a coal mining permit
application until the coal mining operation provides necessary
hydrologic information to the DEQ.
Lastly, HB 576 adds four contingencies to the proposed amendments
of Sec. 82-4-203(32) and Sec. 82-4-222(1)(m) that are not codified
into the MCA but apply to the amended sections. Section 4 of HB 576
states that if any or all parts of HB 576 is found invalid, any parts
found valid will remain in effect. Section 5 of HB 576 states that if
the Secretary of the Interior disapproves any provision of the HB 576,
then that portion is void. Section 6 of HB 576 states that HB 576 is
effective upon passage and approval. Lastly, Section 7 of HB 576 states
that HB 576 applies retroactively to actions for judicial review or
other actions challenging permits, amendments, license, arbitration,
action, certificate, or inspection that are pending on or after the
effective date.
The full text of the program and/or plan amendment is available for
you to read at the locations listed above under ADDRESSES or at
<a href="http://www.regulations.gov">www.regulations.gov</a>.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the State program.
Electronic or Written Comments
If you submit written or electronic comments on the proposed rule
during the 30-day comment period, they should be specific, confined to
issues pertinent to the proposed regulations, and explain the reason
for any recommended change(s). We appreciate any and all comments, but
those most useful and likely to influence decisions on the final
regulations will be those that either involve personal experience or
include citations to and analyses of SMCRA, its legislative history,
its implementing regulations, case law, other pertinent State or
Federal laws or regulations, technical literature, or other relevant
publications.
We cannot ensure that comments received after the close of the
comment period (see DATES) or sent to an address other than those
listed (see ADDRESSES) will be included in the docket for this
rulemaking and considered.
Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment including your personal identifying
information, may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., MDT. on
August 22, 2023. If you are disabled and need reasonable accommodations
to attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an
[[Page 52086]]
opportunity to speak, we will not hold a hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at the public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review and Executive
Order 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 and/or AML plan amendments is
exempted from OMB review under Executive Order 12866. Executive Order
13563, which reaffirms and supplements Executive Order 12866, retains
this exemption.
Other Laws and Executive Orders Affecting Rulemaking
When a State submits a program amendment to OSMRE for review, our
regulations at 30 CFR 732.17(h) require us to publish a notice in the
Federal Register indicating receipt of the proposed amendment, its text
or a summary of its terms, and an opportunity for public comment.
We conclude our review of the proposed amendment after the close of
the public comment period and determine whether the amendment should be
approved, approved in part, or not approved. At that time, we will also
make the determinations and certifications required by the various laws
and executive orders governing the rulemaking process and include them
in the final rule.
List of Subjects in 30 CFR Part 926
State regulatory program approval, State-federal cooperative
agreement, Required program amendments.
David A. Berry,
Regional Director, Unified Regions 5, 7-11.
[FR Doc. 2023-16848 Filed 8-4-23; 8:45 am]
BILLING CODE 4310-05-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.