89 FR 223 pgs. 91257-91261 - Montana Regulatory Program/Reclamation Plan
Type: RULEVolume: 89Number: 223Pages: 91257 - 91261
Pages: 91257, 91258, 91259, 91260, 91261Docket number: [SATS No. MT-040-FOR; Docket No. OSM-2023-0001; S1D1S SS08011000 SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]
FR document: [FR Doc. 2024-26781 Filed 11-18-24; 8:45 am]
Agency: Interior Department
Sub Agency: Surface Mining Reclamation and Enforcement Office
Official PDF Version: PDF Version
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[SATS No. MT-040-FOR; Docket No. OSM-2023-0001; S1D1S SS08011000 SX064A000 231S180110; S2D2S SS08011000 SX064A000 23XS501520]
Montana Regulatory Program/Reclamation Plan
AGENCY:
Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION:
Final rule; approving, in part.
SUMMARY:
[top] We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are approving, in part, an amendment to the Montana regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). During the 2019 legislative session, Montana updated its Montana Strip and Underground Mine Reclamation Act codified in the Montana Code Annotated. Accordingly, Montana submitted this amendment to OSMRE on its own initiative. The amendment requires a permit applicant's compliance information to be updated and approved if a bankruptcy or reorganization results in
DATES:
The effective date is December 19, 2024.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Fleischman, Field Office Director, Office of Surface Mining Reclamation and Enforcement, 100 East B Street, Casper, Wyoming 82602, Telephone: (307) 261-6550, Email: jfleischman@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews
I. Background on the Montana Program
Section 503(a) of SMCRA 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 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 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. Submission of the Amendment
By letter dated February 16, 2023 (Administrative Record No. MT-040-01), Montana sent OSMRE 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 February 17, 2023. Montana submitted the proposed amendment to OSMRE, on its own volition, following changes to its statutes in 2019. During the 2019 legislative session, the Montana legislature passed Senate Bill 201 (SB 201). SB 201 updated the Montana Strip and Underground Mine Reclamation Act codified at Montana Code Annotated (Mont. Code Ann. or MCA) sec. 82-4-222. In order to implement SB 201, Montana first proposed to add language at Mont. Code Ann. sec. 82-4-222(1)(g)(i) that would require an applicant for a permit to update its ownership information in the Applicant Violator System and with the Montana Department of Environmental Quality (DEQ) if bankruptcy or reorganization results in changes to ownership parties specified in this section. The proposed language also requires that DEQ approve these changes.
Second, Montana proposed to add language at Mont. Code Ann. sec. 82-4-222(1)(g)(iii) that would require DEQ to develop rules for permit owners to provide bonding or other financial assurance necessary to meet their financial obligations for employee pensions and reclamation obligations. Furthermore, operators would be prohibited from passing associated costs from financial assurance for employee pension programs onto purchasers who are dependent on the operator to generate electricity for customers. Lastly, Montana proposed a typographical correction at Mont. Code Ann. sec. 82-4-222(1)(q).
SB 201 states that the purpose of the statute is to ensure private pensions plans remain in good standing and that employees who have earned benefits under those plans receive them. It also states that it is imperative that private employers not backtrack on pension plans or shift the burden to the State of Montana, and that if a private pension plan fails to provide earned benefits, the State of Montana may be burdened with additional financial responsibilities and demands.
We announced receipt of the proposed amendment in the May 23, 2023, Federal Register (88 FR 33018). 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. No hearing or meeting was requested, and we did not receive any comments in relation to the proposed rule. The public comment period ended on June 22, 2023.
III. OSMRE's Findings
The following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving, in part, the amendment as described below.
A. Mont. Code Ann. Sec. 82-4-222(1)(g)(i)
We are not approving Montana's proposed revision of Mont. Code Ann. sec. 82-4-222(1)(g)(i). Montana proposed a substantive revision to Mont. Code Ann. sec. 82-4-222(1)(g)(i) that does not have a direct counterpart in the Federal regulations. As proposed, Mont. Code Ann. sec. 82-4-222(1)(g)(i) would require an applicant for a permit to update its compliance history and ownership and control information in the Applicant Violator System and with the Montana DEQ if bankruptcy or reorganization results in changes in a permittee's officers, partners, directors, "or any individual owning of record or beneficially, alone or with associates, 10% or more of any class of stock of the applicant.". The proposed language would also require that DEQ approve these changes.
Montana's proposed amendment conflicts with Federal regulations because all changes to ownership information resulting from bankruptcy would trigger permit approval provisions and give DEQ approval authority over changes in a permittee's applicant and operator information. Under Federal regulations, while a regulatory authority has approval authority over transfer, assignment, or sale of permit rights (TAS), it does not have approval authority over changes in applicant and operator information. See 30 CFR 774.17. OSMRE clarified this distinction in its December 3, 2007, rule, which states that "a change of a permittee's owners or controllers does not constitute a transfer, assignment, or sale." (72 FR 68000, 68008-09). While there could be situations related to bankruptcy that would trigger a TAS, such as the conveying of permit rights to a new person or a reorganization resulting in a new type of business entity, not all changes from bankruptcy, including a change in individual owners or operators, would trigger a TAS. Under the proposed regulation, all changes resulting from bankruptcy trigger a TAS, even when those changes do not effectuate a transfer, assignment, or sale of permit rights, and that conflicts with the Federal regulations.
With this issue in mind, OSMRE is denying the proposed amendment to Mont. Code Ann. sec. 82-4-222(1)(g)(i). We note that this permittee information is still required to be updated anytime there is a change of ownership or control, regardless of the reason for the change. And while the regulatory authority must require changes to ownership and control information to be updated in the Applicant Violator System, it cannot provide for all ownership and control information changes resulting from bankruptcy to trigger the need for a permit approval.
[top] We note that the proposed amendment to Mont. Code Ann. sec. 82-4-222(1)(g)(i) has only been interpreted in terms of whether the
While we understand and commend Montana's effort to limit the financial burden on the State should a bankruptcy occur, this section of the statute, as currently written, is less effective than the Federal regulations and must be denied. We encourage Montana and DEQ to resubmit the amendment with changes addressing this issue to OSMRE through the informal amendment process. Through the informal amendment process, OSMRE and the State can collaborate on proposed changes to Montana's coal regulations that may achieve the State's goal of lessening the State's financial burden while also meeting SMCRA requirements.
B. Mont. Code Ann. Sec. 82-4-222(1)(g)(iii)
We are not approving Montana's proposed revision of Mont. Code Ann. sec. 82-4-222(1)(g)(iii). Montana proposed a substantive revision to Mont. Code Ann. sec. 82-4-222(1)(g)(iii) that does not have a direct counterpart in the Federal regulations. As proposed, Mont. Code Ann. sec. 82-4-222(1)(g)(iii) would require the DEQ to develop rules for permit owners to provide bonding or other financial assurance necessary to meet its financial obligations for employee pensions and reclamation obligations. Operators are prohibited from passing associated costs from financial assurance for pension programs onto purchasers who are dependent on the operator to generate electricity for customers. Following our review, OSMRE has noted the following issues with this proposed section:
First, while normally outside the purview of SMCRA, requiring pension bonds could impact Montana's ability to fully collect on a performance bond as required by 30 U.S.C. 1259(a). In a situation where both a pension and a reclamation bond would be forfeited at the same time, there is the potential that fulfilling a pension bond could interfere with Montana's ability to fully collect the mining operation's performance bond. This is especially true if an operation is self-bonded or if both the performance and pension bond come from the same surety company. Therefore, Montana's inclusion of pension bonds in this framework would make its program less effective in accomplishing SMCRA's requirements than the Federal program.
Second, while we have not made an official determination as to whether a prohibition on passing costs associated with bonds, reclamation, or otherwise onto purchasers who depend on the mine to generate electricity conflicts with SMCRA or our regulations, we believe the proposed prohibition on passing costs associated with pension bonds onto these purchasers conflicts with SMCRA because pension bonds in this framework conflict with 30 U.S.C. 1259(b) (see above). Because this proposed prohibition is applicable to pension bonds only, it cannot be approved in part.
With these issues in mind, we are denying the proposed changes to Mont. Code Ann. sec. 82-3-222(1)(g)(iii). Please note that the proposed amendment to Mont. Code Ann. sec. 82-4-222(1)(g)(iii) has only been interpreted in terms of whether the section conflicts with SMCRA and its regulations. There has been no official determination as to whether Mont. Code Ann. sec. 82-4-222(1)(g)(iii) conflicts with other Federal laws, like the Employee Retirement Income Security Act (ERISA) at 29 U.S.C. 1001-1461.
While we understand and commend Montana's effort to limit the financial risk to pension programs and the financial burden on the State should a bankruptcy occur, this section of the statute, as currently written, is less effective than the Federal regulations and must be denied. The financial assets would be at the discretion of the bankruptcy court, and the pension bonds could take precedence over the reclamation bonds, leaving inadequate funding for DEQ to collect on the reclamation bond and reclaim the permit. We encourage Montana and DEQ to resubmit the amendment, with changes addressing the efficacy issue, to OSMRE through the informal amendment process. Through the informal amendment process, OSMRE and the State can collaborate on proposed changes to Montana's coal regulations that may achieve the State's goals for employee pension protection against bankruptcy and lessening of the State's financial burden while also meeting SMCRA requirements.
C. Mont. Code Ann. Sec. 82-4-222(1)(q)
We are approving Montana's proposed revision of Mont. Code Ann. sec. 82-4-222(1)(q). Montana proposed a minor revision to Mont. Code Ann. sec. 82-4-222(1)(q). The specific minor revision to Mont. Code Ann. sec. 82-4-222(1)(q) is a correction of a typographical error, removing the word "and" from the end of the section. Montana does not propose any substantive changes to the text of this previously approved section. Because the proposed revision is minor and results in no substantive changes to the Montana program, we are approving the revision and find that it is no less effective than the corresponding Federal regulations at 30 CFR part 780.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the proposed rule and received none.
Federal Agency Comments
On February 23, 2023, 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 No. MT-040-06). We received one comment from the Bureau of Land Management saying it has reviewed the document and has no comments to offer (Administrative Record No. MT-040-07).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq. ) or the Clean Air Act (42 U.S.C. 7401 et seq. ). None of the revisions that Montana proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. However, on February 21, 2023, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. MT-040-06). The EPA did not respond to our request.
State Historical 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 February 21, 2023, we requested comments on the Montana amendment (Administrative Record No.MT-040-04 and MT-040-05). We did not receive comments from the SHPO or ACHP.
V. OSMRE's Decision
[top] Based on the above findings, we are approving, in part, Montana's proposed amendment (MT-040-FOR) that it sent to OSMRE on February 26, 2023
VI. Statutory and Executive Order Reviews
Executive Order 12630-Governmental Actions and Interference With Constitutionally Protected Property Rights
This rule would not effect a taking of private property or otherwise have taking implications that would result in public 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, Executive Order 13563-Improving Regulation and Regulatory Review, and Executive Order 14094-Modernizing Regulatory Review
Executive Order 12866, as amended by Executive Order 14094, 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 (OMB Memo M-94-3), the approval of State program amendments is exempted from OMB review under Executive Order 12866, as amended by Executive Order 14094. 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 Section 3 of Executive Order 12988. The Department 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 proposed regulations to eliminate drafting errors and ambiguity; that the agency write 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 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 State regulatory program amendment that Montana drafted.
Executive Order 13132-Federalism
This rule has potential Federalism implications, as defined under Section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to "grant the States the maximum administrative discretion possible" with respect to Federal statutes and regulations administered by the States. Montana, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the state level. This rule approves in part an amendment to the Montana program submitted and drafted by the State and, thus, is consistent with the direction to provide maximum administrative discretion to States.
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 the distribution of power and responsibilities between the Federal government and Tribes. The basis for this determination is that our decision on the Montana program does not include Indian lands as defined by SMCRA or other Tribal lands and it does not affect the regulation of activities on Indian lands or other Tribal Lands. Indian lands under SMCRA are regulated independently under the applicable approved Federal Indian program. The Department's consultation policy also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. We are currently working to identify and engage appropriate Tribal stakeholders to devise a constructive approach for consulting on these amendments.
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 a significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.
National Environmental Policy Act
Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).
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 on the data and assumptions for the corresponding Federal regulations.
Small Business Regulatory Enforcement Fairness Act
[top] 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
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
State regulatory program approval, State-Federal cooperative agreement, required program amendments.
David A. Berry
Regional Director, Unified Regions, 5, 7-11.
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. In §?926.15 amend in the table by adding an entry in chronological order by "Date of final publication" for "Mont. Code. Ann. 82-4-222(1)(q)" to read as follows:
§?926.15 Approval of Montana regulatory program amendment.
| Original amendment submission date | Date of final publication | Citation/description |
|---|---|---|
| * * * * * * * | ||
| February 26, 2023 | November 19, 2024 | Mont. Code. Ann. 82-4-222(1)(q) Permit Applications-Application Revisions -Approved in part. |
[FR Doc. 2024-26781 Filed 11-18-24; 8:45 am]
BILLING CODE 4310-05-P