[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Rules and Regulations]
[Pages 58480-58492]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28862]
[[Page 58479]]
_______________________________________________________________________
Part VIII
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 701, et al.
Lands Eligible for Remining; Final Rule
Federal Register / Vol. 60, No. 227 / Monday, November 27, 1995 /
Rules and Regulations
[[Page 58480]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 701, 773, 785, 816, and 817
RIN 1029-AB74
Lands Eligible for Remining
agency: Office of Surface Mining Reclamation and Enforcement, Interior.
action: Final rule.
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summary: The Office of Surface Mining Reclamation and Enforcement (OSM)
is issuing final rules at 30 CFR chapter VII implementing changes made
to Title V of the Surface Mining Control and Reclamation Act of 1977
(the Act or SMCRA) by the Energy Policy Act of 1992. The final rules
are intended to provide incentives for the remining and reclamation of
previously mined and inadequately reclaimed lands eligible for
expenditures under section 402(g)(4) or 404 of SMCRA.
effective date: December 27, 1995.
for further information contact: Douglas J. Growitz, P.G., Office of
Surface Mining Reclamation and Enforcement, Room 110 SIB, 1951
Constitution Avenue, NW., Washington, DC 20240; Telephone: 202-208-
2561.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Rules adopted and Responses to Public Comments on Proposed
Rules.
III. Procedural Matters.
I. Background
On October 24, 1992, the President signed into law the Energy
Policy Act of 1992, Pub. L. 102-486. Section 2503 of the Energy Policy
Act, Coal Remining, in part amended sections 404, 510, 515(b)(20), and
701 of SMCRA in order to provide the following incentives to encourage,
in an environmentally-sound manner, the remining of lands eligible for
expenditures under sections 402(g)(4) and 404 SMCRA: (1) The permittee
of such remaining operations shall not be subject to permit blocking
under section 510(c) of SMCRA for any violation resulting from an
unanticipated event or condition occurring on the remaining site; and
(2) The period of responsibility for successful revegetation for such
remining operations is reduced to five years in the West and two years
in the East.
The relevant portion of section 2503 provides as follows:
Section 510 is amended by adding the following new subsection at
the thereof:
(e) MODIFICATION OF PROHIBITION--After the date of enactment of
this subsection, the prohibition of subsection (c) shall not apply
to a permit application due to any violation resulting from an
unanticipated event or condition at a surface coal mining operation
on lands eligible for remining under a permit held by the person
making such application. As used in this subsection, the term
``violation'' has the same meaning as such term has under subsection
(c). The authority of this section and section 515(b)(20)(B) shall
terminate on September 30, 2004.
Section 515(b)(20) is amended to insert (A) after (20) and add the
following new subparagraph at the end thereof:
(B) on lands eligible for remining assume the responsibility for
successful revegetation for a period of two full years after the
last year of augmented seeding, fertilizing, irrigation, or other
work in order to assure compliance with the applicable standards,
except in those areas or regions of the country where the annual
average precipitation is twenty-six inches or less, then the
operator's assumption of responsibility and liability will be
extended for a period of five full years after the last year of
augmented seeding, fertilizing, irrigation, or other work in order
to assure compliance with the applicable standards.
Section 701 is amended by adding the following two new paragraphs:
(33) the term ``unanticipated event or condition'' as used in
section 510(e) means an event or condition encountered in a remining
operation that was not contemplated by the applicable surface coal
mining and reclamation permit; and
(34) the term ``lands eligible for remining'' means those lands
that would otherwise be eligible for expenditures under section 404
or under section 412(g)(4).
The purpose of section 2503 was set forth in the House of
Representatives Report from the Committee on Interior and Insular
Affairs on H.R. 776, the predecessor bill in the House of
Representatives (H.R. Rep. No. 102-474, 102d Cong., 2d Sess. 85 (1992))
which contains the following discussion: ``The (coal remining)
provisions of this section seek to make coal available that otherwise
would be bypassed by providing incentives for industry to extract and
reprocess, in an environmentally sound manner, coal that remains in
abandoned mine lands and refuse piles. Current law reclamation
performance standards were devised to address surface coal mining on
undisturbed lands; the unintended result is to discourage remining.
Remining also serves to mitigate the health, safety, and environmental
threats posed to coal field residents by augmenting the work done under
the Abandoned Mine Reclamation Program.''
To implement sections 510(e) and 515(b)(20)(B) of SMCRA, OSM
proposed rules on June 2, 1994 (59 FR 28744) which would: (1) Revise 30
CFR 701.5, Definitions; 30 CFR 773.15, Review of Permit Applications;
30 CFR 816.116 and 817.116, Revegetation: Standards for Success; and
(2) add a new 30 CFR 785.25, Lands Eligible for Remining.
Public comments were received until August 1, 1994. No public
meetings nor hearings were requested or held. OSM received letters in
response to the June 2, 1994, proposed rule from eight commenters
representing industry, State regulatory authorities, Federal agencies,
Environmental groups, and individual citizens. OSM has reviewed each
comment carefully and has considered the commenters' suggestions and
remarks in writing this final rule.
OSM previously implemented another remining provision of the Energy
Policy Act dealing with AML eligibility under a separate rulemaking (59
FR 28136, May 31, 1994). A provision dealing with abandoned coal refuse
sites is also being addressed under a separate rulemaking.
II. Rules Adopted and Responses to Public Comments on Proposed
Rules
1. 30 CFR Part 701--Permanent Regulatory Program
Section 701.5, Definitions, is being amended by adding two terms--
``lands eligible for remining'' and ``unanticipated event or
condition''--both of which were defined in section 2503(c) of the
Energy Policy Act.
a. Lands eligible for remining. The definition adopted for the term
``lands eligible for remining'' is the same as the proposal and the
definition is section 701(34) of SMCRA. Under the final rule, ``lands
eligible for expenditures under sections 404 or 402(g)(4) of the Act.
Thus, the following lands would be included under this definition:
those lands which were mined by surface coal mining operations or
otherwise affected by surface or underground mining operations and
which were either (1) abandoned or left in an inadequate reclamation
status prior to August 3, 1977, and for which there is no continuing
reclamation responsibility under State or other Federal laws; (2)
abandoned or left in an inadequate reclamation status after August 3,
1977 but before State received primacy under SMCRA and for which
available bond is insufficient to provide for adequate reclamation; or
(3) completed being mined between August 4, 1977, and November 5, 1990,
and remain unreclaimed due to the insolvency of a surety company
occurring during that same period.
[[Page 58481]]
Many remining operations involve the surface mining or
``daylighting'' of underground workings. Depending on the extent that
overlaying or adjacent surface lands are affected by the prior
underground workings, e.g., through subsidence, those lands may or may
not fall within section 701(34)'s definition of ``lands eligible for
remining.'' if, under the example above, the surface disturbances
resulting from previous underground mining are so slight that the lands
do not constitute ``lands eligible for remining,'' the ``daylighting''
of the underground workings would then not qualify for the remining
incentives provided by sections 510(e) and 515(b)(20)(B) and
implemented by this rulemaking.
One commenter suggested that the definition of ``lands eligible for
remining'' contain the phrase ``under a permit issued prior to
September 30, 2004.'' Although OSM has not made the suggested change to
the definition, OSM agrees that Sections 510(e) and 515(b)(20)(B) of
SMCRA apply only to permits issued before September 30, 2004. As
explained below, this concept is reflected in 30 CFR 773.15(b)(4) and
in 30 CFR 816.116 and 817.116.
b. Unanticipated event or condition. The definition adopted for
``unanticipated event or condition'' is similar to the proposal and
consistent with the definition in section 701(33) of SMCRA. An
``unanticipated event or condition'' is defined in the final rule as an
event or condition related to prior mining activity which arises from a
surface coal mining and reclamation operation on lands eligible for
remining and was not contemplated by the applicable permit. Pursuant to
final Sec. 773.15(b)(4), an operator will not be permit blocked for any
violation resulting from an unanticipated event or condition occurring
during the term of such remining permit issued before September 30,
2004, or any renewals thereof. The rationale for the final rules' use
of the term ``arises from'' in lieu of the term ``encountered in'' used
in the statutory definition is discussed later under the heading
``Phase-out of section 510(e) permit block exemption.''
(i) Related to prior mining activity The phrase ``related to prior
mining'' has been added to the final definition of ``unanticipated
event or condition'' to qualify which events or conditions could give
rise to violations subject to the Sec. 773.15(b)(4) permit block
exemption.
This change is made in response to several commenters, one of which
asserted that the proposed definition of ``unanticipated event or
condition'' was too broad to be of practical value and asked whether an
event or condition ``causally related'' to the unreclaimed or
previously mined status of the area covered by the remining permit
would qualify as unantipated. A second commenter suggested that an
unanticipated event or condition must arise from the previously
disturbed nature of the site. A third commenter, citing the history
associated with the development of the remining amendments of the
Energy Policy Act, proposed that an unanticipated event or condition
should embody any event or occurrence that arises from the previously
disturbed nature of the site, including acid mine discharges, despite
substantial adherence to the permit.
OSM agrees with these comments that only unanticipated events or
conditions related to the previously disturbed nature of the site
should qualify for the section 510(e) exemption. The addition of the
qualifying phrase ``related to prior mining activity'' is consistent
with Congressional intent to encourage remining by extending the permit
block exemption of section 510(e) to the problem events or conditions
occasioned by such prior mining operations. OSM does not believe, on
the other hand, that Congress intended to exempt applicants from permit
blocking for violations occurring on the remining site but resulting
from conditions unrelated to previous mining activities. Applicants
would thereby remain permit blocked for violations solely attributable
to their own conduct.
An example of an event or condition which might arise during a
remining operation but not related to the prior mining activity would
be the mining of previously undisturbed toxic coal seams located below
previously disturbed deposits.
An example of an event or condition which might arise during a
remining operation and considered related to the prior mining activity
would be the discovery of hazardous materials or substances buried in
depressions or pits left at an abandoned site. Such an event or
condition would be considered as related to a prior mining activity
because without the previous mining the hazardous materials or
hazardous substances would not have been buried at the site.\1\
\1\ If hazardous materials or hazardous substances of any type
are uncovered or released during remining, the operator must follow
the requirements for notifying the National Response Center as
required by the National Contingency Plan (40 CFR part 300). This
would apply to the discovery or release, whether regulated under the
statutory authority of the Toxic Substances Control Act (TSCA), the
Resource Conservation and Recovery Act (RCRA), or the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA).
These laws are administered by the U.S. Environmental Protection
Agency or State environmental agencies. Additional reporting and
notification requirements may exist under State or local laws.
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OSM is broadly interpreting the qualifying phrase ``related to
prior mining'' so as to afford some practical incentive to remining
while also maintaining consistency with the provisions of the Energy
Policy Act. Thus, for the purposes of this final rule, an event or
condition can qualify as an ``unanticipated'' event or condition if it
is related to prior mining at the site. One commenter asked if OSM
meant only that acts of God could result in unanticipated events or
conditions and requested some clarification in terms of examples. An
act of God resulting in extreme hydrologic conditions might
significantly vary from the permit's estimate and could reasonably
qualify as one example of an unanticipated event or condition if the
event or condition causing the violation is related to prior mining
activity at the site.
(ii) Acid mine drainage. An industry commenter asserted that any
acid mine drainage (AMD) which occurs despite substantial adherence to
a permit should be included in the meaning of ``unanticipated event or
condition'' and pointed to the legislative history of the remining
legislation to further its argument. The commenter cited first to
strong State and industry support for the definition of ``unanticipated
event or condition'' in H.R. 4053 (1990) which it characterized as
addressing the issue of AMD. The commenter then cites to State and
industry opposition to the subsequent provisions of H.R. 1078 (1991)
which would have explicitly excluded from the definition of
``unanticipated event or condition'' any event or condition involving
more than a minimal amount of toxic overburden or pre-existing acid
discharge. Industry concluded that because H.R. 4381 (1992)
substantially carried forward the H.R. 4053 and 1078 definitions of
``unanticipated event or condition'' but deleted the objectionable H.R.
1078 exclusion for toxic overburden or pre-existing acid discharge, and
that H.R. 776 (1992) incorporates that definition as the eventual
Energy Policy Act definition, AMD should therefore be included within
the meaning of ``unanticipated event or condition.
OSM agrees with the commenter that the Energy Policy Act does not
exclude AMD as a type of condition which may constitute an
``unanticipated event or condition.'' On the other hand, although the
Energy Policy Act does not include the AMD exclusion language of H.R.
1078, neither does the legislative history
[[Page 58482]]
indicate that Congress intended for all AMD to be categorically
included within the meaning of ``unanticipated event or condition.''
Clearly the issues of AMD and the allowance to be given in remining to
toxic overburden and pre-existing acid discharge were high profile and
controversial among environmentalist, industry and regulatory
supporters during the drafting of all the cited House Bills. The
hearings on these Bills reflect a recognition that the definition of
``unanticipated event or condition'' later incorporated into the Energy
Policy Act did not address or resolve the AMD issue. (See Testimony of
Dave Rosenbaum, Dept. Commissioner, Kentucky Natural Resources and
Environmental Protection Cabinet, H.R. 4053, 101-72, March 13, 1990).
Therefore, OSM concludes that AMD should be treated like any other
condition to be evaluated on a case-by-case basis to determine whether
it constitutes an ``unanticipated event or condition.''
2. 30 CFR Part 773--Requirements for Permits and Permit Processing
Section 773.15, Review of Permit Applications, is being amended by
adding two new paragraphs, (b)(4) and (c)(13). These paragraphs will
generally correspond to proposed paragraphs (f) and (c)(13) of
Sec. 773.15.
(a) Sec. 773.15(b)(4). Final Sec. 773.15(b)(4) (proposed
Sec. 773.15(f)) implements section 510(e) of SMCRA which establishes an
exemption from the permit blocking provisions of section 510(c) of
SMCRA. Subsequent to October 24, 1992, the final rule exempts from the
permit-block provisions of paragraph (b) of Sec. 773.15 situations
where an unabated violation occurring after that date is attributed to
an unanticipated event or condition arising from a remining site under
a permit issued before September 30, 2004, or any renewals thereof. In
such cases, the person holding the remining permit would not be
rendered ineligible for a new surface coal mining permit at another
site simply because of the unabated violation at the remining site.
Responsibility to abate the violation, however, is not affected by the
final rule.
(i) Sec. 773.15(b)(4)(i). Final Sec. 773.15(b)(4) has been divided
into two paragraphs (i) and (ii). Although paragraph (b)(4)(i) was
originally proposed as Sec. 773.15(f), OSM believes the permit block
exemption related to unabated violations resulting from an
unanticipated event or condition is more appropriately located in
Sec. 773.15(b) which deals with review of violations.
Phase-In of Section 510(e) Permit Block Exemption
Comments were received seeking clarification as to the rule's
phase-in i.e., when must violations have occurred and when must
remining permits have been issued to qualify for the section 510(e)'s
permit block exemption. In addition, OSM recently approved an amendment
to the Kentucky regulatory program which substantially tracked section
510(e) of the Act (60 FR 33110, June 27, 1995). This amendment, Senate
Bill 208, also focussed OSM on the need for further clarification of
the proposed rule's section 510(e) permit block exemption as to when
remining permits need to have been issued to have violations at the
site qualify for that exemption.
By its own terms, the permit block exemption in section 510(e) of
SMCRA applies to all section 510(c) determinations that occur
subsequent to October 24, 1992. Thus, final Sec. 773.15(b)(4)(i)
includes the introductory phrase ``Subsequent to October 24, 1992,'' as
identifying the date after which a determination can be made as to the
applicability of the exemption of Sec. 773.15(b)(4).
In partial response to comments discussed below, the final rule's
Sec. 773.15(b)(4) permit block exemption will extend to unabated
violations (1) occurring after section 510(e)'s October 24, 1992,
enactment date; and (2) resulting from an unanticipated event or
condition occurring under remining permits issued either before or
after that same date. This clarification as to the intended reach of
Sec. 773.15(b)(4) is consistent with OSM's approval of the Kentucky
State program amendment substantially tracking section 510(e)'s
provisions.
One commenter representing several environmental associations
stated that the goals of the October 24, 1992, amendments would be best
served by limiting the application of the section 510(e) permit block
exemption to violations that occur on a remined site after that date
and under a remining permit issued in accordance with the provisions of
the amended Act. (It also made similar comments on the Kentucky
amendments.) In support of these positions, the commenter made a number
of assertions. With regard to limiting the permit block exemption to
violations that occur after October 24, 1992, the commenter asserted
that Congress intended the remining provisions of the Energy Policy Act
to be forward-looking in seeking to provide an incentive for future
operations on previously mined and abandoned areas. In support thereof,
it referenced the H.R. Rep. No. 102-474, at 85 (1992), as well as the
existence of significant pre-Energy Policy Act mining of previously
mined and abandoned areas. The commenter further asserted that Congress
intended the section 510(e) permit block exemption to be narrowly
interpreted and not used to excuse applicants who had been previously
permit blocked because of pre-Energy Policy Act violations. It again
referenced the House Report at 85.
This commenter also asserted that limiting the section 510(e)
permit block exemption to violations occurring under a remining permit
issued in accordance with the provisions of the amended Act would
couple existing informational requirements in part 773 with those of
proposed Sec. 785.25 to provide a more comprehensive objective
assessment of site conditions against which any claim of
``unanticipated event'' could be assessed.
Finally the commenter asserted that the Act's section 701(33)
definition of the phrase ``lands eligible for remining'' implies a
determination by the regulatory authority in advance of issuing a
remining permit that the site would otherwise be eligible for AML
expenditures.
OSM agrees that the plain language of the section 510(e) permit
block exemption limits its application to violations that occurred on a
remining site after the October 24, 1992, amendment date. Inclusion of
the statutory phrase ``(a)fter the date of enactment of this
subsection,'' in section 510(e) of SMCRA evinces a clear Congressional
intent that the provision be prospective from October 24, 1992, and
relate to events occurring after that date. OSM also agrees with the
commenter that the legislative history of the exemption supports such a
limitation and that persons already permit-blocked under section 510(c)
of SMCRA for violations occurring before October 24, 1992, could not
become unblocked by enactment of section 510(e). Accordingly, the
section 510(e) permit block exemption of final Sec. 773.15(b)(4)(i)
will be limited to violations occurring after October 24, 1992.
The incentive for future remining provided by the section 510(e)
permit block exemption logically extends both to parties already
conducting remining operations as of October 24, 1992, and those
contemplating entirely new remining operations after that date. For the
first group, section 510(e) provides some incentive to continue
remining.
[[Page 58483]]
For the second group, section 510(e) provides an incentive to begin
remining new properties.
OSM disagrees with the commenter's suggestion that the goals of the
1992 amendments would be best served by limiting the section 510(e)
permit block exemption to post-October 24, 1992, violations occurring
at a remining permit issued only in accordance with the provisions of
the amended Act, i.e., a Sec. 785.25 permit. Although the language of
section 510(e) and its legislative history limits the exemption to
post-October 24, 1992, violations, neither the language of section
510(e) nor its legislative history requires that the permit be issued
after October 24, 1992, or under Sec. 785.25 or a State program
equivalent.
While the commenter's suggestion of limiting the permit block
exemption to Sec. 785.25 permits would provide enhanced information on
site conditions, there are practical considerations which would weigh
against such a suggestion. For primacy States, limiting the permit
block exemption to Sec. 785.25 permits would further postpone the
availability of the exemption until 1996 or 1997 because of the time
normally needed to submit and gain approval of a state program
amendment. The commenter's suggestion of limiting the permit block
exemption to Sec. 785.25 permits would, therefore, not accommodate the
plain language of the Act and clear legislative intent that the
remining amendments provide a timely incentive for the remining of
previously abandoned mine lands.
The commenter's suggestion that the section 510(e) exemption be
limited to Sec. 785.25 permits would also conflict with its previously
discussed position that the section 510(e) exemption be limited to
post-October 24, 1992, violations occurring on remining sites. For the
remining incentive of section 510(e) to apply to violations occurring
immediately following the October 24, 1992, enactment date, the
underlying remining permit would have had to have been issued prior to
that date. Accordingly, OSM does not interpret section 510(e) as
imposing a post-October 24, 1992, limitation on when permits must have
been issued to qualify for the permit block exemption.
In addition, contrary to the commenter's assertion, the Act's
section 701(33) definition for ``lands eligible for remining'' does not
establish the requirement for a determination by the regulatory
authority in advance of issuing a remining permit that the site would
otherwise be eligible for AML expenditures. While final
Sec. 773.15(c)(13) will require a ``lands eligible'' finding before
issuance of remining permits in the future under Sec. 785.25, the
determination of ``lands eligible'' for remining will also have to be
made for existing permittees seeking to avail themselves under
Sec. 773.15(b)(4)(i) of the section 510(e) permit block exemption.
On the basis of the above discussion, the phase-in for the section
510(e) permit block exemption at Sec. 773.15(b)(4)(i) will be tied to
the date of violation but not to the date of permit issuance.
Violations must have occurred after October 24, 1992, and resulted from
an unanticipated event or condition arising from surface coal mining
and reclamation operations on lands eligible for remining under a
permit issued either before or after that date.
Phase-Out of Section 510(e) Permit Block Exemption
Final paragraph (b)(4)(i) does not contain the language of proposed
paragraph (f) that the permit block prohibition of paragraph (b) shall
not apply ``(u)ntil September 30, 2004.'' In its place, final paragraph
(b)(4)(i) provides that the permit block prohibitions of paragraph (b)
shall not apply to ``* * * any violation resulting from an
unanticipated event or condition * * * under a permit, issued before
September 30, 2004, or any renewal thereof * * *.'' Thus final
Sec. 773.15(b)(4)(i) provides that the permit block exemption will
continue to be available for violations occurring on lands eligible for
remining under a remining permit issued before September 30, 2004, or
any renewals thereof, even if the Sec. 772.15(b)(4) determination
occurs after that date.
This change in the final regulatory text from the proposed rule
implements the phase-out provision of section 510(e) and is made in
response to comments received from industry and State regulatory
authorities. These commenters questioned the apparent intent of the
proposed rule language that the permit block exemption would continue
only until September 30, 2004. The effect of such provision was seen as
allowing a company to be permit blocked on October 1, 2004, and
thereafter, for a violation occurring on an eligible remining site
permitted before September 30, 2004, which had earlier been exempted
from the permit block section. The industry commenter asserted that
Congress could not have intended an anomalous result such that one
violation would be excluded from causing a permit block and
subsequently form the basis for causing a permit block. Viewing the
whole of the language of section 510(e) and not limiting itself solely
to the provision which provided that ``(t)he authority of (that)
section shall terminate on September 30, 2004,'' that commenter
asserted that what Congress intended was to provide an exemption from
the permit blocking provisions of section 510(c) for violations
resulting from unanticipated events or conditions under permits issued
prior to September 30, 2004, and not to provide such an exclusion on a
temporary basis for violations occurring prior to September 30, 2004,
but which exemption would suddenly disappear after September 30, 2004.
The commenter cited to the following language of section 510(e) as
confirming this intent since it renders section 501(c) inapplicable to
``any violation resulting from an unanticipated event of condition at a
surface coal mining operation on lands eligible for remining under a
permit held by the person * * *.'' (emphasis added by commenter).
The commenter reasoned that this language clearly ties the
exemption to the date of issuance of the remining permit, not the
violation. Accordingly, the commenter stated that the language of
section 510(e) terminating the authority of the section on September
30, 2004, should be construed to foreclose the permit block exemption
to violations under a permit issued subsequent to that date. In turn,
the final regulatory rule language should clearly set forth that the
exemption applies to any violation arising from an unanticipated event
or condition at a remining operation under a permit issued prior to
September 30, 2004.
While OSM does not view the discerning of Congressional intent as
to the termination of authority provisions of section 510(e) to be as
clear-cut as portrayed by the commenter, OSM agrees with the principal
arguments set forth above. Viewing the permit blocking exemption of
section 501(e) as a whole, the emphasis should not be on whether the
violation occurred before September 30, 2004, but whether the remining
permit was issued before authority to grant such exemption terminated
on September 30, 2004. Congress could not have reasonably intended for
the small violation a ``now you are not permit blocked, now you are
permit blocked'' approach. Scant incentive for remining would be
provided if the permit block exemption for violations at a remining
site would be temporary and expire on September 30, 2004. OSM
interprets the termination date, September 30, 2004,
[[Page 58484]]
as the last date upon which a remining permit may be issued for which
violations resulting from an unanticipated event or condition may be
excluded from future permit block determinations.
In support of this statutory interpretation, OSM notes that by
2004, an increasingly large proportion of remining permits will meet
the standards of Sec. 785.25. These permits' enhanced requirements for
site condition information and identification of event/condition-
specific mitigation measures will go far to ensure that the section
510(e) permit block exemption will not be abused. Interpreting the
section 510(e) permit block exemption so as to tie its termination of
authority provision to the date of issuance of the remining permit, not
to the date of the violation or to the date of the section 510(c)
determination, promotes a clear Congressional intent with respect to
the remining amendments to SMCRA to provide, in an environmentally
sound manner, a meaningful incentive for the remining of previously
abandoned sites. H.R. Rep. No. 102-474, at 85 (1992).
Accordingly, final paragraph (b)(4)(i) provides that the exclusion
will continue to be available for violations occurring on lands
eligible for remining under a remining permit issued prior to September
30, 2004, and any renewals thereof.
Final paragraph (b)(4)(i) also includes the term ``and any renewals
thereof'' to indicate that the permit block exemption will apply to
unabated violations occurring under permits issued before September 30,
2004, and subsequently renewed. The baseline information from which a
Sec. 773.15(b)(4) determination will be made as to whether a violation
results from an unanticipated event or condition also does not change
if the violation occurs during the original permit term or its renewal.
While the ``and renewals thereof'' provision is consistent with
Congressional intent to provide a remining incentive for operations on
lands eligible for remining, OSM does not anticipate many occurrences
when a qualifying Sec. 773.15(b)(4) violation would first occur during
the permit renewal period. In most cases, the mining on lands eligible
for remining will be accomplished well within the original 5-year
permit term.
Final paragraph (b)(4)(i) uses the term ``arises from'' in lieu of
the term ``encountered at'' used in the statutory definition of
``unanticipated event or condition'' indicating that a violation
resulting from an unanticipated event or condition can arise from a
remining operation and does not have to be encountered at that remining
operation in order to qualify for the permit block exemption. For
further discussion of when a violation may arise away from a remining
operation but as a result of an unanticipated event or condition
occurring at the remining operation, see a. (ii) Abatement obligation
continues.
(ii) Sec. 773.15(b)(4)(ii). Final Sec. 773.15(b)(4)(ii) represents
provisions taken from other parts of the proposed rule relocated in
this paragraph. Final paragraph (b)(4)(ii) provides that events or
conditions arising subsequent to permit issuance related to prior
mining which were not identified in the permit issued under Sec. 785.25
shall be presumed to constitute unanticipated events or conditions for
the purposes of Sec. 773.15(b). This provision is derived from proposed
Sec. 773.15(c)(13) and has been moved in the final rule to paragraph
(b)(4)(ii) as proper part of the regulatory authority's
Sec. 773.15(b)(4) determination of whether events or conditions are
unanticipated. The ``may be presumed'' language of proposed
Sec. 773.15(c)(13) was changed in the final rule to ``shall be
presumed'' as discussed below in response to comments.
The final rule drops the proposed heading for paragraph (b)(4),
``Lands eligible for remining'' to be consistent with the format of
other paragraphs.
Presumption of Unanticipated Event or Condition
OSM recognizes that without a reasonable degree of certainty as to
their regulatory application, the remining provisions proposed as
incentives for remining operations would not serve as an effective
incentive for remining. Thus, certain changes from the proposed to the
final rules reflect an intent to provide such certainty for remining
operations. Most particularly is the change from the language of
proposed Sec. 773.15(c)(13) that events or conditions arising
subsequent to permit issuance ``may be presumed'' to constitute
unanticipated events or conditions to the language of final
Sec. 773.15(b)(4)(ii) that such events or conditions arising subsequent
to permit issuances ``shall be presumed'' to constitute unanticipated
events or conditions. Operators will be able to rely on the provision
that once a Sec. 785.25 permit has been issued, events or conditions
not identified in the permit shall be presumed to constitute
unanticipated events or conditions for the purposes of the permit block
exemption of Sec. 773.15(b). This is primarily predicated upon the
operator performing a due diligence investigation to determine which
events or conditions are reasonably anticipated and then identifying
such events or conditions in the permit application. This presumption
could be rebutted if a permit applicant fails to identify significant
potential environmental or safety problems related to prior mining
activity at the site which could have been reasonably anticipated to
occur and were known to the applicant or should have been known to the
applicant through the due diligence investigation required under
Sec. 785.25.
This change of language in final Sec. 773.15(b)(4)(ii) to the words
``shall be presumed'' is not intended to diminish the substantial
flexibility available to, and the responsibility of, a regulatory
authority prior to permit issuance to make its own informed judgment as
to which events or conditions should be properly identified in the
permit application. Final Sec. 785.25(b) requires an identification of
potential environmental and safety problems which could be reasonably
anticipated to occur at the site. The identification would be based on
a due-diligence site-specific investigation. Under final
Sec. 773.15(c)(13), the regulatory authority is required to make a
finding for Sec. 785.25 permits that the permit application contains an
identification of the particular environmental and safety problems
which could reasonably be anticipated to occur at the site.
The Presumption for Permits Not Issued Under Section 785.25
As discussed above under the Phase-in of Section 510(e) permit
block exemption, the permit block exemption of Sec. 773.15(b)(4)(i)
extends to permits in existence on October 24, 1992, and is not limited
to permits solely issued under Sec. 785.25. Permits for lands eligible
for remining not originally issued under Sec. 785.25 but subsequently
revised and upgraded to satisfy the permit information and permit
finding requirements of Secs. 785.25 and 773.15(c)(13) would qualify
for the Sec. 773.15(b)(4)(ii) presumption.
Permits for lands eligible for remining not originally issued under
Sec. 785.25 and not subsequently revised to satisfy the permit
information and permit finding requirements of Secs. 785.25 and
773.15(c)(13) would not qualify for the Sec. 773.15(b)(4)(ii)
presumption. An applicant for a new permit in such circumstances would
have the burden of establishing that any violation which arose at one
of these non-Sec. 785.25 permits resulted from an unanticipated event
or condition. OSM agrees with a commenter that it is likely to be more
difficult to establish for these permits that violations resulted from
[[Page 58485]]
unanticipated events or conditions than for future permits issued or
revised in accordance with Sec. 785.25 which will have identified
reasonably anticipated problems and for which the Sec. 773.15(b)(4)(ii)
presumption applies.
Several comments to the proposed rule were received regarding
application of the ``unanticipated event or condition'' language. One
industry group asserted that events or conditions should be considered
unanticipated for the purposes of the section 510(e) exemption if the
operator substantially adheres to its operation and reclamation plans.
The industry commenter stated that this was Congress' initial
understanding of such events or conditions and cited statements made by
Rep. Rahall both in introducing H.R. 4053 (101st Cong., 1990), an early
predecessor to the Energy Policy Act, and later in hearings on that
bill. Rep. Rahall is quoted as stating that H.R. 4053's provision were
intended to free a qualified operator from responsibility to address an
event or condition encountered during a remining operation that was not
originally anticipated under an approved reclamation plan. Furthermore,
the H.R. 4053 provisions were stated as intending to provide the
regulatory authority with some ``wiggle room'' as to what constitutes
an unanticipated event or condition.
OSM agrees with the commenter's position but not for the reasons
asserted. OSM agrees that where a permit applicant diligently conducted
an investigation to identify conditions that are reasonably
anticipated, and references such conditions in the permit application,
the operator should be able to have a degree of comfort that he will
not be permit blocked for violations resulting from non-identified
conditions which occur despite compliance with the operation and
reclamation plans. This is the presumption set forth in
Sec. 773.15(4)(ii). A permit not predicated upon such complete
information, however, will not be entitled to the presumption.
OSM does not agree with the commenter that the legislative history
of the Energy Policy Act mandates that an event or condition that
occurs despite an operator's adherence to its operations and
reclamation plans should always constitute an ``unanticipated event or
condition'' for the purposes of the section 510(e) exemption. Rep.
Rahall's referenced introduction to H.R. 4053 would have tied reduced
operator liability to full compliance with the reclamation plan but
only with regard to providing operators a date-certain release of their
reclamation bond. While earlier H.R. 2791 (101st Cong., 1989) did
contain specific provisions terminating (all) operator liability for
compliance with all the requirements of the permit and reclamation
plan, such provisions were not carried forward to H.R. 4053 (1990),
H.R. 1078 (102nd Cong., 1991), H.R. 4381 (102nd Cong., 1992), H.R. 776
(102nd Cong., 1992), or to the Energy Policy Act of 1992.
Penalties To Be Assessed
One commenter suggested that OSM has discretion not to require a
civil penalty for violations tied to unanticipated events or
conditions. The commenter further suggested that OSM should adopt a
policy whereby civil penalties are not assessed for violations arising
from unanticipated events or conditions. OSM finds no basis in the
Energy Policy Act or its legislative history to support either
suggestion.
Delinquencies Not Covered by Exemption
In the preamble to the proposed rule OSM posed the question of
whether the nonpayment of delinquent penalties assessed after a notice
of violation or a failure-to-abate cessation order based on an ``on the
ground'' violation resulting from an unanticipated event or condition
should be covered by the Energy Policy Act permit block exemption. OSM
stated in the proposed rule that it intended that such delinquencies,
which are violations themselves, would be covered by the exemption if
they were construed as ``resulting from an unanticipated event or
condition at a surface coal mining operation.'' OSM sought comments on
this issue but no comments were received.
Upon consideration, OSM concludes that the non-payment of
delinquent civil penalties assessed because of an unabated violation
resulting from an unanticipated event or condition should not be
construed as resulting from the underlying unanticipated event or
condition. OSM has reached this conclusion because non-payment of
penalties is a violation solely within an operator's control and is
independent of the underlying on-the-ground violation caused by the
unanticipated event or condition. This construction of the permit block
exemption will still afford substantial incentive for remining while
limiting the exemption to unabated violations resulting from events or
conditions which could not reasonably have been anticipated at the time
of the remining permit's issuance.
Abatement Obligation Continues
Another commenter asked whether an operator cited for a violation
related to an unanticipated event or condition occurring on land
eligible for remining would have an obligation to reclaim or resolve
such violation even though the operator would not be permit blocked
because of it. Nothing in the Energy Policy Act nor this final
rulemaking insulates the operator from his existing responsibilities to
abate his violations whether or not they stem from anticipated or
unanticipated events or conditions. Neither is that operator insulated
from other enforcement actions stemming from these unabated violations.
A third commenter questioned particular preamble discussion in the
proposed rule and asked that the final rule clarify that a violation
occurring off the remining site that results directly from an
unanticipated event or condition occurring on the remining site is also
subject to the permit-block exemption. The commenter correctly noted
that the Energy Policy Act requires only that the unanticipated event
or condition, not necessarily the violation itself, be at a surface
coal mining operation on lands eligible for remining. In response to
this comment and consistent with substantial preamble discussion in the
proposed rule and as discussed elsewhere in this final preamble, OSM
confirms that a violation that occurs off-site but as a direct result
of an unanticipated event or condition occurring on the remining site
is also covered by the Sec. 773.15(b)(4) permit block exemption.
As discussed in the proposed rule, if a mining operator on a
previously undisturbed site contributes to a violation occurring on
that site but originating from an unanticipated event or condition on
an adjacent or nearby remining operation, and if the operator of the
previously undisturbed site did not abate the violation, he would be
permit blocked. On the other hand, if the operator of the previously
undisturbed site did not contribute to the unabated violation occurring
on his site, he would not be permit blocked.
OSM's proposed rule sought comments on this and other possible
examples of interplay between remining operations and adjacent
operations which needed to be explained in the final rulemaking. Two
commenters responded. The first stressed that the operator of a
previously undisturbed site should not be held responsible for any
condition on his own site that originated from a nearby remining
operation, whether the originating event
[[Page 58486]]
or condition is anticipated or not. OSM agrees that the liability of
operators for events or conditions originating on a nearby remining
site should not be a function of whether or not the originating event
or condition was anticipated. As discussed above, an operator of a
previously undisturbed site would be responsible for events or
conditions on his site that originated from a nearby site only if his
operation contributed to that event or condition.
The same commenter asserted that operators should not be held
responsible for correcting conditions that are caused by or stem from
existing abandoned mine lands. SMCRA, as amended by the Energy Policy
Act, provides, under restricted circumstances, for an exemption to the
permit block provisions of section 510(c) and for reduced periods of
responsibility for successful revegetation. These amended SMCRA
sections (510(e) and 515(b)(20)(B)) do not, however, provide exemption
from other existing regulatory standards as the commenter would
suggest. OSM's position on this issue is also consistent with the
second commenter who correctly noted that an operator is responsible
for meeting effluent limits where runoff from other sites is commingled
with runoff from his own site.
c. Section 773.15(c)(13). A new final Sec. 773.15(c)(13) will
require the regulatory authority to make three findings in order to
issue permits under new 30 CFR 785.25: (1) The permit application
contains lands eligible for remining; (2) The permit application
identifies potential environmental and safety problems reasonably
anticipated to occur at the site; and (3) The permit application
contains mitigation plans to address the identified potential
environmental and safety problems in order to ensure that the required
reclamation can be accomplished.
(i) Comparison of proposed and final Sec. 773.15(c)(13). Final
Sec. 773.15(c)(13) differs from proposed paragraph (c)(13) in the
following ways: Final paragraph (c)(13) does not contain the references
to parts 779, 780, 783, and 784 found in the proposal. These parts are
included implicitly in the phrase ``Any application for a permit under
this section shall be made according to all requirements of this
subchapter applicable to surface coal mining and reclamation
operations'' contained in proposed and final Sec. 785.25(b). The
proposed reference to these Parts at Sec. 773.15(c)(13) was therefore
duplicative of Sec. 785.25 provisions. The final rule also does not
contain the proposed requirement that the regulatory authority set a
threshold beyond which conditions or events arising subsequent to the
issuance of the remining permit may be presumed to constitute
unanticipated events or conditions for the purposes of Sec. 773.15(f).
As will be discussed later under the analysis for final rule
Sec. 785.25, the majority of the environmental, industry, and
regulatory commenters strongly opposed the proposed threshold. In lieu
of requiring the regulatory authority to set some threshold, OSM will
instead at paragraph (c)(13)(ii) require the regulatory authority to
make a permit finding, based on permit information required in new
Sec. 785.25(b)(1), that the application identifies the potential
environmental and safety problems related to prior mining activity
which could reasonably be anticipated to occur at the site.
Final Sec. 773.15(c)(13)(iii) requires the regulatory authority to
make a finding based on the permit information required in new
Sec. 785.25(b)(2) that the application contains sufficient mitigation
plans for each of the previously identified environmental or safety
problems to ensure that the required reclamation can be accomplished.
This required finding as to the sufficiency of the mitigation plans is
expected to increase the likelihood that the targeted environmental or
safety problems will be fully reclaimed by the operator. Such
reclamation would not require a subsequent draw on the Abandoned Mine
Reclamation funds and thus could extend the reach of these limited
monies.
3. 30 CFR Part 785--Requirements for Permits for Special Categories of
Mining
The final rule adds a new 30 CFR 785.25, Lands eligible for
remining.
Final Sec. 785.25 (a) identifies this section as containing the
permitting requirements necessary for the regulatory authority to make
a Sec. 773.15(b)(4) determination. Paragraph (a) also requires that any
person who submits a permit application to conduct a surface coal
mining operation on lands eligible for remining must comply with the
provisions in paragraphs (b) and (c).
Final Sec. 785.25(b) prescribes that a Sec. 785.25 permit
application comply with all applicable 30 CFR subchapter G permitting
requirements for surface coal mining and reclamation operations.
Paragraph (b)(1) requires that the application identify potential
environmental and safety problems at the proposed site related to past
mining which could be reasonably anticipated to occur based on all
available data, including visual observations at the site, a record
review of past mining at the site, and sampling tailored to current
site conditions. Paragraph (b)(2) requires that the application
describe the mitigative measures which will be taken to ensure that the
requisite reclamation of the previously identified environmental and
safety problems can be achieved.
Final Sec. 785.25(c) provides that the requirements of this section
shall not apply after September 30, 2004.
(i) Comparison of proposed and final Sec. 785.25. The final rule
differs from proposed Sec. 785.25 in the following ways: First, the
language of proposed paragraph (a) applying this section to any person
who conducts or intends to conduct a surface coal mining operation on
lands eligible for remining has been replaced in final paragraph (a)(1)
with more direct language obligating such persons to comply with this
section's requirements. Final paragraph (a)(2) also includes new
language to reflect the rule's reorganization from one in which the
regulatory authority's section 510(e) permit block exemption
determination was based on a threshold set by that authority in
proposed Sec. 773.15(c)(13) to one in which the permit block exemption
determination is based foundationally on the site condition information
contained in a Sec. 785.25 permit application and the permit finding
requirements of Sec. 773.15(c)(13).
Reasonably Anticipated Problems
The proposed Sec. 785.25(b)(1) requirement for an identification of
all potential environmental and safety problems associated with the
site has, in response to comments, been eliminated in favor of the
final Sec. 785.25(b)(1) which requires identification of all reasonably
anticipated environmental and safety problems which might occur at the
site. Proposed paragraph (b)(1) would have required an open-ended
quantitative risk analysis. From the data gained from this analysis and
the data provided under other specific permitting sections, the
regulatory authority would have, under proposed Sec. 773.15(c)(13), set
a threshold beyond which subsequent conditions or events may be
presumed to be unanticipated for the purposes of the section 510(e)
permit block exemption.
Final Sec. 785.25(b)(1) requires a due-diligence investigation by
the applicant tailored to each remining site from which the applicant
is expected to generate a list of environmental and safety problems
related to past mining which could be reasonably anticipated to occur
at the site. The due-diligence investigation requires a review of all
available data including visual observations, a review of records
[[Page 58487]]
associated with past mining, and necessary environmental sampling. The
list of problems will be the basis of the regulatory authority's
finding in final Sec. 773.15(c)(13) and any subsequent
Sec. 773.15(b)(4) permit block exemption determination.
Although the proposed rule's risk analysis/threshold approach may
have proven to be the most protective of the environment in its
determination of anticipated events or conditions, OSM's preamble to
the proposed rule reflected the agency's reservation as to the
practicability of its implementation. These reservations were confirmed
by the weight of comment response.
Two commenters provided qualified endorsement of the proposed risk
analysis/threshold approach. The first commenter supported that
approach because it required consideration of the previous disturbed
character of the land, which was felt to be lacking under existing
regulations. In suggesting an alternative expression of probability,
the commenter was, however, careful to exclude from consideration
events or conditions which might be deemed highly unlikely to occur.
The second commenter was concerned that the proposed requirement to
establish maximum impacts would dramatically increase the risk of
permit block to the point where remining would not occur and could
limit the flexibility of regulators to account for site-specific
conditions. This commenter felt that restructuring the proposed rule's
threshold should be based instead on considerations of events or
conditions that could be ``reasonably foreseen based on available
information'' and allowing for the use of ``best professional judgement
by the applicant and regulator'' would significantly improve the
proposed rule's ability to meet the intent of the Energy Policy Act to
provide specific incentives for remining.
Three commenters, including environmental and industry
associations, strongly opposed the risk analysis/threshold approach of
proposed Secs. 785.25(b)(1) and 773.15(c)(13). They characterized its
components--the probability and maximum degree of impact analyses, the
identification of all potential problems, and the setting of a
threshold--all to be unrealistic, too costly and time-consuming, an
invitation to litigation, and lacking readily-available supporting
technical methodology for conducting the requisite undertakings. One of
these commenters questioned the statutory basis for the proposal's
reliance on the aforementioned component parts as creating an all-
inclusive term seen as expanding the limited standards set by Congress
for the term ``unanticipated event or condition.''
All three commenters represented that existing regulatory
permitting requirements provided sound basis upon which to assess and
characterize pre-mining site conditions. The commenter representing the
industry association suggested that a ``good faith'' listing of
potential problems could be made on the basis of such baseline
information. The whole of the industry's comment seemed to indicate
that this information must necessarily include sound site-specific data
on hydrology, soils, geology, etc.
The commenter representing the environmental association also
submitted that, based on visual inspection and proper sampling tailored
to the site and a record review of prior mining at the site, potential
problems could be reasonably anticipated. Such site-specific
investigations were characterized as necessary for establishing a
comprehensive, objective assessment of site conditions from which a
reclamation plan could be developed and against which any later claims
of ``unanticipated event'' could, in turn, be assessed.
In response to the objections posed by these commenters to the risk
analysis/threshold approach of the proposed rule, the final rule will
reflect many of the commenters' suggestions for an alternative approach
for determining when an event or condition is unanticipated. Final
Sec. 785.25(b)(1) will require site-specific development of baseline
data based on visual inspection, environmental sampling, and a review
of records of past mining to identify potential problems related to
prior mining activity at the site which could reasonably be anticipated
to occur. A requirement for these site-specific investigations could be
construed to exist already as part of the permanent program
regulations. OSM believes, however, that the potential for
environmental problems occurring is particularly high at remining
sites. Therefore, these investigations have sufficient importance that
they should be expressly required by rule as preconditions to all
Sec. 785.25 remining operations.
OSM submits that the final rule's approach of identifying
``reasonably anticipated'' potential problems will be as effective as
the proposed rule's approach of identifying (all) potential problems in
providing a level of protection commensurate with a reasonable
expectation that certain environmental and safety problems might occur.
The final rule's reliance upon more of reasonably anticipated standard
for identifying potential problems will also substantially reduce the
information gathering burden associated with the analyses that would
have been required under the proposed rule.
Degree of Variance from Anticipated Problem
OSM intends that the final Sec. 785.25(b)(1) identification of
potential problems reasonably anticipated to occur will extend not only
to an identification of the type of such problems but also the degree
of such problems, e.g., that AMD is anticipated at a rate of 150
gallons per minute (gpm).
The allowable degree of variance from an anticipated problem is an
issue indirectly raised by associations representing both environmental
and industry interests. The commenter representing the environmental
association opposed the risk analyses required under the proposed rule.
This commenter asserted that with adequate data collection, potential
problems can be reasonably anticipated and there should be very few
instances where an ``unanticipated'' event or condition occurs.
Such statement suggests, for instance, that if any AMD is
identified as a potential problem, then the eventual amount or degree
of AMD experienced is immaterial for the purposes of qualifying for the
section 510(e) permit block exemption. All such experienced AMD,
however large the amount, would be considered anticipated and the
operator would not qualify for the exemption.
The industry association commenter also opposed the risk analyses
required under the proposed rule, but addressed the issue of degree of
unanticipated problem somewhat differently. This commenter focussed on
the difficulties in accurately predicting the likelihood of potential
problems occurring and the associated maximum degree of impact. Even
with good baseline data, there appeared to be too many variables to
accurately assess a potential problem's maximum degree of impact. This
commenter's solution was for the applicant to provide a list of
potential problems that it could in ``good faith'' identify. Any
problem that then arose from the previous disturbed nature of the site,
including AMD, despite the operator's substantial adherence to the
permit, would be considered to be unanticipated.
Such statement suggests that if any AMD is identified as a
potential
[[Page 58488]]
problem and it occurs despite the operator's substantial adhereance to
its operation and reclamation plans, the actual amount or degree of the
post-treatment problem is immaterial for the purposes of qualifying for
the section 510(e) permit block exemption. All such AMD, however small
the amount, would be considered unanticipated and the operator would
qualify for the exemption.
OSM rejects both environmental and industry comments regarding the
degree of problem anticipated and experienced at the remining site.
Because the AMD problem is recognized as the largest deterrant to
remining, and some AMD can be anticipated from many remining sites, the
environmental approach would substantially narrow the remining
inceptive which OSM believes Congress intended in providing the section
510(e) exemption. Conversely, the industry approach would substantially
broaden the incentive beyond which OSM believes Congress intended for
this exemption.
The final rule seeks to implement the ``(reasonably) anticipated
event or condition'' language of section 510(e). The rule's reliance
upon the permit information and permit finding requirements of
Secs. 785.25 and 773.15(c)(13) maps a middle course between the
environmental and industry approaches and provides a flexibility which
accounts for the realities of remining operations where environmental
and safety problems may reasonably be anticipated only in terms of
degrees or relative amounts.
Under the final rule it falls to the regulatory authority to
determine whether the degree of problems experienced in excess of that
which was originally anticipated and identified in the permit would
qualify as unanticipated for the purposes of the section 510(e)
exemption. For example, if on the basis of available baseline
information required under existing permit application rules and the
site-specific investigations required by new Sec. 785.25, the operation
and reclamation plans reasonably anticipate an AMD discharge of 150 gpm
to occur with mitigation plans set forth to handle that amount, a later
occurence of a discharge of 1500 gpm may reasonably be said to have not
been contemplated by those plans and, therefore, qualifies as an
unanticipated event or condition for the purposes of the
Sec. 773.15(b)(4) (section 510(e)) exemption. This fact-specific
inquiry would be made by the regulatory authority on a case-by-case
basis. Regardless of the level of discharge, the operator would,
however, be responsible for abating any violation related to the
discharge and providing appropriate treatment.
There can be no hard and fast rules for what degree of variance
from the permit estimate reasonably qualifies as an unanticipated event
or condition. The final rule recognizes that each site has its unique
characteristics and must be investigated accordingly. The final
decision as to whether an event or condition was unanticipated will be
made by the regulatory authority conducting the Sec. 773.15(b) permit
review.
Required Mitigation Measures
Final Sec. 785.25 differs from the proposed rule in that paragraph
(b)(2) requires a description of the mitigation measures which will be
taken to ensure that the reclamation required by the applicable
requirements of the regulatory program can be met rather than the
description required by proposed paragraph (b)(2) of how such measures
will meet applicable performance standards. This change focuses the
required description on ensuring that the applicant is prepared to
reclaim the reasonably anticipated potential environmental and safety
problems identified in paragraph (b)(1).
Phase-Out of Section 785.25 Requirements
Final Sec. 785.25 also differs from the proposal in that a new
paragraph (c) has been added providing that the requirements of that
section shall not apply after September 30, 2004. The effect of this
provision will be that no Sec. 785.25 remining permits will be issued
after September 30, 2004. This is consistent with OSM's interpretation
of the Energy Policy Act amendments to SMCRA as allowing violations
resulting from an unanticipated event or condition arising on lands
eligible for remining under a permit issued before September 30, 2004,
and any renewals thereof, to be eligible for the permit block exemption
of section 510(e).
4. 30 CFR Part 816--Permanent Program Performance Standards-Surface
Mining Activities and Part 817--Permanent Program Performance
Standards-Underground Mining Activities
The final rule amends paragraphs (c)(2) and (c)(3) of Secs. 816.116
and 817.116, Revegetation: Standards for Success, by adding paragraphs
(c)(2)(ii) and (c)(3)(ii) which implement section 515(b)(20)(B) of
SMCRA. Paragraph (c)(2) deals with areas receiving more than 26.0
inches of average annual precipitation. Final paragraph (c)(2)(i) is
identical to former paragraph (c)(2), with the addition of a reference
to the exception to the regular five-year revegetation responsibility
period provided at final paragraph (c)(2)(ii) for lands eligible for
remining included in permits issued before September 30, 2004, and any
renewals thereof. Final paragraph (c)(2)(ii) reduces the revegetation
responsibility period to two years for lands eligible for remining
included in such permits. Final paragraph (c)(2)(ii) also provides that
to the extent that the success standards for certain lands previously
disturbed by mining are established by Secs. 816/817.116(b), the lands
shall equal or exceed those standards during the growing season of the
last year of the responsibility period. Because OSM anticipates that in
most cases the post-mining land use for lands eligible for remining
will be as specified in paragraph (b)(5), final paragraph (c)(2)(ii)
merely includes the paragraph (b)(5) success standards. This does not
preclude the regulatory authority from prescribing paragraph (c)(2)(ii)
two-year success standards when the post-mining lands use is grazing,
crop, or pastureland.
Final paragraph (c)(3) relates to areas of less than 26.0 inches of
annual average precipitation and incorporates language similar to
paragraph (c)(2) except that the period of responsibility has been
reduced from ten years to five years.
The changes in these periods of responsibility for revegetation are
mandated by section 515(b)(20)(B) of SMCRA as amended by section
2503(b) of the Energy Policy Act.
a. Comparison of proposed and final Secs. 816.116 and 817.116. The
format of the proposed rule apparently created some confusion for
commenters with respect to distinguishing between the responsibility
periods for revegetation and success standards for revegetation
intended by the proposed rule for lands eligible for remining. The
final rule seeks to clarify this situation for lands eligible for
remining by placing the requirements for both responsibility periods
for revegetation and success standards for revegetation in one
paragraph, either (c)(2)(ii) for areas of more than 26.0 inches of
average annual precipitation or (c)(3)(ii) for areas of 26.0 inches or
less average annual precipitation.
Each of these paragraphs also contain the statement that if the
success standards are established by paragraph (b)(5), then the lands
eligible for remining shall equal or exceed these standards during the
growing season of the last year of the responsibility period (paragraph
(c)(2)(ii)) or of the last two
[[Page 58489]]
consecutive years of the responsibility period (paragraph (c)(3)(ii)).
This reformatting change should make clear that the final rule is not
intended to vary the success standards for revegetation of the existing
rules.
Phase-In for Reduced Revegetation Responsibility Periods
Final Secs. 816/817.116 (c)(2)(ii) and (c)(3)(ii) tie the reduced
revegetation responsibility periods for lands eligible for remining to
permits issued before September 30, 2004, and any renewals thereof.
Because the statutory language of section 515(b)(20)(B) does not
contain the triggering language of section 510(e): ``[a]fter the date
of enactment of this subsection,'' OSM is interpreting final Secs. 816/
817.116(c)(2)(ii) and (c)(3)(ii) as requiring existing permits to
obtain a permit revision to qualify for the rule's reduced revegetation
responsibility periods. This permit revision would require a
Sec. 773.13(c)(13)(i) finding by the regulatory authority that the
permit covers lands eligible for remining. Permits issued under new
Sec. 785.25 would also require a similar Sec. 773.13(c)(13)(i) finding.
Whether for existing permits or those issued under Sec. 785.25, the
reduced revegetation responsibility periods would apply only to lands
within the permit found to be eligible for remining.
OSM is aware that, for existing operations on lands eligible for
remining which have ceased mining and have already begun reclamation,
the above interpretation of final Secs. 816/817.116 would allow for
reduced revegetation responsibility periods without operating as an
incentive for future remining. This interpretation is, however,
permissible under the language of section 515(b)(20)(B), whose only
qualification for the reduced revegetation responsibility periods is
that the affected land be eligible for remining, and is structurally
consistent with OSM's implementation of the Energy Policy Act's other
remining provision at section 510(e) (Sec. 773.15.(b)(4)(i)).
Phase-Out for Reduced Revegetation Responsibility Periods
Because final Secs. 816/817.116(c)(2)(ii) and (c)(3)(ii) tie the
reduced revegetation responsibility periods to remining permits issued
before September 30, 2004, or any renewals thereof, the reduced
revegetation responsibility provisions will not cease to be operative
on September 30, 2004, for permits issued before that date as would
have been the case under the proposed rule. Under the final rule, as
long as the permit was issued before September 30, 2004, the reduced
revegetation responsibility periods could extend beyond that date
through the prescribed duration of the remining permit or any renewals
thereof.
This change was made in response to commenters who recommended that
the period of responsibility should apply to any remining permit issued
prior to September 30, 2004, even if the mining and/or period of
responsibility extended past that date.
Both the reduced revegetation responsibility period provisions of
section 515(b)(20)(B) and the permit block exemption provisions of
section 510(e) are tied to lands eligible for remining. The same
provision in section 510(e) terminates the authority for both sections
on September 30, 2004. This termination provision suggests that
Congress intended sections 510(e) and 515(b)(20)(B) to operate in
tandem, providing structurally consistent incentives for remining
operations on lands eligible for remining.
Interpreting the phase-out provisions of section 515(b)(20)(B) as
ending the reduced responsibility periods on September 30, 2004, would,
for remining operations existing on that date, render the shortened
responsibility period meaningless. A reduced two or five-year period
which runs past September 30, 2004, would be transformed on October 1,
2004, into a five and ten-year period. Thus no relief would be afforded
operations who would otherwise rely upon that statutory provision. Such
an interpretation would, particularly for potential remining operations
in the arid West and less so for those in the East, provide severely
limited incentive for remining. For instance, assuming one year would
be spent permit processing, one-half a year for preparing the site, one
and one-half years for actual remining, seven years to satisfy the
five-year responsibility period resulting in bond release, a Western
operator would then have had to have begun the permitting process in
September of 1994 to have availed himself of a section 515(b)(20)(B)
incentive if that incentive ended on September 30, 2004. If this
hypothetical remining schedule were in any way delayed, the operator
would run the risk of exceeding the 2004 barrier and being held to the
standard ten-year responsibility period.
Rather than such an interpretation, OSM interprets consistently the
permit block exemption of section 510(e) and the reduced responsibility
provisions of section 515(b)(20)(B) by tying both to a remining permit
issued before September 30, 2004, or any renewals thereof. In other
words, the reduced responsibility period can extend beyond that date if
the permit is issued before September 30, 2004.
One commenter correctly noted that the Energy Policy Act amendments
to section 515(b)(20) ``abridged the duration of the period of
responsibility, but did not alter the provisions relating to
demonstrating achievement of the revegetation standards.'' On the other
hand, several commenters suggested that OSM incorrectly interpreted the
requirements of the Energy Policy Act in the proposal with regard to
what the commenters referred to as ``success standards'' for
revegetation. Another commenter asked whether ``both ground cover and
productivity must meet standards for both years of the two-year
maintenance period * * *.''
In response to both groups of comments, OSM stresses that the
Energy Policy Act only reduces the ``periods of responsibility'' for
revegetation from five to two years for areas of more than 26.0 inches
of average annual precipitation and from ten to five years for areas of
26.0 inches or less average annual precipitation. The Energy Policy Act
amendments to SMCRA do not prescribe any changes to revegetation
standards, success standards, or productivity standards. All of these
standards are unaffected by both the proposed and final rule. Thus, in
the proposal as well as the final rule, OSM has adopted the success
standards of the existing rules. OSM recognizes that the success
standard applicable to remining sites will likely be that of existing
30 CFR 816.116(b)(5) and 817.116(b)(5).
Several commenters noted two editorial problems at Secs. 816/
817.116(c)(2) of the proposal: (1) Remining was misspelled; and (2) The
word ``not'' was inadvertently omitted. The text has been corrected to
read ``In areas of more than 26.0 inches of annual average
precipitation, the period of responsibility shall continue for a period
of not less than: * * * (ii) Two full years for lands eligible for
remining * * *.''
5. Other Comments
One commenter stated that parts 816 and 817 should require that
rivers and streams within 20 miles of a remining site be capable of
sustaining fish populations and that wetlands destroyed during remining
must be replaced and added to. These comments go well beyond the
proposed rule and are not accepted.
Two commenters recommended that the final rule provide for a date-
certain bond release. One commenter stated that for operators with
previous
[[Page 58490]]
reclamation success on remined lands there would be little additional
risk for bond releases tied to time versus bond releases tied to
success standards. The other commenter stated that H.R. 4053, a
predecessor to the Energy Policy Act, contained language relating to
``date-certain release of an operator's bond'' and this language
established requisite Congressional intent in the Energy Policy Act for
a date-certain bond release. This language was not, however, carried
forward into H.R. 4381 (1992), H.R. 776 (1992), or the Energy Policy
Act. No provisions in the Energy Policy Act can be construed to
authorize a date-certain bond release and OSM rejects this
recommendation.
One commenter recommended that adoption of final rules should be
delayed until all aspects of incentives dealing with abandoned coal
refuse sites have been worked out. The incentives and requirements for
removal and/or reprocessing of material at abandoned coal refuse sites
are mandated by section 2503(e) of the Energy Policy Act and are being
developed under a separate rulemaking. The statutory authority and the
subject matter for both the coal refuse and the current rulemaking are
sufficiently distinct and independent of each other so that there is no
need nor advantage gained by delaying this rule until resolution of all
coal refuse issues.
Another commenter suggested the use of negotiated compliance
schedules to address abatement of unanticipated events prior to issuing
a violation. This suggested procedure was not included in the proposal
and, therefore, is beyond the scope of this rulemaking.
Several commenters recommended inclusion in the final rule of
additional incentives which they felt would encourage remining. The
commenters provided no legal basis for the following recommendations:
(1) Creating minimum requirements for information on environmental
resources. This is based on the commenter's assertion that remining
operations are intended to mitigate or correct adverse effects of
mining while operations on previously undisturbed areas are intended to
prevent adverse effects; (2) Promulgating a new standard that would
encourage the most environmentally effective use of spoil as opposed to
current standards which require spoil to be used for highwall
elimination as a first priority; (3) Providing a bonding advantage for
remining operations; (4) Reducing the potential for bond forfeiture
resulting from unanticipated events or conditions by allowing the AML
program and not the operator to be responsible for final abatement of
preexisting conditions. OSM does not accept these comments. The
recommended incentives were not included in the proposal and are beyond
the scope of this rulemaking.
III. Procedural Matters
Federal Paperwork Reduction Act
The collections of information contained in this rule have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq and assigned clearance numbers 1029-0040 and 1029-0041.
Executive Order 12778; Civil Justice Reform Certification
This rule has been reviewed under the applicable standards of
section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR
55195). In general, the requirements of section 2(b)(2) of Executive
Order 12778 are covered by the preamble discussion of this final rule.
Additional remarks follow concerning individual elements of the
Executive Order:
A. What is the preemptive effect, if any, to be given to the
regulation?
The rule would have the same preemptive effect as other standards
adopted pursuant to SMCRA. To retain primacy, States have to adopt and
apply standards for their regulatory programs that are no less
effective than those set forth in OSM's rules. Ordinarily, any State
law that is inconsistent with, or that would preclude implementation of
a new Federal rule, would be subject to preemption under SMCRA section
505 and implementing regulations at 30 CFR 730.11. However, any State
law which provides for more stringent land use and environmental
controls and regulation of coal exploration and surface mining and
reclamation operations than do the provisions of the Act and any rules
issued pursuant thereto, shall not be construed as inconsistent with
those rules. Because the current amendments to SMCRA contained in the
Energy Policy Act are intended to ease certain requirements of the Act,
these rules will not preempt more stringent State laws.
B. What is the effect on existing Federal law or regulation, if
any, including all provisions repealed or modified?
This rule modifies the implementation of SMCRA, as described
herein, and is not intended to modify the implementation of any other
Federal statute. The preceding discussion of this rule specifies the
Federal regulatory provisions that are affected by this rule.
C. Does the rule provide a clear and certain legal standard for
affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of SMCRA.
D. What is the retroactive effect, if any, to be given to the
regulation?
This rule implements portions of the Energy Policy Act that were
effective on October 24, 1992. Although this rule may be considered
retroactive to the extent it covers actions occurring October 24, 1992,
the Energy Policy Act requires such effects. OSM also recognizes that
the rule may allow revisions to existing permits to change revegetation
responsibility periods. This impact was explained above.
E. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings are required before parties may file
suit in court challenging the provisions of this rule under section
526(a) of SMCRA, 30 U.S.C. 1276(a).
Prior to any judicial challenge to the application of the rule,
however, administrative procedures must be exhausted. In situations
involving OSM application of the rule, applicable administrative
procedures may be found at 43 CFR part 4. In situations involving State
regulatory authority application of provisions equivalent to those
contained in this rule, applicable administrative procedures are set
forth in the particular State program.
F. Does the rule define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items?
Terms which are important to the understanding of this rule are set
forth in 30 CFR 700.5 and 701.5.
G. Does the rule address other important issues affecting clarity
and general draftsmanship of regulations set forth by the Attorney
General, with the concurrence of the Director of the Office of
Management and Budget, that are determined to be in accordance with the
purposes of the Executive Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
Regulatory Flexibility Act
The Department of the Interior has determined that the final rule
will not have a significant economic effect on a substantial number of
small entities under the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq. This determination is based on the findings that the regulatory
[[Page 58491]]
additions in the rule will not change costs to industry or to the
Federal, State, or local governments. Furthermore, the rule produces no
adverse effects on competition, employment, investment, productivity,
innovation, or the ability of United States enterprises to compete with
foreign/based enterprises in domestic or export markets.
Executive Order 12866
This final rule has been reviewed under Executive Order 12866.
National Environmental Policy Act
OSM has prepared an environmental assessment (EA) of this final
rule and has made a finding that it will not significantly affect the
quality of the human environment under section 102(2)(C) of the
National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C).
The EA and finding of no significant impact are on file in the OSM
Administrative Record, Room 101, 1951 Constitution Avenue, NW.,
Washington, DC.
Author
The principal author of this final rule is: Douglas J. Growitz,
P.G., Hydrologist, Branch of Research and Technical Standards, Office
of Surface Mining Reclamation and Enforcement, Room 110 SIB, 1951
Constitution Avenue, NW., Washington, DC 20240, Telephone: 202-208-
2561.
List of Subjects
30 CFR Part 701
Law enforcement, Surface mining, Underground mining.
30 CFR Part 773
Administrative practice and procedure, Surface mining, Underground
mining.
30 CFR Part 785
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 816
Environmental protection, Reporting and recordkeeping requirements,
Surface mining.
30 CFR Part 817
Environmental protection, Reporting and recordkeeping requirements,
Underground mining.
Dated: October 11, 1995.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
Accordingly, 30 CFR parts 701, 773, 785, 816 and 817 are amended as
set forth below:
PART 701--PERMANENT REGULATORY PROGRAM
1. The authority citation for part 701 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; Pub. L. 100-34;
and Pub. L. 102-486.
2. Section 701.5 is amended by adding alphabetically definitions of
``lands eligible for remining'' and ``unanticipated event or
condition'' as follows:
Sec. 701.5 Definitions.
* * * * *
Lands eligible for remining means those lands that would otherwise
be eligible for expenditures under section 404 or under section
402(g)(4) of the Act.
* * * * *
Unanticipated event or condition, as used in Sec. 773.15 of this
chapter, means an event or condition related to prior mining activity
which arises from a surface coal mining and reclamation operation on
lands eligible for remining and was not contemplated by the applicable
permit.
* * * * *
PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING
3. The authority citation for part 773 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended, Pub. L. 100-34;
16 U.S.C. 470 et seq.; 16 U.S.C. 1531 et seq.; 16 U.S.C. 661 et
seq.; 16 U.S.C. 703 et seq.; 16 U.S.C. 668a; 16 U.S.C. 469 et seq.;
16 U.S.C. 470aa et seq.; and Pub. L. 102-486.
4. Section 773.15 is amended by adding new paragraphs (b)(4) and
(c)(13) to read as follows:
Sec. 773.15 Review of permit applications.
(b) * * *
(4)(i) Subsequent to October 24, 1992, the prohibitions of
paragraph (b) of this section regarding the issuance of a new permit
shall not apply to any violation that:
(A) Occurs after that date;
(B) Is unabated; and
(C) Results from an unanticipated event or condition that arises
from a surface coal mining and reclamation operation on lands that are
eligible for remining under a permit:
(1) Issued before September 30, 2004, or any renewals thereof; and
(2) Held by the person making application for the new permit.
(ii) For permits issued under Sec. 785.25 of this chapter, an event
or condition shall be presumed to be unanticipated for the purposes of
this paragraph if it:
(A) Arose after permit issuance;
(B) Was related to prior mining; and
(C) Was not identified in the permit.
(c) * * *
(13) For permits to be issued under Sec. 785.25 of this chapter,
the permit application must contain:
(i) Lands eligible for remining;
(ii) An identification of the potential environmental and safety
problems related to prior mining activity which could reasonably be
anticipated to occur at the site; and
(iii) Mitigation plans to sufficiently address these potential
environmental and safety problems so that reclamation as required by
the applicable requirements of the regulatory program can be
accomplished.
* * * * *
PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING
5. The authority citation for part 785 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; Pub. L. 100-34;
and Pub. L. 102-486.
6. Section 785.25 is added to read as follows:
Sec. 785.25 Lands eligible for remining.
(a) This section contains permitting requirements to implement
Sec. 773.15(b)(4). Any person who submits a permit application to
conduct a surface coal mining operation on lands eligible for remining
must comply with this section.
(b) Any application for a permit under this section shall be made
according to all requirements of this subchapter applicable to surface
coal mining and reclamation operations. In addition, the application
shall--
(1) To the extent not otherwise addressed in the permit
application, identify potential environmental and safety problems
related to prior mining activity at the site and that could be
reasonably anticipated to occur. This identification shall be based on
a due diligence investigation which shall include visual observations
at the site, a record review of past mining at the site, and
environmental sampling tailored to current site conditions.
(2) With regard to potential environmental and safety problems
referred to in paragraph (b)(1) of this section, describe the
mitigative measures that will be taken to ensure that the applicable
reclamation requirements of the regulatory program can be met.
(c) The requirements of this section shall not apply after
September 30, 2004.
[[Page 58492]]
PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING
ACTIVITIES
7. The authority citation for part 816 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; sec 115 of Pub.
L. 98-146, 30 U.S.C. 1257; Pub. L. 100-34; and Pub. L. 102-486.
8. Section 816.116 is amended by revising paragraphs (c)(2) and
(c)(3) to read as follows:
Sec. 816.116 Revegetation: Standards for success.
* * * * *
(c) * * *
(2) In areas of more than 26.0 inches of annual average
precipitation, the period of responsibility shall continue for a period
of not less than:
(i) Five full years, except as provided in paragraph (c)(2)(ii) of
this section. The vegetation parameters identified in paragraph (b) of
this section for grazing land, pasture land, or cropland shall equal or
exceed the approved success standard during the growing season of any 2
years of the responsibility period, except the first year. Areas
approved for the other uses identified in paragraph (b) of this section
shall equal or exceed the applicable success standard during the
growing season of the last year of the responsibility period.
(ii) Two full years for lands eligible for remining included in
permits issued before September 30, 2004, or any renewals thereof. To
the extent that the success standards are established by paragraph
(b)(5) of this section, the lands shall equal or exceed the standards
during the growing season of the last year of the responsibility
period.
(3) In areas of 26.0 inches or less average annual precipitation,
the period of responsibility shall continue for a period of not less
than:
(i) Ten full years, except as provided in paragraph (c)(3)(ii)
below. Vegetation parameters identified in paragraph (b) of this
section shall equal or exceed the approved success standard for at
least the last two consecutive years of the responsibility period.
(ii) Five full years for lands eligible for remining included in
permits issued before September 30, 2004, or any renewals thereof. To
the extent that the success standards are established by paragraph
(b)(5) of this section, the lands shall equal or exceed the standards
during the growing seasons of the last two consecutive years of the
responsibility period.
* * * * *
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
9. The authority citation for part 817 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; sec. 115 of Pub.
L. 98-146, 30 U.S.C. 1257; Pub. L. 100-34; and Pub. L. 102-486.
10. Section 817.116 is amended by revising paragraphs (c)(2) and
(c)(3) to read as follows:
Sec. 817.116 Revegetation: Standards for success.
* * * * *
(c) * * *
(2) In areas of more than 26.0 inches of annual average
precipitation, the period of responsibility shall continue for a period
of not less than:
(i) Five full years, except as provided in paragraph (c)(2)(ii) of
this section. The vegetation parameters identified in paragraph (b) of
this section for grazing land, pasture land, or cropland shall equal or
exceed the approved success standard during the growing season of any 2
years of the responsibility period, except the first year. Areas
approved for the other uses identified in paragraph (b) of this section
shall equal or exceed the applicable success standard during the
growing season of the last year of the responsibility period.
(ii) Two full years for lands eligible for remining included in
permits issued before September 30, 2004, or any renewals thereof. To
the extent that the success standards are established by paragraph
(b)(5) of this section, the lands shall equal or exceed the standards
during the growing season of the last year of the responsibility
period.
(3) In areas of 26.0 inches or less average annual precipitation,
the period of responsibility shall continue for a period of not less
than:
(i) Ten full years, except as provided in paragraph (c)(3)(ii) of
this section. Vegetation parameters identified in paragraph (b) of this
section shall equal or exceed the approved success standard for at
least the last two consecutive years of the responsibility period.
(ii) Five full years for lands eligible for remining included in
permits issued before September 30, 2004, or any renewals thereof. To
the extent that the success standards are established by paragraph
(b)(5) of this section, the lands shall equal or exceed the standards
during the growing seasons of the last two consecutive years of the
responsibility period.
* * * * *
[FR Doc. 95-28862 Filed 11-24-95; 8:45 am]
BILLING CODE 4310-05-M
