[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Rules and Regulations]
[Pages 34277-34280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16811]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
[SPATS No. MO-034-FOR]
Missouri Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Missouri
abandoned mine land reclamation plan (hereinafter referred to as the
``Missouri plan'') under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). The amendment is intended to revise the Missouri plan
to allow the Missouri Department of Natural Resources, Land Reclamation
Commission, Land Reclamation Program to assume responsibility for
administering the abandoned mine land reclamation emergency program in
Missouri on behalf of OSM.
EFFECTIVE DATE: June 24, 1998.
FOR FURTHER INFORMATION CONTACT:
Perry Pursell, Office of Surface Mining, Mid-Continent Regional
Coordinating Center, Alton Federal Building, 501 Belle Street, Alton,
Illinois 62002. Telephone: (618) 463-6460.
SUPPLEMENTARY INFORMATION:
I. Background on the Missouri Plan
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Missouri Plan
On January 29, 1982, the Secretary of the Interior approved the
Missouri plan. Background information on the Missouri plan, including
the Secretary's findings, the disposition of comments, and the approval
of the plan can be found in the January 29, 1982, Federal Register (47
FR 4253). Subsequent actions concerning the Missouri plan and
amendments to the plan can be found at 30 CFR 925.25.
II. Submission of the Proposed Amendment
Section 410 of SMCRA authorizes the Secretary to use funds under
the abandoned mine land reclamation (AMLR) program to abate or control
emergency situations in which adverse effects of past coal mining pose
an immediate danger to the public health, safety, or general welfare.
On September 29, 1982 (47 FR 42729), OSM invited States to amend their
AMLR plans for the purpose of undertaking emergency reclamation
programs on behalf of OSM. States would have to demonstrate that they
have the statutory authority to undertake emergencies, the technical
capability to design and supervise the emergency work, and the
administrative mechanisms to quickly respond to emergencies either
directly or through contractors.
Under the provisions of 30 CFR 884.15, any State may submit
proposed amendments to its approved AMLR plan. If the proposed
amendments change the scope or major policies followed by the State in
the conduct of its AMLR program, OSM must follow the procedures set out
in 30 CFR 884.14 for reviewing and approving or disapproving the
proposed amendments.
The proposed assumption of the AMLR emergency program on behalf of
OSM is a major addition to the Missouri plan. Therefore, to assume the
emergency program, Missouri must either revise its plan to include
administering the AMLR emergency program, or demonstrate that its plan
currently includes provisions for assuming and administering the
emergency program.
By letter dated March 31, 1998 (Administrative Record No. AML-MO-
103), Missouri submitted an amendment to its plan pursuant to SMCRA.
Missouri submitted the amendment at its own initiative. The amendment
is intended to demonstrate Missouri's capability to effectively
undertake the AMLR emergency program on behalf of OSM. In its formal
submittal, Missouri stated that a review of the Missouri plan indicates
that the authority already exists for the Missouri Department of
Natural Resources, Land Reclamation Commission, Land Reclamation
Program (LRP) to assume responsibility for the AMLR emergency program.
Missouri noted that the designation by the governor and the legal
opinion of the State Attorney General that are included in its plan are
applicable to all AML activities, including the emergency program, and
that all other existing policies and procedures in its plan are
adequate to cover the emergency program, with two minor exceptions.
These exceptions were addressed in Missouri's technical capability to
design and supervise the emergency works, and Missouri's amendment. The
applicable parts of the existing Missouri plan and the revisions to the
plan that would demonstrate that Missouri has the authority to
undertake emergencies, Missouri's technical capacity to design and
supervise the emergency work, and Missouri's administrative mechanisms
to quickly respond to emergencies either directly or through
contractors are discussed below.
A. The following information, taken from the approved Missouri
plan, was included by reference in Missouri's formal submission to OSM
in order to verify that the authority already exists for the LRP to
assume AMLR emergency program responsibilities:
1. A letter from the Governor that designates the Missouri
Department of Natural Resources, Land Reclamation Commission as the
agency responsible for the Abandoned Mine Land Reclamation Program in
Missouri.
2. A legal opinion from the Attorney General that the Missouri
Department of Natural Resources, Land Reclamation Commission has the
power to administer the Abandoned Mine Land Reclamation Program in
Missouri.
3. A copy of sections 444.810, .825, .915, .920, .925, .930, and
.940 of the Revised Statutes of Missouri (RSMo), the Missouri Land
Reclamation Act.
[[Page 34278]]
RSMo section 444.915.1(5) authorizes the LRR to spend monies from the
State Abandoned Mine Reclamation Fund for restoration, reclamation,
abatement, control or prevention of adverse effects of coal mining
practices when an emergency exists.
4. A copy of the Missouri Abandoned Mine Land Reclamation Program
regulations (Code of State Regulations, 10 CSR 40-9.010, .020, .030,
.040, .050, and .060). Missouri's regulations at 10 CFR 40-9.030(4)
provide the right to enter upon any land where an emergency exists and
on any other land to have access to the land where the emergency exists
to restore, reclaim, abate, control or prevent the adverse effects of
coal mining practices and to do all things necessary or expedient to
protect the public health, safety or general welfare. Procedures are
provided for this entry.
B. Missouri submitted a statement to demonstrate the LRP's
technical capability to design and supervise the emergency work. The
statement included references to work completed on non-emergency, high
priority reclamation projects, the number of AML Section staff working
on reclamation projects, and the ability of the staff members to
prepare project designs and contract documents and to provide in-house
resident inspection services.
C. Missouri updated its plan policy and procedures at sections
884.13(c)(6), rights of entry, and 884.13(d)(3), purchasing and
procurement, to ensure that it has the administrative mechanisms to
quickly respond to emergencies either directly or through contractors.
D. After assuming the emergency program, Missouri would conduct
investigations of potential emergency sites and perform remedial
reclamation, following OSM's concurrence that an emergency situation
exists. Missouri stated in its proposal that in administering the AMLR
emergency program, it would follow procedures that are in compliance
with the Federal Assistance Manual, Chapter 4-30, ``Characteristics of
Grantee-Administered Emergency Reclamation Activities.''
OSM announced receipt of the proposed amendment in the April 22,
1998, Federal Register (63 FR 19874), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on May 22, 1998.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 884.14 and 884.15, are the Director's findings concerning the
proposed amendment.
A. Revisions to the Missouri Plan Policy and Procedure Sections
1. Section 884.13(c)(6), Rights of Entry
Missouri proposed to revise its policy concerning right of entry
fro emergency purposes by removing the language that allowed emergency
entries only upon request from the Office of Surface Mining. This
revised paragraph reads as follows.
In the event of an emergency, this agency may enter onto private
property and perform whatever measures are necessary to protect the
public health, safety, or welfare from past coal mining practices.
If written consent cannot be obtained for the purpose of emergency
reclamation, and if notice cannot be given prior to entry, notice
will be given to the landowner as soon after entry as is practical.
The Director finds that the requirements of the revised policy in
section 884.13(c)(6) are consistent with requirements in the Missouri
regulation at 10 CSR 40-9.030(4) and the Federal regulation at 30 CFR
877.14, concerning entry for emergency reclamation.
2. Section 884.13(d)(3), Purchasing and Procurement
Missouri revised the procurement thresholds for services supplies
and products contracts. The procurement thresholds that requires the
use of formal sealed bids was raised from $10,000 to $25,000. The
procurement threshold that requires compliance with State small
purchase procedures was raised from $10,000 to $25,000. The negotiated
procurement threshold was lowered from $10,000 to $3,000. Procurements
in excess of $25,000 are to be recorded with the specified
justification information.
The Director finds that a procurement threshold of $25,000 is
adequate for implementation of an AMLR Emergency Program, and the
proposed revisions are consistent with the requirements of 30 CFR
884.13(d)(3).
B. AMLR Emergency Program Demonstrations
OSM's guidelines, published in the September 29, 1982, Federal
Register (47 FR 42729), outline three requirements for State assumption
of the AMLR emergency program. To be granted emergency authority by
OSM, the State agency must demonstrate that it has the: (1) statutory
authority to undertake emergencies, (2) technical capability to design
and supervise the emergency work, and (3) administrative mechanisms to
respond quickly to emergencies either directly or through contractors.
1. Statutory Authority
The LRP has had statutory authority under RSMo section 444.915.1(5)
to administer an emergency response program since approval of the
Missouri plan on January 21, 1982. In order to implement this
authority, Missouri's regulation at 10 CSR 40-9.030(4) provides for
right of entry on any land where an emergency exists. In a letter dated
January 25, 1980, the Governor of Missouri designated the Missouri
Department of Natural Resources, Land Reclamation Commission as the
State agency responsible for the Abandoned Mine Land Reclamation
Program in Missouri. The Missouri Attorney General issued an official
opinion on July 24, 1981, that the Missouri Department of Natural
Resources, Land Reclamation Commission is authorized under State law to
establish, administer and conduct a State reclamation program in
accordance with the requirements of Title IV of the Federal Surface
Mining Control and Reclamation Act of 1977, the regulations promulgated
thereunder, and the State Reclamation Plan. Title IV of SMCRA covers
both the regular AMLR program and the emergency reclamation program.
2. Technical Capability
The LRP has demonstrated through past performance that it has the
technical capability to implement an AMLR emergency program. In its
March 31, 1998, submission of the amendment, Missouri submitted the
following statement to demonstrate the LRP's technical capability to
design and supervise the emergency work.
Over the past four years, Missouri has successfully completed
several high priority shaft closure and four subsidence reclamation
projects. Although these were non-emergency projects, they were
completed in a timely manner and the scope of work was similar to
Missouri's past AML emergency projects. With six Land Reclamation
Specialists and a registered professional engineer on the AML
Section staff, the LRP has the technical capability to respond
rapidly to AML emergency situations. Project designs and contract
documents can be prepared in-house, avoiding the usual time delays
associated with procuring and coordinating consulting engineering
services agreements. The AML Section can also provide in-house
resident inspection services, since emergency reclamation projects
are typically of short duration.
[[Page 34279]]
Missouri has conducted an AMLR Program since 1982. Technical
capabilities utilized for emergency reclamation projects are the same
as those used for normal, high priority reclamation projects; usually,
only the project schedule is different. OSM's oversight reviews for the
past 10 years have confirmed that the Missouri LRP has conducted
subsidence abatement project design and construction work and has
filled mine voids on many occasions with a high degree of competence
and success. OSM's annual oversight reports also indicate that closure
of shafts and mine portals and treatment of subsidence areas have been
part of Missouri's high priority AMLR program for many years. As of the
end of evaluation year 1997, the Missouri LRP had closed 125 vertical
openings and 43 open mine portals and stabilized 634 acres of mine
subsidence. These are the same types of abandoned mine land features
that are likely to be encountered in the AMLR emergency program. OSM
found in its review of the Missouri plan and OSM's annual oversight
reports for 1991 through 1997 that Missouri has developed and refined
the in-house investigation, design, and project administration
abilities necessary to administer an AMLR program and an emergency
response program.
3. Administrative Mechanisms
A review of Missouri's revised purchasing and procurement
procedures at section 884.13(d)(3) found that the LRP has the authority
to issue contracts for emergency work in amounts up to $25,000. The
$25,000 limit is similar to the small purchase threshold for Federal
agencies and will allow Missouri adequate flexibility to address
emergency conditions. Other administrative processes required to
implement the emergency program are the same as those already in place
for the Missouri AMLR program.
In accordance with section 405 of SMCRA and 30 CFR 884.15, Missouri
has submitted an amendment to its AMLR plan, and the Director has
determined, pursuant to 30 CFR 884.14, that:
(1) The public has been given adequate notice and opportunity to
comment, and the record does not reflect major unresolved
controversies.
(2) Views of other Federal agencies have been solicited and
considered.
(3) The State has the legal authority, policies and administrative
structure necessary to implement the amendment.
(4) The proposed plan amendment meets all requirements of the
Federal AMLR program regulations at 30 CFR Chapter VII, Subchapter R.
(5) The State has an approved State Regulatory Program.
(6) The amendment is in compliance with all applicable State and
Federal laws and regulations.
Therefore, the Director finds that the proposed Missouri plan
amendment allowing the State to assume responsibility for an emergency
response reclamation program on behalf of OSM is in compliance with
SMCRA and meets the requirements of the Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
OSM solicited public comments and provided an opportunity for a
public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 884.14(a)(2) and 884.15(a), OSM solicited
comments on the proposed amendment from various other Federal agencies
with an actual or potential interest in the Missouri plan
(Administrative Record No. AML-MO-104). No comments were received.
V. Director's Decision
Based on the above findings, the Director approves the proposed
plan amendment and Missouri's request to assume the AMLR emergency
program as submitted by Missouri on March 31, 1998.
The Federal regulations at 30 CFR Part 925, codifying decisions
concerning the Missouri plan, are being amended to implement this
decision.
VI. Procedural Determinations
Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that, to the extent allowed by law, this rule meets the
applicable standards of subsections (a) and (b) of that section.
However, these standards are not applicable to the actual language of
State and Tribal abandoned mine land reclamation plans and revisions
thereof, since each such plan is drafted and promulgated by a specific
State or Tribe, not by OSM. Decisions on proposed abandoned mine land
reclamation plans and revisions thereof submitted by a State or Tribe
are based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part
884.
National Environmental Policy Act
No environmental impact statement is required for this rule. Agency
decision on proposed State and Tribal abandoned mine land reclamation
plans and revisions thereof are categorically excluded from compliance
with the National Environmental Policy Act (42 U.S.C. 4332) by the
Manual of the Department of the Interior (516 DM 6, Appendix 8,
paragraph 8.4B(29)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The submittal which is the subject of this rule is based upon
corresponding Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented. In making the
determination as to whether this rule would have a significant economic
impact, the Department relied upon the data and assumptions in the
analyses for the corresponding Federal regulations.
Unfunded Mandates
OSM has determined and certifies pursuant to the Unfunded Mandates
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
[[Page 34280]]
Dated: June 16, 1998.
Kathy Karpan,
Director Office of Surface Mining.
For the reasons set out in the preamble, 30 CFR Part 925 is amended
as set forth below:
PART 925--MISSOURI
1. The authority citation for Part 925 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 925.25 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 925.25 Approval of Missouri abandoned mine land reclamation plan
amendments.
* * * * *
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Original amendment Date of final Citation/
submission date publication description
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* * * *
* * *
March 31, 1998........... June 24, 1998........... AMLR plan sections
884.13(c)(6) and
(d)(3); Emergency
response
reclamation
program.
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[FR Doc. 98-16811 Filed 6-23-98; 8:45 am]
BILLING CODE 4310-05-M
