01-19015. Navajo Abandoned Mine Land Reclamation Plan

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is approving a proposed amendment to the Navajo abandoned mine land reclamation (AMLR) plan (hereinafter referred to as the “Navajo plan”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Navajo Nation proposed to remove existing rules pertaining to noncoal reclamation after certification and exclusion of certain noncoal sites in view of rules it proposed to add elsewhere in its plan. The Navajo Nation proposed to add rules that will authorize it to: Restore lands and water adversely affected by past mineral mining, providing they reflect certain objectives and priorities; protect, repair, replace, construct, or enhance utilities; construct public facilities in communities impacted by coal and other mineral mining and processing practices; and request funds for activities or construction of specific public facilities related to the coal or minerals industry on Navajo Nation lands impacted by coal or mineral development. The Navajo Nation also proposes to add new provisions that will: Exclude certain noncoal reclamation sites; apply provisions for land acquisition and liens in its plan to its noncoal program; establish limited liability provisions; and require every successful bidder for an AML contract to be eligible to receive a mining permit at the time of contract award. The Navajo Nation intends to revise its plan to be consistent with the corresponding Federal regulations and SMCRA and to authorize it to undertake projects under section 411(f) of the Navajo Abandoned Mine Lands Reclamation Code.

EFFECTIVE DATE:

July 31, 2001.

FOR FURTHER INFORMATION CONTACT:

Willis Gainer, Director, Albuquerque Field Office; telephone [phone]; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION: 

I. Background on the Navajo 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 Navajo Plan

On May 16, 1988, the Secretary of the Interior approved the Navajo plan. You can find general background information on the Navajo plan, including the Secretary's findings and the disposition of comments, in the May 16, 1988, Federal Register (53 FR 17186). You can also find later actions concerning the Navajo Nation's plan and plan amendments at 30 CFR 756.14.

II. Submission of the Proposed Amendment

By letters dated March 2 and March 8, 2001, the Navajo Nation sent us a proposed amendment to its plan (NA-004-FOR, administrative record numbers NA-255 and NA-256) under SMCRA (30 U.S.C. 1201 et seq.). The Navajo Nation sent the amendment at its own initiative.

We announced receipt of the proposed amendment in the March 28, 2001, Federal Register (66 FR 16893; administrative record number NA-259). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy. We did not hold a public hearing or meeting because no one requested either one. The public comment period ended on April 27, 2001.

III. Director's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 884.14 and 884.15. We are approving the amendment.

A. Minor Revisions to the Navajo Nation's Rules in its Plan

The Navajo Nation proposed the following minor editorial and codification change:

The heading “Subsection P. RESERVED” is removed and replaced with the heading “O. NONCOAL RECLAMATION AFTER CERTIFICATION.”

Because the change to this rule is minor, we find that it meets the requirements of the Federal regulations and is consistent with the corresponding provision of SMCRA.

B. Revisions to the Navajo Nation's Rules in its Plan That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations and/or SMCRA

The Navajo Nation proposed revisions to the following rules in its plan containing language that is the same as, or similar to, the corresponding sections of the Federal regulations and or SMCRA (which are shown in parentheses):

Section II, subsection O.1: Applies subsection O to reclamation projects that restore lands and water adversely affected by past mineral mining; projects involving the protection, repair, replacement, construction, or enhancement of utilities (such as those relating to water supply, roads, and such other facilities serving the public adversely affected by mineral mining and processing practices); and the construction of public facilities in communities impacted by coal and other mineral mining and processing practices (30 CFR 875.15(a));

Section II, subsections O.2 through (2)(c): Establish objectives and priorities for expenditures of money for the projects described in new subsection O.1. These paragraphs replace almost identical existing provisions at former subsection M.2 that the Navajo Nation proposes to remove (subsections 411(c), (c)(1), (c)(2), and (c)(3) of SMCRA and 30 CFR 875.15(b), (b)(1), (b)(2), and (b)(3));

Section II, subsection O.3: Allows enhancement of facilities or utilities (that were adversely affected by past mining and processing) to include upgrading to meet public health and safety requirements, but not to include any service area expansion unless needed to address a specific abandoned mine land problem (30 CFR 875.15(c));

Section II, subsectionsO.5 through (5)(g): Describes the information that must be included in grant applications that request funds for projects proposed under new subsection O.3 (30 CFR 875.15(e) and (e)(1) through (e)(7));

Section II, subsection O.7: Applies existing provisions of the Navajo Reclamation Plan for land acquisition and right of entry to noncoal reclamation authorized under subsection O (30 CFR 875.17);

Section II, subsection O.8: Applies existing provisions of the Navajo Reclamation Plan for liens to noncoal reclamation authorized under subsection O (30 CFR 875.18); and

Section II, subsection O.10: Requires bidders to be eligible to receive a permit to conduct surface coal mining operations as a prerequisite to being awarded an AML contract (30 CFR 874.20).

C. Revisions to the Navajo Nation's Rules in its Plan That Are Not the Same as the Corresponding Provisions of the Federal Regulations and/or SMCRA

1. Subsection O.4, Determination of Need for Public Facilities Projects

The Navajo Nation proposes a new provision as subsection O.4 in section II of its reclamation plan. This provision will authorize it to apply for funding to undertake activities or construction of specific public facilities related to the coal or minerals industry on Navajo Nation lands impacted by coal or mineral development based on a determination of need for such activities or construction made by “* * * the President of the Navajo Nation, subject to applicable laws * * *.”

The counterpart provision in section 411(f) of SMCRA requires that the determination of need for activities or construction of specific public facilities be made by “* * * the Governor of a State or the head of a governing body of an Indian tribe * * *.” Counterpart 30 CFR 875.15(e) requires the determination of need to be made by “* * * the Governor of a State or the equivalent head of an Indian tribe * * *.” The qualifying phrase “subject to applicable laws” as proposed in the Navajo Nation's rule has no counterpart in SMCRA or the Federal regulations.

Designating the President to determine the need for public facilities projects is consistent with SMCRA and the counterpart Federal regulation. The qualifying phrase “subject to applicable laws” requires the Navajo President to abide by Navajo law when determining the need for projects under this provision. We fully expect the Navajo Nation and its President to comply with applicable Navajo and/or other law in making these determinations under the approved Tribal AML program just as we expect a State and its Governor to comply with State and/or other law in the administration of an approved State AML program. Moreover, the proposed rule will protect the Navajo Nation's grant funds by ensuring that projects are selected and funded in accordance with applicable law while retaining the Nation's exclusive authority and responsibility to administer its approved program.

Also, in proposed subsection O.4, the phrase “* * * determines there is a need for activities or construction of public facilities related to the coal or minerals industry on Navajo Nation lands impacted by coal or mineral development * * *,” the word “mineral” preceding the word “development” does not end with an “s.” The counterpart term in the corresponding Federal regulation at 30 CFR 875.15(d) is “minerals.” We interpret the Navajo Nation's use of the word “mineral” and the phrase “mineral development” in the context of proposed subsection O.4 to have the same meaning as the word “minerals” and the phrase “mineral development” in the Federal regulation.

Based on the reasoning described above, we find that the Navajo Nation's proposed rule, considered together with other statutes and rules, compares, all together, with applicable requirements of the Federal regulations and SMCRA sufficient to ensure that the Navajo Nation's plan, as a whole, meets all applicable Federal requirements.

2. Subsection O.6, Exclusion of Certain Noncoal Reclamation Sites

The Navajo Nation proposes to remove its existing, previously approved rule that excludes certain noncoal sites from reclamation at subsection O.1 from its plan and replace it with an identical provision at new subsection O.6.

Proposed subsection O.6 is similar to counterpart 30 CFR 875.16. The primary difference is the Navajo Nation's provision that “Funds will not be used * * *” to reclaim sites and areas designated for remedial action under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA; 42 U.S.C. 7901 et seq.) or that have been listed for remedial action under the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA; 42 U.S.C. 9601 et seq.) In comparison, the counterpart Federal regulation says, “Money from the Fund shall not be used * * *” for such reclamation. The source of the “Funds” referred to in proposed subsection O.6 is not identified in the Navajo Nation's rules. However, the corresponding provision at section 411(d) of the Navajo Abandoned Mine Lands Reclamation Code of 1987 provides that such remedial action “* * * shall not be eligible for expenditures from the Fund under this section.” Section 401(a) of the Navajo Code created “* * * on the books of the Treasury of the Navajo Nation a trust fund known as the Navajo Abandoned Mine Reclamation Fund (hereinafter referred to as the “fund”) * * *.” Section 401(c) of the Navajo Code describes how money in the fund may be used, including reclamation of coal and noncoal abandoned mines under subsections 401(c)(1) and (c)(2), respectively.

Federal statutory and regulatory provisions define the term “fund” similarly. As defined at 30 CFR 870.5, “Abandoned Mine Reclamation Fund or Fund means a special fund established on the books of the U.S. Treasury for the purpose of accumulating revenues designated for reclamation of abandoned mine lands and other activities authorized by Title IV of the Act.” Section 401(a) of SMCRA states that “There is created on the books of the Treasury of the United States a trust fund to be known as the Abandoned Mine Reclamation Fund (hereinafter referred to as the “fund”) * * *.” It goes on to say at section 401(c) what the money in the fund may be used for, including abandoned coal and noncoal mine reclamation under subsections 401(c)(1) and (3), respectively. Those subsections of SMCRA are the Federal counterparts to subsections 401(c)(1) and (c)(2) of the Navajo Code, respectively.

New subsection O.6 in the Navajo Nation's plan is proposed in the context of subsection O of the plan, which provides for reclamation of noncoal projects after certification. It also is proposed as the Navajo rules' counterpart to section 401(d) of the Navajo Abandoned Mine Lands Reclamation Code and to 30 CFR 875.16. Though proposed subsection O.6 is worded differently than the counterpart provisions in the Navajo Code, SMCRA, and the Federal regulations, we interpret the proposed rule to mean that the Navajo Nation will not use money from the Navajo Abandoned Mine Reclamation Fund to reclaim sites designated for remedial action under UMTRCA or listed for remedial action under CERCLA, as opposed to meaning no money from any source whatsoever may be used to reclaim them. Removal of the existing provision at subsection O.1 is appropriate in view of the proposed rule replacing it at subsection O.6.

Other differences in wording between the proposed Navajo rule and the counterpart Federal regulation are minor. We interpret the word “will” in the proposed Navajo rule to have the same meaning as the term “shall” in the Federal regulation. Also, we interpret use of the word “which” in the proposed Navajo rule to have the same meaning as the corresponding word “that” in the Federal regulation.

For these reasons, we find that proposed subsection O.6, considered together with the Navajo Abandoned Mine Land Reclamation Code, compares, all together, with applicable requirements of the Federal regulations and SMCRA sufficient to ensure that the Navajo Nation's plan, as a whole, meets all Federal requirements.

3. Subsection O.9, Limited Liability

The Navajo Nation proposes a limited liability provision at section II, subsection O.9 of its plan for noncoal reclamation after certification. The proposed rule states that the Navajo Nation will not be liable under any provision of Federal, State, or Tribal law for any costs or damages resulting from actions taken or omitted in the course of carrying out its plan, except those resulting from gross negligence or intentional misconduct. It defines gross negligence or intentional misconduct as reckless, willful, or wanton misconduct.

Proposed subsection O.9 reads much like the counterpart Federal provisions. Section 405(l) of SMCRA and 30 CFR 874.15 provide that no State [or Indian tribe, as provided by section 405(k) of SMCRA] shall be liable under “any provision of Federal law”, except as discussed above. The proposed rule asserts greater immunity than SMCRA and the Federal regulations do, by asserting that the Navajo Nation will not be liable under State and Tribal law, as well as Federal law.

We find that this subsection is consistent with Federal requirements to the extent that it addresses the Navajo Nation's liability under Federal law. However, resolution of Tribal liability issues under State laws or laws of another Tribe is outside the scope of SMCRA. Thus, while we are approving this provision as satisfying the minimum requirements of SMCRA, we do not intend either to limit the Navajo Nation's liability beyond what is provided under SMCRA or to affect the ability of any person to resolve liability issues outside the scope of SMCRA.

Other differences between the wording of the proposed Navajo rule and the counterpart Federal regulation are minor and do not affect whether the proposed rule meets applicable Federal requirements. References to the “Navajo Nation” and “this plan” in the Tribal amendment are program-specific and are analogous to references to the “State or Indian Tribe” and to “an approved State or Indian tribe abandoned mine reclamation plan” in the Federal regulation, respectively.

D. Revisions to the Navajo Nation's Rules in its Plan With No Corresponding Provisions in the Federal Regulations or Statute

The Navajo Nation proposes to add a requirement at section II, subsection O.5(h) that its applications for public facility project funding show that the project “ * * * meets the requirements of the procedures/criteria for Public Facility Projects used by Navajo Nation.” This proposed new rule has no counterpart in SMCRA or the Federal regulations.

Projects funded under subsections O.4 and O.5 of the Navajo plan will compete for grant funding with the Navajo Nation's abandoned mine reclamation projects. SMCRA and the Federal regulations do not suggest how to determine the need for public facilities projects or how to select such projects when more than one is needed. The Navajo Nation will have to choose from among many competing needs, so proposing a rule requiring applications for public facilities projects to show how such projects meet the Nation's process and criteria for funding them is a reasonable approach to making those choices. The fact that SMCRA and the Federal regulations do not require a process for selecting public facilities projects does not preclude the Navajo Nation from developing a process and criteria that will ensure its funding is put to the best use in addressing its greatest needs. This approach is not unlike that involving the objectives and priorities for coal and noncoal reclamation projects in sections 403 and 411 of SMCRA and 30 CFR 874.13 and 875.15. Applying those objectives and priorities to potential AML projects provides States and Tribes with a process by which to fund their most pressing problems first and which problems to consider funding later. The Navajo Nation's proposed rule would do essentially the same thing for public facilities projects.

Based on this reasoning, we find proposed subsection O.5(h) meets all applicable Federal requirements when considered together with SMCRA and the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment in the March 28, 2001, Federal Register (66 FR 16893; administrative record number NA-259). We also asked for comments in letters dated March 12, 2001, that we sent out to a number of interested parties (administrative record NA-257).

The New Mexico State Historic Preservation Officer (NMSHPO) responded to our request for comments in a note dated April 20, 2001 (administrative record number NA-260). NMSHPO thanked us for our invitation to comment but advised us that, under 36 CFR 800.3, we are to consult with the Tribal Historic Preservation Officer in lieu of NMSHPO for undertakings on Tribal land and for effects on Tribal lands. We requested comments from the Navajo Nation's Historic Preservation Officer in a letter dated March 12, 2001 (administrative record number NA-257), but did not receive a response.

We did not receive any other public comments.

Federal Agency Comments

Under 30 CFR 884.14(a)(2) and 884.15(a), we requested comments on the amendment in letters dated March 12, 2001 (administrative record number NA-257) from various Federal agencies with an actual or potential interest in the Navajo plan.

In a response dated March 15, 2001, the Natural Resources Conservation Service of the U.S. Department of Agriculture said it reviewed the proposed Navajo amendment and had no comments.

We did not receive comments from any other Federal agencies.

V. Director's Decision

Based on the above findings, we approve the amendment the Navajo Nation sent to us on March 2 and 8, 2001.

We approve, as discussed in Finding number III.A: Section II, subsection O, new subsection heading; in Finding number III.B: Section II, subsection O.1, applying subsection O to projects that restore lands and water adversely affected by past mineral mining, that involve protection, repair, replacement, construction, or enhancement of utilities, and that involve the construction of public facilities in communities impacted by coal and other mineral mining and processing practices; section II, subsections O.2 and O.2(c), establishing objectives and priorities for expenditures of money for projects described in new subsection O.1, and the removal of existing provisions at subsection M.2; section II, subsection O.3, allowing enhancement of facilities or utilities to include upgrading to meet public health and safety requirements, but not to include any service area expansion unless needed to address a specific abandoned mine land problem; section II, subsections O.5 through O.5(g), describing information that must be in grant applications that request funds for projects proposed under new subsection O.3; section II, subsection O.7, applying existing provisions of the Navajo Plan for land acquisition and right of entry to noncoal reclamation authorized under subsection O; section II, subsection O.8, applying existing provisions of the Navajo Plan for liens to noncoal reclamation authorized under subsection O; and section II, subsection O.10, requiring bidders to be eligible to receive a permit to conduct surface coal mining operations as a prerequisite to being awarded an AML contract; in Finding III.C.1, section II, subsection O.4, a provision authorizing the Navajo Nation President to make the determination of need for activities or construction of specific public facilities projects, subject to applicable laws; in Finding III.C.2, section II, subsection O.6, prohibiting use of money from the fund to pay for reclamation of certain noncoal sites, and removal of the existing, previously approved rule at former subsection O.1; in Finding III.C.3, section II, subsection O.9, establishing a limited liability provision applicable to the Navajo Nation's noncoal program after certification; and in Finding III.D, section II, subsection O.5(h), requiring the Navajo Nation's grant applications for public facility project funding to show that such projects meet the requirements of the Nation's procedures and criteria for public facility projects.

We approve the rules that the Navajo Nation proposed with the provision that the Navajo Nation fully promulgate them in identical form to the rules it sent to us and that the public and we reviewed.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 756.14, which codify decisions concerning the Navajo plan. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Sections 405(a) of SMCRA required the Secretary of the Interior to promulgate and publish regulations covering the implementation of an abandoned mine reclamation program. Sections 405(d) and (k) requires the Secretary to approve a tribal reclamation plan when it is in compliance with the procedures, guidelines and requirements established under section 405(a). Making this regulation effectively immediately will expedite that process. Further, the amendment submitted by the Navajo Nation is based on regulations issued by the Secretary which were published in the Federal Register and which took effect only after a 30 day waiting period. Before any project made eligible under this rulemaking can be undertaken, extensive public outreach is required by our regulations at 30 CFR 875.15(e). An immediate effective date will not violate any principles of fundamental fairness, because no affected persons will require time to prepare for this effective date. For these reasons, therefore, requiring another 30 day waiting period before the effective date of this rule is not seen to be in the public interest.

VI. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulations.

Executive Order 12866—Regulatory Planning and Review

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—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 (Civil Justice Reform) and has determined that 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 Tribal AMLR plans and plan amendments since each such program is drafted and promulgated by a specific Tribe, not by OSM. Decisions on proposed Tribal AMLR plans and revisions thereof submitted by a 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 the applicable Federal regulations at 30 CFR Subchapter R.

National Environmental Policy Act

This rule does not require an environmental impact statement because agency decisions on proposed Tribal AMLR plans and plan revisions are categorically excluded from compliance with the National Environmental Policy Act (NEPA; 42 U.S.C. 4332) by the Department of the Interior's NEPA compliance manual at 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 Tribal submittal that is the subject of this rule is based on counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect on a substantial number of small entities. Accordingly, this rule will ensure that the Navajo Nation will implement existing requirements that OSM previously promulgated. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: a. Does not have an annual effect on the economy of $100 million; b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; and c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based on the fact that the Tribal submittal which is the subject of this rule is based on counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

OSM determined and certifies under 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 any local, State, or Tribal governments or private entities.

List of Subjects in 30 CFR Part 756

• Abandoned mine reclamation programs
• Indian lands
• Surface mining
• Underground mining

Dated: May 21, 2001.

Brent Wahlquist,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII, Subchapter E of the Code of Federal Regulations is amended as set forth below:

PART 756—INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS

1. The authority citation for part 756 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.

2. Section 756.14 is amended by adding paragraph (e) to read as follows:

§ 756.14

Approval of amendments to the Navajo Nation's abandoned mine land plan.

* * * * *

(e) Addition or removal of the following rules, as submitted to OSM on March 2 and 8, 2001, is approved effective July 31, 2001:

Section II, subsections M, 2, 2(a), 2(a)(1), 2(a)(2), and 2(a)(3), noncoal reclamation after certification (removed);

Section II, subsection O, 1, Exclusion of Noncoal Reclamation Sites (removed);

Section II, subsection O, subsection heading “NONCOAL RECLAMATION AFTER CERTIFICATION;”

Section II, subsection O, 1, applicability of subsection O;

Section II, subsections O, 2, 2(a) through 2(c), objectives and priorities;

Section II, subsection O, 3, enhancement of facilities and utilities;

Section II, subsection O, 4, determination of need for activities and construction of specific public facilities and submittal of grant applications;

Section II, subsection O, 5 through 5(h), requirements for grant applications submitted under subsection O.4 to meet;

Section II, subsection O, 6, exclusion of certain noncoal reclamation sites;

Section II, subsection O, 7, land acquisition authority for the noncoal program;

Section II, subsection O, 8, lien requirements;

Section II, subsection O, 9, limited liability;

Section II, subsection O, 10, contractor responsibility; and

Section II, subsection P, subsection heading, “RESERVED” (removed).