[Federal Register Volume 61, Number 35 (Wednesday, February 21, 1996)]
[Rules and Regulations]
[Pages 6537-6540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-3820]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 950
[SPATS No. WY-024-FOR]
Wyoming Abandoned Mine Land Reclamation Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving, with certain exceptions and additional requirements, a
proposed amendment to the Wyoming Abandoned Mine Land Reclamation
(AMLR) plan (hereinafter referred to as the ``Wyoming plan'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Wyoming is
revising and adding statutes pertaining to noncoal lien authority and
contractor eligibility. The amendment revises the Wyoming plan to be
consistent with SMCRA, to incorporate the additional flexibility
afforded by the revised Federal regulations, and to improve operational
efficiency.
EFFECTIVE DATE: February 21, 1996.
FOR FURTHER INFORMATION CONTACT: Guy Padgett, Casper Field Office,
Telephone: (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Plan
On February 14, 1983, the Secretary of the Interior approved the
Wyoming plan. General background information on the Wyoming plan,
including the Secretary's findings and the disposition of comments, can
be found in the February 14, 1983, Federal Register (48 FR 6536).
Subsequent actions concerning Wyoming's plan and plan amendments can be
found at 30 CFR 950.30, 950.35, and 950.36.
II. Proposed Amendment
By letter dated April 21, 1995, Wyoming submitted a proposed
amendment to its plan (administrative record No. WY-AML-18-8) pursuant
to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed
amendment at its own initiative and in response to a September 26,
1994, letter (administrative record No. WY-AML-18-1) that OSM sent to
Wyoming in accordance with 30 CFR 884.15(b).
The provisions of Wyoming's statute that Wyoming proposed to revise
and add were: Wyoming Statute (W.S.) 35-11-1206(a) and (b), liens for
reclamation on private land, and W.S. 35-11-1209(a) and (b), contractor
eligibility.
OSM announced receipt of the proposed amendment in the May 18,
1995, Federal Register (60 FR 26704), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. WY-AML-18-9).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on June 19, 1995.
During its review of the amendment, OSM identified concerns
relating to the provisions of W.S. 35-11-1206 and the amount of the
lien placed on reclaimed private lands. OSM notified Wyoming of the
concerns by letter dated August 9, 1995 (administrative record No. WY-
AML-18-16). Wyoming responded in a letter dated August 29, 1995, by
submitting additional explanatory information for W.S. 35-11-1206
regarding the cost of reclamation in the lien computation
(administrative record No. WY-AML-18-17).
Based upon the additional explanatory information for the proposed
plan amendment submitted by Wyoming, OSM reopened the public comment
period in the September 20, 1995, Federal Register (60 FR 48678,
administrative record No. WY-AML-18-18). The public comment period
closed on October 5, 1995.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 884.14 and 884.15, finds, with certain exceptions and additional
requirements, that the proposed plan amendment submitted by Wyoming on
April 21, 1995, and as supplemented with additional explanatory
information on August 29, 1995, is in compliance with the Federal
regulations at 30 CFR Subchapter R and is consistent with SMCRA. Thus,
the Director approves, with certain exceptions and additional
requirements, the proposed amendment.
1. W.S. 35-11-1206(a) and (b), Liens for Reclamation on Private Lands
Wyoming proposed to add the following italicized language to its
provisions at W.S. 35-11-1206(a), concerning liens for reclamation on
private lands, by providing, in part, that
[w]ithin six (6) months after the completion of projects to restore,
reclaim, abate, control or prevent adverse effects of past coal or
mineral mining practices on privately owned land, the director [of
the Abandoned Mine Land Division] shall itemize the monies expended
and may file a lien against the property with the appropriate county
clerk. If the monies expended result in a significant increase in
property value, a notarized appraisal by an independent appraiser
shall be filed with the lien. The lien shall not exceed the cost of
reclamation work or the amount determined by the appraisal to be the
increase in the fair market value of the land as a result of the
restoration, reclamation, abatement, control or prevention of the
adverse effects of past coal or mineral mining practices, whichever
is less.
In addition, Wyoming proposed the addition of the italicized
language at W.S. 35-11-1206(b) to provide that
[t]he landowner may petition the district court for the district in
which the majority of the land is located within sixty (60) days of
the filing of the lien to determine the increase in the fair market
value of the land. The amount reported to be the increase in value
of the premises, but not exceeding the cost of the reclamation work,
shall constitute the amount of the lien and shall be recorded with
the lien.
As discussed below, the counterparts to these proposed State
provisions are at sections 408 and 411(g) of SMCRA and in the Federal
regulations at 30 CFR Part 882.
Section 408(a) of SMCRA requires that the lien shall not exceed the
amount determined by the appraisal to be the increase in the market
value of the land as a result of the restoration, reclamation,
abatement, control, or prevention of the adverse effects of past coal
mining practices. Section 408(b) of SMCRA provides that the landowner
may petition to determine the increase in the market value of the land
reclaimed and that the amount reported to be the increase in value of
the premises shall constitute the amount of the lien. Section 411(g) of
SMCRA allows the provisions of section 408 to be applied to noncoal
sites after a State's
[[Page 6538]]
certification of completion of coal projects. OSM announced in the May
25, 1984, Federal Register (49 FR 22139) that Wyoming had certified to
the completion of, or was in the process of completing, the reclamation
of all known coal-related impacts eligible for funding under the
State's AMLR program, and accordingly, Wyoming could use AMLR funds for
noncoal projects that do not directly relate to public health or
safety.
The Federal regulations at 30 CFR Part 882, which concern
reclamation on private coal or noncoal land, provide at 882.12(a) that
the appraisal shall state the estimated market value of the property in
its unreclaimed condition and of the same property as reclaimed, and at
882.13(a), that OSM, the State, or Indian tribe has the discretionary
authority to place or waive a lien against land reclaimed if the
reclamation results in a significant increase in the ``fair market
value.''
The Director finds that the language proposed by Wyoming at W.S.
35-11-1206(a) that allows the Abandoned Mine Land Division (Division)
to place liens on lands affected by past mineral mining practices after
the completion of projects to restore, reclaim, abate, control, or
prevent adverse impacts on such lands is consistent with sections 408
and 411(g) of SMCRA. Therefore, the Director approves the revision of
W.S. 35-11-1206(a) allowing liens to be placed on private lands
adversely effected by past mineral mining practices.
In addition, the Director finds that the language proposed by
Wyoming at W.S. 35-11-1206 (a) and (b) that limits the lien amount to
the cost of reclamation work or the increase in the fair market value
in inconsistent with SMCRA and the Federal regulations to the extent
that sections 408 (a) and (b) of SMCRA and the Federal regulations at
30 CFR Part 882 do not allow for a lien that is less than the increase
in the fair market value of the reclaimed land (i.e., they do not
provide for a lien that is equal to the cost of reclamation work if the
cost of reclamation work is less than the increase in the fair market
value). Therefore, although the Director approves the work ``fair'' in
proposed W.S. 35-11-1206(a) and (b), he does not approve the phrases
``cost of the reclamation work or the'' and ``whichever is less'' in
W.S. 35-11-1206(a) and the phrase ``but not exceeding the cost of the
reclamation work,'' in W.S. 35-11-1206(b). The Director requires
Wyoming to remove these phrases from W.S. 35-11-1206(a) and (b).
2. W.S. 35-11-1209, Contractor Eligibility
(a) W.S. 35-11-1209(a).--Wyoming proposed to create W.S. 35-11-
1209(a) to require that the Division will not issue a contract to any
construction contractor or professional services contractor if any
surface coal mining and reclamation operation owned or controlled by
the contractor, or by any person who owns or controls the contractor,
has any (1) delinquent abandoned mine reclamation fees, (2) Federal or
State failure-to-abate cessation orders, (3) unabated Federal or State
imminent harm cessation orders, (4) delinquent civil penalties issued
under SMCRA, (5) bond forfeitures where the violation upon which the
forfeiture was based has not been corrected, and (6) unabated
violations of Federal or State laws, rules, or regulations pertaining
to air or water environmental protection incurred in connection with
any surface coal mining operation.
There is no direct counterpart to these provisions in SMCRA.
However, the Federal regulations at 30 CFR 874.16 (for coal) and 875.20
(for noncoal) do correspond to the proposed State statutory provisions
and they provide that every successful bidder for an AMLR contract must
be eligible under 30 CFR 773.15(b)(1) at the time of contract award to
receive a permit or conditional permit to conduct surface coal mining
operations and that bidder eligibility will be confirmed by OSM's
automated Applicant/Violator System (AVS) for each contract to be
awarded.
Wyoming proposed at W.S. 35-11-1209(a) certain provisions
concerning issuance of an AMLR contract to any construction contractor
or professional services contractor that are substantively identical to
counterpart provisions provided at 30 CFR 773.15(b)(1), which is
referenced at 30 CFR 874.16 and 875.20. Specifically, Wyoming included
at paragraphs (i), (v), and (vi) delinquent abandoned mine reclamation
fees, bond forfeitures involving uncorrected violations, and unabated
violations of Federal and State laws, rules, and regulations pertaining
to air or water environmental protection incurred in connection with
any surface coal mining operation. The Director finds that the proposed
criteria provided at W.S. 35-11-1209(a)(i), (v), and (vi) are in
compliance with 30 CFR 874.16 and 875.20 and he approves these
provisions.
Wyoming proposed at W.,S. 35-11-1209(a)(ii) and (iii) other
requirements that are not in compliance with 30 CFR 874.16 and 875.20.
Wyoming's proposed list of criteria that prohibit the awarding of an
AMLR contract do not include all of the criteria of the referenced
Federal regulation at 30 CFR 773.15(b)(1). In drafting the language for
W.S. 35-11-1209(a), Wyoming used provisions substantively identical to
language that previously existed in 30 CFR 773.15(b)(1). However,
Wyoming was not aware of or did not take into account revisions to this
Federal regulation that OSM published in the October 28, 1994, Federal
Register (59 FR 54306).
The Federal regulations at 30 CFR 773.15(b)(1) now include, in
addition to the criteria included in Wyoming's proposed statute,
violations ``of the Act [(SMCRA)], any Federal rule or regulation
promulgated pursuant thereto, [and of] a State program.'' Although
Wyoming's proposed language includes Federal or State failure-to-abate
and imminent harm cessation orders in its criteria list used to
determine a contractor's eligibility to receive an AMLR contract, it
does not include Federal and State notices of violations and any other
``written notification from a governmental entity, whether by letter,
memorandum, judicial or administrative pleading, or other written
communication, of a violation of the Act; any Federal rule or
regulation promulgated pursuant thereto; [or a] State program,'' which
is set forth in the definition of ``violation notice'' at 30 CFR 773.5.
Therefore, in this respect, proposed W.S. 35-11-1209(a)(ii) and (iii)
are not in compliance with 30 CFR 874.16 and 875.20, which reference 30
CFR 773.15(b)(1). The Director requires Wyoming to revise W.S. 35-11-
1209(a), or otherwise amend its statute, rules, and/or plan, to include
as a criterion for awarding AMLR contracts, Federal and State notices
of violations and any other written notification from a governmental
entity, whether by letter, memorandum, judicial or administrative
pleading, or other written communication, of a violation of the Act;
any Federal rule or regulation promulgated pursuant thereto; or a State
program.
Additionally, Wyoming proposed in its list of criteria that
prohibit the awarding of an AMLR contract at W.S. 35-11-1209(a)(iv) the
criterion ``delinquent civil penalty issued under SMCRA.'' 30 CFR
874.16 and 875.20, which by reference to the provisions of 30 CFR
773.15(b)(1), implement the provisions of section 518 of SMCRA. This
section of SMCRA includes requirements for OSM civil penalty
assessments. The Director interprets Wyoming's use of the phrase
``delinquent civil penalty issued under SMCRA'' to mean delinquent
civil
[[Page 6539]]
penalties issued under any SMCRA State or Federal program. Using this
interpretation, the Director finds that W.S. 35-11-1209(a)(iv) is in
compliance with 30 CFR 874.16 and 875.20 and is consistent with section
518 of SMCRA. The Director approves this statute.
Finally, Wyoming did not indicate at proposed W.S. 35-11-1209 how
the Division will determine whether a construction contractor or
professional services contractor is ``eligible'' to receive an AMLR
contract. The Federal regulations at 30 CFR 874.16 and 875.20 indicate
that bidder eligibility must be confirmed by OSM's AVS for each
contract to be awarded.
Because proposed W.S. 35-11-1209 does not include provisions for
Wyoming to verify through AVS a contractor's eligibility, the Director
requires Wyoming to revise W.S. 35-11-1209, or otherwise revise its
statute, rules and/or plan to indicate that any construction contractor
or professional services contractor be confirmed through AVS as
eligible to receive an AMLR contract prior to receiving the award.
b. W.S. 35-11-1209(b).--Wyoming also proposed newly created W.S.
35-11-1209(b) to provide that ``ownership and controlling interest,''
as used in W.S. 35-11-1209, means the same as this term means as
defined at 30 CFR Part 773.5. 30 CFR 874.16 and 875.20, by referencing
30 CFR 773.15(b)(1), provide for a review of all reasonably available
information concerning ownership and control links. The Federal
regulations at 30 CFR 773.5 address ownership and control relationships
in the definition of the terms ``owned or controlled'' and ``owns or
controls;'' however, 30 CFR 773.5 does not define ``ownership and
controlling interest.'' The Director interprets W.S. 35-11-1209(b) to
mean that Wyoming's term ``ownership and controlling interest'' has the
same meaning as the Federal terms ``owned or controlled'' and ``owns or
controls'' at 30 CFR 773.5. The Director also interprets Wyoming's
proposed use of the terms ``owned and controlled'' or ``owns or
controls'' at W.S. 35-11-1209(a) to mean the same thing as the
definitions for these terms at 30 CFR 773.5. The Director finds W.S.
35-11-1209(b) to be in compliance with the ownership and control
relationship definitions included at 30 CFR 773.5. Therefore, the
Director approves this statutory provision.
(c) Policy Statement Concerning AVS Contractor Eligibility at W.S.
35-11-1209.--Wyoming provided a policy statement dated April 21, 1995,
that consists of a memorandum prepared by the State's AMLR attorney and
addressed to the administrator of the Division. The policy statement
specifically excludes subcontractors from the requirements at W.S. 35-
11-1209. Wyoming's policy states that any subcontractor would not have
to receive AVS clearance before being allowed to work on an AMLR
contract. There are no Federal counterpart requirements to Wyoming's
proposed policy. However, the preamble for the Federal regulations at
30 CFR 874.16 and 875.20 does not address whether subcontractors must
also clear AVS (May 31, 1994; 59 FR 28136, 28158 and 28164). In the
absence of any Federal requirements concerning subcontractors,
Wyoming's policy is not inconsistent with the Federal regulations at 30
CFR 874.16 and 875.20. If, at any time in the future, OSM decides to
promulgate regulations or an interpretive rule to address
subcontractors, it would notify Wyoming in accordance with 30 CFR Part
884.15(b) of any needed revisions to the Wyoming plan. For this reason,
the Director finds that Wyoming's proposed policy statement issued in
support of W.S. 35-11-1209 concerning subcontractors is in compliance
with the Federal regulations at 30 CFR 874.16 and 875.20. Therefore,
the Director approves the proposed policy statement.
V. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Wyoming plan (administrative
record Nos. WY-AML-18-10 and -11).
The Bureau of Land Management (BLM), Wyoming State Office,
responded on June 8, 1995, that the degree of involvement by the
subcontractor in the overall project should be considered
(administrative record No. WY-AML-18-12). BLM stated that if the
involvement of the subcontractor is major, the subcontractor should be
subject to the same rules as the contractor. BLM also questioned
whether W.S. 35-11-1209 and Wyoming's policy regarding its
implementation in Wyoming would set up a system whereby a contractor in
violation can have another party bid the project and then subcontract
to circumvent the system.
As discussed in finding No. 2(c) above, the Federal regulations at
30 CFR 874.16 and 875.20 are silent as to whether subcontractors are
required to pass the same AVS checks required for the successful bidder
on an AMLR contract. Because the Federal regulations do not
specifically require subcontractors to meet the eligibility
requirements applied to the successful bidder for an AMLR contract, OSM
cannot require Wyoming to make subcontractors comply with the
requirements of W.S. 35-11-1209. In response to BLM's expressed concern
that Wyoming's policy may allow a contractor who would not normally
pass the AVS check to circumvent the system by becoming a subcontractor
on a specific project, OSM acknowledges that the Federal regulations do
not prevent this type of occurrence, however, OSM expects that these
incidents would be infrequent. If OSM determines that the frequency of
such occurrences is greater than expected, it would, as provided in
finding No. 2(c) above, promulgate regulations or an interpretive rule
to address subcontractors.
The U.S. Army Corps of Engineers responded on June 13, 1995, that
it found the amendment to be satisfactory (administrative record No.
WY-AML-18-13).
By letter dated June 13, 1995, the Mine Safety and Health
Administration (MSHA) stated that the amendment has no apparent impact
upon miners' health and safety (administrative record No. WY-AML-18-
14). MSHA also indicated that its enabling legislation limits its
jurisdiction to specify mining and mining-related activities and does
not extend to state contractor reclamation of abandoned mine properties
nor to the recovering of costs of reclamation.
The U.S. Department of Agriculture, Natural Resources Conservation
Service, responded on June 16, 1995, that it had no comment on the
amendment (administrative record No. WY-AML-18-15).
VI. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, Wyoming's proposed plan
amendment as submitted on April 21, 1995, and as supplemented with
additional explanatory information on August 29, 1995.
The Director approves, as discussed in finding No. 1, certain
revisions to
[[Page 6540]]
W.S. 35-11-1206 (a) and (b), concerning the placement of liens on
private lands adversely affected by past coal and mineral mining
practices. With the requirement that Wyoming further revise its
statute, rules, and/or plan, the Director does not approve, as
discussed in Finding No. 1, other revisions to W.S. 35-11-1206 (a) and
(b), concerning the use of the cost of reclamation in determining the
amount of liens for reclamation on private land.
With the requirement that Wyoming further revise its statute,
rules, and/or plan, the Director approves, as discussed in finding No.
2(a), W.S. 35-11-1209(a), concerning contractor eligibility.
The Director approves, as discussed in finding No. (2)(b), W.S. 35-
11-1209(b), concerning ownership and control relationships, and finding
No. (2)(c), an April 21, 1995, policy statement for W.S. 35-11-1209,
concerning subcontractors.
In accordance with 30 CFR 884.15(e), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
950.36 that Wyoming must by the date indicated submit to OSM a
reasonable timetable, which is consistent with Wyoming's established
administrative or legislative procedures, for submitting an amendment
to the State reclamation plan.
The Federal regulations at 30 CFR Part 950, codifying decisions
concerning the Wyoming plan, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State plan amendment process and to encourage States to
bring their plans into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VII. Procedural Determinations
1. 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).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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 State AMLR plans and revisions
thereof since each such plan is drafted and promulgated by a specific
State, not by OSM. Decisions on proposed State AMLR plans and revisions
thereof submitted by a State 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 Parts 884
and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed State AMLR 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)).
4. 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.).
5. 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 State submittal which is the subject of this rule is based upon
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
established by SMCRA or previously promulgated by OSM will be
implemented by the State. 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.
List of Subjects in 30 CFR Part 950
Abandoned mine reclamation programs, Intergovernmental relations,
Surface mining, Underground mining.
Dated: February 12, 1996.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, part 950 of the Code of
Federal Regulations is amended as set forth below:
PART 950--WYOMING
1. The authority citation for part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 950.35 is amended by adding paragraph (c) to read as
follows:
Sec. 950.35 Approval of abandoned mine land reclamation plan
amendments.
* * * * *
(c) With the exceptions of Wyoming Statute (W.S.) 35-11-1206(a) to
the extent that it includes the phrases ``cost of reclamation work or
the'' and ``, whichever is less'' and W.S. 35-11-1206(b) to the extent
that it includes the phrase ``, but not exceeding the cost of the
reclamation work,'' the revisions to W.S. 35-11-1206 (a) and (b),
concerning lien authority on private lands, and the addition of newly
created W.S. 35-11-1209 (a) and (b), including the policy statement
dated April 21, 1995, concerning contractor eligibility, as submitted
to OSM on April 21, 1995, and as supplemented with additional
information on August 29, 1995, are approved effective February 21,
1996.
3. Section 950.36 is added to read as follows:
Sec. 950.36 Required abandoned mine land plan amendments.
Pursuant to 30 CFR 884.15, Wyoming is required to submit to OSM by
the date specified a reasonable timetable, which is consistent with
Wyoming's established administrative and legislative procedures, for
submitting an amendment to the State reclamation plan.
(a) By March 22, 1996, Wyoming shall submit a schedule for revising
W.S. 35-11-1206(a) to remove the phrases ``cost of reclamation or the''
and ``, whichever is less'' and revising W.S. 35-11-1206(b) to remove
the phrase ``, but not exceeding the cost of the reclamation work,''.
(b) By March 22, 1996, Wyoming shall submit a schedule for revising
W.S. 1209(a), or otherwise revise its statute, rules and/or plan, to
include:
(1) Notices of violation in the criteria for determining the
eligibility of construction contractors or professional services
contractors awarded an abandoned mine land reclamation contract; and
(2) A requirement that a contractor's eligibility shall be
confirmed using OSM's Applicant/Violator System.
[FR Doc. 96-3820 Filed 2-20-96; 8:45 am]
BILLING CODE 4310-05-M
