[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12004]
[[Page Unknown]]
[Federal Register: May 18, 1994]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 756
Navajo Nation Abandoned Mine Land Reclamation (AMLR) Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
-----------------------------------------------------------------------
SUMMARY: OSM is accounting receipt of a proposed amendment and a
request from the Navajo Nation regarding its AMLR plan (hereinafter
referred to as the ``Navajo Nation plan'') under the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). The proposed amendment
consists of revisions to the Navajo Nation's AMLR Code of 1987
pertaining to its purpose, the duties and miscellaneous powers of the
AMLR Department and its Director, the abandoned mine reclamation fund,
reclamation fees, eligible lands and water, the Nation's reclamation
program, acquisition and reclamation of lands within the Navajo Nation
adversely affected by past mining practices, liens, filling voids and
sealing tunnels, emergency powers, certification of completion of coal
reclamation, and interagency cooperation. It also consists of revisions
to the Navajo Nation Rules pertaining to reclamation priorities for
coal and noncoal prior to certification, general coal and noncoal
reclamation requirements, certification of completion of coal sites,
eligible lands and water subsequent to certification, exclusion of
noncoal reclamation sites, funding for utilities and other facilities,
and creation of a set-aside program. The amendment is intended to
revise the Navajo Nation plan to be consistent with SMCRA, and to
improve operational efficiency.
In addition, the Navajo Nation has requested the concurrence of the
Secretary of the Department of the Interior with its certification of
completion of coal reclamation under its plan. If the Secretary concurs
with the certification, the Navajo Nation intends to request AMLR funds
to pursue projects in accordance with section 411 of SMCRA.
DATES: Written comments must be received by 4 p.m., m.d.t., June 17,
1994. If requested, a public hearing on the proposed amendment will be
held on June 13, 1994.
Requests to present oral testimony at the hearing must be received
by 4 p.m., m.d.t., June 2, 1994. Any disabled individual who has need
for a special accommodation to attend a public hearing should contact
the individual listed under FOR FURTHER INFORMATION CONTACT.
ADDRESSES: Written comments should be mailed or hand delivered to
Thomas E. Ehmett at the address listed below.
Copies of the Navajo Nation plan, the proposed amendment, the
Nation's request, and all written comments received in response to this
document will be available for public review at the addresses listed
below during normal business hours, Monday through Friday, excluding
holidays. Each requester may receive one free copy of the proposed
amendment by contacting OSM's Albuquerque Field Office.
Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office
of Surface Mining Reclamation and Enforcement, 505 Marquette Avenue,
NW., suite 1200, Albuquerque, New Mexico 87102.
The Navajo Nation, P.O. Box 308, Window Rock, Arizona 86515 (602)
871-4941.
FOR FURTHER INFORMATION CONTACT: Thomas E. Ehmett, telephone: (505)
766-1486.
SUPPLEMENTARY INFORMATION:
I. Background on Title IV of SMCRA
Title IV of SMCRA established an AMLR program for the purposes of
reclaiming and restoring lands and waters adversely affected by past
mining. The program is funded by a reclamation fee levied on the
production of coal. Lands and waters eligible for reclamation under
title IV are those that were mined or affected by mining and abandoned
or inadequately reclaimed prior to August 3, 1977, and for which there
is no continuing reclamation responsibility under State, Federal,
Tribal, or other laws.
Title IV provides for State or Tribal submittal to OSM of an AMLR
plan. The Secretary of the Interior adopted regulations in 30 CFR parts
870 through 888 that implement title IV of SMCRA. Under these
regulations, the Secretary reviewed the plans submitted by States and
Tribes and solicited and considered comments of State and Federal
agencies and the public. Based upon the comments received, the
Secretary determined whether a State or Tribe had the ability and
necessary legislation to implement the provisions of title IV. After
making such a determination, the Secretary decided whether to approve
the State or Tribe program. Approval granted the State or Tribe
exclusive authority to administer its plan.
Ordinarily, under section 405 of SMCRA, a State or Tribe must have
an approved surface mining regulatory program prior to submittal of an
AMLR plan to OSM. However, on July 11, 1987, the President signed a
supplemental appropriations bill (Pub. L. 100-71) that authorized the
Crow and Hopi Tribes and Navajo Nation to adopt AMLR programs without
approval of Tribal surface mining regulatory programs.
Upon approval of a State's or Tribe's plan by the Secretary, the
State or Tribe may submit to OSM, on an annual basis, an application
for funds to be expended by that State or Tribe on specific projects
that are necessary to implement the approved plan. Such annual requests
are reviewed and approved by OSM in accordance with the requirements of
30 CFR part 886.
II. Background on the Navajo Nation Plan
On May 16, 1988, the Secretary of the Interior approved the Navajo
Nation plan. General background information on the Navajo Nation plan,
including the Secretary's findings, the disposition of comments, and
the approval of the Navajo Nation plan can be found in the May 16,
1988, Federal Register (53 FR 17186). Approval of the Navajo Nation
plan is codified at 30 CFR 756.13.
III. Proposed Amendment and Request for Concurrence
By letters dated April 7 and 22, 1994, the Navajo Nation submitted
a proposed amendment to its plan pursuant to SMCRA (administrative
record Nos. NA-207, NA-208, and NA-212). The Navajo Nation submitted
the proposed amendment with the intent of revising its plan to make it
consistent with SMCRA, and to improve operational efficiency.
By letter dated May 4, 1994, the President of the Navajo Nation
notified the Secretary that the Navajo Nation intends to complete all
remaining priority 1 and 2 coal reclamation projects, as well as the
interim coal reclamation projects, as required by section 403(a) of
SMCRA (administrative record No. NA-213). OSM is aware there are coal
reclamation projects yet to be completed by the Navajo Nation, however,
the Nation has demonstrated that it has sufficient AMLR funds in
reserve to address these remaining AMLR coal reclamation sites. The
Navajo Nation has also submitted a grant application to OSM in
accordance with 30 CFR part 886 that, upon the approval of the proposed
amendment, will allow the Nation to complete the remaining coal
reclamation projects. The Navajo Nation submitted the request for the
Secretary's concurrence with certification of completion of all known
coal-related problems with the intent that, if the Secretary concurs
with the certification, the Nation will request AMLR funds to pursue
projects under the provisions of section 411 of SMCRA.
The provisions of the Navajo Nation plan, of which the Navajo AMLR
Code is a part, that the Nation proposes to amend are (1) title I,
Statement of Findings and Policy, section 101, findings and section
102, purposes; (2) title II, Department of Abandoned Mine Lands
Reclamation, section 201, establishment of Department and its duties;
and (3) title IV, Abandoned Mine Reclamation, section 401, Navajo
abandoned mine reclamation fund (hereinafter referred to as the
``fund'') and its purposes; section 402, reclamation fees; section 403,
objective of fund; section 404, eligible lands and water; section 405,
Tribal reclamation program; section 407, acquisition and reclamation of
lands within the Navajo Nation adversely affected by past coal mining
practices; section 408, liens; section 409, filling voids and sealing
tunnels; section 411, certification [of completion of coal
reclamation]; section 412, fund report; section 413, miscellaneous
powers [of the Director of the Department]; and section 414,
interagency cooperation.
The provisions of the Navajo Nation plan, of which the Navajo
Nation Rules are a part, that the Nation proposes to amend are (1)
section II, Policies and Procedures for the Navajo Reclamation Program,
part D, coal reclamation priorities and noncoal reclamation priorities
prior to certification; part L, general reclamation requirements for
coal and noncoal; part M, certification of completion of coal sites;
part N, eligible lands and water subsequent to certification; part O,
exclusion of noncoal reclamation sites; part P, utilities and other
facilities and (2) section III, Administrative and Management
Structure, part E, future reclamation set-aside program.
Following are more specific descriptions of the revisions that the
Navajo Nation proposes to make to the above-listed sections of its Code
and Rules. These descriptions do not address several editorial
revisions including changes in punctuation and capitalization;
recodification; replacing ``Tribal'' and ``Tribe of Indians'' with
``Nation'' in references to the Navajo Nation; referring to the
reclamation program and plan as the ``Navajo Abandoned Mine Reclamation
Program'' and ``Navajo Abandoned Mine Reclamation Plan;'' and
additional revisions to reflect the duties and responsibilities of the
AMLR Department, Division of Natural Resources, and Office of Navajo
Land Administration in administering the AMLR program for the Nation.
The Navajo Nation proposes the following revisions to its Code
provisions.
The Nation proposes to revise its provisions describing the duties
of the AMLR Department at subsection 201(b) by adding new language to
allow the Department to ``enlist the cooperation of'' employees of
federal agencies rather than ``use'' employees of federal agencies and
deleting the provision that restricted the transfer of legal authority,
program, or function to the Department in promoting the development or
use of coal or other mineral resources or regulating the health and
safety of miners. The Nation also proposes at subsection 201(d) to add
the word ``sovereign'' before ``immunity'' to clarify that nothing in
the Code waives the sovereign immunity of the Nation with respect to
actions seeking monetary relief of any kind.
The Nation proposes to revise its abandoned mine reclamation fund
provisions in section 401 by (1) adding new subsection (b)(5) to
provide that deposits in the fund shall be derived from interest
credited to the fund under section 401(e) of SMCRA; (2) revising
subsection (b)(6) to provide that the fund will include ``all'' rather
than ``any'' other reclamation fees lawfully imposed by the Nation; (3)
revising subsection (c)(5) to require that, when monies in the fund are
used for studies conducted for the purposes of this title by the
Department, the studies will be conducted in accordance with section
3501 of the Omnibus Reconciliation Act of 1986; and (4) adding new
subsection (c)(8) to allow monies in the fund to be used under section
411 [of the Code].
The Nation proposes to revise its fund objective provisions at
section 403 by (1) establishing priorities at subsection (a) for
expenditures of monies from the fund for lands and waters eligible
pursuant to section 404, except as provided for under section 411; (2)
deleting subsection (a)(4) which provided for funding of research and
demonstration projects relating to the development of surface mining
reclamation and water quality control program methods and techniques;
and (3) adding an inventory requirement at new subsection (b) to
provide that for purposes of assisting in the planning and evaluation
of reclamation projects pursuant to section 405, and assisting in
making the certification referred to in section 411(a), the Director
shall maintain an inventory of eligible lands and waters pursuant to
section 404 which meet the priorities stated in paragraph (1) and (2)
of subsection 403(a).
The Nation proposes to revise its criteria for determining eligible
lands and water at section 404 by providing that eligible lands and
water are those which were mined for coal and other minerals or which
were affected by such mining, * * * except as provided for under
section 411, and abandoned or left in an inadequate reclamation status
prior to August 3, 1977, and for which there is no continuing
reclamation responsibility under applicable law. The Nation also
proposes to reference section 409 for other provisions relating to
lands and waters eligible for expenditures.
The Nation proposes to revise the requirements of its tribal
reclamation program at section 405 by providing that the Navajo Nation
rather than the Director enters into cooperative agreements and
requiring that the program be in compliance with Navajo Nation laws
rather than the procedures, guidelines, and requirements of the Code.
The Nation proposes to revise the requirements for filing voids and
sealing tunnels at subsection 409(b) to provide that, pursuant to
Navajo Nation laws, the Director may request funds from the Secretary
of the Interior pursuant to section 409(c) of SMCRA to carry our
noncoal reclamation if it relates to the protection of the public
health or safety.
The Nation proposes to delete the emergency powers provisions of
section 410 and hold this section in reserve for future use.
The Nation proposes to add new section 411 to provide for
certification of completion of all coal reclamation, including
provisions that (1) allow the Director to certify to the Secretary that
all coal priorities stated in section 403(a) for eligible lands and
water under section 404 of SMCRA have been achieved; (2) provide that
upon concurrence of the Secretary with the certification, eligible
lands and water shall not be those described under section 404, but
shall be those that were mined or processed for minerals or which were
affected by such mining or processing and abandoned or left in an
inadequate reclamation status prior to August 3, 1977, and for which
there is no continuing reclamation responsibility under State, Tribal
or other Federal laws; (3) establish the priorities for expenditures of
monies from the fund shall be the same as priorities for coal
reclamation in section 403 wherein ``coal'' is replaced with
``mineral;'' (4) add the restriction that sites and areas designated
for remedial action pursuant to the Uranium Mill Tailings Radiation
Control Act of 1978 (UMTRCA) and the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (CERCLA) are not
eligible for expenditures of fund monies; (5) extend the objectives of
the fund and the priorities for expenditures to reclamation projects
involving the protection, repair, replacement, construction, or
enhancement of utilities, and such other facilities serving the public
and the construction of public facilities in communities adversely
affected or impacted by coal and mineral mining and processing
practices; (6) allow annual grants under section 402(g)(1) [of SMCRA]
to be used, where the Secretary concurred in the certification and the
Director determines there is a need, for activities or construction of
specific public facilities related to the coal or mineral industry and
the Secretary concurs in such need; and (7) extend the application of
the provisions of sections 407 and 408 to subsections (a) through (e)
of section 411, except references to coal shall not apply.
The Nation proposes to add new language to its interagency
cooperation provisions at section 414 to limit cooperation of all
departments, boards, commissions, and agencies of the Nation to those
situations where such cooperation does not conflict with existing
Navajo Nation and/or applicable Federal laws.
In addition, the Nation proposes the following revisions to its
Navajo Nation Rule provisions.
The Nation proposes to revise its rules pertaining to reclamation
priorities in section II, part D, by eliminating the reference to the
Federal regulations at 30 CFR 874.13(c)(2); delineating coal
reclamation priorities from noncoal priorities; removing research and
demonstration projects relating to the development of surface coal
mining reclamation and water quality control program methods and
techniques as a coal priority; providing that reclamation of noncoal
sites may occur to protect the public from extreme hazards endangering
life and property before coal priorities have been completed and prior
to certification of completion of coal reclamation; and deleting
restoration of the environment and public facilities construction as
priorities of the noncoal program.
The Nation also proposes to add new language to its rules at
section II, parts L, M, N, O, and P in order to implement specific
proposed changes to its Code pertaining to the qualifications of coal
and noncoal sites for reclamation, certification of the completion of
coal reclamation and establishment of a noncoal reclamation program,
eligible noncoal lands and water after certification has occurred,
exclusion of UMTRCA and CERCLA sites from funding under the AMLR
program to ensure proper use of reclamation funds, and establishment of
a public facilities program.
Finally, the Nation proposes to add new language to section III,
Part E of its rules to establish a future reclamation set-aside program
in order to continue the AMLR program after September 30, 1995.
IV. Public Comment Procedures
In accordance with the provisions of 30 CFR 884.14 and 884.15(a),
OSM is seeking comment on whether the proposed amendment satisfies the
applicable plan approval criteria of 30 CFR 884.14. If the amendment is
deemed adequate, it will become part of the Navajo Nation plan.
In addition, OSM is seeking, in accordance with section 411 of
SMCRA, public comments and information concerning any known or
suspected unreclaimed lands and water resources on Navajo Nation lands
that may have been adversely affected by coal mining practices (1)
prior to August 3, 1977, and for which there is no continuing
reclamation responsibility under State, Federal, Tribal, or other laws
or (2) during the period from August 4, 1977, until September 28, 1984,
which are the dates for the Navajo Nation interim coal program with
September 28, 1984, being the date the permanent Federal regulatory
program on Indian lands took effect, and for which available funds for
reclamation or abatement pursuant to a bond or other form of financial
guarantee or from any other source are not sufficient to provide for
adequate reclamation or abatement at the site.
Should the Secretary concur with the certification, the Navajo
Nation intends to request, in accordance with 30 CFR 886, AMLR funding
for other projects as provided for under sections 411(e) and (f) of
SMCRA.
If no past coal mining problems eligible for funding under section
404 of SMCRA are identified through this process, the Secretary intends
to concur with the Navajo Nation's certification. If, after the
Secretary's concurrence, a coal problem occurs or is identified, the
Nation would have to seek immediate funding for reclaiming coal-related
problems.
1. Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Albuquerque Field Office
will not necessarily be considered in the final rulemaking or included
in the administrative record.
2. Public Hearing
Persons wishing to testify at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t.,
June 2, 1994. The location and time of the hearing will be arranged
with those persons requesting the hearing. If no one requests an
opportunity to testify at the public hearing, the hearing will not be
held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to testify have been heard. Persons in the audience
who have not been scheduled to testify, and who wish to do so, will be
heard following those who have been scheduled. The hearing will end
after all persons scheduled to testify and persons present in the
audience who wish to testify have been heard.
3. Public Meeting
If only one person requests an opportunity to testify at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet the OSM representatives to discuss the proposed
amendment and the Navajo Nation's certification may request a meeting
by contacting the person listed under FOR FURTHER INFORMATION CONTACT.
All such meetings will be open to the public and, if possible, notices
of meetings will be posted at the locations listed under ADDRESSES. A
written summary of each meeting will be made a part of the
administrative record.
V. 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 Tribal AMLR plans and revisions
thereof since each such plan 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
parts 884 and 888.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
agency decisions on proposed Tribal 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 Tribal 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 Tribe. 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 756
Abandoned mine land reclamation program, Indian lands.
Dated: May 10, 1994.
Russell F. Price,
Acting Assistant Director, Western Support Center.
[FR Doc. 94-12004 Filed 5-17-94; 8:45 am]
BILLING CODE 4310-05-M
