[Federal Register Volume 61, Number 103 (Tuesday, May 28, 1996)]
[Rules and Regulations]
[Pages 26445-26454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13261]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 925
[SPATS No. MO-026-FOR]
Missouri Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with a reporting stipulation, a proposed
amendment to the Missouri regulatory program (hereinafter referred to
as the ``Missouri program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The proposed amendment consists of
revisions to the Revised Statutes of Missouri (RSMo) and the Code of
State Regulations (CSR) along with supporting documentation and
information pertaining to Missouri's alternative bonding system. The
amendment is intended to revise the Missouri program to be consistent
with the corresponding Federal regulations and SMCRA.
EFFECTIVE DATE: May 28, 1996.
FOR FURTHER INFORMATION CONTACT:
Brent Wahlquist, Regional Director, 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 Program
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 Program
On November 21, 1980, the Secretary of Interior conditionally
approved the Missouri program. General background information on the
Missouri program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Missouri program can
be found in the November 21, 1980, Federal Register (45 FR 77017).
Subsequent actions concerning Missouri's program and program amendments
can be found at 30 CFR 925.12, 925.15, and 925.16.
II. Submission of the Proposed Amendment
By letter dated March 7, 1995, Missouri submitted a proposed
amendment to its program pursuant to SMCRA (Administrative record No.
MO-617). Missouri submitted the proposed amendment in response to a
January 30, 1986, letter (Administrative record No. MO-351) that OSM
sent to Missouri in accordance with 30 CFR 732.17(c) and in response to
the required program amendments at 30 CFR 925.16(g). The provisions of
the Revised Statutes of Missouri (RSMo) and the Code of State
Regulations (CSR) that Missouri proposed to revise were: RSMO 444.805,
Definition of Phase I reclamation bond; RSMO 444.830, Bond
requirements, when a bond must be filed, the amount of a bond, and
allowance for bond substitution; RSMO 444.950, Phase I reclamation bond
requirements; RSMO 444.960, Establishment, purpose, and duties of the
Coal Mine Land Reclamation Fund (CMLR Fund); RSMO 444.965.1, Assessment
for fund; 10 CSR 40-7.011, Bond requirements; 10 CSR 40-7.021, Duration
and release of reclamation liability; 10 CSR 40-7.041, Form and
administration of the CMLR Fund. In addition, Missouri submitted: (1) A
[[Page 26446]]
narrative explaining the current and projected balances of the bond
pools (Fund A and Fund B) of the CMLR Fund; (2) a discussion of how
each outstanding required program amendment codified in the final rule
in the May 8, 1991, Federal Register (56 FR 21281) will be resolved
(Administrative Record No. MO-536); (3) an explanation of how the
deficiencies identified in OSM's issue letter dated March 9, 1994
(Administrative Record No. MO-592) will be resolved; (4) a table of
reclamation cost estimates for all permits except those that represent
a minimal liability to the bond pools; (5) a statement from the
Missouri Attorney General that explains the legal basis for using
Abandoned Mine Land Funds for the reclamation of Bill's Coal Forfeiture
Project; and (6) copies of the revised bond forms utilized by Missouri.
By letter dated March 28, 1995 (Administrative Record No. MO-623),
Missouri informed the OSM Kansas City Field Office of an inadvertent
omission in its program amendment request, and requested inclusion in
the proposed amendment of statutory revisions at RSMO 444.805 that
removes the definition for ``full cost bond'' and revises the
definition for ``Phase I reclamation bond.'' These changes correspond
to regulation changes at 10 CSR 40-7.011 and have been incorporated
into this amendment.
By letter dated February 21, 1996, (Administrative Record No. MO-
636), Missouri informed OSM it was removing the proposed revisions
concerning administrative rulemaking procedures at RSMO 444.950(2)-(8).
The main provisions of the amendment propose to:
Eliminate the option to post a ``full cost bond'' and
require mandatory participation in Missouri's alternative bonding
program.
Require that up to 20 percent of Phase I reclamation bond
be held until Phase III liability is released.
Establish minimum rate adjustable Phase I reclamation bond
amounts.
Establish the CMLR Fund as part of the alternative bonding
system (ABS), with 40 percent of the assessments placed in Fund A for
reclamation of permits revoked prior to September 1, 1988, and 60
percent of the assessments placed in Fund B for reclamation of permits
revoked after September 1, 1988.
Allow expenditure of CMLR funds for completion of Phase I
reclamation.
Allow expenditure of Phase I reclamation bond for any
phase of reclamation.
OSM published a notice in the March 27, 1995, Federal Register (58
FR 15728) announcing receipt of the amendment and inviting public
comment on the adequacy of the proposed amendment. The public comment
period ended April 26, 1995. The public hearing scheduled for April 21,
1995, was not held because no one requested an opportunity to testify.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
Revisions not specifically discussed below concern nonsubstantive
wording changes or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
A. Revisions to Missouri's Regulations That Are Substantively Identical
to the Corresponding Federal Regulations
Missouri proposes revisions to the following regulations that
contain language that is identical in meaning to the counterpart
Federal regulations (Federal regulation counterparts are indicated in
brackets): 10 CSR 40-7.11(1)(H), Definition of Surety bond [30 CFR
800.5(a)]; 10 CSR 40-7.011(2), Requirement to file a bond [30 CFR
800.11]. The Director, therefore, finds these proposed revisions to
Missouri's regulations are no less effective than the federal
regulations.
B. Required Program Amendments
Missouri submitted proposed revisions in response to required
program amendments that the Director placed on the Missouri program at
30 CFR 925.16(g) on May 8, 1991 (56 FR 21281).
1. Required Program Amendments Satisfied by Statute or Regulation
Changes in the Proposed Amendment
The Director finds that the proposed revisions to the following
State statutes and regulations satisfy the indicated required program
amendments and are not inconsistent with the requirements of section
509(c) of SMCRA and 30 CFR 800.11(e) of the Federal regulations.
Missouri's proposed revisions and accompanying fiscal demonstration
indicate these revisions will resolve the issues associated with
currently approved alternative bonding provisions. Therefore, the
Director is approving them. For clarity, the required program
amendments are listed below, verbatim, along with Missouri's proposed
revisions.
a. 30 CFR 925.16(g)(1). At RSMo 444.830.1; 444.965.1; 10 CSR 40-
7.011(2)(B); and 10 CSR 40-7.041(1)(A); demonstrate that the resulting
financial aspect of the proposed optional participation by an applicant
of either a full-cost bond or Phase I bond will ensure that the ABS can
meet the requirements of 30 CFR 800.11(e) or remove this provision.
To satisfy 30 CFR 925.16(g)(1), Missouri proposes (1) at RSMo
444.830.1 to delete the option that allows an applicant to file a full-
cost bond and pay a one time assessment to the CMLR Fund (the one time
assessment only being required until September 1, 1993), thereby making
participation in the ABS mandatory; (2) at RSMo 444.950.1 to remove the
reference to a full-cost bond and to require all applicants to file a
Phase I reclamation bond; (3) at RSMo 444.965.1 to delete language
related to the option to file a full-cost bond; (4) at 10 CSR 40-
7.011(2) (B) and (C) to delete provisions concerning filing of a full-
cost bond; and (5) at 10 CSR 40-7.041(1) to delete provisions
concerning assessment lump sum payments by permittees who file full
cost bonds.
These proposed revisions satisfy the concerns raised by 30 CFR
925.16(g)(1), and the Director is removing this paragraph.
b. 30 CFR 925.16(g)(2). At RSMo 444.950.1 and 10 CSR 40-7.011(4)
(A), (B), (C), and (D) to ensure that the Phase I reclamation bond
amounts will cover the cost of reclamation and maintain the flexibility
of conventional bonds in all situations and that the open pit minimum
bond will be sufficient to assure the completion of the required
reclamation in all cases.
At the time this required amendment was imposed, Missouri's program
would not allow expenditure of bond pool moneys on Phase I reclamation.
Missouri proposes in this amendment to (1) at RSMo 444.950.1 and 10 CSR
40-7.011(5) establish adjustable Phase I reclamation bond rates; (2) at
RSMo 444.950.4 and 10 CSR 40-7.021(2)(D)1 allow retention of up to 20
percent of Phase I bond until completion of Phase III reclamation; and
(3) at RSMo 444.960.5 and 10 CSR 40-7.041(4)(A)1 allow expenditure of
CMLR funds for completion of Phase I reclamation.
The proposed revisions add flexibility to Missouri's alternative
bonding system to ensure coverage of the cost of reclamation, and the
Director is removing the required amendment at 30 CFR 925.16(g)(2).
c. 30 CFR 925.16(g)(4). AT RSMo 444.950.3 and 444.830.3 to require
the Secretary of the Interior's approval
[[Page 26447]]
before adopting an alternative bonding system or delete the provision.
In response to the required program amendment at 30 CFR
925.16(g)(4), Missouri proposes to modify its requirements at RSMO
444.830.3 and 444.950.3 regarding the ability of the commission to
approve an alternative bonding system by adding the language, ``* * *
and which is consistent with or pursuant to the purposes of Public Law
95-87, the Surface Mining Control and Reclamation Act.''
Section 509(c) of SMCRA specifically requires that the Secretary of
the Interior must approve an alternative bonding system prior to a
State being able to adopt the system. In a letter to Missouri dated
March 9, 1994 (Administrative Record No. MO-592), OSM stated its
interpretation of Missouri's intent in making this change to its
statute was to indicate Missouri's agreement that the Secretary of the
Interior's approval is required and Missouri would first obtain the
Secretary's approval prior to implementing any alternative bonding
system. Missouri's response letter dated April 4, 1994 (Administrative
Record No. MO-594), confirmed that OSM's interpretation was correct and
Missouri agrees that the Secretary of the Interior's approval is
required prior to implementing any alternative bonding system.
therefore, the Director is removing the required program amendment at
30 CFR 925.16(g)(4).
d. 30 CFR 925.16(g)(5). At RSMo 444.960.1 to clarify how the CMLR
Fund may be expended.
At RSMo 444.960.1, Missouri's currently approved statute states
that moneys within the CMLR Fund will be used by the Land Reclamation
Commission (LRC) to complete the reclamation plan for any permitted
lands after the proceeds from any applicable performance bond for such
reclamation have been exhausted. This would conceivably allow use of
moneys in the CMLR Fund to complete Phases I, II, and III reclamation
requirements. However, the existing statute at RSMO 444.960.5, while
allowing moneys within the 40 percent fund (Fund A) to be used for any
aspect of reclamation, stipulates that moneys within the 60 percent
fund (Fund B) may be used for Phases II and III reclamation only.
To satisfy 30 CFR 925.16(g)(5), Missouri proposes at RSMO 444.960.5
to allow moneys from both Fund A and Fund B to be used for all phases
of reclamation. The proposed revision clarifies how the CMLR Fund may
be expended, and the Director is removing the required amendment at 30
CFR 925.16(g)(5).
e. 30 CFR 925.16(g)(6). At RSMo 444.960.5 and 10 CSR 40-
7.041(4)(A)1, to ensure that the 40 percent fund portion (Fund A) will
provide sufficient funding to fully reclaim those sites forfeited prior
to September 1, 1988, and demonstrate that the 60 percent fund portion
(Fund B) generation of monies will be adequate to reclaim all defaulted
lands as required by 30 CFR 800.11(e).
To satisfy 30 CFR 925.16(g)(6), Missouri proposes at RSMo
444.960.5, 10 CSR 40-7.041(1)(A), and 10 CSR 40-7.041(4)(A)1 to require
that moneys paid into the CMLR Fund be allocated so that 40 percent of
the assessments would be used for reclaiming permits revoked by the LRC
prior to September 1, 1988 (Fund A), and 60 percent of the assessments
would apply to reclamation of permits revoked by the LRC after
September 1, 1988 (Fund B). Moneys that existed in the CMLR Fund as of
September 1, 1988, would be allocated to Fund A, as would 40 percent of
all moneys assessed for the CMLR Fund after September 1, 1988, until
such time that the accumulation of money in Fund A would be sufficient
to complete reclamation of those permits revoked by the commission
prior to September 1, 1988, after which time all moneys assessed for
the CMLR Fund would be allocated to Fund B. In addition, moneys from
both Fund A and Fund B would be used on any aspect of reclamation.
Missouri also proposes language changes at 10 CSR 40-7.041(1) (B), (C),
and (E) to maintain consistency with the proposed changes at 10 CSR 40-
7.041(1)(A) and 10 CSR 40-7.041(4)(A)1.
These proposed changes will allow Fund A to accrue additional
moneys to assure sufficient funding is available to fully reclaim those
sites forfeited prior to September 1, 1988. The portion of 30 CFR
925.16(g)(6) that requires a demonstration that Fund B generation of
moneys will be adequate to reclaim all defaulted lands as required by
30 CFR 800.11(e) is incorporated into and discussed in Finding B.2
since it is redundant with 30 CFR 925.16(g)(3), which also requires a
demonstration that Missouri's ABS will meet the requirements of SMCRA.
Therefore, since Missouri's proposed changes satisfy the Fund A portion
of the required amendment and the Fund B portion is a redundant
requirement, the Director is removing 30 CFR 925.16(g)(6) in its
entirety.
f. 30 CFR 925.16(g)(8). At RSMo 444.965.3 and 10 CSR 40-7.041(1)(B)
3, 4, 5, and 6; demonstrate that the buy out option would still allow
the ABS to meet the requirements of 30 CFR 800.11(e)(1) or remove this
option.
In response to 30 CFR 925.16(g)(8), Missouri proposes to delete
RSMO 444.965.3 and 10 CSR 40-7.041(1)(B)3, 4, 5, and 6, all of which
either provide for or relate to a buy out option. The removal of the
buy out option provisions from the Missouri program satisfies OSM's
concerns, and the Director is removing the required amendment at 30 CFR
925.16(g)(8).
g. 30 CFR 925.16(g)(20). At 10 CSR 40-7.021(2)(D)(1. to clarify
that its Phase I bond release for an ABS is consistently defined and
used throughout its program and to provide a legal opinion of its Phase
I reclamation bond release and bond coverage liability.
Missouri proposes to revise 10 CSR 40-7.021(2)(D)1 to reduce Phase
I bond by 80 percent when Phase I liability is released and to clarify
the remaining bond is permit specific. For consistency throughout its
program, Missouri also proposes (1) at 10 CSR 40-7.011(1)(D) to modify
the definition of Phase I bond to include release of 80 percent of the
bond upon successful completion of Phase I reclamation of a permit
area; (2) at RSMo 444.805(15), recodified from 444.805(16), to modify
the definition of Phase I reclamation bond to include release of no
less than 80 percent of the bond upon successful completion of Phase I
reclamation of a permit area; and (3) at RSMo 444.950.4 to allow for
release of no less than 80 percent of Phase I reclamation bond upon
completion of Phase I reclamation.
These proposed changes assure that Missouri's Phase I bond release
for its ABS is consistently defined and used throughout its program.
The Federal regulations at 30 CFR 800.40(c)(1), in reference to a
conventional bonding system, allow for release of 60 percent of the
bond when Phase I reclamation requirements are satisfied. Since
Missouri proposes mandatory participation in its alternative bonding
system, which will allow moneys to be used in any phase of reclamation,
release of 80 percent of the Phase I reclamation bond upon completion
of Phase I reclamation would be no less effective than the Federal
requirement to release 60 percent of a full cost bond upon completion
of Phase I reclamation.
Replacement of the word ``mine'' with the word ``permit'' and
addition of the word ``remaining'' at 10 CSR 40-7.021(2)(D)1 clarifies
that Phase I reclamation bond release is permit specific. Therefore, a
legal opinion of Missouri's Phase I reclamation bond release and bond
coverage liability is no longer necessary.
Based upon the above discussions, the Director is removing the
required
[[Page 26448]]
program amendment at 30 CFR 925.16(g)(20).
2. Required Program Amendments Satisfied by Missouri's Fiscal
Demonstration
Missouri's fiscal demonstration satisfies the required program
amendments at 30 CFR 925.16(g)(3), the Bond B portion of 30 CFR
925.16(g)(6), and 30 CFR 925.16(g)(7), which are set forth in the May
8, 1991, Federal Register (56 FR 21281). For clarity, the required
program amendments are listed below.
30 CFR 925.16(g)(3). * * *, demonstrate that the combination of
bond liability between the operator's Phase I bond and the CMLR Fund
bond will meet the requirements of SMCRA.
30 CFR 925.16(g)(6). * * *, demonstrate that the 60 percent fund
portion (Fund B) generation of moneys will be adequate to reclaim all
defaulted lands as required by 30 CFR 800.11(e).
30 CFR 925.16(g)(7). * * *, to assure that the fee assessment
structure of the CMLR Fund will ensure that the Fund will operate in a
financially solvent manner as required by 30 CFR 800.11(e).
In response to these three required program amendments, Missouri
submitted the report entitled ``Evaluation of Missouri's Alternative
Bonding System.'' Information in this demonstration shows that as of
February 1, 1996, Missouri's projected CMLR Fund assets exceed
liabilities in both Fund A and Fund B. In addition, projection tables
in the report indicate continued assessment fee payments to the Fund
will enable the State to reclaim all forfeiture sites and meet
contractual commitments in a timely manner without the Fund incurring a
deficit through September 1998.
Section 509(c) of SMCRA and 30 CFR 800.11(e) both require that
under an alternative bonding system, the regulatory authority must have
available sufficient money to complete the reclamation plan for any
site that may be in default at any time. An alternative bonding system
cannot be allowed to incur a deficit if it is to have available
adequate revenues to complete the reclamation of all outstanding bond
forfeiture sites. Since Missouri's demonstration shows that the CMLR
Fund has sufficient funds to fund the reclamation of forfeiture sites
that may be in default at any time, the Director finds that Missouri's
alternative bonding system meets the requirements of 30 CFR 800.11(e),
and it is achieving the objectives and purposes of the conventional
bonding program set forth in section 509 of SMCRA. However, due to the
possibility of future unanticipated bond forfeitures or increased
reclamation costs on pending or existing forfeiture sites that could
have significant impacts on solvency of Missouri's CMLR Fund, OSM must
have a means of monitoring continued solvency of the Fund. Therefore,
the Director is removing the required program amendments at 30 CFR
925.16 (g)(3), (g)(6), and (g)(7), with the stipulation that Missouri
submit semi-annual reports to demonstrate continued solvency of the
CMLR Fund, beginning with the first report due October 1, 1996, until
such time that OSM informs Missouri of a less frequent reporting
period.
C. Revisions to Missouri's Statutes That Are Not Substantively
Identical to the Corresponding Provisions of the Federal Statutes
1. RSMo 444.805--Definitions
Missouri proposes to recodify this section, delete the definition
of ``full-cost bond,'' and revise the definition of ``Phase I
reclamation bond.''
a. Full-Cost Bond. Missouri proposes to delete the term ``full-cost
bond'' previously defined at subsection (8), as this term is no longer
used in the revised statutes. Operators will no longer have the option
of posting a ``full-cost bond,'' but will be required to post a ``Phase
I reclamation bond'' at a minimum rate of $2,500 an acre and pay
assessments to the CMLR fund. The requirement for mandatory
participation in Missouri's alternative bonding program will make the
term ``full-cost bond'' obsolete. The Director finds that Missouri's
deletion of the definition of ``full-cost bond'' does not render RSMo
444.805 less stringent than the requirements of SMCRA for performance
bonds at section 509(a). The Director is, therefore, approving
Missouri's proposal to delete the definition of ``full-cost bond'' at
RSMo 444.805(8).
b. Phase I Reclamation Bond. At recodified subsection (15),
previously codified subsection (16), Missouri redefines the term
``Phase I reclamation bond'' to mean ``a bond for performance filed by
a permittee pursuant to section 444.450 that may have no less than
eighty percent released upon the successful completion of Phase I
reclamation of a permit area in accordance with the approved
reclamation plan, with the rest of the bond remaining in effect until
Phase III liability is released.'' The previous definition for ``Phase
I reclamation bond'' allowed Missouri to release all Phase I
reclamation bond upon the successful completion of Phase I reclamation.
By requiring the retention of 20 percent of the Phase I bond until
after Phase III liability is released, the revised definition provides
incentive for operators to successfully complete Phase II and Phase III
reclamation as required by 30 CFR 800.11(e)(2). There is no Federal
counterpart to Missouri's proposed definition. However, since the
Federal regulations at 30 CFR 800.13(a)(2) authorize regulatory
authorities to accept phased bonding and the Federal regulations at 30
CFR 800.40(c) allow regulatory authorities to release bond if they are
satisfied that all the reclamation or a phase of the reclamation
covered by the bond has been accomplished, the Director finds this
definition is not inconsistent with Federal program requirements.
Therefore, the Director is approving Missouri's proposed revision to
its definition of ``Phase I reclamation bond'' at RSMo 444.805(15).
2. RSMo 444.830--Filing Phase I Reclamation Bond
Missouri proposes to remove a provision from RSMo 444.830.1 and
insert the provision at RSMo 444.850.1. This provision concerns the
factors to be considered when determining the required Phase I bond
amount. Since the provision is to be inserted in RSMo 444.950.1, the
Director finds this change does not render the previously approved
provisions at RSMo 444.830.1 and 444.950.1 less stringent than the
requirements for performance bonds at section 509(a) of SMCRA and is
approving the provision move.
3. RSMo 444.950--Phase I Reclamation Bond Requirements
a. Adjustable Phase I Bond. (1) Minimum Adjustable Rate Phase I
Reclamation Bond. At RSMO 444.950.1, Missouri proposes to establish a
minimum Phase I reclamation bond rate of $2,500 per acre for all
permitted acreage, except for coal preparation areas for which the
minimum bond rate would be $10,000 per permitted acre. OSM previously
approved the $2,500 per acre Phase I bond amount in the February 26,
1988, Federal Register (53 FR 5766) and the $10,000 per acre bond
requirement for coal preparation areas in the October 31, 1988, Federal
Register (53 FR 43866) for unbonded acreage under new permits, after
April 30, 1986, or permits undisturbed as of that date. Both approvals
were considered to be adequate partial responses to OSM's January 30,
1986, 30 CFR part 732 notification to Missouri.
Missouri's proposal includes provisions that would allow annual
adjustments of up to $250 for the $2,500
[[Page 26449]]
minimum rate and $500 for the $10,000 minimum rate, with maximum bond
rates of $5,000 and $15,000, respectively, Bond amount adjustments
would have to be approved through rulemaking.
Establishment of adjustable Phase I bond rates is an improvement
over the previously approved fixed rats. Adjustable rates will provide
the necessary flexibility to accommodate changes in the cost of future
reclamation, a component essential to ensure the CMLR Fund's solvency
and hence its ability to meet the criteria of 300 CFR 800.11(e).
Therefore, the Director finds these revised provisions at RSMo
444.950.1 are not inconsistent with the requirements of section 509(a)
of SMCRA, and he is approving them.
(2) Factors Used to Determine Phase I Reclamation Bond Amounts.
Missouri proposes to insert a provision at RSMo 444.950.1, that was
removed from RSMO 444.830.1, with no substantive changes in language.
This provision concerns the factors to be considered when determining
the required Phase I reclamation bond amount. These factors will be
used to assess all mine sites annually to determine if an adjustment in
the Phase I reclamation bond amount is necessary. The Director finds
that the addition of this previously approved provision does not render
the provisions at RSMo 444.950.1 less stringent that the Federal
requirements for performance bonds at section 509(a) of SMCRA.
Therefore, the Director is approving Missouri's proposed change.
(3) Minimum Amount of Phase I Reclamation Bond. Missouri proposes
to remove the language ``permitted surface coal mining operation'' and
add the word ``permit'' in that portion of the provision which
currently requires a minimum of $10,000 of Phase I reclamation bond be
posted by an operator. The $10,000 minimum will now apply to each
permit instead of a surface coal mining operation, which might include
multiple permits. Missouri also proposes to delete the language ``at
two thousand five hundred dollars per acre'' in that portion of the
provision which requires a minimum bond equivalent to 20 acres of Phase
I reclamation bond be posted for each acre of open pit. This change is
necessary to be consistent with Missouri's proposal to establish
adjustable Phase I reclamation bond amounts. These changes are not
inconsistent with section 509 of SMCRA, and represent an improvement to
Missouri's alternative bonding system. Therefore, the Director is
approving these revisions to RSMo 444.950.1.
b. Acceptance of Phase I Reclamation Bond. At RSMO 444.950.3,
Missouri proposes to add the language ``Phase I reclamation.'' This
change is necessary to maintain consistency with Missouri's proposal to
delete the term ``full-cost bond'' and revise the term ``Phase I
reclamation bond'' at section 444.805. This proposed change is
nonsubstantive and does not render section 444.950.3 less stringent
than section 509(c) of SMCRA. Therefore, the Director is approving the
proposed change.
c. Release of Phase I Reclamation Bond. At RSMO 444.950.4, Missouri
proposes to add language which would allow retention of up to 20
percent of Phase I reclamation bond after completion of Phase I
reclamation with the retained bond remaining in effect until completion
of Phase III reclamation. This is an improvement over the existing
provision which requires all Phase I bond to be released on completion
of Phase III reclamation. This is an improvement over the existing
provision which requires all Phase I bond to be released on completion
of Phase I reclamation, and it would provide the economic incentive
required by 30 CFR 800.11(e)(2) for permittees to comply with all
reclamation provisions.
Missouri further proposes to allow Phase I reclamation bond be
available for all phases of reclamation in the event of forfeiture.
This is an improvement in the event of forfeiture. This is an
improvement over the existing provision which allows the expenditure of
Phase I reclamation bond only for Phase I reclamation in the event of
forfeiture. Section 509(a) of SMCRA requires that the amount of the
bond be sufficient to assure the completion of the reclamation plan in
the event of forfeiture.
Based on the above discussions, the Director finds the proposed
changes at RSMO 444.950.4 are not inconsistent with sections 509 and
519 of SMCRA, and represent an improvement in the Missouri alternative
bonding program. Therefore, the Director is approving Missouri's
proposed changes.
4. RSMo 444.960-Coal Mine Land Reclamation Fund
Section 509(c) of SMCRA provides that ``in lieu of establishment of
a bonding program, as set forth in this section, the Secretary may
approve * * * an alternative system that will achieve the objectives
and purposes of the bonding program pursuant to this section.'' As
stated in section 509(a) of SMCRA, one of the key objectives and
purposes of the bonding program is ``to assure the completion of the
reclamation plan if the work had to be performed by the regulatory
authority in the event of forfeiture * * *.'' In furtherance of this
objective, 30 CFR 800.11(e)(1) provides, in pertinent part, that OSM
may approve an alternative bonding system if the alternative assures
that ``the regulatory authority will have available sufficient money to
complete the reclamation plan for any areas which may be in default at
any time. Reclamation liability under a bond pool must be continuous.
The liability and obligation of an ABS does not disappear if the bond
pool finds itself unable to meet its obligations as they mature, its
existing capital structure is impaired, or its ability to perform any
of its obligations is impaired.
To meet the requirements of 30 CFR 800.11(e), an alternative
bonding system must assure that the regulatory authority will have
available sufficient money to complete the reclamation plan for any
areas which may be in default at any time, and must provide a
substantial economic incentive for the permittee to comply with all
reclamation provisions.
In this proposed program amendment submittal, Missouri proposes
several changes to its statutes to strengthen its ABS and meet
requirements of section 509 of SMCRA and 30 CFR 800.11(e).
a. Fund A. At RSMO 444.960, Missouri established Fund A in response
to the Director's January 30, 1986, letter that required the State to
outline plans to reclaim its backlog of forfeited sites. The proposed
fee structure of Fund A allocates moneys that existed in the CMLR Fund
as of September 1, 1988, to Fund A and allocates 40 percent of all
moneys assessed for the CMLR Fund after September 1, 1988, to Fund A
until such time that the accumulation of money in Fund A would be
sufficient to complete reclamation of those permits revoked by the
commission prior to September 1, 1988.
In addition, at the time this proposed amendment was submitted,
Missouri submitted a letter from its Attorney General that explains the
legal basis for using Abandoned Mine Land Funds for the reclamation of
Bill's Coal Forfeiture Project. When the proposed amendment was
submitted, Missouri's statutes were silent on expenditure of Abandoned
Mine Land Funds (AML Funds) on forfeiture sites where the surety became
insolvent. Since then, OSM approved a proposed amendment in which
Missouri made changes to its statutes to specifically allow use of AML
Funds on sites where insolvency of the surety occurred (60 FR 43972,
August 24, 1995). Approval of this amendment assures Missouri's statute
includes
[[Page 26450]]
language which allows use of AML Funds on the Bill's Coal Forfeiture
Project. Use of AML Funds at this site would lessen the financial
burden on Fund A, thereby reducing the time period for which
assessments to Fund A must continue.
Separation of Fund A from Fund B in the CMLR Fund system as
proposed by Missouri will allow the funds necessary to reclaim the
backlog of sites forfeited prior to September 1, 1988, and is not
inconsistent with section 509(c) of SMCRA. Therefore, the Director
finds that Missouri's proposed establishment of Fund A under section
RSMo 444.960.1 is no less stringent than section 509(c) of SMCRA and is
no less effective than 30 CFR 800.11(e). Accordingly, the Director is
approving Missouri's proposed establishment of Fund A in the ABS.
b. Fund B. Missouri's proposed Fund B will be used to fund
reclamation of sites where forfeiture occurred after September 1, 1988.
The proposed fee structure requires that 60 percent of the moneys
assessed for the CMLR Fund be allocated to Fund B until enough moneys
accrue in Fund A to complete reclamation of sites where forfeiture
occurred prior to September 1, 1988, after which Fund B will receive
100 percent of the CMLR Fund assessments.
Missouri proposes other changes which will specifically strengthen
Fund B. At RSMo 444.830.1, Missouri proposes to remove the option of
operators to file a full cost bond. This would require all permittees
to participate in the ABS program, thereby providing potential for
increased assessments to the CMLR Fund. At RSMo 444.950.4, Missouri
proposes to allow retention of up to 20 percent of Phase I reclamation
bond after completion of Phase I reclamation with the retained bond
remaining in effect until completion of Phase III reclamation. Also at
RMSo 444.950.4, Missouri proposes to allow the expenditure of Phase I
reclamation bond for all phases of reclamation in the event of
forfeiture. The existing provisions at RMSo 444.950.4 allow release of
all Phase I bond on completion of Phase I reclamation and the
expenditure of Phase I reclamation bond only for Phase I reclamation in
the event of forfeiture. These changes would potentially lessen the
burden on Fund B when forfeitures occur. As previously discussed in
this final rule, all of these proposed changes are being approved by
the Director.
The Director finds that Missouri's proposed concept of Fund B is
not inconsistent with section 509(c) of SMCRA or 30 CFR 800.11(e).
Therefore, the Director is approving Missouri's proposed establishment
of Fund B under section RMSo 444.960.
5. RMSo 444.965--Payments to the CMLR Fund
a. Redesignations. In Missouri's proposed amendment, RMSo 444.965.4
is redesignated 444.965.3, section 444.965.5 is redesignated section
444.965.4, and section 444.965.6 is redesignated section 444.965.5.
These changes do not render the previously approved provisions of RMSo
444.965 less stringent than the requirements of section 509 of SMCRA.
Therefore, the Director is approving the redesignations.
b. CMLR Fund Adjustment. Proposed language at newly codified RMSO
444.965.4, recodified from section 444.965.5, would require that after
the date when enough moneys have accumulated in the 40 percent pool
(Fund A) to complete reclamation on sites revoked prior to September 1,
1988, whenever the fund balance falls below $7 million, tonnage
assessments would resume at the rate of 25 cents per ton for the first
50,000 tons and 15 cents per ton for the second 50,000 tons of coal
sold, shipped, or otherwise disposed of in a calendar year by a
permittee, and the assessments would remain in effect until the fund
balance once again achieved at least $7 million dollars at the close of
the State's fiscal year.
Missouri's proposed tonnage rate assessments at section 444.965.4
would allow reductions in the assessment rates provided at section
444.965.2. Such fee assessments reductions would probably not
jeopardize solvency of the CMLR Fund because at the time of such
reductions, enough moneys would already have accumulated to reclaim the
backlog of forfeited sites where revocation occurred prior to September
1, 1988. The Director finds the changes proposed by Missouri are not
inconsistent with the requirements of section 509(c) of SMCRA.
Therefore, the Director is approving Missouri's proposed changes at
section 444.965.4.
c. CMLR Fund Balance Below $2 Million. At newly codified RMSo
444.965.5, recodified from section 444.965.6, Missouri proposes that:
``After September 1, 1998, whenever the fund balance falls below $2
million, the assessment rate established in subsection 2 of the section
[RMSo 444.965.2] shall increase to a per ton rate of 30 cents per ton
for the first 50,000 tons and 20 cents per ton for the second 50,000
tons of coal sold, shipped, or otherwise disposed of in a calendar year
by a permittee. The increased tonnage assessment shall remain in effect
until the fund balance is at least $3 million at the close of the
State's fiscal year, at which time the assessment rate will revert to
the rate established pursuant to subsection 4 of this section [RSM
444.965.4].'' The proposed increase in assessment rates after September
1, 1998, whenever the fund balance falls below $2 million will increase
Missouri's ability to adjust the fee schedule for the CMLR Fund when
necessary. The Director finds the changes proposed by Missouri are not
inconsistent with the requirements of section 509(c) of SMCRA.
Therefore, the Director is approving the changes proposed by Missouri
at section 444.965.5.
D. Revisions to Missouri's Regulations That Are Not Substantively
Identical to the Corresponding Provisions of the Federal Regulations
1. 10 CSR 40-7.011--Bond Requirements
a. 10 CSR 40-7.011(1), Definitions. (1) Redesignations. In
Missouri's proposed amendment, 10 CSR 40-7.011(1)(B) is redesignated 10
CSR 40-7.011(1)(A), 10 CSR 40-7.011(1)(C) is redesignated 10 CSR 40-
7.011(1)(B), 10 CSR 40-7.011(1)(D) is redesignated 10 CSR 40-
7.011(1)(C), 10 CSR 40-7.011(1)(E) is redesignated 10 CSR 40-
7.011(1)(D), 10 CSR 40-7.011(1)(F) is redesignated 10 CSR 40-
7.011(1)(G), and 10 CSR 40-7.011(1)(G) is redesignated 10 CSR 40-
7.011(1)(H). These changes do not render the previously approved
provisions at 10 CSR 40-7.011(1) less effective than the Federal
regulations. Therefore, the Director is approving the redesignations.
(2) Definition of ``Full Cost Bond.'' At 10 CSR 40-7.011(1)(A),
Missouri proposes to delete the definition of ``full-cost bond.''
Deletion of this definition is discussed in Finding C.1.a. of this
document. In that finding, the Director is approving Missouri's
proposal to delete the definition of ``full-cost'' bond from its
statutes. Therefore, the Director is also approving Missouri's proposal
to delete the definition of ``full-cost bond'' from its regulations at
10 CSR 40-7.011(1)(A).
(3) Definition of ``Phase I Bond.'' At 10 CSR 40-7.011(1)(D),
previously designated 10 CSR 40-7.011(1)(E), Missouri proposes to
redefine the term ``Phase I reclamation bond.'' Redefinition of this
term is discussed in Finding C.1.b. of this document. In that finding,
the Director is approving Missouri's proposal to redefine the term in
its statutes. Since the definition in Missouri's regulation is
substantively the same as the definition in its statute,
[[Page 26451]]
the Director is also approving Missouri's proposal to redefine the term
``Phase I bond'' in its regulation at 10 CSR 40-7.011(1)(D).
(4) Definition of ``Phase II Bond.'' At 10 CSR 40-7.011(1)(E),
Missouri proposes to add a definition for ``Phase II bond.'' It is
defined as ``performance bond conditioned on the release of Phase II
liability.'' There is no direct Federal counterpart to Missouri's
proposed definition. However, since the Federal regulations at 30 CFR
800.13(a)(2) authorize regulatory authorities to accept phased bonding
and the Federal regulations at 30 CFR 800.40(c) allow regulatory
authorities to release bond if they are satisfied that all the
reclamation or a phase of the reclamation covered by the bond has been
accomplished, the Director finds Missouri's proposed definition of
``Phase II bond'' is not inconsistent with the Federal regulation
requirements. therefore, the Director is approving Missouri's proposal
to add a definition for ``Phase II bond'' at 10 CSR 40-7.011(1)(E).
(5) Definition of ``Phase III Bond.'' At 10 CSR 40-7.011(1)(F),
Missouri proposes to add a definition for ``Phase III bond.'' It is
defined as ``performance bond conditioned on the release of Phase III
liability.'' There is no direct Federal counterpart to Missouri's
proposed definition. However, since the Federal regulations at 30 CFR
800.13(a)(2) authorize regulatory authorities to accept phased bonding
and the Federal regulations at 30 CFR 800.40(c) allow regulatory
authorities to release bond if they are satisfied that all the
reclamation or a phase of the reclamation covered by the bond has been
accomplished, the Director finds Missouri's proposed definition of
``Phase III bond'' is not inconsistent with the Federal regulation
requirements. Therefore, the Director is approving Missouri's proposal
to add a definition for ``Phase III bond'' at 10 CSR 40-7.011(1)(F).
b. 10 CSR 40-7.011(3), Incremental Bonding. (1) Filing Incremental
Bond. At 10 CSR 40-7.011(3)(A), Missouri proposes to add the provision,
``Disturbance is prohibited on succeeding increments, underground
shafts, tunnels, or operations prior to acceptance of bond.'' This
provision is substantially the same as that found at 10 CSR 40-
7.011(c). Therefore, the Director finds that addition of this provision
does not render 10 CSR 40-7.011(3)(A) less effective than the Federal
regulations, and he is approving the addition as proposed by Missouri.
(2) Identification of Increments for Bonding. At 10 CSR 40-
7.011(3)(D), Missouri proposes to add the language, ``* * * submit an
incremental bonding schedule and * * *.'' Although the counterpart
Federal regulation at 30 CFR 800.11(b)(3) does not require submission
of an incremental bonding schedule, the Federal regulation at 30 CFR
800.11(d)(3) does require the applicant to submit an incremental bond
schedule if he elects to bond in increments. Therefore, the Director
finds that addition of this requirement to 10 CSR 40-7.011(3)(D) does
not render it less effective than 30 CFR 800.11(b)(3), and is approving
the addition of language as proposed by Missouri.
(c) 10 CSR 40-7.011(4), Bond Amounts. (1) Minimum per Acre Phase I
Bond Amounts. At 10 CSR 40-7.011(4)(A), Missouri proposes to make
language changes and deletions to retain consistency with proposed
changes at RSMo 444.950.1 concerning minimum Phase I reclamation bond
amounts. Missouri, also, proposes to add the provision now found at 10
CSR 40-7.011(4)(C) which establishes the minimum amount of Phase I
reclamation bond required for each acre of coal preparation area. The
proposed revisions to Missouri's statute requirements for minimum Phase
I reclamation bond amounts are discussed in Finding C.3.a.(1) in this
document. In that finding, the Director approved Missouri's proposed
changes to its statute at RSMo 444.950.1. Therefore, the Director is
also approving Missouri's proposed language changes, additions, and
deletions as proposed at 40 CSR 40-7.011(4)(A), since they are
consistent with the approved statute revisions at RSMo 444.950.1.
(2) Minimum Phase I Bond for a Permit. At existing 10 CSR 40-
7.011(4)(D), redesignated as 10 CSR 40-7.011(4)(B), Missouri proposes
to change language so that the minimum amount of Phase I bond required
for mines with fewer than 1,000 acres shall be $10,000, or the
equivalent of 20 acres of bond for each acre of open pit area, for a
single permit instead of mine, and remove the definition of a ``single
mine.'' The Federal regulations at 30 CFR 800.14(b) set a minimum bond
requirement of $10,000 for the entire area under one permit. Missouri's
proposed changes at 10 CSR 40-7.011(4)(B) would also establish a
minimum bond rate of $10,000 for the area under one permit. Therefore,
the Director finds Missouri's proposed changes are no less effective
than the Federal regulations at 30 CFR 800.14(b), and he is approving
Missouri's proposed changes at redesignated 10 CSR 40-7.011(4)(B).
(3) Deleted Regulations. Missouri proposes to delete existing 10
CSR 40-7.011(4) (B), (C), (E), (F), (G), (H), and (I).
(a) At existing 10 CSR 40-7.011(4)(B), the provision allows for a
lesser amount of bond per acre than the $2,500 minimum bond per acre
set by 10 CSR 40-7.011(4)(A). Deletion of existing 10 CSR 40-
7.011(4)(B) will allow bond on any permitted acreage to be no less than
the $2,500 bond per acre required by 10 CSR 40-7.011(4)(A). The
Director finds deletion of existing 10 CSR 40-7.011(4)(B) will not
render 10 CSR 40-7.011(4) less effective than the Federal requirements
at 30 CFR 800.14(b).
(b) The provision at 10 CSR 40-7.011(4)(C) is being added to 10 CSR
40-7.011(4)(A). The Director finds deletion of 10 CSR 40-7.011(4)(C)
and insertion of the provision at 10 CSR 40-7.011(4)(A) will not render
10 CSR 40-7.011(4) less effective than the Federal requirements at 30
CFR 800.14(b).
(c) The provisions at 10 CSR 40-7.011(4) (E), (F), (G), (H), and
(I) all pertain to full-cost bonding. Deletion of the option to file a
full-cost bond in the Missouri statutes is discussed in Finding B.1.a.
In that finding, the Director approved Missouri's proposal at RSMo
444.830.1 to delete the option to file a full-cost bond. Therefore, the
Director is approving Missouri's proposal to delete existing
regulations pertaining to full-cost bond at 10 CSR 40-7.011(4) (B),
(C), (E), (F), (G), (H), and (I).
d. 10 CSR 40-7.011(5), Adjustment of Bond Amounts. Missouri
proposes to add new section 10 CSR 40-7.011(5), which includes
provisions at subsections (A), (B), (C), (D), and (E), that would allow
the State to adjust Phase I bond rates to ensure adequate bonding
amounts. The provisions at proposed new section 10 CSR 40-7.011(5) are
substantially the same as the proposed provisions of Missouri's statute
at RSMo-444.950.1, which are discussed in Finding C.3.a.(1). In that
finding, the Director is approving Missouri's proposed statute
provisions concerning adjustment of Phase I bond amounts. Therefore,
the Director is approving Missouri's proposed regulation provisions at
10 CSR 40-7.011(5).
2. 10 CSR 40-7.021 Duration and Release of Reclamation Liability
a. 10 CSR 40-7.021(2) Criteria and Schedule for Release of
Reclamation Liability. (1) General. At 10 CSR 40-7.021(2), Missouri
proposes to remove the provision concerning retention of bond on
unreclaimed temporary structures, such as roads, sediment ponds,
diversions, and stockpiles where
[[Page 26452]]
Phase I, II, and III liabilities under the alternative bonding system
apply and on a reclamation cost estimate basis where full-cost bonding
applies. Missouri is proposing to move that portion of the provision
pertaining to Phase I bond to 10 CSR 40-7.021(2)(A), and is proposing
to delete that portion of the provision pertaining to full-cost
bonding. As discussed in Finding B.1.a., the Director is approving
Missouri's proposal to delete the option to file a full-cost bond.
Therefore, none of the existing Missouri program provisions are
rendered less effective by this proposed move and deletion, and the
Director is approving Missouri's proposed revision at 10 CSR 40-
7.021(2).
(2) 10 CSR 40-7.021(2)(A) Qualification for Release of Phase I
Liability. As discussed above, Missouri proposes to move the
requirement that Phase I bond be retained on unreclaimed temporary
structures, such as roads, sediment ponds, diversions, and stockpiles
from 10 CSR 40-7.021(2) to 10 CSR 40-7.021(2)(A). Retention of bond for
unreclaimed temporary structures is not addressed as separate
requirements in the Federal regulations for bond release; however,
Phase I bond release may not be approved until backfilling, grading,
and drainage control in accordance with the reclamation plan is
complete. Since 10 CSR 40-7.021(2)(A) retains its requirement for
completion of backfilling, grading, and drainage control prior to Phase
I bond release, the existing regulation provisions are not rendered
less effective by the inclusion of the requirement for retention of
bond for unreclaimed temporary structures. Therefore, the Director
finds the proposed revision is no less effective than the Federal
regulations at 30 CFR 800.40(c)(1), and is approving Missouri's
proposed change at 10 CSR 40-7.021(2)(A).
(3) 10 CSR 40-7.021(2)(D)1 Release of Phase I Bond When Phase I
Reclamation is Completed. In addition to the proposed changes at 10 CSR
40-7.021(2)(D)1 previously discussed in Finding B.1.b., Missouri
proposes to add language to require that after 80 percent of Phase I
bond is released, the total remaining bond for a single permit shall
not be below the amount required by 10 CSR 40-7.011(4)(B). As discussed
in Finding D.1.c.(2), the Director is approving new 10 CSR 40-
7.011(4)(B) which requires that the minimum amount of Phase I bond
applied to a single permit shall be $10,000, or the equivalent of 20
acres of bond for each acre of open pit area, whichever is greater. The
Director finds Missouri's proposed change does not render 10 CSR 40-
7.021(2)(D)1 less effective than the requirements of 30 CFR
800.40(c)(1), and he is approving it.
(4) 10 CSR 40-7.021(2)(D)2 Release of Remaining Phase I Reclamation
Bond. At 10 CSR 40-7.021(2)(D)2, Missouri proposes to delete language
pertaining to release of full-cost bonds and to add the following
language pertaining to release of Phase I reclamation bond: ``The
remaining amount of the bonds shall be released when Phase III
liability is released.'' Deletion of the option to file a full-cost
bond is discussed in Finding B.1.a. In that finding, the Director
approved Missouri's proposal to delete the option to file a full-cost
bond from its statutes. Retention of a portion of Phase I bond until
completion of Phase III reclamation is discussed in Finding C.3.c. In
that finding, the Director approved Missouri's provision in its
statutes to retain up to 20 percent of Phase I bond until completion of
Phase III reclamation. These changes proposed by Missouri are necessary
to maintain consistency in its program and are not inconsistent with
SMCRA or the Federal regulations. Therefore, the Director is approving
Missouri's proposed changes at 10 CSR 40-7.021(2)(D)2.
(5) 10 CSR 40-7.021(2)(E) Release of Bond from Undisturbed Areas.
At 10 CSR 40-7.021(2)(E), Missouri proposes to clarify its provision
for release of bond liability from undisturbed areas which are adjacent
to disturbed lands by specifying that the bond ``may'' be released
instead of ``shall'' be released and by adding language pertaining to
surface mining disturbances: ``All bonding liability may be released in
full from undisturbed areas when further disturbances from surface
mining have ceased.'' In addition, Missouri proposes to clarify that
``The permit shall terminate on all areas where all bonds have been
released.'' Federal regulations at 30 CFR 800.15(c) allow reduction of
bond liability for undisturbed land. Although the Federal regulations
for undisturbed areas do not contain specific language pertaining to
permit termination, the Director finds the proposed changes would not
render 10 CSR 40-7.021(2)(E) inconsistent with SMCRA or the Federal
regulations and is approving them.
b. 10 CSR 40-7.021(5) Requirement to File an Affidavit. On the
State's initiative, additional requirements for bond release are
proposed to be added to the Missouri program. Specifically, Missouri
proposes to add a new section 10 CSR 40-7.021(5) which would require an
operator who is seeking a Phase III bond release to file an affidavit
with the recorder of deeds in the county where mining occurred
describing the parcel(s) of land where operations such as underground
mining, auger mining, covering of slurry ponds, or other underground
activities occurred which could impact or limit future use of the land.
This requirement would be applicable to mined land where Phase I
reclamation was completed on or after September 1, 1992. There is no
Federal counterpart to the proposed provision for Phase III bond
release at section 519 of SMCRA or 30 CFR 800.40(c). The Director finds
the additional requirements would not adversely impact the Missouri
program as none of the existing program provisions are rendered less
effective than the Federal regulations by the inclusion of the
additional requirements. Therefore, he is approving 10 CSR 40-7.021(5)
as proposed.
3. 10 CSR 40-7.041 Form and Administration of the Coal Mine Land
Reclamation Fund
Missouri proposes to delete 10 CSR 40-7.041(4)(A)2. This provision
stipulates that Reclamation Fund moneys cannot be expended for
reclamation or areas bonded by full-cost bonds. Since Missouri also
proposes in this amendment to remove the option to file a full-cost
bond, this proposed deletion is necessary to maintain consistency in
the Missouri program. As discussed in Finding B.1.a., the Director is
approving the deletion of the option to file a full-cost bond from the
Missouri program. Therefore, the Director finds Missouri's proposed
deletion of 10 CSR 40-7.041(4)(A)2 will not render 10 CSR 40-
7.041(4)(A) less effective than the Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because on one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Missouri program. No comments
from Federal agencies were received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written
[[Page 26453]]
concurrence of the EPA with respect to those provisions of the proposed
program amendment that relate to air or water quality standards
promulgated under the authority of the Clean Water Act (33 U.S.C. 1251
et seq.).
None of the revisions that Missouri proposed to make in its
amendment pertain to air or water quality standards. Nevertheless, OSM
requested EPA's concurrence with the proposed amendment (Administrative
Record Nos. MO-621 and MO-624). EPA did not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director is approving, with a
reporting stipulation, the proposed amendment as submitted by Missouri
on March 7, 1995, and March 28, 1995. This stipulation requires
Missouri to submit semi-annual reports to demonstrate continued
solvency of the CMLR Fund, beginning with the first report due October
1, 1996, until such time that OSM informs Missouri of a less frequent
reporting period.
The changes approved in this rulemaking strengthens the Missouri
program and, as such, are consistent with SMCRA and the Federal
regulations at 30 CFR 732.17(g).
The Director approves the regulations and statutes as proposed by
Missouri with the provision that they be fully promulgated in identical
form to the regulations and statutes submitted to and reviewed by OSM
and the public.
The Federal regulations at 30 CFR Part 925, codifying decisions
concerning the Missouri program, are being amended to implement this
decision. With respect to those changes in State laws and regulations
approved in this document, the Director is making the final rule
effective immediately.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. In the oversight of the Missouri program, the Director will
recognize only the statutes, regulations, and other materials approved
by OSM, together with any consistent implementing policies, directives,
and other materials, and will require the enforcement by Missouri of
only such provisions.
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 regulatory programs and program amendments since each such
program is drafted and promulgated by a specific State, not by OSM.
Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
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 State 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 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 for the corresponding Federal regulations.
Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 8, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations 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 925.15 is amended by adding paragraph (t) to read as
follows:
Sec. 925.15 Approval of regulatory program amendments.
* * * * *
(t) Revisions to the following statutes and regulations, as
submitted to OSM on March 7 and March 28, 1995, are approved effective
May 28, 1996, with a reporting stipulation that requires Missouri to
submit semi-annual reports to demonstrate continued solvency of the
CMLR Fund, beginning with the first report due October 1, 1996, until
such time that OSM informs Missouri of a less frequent reporting
period.
(1) Revisions to the Revised Statutes of Missouri (RSMo).
RSMo 444.805--Deletion of the definition of full-cost bond and revision
of the definition of Phase I reclamation bond.
RSMo 444.830.1--Deletion of option to file a full-cost bond and
revision to Phase I reclamation bond filing requirements.
RSMo 444.830.3--Commission's adoption of an alternative bonding system.
RSMo 444.950.1--Phase I reclamation bond amount requirements, including
annual adjustments proposed through the Missouri rulemaking process.
[[Page 26454]]
RSMo 444.950.3--Self-bonding requirements and adoption of an
alternative bonding system.
RSMo 444.950.4--Phase I reclamation bond liability.
RSMo 444.960.1--Establishment of the CMLR Fund.
RSMo 444.960.5--Allocation and use of the A (40%) and B (60%) portions
of the CMLR Fund.
RSMo 444.965.1--CMLR initial assessments.
RSMo 444.965.3--Deletion of buy-out option.
RSMo 444.965.4--CMLR Fund Adjustment.
RSMo 444.965.5--CMLR assessment increase.
(2) Revisions to the Missouri Code of Regulations (CSR) at 10 CSR
40-7.
10 CSR 40-7.011(1)--Deletion of the definition of full-cost bond,
revision of the definition of Phase I bond, and addition of definitions
for Phase II and Phase III bond.
10 CSR 40-7.011(2)--Revision of requirements to file a bond.
10 CSR 40-7.011(3)--Filing of incremental bond and identification of
increments for bonding.
10 CSR 40-7.011(4)--Minimum per acre Phase I bond amounts, minimum
Phase I bond for a permit, and deletion of full-cost bonding
provisions.
10 CSR 40-7.011(5)--Annual adjustment of Phase I bond amounts.
10 CSR 40-7.021(2)--Concerning criteria and schedule for release of
reclamation liability, qualification for release of Phase I liability,
release of Phase I bond when Phase I reclamation is completed, and
release of bond from undisturbed areas.
10 CSR 40-7.021(5)--Requirement to file an affidavit at Phase III
release of underground mining acreage.
10 CSR 40-7.041(1)--Payment to the 40 percent pool, assessment rates,
continuation of monthly assessments, and reinstatement rates.
10 CSR 40-7.041(4)--Expenditure of reclamation fund moneys.
Sec. 925.16 [Amended]
3. Section 925.16 is amended by removing and reserving paragraphs
(g)(1) through (g)(8) and (g)(20).
[FR Doc. 96-13261 Filed 5-24-96; 8:45 am]
BILLING CODE 4310-05-M
