[Federal Register Volume 59, Number 186 (Tuesday, September 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23829]
[[Page Unknown]]
[Federal Register: September 27, 1994]
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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: Final rule; approval of amendment and concurrence with
certification of completion of coal reclamation.
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SUMMARY: Under the Surface Mining Control and Reclamation Act of 1977
(SMCRA), OSM is approving a proposed amendment to the Navajo Nation's
AMLR plan (hereinafter referred to as the ``Navajo Nation plan'') and,
on behalf of the Secretary of the Interior, in concurring with the
Navajo Nation's certification that the Navajo Nation has abated or
reclaimed all coal-related AML problems on its lands under the Navajo
Nation plan. The amendment, which the Navajo Nation proposed in order
for its plan to meet the requirements of the Federal regulations and
SMCRA, to clarify ambiguities, and to improve operational efficiency,
consists of statute and rule revisions pertaining to reclamation of
interim program abandoned coal mines, coal priorities, certification of
completion of coal reclamation, establishment of a noncoal reclamation
program subsequent to certification including the authority to
undertake community impact assistance and public facilities projects,
and creation of a future reclamation set-aside fund. OSM's concurrence
with the Navajo Nation's certification of the completion of all coal-
related problems, which was requested by the President of the Navajo
Nation, means that the Navajo Nation is now authorized to use monies
from the Navajo Abandoned Mine Reclamation (AMR) fund for noncoal
reclamation purposes, including the construction of public facilities.
EFFECTIVE DATE: September 27, 1994.
FOR FURTHER INFORMATION CONTACT:
Thomas E. Ehmett, Telephone: (505) 766-1486.
SUPPLEMENTARY INFORMATION:
I. Background on Title IV of SMCRA
Title IV of SMCRA establishes an AMLR program for the purposes of
reclaiming and restoring lands and waters adversely affected by past
mining. It also provides for Tribal or State submittal to OSM of an
AMLR plan. The Secretary of the Interior adopted regulations in 30 CFR
870 through 888 that implement Title IV of SMCRA. Under these
regulations, the Secretary reviewed the Tribe's or State's AMLR plan
and solicited and considered comments of State and Federal agencies and
the public. Based upon the comments received, the Secretary determined
whether a Tribe or State 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 Tribe or
State AMLR plan. Approval granted the Tribe or State exclusive
authority to administer its approved plan.
Following approval of a Tribe's or State's AMLR plan by the
Secretary, an application may be submitted to OSM by a Tribe or State
on an annual basis for funds to be expended by that Tribe or State on
specific projects necessary to implement the approved plan. Such annual
grant applications are reviewed and approved by OSM in accordance with
the requirements of 30 CFR 886.
The Federal Abandoned Mine Reclamation Fund (Federal Fund), which
is administered by the Secretary through OSM, is financed by a
reclamation fee assessed on every ton of mined coal. Expenditures from
the Federal Fund are subject to appropriation by Congress. The Federal
Fund is divided into Tribal or State and Federal shares with each
Indian tribe or State under a federally approved reclamation program
entitled to 50 percent of the reclamation fees collected from coal
operations on Indian lands or within the State. Annually, the Indian
tribes or States receive reclamation project construction grants and
administrative grants from their share of the Federal Fund. Subject to
OSM approval, Tribes and States are also authorized to create special
interest-bearing Tribe or State trust accounts into which up to 10
percent of their annual grants can be deposited. These ``set-aside''
accounts may be used to achieve the priorities of section 403(a) of
SMCRA after September 30, 1995, or be deposited into an acid mine
drainage abatement and treatment fund.
Noncoal AMLR projects can be undertaken by a Tribe or State under
two scenarios, both of which are subject to OSM approval in the grants
process. Prior to a Tribe or State certifying in accordance with
section 411(a) of SMCRA that it has completed the reclamation of all
eligible abandoned coal projects, it can expend Tribal or State share
monies for those noncoal projects that are a hazard to public health
and safety. After a Tribe or State has certified that it has completed
reclamation of all eligible abandoned coal projects, it can then use
the full amount of its Tribal or State share for abandoned noncoal mine
land reclamation projects. Such noncoal projects include the
construction of public facilities related to the coal or minerals
industry.
II. Background on the Navajo Nation Plan
On May 16, 1988, the Secretary of the Interior approved, with one
exception, the Navajo Nation plan as originally submitted in June 1983,
resubmitted on September 6, 1983, and amended in February 1988. General
background information on the Navajo Nation plan, including the
Secretary's findings, the disposition of comments, the decision
deferring any action on the Navajo Nation's proposal to assume the
emergency response authority, 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 With Certification
of Completion of Coal Reclamation
By letters dated April 7 and 22, 1994, the Navajo Nation submitted
a proposed amendment to its AMLR plan pursuant to SMCRA (administrative
record Nos. NA-207, NA-208, and NA-212). The Navajo Nation submitted
the proposed amendment at its own initiative with the intent of
revising its AMLR plan so it could use AMR funds to reclaim remaining
interim program coal sites and for noncoal reclamation purposes,
including the construction of public facilities. Interim program coal
sites are eligible lands and water mined after August 3, 1977, but
prior to September 28, 1984 (the date the permanent Federal regulatory
program took effect on Navajo Nation lands), 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 abatement or reclamation at a site.
The Navajo Nation proposed revisions to its AMLR Code of 1987 at
(1) the introduction to the Navajo AMLR Code; (2) Title I, section 101,
findings, and section 102, purposes; (3) Title II, sections 201(a),
(b), (c) and (d), duties of the Navajo Abandoned Mine Lands Reclamation
Department (NAMLRD); and (4) Title IV, sections 401(a), (b)(5), (b)(6),
(c)(5) and (c)(8), Navajo AMR fund and purposes; section 402,
reclamation fee; sections 403(a) and (b), objectives of the fund;
section 404, eligible lands and water; sections 405(a), (b), (c), and
(f), Tribal reclamation program; section 407, acquisition and
reclamation of lands within the Navajo Nation adversely affected by
past mining practices; section 408, liens; section 409, filling voids
and sealing tunnels; section 410, emergency powers; section 411,
certification of completion of coal reclamation; section 412, fund
report; section 413, miscellaneous powers; and section 414, interagency
cooperation.
The Navajo Nation also proposed revisions to the Navajo Nation
Rules implementing the AMLR Code of 1987 at (1) section II, Part D,
subsections 1 and 2, reclamation priorities; Part L, subsections 1 and
2, general reclamation requirements; Part M, subsections 1 and 2,
certification of completion of coal reclamation; Part N, subsection 1,
eligible lands and water subsequent to certification; Part O,
subsection 1, exclusion of noncoal reclamation sites; Part P,
subsections 1, 2, and 3, utilities and other facilities, and (2)
section III, Part E, subsection 1, future reclamation set-aside
program.
In addition, by letter dated May 4, 1994, the President of the
Navajo Nation notified the Secretary of the Interior that the Navajo
Nation was certifying that it had completed all of its coal reclamation
projects (administrative record No. NA-213) and stated that NAMLRD
intends to complete all remaining priority 1 and 2 coal reclamation
projects, including interim coal reclamation projects, as required by
section 403(a) of SMCRA. Reclamation projects are funded under a
priority schedule, such that ``priority 1'' projects concern those that
involve the protection of public health, safety, general welfare and
property from extreme danger of the adverse effects of coal mining
practices while ``priority 2'' projects concern those that involve
protection of public health, safety, and general welfare from adverse
effects of coal mining practices. 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 concurred with the certification, the Nation would
request AMR funds to pursue projects under the provisions of section
411 of SMCRA.
OSM announced receipt of the proposed amendment and the Navajo
Nation's request for the Secretary's concurrence with its certification
of completion of coal reclamation in the May 18, 1994, Federal Register
(59 FR 25852, administrative record No. NA-214), provided an
opportunity for a public hearing or meeting and public comment on the
substantive adequacy of the Navajo Nation's proposed amendment and
certification, and requested information concerning any known or
suspected unreclaimed lands and water resources on Navajo Nation lands
that would be eligible for expenditures from the AMR fund under the
provisions of the Navajo Nation's reclamation program. Because no one
requested a public hearing or meeting, none was held. The public
comment period ended on June 17, 1994.
IV. Director's Findings
1. The Navajo Nation Plan
As discussed below, the Director of OSM, in accordance with SMCRA
and 30 CFR 756.1, 884.15, and 884.14, finds that the proposed AMLR plan
amendment submitted by the Navajo Nation on April 7 and 22, 1994, meets
the requirements of SMCRA and the Federal regulations at 30 CFR 884.14.
Accordingly, the Director approves the proposed amendment.
a. Nonsubstantive Revisions to the Navajo Nation AMLR Code of 1987
The Navajo Nation proposed revisions to the following previously-
approved provisions of its code that are nonsubstantive in nature and
consist of (1) minor editorial, grammatical, and punctuation changes,
(2) recodification, (3) using the term ``Nation'' rather than
``Tribal'' or ``Tribe of Indians'' when referring to the Navajo Nation
and the terms ``Navajo Abandoned Mine Reclamation Program'' and
``Navajo Abandoned Mine Reclamation Plan'' for the Navajo Nation's
reclamation program and plan, and (4) clarifying the duties and
responsibilities of NAMLRD, Division of Natural Resources, and Office
of Navajo Land Administration in administering the AMLR plan for the
Navajo Nation (corresponding SMCRA provisions are listed in
parentheses):
Introduction (introduction of SMCRA),
Title I, section 101, Findings (Title I, section 101 of SMCRA),
Title I, section 102, Purposes (Title I, section 102 of SMCRA),
Title II, sections 201(a), (c) and (d), Duties of NAMLRD (Title
II, section 201 and Title IV, section 405(1) of SMCRA),
Title IV, sections 401(a) and (b)(6), Navajo Abandoned Mine
Reclamation Fund and Purposes (Title IV, sections 401(a) and (b) of
SMCRA),
Title IV, section 402, Reclamation Fee (Title IV, section 402 of
SMCRA),
Title IV, sections 403(a)(4), (5) and (6), Objectives of Fund
(Title IV, section 403(a) of SMCRA),
Title IV, sections 405(a), (b), (c), and (f), Tribal Reclamation
Program (Title IV, sections 405(b), (e), and (i) of SMCRA),
Title IV, sections 407(a), (c), (c)(3), and (d) through (h),
Acquisition and Reclamation of Lands Within the Navajo Nation
Adversely Affected by Past Mining Practices (Title IV, section 407
of SMCRA),
Title IV, section 408(a), Liens (Title IV, section 408 of
SMCRA),
Title IV, sections 409(a) and (d), Filling Voids and Sealing
Tunnels (Title IV, sections 409(a) and (e) of SMCRA),
Title IV, section 412, Fund Report (Title IV, section 412 of
SMCRA), and
Title IV, sections 413(b) through (e), Miscellaneous Powers
(Title IV, section 413 of SMCRA).
Because the proposed revisions to these previously-approved
provisions of the code are nonsubstantive in nature, the Director finds
that the proposed revisions meet the requirements of SMCRA.
Accordingly, the Director approves the proposed revisions to these
provisions of the Navajo Nation AMLR Code of 1987.
b. Substantive Revisions to the Navajo Nation AMLR Code of 1987 and
Navajo Nation Rules Implementing the Code That Are Substantively
Identical to the Corresponding Provisions of SMCRA and the Federal
Regulations
The Navajo Nation proposed revisions to the following sections of
its code and rules that are substantive in nature and contain language
that is substantively identical to the requirements of the
corresponding SMCRA and Federal regulation provisions (listed in
parentheses).
Navajo Nation AMLR Code of 1987:
Title II, section 201(b), Duties of NAMLRD (Title II, section
201 of SMCRA),
Title IV, sections 401(c)(5) and (8), Navajo Abandoned Mine
Reclamation Fund and Purposes (Title IV, section 401(c) of SMCRA),
Title IV, sections 403(a) and (b) and deletion of (a)(4),
Objectives of Fund (Title, sections 403(a) and (c) of SMCRA),
Title IV, section 404, Eligible Lands and Water (Title IV,
section 404 of SMCRA,
Title IV, section 409(b), Filling Voids and Sealing Tunnels
(Title IV, section 409(c) of SMCRA), and
Title IV, section 411, Certification [of Completion of Coal
Reclamation] (Title IV, section 411 of SMCRA).
Navajo Nation Rules:
II(D)(1) and (2), Reclamation Priorities (Title IV, sections
403(a) and 411(c) of SMCRA and 30 CFR 874.13 and 875.15),
II(L)(1)(a) through (c) and (e) through (g) and (2), General
Reclamation Requirements (Title IV, sections 404 and 411(b) of SMCRA
and 30 CFR 874.12 and 875.12),
II(M)(1) and (2), Certification of Completion of Coal
Reclamation (Title IV, Sections 411(a) and (f) of SMCRA and 30 CFR
875.13 and 875.15),
II(N)(1), Eligible Lands and Water Subsequent to Certification
(Title IV, section 411(b) of SMCRA and 30 CFR 875.14),
II(O)(1), Exclusion of Noncoal Reclamation Sites (Title IV,
section 411(d) of SMCRA and 30 CFR 875.16),
II(P)(1), (2), and (3), Utilities and Other Facilities (Title
IV, section 411(e) of SMCRA and 30 CFR 875.15), and
III(E)(1), Future Reclamation Set-Aside Program (Title IV,
section 402(g)(6) of SMCRA and 30 CFR 873.12).
Because the proposed revisions to these sections of the code and
rules are substantively identical to the corresponding provisions of
SMCRA and the Federal regulations, the Director finds that the proposed
revisions meet the requirements of SMCRA and the implementing Federal
regulations. Accordingly, the Director approves the proposed revisions
to these sections of the Navajo Nation AMLR Code of 1987 and the
implementing Navajo Nation Rules.
c. Title IV. Section 401(b)(5), Interest Credited to the AMR Fund
The Navajo Nation proposed new language in its AMLR Code of 1987 at
Title IV, section 401(b)(5) to provide that the Navajo AMR Fund shall
consist, in part, of amounts derived from ``interest credited to the
fund under subsection (e) of section 401 of SMCRA.''
Section 401(e) of SMCRA provides that interest can be earned on
that portion of the Federal AMR Fund (administered by the Secretary)
not required to meet current withdrawals. Interest earned on the
invested portion of the Federal Fund is distributed only to the
Secretarial share of the Federal Fund. Therefore, none of the interest
earned on the invested portion of the Federal Fund is distributed to
any portion of the Tribal or State share of the Federal Fund which each
Tribe or State receives in annual grants as provided at 30 CFR 886.
Section 401(e) of SMCRA does not restrict a Tribe or State from earning
interest on the AMR fund created by a Tribe or State as part of its
AMLR program.
Title IV, section 401(b)(5) of the Navajo Nation AMLR Code of 1987
is interpreted to mean that the interest credited to the Navajo AMR
fund is not the interest earned on the Federal Fund but is limited to
interest credited from the deposit of other monies as provided in the
Navajo Nation AMLR Code of 1987 by sections 401(b)(2), (3), (4), and
(6) which include reclamation fees, user charges, donations, recovered
monies, and other reclamation fees lawfully imposed by the Navajo
Nation. The Director approves proposed section 401(b)(5) of the Navajo
Nation AMLR Code of 1987 with the understanding that the interest
earned is limited to the aforementioned monies deposited to the Navajo
AMR fund.
d. Title IV, Section 410, Emergency Powers
The Navajo Nation proposed deletion of its emergency powers
provisions at Title IV, section 410 of its AMLR Code of 1987. Deletion
of these provisions is consistent with the approval of the Navajo
Nation's AMLR plan (53 FR 17186, 17190; May 16, 1988) where the
Secretary deferred decision on the emergency response program pending
additional documentation addressing the specific criteria concerning
assumption of emergency response authority. Because the Navajo Nation
did not submit such additional documentation, the emergency powers
program was never approved. The Director, therefore, approves deletion
of the provisions for emergency powers at section 410 of the Navajo
Nation AMLR Code of 1987 and notes that it is the Navajo Nation's
intent to delete all references to emergency powers within its AMLR
Code of 1987.
e. Title IV, Section 414, Interagency Cooperation
The Navajo Nation proposed new language in its AMLR Code of 1987 at
Title IV, section 414 to provide for interagency cooperation in
implementing and administering the provisions of the Navajo Nation plan
``where such cooperation does not conflict with existing Navajo Nation
and/or applicable federal laws.'' Section 413(a) of SMCRA provides, in
part, that a Tribe has the authority to engage in any work and to do
all things necessary or expedient to implement and administer the
provisions of Title IV. Therefore, the limitation of interagency
cooperation to instances where no conflict with existing Navajo Nation
or applicable Federal laws occur meets the requirements of section 413
of SMCRA. Accordingly, the Director approves section 414 of the Navajo
Nation AMLR Code of 1987.
OSM notes that the Navajo Nation plan provides the authority for
the Tribe to conduct a reclamation program on Navajo (Indian) lands as
that term is defined in section 701(9) of SMCRA. Indian lands occur
within and outside traditional reservation boundaries. Although there
may be jurisdictional limitations to the Navajo Nation's authority to
undertake certain reclamation actions outside the reservation, the
Navajo Nation plan presents a variety of reclamation procedures and
activities which would allow the Tribe to undertake its reclamation
program without violating the jurisdictional rights of other parties.
Because certain lands within the boundaries of the Navajo Nation
Reservation are ``disputed lands'' and other lands are under the
control of the Office of the Navajo and Hopi Indian Relocation, it is
understood by OSM that any reclamation or abatement action proposed by
the Navajo Nation will be coordinated with and due consideration given
to concerns raised by all parties asserting ownership of these lands.
f. Navajo Nation II(L)(1)(d), Interim Program Coal Sites
The Navajo Nation proposed the addition of provisions in its Navajo
Nation Rules at II(L)(1)(d) that address interim program coal sites.
Section 402(g)(4) of SMCRA provides for the reclamation of interim
coal program sites and further provides that sections 403(a) (1) and
(2) of SMCRA determine which sites to reclaim.
The Navajo Nation does not have a statutory requirement that
addresses reclamation of interim program coal sites. OSM acknowledges
that the Navajo Nation has submitted a grant application in accordance
with the provisions of 30 CFR 886 to fund reclamation of all remaining
priority 1 and 2 abandoned coal mine sites, including interim program
coal reclamation projects, as required by section 403(a) of SMCRA. The
Navajo Nation has also demonstrated to OSM's satisfaction that the
Navajo Nation AMR fund contains enough monies in reserve to address
reclamation of the remaining sites. On this basis and upon approval of
the proposed plan amendment that is the subject of this notice, OSM
will begin reviewing the pending grant application. OSM also
understands that the Navajo Nation is in the process of revising its
AMLR Code of 1987 to provide for the reclamation of interim program
coal sites. The Director, therefore, approves the Navajo Nation's
proposed rule at section II, Part L, subsection 1(d) addressing interim
program coal reclamation.
2. Request for Concurrence With Certification of Completion of Coal
Reclamation
The President of the Navajo Nation notified the Secretary of the
Interior that the Navajo Nation certifies to the completion of all its
coal reclamation projects. Section 411(a) of SMCRA provides that the
head of an Indian tribe may certify to the Secretary that all of the
priorities stated in section 403(a) of SMCRA for eligible lands and
water have been achieved and that the Secretary, after notice in the
Federal Register and opportunity for public comment, shall concur with
such certification if the Secretary determines that such certification
is correct.
Since the Secretary's approval of the Navajo Nation plan, the
Navajo Nation has conducted reclamation to correct or mitigate problems
caused by past coal mining. The Navajo Nation has completed this
reclamation in the order of priority set forth in section 403(a) of
SMCRA. OSM acknowledges that there are remaining priority 1 and 2
abandoned coal mine sites yet to be reclaimed by the Navajo Nation, but
upon approval of the grant application submitted by the Navajo Nation
in accordance with 30 CFR 886 and as discussed in finding No. 1.e.
above, the Navajo Nation will have addressed all known remaining pre-
SMCRA and interim program abandoned coal mine lands.
Based upon the Navajo Nation's May 4, 1994, certification, and the
absence of any known unreclaimed coal-related impacts, the Director of
OSM, on behalf of the Secretary, concurs with the Navajo Nation's
certification that all coal-related abandoned mine land problems have
been abated or reclaimed, and finds that the Navajo Nation has
satisfied the requirements of section 403 of SMCRA. If a coal problem
occurs or is identified in the future, the Navajo Nation would have to
seek immediate funding to reclaim the coal-related problem. Concurrence
with the Navajo Nation's certification of completion of coal
reclamation means that the Navajo Nation may now use annual grants made
available under section 402(g)(1) of SMCRA to carry out activities or
construction of specific public facilities related to the coal or
minerals industry in accordance with section 411(f) of SMCRA.
IV. 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
Pursuant to section 411 of SMCRA and 30 CFR 884.15(a) and
884.14(a)(1), OSM invited public comment and provided an opportunity
for a public hearing on the Navajo Nation's proposed amendment and
certification of completion of coal reclamation (administrative record
No. NA-214). No public comments were received, and because no one
requested an opportunity to testify at a public hearing, no hearing was
held.
2. Agency Comments
Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited
comments on the proposed amendment and request for concurrence with the
Navajo Nation's certification of completion of coal reclamation from
Federal, State, and Tribal agencies with an actual or potential
interest in the Navajo Nation plan (administrative record Nos. NA-209
and NA-215).
Navajo Environmental Protection Administration (Navajo EPA)
Navajo EPA stated that the proposed amendment of the Navajo Nation
plan differed from SMCRA and provided comments in a letter dated May
27, 1994 (administrative record No. NA-219), including editorial
comments pertaining to the specific language proposed in the plan
amendment and suggestions on how to improve such language. These
editorial comments are available in the administrative record for this
amendment, and a copy has been provided to the Navajo Nation. However,
because these comments are nonsubstantive in nature, OSM has not
addressed them below.
(1) Navajo EPA stated that the title of the Navajo Nation plan
should be changed to the ``Navajo Abandoned Mine Lands Reclamation
Plan'' to clarify that the plan refers only to abandoned mine land
reclamation, and not to any active mines, over which NAMLRD has no
jurisdiction. OSM responds that the Navajo Nation's Reclamation Plan is
approved under Title IV, Abandoned Mine Reclamation, of SMCRA and not
under Title V, Control of the Environmental Impacts of Surface Coal
Mining, which provides the authority for States to administer coal
mining regulatory programs. No legislation exists granting Indian
tribes the authority to regulate coal mining on Indian lands.
(2) Navajo EPA indicated that the plan amendment did not
incorporate standards to be used by NAMLRD for air, water, soil,
radioactivity, and other topics, when deciding whether a site has been
completely reclaimed. Title IV of SMCRA and the implementing Federal
regulations do not require specific reclamation standards. OSM, during
field reviews, provides the necessary oversight to ensure that projects
funded using AMR funds meet the goals established when funding was
approved.
(3) Navajo EPA suggested that section II(D)(1)(a-e) of the Navajo
Nation Rules concerning reclamation priorities may need a clarifying
statement to indicate that ``Priority A'' is the same as ``priority
1,'' and so forth, as used in SMCRA and by NAMLRD (to designate
priorities of eligible lands and water for expenditures from the Navajo
AMR fund). OSM agrees that a clarifying statement would be helpful, but
the dual designations are not so confusing as to affect their
implementation.
(4) Navajo EPA expressed concern that section II(L)(1) of the
Navajo Nation Rules pertaining to general reclamation requirements does
not state that the eligibility requirements are set under SMCRA and
were not devised by the Navajo Nation. OSM responds that, while the
Navajo Nation Rules do not specifically reference SMCRA in this
section, these rules implement the Navajo Nation AMLR Code of 1987
which is the Navajo Nation's counterpart to SMCRA. The eligibility
requirements established by these rules are consistent with section 404
of SMCRA. Therefore, a specific reference to this SMCRA citation is not
necessary.
(5) Navajo EPA stated that because it had found no indication that
any ``State'' has held a reclamation bond for mining activities
conducted within the Navajo Nation, the word ``State'' in the Navajo
Nation Rules at section II(L)(2)(b)(3) concerning reclamation bonds
should be deleted. This is an editorial comment, and the implication
that the State may hold a bond for reclamation activities on Navajo
Nation lands is immaterial.
(6) Navajo EPA commented that section II(M)(2) of the Navajo Nation
Rules, which states that ``[f]ollowing the concurrence by the Director
[with the Navajo Nation's certification of completion of coal
reclamation], the Nation may implement a noncoal reclamation program
pursuant to the provisions of section 411 of SMCRA,'' should be revised
to clarify that the ``Director'' is the Director of OSM. While Navajo
EPA's comment is consistent with section 411 of SMCRA, which indicates
that the Secretary (in this case, the Director of OSM for the
Secretary) has the authority to concur with a Tribe's or State's
certification, OSM does not find it necessary to require the Navajo
Nation to revise this rule. In requesting the Secretary's concurrence
on the Director of NAMLRD's certification of completion of coal
reclamation, the Navajo Nation has complied with section 411 of SMCRA.
(7) Navajo EPA stated that the reference to ``the Act'' in section
II(P)(1)(c) of the Navajo Nation Rules concerning utilities and other
facilities is unclear. OSM interprets the term ``the Act'' as used in
this rule to be the Navajo Nation AMLR Code of 1987 and does not agree
with the statement by Navajo EPA that such term is unclear.
(8) Navajo EPA felt that section III(E) of the Navajo Nation Rules
pertaining to creation of a future reclamation set-aside program did
not clearly indicate what happens to Navajo AMR funds after all known
coal reclamation has been completed. Navajo EPA asked whether the
monies will become general funds, subject then to reappropriation by
the Navajo Nation Council and whether the funds can be used for
purposes other than coal reclamation. As discussed in finding No. 2
above, upon concurrence by the Director of OSM with the Navajo Nation's
certification of completion of coal reclamation, the Navajo Nation may,
in accordance with section 411(f) of SMCRA, request AMR grant monies
from OSM to pursue public facilities projects related to coal or
mineral development. The Navajo Nation cannot reappropriate these
monies for uses other than what has been approved by OSM.
(9) Navajo EPA stated that because NAMLRD had already received
Council approval for the revised code, its review seems after the fact
unless suggested revisions are also put through the SAS (signature
approval sheet) process and presented to the Council. As required by 30
CFR 884.15 and 884.14, OSM must approve the Navajo Nation plan
amendment, of which the Navajo Nation AMLR Code of 1987 is a part,
before it is effective. If Navajo EPA identified inconsistencies
between the code and SMCRA and the implementing Federal regulations,
OSM would require the Navajo Nation to revise its AMLR Code of 1987.
(10) Navajo EPA expressed concern that although NAMLRD prepares all
environmental documents required under Federal law, the documents are
only reviewed by OSM, but none of the documents are reviewed by Navajo
EPA, as required. This comment concerns Tribal policy and procedures,
which are not inconsistent with the requirements of SMCRA and the
Federal regulations.
(11) Navajo EPA noted that Title II, section 201(d) of the Navajo
Nation AMLR Code of 1987 provides that NAMLRD shall be protected from
suite by sovereign immunity, and that no employee can waive this
immunity. However, Navajo EPA suggested that this right may be
abrogated by the Federal government as provided in section 405(1) of
SMCRA. Section 405(1) of SMCRA provides for Tribe or State immunity
from lawsuits except those resulting from gross negligence or
intentional misconduct by the Tribe or State, so to the extent that the
Tribe or State is liable under Federal law, it is held liable.
Therefore, OSM responds that the sovereign immunity claimed by the
Navajo Nation extends to all liability situations except those
involving gross negligence or intentional misconduct by the Navajo
Nation.
(12) Title IV, section 401(b)(2) of the Navajo Nation AMLR Code of
1987 indicates that the Navajo AMR fund shall consist of monies
deposited in the fund from sources including any user charges imposed
by the Navajo Nation on or for land reclaimed pursuant to the code,
after expenditures for maintenance have been deducted. Navajo EPA asked
that the type of user charges be clarified, because the code does not
specify if these charges refer to grazing or other non-mining
activities, whether fees are already appropriated to other departments,
what maintenance expenditures are being referred to, and who will
conduct said maintenance. Navajo EPA stated that this section was
copied directly from SMCRA and may have limited relevance as applied to
the Navajo Nation. Specific criteria pertaining to the type of user
charges, appropriation of fees, and maintenance are not addressed in
Title IV of SMCRA or the implementing Federal regulations. Therefore,
decisions made by the Navajo Nation regarding user charges it imposes
under its AMLR program are limited only to the extent that they are not
inconsistent with SMCRA. Because this provision of the Navajo Nation
AMLR Code of 1987 is substantively identical to section 401(b)(2) of
SMCRA, it meets the requirements of SMCRA.
(13) Title IV, section 401(b)(6) of the Navajo Nation AMLR Code of
1987 indicates that the AMR fund shall consist of monies deposited in
the fund from sources including ``all other reclamation fees lawfully
imposed by the Navajo Nation.'' Navajo EPA expressed concern that the
statement ``all other reclamation fees'' is extremely broad, and
wondered if it is meant to include reclamation fees for active coal and
non-coal mines, for sand and gravel, or oil and gas activities; whether
it applies only to reclamation bonds held by the Nation, or by Federal
agencies; and suggested that it is in direct conflict with regulations
outlining how those fees are held and allocated. Section 402 of SMCRA
provides for payment of a reclamation fee on mined coal to be deposited
in the Federal AMR Fund. SMCRA and the implementing Federal regulations
do not require the payment of any additional fees and do not restrict a
Tribe or State from collecting other kinds of reclamation fees.
Therefore, for these reasons and for the same reasons discussed in
comment No. 12 above, OSM finds this provision of the Navajo Nation
AMLR Code of 1987 to be consistent with section 401(b) of SMCRA.
(14) Navajo EPA pointed out a typographical error in Title IV,
section (401)(c)(1) of the Navajo Nation AMLR Code of 1987. The phrase
``prevent abatement'' should be ``prevention, abatement * * *'' as in
the counterpart section 401(c)(1) of SMCRA. OSM agrees with Navajo EPA
in its comment and recommends that the Navajo Nation review its plan
amendment to correct grammatical, punctuation, and typographical errors
and inconsistencies.
(15) Navajo EPA stated that it would be in the Navajo Nation's best
interests if NAMLRD inventoried and listed their priority 3, 4, 5, and
6 projects, since that would include all public facilities projects.
This comment was not made in reference to a specific provision of the
Navajo Nation AMLR Code of 1987 or the Navajo Nation Rules; however,
the comment appears to be directed at noncoal reclamation and having
NAMLRD complete an inventory and list of public facilities projects. A
Tribe or State is required only to inventory priority 1 and 2 coal
sites in accordance with section 403(a) of SMCRA. NAMLRD, in accordance
with section 403(c) of SMCRA, has already inventoried priority 1 and 2
coal sites. Navajo EPA also stated that it is interested in receiving a
copy of the inventory of priority 1 and 2 sites to assist it in ongoing
abandoned uranium mine joint reclamation projects. OSM suggests that
Navajo EPA request the information from NAMLRD or contact OSM's
Albuquerque Field Office.
(16) Navajo EPA suggested that since section 405(f)(7) of SMCRA
requires NAMLRD to report to OSM annually on projects funded under the
previous year's grant, Title IV, section 405(f) of the Navajo Nation
AMLR Code of 1987 should be revised to require that the same kind of
information be provided to the Division of Natural Resources and the
Navajo Nation Council at the same time such information is reported as
required under SMCRA. OSM responds that the Navajo Nation is complying
with SMCRA reporting requirements, and if Navajo EPA requires
information contained in the documentation provided by NAMLRD to OSM on
an annual basis, then Navajo EPA should request this information
directly from NAMLRD.
(17) Navajo EPA expressed concern that Title IV, section 407 of the
Navajo Nation AMLR Code of 1987 pertaining to acquisition and
reclamation of lands adversely affected by past mining practices does
not clearly state whether its provisions apply only to private lands
within the Navajo Nation boundaries, or to lands such as homesite
leases, and individual allotments. Section 407 of SMCRA does not
specify the applicability of its provisions as they relate to Indian
lands. However, the Navajo Nation's jurisdiction over Navajo Nation
lands was clearly defined in the approval of the Navajo Nation plan (53
FR 17186, 17187; May 16, 1988) and is addressed in finding No. 1.e.
(18) Navajo EPA stated that Title IV, section 411(a) of the Navajo
Nation AMLR Code of 1987 should be changed to be consistent with the
Navajo Nation Rules and provide that the Navajo Nation President will
certify completion of coal reclamation rather than the Director of
NAMLRD. Section 411(a) of SMCRA provides that the head of an Indian
tribe will certify to the completion of coal reclamation. The request
from the Navajo Nation for the Secretary's concurrence with its
certification of completion of coal reclamation was made by the
President of the Navajo Nation, which meets the requirements of section
411(a) of SMCRA and which is the tribal authority Navajo EPA asserted
should make the certification. Therefore, although consistency between
the Navajo Nation AMLR Code of 1987 and Navajo Nation Rules is
desirable, it is not an issue in this instance.
(19) Navajo EPA stated that agreements for cooperative projects by
the Navajo Nation with any Federal or State agency should be entered
into with the advice of the Navajo Nation Department of Justice and the
Division of Natural Resources, in addition to the Intergovernmental
Relations Committee and Resources Committee of the Navajo Nation
Council already indicated in Title IV, section 413(b) of the Navajo
Nation AMLR Code of 1987. SMCRA does not require Tribes or States to
conform to a specific administrative process but does provide the power
and authority to engage in cooperative projects. (See finding No. 1.e.)
OSM reviews any cooperative projects during its annual oversight of the
Navajo Nation plan and AMLR grant program and determines at that time
whether such projects are conducted in a manner that meets the
requirements of SMCRA and the implementing Federal regulations.
(20) Navajo EPA stated that Title IV, section 413(d) of the Navajo
Nation AMLR Code of 1987 should require that NAMLRD will turn over
management and operation of water treatment facilities to the
appropriate Tribal department, which will have the continuing staffing
and expertise to run said facilities in perpetuity. This provision of
the code is substantively identical to section 413(d) of SMCRA. SMCRA
does not require that the management and operation of such a treatment
plant be turned over to another agency for continued management and
operation. The administration of the Navajo Nation's AMLR program is
addressed during OSM's annual oversight and any deficiencies in the
program are handled through the oversight process. If, during
oversight, OSM determines that a problem exists with effective
management of any part of the program, OSM would require resolution of
the problem.
U.S. Environmental Protection Agency (EPA)
EPA responded on June 13, 1994, with the following comments
(administrative record No. NA-220).
(1) EPA commented that the Navajo Nation plan does not address or
reference environmental requirements that may be applicable under the
National Environmental Policy Act (NEPA) and that sites found to pose
an environmental problem should be coordinated through NEPA to identify
the appropriate clean up remedies and standards. OSM responds, as it
did at comment No. 2 of the Navajo EPA comments, that Title IV of SMCRA
and the implementing Federal regulations do not require specific
reclamation standards. Prior to the Navajo Nation initiating AMLR
construction projects, OSM complies with the requirements of NEPA to
identify environmental impacts and mitigation measures.
(2) EPA commented that the authority for certifying the completion
of coal reclamation resides with the President of the Navajo Nation but
that section 411(a) of the Navajo Nation AMLR Code of 1987 assigned the
authority for the certification to the Director of NAMLRD. As stated in
response to the same comment by Navajo EPA (comment No. 18), OSM
responds that the request for concurrence with the Navajo Nation's
certification was actually submitted by the President of the Navajo
Nation in compliance with section 411(a) of SMCRA and in conformance
with EPA's comment on which tribal authority should make the
certification.
(3) EPA expressed concern that the Navajo Nation AMLR Code of 1987
does not provide for the Secretary's concurrence with the certification
of completion of coal reclamation. SMCRA provides that the Secretary
shall concur with a Tribe's or State's certification of completion of
coal reclamation. Therefore, OSM responds that the Navajo Nation plan
does not require revision for an action taken by the Secretary.
(4) EPA stated that it had understood that NAMLRD's Reclamation
Plan would be revised to include work at priority 3 abandoned uranium
mine sites, meaning NAMLRD would conduct work on abandoned uranium mine
sites that exhibited environmental hazards and degradation. EPA stated
further that it appeared no priority had been assigned to uranium sites
in the Navajo Nation Rules at II(D)(2), pertaining to noncoal
reclamation priorities prior to certification.
Section 403(a) of SMCRA provides, prior to certification of
completion of coal reclamation, that ``priority 3'' is the restoration
of lands and water and the environment previously degraded by adverse
effects of coal mining practices. After certification, section 411(c)
of SMCRA provides that priority 3 is the restoration of lands and water
and the environment previously degraded by the adverse effects of
mineral mining and processing practices. Title IV of SMCRA does not
prioritize noncoal commodities, and sections 411 (e) and (f) of SMCRA
provide that community impact assistance and public facilities projects
may be undertaken as they relate to the priorities for noncoal
reclamation. In this notice, OSM found that the Navajo Nation plan has
been revised to meet the requirements of SMCRA and the implementing
Federal regulations for noncoal reclamation subsequent to
certification. OSM is aware that EPA, among others, continues to work
with the Navajo Nation to develop a plan to address abandoned uranium
mine sites.
(5) EPA asked that the Navajo Nation clarify provisions of its AMLR
Code of 1987 and the Navajo Nation Rules to provide that the Nation's
President has the authority to undertake action at a noncoal site
before certification of completion of coal reclamation. The rules
provide that this authority resides with the President of the Navajo
Nation, but the code allows the Director of NAMLRD to conduct
reclamation activities and take other remedial actions on noncoal
sites. This comment is immaterial in light of the Secretary's
concurrence in this notice with the Navajo Nation's certification of
completion of coal reclamation on Navajo Nation lands.
(6) In a related manner, EPA suggested that the community
participation process for reclamation at noncoal sites is not
consistent between provisions of the Navajo Nation AMLR Code of 1987
and the Navajo Nation Rules. Specifically, EPA asked what mechanism
ensures that a request for noncoal reclamation to the Director of
NAMLRD will reach the President who has authority to request
reclamation at noncoal sites and what feedback mechanism existed to
inform the community of what actions will be taken. OSM, in approving
the proposed Navajo Nation plan amendment that is the subject of this
notice, has determined that the Tribe's public participation process
for determining the priority of community assistance projects meets the
requirements of SMCRA and the implementing Federal regulations.
(7) Finally, EPA stated that there appear to be no check-and-
balance systems between NAMLRD and Navajo EPA, NAMLRD and the Division
of Natural Resources, and NAMLRD and OSM. EPA feels systems are needed
to ensure inter- and intra-governmental consistency and harmony within
the Navajo Nation's various programs. SMCRA does not require
coordination between Tribal agencies but does provide for interagency
cooperation at section 414. The Navajo Nation AMLR Code of 1987
provides a similar provision at section 414. Therefore, OSM responds
that it is up to the Navajo Nation itself to determine how its various
departments will interact, coordinate, and establish and maintain
relationships that are conducive to meeting the requirements of the
Navajo Nation plan. Coordination between the Tribe and OSM already
occurs as required by SMCRA and the Federal regulations. OSM also
responds that it provides input into these relationships through
oversight of the Navajo Nation's AMLR program.
Other Agencies
By letter dated May 5, 1994, the Utah State Historical Society
provided the concurrence of the Utah Preservation Office with the
determination that no part of the amendment pertains to cultural
resources (administrative record No. NA-216).
The Arizona State Historic Preservation Office (SHPO) responded on
June 1, 1994, that it assumed OSM had the concurrence of the Navajo
Nation Historic Preservation Department (NNHPD) as to a determination
of no effect on cultural resources under the National Historic
Preservation Act of 1966 with respect to the consultation requirements
of 36 CFR Part 800. Therefore, it would defer the determination of no
effect on the NNHPD (administrative record No. NA-218).
Based upon the Arizona SHPO response, OSM contacted NNHPD on June
28, 1994. NNHPD stated it had elected not to respond and presumed that
OSM would proceed as if a determination of no effect was in place
(administrative record No. NA-221). OSM is not aware of any adverse
effects on cultural resources that would result from the proposed
amendment and certification of completion of coal reclamation, and on
this basis, OSM is proceeding with its decision on the Navajo Nation
submission.
V. Director's Decision
Based on the above findings, the Director approves the Navajo
Nation's proposed amendment as submitted on April 7 and 22, 1994.
As discussed in finding No. 1.a., the Director approves
nonsubstantive revisions to the Navajo Nation AMLR Code of 1987 at
sections 101, 102, 401, 402, 403, 405, 407, 408, 409, 412, and 413.
As discussed in finding Nos. 1.b., c., d., and e., the Director
approves substantive revisions to the Navajo Nation AMLR Code of 1987
at sections 201, 401, 403, 404, 409, 410, 411, and 414.
As discussed in finding Nos. 1.b and f., the Director approves
substantive revisions to the Navajo Nation Rules at Section II, Parts
D, L, M, N, O, and P, and Section III, Part E.
The Director approves the proposed revisions of the Navajo Nation
AMLR Code of 1987 and Navajo Nation Rules implementing the code with
the provision that they be fully promulgated in identical form to the
code and rules submitted to and reviewed by OSM and the public.
The Director of OSM, on behalf of the Secretary, also concurs with
the Navajo Nation's certification, as submitted by the Nation on May 4,
1994, that all abandoned coal mine related problems have been abated or
reclaimed under its AMLR plan in accordance with Title IV of SMCRA.
The effect of the Director's concurrence with the Tribe's
certification is to allow the Navajo Nation to use its AMR funds for
community impact assistance and construction of public facilities in
areas of the Navajo Nation lands impacted by coal or minerals
development, mining, or processing as provided in section 411 of SMCRA.
The Director is codifying this AMLR plan decision and concurrence
with the Navajo Nation's certification of completion of coal
reclamation at 30 CFR Part 756.14. The Director is also taking this
opportunity to revise the addresses at 30 CFR 756.13 for OSM and the
Navajo Nation.
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 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.
VIII. List of Subjects in 30 CFR Part 756
Abandoned mine land reclamation program, Indian lands.
Dated: September 15, 1994.
Russell F. Price,
Acting Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter E of the Code of Federal Regulations is amended as set forth
below:
PART 756--NAVAJO NATION
1. The authority citation for Part 756 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.
2. With the exception of the first sentence, Sec. 756.13 is revised
to read as follows:
Sec. 756.13 Approval of the Navajo Nation's Abandoned Mine Land Plan.
* * * * *
Copies of the approved plan are available at:
Albuquerque Field Office, Office of Surface Mining, Reclamation and
Enforcement, 505 Marquette Avenue, NW., Suite 310, Albuquerque, New
Mexico 87102, Telephone: (505) 766-1486.
The Navajo Nation, Navajo Abandoned Mine Land Reclamation Department,
P.O. Box 308, Window Rock, Arizona 86515, Telephone: (602) 871-4941.
3. Section 756.14 is added to read as follows:
Sec. 756.14 Approval of amendments to the Navajo Nation's Abandoned
Mine Land Plan.
(a) Revisions to the following provisions of the Navajo Nation AMLR
plan, as submitted to OSM on April 7 and 22, 1994, are approved
effective September 27, 1994:
Navajo Nation Abandoned Mine Land Reclamation Code of 1987:
Introduction
Section 101--Findings
Section 102--Purposes
Section 201--Duties of Navajo Abandoned Mine Lands Reclamation
Department
Section 401--Navajo Abandoned Mine Reclamation Fund and Purposes
Section 402--Reclamation Fees
Section 403--Objectives of Fund
Section 404--Eligible Lands and Water
Section 405--Reclamation Program
Section 407--Acquisition and Reclamation of Lands Within the Navajo
Nation Adversely Affected by Past Mining Practices
Section 408--Liens
Section 409--Filling Voids and Sealing Tunnels
Section 410--Deletion of Emergency Powers
Section 411--Certification of Completion of Coal Reclamation
Section 412--Navajo Abandoned Mine Reclamation Fund Report
Section 413--Miscellaneous Powers, and
Section 414--Interagency Cooperation
Navajo Nation Rules
II(D) (1) and (2)--Reclamation Priorities
II(L) (1) and (2)--General Reclamation Requirements
II(M) (1) and (2)--Certification of Completion of Coal Reclamation
II(N) (1)--Eligible Lands and Water Subsequent to Certification
II(O) (1)--Exclusion of Noncoal Reclamation Sites
II(P) (1), (2), and (3)--Utilities and Other Facilities, and
III(E) (1)--Future Reclamation Set-Aside Program
(b) The Director concurs with the Navajo Nation's May 4, 1994,
certification of completion of coal reclamation effective September 27,
1994.
[FR Doc. 94-23829 Filed 9-26-94; 8:45 am]
BILLING CODE 4310-05-M
