[Federal Register Volume 59, Number 103 (Tuesday, May 31, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-12566]
[[Page Unknown]]
[Federal Register: May 31, 1994]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Parts 795, 870, et al.
Abandoned Mine Land Reclamation Fund Reauthorization Implementation;
Final Rule
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 795, 870, 872, 873, 874, 875, 876, and 886
RIN 1029-AB49
Abandoned Mine Land Reclamation Fund Reauthorization
Implementation
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
of the U.S. Department of the Interior is issuing final rules to amend
its abandoned mine land regulations, 30 CFR Subchapter R implementing
amendments made to Title IV of the Surface Mining Control and
Reclamation Act (SMCRA) of 1977, by the Omnibus Budget Reconciliation
Act of 1990 (November 5, 1990) (which included the Abandoned Mine
Reclamation Act of 1990, as amended), and by the Energy Policy Act of
1992 (October 24, 1992).
EFFECTIVE DATE: June 30, 1994.
FOR FURTHER INFORMATION CONTACT: Norman J. Hess, Office of Surface
Mining Reclamation and Enforcement, U.S. Department of the Interior,
1951 Constitution Avenue, NW., Washington, DC 20240; Telephone: 202-
208-2949.
SUPPLEMENTARY INFORMATION:
I. Background
II. Organization
III. Final Rules and Disposition of Comments
IV. Procedural Matters
I. Background
A. Summary of the Abandoned Mine Land Program--Public Law 95-87
The Abandoned Mine Land (AML) Reclamation Program was established
by SMCRA, Public Law 95-87, 30 U.S.C. 1201 et seq., in response to
concern over extensive environmental damage caused by past coal mining
activities. In effect, the Abandoned Mine Reclamation Fund (Fund) and
the program it supports is the coal industry's equivalent to the
``Superfund'' administered by the Environmental Protection Agency to
address hazardous waste discharges.
As originally enacted, only areas abandoned prior to the date of
enactment of SMCRA, where there is no continuing reclamation
responsibility by any person under State or Federal law, were eligible
for reclamation under Title IV. Funding of reclamation projects is
subject to a priority schedule. For example, ``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. ``Priority 3'' projects, on the other hand,
concern environmental problems associated with past coal mining
practices that do not necessarily constitute a public health or safety
threat.
The Fund, administered by the Secretary of the Interior through
OSM, is financed by a reclamation fee assessed on every ton of mined
coal at the rate of 35 cents per ton of surface mined coal, 15 cents
per ton of underground mined coal and 10 cents per ton for lignite.
Expenditures from the Fund are subject to appropriation by Congress.
The authority to collect the reclamation fee was due to expire on
August 3, 1992, 15 years after the date of enactment of SMCRA.
The Fund is divided into the State/Tribal and Federal shares with
each State or Indian tribe under a federally approved reclamation
program (generally referred to as ``program'' or ``primacy'' States)
entitled to 50 percent of the reclamation fees collected from coal
operations within the State or Indian lands. Annually, these States/
Indian tribes receive reclamation project construction grants and
administrative grants from their share of the Fund. States are also
authorized to use up to $3 million of their State share funds to
establish State coal mine subsidence insurance programs, and deposit
ten percent of their annual grants into special interest-bearing State
trust accounts for use after August 3, 1992, to carry out reclamation
activities.
The Federal share of the Fund is allocated among a number of
Federal programs such as emergency projects (involving sudden and life-
threatening situations which demand immediate attention), high-priority
reclamation projects in States and Indian tribes without federally
approved reclamation programs (referred to as ``nonprogram'' States),
the Rural Abandoned Mine Program (RAMP) administered by the Secretary
of Agriculture through the Soil Conservation Service (SCS), and the
Small Operators Assistance Program (SOAP) which provides financial
assistance to coal operators who produce less than 100,000 tons per
year to help defray certain costs associated with the surface coal
mining permitting process. Remaining funds are distributed to program
States under an allocation formula. At present, 23 States and three
Indian tribes have OSM-approved abandoned mine reclamation programs.
Noncoal abandoned mine reclamation projects can be undertaken in
only two instances. Program States and Indian tribes can utilize State
or Tribal share monies to reclaim an abandoned noncoal mine site if the
request is made by the State governor or Tribal head and the project
represents a public health and safety hazard. Moreover, once a program
State or Indian tribe certifies it has completed the reclamation of all
eligible abandoned coal mine projects, it can then use the full amount
of its State or Tribal share for abandoned noncoal mine land
reclamation projects.
B. AML Regulations
On October 25, 1978, OSM published final regulations implementing
an abandoned mine land reclamation program incorporating the provisions
of Title IV of the Act. The regulations establish procedures and
requirements for the preparation and implementation of State and Indian
reclamation programs, consisting of reclamation plans, submission of
annual projects, and applications for annual grants. Additional parts
of this subchapter include provisions for Federal, State, and Indian
Abandoned Mine Reclamation Funds, general reclamation objectives,
rights-of-entry, liens, emergency reclamation acquisitions, disposition
of lands and waters, reclamation on private lands, and Indian
reclamation programs.
Regulations relating to the amount and collection of fees were
promulgated in 30 CFR part 837 on December 31, 1977 (42 FR 62713). This
part has since been redesignated as part 870.
On June 30, 1982, OSM published revisions to its abandoned mine
land regulations in response to the Administration's request for
regulatory review. These revised rules concerned the establishment and
administration of the Abandoned Mine Land Reclamation Program by the
States, Indian tribes, and Federal Government, as required by SMCRA.
For more information regarding the exact nature of these revisions
refer to 47 FR 28574-28604 (June 30, 1982).
C. Accomplishments of the Abandoned Mine Land Reclamation Program
AML Fee Collections
From the beginning of the program through the Fiscal Year 1992,
reclamation fee collections into the Abandoned Mine Land Reclamation
Fund amounted to approximately $3.2 billion. The Fund also received
donations, user charges, and other recovered amounts such as late-
payment fines.
AML Emergency Program
Since the beginning of the program, OSM has encouraged States to
take over emergency project responsibility. Beginning in 1983, Arkansas
and Montana assumed emergency project responsibility, followed by
Illinois in 1984. During 1988-89, Kansas, Virginia, and West Virginia
took over responsibility for their emergency projects, and Alabama
assumed responsibility in 1990. In 1992, Ohio and Alaska assumed
responsibility. In 1989, OSM established a new emergency program policy
that provided Federal share funds, in addition to the formula-based
allocation, to States with emergency programs. Since 1988, it has been
OSM policy to stabilize the emergency portion of AML problems
permanently, and then to refer any remaining work at the site to the
State for consideration under its regular AML reclamation program. In
1992, OSM declared 179 new emergency projects, while States with
emergency programs initiated 110.
State and Tribal AML Programs
Beginning with Texas in 1980, OSM has approved State reclamation
programs so that currently all primacy States except Mississippi have
approved AML programs. During 1988 the Navajo and Hopi Tribe programs
were approved, and in 1989 the Crow Tribe received approval for its
program. States and the Indian tribes received grants totaling
$143,541,172 in 1993. Since 1981, when the States began receiving AML
administrative grants to operate their programs and construction grants
to complete reclamation projects, through 1993, they have received over
$1.9 billion from the Fund.
Minimum Programs
The minimum-level AML program was established by Congress in 1988
to assure funding for existing high-priority projects in States where
the annual State share allocation is too small for the State to
administer a program and initiate reclamation. Eleven States and Indian
tribes (Alaska, Arkansas, Iowa, Kansas, Maryland, Missouri, New Mexico,
North Dakota, Oklahoma, Utah, and the Crow Tribe) were eligible for
minimum-level program funding during 1993 and received such grants
during the year. Authorized funding of the minimum-level program was up
to $2,000,000 per eligible State/Indian tribe for 1993. The minimum-
program States/Indian tribes received $14,669,719 of Federal share
money in 1993, to bring these States to the minimum program level.
D. Abandoned Mine Reclamation Act (AMRA) of 1990
Since 1977, when the AML Fund was established, many of the scars
left from past mining practices have been reclaimed. Thousands of acres
have been contoured, revegetated and brought back to productive uses.
Despite such accomplishments, the inventory of unreclaimed high
priority public health and safety problems is still significantly high.
All such problems would not have been addressed with AML Funds
collected through 1992, the original expiration date for fee
collection.
In light of this continuing need to address high priority coal
problems, Congressman Rahall introduced a bill, H.R. 2095, in the 101st
Congress to extend the AML fee and adjust the allocation of AML Funds.
A detailed examination of this bill, as amended, can be found in H.R.
Report 294, 101st Congress, 1st Session (October 18, 1989). H.R. 2095,
as amended, was passed by the House of Representatives on October 23,
1989.
On October 16, 1990, the House again passed H.R. 2095 as part of
H.R. 5835, the Omnibus Budget Reconciliation Act of 1990. In conference
with the Senate, the text of H.R. 2095 was retained except for six
modifications and one addition. They are as follows: First, the
authority to collect reclamation fees was extended through September
30, 1995, rather than the year 2007. Second, a provision that provided
for modified reclamation fees after 1992 in States which have certified
the completion of all abandoned coal mine projects was dropped. Third,
provisions that would have expanded the scope of the emergency program
were deleted. Fourth, while the House bill limited the objectives of
the Fund to the first three priorities listed in current law, the
amendments maintain the current law list of project priorities. Fifth,
the requirement that the Secretary promulgate environmental standards
for reclamation projects was deleted. Sixth, the bill's authorization
of a new abandoned minerals and mineral materials mine reclamation fund
was dropped. Finally, an amendment relating to certain projects in
certified States was adopted.
On November 5, 1990, the President signed into law the Omnibus
Budget Reconciliation Act of 1990, Public Law 101-508, which included
the Abandoned Mine Reclamation Act of 1990, as amended. Besides
extending the authority to collect reclamation fees, the amendments to
Title IV contain several other significant provisions as follows:
The amendments concentrate a greater amount of resources toward
combating the highest priority abandoned coal mine reclamation
projects. This goal is accomplished by allocating forty percent of the
Federal share of funds to program States and Indian tribes until they
complete all of their priority 1 and 2 abandoned coal mine reclamation
projects.
The new provisions also provide additional resources to combat
abandoned coal mine hazards by enabling interest to accrue to amounts
in the AML Fund and by strengthening reclamation fee collection and
auditing authority.
The legislation also recognizes the severe hazards to public health
and safety caused by water supplies contaminated by past mining
practices.
The new amendments allow States and Indian tribes to establish
comprehensive acid mine drainage programs to combat the devastating
effects on land, water and quality of life in areas affected by acid
mine drainage.
The new provisions allow States and Indian tribes to address high
priority coal sites abandoned after enactment of the 1977 Act. Sites
which were abandoned prior to a State receiving primacy pursuant to
Title V of SMCRA, or which remain unreclaimed due to the insolvency of
a surety company, can now be addressed with Title IV funds.
The new legislation provides for a specific allocation of collected
fees from which funds may be transferred annually to the Department of
Agriculture to administer RAMP under Section 406 of SMCRA.
The new legislation expands the rights of States and Indian tribes
which have certified the completion of all known coal problems to
utilize State/Indian tribe share funds for noncoal reclamation
purposes, including the protection, repair, replacement, construction,
or enhancement of public facilities damaged by past mining practices or
which exist in communities adversely impacted by present mining.
The new legislation also provides that mineral owners and
purchasers be reported to OSM each quarter with the filing of the Form
OSM-1.
Finally, the new legislation raised the annual coal production
limit from 100,000 to 300,000 tons for eligibility under the Small
Operator Assistance Program authorized at Section 507(c).
E. Proposed Rules
OSM published proposed rules implementing the 1990 amendments to
Title IV and Title V of SMCRA and requested comments from the public.
In addition, other changes were proposed for part 795, Small Operator
Assistance, based on statutory authority existing under SMCRA. 56 FR
57376-57401 (November 8, 1991). During the comment period on the
proposed rules, OSM received comments through three public hearings as
well as written comments from a variety of sources.
Pursuant to Executive Order 12866, every Federal agency is required
within applicable statutory limits to choose regulatory goals that
maximize benefits to society and to select the most effective means to
achieve these goals. To this end OSM has met with and received comments
and recommendations from the representatives of coal mining States/
Indian tribes.
All comments received during the comment period were considered in
this rulemaking process, and all substantive comments received are
addressed in the following preamble. All comments received, as well as
summaries of meetings held and the record of the public hearings, are
available for inspection in the OSM Administrative Record, room 660,
800 N. Capitol Street, NW., Washington, DC.
F. The Energy Policy Act of 1992
On October 24, 1992 the President signed into law the Energy Policy
Act of 1992, Public Law 102-486. Included in this law were several
amendments to the Abandoned Mine Reclamation Program under Title IV of
SMCRA and to the Small Operator Assistance Program established pursuant
to Section 507(c) of SMCRA. The legislative changes to the AML program
include: an extension of the AML reclamation fee; the transfer of AML
funds to the United Mine Workers of America Combined Benefit Fund; a
reallocation of interest earned by the AML Fund; the deletion of the
reclamation priority regarding AML funded coal research; the extension
of reclamation eligibility for AML water problems created after August
3, 1977; new mine fire control procedures; and the modification of AML
eligibility criteria for sites affected by remaining operations.
The Energy Policy Act of 1992, Public Law 102-486, also amended the
Small Operator Assistance Program (SOAP) authorized at Section 507(c)
of SMCRA. The changes to the SOAP at Section 2513 of the Energy Policy
Act fall into two areas that will be covered in this rulemaking. First,
enhancements have been added to the basic technical services to provide
a more complete permitting package. These enhancements include:
Engineering analyses and designs necessary for the determination of
probable hydrologic consequences; cross-section maps related to the
permitting requirements of SMCRA; collection of archaeological and
historical information required by SMCRA and regulatory authorities and
development of associated plans; collection of site-specific resource
information and production of protection and enhancement plans for fish
and wildlife habitats and other environmental values required by the
regulatory authority; and pre-blast surveys required by SMCRA. Geologic
drilling for collection of samples associated with the statement of
results of test borings and core samplings is also authorized by the
Energy Policy Act.
Second, This rulemaking also includes another SOAP provision from
the Energy Policy Act that deals with reimbursement of costs. A coal
operator who has received assistance must reimburse the regulatory
authority if the operator's actual and attributed annual production of
coal for all locations exceeds 300,000 tons during the 12 months
immediately following the date on which the operator is issued the
surface coal mining and reclamation permit.
Except for provisions dealing with mine fire control procedures and
the training of eligible small operators concerning the preparation of
permit applications (which will be the subject of separate
rulemakings), OSM has included in these final rules the provisions made
by the Energy Policy Act, as outlined above for the Small Operators
Assistance Program and for the Abandoned Mine Reclamation Program. Such
changes are mandated by statute and do not require additional
implementing provisions or conditions. Accordingly, OSM is adopting
these provisions, as enacted, without interpretation or the addition of
any new requirements. Notice and comment pursuant to the Administrative
Procedure Act, 5 U.S.C. 553 is not required. All amendments made by the
Energy Policy Act of 1992 that are adopted by these final rules are
specifically explained in more detail in Part III--Final Rules and
Disposition of Comments.
II. Organization
The regulatory revisions are intended to implement the requirements
of the Act consistent with the purposes stated in Section 102(h), its
legislative history, and the Secretary's commitment to avoid excessive
and burdensome rules. The material concerning the Abandoned Mine Land
Program is organized into parts which comprise Subchapter R. The
material regarding the Small Operator Assistance Program (SOAP) is
found in Subchapter H. At the end of each part, comments received from
interested parties are addressed. It should also be noted that the term
``allocated'' as used in this preamble refers to the earmarking of
funds for a specific purpose. This administrative identification in OSM
records of monies in the Fund for a specific purpose does not mean that
such monies will be appropriated in a specific appropriation or will be
available for use in the year in which they were allocated.
In response to comments from Indian tribes, OSM has inserted
throughout the regulations references to Indian tribes when it uses the
word ``State''. Section 405(k) of SMCRA specifically provides that an
Indian tribe should be considered as a ``State'' for purposes of Title
IV. OSM has also made one further adjustment for Indian tribes.
Regarding the reclamation of post-SMCRA sites pursuant to Section
402(g)(4)(E) of SMCRA, the new amendments reference the date in which
the Secretary approved a State program pursuant to Section 503. Indian
tribes, however, do not have approved regulatory programs. To rectify
this problem, OSM has used September 28, 1984, as the applicable date
for Indian tribes. This date was chosen because it is the date that the
permanent Federal regulatory program on Indian lands took effect.
III. Final Rules and Disposition of Comments
Part 795--Permanent Regulatory Program--Small Operator Assistance
Program
General
The initial authorization for the SOAP at Section 507(c) of SMCRA
provided certain technical permitting services for hydrology and
overburden and geology for operators annually producing 100,000 tons or
less of coal from all locations. These technical services are directly
linked to the permitting requirements associated with the determination
of probably hydrologic consequences (PHC) and the statement of results
of test borings.
The Abandoned Mine Land Act of 1990 amended Section 507(c) by
raising the annual coal production cap from 100,000 to 300,000 tons at
all locations for eligibility for the technical permitting services
provided under the program.
The Energy Policy Act of 1992, Public Law 102-486, further amended
Section 507(c) by adding enhancements to the program's basic services
in order to provide a more complete permitting package. These
enhancements include: Engineering analyses and designs necessary for
the PHC; cross-section maps required by the permitting provisions of
SMCRA; collection of archaeological and historical information;
collection of site-specific resource information and production of
protection and enhancement plans for fish and wildlife habitat and
other environmental values; and pre-blast surveys. Furthermore,
geologic drilling for the collection of samples associated with the
requirements for the statement of the results of test borings is
authorized. The Energy Policy Act also reduced the operator's liability
period for reimbursement of costs from up to five years or the length
of the permit, whichever is shorter, as specified in OSM regulations,
to 12 months starting with the date the operator is issued the permit.
Discussion
Section 795.3 Definitions
The definition of ``qualified laboratory'' is being amended by
adding ``or other services as specified at Sec. 795.9.'' This will
ensure that qualified laboratories provide all technical services
authorized for the SOAP, i.e., the new technical services mandated by
the Energy Policy Act, as well as the basic hydrologic and geologic
services.
Section 795.4 Information Collection
Section 795.4 contains a list of the information collection
requirements contained in part 795 and the Office of Management and
Budget (OMB) clearance number. The proposed revision updates the data
contained in this section by including the estimated reporting burden
per respondent for complying with the information collection
requirements. The revision also provides the OSM and OMB addresses
where comments regarding the information collection requirements may be
sent.
No comments were received on this section which is therefore
adopted as proposed.
Section 795.6 Eligibility for Assistance
In paragraph 795.6(a)(2), OSM proposed revising the production
level of 100,000 tons to 300,000 tons with respect to operator
eligibility under the SOAP program. This change is nondiscretionary and
has been mandated by the Abandoned Mine Land Reclamation Act of 1990.
OSM wishes to emphasize that past production will be used as the
standard for evaluating whether an operator's probable total attributed
annual production from all locations is reasonably expected to be
within the 300,000 ton limit for eligibility under the SOAP. This
approach will reduce the potential for fraud and abuse by eliminating
large independent operators who might otherwise qualify under the
reduced liability period of paragraph (a)(2).
No comments were received on this paragraph.
Regarding paragraphs 795.6(a)(2)(i) and (a)(2)(ii), OSM proposed
changing the five percent to ten percent with respect to the baseline
above which ownership will play a role in determining ``attributed coal
production.'' The basis for the ten percent baseline is Section
507(b)(4) and regulations for determining ownership and control, as
well as permit information requirements promulgated thereunder. The
change would make SOAP eligibility provisions for ownership and control
consistent with all other similar requirements in the permanent program
rules.
One commenter stated that the proposal to change five percent to
ten percent with respect to the baseline above which ownership would
play a role in determining attributed coal production is logical and
necessary to have SOAP consistent with the normal permitting
requirements of ownership and control.
Another commenter, however, disagreed stating that the change from
five to ten percent for the purposes of attributing coal production
mistakenly links the percentage of ownership to the other provisions of
the Act where ownership is relevant only for permit-blocking and other
enforcement purposes. The commenter noted that existing part 795
already contains self-limiting language and believes that threshold for
attributed production should be set low so that assistance through the
SOAP is provided to those most in need. The commenter offered that the
Security and Exchange Commission (SEC) considers five percent ownership
significant for reporting purposes.
OSM disagrees with the dissenting comment. SOAP provides permitting
services and like all permitting requirements is authorized under
Section 507 of SMCRA. Furthermore, eligibility for the SOAP is tied to
eligibility for a permit at existing Sec. 795.6(a)(3) as explained at
48 FR 2268, January 18, 1983. OSM is unaware of any significance or
benefits to be gained by linking the percentage of attributed
production to SEC reporting requirements and the commenter provided
none. For these reasons, attributed production in the final rule will
be tied to the ten percent ownership as proposed and thus be consistent
with related permitting requirements.
Section 795.9 Program Services and Data Requirements
Paragraph (a) contains a general description of the basic technical
services available under the SOAP and references paragraph (b). The
language ``and provide other services'' is being added to reference the
list of enhancements added to paragraph (b) by the Energy Policy Act of
1992.
Paragraph (b) lists the specific technical services authorized for
the SOAP. Paragraph (b)(1) authorizes the determination of probable
hydrologic consequences. The phrase ``including the engineering
analyses and designs necessary for the determination'' is being added
based on the similar provision in the Energy Policy Act.
Under Sec. 795.9(b)(2), OSM proposed adding ``Drilling and'' at the
beginning of Sec. 795.9(b)(2). The objective is to clarify, consistent
with Section 507(c) of the Act, that drilling where it is needed to
provide the rock samples for overburden analysis is an authorized
service under the program. OSM believes that to link these services is
both logically and technically sound. Drilling of ground observation
wells is authorized currently on a case-by-case basis. To coordinate
any drilling with respect to serving needs for both rock samples and
ground water monitoring for baseline data would integrate several
important technical components of SOAP assistance and help to create a
sounder environmental analysis. It would also have the added benefit of
shortening the time frame for completion of technical studies.
OSM wishes to emphasize that drilling would be used only in
situations where adequate samples cannot be obtained from other sources
such as existing cores or nearby freshly exposed highwalls.
Furthermore, drilling is in no way intended to be explorative in
nature. Exploration activities are the responsibility of the operator
and the program administrator must ensure that the information on coal
depth, thickness, and reserves required under existing Sec. 795.7 is
reasonably accurate before authorizing drilling.
In the proposal, the phrase ``drilling and'' was inadvertently
placed in the middle of the rule instead of at the beginning. The
objective of the proposal as discussed in the preamble at 56 FR 53379,
November 8, 1991, would authorize drilling under the SOAP.
Two comments were received on this proposal and both were
supportive. One of the commenters pointed out the editorial error
discussed above and recommended that section 795.9(b)(2) be reworded,
as done in this final rule, to reflect that drilling is being added as
an authorized SOAP service. The other commenter noted that adding the
words ``Drilling and'' at the beginning of this paragraph to allow for
the payment of geologic drilling services is a long sought change and
totally supported.
This paragraph is being adopted as proposed with the exception of
the editorial changes highlighted earlier.
Paragraphs (b)(3) through (b)(6) are being added based on specific
provisions contained in the Energy Policy Act.
Statutory references to SMCRA contained in the Energy Policy Act
for these provisions have been changed to the corresponding permanent
program regulations.
Paragraph (b)(3) authorizes cross-section maps and plans as
required by 30 CFR 779.25 and 783.25 of the permanent program
regulations.
Paragraph (b)(4) authorizes the collection of archaeological and
historical information and related plans required by 30 CFR 779.12(b),
780.31, 783.12(b) and 784.17 of the permanent program regulations, as
well as other information required by the regulatory authority.
Paragraph (b)(5) authorizes pre-blast surveys required by 30 CFR
780.13 of the permanent program regulations.
Paragraph (b)(6) authorizes the collection of site-specific
resources information and production of protection and enhancement
plans for fish and wildlife habitats required by 30 CFR 780.16 and
784.21 of the permanent program regulations and information and plans
for any other environmental values required by the regulatory authority
under SMCRA.
Section 795.12 Applicant Liability
Paragraph (a) sets forth an introduction for the liability factors.
An editorial change is being made by substituting the phrase ``services
rendered'' for the existing phrase ``laboratory services performed'' to
be consistent with similar language associated with the Energy Policy
Act codified in paragraph (a)(2) below.
Paragraph (a)(2) deals with the liability period during which the
operator must reimburse the regulatory authority if the operator's
production exceeds the 300,000 annual ton limit. Paragraph (a)(2) is
being revised by substituting the following language from the Energy
Policy Act for the current requirement which references a liability
period of five years or the length of the permit, whichever is shorter:
``A coal operator who has received assistance pursuant to Sec. 795.9
shall reimburse the regulatory authority for the cost of the services
rendered if * * * (2) The program administrator finds that the
operator's actual and attributed annual production of coal for all
locations exceeds 300,000 tons during the 12 months immediately
following the date on which the operator is issued the surface coal
mining and reclamation permit.''
One commenter stated all operators being monitored under a
liability period should be held to the 300,000 ton standard for any
coal produced after October 1, 1991. The commenter believed this option
to be simple, logical and fair and consistent with the intent of
Congress in raising the eligibility standard for new operators to
300,000 effective that date. Another commenter stressed that it made
little sense to be providing SOAP services to a new company mining
300,000 tons while at the same time penalizing a smaller company for
exceeding a 100,000 ton production cap.
OSM agrees with the first comment and believes a dual standard for
liability as proposed, would cause confusion and disenchantment with
the SOAP, contrary to the intent of Congress. The final rule deletes
the phrase ``exceeds coal tonnage governing SOAP eligibility in effect
at the time assistance was approved'' from the proposal and in its
place the final rule will provide for an annual liability limit of
300,000 tons as mandated by AMRA. The 300,000 ton limit will not be
retroactive. Coal production prior to October 1, 1991, must be less
than 100,000 tons to avoid liability and reimbursement under the SOAP.
Section 795.12(a)(3) deals with transferred liability in the event
a permit acquired with SOAP assistance is sold, transferred, or
assigned to another person. OSM proposed removing this section and thus
eliminating liability in cases where SOAP supported permits were sold,
transferred, or assigned to others as a normal business practice.
Notwithstanding this view, OSM believed there to be a potential for
abuse by removing 795.12(a)(3) and specifically sought comments on this
concern or on regulatory criteria that could be used to distinguish
between normal business practices and those practices that could result
in abuse of the SOAP.
Two comments were received. One commenter supported the proposal
and stated that no significant potential for abuse is perceived. The
other commenter opposed the proposal and stated that requirements such
as contained in Sec. 795.12(a)(3) are essential to ensuring that SOAP
funds are not raided through the use of sham entities and further that
SOAP is not mandatory and thus anyone believing transferred liability
to be disruptive need not participate in the SOAP.
Because of the potential for abuse and the fact that no substantive
reasons were provided to balance this concern and no regulatory
criteria were offered to distinguish between normal business practices
and those that could result in abuse of the SOAP, the proposal to
remove Sec. 795.12(a)(3) which deals with transferred liability in the
event a permit acquired with SOAP assistance is sold, transferred, or
assigned to another person, has been rejected. This paragraph is being
updated to reflect the Energy Policy Act provisions by replacing the
phrase ``100,000 ton annual production limit during any consecutive 12-
month period of the remaining term of the permit'' with the new phrase
``300,000 ton production limit during the 12 months immediately
following the date on which the permit was originally issued.''
Part 870--Abandoned Mine Reclamation Fund--Fee Collection and Coal
Production Reporting
General
Title IV of the Surface Mining Control and Reclamation Act of 1977
directed the Secretary of the Interior to collect per-ton reclamation
fees from coal mine operators to support the reclamation and other
activities listed under this Title. OSM developed a reclamation fee
collection program and published rules in the Federal Register to
assist mine operators in meeting their fee obligations, to specify
management activities for fee collection, and to define a range of
compliance activities that include compliance audits, debt collection,
and litigation procedures.
The major components of the fee collection program are the fee
collection system, the fee compliance system, and the litigation
system.
Fee collection system: OSM operates and maintains the Abandoned
Mine Land Fee Collection System (AMLFCS) in Denver, Colorado.
The AMLFCS is an automated system which records and accounts for:
(1) Collections and deposits of reclamation fees into the Federal
depository, (2) fee payments and delinquencies, and (3) identification
of collections for appropriation and use by States and Indian tribes
under OSM approved reclamation programs.
Fee compliance system: Duly authorized officers, employees, or
representatives of the Secretary are located in the coal producing
regions to ensure that fees are collected through appropriate
investigations and audits.
Litigation system: The Associate Solicitor, Division of Surface
Mining, in concert with the Department of Justice (Justice), is
responsible for litigation associated with the collection of delinquent
fees. The Division initiates enforcement action through Justice to
collect delinquent fees and provides legal assistance to OSM on fee-
related issues.
On December 13, 1977, OSM published final rules as part 837 (42 FR
62713) setting forth procedures for payment of reclamation fees and
recordkeeping requirements. On May 15, 1978, OSM published an amendment
to these rules (43 FR 20793) to establish the interest rate on late
payments. These rules were later renumbered in the Code of Federal
Regulations as part 870.
Discussion
Section 870.5 Definitions
OSM has amended the definitions in section 870.5 for ``eligible
lands and water,'' and ``left or abandoned in either an unreclaimed or
inadequately reclaimed condition,'' and added new definitions for
``mineral owner'' and ``qualified hydrologic unit.'' The new
definitions update these terms so that they are consistent with the
amendments made by the Abandoned Mine Land Act of 1990, Public Law 101-
508 (November 5, 1990) and the Energy Policy Act of 1992, Public Law
102-486 (October 24, 1992). Although, due to oversight, most of these
definitions were not presented in the proposed rules published November
8, 1991 (56 FR 57376-57401), OSM is publishing them in the final rule.
These definitions merely reflect the eligibility criteria already
presented in the proposed rule. OSM therefore believes that it has
received adequate comment on the eligibility criteria. In addition, the
changes to the definitions reflect the mandatory changes to eligibility
as set forth in the 1990 and 1992 amendments to Title IV of SMCRA. The
definitions now reflect the additional eligibility for lands adversely
affected by mining between August 3, 1977 and November 5, 1990; for
noncoal lands after certification of the reclamation of all known coal
problems; for water projects; and finally for lands affected by
qualifying remaining operations.
Section 870.10 Information Collection
OSM has revised section 870.10 which contains a list of the
information collection requirements contained in part 870 and the OMB
clearance numbers. The revision updates the data contained in the
section by including the estimated reporting burden per respondent for
complying with the information collection requirements. The revision
also provides the OSM and OMB addresses where comments regarding the
information collection requirements may be sent.
Section 870.12 Reclamation Fee
New section 870.12(d) has been added to specify the new termination
date for the payment of reclamation fees. As originally passed by
Congress in 1977, the reclamation fee obligation was for a 15-year
period starting in the last quarter of 1977 and extending to September
30, 1992. Congress extended this date 3 years through the enactment of
Public Law 101-508. The reclamation fee obligation was applicable to
coal produced through September 30, 1995. As noted in H.R. Report No.
294, 101st Congress, 1st Session 17-18 (1989), the extension of the
reclamation fee was based in large measure on the continuing need to
address high priority coal problems. Though the AML program over the
last 13 years has reclaimed a significant number of acres of abandoned
lands, Congress found that the ``inventory of unreclaimed high priority
coal mine sites was still overwhelming''. Id. at 17.
In 1992 Congress once again took up the issue of an AML fee
extension as part of the Energy Policy Act of 1992. H.R. Report No.
474, accompanying H.R. 776, recommended that the AML fee be extended
until 2010. Of significance to the House Committee was an OSM estimate
that when the existing authority to collect the reclamation fee expires
in 1995, approximately $1.6 billion worth of high priority health and
safety threatening sites would remain unreclaimed. In order to finance
the reclamation of these remaining sites, the Committee recommended
extending the AML fee until 2010 (H.R. Rept. No. 474, 102d Cong., 2d
Sess. 90 (May 5, 1992)). In conference this date was revised to
September 30, 2004. The amendment to 30 CFR 870.12 would implement this
new fee extension date.
One commenter stated that based on the estimated costs for
reclaiming all AML sites under its jurisdiction, OSM would not complete
this task under current funding levels until 2035 AD. Thus, OSM is
urged to consider extending the AML fee.
OSM does not accept this comment. Extensions of the fee collection
authority are a matter to be addressed by legislation and are
considered to be beyond the scope of this rulemaking.
Section 870.15 Reclamation Fee Payment
OSM has amended Form OSM-1 to collect additional coal production
and ownership information. Public Law 101-508 requires that additional
information be reported in the quarterly report filed by operators;
specific requirements include identification of the permittee, the
permit number, the Mine Safety and Health Act (MSHA) number, the owner
of the coal, the preparation plant, tipple, or loading point for the
coal, and the purchaser of the coal.
In OSM's proposed rule the Agency sought comments regarding the
detail to which this information must be collected so as to ensure that
information that is to be collected is useful. Also, as a means of
achieving Congress' intent of minimizing the reporting burden, OSM
noted its consideration of the establishment of thresholds (percentage
of coal purchased, or percent of mineral ownership) for purposes of
determining who qualifies as a reportable mineral owner and reportable
purchaser, with the requirement that each Form OSM-1, when the
thresholds are not met, identify at least the largest mineral owner and
purchaser.
Information contained in the quarterly reports, including
information updates would be maintained in a computerized data base by
OSM. In enacting these new reporting requirements, Congress believed
that this information would be necessary for the agency to determine
the identity of entities from whom to seek payment in the event of
under-payment or non-payment of the reclamation fees. H.R. Report. No.
294, 101st Congress, 1st Session 26 (1989).
OSM has also made a minor editorial change to section 870.15(C)
consistent with its proposed rule. This modification changes the title
of the current Form OSM-1 from ``Coal Production and Reclamation Fee
Report'' to ``Coal Sales and Reclamation Fee Report.'' This is intended
to more closely reflect the rules under section 870.15(b) which require
operators to report tonnage of coal sold, used, or transferred as
opposed to coal produced.
The SMCRA amendments require that mine operators report changes in
mineral ownership, purchasers, tipples, preparation plants, loading
points, and other information required to be reported as part of the
quarterly Form OSM-1 process. Congress stated it did not expect these
new requirements to place a significant additional reporting burden on
operators.
The revised Form OSM-1 incorporates the new information required by
the amendments. The instructions accompanying the Form OSM-1 set forth
the new data reporting requirements, including mineral owner,
purchaser, tipples, loading points, etc. As part of OSM's analysis of
the new amendments for this part, the Agency conducted a study of
owner/purchaser profiles in large, medium, and small coal producing
companies to develop an estimate of the nature and extent of the owner/
purchaser information which OSM might collect (and require operators to
report) as a result of the 1990 AML amendments.
OSM analyzed data from eight coal companies to determine how the
amendments could impact their administrative reporting burden. The
Agency gathered ownership and sales statistics for two large companies,
four medium companies and two small companies in order to evaluate the
potential impact of the SMCRA amendments. While the study was not based
on statistical selection criteria, the data fairly represents the kind
of owner/purchaser relationships that OSM would expect to encounter
across the industry.
The study supports the need to establish reasonable interpretations
of the terms ``owner'' and ``purchaser'' in order that the data
furnished by operators to OSM is both manageable and useful. The eight
companies examined represent a wide spectrum of purchaser and owner
relationships. For example, during 1990, one large company in Kentucky
operated its own mines, bought coal from contract miners, brokered coal
representing several purchasers, and sold coal to 90 individual
purchasers. Four purchasers (major public utilities) accounted for
about 90 percent of its sales. The company reported 2,100,000 tons of
coal sales during 1990.
In contrast, a small Colorado coal company operated a single mine.
Except for one major buyer, the company sold coal on a cash basis to as
many as 652 customers during a single quarter, each purchasing one ton
or less. Annual sales amounted to 24,500 tons.
Another coal company located in Ohio operates eight company mines
and purchases coal from seven contract miners. There are 47 permits
associated with the 8 MSHA-ID's under which the company reports and
pays its quarterly fees. On one permit number which OSM selected for
review, there were three mineral owners registered with the regulatory
authority. Similar profiles exist for other companies selected for
review.
Although OSM's study was limited, the data suggests that thresholds
would assure that the information collected identifies only those
mineral owners and purchasers who are in a position to influence the
coal operations that are reported. This would avoid a proliferation of
reporting and data collection and the associated significant
administrative and cost burden that would otherwise result.
On the basis of this study and other information, OSM proposed the
following threshold definition of ``owners'' and ``purchasers'' for
Form OSM-1.
The name and address of any person or entity who, in a given
quarter, is the owner of ( ) percent or more of the mineral estate
for a given permit, and any business entity or individual who, in a
given quarter, purchases ( ) percent or more of the production from
a given permit shall be reported to OSM on a quarterly basis. In the
event that no single mineral owner or purchaser meets the ( )
percent rule, then the largest single mineral owner and purchaser
shall be reported.
OSM suggested that the threshold value of 10 percent be
incorporated into the above definition, and accordingly requested
comments on this or other threshold values. Without thresholds, OSM
believed that data reporting and collection would proliferate without
significant benefit. However, by establishing reporting limits, OSM
would not only minimize its own administrative burden and that of the
operator, but it would assure the usefulness of the data by identifying
only those individuals and entities who, by the significance of their
ownership and/or purchasing power, may influence coal mining
operations.
Three commenters provided detailed comments regarding their
opposition to the reporting requirements in 30 CFR 870.15, particularly
the requirements relating to the submission of information on persons
who own 10 percent or more of the mineral or who purchase 10 percent or
more of the production. The commenters note that the current proposal
would amend the regulations at 30 CFR 870.15 to require operators to
report tonnage on a revised Form OSM-1. One of these commenters refers
to the preamble wherein OSM states that the legislation reauthorizing
the AML fee expanded the reporting requirements to include the
identification of the permittee, the permit number, any operator in
addition to the permittee, the owner of the coal, the preparation
plant, tipple, or loading point for the coal and the purchaser of the
coal. 30 U.S.C. 1232(c), 56 FR 57379, 57396.
OSM's own study, however, reveals that the reporting of all
ownership and purchaser data would impose costly reporting burdens on
companies with multiple operations and/or purchasers. Requiring the
operator to report all ownership and purchaser information on a
quarterly basis would be a wasteful and costly exercise. Thus, OSM set
the threshold value at 10 percent.
The commenters agree that the results of the OSM study demonstrate
the need to establish reasonable interpretations of the terms ``owner''
and ``purchaser'' in order that ``the data furnished by operators to
OSM is both manageable and useful.'' 56 FR 57380 (col. 1). They further
agree that establishing limits on such reporting data would ``minimize
[OSM's] own reporting burden and that of the operator.''
The commenters disagreed, however, with several aspects of the
proposal. First, they disagree with the establishment of an arbitrary
10 percent threshold (or any numerical threshold) for reporting mineral
purchases and ownership. Instead, they suggest that OSM simply require
the operator to report the single largest mineral owner and purchaser.
In many cases, they assert, the operator/lessee will be the single
largest mineral owner, often leasing reserves from several different
mineral owners prior to submitting a permit application. Requiring the
identification of all lessors will only increase the administrative
burden on the operator and OSM, and will duplicate the existing permit
application information requirements at Section 507(b), 30 U.S.C.
1257(b).
The commenters further state that while the OSM proposal to reduce
the reporting burden is a step in the right direction, there is no
rational basis for establishing a minimum 10 percent threshold for
reporting mineral ownership or coal purchases on Form OSM-1. In fact,
the commenters assert, OSM itself provides no justification in the
preamble for its suggestion that a 10 percent threshold be set. They
argue that, while the ownership and control rules provide that the
ownership of 10 percent of the voting stock of an entity creates a
rebuttable presumption of control over the surface coal mining
operation, 30 CFR 773.5(b)(5), the rules do not establish a similar
presumption for 10 percent mineral owners, nor has OSM cited evidence
demonstrating that such owners/purchasers are responsible for payment
of the fee. Moreover, many operations lease the coal from several
different owners, and are, for all practical purposes, the owners of
the coal. The commenters assert that requiring the additional listing
of all coal owners who lease to any company will only increase the
reporting burden on operators and OSM, without providing any meaningful
information on the person responsible for the fee payment.
The commenters believe that in order to meet the requirements of
Section 402(c) of SMCRA, it should be sufficient for an operator/
lessee, especially one that leases coal from multiple lessors and that
sells to more than one purchaser, to list the single largest purchaser
and mineral owner on Form OSM-1. They argue that requiring coal
operators to list all mineral owners or purchasers would impose a heavy
administrative burden on both the industry and the Secretary, without
any corresponding benefit. In the commenters' view, identifying all of
the coal purchasers or purchasers of 10 percent or more of the coal or
all of mineral owners or owners of 10 percent or more would reveal no
useful information and would subvert the Congressional intent that the
agency collect and computerize the information required by Section
402(c) for the purpose of determining ``what parties are responsible
for payment of the reclamation fees, and * * * the identity of entities
from whom to seek payment in the event of under or non-payment of the
reclamation fees.'' H.R. Rep. No. 101-294, 101st Cong., 1st Session 26
(1990).
The commenters further state that identifying the mineral owners
and purchasers is a costly, time-consuming task. One company that is
among the nation's ``top 10'' coal producers, reported that it took 8
man-days to compete approximately 50 OSM-1 forms, with each form
listing an average number of 3 purchasers. This substantial amount of
time does not include the time it would take to list all mineral
lessors, as the company/lessee has listed itself as the owner of the
coal on each form.
Secondly, these commenters also raised concerns regarding OSM's
revised Form OSM-1 and the agency's proposed 10 percent threshold for
reportable mineral ownership or coal purchaser information. They state
that the proposed rules refer to the revised Form OSM-1 and request
comment on whether the agency should establish a 10 percent threshold
for reportable mineral ownership or coal purchaser information. 30 CFR
870.15. Yet the agency has proceeded to implement the 10 percent
threshold requirement prior to the close of the comment period. The
revised Form OSM-1 currently requires operators to list ``the names and
addresses of any person or entity owning 10 percent or more of the
mineral estate for [the] permit.'' Similarly, a purchaser of coal is
defined as follows:
* * * those persons or entities who purchased 10 percent or more of
the production from a given permit.
See, Instructions for Completing Form OSM-1, Part 3.
The commenters questioned the agency's apparent predisposition to
establish a 10 percent threshold without benefit of public comment on
the issue, pursuant to the Administrative Procedure Act.
Third, a commenter stated that the 10 percent threshold for
reporting mineral ownership is the same definition used in 30 CFR 773.5
in the context of ownership and control (as it pertains to permit
applications). The commenter argued that, although it is conceivable
that an entity who owns the coal may indeed have the authority to
directly or indirectly determine the manner an applicant, operator, or
other entity conducts the coal mining operations, OSM must also realize
that many mineral owners do not exercise ``control'' of the surface
mining operations.
Even more troubling to the commenter is the assertion that the
definition as used on the Form OSM-1 is one for which there is no
rebuttable presumption, particularly if it is the same definition that
OSM uses for ``owned or controlled and owns or controls.''
Another commenter disagreed. This commenter stated that the
establishment of thresholds for mineral owners and purchasers undercuts
the collection of information that may be of significance for both
Title IV purposes, and for supporting the database for ownership and
control under Title V. Particularly in the case of contract mining
situations, the purchaser and mineral owner information becomes of
critical importance.
Typically, the commenter noted, the mineral owner information is
readily available to the reporting entity, since it appears on the mine
lease or other document authorizing coal removal, or is readily
accessed in courthouse records. Establishment of a threshold in this
case is unnecessary. Similarly, direct marketing of small amounts of
coal is unheard of, and the reporting entity can readily access the
information relating to where the coal was marketed or brokered.
Alternatively, the commenter said, if a tonnage or percentage of
sales threshold is to be used, it should be set at a level so as to
exclude de minimis amounts but low enough to ``capture'' all
information that might reflect ownership or control of the disposition
of the coal.
In response to the first general comment, regarding the
appropriateness and practicality of the 10 percent threshold, OSM has
carefully reviewed these concerns but has elected to retain the 10
percent threshold. A strict interpretation of the language of the Act
might require collection of information on all mineral owners and
purchasers. OSM, on the basis of its experience and the study conducted
after this legislation was enacted, however, has determined that a
lesser level of information collection is justified and is consistent
with Congressional intent.
OSM believes that Congress' intent in enacting this language was to
provide information relevant to the collection of ownership and control
data on mining operations. For instance, it must be noted that Congress
specifically required that the information be retained in a
computerized database. Clearly, the best known computerized database
maintained by OSM, both at the time that the AML legislation was
enacted and currently, is the Applicant/Violator System (AVS). The
information provided under Section 402(c) would be relevant to the
identification of ownership or control links pursuant to 30 CFR 773.5.
Such identified owners or controllers might, under certain
circumstances, be responsible for implementing certain requirements
under the Act, such as the payment of AML fees. See 30 CFR 773.5(a)(3)
and 30 773.5(b)(6). See also United States v. Rapoca Energy Co., 613 F.
Supp 1161 (1985).
Application of Section 402(c) to all mineral owners and purchasers
would impose an excessive administrative burden on the agency. If
information on every owner or purchaser, no matter how minor their
interest, were collected and maintained on AVS, AVS would be cluttered
with irrelevant information that would not clearly identify actual
owners or controllers of surface coal mining operations. The net effect
of such extraneous information would be to hinder the effective
implementation and maintenance of AVS. Accordingly, OSM believes that
limiting the collection of information to owners or purchasers with
interest of 10 percent or more fulfills the intent of the legislation
by enabling OSM to identify the most likely owners or controllers of
surface coal mining operations. In substance, the larger percentage
owners or purchasers are more likely to be the actual owners or
controllers of surface coal mining operations.
On the other hand, with respect to the concern that OSM should
require identification of only the single largest owner or purchaser,
OSM believes that this could create a misleading picture of a surface
coal mining operation. For instance, under the theory of this comment,
a surface coal mining operation with a significant number of both
mineral owners and purchasers would only report the single largest
owner and purchaser. The difference between the largest purchaser or
owner and the smallest purchaser or owner could be a de minimis amount.
There is no useful purpose in distinguishing one small percentage owner
or purchaser from another. This in no way would advance OSM's mission
of identifying the true owners or controllers of the site. Further,
under the theory of this comment, a site with only a few owners or
purchasers would report only one of each category under this theory.
Thus, OSM would not have access to information identifying potentially
influential persons who can exercise control over the site.
With respect to the concern about how time-consuming it is to
identify purchasers and mineral owners, OSM recognizes that this task
will require some commitment on the part of the regulated community.
Nevertheless, the task has been imposed by the Congress in its revision
of Section 402(c). OSM has made every attempt to make this a manageable
task by establishing the 10 percent threshold, which should ensure that
no more than 10 owners and 10 purchasers are required for each Form
OSM-1 submission. Furthermore, the commenters should remember that
information on all mineral owners is already a requirement of the
permit application; this information thus should be readily available
for Form OSM-1 compliance.
OSM also understands the commenters' concern regarding the
collection of information prior to promulgation of this rule. This rule
is prospective in its application, and OSM's actions prior to
promulgation were not intended to affect the decisions made in this
rulemaking. However, the relevant provisions of SMCRA contained in
Section 402(c) went into effect on October 1, 1991. As of that date,
OSM was required to collect the information required by the Federal
statute, and did so. In the absence of a reasonable threshold standard
for the information collection, OSM and the AVS would have been
inundated with information which would have included de minimis owners
and purchasers. Such information would have been of limited utility for
purposes of identifying parties responsible for the payment of
reclamation fees and the owners and controllers of surface coal mining
operations. Accordingly, OSM acted to limit the amount of information
collected to assure that useful information was collected in a
manageable manner for storage and use on AVS. To the extent that the
commenter believes that insufficient information was collected prior to
the promulgation of this rule, that issue is beyond the scope of the
current rulemaking, and may be addressed in another forum.
The third issue raised by the commenters concerned the use of
ownership and control concepts in AML reporting requirements. In
substance, the commenters' concern appears to be that OSM has
inappropriately mixed the statutory requirements of Title IV with the
regulatory requirements of Title V. For instance, they note that OSM
has applied the 10 percent threshold of presumed control by
stockholders under 30 CFR 773.5(b) to the reporting of mineral owners
and purchasers under Section 402(c) of SMCRA.
OSM disagrees with the view that ownership and control concepts are
irrelevant to the implementation of Section 402(c) of SMCRA. The
reporting requirements imposed by Congress in the legislation appear to
track the needs of OSM's ownership and control regulation at 30 CFR
773.5(b)(6) which provides a presumption of control of surface coal
mining operations for certain mineral owners. Further, the legislation
contains an explicit reference to OSM's computerized database (i.e.,
AVS), which indicates that the focus of the amended reporting
requirements of Section 402(c) is to assist the ownership and control
review process.
Accordingly, the use of ownership and control concepts, such as a
10 percent threshold, are appropriate in OSM's implementation of
Section 402(c) of SMCRA. Although the 10 percent threshold is not
applied to mineral owners or purchasers under the current ownership and
control rule, application of a 10 percent threshold to such individuals
under Section 402(c) of SMCRA is consistent with Congressional intent,
serves the public interest, and is within the spirit of the ownership
and control rules.
OSM further recognizes that the application of the 10 percent
threshold to purchasers and mineral owners may not identify the
controllers of a surface coal mining operation in every case, or those
otherwise responsible for the payment of AML fees in every case.
Nevertheless, such a threshold for reporting is a good starting point
to enable OSM to identify potential owners or controllers, and
represents an achievable level of reporting and record keeping for both
the agency and the regulated community.
Further, in response to the concern that the use of ownership and
control concepts creates an irrebuttable presumption that the
purchasers or mineral owners control surface coal mining operations,
OSM observes that the disclosure of the purchaser, mineral owner, or
other information pursuant to Section 402(c) would not, in and of
itself, establish a presumption of ownership or control for either
Title IV or Title V purposes. OSM's use of concepts from the ownership
or control rule is undertaken to simplify reporting by the regulated
community and data collection by OSM under section 402(c) in a manner
which OSM believes is consistent with Congressional intent in revising
Section 402(c) and requiring such disclosure.
Besides those comments regarding the 10 percent threshold issue,
other comments were submitted on 30 CFR 870.15, raising issues of
privacy regarding information collected under the revised Form OSM-1
requirements. The commenters state that requiring disclosure of owners
and purchasers raises serious concerns about the potential disclosure
of sensitive and confidential information about coal markets, royalty
rates and utility customers. They argue that release of this
information could prove extremely damaging and that there is no
guarantee in the statute or the proposed rules that such information
shall remain confidential. They indicate that although the information
on owners and controllers of surface coal mining operations is a matter
of public record, the proposed regulations would go well beyond that,
to require operators to list all purchasers and coal owners whose
interests exceed 10 percent of the resources produced. Thus, the
commenters assert, operators should have the right to request
confidentiality of such information, in order to avoid the disclosure
of sensitive information about coal purchasers and markets that might
be used unfairly by competitors. This, they argue, is consistent with
the Freedom of Information Act (FOIA) policy against disclosure of
commercial or financial information deemed privileged or confidential.
5 U.S.C. 552(b)(4). They assert that the identity of all coal
purchasers from a mine is not a matter of public record and should
remain confidential.
OSM permitting regulations allow coal operators to request that
certain data be withheld from public disclosure. 30 CFR 773.13(d)(3).
The commenters believe that OSM should incorporate similar protection
for confidential financial information in the rules governing the
submission of Form OSM-1.
With regard to these comments on privacy, OSM accepts the comments
in part. OSM has concluded that the comments, by themselves, do not
establish a reason to believe that disclosure of this information may
result in competitive harm. However, OSM recognizes commenters'
concerns that they be able to request confidentiality for certain
information submitted under Section 402(c) of SMCRA. In response to
these concerns, OSM has revised Sec. 870.15(b) to allow submitters to
request confidentiality.
Section 870.15(b) includes a provision specifically intended to
afford submitters of information under Section 402(c) with the
opportunity to designate such information as confidential. Following
such opportunity, if a submitter does not designate the information as
confidential, OSM will treat the infornation as subject to disclosure
upon request. Conversely, if a submitter in good faith designates the
information as confidential, OSM will treat the information as subject
to disclosure upon request. Conversely, if a submitter in good faith
designates the information as confidential, OSM will notify the
submitter of any request for that information unless an exception to
the notification requirement applies. Such exceptions appear in the
Department's FOIA regulations at 43 CFR 2.15(d)(4).
For example, under 43 CFR 2.15(d)(4)(iii) OSM would not be required
to notify submitters of Section 402(c) information when the information
is required to be disclosed by statute or regulation. Two sections of
SMCRA, Sections 507(e) and 517(f), require public disclosure of permit
applications and other information on file with regulatory authorities.
30 U.S.C. 1257(e) and 1267(f) (1988). The information required to be
listed in permit applications, in part, is set forth in 30 CFR part
778, Permit Applications--Minimum Requirements for Legal, Financial,
Compliance, and Related Information. Specifically, 30 CFR 778.13(d)
requires permit applicants to list their owners or controllers. Under
30 CFR 773.5(b)(6), ``owners'' or ``controllers'' presumptively include
persons who own or lease coal to be mined by another and who have a
right to receive the coal after mining. Thus, in permit applications
coal operators are required to identify coal purchasers when such
persons own or control surface coal mining operations. As previously
noted, these applications are required to be publicly disclosed under
Sections 507(e) and 517(f) of SMCRA (30 U.S.C. 1257(e) and 1267(f)).
Consequently, to the extent a submitter provides OSM with coal
purchaser information that identifies owners or controllers, the
exception in 43 CFR 2.15(d)(4)(iii) applies, regardless of a
confidentiality designation.
In addition, Congress authorized disclosure of coal purchaser
information to the extent such information is available on OSM's AVS.
Section 402(c), as amended, requires the Secretary of the Interior to
maintain coal production and purchaser information on a computerized
database. 30 U.S.C. 1232(c), as amended by Public Law 101-508 (November
5, 1990). At the time of the 1990 amendments, Congress was aware that
OSM maintained the AVS as the pertinent computerized database for
including such information. In accordance with Section 402(c) as
amended, OSM thus intends to place such information on the AVS.
Congress also was aware, at the time the 1990 AML amendments were
enacted, that it is the function of the AVS database to disclose
ownership and control information: To Federal, State, and local
authorities responsible for investigating and enforcing violations of
SMCRA; to the Internal Revenue Service when assisting OSM in collecting
civil penalties and AML fees; to Congressional offices upon request; to
public interest groups as may be required by court order; to applicants
and permittees pursuant to permit determinations; and to individuals or
entities in response to their requests for permit-related information
about themselves and related entities. See, 52 FR 29570 (1987), amended
53 FR 22575 (1988). Thus, the statutory requirement that Section 402(c)
information be placed in a computerized database that, as its function,
discloses information to various parties, falls squarely within the
exception to notification found in 43 CFR 2.15(d)(4)(iii).
Consequently, to the extent information is available on the AVS, the
exception in 43 CFR 2.15(d)(4)(iii) applies, regardless of a
confidentiality designation.
The commenters are also concerned about the structure of the
revised Form OSM-1. Part 3 provides that the operator list the mineral
owners and purchasers of coal by permit number. For large companies
operating mines under several different permit numbers, tracking the
coal produced by permit number and consumer presents an impossible
burden. Typically an operator delivers the coal produced from its mines
to a preparation plant, where it is blended with coal produced at other
mines operated by the same company and then delivered to the utility
consumer. The companies do not possess the ability to report the
specific amount of coal purchased by a customer from a particular
permit number. The company simply reports the total tonnage produced at
its various mines. While it can identify purchasers of coal, it cannot
link the specific amount purchased to a particular permit number.
For these reasons, the commenters believe that Form OSM-1 should be
further revised to allow the company to report the tonnage produced
from its mines, without having to track that tonnage to a particular
utility purchaser or broker, and that simply reporting the tonnage and
identifying the largest purchaser meets the requirements of SMCRA.
OSM appreciates the commenter's concern, but disagrees with the
commenter's suggested solution. Instead of only identifying one
purchaser, it would be acceptable to report purchasers on a pro rata
basis in situations involving the commingling of coal produced under
several permits and sold to multiple purchasers. For example, if coal
produced from five permitted mines was commingled and sold to three
purchasers, operators would identify each of the three purchasers on
the Form OSM-1 filed for each permit, according to their percentage of
the total coal sold.
In response to these comments OSM has included a definition of
``mineral owner'' in Form OSM-1 and revised Sec. 870.5 to include a
similar definition. ``Mineral owner'' is defined as any person or
entity owning 10 percent or more of the mineral estate for a permit. If
no single mineral owner meets the 10 percent rule, then the largest
single mineral owner shall be considered to be the mineral owner. If
there are several persons who have successively transferred the mineral
rights, OSM is requesting in Form OSM-1, information on the last
owner(s) in the chain prior to the permittee, i.e. the person or
persons who have granted the permittee the right to extract the coal.
If the permittee has obtained the right to mine the coal directly from
the fee simple property owner(s), then those owners should be shown.
Sections 870.16 and 17 Production records and Compliance Authority
Although the regulations in Sec. 870.16 have not been amended, OSM
notes that provisions in Public Law 101-508 have clarified and ratified
the Secretary's authority to conduct compliance audits of coal
operators. Moreover, the provisions would require the Secretary to
share information obtained through audits of coal operators with the
Internal Revenue Service. In addition, the provisions in Sec. 870.17
have been expanded and clarified, utilizing the authority in Sections
201(c) and 413(a) of SMCRA, to cover all persons involved in a coal
transaction, including without limitation, permittees, operators,
brokers, purchasers, and persons operating preparation plants and
tipples.
Section 870.17 currently provides that fee compliance officers have
the authority to examine records of the second party involved in the
sale or transfer of ownership of coal by the operator. The amended
section no longer refers to the terms ``fee compliance officers'' or
``second party,'' and specifies that the Secretary or any duly
authorized officer, employee, or representative of the Secretary would
have access to relevant documents. The final language regarding duly
authorized persons makes this section consistent with the language in
Sec. 870.16.
These revisions are supported by a number of provisions of SMCRA in
addition to Section 402(c). Section 413(a) of SMCRA provides that the
Secretary shall have the power and authority, if not granted otherwise,
to engage in any work and to do all things necessary or expedient,
including the promulgation of rules and regulations, to implement and
administer the provisions of Title IV. Section 201(c) (1) and (2) also
provides authority for these rules.
The legislative authority to conduct audits of coal production and
the payment of fees, including tipples and preparation plants as well
as the authority to have access to relevant documents of any other
person involved in a coal transaction, including purchasers of coal
whether or not the purchase is from one who originally produced the
coal, a secondary seller or an ultimate end user of the coal is a means
to provide reasonable assurance that coal operators are properly
reporting coal produced and subsequently sold, used, or transferred.
This authority is necessary for the Agency to determine the identity of
entities from whom to seek payment in the event of underpayment or
nonpayment of the reclamation fees. The Agency believes that the new
provisions in Section 402(d)(2) of SMCRA reinforce OSM's ongoing audit
activities and do not mandate any specific level of tipple or
preparation plant audit. OSM auditors have always verified the AML fee
payment or non-payment and the accuracy of the tonnage reported. The
legislative amendments confirm OSM's interpretation of its existing
authority as implemented through current regulations.
In enacting these provisions, Congress sought to provide OSM the
authority to verify for accuracy and completeness the representations
made in the quarterly reports. H.R. Report No. 294, 101st Congress, 1st
Session 26 (1989). Moreover, through these amendments Congress provided
that the Secretary report any failure to pay the full amount of the
reclamation fee to the federal agency responsible for ensuring
compliance with provisions of Section 4121 of the Internal Revenue
Code.
Congress believed that this sharing of information would foster
greater compliance under the Black Lung Disability Trust Fund.
Two commenters state that the proposed rules dramatically expand
the powers of OSM to conduct audits of coal sales, transfers and use,
beyond the authority contained in SMCRA. Under the proposed rules at 30
CFR 870.17, OSM would gain access not only to records of the permittee
or the operator of a surface coal mining operation, but also to ``* * *
any person involved in a coal transaction, including without limitation
* * *'' brokers, purchases, persons operating preparation plants and
tipples, and any recipients of royalty payments for the coal.
The commenters oppose the expanded audit requirements that allow
the OSM compliance officers access, without guarantee of
confidentiality, to records of mineral owners, brokers and other
parties to a coal transaction. The commenters assert that matters
involving royalties paid to mineral owners are matters of utmost
secrecy within the industry and their potential disclosure through an
audit to third parties could have substantial anti-competitive impacts.
The commenters believe that under the proposed regulation, OSM
seeks to gain access to the records of mineral owners, as well as
utilities and other end users of the coal, without limitation and
without any showing that the information is needed to identify the
person responsible for payment of the fee or the tonnage produced. In
the commenters' view, such sweeping, limitless authority to conduct
audits of persons whose only involvement with the permittee or operator
is through a coal purchase or royalty agreement exceeds the authority
conferred by Congress in Section 402(d)(2) of SMCRA that only permits
the Secretary to audit the books and records of ``any person who is
subject to the provisions of this Title.'' 30 U.S.C. 1232(d)(2). Title
IV of SMCRA does not apply to mineral owners, coal brokers, or end
users of the product. Thus, the commenters argue, such persons are
``not subject to the provisions of this Title,'' as that term is used
therein. Section 402(a) of SMCRA limits the provisions of Title IV and
the levy on coal production to ``operators of coal mining operations
subject to the provisions of this Act.'' 30 U.S.C. 1232(a). Thus, the
statute only empowers the Secretary to ``conduct audits of any surface
coal mining and reclamation operation, including without limitation,
tipples and preparation plants,'' but goes no further. 30 U.S.C.
1232(d)(2).
The commenters further stated that as defined by SMCRA, the term
``operator'' includes a person ``engaged in coal mining who removes or
intends to remove more than 250 tons of coal from the earth,'' a term
that does not automatically include coal brokers, owners and
particularly end users. 30 U.S.C. 1291(13). According to the
commenters, OSM had offered no explanation of the reasons why the
authority to audit operators is not sufficient to ensure that the
Secretary has access to the documents and other records needed to
determine the accuracy of AML fee reporting.
The commenters stated that OSM also has failed to explain why such
a dramatic expansion of its auditing authority is needed to implement
the changes in the AML program enacted by Congress. The statute clearly
does not command or authorize such a rule, they asserted. OSM itself
admits that the new provisions in Section 402(d)(2) ``do not mandate
any specific level of tipple or preparation plant audit * * * and
merely confirm OSM's interpretation of its existing authority as
implemented through current regulations.'' 56 FR at 57380 (col. 3). If
anything, the commenters said, OSM's preamble explanation demonstrates
that the existing regulatory scheme is adequate and sufficient to
ensure that the agency has reasonable access to books and records
verifying the accuracy of the tonnage reported and/or fees paid. OSM
has pointed to no evidence of under collection or noncollection of AML
fees that necessitates granting it the sweeping powers of audit
virtually every person connected with the coal transaction, regardless
of whether they are in a position to control the operation, nor does
such evidence exist.
The commenters believe that OSM's current regulations provide
sufficient authority to audit the books and records of persons
associated with a coal transaction most likely to be responsible for
the payment of AML fees. Compliance officers possess the authority to
examine the records of: (1) The second party involved in the sale or
transfer of coal by the operator and (2) any party selling coal to the
operator. 30 CFR 870.17. The ability to review the records of the
second party enables the fee compliance officer to review the records
maintained by coal tipple operators and those immediately involved in
the coal sales transaction who might exercise control over the surface
coal mining operation, to determine the person ultimately responsible
for payment of the fee. There is no indication that OSM has ever used
such authority to audit the records of the end user of the coal, nor is
such authority necessary or appropriate, the commenters stated. 47 FR
28579 (June 30, 1982).
According to the commenters, OSM's reliance on its general powers
in Section 413(a) and 201(c) of SMCRA to do all things necessary or
expedient to implement the provisions of SMCRA, including the
promulgation of rules and regulations, provides no independent basis
for this rulemaking. As the Supreme Court has held, an administrative
agency's powers to promulgate regulations is limited to the authority
delegated by Congress. Bowen v. Georgetown University Hospital, 109 S.
Ct. 468, 471 (1988). An ``agency may not bootstrap itself into an area
in which it has no jurisdiction.'' SEC v. Sloan, 436 U.S. 103, 118-119
(1978). Congress limited the agency's authority to audit the records of
the operator of a ``surface coal mining operation,'' the commenters
stated, including tipple and preparation plant operators subject to the
provisions of Title IV of SMCRA, a term that does not include end users
of coal or minerals owners not engaged in coal mining operations. Thus,
in the commenters' view, the general powers to do all things necessary
an expedient to implement the provisions of SMCRA provide no basis for
the current rulemaking proposal, where no authority to promulgate such
rules exists in the first place.
OSM does not accept these comments. Section 402(d)(2) states, in
part, that ``The Secretary shall conduct such audits * * * as may be
necessary to ensure full compliance with the provisions of this
title.'' The rule, as proposed, is a proper and natural interpretation
of the congressional intent to recognize a need to expand and
strengthen OSM's audit powers. Experience gained by OSM auditors is
evidence of the need for that authority. In Fiscal Year 1993, OSM's
audit staff identified $7.3 million in unreported or under reported AML
fees. In identifying those amounts, the audit staff has used the
existing authority in Sec. 870.17 to examine the records of a second
party involved in a coal transaction, with little or no objection from
those parties. This produced was necessary because the operators failed
to meet their recordkeeping obligations, In effect, the expanded rule
language in Sec. 870.17 further defines and identifies the term
``second party'' in a way that will enable OSM to more effectively
execute and enforce the Section 402 provisions of SMCRA in those cases
where such action is necessary. For OSM to ensure compliance with the
reclamation fee provisions of SMCRA, it is essential for the audit
staff to have access to information of all parties involved in coal
transactions. The OSM auditors frequently encounter cases involving
missing or incomplete operator records, thus necessitating a
determination of the correct tonnage through other means. While data
from buyers is useful in these circumstances, royalty information is
also an invaluable aid in validating the tonnage subject to fees.
These comments also opposed the expanded audit authority due to
concerns about potential disclosure of financial information. OSM
rejects these comments for two reasons: (1) As explained previously,
the rule is consistent with Congressional intent; and (2) the need for
expanded audit authority outweighs commenters' concerns, which can be
accommodated in other ways. Where requested, all copied information
shall be protected to the extent authorized or required by the Privacy
Act and the Freedom of Information Act (5 U.S.C. 522, 552a). OSM would
point out that Sec. 870.16(c) already provides that if the AML fee is
paid at the maximum rate, fee compliance officers shall not copy
information relative to price.
Furthermore, OSM does not intend to use this expanded authority as
a primary means of identifying audit targets. Instead, it generally
will be used to provide the agency with additional sources of
information to identify coal sales or transfers.
Part 872--Abandoned Mine Reclamation Funds
General
The United States Department of the Treasury established an account
on its books in accordance with Title IV provisions of Public Law 95-87
and Treasury's rules for a fund of this type. Section 401(a) creates
the authority for the account:
There is created on the books of the Treasury of the United
States a trust fund to be known as the Abandoned Mine Reclamation
Fund (hereinafter referred to as the ``fund'') which shall be
administered by the Secretary of the Interior.
Section 401(d) delineates availability and purpose of account
monies:
Moneys from the fund shall be available for the purposes of this
Title, only when appropriated therefor, and such appropriations
shall be made without fiscal year limitations.
These provisions provide the authority for a fiduciary relationship
whereby Congress controls the use of fund monies for Title IV purposes
by the appropriation process, and the Treasury maintains the amounts
collected in a special account.
Fund revenues are derived from per-ton reclamation fees and late
payment interest charges, sales of acquired lands, and donations. The
fees and interest charges are paid by coal mine operations and
submitted with coal sales and reclamation fee reports for payment
identification and credit through a lockbox operation to OSM's Finance
Center in Denver.
Collections and related transactions are controlled by Deposit
Tickets (prepared by the collection officer), Debit Vouchers issued by
the Federal depository for uncollected checks, and Refund Schedules for
overpayment. These transactions are identified by mine operators as
well as by mine and geographic location. Data from the OMB approved
Form OSM-1 submitted by mine operators with their payments are coded
and stored in OSM's automated system for compliance and disbursement
purposes. Net collections (per deposit tickets, debit vouchers and
refund schedules) are reconciled on a monthly basis with the amounts
reported by mine operators on OSM's approved forms.
All accounts are closed at the end of business on September 30, the
final day of the Federal fiscal year. The system is reconciled and
collections are identified by State and Indian lands. Fifty percent of
the fiscal year collection is reserved for use by States and Indian
tribes to carry on approved reclamation programs. The remainder is to
be allocated or expended by the Secretary of the Interior through the
Director, OSM, as set forth in Section 402(g) of Title IV. Any errors
found in prior year allocations are corrected in current allocations.
This financial information is one of the inputs for budget requests to
support Title IV programs.
SMCRA, as originally enacted, did not authorize the investment of
the AML Fund. In the new amendments to Title IV, however, Congress
specifically provided for the investment of the AML Fund into interest-
bearing accounts.
To comply with this mandate OSM has developed, with the assistance
of the Department of the Treasury, a cash management plan providing for
the investment of AML monies not required for current withdrawals.
Discussion
Section 872.10 Information Collection
This section deals with information collection requirements and
includes the estimated reporting burden per respondent for complying
with these requirements. Due to oversight this section did not appear
in the proposed regulation, however, it is now being included in the
interest of providing a comprehensive regulation.
Section 872.11 Abandoned Mine Reclamation Fund
OSM has added a new paragraph 6 to Sec. 872.11(a) to note that
interest and any other investment income from the AML Fund would be
earned and credited to the Federal share of the Fund. Options for
splitting the earned interest between the State and Federal shares were
not accepted. As explained in the response to comments below, it is
clear from the language of the amendments and the legislative history
that Congress sought to place the interest only in the Federal share.
H.R. Report No. 294, 101st Congress, 1st Session 19, 20 (1989). See
amended Section 402(g) of SMCRA.
The Energy Policy Act of 1992 established a different use relating
to the interest earned by the AML fund, however. Rather than using the
money to supplement Federal reclamation responsibilities, Congress
directed that an amount equal to the interest earned by the AML fund be
available for transfer to a private pension fund. Beginning on October
1, 1995, the Secretary is directed to transfer from the AML fund to the
United Mine Workers of America Combined Benefit Fund (Combined Benefit
Fund) an amount goal to: (1) the interest estimated to be earned and
paid to the AML fund during the fiscal year and (2) to the extent that
such amount transferred is less than $70,000,000, and amount sufficient
so that the total of the amounts transferred equal $70,000,000, or the
amount requested by the Trustees of the Benefit Fund, whichever is
less. OSM has implemented these provisions in the final rules.
Congress did limit these additional funds, however, so that the
aggregate amount transferred under (2) for all fiscal years could not
exceed an amount equivalent to all interest earned and paid to the fund
after September 30, 1992 and before September 30, 1995. Additionally,
the aggregate amount transferred for any fiscal year may not exceed the
amount of expenditures which the trustees of the Combined Benefit Fund
estimate may be debited against the unassigned beneficiaries premium
account under Section 9704(e) of the Internal Revenue Code of 1986 for
the fiscal year of the Combined Benefit Fund in which the transfer is
made.
To summarize, interest earned by the AML Fund in fiscal year 1992
would be credited to the Federal-share of the AML fund and used to
carry out the Federal reclamation responsibilities enumerated in Title
IV. All interest earned in fiscal years 1993, 1994, and 1995, would be
recorded and, beginning in fiscal year 1996, an amount equal to such
interest would be used to supplement the funds transferred to the
private pension fund if the AML interest amounts earned and the amount
necessary to be transferred were less than $70,000,000. Assuming that
the trustees of the pension fund document the need for additional
funds, as set forth in Section 402(h) of SMCRA, an amount equal to all
interest earned by the AML fund starting in fiscal year 1996 would be
transferred by the Secretary to the pension fund. Such transfers would
continue under the present statutory scheme as long as a need is
documented by the trustees and the AML fund earns interest.
The United Mine Workers of America (UMWA) health and retirement
funds were established in 1974 pursuant to an agreement between the
UMWA and the Bituminous Coal Operator's Association (BCOA) to provide
pension and health benefits to retired coal miners and their
dependents. The funds have been maintained for this purpose through a
series of collective bargaining agreements. The funds created in 1974
were a restructuring of the original benefit fund which was established
in 1946.
The funds consist of four different plans, each of which is funded
through a separate trust. The 1950 Pension Plan provides retirement
benefits to miners who retired on or before December 31, 1950 and their
beneficiaries. The 1950 Benefit Plan provides health benefits for
retired mine workers who receive pensions under the 1950 Pension Plan
and their dependents. The 1974 Pension Plan provides retirement
benefits to miners who retire after December 31, 1975 and their
beneficiaries. The 1974 Benefit Plan provides health benefits to miners
who retire after December 31, 1975. It also provides health benefits to
miners whose last employers are no longer in business or, in some
cases, no longer signatory to the applicable bargaining agreement.
These miners are generally referred to as ``orphaned'' retirees.
The Energy Policy Act of 1992 provides that the 1950 Benefit Plan
and the 1974 Benefit Plan are to be merged into a new UMWA Combined
Benefit Fund to provide health and death benefits for eligible retirees
and their dependents. The Combined Benefit Fund is to be financed by
health benefit premiums, death benefit premiums, and unassigned
beneficiaries premiums imposed on assigned operators. The Combined
Benefit Fund would also receive additional funding from transfers from
the 1950 Pension Plan and, as discussed above, moneys from the AML
Fund. The Energy Policy Act also created a 1992 Benefit Fund to provide
benefits for persons not eligible under the Combined Benefit Fund.
Congressional Record H-12169-70 (October 5, 1992) (Conference Committee
statement on H.R. 776).
The final rules in section 872.11(a)(6) implement the statutory
scheme discussed above. This is, AML interest payments earned in fiscal
year 1992 would be allocated to the Federal share for use in carrying
out Federal reclamation responsibilities as outlined in Title IV of
SMCRA. An amount equal to interest earned in succeeding years would be
available for use as specified in Section 402(h) of SMCRA regarding
transfers to the Combined Benefit Fund. OSM is also revising the
language of Sec. 872.11(b)(3) regarding allocation of AML fees and
interest to the Rural Abandoned Mine Program (RAMP). In 1992 RAMP would
be allocated 20% of the interest earned from the AML fund. This
represents RAMP's percentage allocation of the Federal share of the AML
fund. Further allocations of AML interest would be made to RAMP;
however, an amount equal to such interest might have to be transferred
to the Combined Benefit Fund unless the trustees of the Combined
Benefit Fund notify OSM pursuant to Section 402(h) of SMCRA that the
estimated expenditures to be debited against the unassigned
beneficiaries premium account for the fiscal year of the Combined
Benefit Fund in which the transfer is made would be less than the AML
interest estimated to be earned that year.
The following comments address OSM's proposed rule for allocating
interest income. As noted in the preceding discussion, however,
subsequent to the publication of the proposed rule, Congress in the
Energy Policy Act of 1992 designated a new scheme relating to interest.
Accordingly, the comments received on the proposed rule do not reflect
the current statutory scheme. Because of certain Federal/State issues
raised by the comments, OSM has decided to respond to these comments.
The majority of the comments received on section 872.11(a)(6)
disagree with OSM's proposed rule regarding the allocation of related
income and believe that interest income should be credited to the
entire Fund (i.e., Federal and State share). Commenters state that the
controlling authority for allocating interest is found in Section
401(e) (e.g., credited to and form a part of the Fund) and that OSM's
references to the legislature history to support its proposal is
invalid.
Another commenter, however, disagreed with the other commenters and
stated that it supported OSM's allocation of interest.
Although OSM is sympathetic to the arguments raised by the
commenters favoring the distribution of interest payments to the State
accounts, OSM believes that it is constrained by the specific statutory
language of SMCRA and the legislative history of the 1990 and 1992
amendments, and therefore has decided to allocate interest income only
to the Federal share accounts consistent with the rationale set forth
above.
Specifically, Section 402(g)(1) of SMCRA allocates to the States/
Indian tribes only 50 percent of the fees collected. There is no
mention of interest payments as was done for RAMP in Section 402(g)(2).
In addition, the language regarding the allocations to the different
Federal accounts does not refer to percent allocations as was done for
State/Indian tribe allocations, but instead refers to distributions of
monies from the Fund not previously allocated (see Sections 402(g) (2),
(3), (4), and (5)). OSM therefore interprets the language of SMCRA as
directing that interest allocations are only to be distributed to the
Federal accounts. Commenters argue that OSM should give greater
credence to the language in Section 401(e) which specifies that
interest income is to be ``credited to, and form a part of, the fund.''
This language, however, is not dispositive. The interest income does
become a part of the AML Fund. The States/Indian tribes, though, have
no additional rights to this income money merely because the income is
credited to the Fund. The AML fees result from a Federal tax and are
Federal funds. Their distribution to the States must be based on
specific Congressional direction and, based on OSM's review of the
statute, there is no explicit directive to allocate income money to the
individual State/Indian tribe accounts.
To support this decision, OSM has also reviewed the legislative
history of this section, and it is clear that Congress intended that
the interest income to be distributed only to the Federal accounts. For
example, the following three excerpts from the House Report
accompanying H.R. 2095 (the legislation which formed the core of the
1990 amendments) clearly demonstrate how Congress envisioned the
distribution of interest income.
H.R. Report 294, 95th Cong., 1st Sess. 19 (1989)
* * * The remaining 50 percent of reclamation fees collected
would continue to be dedicated to the Secretary's discretionary
share of the Abandoned Mine Land Reclamation Fund for Federal
programs. However, the legislation provides for the Secretarial
share to be augmented by interest authorized to accrue to the
unappropriated balance in the entire Fund * * *
H.R. Report 294, 95th Cong., 1st Sess. 20 (1989)
* * * Under the bill, after allocation of the State and tribal
shares, the remaining amounts in the Fund (the Secretary's share of
the reclamation fees plus all interest which would accrue to the
unappropriated balances as authorized by legislation) would be
available for a number of current Federal Title IV programs * * *
H.R. Report 294, 95th Cong., 1st Sess. 27 (1989)
* * * The Committee further notes that while interest would
accrue to the entire unappropriated balance in the Fund, amounts
earned from this interest would be dedicated solely to programs
financed under the Secretarial share of the Fund * * *
Some commenters argue that OSM should not resort to this
legislative history since the bill was never enacted as originally
passed by the House of Representatives. OSM, however, discounts this
argument. Although H.R. 2095 was not passed as a separate bill, it was
included in the Omnibus Budget Reconciliation Act of 1990. Accordingly,
the legislative history for H.R. 2095 is relevant. Additionally,
although the bill was ultimately amended during the House-Senate
conference review process (see previous discussion in preamble
regarding conference amendments), these amendments did not alter the
statutory provisions regarding interest. Moreover, if the commenters
are correct in their assertion, logic would dictate that the House-
Senate Conference Committee would have noted such concerns about the
relevance of the legislative history. However, there are no such
references. Accordingly, OSM believes that the legislative history to
H.R. 2095 is relevant in determining Congressional intent.
Based on the specific language in SMCRA and the legislative
language discussed above, OSM has decided to keep the provisions
originally set forth in the proposed rule to allocate interest income
only to Federal accounts.
Section 872.11(b) has been revised to incorporate the provisions of
Section 402(g) of the Act as amended by the Abandoned Mine Reclamation
Act of 1990. Section 872.11(b) describes the manner in which monies
deposited into the Fund are allocated by the Secretary. These funds,
once appropriated by Congress, would be used to accomplish the purposes
of Title IV of SMCRA.
Existing paragraph (b)(1) has been removed and allocations of funds
of SOAP are addressed at new paragraph (b)(5) as specified at Section
401(c)(11) of SMCRA. The distribution of AML Funds for RAMP is funded
from the 20 percent to the funds remaining after allocation of
collections to the States/Indian tribes in accordance with Section
402(g)(2) of the Act. The distribution of funds for RAMP is set forth
in paragraph (b)(3).
In response to comments regarding the discretionary authority to
withdraw granted unexpended AML funds, OSM has deleted
Sec. 872.11(b)(1)(ii) and (b)(2)(ii) and merged the language in
(b)(1)(i) and (b)(2)(i) into the main text of those sections. OSM's
practice is not to withdraw funds. Rather, it is to deobligate funds
and make them available to the States/Indian tribes in future years.
This policy is further explained in the following comment response
section.
Existing paragraphs (b)(2) and (b)(3) of the regulations are
revised and redesignated as paragraphs (b)(1) and (b)(2). These
redesignated and revised paragraphs continue to require the allocation
of 50 percent of annual fee collections to a specific State or Indian
tribe. This fulfills the requirements of the Act at Section 402(g)(1).
The new amendments use the grant award date as the time from which to
calculate the three year period the States and Indian tribes have to
use appropriated funds. Monies which remain unexpended by a State or
Indian tribe after the three year period may, under certain conditions,
or withdrawn and expended by the Secretary to accomplish the purposes
of Title IV.
Existing paragraph (b)(4) of the regulations has been redesignated
as paragraph (b)(3) and revised to require that 10 percent of the
monies collected and deposited annually, and 20 percent of the
interest, if such amount is not necessary for transfer to the Combined
Benefit Fund based on the provisions of 402(b) of SMCRA under the 1992
amendments, and other miscellaneous receipts to the Fund, be allocated
for use by the Secretary of Agriculture for the purpose of funding
RAMP. Twenty percent of funds, if withdrawn from the State's and Indian
tribe's unexpended grant awards under Section 402(g)(1)(D) of the Act,
would also be reprogrammed to RAMP. This requirement is consistent with
Section 402(g)(2) of the Act.
A new paragraph (b)(4) has been added to the regulations to fulfill
the requirement of Section 402(g)(5) of SMCRA. New paragraph (b)(4)
requires that 40 percent of the monies deposited in the Fund annually
after making the allocations of subparagraphs (b) (1) and (2) shall be
allocated for use in making additional grants to the States and Indian
tribes. To be eligible for funds allocated under this provision, a
State or Indian tribe would not have certified under Section 411 (a) of
SMCRA and would have priority 1 and priority 2 coal problems within the
State or on Tribal lands. Under this paragraph, the distribution of
funds would be based on a formula addressing the respective State's or
Indian tribe's historical coal production prior to August 3, 1977, as a
percentage of the nationwide total for eligible States and Indian
tribes.
Also, funds to be granted under this paragraph could be reduced or
curtailed under two specific conditions relating to the adequacy of
funding. These two conditions are: (1) if State or Tribal share funds
to be granted in a given year are sufficient to address remaining
eligible priority 1 or priority 2 coal sites, no additional funds will
be provided during that year; and (2) if the cost to reclaim all
remaining priority 1 or priority 2 coal sites exceeds the amount of
State or Tribal share funds to be granted in a year pursuant to Section
402(g)(1), but is less than the total amount of funds to be granted to
the State or Indian tribe in that year under paragraphs (b) (1), (2),
(3) and (4) of this section, Federal funds granted under this paragraph
will be reduced to that amount required to fully fund all remaining
priority 1 or priority 2 coal sites after utilizing all available State
share funds. To make the above determination each year on September 30,
OSM will continue to use its Abandoned Mine Land Inventory System in
order to determine the dollar amount of remining (i.e., unfunded)
eligible priority 1 and priority 2 coal problems.
Existing paragraph (b)(5) of the regulations has been revised to
list the purposes for which the Secretary may expend funds from the
remaining or unallocated balance of the AML Fund (not already allocated
to the States, Indian tribes, and RAMP), in accordance with Section
402(g)(3) of the Act. These purposes would include SOAP, emergency
projects, nonemergency projects in nonprogram States and on nonprogram
Tribal lands, funding for eligible interim program and insolvent surety
sites, and administration of Title IV of the Act.
Two million dollars is the minimum program level established at
Section 402(g)(8) of the Act. A new paragraph (b)(6) is added to the
regulations to specify that not less than $2,000,000 would be
distributed annually to States and Indian tribes having an approved
abandoned mine reclamation program and eligible lands and waters
pursuant to Section 404, so long as an allocation of funds is necessary
to achieve the priorities stated in paragraphs (1) and (2) of Section
403(a) (priority 1 or priority 2 coal problems). However, annual State
share funds must be utilized first, and supplemental funds granted
under paragraph (b)(4) and this paragraph shall not exceed the costs of
reclaiming all remaining priority 1 and priority 2 sites. In response
to comments, OSM notes that minimum program States, like all other AML
States, will still be able to do associated priority 3 work when they
do priority 1 or 2 reclamation projects. No change to the proposed rule
was deemed necessary.
A new paragraph (b)(7) is also added to the regulations to specify
that additional funds allocated or expended annually by the Secretary
would not be deducted from funds allocated or granted annually to a
State or Indian tribe pursuant to Sections 402(g)(1), (5) or (8) of
SMCRA. In response to comments, OSM added the word ``allocate'' to
ensure States and Indian tribes that there will be no reduction against
allocated funds.
Finally, the new statutory provisions in Section 402(g)(3)(C)
authorize the Secretary to expend monies for reclamation purposes in
States or on Indian lands which do not have an approved abandoned mine
land program. Section 872.11(b)(8) implements this provision.
One commenter stated that the word ``expended'' in Sec. 872.11(b)
(1) and (2) should be defined so that it can be used consistently. In
the past words like ``expended'' and ``obligated'' have had different
meanings depending on the context. ``Expended'' could mean obligated,
paid out for goods or services, drawn down from the Federal account,
etc., the commenter said.
The term ``expended'' is already defined in Sec. 870.5. For
purposes of these regulations ``expended'' means that monies have been
obligated, encumbered, or committed for reclamation by contract by OSM,
State, or Indian tribe for work to be accomplished or services to be
rendered.
Another commenter stated that proposed regulation 872.11(b)(1)(ii)
concerning the withdrawal after three years of unexpended grant funds
is too subjective and could result in arbitrary OSM Field Office
recommendations.
The commenter suggested that this term be defined as follows:
* * * as a result of avoidable delays that are beyond the direct
control of the state AML Program director * * *.
This language would not hold the State AML programs hostage to
delays caused by other State agencies, programs, or policies over which
the State program director has no direct control or authority, the
commenter argued.
Another commenter stated that the phrase ``granted to a State or
Indian tribe that have not been expended'' does not appear to include
those unspent funds from a prior grant which are deobligated for grants
management purposes and are again available to be regranted to that
State. Such funds should not be included in the three year limitation,
the commenter stated.
The regulations should clarify this. Also, all funds withdrawn from
a State or Indian tribe because of the three year limitation should be
returned to the Federal share of the Fund and should then be available
for any other discretionary share purpose, not restricted solely to
those purposes identified under Sec. 872.11(b)(5), as proposed. If
these are discretionary share funds, they should be made available for
any and all discretionary purposes, the commenter asserted.
OSM has accepted the spirit of the comments. The language regarding
the withdrawal of funds in Sec. 872.11(b) (1) and (2) implements a
specific statutory provision in Section 402(g)(1) of SMCRA. OSM notes,
however, that the authority to withdraw is discretionary. OSM's
practice since the beginning of the AML program is not to withdraw
funds from the States/Indian tribes. Rather, funds which are not
expended by a State/Indian tribe during the grant period are returned
to the State/Indian tribe account for future grants. This practice is
within the discretionary language of the Act and still provides States/
Indian tribes flexibility to manage their programs. To avoid any
misunderstanding regarding this practice, OSM has decided to delete the
language in proposed Sec. 872.11(b)(1)(ii) and (b)(2)(ii) and to merge
the language found in (b)(1)(i) and (b)(2)(i) into the main text in
those sections.
One Indian tribe commented that there are 11 abandoned coal sites
located on Tribal land. Three of these sites are priority 1. The total
estimated cost to reclaim the sites is $2 million. There are 86
abandoned noncoal sites located throughout the reservation. Four sites
are priority 2. The estimated cost to reclaim all sites is $17.9
million. The Indian tribe has $3.2 million available as Tribal share
money, but has inventoried $19.9 million of abandoned sites. It is
apparent that the current allocation method will leave numerous sites
which present a hazard to public health and safety unreclaimed. Due to
this inadequate funding and due to the fact that the Indian tribe has
no historical production records for coal which was stolen from the
Indian tribe, the Indian tribe urges OSM to amend the proposed
regulations to allow a State/Indian tribe with a demonstrated need for
reclamation to qualify for minimum program funding of priority 3
projects. In addition, since there are no historical records of the
stolen coal, OSM should provide some special consideration under this
regulation.
OSM has not been able to implement this comment due to the specific
provisions contained in Section 402(g)(8) of SMCRA which limits
allocations for minimum program States and Indian tribes to those
necessary to carry out priority 1 and 2 coal projects. OSM has looked
into the matter of historic coal production from Indian lands and
determined that the three Indian tribes with approved AML programs
would not qualify for more funds pursuant to Section 402(g)(5) of
SMCRA. This is caused by the amount of unfunded priority 1 and 2 coal
projects in each Indian tribe and not historical coal production.
Other commenters also stated that prohibiting minimum program
States and Indian tribes from doing priority 3 work would be
discriminatory. Minimum program States need the latitude to determine
when associated priority 3 reclamation is necessary and beneficial to
the total priority 1 and 2 reclamation within the State. All States and
Indian tribes receiving discretionary and or minimum program monies
should be treated equally and impartially.
OSM has accepted these comments. OSM will treat minimum program
States/Indian tribes the same as other States/Indian tribes. That is,
all States/Indian tribes with approved AML programs under Title IV of
SMCRA will be able to do priority 3 projects that are associated with a
priority 1 or 2 site. There will be no artificial limitation on minimum
program States. In addition, OSM will be reviewing the criteria for
priority 1 and 2 projects to provide the States and Indian tribes
greater flexibility in selecting eligible projects. Due to the
limitations in SMCRA regarding the funding of priority 1 and 2 projects
from minimum program and historic coal production allocations, however,
OSM believes States/Indian tribes must still maintain their focus on
projects that qualify as a priority 1 or 2 site.
Another commenter stated that the Act in Section 402(g)(5) provides
that 40 percent of discretionary funds should be allocated to the
States and Indian tribes on a historical production basis as
inventoried high priority problems require. This 40 percent of the
remaining funds includes the interest and other fund revenues including
withdrawn funds from States and Indian tribes plus other miscellaneous
receipts to the Fund. According to the commenters, the regulations
should specifically state this to be consistent with the Act. This is
consistent with the allocation of 20 percent of the interest and other
fund revenues to RAMP in Sec. 872.11(b)(3).
OSM has declined to implement this comment. As previously discussed
in this preamble, interest earned by the AML fund will be allocated
among the three Federal accounts based on the percentages specified in
SMCRA. OSM does not believe that such language needs to be specified in
a regulation. Furthermore, as previously noted, under Section 402(h) an
amount equal to the interest earned by the AML Fund needs to be
available, if necessary, to transfer to the United Mine Workers of
America Combined Benefit Fund.
Another commenter stated concerning Sec. 872.11(b)(4)(ii) that the
proposed regulation should provide that if the actual cost of
reclamation to accomplish all inventory priority 1 and 2 problems is
less than the Federal share funds actually granted for minimum program
States or Indian tribes, then any excess funds must be returned to the
Federal share of the Fund.
OSM has not accepted this comment. The preamble to the rules
specifies how distributions will be made as a State or Indian tribe
funds all remaining 1 or 2 priority projects. Further references in the
regulations regarding funding procedures are unnecessary.
Another commenter agreed with OSM's proposed rule which provided
funding only until all priority 1 and 2 problems have been addressed.
This commenter states, however, that the rules should further provide
that no supplemental grants under this provision will be expended on
any site other than a priority 1 or 2 problem area as defined in
Section 403(a) of SMCRA.
As noted previously, OSM has decided to fund the reclamation of
priority 3 problems if they are associated with priority 1 or 2 problem
sites. This should avoid artificial distinctions and arguments on what
qualifies as a priority 2 or 3 problem and allow States and Indian
tribes greater flexibility in selecting eligible projects. By allowing
States and Indian tribes the authority to do associated priority 3
work, OSM believes that the cost effectiveness and overall efficiency
of the AML program will be improved.
Most commenters responding to OSM's proposed rules in 872.11(b)(4)
(historical coal production allocation) and 872.11(b)(6) (minimum
program funding) disagreed with OSM's approach and stated that minimum
program States should be able reclaim priority 3 projects. Some
commenters felt that minimum program States or Indian tribes should be
able to do any priority 3 reclamation work; others, however, were more
limited. Some felt that minimum program States should be able to do
priority 3 work if it is associated with higher priority reclamation
activities, and others felt that minimum program States should be able
to utilize their State share funds for any priority. Most commenters
requesting authority to do some type of priority 3 work felt that such
authority was consistent with the intent of Congress and the purposes
of the AML program. According to these commenters, such authority is
cost-effective and provides the States the management authority which
OSM's consolidated grant approach is supposed to provide.
Other commenters, however, disagreed and stated the minimum program
States should be required to complete all known priority 1 and 2 sites
before funding priority 3 projects. Moreover, OSM should consider funds
set-aside by the State for future reclamation purpose (873.12(a)) in
determining the appropriate distribution amount.
Given the various limitations in SMCRA regarding program funding,
OSM's options regarding distributions to minimum program States and
Indian tribes are somewhat constrained. Federal share funds are limited
to priority 1 or 2 problem coal sites. Accordingly, comments suggesting
no restrictions concerning the funding for priority 3 sites could not
be accepted. Similarly, OSM does not believe it would be proper to go
to the opposite extreme and deny funding for all types of priority 3
work. States and Indian tribes are still receiving State/Indian tribe
share funds and in many instances doing associated priority 3 work
would increase the efficiency of the State/Indian tribe program. OSM
has, instead, chosen a middle ground. OSM will not single out minimum
program States/Indian tribes for more stringent funding criteria, but
instead will treat all States/Indian tribes equally. OSM will fund
associated priority 3 work.
OSM has not accepted the part of the comment requesting that OSM
require minimum program States and Indian Tribes to use their future
set-aside funds first. By statute once these funds have been granted
and placed in a special trust fund, the monies are considered to be
State funds. In addition, the purpose behind the establishment of
specific State set-aside funds was to allow the AML States to prepare
for a time when the AML program had ended and the AML funding had
ceased. At that time States could utilize the set-aside funds if AML
problems arose. Mandating the use of such funds at this time would be
contrary to this purpose.
One commenter commended OSM for funding emergency projects
separately from grants allocated to the States pursuant to the annual
reclamation plan. This funding mechanism encourages States which do not
presently administer an emergency program to work toward eliminating
those obstacles which prevent them from assuming these
responsibilities. The unpredictable nature of emergencies coupled with
the potential for expensive reclamation techniques could seriously
disrupt a State's reclamation plan if emergency funding had to come
from the State's annual grant.
Another commenter observed that under Sec. 872.11(b)(7), ``Funds
allocated or expended annually by the Secretary under Sections
402(g)(2), (3) or (4) of SMCRA for any State or Indian tribe shall not
be deducted against funds to be granted annually to a State or Indian
tribe under the authority of Section 402(g)(1) (5) or (8) of SMCRA.''
According to the commenter, the use of the word ``granted'' as opposed
to ``allocated'' suggests that Section 402(g)(2), (3) or (4)
expenditures may still ultimately be deducted from State share
allocations, even though OSM will not reduce annual grants. This should
be clarified to provide that such expenditures shall not reduce annual
grants or be deducted from total allocations, the commenter said.
OSM notes the language in Sec. 872.11(b)(7) implements language in
Section 402(g)(5) of SMCRA. This provision controls funds that are
either ``allocated or expended.'' To avoid any misunderstanding OSM has
made the change suggested by the comment and has added the word
``allocated'' to the regulatory language.
Part 873--Future Reclamation Set-Aside Program
General
In 1987 Congress amended Section 402(g)(3) SMCRA authorizing States
to deposit up to ten percent of their annual State share grant funds
into special trust accounts. Such funds deposited, together with any
interest earned, could then be utilized by a State after August 3,
1992, to carry out the purposes of Title IV. The purpose behind the
1987 provision was to ensure that a State would have AML Funds
available after the expiration of the AML fee provisions to handle
future reclamation problems.
The new statutory amendments in Public Law 101-508 also include a
future reclamation set-aside program with five specific differences.
First, this new set-aside program does not supersede or transfer funds
deposited under the original set-aside program established in 1987.
Funds deposited under that program can still be utilized by a State/
Indian tribe at its discretion after August 3, 1992, to carry out the
purposes of Title IV. Second, the new trust fund accounts have a new
timeframe. Funds deposited pursuant to the amendments of 1990 may only
be utilized after September 30, 1995. Third, the new trust accounts
would only be utilized to reclaim eligible coal problems. The original
set-aside accounts could be used for any purposes in Title IV; thus
both coal and noncoal problems could be addressed. Fourth, rather than
being limited to up to ten percent of the State/Indian tribe share
funds granted annually, the States/Indian tribes can now deposit up to
ten percent of the total State/Indian tribe share and historic coal
production (Federal share) funds granted annually. Fifth, the State/
Indian tribe now has an option on whether to utilize funds for the
future reclamation set-aside program or to deposit the monies in a
special trust account for use in a State/Indian tribe acid mine
drainage program. The statute and regulations allow States/Indian
tribes to utilize available funds for either the acid mine drainage
program or the future reclamation set-aside program. However, a ten
percent cap is placed on the total funds available annually.
Discussion
Section 873.1 Scope
This section provides requirements for the award of grants to
States/Indian tribes for the creation of special trust accounts to
provide funds for coal reclamation purposes after September 30, 1995.
Section 873.11 Applicability
This section provides that provisions of this Part would apply only
to the granting of funds and their use by the States/Indian tribes for
coal reclamation purposes after September 30, 1995.
Section 873.12 Future Reclamation Set-Aside Program Fund Criteria
This section tracks the legislative language of Congress and limits
the use of the monies to eligible coal reclamation purposes after
September 30, 1995. To be eligible to receive a grant for such
purposes, a State/Indian tribe would have to first establish a special
trust fund account which would limit the use and withdrawal of the
funds as specified earlier.
If the conditions are met and monies are properly deposited,
Sec. 873.12(c) specifies that the monies so deposited, together with
interest earned, would be considered State/Indian tribe monies. The
1987 amendment originally establishing the special State set-aside
specified that monies deposited in the special State trust accounts, as
well as interest earned, would be considered State monies. Although the
1990 amendments do not contain equivalent language, OSM intends to
provide the same treatment under these proposed rules because the
legislative history of the 1990 Act does not evidence Congressional
intent to change this feature of the set-aside.
All comments received on this Part objected to OSM's proposal to
limit future set-aside funds to coal problems only. These commenters
argued that OSM's reliance upon the legislative history to H.R. 2095
was inappropriate given the vast difference between the original bill
and the fund language in the Omnibus Budget Bill. Moreover, these
commenters believe that Sections 403(a) and 404 can be interpreted to
include both coal and noncoal problems.
OSM is unable to accept this comment and therefore has made no
changes to part 873. OSM interprets the 1990 amendments to SMCRA as
limiting future set-aside grants to coal projects only. This
interpretation is consistent with the statutory language and the
legislative history. As stated in H.R. Report 294:
* * * Provision is made for a State to deposit up to 10% of its
annual state share allocations, including amounts available to the
State from Secretarial share supplemental grants, into a special
interest-bearing trust fund established by the State for the purpose
of undertaking abandoned coal mine reclamation * * *. The Committee
notes that several states have already established such a program
under the current law provision limiting use of set-aside amounts
for use after August 3, 1992. The current law provision does not
necessarily restrict the use of set-aside amounts for abandoned coal
mine reclamation projects. As such, the Committee intends for states
to have the opportunity, at their discretion, on or after August 3,
1992, either to withdraw or maintain as a separate account for the
purpose of accomplishing authorized Title IV purposes, as set forth
prior to the amendment of this Title by the legislation, amounts
set-aside prior to enactment of the Abandoned Mine Reclamation Act
of 1989.
H.R. Report 294, 101st. Cong., 1st. Sess. 28 (1989).
The modifications made to Section 403(a) do not expand this
authority as urged by the commenters. These modifications merely cross
reference another set of priorities which would be applicable to a
State's noncoal program. The commenters' position is not supported by
any references in the legislative history. As demonstrated above,
however, the opposite is true. House Report 294 specifically directs
that set-aside funds be limited to coal projects only and that this
future set-aside program (limited to coal only) is different than the
previous set-aside program which authorized expenditures to carry out
any Title IV purposes. See H.R. Report 294, 101st. Cong., 1st. Sess. 28
(1989). Finally, if the commenters' position were correct that Congress
wanted to fund both coal and noncoal projects with future set-aside
monies, logic would dictate that the language in the old law would have
been repeated, i.e. ``accomplish the purposes of this title.'' However,
this was not the case. Instead, Congress referenced the coal
eligibility section only.
Part 874--General Reclamation Requirements
General
Part 874 sets forth requirements relating to eligibility and
selection of reclamation projects that are equally applicable to those
reclamation activities to be carried out by OSM and to the Rural
Abandoned Mine Program administrated by the Secretary of Agriculture
under Title IV.
Discussion
Section 874.11 and 12 Applicability and Eligible Coal Lands and Water
SMCRA, as enacted in 1977, specified that lands and water eligible
for reclamation funding are those which were mined for coal or which
were affected by such mining, wastebanks, coal processing, or other
coal mining processes, and abandoned or left in an inadequate
reclamation status prior to the date of enactment (August 3, 1977) and
for which there is no continuing reclamation responsibility under State
or other Federal law.
The amendments to Title IV significantly enlarge these original
eligibility criteria. Most notably, Congress has extended in two
instances the eligibility criteria for reclamation funding to priority
1 or 2 coal problems on lands which have been mined and abandoned after
August 3, 1977. The first time interval involves land mined and
abandoned between August 4, 1977 and the date on which the Secretary
approved a State program under Section 503 of SMCRA and specifies that
any funds for reclamation or abatement which are available pursuant to
a bond or other form of financial guarantee or from any other source
must not be sufficient to provide for adequate reclamation or abatement
at the site. Regarding the reclamation of post-SMCRA sites pursuant to
Section 402(g)(4)(E) of SMCRA, the new amendments reference the date on
which the Secretary approved a State program pursuant to Section 503.
Indian tribes, however, do not have approved regulatory programs. To
rectify this problem, OSM has used September 28, 1984 as the applicable
date for Indian tribes. This date was chosen because it is the date
that the permanent Federal regulatory program on Indian lands took
effect. The second time interval would extend eligibility to lands
mined and abandoned between August 3, 1977 and November 5, 1990, where
the surety of the mining operator became insolvent and funds
immediately available from other proceedings or sources are not
sufficient to provide for adequate reclamation or abatement at the
site.
The eligibility requirements for sites abandoned prior to August 3,
1977, are set forth in Sec. 874.12 (a), (b), and (c). To these general
eligibility requirements, OSM has added subsections 874.12 (d), (e),
(f), (g) and (h) to address eligibility for sites abandoned after
August 3, 1977.
In order for sites abandoned after August 3, 1977, to be eligible
for funding, lands adversely affected during either of the time
intervals as discussed above and specified in Sec. 874.12(d), must be
abandoned and must qualify as a priority 1 or 2 problem pursuant to
Section 403(a) of SMCRA.
Subsection 874.12(e) establishes the eligibility criteria for
States and Indian tribes to reclaim lands adversely affected after
August 3, 1977. It is similar to subsection (d), and includes the same
criteria with one additional requirement. In addition to making the
findings required for subsection (d), a State or Indian tribe would
also have to find in writing that the reclamation priority of the site
is the same or more urgent than the reclamation priority for the lands
and water adversely affected prior to August 3, 1977 and that the site
qualifies as a priority 1 or 2 site. This subsection implements Section
402(g)(4)(E) of SMCRA.
In extending eligibility to high priority sites left abandoned
after August 3, 1977, Congress noted that tens of thousands of acres of
land mined since August 3, 1977 remain unreclaimed due to the less
stringent standards applicable during the ``interim program'' period
and the bankruptcies of the mining companies and their insurers. The
damage to these lands has created a new generation of abandoned mine
problems unforeseen by the original law. Indeed, Congress notes in its
report on H.R. 2095 that the public health and safety threat posed by
these acres may exceed those of eligible but lower priority pre-August
3, 1977, sites. H.R. Report No. 294, 101st Congress, 1st Session 24
(1977).
Although not part of the amendments passed by Congress in 1990, the
Secretary is utilizing his rulemaking authority granted under Section
413(a) of SMCRA in establishing two additional subsections to
Sec. 874.12. Subsection (f) provides that any monies recovered or
available from other sources to reclaim sites abandoned after August 3,
1977, should be either utilized to offset the cost of the reclamation
or transferred to the AML Fund. This ensures that monies available for
reclamation purposes are ultimately used for such purposes and not lost
due to the intervention of Title IV activities. The operative language
in the statutory amendments states that ``available funds are
insufficient to reclaim'' the lands. This language addresses only
availability and does not specifically state that the monies must be
utilized. Subsection (f) resolves this ambiguity by requiring that the
monies either be used to reclaim the land or transferred to the AML
Fund if no longer needed to reclaim the entire permitted site.
Subsection (g) is similar to the intent and purpose of subsection
(f) in that it tries to prevent unjust enrichment. This subsection
specifies that a person shall be liable for reclamation expenses which
are in excess of any bond forfeited to ensure reclamation. The
permittee shall reimburse the Abandoned Mine Land Fund for the cost of
reclamation. This ensures that a party liable for the reclamation
damages does not evade his legal and financial responsibilities to
reclaim the land. Further, this subsection specifies that neither the
Secretary nor a State or Indian tribe performing reclamation on these
sites would be held liable for any Title V violations, whether they
occur before, during or after the reclamation. As provided in
Sec. 874.13(a), the reclamation activities need only comply with the
AML Final Guidelines for Reclamation Programs and Projects (45 FR
14810-14819, March 6, 1980). These requirements should protect the
public and health and safety, while also protecting a State or Indian
tribe or the Secretary from potential liability and provide the State
flexibility to utilize its scarce resources in the most efficient
manner.
The Energy Policy Act of 1992 affected the eligibility criteria in
two ways. First, Congress extended eligibility to lands which are
reaffected by remining operations. OSM has added a new Sec. 874.12(h)
to specify that surface coal mining operations on lands eligible for
reclamation under SMCRA Sections 404 (abandoned prior to August 3,
1977), 402(g)(4)(B)(i) (affected between August 3, 1977 and the date on
which the Secretary approved the State program pursuant to Section
503), and 402(g)(4)(B)(ii) (affected between August 3, 1977 and
November 5, 1990) would not affect the eligibility of such lands for
reclamation and restoration following the release of the bond for any
such operation as provided for under Section 519 of the Act. In the
event the bond or deposit for a surface coal mining operation on lands
eligible for remining is forfeited, funds available under Title IV of
the Act may be used if the amount of such bond or deposit is not
sufficient to provide for adequate reclamation or abatement, except
that if the conditions warrant, the Secretary may immediately exercise
his emergency authority under Section 410 of the Act. The regulatory
text tracks the amended language of SMCRA and is not intended to impose
additional requirements.
One commenter stated that Section 402(g)(4)(B)(i) does not seem to
require that eligible interim sites must be abandoned prior to primacy.
Specifically, mining must have ``occurred during the period beginning
on August 4, 1977, and ending on or before the date in which the
Secretary approved a State program * * *'' (emphasis added). Mining
activities prior to August 4, 1977 may be eligible as provided under
Section 404 of SMCRA. According to the commenter, mining activities
occurring after States achieved primacy should be eligible to the
extent that ``mining occurred'' during the statutory period and those
mining activities were not conducted under authority of permanent
program permits. Not until after State primacy was granted were
operators confronted with the new mining constraints and required to
make a decision as to whether they would proceed with mining under
permanent program permits. The interim program regulations, 30 CFR
773.11, allowed operators eight months after primacy to obtain these
permits. In reality, it took much longer. If they did not proceed,
abandonment and forfeiture frequently occurred in some cases, several
years after primacy. The commenter did not believe Congress desire to
exclude these sites from eligibility through Public Law 101-508. The
Civil Penalty program which funds reclamation of similar forfeiture
sites does not preclude reclamation of sites mined after State primacy.
The commenter said that the interim reclamation program is, in many
respects, a continuation of the Civil Penalty program, and, therefore,
the cut-off date should be the date of the issuance of the permanent
program permit for the site, if there was one. In other words, eligible
interim sites should be defined as sites without permanent program
permits where mining activities occurred during the period beginning
August 4, 1977, and ending on or before the date at which the State was
awarded primacy.
Similarly, the commenter believes that site eligibility under
Section 402(g)(4)(B)(ii) should be addressed in the same manner with
the further requirement that the surety of the mine operator became
insolvent sometime during the period from August 4, 1977 through
November 5, 1990. A literal interpretation of Sec. 874.12(d)(3) may
require that mining end exactly on November 5, 1990. The section seems
to extend eligibility for Title IV funding to primacy sites. The
commenter asked if this possibility is consistent with OSM's position.
OSM has not accepted this comment. Although OSM realizes that
certain interim sites were allowed to exist after a State received
primacy, the language of the 1990 amendments does not allow
flexibility. The amendment states that it applies to coal operations
abandoned between two specific dates. The ability to alter those dates
does not exist.
Another commenter stated that OSM appears to favor retention by
States and Indian tribes of flexibility in determining standards to be
achieved for these interim program and insolvent surety sites. The
commenter asked how this flexibility will be implemented in a
consistent manner by the various OSM Field Offices. The commenter
believes that OSM must strive to assure consistent application of Title
IV regulations and policies nationwide. Additionally, this commenter
questioned whether environmental assessments were necessary for mined
and permitted sites.
OSM will develop the necessary guidance documents to ensure that
the regulations are consistently applied by its Field Offices. In
addition, OSM will be reviewing its procedures for complying with the
National Environmental Policy Act (NEPA). OSM will ensure that all NEPA
requirements are met.
Another commenter stated that under the new SMCRA amendments post-
1977 sites which are in the immediate vicinity of a residential area or
which have an adverse economic impact upon a community should be
considered a priority 1 or 2 site. Furthermore, the commenter asserted,
consistent with Section 402(g)(4)(E) of SMCRA, the State is the sole
determiner of reclamation priorities and the extent of reclamation.
This SMCRA section provides that if the reclamation priority of a post-
1977 site is the same or more urgent then sites eligible under Section
404, the State may make the sole determination of the priority.
OSM has accepted this comment in part. Sites that are in the
immediate vicinity of a residential area or which have an adverse
economic impact upon a community will be considered priority 1 or 2
sites eligible for funding. Similarly, if a State makes a determination
that the priority of a site is the same or more urgent than the
reclamation priority of sites eligible under Section 404, and meeting
the criteria in Sections 403(a) (1) or (2), that site automatically
will become a priority 1 or 2 site eligible for funding.
One commenter stated that Sec. 874.12(d)(2) expands eligibility to
include interim program sites where bonds are insufficient to provide
for adequate reclamation at the site. The commenter believes that the
site would be eligible if mining ended before the date on which the
Secretary approved a State program if the site qualified as a priority
1 or 2. Further, Section 506(a) of the Act allows mining activities
under the interim program for up to eight months beyond the date of
primacy. The commenter believes that the interim period should include
this eight month grace period, and in certain circumstances could even
extend further. The commenter requested clarification of this section
in order to assure that all sites which can be technically defined as
interim could be considered under this section.
OSM has examined this issue and, as discussed previously, the new
amendments to SMCRA do not provide flexibility on this point. The dates
on eligibility are specific and OSM does not believe that it has the
authority to extend such dates to take into account the ``grace
period'' mentioned in the comment.
Several commenters noted that Sec. 874.12(d)(3) would expand
eligibility to include sites where mining ended prior to November 5,
1990 where the surety of the mining operator became insolvent and funds
available from proceedings are not sufficient to provide for adequate
reclamation at the site. In some States alternate bonding pools have
been set up to provide a more economic method of such bonding
opportunities. In these cases, the commenters stated, when an alternate
bonding pool is insufficient, such sites should remain eligible and if
the alternate bonding source is insufficient the State or Indian tribe
should not incur any additional financial liability for the
reclamation. The commenters requested clarification in this regard in
the rules.
OSM has not made any changes to its regulations based on these
comments. The new amendments to SMCRA do not specifically prohibit
eligibility for sites abandoned after 1977 in primacy States which
utilize bonding pools. However, where bond pools are solvent and
applicable, such sites would not be eligible.
An additional commenter suggested that the term ``immediately
available'' in Section 402(g)(4)(B)(ii) should be interpreted in the
AML regulations to mean ``in-hand'' as illustrated by an account
deposit entry on or before November 5, 1990. Any funds collected after
that date and before completion of construction should simply be
expended to pay billings, to the extent necessary to settle
obligations, in preference to using grant funds. Money recovered in
excess of remaining billings during construction and money recovered
after project completion would be payable to the Fund, limited to the
total cost and consistent with the statute. Bond recovered in excess of
the total cost of reclamation and specific to the site would be
returned consistent with surety law. Recoveries or settlements, not
site specific, resulting from State actions would be managed at the
discretion of the State.
Another commenter urged OSM to revise the proposal in 30 CFR
874.12(d)(3) to enable States with alternative bonding systems to
qualify for Title IV monies on sites with insolvent surety bond.
Further, this commenter does not believe that the proposed rule at
Sec. 874.12(g) is consistent with OSM's established regulation at 30
CFR 800.50(b)(2) (relating to the use of bond forfeiture funds). The
commenter received notification in 1985 under 30 CFR 732.17 that its
program was deficient, and subsequently revised its regulation in
response to OSM's interpretation. The commenter's regulations now
require permanent permit sites to be reclaimed to Title V standards;
they do not allow for reclamation under Title IV requirements. If it is
not OSM's intention that the relaxed reclamation standards suggested in
30 CFR 874.12(g) be extended to insolvent surety sites that were
permitted and eventually forfeited under a State's approved permanent
regulatory program, OSM should clarify this in the regulation.
This commenter believes that OSM could better meet its goal stated
in the preamble (56 FR 57385), to ``* * * provide the State flexibility
to utilize its scarce revenues in the most efficient manner,'' by
eliminating the restrictions on funding eligibility at 30 CFR 874.12(d)
(3) and (4) pertaining to other sources of funding and the AML priority
1 and 2 criteria.
OSM has accepted these comments in part. As stated before regarding
another comment, the alternative bonding system in a State would
normally foreclose the AML eligibility of sites abandoned after a State
achieves primacy so long as the alternative system was solvent and
applicable to the remaining work. This is a matter that may require a
case-by-case determination. OSM does not however, believe that it has
to adopt a definition of ``immediately available'' to mean ``in-hand''.
The term ``immediately available'' is one that may depend on State
specific criteria. OSM believes that it is necessary for each State to
address this issue in its legal eligibility opinion. Furthermore, if a
site is reclaimed using Title IV funds, there is no requirement that
the site be reclaimed to Title V standards. The State bond pool where
applicable, or the operator, is still liable for meeting the full Title
V standards. The State AML program may design the reclamation it
believes best addresses the situation within its own budget restraints
and such reclamation could, but does not have to, meet Title V
standards. Finally, OSM has not accepted that part of the comment that
asked for the deletion of Sec. 874.12(d) (3) and (4). These
requirements are found directly in the language of the 1990 amendments.
One commenter stated that it was unclear whether the term ``site''
in 30 CFR 874.12(f) referred to the actual site where the AML funds are
applied or the entire interim permit. This commenter stated that it
would be more appropriate to use the term ``permit'' rather than
``site''. The proposed regulation did not appear to give the State/
Indian tribe the authority to reclaim a priority 1 or 2 site within an
interim permit site using AML funds and use the posted bond money, once
collected, to supplement reclamation on other areas of the same permit,
the commenter said. A scenario would be an interim program permit with
incremental bonding that is currently under a time consuming bond
forfeiture process. There is an extremely dangerous highwall requiring
immediate attention on Bond Area A which has a $75,000 bond earmarked
for this reclamation. The State/Indian tribe elects to apply for and is
awarded $100,000 of AML funds to reclaim the dangerous highwall. After
the highwall is reclaimed, the entire bond for all increments is
collected. According to the proposed regulations, the State/Indian
tribe could not retain the $75,000 earmarked for Bond Area A to
supplement the remaining reclamation, but rather must reimburse the AML
Reclamation Fund for the amount expended, unless the bond money was
needed to do additional work at the site that was reclaimed with AML
money.
OSM has accepted this comment and has clarified the regulation to
note that recovered monies need only be transferred if no further
reclamation of the ``permitted site'' is required.
Another commenter stated that it supported including of language in
subsection (f) that would require the utilization of existing monies
from bond forfeitures and likewise inclusion of language in subsection
(g) to prevent unjust enrichment.
The commenter believes the Act's language ``available funds are
insufficient to reclaim[,]'' plainly suggest that those other funds
must be expended on the reclamation in conjunction with the AML funds
that might be dedicated to reclamation. The commenter believes that it
is pivotal that the operator who defaulted on reclamation obligations
remain liable, both for additional reclamation at the site where AML
funds are expended in conjunction with available forfeiture funds, and
further that the responsible entity be blocked from obtaining Title V
permits until such time as both the site is reclaimed and all monies
expended from AML awards be repaid to the State or OSM as appropriate.
In Kentucky, for example, current law allows a party who has
defaulted on reclamation obligations to regain access to new mining
permits on abatement of violations and restoration of the site. It is
important that violations that have been written against the
responsible entity not be vacated, as one commenter suggested, to avoid
both unjust enrichment and subsequent mining by an entity whose
failures have been offset through the use of AML funds. Repayment
should be included in subsection (g).
Sections 874.12 (f) and (g) in the final regulations require the
use of existing monies from bond forfeitures and avoids unjust
enrichment of defaulting operators. The regulations require the
permittee of a site to reimburse the AML fund for the cost of
reclamation which is in excess of any bond forfeited to ensure
reclamation.
Another commenter stated that in providing that neither the
Secretary nor the State performing reclamation is liable for Title V
violations, the rules do not properly recognize that a third party
performing reclamation pursuant to a State or Federal AML contract must
meet the obligations of the National Pollutant Discharge Elimination
System program under the Clean Water Act. This continuing obligation to
control sediment and other parameters to assure that no water quality
violations occur during reclamation should be clarified in the final
rule or preamble.
OSM has declined to make any changes to the regulations based on
this comment. All AML programs are responsible for insuring that all
Federal, State, or local permitting laws or requirements are met. There
is nothing in SMCRA which relieves an AML agency from such
responsibilities. This has been standard agency practice since the
beginning of the AML program and is already clearly set forth in the
1980 AML reclamation guidelines.
Another commenter stated that it supported the statement in OSM's
preamble to the proposed rules at page 57387 that the reclamation
standards applicable to AML work on bankrupt surety sites and other
post-August 3, 1977 sites are not those specified in Title V but
instead are the AML program's reclamation guidelines. Any other
interpretation would be inconsistent with past practice and would
greatly inhibit effective AML work at these sites. OSM agrees with this
comment and has made no changes to the final rules regarding
reclamation guidelines.
Section 874.13 Reclamation Objectives and Priorities
This section sets forth the reclamation priorities listed in
Section 403(a) of the Act. The provisions in this regulation have been
expanded and clarified. Subsection (a), like the original Sec. 874.13,
specifies that reclamation projects, as applicable, should be
accomplished in accordance with OSM's ``Final Guidelines for
Reclamation Programs and Projects'' (45 FR 14810-14819, March 6, 1980).
Subsection (b) specifies that the priorities in Section 403(a) of the
Act be followed.
To implement the directive that AML resources be directed to the
highest priority problems, OSM is including a new requirement in
Sec. 874.13(b) specifying that, in general, lower priority projects
(priority 3 or below) should only be undertaken if (1) All known higher
priority projects either have been addressed or are in the process of
being reclaimed (i.e., included in a current grant request) or (2) such
lower priority projects are undertaken in conjunction with a priority 1
or 2 site. However, it must also be noted that final rule language
differs from that proposed in that the word ``generally'' has been
inserted in Sec. 874.13(b). This was done to expand the original
proposed language to allow greater flexibility in performing lower
priority reclamation work.
Two commenters questioned whether OSM would allow States to do
priority 3 projects when remaining priority 1 or 2 projects are either
in the process of being reclaimed or should be deferred (e.g., due to a
potential for private reclamation, lack of adequate reclamation
technology, lack of landowner consent, or proper grant management).
One commenter noted that the proposed Sec. 874.13(b) states that
projects lower than a priority 2 may not be undertaken until all known
high priority projects have been or are in the process of being
reclaimed, are funded, or are done in conjunction with priority 1 or 2
sites in accordance with OSM's ``Final Guidelines for Reclamation
Programs and Projects'' (1980 Guidelines). The commenter notes that the
selection criteria in the 1980 Guidelines require that the following
criteria, among other things, be considered prior to selecting sites
for reclamation:
Landowner consent for post reclamation maintenance
Public and/or multiple benefits
Probability of success using current technology
Future remining potential
Post reclamation plan use benefits
In response to these comments, OSM has included the word
``generally'' in the final regulation in order to allow greater
flexibility in performing lower priority reclamation work. Further, OSM
recognizes that site-specific situations related to the criteria listed
above can develop which may require postponement of priority 1 or 2
sites. If this occurs, and no other priority 1 or 2 sites are available
or meet the selection criteria of the Guidelines, a State or Indian
tribe may reclaim lower level priorities if it is consistent with the
State or Indian tribe's approved Reclamation Plan and such work
reflects the order of priorities listed in Section 403 of the Act.
Likewise, there may be instances when a State or Indian tribe is aware
of eligible land previously affected by coal mining but believes it
does not warrant expending AML funds to restore or reclaim that area
since current site conditions do not warrant consideration under the
priorities established under the Act. Also, where a landowner refuses
access to the property, reclamation need not be undertaken unless site
conditions meet the standards established in Section 407(a) (1) and (2)
and the State/Indian tribe reclamation plan provides a mechanism for
implementing Section 407 at the subject site. Postponement of higher
priority sites in accordance with the 1980 Guidelines, for reasons
beyond the control of the administering agency, does not preclude a
State/Indian tribe from utilizing State share funds for lower priority
work, as long as all discretionary funds still go toward priority 1 and
2 work. The regulations have been revised to add this flexibility. The
general rule, however, is that the States/Indian tribes should follow
the priorities in the order stated; lower priority projects should be
undertaken in conjunction with high priority projects. In addition,
Federal share funds cannot be utilized to fund lower priority projects
due to the specific limitations in the 1990 amendments.
Additional guidance concerning the reclamation of lower priority
projects in conjunction with the reclamation of higher priority
projects is found in OSM's ``Final Guidelines for Reclamation Programs
and Projects'' (45 FR 14810-14819, March 6, 1980).
Although no regulatory changes have been proposed, OSM notes that
the Energy Policy Act of 1992 deleted the fourth priority regarding
coal research originally found in Section 403(4). OSM has notified all
States that grant requests for research funding pursuant to Section
403(4) of SMCRA is no longer authorized.
Section 874.14 Utilities and Other Facilities
Section 874.14 sets forth the requirements for funding water
projects, including the protection, repair, replacement, construction,
or enhancement of facilities relating to water treatment, supply or
distribution. In the 1990 amendments to SMCRA, Congress specifically
recognized the severe public health hazards that are associated with
water supplies contaminated by abandoned coal mine workings. As pointed
out in the Committee report accompanying H.R. 2095:
For many areas of the Appalachian Region groundwater resources
used for household water supply have been contaminated as a result
of drainage from abandoned underground and surface mines. The
Committee strongly believes that when abandoned mines have degraded
groundwater quality or depleted groundwater quantity to such an
extent that citizens no longer have an acceptable supply, an adverse
impact on health, safety and the general welfare is self evident.
H.R. Report No. 294, 101st Congress, 1st Session 24 (1989).
To reflect the new provisions regarding the funding of water
projects, OSM is promulgating a new Sec. 874.14. Subsection (a)
provides that a State/Indian tribe not certified under Section 411(a)
of the Act may expend up to 30 percent of the funds granted annually
from State share or historic coal distribution share to such State or
Indian tribe for the purpose of protecting, repairing, replacing,
constructing, or enhancing facilities relating to water supply,
including water distribution facilities and treatment plants, to
replace water supplies adversely affected by past coal mining
practices.
Subsection (b) implements Section 403(b)(2) of the Act by modifying
the eligibility standards in 30 CFR 874.12(b) by stating that the water
supply projects remain eligible if the State or Indian tribe finds in
writing that the adverse effects to the water system processes are due
predominately to effects of mining processes undertaken and abandoned
prior to August 3, 1977.
Subsection (c) as proposed would have provided criteria for not
only funding projects to repair or replace existing water facilities,
but also to enhance them. In order to receive monies to enhance public
facilities, States would have had to demonstrate and the Director
concur in the finding that: (1) Monies from other sources are either
not available or such other sources are contributing their fair share
of construction funds, (2) there is an urgent need to undertake the
project which gives it the same or higher priority than projects
remaining, and (3) the enhancement of the facility is necessary to
achieve the objectives set forth in Title IV of SMCRA. These
requirements, however, have been removed from the final rules based on
the comments received.
Several commenters objected to the detailed requirements set forth
in proposed Sec. 874.14(c) regarding alternative funding sources for
water projects. They state that the statutory language in Section
403(b) and its legislation history do not provide any basis for this
financial information. If a State chooses to fund a water project
involving water supplies predominantly contaminated prior to August 3,
1977, and that condition is a hazard to human health and safety, OSM,
they believe, should have no discretion to disapprove it. The
availability of other funding sources is irrelevant to the inquiry.
Some commenters objected further by stating that OSM has no
authority to require documentation that the water supply is a public
health hazard. Many of the typical mine drainage pollution constituents
such as iron, manganese and sulphur are considered secondary
recommended water quality parameters. They believe that it is almost
impossible to establish a direct health hazard without extensive
research that might take years to accumulate at a significant expense.
Water supply loss and quantitative diminution, as well as qualitative
damage to ground supplies, should be accorded the highest priorities
for abatement, giving particular emphasis to the loss of or damage to
private water wells where no public water supply system is available as
an alternative source of water. The treatment of AML projects related
to replacement of water supplies damaged in quality or quantity by past
mining, as priority 5 projects, is inconsistent with the language of
the Act and with the expressed legislative concern.
Two commenters agreed with OSM's conditions on the funding of
projects related to the construction or enhancement of water
facilities. These commenters also urge OSM to adopt further limitations
which were discussed in the proposed rule preamble and to deny funding
for projects when the agency cannot by clear and convincing evidence
determine the extent to which problems result from past mining
practices or their non-AML problems. Even priority 5 projects must
involve facilities adversely affected by coal mining.
OSM has reviewed carefully all comments regarding water projects
and, as urged by the vast majority of commenters, has decided to delete
the requirements regarding alternative funding sources. The States and
Indian tribes have been granted the exclusive responsibility to
administer their AML programs. This approval carries with it the
responsibility to administer the AML program in an efficient manner and
to carefully consider all expenditures. States are responsible for
specific funding selections; however, compliance with the State's
approved reclamation plan is subject to OSM oversight. States/Indian
tribes are granted only limited funds, and it is ultimately their
responsibility to use such monies wisely.
The Energy Policy Act of 1992 also affected the eligibility
criteria as they relate to water projects specified in Section 403(b)
of SMCRA and 30 CFR 874.14 of the proposed regulations.
In 1992, as part of the Energy Policy Act amendments to Title IV,
Congress extended authority to States and Indian tribes to undertake
water projects on lands eligible under Section 402(g)(4) of SMCRA, that
is, certain lands affected after August 3, 1977. Accordingly, projects
now remain eligible for reclamation if the States or Indian tribes find
that the adverse effects to the water supplies are due predominantly to
effects from mining practices undertaken prior to November 5, 1990 (see
dates listed in Section 402(g)(4) of SMCRA). To implement this
statutory requirement, OSM has deleted proposed paragraph (c) as
discussed above and replaced it with a new paragraph (c) regarding the
eligibility of water supply projects. The new language in paragraph (c)
tracks the statutory requirements; no comments are therefore needed.
Finally, a new subsection (d) is added stating specifically that an
enhancement of a facility or utility would include upgrades necessary
to meet local, State, or Federal health, safety or other applicable
code requirements. For example, access ramps for handicapped
individuals would be eligible improvements. Enhancement would not
include, however, any service area expansion of the utility or facility
which is not necessary to address a specific AML problem. For example,
if a water system is damaged by subsidence, a State could possibly
increase the size of the replacement pipes for the water system and
thereby increase the carrying capacity. The State, however, would not
be allowed to use AML funds to extend the water system to an area or
town not adversely affected by the AML problem.
Section 874.15 Limited Liability
A new Sec. 874.15 (Limited liability) reiterates the language of
Section 405(l) of SMCRA which provides that no State or Indian tribe
shall be liable under Federal law for any costs or damages as a result
of any action or omitted action while carrying out an approved
abandoned mine reclamation plan. This section, however, does not
preclude liability for gross negligence or intentional misconduct by a
State or Indian tribe. OSM intends to conduct discussions with the
Environmental Protection Agency (EPA) regarding the funding of projects
which may be eligible under the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (CERCLA).
One commenter sought clarification of the language in 30 CFR 874.15
as to whether this provision limits liability only under SMCRA or also
under other Federal laws. The statutory language limits liability under
all Federal laws, not just SMCRA, in carrying out an approved State or
Tribal abandoned mine reclamation plan.
Section 874.16 Contractor Responsibility
A new Sec. 874.16, ``Contractor responsibility'' has been added to
the regulations. This regulation specifies that to receive AML funds
every successful bidder for an AML contract must be eligible under 30
CFR 773.15(b)(1) at the time of contract award to receive a permit or
conditional permit to conduct surface coal mining operations. Such
eligibility must be confirmed by OSM's automated AVS.
In the proposed rules published November 8, 1991, 56 FR 57376,
57401, OSM had proposed a similar provision as part of the state grants
provisions in 30 CFR part 886. This provision would have established a
grant condition requiring States, prior to contract award, to ensure
that a successful bidder for a project funded by the grant is not
precluded under Sec. 773.15(b)(1) from receiving a permit or
conditional permit to conduct surface coal mining operations. To
satisfy this condition, the State would have had to check OSM's
automated AVS for each contract to be awarded, and verify such
information with OSM. By making those who are listed as violators or
linked to violators through ownership or control ineligible for AML
contracts, OSM intended to deny those certain parties the opportunity
to share in the utilization of public AML funds.
Due to comments regarding grant conditions and the applicability to
Federal agencies, OSM decided to move the provision to Part 874--
``General Reclamation Requirements''. By placing the requirement in
this part, OSM is able to specify that the section applies to both the
Federal Government and the States/Indian tribes. If the State or Indian
tribe does not now have the legal authority to implement such
requirements, then pursuant to 30 CFR 884.15, the State or Indian tribe
must adopt the appropriate statutory and/or regulatory authority as an
AML plan amendment. OSM will cooperate with the States and Indian
tribes to assist in making the required statutory and/or regulatory
changes and provide a phase-in period as determined on a case specific
basis that takes into account the particular regulatory process in each
jurisdiction. OSM considers the implementation of these changes to be
an important priority item in view of the shared OSM and State/Indian
tribe commitment to implement this concept and will work to achieve
prompt action.
The requirement in Sec. 874.16, as now formulated, stipulates that
in order to receive a contract to conduct AML activities, a person must
be eligible under the regulations implementing Section 510(c) of the
Surface Mining Act to receive permits the regulations implementing to
conduct surface coal mining activities. This provision provides a tool
to OSM as well as the States/Indian tribes to help them prevent persons
with outstanding violations from conducting further mining or AML
reclamation activities in the State. Those persons who have outstanding
violations should not be allowed to benefit under Title IV of SMCRA
while such outstanding violations exist. Preclusion of Title IV
contract eligibility to persons owning and controlling surface coal
mining operations encourages compliance with Title IV and V
requirements by persons seeking AML contracts.
While OSM believes that there are a number of methods which might
be used by a State/Indian tribe to achieve this end, it acknowledges
that an ``AVS check'' is probably the least burdensome and time-
consuming. However, such a check presupposes that the potential
contractor has submitted ownership and control information and
violation history information to either OSM or the State regulatory
authority, for entry into the AVS. Once such data entry is
accomplished, the workload and time delay impacts on the Federal
Government, the State, or the potential contractor, should be minimal.
OSM, through its AVS Office in Lexington, will provide assistance to
any potential contractor to enter needed information into the AVS.
In order to provide information that will allow the States to meet
this requirement, potential contractors may submit to either OSM or the
State regulatory authority that ownership and control information
enumerated at 30 CFR 778.13(c) and (d). OSM believes that it is not
necessary to require other information listed in 30 CFR 778.13 and
778.14 from potential AML contractors. The AVS contains extensive
information on the ownership and control relationships and violation
history of a large majority of persons with outstanding violations of
the Act. This information should prove sufficient, when compared to the
information submitted by the potential contractor, to ensure that the
contractor is eligible under Section 510(c).
Several commenters stated that OSM's proposal to deny AML contracts
to successful bidders who may be listed on OSM's AVS, though appearing
sensible, has serious problems which need to be addressed before a
final rule is adopted.
One commenter outlined 8 problem areas. The following is a response
to those highlighted problems.
1. Pre-certification process. The commenter expressed concern that
AML emergency projects could be delayed for many weeks pending receipt
of contractor eligibility checks from the AVS office. This commenter
suggests that OSM adopt a pre-certification procedure in order to
facilitate the contracting process and to prevent such delays.
OSM will be available to work with any prospective AML contractor
to enter required ownership and control information into the AVS. AVS
Office staff in Lexington, Kentucky, routinely work with industry to
ensure that such information is complete and up-to-date. Once this
information is in the system, an AVS check requires a few minutes.
There is no requirement for a company to be actively seeking an AML
contract before it provides such ownership and control information to
OSM. Accordingly, OSM does not see any need to establish a formal pre-
certification procedure, nor does it anticipate time consuming delays
in achieving an AVS check.
Inquiries regarding AVS matters can be handled simply and
efficiently. They can be, and generally are, made by telephone.
Responses to such inquiries are routinely given in a matter of minutes,
not hours or days. In order to facilitate such requests, OSM's AVS
Office Program Support Branch maintains a toll free number, 1-800-643-
9748, that is available to answer eligibility questions. Further,
permit eligibility queries can be made by telephone, facsimile, in
person, or by overnight or regular mail directly to the AVS at its
Washington, DC. Headquarters, or at its Lexington, Kentucky, Field
Office. All State offices have similar capabilities to process AVS
checks.
OSM believes that companies bidding on projects should have the
responsibility to remain eligible to receive contracts by maintaining
current ownership and control information in the AVS system, and
avoiding the occurrence of violations which would make them ineligible.
2. Contract mining arrangements. The commenter is concerned that
companies who provide construction services to a mining company which
is permit blocked might be prevented from bidding on an AML project
because of their relationship to the blocked company. OSM holds
entities which ``own or control'' operations with outstanding
violations of the Surface Mining Act responsible for those violations.
Depending on the specific nature of the relationship between the
company seeking the AML contract and the blocked company, the AML
contractor may or may not be blocked. If the AML contractor simply
provided construction services to the blocked company, and was
therefore not an ``owner or controller'' of the operation in violation,
the AML contractor would not be blocked. On the other hand, if the AML
contractor was an owner or controller of the operation with the
violation, it would be blocked--which is the intent of this regulatory
provision.
3. State contracting authority. The commenter said that OSM did not
consider the impact of the regulation on State contracting systems.
OSM has considered the overall impact that complying with the
requirements of the regulation would have on reclamation contracting
procedures. It has concluded that the impact would be very slight. This
is especially true if the burden is placed on bidders to show their
eligibility early in the bidding process. (See 2 above).
4. Lack of statutory authority. A commenter said there is no
authority under SMCRA to regulate construction contractors. Therefore,
the regulation attempts to do what the Statute does not permit.
OSM disagrees. Section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2),
authorizes the Secretary to ``publish and promulgate such rules and
regulations as may be necessary to carry out the purposes and
provisions of this act.'' This grant of power is repeated in Section
413(a) of SMCRA, 30 U.S.C. 1243, which provides that ``the Secretary or
the State pursuant to an approved State program, shall have the power
and authority, if not granted it otherwise, to engage in any work and
to do all things necessary or expedient, including the promulgation of
rules and regulations, to implement and administer the provisions of
this title.''
OSM is of the opinion that these statutory grants of power amply
support the authority of the Secretary to promulgate this regulation.
5. APA requirements. The commenter claims that 30 CFR 773.15(b)(1)
was not intended to be applied to contractors bidding on AML projects.
To apply it now is contrary to the Administrative Procedures Act (APA).
OSM disagrees. OSM complied with all requirements of the APA in
promulgating and adopting 30 CFR 773.15(b)(1), and is complying with
all such requirements in promulgating this rule. This requirement was
discussed in the proposed rule published November 8, 1991 (56 FR 57376,
57401). OSM has received many comments on this proposed rule and after
carefully considering these comments, has decided to promulgate this
final rule with only slight modifications.
6. Constitutional challenge. The commenter claims that the
ownership and control rules adopted October 3, 1988, are
constitutionally deficient.
OSM disagrees. This question has already been raised, and is
currently being considered by the United States District Court for the
District of Columbia, National Wildlife Federation v. Lujan, No. 88-
3117 (D.D.C.), (consolidated with Nos. 88-3464, 88-3470). The court has
not yet ruled, nor did it enjoin OSM from enforcing the rule during the
pendency of the court challenge. OSM considers its actions to be
proper.
7. Innocent parties. The commenter said that innocent individuals
are being prevented from pursuing their occupations simply because of
their past associations.
OSM disagrees. Congress, in adopting Section 410(c) of SMCRA, 30
U.S.C. 1260, did not believe that individuals who own or control
operations with outstanding violations were ``innocent'' but instead
should be held accountable. All such persons have an opportunity to
rebut their ownership or control relationship to the violator. If they
cannot rebut this relationship, OSM believes it to be appropriate, as
well as consistent with Congressional intent, to prevent such
individuals from mining or benefiting from mining and reclamation
activities.
8. Unnecessary burden. The commenter says that adopting this rule
will cause an unnecessary burden because there is no limitation on how
far up or across the ownership and control chain an applicant must go
in providing information.
OSM disagrees. As mentioned earlier, this rule does not impose
separate information submittal requirements. In many instances,
information currently contained in the AVS will suffice. OSM currently
has proposed new ``permit information'' provisions in relationship to
AVS ownership and control requirements, Proposed Rule, Use of the
Applicant/Violator Computer System in Surface Coal Mining and
Reclamation Permit Approval, 56 FR 45780 et seq., (September 6, 1991).
As part of the process of considering comments on this proposal and
finalizing the rule, OSM is considering issues related to the limits
placed on permit information requirements.
In addition to the eight issues raised by the above commenter,
other commenters stated their opposition to the proposed rule, on the
basis that it would (a) be contrary to State contracting law and
unenforceable; (b) be time consuming; and (c) needlessly intrude upon
State sovereignty.
OSM disagrees with all these points. In addressing (a), OSM notes
that States must adopt statutes and regulations that implement the
Federal requirements. Accordingly, if this requirement does conflict
with State contracting laws, the States will be required to remedy this
situation by adopting the appropriate statutory and regulatory
authority. As previously noted, OSM considers the adoption of these
statutory and/or regulatory changes to be an important priority item.
OSM will cooperate with the States and Indian tribes to assist in
making required changes and provide a phase-in period as determined on
a case specific basis that takes into account the particular regulatory
process in each jurisdiction. As to (b), as OSM noted above under 1,
AVS checks can be performed very rapidly. Furthermore, regarding (c),
OSM does not believe this intrudes upon State sovereignty. Rather, OSM
believes that this regulation represents an additional tool to be used
by the States to ensure that mining and reclamation activities are
conducted to the highest possible standards by the most qualified and
responsible persons available.
Another commenter noted that the rule was unnecessary, since States
already have the ability to prevent contractors from receiving AML
contracts based on their record of past performance and other factors
without mandatory AVS checks. OSM points out that this regulation
requires mandatory AVS checks. That is, it requires that a successful
bidder for an AML contract be eligible to receive permits to mine under
30 CFR 773.15.
Part 875--Noncoal Reclamation
General
Part 875 sets forth the requirements for reclamation of noncoal
mined lands and water conducted under Title IV of SMCRA by State and
Indian Reclamation Programs. OSM is altering the contents of several
provisions and adding additional subsections to reflect Congress's new
directive regarding the funding of noncoal projects. Sections 875.1 and
875.11 are not being revised. In essence, Congress has created a two-
tiered process for addressing noncoal problems. Prior to completing all
known coal problems, Congress has limited a State's/Indian tribes's
ability to do noncoal work. This is shown in Sec. 875.12. A State/
Indian tribe desiring to implement a greatly expanded noncoal
reclamation program (see Secs. 875.14-19), or what could be called the
second tier, would first have to certify that it had completed all
known coal problems and the Director would have to concur in the
finding (see Sec. 875.13).
Section 409 of SMCRA, as enacted in 1977, authorized States and
Indian tribes to undertake noncoal reclamation activities if: (a) the
Governor of a State or the Chairman of an Indian tribe requested
funding and the State had either completed all known coal reclamation
objectives or (b) if coal problems remained, the project for which
funding was requested was necessary to protect the public health and
safety. The Secretary has no independent authority to undertake noncoal
reclamation activities, and only the States and Indian tribes,
utilizing AML funds allocated pursuant to Section 402(g)(2) (as amended
in 1990, this section is now Section 402(g)(1)), could carry out such
tasks.
In 1982 OSM established the eligibility criteria for noncoal
projects utilizing its rulemaking authority under Section 412(a) of
SMCRA. Essentially, the eligibility criteria that applied to coal were
also applied to noncoal. OSM had reviewed the legislative history of
Section 409 and concluded that Congress intended the eligibility
requirements for noncoal reclamation be consistent with the statutory
eligibility requirements contained in Section 404 of SMCRA that applied
to coal mined lands and waters. Since the source of the funds for all
reclamation conducted under Title IV of SMCRA comes from a fee
collected from coal mine operators, less stringent requirements for
noncoal reclamation cannot be logically justified in fairness to the
coal mine operators. Moreover, there is no basis in the legislative
history of Section 409 (30 U.S.C. 1239) to justify a conclusion that
Congress intended to allow funding for reclamation on noncoal mineral
lands and water abandoned after August 3, 1977.
The noncoal regulations did not contain a definition of what
constituted a threat to the public health and safety (i.e. in order to
receive funding for a noncoal project prior to the completion of all
coal problems) nor did they explicitly establish a formal procedure to
follow regarding the transition from a coal reclamation program to a
noncoal reclamation program.
As to the issue of what constituted a threat to the public health
and safety, OSM did establish a policy providing that: (a) There must
be a clearly definable threat; (b) the threat must present a danger
that results in a high probability of serious physical harm to the
health or safety of people; (c) the threat cannot await resolution
until all coal projects have been completed; (d) the project must be
necessary and appropriate to abate, control, or prevent the threat; and
(e) there is no private party legally responsible under any other
Federal or State law to abate, control, or prevent the threat.
Similarly, in regard to a State's transition to a noncoal program,
OSM established a procedure requiring a specific review of a State's
finding prior to funding noncoal projects. The significant features of
the procedure were: (1) Coordination with the State regarding its
finding that all coal problems had been addressed; (2) notification of
the public, through publication in the Federal Register, regarding the
State's finding of the completion of all coal problems and/or specific
request for comments; and (3) assuring no known coal problems are
unaddressed and an agreement with the State that if eligible coal
problems occur in the future, the State would give such projects its
highest funding priority.
OSM has in the past provided flexibility to the States in making
the finding that all known coal problems have been addressed. This was
done in two specific ways. First, OSM did not order an independent
analysis of the State's certification since such an analysis would not
only be time consuming and costly, but it could cause an unnecessary
disruption of the efficient distribution of funds to the State (i.e. no
monies would be granted to a State until a study had been completed).
Second, the Secretary did not require that all coal projects actually
be completed; rather, it was sufficient that all coal problems had
either been addressed or were in the process of being addressed through
a current grant application. Again, the rationale for not waiting until
the coal projects were completed was to avoid, as much as possible, an
interval where the State's administrative staff would be idle awaiting
the completion of one final project. OSM believes this process was in
accord with the Congressional mandate in Section 405(d) granting the
State ``exclusive responsibility and authority to implement the
provisions of its approved program.''
Such flexibility, OSM believed, was warranted since it provided for
the efficient utilization of funds and personnel and did not jeopardize
the State's ability to address any coal problems which might have been
missed or might arise in the future. In order to obtain the Secretary's
concurrence that all known coal problems had been addressed, a State or
Indian tribe would have to agree to give any coal problem which might
arise in the future its top funding priority. Thus, the transition from
a coal program to a noncoal program did not jeopardize funding future
coal reclamation and allowed States flexibility in how they utilized
their funds and planned for the transition.
The amendments to Title IV enacted in 1990 significantly affect how
and when a State/Indian tribe undertakes noncoal reclamation
activities. There are eight major provisions.
First, prior to the completion of all coal problems, a State or
Indian tribe now can undertake only noncoal projects which protect the
public health, safety, general welfare, and property from the extreme
danger of the adverse effects of mining practices. In other words, a
priority 1 type of project (see Section 403(a) of SMCRA).
Second, the amendments specifically adopt the same eligibility
requirements that are applicable to coal reclamation work.
Third, following certification by a State or Indian tribe of the
completion of all known coal problems and the Secretary's concurrence,
the State or Indian tribe may establish a noncoal reclamation program
which utilizes the top three priorities applied to coal projects
(extreme danger, danger, and environmental--Section 411(c));
establishes eligibility criteria for lands and water which are similar
in most respects to the criteria originally enacted in Section 404 of
SMCRA in Public Law 95-87; and utilizes the same lien requirements and
land acquisition authorities that would be applicable to coal.
Fourth, Congress specifically expanded the scope of funding
involving projects relating to the protection, repair, replacement, or
enhancement of facilities utilized by the public which are affected by
coal or noncoal mining activities.
Fifth, Congress adopted language which would allow the Secretary to
approve funding for projects where the Governor of a State or the head
of a governing body of an Indian tribe determined there is a need for
activities or construction of specific buildings or facilities related
to coal or mineral industry in States or on Indian lands impacted by
coal or minerals development.
Sixth, Congress specifically prohibited funding for projects which
are designated for remedial action pursuant to the Uranium Mill
Tailings Control Act of 1978 (42 U.S.C. 7901) or which have been listed
for remedial action pursuant to the Comprehensive Environmental
Response Compensation and Liability Act of 1980 (42 U.S.C. 9601).
Seventh, Congress enacted limited immunity for States and Indian
tribes under any provision of Federal law for any costs or damages as a
result of action taken or omitted in the course of carrying out an
approved abandoned mine reclamation plan.
Eighth, Congress provided that nothing in the amendments should be
construed to affect the certifications made by the States of Wyoming,
Montana, and Louisiana.
To explain these eight major revisions to the noncoal reclamation
authority in SMCRA, OSM has made several amendments to part 875.
Discussion
Section 875.10 Information Collection
OSM added a Sec. 875.10 which deals with the information collection
requirements contained in part 875. This section contains a list of the
information collection requirements contained in part 875, the OMB
clearance number, the estimated reporting burden per respondent for
complying with the information collection requirements and the OSM and
OMB addresses where comments regarding the information collection
requirements may be sent.
Section 875.12 Eligible Lands and Water Prior to Certification
OSM has established two eligibility sections. The first,
Sec. 875.12, reflects Congress' directive to limit expenditures for
noncoal projects until a State had certified that all known coal
problems had been addressed. Subsection 875.12 specifically limits
funding prior to certification to lands which were mined and abandoned
prior to August 3, 1977; when there is no continuing reclamation
responsibility; and when the project relates to the protection of the
public health, safety, general welfare, and property from extreme
danger of adverse effects of noncoal mining practices (i.e., a priority
1 project--see Section 403(a) of SMCRA). SMCRA as enacted in 1977 was
broader in scope and had allowed States to undertake noncoal projects,
prior to completing all coal projects, if the noncoal project related
to the protection of the public health and safety. OSM has tried to
treat States and Indian tribes similarly. Thus, the language in
Sec. 875.12 would provide that the Governor of a State or the
equivalent head of an Indian tribe would have to request the noncoal
funding.
Congress directed the limiting language of Section 409 due to a
perception that OSM had been lax in allowing the States to use funds
for noncoal purposes prior to their certifying the completion of all
known coal projects. By limiting noncoal projects to a priority 1 type
problem (extreme danger), Congress intended to limit the use of AML
monies for noncoal projects in States which had not completed all
abandoned coal mine projects. H.R. Report No. 294, 101st Congress, 1st
Session 32 (1977).
The second eligibility section is Sec. 875.14 which greatly expands
the noncoal reclamation capabilities of the States and Indian tribes
and is only applicable after a State or Indian tribe has met the
certification requirements set out in Sec. 875.13. This subsection is
discussed after Sec. 875.13.
One commenter stated the preference that noncoal AML reclamation be
allowed as long as all known coal projects are completed or have been
funded by OSM and the State/Indian tribe is in the process of
certification. This would be in keeping with past practices and would
allow the proper transition to noncoal reclamation.
Another commenter stated that States/Indian tribes should be
required to certify the completion of all coal problems prior to
obtaining certification and the right to proceed to noncoal reclamation
activities.
OSM has decided not to place new limitations when noncoal projects
can be initiated by the States/Indian tribes. Noncoal projects may be
funded when all AML coal projects have either been accomplished or
funds have been granted to carry out the remaining coal projects. If
States/Indian tribes had to wait until the last coal projects were
actually completed, the State AML staff might be idle for two or three
years. Nothing would be gained by such a delay. OSM currently requires
that if coal projects are identified, such projects must be given top
priority by the States/Indian tribes. Thus, even though States/Indian
tribes may be allowed to move on to noncoal projects prior to the
actual completion of all coal reclamation activities, OSM is confident
that coal work, whenever it is identified, will be given top priority.
Moreover, given the certification review process, OSM believes that if
known abandoned coal lands still exist, they will be identified through
this review process. Once identified and brought to the State's/Indian
tribe's attention, such coal projects would then have to be addressed
before certification could be finalized.
Section 875.13 Certification of Completion of Coal Sites
This section sets forth the requirements necessary for a State/
Indian tribe to fully implement a noncoal reclamation program. In order
to fully implement a noncoal reclamation program as set forth in
Section 411 of SMCRA, a Governor of a State or the equivalent head of
an Indian tribe would have to certify to the Secretary, who has
delegated this certification authority to the Director of OSM, that the
State/Indian tribe had achieved all known coal related reclamation
objectives (i.e., priorities 1 to 5). Section 875.13(a) provides the
requirements for this certification. Briefly, a State/Indian tribe has
to provide a discussion regarding the process and rationale for its
certification, along with an analysis of the public involvement process
it used and any public comments. These materials would assist the
Director in his concurrence finding and ensure that the State/Indian
tribe properly canvassed the public to ascertain whether, indeed, all
coal problems had been addressed.
Subsection (b) describes the Director's review of the certification
process. At a minimum the Director would prepare a Federal Register
notice informing the public of the State's/Indian tribe's proposed
certification. After a review of the public comments and any other
relevant information, the Director would publish a final notice
regarding his decision. If the Director concurs in the State's/Indian
tribe's finding, such concurrence would be premised on the State's/
Indian tribe's pledge to immediately give the highest priority to any
coal problems which thereafter arise. If a coal problem does occur, the
State/Indian tribe would carry out the coal reclamation activity under
the State/Indian tribe authorities relating to coal and not pursuant to
the noncoal authority in Section 411 of SMCRA.
Section 875.14 Eligibility of Lands and Water Subsequent to
Certification
This is the second eligibility section for noncoal. This subsection
marks the beginning of the provisions relating to a State's/Indian
tribe's noncoal reclamation program, a program which is only
implemented after the requirements set forth in Sec. 875.13 have been
met.
The new eligibility requirements allow funding for lands, waters,
and facilities which were mined and abandoned in an inadequate
reclamation status prior to August 3, 1977, and for which there is no
continuing reclamation responsibility under State or other Federal
laws. In determining eligibility under this subsection, for Federal
lands, waters, and facilities under the jurisdiction of the Forest
Service or Bureau of Land Management, in lieu of the August 3, 1977
date, the applicable dates are August 28, 1974 and November 26, 1980,
respectively. As noted in H.R. Report 294, these dates refer to the
promulgation of surface management regulations for Mining Law of 1972
operations by these agencies. H.R. Report No. 294, 101st Congress, 1st
Session 34 (1989).
A subsection (b) has also been included in section 875.14 to
clarify that if a coal problem is found or occurs after certification a
State/Indian tribe is required to address this problem utilizing State/
Indian tribe share monies no later than the next grant cycle. No
Federal share monies will be distributed to a certified State/Indian
tribe regardless of whether coal problems occur. In addition, States/
Indian tribes would be required to address the coal problems utilizing
its coal authority; that is, the State/Indian tribe plan provisions
relating to Sections 401 through 410 of SMCRA.
Section 875.15 Reclamation Priorities for Noncoal Program
This section establishes the reclamation priorities applicable to a
State/Indian tribe noncoal reclamation program following the
certification of all known coal problems. Reclamation projects
involving the restoration of lands and water adversely affected by past
mineral mining, as well as projects involving the protection, repair,
replacement, construction, or enhancement of utilities, such as those
relating to water supply, roads and other such facilities serving the
public adversely affected by mineral mining and processing practices
and the construction of public facilities in communities impacted by
coal or other mineral mining, would have to reflect three priorities.
The first priority is the protection of public health and safety
and general welfare from the extreme danger of adverse effects of
mineral mining processes. The second priority is the protection of
public health, safety, and general welfare from the adverse effects of
mineral mining. The third priority is the restoration of lands and
waters previously degraded by the adverse effects.
OSM notes that Section 411(c) of SMCRA only contains three
priorities. There was some confusion, therefore, expressed by
commenters regarding a fourth priority set forth in OSM's proposed
rule. Based on comments received, and its review of the statutory
language OSM has decided to delete this fourth priority in the final
rule.
OSM agrees with the commenters that the best way to deal with
community impact assistance issues is not to create a fourth priority,
but rather to follow the explicit language of the amendments to Title
IV of the Act and to relate these projects back to one of the three
priorities listed in Section 411(c) of SMCRA. Accordingly, OSM has
deleted the reference to a fourth priority in the final rules. If a
State wishes to undertake a project relating to community impact
assistance pursuant to Section 411(e) of SMCRA, then it must prioritize
such a project based on the priority language specified in Section
411(c) of the Act.
Subsection 875.15(c) addresses the issue of ``enhancement.'' The
noncoal reclamation priorities provide for projects which protect,
repair, replace, or ``enhance'' facilities or utilities that may be
adversely affected by mining processes or practices. In order to
provide some parameters involving the scope and size of ``enhancement''
projects, OSM's proposed rules contained detailed criteria relating to
the availability of alternative funding sources. This information would
have been used to assess the necessity for funding these types of
projects. In response to comments received on the proposed rule,
however, OSM has elected to drop these criteria. They are not mandated
by SMCRA, and they could infringe upon the Congressional directive in
Section 405(d) of SMCRA that States are to be given the exclusive
responsibility and authority to implement the provisions of the
approved program.
States and Indian tribes will be allowed to enhance facilities or
utilities in order to meet local, State, or Federal public health,
safety or other applicable code requirements but would not be able to
use AML funds to expand the service area of a utility or facility
service to another area under Sec. 875.15(a), (b) or (c) if it is not
necessary to address an AML problem. For example, although a State may
replace and upgrade (enhance) a waterline damaged by past mining, it
would not be able to use the authority in Section 411(e) regarding
``enhancement'' to use AML funds to extend the waterline to a nearby
community not impacted by the AML problem. We note, however, that such
an extension might be authorized under the provisions of Section
411(f).
Subsection (d) addresses a new provision in SMCRA (Section 411(f))
which allows a State to request funding notwithstanding the priorities
in Section 411(e) for a public facility if a Governor of a State or the
head of a governing body of an Indian tribe determines there is a need
for the construction of the public facility related to the coal or
minerals industry in States or on Tribal lands impacted by coal or
minerals development.
The proposed rules had required extensive public review and
detailed accounting of alternative funding sources. Many commenters
objected to such requirements as being unauthorized by SMCRA and an
intrusion into their ``exclusive responsibility'' to administer their
approved program. Section 411(f) requires that where a State/Indian
tribe determines there is a need for activities or construction, the
Secretary must concur in that need prior to the funding of such
activities or construction. It is clear that the State/Indian tribe
must first justify a need and then OSM must concur. OSM is concerned
that the AML Program, which is financed by a tax on coal production,
not be ``side tracked'' from its primary mission to reclaim lands and
waters damaged by coal and noncoal mining processes. Accordingly, prior
to approval, projects involving the construction of facilities pursuant
to Section 411(f) of SMCRA would be given extensive public review.
Subsection (e) would specify that each State grant application for
funding under Section 411(f) of SMCRA would have to include information
regarding (1) the need or urgency of the activity or facility; (2) the
expected impact on the mining industry in the State; (3) the
availability of funding from other sources; (4) the impact on the State
if the activity or facilities is not undertaken; (5) the reason why the
project was selected over other projects related to the public health
and safety or to the environment; (6) the extent of the public
involvement in the State's decision, and (7) funding decisions made by
other local, State, and Federal agencies with oversight for such
facilities.
These requirements would assist the Director in determining whether
a ``need'' exists, whether the public has been fully appraised and
informed of the request, and whether other Federal and State agencies
with primary responsibility for such facilities or activities have been
contacted and involved in the project design and funding request.
Several commenters objected to the requirements regarding the
submission of information on alternative funding sources for the
construction or enhancement of public facilities relating to Section
411(f) of SMCRA. The information is either not available or is
irrelevant, they argued. The State or Indian tribe need only meet the
requirements set out in Section 411 of SMCRA in order to qualify for
funding. Other commenters questioned how the ``availability of funds''
from other sources could ever be documented. These commenters believed
that all conditions other than those expressed in Part 411 of SMCRA
should be deleted.
OSM disagrees with this comment and has decided to retain
requirements regarding the submission of alternative funding sources
for the reasons discussed above. Since Congress has specifically
directed that the Secretary concur in any State decision regarding the
requirements set forth in Section 411(f) of SMCRA, OSM believes that
this information is necessary to carry out such responsibilities.
Commenters also stated that OSM needs to clarify the distinction
between eligible assistance under Sections 411(e) and (f).
OSM sees no need to provide further regulatory language clarifying
the difference between Sections 411(e) and (f). Section 411(f) is
clearly outside the normal reclamation priorities and may be utilized
at any time after certification by the Governor of a State or head of a
governing body of a Indian tribe if the criteria in Section 411(f) are
met. OSM has not included detailed information requirements for public
facilities funding provided pursuant to Section 403(b) or 411(e) of
SMCRA. These sections specifically deal with facilities which have been
adversely affected by past mining abuses. SMCRA does not require any
concurrence by the Secretary for funding such projects. The scope of
public facilities funded under Section 411(f) of SMCRA, however, is
much greater. These projects are not related to any physical damage
from past mining. Rather they relate solely to situations where the
Governor of a State or equivalent head of an Indian tribe believes
there is a need for the facility and the facility is related in some
way to the coal or minerals industry in the State or Indian tribe.
Under such circumstances, the Secretary must concur. OSM views this
requirement and this situation as being distinct from other public
facility funding.
One commenter stated that neither Title IV nor the proposed AML
rule defines the term ``minerals industry'' as it is used in Section
411(f) of SMCRA. The commenter states that OSM should make it clear
whether the definition is the same as that found in Title V of the Act.
OSM agrees with the commenter. The term ``minerals industry'' as
used in section 411(f) of SMCRA refers to the same minerals as are
specified in Section 701(14) of SMCRA. However, no new regulatory
provisions are required.
A commenter stated that they did not believe that congress intended
to allow for the construction of public facilities under Section 411(f)
prior to reclamation of all adverse effects of past mining activities.
Accordingly, the agency should include language mandating the
completion of the priorities in Section 411(c) prior to approving any
such funding.
OSM disagrees with this comment and has made no changes to the
final regulations as suggested. As stated previously, OSM interprets
the language in Section 411(f) as being independent of the priorities
specified in Section 411(c) of SMCRA. That is, a State Governor or head
of a governing body of an Indian tribe may request funding for
activities pursuant to Section 411(f) at any time after certification.
There is no requirement that a State or Indian tribe complete all known
noncoal reclamation before utilizing this authority. The commenters'
premise is based on the original statutory language of Section
402(g)(2) as enacted in 1977. This section provided that once a state
had completed all of its coal and noncoal reclamation, it could utilize
AML funds for community impact assistance. This old statutory scheme
was deleted, and OSM can find no references in the legislative history
which supports the commenter's position. Indeed, if the commenter's
position were proper, logic would dictate that Congress would have
merely made the language in Section 411(f) the last priority specified
in Section 411(c) of SMCRA. This was not done, however, and there is no
reference to the priority section. In the absence of restricting
language in Section 411(f) or qualifying language in Section 411(c),
OSM believes the proper interpretation is to permit States and Indian
tribes to utilize the authority in Section 411(f) without regard to the
completion of the priorities specified in Section 411(c).
In line with the preceding rationale, OSM also declines to add the
additional language urged by the commenter. This language does not
specifically add any additional guidance that is not already available
to the States and Indian tribes.
Other commenters stated that they agreed generally with the need to
establish criteria for funding noncoal construction projects, as set
forth in proposed Sec. 875.15(d). However, they urged OSM to include a
provision that would prohibit any funding from AML sources to the
extent that funding is available form other State or Federal sources.
Otherwise, the State will have not made the requisite showing of
``need'' to construct such facilities. Insertion of such a limitation
would avoid using funds inappropriately for projects entirely unrelated
to correcting environmental problems from past mining practices.
OSM has declined to implement this comment. OSM does not interpret
the language in Section 411(f) as narrowly as the commenters suggest.
``Need'' does not necessarily mean that there are no other possible
sources of funds. How could one ever say that a certain government has
no available funds? Monies can always be transferred, or taxes raised.
The term ``need'' refers instead to the need for construction or the
need to undertake a specific activity. The allocation of State funds is
an internal State matter in which the Federal Government should not be
involved. The State has the responsibility to allocate its limited AML
funds in order to carry out the purposes of Title IV. This program is
but one small component of a much larger State budget system. When
reviewing a State or Indian tribe request for funding OSM will not look
at alternative funding sources but instead will confine its review to
analyzing the ``need'' identified by the State or Indian tribe.
One commenter noted that OSM plans to conduct discussions with EPA
regarding the funding of projects which may be eligible under CERCLA.
This commenter questioned whether States should check all potential
Title IV noncoal projects to ensure that they have not been listed on
EPA's National Priority List.
As stated in the rule, sites listed for remedial action under the
CERCLA are ineligible for funding under SMCRA. OSM believes therefore
that the Sates should take whatever measures they deem necessary to
ensure that this requirement is met.
Section 875.16 Exclusion of Certain Noncoal Reclamation Sites
This section sets forth noncoal reclamation sites which Congress
has specifically excluded from the coverage of SMCRA. Monies cannot be
used for the reclamation of sites designated for remedial action
pursuant to the Uranium Mill Tailings Radiation Control Act of 1978 (42
U.S.C. 7901 et seq.) or the Comprehensive Environmental Response
Compensation and Liability Act of 1980 (CERCLA) (42 U.S.C. 9601 et
seq.). OSM interprets this provision as allowing reclamation activities
to proceed on any noncoal site which is not listed on EPA's National
Priority List pursuant to Section 105 of CERCLA, 42 U.S.C.
9605(a)(8)(B).
Section 875.17 Land Acquisition Authority--Noncoal
This section makes the land acquisition provisions set out in
Section 407 of SMCRA and 30 CFR parts 877 and 879 of the Secretary's
regulations applicable to a State's/Indian tribe's noncoal reclamation
program. This section implements the provisions set forth in Section
411(g) of SMCRA.
Section 875.18 Lien Requirements
Section 875.18 makes the lien provisions of Section 408 of SMCRA
and 30 CFR part 882 of the Secretary's regulations applicable to a
State's/Indian tribe's noncoal reclamation program. This provision does
not alter OSM's original regulations in 30 CFR part 882 which holds the
lien requirements applicable to all reclamation on private land
regardless of whether it was mined for coal or noncoal purposes. Monies
recovered through the satisfaction of liens filed against privately
owned lands will continue to be handled in accordance with 30 CFR
872.12.
Section 875.19 Limited Liability
This section reiterates the language in Section 405(e) of SMCRA
which provides that no State or Indian tribe shall be liable under
Federal law for any costs or damages as a result of any action or
omitted action while carrying out an approved abandoned mine
reclamation plan. This section does not preclude liability for gross
negligence or intentional misconduct.
Section 875.20 Contractor Responsibility
A new Sec. 875.20, ``Contractor responsibility'' has been added to
the regulations. This regulation specifies that to receive AML funds
every successful bidder for an AML noncoal contract must be eligible
under 30 CFR 773.15(b)(1) at the time of contract award to receive a
permit or conditional permit to conduct surface coal mining operations.
Such eligibility must be confirmed by OSM's automated AVS. This section
is being added to assure consistency between coal and noncoal
reclamation programs.
The reader is referred to Sec. 874.16 for a parallel discussion of
this requirement. Comments received concerning the contractor
responsibility requirement may be found in the discussion of that
section and are applicable to both coal and noncoal reclamation.
Part 876--Acid Mine Drainage Treatment and Abatement Program
General
Because thousands of miles of Appalachian streams and numerous
waterways have been degraded and the biological life significantly
impaired or destroyed by acid mine drainage, Congress acknowledge a
need too engage in an abatement and treatment program for acid mine
damage through the Abandoned Mine Reclamation Act of 1990.
In response to the mandate by Congress, OSM promulgated Part 876.
Part 876 is an optional program for States/Indian tribes having an
approved abandoned mine land program. Up to ten percent of the funds a
State/Indian tribe receives through its annual grants, both from the
State/Indian tribe share and from amounts based on historical coals
production, may be deposited in a special interest-bearing fund and
used, without regard to lapsing of fund authority, for the purpose of
acid mine drainage treatment and abatement projects in qualified
hydrologic units. Plans for the use of this acid mine drainage
treatment and abatement fund, which must be authorized by State law,
are subject to approval by the Secretary who had delegated this
authority to the Director of OSM.
The acid mine drainage abatement and treatment plan is encouraged
to be developed in coordination with SCS. OSM will ask SCS and the
Director of the Bureau of Mines to comment on each proposed plan. The
intent of this coordination is to encourage joint efforts with projects
initiated by SCS under the Rural Abandoned Mine Program. This will
allow States/Indian tribes to address acid mine drainage problems on a
broader basis, i.e. qualified hydrologic units, instead of a more
restricted site specific approach. Through this joint approach it is
anticipated that more environmentally sound and cost effective methods
will be utilized. Projects to address acid mine drainage problems in
hydrologic units as defined as Sec. 870.5 are independent of the order
of priorities for projects under Section 403(a) of SMCRA.
Discussion
The term ``qualified hydrologic unit'' has been defined at section
870.5. OSM has interpreted the statutory language to mean those lands
and waters which are (1) eligible pursuant to Section 404 and include
any of the first three priorities as stated in Section 403(a), or (2)
proposed to be the subject of expenditures by the State/Indian tribe
(from amounts available from the forfeiture of bonds required under
Section 509 or from other State/Indian tribe sources) to mitigate acid
mine drainage. Based upon the legislative history, it was apparent that
the intent was to make both categories independently eligible for
funding.
Five comments were received regarding this interpretation. The
comments to a large degree merely pointed out the difference between an
``and'' found in Section 402(g)(7) of SMCRA and the ``or'' used in
OSM's proposed regulations. The issue is whether this term should be
limited to those units which contain both eligible Title IV and Title V
sites or whether it should also encompass units where only Title IV
sites exist or eligible Title V sites. OSM believes that Congress
contemplated all situations. OSM believes its definition for qualified
hydrologic unit is within the intent of Congress to provide a broad
comprehensive approach to the problem of acid mine drainage. A
qualified hydrologic until under a strict reading of the statute would
have to contain both Title IV and Title V AML sites contributing acid
mine drainage. Under the proposed and final rule, either Title IV lands
contributing acid mine drainage or Title V lands contributing acid mine
drainage could qualify. Adoption of this interpretation does not
preclude a combination of Title IV and Title V sites and thus allows
States significant discretion in setting priorities and focusing on the
most serious acid mine drainage problems within their boundaries. The
goal of the legislation is to contain and abate acid mine drainage
problems. To artificially limit this authority to only those units
which contain both Title IV and Title V sites appears unduly
restrictive and illogical and therefore not in furtherance of Congress'
intended goal.
One commenter raised the concern that the independent eligibility
of either Title IV or Title V sites provided in the proposal would
allow States to use the Fund to supplement inadequate Title V bonding
systems. This cannot be done. Bonding and bond pool requirements have
no relationship to the Fund and its objective to deal with acid mine
drainage on a comprehensive basis. While it is true that the
eligibility of Title V sites, in part, is tied to the bond forfeiture
sites by the definition of qualified hydrologic unit found at 870.5,
this is not intended to provide authority in any way to use the Fund to
supplement inadequate bonding systems. OSM wishes, however, to stress
that other Title IV funds or existing bond pool funds, or both, can be
used to address acid mine drainage problems under this program.
The same commenter asked for clarification for the reference to
``other State sources'' in the definition of qualified hydrologic unit
relative to qualified Title V units. OSM believes Congress' intent was
for State/Indian tribes to share a financial commitment to the acid
mine drainage problem associated with Title V activities while at the
same time providing ample flexibility to the State/Indian tribes. Many
sources of funding beyond bond forfeitures would be acceptable provided
there is a direct connection between the funding and the qualified
hydrologic unit.
It is noted that, with the exception of Sec. 876.1, the numerical
designations of the sections of part 876 have been revised in the final
regulation to reflect a more concise sequence.
Section 876.1 Scope
This paragraph describes the scope of the program to address acid
mine drainage treatment and abatement. No comments were received on
this paragraph which is adopted as proposed.
Section 876.10 Information Collection
This section deals with information collection requirements. Since
there were no comments, this section is being adopted as proposed.
Section 876.12 Eligibility
This section establishes eligibility criteria for States/Indian
tribes to receive funds and authorizes such funds to be deposited in
either an interest-bearing special fund established under State/Tribal
law or an acid mine drainage treatment and abatement fund established
under State/Tribal law.
One comment was received dealing with Sec. 876.12(b) and
recommended that States and Indian tribes have the authority to consult
directly with SCS and, at the option of the State or Indian tribe, with
or without OSM involvement. OSM wishes to clarify that it has no
planned involvement at the planning or implementation stages. OSM's
involvement is limited to approval of acid mine drainage abatement and
treatment plans by the Director prior to implementation. By statutory
mandate, however, the Director must give priority to those plans which
will be implemented in coordination with measures undertaken by the
Secretary of Agriculture under RAMP. The Director's action does not
preclude the States or Indian tribes from consulting with SCS during
development of the plan. Such coordination would have tangible benefits
and is encouraged.
The section is being adopted as proposed with one minor change to
Sec. 876.12(b). The reference to the Secretary approving plans in the
proposal is being changed to the Director in the final rulemaking. This
change is consistent with Sec. 876.14 of the proposal which provides
authority for approving plans to the Director and also reflects that
such program authorities in the past have commonly been delegated
through rulemaking to the Director for efficiency.
Section 876.13 Plan Content
This section outlines the major components of the State plans for
the comprehensive abatement of the causes and treatment of the effects
of acid mine drainage affected by coal mining practices.
No comments were received on this section. The section is being
adopted as proposed.
Section 876.14 Plan Approval
This section sets forth that the Director's process for approving
plans, obtaining comments from the Director of the U.S. Bureau of Mines
(BOM) with regard to acid mine drainage abatement and treatment
measures and associated costs and giving priority to plans that
complement efforts under RAMP.
One commenter raised concern with the perceived role of the SCS in
plan approval based on its limited expertise for this purpose. The
commenter also wished to work directly with SCS at the State level in
the development and approval of the plans with limited involvement of
OSM and SCS headquarters. OSM wishes to clarify that SCS at either the
State or National level has no direct responsibility for plan approval.
This responsibility rests exclusively with the Director of OSM. As
mentioned previously, however, coordination with RAMP efforts and SCS
at the State level is encouraged. This is expected to have the added
benefit of providing a basis for the Director to assign priority for
those plans that complement RAMP efforts as required Sec. 876.14.
The same commenter believed BOM was better suited than SCS to have
a lead role in plan approval. For the reasons explained above, BOM has
no direct role in plan approval. The BOM role has been limited by
Congress to a technical supporting role of providing comments on
abatement and treatment measures and associated costs for each plan as
needed by the Director of OSM in order to analyze the plans.
Part 886--State Reclamation Grants
General
This part sets forth procedures for grants to States having an
approved State reclamation plan for the reclamation of eligible lands
and water and others activities necessary to carry out the plan as
approved.
Discussion
OSM set forth a grant condition in the proposed rules requiring
States, prior to grant award, to ensure that a successful bidder for an
AML project funded by the grant is not precluded under 30 CFR
773.15(b)(1) from receiving a permit or conditional permit to conduct
surface coal mining operations. OSM has decided in the final rules to
retain this language. This requirement, however, will not be a grant
condition but rather has been placed in 30 CFR 874.16 and 875.20,
``Contractor responsibility,'' as an AML program requirement. For a
discussion of this rule and responses to comments, refer to 874.16 and
875.20 in this preamble.
Section 886.16 Grant Agreements
A new provision was proposed for Sec. 886.16(a). OSM has decided to
move this proposed section in the final rule to ``Contractor
responsibility'' in Secs. 874.16 and 875.20. For further discussion
regarding contractor responsibility see Secs. 874.16 and 875.20 of the
regulation and the associated preamble discussion. For consistency, all
comments regarding contractor responsibility and the AVS are discussed
in Sec. 874.16.
Section 886.23 Reports
In section 886.23, a new paragraph (c) has been added to
incorporate the reporting requirement under State and Indian tribe
reclamation grants that, upon project completion, States and Indian
tribes are required to submit to OSM a completed Form OSM-76 (Problem
Area Description Forms) for any completed coal and noncoal project. The
OSM-76 is used to provide the data for the Abandoned Mine Land
Inventory System. Instructions for completing and processing the
completed Form OSM-76 are available in the National Abandoned Mine
Lands Inventory Problem Area Description Manual. This requirement is
necessary so that the Secretary may provide an updated inventory of
abandoned mine land problems to Congress on an annual basis as required
by Section 403(c) of the Act. Also, the information is necessary to
track and report on accomplishments of the AML Program. For the
purposes of updating the National Inventory, completed projects are
defined as those AML construction projects funded through an approved
reclamation grant, where on-the-ground reclamation has been completed
and the cost figures represent final funding on the project. In
promulgating this rule, OSM acknowledges that because of the nature of
grant funded projects, preliminary cost figures given prior to grant
closeout may be revised at a later time.
Several commenters agreed that the Secretary should provide updated
AML information to Congress on an annual basis. However, they asserted,
Form OSM-76 needs further modification before it can provide Congress
with more accurate AML accomplishments by States an Indian tribes.
Form OSM-76 itself is not a subject of this rulemaking. In 1990,
OSM conducted a separate outreach effort to solicit State and Tribal
views on proposed changes to Form OSM-76. OSM deemed that changes to
Form OSM-76 were essential in order to collect the additional
information needed so as to note on the inventory, as required by
Section 403(c) of SMCRA, those projects completed under Title IV. Form
OSM-76 has been approved by OMB and was distributed to the States and
Indian tribes in April 1992 for their use.
One State commenter suggested that Form OSM-76 only be submitted to
OSM, pursuant to funding activity, when a project is completed. The
information, it believes, submitted at the time of grant application or
at any other time prior to project completion is only an estimate and
may result in confusing data as well as generating a burdensome amount
of paper work with very little value.
The comment is accepted in part. The regulation is revised to
clarify that this rulemaking deals only with reporting requirements for
approved reclamation projects. However, it must be noted that Section
403(c) of SMCRA requires the Secretary to maintain an inventory of
priority 1 and 2 coal problems. In order to place sites on the OSM
inventory, States and Indian tribes submit a Form OSM-76 for new
problem areas, and for such new problems that occur on problem areas
already in the inventory. OSM realizes that the inventory necessarily
will contain estimated costs for unfunded problems and not yet competed
reclamation projects. However, OSM believes that sufficient guidance
and flexibility in factors to consider when making reclamation costs
estimates has already been provided to States and Indian tribes through
the AML reclamation program final guidelines (45 FR 14810, March 6,
1980), and the instructions for Form OSM-76.
Another commenter stated regarding Sec. 886.23(c) that the language
should be modified to exclude interim program and insolvent surety bond
forfeiture projects done under Sec. 874.12(d). The commenter believes
that these sites are specifically excluded from the AML inventory per
the preamble discussion on page 57387.
The comment cannot be accepted. Although interim program and
insolvent surety sites need not be inventoried prior to actual funding
of a reclamation project, OSM is required to update the inventory so as
to reflect all projects completed under Title IV. That requirement
includes interim program and insolvent surety bond forfeiture projects.
For this reason, States/Indian tribes need to submit a Form OSM-76
whenever activities funded under those programs are completed in order
for OSM to update the inventory.
Another commenter stated that the AML inventory has continued to
serve an important role in the AML program. In order to keep the
inventory current, however, OSM would provide computer print-outs semi-
annually which track the status of each State's inventory.
OSM is committed to maintaining the inventory current as required
by Section 403(c). While the commenter's suggestion is not directly
related to the rule, OSM agrees with its intent and will work on an
informal basis with the States and Indian tribes to ensure that
information from the inventory is readily available.
IV. Procedural Matters
Federal Paperwork Reduction Act
The collections of information contained in this rule have been
approved by OMB under 44 U.S.C. 3501 et seq. and assigned clearance
numbers 1029-0054, 1029-0061, 1029-0063, 1029-0090, 1029-0103 and 1029-
0104.
Author
The principal author of this rule is Norman J. Hess, Division of
Abandoned Mine Land Reclamation, Office of Surface Mining Reclamation
and Enforcement, U.S. Department of the Interior, 1951 Constitution
Avenue NW., Washington, DC 20240; Telephone: 202-208-2949.
Executive Order 12866
This final rule has been reviewed under Executive Order 12866.
Regulatory Flexibility Act
The Department of the Interior has determined, pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that the final rule
will not have a significant economic impact on a substantial number of
small entities. The legislation enacted by Congress extends an existing
program, and the resulting costs to the regulated industry and to
consumers are not expected to vary from current levels. Further, the
provisions in the legislation and the regulations changing the
threshold for qualifying as a small operator from less than 100,000
tons per year of coal produced to less than 300,000 tons per year is
expected to increase the number of coal operators that will qualify as
small operators and thereby be eligible for economic assistance under
SOAP.
Executive Order 12778 on Civil Justice Reform
This rule has been reviewed under the applicable standards of
Section 2(b)(2)
of Executive Order 12778, Civil Justice Reform (56 FR 55195). In
general, the requirements of Section 2(b)(2) of Executive Order 12778
are covered by the preamble discussion of this rule. Additional remarks
follow concerning individual elements of the Executive Order:
A. What is the preemptive effect, if any, to be given to the
regulation?
This rule will have no preemptive effect on State/Indian tribal
laws or regulations. However, while States/Indian tribes will have to
amend their programs to take advantage of the additional authority
provided by these regulations, the decision to do so is at their sole
discretion.
B. What is the effect on existing Federal law or regulation, if
any, including all provisions repealed or modified?
This rule modifies the implementation of SMCRA as described herein,
and is not intended to modify the implementation of any other Federal
statute. The preceding discussion of this rule specifies the Federal
regulatory provisions that are affected by this rule.
C. Does the rule provide a clear and certain legal standard for
affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of SMCRA.
D. What is the retroactive effect, if any, to be given to the
regulation?
This rule is not intended to have retroactive effect.
E. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings would be required before parties may
file suit in court challenging the provisions of this rule under
section 526(a) of SMCRA, 30 U.S.C. 1276(a). Prior to any judicial
challenge to the application of the rule to private parties, however,
exhaustion of administrative procedures may be required. Applicable
administrative procedures may be found at 43 CFR part 4.
F. Does the rule define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items?
Terms which are important to the understanding of this rule are set
forth in 30 CFR 700.5, 701.5, 795.3 and 870.5.
G. Does the rule address other important issues affecting clarity
and general draftsmanship of regulations set forth by the Attorney
General, with the concurrence of the Director of the OMB, that are
determined to be in accordance with the purposes of the Executive
Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
National Environmental Policy Act
OSM has prepared an environmental assessment (EA), and has made a
finding that this rule will not significantly effect the quality of the
human environment under Section 102(2)(C) of NEPA, 42 U.S.C.
4332(2)(C). The EA and finding of no significant impact are on file in
the OSM Administrative Record, room 660, 800 N. Capitol St., NW.,
Washington, DC.
List of Subjects
30 CFR Part 795
Grant programs-natural resources, Reporting and recordkeeping
requirements, Small businesses, Surface mining, Technical assistance,
Underground mining.
30 CFR Part 870
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 872
Indian-lands, Reporting and recordkeeping requirements, Surface
mining, Underground mining.
30 CFR Part 873
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 874
Indian-lands, Surface mining, Underground mining.
30 CFR Part 875
Indians-lands, Surface mining, Underground mining.
30 CFR Part 876
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
30 CFR Part 886
Grant programs-natural resources, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
Dated: April 14, 1994.
Bob Armstrong,
Assistant Secretary for Land and Minerals Management.
Accordingly, 30 CFR Parts 795, 870, 872, 873, 874, 875, 876, and
886 are amended as set forth below.
PART 795--PERMANENT REGULATORY PROGRAM--SMALL OPERATORS ASSISTANCE
PROGRAM
1. The authority citation for part 795 continues to read as
follows:
Authority: Secs. 201, 501, 502, and 507, Pub. L. 95-87, 91 Stat.
445 (30 U.S.C. 1201 et seq.).
2. Section 795.3, the definition of ``qualified laboratory'', is
revised to read as follows:
Sec. 795.3 Definitions.
* * * * *
Qualified laboratory means a designated public agency, private
firm, institution, or analytical laboratory that can provide the
required determination of probable hydrologic consequences or statement
of results of test borings or core samplings or other services as
specified at Sec. 795.9 under the Small Operator Assistance Program and
that meets the standards of Sec. 795.10.
3. Section 795.4 is revised to read as follows:
Sec. 795.4 Information collection.
The collections of information contained in part 795 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0061. The information will be
used to determine if the applicants meet the requirements of the Small
Operator Assistance Program. Response is required to obtain a benefit
in accordance with Public Law 95-87. Public reporting burden for this
information is estimated to average 24.2 hours per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, room 640 N.C., 1951 Constitution Avenue NW., Washington, DC
20240 and the Office of Management and Budget, Paperwork Reduction
Project (1029-0061), Washington, DC 20503.
4. Section 795.6 is amended by revising the introduction text of
paragraph (a)(2) and paragraphs (a)(2) (i) and (ii) to read as follows:
Sec. 795.6 Eligibility for assistance.
(a) * * *
(1) * * *
(2) Establishes that his or her probable total attributed annual
production from all locations on which the operator is issued the
surface coal mining and reclamation permit will not exceed 300,000
tons. Production from the following operations shall be attributed to
the applicant:
(i) The pro rata share, based upon percentage of ownership of
applicant, of coal produced by operations in which the applicant owns
more than a 10 percent interest;
(ii) The pro rata share, based upon percentage of ownership of
applicant, of coal produced in other operations by persons who own more
than 10 percent of the applicant's operation;
* * * * *
5. Section 795.9 is amended by revising paragraphs (a) and (b) to
read as follows:
Sec. 795.9 Program services and data requirements.
(a) To the extent possible with available funds, the program
administrator shall select and pay a qualified laboratory to make the
determination and statement and provide other services referenced in
paragraph (b) of this section for eligible operators who request
assistance.
(b) The program administrator shall determine the data needed for
each applicant or group of applicants. Data collected and the results
provided to the program administrator shall be sufficient to satisfy
the requirements for:
(1) The determination of the probable hydrologic consequences of
the surface mining and reclamation operation in the proposed permit
area and adjacent areas, including the engineering analyses and designs
necessary for the determination in accordance with Secs. 780.21(f),
784.14(e), and any other applicable provisions of this chapter;
(2) The drilling and statement of the results of test borings or
core samplings for the proposed permit area in accordance with
Secs. 780.22(b) and 784.22(b) and any other applicable provisions of
this chapter;
(3) The development of cross-section maps and plans required by
Secs. 779.25 and 783.25;
(4) The collection of archaeological and historic information and
related plans required by Secs. 779.12(b) and 783.12(b) and
Secs. 780.31 and 784.17 and any other archaeological and historic
information required by the regulatory authority;
(5) Pre-blast surveys required by Sec. 780.13; and
(6) The collection of site-specific resources information, the
production of protection and enhancement plans for fish and wildlife
habitats required by Secs. 780.16 and 784.21, and information and plans
for any other environmental values required by the regulatory authority
under the act.
* * * * *
6. Section 795.12 is amended by revising paragraphs (a)
introductory text, (a)(2) and (a)(3) to read as follows:
Sec. 795.12 Applicant liability.
(a) A coal operator who has received assistance pursuant to
Sec. 795.9 shall reimburse the regulatory authority for the cost of the
services rendered if:
(1) * * *
(2) The program administrator finds that the operator's actual and
attributed annual production of coal for all locations exceeds 300,000
tons during the 12 months immediately following the date on which the
operator is issued the surface coal mining and reclamation permit; or
(3) The permit is sold, transferred, or assigned to another person
and the transferee's total actual and attributed production exceeds the
300,000 ton production limit during the 12 months immediately following
the date on which the permit was originally issued. Under this
paragraph the applicant and its successor are jointly and severally
obligated to reimburse the regulatory authority.
* * * * *
PART 870--ABANDONED MINE RECLAMATION FUND--FEE COLLECTION AND COAL
PRODUCTION REPORTING
7. The authority citation for part 870 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; and Pub. L. 100-
34.
8. Section 870.5 is amended by revising the definitions for
``eligible lands and water'' and ``left or abandoned in either an
unreclaimed or inadequately reclaimed condition,'' and adding
alphabetically new definitions for ``mineral owner'' and ``qualified
hydrologic unit'' as follows:
Sec. 870.5 Definitions.
* * * * *
Eligible lands and water means land and water eligible for
reclamation or drainage abatement expenditures which were mined for
coal or which were affected by such mining, wastebanks, coal
processing, or other coal mining processes and left or abandoned in
either an unreclaimed or inadequately reclaimed condition prior to
August 3, 1977, and for which there is no continuing reclamation
responsibility. Provided, however, that lands and water damaged by coal
mining operations after that date and on or before November 5, 1990,
may also be eligible for reclamation if they meet the requirements
specified in 30 CFR 874.12 (d) and (e). Following certification of the
completion of all known coal problems, eligible lands and water for
noncoal reclamation purposes are those sites that meet the eligibility
requirements specified in 30 CFR 874.14. For additional eligibility
requirements for water projects, see 30 CFR 874.14, and for lands
affected by remining operations, see Section 404 of the Act.
* * * * *
Left or abandoned in either an unreclaimed or inadequately
reclaimed condition means lands and water:
(a) Which were mined or which were affected by such mining,
wastebanks, processing or other mining processes prior to August 3,
1977, or between August 3, 1977 and November 5, 1990, as authorized
pursuant to Section 402(g)(4) of the Act, and on which all mining has
ceased;
(b) Which continue, in their present condition, to degrade
substantially the quality of the environment, prevent or damage the
beneficial use of land or water resources, or endanger the health and
safety of the public; and
(c) For which there is no continuing reclamation responsibility
under State or Federal Laws, except as provided in Sections 402(g)(4)
and 403(b)(2) of the Act.
* * * * *
Mineral owner means any person or entity owning 10 percent or more
of the mineral estate for a permit. If no single mineral owner meets
the 10 percent rule, then the largest single mineral owner shall be
considered to be the mineral owner. If there are several persons who
have successively transferred the mineral rights, information shall be
provided on the last owner(s) in the chain prior to the permittee, i.e.
the person or persons who have granted the permittee the right to
extract the coal.
* * * * *
Qualified hydrologic unit means a hydrologic unit:
(a) In which the water quality has been significantly affected by
acid mine drainage from coal mining practices in a manner that
adversely impacts biological resources; and
(b) That contains lands and waters which are:
(1) Eligible pursuant to Section 404 and include any of the first
three priorities stated in Section 403(a); or
(2) Proposed to be the subject of the expenditures by the State
(from amounts available from the forfeiture of a bond required under
Section 509 or from other State sources) to mitigate acid mine
drainage.
* * * * *
9. Section 870.10 is revised to read as follows:
Sec. 870.10 Information collection.
The collections of information contained in part 870 and the Form
OSM-1 have been approved by the Office of Management and Budget under
44 U.S.C. 3501 et seq. and assigned clearance numbers 1029-0090 and
1029-0063 respectively. The information will be used by the Office of
Surface Mining Reclamation and Enforcement to determine whether coal
mine operators are reporting accurate production figures and paying
proper fees. Response is mandatory in accordance with Public Law 95-87.
Public reporting burden for this collection of information is estimated
to average 2 hours (1029-0090) and 16 minutes (1029-0063) per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. Send comments regarding this
burden estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, room 640 N.C., 1951 Constitution Avenue NW., Washington, DC
20240 and the Office of Management and Budget, Paperwork Reduction
Project (1029-0063) or (1029-0090), Washington, DC 20503.
10. Section 870.12 is amended by adding paragraph (d) to read as
follows:
* * * * *
Sec. 870.12 Reclamation fee.
* * * * *
(d) The reclamation fee shall be paid after the end of each
calendar quarter beginning with the calendar quarter starting October
1, 1977, and ending September 30, 2004.
11. Section 870.15 is amended by revising paragraph (b) and the
penultimate sentence of paragraph (c) to read as follows:
Sec. 870.15 Reclamation fee payment.
* * * * *
(b) Each operator shall use mine report Form OSM-1 (or any approved
successor form) to report tonnage of coal sold, used or transferred, as
well as the name and address of any person or entity who, in a given
quarter, is the owner of 10 percent or more of the mineral estate for a
given permit, and any entity or individual who, in a given quarter,
purchases ten percent or more of the production from a given permit
during the applicable quarter. If no single mineral owner or purchaser
meets the 10 percent rule, then the largest single mineral owner and
purchaser shall be reported. If several persons have successively
transferred the mineral rights, information shall be provided on the
last owner(s) in the chain prior to the permittee, i.e. the person or
persons who have granted the permittee the right to extract the coal.
At the time of reporting, a submitter may designate such information as
confidential.
(c) * * * All operators who receive a Coal Sales and Reclamation
Fee Report (Form OSM-1), including those with zero sales, uses, or
transfers, must submit a completed Form OSM-1, as well as any fee
payment due. * * *
* * * * *
12. Section 870.17 is revised to read as follows:
Sec. 870.17 Compliance authority.
The Secretary or any duly designated officer, employee, or
representative of the Secretary may conduct such audits of coal sales,
transfers, and use, and the payment of AML fees as may be necessary to
ensure compliance with the provisions of the Act, and for such purposes
shall, at all reasonable times, upon request, have access to, and may
copy, all books, papers, and other documents of any person involved in
a coal transaction, including without limitation, permittees,
operators, brokers, purchasers, and persons operating preparation
plants and tipples, and any recipients of royalty payments for the
coal.
PART 872--ABANDONED MINE RECLAMATION FUNDS
13. The authority citation for Part 872 is revised to read as
follows:
Authority: 30 U.S.C. 1201, et seq., as amended.
14. Section 872.10 is revised to read as follows:
Sec. 872.10 Information collection.
The collections of information contained in part 872 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0054. The information will be
used by OSM to determine whether delays by States/Indian tribes in use
of allocated and granted funds were due to unavoidable delays in
program approval. Response is required to obtain a benefit in
accordance with Public Law 95-87. Public reporting burden for this
information is estimated to average one hour per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, room 640 N.C., 1951 Constitution Avenue NW., Washington, DC,
20240, and the Office of Management and Budget, Paperwork Reduction
Project (1029-0054), Washington, DC, 20503.
15. Section 872.11 is amended by adding new paragraph (a)(6);
revising paragraphs (b)(1) through (5); and adding paragraphs (b)(6)
through (8) to read as follows:
Sec. 872.11 Abandoned Mine Reclamation Fund.
(a) * * *
(6) Interest and any other income earned from investment of the
Fund. Such interest and other income shall be credited only to the
Federal share. In addition, an amount equal to the interest earned
after September 30, 1992, shall be available pursuant to Section 402(h)
of the Act for possible future transfer to the United Mine Workers of
America Combined Benefit Fund.
(b) * * *
(1) An amount equal to 50 percent of the reclamation fees collected
from within a State shall be allocated at the end of the fiscal year to
the State in which they were collected. Reclamation fees collected from
Indian lands shall not be included in the calculation of amounts to be
allocated to a State. If a State advises OSM in writing that it does
not intend to submit a State reclamation plan, no monies shall be
allocated to the State. Amounts granted to a State that have not been
expended within three years from the date of grant award shall be
available to the Director for other purposes under paragraph (b)(5) of
this section. Such funds may be withdrawn from the State if the
Director finds in writing that the amounts involved are not necessary
to carry out the approved reclamation activities.
(2) An amount equal to 50 percent of the reclamation fees collected
from Indian lands shall be allocated to the Indian tribe or tribes
having an interest in those lands. This shall occur at the end of the
fiscal year in which the fees were collected. If an Indian tribe
advises OSM in writing that it does not intend to submit an Indian
reclamation plan, no monies shall be allocated to that Indian tribe.
Amounts granted to an Indian tribe that have not been expended within
three years from the date of grant award shall be available to the
Director for other purposes under paragraph (b)(5) of this section.
Such funds may be withdrawn from the Indian tribe if the Director finds
in writing that the amounts involved are not necessary to carry out the
approved reclamation activities.
(3) An amount equal to the 10 percent of the monies collected and
deposited in the Fund annually, as well as 20 percent of the interest
and other miscellaneous receipts to the Fund, if such amount is not
necessary pursuant to Section 402(h) of the Act for transfer to the
United Mine Workers of America Combined Benefit Fund, shall be
allocated by the Secretary for transfer to the U.S. Department of
Agriculture's Rural Abandoned Mine Program.
(4) An amount equal to 40 percent of the monies deposited in the
Fund annually, including interest, if not required to satisfy the
provisions of Section 402(h) of the Act, shall be allocated for use by
the Secretary to supplement annual grants to States and Indian tribes
after making the allocations referred to in paragraphs (b)(1) and (2)
of this section. States and Indian tribes eligible for supplemental
grants under this provision are those that have not certified the
completion of all coal-related reclamation under Section 411(a) of the
Act and that have not achieved the priorities stated in paragraphs (1)
and (2) of Section 403(a) of the Act. The allocation of these monies by
the Secretary to eligible States and Indian tribes shall be through a
formula based upon the amount of coal historically produced prior to
August 3, 1977, in the State or from the Indian lands concerned. Funds
to be granted to specific States or Indian tribes under this paragraph
may be reduced or curtailed under the following two conditions:
(i) If State or Indian tribal share funds to be granted in a year
are sufficient to address all remaining eligible priority 1 or 2 coal
sites in the State or on Indian lands, no additional funds under this
paragraph will be provided during that year; or
(ii) If the cost to reclaim all remaining priority 1 or 2 coal
sites in a specific State or on a specific Indian tribe's land exceeds
the amount of State or Indian tribal share funds to be granted in a
year to that State or Indian tribe pursuant to Section 402(g)(1) of the
Act, but is less than the total amount of funds to be granted to the
State or Indian tribe in that year utilizing State or Indian tribe and
Federal funds under paragraphs (b) (1), (2), (3), and (4) of this
section, the Federal funds granted under this paragraph will be reduced
to that amount needed to fully fund all remaining priority 1 or 2 coal
sites after utilizing all available State or Indian tribe share funds.
(5) Amounts available in the Fund that are not allocated pursuant
to paragraphs (b) (1), (2), (3), and (4) of this section are authorized
to be expended by the Secretary for any of the following:
(i) The Small Operator Assistance Program under Section 507(c) of
the Act (not more than $10,000,000 annually).
(ii) Emergency projects under State, Indian tribal, and Federal
programs under Section 410 of the Act.
(iii) Nonemergency projects in States and on Indian tribal lands
that do not have an approved abandoned mine reclamation program
pursuant to Section 405 of the Act.
(iv) Administration of the Abandoned Mine Land Reclamation Program
by the Secretary.
(v) Projects authorized under Section 402(g)(4) in States and on
Indian lands that do not have an approved abandoned mine reclamation
program pursuant to Section 405 of the Act.
(6) If necessary to achieve the priorities stated in paragraphs
403(a) (1) and (2) of the Act, the Secretary, subject to the provision
below, shall grant annually not less than $2,000,000 for expenditure in
each State and Indian tribe having an approved abandoned mine land
program, provided however, that annual State or Indian tribe share
funds are utilized first, and that supplemental funds granted under
this paragraph and paragraph (b)(4) of this section shall not exceed
the costs of reclaiming all remaining priority 1 or 2 coal sites in a
State or on Indian tribal land.
(7) Funds allocated or expended annually by the Secretary under
Sections 402(g) (2), (3), or (4) of the Act for any State or Indian
tribe shall not be deducted from funds allocated or granted annually to
a State or Indian tribe under the authority of Sections 402(g) (1),
(5), or (8) of the Act.
(8) The Secretary shall expend funds pursuant to the authority in
Section 402(g)(3)(C) of the Act only in States or on Indian lands where
the State or Indian tribe does not have an abandoned mine reclamation
program approved under Section 405 of the Act.
* * * * *
16. Part 873 is added to read as follows:
PART 873--FUTURE RECLAMATION SET-ASIDE PROGRAM
Sec.
873.1 Scope.
873.11 Applicability.
873.12 Future set-aside program criteria.
Authority: Pub. L. 95-87, (30 U.S.C. 1201 et seq.); and Pub. L.
101-508.
Sec. 873.1 Scope.
This part provides requirements for the award of grants to States
or Indian tribes for the establishment of special trust accounts that
will provide funds for coal reclamation purposes after September 30,
1995.
Sec. 873.11 Applicability.
The provisions of this part apply to the granting of funds pursuant
to Section 402(g)(6) of the Act and their use by the States or Indian
tribes for coal reclamation purposes after September 30, 1995.
Sec. 873.12 Future set-aside program criteria.
(a) Any State or Indian tribe may receive and retain without regard
to the three-year limitation referred to in Section 402(g)(1)(D) of the
Act, 30 U.S.C. 1232, up to 10 percent of the total of the grant funds
made annually to such State or Indian tribe pursuant to the authority
in Sections 402(g) (1) and (5) of the Act, if such amounts are
deposited into either of the following: (1) A special fund established
under State or Indian tribal law pursuant to which such amounts
(together with all interest earned on such amounts) are expended by the
State or Indian tribe solely to achieve the priorities stated in
Section 403(a) of the Act, 30 U.S.C. 1233, after September 30, 1995; or
(2) An acid mine drainage abatement and treatment fund pursuant to 30
CFR part 876.
(b) Prior to receiving a grant pursuant to this part, a State or
Indian tribe must:
(1) Establish a special fund account providing for the earning of
interest on fund balances; and
(2) Specify that monies in the account may only be used after
September 30, 1995, by the designated State or Indian tribal agency to
achieve the priorities stated in Section 403(a) of the Act, 30 U.S.C.
1233.
(c) After the conditions specified in paragraphs (a) and (b) of
this section are met, a grant may be approved and monies deposited into
the special fund account. The monies so deposited, together with any
interest earned, shall be considered State or Indian tribal monies.
PART 874--GENERAL RECLAMATION REQUIREMENTS
17. The authority citation for part 874 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended.
18. Section 874.1 is revised to read as follows:
Sec. 874.1 Scope.
This part establishes land and water eligibility requirements,
reclamation objectives and priorities, and reclamation contractor
responsibility.
19. Section 874.11 is revised to read as follows:
Sec. 874.11 Applicability.
The provisions of this part apply to all reclamation projects
carried out with monies from the AML Fund.
20. Section 874.12 is amended by adding paragraphs (d), (e), (f),
(g) and (h) to read as follows:
Sec. 874.12 Eligible coal lands and water.
* * * * *
(d) Notwithstanding paragraphs (a), (b), and (c) of this section,
coal lands and waters in a State or on Indian lands damaged and
abandoned after August 3, 1977, by coal mining processes are also
eligible for funding if the Secretary finds in writing that:
(1) They were mined for coal or affected by coal mining processes;
and
(2) The mining occurred and the site was left in either an
unreclaimed or inadequately reclaimed condition between August 4, 1977,
and:
(i) The date on which the Secretary approved a State regulatory
program pursuant to Section 503 of the Act (30 U.S.C. 1253) for a State
or September 28, 1994, for an Indian tribe, and that any funds for
reclamation or abatement that are available pursuant to a bond or other
form of financial guarantee or from any other source are not sufficient
to provide for adequate reclamation or abatement at the site; or
(ii) November 5, 1990, that the surety of the mining operator
became insolvent during such period and that, as of November 5, 1990,
funds immediately available from proceedings relating to such
insolvency or from any financial guarantee or other source are not
sufficient to provide for adequate reclamation or abatement at the
site; and
(3) The site qualifies as a priority 1 or 2 site pursuant to
Section 403(a)(1) and (2) of the Act. Priority will be given to those
sites that are in the immediate vicinity of a residential area or that
have an adverse economic impact upon a community.
(e) Any State or Indian tribe may expend funds may available under
paragraphs 402(g)(1) and (5) of the Act (30 U.S.C. 1232(g)(1) and (5))
for reclamation and abatement of any site eligible under paragraph (d)
of this section, if the State or Indian tribe, with the concurrence of
the Secretary, makes the findings required in paragraph (d) of this
section and the State or Indian tribe determines that the reclamation
priority of the site is the same or more urgent than the reclamation
priority for the lands and water eligible pursuant to paragraphs (a),
(b) or (c) of this section that qualify as a priority 1 or 2 site under
Section 403(a) of the Act (30 U.S.C. 1233(a)).
(f) With respect to lands eligible pursuant to paragraph (d) or (e)
of this section, monies available from sources outside the Abandoned
Mine Reclamation Fund or that are ultimately recovered from responsible
parties shall either be used to offset the cost of the reclamation or
transferred to the Abandoned Mine Reclamation Fund if not required for
further reclamation activities at the permitted site.
(g) If reclamation of a site covered by an interim or permanent
program permit is carried out under the Abandoned Mine Land Program,
the permittee of the site shall reimburse the Abandoned Mine Land Fund
for the cost of reclamation that is in excess of any bond forfeited to
ensure reclamation. Neither the Secretary nor a State or Indian tribe
performing reclamation under paragraph (d) or (e) of this section shall
be held liable for any violations of any performance standards or
reclamation requirements specified in Title V of the Act nor shall a
reclamation activity undertaken on such lands or waters be held to any
standards set forth in Title V of the Act.
(h) Surface coal mining operations on lands eligible for remining
pursuant to Section 404 of the Act shall not affect the eligibility of
such lands for reclamation activities after the release of the bonds or
deposits posted by any such operation as provided by Sec. 800.40 of
this chapter. If the bond or deposit for a surface coal mining
operation on lands eligible for remining is forfeited, funds available
under this title may be used if the amount of such bond or deposit is
not sufficient to provide for adequate reclamation or abatement, except
that if conditions warrant the Secretary shall immediately exercise
his/her authority under Section 410 of the Act.
21. Section 874.13 is revised to read as follows:
Sec. 874.13 Reclamation objectives and priorities.
(a) Reclamation projects should be accomplished in accordance with
OSM's ``Final Guidelines for Reclamation Programs and Projects'' (45 FR
14810-14819, March 6, 1980).
(b) Reclamation projects shall reflect the priorities of Section
403(a) of the Act (30 U.S.C. 1233). Generally, projects lower than a
priority 2 should not be undertaken until all known higher priority
coal projects either have been accomplished, are in the process of
being reclaimed, or have been approved for funding by the Secretary,
except in those instances where such lower priority projects may be
undertaken in conjunction with a priority 1 or 2 site in accordance
with OSM's ``Final Guidelines for Reclamation Programs and Projects.''
22. Section 874.14 is added to read as follows:
Sec. 874.14 Utilities and other facilities.
(a) Any state or Indian tribe that has not certified the completion
of all coal-related reclamation under Section 411(a) of the Act, 30
U.S.C. 1241(a), may expend up to 30 percent of the funds granted
annually to such State or Indian tribe pursuant to the authority in
Sections 402(g) (1) and (5) of the Act for the purpose of protecting,
repairing, replacing, constructing, or enhancing facilities relating to
water supplies, including water distribution facilities and treatment
plants, to replace water supplies adversely affected by coal mining
practices.
(b) If the adverse effect on water supplies referred to in this
section occurred both prior to and after August 3, 1977, the project
shall remain eligible, notwithstanding the criteria specified in 30 CFR
874.12(b), if the State or Indian tribe finds in writing, as part of
its eligibility opinion, that such adverse affects are due
predominately to effects of mining processes undertaken and abandoned
prior to August 3, 1977.
(c) If the adverse effect on water supplies referred to in this
section occurred both prior to and after the dates (and under the
criteria) set forth under Section 402(g)(4)(B) of the Act, the project
shall remain eligible, notwithstanding the criteria specified in 30 CFR
874.12(b), if the State or Indian tribe finds in writing, as part of
its eligibility opinion, that such adverse effects are due
predominately to the effects of mining processes undertaken and
abandoned prior to those dates.
(d) Enhancement of facilities or utilities under this section shall
include upgrading necessary to meet any local, State, or Federal public
health or safety requirement. Enhancement shall not include, however,
any service area expansion of a utility or facility not necessary to
address a specific abandoned mine land problem.
23. Section 874.15 is added to read as follows:
Sec. 874.15 Limited liability.
No State or Indian tribe shall be liable under any provision of
Federal law for any costs or damages as a result of action taken or
omitted in the course of carrying out an approved State or Indian tribe
abandoned mine reclamation plan. This section shall not preclude
liability for costs or damages as a result of gross negligence or
intentional misconduct by the State or Indian tribe. For purposes of
this section, reckless, willful, or wanton misconduct shall constitute
gross negligence or intentional misconduct.
24. Section 874.16 is added to read as follows:
Sec. 874.16 Contractor responsibility.
To receive AML funds, every successful bidder for an AML contract
must be eligible under 30 CFR 773.15(b)(1) at the time of contract
award to receive a permit or conditional permit to conduct surface coal
mining operations. Bidder eligibility must be confirmed by OSM's
automated Applicant/Violator System for each contract to be awarded.
PART 875--NONCOAL RECLAMATION
25. The authority citation for part 875 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended.
26. Section 875.10 is added to read as follows:
Sec. 875.10 Information collection.
The collection of information contained in part 875 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0103. The information will be
used to determine if noncoal reclamation is being accomplished
according to legislative mandate. Response is required to obtain a
benefit in accordance with Public Law 95-87. Public reporting burden
for this information is estimated to average 32 hours per response,
including the time for reviewing instructions, searching existing data
sources, gathering and maintaining the data needed, and completing and
reviewing the collection of information. Send comments regarding this
burden estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, room 640 N.C., 1951 Constitution Avenue NW., Washington, DC
20240 and the Office of Management and Budget, Paperwork Reduction
Project (1029-0103), Washington, DC 20503.
27. Section 875.12 is revised to read as follows:
Sec. 875.12 Eligible lands and water prior to certification.
Noncoal lands and water are eligible for reclamation if:
(a) They were mined or affected by mining processes;
(b) They were mined and left or abandoned in either an unreclaimed
or inadequately reclaimed condition prior to August 3, 1977;
(c) There is no continuing responsibility for reclamation by the
operator, permittee, or agent of the permittee under statutes of the
State or Federal Government or by the State as a result of bond
forfeiture. Bond forfeiture will render lands or water ineligible only
if the amount forfeited is sufficient to pay the total cost of the
necessary reclamation. In cases where the forfeited bond is
insufficient to pay the total cost of reclamation, monies sufficient to
complete the reclamation may be sought under parts 886 or 888 of this
chapter;
(d) The reclamation has been requested by the Governor of the State
or equivalent head of the Indian tribe; and
(e) The reclamation is necessary to protect the public health,
safety, general welfare, and property from extreme danger of adverse
effects of noncoal mining practices.
28. Section 875.13 is revised to read as follows:
Sec. 875.13 Certification of completion of coal sites.
(a) The Governor of a State, or the equivalent head of an Indian
tribe, may submit to the Secretary a certification of completion
expressing the finding that the State or Indian tribe has achieved all
existing known coal-related reclamation objectives for eligible lands
and waters pursuant to Section 404 of the Act (30 U.S.C. 1234), or has
instituted the necessary processes to reclaim any remaining coal
related problems. In addition to the above finding, the certification
of completion shall contain:
(1) A description of both the rationale and the process utilized to
arrive at the above finding for the completion of all coal-related
reclamation pursuant to Section 403(a) (1) through (5).
(2) A brief summary and resolution of all relevant public comments
concerning coal-related impacts, problems, and reclamation projects
received by the State or Indian tribe prior to preparation of the
certification of completion.
(3) A State or Indian tribe agreement to acknowledge and give top
priority to any coal-related problem(s) that may be found or occur
after submission of the certification of completion and during the life
of the approved abandoned mine reclamation program.
(b) After review and verification of the information contained in
the certification of completion, the Director shall provide notice in
the Federal Register and opportunity for public comment. After receipt
and evaluation of all public comments and a determination by the
Director that the certification is correct, the Director shall concur
with the certification and provide final notice of such concurrence in
the Federal Register. This concurrence shall be based upon the State's
or Indian tribes commitment to give top priority to any coal problem
which may thereafter be found or occur.
(c) Following concurrence by the Director, a State or Indian tribe
may implement a noncoal reclamation program pursuant to provisions in
Section 411 of SMCRA.
29. Section 875.14 is added to read as follows:
Sec. 875.14 Eligible lands and water subsequent to certification.
(a) Following certification by the State or Indian tribe of the
completion of all known coal projects and the Director's concurrence in
such certification, eligible noncoal lands, waters, and facilities
shall be those--
(1) Which were mined or processed for minerals or which were
affected by such mining or processing, and abandoned or left in an
inadequate reclamation status prior to August 3, 1977. In determining
the eligibility under this subsection of Federal lands, waters, and
facilities under the jurisdiction of the Forest Service or Bureau of
Land Management, in lieu of the August 3, 1977, date, the applicable
date shall be August 28, 1974, and November 26, 1980, respectively; and
(2) For which there is no continuing reclamation responsibility
under State or other Federal laws.
(b) If eligible coal problems are found or occur after
certification under Sec. 875.13, a State or Indian tribe must address
the coal problem utilizing State or Indian tribe share funds no later
than the next grant cycle, subject to the availability of funds
distributed to the State or Indian tribe in that cycle. The coal
project would be subject to the coal provisions specified in Sections
401 through 410 of SMCRA.
30. Section 875.15 is added to read as follows:
Sec. 875.15 Reclamation priorities for noncoal program.
(a) This section applies to reclamation projects involving the
restoration of lands and water adversely affected by past mineral
mining; projects involving the protection, repair, replacement,
construction, or enhancement of utilities (such as those relating to
water supply, roads, and other such facilities serving the public
adversely affected by mineral mining and processing practices); and the
construction of public facilities in communities impacted by coal or
other mineral mining and processing practices.
(b) Following certification pursuant to Sec. 875.13, the projects
and construction of public facilities identified in paragraph (a) of
this section shall reflect the following priorities in the order
stated:
(1) The protection of public health, safety, general welfare and
property from the extreme danger of adverse effects of mineral mining
and processing practices;
(2) The protection of public health, safety, and general welfare
from the adverse effects of mineral mining and processing practices;
and
(3) The restoration of land and water resources and the environment
previously degraded by the adverse effects of mineral mining and
processing practices.
(c) Enhancement of facilities or utilities shall include upgrading
necessary to meet local, State, or Federal public health or safety
requirements. Enhancement shall not include, however, any service area
expansion of a utility or facility not necessary to address a specific
abandoned mine land problem.
(d) Notwithstanding the requirements specified in paragraph (a) of
this section, where the Governor of a State or the equivalent head of
an Indian tribe, after determining that there is a need for activities
or construction of specific public facilities related to the coal or
minerals industry in States or on Tribal lands impacted by coal or
minerals development, submits a grant application as required by
paragraph (d) of this section and the Director concurs in such need, as
set forth in paragraph (e) of this section, the Director may grant
funds made available under section 402(g)(1) of the Act, 30 U.S.C.
1232, to carry out such activities or construction.
(e) To qualify for funding pursuant to the authority in paragraph
(c) of this section, a State or Indian tribe must submit a grant
application that specifically sets forth:
(1) The need or urgency for the activity or the construction of the
public facility;
(2) The expected impact the project will have on the coal or
minerals industry in the State or Indian tribe;
(3) The availability of funding from other sources and, if other
funding is provided, its percentage of the total costs involved;
(4) Documentation from other local, State, and Federal agencies
with oversight for such utilities or facilities regarding what funding
resources they have available and why this specific project is not
being fully funded by their agency;
(5) The impact on the State or Indian tribe, the public, and the
minerals industry if the activity or facility is not funded;
(6) The reason why this project should be selected before a
priority project relating to the protection of the public health and
safety or the environment from the damages caused by past mining
activities; and
(7) An analysis and review of the procedures used by the State or
Indian tribe to notify and involve the public in this funding request
and a copy of all comments received and their resolution by the State
or Indian tribe.
(f) After review of the information contained in the application,
the Director shall prepare a Federal Register notice regarding the
State's or Indian tribe's submission and provide for public comment.
After receipt and evaluation of the comments and a determination that
the funding meets the requirements of the regulations in this part and
is in the best interests of the State or Indian tribe AML program, the
Director shall approve the request for funding the activity or
construction at a cost commensurate with its benefits towards achieving
the purposes of the Surface Mining Control and Reclamation Act of 1977.
31. Section 875.16 is added to read as follows:
Sec. 875.16 Exclusion of certain noncoal reclamation sites.
Money from the Fund shall not be used for the reclamation of sites
and areas designated for remedial action pursuant to the Uranium Mill
Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.) or that
have been listed for remedial action pursuant to the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42
U.S.C. 9601 et seq.).
32. Section 875.17 is added to read as follows:
Sec. 875.17 Land acquisition authority--noncoal.
The requirements specified in Parts 877 (Rights of Entry) and 879
(Acquisition, Management and Disposition of Lands and Water) shall
apply to a State's or Indian tribe's noncoal program except that, for
purposes of this section, the references to coal shall not apply. In
lieu of the term coal, the word noncoal should be used.
33. Section 875.18 is added to read as follows:
Sec. 875.18 Lien requirements.
The lien requirements found in Part 882--Reclamation on Private
Land shall apply to a State's or Indian tribe's noncoal reclamation
program under Section 411 of the Act, except that for purposes of this
section, references made to coal shall not apply. In lieu of the term
coal, the word noncoal should be used.
34. Section 875.19 is added to read as follows:
Sec. 875.19 Limited liability.
No State or Indian tribe shall be liable under any provision of
Federal law for any costs or damages as a result of action taken or
omitted in the course of carrying out an approved State or Indian tribe
abandoned mine reclamation plan. This section shall not preclude
liability for costs or damages as a result of gross negligence or
intentional misconduct by the State or Indian tribe. For purposes of
the preceding sentence, reckless, willful, or wanton misconduct shall
constitute gross negligence or intentional misconduct.
35. Section 875.20 is added to read as follows:
Sec. 875.20 Contractor responsibility.
To receive AML funds for noncoal reclamation, every successful
bidder for an AML contract must be eligible under 30 CFR 773.15(b)(1)
at the time of contract award to receive a permit or conditional permit
to conduct surface coal mining operations. Bidder eligibility must be
confirmed by OSM's automated Applicant/Violator System for each
contract to be awarded.
36. Part 876 is added to read as follows:
PART 876--ACID MINE DRAINAGE TREATMENT AND ABATEMENT PROGRAM
Sec.
876.1 Scope.
876.10 Information collection.
876.12 Eligibility.
876.13 Plan content.
876.14 Plan approval.
Authority: 30 U.S.C. 1201 et seq., as amended.
Sec. 876.1 Scope.
This part establishes the requirements and procedures for the
preparation, submission and approval of State or Indian tribe Acid Mine
Drainage Treatment and Abatement Programs.
Sec. 876.10 Information collection.
The collections of information contained in part 876 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0104. The information will be
used to determine if the State's or Indian tribe's Acid Mine Drainage
Abatement and Treatment Programs are being established according to
legislative mandate. Response is required to obtain a benefit in
accordance with Public Law 95-87. Public reporting burden for this
information is estimated to average 1,040 hours per response, including
the time for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. Send comments regarding this burden
estimate or any other aspect of this collection of information,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, room 640 N.C., 1951 Constitution Avenue NW., Washington, DC
20240 and the Office of Management and Budget, Paperwork Reduction
Project (1029-0104), Washington, DC 20503.
Sec. 876.12 Eligibility.
(a) Any State or Indian tribe having an approved abandoned mine
land program may receive and retain, without regard to the three-year
limitation set forth in Section 402(g)(1)(D) of the Act, up to 10
percent of the total of the grants made under Section 402(g) (1) and
(5) of the Act to such State or Indian tribe for the purpose of
abandoned mine land reclamation if such amounts are deposited into
either:
(1) A special fund established under State or Indian tribal law
pursuant to which such amounts (together with all interest earned) are
expended by the State or Indian tribe solely to achieve the priorities
stated in Section 403(a) after September 30, 1995; or
(2) An acid mine drainage abatement and treatment fund established
under State or Indian tribal law.
(b) Any State or Indian tribe may establish under State or Indian
tribal law an acid mine drainage abatement and treatment fund from
which amounts (together with all interest earned on such amounts) are
expended by the State or Indian tribe to implement, in consultation
with the Soil Conservation Service, acid mine drainage abatement and
treatment plans approved by the Director.
Sec. 876.13 Plan content.
Acid Mine Drainage Abatement Plans shall provide for the
comprehensive abatement of the causes and treatment of the effects of
acid mine drainage within qualified hydrologic units affected by coal
mining practices. The plan shall include, but shall not be limited to,
each of the following:
(a) An identification of the qualified hydrologic unit;
(b) The extent to which acid mine drainage is affecting the water
quality and biological resources within the hydrologic unit;
(c) An identification of the sources of acid mine drainage within
the hydrologic unit;
(d) An identification of individual projects and the measures
proposed to be undertaken to abate and treat the causes or effects of
acid mine drainage within the hydrologic unit;
(e) The cost of undertaking the proposed abatement and treatment
measures;
(f) An identification of existing and proposed sources of funding
for such measures; and
(g) An analysis of the cost-effectiveness and environmental
benefits of abatement and treatment measures.
Sec. 876.14 Plan approval.
The Director may approve any plan under Sec. 876.13(b) only after
determining that such plan meets the requirements of Sec. 876.13. In
conducting an analysis of the items referred to in Sec. 876.13(d), (e)
and (g), the Director shall obtain the comments of the Director of the
U.S. Bureau of Mines. In approving plans under this section, the
Director shall give priority to those plans which will be implemented
in coordination with measures undertaken by the Secretary of
Agriculture under the Rural Abandoned Mine Program.
PART 886--STATE RECLAMATION GRANTS
37. The authority citation for part 886 is revised to read as
follows:
Authority: Pub. L. 95-87; 30 U.S.C. 1201 et seq.; and Pub. L.
101-508.
Sec. 886.23 [Amended]
38. Paragraph 886.23(b)(2)(ii) is amended to remove the word
``and'' at the end of the paragraph.
39. Paragraph 886.23(b)(2)(iii) is amended to revise the period at
the end of the sentence to a semicolon followed by the word ``and''.
40. A new paragraph (c) is added to Sec. 886.23 to read as follows:
Sec. 886.23 Reports.
* * * * *
(c) A Form OSM-76, ``Abandoned Mine Land Problem Area
Description,'' shall be submitted upon project completion to report the
accomplishments achieved through the project.
[FR Doc. 94-12566 Filed 5-27-94; 8:45 am]
BILLING CODE 4310-05-M
