Navajo Nation Abandoned Mine Land Reclamation (AMLR) Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 756

Navajo Nation Abandoned Mine Land Reclamation (AMLR) Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment and concurrence with

certification of completion of coal reclamation.

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SUMMARY: Under the Surface Mining Control and Reclamation Act of 1977

(SMCRA), OSM is approving a proposed amendment to the Navajo Nation's

AMLR plan (hereinafter referred to as the ``Navajo Nation plan'') and,

on behalf of the Secretary of the Interior, in concurring with the

Navajo Nation's certification that the Navajo Nation has abated or

reclaimed all coal-related AML problems on its lands under the Navajo

Nation plan. The amendment, which the Navajo Nation proposed in order

for its plan to meet the requirements of the Federal regulations and

SMCRA, to clarify ambiguities, and to improve operational efficiency,

consists of statute and rule revisions pertaining to reclamation of

interim program abandoned coal mines, coal priorities, certification of

completion of coal reclamation, establishment of a noncoal reclamation

program subsequent to certification including the authority to

undertake community impact assistance and public facilities projects,

and creation of a future reclamation set-aside fund. OSM's concurrence

with the Navajo Nation's certification of the completion of all coal-

related problems, which was requested by the President of the Navajo

Nation, means that the Navajo Nation is now authorized to use monies

from the Navajo Abandoned Mine Reclamation (AMR) fund for noncoal

reclamation purposes, including the construction of public facilities.

EFFECTIVE DATE: September 27, 1994.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Ehmett, Telephone: (505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on Title IV of SMCRA

Title IV of SMCRA establishes an AMLR program for the purposes of

reclaiming and restoring lands and waters adversely affected by past

mining. It also provides for Tribal or State submittal to OSM of an

AMLR plan. The Secretary of the Interior adopted regulations in 30 CFR

870 through 888 that implement Title IV of SMCRA. Under these

regulations, the Secretary reviewed the Tribe's or State's AMLR plan

and solicited and considered comments of State and Federal agencies and

the public. Based upon the comments received, the Secretary determined

whether a Tribe or State had the ability and necessary legislation to

implement the provisions of Title IV. After making such a

determination, the Secretary decided whether to approve the Tribe or

State AMLR plan. Approval granted the Tribe or State exclusive

authority to administer its approved plan.

Following approval of a Tribe's or State's AMLR plan by the

Secretary, an application may be submitted to OSM by a Tribe or State

on an annual basis for funds to be expended by that Tribe or State on

specific projects necessary to implement the approved plan. Such annual

grant applications are reviewed and approved by OSM in accordance with

the requirements of 30 CFR 886.

The Federal Abandoned Mine Reclamation Fund (Federal Fund), which

is administered by the Secretary through OSM, is financed by a

reclamation fee assessed on every ton of mined coal. Expenditures from

the Federal Fund are subject to appropriation by Congress. The Federal

Fund is divided into Tribal or State and Federal shares with each

Indian tribe or State under a federally approved reclamation program

entitled to 50 percent of the reclamation fees collected from coal

operations on Indian lands or within the State. Annually, the Indian

tribes or States receive reclamation project construction grants and

administrative grants from their share of the Federal Fund. Subject to

OSM approval, Tribes and States are also authorized to create special

interest-bearing Tribe or State trust accounts into which up to 10

percent of their annual grants can be deposited. These ``set-aside''

accounts may be used to achieve the priorities of section 403(a) of

SMCRA after September 30, 1995, or be deposited into an acid mine

drainage abatement and treatment fund.

Noncoal AMLR projects can be undertaken by a Tribe or State under

two scenarios, both of which are subject to OSM approval in the grants

process. Prior to a Tribe or State certifying in accordance with

section 411(a) of SMCRA that it has completed the reclamation of all

eligible abandoned coal projects, it can expend Tribal or State share

monies for those noncoal projects that are a hazard to public health

and safety. After a Tribe or State has certified that it has completed

reclamation of all eligible abandoned coal projects, it can then use

the full amount of its Tribal or State share for abandoned noncoal mine

land reclamation projects. Such noncoal projects include the

construction of public facilities related to the coal or minerals

industry.

II. Background on the Navajo Nation Plan

On May 16, 1988, the Secretary of the Interior approved, with one

exception, the Navajo Nation plan as originally submitted in June 1983,

resubmitted on September 6, 1983, and amended in February 1988. General

background information on the Navajo Nation plan, including the

Secretary's findings, the disposition of comments, the decision

deferring any action on the Navajo Nation's proposal to assume the

emergency response authority, and the approval of the Navajo Nation

plan can be found in the May 16, 1988, Federal Register (53 FR 17186).

Approval of the Navajo Nation plan is codified at 30 CFR 756.13.

III. Proposed Amendment and Request for Concurrence With Certification

of Completion of Coal Reclamation

By letters dated April 7 and 22, 1994, the Navajo Nation submitted

a proposed amendment to its AMLR plan pursuant to SMCRA (administrative

record Nos. NA-207, NA-208, and NA-212). The Navajo Nation submitted

the proposed amendment at its own initiative with the intent of

revising its AMLR plan so it could use AMR funds to reclaim remaining

interim program coal sites and for noncoal reclamation purposes,

including the construction of public facilities. Interim program coal

sites are eligible lands and water mined after August 3, 1977, but

prior to September 28, 1984 (the date the permanent Federal regulatory

program took effect on Navajo Nation lands), for which available funds

for reclamation or abatement pursuant to a bond or other form of

financial guarantee or from any other source are not sufficient to

provide for adequate abatement or reclamation at a site.

The Navajo Nation proposed revisions to its AMLR Code of 1987 at

(1) the introduction to the Navajo AMLR Code; (2) Title I, section 101,

findings, and section 102, purposes; (3) Title II, sections 201(a),

(b), (c) and (d), duties of the Navajo Abandoned Mine Lands Reclamation

Department (NAMLRD); and (4) Title IV, sections 401(a), (b)(5), (b)(6),

(c)(5) and (c)(8), Navajo AMR fund and purposes; section 402,

reclamation fee; sections 403(a) and (b), objectives of the fund;

section 404, eligible lands and water; sections 405(a), (b), (c), and

(f), Tribal reclamation program; section 407, acquisition and

reclamation of lands within the Navajo Nation adversely affected by

past mining practices; section 408, liens; section 409, filling voids

and sealing tunnels; section 410, emergency powers; section 411,

certification of completion of coal reclamation; section 412, fund

report; section 413, miscellaneous powers; and section 414, interagency

cooperation.

The Navajo Nation also proposed revisions to the Navajo Nation

Rules implementing the AMLR Code of 1987 at (1) section II, Part D,

subsections 1 and 2, reclamation priorities; Part L, subsections 1 and

2, general reclamation requirements; Part M, subsections 1 and 2,

certification of completion of coal reclamation; Part N, subsection 1,

eligible lands and water subsequent to certification; Part O,

subsection 1, exclusion of noncoal reclamation sites; Part P,

subsections 1, 2, and 3, utilities and other facilities, and (2)

section III, Part E, subsection 1, future reclamation set-aside

program.

In addition, by letter dated May 4, 1994, the President of the

Navajo Nation notified the Secretary of the Interior that the Navajo

Nation was certifying that it had completed all of its coal reclamation

projects (administrative record No. NA-213) and stated that NAMLRD

intends to complete all remaining priority 1 and 2 coal reclamation

projects, including interim coal reclamation projects, as required by

section 403(a) of SMCRA. Reclamation projects are funded under a

priority schedule, such that ``priority 1'' projects concern those that

involve the protection of public health, safety, general welfare and

property from extreme danger of the adverse effects of coal mining

practices while ``priority 2'' projects concern those that involve

protection of public health, safety, and general welfare from adverse

effects of coal mining practices. The Navajo Nation submitted the

request for the Secretary's concurrence with certification of

completion of all known coal-related problems with the intent that, if

the Secretary concurred with the certification, the Nation would

request AMR funds to pursue projects under the provisions of section

411 of SMCRA.

OSM announced receipt of the proposed amendment and the Navajo

Nation's request for the Secretary's concurrence with its certification

of completion of coal reclamation in the May 18, 1994, Federal Register

(59 FR 25852, administrative record No. NA-214), provided an

opportunity for a public hearing or meeting and public comment on the

substantive adequacy of the Navajo Nation's proposed amendment and

certification, and requested information concerning any known or

suspected unreclaimed lands and water resources on Navajo Nation lands

that would be eligible for expenditures from the AMR fund under the

provisions of the Navajo Nation's reclamation program. Because no one

requested a public hearing or meeting, none was held. The public

comment period ended on June 17, 1994.

IV. Director's Findings

1. The Navajo Nation Plan

As discussed below, the Director of OSM, in accordance with SMCRA

and 30 CFR 756.1, 884.15, and 884.14, finds that the proposed AMLR plan

amendment submitted by the Navajo Nation on April 7 and 22, 1994, meets

the requirements of SMCRA and the Federal regulations at 30 CFR 884.14.

Accordingly, the Director approves the proposed amendment.

a. Nonsubstantive Revisions to the Navajo Nation AMLR Code of 1987

The Navajo Nation proposed revisions to the following previously-

approved provisions of its code that are nonsubstantive in nature and

consist of (1) minor editorial, grammatical, and punctuation changes,

(2) recodification, (3) using the term ``Nation'' rather than

``Tribal'' or ``Tribe of Indians'' when referring to the Navajo Nation

and the terms ``Navajo Abandoned Mine Reclamation Program'' and

``Navajo Abandoned Mine Reclamation Plan'' for the Navajo Nation's

reclamation program and plan, and (4) clarifying the duties and

responsibilities of NAMLRD, Division of Natural Resources, and Office

of Navajo Land Administration in administering the AMLR plan for the

Navajo Nation (corresponding SMCRA provisions are listed in

parentheses):

Introduction (introduction of SMCRA),

Title I, section 101, Findings (Title I, section 101 of SMCRA),

Title I, section 102, Purposes (Title I, section 102 of SMCRA),

Title II, sections 201(a), (c) and (d), Duties of NAMLRD (Title

II, section 201 and Title IV, section 405(1) of SMCRA),

Title IV, sections 401(a) and (b)(6), Navajo Abandoned Mine

Reclamation Fund and Purposes (Title IV, sections 401(a) and (b) of

SMCRA),

Title IV, section 402, Reclamation Fee (Title IV, section 402 of

SMCRA),

Title IV, sections 403(a)(4), (5) and (6), Objectives of Fund

(Title IV, section 403(a) of SMCRA),

Title IV, sections 405(a), (b), (c), and (f), Tribal Reclamation

Program (Title IV, sections 405(b), (e), and (i) of SMCRA),

Title IV, sections 407(a), (c), (c)(3), and (d) through (h),

Acquisition and Reclamation of Lands Within the Navajo Nation

Adversely Affected by Past Mining Practices (Title IV, section 407

of SMCRA),

Title IV, section 408(a), Liens (Title IV, section 408 of

SMCRA),

Title IV, sections 409(a) and (d), Filling Voids and Sealing

Tunnels (Title IV, sections 409(a) and (e) of SMCRA),

Title IV, section 412, Fund Report (Title IV, section 412 of

SMCRA), and

Title IV, sections 413(b) through (e), Miscellaneous Powers

(Title IV, section 413 of SMCRA).

Because the proposed revisions to these previously-approved

provisions of the code are nonsubstantive in nature, the Director finds

that the proposed revisions meet the requirements of SMCRA.

Accordingly, the Director approves the proposed revisions to these

provisions of the Navajo Nation AMLR Code of 1987.

b. Substantive Revisions to the Navajo Nation AMLR Code of 1987 and

Navajo Nation Rules Implementing the Code That Are Substantively

Identical to the Corresponding Provisions of SMCRA and the Federal

Regulations

The Navajo Nation proposed revisions to the following sections of

its code and rules that are substantive in nature and contain language

that is substantively identical to the requirements of the

corresponding SMCRA and Federal regulation provisions (listed in

parentheses).

Navajo Nation AMLR Code of 1987:

Title II, section 201(b), Duties of NAMLRD (Title II, section

201 of SMCRA),

Title IV, sections 401(c)(5) and (8), Navajo Abandoned Mine

Reclamation Fund and Purposes (Title IV, section 401(c) of SMCRA),

Title IV, sections 403(a) and (b) and deletion of (a)(4),

Objectives of Fund (Title, sections 403(a) and (c) of SMCRA),

Title IV, section 404, Eligible Lands and Water (Title IV,

section 404 of SMCRA,

Title IV, section 409(b), Filling Voids and Sealing Tunnels

(Title IV, section 409(c) of SMCRA), and

Title IV, section 411, Certification [of Completion of Coal

Reclamation] (Title IV, section 411 of SMCRA).

Navajo Nation Rules:

II(D)(1) and (2), Reclamation Priorities (Title IV, sections

403(a) and 411(c) of SMCRA and 30 CFR 874.13 and 875.15),

II(L)(1)(a) through (c) and (e) through (g) and (2), General

Reclamation Requirements (Title IV, sections 404 and 411(b) of SMCRA

and 30 CFR 874.12 and 875.12),

II(M)(1) and (2), Certification of Completion of Coal

Reclamation (Title IV, Sections 411(a) and (f) of SMCRA and 30 CFR

875.13 and 875.15),

II(N)(1), Eligible Lands and Water Subsequent to Certification

(Title IV, section 411(b) of SMCRA and 30 CFR 875.14),

II(O)(1), Exclusion of Noncoal Reclamation Sites (Title IV,

section 411(d) of SMCRA and 30 CFR 875.16),

II(P)(1), (2), and (3), Utilities and Other Facilities (Title

IV, section 411(e) of SMCRA and 30 CFR 875.15), and

III(E)(1), Future Reclamation Set-Aside Program (Title IV,

section 402(g)(6) of SMCRA and 30 CFR 873.12).

Because the proposed revisions to these sections of the code and

rules are substantively identical to the corresponding provisions of

SMCRA and the Federal regulations, the Director finds that the proposed

revisions meet the requirements of SMCRA and the implementing Federal

regulations. Accordingly, the Director approves the proposed revisions

to these sections of the Navajo Nation AMLR Code of 1987 and the

implementing Navajo Nation Rules.

c. Title IV. Section 401(b)(5), Interest Credited to the AMR Fund

The Navajo Nation proposed new language in its AMLR Code of 1987 at

Title IV, section 401(b)(5) to provide that the Navajo AMR Fund shall

consist, in part, of amounts derived from ``interest credited to the

fund under subsection (e) of section 401 of SMCRA.''

Section 401(e) of SMCRA provides that interest can be earned on

that portion of the Federal AMR Fund (administered by the Secretary)

not required to meet current withdrawals. Interest earned on the

invested portion of the Federal Fund is distributed only to the

Secretarial share of the Federal Fund. Therefore, none of the interest

earned on the invested portion of the Federal Fund is distributed to

any portion of the Tribal or State share of the Federal Fund which each

Tribe or State receives in annual grants as provided at 30 CFR 886.

Section 401(e) of SMCRA does not restrict a Tribe or State from earning

interest on the AMR fund created by a Tribe or State as part of its

AMLR program.

Title IV, section 401(b)(5) of the Navajo Nation AMLR Code of 1987

is interpreted to mean that the interest credited to the Navajo AMR

fund is not the interest earned on the Federal Fund but is limited to

interest credited from the deposit of other monies as provided in the

Navajo Nation AMLR Code of 1987 by sections 401(b)(2), (3), (4), and

(6) which include reclamation fees, user charges, donations, recovered

monies, and other reclamation fees lawfully imposed by the Navajo

Nation. The Director approves proposed section 401(b)(5) of the Navajo

Nation AMLR Code of 1987 with the understanding that the interest

earned is limited to the aforementioned monies deposited to the Navajo

AMR fund.

d. Title IV, Section 410, Emergency Powers

The Navajo Nation proposed deletion of its emergency powers

provisions at Title IV, section 410 of its AMLR Code of 1987. Deletion

of these provisions is consistent with the approval of the Navajo

Nation's AMLR plan (53 FR 17186, 17190; May 16, 1988) where the

Secretary deferred decision on the emergency response program pending

additional documentation addressing the specific criteria concerning

assumption of emergency response authority. Because the Navajo Nation

did not submit such additional documentation, the emergency powers

program was never approved. The Director, therefore, approves deletion

of the provisions for emergency powers at section 410 of the Navajo

Nation AMLR Code of 1987 and notes that it is the Navajo Nation's

intent to delete all references to emergency powers within its AMLR

Code of 1987.

e. Title IV, Section 414, Interagency Cooperation

The Navajo Nation proposed new language in its AMLR Code of 1987 at

Title IV, section 414 to provide for interagency cooperation in

implementing and administering the provisions of the Navajo Nation plan

``where such cooperation does not conflict with existing Navajo Nation

and/or applicable federal laws.'' Section 413(a) of SMCRA provides, in

part, that a Tribe has the authority to engage in any work and to do

all things necessary or expedient to implement and administer the

provisions of Title IV. Therefore, the limitation of interagency

cooperation to instances where no conflict with existing Navajo Nation

or applicable Federal laws occur meets the requirements of section 413

of SMCRA. Accordingly, the Director approves section 414 of the Navajo

Nation AMLR Code of 1987.

OSM notes that the Navajo Nation plan provides the authority for

the Tribe to conduct a reclamation program on Navajo (Indian) lands as

that term is defined in section 701(9) of SMCRA. Indian lands occur

within and outside traditional reservation boundaries. Although there

may be jurisdictional limitations to the Navajo Nation's authority to

undertake certain reclamation actions outside the reservation, the

Navajo Nation plan presents a variety of reclamation procedures and

activities which would allow the Tribe to undertake its reclamation

program without violating the jurisdictional rights of other parties.

Because certain lands within the boundaries of the Navajo Nation

Reservation are ``disputed lands'' and other lands are under the

control of the Office of the Navajo and Hopi Indian Relocation, it is

understood by OSM that any reclamation or abatement action proposed by

the Navajo Nation will be coordinated with and due consideration given

to concerns raised by all parties asserting ownership of these lands.

f. Navajo Nation II(L)(1)(d), Interim Program Coal Sites

The Navajo Nation proposed the addition of provisions in its Navajo

Nation Rules at II(L)(1)(d) that address interim program coal sites.

Section 402(g)(4) of SMCRA provides for the reclamation of interim

coal program sites and further provides that sections 403(a) (1) and

(2) of SMCRA determine which sites to reclaim.

The Navajo Nation does not have a statutory requirement that

addresses reclamation of interim program coal sites. OSM acknowledges

that the Navajo Nation has submitted a grant application in accordance

with the provisions of 30 CFR 886 to fund reclamation of all remaining

priority 1 and 2 abandoned coal mine sites, including interim program

coal reclamation projects, as required by section 403(a) of SMCRA. The

Navajo Nation has also demonstrated to OSM's satisfaction that the

Navajo Nation AMR fund contains enough monies in reserve to address

reclamation of the remaining sites. On this basis and upon approval of

the proposed plan amendment that is the subject of this notice, OSM

will begin reviewing the pending grant application. OSM also

understands that the Navajo Nation is in the process of revising its

AMLR Code of 1987 to provide for the reclamation of interim program

coal sites. The Director, therefore, approves the Navajo Nation's

proposed rule at section II, Part L, subsection 1(d) addressing interim

program coal reclamation.

2. Request for Concurrence With Certification of Completion of Coal

Reclamation

The President of the Navajo Nation notified the Secretary of the

Interior that the Navajo Nation certifies to the completion of all its

coal reclamation projects. Section 411(a) of SMCRA provides that the

head of an Indian tribe may certify to the Secretary that all of the

priorities stated in section 403(a) of SMCRA for eligible lands and

water have been achieved and that the Secretary, after notice in the

Federal Register and opportunity for public comment, shall concur with

such certification if the Secretary determines that such certification

is correct.

Since the Secretary's approval of the Navajo Nation plan, the

Navajo Nation has conducted reclamation to correct or mitigate problems

caused by past coal mining. The Navajo Nation has completed this

reclamation in the order of priority set forth in section 403(a) of

SMCRA. OSM acknowledges that there are remaining priority 1 and 2

abandoned coal mine sites yet to be reclaimed by the Navajo Nation, but

upon approval of the grant application submitted by the Navajo Nation

in accordance with 30 CFR 886 and as discussed in finding No. 1.e.

above, the Navajo Nation will have addressed all known remaining pre-

SMCRA and interim program abandoned coal mine lands.

Based upon the Navajo Nation's May 4, 1994, certification, and the

absence of any known unreclaimed coal-related impacts, the Director of

OSM, on behalf of the Secretary, concurs with the Navajo Nation's

certification that all coal-related abandoned mine land problems have

been abated or reclaimed, and finds that the Navajo Nation has

satisfied the requirements of section 403 of SMCRA. If a coal problem

occurs or is identified in the future, the Navajo Nation would have to

seek immediate funding to reclaim the coal-related problem. Concurrence

with the Navajo Nation's certification of completion of coal

reclamation means that the Navajo Nation may now use annual grants made

available under section 402(g)(1) of SMCRA to carry out activities or

construction of specific public facilities related to the coal or

minerals industry in accordance with section 411(f) of SMCRA.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

Pursuant to section 411 of SMCRA and 30 CFR 884.15(a) and

884.14(a)(1), OSM invited public comment and provided an opportunity

for a public hearing on the Navajo Nation's proposed amendment and

certification of completion of coal reclamation (administrative record

No. NA-214). No public comments were received, and because no one

requested an opportunity to testify at a public hearing, no hearing was

held.

2. Agency Comments

Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited

comments on the proposed amendment and request for concurrence with the

Navajo Nation's certification of completion of coal reclamation from

Federal, State, and Tribal agencies with an actual or potential

interest in the Navajo Nation plan (administrative record Nos. NA-209

and NA-215).

Navajo Environmental Protection Administration (Navajo EPA)

Navajo EPA stated that the proposed amendment of the Navajo Nation

plan differed from SMCRA and provided comments in a letter dated May

27, 1994 (administrative record No. NA-219), including editorial

comments pertaining to the specific language proposed in the plan

amendment and suggestions on how to improve such language. These

editorial comments are available in the administrative record for this

amendment, and a copy has been provided to the Navajo Nation. However,

because these comments are nonsubstantive in nature, OSM has not

addressed them below.

(1) Navajo EPA stated that the title of the Navajo Nation plan

should be changed to the ``Navajo Abandoned Mine Lands Reclamation

Plan'' to clarify that the plan refers only to abandoned mine land

reclamation, and not to any active mines, over which NAMLRD has no

jurisdiction. OSM responds that the Navajo Nation's Reclamation Plan is

approved under Title IV, Abandoned Mine Reclamation, of SMCRA and not

under Title V, Control of the Environmental Impacts of Surface Coal

Mining, which provides the authority for States to administer coal

mining regulatory programs. No legislation exists granting Indian

tribes the authority to regulate coal mining on Indian lands.

(2) Navajo EPA indicated that the plan amendment did not

incorporate standards to be used by NAMLRD for air, water, soil,

radioactivity, and other topics, when deciding whether a site has been

completely reclaimed. Title IV of SMCRA and the implementing Federal

regulations do not require specific reclamation standards. OSM, during

field reviews, provides the necessary oversight to ensure that projects

funded using AMR funds meet the goals established when funding was

approved.

(3) Navajo EPA suggested that section II(D)(1)(a-e) of the Navajo

Nation Rules concerning reclamation priorities may need a clarifying

statement to indicate that ``Priority A'' is the same as ``priority

1,'' and so forth, as used in SMCRA and by NAMLRD (to designate

priorities of eligible lands and water for expenditures from the Navajo

AMR fund). OSM agrees that a clarifying statement would be helpful, but

the dual designations are not so confusing as to affect their

implementation.

(4) Navajo EPA expressed concern that section II(L)(1) of the

Navajo Nation Rules pertaining to general reclamation requirements does

not state that the eligibility requirements are set under SMCRA and

were not devised by the Navajo Nation. OSM responds that, while the

Navajo Nation Rules do not specifically reference SMCRA in this

section, these rules implement the Navajo Nation AMLR Code of 1987

which is the Navajo Nation's counterpart to SMCRA. The eligibility

requirements established by these rules are consistent with section 404

of SMCRA. Therefore, a specific reference to this SMCRA citation is not

necessary.

(5) Navajo EPA stated that because it had found no indication that

any ``State'' has held a reclamation bond for mining activities

conducted within the Navajo Nation, the word ``State'' in the Navajo

Nation Rules at section II(L)(2)(b)(3) concerning reclamation bonds

should be deleted. This is an editorial comment, and the implication

that the State may hold a bond for reclamation activities on Navajo

Nation lands is immaterial.

(6) Navajo EPA commented that section II(M)(2) of the Navajo Nation

Rules, which states that ``[f]ollowing the concurrence by the Director

[with the Navajo Nation's certification of completion of coal

reclamation], the Nation may implement a noncoal reclamation program

pursuant to the provisions of section 411 of SMCRA,'' should be revised

to clarify that the ``Director'' is the Director of OSM. While Navajo

EPA's comment is consistent with section 411 of SMCRA, which indicates

that the Secretary (in this case, the Director of OSM for the

Secretary) has the authority to concur with a Tribe's or State's

certification, OSM does not find it necessary to require the Navajo

Nation to revise this rule. In requesting the Secretary's concurrence

on the Director of NAMLRD's certification of completion of coal

reclamation, the Navajo Nation has complied with section 411 of SMCRA.

(7) Navajo EPA stated that the reference to ``the Act'' in section

II(P)(1)(c) of the Navajo Nation Rules concerning utilities and other

facilities is unclear. OSM interprets the term ``the Act'' as used in

this rule to be the Navajo Nation AMLR Code of 1987 and does not agree

with the statement by Navajo EPA that such term is unclear.

(8) Navajo EPA felt that section III(E) of the Navajo Nation Rules

pertaining to creation of a future reclamation set-aside program did

not clearly indicate what happens to Navajo AMR funds after all known

coal reclamation has been completed. Navajo EPA asked whether the

monies will become general funds, subject then to reappropriation by

the Navajo Nation Council and whether the funds can be used for

purposes other than coal reclamation. As discussed in finding No. 2

above, upon concurrence by the Director of OSM with the Navajo Nation's

certification of completion of coal reclamation, the Navajo Nation may,

in accordance with section 411(f) of SMCRA, request AMR grant monies

from OSM to pursue public facilities projects related to coal or

mineral development. The Navajo Nation cannot reappropriate these

monies for uses other than what has been approved by OSM.

(9) Navajo EPA stated that because NAMLRD had already received

Council approval for the revised code, its review seems after the fact

unless suggested revisions are also put through the SAS (signature

approval sheet) process and presented to the Council. As required by 30

CFR 884.15 and 884.14, OSM must approve the Navajo Nation plan

amendment, of which the Navajo Nation AMLR Code of 1987 is a part,

before it is effective. If Navajo EPA identified inconsistencies

between the code and SMCRA and the implementing Federal regulations,

OSM would require the Navajo Nation to revise its AMLR Code of 1987.

(10) Navajo EPA expressed concern that although NAMLRD prepares all

environmental documents required under Federal law, the documents are

only reviewed by OSM, but none of the documents are reviewed by Navajo

EPA, as required. This comment concerns Tribal policy and procedures,

which are not inconsistent with the requirements of SMCRA and the

Federal regulations.

(11) Navajo EPA noted that Title II, section 201(d) of the Navajo

Nation AMLR Code of 1987 provides that NAMLRD shall be protected from

suite by sovereign immunity, and that no employee can waive this

immunity. However, Navajo EPA suggested that this right may be

abrogated by the Federal government as provided in section 405(1) of

SMCRA. Section 405(1) of SMCRA provides for Tribe or State immunity

from lawsuits except those resulting from gross negligence or

intentional misconduct by the Tribe or State, so to the extent that the

Tribe or State is liable under Federal law, it is held liable.

Therefore, OSM responds that the sovereign immunity claimed by the

Navajo Nation extends to all liability situations except those

involving gross negligence or intentional misconduct by the Navajo

Nation.

(12) Title IV, section 401(b)(2) of the Navajo Nation AMLR Code of

1987 indicates that the Navajo AMR fund shall consist of monies

deposited in the fund from sources including any user charges imposed

by the Navajo Nation on or for land reclaimed pursuant to the code,

after expenditures for maintenance have been deducted. Navajo EPA asked

that the type of user charges be clarified, because the code does not

specify if these charges refer to grazing or other non-mining

activities, whether fees are already appropriated to other departments,

what maintenance expenditures are being referred to, and who will

conduct said maintenance. Navajo EPA stated that this section was

copied directly from SMCRA and may have limited relevance as applied to

the Navajo Nation. Specific criteria pertaining to the type of user

charges, appropriation of fees, and maintenance are not addressed in

Title IV of SMCRA or the implementing Federal regulations. Therefore,

decisions made by the Navajo Nation regarding user charges it imposes

under its AMLR program are limited only to the extent that they are not

inconsistent with SMCRA. Because this provision of the Navajo Nation

AMLR Code of 1987 is substantively identical to section 401(b)(2) of

SMCRA, it meets the requirements of SMCRA.

(13) Title IV, section 401(b)(6) of the Navajo Nation AMLR Code of

1987 indicates that the AMR fund shall consist of monies deposited in

the fund from sources including ``all other reclamation fees lawfully

imposed by the Navajo Nation.'' Navajo EPA expressed concern that the

statement ``all other reclamation fees'' is extremely broad, and

wondered if it is meant to include reclamation fees for active coal and

non-coal mines, for sand and gravel, or oil and gas activities; whether

it applies only to reclamation bonds held by the Nation, or by Federal

agencies; and suggested that it is in direct conflict with regulations

outlining how those fees are held and allocated. Section 402 of SMCRA

provides for payment of a reclamation fee on mined coal to be deposited

in the Federal AMR Fund. SMCRA and the implementing Federal regulations

do not require the payment of any additional fees and do not restrict a

Tribe or State from collecting other kinds of reclamation fees.

Therefore, for these reasons and for the same reasons discussed in

comment No. 12 above, OSM finds this provision of the Navajo Nation

AMLR Code of 1987 to be consistent with section 401(b) of SMCRA.

(14) Navajo EPA pointed out a typographical error in Title IV,

section (401)(c)(1) of the Navajo Nation AMLR Code of 1987. The phrase

``prevent abatement'' should be ``prevention, abatement * * *'' as in

the counterpart section 401(c)(1) of SMCRA. OSM agrees with Navajo EPA

in its comment and recommends that the Navajo Nation review its plan

amendment to correct grammatical, punctuation, and typographical errors

and inconsistencies.

(15) Navajo EPA stated that it would be in the Navajo Nation's best

interests if NAMLRD inventoried and listed their priority 3, 4, 5, and

6 projects, since that would include all public facilities projects.

This comment was not made in reference to a specific provision of the

Navajo Nation AMLR Code of 1987 or the Navajo Nation Rules; however,

the comment appears to be directed at noncoal reclamation and having

NAMLRD complete an inventory and list of public facilities projects. A

Tribe or State is required only to inventory priority 1 and 2 coal

sites in accordance with section 403(a) of SMCRA. NAMLRD, in accordance

with section 403(c) of SMCRA, has already inventoried priority 1 and 2

coal sites. Navajo EPA also stated that it is interested in receiving a

copy of the inventory of priority 1 and 2 sites to assist it in ongoing

abandoned uranium mine joint reclamation projects. OSM suggests that

Navajo EPA request the information from NAMLRD or contact OSM's

Albuquerque Field Office.

(16) Navajo EPA suggested that since section 405(f)(7) of SMCRA

requires NAMLRD to report to OSM annually on projects funded under the

previous year's grant, Title IV, section 405(f) of the Navajo Nation

AMLR Code of 1987 should be revised to require that the same kind of

information be provided to the Division of Natural Resources and the

Navajo Nation Council at the same time such information is reported as

required under SMCRA. OSM responds that the Navajo Nation is complying

with SMCRA reporting requirements, and if Navajo EPA requires

information contained in the documentation provided by NAMLRD to OSM on

an annual basis, then Navajo EPA should request this information

directly from NAMLRD.

(17) Navajo EPA expressed concern that Title IV, section 407 of the

Navajo Nation AMLR Code of 1987 pertaining to acquisition and

reclamation of lands adversely affected by past mining practices does

not clearly state whether its provisions apply only to private lands

within the Navajo Nation boundaries, or to lands such as homesite

leases, and individual allotments. Section 407 of SMCRA does not

specify the applicability of its provisions as they relate to Indian

lands. However, the Navajo Nation's jurisdiction over Navajo Nation

lands was clearly defined in the approval of the Navajo Nation plan (53

FR 17186, 17187; May 16, 1988) and is addressed in finding No. 1.e.

(18) Navajo EPA stated that Title IV, section 411(a) of the Navajo

Nation AMLR Code of 1987 should be changed to be consistent with the

Navajo Nation Rules and provide that the Navajo Nation President will

certify completion of coal reclamation rather than the Director of

NAMLRD. Section 411(a) of SMCRA provides that the head of an Indian

tribe will certify to the completion of coal reclamation. The request

from the Navajo Nation for the Secretary's concurrence with its

certification of completion of coal reclamation was made by the

President of the Navajo Nation, which meets the requirements of section

411(a) of SMCRA and which is the tribal authority Navajo EPA asserted

should make the certification. Therefore, although consistency between

the Navajo Nation AMLR Code of 1987 and Navajo Nation Rules is

desirable, it is not an issue in this instance.

(19) Navajo EPA stated that agreements for cooperative projects by

the Navajo Nation with any Federal or State agency should be entered

into with the advice of the Navajo Nation Department of Justice and the

Division of Natural Resources, in addition to the Intergovernmental

Relations Committee and Resources Committee of the Navajo Nation

Council already indicated in Title IV, section 413(b) of the Navajo

Nation AMLR Code of 1987. SMCRA does not require Tribes or States to

conform to a specific administrative process but does provide the power

and authority to engage in cooperative projects. (See finding No. 1.e.)

OSM reviews any cooperative projects during its annual oversight of the

Navajo Nation plan and AMLR grant program and determines at that time

whether such projects are conducted in a manner that meets the

requirements of SMCRA and the implementing Federal regulations.

(20) Navajo EPA stated that Title IV, section 413(d) of the Navajo

Nation AMLR Code of 1987 should require that NAMLRD will turn over

management and operation of water treatment facilities to the

appropriate Tribal department, which will have the continuing staffing

and expertise to run said facilities in perpetuity. This provision of

the code is substantively identical to section 413(d) of SMCRA. SMCRA

does not require that the management and operation of such a treatment

plant be turned over to another agency for continued management and

operation. The administration of the Navajo Nation's AMLR program is

addressed during OSM's annual oversight and any deficiencies in the

program are handled through the oversight process. If, during

oversight, OSM determines that a problem exists with effective

management of any part of the program, OSM would require resolution of

the problem.

U.S. Environmental Protection Agency (EPA)

EPA responded on June 13, 1994, with the following comments

(administrative record No. NA-220).

(1) EPA commented that the Navajo Nation plan does not address or

reference environmental requirements that may be applicable under the

National Environmental Policy Act (NEPA) and that sites found to pose

an environmental problem should be coordinated through NEPA to identify

the appropriate clean up remedies and standards. OSM responds, as it

did at comment No. 2 of the Navajo EPA comments, that Title IV of SMCRA

and the implementing Federal regulations do not require specific

reclamation standards. Prior to the Navajo Nation initiating AMLR

construction projects, OSM complies with the requirements of NEPA to

identify environmental impacts and mitigation measures.

(2) EPA commented that the authority for certifying the completion

of coal reclamation resides with the President of the Navajo Nation but

that section 411(a) of the Navajo Nation AMLR Code of 1987 assigned the

authority for the certification to the Director of NAMLRD. As stated in

response to the same comment by Navajo EPA (comment No. 18), OSM

responds that the request for concurrence with the Navajo Nation's

certification was actually submitted by the President of the Navajo

Nation in compliance with section 411(a) of SMCRA and in conformance

with EPA's comment on which tribal authority should make the

certification.

(3) EPA expressed concern that the Navajo Nation AMLR Code of 1987

does not provide for the Secretary's concurrence with the certification

of completion of coal reclamation. SMCRA provides that the Secretary

shall concur with a Tribe's or State's certification of completion of

coal reclamation. Therefore, OSM responds that the Navajo Nation plan

does not require revision for an action taken by the Secretary.

(4) EPA stated that it had understood that NAMLRD's Reclamation

Plan would be revised to include work at priority 3 abandoned uranium

mine sites, meaning NAMLRD would conduct work on abandoned uranium mine

sites that exhibited environmental hazards and degradation. EPA stated

further that it appeared no priority had been assigned to uranium sites

in the Navajo Nation Rules at II(D)(2), pertaining to noncoal

reclamation priorities prior to certification.

Section 403(a) of SMCRA provides, prior to certification of

completion of coal reclamation, that ``priority 3'' is the restoration

of lands and water and the environment previously degraded by adverse

effects of coal mining practices. After certification, section 411(c)

of SMCRA provides that priority 3 is the restoration of lands and water

and the environment previously degraded by the adverse effects of

mineral mining and processing practices. Title IV of SMCRA does not

prioritize noncoal commodities, and sections 411 (e) and (f) of SMCRA

provide that community impact assistance and public facilities projects

may be undertaken as they relate to the priorities for noncoal

reclamation. In this notice, OSM found that the Navajo Nation plan has

been revised to meet the requirements of SMCRA and the implementing

Federal regulations for noncoal reclamation subsequent to

certification. OSM is aware that EPA, among others, continues to work

with the Navajo Nation to develop a plan to address abandoned uranium

mine sites.

(5) EPA asked that the Navajo Nation clarify provisions of its AMLR

Code of 1987 and the Navajo Nation Rules to provide that the Nation's

President has the authority to undertake action at a noncoal site

before certification of completion of coal reclamation. The rules

provide that this authority resides with the President of the Navajo

Nation, but the code allows the Director of NAMLRD to conduct

reclamation activities and take other remedial actions on noncoal

sites. This comment is immaterial in light of the Secretary's

concurrence in this notice with the Navajo Nation's certification of

completion of coal reclamation on Navajo Nation lands.

(6) In a related manner, EPA suggested that the community

participation process for reclamation at noncoal sites is not

consistent between provisions of the Navajo Nation AMLR Code of 1987

and the Navajo Nation Rules. Specifically, EPA asked what mechanism

ensures that a request for noncoal reclamation to the Director of

NAMLRD will reach the President who has authority to request

reclamation at noncoal sites and what feedback mechanism existed to

inform the community of what actions will be taken. OSM, in approving

the proposed Navajo Nation plan amendment that is the subject of this

notice, has determined that the Tribe's public participation process

for determining the priority of community assistance projects meets the

requirements of SMCRA and the implementing Federal regulations.

(7) Finally, EPA stated that there appear to be no check-and-

balance systems between NAMLRD and Navajo EPA, NAMLRD and the Division

of Natural Resources, and NAMLRD and OSM. EPA feels systems are needed

to ensure inter- and intra-governmental consistency and harmony within

the Navajo Nation's various programs. SMCRA does not require

coordination between Tribal agencies but does provide for interagency

cooperation at section 414. The Navajo Nation AMLR Code of 1987

provides a similar provision at section 414. Therefore, OSM responds

that it is up to the Navajo Nation itself to determine how its various

departments will interact, coordinate, and establish and maintain

relationships that are conducive to meeting the requirements of the

Navajo Nation plan. Coordination between the Tribe and OSM already

occurs as required by SMCRA and the Federal regulations. OSM also

responds that it provides input into these relationships through

oversight of the Navajo Nation's AMLR program.

Other Agencies

By letter dated May 5, 1994, the Utah State Historical Society

provided the concurrence of the Utah Preservation Office with the

determination that no part of the amendment pertains to cultural

resources (administrative record No. NA-216).

The Arizona State Historic Preservation Office (SHPO) responded on

June 1, 1994, that it assumed OSM had the concurrence of the Navajo

Nation Historic Preservation Department (NNHPD) as to a determination

of no effect on cultural resources under the National Historic

Preservation Act of 1966 with respect to the consultation requirements

of 36 CFR Part 800. Therefore, it would defer the determination of no

effect on the NNHPD (administrative record No. NA-218).

Based upon the Arizona SHPO response, OSM contacted NNHPD on June

28, 1994. NNHPD stated it had elected not to respond and presumed that

OSM would proceed as if a determination of no effect was in place

(administrative record No. NA-221). OSM is not aware of any adverse

effects on cultural resources that would result from the proposed

amendment and certification of completion of coal reclamation, and on

this basis, OSM is proceeding with its decision on the Navajo Nation

submission.

V. Director's Decision

Based on the above findings, the Director approves the Navajo

Nation's proposed amendment as submitted on April 7 and 22, 1994.

As discussed in finding No. 1.a., the Director approves

nonsubstantive revisions to the Navajo Nation AMLR Code of 1987 at

sections 101, 102, 401, 402, 403, 405, 407, 408, 409, 412, and 413.

As discussed in finding Nos. 1.b., c., d., and e., the Director

approves substantive revisions to the Navajo Nation AMLR Code of 1987

at sections 201, 401, 403, 404, 409, 410, 411, and 414.

As discussed in finding Nos. 1.b and f., the Director approves

substantive revisions to the Navajo Nation Rules at Section II, Parts

D, L, M, N, O, and P, and Section III, Part E.

The Director approves the proposed revisions of the Navajo Nation

AMLR Code of 1987 and Navajo Nation Rules implementing the code with

the provision that they be fully promulgated in identical form to the

code and rules submitted to and reviewed by OSM and the public.

The Director of OSM, on behalf of the Secretary, also concurs with

the Navajo Nation's certification, as submitted by the Nation on May 4,

1994, that all abandoned coal mine related problems have been abated or

reclaimed under its AMLR plan in accordance with Title IV of SMCRA.

The effect of the Director's concurrence with the Tribe's

certification is to allow the Navajo Nation to use its AMR funds for

community impact assistance and construction of public facilities in

areas of the Navajo Nation lands impacted by coal or minerals

development, mining, or processing as provided in section 411 of SMCRA.

The Director is codifying this AMLR plan decision and concurrence

with the Navajo Nation's certification of completion of coal

reclamation at 30 CFR Part 756.14. The Director is also taking this

opportunity to revise the addresses at 30 CFR 756.13 for OSM and the

Navajo Nation.

VII. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of Tribal AMLR plans and revisions

thereof since each such plan is drafted and promulgated by a specific

Tribe, not by OSM. Decisions on proposed Tribal AMLR plans and

revisions thereof submitted by a Tribe are based on a determination of

whether the submittal meets the requirements of Title IV of SMCRA (30

U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR

Parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed Tribal AMLR plans and revisions thereof

are categorically excluded from compliance with the National

Environmental Policy Act (42 U.S.C. 4332) by the Manual of the

Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The Tribal submittal which is the subject of this rule is based upon

Federal regulations for which an economic analysis was prepared and

certification made that such regulations would not have a significant

economic effect upon a substantial number of small entities.

Accordingly, this rule will ensure that existing requirements

established by SMCRA or previously promulgated by OSM will be

implemented by the Tribe. In making the determination as to whether

this rule would have a significant economic impact, the Department

relied upon the data and assumptions in the analyses for the

corresponding Federal regulations.

VIII. List of Subjects in 30 CFR Part 756

Abandoned mine land reclamation program, Indian lands.

Dated: September 15, 1994.

Russell F. Price,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter E of the Code of Federal Regulations is amended as set forth

below:

PART 756--NAVAJO NATION

1. The authority citation for Part 756 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.

2. With the exception of the first sentence, Sec. 756.13 is revised

to read as follows:

Sec. 756.13 Approval of the Navajo Nation's Abandoned Mine Land Plan.

* * * * *

Copies of the approved plan are available at:

Albuquerque Field Office, Office of Surface Mining, Reclamation and

Enforcement, 505 Marquette Avenue, NW., Suite 310, Albuquerque, New

Mexico 87102, Telephone: (505) 766-1486.

The Navajo Nation, Navajo Abandoned Mine Land Reclamation Department,

P.O. Box 308, Window Rock, Arizona 86515, Telephone: (602) 871-4941.

3. Section 756.14 is added to read as follows:

Sec. 756.14 Approval of amendments to the Navajo Nation's Abandoned

Mine Land Plan.

(a) Revisions to the following provisions of the Navajo Nation AMLR

plan, as submitted to OSM on April 7 and 22, 1994, are approved

effective September 27, 1994:

Navajo Nation Abandoned Mine Land Reclamation Code of 1987:

Introduction

Section 101--Findings

Section 102--Purposes

Section 201--Duties of Navajo Abandoned Mine Lands Reclamation

Department

Section 401--Navajo Abandoned Mine Reclamation Fund and Purposes

Section 402--Reclamation Fees

Section 403--Objectives of Fund

Section 404--Eligible Lands and Water

Section 405--Reclamation Program

Section 407--Acquisition and Reclamation of Lands Within the Navajo

Nation Adversely Affected by Past Mining Practices

Section 408--Liens

Section 409--Filling Voids and Sealing Tunnels

Section 410--Deletion of Emergency Powers

Section 411--Certification of Completion of Coal Reclamation

Section 412--Navajo Abandoned Mine Reclamation Fund Report

Section 413--Miscellaneous Powers, and

Section 414--Interagency Cooperation

Navajo Nation Rules

II(D) (1) and (2)--Reclamation Priorities

II(L) (1) and (2)--General Reclamation Requirements

II(M) (1) and (2)--Certification of Completion of Coal Reclamation

II(N) (1)--Eligible Lands and Water Subsequent to Certification

II(O) (1)--Exclusion of Noncoal Reclamation Sites

II(P) (1), (2), and (3)--Utilities and Other Facilities, and

III(E) (1)--Future Reclamation Set-Aside Program

(b) The Director concurs with the Navajo Nation's May 4, 1994,

certification of completion of coal reclamation effective September 27,

1994.

[FR Doc. 94-23829 Filed 9-26-94; 8:45 am]

BILLING CODE 4310-05-M