Surface Coal Mining and Reclamation Operations; Initial and Permanent Programs; Abandoned Sites

SUMMARY: This rule will change the minimum inspection frequency for

surface coal mining and reclamation operation that have been abandoned

without completion of reclamation or abatement of violations. The

change enables regulatory authorities to eliminate ineffective

inspections to redirect resources to minesites where inspection and

enforcement will achieve intended results. Before an abandoned site can

qualify for a change in inspection frequency under this rule, the

regulatory authority must make a written finding that a site is

abandoned and that the change in inspection frequency is appropriate

based on specified environmental and public health and safety criteria.

EFFECTIVE DATE: December 28, 1994.

FOR FURTHER INFORMATION CONTACT: Daniel Stocker, Office of Surface

Mining Reclamation and Enforcement, 1951 Constitution Avenue NW.,

Washington, DC 20240, Telephone: 202-208-2550 (Commercial or FTS).

SUPPLEMENTARY INFORMATION:

I. Background

II. Discussion of Rule and Response to Public Comments

III. Procedural Matters

I. Background

Section 517(c) of the Surface Mining Control and Reclamation Act of

1977 (the Act) states that the regulatory authority shall inspect on an

irregular basis averaging not less than one partial inspection per

month and one complete inspection per quarter each surface coal mining

and reclamation operation covered by a permit. To implement this

requirement, OSM first promulgated rules at 30 CFR 840.11 for State

regulatory authorities and at 30 CFR 842.11 for OSM where it is the

regulatory authority authority in a State. 44 FR 15455 (March 13,

1979). These rules essentially mirrored the inspection frequency

requirements of the Act.

These rules were revised on August 16, 1982 (47 FR 35620). Among

other things, the 1982 rules carved out for inspection frequency

purposes a distinct category of surface coal mining and reclamation

operations where reclamation was in the advanced stages. While

retaining the quarterly requirement for complete inspections, these

rules allowed regulatory authorities to reduce the number of partial

inspections required at these ``inactive'' operations from an average

of one per month to a frequency ``as necessary to ensure effective

enforcement of the regulatory program.'' Since abandoned sites are

incompletely reclaimed surface coal mining and reclamation operations

where the operators will not or cannot return to the minesite to

complete reclamation or correct violations, they remain in an

``active'' status, and, therefore, must continue to be inspected at the

full mandated frequency of twelve times per year.

To address the issue of inspection frequency at abandoned sites,

the rules were again revised in 1988. (53 FR 24872, June 30, 1988).

This time the rules defined an ``abandoned site'' as a distinct

category at surface coal mining and reclamation operations and enabled

regulatory authorities to reduce the inspection frequency at these

sites and to refrain from issuing additional enforcement actions at

abandoned sites under certain conditions. The definition of ``abandoned

site'' specifies that, before a site can be considered abandoned, it

must first meet certain criteria which ensure that the regulatory

authority has taken or is in the process of taking all enforcement

action available to it under the applicable regulatory program to

compel abatement of violations and completion of reclamation. Sites

meeting the definition could then, instead of twelve times per year, be

inspected ``as necessary to monitor for changes of environmental

conditions or operational status at the site.''

The 1988 final rule was subsequently challenged in Federal District

Court. On August 30, 1990, the United States District Court for the

District of Columbia issued an order in the case of National Wildlife

Federation, et al., v. Manuel Lujan, Jr., et al., 31 Env't Rep. Cas.

(BNR) 2034, 2042 (D.D.C. 1990) (NWF v. Lujan). The district court

remanded the rule to the Secretary to be withdrawn or revised on the

basis that the Secretary's arguments supporting the rule were

inconsistent with the inspection frequency requirements of Section

517(c) of the Act. However, the district court conceded that the rule

was practical, that it comported with common sense, and that it is not

wise to spend a lot of time and effort inspecting abandoned sites every

month when nothing changes. To implement the court's order, OSM

suspended those parts of the 1988 rule that related to inspection

frequency at abandoned sites. The definition of ``abandoned site'' at

30 CFR 840.11(g) and 842.11(e) and the provision at 30 CFR 843.22

allowing regulatory authorities to refrain from issuing additional

enforcement actions at abandoned sites were unaffected by the court

order and remain intact today (56 FR 25036, June 3, 1991).

In appealing the district court decision, the Secretary asked the

United States Court of Appeals to vacate the district court's remand in

order to allow him to promulgate a new regulation redefining

``abandoned sites'' to include only those sites where a permit has

expired or been revoked. Under this approach, Section 517(c) of the Act

would not apply to abandoned sites because the inspection frequency

requirements of that section speak only to surface coal mining and

reclamation operations covered by a permit and a permit that is expired

or revoked is no longer considered to be in existence. Without

expressing any view about whether the Secretary's proposed reading of

Section 517(c) of the Act was permissible, the court of appeals pointed

out that the district court remanded the 1988 rule to the Secretary

``to be withdrawn or revised'' and, in light of this statement, the

district court's decision does not stand in the way of the Secretary

proceeding with an alternative rulemaking on the subject of inspection

frequently at abandoned sites. See NWF v. Lujan, Civ. Action Nos.

890136, 88-3345 & 88-2416, U.S. App. Ct. (DC Circ., December 10, 1991)

mem. op. at 10. Accordingly, on December 18, 1992, OSM proposed for

public comment an alternative abandoned sites rule upon which today's

final rule is based (57 FR 60410).

The Secretary is required under section 201(c)(2) of the Act, 30

U.S.C. 1211(c)(2), to publish necessary implementing rules. Since

regular inspections of abandoned sites are a counterproductive use of

limited resources, and since fewer inspections are not likely to result

in increased environmental harm, the rule being promulgated today is

necessary and is consistent with the district court's opinion in NWF v.

Lujan, which struck down the previous 1988 abandoned sites rule.

In promulgating the 1988 rule on abandoned sites, OSM concluded

that repeated inspections of abandoned sites at the frequency required

under the existing rules are ineffective expenditures of resources and

that fewer inspections would not result in increased harm to the

environment or reduce the likelihood of ultimate compliance at

abandoned sites. The time inspectors spend at abandoned sites detracts

from the time they can spend at other active or inactive sites working

with viable operators to abate present violations and prevent future

violations. Thus, reducing the frequency of abandoned sites improves

the overall quality and effectiveness of inspection programs under the

Act.

Enforcement actions issued as a result of inspections at abandoned

sites have proven to be ineffective at compelling abatement of

violations or achieving reclamation. Moreover, inspectors normally have

cited all violations prior to or shortly after a site becomes

abandoned. The persons responsible for abating these violations

typically are financially insolvent or cannot be located. In such

instances, even when diligent efforts are made to enforce the Act, no

one is available to abate violations or to perform or pay for the

needed reclamation. Continuing regular partial and complete inspection

of these sites serves no useful purpose and wastes finite inspection

resources. To illustrate the extent of this waste, OSM has in the past

conducted approximately 2,900 inspections each year on an average of

236 abandoned sites in Tennessee. This effort comprises approximately

32 percent of the inspections in that State; however, few, if any, of

these inspections have resulted in abatement of violations or

completion of reclamation.

OSM experience has shown that environmental conditions at most

abandoned sites do not significantly degrade what has been observed

during prior inspections and that violations of substantive performance

standards do not necessarily deteriorate to imminent danger or harm

situations. While these sites do not comply with the Act, many, due to

their age or because they were partially reclaimed prior to

abandonment, become reasonably well stabilized through natural

settlement and revegetation occurring over time.

While the stated goal of section 517 of the Act is to ``enforce the

requirements of and carry out the purposes of [the] Act,'' inspecting

abandoned sites as frequently as other sites covered by a permit

frustrates rather than furthers this goal. Among the mechanisms

provided by the Act to achieve the stated goals of section 517(c) are

civil penalties under section 518, performance bonds under section 509

and 519, citizen suits under section 520, and enforcement under section

521. Each of these mechanisms has as its underlying premise the

existence of a person against whom an action can be taken, or of a bond

that can provide the funds to abate violations and secure reclamation.

If no such person can be found, or if the regulatory authority is

taking other appropriate legal actions to ensure reclamation or

abatement, and any permit has been revoked and any bond is being

forfeited, issuing multiple violation notices and cessation orders and

assessing uncollectible penalties as a result of the fixed inspection

frequency requirement are not productive tools to enforce the Act. The

waste of resources also extends beyond the inspector level as other

units within the regulatory authority must assess and attempt to

collect civil penalties. Under the foregoing circumstances, inspections

of abandoned sites performed at a minimum frequency less than that for

other sites based on the particular characteristics of the site are a

far more reasonable and realistic alternative. Moreover, the

conservation of resources that will flow from this rule promotes the

principles embodied in OSM's mission and vision statement by creating

fair and more efficient and effective processes for achieving the

objectives of the Act.

II. Discussion of Final Rule and Response to Public Comments

Section 840.10

Section 840.10 is being revised to include an estimate of the

average public reporting burden for the collections of information

under all of Part 840 as such part is revised by this final rule. The

section also lists the addresses for OSM and the Office of Management

and Budget where comments on the information collection requirements

may be sent.

Combined Section-by-Section Analysis

Since the revisions adopted for State regulatory authorities at

840.11 are identical to those adopted at 842.11 where OSM is the

regulatory authority, they will be combined for ease of discussion.

Section 840.11(g)(4)(i)/842.11(e)(i).

These sections are being adopted as proposed. They require that

before a site could meet the definition of ``abandoned site,'' the

permit covering the surface coal mining and reclamation operation must

be either revoked or expired. The existing rules allow a site to be

classified as abandoned on the basis that permit revocation proceedings

have only been initiated and are being pursued diligently.

The final provision will have two effects. First, a person who has

not or will not respond to enforcement action issued by the regulatory

authority and who cannot or will not meet his/her obligations to abate

violations or complete reclamation will not be entitled to resume coal

production under a valid permit. Second, the constraints of section

517(c) of the Act would be lifted for abandoned sites since the fixed

inspection frequency requirements of that section apply only to surface

coal mining and reclamation operations covered by each permit. The

preamble to OSM's final rule at 30 CFR 773.11, Requirements to obtain

permits, articulated and codified the concept that a surface coal

mining permit is required only where surface coal mining operations

defined under section 701(28) of the Act are occurring and that if this

authorization to extract coal expires or is revoked, it amounts to the

absence or the non-existence of the permit that once was in force (i.e.

the minesite is no longer considered to be covered by a permit). Of

course, this does not affect the permittee's legal obligation to

reclaim a site that has been abandoned, since, in accordance with 30

CFR 733.11, that obligation continues until all reclamation is

completed, regardless of whether the authorization to conduct surface

coal mining operations has expired or has been revoked. See 54 FR 13814

(April 5, 1989).

The National Wildlife Federation and the Kentucky Resources

Council, Inc. (hereafter NWF) concurred with this change to the

definition of abandoned site to the extent that the plain language of

the term ``abandoned site'' suggests that there should not be an

existing permit that is renewable or revisable by the operator.

The Joint National Coal Association and American Mining Congress on

Surface Mining Regulations (NCA/AMC), the National Coal Association

(NCA) and the Kentucky Coal Association supported this revision saying

that the proposed rule differs significantly from the abandoned sites

rule remanded in 1990 because the proposed rule defines ``abandoned

sites'' to include only those sites whose permits have either expired

or been revoked. Because the Act's inspection requirements only apply

to operations under permit, they believe that the revised definition

can no longer be considered inconsistent with section 517(c) of the Act

and consequently, the district court's earlier criticism of OSM's

statutory interpretation is no longer valid. They added that neither

the language nor legislative history of the statute indicates any

intent that the regulatory authority continue to expend its resources

to inspect an abandoned site where no activities listed in section

701(28) of the Act are currently conducted and enforcement action has

proven futile in compelling the correction of prior violations.

Finally, they believed that the U.S. Court of Appeals for the District

of Columbia gave tacit approval for OSM's revised reading of the

``covered by each permit'' language of section 517(c) because the court

clearly would have rejected OSM's announced efforts before the court to

undertake a curative rulemaking using this revised reading if it

perceived such a reading as inconsistent with the Act.

OSM agrees with the commenters, except for the proposition that the

U.S. Court of Appeals decision concerning the remanded 1988 abandoned

sites rule amounts to tacit approval of the Secretary's ``covered by

each permit'' reading of Section 517(c). The Secretary requested the

appeals court to vacate the district court's opinion remanding the 1988

abandoned sites rule because he believed that step was necessary before

engaging in a new rulemaking based on the interpretation that abandoned

sites for which the permits have expired or been revoked are not

subject to section 517(c) of the Act. In declining the Secretary's

request to vacate, the appeals court stated ``We express no view about

the validity of the Secretary's proposed reading. The significant point

on this appeal is that the district court's decision does not stand in

the way of the Secretary adopting it in a new rulemaking.'' Whether or

not the revised reading set forth as a basis for this rule would be

sustained by the appeals court will only be known if this rule becomes

ripe for a decision before that judicial body.

A State regulatory authority (SRA) said it would make more sense to

require the permit to be revoked/expired ``or'' actually be forfeited.

This could be accomplished by replacing the word ``and'' by the word

``or'' and deleting the phrase ``has initiated and is diligently

pursuing forfeiture of'' in subparagraph (ii). The commenter explained

that bond forfeiture proceedings may not always be accomplished

concurrently with permit expiration, that if a permit expires there may

not be a reason to immediately forfeit the bond and by requiring both

expiration and forfeiture to occur simultaneously could be a waste of

manpower and funds. This comment is not being adopted. As discussed

above, allowing a reduction from the inspection requirements of section

517(c) of the Act under this rule is based on the premise that

revocation or expiration of a permit is a necessary prerequisite in

order for an abandoned site not to be considered ``covered by a

permit.'' If, as the commenter suggests, bond forfeiture is an

alternative to revocation or expiration, an abandoned site could not

escape the constraints of section 517(c) of the Act since bond

forfeiture does not necessarily require permit revocation. In view of

the often prolonged process of bond forfeiture, this final section of

the rule does not require that bond forfeiture be completed, but rather

that it be initiated and diligently pursued and thus, the rule will

have more immediate applicability.

Section 840.11(g)(4)(ii)/842.11(e)(4)(ii).

To qualify under the definition of ``abandoned site,'' the existing

rules require that the regulatory authority has initiated and is

diligently pursuing forfeiture of, or has forfeited, the performance

bond. These sections are being revised by adding the phrase ``any

available'' before the phrase ``performance bond.'' This change is

minor and is intended to recognize that there is a relatively small

number of sites that are or were permitted, but for which a performance

bond was never required or no longer exists. The absence of a

performance bond has no bearing on whether a site should be classified

as abandoned for inspection purposes.

NWF supported the addition of the phrase ``any available'' agreeing

that the absence of a performance bond has no bearing on whether a site

should be classified and abandoned for inspection purposes. One SRA,

noting the time lag between initiation of bond forfeiture and actual

collection, supported the proposal to allow reduction of inspections

while the regulatory authority is diligently pursuing bond forfeiture.

This commenter believed that inspection resources would be used much

more efficiently by this change. Another SRA commented that this

provision should include those sites where no reclamation bond is

available due to insolvency of surety companies. These sections are

being adopted as proposed. To address the latter SRA's concern, if no

performance bond exists because of the insolvency of a surety company,

then under this rule a performance bond would not be considered

available.

Sections 840.11(h) introductory text/842.11(f) introductory text

These sections as proposed provided that the regulatory authority

shall inspect each abandoned site at a rate of no less than one

complete inspection per calendar year. This minimum inspection

frequency is being retained under this final rule. However, the

language has been revised to provide that the regulatory authority

shall inspect each abandoned site on a set frequency commensurate with

the public health and safety and environmental considerations present

at each specific site, but in no case shall the inspection frequency be

set at less than one complete inspection per calendar year. This

revised language emphasizes the requirement that the regulatory

authority must tailor an appropriate frequency to the site-specific

conditions that exist at each mine. That frequency could vary from one

to twelve or more per calendar year.

Most commenters supported a reduced inspection frequency for

abandoned sites and commended OSM for taking the initiative on this

rulemaking. Eight SRAs voiced strong support for the rule. One SRA

stated that, based on its long history of regulating coal mining

operations, it supported OSM's conclusions that fewer inspections of

certain abandoned sites would not harm the environment; the States'

finite resources could be used more effectively; all significant

violations are cited prior to abandonment; and that abandoned sites

often remain stable over the course of several years. Another SRA

stated that its inspection staff is being required to inspect abandoned

sites regularly under circumstances that serve absolutely no purpose

other than to meet an arbitrary inspection mandate and that eliminating

or curtailing redundant inspections will greatly improve the efficiency

of its inspection staff. A third SRA said that in these days of

increasingly restrictive State and Federal budgets, it is imperative

that our resources are effectively allocated to further the purposes of

the Act and that the time spent inspecting abandoned sites detracts

from the time that can be spent to ensure compliance at non-abandoned

sites. Finally, a fourth SRA maintained that the States continue to be

best suited and capable of deciding the appropriate frequency for

inspection of abandoned sites where all other enforcement measures have

failed to force compliance.

The Interstate Mining Compact Commission (IMCC), which represents

the natural resource interests of its 17 member States, strongly

supported the rule agreeing with OSM's analysis and conclusions in the

preamble to the proposed rule and noting that the States would not

support a situation where environmentally sensitive sites are left

unattended, unabated, or without meaningful followup in the way of

alternative enforcement proceedings such as those required in the

proposed rule.

The NCA and the Kentucky Coal Association fully supported the

proposed rule, characterizing it as a proper exercise of OSM's

discretion to provide regulatory authorities the necessary flexibility

to deploy limited resources in an efficient manner. The NCA/AMC also

supported the rule pointing out that along with the rules practical

benefits, the regulatory history of the Act shows that there is

precedent for the selective inspection of mines that pose no threat to

the environment as exemplified by the 1982 revised Federal rules that

allowed a reduction in the partial inspection frequency for

``inactive'' operations.

The United States Environmental Protection Agency (EPA) stated that

it is not unreasonable for OSM to conduct complete inspections twice a

year at a minimum on sites causing or likely to cause water pollution

or other nonpoint source problems. However, the EPA recommended that

the rule include criteria upon which the frequency of inspections would

be based, including the potential for the site to become further

degraded. As discussed later in this preamble, the final rule will

incorporate criteria, including a criterion similar to that suggested

by EPA, that must be taken into consideration and documented before

regulatory authorities can reduce inspection frequencies at abandoned

sites.

One commenter said that OSM'S statement in the preamble to the

proposed rule that reducing inspections at abandoned sites ``would

allow the regulatory authorities to redirect those inspection resources

to operations where inspection and enforcement would achieve the

intended results'' points to the failure of regulatory authorities to

achieve the intended results in the first place by preventing non-

compliance through inspection and enforcement during the mining and

reclamation phases. The commenter questioned why OSM is not concerning

itself with how to prevent abandonment rather than a way to assist

operators through reduced inspections. The commenter added that since

existing regulations require adequate bond be in place, abandonment

becomes irrelevant if those regulations are properly implemented.

OSM concurs with the commenter's view that not enough has been done

in the past to prevent abandonment and will place greater emphasis on

prevention. Prevention of environmental problems and inadequate

performance bonds often associated with abandoned sites are priorities

to OSM and the agency will work with the States to improve efforts in

these key areas. This rule promotes a policy of prevention because it

frees resources that can focus on existing or potential problems at

high risk sites that would result in long term adverse effects or

reclamation difficulties in the event of abandonment.

The NWF opposed the proposed reduction in the minimum inspection

frequency for abandoned sites because it allegedly fails to provide

adequately for the protection of public health and safety and the

environment from the adverse impacts of improperly conducted coal

mining and operations, and therefore contravenes the underlying purpose

of the Act. They maintained that the dramatic reduction in frequency or

even elimination of inspections altogether at abandoned sites as

proposed would unquestionably heighten the risk that site conditions

may worsen to create an imminent harm and trigger violations of on-or-

off site performance standards in addition to those violations already

cited by a regulatory authority. NWF stated that abandoned sites need

to be monitored to avert deterioration of site conditions into imminent

harms, to ensure no uncited violations exist, to provide early warning

to the public in the event of imminent harm and to determine or

prioritize sites that are eligible for abandoned mine lands funding.

They urged that OSM withdraw this proposal, or at a minimum, that a

more carefully designed, comprehensive clear and precise rule,

explained in greater detail, be substituted.

NWF asserts that the proposed rule is deficient because: (1) It is

excessively permissive in delegating decision making to the regulatory

authority without a meaningful check based on specified criteria or

site characteristics guiding reductions in frequency; (2) there is an

absence of binding criteria for ``tailoring'' inspection schedules for

sites requiring more than the minimum one inspection per year, but less

than currently required 12 per year; and (3) while OSM indicates in the

preamble that regulatory authorities may subsequently readjust a

reduced frequency as new information about the conditions at a site

become available, there are no criteria for what would trigger such a

readjustment.

NWF agrees, however, for some abandoned sites, rigid adherence to

the inspection requirements under Section 517(c) of the Act may be a

poor expenditure of limited inspection resources and to the extent that

the change to the definition of ``abandoned site'' enables regulatory

authorities to make limited reductions in inspection frequencies

without offending the language of Section 517(c), the rule is a

sensible one. However, they state that any change to the definition of

``abandoned site'' in order to allow reductions in inspection

frequencies must be accompanied by a comprehensive regulatory program

such as that they outline below. They assert that failure of OSM to

promulgate abandoned site inspection rules fitting this description

would offend the purpose of the Act as a whole, even where the

``covered by each permit'' definitional change of ``abandoned site''

has rendered Section 517(c) no longer at issue.

NWF asserts that, as part of their suggested program, any attempt

to reduce inspection frequencies must begin by creating a categorical

exclusion for which there can be no reduction from the existing

requirements of 12 inspections per year. This exclusion should at a

minimum include sites with potentially unstable structures, such as

impoundments or hollow or valley fills, and sites with existing on-or-

off site impacts, such as acid mine drainage. Moreover, NWF urged that,

where abandoned sites are not categorically excluded from any reduction

in inspection frequency, they should remain subject to an absolute

minimum frequency of one complete inspection per year and not have

their inspection frequencies eliminated altogether as the rule would

allow.

The comprehensive detailed inspection program suggested by NWF

would also need to include the following: (1) Quantitative inspection

requirements like the existing rule including an absolute minimum (e.g.

one complete inspection per year); (2) a standardized or regionalized

protocol so that criteria are applied consistently across different

inspectors and different regulatory authority jurisdictions or regions;

(3) specific written findings for all relevant on-and-off site

performance standard parameters and public health and safety concerns;

(4) based on quantitative inspection data charted over time, a

published table for which the regulatory authority could proceed to the

appropriate coordinates to determine the appropriate inspection

frequency and trigger any necessary subsequent adjustments; and (5)

traceable written documentation relating to inspection frequencies at

abandoned sites amenable to administrative review.

Finally, NWF's suggested comprehensive program also would include

opportunities for structured public participation in the decision

making process. NWF contends that OSM's regulation should begin with a

rebuttable presumption that inspection frequencies should not be

reduced from currently required levels unless that presumption can be

overcome by an affirmative showing of reasonableness and general public

notice, specific personal notice to identifiable parties that might be

adversely affected by on-or-off site impacts, and public comment

periods for all proposed changes in frequency. Also, if the regulatory

authority demonstrates that a reduced frequency is appropriate, NWF

asserts that there should be a general provision granting reasonable

citizen access, when requested in writing, to inspect any areas of the

site that would otherwise be inaccessible except to the regulatory

authority.

NWF charges that the absence of any discussion of why OSM has not

developed a more comprehensive and structured abandoned sites

inspection program is offensive to established principles of

administrative law. Citing National Wildlife Federation v. Hodel, 839

F.2d 694 (1988), NWF points out that the court condemned precisely the

type of conclusory rulemaking OSM has undertaken with its current

proposal, ``The Secretary * * * if he determines that there is no need

to `flesh out' the statute, must `flesh out' his explanations so that

we can review the rationality of his decision.'' In light of this clear

directive, NWF asserts OSM must at a minimum, repropose this rule and

explain to the public why it is declining to establish a detailed

regulatory program.

OSM set forth an adequate explanation of its rationale underlying

the proposed rule that has been greatly supplemented with the preamble

discussion and response to comments in this final rule. OSM appreciates

NWF's views and has decided to adopt most of the elements of NWF's

program in this final rule. OSM will include in the final rule NWF's

recommendation for an absolute minimum inspection frequency of not less

than one complete inspection per calendar year, criteria for

``tailoring'' inspection schedules for sites requiring more than one

inspection per year, and a requirement for specific and traceable

written findings by the regulatory authority based on relevant

environmental and public health and safety concerns and newspaper

advertisement providing the opportunity for public comment on any

proposed reduction in inspections of abandoned sites. These adopted

provisions are discussed below and under the discussion of final

Secs. 840.11(h)(1)/842.11(f)(1). OSM considered, but is not adopting,

NWF's request for quantitative fixed inspection frequencies in the form

of categorical exclusions, standardized or regionalized protocols,

published ``matrix'' tables, or public access to abandoned sites for

inspection purposes in light of the opportunities already available

under existing regulations.

Under this final rule the responsibility for selection of the

appropriate inspection frequency necessary to comply with this rule

rests with the expertise and judgment of each regulatory authority,

guided by specific written findings required in the final rule. With

site-specific historical knowledge at hand and through their experience

with local conditions and informal consultations with affected

residents, the regulatory authorities are well qualified to identify

sites with the potential for harm and to carefully tailor an

appropriate inspection frequency for individual abandoned sites, each

of which is unique, both in terms of its physical environment and the

problems it presents. This rule will maintain the regulatory

authority's responsibility for administering its regulatory program

consistent with congressional intent to have primary regulatory

authority rest with the States.

OSM is not adopting categorical exclusions or other fixed

inspection frequencies for abandoned sites beyond the minimum one per

year because to do so would merely substitute one inflexible frequency

for another and thus fail to achieve fully the goal of eliminating

counterproductive inspections. An arbitrary fixed inspection frequency

cannot account for the unique physical environment at each abandoned

site nor the variation of problems that each abandoned site may pose. A

fixed predetermined frequency is just as likely to yield too many

inspections, or too few inspections, as it is to yield a suitable

number. Categorical exclusions or inclusions also would almost

certainly result in inappropriate applications of the rule in many

cases. Further, the U.S. Court of Appeals explicitly acknowledged the

legal defensibility of OSM's ``flexible'' implementation of statutes

that allow regulatory authorities to consider the myriad site specific

situations that cannot be fully anticipated in writing a Federal

regulation. NWF v. Hodel, 839 F.2d 694, 745 (D.C. Cir. 1988). However,

nothing in this rule would preclude regulatory authorities from

establishing for administrative convenience categories of sites with

similar characteristics and evaluating and documenting the necessary

inspection frequency for each category as a whole.

As previously discussed, the reason inspections of abandoned sites

at the frequency imposed under section 517(c) of the Act are

counterproductive and a waste of resources is that enforcement actions

at the inspector level are no longer effective. Alternative enforcement

that must be initiated beyond the level of inspectors is generally the

only viable means to compel abatement of violations or completion of

reclamation at abandoned sites, even if conditions deteriorate. Where

the regulatory authority is taking all appropriate enforcement action

available to it as required under the definition of ``abandoned site,''

nothing more can be done through repeated inspections to reclaim a site

or abate violations than is already occurring. Thus, while a fixed

inspection frequency like that for active sites under the existing

rules might cause the regulatory authority to be informed of a problem

at an abandoned site more quickly, it will not provide any new remedy

to compel compliance. Accordingly, OSM believes that the inspection

frequency program under this rule strikes a sound balance between the

fixed inspection frequency required for active and inactive sites and

the need to periodically, but not less than once per year, inspect

abandoned sites to monitor environmental conditions or other changes in

the status of a site and to ensure bond forfeiture reclamation

priorities are adjusted as necessary.

Since OSM is accepting NWF's suggestion to set an absolute minimum

inspection frequency of not less than one complete inspection per year,

Secs. 840.11(h)(1)/842.11(f)(1) will not be adopted as proposed. Those

proposed sections would have enabled the regulatory authority to

further reduce the minimum inspection frequency required under

paragraphs (h) introductory text and (f) introductory text, possibly to

zero, if, based on no less than three consecutive complete annual

inspections conducted during a three-year period before or after the

effective date of this rule, the regulatory authority would have found

in writing that an abandoned site satisfies two criteria. The first

criterion would have been that no conditions or structures existed at

the site that could have created an imminent danger to the health or

safety of the public or an imminent harm to the environment. The second

criterion would have been that the site had become reasonably stable

through natural settlement or revegetation processes.

Eight SRAs, the NCA/AMC, the NCA and the Kentucky Coal Association

supported these proposed provisions without providing substantive

comments. The NWF was strongly opposed. It commented that under this

proposal, inspections at some abandoned sites could be discontinued

altogether even where serious deterioration of conditions occurred

subsequent to the decision to suspend inspections indefinitely. They

said that no State or Federal regulatory authority would have the duty

to revisit the abandoned site and would have every administrative and

budgetary incentive not to.

OSM acknowledges NWF's concern over the potential for

misapplication of these proposed sections. While some abandoned sites

may be so stable and so operationally defunct as to make further

inspections completely unnecessary, OSM believes that deletion of these

provisions will act as a safeguard against premature termination of

inspections at what could be a large number of abandoned sites where

conditions do not justify ending inspections altogether. OSM believes

that monitoring each abandoned site at least once per year to evaluate

the environmental conditions, operational status, and the bond

forfeiture reclamation priority is reasonable public policy that would

not excessively strain the resources of Federal or State regulatory

authorities, especially since many abandoned sites are located near

active and inactive sites requiring frequent inspections. Moreover,

there must be some minimum in place to ensure that each abandoned site

continues to be inspected at a frequency commensurate with public

safety and environmental considerations present at each specific site

as required under the final rule. Also, if there were no minimum

frequency, the regulatory authority might not become aware, other than

from information provided by citizens, that conditions had worsened to

the point that a higher alternative frequency would need to be set in

order for the frequency to be commensurate with the deteriorating

conditions.

Turning to NWF's recommendation that the rule contain enhanced

opportunities for public participation in the abandoned sites

inspection process, OSM is including a public notice provision that

provides the general public with the opportunity to submit written

comments to the regulatory authority when concerns are raised as to a

particular inspection frequency adjustment. This enhancement coupled

with opportunities for private citizen involvement in the inspection

process already provided under other regulations and discussed below

will provide ample public participation in the inspection of abandoned

sites. 30 CFR 842.14 provides that any person who is or may be

adversely affected by a surface coal mining and reclamation operation

may notify the Director in writing of any alleged failure on the part

of OSM to make adequate and complete periodic inspections and the

Director must respond with a determination including any actions to be

taken to remedy any noncompliance. When a person provides OSM with

reason to believe that there exists any violation at an abandoned site,

that person may request a Federal inspection and has the right to

accompany the inspector during the inspection. To the extent a person

is not satisfied with a Federal inspector's decision not to inspect or

enforce, the person is entitled to informal review of that decision by

the Director of OSM, and can subsequently appeal to the Office of

Hearings and Appeals within DOI. Finally, 30 CFR 840.15 provides that

each State program shall provide for public participation in the

enforcement of the State program consistent with the Federal provisions

cited above.

OSM encourages States to work with potentially affected citizens

where a concern arises for a particular minesite. The ability and

willingness of State regulatory authorities to work closely with

citizens is clearly recognized in OSM's mission and vision statement

and is a key part of making the Act work successfully. As part of its

oversight duties, OSM will monitor the willingness of States to be

responsive to the concerns of citizens and to allow them full access to

information needed to evaluate the effect of mining on their health,

safety, general welfare and property.

Final Sections 840.11(h)(1)/842.11(f)(1)

As discussed above, sections 840.11(h)(1)/842.11(f)(1) are not

being adopted as proposed, but instead are being revised. Under the

final rule, before proceeding to reduce the inspection frequency at any

abandoned site as authorized under 840.11(h) introductory text/

842.11(f) introductory text, the regulatory authority must first

conduct a complete inspection of the site. On that basis and on the

basis of comments received during the public notice period required

under this paragraph, the regulatory authority shall prepare and

maintain for public review and Federal oversight purposes a written

finding justifying the alternative inspection frequency selected. The

prerequisite complete inspection is an on-site status review of all

applicable performance standards conducted with an eye towards the long

term effects of reducing the inspection frequency. Regulatory

authorities shall make the written finding immediately available to OSM

and the public in the area of mining in accordance with 30 CFR 840.14,

Availability of records. To assist the public and OSM in reviewing

written findings in a meaningful and expeditious manner, regulatory

authorities are expected under this provision to maintain or be able to

generate within a reasonable time a current compilation or index of all

abandoned sites for which an inspection frequency adjustment has been

made under this rule. Each written finding shall justify a reduced

inspection frequency by affirmatively addressing in detail all of the

following criteria.

(h)(1)(i)/(f)(1)(i)

As a prerequisite to any reduction in inspection frequency, the

regulatory authority must explain how the site meets each of the

criteria under the definition of an abandoned site under 30 CFR

840.11(g)/842.11(e). Meeting these criteria demonstrates that the

regulatory authority has taken, and continues to be in the process of

taking, all available enforcement within its reach under its regulatory

program to secure abatement of violations and completion of reclamation

at an abandoned site.

(h)(1)(ii)/(f)(1)(ii)

The regulatory authority must document whether there exist

impoundments, earthen structures or other conditions such as acid mine

drainage that pose, or reasonably may be expected to progress into,

imminent dangers to the health and safety of the public or significant

environmental harms to land, air, or water resources as defined under

30 CFR 701.5. Depending on the circumstances, this criterion alone may

be sufficient to warrant no reduction in inspection frequency or at

least selection of a frequency in the high range. Even though there may

be no remedy immediately available to abate any such dangers or harms,

frequent monitoring can serve to give advance warning to the public or

appropriate government agencies and serve as a basis to expedite

reclamation or abatement of dangers or harms through the bond

forfeiture process.

(h)(1)(iii)/(f)(1)(iii)

The regulatory authority must document the extent to which existing

impoundments or earthen structures were constructed and certified in

accordance with prudent engineering practices and designs approved in

the permit. This could be beneficial in support of a reduced frequency

since structures such as ponds, head of hollow and valley fills, coal

waste refuse piles, backfills or impoundments pose less risk of failure

when constructed as designed and certified than structures that were

not.

(h)(1)(iv)/(f)(1)(iv)

This criterion addresses the degree to which erosion and sediment

control are present and functioning. Monitoring for damage caused by

off-site sedimentation may need to be more frequent where there are

extensive or critically located areas of loose soils that are not

controlled by any or by non-functioning sediment controls.

(h)(1)(v)(f)(1)(v)

Another factor to be considered by the regulatory authority is the

proximity of the abandoned site to urbanized areas, communities,

occupied dwellings, schools, and other public or commercial buildings

and facilities. This criterion will become either more or less

important depending on the regulatory authority's findings under the

other criteria.

(h)(1)(vi)/(f)(1)(vi)

This criterion concerns the extent of reclamation conducted prior

to abandonment and the degree of stability of unreclaimed areas.

Abandoned sites vary widely in this respect, ranging from no

reclamation at all to various combinations of backfilling, grading,

revegetation, and bond release.

(h)(1)(vii)/(f)(1)(vii)

This last criterion requires the regulatory authority to document

the rate at which adverse environmental or public health and safety

conditions have and can be expected to progressively deteriorate based

on the record of complete and partial inspection reports during the

last two consecutive years of inspections of the site. This snapshot

through time can be useful in predicting whether adverse conditions can

be expected in the future and their rate of acceleration, which may

have an important bearing on justifying any reduction in inspection

frequency.

Final Sections 840.11(h)(2)/842.11(f)(2)

In response to public comment, this section is being added to

require the regulatory authority to advertise each proposed frequency

reduction in the newspaper with the broadest circulation in the

locality of the abandoned site. The public will be provided a 30 day

period in which to submit written comments. Paragraph (h)(2)(ii)/

(f)(2)(ii) specifies the nature of the information that at a minimum

must be contained in the public notice. Nothing in this section

precludes the regulatory authority from consolidating more than one

permit into the same advertisement as long as all the information

required reflects site-specific differences in the permits included. It

is expected that the regulatory authority will give careful

consideration to the comments it receives and work with the public to

arrive at an inspection frequency acceptable to all parties with an

interest.

III. Procedural Matters

Effect in Federal Program States and on Indian Lands

These final rules will apply through cross-referencing in those

States with Federal programs and on Indian lands. The programs with

Federal programs are California, Georgia, Idaho, Massachusetts,

Michigan, North Carolina, Oregon, Rhode Island, South Dakota,

Tennessee, and Washington. The Federal programs for these States appear

at 30 CFR parts 905, 910, 912, 921, 922, 933, 937, 939, 941, 942, and

947 respectively. The Indian lands program appears at 30 CFR part 750.

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?

The rule would not preempt State law or regulation. States would

not be required to adopt similar provisions and could continue to

inspect abandoned sites at the current frequency required by existing

regulations if they so choose.

B. What is the effect on existing Federal law or regulation, if

any, including all provisions repealed or modified?

The proposed rule modifies the implementation of the Act as

described herein, and is not intended to modify the implementation of

any other Federal statute. The preceding discussion of this rule

specifies the only Federal regulatory provisions that are affected by

this proposed 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 the Act.

D. What is the retroactive effect, if any, to be given to the

regulation?

The inspection reduction provisions of this rule may be applied to

any surface coal mining and reclamation operation conducted after the

effective date of the Act.

E. Are administrative proceedings required before parties may file

suite in court? Which proceedings apply? Is the exhaustion of

administrative remedies required?

No administrative proceedings are required before parties may file

suit in court challenging the provisions of this rule under section

526(a) of the Act, 30 U.S.C. 1276(a). Prior to any judicial challenge

to the application of the rule, however, administrative procedures must

be exhausted. In situations involving OSM application of the rule,

applicable administrative procedures may be found at 43 CFR part 4.

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 and 701.5.

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 Office of

Management and Budget, 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.

Federal Paperwork Reduction Act

The collections of information contained in this rule have been

approved by the Office of Management and Budget under 44 U.S.C. 3501 et

seq. and assigned clearance number 1029-0051.

Executive Order 12866

This rule has been reviewed under the Executive Order 12866.

Regulatory Flexibility Act

The DOI certifies that this rule will not have a significant

economic effect on a substantial number of small entities under the

Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule does not

distinguish between small and large entities. This determination is

based on the findings that the regulatory changes contained in this

rule would serve to reduce the costs incurred by OSM and State

regulatory authorities in making routine inspections of abandoned

sites. Therefore, the rule will not add to the cost of operating a mine

under an approved regulatory program.

National Environmental Policy Act

OSM has prepared an environmental assessment (EA) of the rule and

has made a finding that it would not significantly affect the quality

of the human environment under section 102(2)(C) of the National

Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). A

finding of no significant impact (FONSI) has been approved in

accordance with OSM procedures under NEPA. The EA is on file in the OSM

Administrative Record at the address previously specified (see

ADDRESSES).

Author

The author of this rule is Daniel Stocker, Chief, Branch of

Inspection and Enforcement with assistance from Frederick W. Fox. The

author may be reached at the Office of Surface Mining Reclamation and

Enforcement, 1951 Constitution Avenue NW., Washington DC 20240;

Telephone 202-208-2550.

List of Subjects

30 CFR Part 840

Intergovernmental relations, Reporting and recordkeeping

requirements, Surface mining, Underground mining.

30 CFR Part 842

Law enforcement, Surface mining, Underground mining.

Dated: October 14, 1994.

Bob Armstrong,

Assitant Secretary for Land and Minerals Management.

Accordingly, 30 CFR Parts 840 and 842 are amended as set forth

below:

PART 840--STATE REGULATORY AUTHORITY--INSPECTION AND ENFORCEMENT

1. The authority citation for Part 840 continues to read as

follows:

Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L.

100-34, unless otherwise noted.

2. Section 840.10 is revised to read as follows:

Sec. 840.10 Information collection.

(a) The collections of information contained in part 840 have been

approved by the Office of Management and Budget under 44 U.S.C. 3501 et

seq. and assigned clearance number 1029-0051. The information is being

collected by States for use in assessing penalties as evidence in

enforcement cases and as an inspection management record. The

obligation to respond is required to obtain a benefit in accordance

with 30 U.S.C. 1201 et seq.

(b) Public reporting burden for this information is estimated to

average 3.7 hours per response, including the time for the 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 Information Collection Clearance

Officer, 1951 Constitution Ave, NW, Room 640, NC, Washington DC 20240;

and the Office of Management and Budget, Paperwork Reduction Project

1029-0051, Washington, DC 20503.

3. Section 840.11 is amended by revising paragraphs (g)(4) and (h)

to read as follows:

Sec. 840.11 Inspection by State Regulatory Authority.

* * * * *

(9) * * *

(4) Where the site is, or was, permitted and bonded:

(i) The permit has either expired or been revoked; and

(ii) The regulatory authority has initiated and is diligently

pursuing forfeiture of, or has forfeited, any available performance

bond.

(h) In lieu of the inspection frequency established in paragraphs

(a) and (b) of this section, the regulatory authority shall inspect

each abandoned site on a set frequency commensurate with the public

health and safety and environmental considerations present at each

specific site, but in no case shall the inspection frequency be set at

less than one complete inspection per calendar year.

(1) In selecting an alternate inspection frequency authorized under

the paragraph above, the regulatory authority shall first conduct a

complete inspection of the abandoned site and provide public notice

under paragraph (h)(2) of this section. Following the inspection and

public notice, the regulatory authority shall prepare and maintain for

public review a written finding justifying the alternative inspection

frequency selected. This written finding shall justify the new

inspection frequency by affirmatively addressing in detail all of the

following criteria:

(i) How the site meets each of the criteria under the definition of

an abandoned site under paragraph (g) of this section and thereby

qualifies for a reduction in inspection frequency;

(ii) Whether, and to what extent, there exist on the site

impoundments, earthen structures or other conditions that pose, or may

reasonably be expected to ripen into, imminent dangers to the health or

safety of the public or significant environmental harms to land, air,

or water resources;

(iii) The extent to which existing impoundments or earthen

structures were constructed and certified in accordance with prudent

engineering designs approved in the permit;

(iv) The degree to which erosion and sediment control is present

and functioning;

(v) The extent to which the site is located near or above urbanized

areas, communities, occupied dwellings, schools and other public or

commercial buildings and facilities;

(vi) The extent of reclamation completed prior to abandonment and

the degree of stability of unreclaimed areas, taking into consideration

the physical characteristics of the land mined and the extent of

settlement or revegetation that has occurred naturally with them; and

(vii) Based on a review of the complete and partial inspection

report record for the site during at least the last two consecutive

years, the rate at which adverse environmental or public health and

safety conditions have and can be expected to progressively

deteriorate.

(2) The public notice and opportunity to comment required under

paragraph (h)(1) of this section shall be provided as follows:

(i) The regulatory authority shall place a notice in the newspaper

with the broadest circulation in the locality of the abandoned site

providing the public with a 30-day period in which to submit written

comments.

(ii) The public notice shall contain the permittee's name, the

permit number, the precise location of the land affected, the

inspection frequency proposed, the general reasons for reducing the

inspection frequency, the bond status of the permit, the telephone

number and address of the regulatory authority where written comments

on the reduced inspection frequency may be submitted, and the closing

date of the comment period.

PART 842--FEDERAL INSPECTIONS AND MONITORING

4. The authority citation for part 842 continues to read as

follows:

Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L.

100-34, unless otherwise noted.

5. Section 842.11 is amended by revising paragraphs (e)(4) and (f)

to read as follows:

Sec. 842.11 Federal inspections and monitoring.

* * * * *

(e) * * *

(4) Where the site is, or was, permitted or bonded:

(i) The permit has either expired or been revoked; and

(ii) The Office has initiated and is diligently pursuing forfeiture

of, or has forfeited, any available performance bond.

(f) In lieu of the inspection frequency established in paragraph

(c) of this section, the office shall inspect each abandoned site on a

set frequency commensurate with the public health and safety and

environmental considerations present at each specific site, but in no

case shall the inspection frequency be set at less than one complete

inspection per calendar-year.

(1) In selecting an alternate inspection frequency authorized under

the paragraph above, the office shall first conduct a complete

inspection of the abandoned site and provide public notice under

paragraph (f)(2) of this section. Following the inspection and public

notice, the office shall prepare and maintain for public review a

written finding justifying the alternative inspection frequency

selected. This written finding shall justify the new inspection

frequency by affirmatively addressing in detail all of the following

criteria:

(i) How the site meets each of the criteria under the definition of

an abandoned site under paragraph (e) of this section and thereby

qualifies for a reduction inspection frequency;

(ii) Whether, and to what extent, there exist on the site

impoundments, earthen structures or other conditions that pose, or may

reasonably be expected to ripen into, imminent dangers to the health or

safety of the public or significant environmental harms to land, air or

water resources;

(iii) The extent to which existing impoundments or earthen

structures were constructed and certified in accordance with prudent

engineering designs approved in the permit;

(iv) The degree to which erosion and sediment control is present

and functioning;

(v) The extent to which the site is located near or above urbanized

areas, communities, occupied dwellings, schools and other public or

commercial buildings and facilities;

(vi) The extent of reclamation completed prior to abandonment and

the degree of stability of unreclaimed areas, taking into consideration

the physical characteristics of the land mined and the extent of

settlement or revegetation that has occurred naturally with time; and

(vii) Based on a review of the complete and partial inspection

report record for the site during at least the last two consecutive

years, the rate at which adverse environmental or public health and

safety conditions have and can be expected to progressively

deteriorate.

(2) The public notice and opportunity to comment required under

paragraph (f)(1) of this section shall be provided as follows:

(i) The office shall place a notice in the newspaper with the

broadest circulation in the locality of the abandoned site providing

the public with a 30-day period in which to submit written comments.

(ii) The public notice shall contain the permittee's name, the

permit number, the precise location of the land affected, the

inspection frequency proposed, the general reasons for reducing the

inspection frequency, the bond status of the permit, the telephone

number and address of the office where written comments on the reduced

inspection frequency may be submitted, and the closing date of the

comment period.

[FR Doc. 94-29243 Filed 11-25-94; 8:45 am]

BILLING CODE 4310-05-M