Lands Eligible for Remining

summary: The Office of Surface Mining Reclamation and Enforcement (OSM)

is issuing final rules at 30 CFR chapter VII implementing changes made

to Title V of the Surface Mining Control and Reclamation Act of 1977

(the Act or SMCRA) by the Energy Policy Act of 1992. The final rules

are intended to provide incentives for the remining and reclamation of

previously mined and inadequately reclaimed lands eligible for

expenditures under section 402(g)(4) or 404 of SMCRA.

effective date: December 27, 1995.

for further information contact: Douglas J. Growitz, P.G., Office of

Surface Mining Reclamation and Enforcement, Room 110 SIB, 1951

Constitution Avenue, NW., Washington, DC 20240; Telephone: 202-208-

2561.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Rules adopted and Responses to Public Comments on Proposed

Rules.

III. Procedural Matters.

I. Background

On October 24, 1992, the President signed into law the Energy

Policy Act of 1992, Pub. L. 102-486. Section 2503 of the Energy Policy

Act, Coal Remining, in part amended sections 404, 510, 515(b)(20), and

701 of SMCRA in order to provide the following incentives to encourage,

in an environmentally-sound manner, the remining of lands eligible for

expenditures under sections 402(g)(4) and 404 SMCRA: (1) The permittee

of such remaining operations shall not be subject to permit blocking

under section 510(c) of SMCRA for any violation resulting from an

unanticipated event or condition occurring on the remaining site; and

(2) The period of responsibility for successful revegetation for such

remining operations is reduced to five years in the West and two years

in the East.

The relevant portion of section 2503 provides as follows:

Section 510 is amended by adding the following new subsection at

the thereof:

(e) MODIFICATION OF PROHIBITION--After the date of enactment of

this subsection, the prohibition of subsection (c) shall not apply

to a permit application due to any violation resulting from an

unanticipated event or condition at a surface coal mining operation

on lands eligible for remining under a permit held by the person

making such application. As used in this subsection, the term

``violation'' has the same meaning as such term has under subsection

(c). The authority of this section and section 515(b)(20)(B) shall

terminate on September 30, 2004.

Section 515(b)(20) is amended to insert (A) after (20) and add the

following new subparagraph at the end thereof:

(B) on lands eligible for remining assume the responsibility for

successful revegetation for a period of two full years after the

last year of augmented seeding, fertilizing, irrigation, or other

work in order to assure compliance with the applicable standards,

except in those areas or regions of the country where the annual

average precipitation is twenty-six inches or less, then the

operator's assumption of responsibility and liability will be

extended for a period of five full years after the last year of

augmented seeding, fertilizing, irrigation, or other work in order

to assure compliance with the applicable standards.

Section 701 is amended by adding the following two new paragraphs:

(33) the term ``unanticipated event or condition'' as used in

section 510(e) means an event or condition encountered in a remining

operation that was not contemplated by the applicable surface coal

mining and reclamation permit; and

(34) the term ``lands eligible for remining'' means those lands

that would otherwise be eligible for expenditures under section 404

or under section 412(g)(4).

The purpose of section 2503 was set forth in the House of

Representatives Report from the Committee on Interior and Insular

Affairs on H.R. 776, the predecessor bill in the House of

Representatives (H.R. Rep. No. 102-474, 102d Cong., 2d Sess. 85 (1992))

which contains the following discussion: ``The (coal remining)

provisions of this section seek to make coal available that otherwise

would be bypassed by providing incentives for industry to extract and

reprocess, in an environmentally sound manner, coal that remains in

abandoned mine lands and refuse piles. Current law reclamation

performance standards were devised to address surface coal mining on

undisturbed lands; the unintended result is to discourage remining.

Remining also serves to mitigate the health, safety, and environmental

threats posed to coal field residents by augmenting the work done under

the Abandoned Mine Reclamation Program.''

To implement sections 510(e) and 515(b)(20)(B) of SMCRA, OSM

proposed rules on June 2, 1994 (59 FR 28744) which would: (1) Revise 30

CFR 701.5, Definitions; 30 CFR 773.15, Review of Permit Applications;

30 CFR 816.116 and 817.116, Revegetation: Standards for Success; and

(2) add a new 30 CFR 785.25, Lands Eligible for Remining.

Public comments were received until August 1, 1994. No public

meetings nor hearings were requested or held. OSM received letters in

response to the June 2, 1994, proposed rule from eight commenters

representing industry, State regulatory authorities, Federal agencies,

Environmental groups, and individual citizens. OSM has reviewed each

comment carefully and has considered the commenters' suggestions and

remarks in writing this final rule.

OSM previously implemented another remining provision of the Energy

Policy Act dealing with AML eligibility under a separate rulemaking (59

FR 28136, May 31, 1994). A provision dealing with abandoned coal refuse

sites is also being addressed under a separate rulemaking.

II. Rules Adopted and Responses to Public Comments on Proposed

Rules

1. 30 CFR Part 701--Permanent Regulatory Program

Section 701.5, Definitions, is being amended by adding two terms--

``lands eligible for remining'' and ``unanticipated event or

condition''--both of which were defined in section 2503(c) of the

Energy Policy Act.

a. Lands eligible for remining. The definition adopted for the term

``lands eligible for remining'' is the same as the proposal and the

definition is section 701(34) of SMCRA. Under the final rule, ``lands

eligible for expenditures under sections 404 or 402(g)(4) of the Act.

Thus, the following lands would be included under this definition:

those lands which were mined by surface coal mining operations or

otherwise affected by surface or underground mining operations and

which were either (1) abandoned or left in an inadequate reclamation

status prior to August 3, 1977, and for which there is no continuing

reclamation responsibility under State or other Federal laws; (2)

abandoned or left in an inadequate reclamation status after August 3,

1977 but before State received primacy under SMCRA and for which

available bond is insufficient to provide for adequate reclamation; or

(3) completed being mined between August 4, 1977, and November 5, 1990,

and remain unreclaimed due to the insolvency of a surety company

occurring during that same period.

[[Page 58481]]

Many remining operations involve the surface mining or

``daylighting'' of underground workings. Depending on the extent that

overlaying or adjacent surface lands are affected by the prior

underground workings, e.g., through subsidence, those lands may or may

not fall within section 701(34)'s definition of ``lands eligible for

remining.'' if, under the example above, the surface disturbances

resulting from previous underground mining are so slight that the lands

do not constitute ``lands eligible for remining,'' the ``daylighting''

of the underground workings would then not qualify for the remining

incentives provided by sections 510(e) and 515(b)(20)(B) and

implemented by this rulemaking.

One commenter suggested that the definition of ``lands eligible for

remining'' contain the phrase ``under a permit issued prior to

September 30, 2004.'' Although OSM has not made the suggested change to

the definition, OSM agrees that Sections 510(e) and 515(b)(20)(B) of

SMCRA apply only to permits issued before September 30, 2004. As

explained below, this concept is reflected in 30 CFR 773.15(b)(4) and

in 30 CFR 816.116 and 817.116.

b. Unanticipated event or condition. The definition adopted for

``unanticipated event or condition'' is similar to the proposal and

consistent with the definition in section 701(33) of SMCRA. An

``unanticipated event or condition'' is defined in the final rule as an

event or condition related to prior mining activity which arises from a

surface coal mining and reclamation operation on lands eligible for

remining and was not contemplated by the applicable permit. Pursuant to

final Sec. 773.15(b)(4), an operator will not be permit blocked for any

violation resulting from an unanticipated event or condition occurring

during the term of such remining permit issued before September 30,

2004, or any renewals thereof. The rationale for the final rules' use

of the term ``arises from'' in lieu of the term ``encountered in'' used

in the statutory definition is discussed later under the heading

``Phase-out of section 510(e) permit block exemption.''

(i) Related to prior mining activity The phrase ``related to prior

mining'' has been added to the final definition of ``unanticipated

event or condition'' to qualify which events or conditions could give

rise to violations subject to the Sec. 773.15(b)(4) permit block

exemption.

This change is made in response to several commenters, one of which

asserted that the proposed definition of ``unanticipated event or

condition'' was too broad to be of practical value and asked whether an

event or condition ``causally related'' to the unreclaimed or

previously mined status of the area covered by the remining permit

would qualify as unantipated. A second commenter suggested that an

unanticipated event or condition must arise from the previously

disturbed nature of the site. A third commenter, citing the history

associated with the development of the remining amendments of the

Energy Policy Act, proposed that an unanticipated event or condition

should embody any event or occurrence that arises from the previously

disturbed nature of the site, including acid mine discharges, despite

substantial adherence to the permit.

OSM agrees with these comments that only unanticipated events or

conditions related to the previously disturbed nature of the site

should qualify for the section 510(e) exemption. The addition of the

qualifying phrase ``related to prior mining activity'' is consistent

with Congressional intent to encourage remining by extending the permit

block exemption of section 510(e) to the problem events or conditions

occasioned by such prior mining operations. OSM does not believe, on

the other hand, that Congress intended to exempt applicants from permit

blocking for violations occurring on the remining site but resulting

from conditions unrelated to previous mining activities. Applicants

would thereby remain permit blocked for violations solely attributable

to their own conduct.

An example of an event or condition which might arise during a

remining operation but not related to the prior mining activity would

be the mining of previously undisturbed toxic coal seams located below

previously disturbed deposits.

An example of an event or condition which might arise during a

remining operation and considered related to the prior mining activity

would be the discovery of hazardous materials or substances buried in

depressions or pits left at an abandoned site. Such an event or

condition would be considered as related to a prior mining activity

because without the previous mining the hazardous materials or

hazardous substances would not have been buried at the site.\1\

\1\ If hazardous materials or hazardous substances of any type

are uncovered or released during remining, the operator must follow

the requirements for notifying the National Response Center as

required by the National Contingency Plan (40 CFR part 300). This

would apply to the discovery or release, whether regulated under the

statutory authority of the Toxic Substances Control Act (TSCA), the

Resource Conservation and Recovery Act (RCRA), or the Comprehensive

Environmental Response, Compensation and Liability Act (CERCLA).

These laws are administered by the U.S. Environmental Protection

Agency or State environmental agencies. Additional reporting and

notification requirements may exist under State or local laws.

---------------------------------------------------------------------------

OSM is broadly interpreting the qualifying phrase ``related to

prior mining'' so as to afford some practical incentive to remining

while also maintaining consistency with the provisions of the Energy

Policy Act. Thus, for the purposes of this final rule, an event or

condition can qualify as an ``unanticipated'' event or condition if it

is related to prior mining at the site. One commenter asked if OSM

meant only that acts of God could result in unanticipated events or

conditions and requested some clarification in terms of examples. An

act of God resulting in extreme hydrologic conditions might

significantly vary from the permit's estimate and could reasonably

qualify as one example of an unanticipated event or condition if the

event or condition causing the violation is related to prior mining

activity at the site.

(ii) Acid mine drainage. An industry commenter asserted that any

acid mine drainage (AMD) which occurs despite substantial adherence to

a permit should be included in the meaning of ``unanticipated event or

condition'' and pointed to the legislative history of the remining

legislation to further its argument. The commenter cited first to

strong State and industry support for the definition of ``unanticipated

event or condition'' in H.R. 4053 (1990) which it characterized as

addressing the issue of AMD. The commenter then cites to State and

industry opposition to the subsequent provisions of H.R. 1078 (1991)

which would have explicitly excluded from the definition of

``unanticipated event or condition'' any event or condition involving

more than a minimal amount of toxic overburden or pre-existing acid

discharge. Industry concluded that because H.R. 4381 (1992)

substantially carried forward the H.R. 4053 and 1078 definitions of

``unanticipated event or condition'' but deleted the objectionable H.R.

1078 exclusion for toxic overburden or pre-existing acid discharge, and

that H.R. 776 (1992) incorporates that definition as the eventual

Energy Policy Act definition, AMD should therefore be included within

the meaning of ``unanticipated event or condition.

OSM agrees with the commenter that the Energy Policy Act does not

exclude AMD as a type of condition which may constitute an

``unanticipated event or condition.'' On the other hand, although the

Energy Policy Act does not include the AMD exclusion language of H.R.

1078, neither does the legislative history

[[Page 58482]]

indicate that Congress intended for all AMD to be categorically

included within the meaning of ``unanticipated event or condition.''

Clearly the issues of AMD and the allowance to be given in remining to

toxic overburden and pre-existing acid discharge were high profile and

controversial among environmentalist, industry and regulatory

supporters during the drafting of all the cited House Bills. The

hearings on these Bills reflect a recognition that the definition of

``unanticipated event or condition'' later incorporated into the Energy

Policy Act did not address or resolve the AMD issue. (See Testimony of

Dave Rosenbaum, Dept. Commissioner, Kentucky Natural Resources and

Environmental Protection Cabinet, H.R. 4053, 101-72, March 13, 1990).

Therefore, OSM concludes that AMD should be treated like any other

condition to be evaluated on a case-by-case basis to determine whether

it constitutes an ``unanticipated event or condition.''

2. 30 CFR Part 773--Requirements for Permits and Permit Processing

Section 773.15, Review of Permit Applications, is being amended by

adding two new paragraphs, (b)(4) and (c)(13). These paragraphs will

generally correspond to proposed paragraphs (f) and (c)(13) of

Sec. 773.15.

(a) Sec. 773.15(b)(4). Final Sec. 773.15(b)(4) (proposed

Sec. 773.15(f)) implements section 510(e) of SMCRA which establishes an

exemption from the permit blocking provisions of section 510(c) of

SMCRA. Subsequent to October 24, 1992, the final rule exempts from the

permit-block provisions of paragraph (b) of Sec. 773.15 situations

where an unabated violation occurring after that date is attributed to

an unanticipated event or condition arising from a remining site under

a permit issued before September 30, 2004, or any renewals thereof. In

such cases, the person holding the remining permit would not be

rendered ineligible for a new surface coal mining permit at another

site simply because of the unabated violation at the remining site.

Responsibility to abate the violation, however, is not affected by the

final rule.

(i) Sec. 773.15(b)(4)(i). Final Sec. 773.15(b)(4) has been divided

into two paragraphs (i) and (ii). Although paragraph (b)(4)(i) was

originally proposed as Sec. 773.15(f), OSM believes the permit block

exemption related to unabated violations resulting from an

unanticipated event or condition is more appropriately located in

Sec. 773.15(b) which deals with review of violations.

Phase-In of Section 510(e) Permit Block Exemption

Comments were received seeking clarification as to the rule's

phase-in i.e., when must violations have occurred and when must

remining permits have been issued to qualify for the section 510(e)'s

permit block exemption. In addition, OSM recently approved an amendment

to the Kentucky regulatory program which substantially tracked section

510(e) of the Act (60 FR 33110, June 27, 1995). This amendment, Senate

Bill 208, also focussed OSM on the need for further clarification of

the proposed rule's section 510(e) permit block exemption as to when

remining permits need to have been issued to have violations at the

site qualify for that exemption.

By its own terms, the permit block exemption in section 510(e) of

SMCRA applies to all section 510(c) determinations that occur

subsequent to October 24, 1992. Thus, final Sec. 773.15(b)(4)(i)

includes the introductory phrase ``Subsequent to October 24, 1992,'' as

identifying the date after which a determination can be made as to the

applicability of the exemption of Sec. 773.15(b)(4).

In partial response to comments discussed below, the final rule's

Sec. 773.15(b)(4) permit block exemption will extend to unabated

violations (1) occurring after section 510(e)'s October 24, 1992,

enactment date; and (2) resulting from an unanticipated event or

condition occurring under remining permits issued either before or

after that same date. This clarification as to the intended reach of

Sec. 773.15(b)(4) is consistent with OSM's approval of the Kentucky

State program amendment substantially tracking section 510(e)'s

provisions.

One commenter representing several environmental associations

stated that the goals of the October 24, 1992, amendments would be best

served by limiting the application of the section 510(e) permit block

exemption to violations that occur on a remined site after that date

and under a remining permit issued in accordance with the provisions of

the amended Act. (It also made similar comments on the Kentucky

amendments.) In support of these positions, the commenter made a number

of assertions. With regard to limiting the permit block exemption to

violations that occur after October 24, 1992, the commenter asserted

that Congress intended the remining provisions of the Energy Policy Act

to be forward-looking in seeking to provide an incentive for future

operations on previously mined and abandoned areas. In support thereof,

it referenced the H.R. Rep. No. 102-474, at 85 (1992), as well as the

existence of significant pre-Energy Policy Act mining of previously

mined and abandoned areas. The commenter further asserted that Congress

intended the section 510(e) permit block exemption to be narrowly

interpreted and not used to excuse applicants who had been previously

permit blocked because of pre-Energy Policy Act violations. It again

referenced the House Report at 85.

This commenter also asserted that limiting the section 510(e)

permit block exemption to violations occurring under a remining permit

issued in accordance with the provisions of the amended Act would

couple existing informational requirements in part 773 with those of

proposed Sec. 785.25 to provide a more comprehensive objective

assessment of site conditions against which any claim of

``unanticipated event'' could be assessed.

Finally the commenter asserted that the Act's section 701(33)

definition of the phrase ``lands eligible for remining'' implies a

determination by the regulatory authority in advance of issuing a

remining permit that the site would otherwise be eligible for AML

expenditures.

OSM agrees that the plain language of the section 510(e) permit

block exemption limits its application to violations that occurred on a

remining site after the October 24, 1992, amendment date. Inclusion of

the statutory phrase ``(a)fter the date of enactment of this

subsection,'' in section 510(e) of SMCRA evinces a clear Congressional

intent that the provision be prospective from October 24, 1992, and

relate to events occurring after that date. OSM also agrees with the

commenter that the legislative history of the exemption supports such a

limitation and that persons already permit-blocked under section 510(c)

of SMCRA for violations occurring before October 24, 1992, could not

become unblocked by enactment of section 510(e). Accordingly, the

section 510(e) permit block exemption of final Sec. 773.15(b)(4)(i)

will be limited to violations occurring after October 24, 1992.

The incentive for future remining provided by the section 510(e)

permit block exemption logically extends both to parties already

conducting remining operations as of October 24, 1992, and those

contemplating entirely new remining operations after that date. For the

first group, section 510(e) provides some incentive to continue

remining.

[[Page 58483]]

For the second group, section 510(e) provides an incentive to begin

remining new properties.

OSM disagrees with the commenter's suggestion that the goals of the

1992 amendments would be best served by limiting the section 510(e)

permit block exemption to post-October 24, 1992, violations occurring

at a remining permit issued only in accordance with the provisions of

the amended Act, i.e., a Sec. 785.25 permit. Although the language of

section 510(e) and its legislative history limits the exemption to

post-October 24, 1992, violations, neither the language of section

510(e) nor its legislative history requires that the permit be issued

after October 24, 1992, or under Sec. 785.25 or a State program

equivalent.

While the commenter's suggestion of limiting the permit block

exemption to Sec. 785.25 permits would provide enhanced information on

site conditions, there are practical considerations which would weigh

against such a suggestion. For primacy States, limiting the permit

block exemption to Sec. 785.25 permits would further postpone the

availability of the exemption until 1996 or 1997 because of the time

normally needed to submit and gain approval of a state program

amendment. The commenter's suggestion of limiting the permit block

exemption to Sec. 785.25 permits would, therefore, not accommodate the

plain language of the Act and clear legislative intent that the

remining amendments provide a timely incentive for the remining of

previously abandoned mine lands.

The commenter's suggestion that the section 510(e) exemption be

limited to Sec. 785.25 permits would also conflict with its previously

discussed position that the section 510(e) exemption be limited to

post-October 24, 1992, violations occurring on remining sites. For the

remining incentive of section 510(e) to apply to violations occurring

immediately following the October 24, 1992, enactment date, the

underlying remining permit would have had to have been issued prior to

that date. Accordingly, OSM does not interpret section 510(e) as

imposing a post-October 24, 1992, limitation on when permits must have

been issued to qualify for the permit block exemption.

In addition, contrary to the commenter's assertion, the Act's

section 701(33) definition for ``lands eligible for remining'' does not

establish the requirement for a determination by the regulatory

authority in advance of issuing a remining permit that the site would

otherwise be eligible for AML expenditures. While final

Sec. 773.15(c)(13) will require a ``lands eligible'' finding before

issuance of remining permits in the future under Sec. 785.25, the

determination of ``lands eligible'' for remining will also have to be

made for existing permittees seeking to avail themselves under

Sec. 773.15(b)(4)(i) of the section 510(e) permit block exemption.

On the basis of the above discussion, the phase-in for the section

510(e) permit block exemption at Sec. 773.15(b)(4)(i) will be tied to

the date of violation but not to the date of permit issuance.

Violations must have occurred after October 24, 1992, and resulted from

an unanticipated event or condition arising from surface coal mining

and reclamation operations on lands eligible for remining under a

permit issued either before or after that date.

Phase-Out of Section 510(e) Permit Block Exemption

Final paragraph (b)(4)(i) does not contain the language of proposed

paragraph (f) that the permit block prohibition of paragraph (b) shall

not apply ``(u)ntil September 30, 2004.'' In its place, final paragraph

(b)(4)(i) provides that the permit block prohibitions of paragraph (b)

shall not apply to ``* * * any violation resulting from an

unanticipated event or condition * * * under a permit, issued before

September 30, 2004, or any renewal thereof * * *.'' Thus final

Sec. 773.15(b)(4)(i) provides that the permit block exemption will

continue to be available for violations occurring on lands eligible for

remining under a remining permit issued before September 30, 2004, or

any renewals thereof, even if the Sec. 772.15(b)(4) determination

occurs after that date.

This change in the final regulatory text from the proposed rule

implements the phase-out provision of section 510(e) and is made in

response to comments received from industry and State regulatory

authorities. These commenters questioned the apparent intent of the

proposed rule language that the permit block exemption would continue

only until September 30, 2004. The effect of such provision was seen as

allowing a company to be permit blocked on October 1, 2004, and

thereafter, for a violation occurring on an eligible remining site

permitted before September 30, 2004, which had earlier been exempted

from the permit block section. The industry commenter asserted that

Congress could not have intended an anomalous result such that one

violation would be excluded from causing a permit block and

subsequently form the basis for causing a permit block. Viewing the

whole of the language of section 510(e) and not limiting itself solely

to the provision which provided that ``(t)he authority of (that)

section shall terminate on September 30, 2004,'' that commenter

asserted that what Congress intended was to provide an exemption from

the permit blocking provisions of section 510(c) for violations

resulting from unanticipated events or conditions under permits issued

prior to September 30, 2004, and not to provide such an exclusion on a

temporary basis for violations occurring prior to September 30, 2004,

but which exemption would suddenly disappear after September 30, 2004.

The commenter cited to the following language of section 510(e) as

confirming this intent since it renders section 501(c) inapplicable to

``any violation resulting from an unanticipated event of condition at a

surface coal mining operation on lands eligible for remining under a

permit held by the person * * *.'' (emphasis added by commenter).

The commenter reasoned that this language clearly ties the

exemption to the date of issuance of the remining permit, not the

violation. Accordingly, the commenter stated that the language of

section 510(e) terminating the authority of the section on September

30, 2004, should be construed to foreclose the permit block exemption

to violations under a permit issued subsequent to that date. In turn,

the final regulatory rule language should clearly set forth that the

exemption applies to any violation arising from an unanticipated event

or condition at a remining operation under a permit issued prior to

September 30, 2004.

While OSM does not view the discerning of Congressional intent as

to the termination of authority provisions of section 510(e) to be as

clear-cut as portrayed by the commenter, OSM agrees with the principal

arguments set forth above. Viewing the permit blocking exemption of

section 501(e) as a whole, the emphasis should not be on whether the

violation occurred before September 30, 2004, but whether the remining

permit was issued before authority to grant such exemption terminated

on September 30, 2004. Congress could not have reasonably intended for

the small violation a ``now you are not permit blocked, now you are

permit blocked'' approach. Scant incentive for remining would be

provided if the permit block exemption for violations at a remining

site would be temporary and expire on September 30, 2004. OSM

interprets the termination date, September 30, 2004,

[[Page 58484]]

as the last date upon which a remining permit may be issued for which

violations resulting from an unanticipated event or condition may be

excluded from future permit block determinations.

In support of this statutory interpretation, OSM notes that by

2004, an increasingly large proportion of remining permits will meet

the standards of Sec. 785.25. These permits' enhanced requirements for

site condition information and identification of event/condition-

specific mitigation measures will go far to ensure that the section

510(e) permit block exemption will not be abused. Interpreting the

section 510(e) permit block exemption so as to tie its termination of

authority provision to the date of issuance of the remining permit, not

to the date of the violation or to the date of the section 510(c)

determination, promotes a clear Congressional intent with respect to

the remining amendments to SMCRA to provide, in an environmentally

sound manner, a meaningful incentive for the remining of previously

abandoned sites. H.R. Rep. No. 102-474, at 85 (1992).

Accordingly, final paragraph (b)(4)(i) provides that the exclusion

will continue to be available for violations occurring on lands

eligible for remining under a remining permit issued prior to September

30, 2004, and any renewals thereof.

Final paragraph (b)(4)(i) also includes the term ``and any renewals

thereof'' to indicate that the permit block exemption will apply to

unabated violations occurring under permits issued before September 30,

2004, and subsequently renewed. The baseline information from which a

Sec. 773.15(b)(4) determination will be made as to whether a violation

results from an unanticipated event or condition also does not change

if the violation occurs during the original permit term or its renewal.

While the ``and renewals thereof'' provision is consistent with

Congressional intent to provide a remining incentive for operations on

lands eligible for remining, OSM does not anticipate many occurrences

when a qualifying Sec. 773.15(b)(4) violation would first occur during

the permit renewal period. In most cases, the mining on lands eligible

for remining will be accomplished well within the original 5-year

permit term.

Final paragraph (b)(4)(i) uses the term ``arises from'' in lieu of

the term ``encountered at'' used in the statutory definition of

``unanticipated event or condition'' indicating that a violation

resulting from an unanticipated event or condition can arise from a

remining operation and does not have to be encountered at that remining

operation in order to qualify for the permit block exemption. For

further discussion of when a violation may arise away from a remining

operation but as a result of an unanticipated event or condition

occurring at the remining operation, see a. (ii) Abatement obligation

continues.

(ii) Sec. 773.15(b)(4)(ii). Final Sec. 773.15(b)(4)(ii) represents

provisions taken from other parts of the proposed rule relocated in

this paragraph. Final paragraph (b)(4)(ii) provides that events or

conditions arising subsequent to permit issuance related to prior

mining which were not identified in the permit issued under Sec. 785.25

shall be presumed to constitute unanticipated events or conditions for

the purposes of Sec. 773.15(b). This provision is derived from proposed

Sec. 773.15(c)(13) and has been moved in the final rule to paragraph

(b)(4)(ii) as proper part of the regulatory authority's

Sec. 773.15(b)(4) determination of whether events or conditions are

unanticipated. The ``may be presumed'' language of proposed

Sec. 773.15(c)(13) was changed in the final rule to ``shall be

presumed'' as discussed below in response to comments.

The final rule drops the proposed heading for paragraph (b)(4),

``Lands eligible for remining'' to be consistent with the format of

other paragraphs.

Presumption of Unanticipated Event or Condition

OSM recognizes that without a reasonable degree of certainty as to

their regulatory application, the remining provisions proposed as

incentives for remining operations would not serve as an effective

incentive for remining. Thus, certain changes from the proposed to the

final rules reflect an intent to provide such certainty for remining

operations. Most particularly is the change from the language of

proposed Sec. 773.15(c)(13) that events or conditions arising

subsequent to permit issuance ``may be presumed'' to constitute

unanticipated events or conditions to the language of final

Sec. 773.15(b)(4)(ii) that such events or conditions arising subsequent

to permit issuances ``shall be presumed'' to constitute unanticipated

events or conditions. Operators will be able to rely on the provision

that once a Sec. 785.25 permit has been issued, events or conditions

not identified in the permit shall be presumed to constitute

unanticipated events or conditions for the purposes of the permit block

exemption of Sec. 773.15(b). This is primarily predicated upon the

operator performing a due diligence investigation to determine which

events or conditions are reasonably anticipated and then identifying

such events or conditions in the permit application. This presumption

could be rebutted if a permit applicant fails to identify significant

potential environmental or safety problems related to prior mining

activity at the site which could have been reasonably anticipated to

occur and were known to the applicant or should have been known to the

applicant through the due diligence investigation required under

Sec. 785.25.

This change of language in final Sec. 773.15(b)(4)(ii) to the words

``shall be presumed'' is not intended to diminish the substantial

flexibility available to, and the responsibility of, a regulatory

authority prior to permit issuance to make its own informed judgment as

to which events or conditions should be properly identified in the

permit application. Final Sec. 785.25(b) requires an identification of

potential environmental and safety problems which could be reasonably

anticipated to occur at the site. The identification would be based on

a due-diligence site-specific investigation. Under final

Sec. 773.15(c)(13), the regulatory authority is required to make a

finding for Sec. 785.25 permits that the permit application contains an

identification of the particular environmental and safety problems

which could reasonably be anticipated to occur at the site.

The Presumption for Permits Not Issued Under Section 785.25

As discussed above under the Phase-in of Section 510(e) permit

block exemption, the permit block exemption of Sec. 773.15(b)(4)(i)

extends to permits in existence on October 24, 1992, and is not limited

to permits solely issued under Sec. 785.25. Permits for lands eligible

for remining not originally issued under Sec. 785.25 but subsequently

revised and upgraded to satisfy the permit information and permit

finding requirements of Secs. 785.25 and 773.15(c)(13) would qualify

for the Sec. 773.15(b)(4)(ii) presumption.

Permits for lands eligible for remining not originally issued under

Sec. 785.25 and not subsequently revised to satisfy the permit

information and permit finding requirements of Secs. 785.25 and

773.15(c)(13) would not qualify for the Sec. 773.15(b)(4)(ii)

presumption. An applicant for a new permit in such circumstances would

have the burden of establishing that any violation which arose at one

of these non-Sec. 785.25 permits resulted from an unanticipated event

or condition. OSM agrees with a commenter that it is likely to be more

difficult to establish for these permits that violations resulted from

[[Page 58485]]

unanticipated events or conditions than for future permits issued or

revised in accordance with Sec. 785.25 which will have identified

reasonably anticipated problems and for which the Sec. 773.15(b)(4)(ii)

presumption applies.

Several comments to the proposed rule were received regarding

application of the ``unanticipated event or condition'' language. One

industry group asserted that events or conditions should be considered

unanticipated for the purposes of the section 510(e) exemption if the

operator substantially adheres to its operation and reclamation plans.

The industry commenter stated that this was Congress' initial

understanding of such events or conditions and cited statements made by

Rep. Rahall both in introducing H.R. 4053 (101st Cong., 1990), an early

predecessor to the Energy Policy Act, and later in hearings on that

bill. Rep. Rahall is quoted as stating that H.R. 4053's provision were

intended to free a qualified operator from responsibility to address an

event or condition encountered during a remining operation that was not

originally anticipated under an approved reclamation plan. Furthermore,

the H.R. 4053 provisions were stated as intending to provide the

regulatory authority with some ``wiggle room'' as to what constitutes

an unanticipated event or condition.

OSM agrees with the commenter's position but not for the reasons

asserted. OSM agrees that where a permit applicant diligently conducted

an investigation to identify conditions that are reasonably

anticipated, and references such conditions in the permit application,

the operator should be able to have a degree of comfort that he will

not be permit blocked for violations resulting from non-identified

conditions which occur despite compliance with the operation and

reclamation plans. This is the presumption set forth in

Sec. 773.15(4)(ii). A permit not predicated upon such complete

information, however, will not be entitled to the presumption.

OSM does not agree with the commenter that the legislative history

of the Energy Policy Act mandates that an event or condition that

occurs despite an operator's adherence to its operations and

reclamation plans should always constitute an ``unanticipated event or

condition'' for the purposes of the section 510(e) exemption. Rep.

Rahall's referenced introduction to H.R. 4053 would have tied reduced

operator liability to full compliance with the reclamation plan but

only with regard to providing operators a date-certain release of their

reclamation bond. While earlier H.R. 2791 (101st Cong., 1989) did

contain specific provisions terminating (all) operator liability for

compliance with all the requirements of the permit and reclamation

plan, such provisions were not carried forward to H.R. 4053 (1990),

H.R. 1078 (102nd Cong., 1991), H.R. 4381 (102nd Cong., 1992), H.R. 776

(102nd Cong., 1992), or to the Energy Policy Act of 1992.

Penalties To Be Assessed

One commenter suggested that OSM has discretion not to require a

civil penalty for violations tied to unanticipated events or

conditions. The commenter further suggested that OSM should adopt a

policy whereby civil penalties are not assessed for violations arising

from unanticipated events or conditions. OSM finds no basis in the

Energy Policy Act or its legislative history to support either

suggestion.

Delinquencies Not Covered by Exemption

In the preamble to the proposed rule OSM posed the question of

whether the nonpayment of delinquent penalties assessed after a notice

of violation or a failure-to-abate cessation order based on an ``on the

ground'' violation resulting from an unanticipated event or condition

should be covered by the Energy Policy Act permit block exemption. OSM

stated in the proposed rule that it intended that such delinquencies,

which are violations themselves, would be covered by the exemption if

they were construed as ``resulting from an unanticipated event or

condition at a surface coal mining operation.'' OSM sought comments on

this issue but no comments were received.

Upon consideration, OSM concludes that the non-payment of

delinquent civil penalties assessed because of an unabated violation

resulting from an unanticipated event or condition should not be

construed as resulting from the underlying unanticipated event or

condition. OSM has reached this conclusion because non-payment of

penalties is a violation solely within an operator's control and is

independent of the underlying on-the-ground violation caused by the

unanticipated event or condition. This construction of the permit block

exemption will still afford substantial incentive for remining while

limiting the exemption to unabated violations resulting from events or

conditions which could not reasonably have been anticipated at the time

of the remining permit's issuance.

Abatement Obligation Continues

Another commenter asked whether an operator cited for a violation

related to an unanticipated event or condition occurring on land

eligible for remining would have an obligation to reclaim or resolve

such violation even though the operator would not be permit blocked

because of it. Nothing in the Energy Policy Act nor this final

rulemaking insulates the operator from his existing responsibilities to

abate his violations whether or not they stem from anticipated or

unanticipated events or conditions. Neither is that operator insulated

from other enforcement actions stemming from these unabated violations.

A third commenter questioned particular preamble discussion in the

proposed rule and asked that the final rule clarify that a violation

occurring off the remining site that results directly from an

unanticipated event or condition occurring on the remining site is also

subject to the permit-block exemption. The commenter correctly noted

that the Energy Policy Act requires only that the unanticipated event

or condition, not necessarily the violation itself, be at a surface

coal mining operation on lands eligible for remining. In response to

this comment and consistent with substantial preamble discussion in the

proposed rule and as discussed elsewhere in this final preamble, OSM

confirms that a violation that occurs off-site but as a direct result

of an unanticipated event or condition occurring on the remining site

is also covered by the Sec. 773.15(b)(4) permit block exemption.

As discussed in the proposed rule, if a mining operator on a

previously undisturbed site contributes to a violation occurring on

that site but originating from an unanticipated event or condition on

an adjacent or nearby remining operation, and if the operator of the

previously undisturbed site did not abate the violation, he would be

permit blocked. On the other hand, if the operator of the previously

undisturbed site did not contribute to the unabated violation occurring

on his site, he would not be permit blocked.

OSM's proposed rule sought comments on this and other possible

examples of interplay between remining operations and adjacent

operations which needed to be explained in the final rulemaking. Two

commenters responded. The first stressed that the operator of a

previously undisturbed site should not be held responsible for any

condition on his own site that originated from a nearby remining

operation, whether the originating event

[[Page 58486]]

or condition is anticipated or not. OSM agrees that the liability of

operators for events or conditions originating on a nearby remining

site should not be a function of whether or not the originating event

or condition was anticipated. As discussed above, an operator of a

previously undisturbed site would be responsible for events or

conditions on his site that originated from a nearby site only if his

operation contributed to that event or condition.

The same commenter asserted that operators should not be held

responsible for correcting conditions that are caused by or stem from

existing abandoned mine lands. SMCRA, as amended by the Energy Policy

Act, provides, under restricted circumstances, for an exemption to the

permit block provisions of section 510(c) and for reduced periods of

responsibility for successful revegetation. These amended SMCRA

sections (510(e) and 515(b)(20)(B)) do not, however, provide exemption

from other existing regulatory standards as the commenter would

suggest. OSM's position on this issue is also consistent with the

second commenter who correctly noted that an operator is responsible

for meeting effluent limits where runoff from other sites is commingled

with runoff from his own site.

c. Section 773.15(c)(13). A new final Sec. 773.15(c)(13) will

require the regulatory authority to make three findings in order to

issue permits under new 30 CFR 785.25: (1) The permit application

contains lands eligible for remining; (2) The permit application

identifies potential environmental and safety problems reasonably

anticipated to occur at the site; and (3) The permit application

contains mitigation plans to address the identified potential

environmental and safety problems in order to ensure that the required

reclamation can be accomplished.

(i) Comparison of proposed and final Sec. 773.15(c)(13). Final

Sec. 773.15(c)(13) differs from proposed paragraph (c)(13) in the

following ways: Final paragraph (c)(13) does not contain the references

to parts 779, 780, 783, and 784 found in the proposal. These parts are

included implicitly in the phrase ``Any application for a permit under

this section shall be made according to all requirements of this

subchapter applicable to surface coal mining and reclamation

operations'' contained in proposed and final Sec. 785.25(b). The

proposed reference to these Parts at Sec. 773.15(c)(13) was therefore

duplicative of Sec. 785.25 provisions. The final rule also does not

contain the proposed requirement that the regulatory authority set a

threshold beyond which conditions or events arising subsequent to the

issuance of the remining permit may be presumed to constitute

unanticipated events or conditions for the purposes of Sec. 773.15(f).

As will be discussed later under the analysis for final rule

Sec. 785.25, the majority of the environmental, industry, and

regulatory commenters strongly opposed the proposed threshold. In lieu

of requiring the regulatory authority to set some threshold, OSM will

instead at paragraph (c)(13)(ii) require the regulatory authority to

make a permit finding, based on permit information required in new

Sec. 785.25(b)(1), that the application identifies the potential

environmental and safety problems related to prior mining activity

which could reasonably be anticipated to occur at the site.

Final Sec. 773.15(c)(13)(iii) requires the regulatory authority to

make a finding based on the permit information required in new

Sec. 785.25(b)(2) that the application contains sufficient mitigation

plans for each of the previously identified environmental or safety

problems to ensure that the required reclamation can be accomplished.

This required finding as to the sufficiency of the mitigation plans is

expected to increase the likelihood that the targeted environmental or

safety problems will be fully reclaimed by the operator. Such

reclamation would not require a subsequent draw on the Abandoned Mine

Reclamation funds and thus could extend the reach of these limited

monies.

3. 30 CFR Part 785--Requirements for Permits for Special Categories of

Mining

The final rule adds a new 30 CFR 785.25, Lands eligible for

remining.

Final Sec. 785.25 (a) identifies this section as containing the

permitting requirements necessary for the regulatory authority to make

a Sec. 773.15(b)(4) determination. Paragraph (a) also requires that any

person who submits a permit application to conduct a surface coal

mining operation on lands eligible for remining must comply with the

provisions in paragraphs (b) and (c).

Final Sec. 785.25(b) prescribes that a Sec. 785.25 permit

application comply with all applicable 30 CFR subchapter G permitting

requirements for surface coal mining and reclamation operations.

Paragraph (b)(1) requires that the application identify potential

environmental and safety problems at the proposed site related to past

mining which could be reasonably anticipated to occur based on all

available data, including visual observations at the site, a record

review of past mining at the site, and sampling tailored to current

site conditions. Paragraph (b)(2) requires that the application

describe the mitigative measures which will be taken to ensure that the

requisite reclamation of the previously identified environmental and

safety problems can be achieved.

Final Sec. 785.25(c) provides that the requirements of this section

shall not apply after September 30, 2004.

(i) Comparison of proposed and final Sec. 785.25. The final rule

differs from proposed Sec. 785.25 in the following ways: First, the

language of proposed paragraph (a) applying this section to any person

who conducts or intends to conduct a surface coal mining operation on

lands eligible for remining has been replaced in final paragraph (a)(1)

with more direct language obligating such persons to comply with this

section's requirements. Final paragraph (a)(2) also includes new

language to reflect the rule's reorganization from one in which the

regulatory authority's section 510(e) permit block exemption

determination was based on a threshold set by that authority in

proposed Sec. 773.15(c)(13) to one in which the permit block exemption

determination is based foundationally on the site condition information

contained in a Sec. 785.25 permit application and the permit finding

requirements of Sec. 773.15(c)(13).

Reasonably Anticipated Problems

The proposed Sec. 785.25(b)(1) requirement for an identification of

all potential environmental and safety problems associated with the

site has, in response to comments, been eliminated in favor of the

final Sec. 785.25(b)(1) which requires identification of all reasonably

anticipated environmental and safety problems which might occur at the

site. Proposed paragraph (b)(1) would have required an open-ended

quantitative risk analysis. From the data gained from this analysis and

the data provided under other specific permitting sections, the

regulatory authority would have, under proposed Sec. 773.15(c)(13), set

a threshold beyond which subsequent conditions or events may be

presumed to be unanticipated for the purposes of the section 510(e)

permit block exemption.

Final Sec. 785.25(b)(1) requires a due-diligence investigation by

the applicant tailored to each remining site from which the applicant

is expected to generate a list of environmental and safety problems

related to past mining which could be reasonably anticipated to occur

at the site. The due-diligence investigation requires a review of all

available data including visual observations, a review of records

[[Page 58487]]

associated with past mining, and necessary environmental sampling. The

list of problems will be the basis of the regulatory authority's

finding in final Sec. 773.15(c)(13) and any subsequent

Sec. 773.15(b)(4) permit block exemption determination.

Although the proposed rule's risk analysis/threshold approach may

have proven to be the most protective of the environment in its

determination of anticipated events or conditions, OSM's preamble to

the proposed rule reflected the agency's reservation as to the

practicability of its implementation. These reservations were confirmed

by the weight of comment response.

Two commenters provided qualified endorsement of the proposed risk

analysis/threshold approach. The first commenter supported that

approach because it required consideration of the previous disturbed

character of the land, which was felt to be lacking under existing

regulations. In suggesting an alternative expression of probability,

the commenter was, however, careful to exclude from consideration

events or conditions which might be deemed highly unlikely to occur.

The second commenter was concerned that the proposed requirement to

establish maximum impacts would dramatically increase the risk of

permit block to the point where remining would not occur and could

limit the flexibility of regulators to account for site-specific

conditions. This commenter felt that restructuring the proposed rule's

threshold should be based instead on considerations of events or

conditions that could be ``reasonably foreseen based on available

information'' and allowing for the use of ``best professional judgement

by the applicant and regulator'' would significantly improve the

proposed rule's ability to meet the intent of the Energy Policy Act to

provide specific incentives for remining.

Three commenters, including environmental and industry

associations, strongly opposed the risk analysis/threshold approach of

proposed Secs. 785.25(b)(1) and 773.15(c)(13). They characterized its

components--the probability and maximum degree of impact analyses, the

identification of all potential problems, and the setting of a

threshold--all to be unrealistic, too costly and time-consuming, an

invitation to litigation, and lacking readily-available supporting

technical methodology for conducting the requisite undertakings. One of

these commenters questioned the statutory basis for the proposal's

reliance on the aforementioned component parts as creating an all-

inclusive term seen as expanding the limited standards set by Congress

for the term ``unanticipated event or condition.''

All three commenters represented that existing regulatory

permitting requirements provided sound basis upon which to assess and

characterize pre-mining site conditions. The commenter representing the

industry association suggested that a ``good faith'' listing of

potential problems could be made on the basis of such baseline

information. The whole of the industry's comment seemed to indicate

that this information must necessarily include sound site-specific data

on hydrology, soils, geology, etc.

The commenter representing the environmental association also

submitted that, based on visual inspection and proper sampling tailored

to the site and a record review of prior mining at the site, potential

problems could be reasonably anticipated. Such site-specific

investigations were characterized as necessary for establishing a

comprehensive, objective assessment of site conditions from which a

reclamation plan could be developed and against which any later claims

of ``unanticipated event'' could, in turn, be assessed.

In response to the objections posed by these commenters to the risk

analysis/threshold approach of the proposed rule, the final rule will

reflect many of the commenters' suggestions for an alternative approach

for determining when an event or condition is unanticipated. Final

Sec. 785.25(b)(1) will require site-specific development of baseline

data based on visual inspection, environmental sampling, and a review

of records of past mining to identify potential problems related to

prior mining activity at the site which could reasonably be anticipated

to occur. A requirement for these site-specific investigations could be

construed to exist already as part of the permanent program

regulations. OSM believes, however, that the potential for

environmental problems occurring is particularly high at remining

sites. Therefore, these investigations have sufficient importance that

they should be expressly required by rule as preconditions to all

Sec. 785.25 remining operations.

OSM submits that the final rule's approach of identifying

``reasonably anticipated'' potential problems will be as effective as

the proposed rule's approach of identifying (all) potential problems in

providing a level of protection commensurate with a reasonable

expectation that certain environmental and safety problems might occur.

The final rule's reliance upon more of reasonably anticipated standard

for identifying potential problems will also substantially reduce the

information gathering burden associated with the analyses that would

have been required under the proposed rule.

Degree of Variance from Anticipated Problem

OSM intends that the final Sec. 785.25(b)(1) identification of

potential problems reasonably anticipated to occur will extend not only

to an identification of the type of such problems but also the degree

of such problems, e.g., that AMD is anticipated at a rate of 150

gallons per minute (gpm).

The allowable degree of variance from an anticipated problem is an

issue indirectly raised by associations representing both environmental

and industry interests. The commenter representing the environmental

association opposed the risk analyses required under the proposed rule.

This commenter asserted that with adequate data collection, potential

problems can be reasonably anticipated and there should be very few

instances where an ``unanticipated'' event or condition occurs.

Such statement suggests, for instance, that if any AMD is

identified as a potential problem, then the eventual amount or degree

of AMD experienced is immaterial for the purposes of qualifying for the

section 510(e) permit block exemption. All such experienced AMD,

however large the amount, would be considered anticipated and the

operator would not qualify for the exemption.

The industry association commenter also opposed the risk analyses

required under the proposed rule, but addressed the issue of degree of

unanticipated problem somewhat differently. This commenter focussed on

the difficulties in accurately predicting the likelihood of potential

problems occurring and the associated maximum degree of impact. Even

with good baseline data, there appeared to be too many variables to

accurately assess a potential problem's maximum degree of impact. This

commenter's solution was for the applicant to provide a list of

potential problems that it could in ``good faith'' identify. Any

problem that then arose from the previous disturbed nature of the site,

including AMD, despite the operator's substantial adherence to the

permit, would be considered to be unanticipated.

Such statement suggests that if any AMD is identified as a

potential

[[Page 58488]]

problem and it occurs despite the operator's substantial adhereance to

its operation and reclamation plans, the actual amount or degree of the

post-treatment problem is immaterial for the purposes of qualifying for

the section 510(e) permit block exemption. All such AMD, however small

the amount, would be considered unanticipated and the operator would

qualify for the exemption.

OSM rejects both environmental and industry comments regarding the

degree of problem anticipated and experienced at the remining site.

Because the AMD problem is recognized as the largest deterrant to

remining, and some AMD can be anticipated from many remining sites, the

environmental approach would substantially narrow the remining

inceptive which OSM believes Congress intended in providing the section

510(e) exemption. Conversely, the industry approach would substantially

broaden the incentive beyond which OSM believes Congress intended for

this exemption.

The final rule seeks to implement the ``(reasonably) anticipated

event or condition'' language of section 510(e). The rule's reliance

upon the permit information and permit finding requirements of

Secs. 785.25 and 773.15(c)(13) maps a middle course between the

environmental and industry approaches and provides a flexibility which

accounts for the realities of remining operations where environmental

and safety problems may reasonably be anticipated only in terms of

degrees or relative amounts.

Under the final rule it falls to the regulatory authority to

determine whether the degree of problems experienced in excess of that

which was originally anticipated and identified in the permit would

qualify as unanticipated for the purposes of the section 510(e)

exemption. For example, if on the basis of available baseline

information required under existing permit application rules and the

site-specific investigations required by new Sec. 785.25, the operation

and reclamation plans reasonably anticipate an AMD discharge of 150 gpm

to occur with mitigation plans set forth to handle that amount, a later

occurence of a discharge of 1500 gpm may reasonably be said to have not

been contemplated by those plans and, therefore, qualifies as an

unanticipated event or condition for the purposes of the

Sec. 773.15(b)(4) (section 510(e)) exemption. This fact-specific

inquiry would be made by the regulatory authority on a case-by-case

basis. Regardless of the level of discharge, the operator would,

however, be responsible for abating any violation related to the

discharge and providing appropriate treatment.

There can be no hard and fast rules for what degree of variance

from the permit estimate reasonably qualifies as an unanticipated event

or condition. The final rule recognizes that each site has its unique

characteristics and must be investigated accordingly. The final

decision as to whether an event or condition was unanticipated will be

made by the regulatory authority conducting the Sec. 773.15(b) permit

review.

Required Mitigation Measures

Final Sec. 785.25 differs from the proposed rule in that paragraph

(b)(2) requires a description of the mitigation measures which will be

taken to ensure that the reclamation required by the applicable

requirements of the regulatory program can be met rather than the

description required by proposed paragraph (b)(2) of how such measures

will meet applicable performance standards. This change focuses the

required description on ensuring that the applicant is prepared to

reclaim the reasonably anticipated potential environmental and safety

problems identified in paragraph (b)(1).

Phase-Out of Section 785.25 Requirements

Final Sec. 785.25 also differs from the proposal in that a new

paragraph (c) has been added providing that the requirements of that

section shall not apply after September 30, 2004. The effect of this

provision will be that no Sec. 785.25 remining permits will be issued

after September 30, 2004. This is consistent with OSM's interpretation

of the Energy Policy Act amendments to SMCRA as allowing violations

resulting from an unanticipated event or condition arising on lands

eligible for remining under a permit issued before September 30, 2004,

and any renewals thereof, to be eligible for the permit block exemption

of section 510(e).

4. 30 CFR Part 816--Permanent Program Performance Standards-Surface

Mining Activities and Part 817--Permanent Program Performance

Standards-Underground Mining Activities

The final rule amends paragraphs (c)(2) and (c)(3) of Secs. 816.116

and 817.116, Revegetation: Standards for Success, by adding paragraphs

(c)(2)(ii) and (c)(3)(ii) which implement section 515(b)(20)(B) of

SMCRA. Paragraph (c)(2) deals with areas receiving more than 26.0

inches of average annual precipitation. Final paragraph (c)(2)(i) is

identical to former paragraph (c)(2), with the addition of a reference

to the exception to the regular five-year revegetation responsibility

period provided at final paragraph (c)(2)(ii) for lands eligible for

remining included in permits issued before September 30, 2004, and any

renewals thereof. Final paragraph (c)(2)(ii) reduces the revegetation

responsibility period to two years for lands eligible for remining

included in such permits. Final paragraph (c)(2)(ii) also provides that

to the extent that the success standards for certain lands previously

disturbed by mining are established by Secs. 816/817.116(b), the lands

shall equal or exceed those standards during the growing season of the

last year of the responsibility period. Because OSM anticipates that in

most cases the post-mining land use for lands eligible for remining

will be as specified in paragraph (b)(5), final paragraph (c)(2)(ii)

merely includes the paragraph (b)(5) success standards. This does not

preclude the regulatory authority from prescribing paragraph (c)(2)(ii)

two-year success standards when the post-mining lands use is grazing,

crop, or pastureland.

Final paragraph (c)(3) relates to areas of less than 26.0 inches of

annual average precipitation and incorporates language similar to

paragraph (c)(2) except that the period of responsibility has been

reduced from ten years to five years.

The changes in these periods of responsibility for revegetation are

mandated by section 515(b)(20)(B) of SMCRA as amended by section

2503(b) of the Energy Policy Act.

a. Comparison of proposed and final Secs. 816.116 and 817.116. The

format of the proposed rule apparently created some confusion for

commenters with respect to distinguishing between the responsibility

periods for revegetation and success standards for revegetation

intended by the proposed rule for lands eligible for remining. The

final rule seeks to clarify this situation for lands eligible for

remining by placing the requirements for both responsibility periods

for revegetation and success standards for revegetation in one

paragraph, either (c)(2)(ii) for areas of more than 26.0 inches of

average annual precipitation or (c)(3)(ii) for areas of 26.0 inches or

less average annual precipitation.

Each of these paragraphs also contain the statement that if the

success standards are established by paragraph (b)(5), then the lands

eligible for remining shall equal or exceed these standards during the

growing season of the last year of the responsibility period (paragraph

(c)(2)(ii)) or of the last two

[[Page 58489]]

consecutive years of the responsibility period (paragraph (c)(3)(ii)).

This reformatting change should make clear that the final rule is not

intended to vary the success standards for revegetation of the existing

rules.

Phase-In for Reduced Revegetation Responsibility Periods

Final Secs. 816/817.116 (c)(2)(ii) and (c)(3)(ii) tie the reduced

revegetation responsibility periods for lands eligible for remining to

permits issued before September 30, 2004, and any renewals thereof.

Because the statutory language of section 515(b)(20)(B) does not

contain the triggering language of section 510(e): ``[a]fter the date

of enactment of this subsection,'' OSM is interpreting final Secs. 816/

817.116(c)(2)(ii) and (c)(3)(ii) as requiring existing permits to

obtain a permit revision to qualify for the rule's reduced revegetation

responsibility periods. This permit revision would require a

Sec. 773.13(c)(13)(i) finding by the regulatory authority that the

permit covers lands eligible for remining. Permits issued under new

Sec. 785.25 would also require a similar Sec. 773.13(c)(13)(i) finding.

Whether for existing permits or those issued under Sec. 785.25, the

reduced revegetation responsibility periods would apply only to lands

within the permit found to be eligible for remining.

OSM is aware that, for existing operations on lands eligible for

remining which have ceased mining and have already begun reclamation,

the above interpretation of final Secs. 816/817.116 would allow for

reduced revegetation responsibility periods without operating as an

incentive for future remining. This interpretation is, however,

permissible under the language of section 515(b)(20)(B), whose only

qualification for the reduced revegetation responsibility periods is

that the affected land be eligible for remining, and is structurally

consistent with OSM's implementation of the Energy Policy Act's other

remining provision at section 510(e) (Sec. 773.15.(b)(4)(i)).

Phase-Out for Reduced Revegetation Responsibility Periods

Because final Secs. 816/817.116(c)(2)(ii) and (c)(3)(ii) tie the

reduced revegetation responsibility periods to remining permits issued

before September 30, 2004, or any renewals thereof, the reduced

revegetation responsibility provisions will not cease to be operative

on September 30, 2004, for permits issued before that date as would

have been the case under the proposed rule. Under the final rule, as

long as the permit was issued before September 30, 2004, the reduced

revegetation responsibility periods could extend beyond that date

through the prescribed duration of the remining permit or any renewals

thereof.

This change was made in response to commenters who recommended that

the period of responsibility should apply to any remining permit issued

prior to September 30, 2004, even if the mining and/or period of

responsibility extended past that date.

Both the reduced revegetation responsibility period provisions of

section 515(b)(20)(B) and the permit block exemption provisions of

section 510(e) are tied to lands eligible for remining. The same

provision in section 510(e) terminates the authority for both sections

on September 30, 2004. This termination provision suggests that

Congress intended sections 510(e) and 515(b)(20)(B) to operate in

tandem, providing structurally consistent incentives for remining

operations on lands eligible for remining.

Interpreting the phase-out provisions of section 515(b)(20)(B) as

ending the reduced responsibility periods on September 30, 2004, would,

for remining operations existing on that date, render the shortened

responsibility period meaningless. A reduced two or five-year period

which runs past September 30, 2004, would be transformed on October 1,

2004, into a five and ten-year period. Thus no relief would be afforded

operations who would otherwise rely upon that statutory provision. Such

an interpretation would, particularly for potential remining operations

in the arid West and less so for those in the East, provide severely

limited incentive for remining. For instance, assuming one year would

be spent permit processing, one-half a year for preparing the site, one

and one-half years for actual remining, seven years to satisfy the

five-year responsibility period resulting in bond release, a Western

operator would then have had to have begun the permitting process in

September of 1994 to have availed himself of a section 515(b)(20)(B)

incentive if that incentive ended on September 30, 2004. If this

hypothetical remining schedule were in any way delayed, the operator

would run the risk of exceeding the 2004 barrier and being held to the

standard ten-year responsibility period.

Rather than such an interpretation, OSM interprets consistently the

permit block exemption of section 510(e) and the reduced responsibility

provisions of section 515(b)(20)(B) by tying both to a remining permit

issued before September 30, 2004, or any renewals thereof. In other

words, the reduced responsibility period can extend beyond that date if

the permit is issued before September 30, 2004.

One commenter correctly noted that the Energy Policy Act amendments

to section 515(b)(20) ``abridged the duration of the period of

responsibility, but did not alter the provisions relating to

demonstrating achievement of the revegetation standards.'' On the other

hand, several commenters suggested that OSM incorrectly interpreted the

requirements of the Energy Policy Act in the proposal with regard to

what the commenters referred to as ``success standards'' for

revegetation. Another commenter asked whether ``both ground cover and

productivity must meet standards for both years of the two-year

maintenance period * * *.''

In response to both groups of comments, OSM stresses that the

Energy Policy Act only reduces the ``periods of responsibility'' for

revegetation from five to two years for areas of more than 26.0 inches

of average annual precipitation and from ten to five years for areas of

26.0 inches or less average annual precipitation. The Energy Policy Act

amendments to SMCRA do not prescribe any changes to revegetation

standards, success standards, or productivity standards. All of these

standards are unaffected by both the proposed and final rule. Thus, in

the proposal as well as the final rule, OSM has adopted the success

standards of the existing rules. OSM recognizes that the success

standard applicable to remining sites will likely be that of existing

30 CFR 816.116(b)(5) and 817.116(b)(5).

Several commenters noted two editorial problems at Secs. 816/

817.116(c)(2) of the proposal: (1) Remining was misspelled; and (2) The

word ``not'' was inadvertently omitted. The text has been corrected to

read ``In areas of more than 26.0 inches of annual average

precipitation, the period of responsibility shall continue for a period

of not less than: * * * (ii) Two full years for lands eligible for

remining * * *.''

5. Other Comments

One commenter stated that parts 816 and 817 should require that

rivers and streams within 20 miles of a remining site be capable of

sustaining fish populations and that wetlands destroyed during remining

must be replaced and added to. These comments go well beyond the

proposed rule and are not accepted.

Two commenters recommended that the final rule provide for a date-

certain bond release. One commenter stated that for operators with

previous

[[Page 58490]]

reclamation success on remined lands there would be little additional

risk for bond releases tied to time versus bond releases tied to

success standards. The other commenter stated that H.R. 4053, a

predecessor to the Energy Policy Act, contained language relating to

``date-certain release of an operator's bond'' and this language

established requisite Congressional intent in the Energy Policy Act for

a date-certain bond release. This language was not, however, carried

forward into H.R. 4381 (1992), H.R. 776 (1992), or the Energy Policy

Act. No provisions in the Energy Policy Act can be construed to

authorize a date-certain bond release and OSM rejects this

recommendation.

One commenter recommended that adoption of final rules should be

delayed until all aspects of incentives dealing with abandoned coal

refuse sites have been worked out. The incentives and requirements for

removal and/or reprocessing of material at abandoned coal refuse sites

are mandated by section 2503(e) of the Energy Policy Act and are being

developed under a separate rulemaking. The statutory authority and the

subject matter for both the coal refuse and the current rulemaking are

sufficiently distinct and independent of each other so that there is no

need nor advantage gained by delaying this rule until resolution of all

coal refuse issues.

Another commenter suggested the use of negotiated compliance

schedules to address abatement of unanticipated events prior to issuing

a violation. This suggested procedure was not included in the proposal

and, therefore, is beyond the scope of this rulemaking.

Several commenters recommended inclusion in the final rule of

additional incentives which they felt would encourage remining. The

commenters provided no legal basis for the following recommendations:

(1) Creating minimum requirements for information on environmental

resources. This is based on the commenter's assertion that remining

operations are intended to mitigate or correct adverse effects of

mining while operations on previously undisturbed areas are intended to

prevent adverse effects; (2) Promulgating a new standard that would

encourage the most environmentally effective use of spoil as opposed to

current standards which require spoil to be used for highwall

elimination as a first priority; (3) Providing a bonding advantage for

remining operations; (4) Reducing the potential for bond forfeiture

resulting from unanticipated events or conditions by allowing the AML

program and not the operator to be responsible for final abatement of

preexisting conditions. OSM does not accept these comments. The

recommended incentives were not included in the proposal and are beyond

the scope of this rulemaking.

III. Procedural Matters

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 numbers 1029-0040 and 1029-0041.

Executive Order 12778; Civil Justice Reform Certification

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 final 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 have the same preemptive effect as other standards

adopted pursuant to SMCRA. To retain primacy, States have to adopt and

apply standards for their regulatory programs that are no less

effective than those set forth in OSM's rules. Ordinarily, any State

law that is inconsistent with, or that would preclude implementation of

a new Federal rule, would be subject to preemption under SMCRA section

505 and implementing regulations at 30 CFR 730.11. However, any State

law which provides for more stringent land use and environmental

controls and regulation of coal exploration and surface mining and

reclamation operations than do the provisions of the Act and any rules

issued pursuant thereto, shall not be construed as inconsistent with

those rules. Because the current amendments to SMCRA contained in the

Energy Policy Act are intended to ease certain requirements of the Act,

these rules will not preempt more stringent State laws.

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

any, including all provisions repealed or modified?

This rule modifies the implementation of SMCRA, as described

herein, and is not intended to modify the implementation of any other

Federal statute. The preceding discussion of this rule specifies the

Federal regulatory provisions that are affected by this rule.

C. Does the rule provide a clear and certain legal standard for

affected conduct rather than a general standard, while promoting

simplification and burden reduction?

The standards established by this rule are as clear and certain as

practicable, given the complexity of the topics covered and the

mandates of SMCRA.

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

regulation?

This rule implements portions of the Energy Policy Act that were

effective on October 24, 1992. Although this rule may be considered

retroactive to the extent it covers actions occurring October 24, 1992,

the Energy Policy Act requires such effects. OSM also recognizes that

the rule may allow revisions to existing permits to change revegetation

responsibility periods. This impact was explained above.

E. Are administrative proceedings required before parties may file

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

administrative remedies required?

No administrative proceedings are required before parties may file

suit in court challenging the provisions of this rule under section

526(a) of SMCRA, 30 U.S.C. 1276(a).

Prior to any judicial challenge to the application of the rule,

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. In situations involving State

regulatory authority application of provisions equivalent to those

contained in this rule, applicable administrative procedures are set

forth in the particular State program.

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.

Regulatory Flexibility Act

The Department of the Interior has determined that the final 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. This determination is based on the findings that the regulatory

[[Page 58491]]

additions in the rule will not change costs to industry or to the

Federal, State, or local governments. Furthermore, the rule produces no

adverse effects on competition, employment, investment, productivity,

innovation, or the ability of United States enterprises to compete with

foreign/based enterprises in domestic or export markets.

Executive Order 12866

This final rule has been reviewed under Executive Order 12866.

National Environmental Policy Act

OSM has prepared an environmental assessment (EA) of this final

rule and has made a finding that it will 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).

The EA and finding of no significant impact are on file in the OSM

Administrative Record, Room 101, 1951 Constitution Avenue, NW.,

Washington, DC.

Author

The principal author of this final rule is: Douglas J. Growitz,

P.G., Hydrologist, Branch of Research and Technical Standards, Office

of Surface Mining Reclamation and Enforcement, Room 110 SIB, 1951

Constitution Avenue, NW., Washington, DC 20240, Telephone: 202-208-

2561.

List of Subjects

30 CFR Part 701

Law enforcement, Surface mining, Underground mining.

30 CFR Part 773

Administrative practice and procedure, Surface mining, Underground

mining.

30 CFR Part 785

Reporting and recordkeeping requirements, Surface mining,

Underground mining.

30 CFR Part 816

Environmental protection, Reporting and recordkeeping requirements,

Surface mining.

30 CFR Part 817

Environmental protection, Reporting and recordkeeping requirements,

Underground mining.

Dated: October 11, 1995.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

Accordingly, 30 CFR parts 701, 773, 785, 816 and 817 are amended as

set forth below:

PART 701--PERMANENT REGULATORY PROGRAM

1. The authority citation for part 701 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq., as amended; Pub. L. 100-34;

and Pub. L. 102-486.

2. Section 701.5 is amended by adding alphabetically definitions of

``lands eligible for remining'' and ``unanticipated event or

condition'' as follows:

Sec. 701.5 Definitions.

* * * * *

Lands eligible for remining means those lands that would otherwise

be eligible for expenditures under section 404 or under section

402(g)(4) of the Act.

* * * * *

Unanticipated event or condition, as used in Sec. 773.15 of this

chapter, means an event or condition related to prior mining activity

which arises from a surface coal mining and reclamation operation on

lands eligible for remining and was not contemplated by the applicable

permit.

* * * * *

PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING

3. The authority citation for part 773 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq., as amended, Pub. L. 100-34;

16 U.S.C. 470 et seq.; 16 U.S.C. 1531 et seq.; 16 U.S.C. 661 et

seq.; 16 U.S.C. 703 et seq.; 16 U.S.C. 668a; 16 U.S.C. 469 et seq.;

16 U.S.C. 470aa et seq.; and Pub. L. 102-486.

4. Section 773.15 is amended by adding new paragraphs (b)(4) and

(c)(13) to read as follows:

Sec. 773.15 Review of permit applications.

(b) * * *

(4)(i) Subsequent to October 24, 1992, the prohibitions of

paragraph (b) of this section regarding the issuance of a new permit

shall not apply to any violation that:

(A) Occurs after that date;

(B) Is unabated; and

(C) Results from an unanticipated event or condition that arises

from a surface coal mining and reclamation operation on lands that are

eligible for remining under a permit:

(1) Issued before September 30, 2004, or any renewals thereof; and

(2) Held by the person making application for the new permit.

(ii) For permits issued under Sec. 785.25 of this chapter, an event

or condition shall be presumed to be unanticipated for the purposes of

this paragraph if it:

(A) Arose after permit issuance;

(B) Was related to prior mining; and

(C) Was not identified in the permit.

(c) * * *

(13) For permits to be issued under Sec. 785.25 of this chapter,

the permit application must contain:

(i) Lands eligible for remining;

(ii) An identification of the potential environmental and safety

problems related to prior mining activity which could reasonably be

anticipated to occur at the site; and

(iii) Mitigation plans to sufficiently address these potential

environmental and safety problems so that reclamation as required by

the applicable requirements of the regulatory program can be

accomplished.

* * * * *

PART 785--REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING

5. The authority citation for part 785 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq., as amended; Pub. L. 100-34;

and Pub. L. 102-486.

6. Section 785.25 is added to read as follows:

Sec. 785.25 Lands eligible for remining.

(a) This section contains permitting requirements to implement

Sec. 773.15(b)(4). Any person who submits a permit application to

conduct a surface coal mining operation on lands eligible for remining

must comply with this section.

(b) Any application for a permit under this section shall be made

according to all requirements of this subchapter applicable to surface

coal mining and reclamation operations. In addition, the application

shall--

(1) To the extent not otherwise addressed in the permit

application, identify potential environmental and safety problems

related to prior mining activity at the site and that could be

reasonably anticipated to occur. This identification shall be based on

a due diligence investigation which shall include visual observations

at the site, a record review of past mining at the site, and

environmental sampling tailored to current site conditions.

(2) With regard to potential environmental and safety problems

referred to in paragraph (b)(1) of this section, describe the

mitigative measures that will be taken to ensure that the applicable

reclamation requirements of the regulatory program can be met.

(c) The requirements of this section shall not apply after

September 30, 2004.

[[Page 58492]]

PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING

ACTIVITIES

7. The authority citation for part 816 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq., as amended; sec 115 of Pub.

L. 98-146, 30 U.S.C. 1257; Pub. L. 100-34; and Pub. L. 102-486.

8. Section 816.116 is amended by revising paragraphs (c)(2) and

(c)(3) to read as follows:

Sec. 816.116 Revegetation: Standards for success.

* * * * *

(c) * * *

(2) In areas of more than 26.0 inches of annual average

precipitation, the period of responsibility shall continue for a period

of not less than:

(i) Five full years, except as provided in paragraph (c)(2)(ii) of

this section. The vegetation parameters identified in paragraph (b) of

this section for grazing land, pasture land, or cropland shall equal or

exceed the approved success standard during the growing season of any 2

years of the responsibility period, except the first year. Areas

approved for the other uses identified in paragraph (b) of this section

shall equal or exceed the applicable success standard during the

growing season of the last year of the responsibility period.

(ii) Two full years for lands eligible for remining included in

permits issued before September 30, 2004, or any renewals thereof. To

the extent that the success standards are established by paragraph

(b)(5) of this section, the lands shall equal or exceed the standards

during the growing season of the last year of the responsibility

period.

(3) In areas of 26.0 inches or less average annual precipitation,

the period of responsibility shall continue for a period of not less

than:

(i) Ten full years, except as provided in paragraph (c)(3)(ii)

below. Vegetation parameters identified in paragraph (b) of this

section shall equal or exceed the approved success standard for at

least the last two consecutive years of the responsibility period.

(ii) Five full years for lands eligible for remining included in

permits issued before September 30, 2004, or any renewals thereof. To

the extent that the success standards are established by paragraph

(b)(5) of this section, the lands shall equal or exceed the standards

during the growing seasons of the last two consecutive years of the

responsibility period.

* * * * *

PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND

MINING ACTIVITIES

9. The authority citation for part 817 is revised to read as

follows:

Authority: 30 U.S.C. 1201 et seq., as amended; sec. 115 of Pub.

L. 98-146, 30 U.S.C. 1257; Pub. L. 100-34; and Pub. L. 102-486.

10. Section 817.116 is amended by revising paragraphs (c)(2) and

(c)(3) to read as follows:

Sec. 817.116 Revegetation: Standards for success.

* * * * *

(c) * * *

(2) In areas of more than 26.0 inches of annual average

precipitation, the period of responsibility shall continue for a period

of not less than:

(i) Five full years, except as provided in paragraph (c)(2)(ii) of

this section. The vegetation parameters identified in paragraph (b) of

this section for grazing land, pasture land, or cropland shall equal or

exceed the approved success standard during the growing season of any 2

years of the responsibility period, except the first year. Areas

approved for the other uses identified in paragraph (b) of this section

shall equal or exceed the applicable success standard during the

growing season of the last year of the responsibility period.

(ii) Two full years for lands eligible for remining included in

permits issued before September 30, 2004, or any renewals thereof. To

the extent that the success standards are established by paragraph

(b)(5) of this section, the lands shall equal or exceed the standards

during the growing season of the last year of the responsibility

period.

(3) In areas of 26.0 inches or less average annual precipitation,

the period of responsibility shall continue for a period of not less

than:

(i) Ten full years, except as provided in paragraph (c)(3)(ii) of

this section. Vegetation parameters identified in paragraph (b) of this

section shall equal or exceed the approved success standard for at

least the last two consecutive years of the responsibility period.

(ii) Five full years for lands eligible for remining included in

permits issued before September 30, 2004, or any renewals thereof. To

the extent that the success standards are established by paragraph

(b)(5) of this section, the lands shall equal or exceed the standards

during the growing seasons of the last two consecutive years of the

responsibility period.

* * * * *

[FR Doc. 95-28862 Filed 11-24-95; 8:45 am]

BILLING CODE 4310-05-M