Establishment of an Advisory Committee to Negotiate Regulations

SUMMARY: Notice is hereby given that the Secretary of the Interior is

administratively establishing an advisory committee to be known as the

Office of Surface Mining Reclamation and Enforcement Negotiated

Rulemaking Committee on Coal Refuse Disposal. This notice is published

in accordance with the Federal Advisory Committee Act (FACA), and the

Negotiated Rulemaking Act of 1990. The notice is attached as an

appendix.

The Office of Surface Mining Reclamation and Enforcement (OSM)

seeks comments on the establishment of the advisory committee chartered

to negotiate a rule on Coal Refuse Disposal, and nominations for its

membership. Issues to be considered by the advisory committee include

general permits, baseline hydrologic studies and hydrologic

requirements at refuse sites, the application of valid existing rights

to coal refuse sites, the collection of Abandoned Mine Land fees from

companies processing coal refuse for reuse, and other environmental

protection standards. OSM anticipates that the negotiation process will

help resolve at least some of these outstanding issues.

DATES: Interested parties may file comments and/or nominations for

Committee Membership on or before April 13, 1995.

ADDRESSES: Written Comments: Hand-deliver to the Office of Surface

Mining Reclamation and Enforcement, Administrative Record, room 660,

800 North Capitol Street, Washington, DC: or mail to the Office of

Surface Mining Reclamation and Enforcement, Administrative Record, room

660 NC, 1951 Constitution Avenue NW., Washington, DC 20240. Comments

may also be sent electronically through the Internet to:

[email protected]

FOR FURTHER INFORMATION CONTACT: Melanie Wilson, Office of Surface

Mining Reclamation and Enforcement, 1951 Constitution Avenue NW., room

52, Washington, DC 20240, (202) 208-4609. For the hearing impaired,

contact TTD (202) 208-2737.

SUPPLEMENTARY INFORMATION:

I. Negotiated Rulemaking

II. Subject and Scope of Rule for Negotiated Rulemaking

III. How Does Negotiated Rulemaking Work?

IV. What is the Purpose of the Committee?

V. How are Committee Members Selected?

VI. Who Has Been Contacted to Participate in this Process?

VII. Will All of These Groups Participate in the Regulatory

Negotiation Process?

VIII. How Can You Participate in the Process?

I. Negotiated Rulemaking

The purpose of a negotiated rulemaking committee (or ``reg neg'' as

it is frequently called) is to develop a consensus on a proposed rule.

Before establishing such a committee, Sec. 583(a) of the Negotiated

Rulemaking Act directs the head of an agency to consider whether--

There is a need for the rule

There are a limited number of identifiable interests that

will be affected by the rule

There is a reasonable likelihood that a committee can be

convened with a balanced representation of persons who can adequately

represent those interests and are willing to negotiate in good faith to

reach a consensus on a proposed rule

There is a reasonable likelihood that a committee will

reach consensus on the proposed rule within a fixed period of time

The negotiated rulemaking will not unreasonably delay the

notice of proposed rulemaking and the issuance of the final rule

The agency has adequate resources and is willing to commit

such resources, including technical assistance, to the committee, and

The agency, to the maximum extent possible consistent with

the legal obligations, will use the consensus of the committee with

respect to the proposed rule as the basis for the rule proposed by the

agency for notice and comment.

``Consensus'' in tern means the unanimous concurrence among the

interests represented on the negotiated rulemaking committee unless the

committee explicitly adopts some other definition. Thus, under the

Negotiated Rulemaking Act, each interest on the committee has a veto:

nothing can be adopted by the committee over the dissent of an

interest. That has served to provide important protection for the

parties and to help the parties focus on developing an entire

regulation. This definition also means that the agency itself

participates in the negotiations in a manner similar to that of any

other party.

Negotiated rulemaking has been used quite successfully to address

highly controversial subjects in a practical manner. For that reason,

OSM thought it would be an appropriate process to use for the coal

refuse rule.

II. Subject and Scope of Rule for Negotiated Rulemaking

Numerous coal refuse piles exist throughout the coal fields in the

eastern United States. These piles are a major source of aesthetic and

environmental degradation. A significant number of these piles,

however, still contain large, potentially marketable quantities of

coal. Modern technology enables the recovery of the coal in these

piles, and in some cases the direct utilization of the material, for

example in refuse burning power plants, electric power generation and

co-generation facilities.

Under current law and policies, permitting and performance

standards are the same for refuse pile operations as for any other

mining operations. Section 2503 of the Energy Policy Act of 1992

requires the publication of new regulations on permitting and

performance standards that distinguish between (1) operations that

reprocess abandoned coal refuse on-site and (2) those that completely

remove abandoned coal refuse from a site for the direct use of such

coal refuse or for the reprocessing of such coal refuse at another

location. These standards must recognize the distinct differences

between these operations and other surface coal mining operations.

The committee will try to reach consensus on the major issues that

could not be resolved in the draft rulemaking, specifically:

Environmental protection standards

Permits

The application of valid existing rights to coal refuse

sites

Abandoned mine land fees

If the committee is able to reach consensus on these issues, the

committee will propose a rule on coal refuse.

In addition, the committee may also address other appropriate

remining issues that may arise from the discussion of coal refuse.

III. How Does Negotiated Rulemaking Work?

Negotiated Rulemaking typically occurs in two stages:

1. The Convening Stage. During this stage, an outside neutral party

assists the agency in selecting participants to ensure balanced

representation and helps the agency identify which specific issues

should be negotiated. He or she educates the participants about the

[[Page 13859]] negotiation process and attempts to get the parties to

commit to the product that will be produced. Convening typically takes

one or two months.

2. The Negotiation Stage. This stage typically takes six to eight

months. Again, a neutral outside party is often used to facilitate

group meetings, which are generally held once a month. The goal of this

stage is to produce regulatory language and, if possible, preamble

text.

IV. What is the Purpose of the Committee?

The purpose of the Committee is to provide a forum to discuss the

regulatory and reclamation issues of concern to the public, primacy

States which regulate surface coal mining, environmental groups, coal

mine region residents, industry, the Congress, and other State and

Federal agencies.

V. How Are Committee Members Selected?

The Secretary of the Interior will appoint 20-25 members to the

Committee to represent a cross-section of those who are interested in

and directly affected by this proposed rulemaking. OSM has sought the

advice of an outside neutral professional convener in an effort to

carefully monitor membership to ensure that there is a balance among

those interests affected by the Surface Mining Control and Reclamation

Act of 1977 (30 U.S.C. 1201 et seq.). Members will represent the

following segments of the population in appropriate mix and balance for

the task at hand.

Categories of Members

Environmental groups

Representatives from the coal refuse removal and

reprocessing industry

Primary states with responsibility for regulating surface

coal mining operations

General coal mining industry

Citizens/residents of areas with significant deposits of

coal refuse

VI. Who Has Been Contacted to Participate in this Process?

The following parties were identified as potentially affected

interests and were contacted during the convening stage of the process.

Environmental Groups

Citizen's Coal Council

Kentucky Resources Council, Inc.

National Wildlife Federation

Western Pennsylvania Land Conservancy

West Virginia Highlands Conservancy

Armstrong Conservation District

Industry

Inter-Power/AHICon Partners

Western Kentucky Coal Association

Kentucky Coal Association

Pennsylvania Coal Association

WV Mining & Reclamation Assoc.

Gilberton Power Company

Inter-Power Development Corporation

National Coal Association

American Mining Congress

Consol, Inc.

States

Interstate Mining Compact Commission

West Virginia Department of Environmental Protection

Pennsylvania Department of Reclamation

Illinois Division of Land Reclamation

Abandoned Mine Lands Reclamation Council

Kentucky Department for Surface Mining

Federal

Office of Surface Mining

Environmental Protection Agency

VII. Will All of These Groups Participate in the Regulatory Negotiation

Process?

No. First, the Secretary of the Interior will select committee

members based on whether the entity will be substantially affected by

this rule. Second, some of the groups, for various reasons, may decide

not to participate in this specific regulatory negotiation.

VIII. How Can You Participate in the Process?

If you believe that your interests may not have been adequately

represented by any of the parties listed above you may apply for, or

nominate another entity for membership on the committee to represent

your interests. Each application for nomination must include:

1. The name of the applicant or nominee and a description of the

interests the entity will represent.

2. Evidence that the applicant or nominee is authorized to

represent parties related to the interests the entity proposes to

represent.

3. A written commitment that the applicant or nominee shall

actively participate in good faith in the development of the rule under

consideration.

4. The reasons that the entities specified above do not adequately

represent the interests of the entity submitting the application or

nomination.

The OSM will advise the Secretary whether that entity should be

added to the group. The decision will be based on whether the entity

would be substantially affected by the rule and whether that entity is

already adequately represented in the negotiating group.

IX. What Happens After the Committee Members are Selected?

Once membership in the Committee has been selected, an

organizational meeting will be held to develop the specific issues and

groundrules for how the negotiation will be conducted. The location and

dates of future meetings will be published in the Federal Register.

Meetings will be open to the public unless specifically noted as being

closed in the Federal Register, as authorized by FACA.

X. Conclusion

OSM requests public comment on whether: (1) It should establish a

Federal Advisory Commission, (2) it has properly identified the

interests that are significantly affected by the key issues listed

above, (3) the suggested committee membership reflects a balanced

representation of these interests, and (4) regulatory negotiation is

appropriate for this rulemaking.

Dated: March 2, 1995.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

Appendix

This notice is published in accordance with Section 9(a) (2) of

the Federal Advisory Committee Act (FACA), 5 U.S.C. App. (1988).

Following consultation with the General Services Administration and

the Office of the Management and Budget, notice is hereby given that

the Secretary of the Interior is administratively establishing an

advisory committee to be known as the Office of Surface Mining

Reclamation and Enforcement Negotiated Rulemaking Committee on Coal

Refuse Disposal.

The purpose of the Committee is to provide a forum to discuss a

variety of regulatory and reclamation issues of concern to the

public, primacy States which regulate surface coal mining,

environmental groups, coal mine region residents, industry, the

Congress, and other State and Federal agencies.

The Secretary of the Interior will appoint 20-25 members to the

Committee to represent a cross-section of those who are interested

in and directly affected by regulatory and reclamation activities.

OSM has sought the advice of an outside neutral professional

convener in an effort to carefully monitor membership to ensure that

there is a balance among those interests affected by the Surface

Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.).

Members will represent the following segments of the population in

appropriate mix and balance for the task at hand.

Categories of Members:

* Environmental groups; [[Page 13860]]

* Representatives from the coal refuse removal and reprocessing

industry;

* Primacy States with responsibility for regulating surface coal

mining operations;

* General coal mining industry; and

* Citizens/residents of areas with significant deposits of coal

refuse.

Certification

I hereby certify that the administrative establishment of the

Office of Surface Mining Reclamation and Enforcement Negotiated

Rulemaking Committee on Coal Refuse Disposal is necessary and in the

public interest in connection with the performance of duties imposed

on the Department of the Interior by the Surface Mining Control and

Reclamation Act of 1977 (30 U.S.C. 1201 et. seq.).

Dated: August 18, 1994.

Bruce Babbitt,

Secretary of the Interior.

[FR Doc. 95-6226 Filed 3-13-95; 8:45 am]

BILLING CODE 4310-05-M