Navajo Nation Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 756

[NA-003-FOR]

Navajo Nation Abandoned Mine Land Reclamation Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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

is announcing receipt of a proposed amendment to the Navajo Nation

abandoned mine land reclamation (AMLR) plan (hereinafter, the ``Navajo

Nation plan'') under the Surface Mining Control and Reclamation Act of

1977 (SMCRA). The proposed amendment consists of revisions to and

additions of rules pertaining to project selection, limited liability,

contractor responsibility, reports, certification of completion of coal

sites, and utilities and other facilities. The amendment is intended to

revise the Navajo Nation plan to meet the requirements of the

corresponding Federal regulations, to incorporate the additional

flexibility afforded by the revised Federal regulations, and to improve

operational efficiency.

DATES: Written comments must be received by 4:00 p.m., m.d.t., October

30, 1996. If requested, a public hearing on the proposed amendment will

be held on October 25, 1996. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.d.t., October 15, 1996.

ADDRESSES: Written comments should be mailed or hand delivered to Guy

Padgett at the address listed below. Copies of the Navajo Nation plan,

the proposed amendment, and all written comments received in response

to this document will be available for public review at the addresses

listed below during normal business hours, Monday through Friday,

excluding holidays. Each requester may receive one free copy of the

proposed amendment by contacting OSM's Albuquerque Field Office.

Guy Padgett, Director, Albuquerque Field Office, Office of Surface

Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., Suite

1200, Albuquerque, New Mexico 87102

Madeline Roanhorse, Acting Director, Abandoned Mine Land Reclamation

Department, Division of Natural Resources, Navajo Nation, P.O. Box

1875, Window Rock, Arizona 86515.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (505) 248-5070, Internet address:

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the Navajo Nation Plan

On May 16, 1988, the Secretary of the Interior approved the Navajo

Nation plan. General background information on the Navajo Nation plan,

including the Secretary's findings and the disposition of comments, can

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

Subsequent actions concerning the Navajo Nation's plan and plan

amendments can be found at 30 CFR 756.14.

II. Proposed Amendment

By letter dated September 3, 1996, the Navajo Nation submitted a

proposed

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amendment to its plan (administrative record No. NA-245) pursuant to

SMCRA (30 U.S.C. 1201 et seq.). The Navajo Nation submitted the

proposed amendment at its own initiative and in response to a September

24, 1994, letter (administrative record No. NA-228) that OSM sent to

the Navajo Nation in accordance with 30 CFR 884.15(b). The provisions

of the Navajo Nation Rules of the Navajo Reclamation Plan that the

Navajo Nation proposes to revise and add are: policies and procedures

for the Navajo Reclamation Program at subsection II, E.1, concerning

project selection; general coal reclamation requirements at (1)

subsection II, L.1(h), concerning limited liability, (2) subsection II,

L.1(i), concerning contractor responsibility, and (3) subsection II,

L.1(j)), concerning reports; general noncoal reclamation requirements

at (1) subsection II, L.2(c), concerning limited liability, (2)

subsection II, L.2(d), concerning limited liability, (2) subsection II,

L.2(d), concerning contractor responsibility, and (3) subsection II,

L.2(e), concerning reports; certification of completion of coal sites

at (1) subsection II, M.1(d), concerning coal-related problems that may

occur after submission of the certification of completion and (2)

subsection II, M.2 (a) and (b), concerning noncoal reclamation

priorities; and utilities and other facilities at subsection II, P.1,

2, and 3, concerning submission and qualification for abandoned mine

land (AML) funding and public participation.

Specifically, the Navajo Nation proposes to add new language to its

rules at II, E.1 to provide that ``[r]eclamation techniques for the

specified noncoal mine closure and radioactive mine wastes will ensure

compliance with the in house Health Physics Standards and Guidelines in

the absence of any Tribal or Federal clean up standards specific to

abandoned mine lands. The mine wastes contain low level radioactivity,

but the levels are such that the reclamation work can be safely

conducted if the health and safety standards are strictly followed.

Departmental verification of the clean up Standards will be performed

at each disturbed area(s).''

The Navajo Nation proposes the addition of new language at II,

L.1(h) for coal and II, L.2(c) for noncoal to provide that ``[t]he

Navajo Nation shall not be liable under any provision of Federal,

State, or Tribal law for any costs or damages as a result of action

taken or omitted in the course of carrying out this plan. This section

shall not preclude liability for costs or damages as a result of gross

negligence or intentional misconduct by the Navajo Nation. For purposes

of the preceding sentence, reckless, willful, or wanton misconduct

shall constitute gross negligence or intentional misconduct.''

The Navajo Nation proposes to add new rule provisions at II, L.1(i)

for coal and II, L.2(d) for noncoal to require that ``[t]o receive AML

funds, every successful bidder for a Tribal AML contract must be

eligible under 30 CFR 773.15(b)(1) at the time of contract award to

receive a permit or conditional permit to conduct surface coal mining

operations. Bidder eligibility must be confirmed by OSM's automated

Applicant/Violator System.''

Additionally, the Navajo Nation proposes the new rules at II,

L.1(j) for coal and II, L.2(e) for noncoal to require that ``[a] Form

OSM-76, ``Abandoned Mine Land Problem Area Description,'' shall be

submitted to OSM upon noncoal project completion to report the

accomplishments achieved through the project.''

The Navajo Nation is proposing to delete the requirements at II,

M.1(d), which provides that ``[a] description of the nation's ability

or provisions to fund all potential coal related problems that may

occur after submission of the certification of completion and during

the life of the approved abandoned mine reclamation program,'' at II,

M.2(a), which provides that ``[t]his paragraph applies to reclamation

projects involving the restoration of lands and water adversely

affected by past mineral mining; projects involving the protection,

repair, replacement, construction, or enhancement of utilities (such as

those relating to water supply, roads, and such other facilities

serving the public adversely affected by mineral mining and processing

practices); and the construction of public facilities in communities

impacted by coal and other mineral mining and processing practices,''

and at II, M.2(b), which provides that ``[n]otwithstanding the

requirements specified in paragraph (a) of this section, where the

Navajo Nation President determines there is a need for activities or

construction of specific public facilities related to the coal or

minerals industry impacted by coal or minerals development, Part O

entitled ``Utilities and Other Facilities'' of this Plan shall apply.''

The Navajo Nation is also proposing to delete section II, P. in its

entirety. This section pertains to the submission of information

concerning projects to be funded using AML funds and the findings to be

made by OSM's Director, the qualifications that such projects must meet

to be selected, and public notification and solicitation of comments.

In addition, the Navajo Nation proposes some minor editorial

changes.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 884.15(a), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable plan approval criteria of 30 CFR 884.14. If the amendment is

deemed adequate, it will become part of the Navajo Nation plan.

1. Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Albuquerque Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

m.d.t., October 15, 1996. Any disabled individual who has need for a

special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The location

and time of the hearing will be arranged with those persons requesting

the hearing. If no one requests an opportunity to testify at the public

hearing, the hearing will not be held. Filing of a written statement at

the time of the hearing is requested as it will greatly assist the

transcriber. Submission of written statements in advance of the hearing

will allow OSM officials to prepare adequate responses and appropriate

questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the

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person listed under FOR FURTHER INFORMATION CONTACT. All such meetings

will be open to the public and, if possible, notices of meetings will

be posted at the locations listed under ADDRESSES. A written summary of

each meeting will be made a part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

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

applicable to the actual language of Tribe or State AMLR plans and

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

specific Tribe or State, not by OSM. Decisions on proposed Tribe or

State AMLR plans and revisions thereof submitted by a Tribe or State

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the

applicable Federal regulations at 30 CFR Parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed Tribe or State AMLR plans and revisions

thereof are categorically excluded from compliance with the National

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

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

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

The Tribe or State submittal which is the subject of this rule is based

upon Federal regulations for which an economic analysis was prepared

and certification made that such regulation would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

established by SMCRA or previously promulgated by OSM will be

implemented by the Tribe or State. In making the determination as to

whether this rule would have a significant economic impact, the

Department relied upon the data and assumptions in the analyses for the

corresponding Federal regulations.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or private sector.

List of Subjects in 30 CFR Part 756

Abandoned mine reclamation programs, Indian lands, Surface mining,

Underground mining.

Dated: September 20, 1996.

James F. Fulton,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 96-24963 Filed 9-27-96; 8:45 am]

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