Wyoming Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

30 CFR Part 950

[SPATS No. WY-024-FOR]

Wyoming Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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

is approving, with certain exceptions and additional requirements, a

proposed amendment to the Wyoming Abandoned Mine Land Reclamation

(AMLR) plan (hereinafter referred to as the ``Wyoming plan'') under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). Wyoming is

revising and adding statutes pertaining to noncoal lien authority and

contractor eligibility. The amendment revises the Wyoming plan to be

consistent with SMCRA, to incorporate the additional flexibility

afforded by the revised Federal regulations, and to improve operational

efficiency.

EFFECTIVE DATE: February 21, 1996.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Casper Field Office,

Telephone: (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Plan

On February 14, 1983, the Secretary of the Interior approved the

Wyoming plan. General background information on the Wyoming plan,

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

be found in the February 14, 1983, Federal Register (48 FR 6536).

Subsequent actions concerning Wyoming's plan and plan amendments can be

found at 30 CFR 950.30, 950.35, and 950.36.

II. Proposed Amendment

By letter dated April 21, 1995, Wyoming submitted a proposed

amendment to its plan (administrative record No. WY-AML-18-8) pursuant

to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed

amendment at its own initiative and in response to a September 26,

1994, letter (administrative record No. WY-AML-18-1) that OSM sent to

Wyoming in accordance with 30 CFR 884.15(b).

The provisions of Wyoming's statute that Wyoming proposed to revise

and add were: Wyoming Statute (W.S.) 35-11-1206(a) and (b), liens for

reclamation on private land, and W.S. 35-11-1209(a) and (b), contractor

eligibility.

OSM announced receipt of the proposed amendment in the May 18,

1995, Federal Register (60 FR 26704), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. WY-AML-18-9).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on June 19, 1995.

During its review of the amendment, OSM identified concerns

relating to the provisions of W.S. 35-11-1206 and the amount of the

lien placed on reclaimed private lands. OSM notified Wyoming of the

concerns by letter dated August 9, 1995 (administrative record No. WY-

AML-18-16). Wyoming responded in a letter dated August 29, 1995, by

submitting additional explanatory information for W.S. 35-11-1206

regarding the cost of reclamation in the lien computation

(administrative record No. WY-AML-18-17).

Based upon the additional explanatory information for the proposed

plan amendment submitted by Wyoming, OSM reopened the public comment

period in the September 20, 1995, Federal Register (60 FR 48678,

administrative record No. WY-AML-18-18). The public comment period

closed on October 5, 1995.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 884.14 and 884.15, finds, with certain exceptions and additional

requirements, that the proposed plan amendment submitted by Wyoming on

April 21, 1995, and as supplemented with additional explanatory

information on August 29, 1995, is in compliance with the Federal

regulations at 30 CFR Subchapter R and is consistent with SMCRA. Thus,

the Director approves, with certain exceptions and additional

requirements, the proposed amendment.

1. W.S. 35-11-1206(a) and (b), Liens for Reclamation on Private Lands

Wyoming proposed to add the following italicized language to its

provisions at W.S. 35-11-1206(a), concerning liens for reclamation on

private lands, by providing, in part, that

[w]ithin six (6) months after the completion of projects to restore,

reclaim, abate, control or prevent adverse effects of past coal or

mineral mining practices on privately owned land, the director [of

the Abandoned Mine Land Division] shall itemize the monies expended

and may file a lien against the property with the appropriate county

clerk. If the monies expended result in a significant increase in

property value, a notarized appraisal by an independent appraiser

shall be filed with the lien. The lien shall not exceed the cost of

reclamation work or the amount determined by the appraisal to be the

increase in the fair market value of the land as a result of the

restoration, reclamation, abatement, control or prevention of the

adverse effects of past coal or mineral mining practices, whichever

is less.

In addition, Wyoming proposed the addition of the italicized

language at W.S. 35-11-1206(b) to provide that

[t]he landowner may petition the district court for the district in

which the majority of the land is located within sixty (60) days of

the filing of the lien to determine the increase in the fair market

value of the land. The amount reported to be the increase in value

of the premises, but not exceeding the cost of the reclamation work,

shall constitute the amount of the lien and shall be recorded with

the lien.

As discussed below, the counterparts to these proposed State

provisions are at sections 408 and 411(g) of SMCRA and in the Federal

regulations at 30 CFR Part 882.

Section 408(a) of SMCRA requires that the lien shall not exceed the

amount determined by the appraisal to be the increase in the market

value of the land as a result of the restoration, reclamation,

abatement, control, or prevention of the adverse effects of past coal

mining practices. Section 408(b) of SMCRA provides that the landowner

may petition to determine the increase in the market value of the land

reclaimed and that the amount reported to be the increase in value of

the premises shall constitute the amount of the lien. Section 411(g) of

SMCRA allows the provisions of section 408 to be applied to noncoal

sites after a State's

[[Page 6538]]

certification of completion of coal projects. OSM announced in the May

25, 1984, Federal Register (49 FR 22139) that Wyoming had certified to

the completion of, or was in the process of completing, the reclamation

of all known coal-related impacts eligible for funding under the

State's AMLR program, and accordingly, Wyoming could use AMLR funds for

noncoal projects that do not directly relate to public health or

safety.

The Federal regulations at 30 CFR Part 882, which concern

reclamation on private coal or noncoal land, provide at 882.12(a) that

the appraisal shall state the estimated market value of the property in

its unreclaimed condition and of the same property as reclaimed, and at

882.13(a), that OSM, the State, or Indian tribe has the discretionary

authority to place or waive a lien against land reclaimed if the

reclamation results in a significant increase in the ``fair market

value.''

The Director finds that the language proposed by Wyoming at W.S.

35-11-1206(a) that allows the Abandoned Mine Land Division (Division)

to place liens on lands affected by past mineral mining practices after

the completion of projects to restore, reclaim, abate, control, or

prevent adverse impacts on such lands is consistent with sections 408

and 411(g) of SMCRA. Therefore, the Director approves the revision of

W.S. 35-11-1206(a) allowing liens to be placed on private lands

adversely effected by past mineral mining practices.

In addition, the Director finds that the language proposed by

Wyoming at W.S. 35-11-1206 (a) and (b) that limits the lien amount to

the cost of reclamation work or the increase in the fair market value

in inconsistent with SMCRA and the Federal regulations to the extent

that sections 408 (a) and (b) of SMCRA and the Federal regulations at

30 CFR Part 882 do not allow for a lien that is less than the increase

in the fair market value of the reclaimed land (i.e., they do not

provide for a lien that is equal to the cost of reclamation work if the

cost of reclamation work is less than the increase in the fair market

value). Therefore, although the Director approves the work ``fair'' in

proposed W.S. 35-11-1206(a) and (b), he does not approve the phrases

``cost of the reclamation work or the'' and ``whichever is less'' in

W.S. 35-11-1206(a) and the phrase ``but not exceeding the cost of the

reclamation work,'' in W.S. 35-11-1206(b). The Director requires

Wyoming to remove these phrases from W.S. 35-11-1206(a) and (b).

2. W.S. 35-11-1209, Contractor Eligibility

(a) W.S. 35-11-1209(a).--Wyoming proposed to create W.S. 35-11-

1209(a) to require that the Division will not issue a contract to any

construction contractor or professional services contractor if any

surface coal mining and reclamation operation owned or controlled by

the contractor, or by any person who owns or controls the contractor,

has any (1) delinquent abandoned mine reclamation fees, (2) Federal or

State failure-to-abate cessation orders, (3) unabated Federal or State

imminent harm cessation orders, (4) delinquent civil penalties issued

under SMCRA, (5) bond forfeitures where the violation upon which the

forfeiture was based has not been corrected, and (6) unabated

violations of Federal or State laws, rules, or regulations pertaining

to air or water environmental protection incurred in connection with

any surface coal mining operation.

There is no direct counterpart to these provisions in SMCRA.

However, the Federal regulations at 30 CFR 874.16 (for coal) and 875.20

(for noncoal) do correspond to the proposed State statutory provisions

and they provide that every successful bidder for an AMLR 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 and that bidder eligibility will be confirmed by OSM's

automated Applicant/Violator System (AVS) for each contract to be

awarded.

Wyoming proposed at W.S. 35-11-1209(a) certain provisions

concerning issuance of an AMLR contract to any construction contractor

or professional services contractor that are substantively identical to

counterpart provisions provided at 30 CFR 773.15(b)(1), which is

referenced at 30 CFR 874.16 and 875.20. Specifically, Wyoming included

at paragraphs (i), (v), and (vi) delinquent abandoned mine reclamation

fees, bond forfeitures involving uncorrected violations, and unabated

violations of Federal and State laws, rules, and regulations pertaining

to air or water environmental protection incurred in connection with

any surface coal mining operation. The Director finds that the proposed

criteria provided at W.S. 35-11-1209(a)(i), (v), and (vi) are in

compliance with 30 CFR 874.16 and 875.20 and he approves these

provisions.

Wyoming proposed at W.,S. 35-11-1209(a)(ii) and (iii) other

requirements that are not in compliance with 30 CFR 874.16 and 875.20.

Wyoming's proposed list of criteria that prohibit the awarding of an

AMLR contract do not include all of the criteria of the referenced

Federal regulation at 30 CFR 773.15(b)(1). In drafting the language for

W.S. 35-11-1209(a), Wyoming used provisions substantively identical to

language that previously existed in 30 CFR 773.15(b)(1). However,

Wyoming was not aware of or did not take into account revisions to this

Federal regulation that OSM published in the October 28, 1994, Federal

Register (59 FR 54306).

The Federal regulations at 30 CFR 773.15(b)(1) now include, in

addition to the criteria included in Wyoming's proposed statute,

violations ``of the Act [(SMCRA)], any Federal rule or regulation

promulgated pursuant thereto, [and of] a State program.'' Although

Wyoming's proposed language includes Federal or State failure-to-abate

and imminent harm cessation orders in its criteria list used to

determine a contractor's eligibility to receive an AMLR contract, it

does not include Federal and State notices of violations and any other

``written notification from a governmental entity, whether by letter,

memorandum, judicial or administrative pleading, or other written

communication, of a violation of the Act; any Federal rule or

regulation promulgated pursuant thereto; [or a] State program,'' which

is set forth in the definition of ``violation notice'' at 30 CFR 773.5.

Therefore, in this respect, proposed W.S. 35-11-1209(a)(ii) and (iii)

are not in compliance with 30 CFR 874.16 and 875.20, which reference 30

CFR 773.15(b)(1). The Director requires Wyoming to revise W.S. 35-11-

1209(a), or otherwise amend its statute, rules, and/or plan, to include

as a criterion for awarding AMLR contracts, Federal and State notices

of violations and any other written notification from a governmental

entity, whether by letter, memorandum, judicial or administrative

pleading, or other written communication, of a violation of the Act;

any Federal rule or regulation promulgated pursuant thereto; or a State

program.

Additionally, Wyoming proposed in its list of criteria that

prohibit the awarding of an AMLR contract at W.S. 35-11-1209(a)(iv) the

criterion ``delinquent civil penalty issued under SMCRA.'' 30 CFR

874.16 and 875.20, which by reference to the provisions of 30 CFR

773.15(b)(1), implement the provisions of section 518 of SMCRA. This

section of SMCRA includes requirements for OSM civil penalty

assessments. The Director interprets Wyoming's use of the phrase

``delinquent civil penalty issued under SMCRA'' to mean delinquent

civil

[[Page 6539]]

penalties issued under any SMCRA State or Federal program. Using this

interpretation, the Director finds that W.S. 35-11-1209(a)(iv) is in

compliance with 30 CFR 874.16 and 875.20 and is consistent with section

518 of SMCRA. The Director approves this statute.

Finally, Wyoming did not indicate at proposed W.S. 35-11-1209 how

the Division will determine whether a construction contractor or

professional services contractor is ``eligible'' to receive an AMLR

contract. The Federal regulations at 30 CFR 874.16 and 875.20 indicate

that bidder eligibility must be confirmed by OSM's AVS for each

contract to be awarded.

Because proposed W.S. 35-11-1209 does not include provisions for

Wyoming to verify through AVS a contractor's eligibility, the Director

requires Wyoming to revise W.S. 35-11-1209, or otherwise revise its

statute, rules and/or plan to indicate that any construction contractor

or professional services contractor be confirmed through AVS as

eligible to receive an AMLR contract prior to receiving the award.

b. W.S. 35-11-1209(b).--Wyoming also proposed newly created W.S.

35-11-1209(b) to provide that ``ownership and controlling interest,''

as used in W.S. 35-11-1209, means the same as this term means as

defined at 30 CFR Part 773.5. 30 CFR 874.16 and 875.20, by referencing

30 CFR 773.15(b)(1), provide for a review of all reasonably available

information concerning ownership and control links. The Federal

regulations at 30 CFR 773.5 address ownership and control relationships

in the definition of the terms ``owned or controlled'' and ``owns or

controls;'' however, 30 CFR 773.5 does not define ``ownership and

controlling interest.'' The Director interprets W.S. 35-11-1209(b) to

mean that Wyoming's term ``ownership and controlling interest'' has the

same meaning as the Federal terms ``owned or controlled'' and ``owns or

controls'' at 30 CFR 773.5. The Director also interprets Wyoming's

proposed use of the terms ``owned and controlled'' or ``owns or

controls'' at W.S. 35-11-1209(a) to mean the same thing as the

definitions for these terms at 30 CFR 773.5. The Director finds W.S.

35-11-1209(b) to be in compliance with the ownership and control

relationship definitions included at 30 CFR 773.5. Therefore, the

Director approves this statutory provision.

(c) Policy Statement Concerning AVS Contractor Eligibility at W.S.

35-11-1209.--Wyoming provided a policy statement dated April 21, 1995,

that consists of a memorandum prepared by the State's AMLR attorney and

addressed to the administrator of the Division. The policy statement

specifically excludes subcontractors from the requirements at W.S. 35-

11-1209. Wyoming's policy states that any subcontractor would not have

to receive AVS clearance before being allowed to work on an AMLR

contract. There are no Federal counterpart requirements to Wyoming's

proposed policy. However, the preamble for the Federal regulations at

30 CFR 874.16 and 875.20 does not address whether subcontractors must

also clear AVS (May 31, 1994; 59 FR 28136, 28158 and 28164). In the

absence of any Federal requirements concerning subcontractors,

Wyoming's policy is not inconsistent with the Federal regulations at 30

CFR 874.16 and 875.20. If, at any time in the future, OSM decides to

promulgate regulations or an interpretive rule to address

subcontractors, it would notify Wyoming in accordance with 30 CFR Part

884.15(b) of any needed revisions to the Wyoming plan. For this reason,

the Director finds that Wyoming's proposed policy statement issued in

support of W.S. 35-11-1209 concerning subcontractors is in compliance

with the Federal regulations at 30 CFR 874.16 and 875.20. Therefore,

the Director approves the proposed policy statement.

V. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

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

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

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

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Wyoming plan (administrative

record Nos. WY-AML-18-10 and -11).

The Bureau of Land Management (BLM), Wyoming State Office,

responded on June 8, 1995, that the degree of involvement by the

subcontractor in the overall project should be considered

(administrative record No. WY-AML-18-12). BLM stated that if the

involvement of the subcontractor is major, the subcontractor should be

subject to the same rules as the contractor. BLM also questioned

whether W.S. 35-11-1209 and Wyoming's policy regarding its

implementation in Wyoming would set up a system whereby a contractor in

violation can have another party bid the project and then subcontract

to circumvent the system.

As discussed in finding No. 2(c) above, the Federal regulations at

30 CFR 874.16 and 875.20 are silent as to whether subcontractors are

required to pass the same AVS checks required for the successful bidder

on an AMLR contract. Because the Federal regulations do not

specifically require subcontractors to meet the eligibility

requirements applied to the successful bidder for an AMLR contract, OSM

cannot require Wyoming to make subcontractors comply with the

requirements of W.S. 35-11-1209. In response to BLM's expressed concern

that Wyoming's policy may allow a contractor who would not normally

pass the AVS check to circumvent the system by becoming a subcontractor

on a specific project, OSM acknowledges that the Federal regulations do

not prevent this type of occurrence, however, OSM expects that these

incidents would be infrequent. If OSM determines that the frequency of

such occurrences is greater than expected, it would, as provided in

finding No. 2(c) above, promulgate regulations or an interpretive rule

to address subcontractors.

The U.S. Army Corps of Engineers responded on June 13, 1995, that

it found the amendment to be satisfactory (administrative record No.

WY-AML-18-13).

By letter dated June 13, 1995, the Mine Safety and Health

Administration (MSHA) stated that the amendment has no apparent impact

upon miners' health and safety (administrative record No. WY-AML-18-

14). MSHA also indicated that its enabling legislation limits its

jurisdiction to specify mining and mining-related activities and does

not extend to state contractor reclamation of abandoned mine properties

nor to the recovering of costs of reclamation.

The U.S. Department of Agriculture, Natural Resources Conservation

Service, responded on June 16, 1995, that it had no comment on the

amendment (administrative record No. WY-AML-18-15).

VI. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, Wyoming's proposed plan

amendment as submitted on April 21, 1995, and as supplemented with

additional explanatory information on August 29, 1995.

The Director approves, as discussed in finding No. 1, certain

revisions to

[[Page 6540]]

W.S. 35-11-1206 (a) and (b), concerning the placement of liens on

private lands adversely affected by past coal and mineral mining

practices. With the requirement that Wyoming further revise its

statute, rules, and/or plan, the Director does not approve, as

discussed in Finding No. 1, other revisions to W.S. 35-11-1206 (a) and

(b), concerning the use of the cost of reclamation in determining the

amount of liens for reclamation on private land.

With the requirement that Wyoming further revise its statute,

rules, and/or plan, the Director approves, as discussed in finding No.

2(a), W.S. 35-11-1209(a), concerning contractor eligibility.

The Director approves, as discussed in finding No. (2)(b), W.S. 35-

11-1209(b), concerning ownership and control relationships, and finding

No. (2)(c), an April 21, 1995, policy statement for W.S. 35-11-1209,

concerning subcontractors.

In accordance with 30 CFR 884.15(e), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

950.36 that Wyoming must by the date indicated submit to OSM a

reasonable timetable, which is consistent with Wyoming's established

administrative or legislative procedures, for submitting an amendment

to the State reclamation plan.

The Federal regulations at 30 CFR Part 950, codifying decisions

concerning the Wyoming plan, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State plan amendment process and to encourage States to

bring their plans into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VII. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

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

determined that this rule meets the applicable standards of subsections

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

applicable to the actual language of State AMLR plans and revisions

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

State, not by OSM. Decisions on proposed State AMLR plans and revisions

thereof submitted by a 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 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 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 regulations would not have a significant

economic effect upon a substantial number of small entities.

Accordingly, this rule will ensure that existing requirements

established by SMCRA or previously promulgated by OSM will be

implemented by the 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.

List of Subjects in 30 CFR Part 950

Abandoned mine reclamation programs, Intergovernmental relations,

Surface mining, Underground mining.

Dated: February 12, 1996.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, part 950 of the Code of

Federal Regulations is amended as set forth below:

PART 950--WYOMING

1. The authority citation for part 950 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 950.35 is amended by adding paragraph (c) to read as

follows:

Sec. 950.35 Approval of abandoned mine land reclamation plan

amendments.

* * * * *

(c) With the exceptions of Wyoming Statute (W.S.) 35-11-1206(a) to

the extent that it includes the phrases ``cost of reclamation work or

the'' and ``, whichever is less'' and W.S. 35-11-1206(b) to the extent

that it includes the phrase ``, but not exceeding the cost of the

reclamation work,'' the revisions to W.S. 35-11-1206 (a) and (b),

concerning lien authority on private lands, and the addition of newly

created W.S. 35-11-1209 (a) and (b), including the policy statement

dated April 21, 1995, concerning contractor eligibility, as submitted

to OSM on April 21, 1995, and as supplemented with additional

information on August 29, 1995, are approved effective February 21,

1996.

3. Section 950.36 is added to read as follows:

Sec. 950.36 Required abandoned mine land plan amendments.

Pursuant to 30 CFR 884.15, Wyoming is required to submit to OSM by

the date specified a reasonable timetable, which is consistent with

Wyoming's established administrative and legislative procedures, for

submitting an amendment to the State reclamation plan.

(a) By March 22, 1996, Wyoming shall submit a schedule for revising

W.S. 35-11-1206(a) to remove the phrases ``cost of reclamation or the''

and ``, whichever is less'' and revising W.S. 35-11-1206(b) to remove

the phrase ``, but not exceeding the cost of the reclamation work,''.

(b) By March 22, 1996, Wyoming shall submit a schedule for revising

W.S. 1209(a), or otherwise revise its statute, rules and/or plan, to

include:

(1) Notices of violation in the criteria for determining the

eligibility of construction contractors or professional services

contractors awarded an abandoned mine land reclamation contract; and

(2) A requirement that a contractor's eligibility shall be

confirmed using OSM's Applicant/Violator System.

[FR Doc. 96-3820 Filed 2-20-96; 8:45 am]

BILLING CODE 4310-05-M