Hopi Tribe Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 756

[HO-004-FOR]

Hopi Tribe 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 a proposed amendment to the Hopi Tribe abandoned mine land

reclamation (AMLR) plan (hereinafter, the ``Hopi plan'') under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). The Hopi

Tribe proposed to revise, add, or delete plan provisions pertaining to

the preface to amended reclamation plan; purpose of the Hopi plan;

eligible lands and water subsequent to certification; land acquisition,

management, and disposal; rights of entry; Hopi Department of Natural

Resources policy on public participation; organization of the Hopi

Tribe; a description of aesthetic, cultural and recreational conditions

on the Hopi Reservation; and a description of the flora and fauna found

on the Hopi Reservation. The amendment revised the Hopi plan to meet

the requirements of the corresponding Federal Regulations and to be

consistent with SMCRA; to incorporate the additional flexibility

afforded by the revised Federal regulations and SMCRA, as amended; to

clarify ambiguities; and to improve operational efficiency.

EFFECTIVE DATE: March 31, 1997.

FOR FURTHER INFORMATION CONTACT:

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

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the Hopi Plan

On June 28, 1988, the Secretary of the Interior approved the Hopi

plan. General background information on the Hopi plan, including the

Secretary's findings and the disposition of comments, can be found in

the June 28, 1988, Federal Register (53 FR 24262). Subsequent actions

concerning the Hopi Tribe's plan and plan amendments can be found at 30

CFR 756.17 and 756.18.

II. Proposed Amendment

By letter dated September 23, 1996, the Hopi Tribe submitted a

proposed amendment to its plan (administrative record No. HO-156)

pursuant to SMCRA (30 U.S.C. 1201 et seq.). The Hopi Tribe submitted

the proposed amendment at its own initiative and in response to the

required plan amendments at 30 CFR 756.18 (a) through (h). The

provisions of the Hopi plan that the Hopi Tribe proposed to revise,

add, or delete were: Preface to amended reclamation plan; section I, A,

purpose of the Hopi plan; section II, A(1), coal reclamation after

certification, and section II, A(1)(i), limited liability (coal

reclamation); sections II, B(1)(d) and (d)(ii), noncoal reclamation

after certification and the construction of public facilities, and

sections II, B(1) (h), (i), and (j), limited liability, contractor

responsibility, and reports (noncoal reclamation); section IV, A(1),

land acquisition, and section IV, B, management of required land;

sections VI, A(1) and B(1), consent to entry and public notice; section

XII, description of aesthetic, cultural and recreational conditions of

the Hopi Reservation; and section XIV, flora and fauna of the Hopi

Reservation.

OSM announced receipt of the proposed amendment in the October 16,

1996, Federal Register (61 FR 53884), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. HO-159).

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

The public comment period ended on November 15, 1996.

III. Director's Findings

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

CFR 884.14 and 884.15, finds that the proposed plan amendment submitted

by the Hopi Tribe on September 23, 1996, meets the requirements of the

corresponding Federal regulations and is consistent with SMCRA. Thus,

the Director approves the proposed amendment.

1. Nonsubstantive Revisions to the Hopi Plan Provisions

The Hopi Tribe proposed revisions to the following previously-

approved plan provisions that are nonstubstantive in nature and consist

of minor editorial, punctuation, grammatical, and recodification

changes (corresponding SMCRA provisions and Federal regulations are

listed in parentheses):

Preface to amend reclamation plan, (sections 411(e) and (f) of

SMCRA and 30 CFR 875.15), eligible projects;

Section II, A(1)(a), (30 CFR' 874.12)(c)), eligible coal lands and

water;

Section II, A(1)(g), (30 CFR 874.16), contractor responsibility

(coal reclamation);

Section II, B(1)(d), (30 CFR 874.15(b)), noncoal reclamation after

certification;

Deletion of sections II, E, F, and G, (30 CFR 874.15 and .16,

875.19 and .20, and 886.23(b)), limited liability, contractor

responsibility, and reports;

Section II, E, (sections 411(e) and (f) of SMCRA and 30 CFR

875.15(d) and (e) and 884.13(c)(2)), description of needs, proposed

construction and activities;

Section VII, B(8), (30 CFR 884.13(c)(7)), public participation;

Section VIII, (30 CFR 884.13(d)(1)), organization of the Hopi

Tribe; and

Section XIV, (30 CFR 884.13(f)), flora and fauna.

Because the proposed revisions to these previously-approved Hopi

plan provisions are nonsubstantive in nature, the Director finds that

they are consistent with the corresponding provisions of SMCRA and meet

the requirements of the Federal regulations. Therefore, the Director

approves the proposed revisions to these plan provisions.

2. Substantive Revisions to the Hopi Plan Provisions That Are

Substantively Identical to the Corresponding Provisions of SMCRA and

the Federal Regulations

The Hopi Tribe proposed revisions to the following plan provisions

that are substantive in nature and contain language that is

substantively identical to the requirements of the corresponding

provisions of SMCRA and the Federal regulations (listed in

parentheses):

Preface to amended reclamation plan, (title IV of SMCRA and 30 CFR

subchapter R), introductory paragraph;

Section II, A(1)(i), (30 CFR 874.15), limited liability (coal

reclamation);

Section II, B(1)(h), (30 CFR 875.19), limited liability (noncoal

reclamation);

Section II, B(1)(i), (30 CFR 875.20), contractor responsibility

(noncoal reclamation); and

Section II, B(1)(j), (30 CFR 886.23(b)), reports (noncoal

reclamation);

Because these proposed revisions to the Hopi plan provisions are

substantively identical to the corresponding provisions of SMCRA and

the Federal regulations, the Director finds that they are consistent

with the corresponding provisions of SMCRA and meet the requirements of

the Federal regulations. Therefore, the Director approves the proposed

revisions to these plan provisions.

[[Page 15113]]

3. Revisions to the Hopi Plan Provisions Submitted in Response to

Required Amendments

In response to the required plan amendments at 30 CFR 756.18(d)

through (h) (April 23, 1996, 61 FR 17833, 17836-38, finding Nos. 5, 6,

7, and 9), the Hopi Tribe proposed to revise its plan provisions at

section II, A(1), concerning coal reclamation after certification;

section II, B(1)(d)(ii), concerning noncoal reclamation after

certification; section IV, A(1), concerning land acquisition; section

IV, B(1), concerning management of acquired lands; and section XII,

concerning description of aesthetic, cultural and recreational

conditions of the Hopi Reservation.

Section II, A(1).--OSM at 30 CFR 756.18(d) (finding No. 5(b), 61 FR

17833, 17836) required the Hopi Tribe to revise section II, A(1) to

require that any coal reclamation activities subsequent to

certification of coal reclamation are subject to the provisions of

sections 401 through 410 of SMCRA.

In response to the required amendment, the Hopi Tribe proposed to

add such language to its plan at section II, A(1) to provide for coal

reclamation after certification. In addition, the Hopi Tribe corrected

a reference in this section to the effective date of the Hopi Tribe's

certification that all known abandoned coal mine problems had been

addressed. For the reasons discussed in the April 23, 1996, Federal

Register, the Director finds that the proposed revisions at section II,

A(1) of the Hopi plan meet the requirements of the Federal regulations

at 30 CFR 875.13(b) and 875.14(b)). Accordingly, the Director approves

the proposed revisions to section II, A(1) and removes the required

amendment at 30 CFR 756.18(d).

Section II, B(1)(d)(ii).--OSM at 30 CFR 756.18(e) (finding No.

6(a), 61 FR 17833, 17836) required the Hopi Tribe to revise section II,

B(1)(d)(ii) to delete the word ``property'' for priority two noncoal

reclamation.

In response to the required amendment, the Hopi Tribe revised

section II, B(1)(d)(ii) to provide for the protection of public health,

safety, and general welfare from the adverse effects of mineral mining

and processing practices. For the reasons discussed in the April 23,

1996, Federal Register, the Director finds that the proposed revision

at section II, B(1)(d)(ii) of the Hopi plan meets the requirements of

the Federal regulations at 30 CFR 875.15(b)(2). Accordingly, the

Director approves the proposed revision to section II, B(1)(d)(ii) and

removes the required amendment at 30 CFR 756.18(e).

Section IV, A(1).--OSM at 30 CFR 756.18(f) (finding No. 7(a), 61 FR

17833, 17837) required the Hopi Tribe to revise section IV, A(1) to

delete the word ``coal'' from the phrase ``coal refuse thereon'' to

ensure that lands eligible for acquisition included those on which

refuse from both coal and noncoal mining practices are located.

In response to the required amendment, the Hopi Tribe revised

section IV, A(1) to provide that noncoal lands and water may be

acquired in the same manner as coal lands and water. For the reasons

discussed in the April 23, 1996, Federal Register, the Director finds

that the proposed revision at section IV, A(1) of the Hopi plan meets

the requirements of the Federal regulations at 30 CFR 875.17 and

879.11(a). Accordingly, the Director approves the proposed revision to

section IV, A(1) and removes the required amendment at 30 CFR

756.18(f).

Section IV, B(1).--OSM at 30 CFR 756.18(g) (finding No. 7(c), 61 FR

17833, 17837) required the Hopi Tribe to revise section IV, B(1) to

reinstate the phrase ``may be used pending'' to its provisions

concerning the management of acquired lands.

In response to the required amendment, the Hopi Tribe revised

section IV, B(1) to provide that land acquired under rules of the Hopi

plan may be used pending concurrence of the Hopi AMLR program and

Tribal Council for any lawful purpose that is not inconsistent with the

reclamation activities and post reclamation uses for which it was

acquired. For the reasons discussed in the April 23, 1996, Federal

Register, the Director finds that the proposed revision at section IV,

B(1) of the Hopi plan meets the requirements of the Federal regulations

at 30 CFR 879.14. Accordingly, the Director approves the proposed

revision to section IV, B(1) and removes the required amendment at 30

CFR 756.18(g).

Section XII.--OSM at 30 CFR 756.18(h) (finding No. 9, 61 FR 17833,

17838) required the Hopi Tribe to revise its plan to include

information concerning significant aesthetic, historic or cultural, and

recreational values.

In response to the required amendment, the Hopi Tribe added section

XII to provide a description of aesthetic, cultural and recreational

conditions of the Hopi Reservation. For the reasons discussed in the

April 23, 1996, Federal Register, the Director finds that the proposed

addition at section XII of the Hopi plan meets the requirements of the

Federal regulations at 30 CFR 884.13(f)(2). Accordingly, the Director

approves the proposed revision to section IV, B(1) and removes the

required amendment at 30 CFR 756.18(h).

4. Section I, A, Purpose of Hopi Tribe AMLR Plan

The Hopi Tribe proposed to revise section I, A, of its plan in

response to required amendments at 30 CFR 756.18 (a) through (c) (April

23, 1996, 61 FR 17833, 17835, finding Nos. 4 (a), (d), and (e)). OSM

required the Hopi Tribe to revise section I, A to (1) provide separate

provisions for coal and noncoal reclamation activities, (2) ensure that

the provisions listed in the purpose of the Hopi plan are consistent

with the Hopi Tribe's certification of completion of reclamation of

known coal-related problems, and (3) provide appropriate provisions for

reclamation of eligible lands, waters and facilities under a noncoal

reclamation program.

The Hopi Tribe chose not to respond specifically to the required

amendments, but rather proposed revisions to section I, A to provide

that the Hopi plan's purpose is to ``protect the health, safety, and

general welfare of members of the Hopi Tribe and members of the general

public from the harmful effects of past coal mining practices and past

mineral mining and processing practices.'' In addition, the Hopi Tribe

proposed other purposes at section I, A to (1) address adverse effects

of mining and processing practices on public facilities; (2) provide

for public facilities in communities impacted by coal or other mineral

mining and processing practices; and (3) address needs for activities

or public facilities related to the coal or minerals industry on Hopi

lands impacted by coal or minerals development.

The first purpose at section I, A of the Hopi plan is similar to

the provisions of sections 403(a)(2) and 411(c)(2) of SMCRA, which

provide, respectively, for the protection of health, safety, and

general welfare from the adverse effects of coal mining practices, and

from the adverse effects of mineral mining and processing practices.

The additional purposes at section I, A are similar to the provisions

of section 411(e) of SMCRA and 30 CFR 875.15(a), which provide for the

protection, repair, replacement, construction, or enhancement of

utilities 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 or

other

[[Page 15114]]

mineral mining and processing practices.

Because the Hopi Tribe previously certified that it had completed

the reclamation of all known coal-related problems (59 FR 29719, June

9, 1994), its plan appropriately provides for both coal and noncoal

reclamation. Therefore, the Director finds that section I, A of the

Hopi plan, which provides a general description of the purpose of the

Hopi Tribe's AMLR program, including descriptions of coal and noncoal

reclamation activities, is not inconsistent with sections 403 and 411

of SMCRA and meets the requirements of the Federal regulations at 30

CFR parts 874 and 875. Accordingly, the Director approves the proposed

revisions at section I, A and removes the required amendments at 30 CFR

756.18 (a) through (c).

5. Sections VI, A(1) (a) through (c) and B(1), Consent To Enter and

Public Notice

The Hopi Tribe proposed to revise its plan provisions at sections

VI, A(1) (a) through (c), by deleting provisions concerning the ability

to enter lands for emergency reclamation. The Hopi Tribe also proposed

to revise section VI, B(1) by deleting the phrase ``except in emergency

situations,'' from the requirement for the public notice when written

consent for entry cannot be obtained.

Deletion of the references to emergency reclamation and emergency

situations is consistent with the fact that the Hopi Tribe is unable to

exercise emergency powers on Hopi lands, because the Hopi Tribe did not

request authority to conduct emergency response reclamation under the

original Hopi plan submission (53 FR 24262, June 28, 1988), and it has

not subsequently sought emergency powers through the amendment process.

For these reasons, only OSM, and its agents, employees, and

contractors, are authorized to conduct emergency reclamation activities

on Hopi lands. Based upon OSM's exclusive emergency reclamation

authority on Hopi lands, the Director finds that the deletions of

references to emergency reclamation and emergency situations at

sections VI, A(1)(c) and B(1) are consistent with section 410 of SMCRA

and meet the requirements of 30 CFR 877.14. Therefore, the Director

approves these proposed plan revisions.

IV. 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 Hopi plan (administrative record

No. HO-157).

(a) Bureau of Indian Affairs (BIA), Hopi Agency.--BIA commented on

October 11, 1996, that the ``Preface to Amended Reclamation Plan''

section of the Hopi plan should be revised to clarify the order of

priority for future coal AMLR projects (administrative record No. HO-

158). Specifically, BIA recommended that the last paragraph on page

iii, which provides a description of the Hopi Tribe's priority system,

should be revised to indicate that projects with the most adverse

impacts to the public are of the highest priority.

OSM responds that the preface of the Hopi plan provides for both

coal and noncoal reclamation projects, and that the order of priority

provided by the preface is consistent with the Federal regulations at

30 CFR part 875. Even though the Hopi Tribe provided certification of

completion of all known coal-related problems (59 FR 29721, June 9,

1994), it continues to have a responsibility to give any coal-related

problems that are found or that occur after certification top priority

for AMLR funding. The preface of the Hopi plan reflects this

requirement by stating that ``newly discovered projects adversely

affected by coal mining'' (emphasis added) would receive the highest

priority for AMLR funding. The Director finds that the language

contained in the preface of the Hopi plan concerning the priority of

coal projects is consistent with the counterpart Federal regulations at

30 CFR 875.13(a)(3), and is not requiring the Hopi Tribe to provide any

additional clarification about priorities as suggested by BIA.

(b) Arizona State Historic Preservation Officer (SHPO).--On

November 14, 1996, the Arizona SHPO responded that it was their opinion

that the proposed amendment should have no effect on any property

listed on the National Register of Historic Places or any project

eligible for listing (administrative record No. HO-160).

V. Director's Decision

Based on the above findings, the Director approves the Hopi Tribe's

proposed plan amendment as submitted on September 23, 1996.

The Director approves, as discussed in: Finding No. 1, the preface

to the amended reclamation plan, concerning eligible projects, section

II, A(1)(a), concerning eligible coal lands and water, section II, A,

(1)(g), concerning contractor responsibility for coal reclamation,

section II, B(1)(d), concerning noncoal reclamation after

certification, deletion of sections II, E, F, and G, concerning limited

liability, contractor responsibility, and reports for noncoal

reclamation, section II, E, concerning description of needs, proposed

construction and activities, section VII, B(8), concerning public

participation, section VIII, concerning organization of the Hopi Tribe,

and section XIV, concerning flora and fauna; finding No. 2, the preface

to the amended reclamation plan, concerning the introductory paragraph,

section II, A(1)(i), concerning limited liability for coal reclamation,

section II, B(1)(h), concerning limited liability for noncoal

reclamation, section II, B(1)(i), concerning contractor responsibility

for noncoal reclamation, and section II, B(1)(j), concerning reports

for noncoal reclamation; finding No. 3, section II, A(1), concerning

coal reclamation after certification, section II, B(1)(d)(ii),

concerning noncoal reclamation after certification, section IV, A(1),

concerning land acquisition, section IV, B(1), concerning management of

acquired lands, and section XII, concerning description of aesthetic,

cultural and recreational conditions of the Hopi Reservation; finding

No. 4, section I, A, concerning the purpose of Hopi plan; and finding

No. 5, sections VI, A(1) (a) through (c) and B(1), concerning consent

to entry and public notice.

The Director approves the plan provisions as proposed by the Hopi

Tribe with the provision that they be fully promulgated in identical

form to the plan provisions submitted to and reviewed by OSM and the

public.

The Federal regulations at 30 CFR Part 756, codifying decisions

concerning the Hopi plan, are being amended to implement this decision.

This final rule is being made effective immediately to expedite the

State or Indian tribe plan amendment process and to encourage States or

Indian tribes to bring their plans into conformity with the Federal

standards without undue delay. Consistency of State or Indian tribe and

Federal standards is required by SMCRA.

[[Page 15115]]

VI. 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 State or Indian tribe AMLR plans

and revisions thereof since each such plan is drafted and promulgated

by a specific State or Indian tribe, not by OSM. Decisions on proposed

State or Indian tribe AMLR plans and revisions thereof submitted by a

State or Indian tribe 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 or Indian tribe 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 or Indian tribe 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 or Indian tribe. 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: March 13, 1997.

James F. Fulton,

Acting Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter E of the Code of Federal Regulations is amended as set forth

below:

PART 756--INDIAN TRIBE ABANDONED MINE LAND RECLAMATION PROGRAMS

1. The authority citation for part 756 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq. and Pub. L. 100-71.

2. Section 756.17 is amended by adding paragraph (c) to read as

follows:

Sec. 756.17 Approval of Hopi Tribe abandoned mine land reclamation

plan amendments.

* * * * *

(c) Revisions to, additions of, or deletions of the following plan

provisions, as submitted to OSM on September 23, 1996, are approved

effective March 31, 1997:

Preface to Amended Reclamation Plan--Introductory paragraph and

Eligible Projects;

Section I, A--Purpose of Hopi plan;

Section II, A(1)--Certification of Completion of Coal Sites;

Section II, A(1)(a)--Eligible Coal Lands and Water;

Section II, A, (1)(g)--Contractor Responsibility (for coal

reclamation);

Section II, (A)(1)(i)--Limited Liability (for coal reclamation);

Sections II, (B)(1)(d) and (d)(ii)--Noncoal Reclamation After

Certification;

Sections II, (B)(1)(h), (i), and (j)--Limited Liability, Contractor

Responsibility, and Reports (for noncoal reclamation);

Deletion of sections II, E, F, and G--Limited Liability, Contractor

Responsibility, and Reports (for noncoal reclamation);

Section II, E--Description of Needs, Proposed Construction and

Activities;

Sections IV, (A)(1) and (B)(1)--Acquisition and Management of

Acquired Lands;

Sections VI, A(1) (a) through (c) and B(1)--Consent to Entry and

Public Notice;

Section VII, B(8)--Public Participation;

Section VIII--Organization of the Hopi Tribe;

Section XII--Description of Aesthetic, Cultural and Recreational

Conditions of the Hopi Reservation; and

Section XIV--Flora and Fauna.

Sec. 756.18 [Amended]

3. Section 756.18 is amended by removing and reserving paragraphs

(a) through (b) and removing paragraphs (c) through (h).

[FR Doc. 97-8103 Filed 3-28-97; 8:45 am]

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