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: 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 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 Navajo Nation proposed revisions to, additions of, or deletions of

rules

[[Page 18270]]

pertaining to project selection, limited liability, contractor

responsibility, reports, certification of completion of coal sites, and

utilities and other facilities. The amendment revised 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.

EFFECTIVE DATE: April 15, 1997.

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 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 26, 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 Rules of the Navajo Reclamation Plan that the Navajo

Nation proposed to revise, add, or delete were: policies and procedures

for the Navajo Reclamation Program, section II, E, 1, project

selection; general reclamation requirements for coal reclamation,

sections II, L, 1(e), (g), (h), (i), and (j), eligible coal lands and

water, limited liability, contractor responsibility, and reports;

general reclamation requirements for noncoal reclamation, sections II,

L, 2(b)(3) and (4), (c), (d), and (e), eligible noncoal lands and

water, limited liability, contractor responsibility, and reports;

sections II, M, 1(b), (d), 2, and 2(a) and (b), certification of

completion of coal sites; sections II, N, 1 and 1(c), eligible lands

and water subsequent to certification; sections II, P, 1, 1(a) through

(c), 2, 2(a) through (f), and 3, utilities and other facilities; and

administrative and management structure, sections III, E, 1 and 1(a),

future reclamation set-aside program.

OSM announced receipt of the proposed amendment in the September

30, 1996, Federal Register (61 FR 51070), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. NA-249).

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

The public comment period ended on October 30, 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 Navajo Nation on September 3, 1996, meets the requirements of

the corresponding Federal regulations. Thus, the Director approves the

proposed amendment.

1. Nonsubstantive Revisions to the Navajo Nation's Rules

The Navajo Nation proposed revisions to the following previously-

approved rules that are nonsubstantive in nature and consist of minor

editorial, punctuation, grammatical, and recodification changes

(corresponding Federal regulation provisions are listed in

parentheses):

Section II, L, 1(e) and (g), (30 CFR 874.12(e) and (g)),

eligible coal lands and water;

Section II, L, 2(b)(3) and (4), (30 CFR 875.12(c) and (d)),

eligible noncoal lands and water prior to certification;

Section II, M, 1(b) and 2, (30 CFR 875.13(a)(2) and (c)),

certification of completion of coal sites;

Section II, N, 1 and 1(c), (30 CFR 875.14(a) and (b)), eligible

lands and water subsequent to certification; and

Section III, E, 1 and 1(a), (30 CFR 873.1, 873.11, and

873.12(a)), future reclamation set-aside program.

Because the proposed revisions to these previously-approved rules

are nonsubstantive in nature, the Director finds that they meet the

requirements of the Federal regulations. The Director approves the

proposed revisions to these rules.

2. Substantive Revisions to the Navajo Nation's Rules That Are

Substantively Identical to the Corresponding Provisions of the Federal

Regulations

The Navajo Nation proposed the addition of the following rules that

are substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal regulations

(listed in parentheses):

Section II, L, 1(h), (30 CFR 874.15), limited liability;

Section II, L, 1(i), (30 CFR 874.16), contractor responsibility;

Section II, L, 1(j), (30 CFR 886.23), reports;

Section II, L, 2(c), (30 CFR 875.19), limited liability;

Section II, L, 2(d), (30 CFR 875.20), contractor responsibility;

and

Section II, L, 2(e), (30 CFR 886.23), reports.

Because these proposed added Navajo Nation rules are substantively

identical to the corresponding provisions of the Federal regulations,

the Director finds that they meet the requirements of the Federal

regulations. The Director approves the proposed addition of these

rules.

3. Section II, E, 1, Project Selection

The Navajo Nation proposed new language in its rule at section II,

E, 1 to provide the following.

Reclamation 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).

There are no SMCRA or implementing Federal regulation requirements

concerning reclamation standards or techniques for noncoal projects

that must be followed or adhered to by State or Indian tribe AMLR

programs. The Director finds that the proposed rule at section II, E,

1, which requires reclamation techniques for noncoal mine closures and

radioactive mine wastes that ensure compliance with specific Navajo

health and safety standards for clean-up of such sites, provides an

additional safeguard for human safety that is not inconsistent with the

Federal noncoal reclamation regulations at 30 CFR part 875. Therefore,

the Director approves the proposed addition of this rule.

4. Sections II, M, 1(d) and 2(a) and (b), and P, 1(a) through (c), 2(a)

through (f), and 3, Utilities and Other Facilities

Sections II, M, 1(d)

The Navajo Nation proposed to delete its rule at section II, M,

1(d), which required a description of the Navajo Nation's ability to

fund all potential coal-related problems that occur during the life of

the AMLR program after the Navajo Nation's certification of completion

of coal reclamation. There is no direct counterpart in the Federal

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regulations, but 30 CFR 875.13(a)(3) has similar requirements. It

requires a State or Indian tribe to agree to acknowledge and give top

priority to any coal-related problem that may be found or occur during

the life of the approved AMLR program after the State's or Indian

tribe's certification of completion of coal reclamation. Such agreement

is provided in the Navajo Nation's rules at section II, N, 1(c), which

requires that, if eligible coal problems occur after certification, the

Navajo Nation will address such coal problems in the next grant cycle.

Because the rule at section II, N, 1(c) provides for coal reclamation

after certification, as required by 30 CFR 875.13(a)(3), and because

the deleted rule at section II, M, 1(d) has no direct counterpart in

the Federal regulations, the Director finds that deletion of the rule

at II, M, 1(d) rule is not inconsistent with the Federal regulations at

30 CFR part 875. Therefore, the Director approves the proposed

deletion.

Sections II, M, 2(a) and (b) and P, 1(a) through (c) and 2(a) through

(f)

The Navajo Nation proposed to revise its noncoal reclamation rules

by deleting the introductory sentence for section II, M, 2(a) and

deleting in its entirety section II, M, 2(b). The introductory sentence

for section 2(a) indicates that this section 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; and the

construction of public facilities in communities impacted by coal and

other mineral mining and processing practices. Section 2(b) states

that, 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, the provisions of Part O (should be ``P'')

of the Navajo plan, entitled Utilities and Other Facilities, apply. The

Navajo Nation also proposed to delete the requirements provided by its

rules at sections II, P, 1(a) through (c) and 2(a) through (f), which

set forth criteria and procedures for funding public utilities and

other facilities projects.

The Federal regulatory counterparts to the deleted rules at

sections II, M, 2(a) and (b) are at 30 CFR 875.15(a) and (d). The

counterparts to the deleted rules at sections II, P, 1(a) through (c)

and 2(a) through (f) are in the Federal regulations at 30 CFR 875.15(c)

and (e). All of these Federal regulations continue to allow States and

Indian tribes to include in their AMLR plans provisions for the funding

of public utilities and other facilities.

The effect of the Navajo Nation's proposed rule deletions is that

the Navajo Nation no longer has rules that would allow it to apply for

and receive AMLR funds for the construction of public utilities and

other facilities. OSM does not determine for a State or Indian tribe

that has an approved AMLR program how to allocate the limited AMLR

funds each receives to carry out the purposes of title IV of SMCRA.

In addition, the proposed deletion of the Navajo Nation rules at

section II, M, 2(a) and (b) and P, 1(a) through (c) and 2(a) through

(f) is consistent with the overall intent of the Navajo Nation to

direct its AMLR funds to specific noncoal reclamation projects and to

not use these funds for public utilities and other facilities. As

provided at section 405(d) of SMCRA, approval of the Navajo Nation plan

granted to the Navajo Nation exclusive responsibility and authority to

implement the provisions of its approved program. The approval carries

with it the responsibility to administer the AMLR program in an

efficient manner and to carefully consider all expenditures, including

determining which reclamation projects will receive AMLR funding. The

approval of the AMLR program means the Navajo Nation can spend its AMLR

funds on reclamation projects of its own choosing so long as the

program continues to be in compliance with the procedures, guidelines,

and requirements established under subsection 405(a) of SMCRA.

For these reasons, the Director finds that the deletion of the

Navajo Nation rules at sections II, M, 2(a) and (b) and P, 1(a) through

(c) and 2(a) through (f) is not inconsistent with the Federal

requirements at 30 CFR 875.15(a), (c), (d), and (e). Therefore, the

Director approves the proposed deletion of these rules.

Section II, P, 3

The Navajo Nation proposed to delete its rule at section II, P, 3,

which provides for (1) preparation of a news release concerning the

grant application for funding of public utilities and other facilities

and providing an opportunity for public comment, (2) evaluation of

public comments, and (3) a determination that the funding meets the

requirements of the Navajo Nation rules and is in the best interest of

the Navajo Nation. There is no direct Federal regulation counterpart to

section II, P, 3, but the requirements of 30 CFR 875.15(e) generally

are counterparts to the deleted provisions. The deletion of this Navajo

Nation rule is consistent with the Navajo Nation's deletion of all

rules concerning public utilities and other facilities.

For this reason and for the reasons discussed in the preceding

findings for sections II, M, 1(d), 2(a) and (b) and P, 1(a) through (c)

and 2(a) through (f), the Director finds that the deletion of section

II, P, 3 is not inconsistent with the Federal regulations at 30 CFR

875.15. The Director approves the proposed deletion of this rule.

IV. Summary and Disposition of Comments

As discussed below, OSM did not receive any comments on the

proposed amendment.

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 Navajo Nation plan

(administrative record Nos. NA-246 and 248). No comments were received

from any Federal agencies.

V. Director's Decision

Based on the above findings, the Director approves the Navajo

Nation's proposed plan amendment as submitted on September 3, 1996.

The Director approves, as discussed in: finding No. 1, section II,

L, 1(e) and (g), concerning eligible coal lands and water, section II,

L, 2(b)(3) and (4), concerning eligible noncoal lands and water prior

to certification, section II, M, 1(b) and 2, concerning certification

of completion of coal sites, section II, N, 1 and 1(c), concerning

eligible lands and water subsequent to certification, and section III,

E, 1 and 1(a), concerning future reclamation set-aside program; finding

No. 2, section II, L, 1(h), concerning limited liability, section II,

L, 1(i), concerning contractor responsibility, section II, L, 1(j),

concerning reports, section II, L, 2(c), concerning limited liability,

section II, L, 2(d), concerning contractor responsibility, and section

II, L 2(e), concerning reports; finding No. 3, section II, E, 1,

concerning project selection; and finding No. 4, deletion of section

II, M, 1(d), concerning certification of completion of coal sites,

deletion of sections II, M, (2)(a) and (b) and P, 1(a), (b), and (c),

(2)(a) through (f), and (3), concerning utilities and other facilities.

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The Director approves the rules as proposed by the Navajo Nation

with the provision that they be fully promulgated in identical form to

the rules submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 756, codifying decisions

concerning the Navajo Nation plan, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the Tribe plan amendment process and to encourage Tribes to

bring their plans into conformity with the Federal standards without

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

SMCRA.

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 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 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 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: March 24, 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 756.14 is amended by adding paragraph (d) to read as

follows:

Sec. 756.14 Approval of amendments to the Navajo Nation's abandoned

mine land plan.

* * * * *

(d) Revisions to, additions of, or deletions of the following

rules, as submitted to OSM on September 3, 1996, are approved effective

April 15, 1997.

Section II, E, 1, Project selection,

Sections II, L, 1(e) and (g), Eligible coal lands and water,

Section II, L, 1(h), Limited liability,

Section II, L, 1(i), Contractor responsibility,

Section II, L, 1(j), Reports,

Sections II, L, 2(b)(3) and (4), Eligible noncoal lands and water

prior to certification,

Section II, L, 2(c), Limited liability,

Section II, L, 2(d), Contractor responsibility,

Section II, L, 2(e), Reports,

Sections II, M, 1(b) and (d), 2, and 2(a) and (b), Certification of

completion of coal sites,

Sections II, N, 1 and 1(c), Eligible lands and water subsequent to

certification,

Sections II, P, 1(a) through (c), 2(a) through (f), and (3),

Utilities and other facilities, and

Section III, E, 1 and 1(a), Future reclamation set-aside program.

[FR Doc. 97-9703 Filed 4-14-97; 8:45 am]

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