Abandoned Mine Land (AML) Reclamation Program; Enhancing AML Reclamation

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

is proposing revisions to its rules regarding the financing of

Abandoned Mine Land reclamation (AML) projects that involve the

incidental extraction of coal. Projections of receipts to the AML fund

through the year 2004, when the authority to collect fees will expire,

strongly indicate that there will be insufficient money to address all

problems currently listed in the Abandoned Mine Land Inventory System.

Given these limited AML reclamation resources, OSM is seeking an

innovative way for AML agencies, working with contractors, to maximize

available funds to increase AML reclamation.

The first revision would amend the definition of government-

financed construction to allow less than 50 percent government funding

when the construction is an approved AML project under the Surface

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

definition requires a minimum government contribution of 50 percent to

exempt government-financed construction from regulation under SMCRA.

The second revision would add a new section which would require

specific consultations and concurrences with the Title V regulatory

authority for AML construction projects receiving less than 50 percent

government financing. These consultations and concurrences are intended

to ensure the appropriateness of the project being undertaken as a

Title IV AML project and not under the Title V regulatory program.

DATES: Written comments: We will accept written comments on the

proposed rule until 5 p.m., Eastern time, on July 27, 1998.

Public hearings: Upon request, we will hold public hearings on the

proposed rule at dates, times and locations to be announced in the

Federal Register before the hearings. We will accept requests for

public hearings until 5 p.m., Eastern time, on July 6, 1998.

Individuals wishing to attend, but not testify at, any hearing should

contact the person identified under FOR FURTHER INFORMATION CONTACT

before the hearing date to verify that the hearing will be held.

ADDRESSES: If you wish to comment, you may submit your comments on this

proposed rule by any one of several methods. You may mail or hand

deliver comments to the Office of Surface Mining Reclamation and

Enforcement, Administrative Record, Room 101, 1951 Constitution Avenue,

NW, Washington, D.C. 20240. You may also comment via the Internet to

OSM's Administrative Record at: [email protected].

You may submit a request for a public hearing orally or in writing

to the person and address specified under FOR FURTHER INFORMATION

CONTACT. The address, date and time for any public hearing held will be

announced prior to the hearings. Any disabled individual who requires

special accommodation to attend a public hearing should also contact

the person listed under FOR FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: D.J. Growitz, Office of Surface Mining

Reclamation and Enforcement, U.S. Department of the Interior, 1951

Constitution Avenue, NW, Washington, D.C. 20240; Telephone: 202-208-

2634. E-Mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Background

A. What is the AML reclamation program?

B. How do States and Indian Tribes implement their programs?

C. Why is the rule being proposed?

D. What is the statutory authority for this rulemaking?

E. How would this proposal work?

F. What is the relationship between the AML agency and the AML

contractor?

G. How would this proposed rule facilitate more reclamation

under Title IV?

H. Could private organizations (e.g., watershed groups) assist

in AML reclamation efforts?

I. Will this proposal result in environmental abuses?

J. How would an AML agency approve reclamation projects under

the proposed rule?

K. What would be the consequence of AML contractors removing

coal outside the limits authorized by the AML project?

III. Discussion of Proposed Rule

A. What would be the change in definition of government-financed

construction at section 707.5?

B. What is the change in information collection for section

707.10?

C. What are the information collection requirements for section

874.10?

D. What is the purpose behind proposed section Sec. 874.17?

E. How would the consultation in section 874.17(a) work?

F. What types of concurrences between the AML agency and the

regulatory authority would be required in 874.17(b)?

G. Under Sec. 874.17(c) how would the AML agency document the

results of the consultation and the concurrences with the Title V

regulatory authority?

H. What special requirements would apply for qualifying

Sec. 874.17(d) reclamation projects?

I. What must the contractor do if he or she extracts more coal

than is specified in Sec. 874.17(b)?

IV. Procedural Determinations

I. Public Comment Procedures

Thirty (30) Day Comment Period

In view of the extensive outreach activity for this rulemaking and

in order to expedite the rulemaking, OSM will allow a 30-day comment

period in lieu of the usual 60 days. In October 1997, OSM prepared a

preproposal draft of the AML Enhancement Rule. The draft proposal,

similar to this proposed rule, was distributed extensively. We mailed

the draft to over 200 parties, including industry, State agencies,

environmental groups, and individuals. We also announced the

availability of the document through a press release, notice in the

Federal Register, OSM web site and fax-on-demand, and we provided for a

30-day comment period. Twenty-four people submitted written comments.

In addition to seeking comments through our normal process, we will

mail a copy of this proposed rule to each of the earlier commenters.

Written Comments

Written or electronic comments submitted on the proposed rule

should be specific, should be confined to issues pertinent to the

proposed rule, and should explain the reason for any recommended

change. Where practicable, commenters should submit three copies of

their comments. Comments received after the close of the comment period

(see DATES) or delivered to an address other than listed above (see

ADDRESSES), may not be considered or included in the Administrative

Record for the final rule.

Public Hearings

We will hold a public hearing on the proposed rule upon request

only. The time, date, and address for any hearing will be announced in

the Federal Register at least 7 days prior to the hearing.

Any person interested in participating at a hearing should inform

Mr. Growitz (see FOR FURTHER INFORMATION CONTACT), either orally or in

writing, of the desired hearing location by 5:00 p.m., Eastern time, on

July 6, 1998. If no one has contacted Mr. Growitz to express an

[[Page 34769]]

interest in participating in a hearing at a given location by that

date, a hearing will not be held. If only one person expresses an

interest, a public meeting rather than a hearing may be held, with the

results included in the Administrative Record.

If a hearing is held, it will continue until all persons wishing to

testify have been heard. The hearing will be transcribed. To assist the

transcriber and ensure an accurate record, we request that each person

who testifies at a hearing provide the transcriber with a written copy

of his or her testimony. To assist us in preparing appropriate

questions, we also request, if possible, that each person who plans to

testify submit to us at the address previously specified for the

submission of written comments (see ADDRESSES) an advance copy of his

or her testimony.

Please submit Internet comments as an ASCII file avoiding the use

of special characters and any form of encryption. Please also include

``Attn: RIN 1029-AB89'' and your name and return address in your

Internet message. If you do not receive a confirmation from the system

that we have received your Internet message, contact us directly at

202-208-2847.

We will make comments, including names and addresses of

respondents, available for public review during regular business hours.

Individual respondents may request confidentiality, which we will honor

to the extent allowable by law. If you wish to withhold your name or

address, except for the city or town, you must state this prominently

at the beginning of your comment. However, we will not consider

anonymous comments. We will make all submissions from organizations or

businesses, and from individuals identifying themselves as

representatives or officials of organizations of businesses, available

for public inspection in their entirety.

II. Background

A. What is the AML Reclamation Program?

Title IV of SMCRA established the AML Reclamation Program in

response to concern about extensive environmental damage caused by past

coal mining activities. The program is funded primarily from a fee

collected on each ton of coal mined in the country. This fee is

deposited into a special fund, the Abandoned Mine Land Fund (Fund), and

is appropriated annually to address abandoned and inadequately

reclaimed mining areas where there is no continuing reclamation

responsibility by any person under State or Federal law. Under Title

IV, the funding of reclamation projects is subject to a priority

schedule with emphasis first focused on sites affecting public health,

safety, general welfare and property. In contrast, Title V establishes

a program for regulating active mining and reclamation.

In most cases, the implementation of both Title IV and Title V

authority has been delegated to States. Depending upon each State's

internal organizational structure, the Title IV and Title V programs in

many cases are carried out by separate State authorities.

Currently, 23 States and 3 Indian Tribes (the Hopi, the Navajo and

the Crow) have authority to receive grants from the Fund and are

implementing Title IV reclamation programs in accordance with 30 CFR

Subchapter R and through implementing guidelines published in the

Federal Register on March 6, 1980 (45 FR 27123), and revised on

December 30, 1996 (45 FR 68777). In States and on Indian lands that do

not have a Title IV program, reclamation is carried out by OSM.

B. How Do States and Indian Tribes Implement Their Programs?

State and Indian Tribe AML programs are funded at 100 per cent by

OSM from money appropriated annually from the AML Fund. The States and

Indian Tribes must submit grant applications in accordance with

procedures established by OSM and existing grant regulations found at

30 CFR 886. They must certify with each grant that the requirements of

all applicable laws and regulations are met, including the Clean Water

Act, the Clean Air Act, the National Historic Preservation Act, and the

Endangered Species Act. They may only undertake projects that are

eligible for funding as described in either section 404 or section 411

of SMCRA and which meet the priorities established in section 403 of

SMCRA. OSM requires that the State Attorney General or other chief

legal officer certify that each reclamation project to be undertaken is

an eligible site.

Certain environmental, fiscal, administrative and legal

requirements must be in place in order for a program to receive grants

for reclamation. An extensive description of these requirements can be

found at 30 CFR 884, but certain of those are mentioned here to

highlight the safeguards the AML program has in place. For example, the

agency must have written policies and procedures which outline how they

will comply with the requirements of SMCRA and implementing regulations

in conducting a reclamation program, how projects will be ranked for

reclamation priority, how the public will be given an opportunity to

comment on proposed reclamation projects and how it will comply with

all applicable Federal and State laws and regulations.

The State or Indian Tribe chooses individual projects based upon

the selection criteria in its reclamation program. While these criteria

differ among programs, they all consider the priority of the problem,

public opinion regarding the project, cost effectiveness, technical

feasibility and how the area will be used once reclaimed.

State and Tribal programs seek public input in several ways. For

example, some AML programs require that a notice requesting comments on

proposed reclamation be published in newspapers of general circulation

in the area to be reclaimed. Some publish newspaper notices asking the

public to identify potential reclamation sites. Others have public

meetings to discuss upcoming reclamation or to identify potential

sites. Still other programs seek public input about reclamation

activities or potential sites through Federal Register notices.

OSM does not approve individual projects, but before construction

begins on any project, OSM must ensure that all requirements of the

National Environmental Policy Act of 1969 (NEPA) are met. Once OSM

assures that the project complies with NEPA, it provides an

authorization to proceed on the project.

OSM annually reviews the State and Tribal AML programs to ensure

that all program requirements are properly met, including site

eligibility, proper financial policies and procedures, and reclamation

accomplishments. State and Tribal agencies and OSM also review

completed projects to determine the success of AML reclamation.

Completed projects may be revisited as part of a site-specific

contract, as part of an annual post-construction evaluation, or as

otherwise specified under the State or tribal AML reclamation program's

maintenance plan.

Further, AML reclamation programs evaluate selected completed AML

reclamation projects to determine how effective the overall reclamation

program has been. Normally, these evaluations are annual, random

samples of many types of reclamation, such as reclaimed subsidence

areas, eliminated landslides, sealed openings and removed refuse piles.

State and tribal programs would be responsible to prevent abuse of this

proposal and could use a monitoring program such as this on all

projects completed with less than 50 percent government-financing

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to ensure that no problems arise after construction. As warranted in

the judgment of the State or tribal AML authority, the frequency of

these post-construction evaluations could be reduced.

C. Why Is the Rule Being Proposed?

In some States, there will never be enough public money to abate

all of the most serious AML sites--those which present an extreme

danger to human health, safety and welfare. The Abandoned Mine Land

Inventory estimates the cost to reclaim these most serious sites to be

over 2.6 billion dollars. Beyond these highest priority sites, there

are thousands of other AML sites which meet the AML eligibility

requirements and pose a serious environmental threat. This proposal

would facilitate the reclamation of some of these sites at less cost to

the government by allowing the sale of coal extracted as an incidental

part of the reclamation project to offset the overall cost of

reclamation.

D. What is the Statutory Authority for This Rulemaking?

Three sections in SMCRA outline the eligibility requirements for

sites being considered for funding under the AML program. They are

sections 404, 402(g)(4)(B)(i), and 402(g)(4)(B)(ii). Section 403 of

SMCRA establishes priorities for the expenditures from the AML Fund on

eligible sites. An otherwise eligible site must meet one of the five

priorities of Section 403(a)(1)-(5) in order to be funded.

Section 413(a) of SMCRA provides the Secretary with the ``power and

the authority, if not granted it otherwise, to engage in any work and

to do all things necessary or expedient, including the promulgation of

rules and regulations, to implement and administer the provisions of

this [Title IV].''

This proposed rule change is limited in its application to the AML

program and is necessary and expedient for OSM and the States and

Tribes to more efficiently and effectively carry out the reclamation

mandate established by Congress. This statutory authority allows OSM to

propose revisions to the AML program that will provide States and

Tribes the authority to reduce project costs to the maximum extent

practical on abandoned mine sites which have deposits of coal or coal

refuse remaining. Thus, the proposed rule change would allow for more

program-wide reclamation for the same level of program funding.

In addition, Congress specifically provided under section 528(2) of

SMCRA that SMCRA would not apply to activities involving the

``extraction of coal as an incidental part of Federal, State or local

government-financed highway or other construction under regulations

established by the regulatory authority.'' Thus, Title V permitting

requirements do not apply to areas from which coal is extracted as an

incidental part of a government-financed operation. Because AML

reclamation projects are government financed, they qualify as

government-financed construction under section 528(2).

E. How Would This Proposal Work?

In many cases eligible AML sites contain recoverable coal that was

either left in the ground when the site was abandoned or that remains

at the site in the form of coal refuse or other waste. While this coal

may have some market value, it is often sufficiently marginal that coal

mine operators are not willing to assume the financial burden of mining

and reclaiming the site as a permitted Title V operation.

To the extent that the extraction of coal would be necessary to

accomplish the reclamation of an approved AML project, the extraction

would be incidental to that project. This concept conforms to existing

regulation at 30 CFR 707.5. Coal extracted outside the predetermined

boundaries or whose extraction is not necessary for reclamation will be

subject to Title V permitting provisions. Both the boundaries for

reclamation projects, and the amount of coal which must be removed for

the prescribed reclamation will be decided by the AML agency and will

be clearly identified in the reclamation contract.

Under current regulations and guidelines, proceeds from the sale of

incidental coal must be applied to offset the contract price. Coal

extraction must be monitored carefully because proceeds must be kept

below half the original total price since no more than 50 percent of

the total contract can come from non-government sources. In many cases,

when the amount gained from the sale of incidental coal exceeds more

than 50 percent of the contract, the contract can not be executed and

the reclamation is not done. Under the proposal, contractors would be

allowed to sell incidental coal and keep the proceeds from the sale of

incidental coal. Contractors would reflect this anticipated sale of

coal in the bid price for the contract.

Under the proposed rule, less public funds would be required to

accomplish the same level of AML reclamation. This would result in the

availability of more AML Fund monies for a greater number of AML

reclamation projects. Further discussion as to how the proposed rule

would facilitate increased reclamation under Title IV can be found in

Part II. G. in this preamble.

This proposal would not have any effect on existing AML program

requirements. The eligibility for AML projects, the procurement systems

which States and Indian Tribes use to contract for AML reclamation, and

all Federal or State requirements that otherwise pertain to AML

projects would all remain the same. The proposal would not be mandatory

for the States or Indian Tribes if they choose not to approve AML

projects with less than 50% government-financing.

F. What is the Relationship Between the AML Agency and the AML

Contractor?

The relationship between the AML agency and the AML contractor

under the proposed rule would remain the same as for any approved

reclamation project. Actual construction is usually done under a site-

specific contract between the reclamation agency and third-party

contractors. These contracts clearly outline the scope of work for each

project, the cost, the time frames involved, how the contractor will be

paid and penalties for failure to meet the contractual obligations by

either party. The content of the contracts, along with bidding and

selection procedures, performance bonding requirements and other

contractual matters are established within each program in accordance

with State or Tribal laws.

The AML agency ensures the contractor's conformance with applicable

procedures through site visits and other monitoring techniques. If the

contractor does not meet the terms of the contract, the AML agency

invokes the penalties contained in the contract and allowed by law.

Each contract sets forth any unique features for the project to be

reclaimed and any site-specific criteria for that project. For example,

a project to address water quality problems will outline the acceptable

pH or sediment levels for the water or sediment, the monitoring period

associated with the treatment, whether wetlands will be created, any

projected effects on wildlife and any particular environmental impacts

at the site or on adjacent properties. Sediment and water quality

control plans are to provide for adequate environmental protection

during the construction phase of the reclamation project as well as

after its completion.

When contracts are written, the AML reclamation agency can require

that a project pass specific requirements after

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reclamation. For example, a contract could specify that a retaining

wall provide protection for a highway for a three-year period. The

contract could also specify that, should the highway fail, the

contractor must return to repair the damage. The frequency and extent

of follow-up by the AML reclamation agency is written into the

contract.

The reclamation contract would set forth the amount and extent of

incidental coal which could be extracted. AML contractors removing coal

outside those contract parameters could be subject to immediate

termination of their AML contracts, forfeiture of any performance and

reclamation bonds, and all other remedies provided by law for breach of

contract.

G. How Would This Proposed Rule Facilitate More Reclamation Under Title

IV?

The rule would decrease the cost to the public for reclaiming many

abandoned problem sites where reclamation requires the incidental

extraction of coal. This coal may be in the form of previously

undisturbed coal formations or coal refuse. While the overall cost for

the reclamation of these sites would remain the same, in each case the

public cost would be reduced under this proposal because a larger

percentage of the total project cost, i.e., over 50 percent, would be

financed by the AML contractor through sale of the coal recovered from

the site.

Also, because certain government-financed AML construction projects

would cost the AML agencies less under this proposal than under the

current definition of government-financed construction, which requires

at least 50 percent government funding, the savings could be allocated

to funding additional AML projects. Thus, the AML agency could

accomplish more reclamation with the same amount of program funding.

The following example, for illustrative purposes only, outlines the

process by which extraction of incidental coal under our proposal could

reduce the cost for Title IV reclamation at an AML eligible site.

Example: After the requisite consultation and concurrences with

the Title V regulatory authority, the AML agency announces a

contract solicitation to receive bids for the reclamation of a

refuse pile contributing sediment and acid mine drainage to local

streams. Prior to the solicitation, the AML agency estimates the

total cost of reclaiming the refuse pile (removing it to another

site and revegetating both sites) at $500,000. This figure would

include a $50,000 allowance for administrative expenses such as

project design and project monitoring. Based on existing chemical

analysis of the refuse pile, including BTU information, estimates

place the net market value of the incidental coal in the refuse pile

(after transportation, cleaning, royalty costs, etc.) at $400,000.

The estimated net cost for the project would then be $100,000

($500,000-$400,000). Based on these estimates, project bids from

contractors would be in the $100,000 range subject to the condition

that the extracted incidental coal would become the property of the

contractor. Thus reclamation of a project that would ordinarily cost

the AML agency $500,000 without contractor sale of incidental coal,

or that would cost the agency at least $250,000 under the existing

rule requiring at least 50 percent government funding, would cost

only about $100,000 under our proposal.

If the contract is awarded, the contractor would be fully

responsible for the completion of the work regardless of his return

on the sale of incidental coal.

This proposal should result in the reclamation of certain AML

sites which commonly contribute acid mine drainage (AMD) or other

environmental problems far beyond their realty boundaries and which

have little likelihood of otherwise being reclaimed under current

Title IV regulations or being mined under Title V of SMCRA. These

sites would not likely be reclaimed under the Title IV program

because limited AML funds would ordinarily be directed to higher

priority reclamation. Nor would these sites likely be mined under

the Title V regulatory program due to their marginal coal reserves

and/or potential for significant long-term liability for the ever-

present AMD or other problems which may exist at the site. Beyond

the refuse piles discussed above, other examples of AML sites where

reclamation could involve the extraction of incidental coal include

previously deep-mined areas needing to be daylighted to remove

remaining pillars and highwalls needing a second cut to remove acid-

producing coal deposits.

H. Could Private Organizations (e.g., Watershed Groups) Assist in AML

Reclamation Efforts?

Yes. AML agencies can form partnerships with industry, private

citizens and other government agencies to help address AML problems.

Partnerships such as those developed under the Clean Stream's

Initiative are an example of how these outside groups can assist in

reclaiming lands. Outside funds can also be contributed for specific

AML projects as allowed by law.

I. Will This Proposal Result in Environmental Abuses?

We do not believe that this proposal will result in environmental

abuses. Under the AML program the percentage of government funding for

reclamation of an eligible site does not adversely impact the quality

of the reclamation of that site. The AML agency selects individual

sites from the Abandoned Mine Land Inventory using its priority system.

The AML agency then develops the reclamation parameters for that site

and includes them in its reclamation contract. The AML agency, not the

AML contractor or the owner of the coal, establishes these parameters.

The AML agency oversees the reclamation and ensures adherence to the

contract requirements. These requirements would dictate or stipulate

that any coal extraction that occurs be incidental to the construction

work, i.e., is limited to only that which is necessary to carry out the

prescribed reclamation in order to address the identified health,

safety or environmental problem.

J. How Would an AML Agency Approve Reclamation Projects Under the

Proposed Rule?

Like any other AML project, reclamation projects involving the

incidental extraction of coal and reduced government funding levels

would have to meet the requirements specified in 30 CFR Subchapter R.

AML projects are not selected by the contractor. The AML agency has

total control over every project specification from design, to bidding,

to final reclamation completion. The selection of reclamation sites by

the AML agency is based on the need to protect the public health and

safety or environment from the adverse effects of past mining

activities. A particular site could be selected only after the AML

agency has determined that private industry was unable or unwilling to

remine and reclaim the site as a Title V operation, and the State

Attorney General or other legal officer has certified that the project

meets the eligibility requirements specified in State or Indian Tribe

counterparts to Title IV.

OSM is expressly prescribing certain procedures to be followed to

prevent potential abuses of the reduced funding level provisions.

First, the AML agency, in consultation with the Title V regulatory

authority, would determine whether the site would be appropriate for

AML reclamation activities based on the likelihood of extracting the

coal under a Title V permit. In addition, the Title V regulatory

authority and the Title IV AML agency would concur on the boundaries of

the AML project and on the extent and amount of the coal to be

incidentally extracted during the reclamation project. This delineation

of coal would include only that portion of the total coal at the site

that must be extracted in order to remediate the particular hazard or

environmental problem caused by past mining.

Through this proposal we hope to target long-standing AML problem

sites. The proposal is not designed to address

[[Page 34772]]

sites involving redisturbance and subsequent reclamation of abandoned

mine lands, such as highwalls and outslopes that have become

environmentally stable over the years and pose no other problems.

K. What Would be the Consequence of AML Contractors Removing Coal

Outside the Limits Authorized by the AML Project?

AML contractors removing coal outside those contract parameters

could be subject to immediate termination of their AML contracts,

forfeiture of any performance and reclamation bonds, and all other

remedies provided by law for breach of contract.

III. Discussion of Proposed Rule

A. What Would Be the Change in definition of Government-Financed

Construction at Section 707.5?

OSM is proposing to amend the definition of government-financed

construction in Sec. 707.5 of the permanent program regulations by

allowing for a lower percentage of financing from OSM or other AML

reclamation agencies for government construction sites under Title IV

reclamation which involve the incidental extraction of coal. A

government agency includes a State or Indian Tribe with an approved

Title IV program under the definition of agency found at 30 CFR 870.5.

For those States and Indian Tribes that do not have approved Title IV

programs, a government agency means OSM or its designated State agent.

Reclamation projects are funded from several sources. Some of these

sources include private individuals who donate time and money,

environmental groups, utilities, industry and government funding under

the AML program. Under the current definition of government-financed

construction, the government's financial share of the AML reclamation

must be at least 50 percent of the total project cost. This percentage

restriction limits the ability of AML agencies to undertake certain

reclamation projects because there may be insufficient AML funds to

accomplish all necessary reclamation in a State or on Tribal land and

funds must be prioritized for maximum impact. By reducing the

government share required for AML projects, OSM and the States and

Indian Tribes would maximize existing AML funds and work cooperatively

and in partnership with industry, citizens, and the environmental

community to bring about reclamation that otherwise might never be

accomplished. In addition to reducing the required government share for

AML projects, we have rewritten the definition of government-financed

construction in the ``Plain English'' style in order to improve its

clarity. The ``Plain English'' rewriting is not intended to effect any

substantive changes to the existing definition.

B. What is the Change in Information Collection for Section 707.10?

OSM proposes to revise section 707.10 which contains the

information collection requirements for Part 707. The proposed revision

changes the justification for the current exemption from the

requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.)

The revised basis for this exemption is that the information required

to be maintained in section 707.12 consists only of information that

would be provided by persons in the normal course of their business

activities.

C. What are the Information Collection Requirements for Section 874.10?

OSM also proposes to add a Sec. 874.10 which contains the

information collection requirements for Part 874 and the Office of

Management and Budget (OMB) clearance number. The proposed addition

includes the estimated reporting burden per project for complying with

the new information collection requirements contained in this proposed

rulemaking.

D. What is the Purpose Behind Proposed Section 874.17?

This new section would outline the procedures an AML agency would

need to follow in approving AML projects receiving less than 50 percent

government funding because of planned coal extraction incidental to the

reclamation.

E. How Would the Consultation in Section 874.17(a) Work?

The consultation process under proposed 874.17(a) would require the

AML agency to consult with the regulatory authority to determine the

likelihood of the coal being mined under a Title V permit. The purpose

of this consultation would be to ensure that the AML program and funds

are not used for activities that should properly be permitted and

regulated under Title V. Through this consultation process OSM intends

that AML funds be directed only to eligible sites.

OSM believes the information upon which the ``likelihood of the

coal being mined under a Title V permit'' determination is made should

be information that is reasonably available. We have listed certain

kinds of information that we believe would be available and also

helpful in reaching a decision on whether or not to proceed with the

project under the AML program. These examples of ``available''

information are not exhaustive. Each site will present a different set

of circumstances and problems which are best addressed on a case-by-

case basis. We are leaving it to the experience and technical and

professional judgment of the Title IV and Title V officials within each

jurisdiction to decide if an abandoned mine land site should be mined

under a Title V permit or reclaimed under the Title IV AML program.

Those decisions will continue to be monitored by OSM through its

oversight of the respective programs.

Under this section, the AML agency would also consult with the

regulatory authority to determine the likelihood for potential problems

and impacts arising between Title IV reclamation projects and adjacent

or nearby Title V operations when such Title V operations are present.

The purpose of this provision is to identify problems at an early stage

and to establish the reclamation responsibility. An example is where

there might be a hydrologic connection between nearby or adjacent Title

IV and Title V activities. In such cases, OSM believes it is essential

to ensure that responsibility for environmental problems, such as acid

mine drainage arising from a permitted Title V activity but impacting a

Title IV activity, remains with the Title V permittee. Conversely, a

Title V permittee would not be responsible for any environmental

problems stemming from a Title IV reclamation activity.

F. What Types of Concurrences Between the AML Agency and the Regulatory

Authority Would Be Required in Sec. 874.17(b)?

If the AML agency decides to proceed with the reclamation project

after consulting with the Title V regulatory authority, then the two

must concur in determinations as to: (1) the extent and amount of any

coal refuse, coal waste, or other coal deposits, the extraction of

which would be covered by the Part 707 exemption or counterpart State

and Tribal laws and regulations, and (2) the delineation of the

boundaries of the AML project. These determinations are intended to

ensure that only the amount of coal needed to accomplish the

reclamation is covered by the Part 707 exemption. This coal would be

exempt from the reclamation fee payment.

[[Page 34773]]

G. Under Sec. 874.17(c) How Would the AML Agency Document the Results

of the Consultation and the Concurrences With the Title V Regulatory

Authority?

The AML agency would document in the AML case file the

determinations as to the likelihood of coal at the site being mined

under a Title V permit and the likelihood of interactions between AML

activities and nearby or adjacent Title V activities that might create

new environmental problems or adversely affect existing situations.

Furthermore, the AML agency would document the information used for

making these determinations and the names of the responsible agency

officials.

H. What Special Requirements Would Apply for Qualifying Sec. 874.17(d)

Reclamation Projects?

Proposed paragraph 874.17(d)(2) would expressly require that

qualifying AML reclamation projects comply with provisions for State

and Tribal reclamation plans and grants found at 30 CFR Subchapter R.

The required compliance with Subchapter R is intended to ensure that

the incidental coal extraction projects authorized under this

rulemaking would be accomplished in accordance with the substantial

safeguards of the AML program. These safeguards include such things as:

public participation and involvement; environmental evaluation to

achieve compliance with the National Environmental Policy Act of 1969;

and use of appropriate State or Tribal procurement procedures and

regulations as authorized under the grant common rule at 43 CFR 12.76.

Further, to provide increased protections to the AML fund and to

citizens or landowners who might be affected by the project, we are

including three additional requirements to qualifying Sec. 874.17(d)

reclamation projects. Paragraph (d)(1) would require the AML agency to

characterize the site in terms of existing hydrologic and other

environmental problems. Paragraph (d)(3) would require the AML agency

to develop site-specific reclamation and contractual provisions such as

performance bonds to ensure that the reclamation is completed.

Paragraph (d)(4) would require the contractor to provide documents that

authorize the extraction of the coal and payment of royalties to the

mineral owner or other applicable party. The purpose of these

requirements is to ensure that before a contract is awarded, there is a

valid coal lease authorizing the contractor to extract the coal. The

lease would identify the party responsible for paying the royalty, the

amount of the royalty, and the party receiving the royalty.

I. What Must the Contractor Do if He or She Extracts More Coal Than Is

Specified in Sec. 874.17(b)?

Section 874.17(e) would require the contractor to obtain a permit

under Title V for the extraction of any coal not included in the

paragraph (b)(1) Part 707 exemption. Such coal extraction would not be

incidental to the AML reclamation project and thus would be subject to

all the Title V requirements. The reclamation contract between the AML

agency and the contractor therefore should clearly set forth the extent

and amount of coal covered by that exemption, as concurred in by the

Title V regulatory authority under paragraph 874.17(b)(1).

IV. Procedural Determinations

1. Executive Order 12866--Regulatory Planning and Review

This document is not a significant rule and is not subject to

review by the Office of Management and Budget under Executive Order

12866.

a. This rule will not have an effect of $100 million or more on the

economy. It will not adversely affect in a material way the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or Tribal governments or communities.

b. This rule will not create a serious inconsistency or otherwise

interfere with an action taken or planned by another agency.

c. This rule does not alter the budgetary effects or entitlements,

grants, user fees, or loan programs or the rights or obligations of

their recipients.

d. This rule does not raise novel legal or policy issues.

2. Regulatory Flexibility Act

The Department of the Interior certifies 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.).

This determination is based on the findings that the regulatory

additions in the rule will not change costs to industry or to the

Federal, State, or local governments. Furthermore, the rule produces no

adverse effects on competition, employment, investment, productivity,

innovation, or the ability of United States enterprises to compete with

foreign-based enterprises in domestic or export markets.

3. Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small

Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million or

more. It would allow AML agencies to work in partnership with

contractors to leverage finite AML Reclamation Fund dollars to

accomplish more reclamation. To offset the reduction in government

funding, the contractor would be allowed to sell coal found incidental

to the project and recovered as part of the reclamation. Participation

under the rule change is strictly voluntary and those participating are

expected to do so because of the economic benefit.

b. Will not cause a major increase in costs or prices for

consumers, individual industries, Federal, State, or local government

agencies, or geographic regions because the rule does not impose any

new requirements on the coal mining industry or consumers, and State

and Indian AML program administration is funded at 100 percent by the

Federal government.

c. Does not have significant adverse effects on competition,

employment, investment, productivity, innovation, or the ability of

U.S.-based enterprises to compete with foreign-based enterprises for

the reasons stated above.

4. Unfunded Mandates

This rule does not impose an unfunded mandate on State, local, or

Tribal governments or the private sector of more than $100 million per

year. The rule does not have a significant or unique effect on State,

local or Tribal governments or the private sector. The administration

of the AML program by a State or Indian Tribe is funded at 100 percent

by the Federal Government and the decision by a State or Indian Tribe

to participate is voluntary. A statement containing the information

required by the Unfunded Mandates Reform Act (1 U.S.C. 1531, et seq.)

is not required.

5. Executive Order 12630--Takings

In accordance with Executive Order 12630, the rule does not have

significant takings implications. The rule would allow AML agencies to

work in partnership with contractors to leverage finite AML Reclamation

Fund dollars to accomplish more reclamation. To offset the reduction in

government funding, the contractor would be allowed to sell coal found

incidental to the project and recovered as part of the reclamation.

[[Page 34774]]

6. Executive Order 12612--Federalism

In accordance with Executive Order 12612, the rule does not have

significant Federalism implications to warrant the preparation of a

Federalism Assessment for the reasons discussed above.

7. Executive Order 12988--Civil Justice Reform

In accordance with Executive Order 12988, the Office of the

Solicitor has determined that this rule does not unduly burden the

judicial system and meets the requirements of sections 3(a) and 3(b)(2)

of the Order.

8. Paperwork Reduction Act

In accordance with 44 U.S.C. 3507(d), OSM has submitted the

information collection and record keeping requirements of 30 CFR Part

874 to the Office of Management and Budget (OMB) for review and

approval.

Part 874 establishes land and water eligibility requirements,

reclamation objectives and priorities and reclamation contractor

responsibility. This proposal would add a new section at 30 CFR 874.17

titled ``AML Agency Procedures for Reclamation Projects Receiving Less

than 50 percent government funding.'' This section would require

consultation between the AML agency and the appropriate Title V

regulatory authority on the likelihood of removing the coal under a

Title V permit and concurrences between the AML agency and the

appropriate Title V regulatory authority on the AML project boundary

and the amount of coal that would be extracted under the AML

reclamation project. This section would also require compliance with 30

CFR Subchapter R and related provisions to insure that adequate

environmental safeguards are considered and followed during AML

reclamation project.

Need for and Use: OSM, State and Tribal regulatory authorities use

the information collected under 30 CFR Part 874 to ensure that

appropriate reclamation projects involving the incidental extraction of

coal are conducted under the authority of section 528(2) of SMCRA and

that selected projects contain sufficient environmental safeguards.

Respondents: The 26 State regulatory authorities and Indian Tribes

who will be reviewing and consulting on between 20 and 80 plus

reclamation projects involving the incidental removal of coal that OSM

and State regulatory authorities are expected to initiate each year.

Total Annual Burden: For each project OSM estimates that two

persons will need a total average of 16 hours to review information

during the consultation phase of section 874.17 (a)(1) and (2); that

two persons will need a total average of 4 hours to make the

determinations required during the concurrence phase of section

874.17(b)(1) and (2); that one person will need an average of 1 hour

for the file documentation requirement of section 874.17(c) and that

one person will need an average of 6 hours to determine the special

environmental and site reclamation requirements. The total burden for

each project is estimated to be 27 hours. The estimated total annual

burden for 30 CFR 874.17 ranges from a low of 540 hours to a maximum of

more than 2,160 hours, averaging 1,500 hours annually. Comments are

invited on:

(a) Whether the proposed collection of information is necessary for

the proper performance of OSM and State regulatory authorities,

including whether the information will have practical utility;

(b) The accuracy of OSM's estimate of the burden of the proposed

collection of information;

(c) Ways to enhance the quality, utility, and clarity of the

information to be collected; and

(d) Ways to minimize the burden of collection on the respondents.

Under the Paperwork Reduction Act, OSM must obtain OMB approval of all

information and record keeping requirements. No person is required to

respond to an information collection request unless the form or

regulation requesting the information has a currently valid OMB control

(clearance) number. The control number will appear in section 874.10.

To obtain a copy of OSM's information collection clearance request,

explanatory information, and related form, contact John A. Trelease at

(202) 208-2783 or by e-mail at [email protected].

By law, OMB must submit comments to OSM within 60 days of

publication of this proposed rule, but may respond as soon as 30 days

after publication. Therefore, to ensure consideration by OMB, you must

send comments regarding these burden estimates or any other aspect of

these information collection and record keeping requirements by July

27, 1998, to the Office of Management and Budget, Office of Information

and Regulatory Affairs, Attention: Interior Desk Officer, 725 17th

Street, NW, Washington, DC 20503.

9. National Environmental Policy Act

OSM has prepared a draft environmental assessment (EA) of this

proposed rule and has made a tentative finding that it would not

significantly affect the quality of the human environment under section

102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42

U.S.C. section 4332(2)(C). It is anticipated that a finding of no

significant impact (FONSI) will be made for the final rule in

accordance with OSM procedures under NEPA. The EA is on file in the OSM

Administrative Record at the address specified previously (see

ADDRESSES). The EA will be completed and a finding made on the

significance of any resulting impacts before we publish the final rule.

10. Clarity of This Regulation

Executive Order 12866 requires each agency to write regulations

that are easy to understand. We invite your comments on how to make

this proposed rule easier to understand, including answers to questions

such as the following: (1) Are the requirements in the proposed rule

clearly stated? (2) Does the proposed rule contain technical language

or jargon that interferes with its clarity? (3) Does the format of the

proposed rule (grouping and order of sections, use of headings,

paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be

easier to understand if it were divided into more (but shorter)

sections? (A ``section'' appears in bold type and is preceded by the

symbol ``Sec. '' and a numbered heading; for example, Sec. 874.17 AML

agency procedures for reclamation projects receiving less than 50

percent government funding.). (5) Is the description of the proposed

rule in the SUPPLEMENTARY INFORMATION section of this preamble helpful

in understanding the proposed rule? What else could we do to make the

proposed rule easier to understand?

Send a copy of any comments that concern how we could make this

proposed rule easier to understand to: Office of Regulatory Affairs,

Department of the Interior, Room 7229, 1849 C Street NW, Washington, DC

20240. You may also e-mail the comments to this address:

E[email protected]

11. Authors

D.J. Growitz and Danny Lytton, Office of Surface Mining Reclamation

and Enforcement, U.S. Department of the Interior, 1951 Constitution

Avenue, N.W., Washington, D.C. 20240.

List of Subjects

30 CFR Part 707

Highways and roads, Incidental mining, Reporting and recordkeeping

[[Page 34775]]

requirements, Surface mining, Underground mining.

30 CFR Part 874

Reclamation, Surface mining, Underground mining.

Dated: June 19, 1998.

Bob Armstrong,

Assistant Secretary, Land and Minerals Management.

For the reasons given in the preamble, OSM proposes to amend 30 CFR

Parts 707 and 874 as set forth below:

PART 707--EXEMPTION FOR COAL EXTRACTION INCIDENT TO GOVERNMENT-

FINANCED HIGHWAY OR OTHER CONSTRUCTION

1. The authority citation for Part 707 continues to read as

follows:

Authority: Secs. 102, 201, 501, and 528 of Pub. L. 95-87, 91

Stat. 448, 449, 467, and 514 (30 U.S.C. 1202, 1211, 1251, 1278).

2. In Sec. 707.5, the definition of Government-financed

construction is revised to read as follows:

Sec. 707.5 Definitions.

* * * * *

Government-financed construction means construction funded 50

percent or more by funds appropriated from a government financing

agency's budget or obtained from general revenue bonds. Funding at less

than 50 percent may qualify if the construction is undertaken as an

approved reclamation project under Title IV of the Act. Construction

funded through government financing agency guarantees, insurance,

loans, funds obtained through industrial revenue bonds or their

equivalent, or in-kind payments does not qualify as government-financed

construction.

3. Section 707.10 is revised to read as follows:

Sec. 707.10 Information collection.

Since the information collection requirement contained in 30 CFR

707.12 consists only of expenditures on information collection

activities that would be incurred by persons in the normal course of

their activities, it is exempt from the requirements of the Paperwork

Reduction Act (44 U.S.C.3501 et seq.) and does not require clearance by

OMB.

PART 874--GENERAL RECLAMATION REQUIREMENTS

4. The authority citation for Part 874 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq., as amended.

5. Section 874.10 is added to read as follows:

Sec. 874.10 Information collection.

(a) In accordance with 44 U.S.C. 3501 et seq., the Office of

Management and Budget (OMB) has approved the information collection

requirements of this part. The OMB clearance number is 1029-XXXX. This

information is needed to ensure that appropriate reclamation projects

involving the incidental extraction of coal are conducted under the

authority of section 528(2) of SMCRA and that selected projects contain

sufficient environmental safeguards. Persons must respond to obtain a

benefit.

(b) OSM estimates that the public reporting burden for this part

will average 27 hours per project, including time spent reviewing

instructions, searching existing data sources, gathering and

maintaining the data needed, and completing and reviewing the

collection of information. Send comments regarding this burden estimate

or any other aspect of these information collection requirements,

including suggestions for reducing the burden, to the Office of Surface

Mining Reclamation and Enforcement, Information Collection Clearance

Officer, 1951 Constitution Avenue, N.W., Washington, DC 20240; and the

Office of Management and Budget, Office of Information and Regulatory

Affairs, Attention: Interior Desk Officer, 725 17th Street, NW,

Washington, DC 20503. Please refer to OMB Control Number 1029-XXXX in

any correspondence.

6. Section 874.17 is added to read as follows:

Sec. 874.17 AML agency procedures for reclamation projects receiving

less than 50 percent government funding.

This section tells you, the AML agency, what to do when considering

an abandoned mine land reclamation project as government-financed

construction under part 707 of this chapter. This section only applies

if the level of funding for the construction will be less than 50

percent of the total cost because of planned coal extraction.

(a) Consultation with the Title V Regulatory Authority. In

consultation with the Title V regulatory authority, you must make the

following determinations:

(1) You must determine the likelihood of the coal being mined under

a Title V permit. This determination must take into account available

information such as:

(i) Coal reserves from existing mine maps or other sources;

(ii) Existing environmental conditions;

(iii) All prior mining activity on or adjacent to the site;

(iv) Current and historic coal production in the area; and

(v) Any known or anticipated interest in mining the site.

(2) You must determine the likelihood that nearby or adjacent

mining activities might create new environmental problems or adversely

affect existing environmental problems at the site.

(3) You must determine the likelihood that reclamation activities

at the site might adversely affect nearby or adjacent mining

activities.

(b) Concurrence with the Title V Regulatory Authority. If, after

consulting with the Title V regulatory authority, you decide to proceed

with the reclamation project, then you and the Title V regulatory

authority must concur in the following determinations:

(1) You must concur in a determination of the extent and amount of

any coal refuse, coal waste, or other coal deposits which can be

extracted under the part 707 exemption or counterpart State/Indian

Tribe laws and regulations.

(2) You must concur in the delineation of the boundaries of the AML

project.

(c) Documentation. You must include in the AML case file:

(1) The determinations made under paragraphs (a) and (b) of this

section;

(2) The information taken into account in making the

determinations; and

(3) The names of the parties making the determinations.

(d) Special requirements. For each project, you must:

(1) Characterize the site in terms of mine drainage, active slides

and slide-prone areas, erosion and sedimentation, vegetation, toxic

materials, and hydrologic balance;

(2) Ensure that the reclamation project is conducted in accordance

with the provisions of 30 CFR Subchapter R;

(3) Develop specific-site reclamation requirements, including

performance bonds when appropriate in accordance with State procedures;

and

(4) Require the contractor conducting the reclamation to provide

applicable documents that clearly authorize the extraction of coal and

payment of royalties.

(e) Limitation. If the reclamation contractor extracts more coal

than specified in paragraph (b)(1) of this section, the contractor must

obtain a permit under Title V of SMCRA.

[FR Doc. 98-16898 Filed 6-24-98; 8:45 am]

BILLING CODE 4310-05-P