![](media/image1.png){width="1.520138888888889in"
height="0.8256944444444444in"}**Strip-mine Issues Committee**

224 S. Main Street, Suite 1 • PO Box 479

Lake City, TN 37769 • www.socm.org

865-426-9455 • FAX 865-426-9289

August 10, 2008

Mr. Danny Lytton, Chief,

Reclamation Support Division

1951 Constitution Ave., NW.,

Washington, DC 20240;

RE: RIN 1029-AC56 \[Docket ID: OSM-2008-0003\]

Dear Mr. Lytton,

The Strip-mine Issues Committee of Save Our Cumberland Mountains (SOCM)
appreciates the opportunity to submit these written comments on RIN
1029-AC56, proposed rule changes to the Abandoned Mine Reclamation Fund
(Fund) and the Abandoned Mine Land (AML) program. We ask that they
become part of the Administrative Record.

The current Tennessee AML Reclamation Program (see copy attached to this
letter) describes the Federal Abandoned Lands Reclamation Program and
governs the procedures for reclaiming lands and waters affected by past
mining practices using the Federal Abandoned Mine Reclamation Fund. The
goals and objectives of this program include protection of public health
and safety from the adverse effects of past mining practices, the
avoidance to the fullest extent practicable of significant adverse
impacts to fish or wildlife species or their habitats as a result of
reclamation activities, and control of toxic runoff caused by past
mining practices.

We would not support any proposed changes that would interfere with any
goals and objectives of the Tennessee AML program. To this end, we have
both general and specific comments on the proposed rule changes.

**General Comments**

[Minimum Program Status and Funding for Tennessee]{.underline}

We generally support the rule changes that will allow minimum program
status and more funding for the Tennessee AML program.

[Remining]{.underline}

SOCM has taken a strong position against a broader interpretation of
remining as an effective way to reclaim abandoned mine lands (AML).
Reclamation in the name of remining has had some unfortunate
consequences in Tennessee. Serious sedimentation, AMD and other
significant disturbances of hydrologic balance during remining
operations by Skyline Coal Company, Rith Energy and, more recently,
National Coal Corporation will serve as examples.

SOCM\'s Stripmine Issues Committee recently submitted comments on the
proposed Remining Incentives rule (OSM-2007-0016/RIN 1029-AC57). In our
comments we opposed any changes that would broaden the interpretation of
remining beyond its scope of reclaiming coal refuse. It is SOCM's
position that Tennessee\'s current AML Reclamation Program achieves
reclamation of AML surface areas that burden or threaten human and
natural resources far better than "remining" that continues to adversely
impact land, water, people and wildlife on or near AML sites.

[Inadequate PEIS]{.underline}

Any proposed standards and procedures for coal reclamation fee, the
Fund, and the AML program need careful analysis in terms of impacts upon
Tennessee's efforts to address past surface mining operations. We do not
believe that this is possible using the programmatic EIS that is in
force: *Comprehensive Impacts of Permit Decisions Under the Tennessee
Federal Program (1985)*.

By OSM\'s own definition in 30 U.S.C. 1201, Section 101(c): "many
surface mining operations result in disturbances of surface areas that
burden and adversely affect commerce and the public welfare by
destroying or diminishing the utility of land for commercial,
industrial, residential, recreational, agricultural, and forestry
purposes, by causing erosion and landslides, by contributing to floods,
by polluting the water, by destroying fish and wildlife habitats, by
impairing natural beauty, by damaging the property of citizens, by
creating hazards dangerous to life and property by degrading the quality
of life in local communities, and by counteracting governmental programs
and efforts to conserve soil, water, and other natural resources...."

Mining methods such as mountaintop removal, discoveries from aquatic
science, an ill-considered USFWS biological opinion that does not
protect wildlife, and new challenges around clean, adequate water
supplies and green energy are just a few of the developments that render
the 1985 PEIS obsolete. AML sites in Tennessee are very complex, and, in
general, we would not support any proposed revision of regulations that
would further undermine preparation of environmental assessments (EA) or
findings of no significant impact (FONSI) or environmental impact
statements (EIS). Generally speaking, we would see most rule changes
affecting the Tennessee program to be objectionable to the extent they
are grounded in the assumptions of the outdated 1985 PEIS.

**Specific Concerns**

[Part 700---General]{.underline}

*Definitions (Sec. 700.5)*

Our primary concern is to what extent the proposed changes may still
lead to misinterpretations and inadequate decision making regarding the
best method to reclaim an AML site, i.e. *reclamation* versus
*remining*.

[Part 773\--Requirements for Permits and Permit Processing]{.underline}

*Unanticipated Events or Conditions at Remining Sites
\[Sec.773.13(a)(2)\]*

We oppose an open exemption from the Section 510(c) permit-block
sanction for remining operations.

[Part 816\--Permanent Program Performance Standards\--Surface Mining
Activities]{.underline}

R*evegetation: Standards for Success (Sec. 816.116)*

We do not support the concept in section 515(b)(20)(B) that provided
incentives for certain eligible remining operations in the form of
reduced revegetation responsibility periods (2 years in the East and 5
years in the West). Any revision of Section 816.116 should allow for
conditional requirements that reflect changes in seasonal averages due
to extreme wet or dry conditions within the two or five year time frame.

[Part 817\--Permanent Program Performance Standards\--Underground Mining
Activities]{.underline}

*Revegetation: Standards for Success (Sec. 817.116)*

For the reasons stated above, we do not support the language proposed
for this section unless it allows for conditional requirements that
reflect changes in seasonal averages due to extreme wet or dry
conditions within the two or five year time frame.

[Part 874\--General Reclamation Requirements]{.underline}

*Reclamation Objectives and Priorities \[Section 874.13(a)\]*

Definition of the term \"adjacent\" should include all disturbances by a
single mining operation. If there is hydrologic connectivity with sites
that might be distant, those should be included in the definition of
\"adjacent.\"

[Part 876\--Acid Mine Drainage Treatment and Abatement
Program]{.underline}

AMD abatement and treatment should be included in the types of Priority
3 reclamation projects, and subject to the \"adjacent to\'\' and \"in
conjunction with\'\' provisions discussed in Sec. 874.13. Definition of
the term \"adjacent\" should include all disturbances by a single mining
operation. If there is hydrologic connectivity with sites that might be
distant, those should be included in the definition of \"adjacent.\"

[Part 882\--Reclamation on Private Land]{.underline}

*Liens (Sec.882.13)*

We support protection of surface rights owners who are not involved in
the mining operation by removal of authority in section 408(a) of SMCRA,
paragraph (a)(1), to place liens against property for the sole reason
that the owners purchased the property after May 2, 1977 \[30 U.S.C.
1238(a)\]. We support replacement of \"shall\'\' with \"must\'\' in
accordance with plain English.

[Part 884\--State Reclamation Plans]{.underline}

*Definitions (Sec. 884.5)*

We support the interpretation that the 2006 amendments now mandate that
Tennessee and Missouri receive minimum program make up funding under
section 402(g)(8)(A), and that they should receive grants in spite of
the section 405(c) requirement to have an approved State regulatory
program under section 503 of SMCRA. We agree with the idea to clarify in
Sec. 884.11 that so long as Tennessee and Missouri maintain an approved
reclamation program, they may receive grants and modify their
reclamation plans as long as the funds are necessary according to
section 402(g)(8)(A) of SMCRA.

*State Eligibility (Sec. 884.11)*

We support the interpretation that Tennessee and Missouri are exempt
from the requirement to be certified. We support the clarification in
Part 884 (in light of changes to Part 872) that the requirement to
maintain an approved reclamation plan continues to apply to all States
and Indian tribes, regardless of certification status under section
411(a) of SMCRA.

Thank you for consideration of our comments.

Sincerely,

Cathie Bird, Chair

Strip-mine Issues Committee

Attachment: Tennessee AML Reclamation Program

RULES OF THE TENNESSEE DEPARTMENT OF CONSERVATION

DIVISION OF SURFACE MINING

CHAPTER 0400-1-24

ABANDONED MINE LANDS RECLAMATION PROGRAM

TABLE OF CONTENTS

0400-1-24-.01 Scope 0400-1-24-.09 Methods and Procedures for

0400-1-24-.02 Objectives Acquisition and Disposition of

0400-1-24-.03 Responsibilities Acquired Land Services Filing,

0400-1-24-.04 Definitions Satisfaction

0400-1-24-.05 Project Development Procedures 0400-1-24-.10 Cost of
Acquisition/Condemnation

0400-1-24-.06 Lien Determination. 0400-1-24-.11 Development of Project
Specifications

0400-1-24-.07 Rights of Entry 0400-1-24-.12 Procurement of Reclamation

0400-1-24-.08 Lands Eligible for Acquisition 0400-1-24-.13 Contractor
Default

0400-1-24-.14 Public Participation

0400-1-24-.01 SCOPE.

This regulation describes the Federal Abandoned Lands Reclamation
Program and governs the procedures for reclaiming lands and waters
affected by past mining practices using the Federal Abandoned Mine
Reclamation Fund.

Authority: T.C.A. § 59-8-327. Administrative History: Original rule
filed October 26,1982; effective January 14, 1983.

0400-1-24-.02 GOALS AND OBJECTIVES.

\(1\) The primary objective of the Abandoned Lands Reclamation Program
is the protection of public health, safety, general welfare and property
from the adverse effects of past mining practices.

\(2\) Socio-Economic Objectives include:

\(a\) the utilization, whenever possible, of the services of local
contractors for reclamation work.

\(b\) the improvement of the local forest and agricultural economy by
putting abandoned mine land back into production.

\(c\) the preservation of historical, cultural, and archaeological
resources that have been affected or hreatened by past mining practices
by applying reclamation treatment that is compatible with these
resources.

\(3\) Recreation Objectives include:

\(a\) the restoration of recreational areas adversely affected by past
mining to as near their undisturbed condition as possible.

\(b\) the coordination of reclamation activities and project areas with
those of other state and federal agencies concerned with recreational
areas affected by abandoned mine lands.

\(4\) Flora and Fauna Objectives include:

\(a\) the restoration or enhancement of the adversely affected habitats
of plants and animals to a condition equal to or greater than their
premining condition, with particular attention to the habitats of
endangered or threatened species of plants and animals.

\(b\) the coordination of abandoned mine land reclamation activities
with the Tennessee Wildlife Resources Agency.

\(c\) the avoidance to the fullest extent practicable of any significant
adverse impacts to fish or wildlife species or their habitats as a
result of reclamation activities.

\(5\) A major objective of the AML Program will be to control toxic
runoff that is a result of past mining practices.

Authority: T.C.A. § 59-8-327. Administrative History: Original rule
filed October 26,1982; effective January 14, 1983.

0400-1-24-.03 RESPONSIBILITIES. The Division shall:

\(1\) Identify all abandoned mine land problem areas in the Tennessee
coalfields.

\(2\) Conduct a site investigation on those problem areas that are
eligible for further development.

\(3\) Rank and select reclamation projects.

\(4\) Conduct a site evaluation including a proposal of reclamation
alternatives.

\(5\) Prepare an environmental assessment for each project site.

\(6\) Select a preferred reclamation alternative.

\(7\) Make a lien determination on the project site as required by
T.C.A. Section 59-8-325.

\(8\) Obtain a right of entry for reclamation.

\(9\) Apply for the administrative and construction grants to carry out
the proposed projects.

\(10\) Procure reclamation contractors upon receipt of grant.

\(11\) Monitor all reclamation activities.

\(12\) Prepare a final report on all projects.

\(13\) Maintain project sites until a stable condition is achieved.

Authority: T.C.A. § 59-8-327 and 59-8-325. Administrative History:
Original rule filed October 26, 1982;

effective January 14, 1983.

0400-1-24-.04 DEFINITIONS. For the purposes of these rules, the
following definitions shall apply in

addition to those contained under rule 0400-1-1-.03.

\(1\) Adverse effects- those effects of coal mining practices which are
harmful to human health, safety,

general welfare or the environment.

\(2\) Extreme danger-a condition that could reasonably be expected to
cause substantial physical harm to persons, property, or the environment
and to which persons or improvements on real property

are currently exposed.

\(3\) Public facilities- publicly owned utilities, roads, recreation and
conservation facilities or any other such publicly owned facilities
which provide a service or commodity to the general public.

\(4\) Publicly owned land- any land which is financed by public funds
and managed for the benefit or use of the general public.

\(5\) Research and demonstration project-any projects relating to the
development of surface mining

reclamation and water quality control program methods and techniques.

\(6\) Restoration- the act of putting something into a prior condition
or as near that prior condition as possible.

\(7\) Eligible lands and waters-lands and waters eligible for
reclamation under this program (whether on private, state or federal
property) are defined as follows:

\(a\) Lands and water are eligible for reclamation activities if

1\. They were mined or affected by mining operations which occurred
prior to August 3,1977, and were left or abandoned in either an
unreclaimed or inadequately reclaimed condition; and 2. There is no
continuing responsibility for reclamation by the operator, permittee, or
agent of the permittee under statutes of the State or Federal
Government. Bond forfeiture will render lands or water ineligible to the
extent that the amount collected under the forfeiture is sufficient to
pay the total cost of the necessary reclamation. In cases where the
amount collected under the forfeited bond is insufficient to pay the
total cost of reclamation, the additional funding necessary may be
sought under the provisions of 30 CFR 886 and 888.

\(b\) Lands and water which were mined or affected by mining for
minerals and materials other than coal shall be eligible for reclamation
activities under a State or Indian Reclamation Program if the Director
finds in writing that

1\. The conditions of paragraph (a) of this section have been met;

2\. The reclamation has been requested by the Governor;

3\. All reclamation with respect to abandoned coal mine land and water
has been accomplished within the State or Indian lands in which they are
located or the reclamation is necessary for the protection of the public
health and safety; and

4\. Moneys allocated to the State or Indian tribe under 872.1 l(b)(2)
and (3) are available for the work.(30 CFR 874.12)

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October 26, 1982; effective January 14, 1983.

0400-1-24-.05 PROJECT DEVELOPMENT PROCEDURES. This regulation outlines
in chronological

order the entire process of reclamation project development from initial
site identification through selection of preferred alternative.

\(1\) Adversely affected areas are located and identified in the
following ways:

\(a\) From Section 12 of The Tennessee Reclamation Plan For Lands and
Waters Affected By

Past Mining.

\(b\) From problem and site specific information gathered through field
investigations conducted under the Abandoned Lands National Inventory
(Tennessee).

\(c\) From information supplied by other federal, state and local
agencies.

\(d\) From individuals who may be adversely affected by past mining
operations.

\(e\) From information supplied by field inspection and technical
personnel within the Division of Surface Mining.

\(2\) Upon identification of a possible adversely affected area, an on
site visit by Division personnel

will be initiated to determine eligibility of a potential project
including identification of landowners and problem awareness by local
residents.

\(3\) Investigative Report

\(a\) If it is determined at the time of the initial site visit and
evaluation that a particular problem area is eligible for further
development, an Investigative Report is initiated which contains such
background information as project area location; mining history;
existing adverse impacts; proposed correction alternatives; and a
discussion of the possible impacts of the proposed corrective actions.

\(b\) This Investigative Report should also contain a letter from a
Department of Conservation attorney rendering an opinion as to the
eligibility of a particular project for reclamation activities.

\(c\) A complete identification will also be made of principal and
adjacent landowners (plat map of project area), including interviews
with identified landowners and other adjacent residents in order to
solicit overall problem awareness and participation.

\(4\) Upon completion of detailed site evaluations, Potential Project
Investigative Reports are submitted

to the Office of Surface Mining, Abandoned Lands Section for further
evaluation. If, at this stage,

approval is granted by O.S.M. and the State, the project proceeds to the
\"A-95\" review through the State Clearinghouse.

\(5\) The purpose of this sub-section is to establish the policies and
procedures to be utilized in the ranking and selection of potential
reclamation projects which have been identified and evaluated initially
on a site by site basis. Those procedures include:

\(a\) Grouping according to the priorities listed in 30 CFR, 874.13,
once a number of potential projects have been initially identified and
evaluated.

\(b\) Project evaluation and scoring within a given priority group using
the Project Evaluation Matrix (Section 4, Subsection III, Tennessee
Reclamation Plan For Lands and Waters Affected By Past Mining).

\(c\) Determination of project preference based on the score derived
from the Project Evaluation Matrix.

\(6\) A detailed \"pre-engineering\" design plan will be developed,
either in-house by Division Personnel or by contract. This plan will
include a collection of technical data on such parameters as soils,
hydrology, ground water conditions, flora and fauna, geology, threatened
or endangered species, and enough additional information as is
reasonably necessary to determine what reclamation alternatives would be
feasible to correct the problems related to an individual project.

\(7\) An environmental assessment shall be conducted after a
pre-engineering plan has been developed

for a project.

\(a\) Each environmental assessment shall include the following
information:

1\. Summary,

2\. Purpose of and need for the action,

3\. Alternatives for solving the problem,

4\. Description of the affected environment,

5\. Environmental consequences,

6\. Extent of consultation and coordination with others.

\(8\) When all phases of project investigation, evaluation and
prioritization have been completed, and a

preferred alternative has been selected through evaluation and public
input, a final decision document will be prepared. This document will
identify the preferred alternative and the rationale behind its
selection, which will include at a minimum the following:

\(a\) impact discussions from the environmental assessment versus
suggested alternatives,

\(b\) all public concerns and the State\'s response,

\(c\) cost considerations,

\(d\) possible engineering and construction problems,

\(e\) all expected benefits resulting from the selected alternative
versus those alternatives not selected,

\(f\) the possible adverse impacts which may be encountered during
construction under the selected alternative.

Authority: TCA. § 59-8-327. Administrative History: Original rule filed
October 26,1982, effective January

14, 1983.

0400-1-24-.06 LIEN DETERMINATION, FILING, SATISFACTION. Tennessee lien
policy in

respect to the Abandoned Mine Program provides that no windfall profits
should inure to the benefit of private landowners as a result of
reclamation work on their land. To that effect, the following provisions
shall apply:

\(1\) Applicability of Lien.

\(a\) If the property information data indicates that the surface owner
or owners acquired title prior to May 2, 1977, and they did not consent
to, participate in, or exercise control over the mining operation which
necessitated the reclamation, then a lien is not appropriate.

\(b\) If the property information discloses that the landowner acquired
title after May 2, 1977, or if the owners consented to, participated in,
or exercised control over the mining, then a lien should be considered.

\(2\) Amount of Lien\--liens shall be based on the results of property
value increases, as determined by Before and After Appraisals, prepared
by qualified contract appraisers and reviewed by qualified review
appraisers. Appraisals for liens should be notarized.

\(3\) Preparation and Filing of Lien\--if a lien is to be filed, the
State shall file within six months after completion of the reclamation
work which includes a compilation of all cost data on the project as
well as notarized copies of the appraisals. The amount reported by the
appraisals as the increase in value shall constitute the lien to be
recorded. This package along with the prepared legal document that
constitutes a lien will be submitted to the Attorney General\'s office
for review within three months after completion of reclamation work. The
lien should be filed in the Office of the Court Clerk having the
responsibility for recording judgments against land in the jurisdiction
where the land lies.

\(a\) Within 60 days of lien date filing the owner may petition for a
determination of market value attributable to the reclamation. Any
aggrieved party may appeal in the manner provided by local law.

\(b\) Preparation and filing of liens (releases, renewals, extensions,
etc.) shall be made by a Department of Conservation attorney with the
concurrence of the State Attorney General.

\(4\) Satisfaction of Liens.

\(a\) Liens shall be satisfied at the time of transfer of ownership or
earlier at the election of the owner. Liens shall be renewed and
extended as required.

\(b\) Satisfaction of liens can be in the form of total payment or can
be in installments. If payments in satisfaction of lien cover only a
portion of the lien amount, the lien shall remain in full force and
effect on the land records until satisfaction in full is made.

Authority: T.C.A. § 59-8-325. Administrative History: Original rule
filed October 26,1982; effective January 14, 1983.

0400-1-24-.07 RIGHTS OF ENTRY.

\(1\) Entry for Studies or Exploration: The State or its agents,
employees, or contractors shall have the right to enter upon any
property for the purpose of conducting studies or exploratory work to
determine the existence of the adverse effects of past mining and the
feasibility of projects for restoration, reclamation, abatement, control
or prevention of such adverse effects. Such entry shall be construed as
an exercise of the police power for the protection of public health,
safety, and general welfare, and shall not be construed as an act of
condemnation of property nor trespass

thereon.

\(2\) Entry for Reclamation: When the State\'s project assessment
includes a finding that lands or waters have been adversely affected by
past coal mining practices and the effects constitute a danger to public
health, safety or 14 general welfare, the State may elect to proceed
with reclamation. The State shall then attempt to obtain a voluntary
lien or non-lien consent, as applicable, from the affected landowners.

\(a\) The State of Tennessee, its agents, employees, or contractors may
enter upon land to perform reclamation activities, if the consent of the
owner cannot be obtained or the owners of the land are not readily
available, and the following requirements are met:

1\. Land or water resources have been adversely affected by past coal
mining practices; and

2\. The adverse effects are such that it would be in the public interest
to take action to restore, reclaim, abate, control, or prevent such
adverse affects.

\(b\) The State shall give notice of its intent to enter for purposes of
conducting reclamation at least 30 days before entering upon the
property as follows:

1\. Notice shall be in writing and shall be mailed, return receipt
requested to the owner,

if known, with a copy of the Finding of Fact.

2\. If the owner is unknown, or if the current mailing address is
unknown, notice shall be posted in one or more places on the property
and advertised once in a local newspaper.

3\. The posted notice and newspaper advertisement shall include a
statement specifying where the Findings of Fact may be inspected or
obtained.

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October 26,1982; effective January 14, 1983.

0400-1-24-.08 LANDS ELIGIBLE FOR ACQUISITION. The State of Tennessee may
acquire any

property which is adversely affected by past coal mining practices if
the Commissioner of the Department of Conservation determines that
acquisition of such land is necessary to successful reclamation and;

\(1\) That the acquired land will serve recreation, conservation or
reclamation purposes; or

\(2\) That permanent facilities such as a treatment plant or relocated
stream channel will be constructed on the land for the restoration,
reclamation, abatement, control or prevention of the adverse effects of
past mining practices; or

\(3\) That acquisition of coal refuse disposal sites and all coal refuse
thereon will serve the purposes of this part or that public ownership is
desirable to meet emergency situations and prevent recurrences of the
adverse effects of coal mining practices; or

\(4\) That the state may acquire property or accept property transferred
by the Secretary of the Department of Interior if either is an integral
and necessary element of an economically feasible plan for the project
to construct or rehabilitate housing for persons disabled as the result
of employment in the mines or work incidental thereto, persons displaced
by acquisition of land, or persons dislocated as the result of adverse
effects of coal mining practices which constitute an emergency, or
persons dislocated as the result of natural disasters or catastrophic
failures from any cause; or

\(5\) That land or interests in land needed to fill voids, seal
abandoned tunnels, shafts and entryways, or

reclaim surface impacts of underground or surface mines may be acquired
by the state by purchase, donation, or transfer if found that such
interests in the land are necessary for reclamation work planned or the
post reclamation use of the land.

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October 26,1982; effective

January 14, 1983.

0400-1-24-.09 METHODS AND PROCEDURES FOR ACQUISITION AND DISPOSITION OF

ACQUIRED LAND.

\(1\) The State of Tennessee may acquire land for the previously
mentioned reasons by either

acquisition, donation or transfer. When all reasonable effort to
purchase land or interests in land

from a willing seller fail, such rights may be acquired by condemnation.

\(2\) Procedures for all methods of acquisition will generally follow
those established by Facilities

Management, Land Acquisition Section, Tennessee Department of
Conservation as listed below:

\(a\) Complete information regarding survey and legal description is
submitted to Land Acquisition Working Sub-Committee of State Building
Commission. Then the Working Sub-Committee presents request with its
recommendations to Land Acquisition Sub-Committee of Building
Commission. After Sub-Committee approval request may be then placed on
Building Commission Agenda for their approval. After Building Commission
approval, invitations for bids on title work are issued, and then
awarded on lowest bid

consistent with title company\'s ability to perform as required. After
title commitment is obtained, appoint and execute agreements with
appraisers. Next, appraisal review with documented establishment of fair
market value. Commence option contract negotiations at fair market
value. Present signed option to Building Commission for approval unless
prior approval has been obtained. Prepare warranty deed and closing
statement.

\(b\) Donations, as necessary for reclamation activities, to the State
of Tennessee should be consistent with objectives and requirements of
the Abandoned Mined Lands Program.

\(3\) Where land acquired is considered suitable for industrial,
commercial, residential or recreational

development, the State, when authorized by O.S.M., may sell such land by
public sale under a system of competitive bidding, at not less than the
market value.

\(a\) The State shall publish a notice which describes the proposed
disposition of the land in a newspaper of general circulation within the
area where the land is located for a minimum of four successive weeks.
The notice shall provide for at least 30 days of public comment and it
shall state where copies of plans for disposition of the land may be
obtained or reviewed and the address to which comments or plans should
be submitted. The notice shall also state that a public hearing will be
held if requested by any person.

\(b\) The State shall hold a public hearing if requested as a result of
a public notice and the State may determine that a hearing is
appropriate even if a request has not been received.

\(c\) Hearings shall be scheduled to conform with 30 CFR 879.15.

\(d\) Following hearings the State shall make a written finding that the
disposal of reclaimed lands is appropriate, considering all comments
received, and that the disposal is consistent with State and Federal
rules and laws which apply.

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October 26,1982; effective -January 14, 1983.

0400-1-24-.10 COST OF ACQUISITION/CONDEMNATION.

\(1\) Source of Funds: The purchase price, in the case of a negotiated
acquisition, or the damages as

finally determined in the case of acquisition by condemnation, and the
necessary expenses incidental thereto, shall be paid from the Tennessee
Surface Mine Reclamation Fund, the Federal Abandoned Mine Reclamation
Fund with the approval of the Secretary of Interior, or from
appropriations made by the General Assembly for such purpose.

\(2\) Determination of Price: The State shall acquire title by direct
purchase through negotiations based

on an independent fee appraisal of the property. The purchase price paid
shall be consistent with the fair market value of the interests acquired
as adversely affected by past coal mining practices when applicable. In
the case of acquisition by condemnation, the purchase price shall also
be based on an independent fee appraisal to determine fair market value
as well as the necessary expenses incidental thereto.

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October 26, 1982; effective

January 14, 1983.

0400-1-24-.11 DEVELOPMENT OF RECLAMATION PLAN SPECIFICATIONS. This
regulation

outlines the procedures on development and procurement of reclamation
specifications for those projects that involve comprehensive reclamation
practices.

\(1\) Upon selection of a preferred reclamation alternative for a given
project an outline of required

specifications shall be constructed. Items for consideration include:

\(a\) An existing site map.

\(b\) Earthwork specifications.

1\. Mobilization.

2\. Construction Staking.

3\. Clearing and Grubbing.

4\. Backfill.

5\. Sediment Structures.

6\. Grading.

7\. Diversion Ditches.

8\. Special Conditions.

\(c\) Water treatment and disposal specifications.

\(d\) Revegetation specifications.

\(e\) Bid schedule.

\(f\) A proposed grade map.

\(g\) Any other special conditions.

\(2\) Upon completion of the specification outline, the specifications
will be constructed, either by inhouse state personnel, other government
agency personnel, consultants, or a combination of the

above.

\(3\) The specifications will then be utilized in the procurement of
reclamation contractors and in the

actual reclamation process.

Authority: T.C.A.§ 59-8-324. Administrative History: Original rule filed
October 26,1982, effective January 14, 1983.

0400-1-24-.12 PROCUREMENT OF RECLAMATION SERVICES. Once reclamation
specifications

have been completed for a project, a reclamation contractor will be
procured by one of the following methods.

\(1\) Requisitioning Process-when services to be procured are
appropriate for bidding and are subject to

uniform and impersonal criteria for bid evaluation, the Department of
General Services, Purchasing Division, All procure those services
through the normal requisitioning process. All requisitioning processes
will comply with T.C.A. Section 4-330.

\(2\) Request for Proposal-This procedure shall be followed where
justification does not exist for the use of either verbal competitive
negotiation or sole source negotiation. It involves the written
solicitation of proposals from potential vendors. All requests for
proposals will comply with the Rules of the Department of Finance and
Administration Section 0620-3-3-.04

\(3\) Verbal Competitive Negotiation-This procedure involves the verbal
negotiation of the terms of a

contract, and it shall be performed in a manner which maximizes free and
open competition among vendors. All verbal competitive negotiation
procedures will comply with the Rules of the Tennessee Department of
Finance and Administration Section 0620-3-3-.04.

\(4\) Sole Source Negotiation-This procedure involves the verbal
negotiation of a contract with a single

vendor. It shall be performed in a manner which results in the most
economical arrangement for the State. All sole source negotiation
procedures will comply with the Rule of the Tennessee department of
Finance and Administration Section 0620-3-3-.04.

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October26,1982; effective January 14, 1983.

0400-1-24-.13 CONTRACTOR DEFAULT.

\(1\) If a contractor fails in a timely and proper manner his
obligations under a contract with the Division of Surface Mining, or if
the contractor violates any of the terms of a contract, the Commissioner
shall have the right to immediately terminate this contract and withhold
payments in excess of fair compensation for work completed.

\(2\) The contractor shall not be relieved of liability to the State for
damages sustained by any breach of this contract by the contractor.

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October 26,1982; effective January 14, 1983.

0400-1-24-.14 PUBLIC PARTICIPATION. Public participation, including
input from individual citizens and landowners, professional and social
organizations, civic groups, local officials, and other state and
federal agencies shall be included in each phase of project development.

\(1\) Public input shall play an important role in the identification of
specific problem areas.

\(2\) During the initial site evaluation phase, sufficient public input
will be gathered to determine the

public awareness of the problem and to answer the following questions:

\(a\) Does an extreme danger to the public exist?

\(b\) Are there adverse effects on the public?

\(c\) Are there impacts to public or private property?

\(3\) During the intensive site evaluation phase, more detailed input
shall be solicited from landowners

and local residents along with evidence of project support by the
community.

\(4\) Public input acquired during the intensive site evaluation phase
will be utilized in the project

ranking and selection process referred to in Regulation 0400-1-24-.05.

\(5\) The environmental assessment will incorporate public input into
the development of the various

reclamation alternatives.

\(6\) In depth public input will be solicited in the selection of the
preferred reclamation alternative.

This shall be accomplished by;

\(a\) placing a public notice in the newspaper of greatest general
circulation in the proposed project area,

\(b\) conducting a public meeting should a particular proposed project
exhibit extensive adverse impacts to a large number of people or a
community; or if the project presents conflicts (post reclamation land
use, ongoing programs, etc.); or high costs.

\(7\) In the event a particular project is larger and more complex than
most, with high public interest,

the Commissioner may determine it necessary to extend public
participation through project engineering design and construction.

\(8\) Land acquired and authorized for disposition may be sold by public
sale under a system of competitive bidding. Disposition shall
necessitate;

\(a\) placing a public notice in the newspaper of greatest general
circulation in the area where the land is located,

\(b\) conducting a public hearing if requested as a result of a public
notice or if determined that hearing is appropriate even though a
request has not been received.

\(9\) Public participation will also be included in determining
post-reclamation benefits and in developing a maintenance plan when
necessary.

Authority: T.C.A. § 59-8-324. Administrative History: Original rule
filed October 26, 1982; effective January 14, 1983.

June, 2000 (Revised)