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August 21, 2008

Office of Surface Mining Reclamation and Enforcement

Administrative Record

Room 252-SIB

1951 Constitution Avenue, NW.

Washington, DC 20240

RE: Docket ID OSM-2008-003

The following comments concerning the Office of Surface Mining
Reclamation and Enforcements (OSM) proposed rule change as precipitated
by revisions to the Surface Mining Control and Reclamation Act (SMCRA)
as contained in Docket ID OSM-2008-003 are provided by the Kansas
Department of Health and Environment (KDHE):

1\. As a general comment the KDHE would like to point out that there is
a fatal flaw in OSM logic concerning fee collection and minimum program
funding. On page 35246, OSM states that "Under the 2006 amendments
alternative, the cost to industry would be substantially greater,
approximately \$4.1 billion, but that amount in combination with the
\$2.8 billion in Treasury funds would be sufficient to reclaim all
Priority 1 and Priority 2 sites." This would be true if the states and
tribes were able to receive additional funding in the amount necessary
to complete all reclamation, but OSM has arbitrarily set a limit on the
amount of funds a state or tribe can receive in a year at \$3 million.
With an inventory of over \$200 million and only receiving \$3 million a
year the state of Kansas will not be able to abate the hazards
associated with all Priority 1 and 2 sites in this century. For OSM to
fulfill the intent of Congress with the passage of the Tax Relief and
Health Care Act of 2006, Pub. L. 109-432, they must acknowledge and
codify into law, that the minimum program funding level as established
by Congress is \$3 million a year "or greater", as provided for Section
402(g)(8)(A)of the Act. Without ensuring that the States and Tribes may
receive funding greater than \$3 million a year, the aforementioned
statement made by OSM is false and misleading.

2\. On page 35216, OSM indicates that minimum program funding will be
phased in over a four year period. This is contrary to the promise made
to the states and tribes by Congress in Section 402(g)(8)(A) of the Act,
that indicates minimum funding levels for any state or tribe will be at
least \$3 million annually. Nowhere in Section 401(f)(5) or in Section
402(g)(8)(A) does it state that during the phase in of funding, will the
distribution to a State or Tribe be below the \$3 million level promised
by Congress. In reducing the minimum program funding below the \$3
million per year level, OSM is breaking faith with the States and
Tribes.

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Docket ID OSM-2008-003

August 21, 2008

3\. On page 35223, OSM starts a long narrative on historic coal funds
and how they are determined. In the past, historic coal funds have been
determined based on the amount of coal mined in a State or Tribe
regardless of the number of hazards left following that mining. In an
attempt to bring some parity to the OSM program, you may want to begin
thinking of historic coal in terms of hazards left to be abated. After
30 years of working on AML inventories most states and tribes should
have a very good grasp of the number of hazards left in their
jurisdiction to remediate and historic coal funding may need to be
shifted from coal produced to hazards left by past coal mining. In this
way some of the minimum program states, who see no end in sight for the
remediation of their Priority 1 and 2 sites, may get some relief. As the
program is now set up, the State of Kansas has no hope of completing
reclamation on our inventory of over 300 sites with a price tag of over
\$200 million in the number of years allotted.

4\. §872.26 needs to include language that OSM may provide more than \$3
million to the minimum program States/Tribes in any given fiscal year.
This could be done by adding the words "or greater" to the end of the
first sentence in paragraph (a). This change in language would bring
this regulation into line with Section 402(g)(8)(A) which indicates that
"the Secretary shall ensure that the grant awards total not less than
\$3 million annually ..." The not less than language in Section
402(g)(8)(A) indicates that the Secretary may give a State/Tribe more
than the minimum program mandatory funding of \$3 million per year. In
later years, once more States/Tribes are certified, there will be more
Historic Coal Funds to distribute among the minimum program states with
large abandoned mine land (AML) inventories. The State of Kansas for
instance, with an AML inventory which exceeds \$200 million, would never
be able to complete reclamation on all the Priority 1 and 2 hazards in
the State by the end of fee collection in 2022 at \$3 million per year
minimum. In fact, only a small portion of the AML inventory would be
completed, leaving the citizens of Kansas in great danger of being
injured or even killed through some type of contact with one of these
hazards. The KDHE would need increased minimum program funding greater
than the \$3 million per year to remediate all the hazards associated
with past coal mining prior to 2022.

5\. In §872.27 (1) the words "or greater" should be added to the last
sentence in the paragraph. This will bring this regulation into line
with changes the KDHE is asking to be made in §872.26 that would allow
minimum program make up fund grants that are greater than \$3 million to
be awarded to the States/Tribes.

6\. §872.28 needs to include language that Priority 3 problems could be
corrected with minimum program make up funds in conjunction with
§874.13. Many of the Minimum Program States use materials from priority
3 spoil ridges to remediate Priority 1 and 2 highwalls during the
reclamation process. To do a better job, and to facilitate the overall
aesthetics of the reclamation project, States/Tribes should be allowed
to level Priority 3 spoil ridges in conjunction with abating Priority 1
and 2 highwalls. By doing this, the AML program can help leverage their
funds and get the best reclamation done for the lowest price.

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Docket ID OSM-2008-003

August 21, 2008

Historically, reclaiming Priority 3 spoil ridges in conjunction with
Priority 1 and 2 highwalls, using Secretary's discretionary funds, has
been allowed by OSM and it has saved considerable expense for the
State/Tribe programs. The States/Tribes have not abused this action in
the past and there is no reason to believe they would use minimum
program make up funds inappropriately now. The KDHE is not asking to do
stand alone Priority 3 problems using minimum program make up funds, but
we would like to have the flexibility to do a portion of a Priority 3
problem using these funds when we are prosecuting the work on a Priority
1 or 2 hazard. We believe this is well within the spirit of P.L. 109-432
which amended SMCRA in 2006 and is a good way to spend federal funds as
well as being very advantageous to the AML Programs.

7\. §874.13 (b) needs to include language that funds from §872.26 and
§872.29 can be used to reclaim Priority 3 problems in conjunction with
Priority 1 and 2 hazards. This would make it permissible to use minimum
program make up funds and prior balance replacement funds on the
abatement of Priority 3 problems that are done in conjunction with
Priority 1 and 2 hazards. These changes would also bring this regulation
into line with changes we are asking to be made to §872.28.

8\. §875.16 has the phrase "of this chapter" duplicated and one of them
may be deleted.

9\. §886.16 (e) and (e)(2) needs to have the references to design work
not being started until a coal problem is entered into the AML inventory
taken out of this portion of the regulation. There are many instances
when AML Programs can receive substantial savings if design work is done
prior to or in conjunction with a coal problem being entered into
Abandoned Mine Land Inventory System. The State of Kansas is presently
working on an AML project that includes the remediation of highwalls in
close proximity to public roads. As work progressed on this project, an
unstable berm on an impoundment was identified. In an attempt to save
money, the State AML program wanted to reconstruct the unstable berm in
conjunction with the ongoing highwall project. Since the Problem Area
Description (PAD) contained a new key word, dangerous impoundments, it
had to be added to AMLIS before the State could fund the project.
However, by proceeding on the engineering design work while work was
being done to add it to the inventory, the state would be able to save
funds by constructing the new berm in conjunction with the ongoing
project. Therefore, there are times when it is advantageous for
States/Tribes to conduct design work on a problem area before it is
entered into AMLIS.

Thank you for the opportunity to respond to these proposed regulations.

Sincerely,

Murray J. balk, Chief

Surface Mining Section