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GUIDANCE ON THE BIPARTISAN INFRASTRUCTURE LAW 

ABANDONED MINE LAND GRANT IMPLEMENTATION 

 

I. OVERVIEW

The Bipartisan Infrastructure Law (BIL) (Pub. L. No. 117-58), also known as the Infrastructure 

Investment and Jobs Act, was enacted on November 15, 2021. The BIL authorized and appropriated

$11.293 billion for deposit into the Abandoned Mine Reclamation Fund administered by the Office of 

Surface Mining Reclamation and Enforcement (OSMRE). Of the $11.293 billion appropriated OSMRE 

will distribute approximately $10.873 billion1 in BIL Abandoned Mine Land (AML) grants to eligible 

States and Tribes on an equal annual basis—approximately $725 million a year—over a 15-year 

period.2

 In accordance with Executive Order 14008, States and Tribes are encouraged to prioritize 

projects that equitably provide funding under the Justice40 Initiative towards meeting the goal that 40 

percent of the overall benefits flow to disadvantaged communities.3 BIL funds will expand the AML 

Reclamation Program to meet the priorities described in the BIL and the Surface Mining Control and 

Reclamation Act of 1977 (SMCRA), as amended. States and Tribes may use BIL AML grants to 

address coal AML problems, including: 

• Hazards resulting from legacy coal mining that pose a threat to public health, safety, and the 

environment within their jurisdictions (including, but not limited to, dangerous highwalls, waste 

piles, subsidence, open portals, features that may be routes for the release of harmful gases, acid 

mine drainage, etc.); 

• Water supply restoration (infrastructure); and

• Coal AML emergencies.

The purpose of this guidance document is to provide State/Tribal AML Programs with overarching 

information concerning the interpretation, project eligibility, and priorities for the use of BIL AML 

1 Section 40701 of the BIL authorizes $11.293 billion for deposit into the AML Fund, and Division J, Title VI appropriates and apportions 

the funds in the following ways: up to 3% for OSMRE Operations, 0.5% for Office of Inspector General (OIG) Operations, and $25 

Million for OSMRE to provide States and Tribes financial and technical assistance in making amendments to the inventory system for 

documenting eligible lands and waters. The remaining funds, approximately $10.873 billion, will be distributed to eligible States and 

Tribes as BIL AML grants. 

2 Section 40701(c) of the BIL limits the use of BIL AML grants to the activities described in subsections (a) and (b) of section 403 and 410 

of SMCRA. OSMRE will ensure that the annual grants provided to a State or Tribe do not exceed its estimated cost to reclaim its 

remaining coal AML problems and water supply restoration, as documented in the Abandoned Mine Land Inventory System (e-AMLIS). 

3 “Disadvantaged Community” – a community may be considered disadvantaged based on a combination of: low income, high and/or 

persistent poverty; high unemployment and underemployment; racial and ethnic residential segregation, particularly where the segregation 

stems from discrimination by government entities; linguistic isolation; high housing cost burden and substandard housing; distressed 

neighborhoods; high transportation cost burden and/or low transportation access; disproportionate environmental stressor burden and high 

cumulative impacts; limited water and sanitation access and affordability; disproportionate impacts from climate change; high energy cost 

burden and low energy access; jobs lost through the energy transition; access to healthcare; and geographic areas within Tribal 

jurisdictions; or based on the community’s inclusion in the Climate and Economic Justice Screening Tool. Definition adapted from OMB 

and CEQ Interim Implementation Guidance for the Justice40 Initiative (M-21-28) dated July 20, 2021. See Climate and Economic Justice 

Screening Tool at: Explore the tool - Climate & Economic Justice Screening Tool (geoplatform.gov). 
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grant funds.

4 It also clarifies how BIL AML grant funding differs from the traditional fee-based AML 

grant distributions authorized by SMCRA. OSMRE will consider initiating rulemaking to establish

requirements and obligations related to application procedures, allowable uses of funds, and reporting 

program activities and outcomes.

II. ELIGIBLE STATES AND TRIBES

Pursuant to section 40701(b)(2) of the BIL, eligible grant recipients include both certified and 

uncertified States and Tribes carrying out approved AML Programs. A certified State or Tribe is a State 

or Tribe that has certified that all coal reclamation projects that are considered a priority under section 

403(a)of SMCRA have been completed. An uncertified State or Tribe is a State or Tribe that has not yet 

made the certification that reclamation of all priority coal reclamation projects in the State or on 

applicable Indian lands have been completed.

III. ELIGIBLE PROJECTS & PRIORITIZATION

BIL AML funding may only be spent on eligible abandoned coal mine reclamation projects.5 According 

to section 40701(c) of the BIL, BIL AML grants may only be used on one or more of the following: 

• Priority 1 Projects – These projects protect public health and safety from extreme effects of coal 

mining practices, including the restoration of adjacent land and water resources and the 

environment (Section 403(a)(1) of SMCRA).

• Priority 2 Projects – These projects protect public health and safety from adverse effects of coal 

mining practices, including the restoration of adjacent land and water resources and the 

environment (Section 403(a)(2) of SMCRA).

• Priority 3 Projects – These projects restore land and water resources and the environment 

previously degraded by adverse effects of coal mining practices (Section 403(a)(3) of SMCRA). 

These projects may include the design, construction, operation, maintenance, and rehabilitation 

of acid mine drainage (AMD) treatment facilities regardless of whether they are part of a 

qualified hydrologic unit.

• Water Supply Restoration Projects - protection, repair, replacement, construction, or 

enhancement of facilities relating to water supply, including water distribution facilities and 

treatment plants, to replace water supplies adversely affected by coal mining practices (Section 

403(b) of SMCRA).

4 As this is a guidance document, it does not create legally binding requirements and should not be construed to create any 

rights or benefits, either substantive or procedural, that are enforceable by law. To the extent there is any inconsistency 

between a provision of this guidance document and any applicable law or regulation, the law or regulation will control.

5 In general, section 404 of SMCRA describes “[l]ands and waters eligible for reclamation or drainage abatement 

expenditures” under SMCRA as those lands and waters “which were mined for coal or which were affected by such mining, 

wastebanks, coal processing, or other coal mining processes . . . and abandoned or left in an inadequate reclamation status 

prior to” August 3, 1977.
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• AML Emergency Projects - Emergency projects that restore, reclaim, abate, control, or prevent 

adverse effects of coal mining practices, on eligible lands when an emergency exists constituting 

a danger to the public health, safety, or general welfare and no other person or agency will act 

expeditiously to restore, reclaim, abate, control, or prevent adverse effects of coal mining 

practices (Section 410 of SMCRA).

Use of BIL funding differs from the traditional fee-based AML funding in a few important ways:

• Stand-alone projects classified as Priority 3 under SMCRA Title IV are eligible for BIL funding, 

whether or not the project is in conjunction with other projects classified as Priority 1 and 

Priority 2 projects under SMCRA Title IV;

• AMD treatment projects that are not part of a qualified hydrologic unit are eligible for BIL 

funding;

• Eligible states and tribes are not authorized under the BIL to place BIL AML grant funds into 

AMD set-aside accounts.6

Under section 405(e) of SMCRA, State and Tribal AML Reclamation Plans must identify the specific 

criteria for ranking and identifying projects to be funded. The overall State or Tribal AML Program 

must reflect the priorities listed in section 403(a), and, accordingly, the BIL does not require strict 

adherence to those priorities when grantees and OSMRE work to evaluate, apply for, and approve 

particular projects.

OSMRE will consult with each State and Tribe receiving funds under the BIL to identify which updates 

to the grantee’s Reclamation Plan, if any, are necessary to ensure that the Plan’s complies with the BIL.

In spending BIL AML funds, as authorized by section 40701(f) of the BIL, States and Tribes should, 

consistent with State or Tribal applicable law, prioritize providing employment opportunities to current 

and former employees of the coal industry, when such employees are available to work on projects

within the region, State, or local area. OSMRE will work with States and Tribes to incorporate such 

prioritization into their reclamation plans. Measures to implement these priorities may include: (1) 

requiring contractors to affirm that they will give preference to current and former employees of the coal 

industry in any hiring for BIL-funded AML projects; (2) requiring contractors to report on the extent to 

which current and former employees of the coal industry have been employed in any AML work the 

contractors perform; (3) requiring contractors to retain data that can substantiate the reported 

information; and (4) providing to OSMRE the information reported by the contractors as part of the 

State or Tribe’s regular AML reporting processes. To further implement the section 40701(f) 

prioritization, States and Tribes should engage with other Federal, State, Tribal, and local government

agencies, and labor or worker organizations that represent coal industry workers to identify current or 

former employees of the coal industry who are candidates to be employed by AML reclamation 

contractors and provide OSMRE with certifications of this engagement. 

6 Section 402(g)(6) of SMCRA authorized the creation and use of AMD set aside accounts, which allow uncertified States to apply for up 

to 30% of certain fee-based funds received as part of their traditional annual AML grant to be transferred to an interest-bearing account 

established by the State/Tribe to be used for the abatement of the causes and the treatment of the effects of AMD in a comprehensive 

manner within qualified hydrologic units affected by coal mining practices.
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The Department will commence notice and comment rulemaking, as necessary, to further implement 

section 40701(f) and to provide additional guidance as to its scope. Such a proposed rule would, if 

finalized, based on section 40701(f), require that States and Tribes provide employment opportunities to 

current and former employees of the coal industry, prioritize projects that provide such employment 

opportunities, and prioritize use of BIL AML funding on AML projects that promote the revitalization 

of coal communities. 

States and Tribes should also prioritize projects that deliver benefits to disadvantaged communities 

including the reduction of environmental burdens on such communities in alignment with the overall 

objectives of the Justice40 Initiative. 

States with unreclaimed mines on the list of EPA’s Methane Coal Mine Opportunities Database 

(https://www.epa.gov/cmop/coal-mine-methane-abandoned-underground-mines) are encouraged to 

prioritize the reclamation of such sites where eligible for BIL AML funding in a manner that eliminates 

methane emissions to the greatest extent possible. 

IV. AML PROGRAM MANAGEMENT 

In carrying out their programs with BIL AML funding, OSMRE encourages States and Tribes, 

consistent with State or Tribal applicable law, to: 

• Use procurement processes that incentivize AML contractors to hire current and former 

employees of the coal industry when bidding on BIL-funded AML projects and require the 

collection of information from AML contractors about the number of current and former coal 

industry employees they employ;

• Aggregate projects into larger statewide or regional contracts as part of their procurement 

processes, in order to improve efficiencies in their BIL AML grant funding;7

• Prioritize aggregated or larger projects in selecting projects to be funded; 

• Support pre-apprenticeship, registered apprenticeship, and youth training programs that open 

pathways to employment by collaborating with other Federal, State, Tribal, and local 

government agencies and non-governmental organizations that have the relevant expertise in 

these areas, including the Interagency Working Group on Coal and Power Plant Communities 

and Economic Revitalization. While BIL AML grants may not be used to directly fund preapprenticeships, apprenticeships and training programs, States and Tribes are encouraged to 

strengthen existing partnerships with governmental agencies and non-governmental entities that 

provide these types of services and to strategize on ways to promote these types of opportunities 

for BIL AML projects, including by identifying workforce needs for AML projects. 

7 Section 40701(b)(3) of the BIL allows states to aggregate bids in this manner.
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• Require contractors to support safe, equitable, and fair labor practices by adopting collective 

bargaining agreements, local hiring provisions (as applicable), project labor agreements, and 

community benefits agreements. 

• When applicable, select project designs that reduce methane emissions from abandoned coal 

mine sites. 

• Incorporate input from disadvantaged communities, communities of color, low-income 

communities, and Tribal and Indigenous communities8 into prioritization criteria and the method 

for selecting projects to be funded. For more information, see the “Public Engagement” section. 

If any of the aforementioned activities cannot be reasonably accomplished in carrying out the BIL AML 

program, States and Tribes should include in their grant application a detailed rationale for why the 

specified activity(ies) could not be implemented. 

OSMRE and the Department of the Interior (DOI) will engage with the Department of Labor (DOL) to 

determine what information and tools DOL can provide to States and Tribes to support the above 

efforts. 

BIL AML funds may not be used, directly or indirectly, to support or oppose union organizing. 

Further, States and Tribes must implement measures to ensure that a bidder for a BIL AML contract 

cannot be awarded a contract or subcontract or perform any work funded by the BIL AML, if their 

company, their owners and controllers, their corporate officers and their shareholders own or control 

mine operations that have any outstanding uncorrected or unabated violations. Consistent with 30 C.F.R. 

§ 874.16 and § 875.20, every successful bidder for an AML contract must be eligible under 30 C.F.R. 

§§ 773.12, 773.13, and 773.14 at the time of contract award to receive a permit or be provisionally 

issued a permit to conduct surface coal mining operations. At a minimum, States and Tribes must 

review the Applicant Violator System, and the System for Award Management and any other available 

information to verify the eligibility of each bidder before a contract or subcontract is awarded for any 

work performed and funded under the BIL AML. 

V. BIL AML GRANTS 

8 “Low-income communities” are those communities that in the last 12 months had a median household income less than twice the poverty 

level. This definition is similar to USEPA’s EJSCREEN definition at https://www.epa.gov/ejscreen/ejscreen-map-descriptions#categorydemographics 

“Communities of color” are those communities with a higher than national average percent of individuals in a block group who list their 

racial status as a race other than white alone and/or list their ethnicity as Hispanic or Latino. That is, all people other than non-Hispanic 

white-alone individuals. The word "alone" in this case indicates that the person is of a single race, not multiracial. A block group is an area 

defined by the Census Bureau that usually has in the range of 600-3,000 people living in it. This definition is adopted from USEPA’s 

EJSCREEN definitions at: https://www.epa.gov/ejscreen/overview-demographic-indicators-ejscreen#demoindex

“Tribal and Indigenous communities” are communities whose members make up a Federally recognized Indian Tribe, a State-recognized 

Indian Tribe, an Alaska Native community or organization, a Native Hawaiian organization, or any other community of indigenous people 

located in a State, including indigenous persons residing in urban communities.
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On February 7, 2022, DOI announced the BIL AML grant distribution amounts that each eligible State 

and Tribe will receive in fiscal year (FY) 2022. The Notice of Funding Opportunity for the BIL AML 

grants will be available before the end of the 4th quarter of FY 2022. 

Annual BIL AML grant amounts are calculated using a congressionally mandated formula based on the 

number of tons of coal historically produced in the States or from applicable Indian lands before August 

3, 1977. Adjustments will be made to ensure the total amount of the distributions to any individual State 

or Tribe is not less than $20 million over the life of the program to the extent that amount is needed for 

eligible projects described above and to reconcile the amount of the BIL AML funding with the total

unfunded cost of coal problems at the end of the preceding fiscal year, as reflected in the enhanced 

Abandoned Mine Land Inventory System (e-AMLIS). 

BIL AML grants will be awarded to eligible State and Tribal AML Programs on an annual basis and 

adjustments will be made to these distributions as required and needed to achieve the objectives of the 

program. For example, adjustments will be made as changes to the number of eligible States and Tribes 

increase or decrease. The period of performance for BIL grants will be five-years, with an option for a 

one-time no-cost extension of up to one year, subject to OSMRE’s review and approval. BIL AML 

grants will be disbursed and tracked under the Assistance Listing Numbers (ALN) No. 15.252. 9

 In order 

to receive BIL AML funding in FY22, each eligible State and Tribe will need to submit a separate grant 

application for BIL AML grants from the traditional AML fee-based grants through GrantSolutions. For 

FY23 and beyond, due to the differing requirements and timeframes of BIL and fee-based grants, 

OSMRE expects to require separate grant applications for the two programs, but the agency will 

continue working with the States and Tribes in order to develop procedures that minimize burdens on 

applicants. States and Tribes are required to ensure that expenditures for the two programs are tracked 

separately. 

BIL AML grant recipients will be required to comply with all applicable Federal grant award 

requirements, including but not limited to, the Uniform Administrative Requirements, Cost Principles, 

and Audit Requirements for Federal Awards (2 C.F.R. part 200). OSMRE anticipates that State and 

Tribal AML Programs will incur higher staffing and operational costs as they stand up programs to 

effectively implement their BIL AML programs. In addition, the administrative costs for annual BIL 

AML grant awards will be available for the entire grant performance period (i.e., five years, with the 

possibility of a one-year extension). 

The BIL AML funded projects are subject to the Build America Buy America (BABA) Act that was 

enacted as part of the BIL in 2021. As required by Section 70914 of the BIL and consistent with the 

Office of Management and Budget’s (OMB) Made in America’s April 18, 2022 guidance for 

implementing the BABA Act, none of the funds under a federal award that are part of Federal financial 

assistance for infrastructure may be obligated on or after May 14, 2022, for a project unless all of the 

iron, steel, manufactured products, and construction materials (excluding concrete and aggregates) used 

in the project are produced in the United States, unless subject to an approved waiver. The requirements 

of this section must be included in all subawards, including all contracts and purchase orders for work or 

products. 

9 The ALN number is a five-digit number assigned in an awarding document for any financial assistance (e.g., grants) funded by the 

Federal government. Although both the BIL AML Funds and the traditional AML fee-based grants will be disbursed under the same

CFDA ALN No. 15.252, separate grant applications via GrantSolutions will be necessary in FY22. 
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Appendix I, which is entitled, “Subaccounts for BIL AML Financial Assistance,” provides guidance on 

the available subaccount categories that State/Tribal AML Programs can use in the development of their 

BIL AML grant application. Outlined below are the main subaccounts: 

• BIL – Non-Emergency Administrative Costs

• BIL – Non-Water Supply (Coal Project) Costs

• BIL – Water Supply Project Costs

• BIL – Coal Projects Engineering & Design Costs

• BIL – AMD Operational and Maintenance Costs

• BIL – Emergency Project Costs

For FY22, States and Tribes are encouraged, but will not be required, to provide a list of projects 

expected to be funded in the upcoming year in their application (see Appendix II). Beginning with FY23 

grant applications, States and Tribes will be required to include lists of projects to be funded over a oneyear timeframe; additional details on this requirement will be provided in future guidance. 

When applying for BIL AML grants, State and Tribal AML Programs should include:

• Starting in FY 2023, a description of each proposed projects to be funded during the grant period 

of performance (see Appendix II). 

• A description of the State and Tribe’s prioritization process or ranking system for the selection 

of proposed projects;

• A description of the process the State or Tribe will use to obtain public input to develop the list 

of projects to be funded; 

• A statement of the estimated benefits that will result from proposed projects;

• A statement of how the State or Tribe will prioritize projects employing current or former 

employees of the coal industry, consistent with State or Tribal applicable law;

• Plans for engaging with other Federal, State, Tribal, or local governmental agencies and nongovernmental entities on workforce training and development issues, including how activities 

encouraged under Section III will be implemented, if applicable, along with the names of 

potential partners to support recruiting and training efforts, including community colleges, 

workforce partners, community-based groups, and unions;

• Any known linkages to economic redevelopment opportunities created by carrying out proposed 

projects;

• A description of how the grantee will address environmental justice issues within coalfield 

communities; 

• Details of how the grantee will engage with relevant State, Tribal, or local governmental 

agencies or non-governmental organizations to identify and address any disproportionate burden 

of adverse human health or environmental effects of coal AML problems on disadvantaged 

communities, communities of color, low-income communities, and Tribal and Indigenous 

communities;

• A description of whether and to what extent proposed projects may reduce greenhouse gas 

emissions, particularly methane emissions;

• Estimated costs for each project to be completed using the BIL AML grant funding. If BIL AML 

funds will be leveraged with other funding sources, such as AML-fee based grants, include this 

information; and,
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• Proposed performance measurement (See Section XI).

OSMRE understands that it will be difficult for States and Tribes to determine or estimate much of this 

information for projects to be funded with the first year of BIL AML grant funding, but is listing them 

here to allow States and Tribes to prepare for future application requirements. In FY22, States and 

Tribes should spell out how their project selection practices will achieve reclamation, remediation, and 

socio-economic benefits. 

 

When possible, a project’s scope or outcome may be expanded or enhanced. States and Tribes are 

encouraged to identify and leverage additional funding sources (e.g., Clean Energy Demonstration 

Program under Title III, Section 40341 of the BIL; DOI’s Ecosystem Restoration Program under Title 

VIII, Section 40804 of the BIL; and EPA Brownfield Job Training Grants) and in-kind contributions to 

be used in conjunction with BIL AML monies. 

VI. DAVIS-BACON ACT

The BIL requires that all laborers and mechanics employed by the applicant, recipient, subrecipient, 

contractors, or subcontractors in the performance of construction, alteration, or repair work on a project 

that will be assisted in whole or in part by funding made available under the BIL must be paid wages at 

rates not less than those prevailing on similar projects in the locality, as determined by the Secretary of 

Labor in accordance with the Davis-Bacon Act (40 U.S.C. §§ 3141-3148). The Davis-Bacon labor 

standards are applicable to the reclamation projects completed using BIL AML funding and DavisBacon clauses must be included in BIL AML work contracts. The Department of Labor Fact Sheet 

#66A: Bipartisan Infrastructure Law provides additional information on the responsibilities of BIL 

funding recipients (see Appendix IV).

Technical assistance to States and Tribes to meet the requirements of the Davis Bacon Act is also 

available through the Department of Labor. Currently, the Department of Labor offers free Prevailing 

Wage Seminars several times a year that focus on compliance with the Davis Bacon Act, at 

https://www.dol.gov/agencies/whd/government-contracts/construction/seminars/events. For additional 

resources on how to comply with DBA provisions and clauses, see 

https:/www.dol.gov/agencies/whd/government-contracts/construction and 

https:/www.dol.gov/agencies/whd/government-contracts/protections-for-workers-in construction. 

VII. PUBLIC ENGAGEMENT

When selecting and developing eligible projects for the BIL AML Program, State and Tribal AML 

Programs should ensure public engagement at the local level through engagement with affected

communities. The term, “public” includes all stakeholders (e.g., citizens at large, industry, other Federal, 

State, Tribal, or local agencies, Tribal Nations, unions and worker organizations, non-governmental

organizations, community colleges, workforce boards, community-based groups, and environmental 

groups). Engaging with the public to identify potential projects before the projects are selected will 

ensure that the projects completed through this program best address the needs of the relevant 

communities. 

States and Tribes are encouraged to use existing best practices for public engagement or develop a 

process for public outreach and communication with local citizens, agencies, and organizations that best 
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fits their unique circumstances. For example, States and Tribes could notify local citizens of the 

intent/purpose of a project via meetings, print media, websites, and social media and/or partner with 

organizations that facilitate public outreach and communication. OSMRE recommends that public 

engagement occur as early as possible for each grant cycle, with the public provided at least 60 days to 

review and provide input on the projects that will be proposed for funding in the State or Tribe’s grant 

application. 

VIII. ENHANCED ABANDONED MINE LAND INVENTORY SYSTEM (e-AMLIS)

Pursuant to section 403(c) of SMCRA, OSMRE maintains e-AMLIS, the central electronic database for 

housing the national inventory of unreclaimed AML problems affecting public health, safety, and the 

environment and reclaimed sites, along with their associated reclamation costs. Data maintained in eAMLIS are provided by States and Tribes using standardized procedures approved by OSMRE. 

States and Tribes are required to enter all coal AML projects into e-AMLIS and identify them as BIL 

AML projects when funds are expended. To ensure that States and Tribes are able to update their 

respective AML inventories in e-AMLIS, the BIL makes $25 million available to the Secretary of the 

Interior to provide financial and technical assistance to States and Tribes to amend e-AMLIS. OSMRE 

will provide further guidance on its implementation of this specific requirement of the BIL at a later 

date. 

IX. COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA)

OSMRE has determined that all BIL AML funded reclamation projects are major Federal actions10

subject to review under the NEPA because, in accordance with NEPA regulations,11 BIL AML projects 

are federally assisted activities performed using Federal funds. 

OSMRE REG-1, Handbook on Procedures for Implementing the National Environmental Policy Act 

(NEPA Handbook) (Revised 2019), provides additional information on NEPA compliance. 

Depending on the significance of the actual and potential impacts of the proposed action, there are three 

potential analytical approaches under NEPA, including a: 

1) Categorical Exclusion (CE); 

2) Environmental Assessment (EA), which may result in a Finding of No Significant Impact 

(FONSI) or a Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS); or 

3) Environmental Impact Statement (EIS) and Record of Decision (ROD). 

The Department’s NEPA regulations make clear that in the absence of an applicable CE, an EA, and, in 

some cases, an EIS, must be prepared for the proposed Federal action. 43 C.F.R. § 46.205(a) states:

10 According to 40 C.F.R. § 1508.1, major Federal actions may include, among other things, new and continuing activities, including 

projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by Federal agencies.

11 NEPA regulations issued by the White House Council on Environmental Quality (CEQ) are found at Title 40, Parts 1500-1508 of the 

Code of Federal Regulations (40 C.F.R. § 1500-1508, 42 U.S.C. §§ 4371 et seq.).
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If a proposed action does not meet the criteria for any of the listed Departmental 

categorical exclusions or any of the individual bureau categorical exclusions, then the 

proposed action must be analyzed in an environmental assessment or environmental 

impact statement.

In accordance with section 8.5.2.1 of OSMRE’s NEPA Handbook, State and Tribal AML programs 

must ensure that all connected actions, regardless of the funding source or who proposes them, are 

analyzed in a single NEPA document. Additionally, the impacts of a project that includes multiple 

phases must be reviewed in a single or programmatic NEPA document. Multi-phase projects may 

require subsequent additional NEPA. State and Tribal AML Programs are strongly encouraged to look 

closely at the NEPA analyses outlined above and refer to OSMRE’s NEPA Handbook to better

understand the NEPA process early and align their proposed projects accordingly. 

The three potential analytical approaches under NEPA are defined below. 

Categorical Exclusion 

A CE is a class of actions that a Federal agency has determined, after review by CEQ, does not 

individually or cumulatively have a significant effect on the human environment; therefore, neither an 

EA nor an EIS is normally required unless an extraordinary circumstance is identified.12 A CE is the 

threshold NEPA analysis for a proposed Federal action. OSMRE has created and received approval 

from CEQ for a CE. This CE is contained in the DOI Departmental Manual (DM), Chapter 13 [516 DM 

13.5(33)]. 

Environmental Assessment

If a determination is made that the proposed Federal action cannot be categorically excluded from 

further NEPA analysis, then an EA is prepared. The EA determines whether a Federal action has the 

potential to cause significant environmental effects. If no significant environmental effects are found, 

the decision document will result in a FONSI, and the project may continue without further NEPA 

analysis. However, if it is determined that an action will have significant effects, then the project must 

go through the EIS process. 

Environmental Impact Statement

For actions with significant impacts, NEPA requires Federal agencies to prepare an EIS that must 

assess, among other things, the potential environmental impacts of the proposal and alternatives to the 

proposed action. See 42 U.S.C. § 4332; 40 C.F.R. part 1502. Once an agency reaches a final decision on 

the action it wishes to take (i.e., the proposed action or an alternative), it creates a ROD, which is the 

conclusion of the EIS process. 40 C.F.R. § 1505.2.

X. PROJECT AUTHORIZATION

OSMRE’s regulations require that, before the start of construction on any non-emergency reclamation 

project, States and Tribes must submit to OSMRE a request for an Authorization to Proceed (ATP) once 

the NEPA analysis has been completed. 30 C.F.R. §§ 885.15, 886.16. An ATP request for a reclamation 

project must include: confirmation that the problem area to be reclaimed has been entered into e12 Extraordinary circumstances are described in the Departmental NEPA regulations at 43 C.F.R. § 46.215.
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AMLIS; all completed environmental documents, including NEPA documents and other documents 

demonstrating compliance with relevant environmental laws, such as the Endangered Species Act; an 

AML eligibility statement; and any additional documentation requested by OSMRE for that particular 

project.

As discussed above, State and Tribal AML programs should, in compliance with State or Tribal law,

engage with other Federal, State, Tribal agencies, and local government agencies and labor and worker 

organizations that represent coal industry workers to identify current or former employees of the coal 

industry who are candidates to be employed by AML reclamation contractors consistent with the section 

40701(f) prioritization and provide OSMRE with certifications of this engagement. States and Tribes 

should maintain sufficient records to substantiate this engagement upon request.

OSMRE will provide an ATP letter once the agency has determined that the request satisfies the 

guidelines for ATP issuance. The ATP letter from OSMRE provides the required approval to use BIL 

AML grant funding to reclaim the specific project being addressed and allows project construction to 

begin. Although NEPA documentation is part of the criteria required for an ATP request, the NEPA 

process and ATP process are two separate processes. An ATP request cannot be completed until 

OSMRE has completed the NEPA review process and issued a ROD, FONSI, or CE in compliance with 

the NEPA requirements. 

XI. EMERGENCY AUTHORIZATION

According to chapter 4-120 of the Federal Assistance Manual (FAM), States and Tribes are required to 

submit a request for emergency declaration to OSMRE for emergency reclamation projects. The FAM 

requirements track the “emergency” definition at 30 C.F.R. § 700.5, identifying the proper amount of 

emergency reclamation as the amount necessary to stabilize the emergency aspects of the problem—

eliminating the immediate danger to public health, safety, and general welfare. Any remaining 

reclamation should then be accomplished as part of a regular, non-emergency AML project, as 

necessary.

Upon receipt of a request for emergency declaration, OSMRE will review the information and ensure 

that the project meets all requirements of the AML emergency program. If all information contained 

within the request for emergency declaration is complete, OSMRE will declare an emergency by signing 

a Finding of Fact/ATP. The Finding of Fact certifies that the problem meets the emergency criteria and 

serves as the point of Federal action, authorizing the State/Tribe to proceed with reclamation work on 

the site. After the emergency is abated, the States and Tribes are required to comply with all applicable 

Federal laws and regulations, including NEPA. 

XII. BIL AML PERFORMANCE MEASURES & REPORTING

OSMRE is required to submit a report to Congress within six years of the first BIL AML grant 

allocation to State and Tribal AML Programs. This report will detail the progress made under the BIL 

AML provisions in addressing outstanding reclamation needs under subsections (a) and (b) of section 

403 and section 410 of SMCRA. In preparing this report, OSMRE will solicit input from State and 

Tribal AML Programs on the progress made in addressing outstanding coal AML problems and use the 
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information provided in the annual evaluation reports each State and Tribe submits pursuant to section 

405(j) of SMCRA.

13 OSMRE intends to provide future guidance on how to prepare the information 

required in the report to Congress.

OSMRE is evaluating and developing the performance measures and reporting elements to be tracked to 

ensure accomplishments made by State and Tribal AML Programs under the BIL are captured in these 

annual reports. Given that AML projects are located in coalfield communities that may also be defined 

as disadvantaged communities, communities of color, low-income communities, or Tribal or Indigenous 

communities, State and Tribal AML Programs are encouraged to track and report on the types of 

benefits and the percentage of benefits that accrue to these communities. State and Tribal AML 

Programs are also encouraged to engage with stakeholders to help identify metrics that accurately reflect 

the benefits of BIL AML projects in their reclamation programs. In order to enable complete reporting, 

States and Tribes are expected to track the following types of benefits that can be measured and 

reported:

AML Reclamation Environmental Benefits

• Number of acres reforested

• Number of trees planted on AML sites

• Number of bat gates installed

• Number of acres of endangered species habitat re-established

• Number of tons of rare earth elements, metals, or sediment recovered for reuse

• Amount of methane emissions reduced

AMD Remediation Project Benefits

• Quantity of iron, aluminum, manganese, sulfate, etc. removed and/or recovered on annual basis 

by AMD water reclamation projects

• Quantity of Rare Earth Elements (REE) recovered by AMD water reclamation projects

• Number of AMD passive treatment systems built

• Number of AMD passive treatment systems operated and maintained

• Number of AMD active treatment systems built

• Number of AMD discharges abated

• Miles of waterways improved

• Estimated volume of water treated

• Number of outflows remediated 

Socio-economic Benefits of BIL AML Projects

• Percent of overall benefits and types of benefits that accrue to disadvantaged communities, 

communities of color, low-income communities, or Tribal or Indigenous communities;

• Number of former/current employees of the coal industry employed in AML reclamation;

• Demographics/number of workers from under-represented groups, as defined by Executive 

Order 13985, “Advancing Racial Equity and Support for Underserved Communities Through the 

Federal Government”;

• Percentage of workers employed at AML sites that reside in the county in which the AML 

13 Pursuant to section 405(j) of SMCRA, State and Tribal AML programs will be required to submit annual reports to track their progress 

and accomplishments in addressing outstanding reclamation needs using BIL AML grant funds.
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project is located, or in adjacent counties; 

• If there is a community benefit agreement as part of the project; 

• Number of project partners involved in AML reclamation projects; 

• Number of contract(s) awarded that aggregated projects exceeding a value of $1 million at the 

time of award; 

• Number of businesses constructed on reclaimed AML sites, and number of people employed at 

those sites; 

• Number of job hours involved in BIL AML remediation; 

• Number of people receiving potable water after completion of water supply restoration projects;

• Number of residents positively impacted by the restoration of previously polluted waterways; 

and, 

• Number of residents within one mile of a BIL-funded project. 

Further, for projects or aggregated projects in excess of $1 million, States or Tribes should require that

contractors, consistent with State or Tribal applicable law, provide: 

1) a certification that the project uses a unionized project workforce; 

2) a certification that the project includes a project labor agreement; or 

3) a project workforce continuity plan, detailing: 

• How the contractor ensured the project had ready access to a sufficient supply of 

appropriately skilled and unskilled labor to ensure high-quality construction 

throughout the life of the project, including a description of any required professional 

certifications and/or in-house training, registered apprenticeships or labormanagement partnership training programs, and partnerships like unions, community 

colleges, or community-based groups; 

• How the contractor minimized risks of labor disputes and disruptions that would have 

jeopardized the timeliness and cost-effectiveness of the project; 

• How the contractor provided a safe and healthy workplace that avoids delays and 

costs associated with workplace illnesses, injuries, and fatalities, including 

descriptions of safety training, certification, and/or licensure requirements for all 

relevant workers (e.g., OSHA 10, OSHA 30); 

• Whether workers on the project received wages and benefits that secured an 

appropriately skilled workforce in the context of the local or regional labor market; 

• Whether the project had a Community Benefit Agreement, with a description of any 

such agreement; and

• Whether the project prioritized local hires.

As noted in Section IV, BIL AML funds may not be used to support or oppose union organizing. 

* * * 

If you have any questions or need additional assistance, please contact your servicing 

OSMRE Field or Regional Office. 
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Appendix I: Subaccounts for BIL AML Financial Assistance

Appendix II: Table for BIL AML Eligible Projects

Appendix III: BIL AML Project Flowchart

Appendix IV: Department of Labor Fact Sheet

**-Appendices to be developed as needed.
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Appendix I: Subaccounts for BIL AML Financial Assistance

I. Authorities

● The Surface Mining Control and Reclamation Act of 1977 (SMCRA), Pub. L. No. 95-

87, as amended 

● Infrastructure Investment and Jobs Act (IIJA), Pub. L. No. 117-58, also known as the 

Bipartisan Infrastructure Law (BIL)

● Office of Surface Mining Reclamation and Enforcement (OSMRE) Directive GMT- 10, 

The Federal Assistance Manual (FAM)

● The Federal Grant and Cooperative Agreement Act of 1977, Pub. L. No. 95-224 

● Title 2 C.F.R. Part 200, Uniform Administrative Requirements, Cost Principles and 

Audit Requirements for Federal Awards

II. Purpose

The purpose of this document is to provide guidance and to clarify the available subaccounts (i.e.

cost categories) for allocating monies when submitting a BIL AML grant application and 

expending monies when invoices are submitted for processing through DOI’s/OSMRE’s

financial system. This guidance document outlines the available subaccounts for BIL funds that 

were created in 2022. The Federal Assistance Manual (FAM) will be updated to reflect these

changes.

III. Additional Information 

This section contains the following information: 

● BIL Subaccounts Table. (Table 1) This table provides a listing of all available 

subaccounts under the BIL AML Program, which is funded by moneys sourced from the 

U.S. Treasury. 

● Fund Type Descriptions. This section describes the different types of funds listed in 

Table 1, which are used in the BIL AML Program. 
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BIL AML Grant Subaccount Table

The table below contains a listing of standard subaccounts currently available for BIL AML 

Grants:

Table 1: BIL Fund Subaccounts

Subaccount Bipartisan Infrastructure Law

01 IL

03 IL

04 IL

19 IL

21 IL

23 IL

Listed below is the fund type description.

IL Funds authorized by section 40701 of the BIL that are available to eligible States and 

Tribes.

Source: U.S. Treasury Funds

Listed below are the subaccount number definitions:

01. Non-Emergency Administrative

These are costs that cannot be tracked to individual reclamation projects and include 

items, such as travel, rental of vehicles, and any other administrative expenses. Project 

Design and Engineering costs should not be incorporated into subaccount 01.

03. Coal Project Costs (Non-Water Supply)

These are costs for actual construction, realty work, construction contracting, 

construction inspection, and other items allocable to a specific project in accordance with

the BIL. Please note that project design and engineering coal-related costs and operation 

and maintenance costs related to AMD projects should not be included under subaccount 

03. An engineering and design subaccount 19, as described below, has been created to

track these coal-related costs. An operational and maintenance subaccount 21, as 

described below, has been created to track these AMD related costs.

04. Water Supply Project Costs

These costs are authorized by the BIL, and eligible States and Tribes may expend funds to 

protect, repair, replace, construct, or enhance facilities related to water supplies adversely 

affected by coal mining practices. Please note that project design and engineering coal-related

costs should no longer be included under subaccount 04. A new engineering and design

subaccount 19, as described below, has been created to track these coal-related costs
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19. Coal Projects Engineering & Design Costs

These are coal-related engineering and design costs associated with site investigation, public 

engagement, including identification and mapping of hazards; environmental sample collection 

and data validation; costs associated with surveying design and engineering of reclamation

activities, including development of construction bid packages; costs associated with owner 

operator searches, eligibility determination, historic and archeological surveys, threatened and 

endangered species reports and consultation, document preparation related to NEPA, public 

meetings, and landowner agreements; and any other costs associated with project preparation 

before the award or initiation of a construction project.

Pursuant to section 403(c) of SMCRA, OSMRE maintains e-AMLIS, the central 

electronic database for housing the national inventory of unreclaimed AML problems 

affecting public health, safety, and the environment, and reclaimed sites, along with their 

associated reclamation costs. BIL funding may be used by State or Tribal AML 

Programs to amend their inventory of coal problems. Costs associated with the activities 

necessary to update a State or Tribe’s inventory in e-AMLIS should be included under 

this subaccount.

Please note that this definition does not include construction oversight or long-term 

monitoring or maintenance. Any cost related to construction oversight or long-term 

monitoring or maintenance should be included under direct project subaccounts such as

03 and 04. Any BIL costs related to long term AMD operational and maintenance costs 

should be included under subaccount 21.

21. Acid Mine Drainage (AMD) Operational and Maintenance Costs

These are costs associated with the long-term operation and maintenance of AMD treatment 

facilities. This category was created as a result of the determination that States and Tribes 

receiving BIL AML funding may use the grant funds to operate and maintain AMD treatment 

facilities. Costs related to the construction of AMD treatment facilities should be included 

under direct project subaccounts such as 03 and 04. Costs related to the design of AMD 

treatment facilities should be included under subaccount 19.

23. BIL Emergency Projects Costs

These costs are authorized by the BIL. As defined at 30 C.F.R. § 700.5, an emergency is a

sudden danger or impairment that presents a high probability of substantial physical harm to 

the health, safety, or general welfare of people before the danger can be abated under normal 

program operation procedures. Emergency project costs cover the emergency restoration, 

reclamation, abatement, control, or prevention of adverse effects of coal mining practices on 

eligible lands. Emergency projects must be pre-authorized by OSMRE, directly related to 

emergency hazard abatement, and are subject to availability of funds
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Appendix II: Table for BIL AML Eligible Projects

The following table is an optional template for States and Tribes that choose to submit project lists with 

their FY22 BIL AML application. 

Project or 

Activity

Type of Hazard Estimated FY 20XX

BIL AML Funding 

for Project

Schedule Proposed Project 

Accomplishments

Project 1 – Name 

of Project

E.g., Dangerous 

Highwall, 

Clogged Stream 

Lands, etc.

$XXXX

Anticipated 

Start Date – 

Anticipated 

End Date

E.g., dangerous 

highwall reclaimed
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Appendix III: BIL AML Project Flowchart
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Appendix IV: DOL Fact Sheet #66A: Bipartisan Infrastructure Law

This fact sheet provides general information relating to Davis-Bacon requirements for construction 

projects funded by the Bipartisan Infrastructure Law (BIL), provided by the Department of Labor’s Wage 

and Hour Division (WHD). The WHD administers and enforces Davis-Bacon labor standards on Federally

funded and assisted construction projects, and, as such, is responsible for determining locally prevailing 

wage rates and ensuring those prevailing wages are paid to construction workers on covered projects.

Davis-Bacon Related Act Coverage of Bipartisan Infrastructure Law Construction Projects

The Davis-Bacon Act requires contractors and subcontractors to pay laborers and mechanics employed 

on federal construction contracts no less than the locally prevailing wages and fringe benefits for 

corresponding work on similar projects in the area. Many federal laws that authorize federal assistance for 

construction projects, such as through grants, loans, loan guarantees, or other similar funding mechanisms, 

require funding recipients to comply with the prevailing wage and labor standards requirements of the 

Davis-Bacon Act. Such laws are generally known as Davis-Bacon “Related Acts,” or Davis-Bacon 

Related Acts. 

The BIL, which President Biden signed on November 15, 2021, focuses on rebuilding and improving our 

nation’s aging infrastructure through a historic investment of federal funds in state and local infrastructure 

construction. A vast majority of the federal funding authorized by the BIL requires the payment of DavisBacon prevailing wages on covered construction projects. The BIL applies Davis-Bacon labor standards 

to federally-funded or assisted construction projects in three different ways by: 

1. adding funding to programs previously authorized by an existing Davis-Bacon Related Act (such 

as the Infrastructure for Rebuilding America program and the Drinking Water/Clean Water state 

revolving loan funds); 

2. adding new programs under the umbrella of an existing Davis-Bacon Related Act (such as the new 

Bridge Investment program and the new Airport Terminal Improvement program); or 

3. including provisions which expressly provide that Davis-Bacon labor standards apply to all 

construction projects receiving funding under particular programs created by or funded through 

the BIL. For example, construction projects assisted by funding made available under Division D 

or an amendment made by Division D of the BIL (Energy) are subject to Davis-Bacon 

requirements

Finally, while the broadband assistance programs under Division F of the BIL do not generally require 

the payment of Davis-Bacon prevailing wages, the agencies administering those programs may consider 

the payment of prevailing wages as a positive factor when allocating funding. WHD will be available to 

provide guidance to funding applicants and funding agencies who are considering the payment of DavisBacon prevailing wages as a factor in connection with funding awards under the BIL’s broadband 

assistance programs.
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Basic Provisions/Requirements of Davis-Bacon Related Acts

Funding for construction projects authorized by the BIL requires certain actions on the part of federal 

funding agencies, funding recipients (such as state or local agencies), and construction contractors in order 

to ensure compliance with Davis-Bacon Related Acts.

Federal Funding Agencies

Among other requirements, the federal funding agency must:

• notify potential funding recipients that the Davis-Bacon labor standards are applicable to any 

construction projects that receive the relevant BIL funding;

• ensure that the funding recipients require the Davis-Bacon contract clauses, as set forth at 29 

C.F.R. § 5.5, and applicable wage determinations be inserted into all contracts for construction 

projects receiving the federal funding (a wage determination is a schedule of prevailing wage rates 

determined by the Secretary of Labor that applies to construction subject to Davis-Bacon 

requirements in a particular geographic area);

• provide guidance to funding recipients as to which construction projects are covered by DavisBacon requirements and which wage determinations apply to those projects; and

• take steps to ensure that the Davis-Bacon requirements are met on their funded projects, including 

receiving and reviewing certified payrolls submitted by contractors (except to the extent that the 

federal agency has delegated the receipt and review of certified payrolls to the funding recipient). 

Funding Recipients

Among other requirements, the funding recipients must:

• ensure that the Davis-Bacon contract clauses and applicable wage determinations are inserted into 

any construction contracts entered into by themselves or their sub-recipients for projects receiving 

any federal funding subject to Davis-Bacon labor standards (the required contract clauses are set 

forth at 29 C.F.R. § 5.5, and general wage determinations and guidance on their application can be 

found at alpha.sam.gov);

• provide guidance to sub-recipients and contractors as to Related Act coverage, wage determination 

applicability, and the classifications of work performed on the contract;

• conduct sufficient monitoring of sub-recipients and contractors to ensure that laborers and 

mechanics are being paid the applicable prevailing wages and fringe benefits;

• receive and review certified payrolls, and, where applicable, forward certified payrolls to the 

federal funding agency; and

• upon the written request of the Department of Labor, or on their own initiative, both the federal 

funding agencies and the funding recipients must withhold payments to the prime contractors in 

an amount sufficient to cover any unpaid prevailing wages owed to workers or suspend any further 

payments until violations of the Davis-Bacon labor standards have ceased.
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Failure to take these actions may result in the loss of the federal funding, in accordance with 29 C.F.R. 

§ 5.6.

Contractors and Subcontractors

Among other requirements, contractors and subcontractors must:

• pay at least the Davis-Bacon prevailing wages listed in the applicable wage determinations 

included in the contract to laborers and mechanics who work on the site of work—

o the Davis-Bacon prevailing wage is the combination of the basic hourly rate and any fringe 

benefits listed in a Davis-Bacon wage determination;

o contractors can meet this obligation by paying each laborer and mechanic the applicable 

prevailing wage for the classification of work they perform entirely as cash wages or by a 

combination of cash wages and employer-provided bona fide fringe benefits;

o contractors must pay laborers and mechanics the applicable prevailing wages for all hours 

worked on the site of the work on a weekly basis (except for contributions to bona fide 

fringe benefit plans, which must be made at least quarterly);

• maintain an accurate record of hours worked and wages paid, including fringe benefit 

contributions;

• submit certified payrolls to the contracting agency/funding recipient each week, within seven days 

of the payroll date for that workweek; and

• ensure that the required contract clauses and applicable wage determinations are incorporated into 

any lower-tier subcontracts.

Where to Obtain Additional Information

For additional information, visit the Wage and Hour Division website: www.dol.gov/agencies/whd or call 

our toll-free information and helpline, 1-866-4-USWAGE (1-866-487-9243), available 8 a.m. to 5 p.m. in 

your time zone. This appendix is for general information and is not to be considered in the same light as 

official statements of position contained in the regulations.

The contents of this appendix do not have the force and effect of law and are not meant to bind the public 

in any way. This appendix is intended only to provide clarity to the public regarding existing requirements 

under the law or agency policies.