[Federal Register Volume 63, Number 121 (Wednesday, June 24, 1998)]
[Rules and Regulations]
[Pages 34277-34280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16811]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925

[SPATS No. MO-034-FOR]


Missouri Abandoned Mine Land Reclamation Plan

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Missouri 
abandoned mine land reclamation plan (hereinafter referred to as the 
``Missouri plan'') under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The amendment is intended to revise the Missouri plan 
to allow the Missouri Department of Natural Resources, Land Reclamation 
Commission, Land Reclamation Program to assume responsibility for 
administering the abandoned mine land reclamation emergency program in 
Missouri on behalf of OSM.

EFFECTIVE DATE: June 24, 1998.

FOR FURTHER INFORMATION CONTACT:
Perry Pursell, Office of Surface Mining, Mid-Continent Regional 
Coordinating Center, Alton Federal Building, 501 Belle Street, Alton, 
Illinois 62002. Telephone: (618) 463-6460.

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Plan
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Missouri Plan

    On January 29, 1982, the Secretary of the Interior approved the 
Missouri plan. Background information on the Missouri plan, including 
the Secretary's findings, the disposition of comments, and the approval 
of the plan can be found in the January 29, 1982, Federal Register (47 
FR 4253). Subsequent actions concerning the Missouri plan and 
amendments to the plan can be found at 30 CFR 925.25.

II. Submission of the Proposed Amendment

    Section 410 of SMCRA authorizes the Secretary to use funds under 
the abandoned mine land reclamation (AMLR) program to abate or control 
emergency situations in which adverse effects of past coal mining pose 
an immediate danger to the public health, safety, or general welfare. 
On September 29, 1982 (47 FR 42729), OSM invited States to amend their 
AMLR plans for the purpose of undertaking emergency reclamation 
programs on behalf of OSM. States would have to demonstrate that they 
have the statutory authority to undertake emergencies, the technical 
capability to design and supervise the emergency work, and the 
administrative mechanisms to quickly respond to emergencies either 
directly or through contractors.
    Under the provisions of 30 CFR 884.15, any State may submit 
proposed amendments to its approved AMLR plan. If the proposed 
amendments change the scope or major policies followed by the State in 
the conduct of its AMLR program, OSM must follow the procedures set out 
in 30 CFR 884.14 for reviewing and approving or disapproving the 
proposed amendments.
    The proposed assumption of the AMLR emergency program on behalf of 
OSM is a major addition to the Missouri plan. Therefore, to assume the 
emergency program, Missouri must either revise its plan to include 
administering the AMLR emergency program, or demonstrate that its plan 
currently includes provisions for assuming and administering the 
emergency program.
    By letter dated March 31, 1998 (Administrative Record No. AML-MO-
103), Missouri submitted an amendment to its plan pursuant to SMCRA. 
Missouri submitted the amendment at its own initiative. The amendment 
is intended to demonstrate Missouri's capability to effectively 
undertake the AMLR emergency program on behalf of OSM. In its formal 
submittal, Missouri stated that a review of the Missouri plan indicates 
that the authority already exists for the Missouri Department of 
Natural Resources, Land Reclamation Commission, Land Reclamation 
Program (LRP) to assume responsibility for the AMLR emergency program. 
Missouri noted that the designation by the governor and the legal 
opinion of the State Attorney General that are included in its plan are 
applicable to all AML activities, including the emergency program, and 
that all other existing policies and procedures in its plan are 
adequate to cover the emergency program, with two minor exceptions. 
These exceptions were addressed in Missouri's technical capability to 
design and supervise the emergency works, and Missouri's amendment. The 
applicable parts of the existing Missouri plan and the revisions to the 
plan that would demonstrate that Missouri has the authority to 
undertake emergencies, Missouri's technical capacity to design and 
supervise the emergency work, and Missouri's administrative mechanisms 
to quickly respond to emergencies either directly or through 
contractors are discussed below.
    A. The following information, taken from the approved Missouri 
plan, was included by reference in Missouri's formal submission to OSM 
in order to verify that the authority already exists for the LRP to 
assume AMLR emergency program responsibilities:
    1. A letter from the Governor that designates the Missouri 
Department of Natural Resources, Land Reclamation Commission as the 
agency responsible for the Abandoned Mine Land Reclamation Program in 
Missouri.
    2. A legal opinion from the Attorney General that the Missouri 
Department of Natural Resources, Land Reclamation Commission has the 
power to administer the Abandoned Mine Land Reclamation Program in 
Missouri.
    3. A copy of sections 444.810, .825, .915, .920, .925, .930, and 
.940 of the Revised Statutes of Missouri (RSMo), the Missouri Land 
Reclamation Act.

[[Page 34278]]

RSMo section 444.915.1(5) authorizes the LRR to spend monies from the 
State Abandoned Mine Reclamation Fund for restoration, reclamation, 
abatement, control or prevention of adverse effects of coal mining 
practices when an emergency exists.
    4. A copy of the Missouri Abandoned Mine Land Reclamation Program 
regulations (Code of State Regulations, 10 CSR 40-9.010, .020, .030, 
.040, .050, and .060). Missouri's regulations at 10 CFR 40-9.030(4) 
provide the right to enter upon any land where an emergency exists and 
on any other land to have access to the land where the emergency exists 
to restore, reclaim, abate, control or prevent the adverse effects of 
coal mining practices and to do all things necessary or expedient to 
protect the public health, safety or general welfare. Procedures are 
provided for this entry.
    B. Missouri submitted a statement to demonstrate the LRP's 
technical capability to design and supervise the emergency work. The 
statement included references to work completed on non-emergency, high 
priority reclamation projects, the number of AML Section staff working 
on reclamation projects, and the ability of the staff members to 
prepare project designs and contract documents and to provide in-house 
resident inspection services.
    C. Missouri updated its plan policy and procedures at sections 
884.13(c)(6), rights of entry, and 884.13(d)(3), purchasing and 
procurement, to ensure that it has the administrative mechanisms to 
quickly respond to emergencies either directly or through contractors.
    D. After assuming the emergency program, Missouri would conduct 
investigations of potential emergency sites and perform remedial 
reclamation, following OSM's concurrence that an emergency situation 
exists. Missouri stated in its proposal that in administering the AMLR 
emergency program, it would follow procedures that are in compliance 
with the Federal Assistance Manual, Chapter 4-30, ``Characteristics of 
Grantee-Administered Emergency Reclamation Activities.''
    OSM announced receipt of the proposed amendment in the April 22, 
1998, Federal Register (63 FR 19874), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on May 22, 1998.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 884.14 and 884.15, are the Director's findings concerning the 
proposed amendment.

A. Revisions to the Missouri Plan Policy and Procedure Sections

1. Section 884.13(c)(6), Rights of Entry
    Missouri proposed to revise its policy concerning right of entry 
fro emergency purposes by removing the language that allowed emergency 
entries only upon request from the Office of Surface Mining. This 
revised paragraph reads as follows.

    In the event of an emergency, this agency may enter onto private 
property and perform whatever measures are necessary to protect the 
public health, safety, or welfare from past coal mining practices. 
If written consent cannot be obtained for the purpose of emergency 
reclamation, and if notice cannot be given prior to entry, notice 
will be given to the landowner as soon after entry as is practical.

    The Director finds that the requirements of the revised policy in 
section 884.13(c)(6) are consistent with requirements in the Missouri 
regulation at 10 CSR 40-9.030(4) and the Federal regulation at 30 CFR 
877.14, concerning entry for emergency reclamation.
2. Section 884.13(d)(3), Purchasing and Procurement
    Missouri revised the procurement thresholds for services supplies 
and products contracts. The procurement thresholds that requires the 
use of formal sealed bids was raised from $10,000 to $25,000. The 
procurement threshold that requires compliance with State small 
purchase procedures was raised from $10,000 to $25,000. The negotiated 
procurement threshold was lowered from $10,000 to $3,000. Procurements 
in excess of $25,000 are to be recorded with the specified 
justification information.
    The Director finds that a procurement threshold of $25,000 is 
adequate for implementation of an AMLR Emergency Program, and the 
proposed revisions are consistent with the requirements of 30 CFR 
884.13(d)(3).

B. AMLR Emergency Program Demonstrations

    OSM's guidelines, published in the September 29, 1982, Federal 
Register (47 FR 42729), outline three requirements for State assumption 
of the AMLR emergency program. To be granted emergency authority by 
OSM, the State agency must demonstrate that it has the: (1) statutory 
authority to undertake emergencies, (2) technical capability to design 
and supervise the emergency work, and (3) administrative mechanisms to 
respond quickly to emergencies either directly or through contractors.
1. Statutory Authority
    The LRP has had statutory authority under RSMo section 444.915.1(5) 
to administer an emergency response program since approval of the 
Missouri plan on January 21, 1982. In order to implement this 
authority, Missouri's regulation at 10 CSR 40-9.030(4) provides for 
right of entry on any land where an emergency exists. In a letter dated 
January 25, 1980, the Governor of Missouri designated the Missouri 
Department of Natural Resources, Land Reclamation Commission as the 
State agency responsible for the Abandoned Mine Land Reclamation 
Program in Missouri. The Missouri Attorney General issued an official 
opinion on July 24, 1981, that the Missouri Department of Natural 
Resources, Land Reclamation Commission is authorized under State law to 
establish, administer and conduct a State reclamation program in 
accordance with the requirements of Title IV of the Federal Surface 
Mining Control and Reclamation Act of 1977, the regulations promulgated 
thereunder, and the State Reclamation Plan. Title IV of SMCRA covers 
both the regular AMLR program and the emergency reclamation program.
2. Technical Capability
    The LRP has demonstrated through past performance that it has the 
technical capability to implement an AMLR emergency program. In its 
March 31, 1998, submission of the amendment, Missouri submitted the 
following statement to demonstrate the LRP's technical capability to 
design and supervise the emergency work.

    Over the past four years, Missouri has successfully completed 
several high priority shaft closure and four subsidence reclamation 
projects. Although these were non-emergency projects, they were 
completed in a timely manner and the scope of work was similar to 
Missouri's past AML emergency projects. With six Land Reclamation 
Specialists and a registered professional engineer on the AML 
Section staff, the LRP has the technical capability to respond 
rapidly to AML emergency situations. Project designs and contract 
documents can be prepared in-house, avoiding the usual time delays 
associated with procuring and coordinating consulting engineering 
services agreements. The AML Section can also provide in-house 
resident inspection services, since emergency reclamation projects 
are typically of short duration.


[[Page 34279]]


    Missouri has conducted an AMLR Program since 1982. Technical 
capabilities utilized for emergency reclamation projects are the same 
as those used for normal, high priority reclamation projects; usually, 
only the project schedule is different. OSM's oversight reviews for the 
past 10 years have confirmed that the Missouri LRP has conducted 
subsidence abatement project design and construction work and has 
filled mine voids on many occasions with a high degree of competence 
and success. OSM's annual oversight reports also indicate that closure 
of shafts and mine portals and treatment of subsidence areas have been 
part of Missouri's high priority AMLR program for many years. As of the 
end of evaluation year 1997, the Missouri LRP had closed 125 vertical 
openings and 43 open mine portals and stabilized 634 acres of mine 
subsidence. These are the same types of abandoned mine land features 
that are likely to be encountered in the AMLR emergency program. OSM 
found in its review of the Missouri plan and OSM's annual oversight 
reports for 1991 through 1997 that Missouri has developed and refined 
the in-house investigation, design, and project administration 
abilities necessary to administer an AMLR program and an emergency 
response program.
3. Administrative Mechanisms
    A review of Missouri's revised purchasing and procurement 
procedures at section 884.13(d)(3) found that the LRP has the authority 
to issue contracts for emergency work in amounts up to $25,000. The 
$25,000 limit is similar to the small purchase threshold for Federal 
agencies and will allow Missouri adequate flexibility to address 
emergency conditions. Other administrative processes required to 
implement the emergency program are the same as those already in place 
for the Missouri AMLR program.
    In accordance with section 405 of SMCRA and 30 CFR 884.15, Missouri 
has submitted an amendment to its AMLR plan, and the Director has 
determined, pursuant to 30 CFR 884.14, that:
    (1) The public has been given adequate notice and opportunity to 
comment, and the record does not reflect major unresolved 
controversies.
    (2) Views of other Federal agencies have been solicited and 
considered.
    (3) The State has the legal authority, policies and administrative 
structure necessary to implement the amendment.
    (4) The proposed plan amendment meets all requirements of the 
Federal AMLR program regulations at 30 CFR Chapter VII, Subchapter R.
    (5) The State has an approved State Regulatory Program.
    (6) The amendment is in compliance with all applicable State and 
Federal laws and regulations.
    Therefore, the Director finds that the proposed Missouri plan 
amendment allowing the State to assume responsibility for an emergency 
response reclamation program on behalf of OSM is in compliance with 
SMCRA and meets the requirements of the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    OSM solicited public comments and provided an opportunity for a 
public hearing on the proposed amendment. No public comments were 
received, and because no one requested an opportunity to speak at a 
public hearing, no hearing was held.

Federal Agency Comments

    Pursuant to 30 CFR 884.14(a)(2) and 884.15(a), OSM solicited 
comments on the proposed amendment from various other Federal agencies 
with an actual or potential interest in the Missouri plan 
(Administrative Record No. AML-MO-104). No comments were received.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
plan amendment and Missouri's request to assume the AMLR emergency 
program as submitted by Missouri on March 31, 1998.
    The Federal regulations at 30 CFR Part 925, codifying decisions 
concerning the Missouri plan, are being amended to implement this 
decision.

VI. Procedural Determinations

Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State and Tribal abandoned mine land reclamation plans and revisions 
thereof, since each such plan is drafted and promulgated by a specific 
State or Tribe, not by OSM. Decisions on proposed abandoned mine land 
reclamation plans and revisions thereof submitted by a State or Tribe 
are based on a determination of whether the submittal meets the 
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR Part 
884.

National Environmental Policy Act

    No environmental impact statement is required for this rule. Agency 
decision on proposed State and Tribal abandoned mine land reclamation 
plans and revisions thereof are categorically excluded from compliance 
with the National Environmental Policy Act (42 U.S.C. 4332) by the 
Manual of the Department of the Interior (516 DM 6, Appendix 8, 
paragraph 8.4B(29)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented. In making the 
determination as to whether this rule would have a significant economic 
impact, the Department relied upon the data and assumptions in the 
analyses for the corresponding Federal regulations.

Unfunded Mandates

    OSM has determined and certifies pursuant to the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a 
cost of $100 million or more in any given year on local, state, or 
tribal governments or private entities.

List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.


[[Page 34280]]


    Dated: June 16, 1998.
Kathy Karpan,
Director Office of Surface Mining.

    For the reasons set out in the preamble, 30 CFR Part 925 is amended 
as set forth below:

PART 925--MISSOURI

    1. The authority citation for Part 925 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 925.25 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 925.25  Approval of Missouri abandoned mine land reclamation plan 
amendments.

* * * * *

------------------------------------------------------------------------
    Original amendment           Date of final            Citation/     
     submission date              publication            description    
------------------------------------------------------------------------
                                                                        
      *                   *                   *                   *     
                    *                 *                   *             
March 31, 1998...........  June 24, 1998...........  AMLR plan sections 
                                                      884.13(c)(6) and  
                                                      (d)(3); Emergency 
                                                      response          
                                                      reclamation       
                                                      program.          
------------------------------------------------------------------------

[FR Doc. 98-16811 Filed 6-23-98; 8:45 am]
BILLING CODE 4310-05-M