34768 Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Parts 707 and 874

RIN 1029–AB89

Abandoned Mine Land (AML)

Reclamation Program; Enhancing AML

Reclamation

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Proposed rule.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) is

proposing revisions to its rules

regarding the financing of Abandoned

Mine Land reclamation (AML) projects

that involve the incidental extraction of

coal. Projections of receipts to the AML

fund through the year 2004, when the

authority to collect fees will expire,

strongly indicate that there will be

insufficient money to address all

problems currently listed in the

Abandoned Mine Land Inventory

System. Given these limited AML

reclamation resources, OSM is seeking

an innovative way for AML agencies,

working with contractors, to maximize

available funds to increase AML

reclamation.

The first revision would amend the

definition of government-financed

construction to allow less than 50

percent government funding when the

construction is an approved AML

project under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA). The existing definition

requires a minimum government

contribution of 50 percent to exempt

government-financed construction from

regulation under SMCRA.

The second revision would add a new

section which would require specific

consultations and concurrences with the

Title V regulatory authority for AML

construction projects receiving less than

50 percent government financing. These

consultations and concurrences are

intended to ensure the appropriateness

of the project being undertaken as a

Title IV AML project and not under the

Title V regulatory program.

DATES: Written comments: We will

accept written comments on the

proposed rule until 5 p.m., Eastern time,

on July 27, 1998.

Public hearings: Upon request, we

will hold public hearings on the

proposed rule at dates, times and

locations to be announced in the

Federal Register before the hearings. We

will accept requests for public hearings

until 5 p.m., Eastern time, on July 6,

1998. Individuals wishing to attend, but

not testify at, any hearing should

contact the person identified under FOR

FURTHER INFORMATION CONTACT before

the hearing date to verify that the

hearing will be held.

ADDRESSES: If you wish to comment,

you may submit your comments on this

proposed rule by any one of several

methods. You may mail or hand deliver

comments to the Office of Surface

Mining Reclamation and Enforcement,

Administrative Record, Room 101, 1951

Constitution Avenue, NW, Washington,

D.C. 20240. You may also comment via

the Internet to OSM’s Administrative

Record at: osmrules@osmre.gov.

You may submit a request for a public

hearing orally or in writing to the

person and address specified under FOR

FURTHER INFORMATION CONTACT. The

address, date and time for any public

hearing held will be announced prior to

the hearings. Any disabled individual

who requires special accommodation to

attend a public hearing should also

contact the person listed under FOR

FURTHER INFORMATION CONTACT.

FOR FURTHER INFORMATION CONTACT: D.J.

Growitz, Office of Surface Mining

Reclamation and Enforcement, U.S.

Department of the Interior, 1951

Constitution Avenue, NW, Washington,

D.C. 20240; Telephone: 202–208–2634.

E-Mail: dgrowitz@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedures

II. Background

A. What is the AML reclamation program?

B. How do States and Indian Tribes

implement their programs?

C. Why is the rule being proposed?

D. What is the statutory authority for this

rulemaking?

E. How would this proposal work?

F. What is the relationship between the

AML agency and the AML contractor?

G. How would this proposed rule facilitate

more reclamation under Title IV?

H. Could private organizations (e.g.,

watershed groups) assist in AML

reclamation efforts?

I. Will this proposal result in

environmental abuses?

J. How would an AML agency approve

reclamation projects under the proposed

rule?

K. What would be the consequence of AML

contractors removing coal outside the

limits authorized by the AML project?

III. Discussion of Proposed Rule

A. What would be the change in definition

of government-financed construction at

section 707.5?

B. What is the change in information

collection for section 707.10?

C. What are the information collection

requirements for section 874.10?

D. What is the purpose behind proposed

section § 874.17?

E. How would the consultation in section

874.17(a) work?

F. What types of concurrences between the

AML agency and the regulatory authority

would be required in 874.17(b)?

G. Under § 874.17(c) how would the AML

agency document the results of the

consultation and the concurrences with

the Title V regulatory authority?

H. What special requirements would apply

for qualifying § 874.17(d) reclamation

projects?

I. What must the contractor do if he or she

extracts more coal than is specified in

§ 874.17(b)?

IV. Procedural Determinations

I. Public Comment Procedures

Thirty (30) Day Comment Period

In view of the extensive outreach

activity for this rulemaking and in order

to expedite the rulemaking, OSM will

allow a 30-day comment period in lieu

of the usual 60 days. In October 1997,

OSM prepared a preproposal draft of the

AML Enhancement Rule. The draft

proposal, similar to this proposed rule,

was distributed extensively. We mailed

the draft to over 200 parties, including

industry, State agencies, environmental

groups, and individuals. We also

announced the availability of the

document through a press release,

notice in the Federal Register, OSM

web site and fax-on-demand, and we

provided for a 30-day comment period.

Twenty-four people submitted written

comments. In addition to seeking

comments through our normal process,

we will mail a copy of this proposed

rule to each of the earlier commenters.

Written Comments

Written or electronic comments

submitted on the proposed rule should

be specific, should be confined to issues

pertinent to the proposed rule, and

should explain the reason for any

recommended change. Where

practicable, commenters should submit

three copies of their comments.

Comments received after the close of the

comment period (see DATES) or

delivered to an address other than listed

above (see ADDRESSES), may not be

considered or included in the

Administrative Record for the final rule.

Public Hearings

We will hold a public hearing on the

proposed rule upon request only. The

time, date, and address for any hearing

will be announced in the Federal

Register at least 7 days prior to the

hearing.

Any person interested in participating

at a hearing should inform Mr. Growitz

(see FOR FURTHER INFORMATION CONTACT),

either orally or in writing, of the desired

hearing location by 5:00 p.m., Eastern

time, on July 6, 1998. If no one has

contacted Mr. Growitz to express an
Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules 34769

interest in participating in a hearing at

a given location by that date, a hearing

will not be held. If only one person

expresses an interest, a public meeting

rather than a hearing may be held, with

the results included in the

Administrative Record.

If a hearing is held, it will continue

until all persons wishing to testify have

been heard. The hearing will be

transcribed. To assist the transcriber and

ensure an accurate record, we request

that each person who testifies at a

hearing provide the transcriber with a

written copy of his or her testimony. To

assist us in preparing appropriate

questions, we also request, if possible,

that each person who plans to testify

submit to us at the address previously

specified for the submission of written

comments (see ADDRESSES) an advance

copy of his or her testimony.

Please submit Internet comments as

an ASCII file avoiding the use of special

characters and any form of encryption.

Please also include ‘‘Attn: RIN 1029–

AB89’’ and your name and return

address in your Internet message. If you

do not receive a confirmation from the

system that we have received your

Internet message, contact us directly at

202–208–2847.

We will make comments, including

names and addresses of respondents,

available for public review during

regular business hours. Individual

respondents may request

confidentiality, which we will honor to

the extent allowable by law. If you wish

to withhold your name or address,

except for the city or town, you must

state this prominently at the beginning

of your comment. However, we will not

consider anonymous comments. We

will make all submissions from

organizations or businesses, and from

individuals identifying themselves as

representatives or officials of

organizations of businesses, available

for public inspection in their entirety.

II. Background

A. What is the AML Reclamation

Program?

Title IV of SMCRA established the

AML Reclamation Program in response

to concern about extensive

environmental damage caused by past

coal mining activities. The program is

funded primarily from a fee collected on

each ton of coal mined in the country.

This fee is deposited into a special fund,

the Abandoned Mine Land Fund

(Fund), and is appropriated annually to

address abandoned and inadequately

reclaimed mining areas where there is

no continuing reclamation

responsibility by any person under State

or Federal law. Under Title IV, the

funding of reclamation projects is

subject to a priority schedule with

emphasis first focused on sites affecting

public health, safety, general welfare

and property. In contrast, Title V

establishes a program for regulating

active mining and reclamation.

In most cases, the implementation of

both Title IV and Title V authority has

been delegated to States. Depending

upon each State’s internal

organizational structure, the Title IV

and Title V programs in many cases are

carried out by separate State authorities.

Currently, 23 States and 3 Indian

Tribes (the Hopi, the Navajo and the

Crow) have authority to receive grants

from the Fund and are implementing

Title IV reclamation programs in

accordance with 30 CFR Subchapter R

and through implementing guidelines

published in the Federal Register on

March 6, 1980 (45 FR 27123), and

revised on December 30, 1996 (45 FR

68777). In States and on Indian lands

that do not have a Title IV program,

reclamation is carried out by OSM.

B. How Do States and Indian Tribes

Implement Their Programs?

State and Indian Tribe AML programs

are funded at 100 per cent by OSM from

money appropriated annually from the

AML Fund. The States and Indian

Tribes must submit grant applications in

accordance with procedures established

by OSM and existing grant regulations

found at 30 CFR 886. They must certify

with each grant that the requirements of

all applicable laws and regulations are

met, including the Clean Water Act, the

Clean Air Act, the National Historic

Preservation Act, and the Endangered

Species Act. They may only undertake

projects that are eligible for funding as

described in either section 404 or

section 411 of SMCRA and which meet

the priorities established in section 403

of SMCRA. OSM requires that the State

Attorney General or other chief legal

officer certify that each reclamation

project to be undertaken is an eligible

site.

Certain environmental, fiscal,

administrative and legal requirements

must be in place in order for a program

to receive grants for reclamation. An

extensive description of these

requirements can be found at 30 CFR

884, but certain of those are mentioned

here to highlight the safeguards the

AML program has in place. For

example, the agency must have written

policies and procedures which outline

how they will comply with the

requirements of SMCRA and

implementing regulations in conducting

a reclamation program, how projects

will be ranked for reclamation priority,

how the public will be given an

opportunity to comment on proposed

reclamation projects and how it will

comply with all applicable Federal and

State laws and regulations.

The State or Indian Tribe chooses

individual projects based upon the

selection criteria in its reclamation

program. While these criteria differ

among programs, they all consider the

priority of the problem, public opinion

regarding the project, cost effectiveness,

technical feasibility and how the area

will be used once reclaimed.

State and Tribal programs seek public

input in several ways. For example,

some AML programs require that a

notice requesting comments on

proposed reclamation be published in

newspapers of general circulation in the

area to be reclaimed. Some publish

newspaper notices asking the public to

identify potential reclamation sites.

Others have public meetings to discuss

upcoming reclamation or to identify

potential sites. Still other programs seek

public input about reclamation

activities or potential sites through

Federal Register notices.

OSM does not approve individual

projects, but before construction begins

on any project, OSM must ensure that

all requirements of the National

Environmental Policy Act of 1969

(NEPA) are met. Once OSM assures that

the project complies with NEPA, it

provides an authorization to proceed on

the project.

OSM annually reviews the State and

Tribal AML programs to ensure that all

program requirements are properly met,

including site eligibility, proper

financial policies and procedures, and

reclamation accomplishments. State and

Tribal agencies and OSM also review

completed projects to determine the

success of AML reclamation. Completed

projects may be revisited as part of a

site-specific contract, as part of an

annual post-construction evaluation, or

as otherwise specified under the State or

tribal AML reclamation program’s

maintenance plan.

Further, AML reclamation programs

evaluate selected completed AML

reclamation projects to determine how

effective the overall reclamation

program has been. Normally, these

evaluations are annual, random samples

of many types of reclamation, such as

reclaimed subsidence areas, eliminated

landslides, sealed openings and

removed refuse piles. State and tribal

programs would be responsible to

prevent abuse of this proposal and

could use a monitoring program such as

this on all projects completed with less

than 50 percent government-financing
34770 Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules

to ensure that no problems arise after

construction. As warranted in the

judgment of the State or tribal AML

authority, the frequency of these postconstruction evaluations could be

reduced.

C. Why Is the Rule Being Proposed?

In some States, there will never be

enough public money to abate all of the

most serious AML sites—those which

present an extreme danger to human

health, safety and welfare. The

Abandoned Mine Land Inventory

estimates the cost to reclaim these most

serious sites to be over 2.6 billion

dollars. Beyond these highest priority

sites, there are thousands of other AML

sites which meet the AML eligibility

requirements and pose a serious

environmental threat. This proposal

would facilitate the reclamation of some

of these sites at less cost to the

government by allowing the sale of coal

extracted as an incidental part of the

reclamation project to offset the overall

cost of reclamation.

D. What is the Statutory Authority for

This Rulemaking?

Three sections in SMCRA outline the

eligibility requirements for sites being

considered for funding under the AML

program. They are sections 404,

402(g)(4)(B)(i), and 402(g)(4)(B)(ii).

Section 403 of SMCRA establishes

priorities for the expenditures from the

AML Fund on eligible sites. An

otherwise eligible site must meet one of

the five priorities of Section 403(a)(1)–

(5) in order to be funded.

Section 413(a) of SMCRA provides the

Secretary with the ‘‘power and the

authority, if not granted it otherwise, to

engage in any work and to do all things

necessary or expedient, including the

promulgation of rules and regulations,

to implement and administer the

provisions of this [Title IV].’’

This proposed rule change is limited

in its application to the AML program

and is necessary and expedient for OSM

and the States and Tribes to more

efficiently and effectively carry out the

reclamation mandate established by

Congress. This statutory authority

allows OSM to propose revisions to the

AML program that will provide States

and Tribes the authority to reduce

project costs to the maximum extent

practical on abandoned mine sites

which have deposits of coal or coal

refuse remaining. Thus, the proposed

rule change would allow for more

program-wide reclamation for the same

level of program funding.

In addition, Congress specifically

provided under section 528(2) of

SMCRA that SMCRA would not apply

to activities involving the ‘‘extraction of

coal as an incidental part of Federal,

State or local government-financed

highway or other construction under

regulations established by the regulatory

authority.’’ Thus, Title V permitting

requirements do not apply to areas from

which coal is extracted as an incidental

part of a government-financed

operation. Because AML reclamation

projects are government financed, they

qualify as government-financed

construction under section 528(2).

E. How Would This Proposal Work?

In many cases eligible AML sites

contain recoverable coal that was either

left in the ground when the site was

abandoned or that remains at the site in

the form of coal refuse or other waste.

While this coal may have some market

value, it is often sufficiently marginal

that coal mine operators are not willing

to assume the financial burden of

mining and reclaiming the site as a

permitted Title V operation.

To the extent that the extraction of

coal would be necessary to accomplish

the reclamation of an approved AML

project, the extraction would be

incidental to that project. This concept

conforms to existing regulation at 30

CFR 707.5. Coal extracted outside the

predetermined boundaries or whose

extraction is not necessary for

reclamation will be subject to Title V

permitting provisions. Both the

boundaries for reclamation projects, and

the amount of coal which must be

removed for the prescribed reclamation

will be decided by the AML agency and

will be clearly identified in the

reclamation contract.

Under current regulations and

guidelines, proceeds from the sale of

incidental coal must be applied to offset

the contract price. Coal extraction must

be monitored carefully because

proceeds must be kept below half the

original total price since no more than

50 percent of the total contract can come

from non-government sources. In many

cases, when the amount gained from the

sale of incidental coal exceeds more

than 50 percent of the contract, the

contract can not be executed and the

reclamation is not done. Under the

proposal, contractors would be allowed

to sell incidental coal and keep the

proceeds from the sale of incidental

coal. Contractors would reflect this

anticipated sale of coal in the bid price

for the contract.

Under the proposed rule, less public

funds would be required to accomplish

the same level of AML reclamation. This

would result in the availability of more

AML Fund monies for a greater number

of AML reclamation projects. Further

discussion as to how the proposed rule

would facilitate increased reclamation

under Title IV can be found in Part II.

G. in this preamble.

This proposal would not have any

effect on existing AML program

requirements. The eligibility for AML

projects, the procurement systems

which States and Indian Tribes use to

contract for AML reclamation, and all

Federal or State requirements that

otherwise pertain to AML projects

would all remain the same. The

proposal would not be mandatory for

the States or Indian Tribes if they

choose not to approve AML projects

with less than 50% governmentfinancing.

F. What is the Relationship Between the

AML Agency and the AML Contractor?

The relationship between the AML

agency and the AML contractor under

the proposed rule would remain the

same as for any approved reclamation

project. Actual construction is usually

done under a site-specific contract

between the reclamation agency and

third-party contractors. These contracts

clearly outline the scope of work for

each project, the cost, the time frames

involved, how the contractor will be

paid and penalties for failure to meet

the contractual obligations by either

party. The content of the contracts,

along with bidding and selection

procedures, performance bonding

requirements and other contractual

matters are established within each

program in accordance with State or

Tribal laws.

The AML agency ensures the

contractor’s conformance with

applicable procedures through site visits

and other monitoring techniques. If the

contractor does not meet the terms of

the contract, the AML agency invokes

the penalties contained in the contract

and allowed by law.

Each contract sets forth any unique

features for the project to be reclaimed

and any site-specific criteria for that

project. For example, a project to

address water quality problems will

outline the acceptable pH or sediment

levels for the water or sediment, the

monitoring period associated with the

treatment, whether wetlands will be

created, any projected effects on wildlife

and any particular environmental

impacts at the site or on adjacent

properties. Sediment and water quality

control plans are to provide for adequate

environmental protection during the

construction phase of the reclamation

project as well as after its completion.

When contracts are written, the AML

reclamation agency can require that a

project pass specific requirements after
Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules 34771

reclamation. For example, a contract

could specify that a retaining wall

provide protection for a highway for a

three-year period. The contract could

also specify that, should the highway

fail, the contractor must return to repair

the damage. The frequency and extent of

follow-up by the AML reclamation

agency is written into the contract.

The reclamation contract would set

forth the amount and extent of

incidental coal which could be

extracted. AML contractors removing

coal outside those contract parameters

could be subject to immediate

termination of their AML contracts,

forfeiture of any performance and

reclamation bonds, and all other

remedies provided by law for breach of

contract.

G. How Would This Proposed Rule

Facilitate More Reclamation Under Title

IV?

The rule would decrease the cost to

the public for reclaiming many

abandoned problem sites where

reclamation requires the incidental

extraction of coal. This coal may be in

the form of previously undisturbed coal

formations or coal refuse. While the

overall cost for the reclamation of these

sites would remain the same, in each

case the public cost would be reduced

under this proposal because a larger

percentage of the total project cost, i.e.,

over 50 percent, would be financed by

the AML contractor through sale of the

coal recovered from the site.

Also, because certain governmentfinanced AML construction projects

would cost the AML agencies less under

this proposal than under the current

definition of government-financed

construction, which requires at least 50

percent government funding, the

savings could be allocated to funding

additional AML projects. Thus, the

AML agency could accomplish more

reclamation with the same amount of

program funding.

The following example, for

illustrative purposes only, outlines the

process by which extraction of

incidental coal under our proposal

could reduce the cost for Title IV

reclamation at an AML eligible site.

Example: After the requisite consultation

and concurrences with the Title V regulatory

authority, the AML agency announces a

contract solicitation to receive bids for the

reclamation of a refuse pile contributing

sediment and acid mine drainage to local

streams. Prior to the solicitation, the AML

agency estimates the total cost of reclaiming

the refuse pile (removing it to another site

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

figure would include a $50,000 allowance for

administrative expenses such as project

design and project monitoring. Based on

existing chemical analysis of the refuse pile,

including BTU information, estimates place

the net market value of the incidental coal in

the refuse pile (after transportation, cleaning,

royalty costs, etc.) at $400,000. The estimated

net cost for the project would then be

$100,000 ($500,000–$400,000). Based on

these estimates, project bids from contractors

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

condition that the extracted incidental coal

would become the property of the contractor.

Thus reclamation of a project that would

ordinarily cost the AML agency $500,000

without contractor sale of incidental coal, or

that would cost the agency at least $250,000

under the existing rule requiring at least 50

percent government funding, would cost only

about $100,000 under our proposal.

If the contract is awarded, the contractor

would be fully responsible for the

completion of the work regardless of his

return on the sale of incidental coal.

This proposal should result in the

reclamation of certain AML sites which

commonly contribute acid mine drainage

(AMD) or other environmental problems far

beyond their realty boundaries and which

have little likelihood of otherwise being

reclaimed under current Title IV regulations

or being mined under Title V of SMCRA.

These sites would not likely be reclaimed

under the Title IV program because limited

AML funds would ordinarily be directed to

higher priority reclamation. Nor would these

sites likely be mined under the Title V

regulatory program due to their marginal coal

reserves and/or potential for significant longterm liability for the ever-present AMD or

other problems which may exist at the site.

Beyond the refuse piles discussed above,

other examples of AML sites where

reclamation could involve the extraction of

incidental coal include previously deepmined areas needing to be daylighted to

remove remaining pillars and highwalls

needing a second cut to remove acidproducing coal deposits.

H. Could Private Organizations (e.g.,

Watershed Groups) Assist in AML

Reclamation Efforts?

Yes. AML agencies can form

partnerships with industry, private

citizens and other government agencies

to help address AML problems.

Partnerships such as those developed

under the Clean Stream’s Initiative are

an example of how these outside groups

can assist in reclaiming lands. Outside

funds can also be contributed for

specific AML projects as allowed by

law.

I. Will This Proposal Result in

Environmental Abuses?

We do not believe that this proposal

will result in environmental abuses.

Under the AML program the percentage

of government funding for reclamation

of an eligible site does not adversely

impact the quality of the reclamation of

that site. The AML agency selects

individual sites from the Abandoned

Mine Land Inventory using its priority

system. The AML agency then develops

the reclamation parameters for that site

and includes them in its reclamation

contract. The AML agency, not the AML

contractor or the owner of the coal,

establishes these parameters. The AML

agency oversees the reclamation and

ensures adherence to the contract

requirements. These requirements

would dictate or stipulate that any coal

extraction that occurs be incidental to

the construction work, i.e., is limited to

only that which is necessary to carry out

the prescribed reclamation in order to

address the identified health, safety or

environmental problem.

J. How Would an AML Agency Approve

Reclamation Projects Under the

Proposed Rule?

Like any other AML project,

reclamation projects involving the

incidental extraction of coal and

reduced government funding levels

would have to meet the requirements

specified in 30 CFR Subchapter R. AML

projects are not selected by the

contractor. The AML agency has total

control over every project specification

from design, to bidding, to final

reclamation completion. The selection

of reclamation sites by the AML agency

is based on the need to protect the

public health and safety or environment

from the adverse effects of past mining

activities. A particular site could be

selected only after the AML agency has

determined that private industry was

unable or unwilling to remine and

reclaim the site as a Title V operation,

and the State Attorney General or other

legal officer has certified that the project

meets the eligibility requirements

specified in State or Indian Tribe

counterparts to Title IV.

OSM is expressly prescribing certain

procedures to be followed to prevent

potential abuses of the reduced funding

level provisions. First, the AML agency,

in consultation with the Title V

regulatory authority, would determine

whether the site would be appropriate

for AML reclamation activities based on

the likelihood of extracting the coal

under a Title V permit. In addition, the

Title V regulatory authority and the

Title IV AML agency would concur on

the boundaries of the AML project and

on the extent and amount of the coal to

be incidentally extracted during the

reclamation project. This delineation of

coal would include only that portion of

the total coal at the site that must be

extracted in order to remediate the

particular hazard or environmental

problem caused by past mining.

Through this proposal we hope to

target long-standing AML problem sites.

The proposal is not designed to address
34772 Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules

sites involving redisturbance and

subsequent reclamation of abandoned

mine lands, such as highwalls and

outslopes that have become

environmentally stable over the years

and pose no other problems.

K. What Would be the Consequence of

AML Contractors Removing Coal

Outside the Limits Authorized by the

AML Project?

AML contractors removing coal

outside those contract parameters could

be subject to immediate termination of

their AML contracts, forfeiture of any

performance and reclamation bonds,

and all other remedies provided by law

for breach of contract.

III. Discussion of Proposed Rule

A. What Would Be the Change in

definition of Government-Financed

Construction at Section 707.5?

OSM is proposing to amend the

definition of government-financed

construction in § 707.5 of the permanent

program regulations by allowing for a

lower percentage of financing from OSM

or other AML reclamation agencies for

government construction sites under

Title IV reclamation which involve the

incidental extraction of coal. A

government agency includes a State or

Indian Tribe with an approved Title IV

program under the definition of agency

found at 30 CFR 870.5. For those States

and Indian Tribes that do not have

approved Title IV programs, a

government agency means OSM or its

designated State agent.

Reclamation projects are funded from

several sources. Some of these sources

include private individuals who donate

time and money, environmental groups,

utilities, industry and government

funding under the AML program. Under

the current definition of governmentfinanced construction, the government’s

financial share of the AML reclamation

must be at least 50 percent of the total

project cost. This percentage restriction

limits the ability of AML agencies to

undertake certain reclamation projects

because there may be insufficient AML

funds to accomplish all necessary

reclamation in a State or on Tribal land

and funds must be prioritized for

maximum impact. By reducing the

government share required for AML

projects, OSM and the States and Indian

Tribes would maximize existing AML

funds and work cooperatively and in

partnership with industry, citizens, and

the environmental community to bring

about reclamation that otherwise might

never be accomplished. In addition to

reducing the required government share

for AML projects, we have rewritten the

definition of government-financed

construction in the ‘‘Plain English’’ style

in order to improve its clarity. The

‘‘Plain English’’ rewriting is not

intended to effect any substantive

changes to the existing definition.

B. What is the Change in Information

Collection for Section 707.10?

OSM proposes to revise section

707.10 which contains the information

collection requirements for Part 707.

The proposed revision changes the

justification for the current exemption

from the requirements of the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.)

The revised basis for this exemption is

that the information required to be

maintained in section 707.12 consists

only of information that would be

provided by persons in the normal

course of their business activities.

C. What are the Information Collection

Requirements for Section 874.10?

OSM also proposes to add a § 874.10

which contains the information

collection requirements for Part 874 and

the Office of Management and Budget

(OMB) clearance number. The proposed

addition includes the estimated

reporting burden per project for

complying with the new information

collection requirements contained in

this proposed rulemaking.

D. What is the Purpose Behind Proposed

Section 874.17?

This new section would outline the

procedures an AML agency would need

to follow in approving AML projects

receiving less than 50 percent

government funding because of planned

coal extraction incidental to the

reclamation.

E. How Would the Consultation in

Section 874.17(a) Work?

The consultation process under

proposed 874.17(a) would require the

AML agency to consult with the

regulatory authority to determine the

likelihood of the coal being mined

under a Title V permit. The purpose of

this consultation would be to ensure

that the AML program and funds are not

used for activities that should properly

be permitted and regulated under Title

V. Through this consultation process

OSM intends that AML funds be

directed only to eligible sites.

OSM believes the information upon

which the ‘‘likelihood of the coal being

mined under a Title V permit’’

determination is made should be

information that is reasonably available.

We have listed certain kinds of

information that we believe would be

available and also helpful in reaching a

decision on whether or not to proceed

with the project under the AML

program. These examples of ‘‘available’’

information are not exhaustive. Each

site will present a different set of

circumstances and problems which are

best addressed on a case-by-case basis.

We are leaving it to the experience and

technical and professional judgment of

the Title IV and Title V officials within

each jurisdiction to decide if an

abandoned mine land site should be

mined under a Title V permit or

reclaimed under the Title IV AML

program. Those decisions will continue

to be monitored by OSM through its

oversight of the respective programs.

Under this section, the AML agency

would also consult with the regulatory

authority to determine the likelihood for

potential problems and impacts arising

between Title IV reclamation projects

and adjacent or nearby Title V

operations when such Title V operations

are present. The purpose of this

provision is to identify problems at an

early stage and to establish the

reclamation responsibility. An example

is where there might be a hydrologic

connection between nearby or adjacent

Title IV and Title V activities. In such

cases, OSM believes it is essential to

ensure that responsibility for

environmental problems, such as acid

mine drainage arising from a permitted

Title V activity but impacting a Title IV

activity, remains with the Title V

permittee. Conversely, a Title V

permittee would not be responsible for

any environmental problems stemming

from a Title IV reclamation activity.

F. What Types of Concurrences Between

the AML Agency and the Regulatory

Authority Would Be Required in

§ 874.17(b)?

If the AML agency decides to proceed

with the reclamation project after

consulting with the Title V regulatory

authority, then the two must concur in

determinations as to: (1) the extent and

amount of any coal refuse, coal waste,

or other coal deposits, the extraction of

which would be covered by the Part 707

exemption or counterpart State and

Tribal laws and regulations, and (2) the

delineation of the boundaries of the

AML project. These determinations are

intended to ensure that only the amount

of coal needed to accomplish the

reclamation is covered by the Part 707

exemption. This coal would be exempt

from the reclamation fee payment.
Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules 34773

G. Under § 874.17(c) How Would the

AML Agency Document the Results of

the Consultation and the Concurrences

With the Title V Regulatory Authority?

The AML agency would document in

the AML case file the determinations as

to the likelihood of coal at the site being

mined under a Title V permit and the

likelihood of interactions between AML

activities and nearby or adjacent Title V

activities that might create new

environmental problems or adversely

affect existing situations. Furthermore,

the AML agency would document the

information used for making these

determinations and the names of the

responsible agency officials.

H. What Special Requirements Would

Apply for Qualifying § 874.17(d)

Reclamation Projects?

Proposed paragraph 874.17(d)(2)

would expressly require that qualifying

AML reclamation projects comply with

provisions for State and Tribal

reclamation plans and grants found at

30 CFR Subchapter R. The required

compliance with Subchapter R is

intended to ensure that the incidental

coal extraction projects authorized

under this rulemaking would be

accomplished in accordance with the

substantial safeguards of the AML

program. These safeguards include such

things as: public participation and

involvement; environmental evaluation

to achieve compliance with the National

Environmental Policy Act of 1969; and

use of appropriate State or Tribal

procurement procedures and regulations

as authorized under the grant common

rule at 43 CFR 12.76.

Further, to provide increased

protections to the AML fund and to

citizens or landowners who might be

affected by the project, we are including

three additional requirements to

qualifying § 874.17(d) reclamation

projects. Paragraph (d)(1) would require

the AML agency to characterize the site

in terms of existing hydrologic and

other environmental problems.

Paragraph (d)(3) would require the AML

agency to develop site-specific

reclamation and contractual provisions

such as performance bonds to ensure

that the reclamation is completed.

Paragraph (d)(4) would require the

contractor to provide documents that

authorize the extraction of the coal and

payment of royalties to the mineral

owner or other applicable party. The

purpose of these requirements is to

ensure that before a contract is awarded,

there is a valid coal lease authorizing

the contractor to extract the coal. The

lease would identify the party

responsible for paying the royalty, the

amount of the royalty, and the party

receiving the royalty.

I. What Must the Contractor Do if He or

She Extracts More Coal Than Is

Specified in § 874.17(b)?

Section 874.17(e) would require the

contractor to obtain a permit under Title

V for the extraction of any coal not

included in the paragraph (b)(1) Part

707 exemption. Such coal extraction

would not be incidental to the AML

reclamation project and thus would be

subject to all the Title V requirements.

The reclamation contract between the

AML agency and the contractor

therefore should clearly set forth the

extent and amount of coal covered by

that exemption, as concurred in by the

Title V regulatory authority under

paragraph 874.17(b)(1).

IV. Procedural Determinations

1. Executive Order 12866—Regulatory

Planning and Review

This document is not a significant

rule and is not subject to review by the

Office of Management and Budget under

Executive Order 12866.

a. This rule will not have an effect of

$100 million or more on the economy.

It will not adversely affect in a material

way the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local,

or Tribal governments or communities.

b. This rule will not create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency.

c. This rule does not alter the

budgetary effects or entitlements, grants,

user fees, or loan programs or the rights

or obligations of their recipients.

d. This rule does not raise novel legal

or policy issues.

2. Regulatory Flexibility Act

The Department of the Interior

certifies that this rule will not have a

significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). This determination

is based on the findings that the

regulatory additions in the rule will not

change costs to industry or to the

Federal, State, or local governments.

Furthermore, the rule produces no

adverse effects on competition,

employment, investment, productivity,

innovation, or the ability of United

States enterprises to compete with

foreign-based enterprises in domestic or

export markets.

3. Small Business Regulatory

Enforcement Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule:

a. Does not have an annual effect on

the economy of $100 million or more. It

would allow AML agencies to work in

partnership with contractors to leverage

finite AML Reclamation Fund dollars to

accomplish more reclamation. To offset

the reduction in government funding,

the contractor would be allowed to sell

coal found incidental to the project and

recovered as part of the reclamation.

Participation under the rule change is

strictly voluntary and those

participating are expected to do so

because of the economic benefit.

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, Federal, State, or

local government agencies, or

geographic regions because the rule

does not impose any new requirements

on the coal mining industry or

consumers, and State and Indian AML

program administration is funded at 100

percent by the Federal government.

c. Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S.-based enterprises to

compete with foreign-based enterprises

for the reasons stated above.

4. Unfunded Mandates

This rule does not impose an

unfunded mandate on State, local, or

Tribal governments or the private sector

of more than $100 million per year. The

rule does not have a significant or

unique effect on State, local or Tribal

governments or the private sector. The

administration of the AML program by

a State or Indian Tribe is funded at 100

percent by the Federal Government and

the decision by a State or Indian Tribe

to participate is voluntary. A statement

containing the information required by

the Unfunded Mandates Reform Act (1

U.S.C. 1531, et seq.) is not required.

5. Executive Order 12630—Takings

In accordance with Executive Order

12630, the rule does not have significant

takings implications. The rule would

allow AML agencies to work in

partnership with contractors to leverage

finite AML Reclamation Fund dollars to

accomplish more reclamation. To offset

the reduction in government funding,

the contractor would be allowed to sell

coal found incidental to the project and

recovered as part of the reclamation.
34774 Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules

6. Executive Order 12612—Federalism

In accordance with Executive Order

12612, the rule does not have significant

Federalism implications to warrant the

preparation of a Federalism Assessment

for the reasons discussed above.

7. Executive Order 12988—Civil Justice

Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that this rule does not

unduly burden the judicial system and

meets the requirements of sections 3(a)

and 3(b)(2) of the Order.

8. Paperwork Reduction Act

In accordance with 44 U.S.C. 3507(d),

OSM has submitted the information

collection and record keeping

requirements of 30 CFR Part 874 to the

Office of Management and Budget

(OMB) for review and approval.

Part 874 establishes land and water

eligibility requirements, reclamation

objectives and priorities and

reclamation contractor responsibility.

This proposal would add a new section

at 30 CFR 874.17 titled ‘‘AML Agency

Procedures for Reclamation Projects

Receiving Less than 50 percent

government funding.’’ This section

would require consultation between the

AML agency and the appropriate Title V

regulatory authority on the likelihood of

removing the coal under a Title V

permit and concurrences between the

AML agency and the appropriate Title V

regulatory authority on the AML project

boundary and the amount of coal that

would be extracted under the AML

reclamation project. This section would

also require compliance with 30 CFR

Subchapter R and related provisions to

insure that adequate environmental

safeguards are considered and followed

during AML reclamation project.

Need for and Use: OSM, State and

Tribal regulatory authorities use the

information collected under 30 CFR Part

874 to ensure that appropriate

reclamation projects involving the

incidental extraction of coal are

conducted under the authority of

section 528(2) of SMCRA and that

selected projects contain sufficient

environmental safeguards.

Respondents: The 26 State regulatory

authorities and Indian Tribes who will

be reviewing and consulting on between

20 and 80 plus reclamation projects

involving the incidental removal of coal

that OSM and State regulatory

authorities are expected to initiate each

year.

Total Annual Burden: For each

project OSM estimates that two persons

will need a total average of 16 hours to

review information during the

consultation phase of section 874.17

(a)(1) and (2); that two persons will need

a total average of 4 hours to make the

determinations required during the

concurrence phase of section

874.17(b)(1) and (2); that one person

will need an average of 1 hour for the

file documentation requirement of

section 874.17(c) and that one person

will need an average of 6 hours to

determine the special environmental

and site reclamation requirements. The

total burden for each project is

estimated to be 27 hours. The estimated

total annual burden for 30 CFR 874.17

ranges from a low of 540 hours to a

maximum of more than 2,160 hours,

averaging 1,500 hours annually.

Comments are invited on:

(a) Whether the proposed collection of

information is necessary for the proper

performance of OSM and State

regulatory authorities, including

whether the information will have

practical utility;

(b) The accuracy of OSM’s estimate of

the burden of the proposed collection of

information;

(c) Ways to enhance the quality,

utility, and clarity of the information to

be collected; and

(d) Ways to minimize the burden of

collection on the respondents. Under

the Paperwork Reduction Act, OSM

must obtain OMB approval of all

information and record keeping

requirements. No person is required to

respond to an information collection

request unless the form or regulation

requesting the information has a

currently valid OMB control (clearance)

number. The control number will

appear in section 874.10. To obtain a

copy of OSM’s information collection

clearance request, explanatory

information, and related form, contact

John A. Trelease at (202) 208–2783 or by

e-mail at jtreleas@osmre.gov.

By law, OMB must submit comments

to OSM within 60 days of publication of

this proposed rule, but may respond as

soon as 30 days after publication.

Therefore, to ensure consideration by

OMB, you must send comments

regarding these burden estimates or any

other aspect of these information

collection and record keeping

requirements by July 27, 1998, to the

Office of Management and Budget,

Office of Information and Regulatory

Affairs, Attention: Interior Desk Officer,

725 17th Street, NW, Washington, DC

20503.

9. National Environmental Policy Act

OSM has prepared a draft

environmental assessment (EA) of this

proposed rule and has made a tentative

finding that it would not significantly

affect the quality of the human

environment under section 102(2)(C) of

the National Environmental Policy Act

of 1969 (NEPA), 42 U.S.C. section

4332(2)(C). It is anticipated that a

finding of no significant impact (FONSI)

will be made for the final rule in

accordance with OSM procedures under

NEPA. The EA is on file in the OSM

Administrative Record at the address

specified previously (see ADDRESSES).

The EA will be completed and a finding

made on the significance of any

resulting impacts before we publish the

final rule.

10. Clarity of This Regulation

Executive Order 12866 requires each

agency to write regulations that are easy

to understand. We invite your

comments on how to make this

proposed rule easier to understand,

including answers to questions such as

the following: (1) Are the requirements

in the proposed rule clearly stated? (2)

Does the proposed rule contain

technical language or jargon that

interferes with its clarity? (3) Does the

format of the proposed rule (grouping

and order of sections, use of headings,

paragraphing, etc.) aid or reduce its

clarity? (4) Would the rule be easier to

understand if it were divided into more

(but shorter) sections? (A ‘‘section’’

appears in bold type and is preceded by

the symbol ‘‘§ ’’ and a numbered

heading; for example, § 874.17 AML

agency procedures for reclamation

projects receiving less than 50 percent

government funding.). (5) Is the

description of the proposed rule in the

SUPPLEMENTARY INFORMATION section of

this preamble helpful in understanding

the proposed rule? What else could we

do to make the proposed rule easier to

understand?

Send a copy of any comments that

concern how we could make this

proposed rule easier to understand to:

Office of Regulatory Affairs, Department

of the Interior, Room 7229, 1849 C

Street NW, Washington, DC 20240. You

may also e-mail the comments to this

address: Exsec@ios.doi.gov

11. Authors

D.J. Growitz and Danny Lytton, Office

of Surface Mining Reclamation and

Enforcement, U.S. Department of the

Interior, 1951 Constitution Avenue,

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

List of Subjects

30 CFR Part 707

Highways and roads, Incidental

mining, Reporting and recordkeeping
Federal Register / Vol. 63, No. 122 /Thursday, June 25, 1998 / Proposed Rules 34775

requirements, Surface mining,

Underground mining.

30 CFR Part 874

Reclamation, Surface mining,

Underground mining.

Dated: June 19, 1998.

Bob Armstrong,

Assistant Secretary, Land and Minerals

Management.

For the reasons given in the preamble,

OSM proposes to amend 30 CFR Parts

707 and 874 as set forth below:

PART 707—EXEMPTION FOR COAL

EXTRACTION INCIDENT TO

GOVERNMENT-FINANCED HIGHWAY

OR OTHER CONSTRUCTION

1. The authority citation for Part 707

continues to read as follows:

Authority: Secs. 102, 201, 501, and 528 of

Pub. L. 95–87, 91 Stat. 448, 449, 467, and 514

(30 U.S.C. 1202, 1211, 1251, 1278).

2. In § 707.5, the definition of

Government-financed construction is

revised to read as follows:

§ 707.5 Definitions.

* * * * *

Government-financed construction

means construction funded 50 percent

or more by funds appropriated from a

government financing agency’s budget

or obtained from general revenue bonds.

Funding at less than 50 percent may

qualify if the construction is undertaken

as an approved reclamation project

under Title IV of the Act. Construction

funded through government financing

agency guarantees, insurance, loans,

funds obtained through industrial

revenue bonds or their equivalent, or inkind payments does not qualify as

government-financed construction.

3. Section 707.10 is revised to read as

follows:

§ 707.10 Information collection.

Since the information collection

requirement contained in 30 CFR 707.12

consists only of expenditures on

information collection activities that

would be incurred by persons in the

normal course of their activities, it is

exempt from the requirements of the

Paperwork Reduction Act (44

U.S.C.3501 et seq.) and does not require

clearance by OMB.

PART 874—GENERAL RECLAMATION

REQUIREMENTS

4. The authority citation for Part 874

continues to read as follows:

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

amended.

5. Section 874.10 is added to read as

follows:

§ 874.10 Information collection.

(a) In accordance with 44 U.S.C. 3501

et seq., the Office of Management and

Budget (OMB) has approved the

information collection requirements of

this part. The OMB clearance number is

1029–XXXX. This information is needed

to ensure that appropriate reclamation

projects involving the incidental

extraction of coal are conducted under

the authority of section 528(2) of

SMCRA and that selected projects

contain sufficient environmental

safeguards. Persons must respond to

obtain a benefit.

(b) OSM estimates that the public

reporting burden for this part will

average 27 hours per project, including

time spent reviewing instructions,

searching existing data sources,

gathering and maintaining the data

needed, and completing and reviewing

the collection of information. Send

comments regarding this burden

estimate or any other aspect of these

information collection requirements,

including suggestions for reducing the

burden, to the Office of Surface Mining

Reclamation and Enforcement,

Information Collection Clearance

Officer, 1951 Constitution Avenue,

N.W., Washington, DC 20240; and the

Office of Management and Budget,

Office of Information and Regulatory

Affairs, Attention: Interior Desk Officer,

725 17th Street, NW, Washington, DC

20503. Please refer to OMB Control

Number 1029–XXXX in any

correspondence.

6. Section 874.17 is added to read as

follows:

§ 874.17 AML agency procedures for

reclamation projects receiving less than 50

percent government funding.

This section tells you, the AML

agency, what to do when considering an

abandoned mine land reclamation

project as government-financed

construction under part 707 of this

chapter. This section only applies if the

level of funding for the construction

will be less than 50 percent of the total

cost because of planned coal extraction.

(a) Consultation with the Title V

Regulatory Authority. In consultation

with the Title V regulatory authority,

you must make the following

determinations:

(1) You must determine the likelihood

of the coal being mined under a Title V

permit. This determination must take

into account available information such

as:

(i) Coal reserves from existing mine

maps or other sources;

(ii) Existing environmental

conditions;

(iii) All prior mining activity on or

adjacent to the site;

(iv) Current and historic coal

production in the area; and

(v) Any known or anticipated interest

in mining the site.

(2) You must determine the likelihood

that nearby or adjacent mining activities

might create new environmental

problems or adversely affect existing

environmental problems at the site.

(3) You must determine the likelihood

that reclamation activities at the site

might adversely affect nearby or

adjacent mining activities.

(b) Concurrence with the Title V

Regulatory Authority. If, after consulting

with the Title V regulatory authority,

you decide to proceed with the

reclamation project, then you and the

Title V regulatory authority must concur

in the following determinations:

(1) You must concur in a

determination of the extent and amount

of any coal refuse, coal waste, or other

coal deposits which can be extracted

under the part 707 exemption or

counterpart State/Indian Tribe laws and

regulations.

(2) You must concur in the

delineation of the boundaries of the

AML project.

(c) Documentation. You must include

in the AML case file:

(1) The determinations made under

paragraphs (a) and (b) of this section;

(2) The information taken into

account in making the determinations;

and

(3) The names of the parties making

the determinations.

(d) Special requirements. For each

project, you must:

(1) Characterize the site in terms of

mine drainage, active slides and slideprone areas, erosion and sedimentation,

vegetation, toxic materials, and

hydrologic balance;

(2) Ensure that the reclamation project

is conducted in accordance with the

provisions of 30 CFR Subchapter R;

(3) Develop specific-site reclamation

requirements, including performance

bonds when appropriate in accordance

with State procedures; and

(4) Require the contractor conducting

the reclamation to provide applicable

documents that clearly authorize the

extraction of coal and payment of

royalties.

(e) Limitation. If the reclamation

contractor extracts more coal than

specified in paragraph (b)(1) of this

section, the contractor must obtain a

permit under Title V of SMCRA.

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

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