[Federal Register Volume 59, Number 227 (Monday, November 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29243]


[Federal Register: November 28, 1994]


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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 840 and 842



Surface Coal Mining and Reclamation



Operations; Initial and Permanent



Regulatory Programs; Abandoned Sites;



Final Rule
DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 840 and 842

RIN: 1029-AB60


Surface Coal Mining and Reclamation Operations; Initial and 
Permanent Programs; Abandoned Sites

AGENCY: Office and Surface Mining Reclamation and Enforcement, 
Interior.

ACTION: Final rule.

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SUMMARY: This rule will change the minimum inspection frequency for 
surface coal mining and reclamation operation that have been abandoned 
without completion of reclamation or abatement of violations. The 
change enables regulatory authorities to eliminate ineffective 
inspections to redirect resources to minesites where inspection and 
enforcement will achieve intended results. Before an abandoned site can 
qualify for a change in inspection frequency under this rule, the 
regulatory authority must make a written finding that a site is 
abandoned and that the change in inspection frequency is appropriate 
based on specified environmental and public health and safety criteria.

EFFECTIVE DATE: December 28, 1994.

FOR FURTHER INFORMATION CONTACT: Daniel Stocker, Office of Surface 
Mining Reclamation and Enforcement, 1951 Constitution Avenue NW., 
Washington, DC 20240, Telephone: 202-208-2550 (Commercial or FTS).

SUPPLEMENTARY INFORMATION:

I. Background
II. Discussion of Rule and Response to Public Comments
III. Procedural Matters

I. Background

    Section 517(c) of the Surface Mining Control and Reclamation Act of 
1977 (the Act) states that the regulatory authority shall inspect on an 
irregular basis averaging not less than one partial inspection per 
month and one complete inspection per quarter each surface coal mining 
and reclamation operation covered by a permit. To implement this 
requirement, OSM first promulgated rules at 30 CFR 840.11 for State 
regulatory authorities and at 30 CFR 842.11 for OSM where it is the 
regulatory authority authority in a State. 44 FR 15455 (March 13, 
1979). These rules essentially mirrored the inspection frequency 
requirements of the Act.
    These rules were revised on August 16, 1982 (47 FR 35620). Among 
other things, the 1982 rules carved out for inspection frequency 
purposes a distinct category of surface coal mining and reclamation 
operations where reclamation was in the advanced stages. While 
retaining the quarterly requirement for complete inspections, these 
rules allowed regulatory authorities to reduce the number of partial 
inspections required at these ``inactive'' operations from an average 
of one per month to a frequency ``as necessary to ensure effective 
enforcement of the regulatory program.'' Since abandoned sites are 
incompletely reclaimed surface coal mining and reclamation operations 
where the operators will not or cannot return to the minesite to 
complete reclamation or correct violations, they remain in an 
``active'' status, and, therefore, must continue to be inspected at the 
full mandated frequency of twelve times per year.
    To address the issue of inspection frequency at abandoned sites, 
the rules were again revised in 1988. (53 FR 24872, June 30, 1988). 
This time the rules defined an ``abandoned site'' as a distinct 
category at surface coal mining and reclamation operations and enabled 
regulatory authorities to reduce the inspection frequency at these 
sites and to refrain from issuing additional enforcement actions at 
abandoned sites under certain conditions. The definition of ``abandoned 
site'' specifies that, before a site can be considered abandoned, it 
must first meet certain criteria which ensure that the regulatory 
authority has taken or is in the process of taking all enforcement 
action available to it under the applicable regulatory program to 
compel abatement of violations and completion of reclamation. Sites 
meeting the definition could then, instead of twelve times per year, be 
inspected ``as necessary to monitor for changes of environmental 
conditions or operational status at the site.''
    The 1988 final rule was subsequently challenged in Federal District 
Court. On August 30, 1990, the United States District Court for the 
District of Columbia issued an order in the case of National Wildlife 
Federation, et al., v. Manuel Lujan, Jr., et al., 31 Env't Rep. Cas. 
(BNR) 2034, 2042 (D.D.C. 1990) (NWF v. Lujan). The district court 
remanded the rule to the Secretary to be withdrawn or revised on the 
basis that the Secretary's arguments supporting the rule were 
inconsistent with the inspection frequency requirements of Section 
517(c) of the Act. However, the district court conceded that the rule 
was practical, that it comported with common sense, and that it is not 
wise to spend a lot of time and effort inspecting abandoned sites every 
month when nothing changes. To implement the court's order, OSM 
suspended those parts of the 1988 rule that related to inspection 
frequency at abandoned sites. The definition of ``abandoned site'' at 
30 CFR 840.11(g) and 842.11(e) and the provision at 30 CFR 843.22 
allowing regulatory authorities to refrain from issuing additional 
enforcement actions at abandoned sites were unaffected by the court 
order and remain intact today (56 FR 25036, June 3, 1991).
    In appealing the district court decision, the Secretary asked the 
United States Court of Appeals to vacate the district court's remand in 
order to allow him to promulgate a new regulation redefining 
``abandoned sites'' to include only those sites where a permit has 
expired or been revoked. Under this approach, Section 517(c) of the Act 
would not apply to abandoned sites because the inspection frequency 
requirements of that section speak only to surface coal mining and 
reclamation operations covered by a permit and a permit that is expired 
or revoked is no longer considered to be in existence. Without 
expressing any view about whether the Secretary's proposed reading of 
Section 517(c) of the Act was permissible, the court of appeals pointed 
out that the district court remanded the 1988 rule to the Secretary 
``to be withdrawn or revised'' and, in light of this statement, the 
district court's decision does not stand in the way of the Secretary 
proceeding with an alternative rulemaking on the subject of inspection 
frequently at abandoned sites. See NWF v. Lujan, Civ. Action Nos. 
890136, 88-3345 & 88-2416, U.S. App. Ct. (DC Circ., December 10, 1991) 
mem. op. at 10. Accordingly, on December 18, 1992, OSM proposed for 
public comment an alternative abandoned sites rule upon which today's 
final rule is based (57 FR 60410).
    The Secretary is required under section 201(c)(2) of the Act, 30 
U.S.C. 1211(c)(2), to publish necessary implementing rules. Since 
regular inspections of abandoned sites are a counterproductive use of 
limited resources, and since fewer inspections are not likely to result 
in increased environmental harm, the rule being promulgated today is 
necessary and is consistent with the district court's opinion in NWF v. 
Lujan, which struck down the previous 1988 abandoned sites rule.
    In promulgating the 1988 rule on abandoned sites, OSM concluded 
that repeated inspections of abandoned sites at the frequency required 
under the existing rules are ineffective expenditures of resources and 
that fewer inspections would not result in increased harm to the 
environment or reduce the likelihood of ultimate compliance at 
abandoned sites. The time inspectors spend at abandoned sites detracts 
from the time they can spend at other active or inactive sites working 
with viable operators to abate present violations and prevent future 
violations. Thus, reducing the frequency of abandoned sites improves 
the overall quality and effectiveness of inspection programs under the 
Act.
    Enforcement actions issued as a result of inspections at abandoned 
sites have proven to be ineffective at compelling abatement of 
violations or achieving reclamation. Moreover, inspectors normally have 
cited all violations prior to or shortly after a site becomes 
abandoned. The persons responsible for abating these violations 
typically are financially insolvent or cannot be located. In such 
instances, even when diligent efforts are made to enforce the Act, no 
one is available to abate violations or to perform or pay for the 
needed reclamation. Continuing regular partial and complete inspection 
of these sites serves no useful purpose and wastes finite inspection 
resources. To illustrate the extent of this waste, OSM has in the past 
conducted approximately 2,900 inspections each year on an average of 
236 abandoned sites in Tennessee. This effort comprises approximately 
32 percent of the inspections in that State; however, few, if any, of 
these inspections have resulted in abatement of violations or 
completion of reclamation.
    OSM experience has shown that environmental conditions at most 
abandoned sites do not significantly degrade what has been observed 
during prior inspections and that violations of substantive performance 
standards do not necessarily deteriorate to imminent danger or harm 
situations. While these sites do not comply with the Act, many, due to 
their age or because they were partially reclaimed prior to 
abandonment, become reasonably well stabilized through natural 
settlement and revegetation occurring over time.
    While the stated goal of section 517 of the Act is to ``enforce the 
requirements of and carry out the purposes of [the] Act,'' inspecting 
abandoned sites as frequently as other sites covered by a permit 
frustrates rather than furthers this goal. Among the mechanisms 
provided by the Act to achieve the stated goals of section 517(c) are 
civil penalties under section 518, performance bonds under section 509 
and 519, citizen suits under section 520, and enforcement under section 
521. Each of these mechanisms has as its underlying premise the 
existence of a person against whom an action can be taken, or of a bond 
that can provide the funds to abate violations and secure reclamation. 
If no such person can be found, or if the regulatory authority is 
taking other appropriate legal actions to ensure reclamation or 
abatement, and any permit has been revoked and any bond is being 
forfeited, issuing multiple violation notices and cessation orders and 
assessing uncollectible penalties as a result of the fixed inspection 
frequency requirement are not productive tools to enforce the Act. The 
waste of resources also extends beyond the inspector level as other 
units within the regulatory authority must assess and attempt to 
collect civil penalties. Under the foregoing circumstances, inspections 
of abandoned sites performed at a minimum frequency less than that for 
other sites based on the particular characteristics of the site are a 
far more reasonable and realistic alternative. Moreover, the 
conservation of resources that will flow from this rule promotes the 
principles embodied in OSM's mission and vision statement by creating 
fair and more efficient and effective processes for achieving the 
objectives of the Act.

II. Discussion of Final Rule and Response to Public Comments

Section 840.10

    Section 840.10 is being revised to include an estimate of the 
average public reporting burden for the collections of information 
under all of Part 840 as such part is revised by this final rule. The 
section also lists the addresses for OSM and the Office of Management 
and Budget where comments on the information collection requirements 
may be sent.

Combined Section-by-Section Analysis

    Since the revisions adopted for State regulatory authorities at 
840.11 are identical to those adopted at 842.11 where OSM is the 
regulatory authority, they will be combined for ease of discussion.

Section 840.11(g)(4)(i)/842.11(e)(i).

    These sections are being adopted as proposed. They require that 
before a site could meet the definition of ``abandoned site,'' the 
permit covering the surface coal mining and reclamation operation must 
be either revoked or expired. The existing rules allow a site to be 
classified as abandoned on the basis that permit revocation proceedings 
have only been initiated and are being pursued diligently.
    The final provision will have two effects. First, a person who has 
not or will not respond to enforcement action issued by the regulatory 
authority and who cannot or will not meet his/her obligations to abate 
violations or complete reclamation will not be entitled to resume coal 
production under a valid permit. Second, the constraints of section 
517(c) of the Act would be lifted for abandoned sites since the fixed 
inspection frequency requirements of that section apply only to surface 
coal mining and reclamation operations covered by each permit. The 
preamble to OSM's final rule at 30 CFR 773.11, Requirements to obtain 
permits, articulated and codified the concept that a surface coal 
mining permit is required only where surface coal mining operations 
defined under section 701(28) of the Act are occurring and that if this 
authorization to extract coal expires or is revoked, it amounts to the 
absence or the non-existence of the permit that once was in force (i.e. 
the minesite is no longer considered to be covered by a permit). Of 
course, this does not affect the permittee's legal obligation to 
reclaim a site that has been abandoned, since, in accordance with 30 
CFR 733.11, that obligation continues until all reclamation is 
completed, regardless of whether the authorization to conduct surface 
coal mining operations has expired or has been revoked. See 54 FR 13814 
(April 5, 1989).
    The National Wildlife Federation and the Kentucky Resources 
Council, Inc. (hereafter NWF) concurred with this change to the 
definition of abandoned site to the extent that the plain language of 
the term ``abandoned site'' suggests that there should not be an 
existing permit that is renewable or revisable by the operator.
    The Joint National Coal Association and American Mining Congress on 
Surface Mining Regulations (NCA/AMC), the National Coal Association 
(NCA) and the Kentucky Coal Association supported this revision saying 
that the proposed rule differs significantly from the abandoned sites 
rule remanded in 1990 because the proposed rule defines ``abandoned 
sites'' to include only those sites whose permits have either expired 
or been revoked. Because the Act's inspection requirements only apply 
to operations under permit, they believe that the revised definition 
can no longer be considered inconsistent with section 517(c) of the Act 
and consequently, the district court's earlier criticism of OSM's 
statutory interpretation is no longer valid. They added that neither 
the language nor legislative history of the statute indicates any 
intent that the regulatory authority continue to expend its resources 
to inspect an abandoned site where no activities listed in section 
701(28) of the Act are currently conducted and enforcement action has 
proven futile in compelling the correction of prior violations. 
Finally, they believed that the U.S. Court of Appeals for the District 
of Columbia gave tacit approval for OSM's revised reading of the 
``covered by each permit'' language of section 517(c) because the court 
clearly would have rejected OSM's announced efforts before the court to 
undertake a curative rulemaking using this revised reading if it 
perceived such a reading as inconsistent with the Act.
    OSM agrees with the commenters, except for the proposition that the 
U.S. Court of Appeals decision concerning the remanded 1988 abandoned 
sites rule amounts to tacit approval of the Secretary's ``covered by 
each permit'' reading of Section 517(c). The Secretary requested the 
appeals court to vacate the district court's opinion remanding the 1988 
abandoned sites rule because he believed that step was necessary before 
engaging in a new rulemaking based on the interpretation that abandoned 
sites for which the permits have expired or been revoked are not 
subject to section 517(c) of the Act. In declining the Secretary's 
request to vacate, the appeals court stated ``We express no view about 
the validity of the Secretary's proposed reading. The significant point 
on this appeal is that the district court's decision does not stand in 
the way of the Secretary adopting it in a new rulemaking.'' Whether or 
not the revised reading set forth as a basis for this rule would be 
sustained by the appeals court will only be known if this rule becomes 
ripe for a decision before that judicial body.
    A State regulatory authority (SRA) said it would make more sense to 
require the permit to be revoked/expired ``or'' actually be forfeited. 
This could be accomplished by replacing the word ``and'' by the word 
``or'' and deleting the phrase ``has initiated and is diligently 
pursuing forfeiture of'' in subparagraph (ii). The commenter explained 
that bond forfeiture proceedings may not always be accomplished 
concurrently with permit expiration, that if a permit expires there may 
not be a reason to immediately forfeit the bond and by requiring both 
expiration and forfeiture to occur simultaneously could be a waste of 
manpower and funds. This comment is not being adopted. As discussed 
above, allowing a reduction from the inspection requirements of section 
517(c) of the Act under this rule is based on the premise that 
revocation or expiration of a permit is a necessary prerequisite in 
order for an abandoned site not to be considered ``covered by a 
permit.'' If, as the commenter suggests, bond forfeiture is an 
alternative to revocation or expiration, an abandoned site could not 
escape the constraints of section 517(c) of the Act since bond 
forfeiture does not necessarily require permit revocation. In view of 
the often prolonged process of bond forfeiture, this final section of 
the rule does not require that bond forfeiture be completed, but rather 
that it be initiated and diligently pursued and thus, the rule will 
have more immediate applicability.

Section 840.11(g)(4)(ii)/842.11(e)(4)(ii).

    To qualify under the definition of ``abandoned site,'' the existing 
rules require that the regulatory authority has initiated and is 
diligently pursuing forfeiture of, or has forfeited, the performance 
bond. These sections are being revised by adding the phrase ``any 
available'' before the phrase ``performance bond.'' This change is 
minor and is intended to recognize that there is a relatively small 
number of sites that are or were permitted, but for which a performance 
bond was never required or no longer exists. The absence of a 
performance bond has no bearing on whether a site should be classified 
as abandoned for inspection purposes.
    NWF supported the addition of the phrase ``any available'' agreeing 
that the absence of a performance bond has no bearing on whether a site 
should be classified and abandoned for inspection purposes. One SRA, 
noting the time lag between initiation of bond forfeiture and actual 
collection, supported the proposal to allow reduction of inspections 
while the regulatory authority is diligently pursuing bond forfeiture. 
This commenter believed that inspection resources would be used much 
more efficiently by this change. Another SRA commented that this 
provision should include those sites where no reclamation bond is 
available due to insolvency of surety companies. These sections are 
being adopted as proposed. To address the latter SRA's concern, if no 
performance bond exists because of the insolvency of a surety company, 
then under this rule a performance bond would not be considered 
available.

Sections 840.11(h) introductory text/842.11(f) introductory text

    These sections as proposed provided that the regulatory authority 
shall inspect each abandoned site at a rate of no less than one 
complete inspection per calendar year. This minimum inspection 
frequency is being retained under this final rule. However, the 
language has been revised to provide that the regulatory authority 
shall inspect each abandoned site on a set frequency commensurate with 
the public health and safety and environmental considerations present 
at each specific site, but in no case shall the inspection frequency be 
set at less than one complete inspection per calendar year. This 
revised language emphasizes the requirement that the regulatory 
authority must tailor an appropriate frequency to the site-specific 
conditions that exist at each mine. That frequency could vary from one 
to twelve or more per calendar year.
    Most commenters supported a reduced inspection frequency for 
abandoned sites and commended OSM for taking the initiative on this 
rulemaking. Eight SRAs voiced strong support for the rule. One SRA 
stated that, based on its long history of regulating coal mining 
operations, it supported OSM's conclusions that fewer inspections of 
certain abandoned sites would not harm the environment; the States' 
finite resources could be used more effectively; all significant 
violations are cited prior to abandonment; and that abandoned sites 
often remain stable over the course of several years. Another SRA 
stated that its inspection staff is being required to inspect abandoned 
sites regularly under circumstances that serve absolutely no purpose 
other than to meet an arbitrary inspection mandate and that eliminating 
or curtailing redundant inspections will greatly improve the efficiency 
of its inspection staff. A third SRA said that in these days of 
increasingly restrictive State and Federal budgets, it is imperative 
that our resources are effectively allocated to further the purposes of 
the Act and that the time spent inspecting abandoned sites detracts 
from the time that can be spent to ensure compliance at non-abandoned 
sites. Finally, a fourth SRA maintained that the States continue to be 
best suited and capable of deciding the appropriate frequency for 
inspection of abandoned sites where all other enforcement measures have 
failed to force compliance.
    The Interstate Mining Compact Commission (IMCC), which represents 
the natural resource interests of its 17 member States, strongly 
supported the rule agreeing with OSM's analysis and conclusions in the 
preamble to the proposed rule and noting that the States would not 
support a situation where environmentally sensitive sites are left 
unattended, unabated, or without meaningful followup in the way of 
alternative enforcement proceedings such as those required in the 
proposed rule.
    The NCA and the Kentucky Coal Association fully supported the 
proposed rule, characterizing it as a proper exercise of OSM's 
discretion to provide regulatory authorities the necessary flexibility 
to deploy limited resources in an efficient manner. The NCA/AMC also 
supported the rule pointing out that along with the rules practical 
benefits, the regulatory history of the Act shows that there is 
precedent for the selective inspection of mines that pose no threat to 
the environment as exemplified by the 1982 revised Federal rules that 
allowed a reduction in the partial inspection frequency for 
``inactive'' operations.
    The United States Environmental Protection Agency (EPA) stated that 
it is not unreasonable for OSM to conduct complete inspections twice a 
year at a minimum on sites causing or likely to cause water pollution 
or other nonpoint source problems. However, the EPA recommended that 
the rule include criteria upon which the frequency of inspections would 
be based, including the potential for the site to become further 
degraded. As discussed later in this preamble, the final rule will 
incorporate criteria, including a criterion similar to that suggested 
by EPA, that must be taken into consideration and documented before 
regulatory authorities can reduce inspection frequencies at abandoned 
sites.
    One commenter said that OSM'S statement in the preamble to the 
proposed rule that reducing inspections at abandoned sites ``would 
allow the regulatory authorities to redirect those inspection resources 
to operations where inspection and enforcement would achieve the 
intended results'' points to the failure of regulatory authorities to 
achieve the intended results in the first place by preventing non-
compliance through inspection and enforcement during the mining and 
reclamation phases. The commenter questioned why OSM is not concerning 
itself with how to prevent abandonment rather than a way to assist 
operators through reduced inspections. The commenter added that since 
existing regulations require adequate bond be in place, abandonment 
becomes irrelevant if those regulations are properly implemented.
    OSM concurs with the commenter's view that not enough has been done 
in the past to prevent abandonment and will place greater emphasis on 
prevention. Prevention of environmental problems and inadequate 
performance bonds often associated with abandoned sites are priorities 
to OSM and the agency will work with the States to improve efforts in 
these key areas. This rule promotes a policy of prevention because it 
frees resources that can focus on existing or potential problems at 
high risk sites that would result in long term adverse effects or 
reclamation difficulties in the event of abandonment.
    The NWF opposed the proposed reduction in the minimum inspection 
frequency for abandoned sites because it allegedly fails to provide 
adequately for the protection of public health and safety and the 
environment from the adverse impacts of improperly conducted coal 
mining and operations, and therefore contravenes the underlying purpose 
of the Act. They maintained that the dramatic reduction in frequency or 
even elimination of inspections altogether at abandoned sites as 
proposed would unquestionably heighten the risk that site conditions 
may worsen to create an imminent harm and trigger violations of on-or-
off site performance standards in addition to those violations already 
cited by a regulatory authority. NWF stated that abandoned sites need 
to be monitored to avert deterioration of site conditions into imminent 
harms, to ensure no uncited violations exist, to provide early warning 
to the public in the event of imminent harm and to determine or 
prioritize sites that are eligible for abandoned mine lands funding. 
They urged that OSM withdraw this proposal, or at a minimum, that a 
more carefully designed, comprehensive clear and precise rule, 
explained in greater detail, be substituted.
    NWF asserts that the proposed rule is deficient because: (1) It is 
excessively permissive in delegating decision making to the regulatory 
authority without a meaningful check based on specified criteria or 
site characteristics guiding reductions in frequency; (2) there is an 
absence of binding criteria for ``tailoring'' inspection schedules for 
sites requiring more than the minimum one inspection per year, but less 
than currently required 12 per year; and (3) while OSM indicates in the 
preamble that regulatory authorities may subsequently readjust a 
reduced frequency as new information about the conditions at a site 
become available, there are no criteria for what would trigger such a 
readjustment.
    NWF agrees, however, for some abandoned sites, rigid adherence to 
the inspection requirements under Section 517(c) of the Act may be a 
poor expenditure of limited inspection resources and to the extent that 
the change to the definition of ``abandoned site'' enables regulatory 
authorities to make limited reductions in inspection frequencies 
without offending the language of Section 517(c), the rule is a 
sensible one. However, they state that any change to the definition of 
``abandoned site'' in order to allow reductions in inspection 
frequencies must be accompanied by a comprehensive regulatory program 
such as that they outline below. They assert that failure of OSM to 
promulgate abandoned site inspection rules fitting this description 
would offend the purpose of the Act as a whole, even where the 
``covered by each permit'' definitional change of ``abandoned site'' 
has rendered Section 517(c) no longer at issue.
    NWF asserts that, as part of their suggested program, any attempt 
to reduce inspection frequencies must begin by creating a categorical 
exclusion for which there can be no reduction from the existing 
requirements of 12 inspections per year. This exclusion should at a 
minimum include sites with potentially unstable structures, such as 
impoundments or hollow or valley fills, and sites with existing on-or-
off site impacts, such as acid mine drainage. Moreover, NWF urged that, 
where abandoned sites are not categorically excluded from any reduction 
in inspection frequency, they should remain subject to an absolute 
minimum frequency of one complete inspection per year and not have 
their inspection frequencies eliminated altogether as the rule would 
allow.
    The comprehensive detailed inspection program suggested by NWF 
would also need to include the following: (1) Quantitative inspection 
requirements like the existing rule including an absolute minimum (e.g. 
one complete inspection per year); (2) a standardized or regionalized 
protocol so that criteria are applied consistently across different 
inspectors and different regulatory authority jurisdictions or regions; 
(3) specific written findings for all relevant on-and-off site 
performance standard parameters and public health and safety concerns; 
(4) based on quantitative inspection data charted over time, a 
published table for which the regulatory authority could proceed to the 
appropriate coordinates to determine the appropriate inspection 
frequency and trigger any necessary subsequent adjustments; and (5) 
traceable written documentation relating to inspection frequencies at 
abandoned sites amenable to administrative review.
    Finally, NWF's suggested comprehensive program also would include 
opportunities for structured public participation in the decision 
making process. NWF contends that OSM's regulation should begin with a 
rebuttable presumption that inspection frequencies should not be 
reduced from currently required levels unless that presumption can be 
overcome by an affirmative showing of reasonableness and general public 
notice, specific personal notice to identifiable parties that might be 
adversely affected by on-or-off site impacts, and public comment 
periods for all proposed changes in frequency. Also, if the regulatory 
authority demonstrates that a reduced frequency is appropriate, NWF 
asserts that there should be a general provision granting reasonable 
citizen access, when requested in writing, to inspect any areas of the 
site that would otherwise be inaccessible except to the regulatory 
authority.
    NWF charges that the absence of any discussion of why OSM has not 
developed a more comprehensive and structured abandoned sites 
inspection program is offensive to established principles of 
administrative law. Citing National Wildlife Federation v. Hodel, 839 
F.2d 694 (1988), NWF points out that the court condemned precisely the 
type of conclusory rulemaking OSM has undertaken with its current 
proposal, ``The Secretary * * * if he determines that there is no need 
to `flesh out' the statute, must `flesh out' his explanations so that 
we can review the rationality of his decision.'' In light of this clear 
directive, NWF asserts OSM must at a minimum, repropose this rule and 
explain to the public why it is declining to establish a detailed 
regulatory program.
    OSM set forth an adequate explanation of its rationale underlying 
the proposed rule that has been greatly supplemented with the preamble 
discussion and response to comments in this final rule. OSM appreciates 
NWF's views and has decided to adopt most of the elements of NWF's 
program in this final rule. OSM will include in the final rule NWF's 
recommendation for an absolute minimum inspection frequency of not less 
than one complete inspection per calendar year, criteria for 
``tailoring'' inspection schedules for sites requiring more than one 
inspection per year, and a requirement for specific and traceable 
written findings by the regulatory authority based on relevant 
environmental and public health and safety concerns and newspaper 
advertisement providing the opportunity for public comment on any 
proposed reduction in inspections of abandoned sites. These adopted 
provisions are discussed below and under the discussion of final 
Secs. 840.11(h)(1)/842.11(f)(1). OSM considered, but is not adopting, 
NWF's request for quantitative fixed inspection frequencies in the form 
of categorical exclusions, standardized or regionalized protocols, 
published ``matrix'' tables, or public access to abandoned sites for 
inspection purposes in light of the opportunities already available 
under existing regulations.
    Under this final rule the responsibility for selection of the 
appropriate inspection frequency necessary to comply with this rule 
rests with the expertise and judgment of each regulatory authority, 
guided by specific written findings required in the final rule. With 
site-specific historical knowledge at hand and through their experience 
with local conditions and informal consultations with affected 
residents, the regulatory authorities are well qualified to identify 
sites with the potential for harm and to carefully tailor an 
appropriate inspection frequency for individual abandoned sites, each 
of which is unique, both in terms of its physical environment and the 
problems it presents. This rule will maintain the regulatory 
authority's responsibility for administering its regulatory program 
consistent with congressional intent to have primary regulatory 
authority rest with the States.
    OSM is not adopting categorical exclusions or other fixed 
inspection frequencies for abandoned sites beyond the minimum one per 
year because to do so would merely substitute one inflexible frequency 
for another and thus fail to achieve fully the goal of eliminating 
counterproductive inspections. An arbitrary fixed inspection frequency 
cannot account for the unique physical environment at each abandoned 
site nor the variation of problems that each abandoned site may pose. A 
fixed predetermined frequency is just as likely to yield too many 
inspections, or too few inspections, as it is to yield a suitable 
number. Categorical exclusions or inclusions also would almost 
certainly result in inappropriate applications of the rule in many 
cases. Further, the U.S. Court of Appeals explicitly acknowledged the 
legal defensibility of OSM's ``flexible'' implementation of statutes 
that allow regulatory authorities to consider the myriad site specific 
situations that cannot be fully anticipated in writing a Federal 
regulation. NWF v. Hodel, 839 F.2d 694, 745 (D.C. Cir. 1988). However, 
nothing in this rule would preclude regulatory authorities from 
establishing for administrative convenience categories of sites with 
similar characteristics and evaluating and documenting the necessary 
inspection frequency for each category as a whole.
    As previously discussed, the reason inspections of abandoned sites 
at the frequency imposed under section 517(c) of the Act are 
counterproductive and a waste of resources is that enforcement actions 
at the inspector level are no longer effective. Alternative enforcement 
that must be initiated beyond the level of inspectors is generally the 
only viable means to compel abatement of violations or completion of 
reclamation at abandoned sites, even if conditions deteriorate. Where 
the regulatory authority is taking all appropriate enforcement action 
available to it as required under the definition of ``abandoned site,'' 
nothing more can be done through repeated inspections to reclaim a site 
or abate violations than is already occurring. Thus, while a fixed 
inspection frequency like that for active sites under the existing 
rules might cause the regulatory authority to be informed of a problem 
at an abandoned site more quickly, it will not provide any new remedy 
to compel compliance. Accordingly, OSM believes that the inspection 
frequency program under this rule strikes a sound balance between the 
fixed inspection frequency required for active and inactive sites and 
the need to periodically, but not less than once per year, inspect 
abandoned sites to monitor environmental conditions or other changes in 
the status of a site and to ensure bond forfeiture reclamation 
priorities are adjusted as necessary.
    Since OSM is accepting NWF's suggestion to set an absolute minimum 
inspection frequency of not less than one complete inspection per year, 
Secs. 840.11(h)(1)/842.11(f)(1) will not be adopted as proposed. Those 
proposed sections would have enabled the regulatory authority to 
further reduce the minimum inspection frequency required under 
paragraphs (h) introductory text and (f) introductory text, possibly to 
zero, if, based on no less than three consecutive complete annual 
inspections conducted during a three-year period before or after the 
effective date of this rule, the regulatory authority would have found 
in writing that an abandoned site satisfies two criteria. The first 
criterion would have been that no conditions or structures existed at 
the site that could have created an imminent danger to the health or 
safety of the public or an imminent harm to the environment. The second 
criterion would have been that the site had become reasonably stable 
through natural settlement or revegetation processes.
    Eight SRAs, the NCA/AMC, the NCA and the Kentucky Coal Association 
supported these proposed provisions without providing substantive 
comments. The NWF was strongly opposed. It commented that under this 
proposal, inspections at some abandoned sites could be discontinued 
altogether even where serious deterioration of conditions occurred 
subsequent to the decision to suspend inspections indefinitely. They 
said that no State or Federal regulatory authority would have the duty 
to revisit the abandoned site and would have every administrative and 
budgetary incentive not to.
    OSM acknowledges NWF's concern over the potential for 
misapplication of these proposed sections. While some abandoned sites 
may be so stable and so operationally defunct as to make further 
inspections completely unnecessary, OSM believes that deletion of these 
provisions will act as a safeguard against premature termination of 
inspections at what could be a large number of abandoned sites where 
conditions do not justify ending inspections altogether. OSM believes 
that monitoring each abandoned site at least once per year to evaluate 
the environmental conditions, operational status, and the bond 
forfeiture reclamation priority is reasonable public policy that would 
not excessively strain the resources of Federal or State regulatory 
authorities, especially since many abandoned sites are located near 
active and inactive sites requiring frequent inspections. Moreover, 
there must be some minimum in place to ensure that each abandoned site 
continues to be inspected at a frequency commensurate with public 
safety and environmental considerations present at each specific site 
as required under the final rule. Also, if there were no minimum 
frequency, the regulatory authority might not become aware, other than 
from information provided by citizens, that conditions had worsened to 
the point that a higher alternative frequency would need to be set in 
order for the frequency to be commensurate with the deteriorating 
conditions.
    Turning to NWF's recommendation that the rule contain enhanced 
opportunities for public participation in the abandoned sites 
inspection process, OSM is including a public notice provision that 
provides the general public with the opportunity to submit written 
comments to the regulatory authority when concerns are raised as to a 
particular inspection frequency adjustment. This enhancement coupled 
with opportunities for private citizen involvement in the inspection 
process already provided under other regulations and discussed below 
will provide ample public participation in the inspection of abandoned 
sites. 30 CFR 842.14 provides that any person who is or may be 
adversely affected by a surface coal mining and reclamation operation 
may notify the Director in writing of any alleged failure on the part 
of OSM to make adequate and complete periodic inspections and the 
Director must respond with a determination including any actions to be 
taken to remedy any noncompliance. When a person provides OSM with 
reason to believe that there exists any violation at an abandoned site, 
that person may request a Federal inspection and has the right to 
accompany the inspector during the inspection. To the extent a person 
is not satisfied with a Federal inspector's decision not to inspect or 
enforce, the person is entitled to informal review of that decision by 
the Director of OSM, and can subsequently appeal to the Office of 
Hearings and Appeals within DOI. Finally, 30 CFR 840.15 provides that 
each State program shall provide for public participation in the 
enforcement of the State program consistent with the Federal provisions 
cited above.
    OSM encourages States to work with potentially affected citizens 
where a concern arises for a particular minesite. The ability and 
willingness of State regulatory authorities to work closely with 
citizens is clearly recognized in OSM's mission and vision statement 
and is a key part of making the Act work successfully. As part of its 
oversight duties, OSM will monitor the willingness of States to be 
responsive to the concerns of citizens and to allow them full access to 
information needed to evaluate the effect of mining on their health, 
safety, general welfare and property.

Final Sections 840.11(h)(1)/842.11(f)(1)

    As discussed above, sections 840.11(h)(1)/842.11(f)(1) are not 
being adopted as proposed, but instead are being revised. Under the 
final rule, before proceeding to reduce the inspection frequency at any 
abandoned site as authorized under 840.11(h) introductory text/
842.11(f) introductory text, the regulatory authority must first 
conduct a complete inspection of the site. On that basis and on the 
basis of comments received during the public notice period required 
under this paragraph, the regulatory authority shall prepare and 
maintain for public review and Federal oversight purposes a written 
finding justifying the alternative inspection frequency selected. The 
prerequisite complete inspection is an on-site status review of all 
applicable performance standards conducted with an eye towards the long 
term effects of reducing the inspection frequency. Regulatory 
authorities shall make the written finding immediately available to OSM 
and the public in the area of mining in accordance with 30 CFR 840.14, 
Availability of records. To assist the public and OSM in reviewing 
written findings in a meaningful and expeditious manner, regulatory 
authorities are expected under this provision to maintain or be able to 
generate within a reasonable time a current compilation or index of all 
abandoned sites for which an inspection frequency adjustment has been 
made under this rule. Each written finding shall justify a reduced 
inspection frequency by affirmatively addressing in detail all of the 
following criteria.

(h)(1)(i)/(f)(1)(i)

    As a prerequisite to any reduction in inspection frequency, the 
regulatory authority must explain how the site meets each of the 
criteria under the definition of an abandoned site under 30 CFR 
840.11(g)/842.11(e). Meeting these criteria demonstrates that the 
regulatory authority has taken, and continues to be in the process of 
taking, all available enforcement within its reach under its regulatory 
program to secure abatement of violations and completion of reclamation 
at an abandoned site.

(h)(1)(ii)/(f)(1)(ii)

    The regulatory authority must document whether there exist 
impoundments, earthen structures or other conditions such as acid mine 
drainage that pose, or reasonably may be expected to progress into, 
imminent dangers to the health and safety of the public or significant 
environmental harms to land, air, or water resources as defined under 
30 CFR 701.5. Depending on the circumstances, this criterion alone may 
be sufficient to warrant no reduction in inspection frequency or at 
least selection of a frequency in the high range. Even though there may 
be no remedy immediately available to abate any such dangers or harms, 
frequent monitoring can serve to give advance warning to the public or 
appropriate government agencies and serve as a basis to expedite 
reclamation or abatement of dangers or harms through the bond 
forfeiture process.

(h)(1)(iii)/(f)(1)(iii)

    The regulatory authority must document the extent to which existing 
impoundments or earthen structures were constructed and certified in 
accordance with prudent engineering practices and designs approved in 
the permit. This could be beneficial in support of a reduced frequency 
since structures such as ponds, head of hollow and valley fills, coal 
waste refuse piles, backfills or impoundments pose less risk of failure 
when constructed as designed and certified than structures that were 
not.

(h)(1)(iv)/(f)(1)(iv)

    This criterion addresses the degree to which erosion and sediment 
control are present and functioning. Monitoring for damage caused by 
off-site sedimentation may need to be more frequent where there are 
extensive or critically located areas of loose soils that are not 
controlled by any or by non-functioning sediment controls.

(h)(1)(v)(f)(1)(v)

    Another factor to be considered by the regulatory authority is the 
proximity of the abandoned site to urbanized areas, communities, 
occupied dwellings, schools, and other public or commercial buildings 
and facilities. This criterion will become either more or less 
important depending on the regulatory authority's findings under the 
other criteria.

(h)(1)(vi)/(f)(1)(vi)

    This criterion concerns the extent of reclamation conducted prior 
to abandonment and the degree of stability of unreclaimed areas. 
Abandoned sites vary widely in this respect, ranging from no 
reclamation at all to various combinations of backfilling, grading, 
revegetation, and bond release.

(h)(1)(vii)/(f)(1)(vii)

    This last criterion requires the regulatory authority to document 
the rate at which adverse environmental or public health and safety 
conditions have and can be expected to progressively deteriorate based 
on the record of complete and partial inspection reports during the 
last two consecutive years of inspections of the site. This snapshot 
through time can be useful in predicting whether adverse conditions can 
be expected in the future and their rate of acceleration, which may 
have an important bearing on justifying any reduction in inspection 
frequency.

Final Sections 840.11(h)(2)/842.11(f)(2)

    In response to public comment, this section is being added to 
require the regulatory authority to advertise each proposed frequency 
reduction in the newspaper with the broadest circulation in the 
locality of the abandoned site. The public will be provided a 30 day 
period in which to submit written comments. Paragraph (h)(2)(ii)/
(f)(2)(ii) specifies the nature of the information that at a minimum 
must be contained in the public notice. Nothing in this section 
precludes the regulatory authority from consolidating more than one 
permit into the same advertisement as long as all the information 
required reflects site-specific differences in the permits included. It 
is expected that the regulatory authority will give careful 
consideration to the comments it receives and work with the public to 
arrive at an inspection frequency acceptable to all parties with an 
interest.

III. Procedural Matters

Effect in Federal Program States and on Indian Lands

    These final rules will apply through cross-referencing in those 
States with Federal programs and on Indian lands. The programs with 
Federal programs are California, Georgia, Idaho, Massachusetts, 
Michigan, North Carolina, Oregon, Rhode Island, South Dakota, 
Tennessee, and Washington. The Federal programs for these States appear 
at 30 CFR parts 905, 910, 912, 921, 922, 933, 937, 939, 941, 942, and 
947 respectively. The Indian lands program appears at 30 CFR part 750.

Executive Order 12778 on Civil Justice Reform

    This rule has been reviewed under the applicable standards of 
Section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR 
55195). In general, the requirements of Section 2(b)(2) of Executive 
Order 12778 are covered by the preamble discussion of this rule. 
Additional remarks follow concerning individual elements of the 
Executive Order:
    A. What is the preemptive effect, if any, to be given to the 
regulation?
    The rule would not preempt State law or regulation. States would 
not be required to adopt similar provisions and could continue to 
inspect abandoned sites at the current frequency required by existing 
regulations if they so choose.
    B. What is the effect on existing Federal law or regulation, if 
any, including all provisions repealed or modified?
    The proposed rule modifies the implementation of the Act as 
described herein, and is not intended to modify the implementation of 
any other Federal statute. The preceding discussion of this rule 
specifies the only Federal regulatory provisions that are affected by 
this proposed rule.
    C. Does the rule provide a clear and certain legal standard for 
affected conduct rather than a general standard, while promoting 
simplification and burden reduction?
    The standards established by this rule are as clear and certain as 
practicable, given the complexity of the topics covered and the 
mandates of the Act.
    D. What is the retroactive effect, if any, to be given to the 
regulation?
    The inspection reduction provisions of this rule may be applied to 
any surface coal mining and reclamation operation conducted after the 
effective date of the Act.
    E. Are administrative proceedings required before parties may file 
suite in court? Which proceedings apply? Is the exhaustion of 
administrative remedies required?
    No administrative proceedings are required before parties may file 
suit in court challenging the provisions of this rule under section 
526(a) of the Act, 30 U.S.C. 1276(a). Prior to any judicial challenge 
to the application of the rule, however, administrative procedures must 
be exhausted. In situations involving OSM application of the rule, 
applicable administrative procedures may be found at 43 CFR part 4. 
Applicable administrative procedures may be found at 43 CFR part 4.
    F. Does the rule define key terms, either explicitly or by 
reference to other regulations or statutes that explicitly define those 
items?
    Terms which are important to the understanding of this rule are set 
forth in 30 CFR 700.5 and 701.5.
    G. Does the rule address other important issues affecting clarity 
and general draftsmanship of regulations set forth by the Attorney 
General, with the concurrence of the Director of the Office of 
Management and Budget, that are determined to be in accordance with the 
purposes of the Executive Order?
    The Attorney General and the Director of the Office of Management 
and Budget have not issued any guidance on this requirement.

Federal Paperwork Reduction Act

    The collections of information contained in this rule have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0051.

Executive Order 12866

    This rule has been reviewed under the Executive Order 12866.

Regulatory Flexibility Act

    The DOI certifies that this rule will not have a significant 
economic effect on a substantial number of small entities under the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule does not 
distinguish between small and large entities. This determination is 
based on the findings that the regulatory changes contained in this 
rule would serve to reduce the costs incurred by OSM and State 
regulatory authorities in making routine inspections of abandoned 
sites. Therefore, the rule will not add to the cost of operating a mine 
under an approved regulatory program.

National Environmental Policy Act

    OSM has prepared an environmental assessment (EA) of the rule and 
has made a 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. 4332(2)(C). A 
finding of no significant impact (FONSI) has been approved in 
accordance with OSM procedures under NEPA. The EA is on file in the OSM 
Administrative Record at the address previously specified (see 
ADDRESSES).

Author

    The author of this rule is Daniel Stocker, Chief, Branch of 
Inspection and Enforcement with assistance from Frederick W. Fox. The 
author may be reached at the Office of Surface Mining Reclamation and 
Enforcement, 1951 Constitution Avenue NW., Washington DC 20240; 
Telephone 202-208-2550.
List of Subjects
30 CFR Part 840

    Intergovernmental relations, Reporting and recordkeeping 
requirements, Surface mining, Underground mining.
30 CFR Part 842
    Law enforcement, Surface mining, Underground mining.
    Dated: October 14, 1994.
Bob Armstrong,
Assitant Secretary for Land and Minerals Management.

    Accordingly, 30 CFR Parts 840 and 842 are amended as set forth 
below:
PART 840--STATE REGULATORY AUTHORITY--INSPECTION AND ENFORCEMENT
    1. The authority citation for Part 840 continues to read as 
follows:

    Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L. 
100-34, unless otherwise noted.
    2. Section 840.10 is revised to read as follows:


Sec. 840.10  Information collection.

    (a) The collections of information contained in part 840 have been 
approved by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq. and assigned clearance number 1029-0051. The information is being 
collected by States for use in assessing penalties as evidence in 
enforcement cases and as an inspection management record. The 
obligation to respond is required to obtain a benefit in accordance 
with 30 U.S.C. 1201 et seq.
    (b) Public reporting burden for this information is estimated to 
average 3.7 hours per response, including the time for the 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 this collection of information, including suggestions 
for reducing the burden, to the Information Collection Clearance 
Officer, 1951 Constitution Ave, NW, Room 640, NC, Washington DC 20240; 
and the Office of Management and Budget, Paperwork Reduction Project 
1029-0051, Washington, DC 20503.
    3. Section 840.11 is amended by revising paragraphs (g)(4) and (h) 
to read as follows:


Sec. 840.11  Inspection by State Regulatory Authority.

* * * * *
    (9) * * *
    (4) Where the site is, or was, permitted and bonded:
    (i) The permit has either expired or been revoked; and
    (ii) The regulatory authority has initiated and is diligently 
pursuing forfeiture of, or has forfeited, any available performance 
bond.
    (h) In lieu of the inspection frequency established in paragraphs 
(a) and (b) of this section, the regulatory authority shall inspect 
each abandoned site on a set frequency commensurate with the public 
health and safety and environmental considerations present at each 
specific site, but in no case shall the inspection frequency be set at 
less than one complete inspection per calendar year.
    (1) In selecting an alternate inspection frequency authorized under 
the paragraph above, the regulatory authority shall first conduct a 
complete inspection of the abandoned site and provide public notice 
under paragraph (h)(2) of this section. Following the inspection and 
public notice, the regulatory authority shall prepare and maintain for 
public review a written finding justifying the alternative inspection 
frequency selected. This written finding shall justify the new 
inspection frequency by affirmatively addressing in detail all of the 
following criteria:
    (i) How the site meets each of the criteria under the definition of 
an abandoned site under paragraph (g) of this section and thereby 
qualifies for a reduction in inspection frequency;
    (ii) Whether, and to what extent, there exist on the site 
impoundments, earthen structures or other conditions that pose, or may 
reasonably be expected to ripen into, imminent dangers to the health or 
safety of the public or significant environmental harms to land, air, 
or water resources;
    (iii) The extent to which existing impoundments or earthen 
structures were constructed and certified in accordance with prudent 
engineering designs approved in the permit;
    (iv) The degree to which erosion and sediment control is present 
and functioning;
    (v) The extent to which the site is located near or above urbanized 
areas, communities, occupied dwellings, schools and other public or 
commercial buildings and facilities;
    (vi) The extent of reclamation completed prior to abandonment and 
the degree of stability of unreclaimed areas, taking into consideration 
the physical characteristics of the land mined and the extent of 
settlement or revegetation that has occurred naturally with them; and
    (vii) Based on a review of the complete and partial inspection 
report record for the site during at least the last two consecutive 
years, the rate at which adverse environmental or public health and 
safety conditions have and can be expected to progressively 
deteriorate.
    (2) The public notice and opportunity to comment required under 
paragraph (h)(1) of this section shall be provided as follows:
    (i) The regulatory authority shall place a notice in the newspaper 
with the broadest circulation in the locality of the abandoned site 
providing the public with a 30-day period in which to submit written 
comments.
    (ii) The public notice shall contain the permittee's name, the 
permit number, the precise location of the land affected, the 
inspection frequency proposed, the general reasons for reducing the 
inspection frequency, the bond status of the permit, the telephone 
number and address of the regulatory authority where written comments 
on the reduced inspection frequency may be submitted, and the closing 
date of the comment period.

PART 842--FEDERAL INSPECTIONS AND MONITORING

    4. The authority citation for part 842 continues to read as 
follows:

    Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L. 
100-34, unless otherwise noted.

    5. Section 842.11 is amended by revising paragraphs (e)(4) and (f) 
to read as follows:


Sec. 842.11  Federal inspections and monitoring.

* * * * *
    (e) * * *
    (4) Where the site is, or was, permitted or bonded:
    (i) The permit has either expired or been revoked; and
    (ii) The Office has initiated and is diligently pursuing forfeiture 
of, or has forfeited, any available performance bond.
    (f) In lieu of the inspection frequency established in paragraph 
(c) of this section, the office shall inspect each abandoned site on a 
set frequency commensurate with the public health and safety and 
environmental considerations present at each specific site, but in no 
case shall the inspection frequency be set at less than one complete 
inspection per calendar-year.
    (1) In selecting an alternate inspection frequency authorized under 
the paragraph above, the office shall first conduct a complete 
inspection of the abandoned site and provide public notice under 
paragraph (f)(2) of this section. Following the inspection and public 
notice, the office shall prepare and maintain for public review a 
written finding justifying the alternative inspection frequency 
selected. This written finding shall justify the new inspection 
frequency by affirmatively addressing in detail all of the following 
criteria:
    (i) How the site meets each of the criteria under the definition of 
an abandoned site under paragraph (e) of this section and thereby 
qualifies for a reduction inspection frequency;
    (ii) Whether, and to what extent, there exist on the site 
impoundments, earthen structures or other conditions that pose, or may 
reasonably be expected to ripen into, imminent dangers to the health or 
safety of the public or significant environmental harms to land, air or 
water resources;
    (iii) The extent to which existing impoundments or earthen 
structures were constructed and certified in accordance with prudent 
engineering designs approved in the permit;
    (iv) The degree to which erosion and sediment control is present 
and functioning;
    (v) The extent to which the site is located near or above urbanized 
areas, communities, occupied dwellings, schools and other public or 
commercial buildings and facilities;
    (vi) The extent of reclamation completed prior to abandonment and 
the degree of stability of unreclaimed areas, taking into consideration 
the physical characteristics of the land mined and the extent of 
settlement or revegetation that has occurred naturally with time; and
    (vii) Based on a review of the complete and partial inspection 
report record for the site during at least the last two consecutive 
years, the rate at which adverse environmental or public health and 
safety conditions have and can be expected to progressively 
deteriorate.
    (2) The public notice and opportunity to comment required under 
paragraph (f)(1) of this section shall be provided as follows:
    (i) The office shall place a notice in the newspaper with the 
broadest circulation in the locality of the abandoned site providing 
the public with a 30-day period in which to submit written comments.
    (ii) The public notice shall contain the permittee's name, the 
permit number, the precise location of the land affected, the 
inspection frequency proposed, the general reasons for reducing the 
inspection frequency, the bond status of the permit, the telephone 
number and address of the office where written comments on the reduced 
inspection frequency may be submitted, and the closing date of the 
comment period.

[FR Doc. 94-29243 Filed 11-25-94; 8:45 am]
BILLING CODE 4310-05-M