[Federal Register Volume 63, Number 122 (Thursday, June 25, 1998)]
[Proposed Rules]
[Pages 34768-34775]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-16898]



[[Page 34767]]

_______________________________________________________________________

Part V





Department of the Interior





_______________________________________________________________________



Office of Surface Mining and Reclamation and Enforcement



_______________________________________________________________________



30 CFR Parts 707 and 874



Abandoned Mine Land (AML) Reclamation Program; Enhancing AML 
Reclamation; Proposed Rule

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

[[Page 34768]]



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.

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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: [email protected].
    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: [email protected].

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 Sec. 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 Sec. 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 
Sec. 874.17(d) reclamation projects?
    I. What must the contractor do if he or she extracts more coal 
than is specified in Sec. 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

[[Page 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

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to ensure that no problems arise after construction. As warranted in 
the judgment of the State or tribal AML authority, the frequency of 
these post-construction 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% government-financing.

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

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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 government-financed 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 long-term 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 deep-mined areas needing to be daylighted to remove 
remaining pillars and highwalls needing a second cut to remove acid-
producing 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

[[Page 34772]]

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 Sec. 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 government-financed 
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 Sec. 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 Sec. 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.

[[Page 34773]]

G. Under Sec. 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 Sec. 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 Sec. 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 Sec. 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.

[[Page 34774]]

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 [email protected].
    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 ``Sec. '' and a numbered heading; for example, Sec. 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: 
E[email protected]

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

[[Page 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 Sec. 707.5, the definition of Government-financed 
construction is revised to read as follows:


Sec. 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 in-kind payments does not qualify as government-financed 
construction.
    3. Section 707.10 is revised to read as follows:


Sec. 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:


Sec. 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:


Sec. 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 slide-prone 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]
BILLING CODE 4310-05-P