[Federal Register Volume 59, Number 95 (Wednesday, May 18, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-12004] [[Page Unknown]] [Federal Register: May 18, 1994] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 756 Navajo Nation Abandoned Mine Land Reclamation (AMLR) Plan AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Proposed rule; public comment period and opportunity for public hearing. ----------------------------------------------------------------------- SUMMARY: OSM is accounting receipt of a proposed amendment and a request from the Navajo Nation regarding its AMLR plan (hereinafter referred to as the ``Navajo Nation plan'') under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The proposed amendment consists of revisions to the Navajo Nation's AMLR Code of 1987 pertaining to its purpose, the duties and miscellaneous powers of the AMLR Department and its Director, the abandoned mine reclamation fund, reclamation fees, eligible lands and water, the Nation's reclamation program, acquisition and reclamation of lands within the Navajo Nation adversely affected by past mining practices, liens, filling voids and sealing tunnels, emergency powers, certification of completion of coal reclamation, and interagency cooperation. It also consists of revisions to the Navajo Nation Rules pertaining to reclamation priorities for coal and noncoal prior to certification, general coal and noncoal reclamation requirements, certification of completion of coal sites, eligible lands and water subsequent to certification, exclusion of noncoal reclamation sites, funding for utilities and other facilities, and creation of a set-aside program. The amendment is intended to revise the Navajo Nation plan to be consistent with SMCRA, and to improve operational efficiency. In addition, the Navajo Nation has requested the concurrence of the Secretary of the Department of the Interior with its certification of completion of coal reclamation under its plan. If the Secretary concurs with the certification, the Navajo Nation intends to request AMLR funds to pursue projects in accordance with section 411 of SMCRA. DATES: Written comments must be received by 4 p.m., m.d.t., June 17, 1994. If requested, a public hearing on the proposed amendment will be held on June 13, 1994. Requests to present oral testimony at the hearing must be received by 4 p.m., m.d.t., June 2, 1994. Any disabled individual who has need for a special accommodation to attend a public hearing should contact the individual listed under FOR FURTHER INFORMATION CONTACT. ADDRESSES: Written comments should be mailed or hand delivered to Thomas E. Ehmett at the address listed below. Copies of the Navajo Nation plan, the proposed amendment, the Nation's request, and all written comments received in response to this document will be available for public review at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. Each requester may receive one free copy of the proposed amendment by contacting OSM's Albuquerque Field Office. Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office of Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., suite 1200, Albuquerque, New Mexico 87102. The Navajo Nation, P.O. Box 308, Window Rock, Arizona 86515 (602) 871-4941. FOR FURTHER INFORMATION CONTACT: Thomas E. Ehmett, telephone: (505) 766-1486. SUPPLEMENTARY INFORMATION: I. Background on Title IV of SMCRA Title IV of SMCRA established an AMLR program for the purposes of reclaiming and restoring lands and waters adversely affected by past mining. The program is funded by a reclamation fee levied on the production of coal. Lands and waters eligible for reclamation under title IV are those that were mined or affected by mining and abandoned or inadequately reclaimed prior to August 3, 1977, and for which there is no continuing reclamation responsibility under State, Federal, Tribal, or other laws. Title IV provides for State or Tribal submittal to OSM of an AMLR plan. The Secretary of the Interior adopted regulations in 30 CFR parts 870 through 888 that implement title IV of SMCRA. Under these regulations, the Secretary reviewed the plans submitted by States and Tribes and solicited and considered comments of State and Federal agencies and the public. Based upon the comments received, the Secretary determined whether a State or Tribe had the ability and necessary legislation to implement the provisions of title IV. After making such a determination, the Secretary decided whether to approve the State or Tribe program. Approval granted the State or Tribe exclusive authority to administer its plan. Ordinarily, under section 405 of SMCRA, a State or Tribe must have an approved surface mining regulatory program prior to submittal of an AMLR plan to OSM. However, on July 11, 1987, the President signed a supplemental appropriations bill (Pub. L. 100-71) that authorized the Crow and Hopi Tribes and Navajo Nation to adopt AMLR programs without approval of Tribal surface mining regulatory programs. Upon approval of a State's or Tribe's plan by the Secretary, the State or Tribe may submit to OSM, on an annual basis, an application for funds to be expended by that State or Tribe on specific projects that are necessary to implement the approved plan. Such annual requests are reviewed and approved by OSM in accordance with the requirements of 30 CFR part 886. II. Background on the Navajo Nation Plan On May 16, 1988, the Secretary of the Interior approved the Navajo Nation plan. General background information on the Navajo Nation plan, including the Secretary's findings, the disposition of comments, and the approval of the Navajo Nation plan can be found in the May 16, 1988, Federal Register (53 FR 17186). Approval of the Navajo Nation plan is codified at 30 CFR 756.13. III. Proposed Amendment and Request for Concurrence By letters dated April 7 and 22, 1994, the Navajo Nation submitted a proposed amendment to its plan pursuant to SMCRA (administrative record Nos. NA-207, NA-208, and NA-212). The Navajo Nation submitted the proposed amendment with the intent of revising its plan to make it consistent with SMCRA, and to improve operational efficiency. By letter dated May 4, 1994, the President of the Navajo Nation notified the Secretary that the Navajo Nation intends to complete all remaining priority 1 and 2 coal reclamation projects, as well as the interim coal reclamation projects, as required by section 403(a) of SMCRA (administrative record No. NA-213). OSM is aware there are coal reclamation projects yet to be completed by the Navajo Nation, however, the Nation has demonstrated that it has sufficient AMLR funds in reserve to address these remaining AMLR coal reclamation sites. The Navajo Nation has also submitted a grant application to OSM in accordance with 30 CFR part 886 that, upon the approval of the proposed amendment, will allow the Nation to complete the remaining coal reclamation projects. The Navajo Nation submitted the request for the Secretary's concurrence with certification of completion of all known coal-related problems with the intent that, if the Secretary concurs with the certification, the Nation will request AMLR funds to pursue projects under the provisions of section 411 of SMCRA. The provisions of the Navajo Nation plan, of which the Navajo AMLR Code is a part, that the Nation proposes to amend are (1) title I, Statement of Findings and Policy, section 101, findings and section 102, purposes; (2) title II, Department of Abandoned Mine Lands Reclamation, section 201, establishment of Department and its duties; and (3) title IV, Abandoned Mine Reclamation, section 401, Navajo abandoned mine reclamation fund (hereinafter referred to as the ``fund'') and its purposes; section 402, reclamation fees; section 403, objective of fund; section 404, eligible lands and water; section 405, Tribal reclamation program; section 407, acquisition and reclamation of lands within the Navajo Nation adversely affected by past coal mining practices; section 408, liens; section 409, filling voids and sealing tunnels; section 411, certification [of completion of coal reclamation]; section 412, fund report; section 413, miscellaneous powers [of the Director of the Department]; and section 414, interagency cooperation. The provisions of the Navajo Nation plan, of which the Navajo Nation Rules are a part, that the Nation proposes to amend are (1) section II, Policies and Procedures for the Navajo Reclamation Program, part D, coal reclamation priorities and noncoal reclamation priorities prior to certification; part L, general reclamation requirements for coal and noncoal; part M, certification of completion of coal sites; part N, eligible lands and water subsequent to certification; part O, exclusion of noncoal reclamation sites; part P, utilities and other facilities and (2) section III, Administrative and Management Structure, part E, future reclamation set-aside program. Following are more specific descriptions of the revisions that the Navajo Nation proposes to make to the above-listed sections of its Code and Rules. These descriptions do not address several editorial revisions including changes in punctuation and capitalization; recodification; replacing ``Tribal'' and ``Tribe of Indians'' with ``Nation'' in references to the Navajo Nation; referring to the reclamation program and plan as the ``Navajo Abandoned Mine Reclamation Program'' and ``Navajo Abandoned Mine Reclamation Plan;'' and additional revisions to reflect the duties and responsibilities of the AMLR Department, Division of Natural Resources, and Office of Navajo Land Administration in administering the AMLR program for the Nation. The Navajo Nation proposes the following revisions to its Code provisions. The Nation proposes to revise its provisions describing the duties of the AMLR Department at subsection 201(b) by adding new language to allow the Department to ``enlist the cooperation of'' employees of federal agencies rather than ``use'' employees of federal agencies and deleting the provision that restricted the transfer of legal authority, program, or function to the Department in promoting the development or use of coal or other mineral resources or regulating the health and safety of miners. The Nation also proposes at subsection 201(d) to add the word ``sovereign'' before ``immunity'' to clarify that nothing in the Code waives the sovereign immunity of the Nation with respect to actions seeking monetary relief of any kind. The Nation proposes to revise its abandoned mine reclamation fund provisions in section 401 by (1) adding new subsection (b)(5) to provide that deposits in the fund shall be derived from interest credited to the fund under section 401(e) of SMCRA; (2) revising subsection (b)(6) to provide that the fund will include ``all'' rather than ``any'' other reclamation fees lawfully imposed by the Nation; (3) revising subsection (c)(5) to require that, when monies in the fund are used for studies conducted for the purposes of this title by the Department, the studies will be conducted in accordance with section 3501 of the Omnibus Reconciliation Act of 1986; and (4) adding new subsection (c)(8) to allow monies in the fund to be used under section 411 [of the Code]. The Nation proposes to revise its fund objective provisions at section 403 by (1) establishing priorities at subsection (a) for expenditures of monies from the fund for lands and waters eligible pursuant to section 404, except as provided for under section 411; (2) deleting subsection (a)(4) which provided for funding of research and demonstration projects relating to the development of surface mining reclamation and water quality control program methods and techniques; and (3) adding an inventory requirement at new subsection (b) to provide that for purposes of assisting in the planning and evaluation of reclamation projects pursuant to section 405, and assisting in making the certification referred to in section 411(a), the Director shall maintain an inventory of eligible lands and waters pursuant to section 404 which meet the priorities stated in paragraph (1) and (2) of subsection 403(a). The Nation proposes to revise its criteria for determining eligible lands and water at section 404 by providing that eligible lands and water are those which were mined for coal and other minerals or which were affected by such mining, * * * except as provided for under section 411, and abandoned or left in an inadequate reclamation status prior to August 3, 1977, and for which there is no continuing reclamation responsibility under applicable law. The Nation also proposes to reference section 409 for other provisions relating to lands and waters eligible for expenditures. The Nation proposes to revise the requirements of its tribal reclamation program at section 405 by providing that the Navajo Nation rather than the Director enters into cooperative agreements and requiring that the program be in compliance with Navajo Nation laws rather than the procedures, guidelines, and requirements of the Code. The Nation proposes to revise the requirements for filing voids and sealing tunnels at subsection 409(b) to provide that, pursuant to Navajo Nation laws, the Director may request funds from the Secretary of the Interior pursuant to section 409(c) of SMCRA to carry our noncoal reclamation if it relates to the protection of the public health or safety. The Nation proposes to delete the emergency powers provisions of section 410 and hold this section in reserve for future use. The Nation proposes to add new section 411 to provide for certification of completion of all coal reclamation, including provisions that (1) allow the Director to certify to the Secretary that all coal priorities stated in section 403(a) for eligible lands and water under section 404 of SMCRA have been achieved; (2) provide that upon concurrence of the Secretary with the certification, eligible lands and water shall not be those described under section 404, but shall be those that were mined or processed for minerals or which were affected by such mining or processing and abandoned or left in an inadequate reclamation status prior to August 3, 1977, and for which there is no continuing reclamation responsibility under State, Tribal or other Federal laws; (3) establish the priorities for expenditures of monies from the fund shall be the same as priorities for coal reclamation in section 403 wherein ``coal'' is replaced with ``mineral;'' (4) add the restriction that sites and areas designated for remedial action pursuant to the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA) and the Comprehensive Environmental Response Compensation and Liability Act of 1980 (CERCLA) are not eligible for expenditures of fund monies; (5) extend the objectives of the fund and the priorities for expenditures to reclamation projects involving the protection, repair, replacement, construction, or enhancement of utilities, and such other facilities serving the public and the construction of public facilities in communities adversely affected or impacted by coal and mineral mining and processing practices; (6) allow annual grants under section 402(g)(1) [of SMCRA] to be used, where the Secretary concurred in the certification and the Director determines there is a need, for activities or construction of specific public facilities related to the coal or mineral industry and the Secretary concurs in such need; and (7) extend the application of the provisions of sections 407 and 408 to subsections (a) through (e) of section 411, except references to coal shall not apply. The Nation proposes to add new language to its interagency cooperation provisions at section 414 to limit cooperation of all departments, boards, commissions, and agencies of the Nation to those situations where such cooperation does not conflict with existing Navajo Nation and/or applicable Federal laws. In addition, the Nation proposes the following revisions to its Navajo Nation Rule provisions. The Nation proposes to revise its rules pertaining to reclamation priorities in section II, part D, by eliminating the reference to the Federal regulations at 30 CFR 874.13(c)(2); delineating coal reclamation priorities from noncoal priorities; removing research and demonstration projects relating to the development of surface coal mining reclamation and water quality control program methods and techniques as a coal priority; providing that reclamation of noncoal sites may occur to protect the public from extreme hazards endangering life and property before coal priorities have been completed and prior to certification of completion of coal reclamation; and deleting restoration of the environment and public facilities construction as priorities of the noncoal program. The Nation also proposes to add new language to its rules at section II, parts L, M, N, O, and P in order to implement specific proposed changes to its Code pertaining to the qualifications of coal and noncoal sites for reclamation, certification of the completion of coal reclamation and establishment of a noncoal reclamation program, eligible noncoal lands and water after certification has occurred, exclusion of UMTRCA and CERCLA sites from funding under the AMLR program to ensure proper use of reclamation funds, and establishment of a public facilities program. Finally, the Nation proposes to add new language to section III, Part E of its rules to establish a future reclamation set-aside program in order to continue the AMLR program after September 30, 1995. IV. Public Comment Procedures In accordance with the provisions of 30 CFR 884.14 and 884.15(a), OSM is seeking comment on whether the proposed amendment satisfies the applicable plan approval criteria of 30 CFR 884.14. If the amendment is deemed adequate, it will become part of the Navajo Nation plan. In addition, OSM is seeking, in accordance with section 411 of SMCRA, public comments and information concerning any known or suspected unreclaimed lands and water resources on Navajo Nation lands that may have been adversely affected by coal mining practices (1) prior to August 3, 1977, and for which there is no continuing reclamation responsibility under State, Federal, Tribal, or other laws or (2) during the period from August 4, 1977, until September 28, 1984, which are the dates for the Navajo Nation interim coal program with September 28, 1984, being the date the permanent Federal regulatory program on Indian lands took effect, and for which available funds for reclamation or abatement pursuant to a bond or other form of financial guarantee or from any other source are not sufficient to provide for adequate reclamation or abatement at the site. Should the Secretary concur with the certification, the Navajo Nation intends to request, in accordance with 30 CFR 886, AMLR funding for other projects as provided for under sections 411(e) and (f) of SMCRA. If no past coal mining problems eligible for funding under section 404 of SMCRA are identified through this process, the Secretary intends to concur with the Navajo Nation's certification. If, after the Secretary's concurrence, a coal problem occurs or is identified, the Nation would have to seek immediate funding for reclaiming coal-related problems. 1. Written Comments Written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of the commenter's recommendations. Comments received after the time indicated under DATES or at locations other than the Albuquerque Field Office will not necessarily be considered in the final rulemaking or included in the administrative record. 2. Public Hearing Persons wishing to testify at the public hearing should contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t., June 2, 1994. The location and time of the hearing will be arranged with those persons requesting the hearing. If no one requests an opportunity to testify at the public hearing, the hearing will not be held. Filing of a written statement at the time of the hearing is requested as it will greatly assist the transcriber. Submission of written statements in advance of the hearing will allow OSM officials to prepare adequate responses and appropriate questions. The public hearing will continue on the specified date until all persons scheduled to testify have been heard. Persons in the audience who have not been scheduled to testify, and who wish to do so, will be heard following those who have been scheduled. The hearing will end after all persons scheduled to testify and persons present in the audience who wish to testify have been heard. 3. Public Meeting If only one person requests an opportunity to testify at a hearing, a public meeting, rather than a public hearing, may be held. Persons wishing to meet the OSM representatives to discuss the proposed amendment and the Navajo Nation's certification may request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the public and, if possible, notices of meetings will be posted at the locations listed under ADDRESSES. A written summary of each meeting will be made a part of the administrative record. V. Procedural Determinations 1. Executive Order 12866 This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866 (Regulatory Planning and Review). 2. Executive Order 12778 The Department of the Interior has conducted the reviews required by section 2 of Executive Order 12778 (Civil Justice Reform) and has determined that this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of Tribal AMLR plans and revisions thereof since each such plan is drafted and promulgated by a specific Tribe, not by OSM. Decisions on proposed Tribal AMLR plans and revisions thereof submitted by a Tribe are based on a determination of whether the submittal meets the requirements of title IV of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR parts 884 and 888. 3. National Environmental Policy Act No environmental impact statement is required for this rule since agency decisions on proposed Tribal AMLR plans and revisions thereof are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)). 4. Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.). 5. Regulatory Flexibility Act The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The Tribal submittal which is the subject of this rule is based upon Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements established by SMCRA or previously promulgated by OSM will be implemented by the Tribe. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions in the analyses for the corresponding Federal regulations. List of Subjects in 30 CFR Part 756 Abandoned mine land reclamation program, Indian lands. Dated: May 10, 1994. Russell F. Price, Acting Assistant Director, Western Support Center. [FR Doc. 94-12004 Filed 5-17-94; 8:45 am] BILLING CODE 4310-05-M