[Federal Register Volume 80, Number 24 (Thursday, February 5, 2015)]
[Rules and Regulations]
[Pages 6435-6448]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-02278]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 700, 875, 877, 879, 884, and 885
RIN 1029-AC66
[Docket ID: OSM-2012-0010; S1D1S SS08011000 SX066A00067F 134S180110;
S2D2S SS08011000 SX066A00 33F 13XS501520]
Abandoned Mine Land Reclamation Program; Limited Liability for
Noncoal Reclamation by Certified States and Indian Tribes
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSMRE or OSM), are revising our abandoned mine land (AML) reclamation
program regulations under Title IV of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act). This rule allows states and
Indian tribes that have certified completion of all known coal AML
reclamation needs within their jurisdiction to receive limited
liability protection for certain noncoal reclamation projects.
DATES: Effective March 9, 2015.
FOR FURTHER INFORMATION CONTACT: Michael F. Kuhns, Division of
Regulatory Support, 1951 Constitution Ave. NW., Washington, DC 20240;
Telephone: 202-208-2860.
SUPPLEMENTARY INFORMATION:
I. Background on the AML Reclamation Program and Limited Liability
Provision
A. How does the AML reclamation program operate?
B. What is the limited liability provision of SMCRA?
C. Why are we making rule changes related to the limited
liability provision?
II. Description of the Final Rule and Discussion of the Comments
Received
A. Summary of the Final Rule
B. General Discussion of Comments
C. Section-by-Section Analysis
1. How are we revising part 700--General?
2. How are we revising part 875--Certification and Noncoal
Reclamation?
3. How are we revising part 877--Rights of Entry?
4. How are we revising part 879--Acquisition, Management, and
Disposition of Lands and Water?
5. How are we revising part 884--State Reclamation Plans?
6. How are we revising part 885--Grants to Certified States and
Indian Tribes?
III. Procedural Matters and Required Determinations
[[Page 6436]]
I. Background on the AML Reclamation Program and Limited Liability
Provision
A. How does the AML reclamation program operate?
Congress established the AML reclamation program in Title IV of
SMCRA to remedy the extensive environmental damage caused by past coal
mining activities. In general, the program is targeted toward
reclaiming abandoned and inadequately reclaimed mine lands and waters
adversely impacted by surface coal mining operations that were not
subject to the reclamation requirements of SMCRA. Health, safety, and
environmental problems associated with abandoned mine lands include
polluted surface water and groundwater, dangerous entrances to
underground mines, water-filled pits, unreclaimed or inadequately
reclaimed mine sites (including some with dangerous highwalls) and
refuse piles, sediment-clogged streams, damage from landslides, and
fumes and surface instability resulting from coal seam fires and
burning coal refuse. Restoration activities under the AML reclamation
program correct or mitigate these problems. While the central focus of
our AML program has been to address coal-related health, safety, and
environmental problems, noncoal mining-related projects also are
eligible to receive funding under certain conditions.
A core element of the national AML program is the reclamation plan
developed by each qualifying state and tribe. Under section 405(b) of
SMCRA, states that have coal lands and waters eligible for reclamation
under Title IV of SMCRA may submit a proposed plan to OSMRE for review.
Section 405(k) of SMCRA extends the same opportunity to Indian tribes
with eligible lands and waters. If the proposed plan demonstrates that
the state or tribe has eligible lands and waters and the legal
authority, policies, and administrative structure necessary to
adequately administer the program, we will approve the plan under
section 405(d) of SMCRA and 30 CFR 884.14, provided the proposed plan
and the state or tribe meet all other requirements of 30 CFR 884.11
through 884.14. Currently, 25 states, the Navajo Nation, the Hopi
Tribe, and the Crow Tribe of Indians have approved AML reclamation
plans.
These states and tribes receive grant funding for their AML
reclamation programs under section 405(f) of SMCRA. These grants are,
in part, financed through a reclamation fee assessed on current coal
production.\1\ The revenues generated by this reclamation fee, and from
certain other sources, are transferred into the Abandoned Mine
Reclamation Fund (the ``AML Fund''), which is a trust fund ``created on
the books of Treasury,'' but administered by the Secretary of the
Interior.\2\
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\1\ 30 U.S.C. 1232(a).
\2\ 30 U.S.C. 1231(a).
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During the first 30 years of the program, the states of Louisiana,
Montana, Texas, and Wyoming and the Crow Tribe, the Hopi Tribe, and the
Navajo Nation completed reclamation of all known coal-related AML
problems within their jurisdiction and certified to that fact in
accordance with section 411(a) of SMCRA. Because of this certification,
these states and tribes are known as ``certified'' states and tribes.
Beginning on November 5, 1990, when the Abandoned Mine Reclamation
Act of 1990 (AMRA) was enacted as part of the Omnibus Budget
Reconciliation Act of 1990, Public Law 101-508, certified states and
tribes were authorized to expend Title IV grant funding on the
reclamation of eligible noncoal AML problems and on the construction of
utilities and public facility projects (collectively ``noncoal
reclamation projects'') under the provisions of subsections (b) through
(g) of section 411 of SMCRA.\3\
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\3\ 30 U.S.C. 1240a(b)-(g).
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In sum, subsection (b) of section 411 allows certified states and
tribes to expend AML Fund moneys on eligible noncoal lands, waters, and
facilities without having to submit a request from the governor or
tribal chairman. Eligible lands, waters, and facilities are defined
under this subsection as those which 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 or other Federal laws.
Subsection (c) \4\ of section 411 requires that expenditures for
eligible noncoal projects must reflect certain listed priorities.
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\4\ 30 U.S.C. 1240a(c).
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Subsection (d) \5\ specifies that sites listed for remedial action
under the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA)
\6\ or the Comprehensive Environmental Response Compensation and
Liability Act of 1980 (CERCLA) \7\ are not eligible noncoal projects.
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\5\ 30 U.S.C. 1240a(d).
\6\ 42 U.S.C. 7901 et seq.
\7\ 42 U.S.C. 9601 et seq.
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Subsection (e) \8\ clarifies that eligible noncoal projects can
include projects relating to the protection, repair, replacement,
construction, or enhancement of public facilities damaged by past
mining practices so long as they relate to the priorities listed in
subsection (c).
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\8\ 30 U.S.C. 1240a(e).
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Subsection (f) \9\ allows the governor of a state or the head of
the governing body of an Indian tribe to request funding for ``specific
public facilities related to the coal or minerals industry'' even if
the site itself was not impacted by past mining practices.
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\9\ 30 U.S.C. 1240a(f).
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Finally, subsection (g) \10\ requires that noncoal programs conform
to the acquisition and lien provisions of SMCRA--sections 407 and
408.\11\
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\10\ 30 U.S.C. 1240a(g).
\11\ 30 U.S.C. 1237-1238.
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Although these 1990 provisions allowed certified states to develop
noncoal reclamation programs under a SMCRA reclamation plan,
uncertified states were still limited in the types of noncoal
reclamation projects they could perform under SMCRA. Specifically,
uncertified states could use AML grant funds on the reclamation of
noncoal AML sites only to abate extreme dangers to public health,
safety, general welfare, and property that arose from the adverse
effects of mineral mining and processing and only at the request of the
governor, as provided under section 409 of SMCRA.
Subsections (b) through (g) of section 411 of SMCRA remained the
governing authority for certified states performing noncoal reclamation
projects under SMCRA until the passage of the Tax Relief and Health
Care Act of 2006, Public Law 109-432, 120 Stat. 292 (the ``2006
amendments''). The 2006 amendments substantially modified the AML
reclamation program in Title IV of SMCRA.
On November 14, 2008, we promulgated a final rule, which revised
the OSMRE regulations for the Abandoned Mine Reclamation Fund and the
Abandoned Mine Land program to implement the 2006 amendments. Abandoned
Mine Land Program, 73 FR 67576-67647 (Nov. 14, 2008) (``2008 Rule'').
(Please refer to the preamble of the 2008 Rule for a more complete
description of the program changes resulting from the 2006 amendments.
73 FR at 67577-67578.)
Of importance to this rulemaking, the 2008 Rule incorporated
changes made by the 2006 amendments relating to the amount and use of
funds distributed to certified states and tribes. Prior to the
[[Page 6437]]
2006 amendments, section 402(g)(1) of SMCRA allocated 50 percent of the
total reclamation fees paid by coal mine operators for coal produced
from operations located within each state or tribe to that state or
tribe. These allocations within the AML Fund are referred to as ``State
share'' or ``Tribal share'' funds. However, distribution of the State
share and Tribal share funds was subject to annual appropriation, and
Congress did not always appropriate the full amount allocated each
year. This left an increasing unappropriated balance of State share and
Tribal share allocations in the AML Fund.
The 2006 amendments addressed this increasing unappropriated
balance of State share and Tribal share funds, in part, by making the
distribution of these funds to uncertified states mandatory.\12\
Certified states and tribes, in contrast, were barred from receiving
what would have been their annual State share and Tribal share
allocations from the AML Fund, beginning October 1, 2007.\13\ These
State share and Tribal share funds were replaced with equivalent
payments from otherwise unappropriated general funds in the U.S.
Treasury.\14\ We refer to these payments as ``certified in lieu''
funds; they are scheduled by statute to continue through fiscal year
2022. 30 U.S.C. 1240a(h)(2); see also 30 U.S.C. 1202(a) and (g)(1).
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\12\ 30 U.S.C. 1231(d)(3).
\13\ 30 U.S.C. 1231(f)(3)(B).
\14\ 30 U.S.C. 1240a(h)(2).
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In addition, the 2006 amendments provided for payments to all
states and tribes from otherwise unappropriated general funds in the
U.S. Treasury in an amount equal to the unappropriated balance of their
State share or Tribal share allocation in the AML Fund as of September
30, 2007. See section 411(h)(1) of SMCRA.\15\ As required by the 2006
amendments, distribution of these ``prior balance replacement funds''
occurred in seven equal annual installments, beginning with fiscal year
2008 and ending in fiscal year 2014.
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\15\ 30 U.S.C. 1240a(h)(1).
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In 2012, however, a new law (Pub. L. 112-141) amended section
411(h) of SMCRA by capping the total annual payment to a certified
state or tribe under that section at $15 million. In other words, the
combined certified in lieu and prior balance replacement funds
distributed annually to a certified state or tribe cannot exceed $15
million annually. On October 2, 2013, Congress increased this cap to
$28 million in fiscal year 2014 and $75 million in fiscal year 2015.
See section 10 of the Helium Stewardship Act of 2013 (Pub. L. 113-40).
As mentioned earlier, the 2008 Rule revised the regulations to
conform to the 2006 amendments. The 2008 Rule recognized the greater
latitude that the 2006 amendments gave to certified states and tribes
in how they could spend the certified in lieu funds or prior balance
replacement funds. In particular, under the 2008 Rule, while certified
programs are still required to address known and newly discovered coal
problems in a timely manner, funding not needed to address coal
problems may be used for a wider range of purposes than previously
allowed, including, but not limited to, purposes related to noncoal
reclamation projects. See 30 CFR parts 872 and 875 (2009).
B. What is the limited liability provision of SMCRA?
Work done as part of an approved state or tribal AML reclamation
plan receives limited liability protection. Among the many changes made
to Title IV in 1990, AMRA added a new section--section 405(l) \16\ (the
limited liability provision)--which specifies that ``[n]o State shall
be liable under any provision of Federal law for any costs or damages
as a result of action taken or omitted in the course of carrying out a
State abandoned mine reclamation plan approved under this section.''
Indian tribes are also covered under this provision because section
405(k) \17\ provides that an Indian tribe is considered a state for
purposes of Title IV of SMCRA. Section 405(l) waives monetary liability
for states and tribes under all Federal laws when the states and tribes
are acting to carry out their approved abandoned mine reclamation plan,
but it does not preclude liability for a state's or tribe's gross
negligence or intentional misconduct. State and tribal program
officials routinely make a broad range of decisions concerning site
selection and abatement of serious health, safety, and environmental
problems. Although the limited liability provision does not waive the
applicability of Federal laws to the states and tribes, it does waive
monetary liability for actions they take in carrying out or complying
with those laws in furtherance of an AML reclamation plan. In so doing,
the limited liability provision provides states and tribes with a
degree of protection as they make difficult choices with limited
program funding.
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\16\ 30 U.S.C. 1235(l).
\17\ 30 U.S.C. 1235(k).
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On May 31, 1994, we promulgated 30 CFR 874.15 and 875.19 to
implement the limited liability provision in section 405(l) of SMCRA.
See 59 FR 28172-28173. The language in those two regulatory sections is
identical--30 CFR 874.15 applies to uncertified programs, while 30 CFR
875.19 applies to certified programs.
C. Why are we making rule changes related to the limited liability
provision?
We are revising our rules in response to concerns that the 2008
Rule may have created a disincentive for certified states and tribes to
conduct noncoal reclamation projects with the moneys that they receive
under SMCRA. In the 2008 Rule, we did not change the language of either
30 CFR 874.15 or 875.19, which are the regulatory provisions that
mirror SMCRA's limited liability provision. However, we concluded in
the preamble to the 2008 Rule that, although certified programs could
engage in noncoal reclamation projects, programs that use the two new
sources of funding under sections 411(h)(1) and (h)(2) of SMCRA (prior
balance replacement funds and certified in lieu funds, respectively,
instead of AML Fund moneys) would not be operating as SMCRA noncoal AML
reclamation programs and would not benefit from the limited liability
protections when they conduct noncoal reclamation projects. See 73 FR
at 67609-67611. This is because the noncoal reclamation projects for
certified states are authorized by subsections (b) through (g) of
section 411 of SMCRA, and those statutory provisions only refer to the
use of State share and Tribal share funds for SMCRA noncoal AML
reclamation programs from the AML Fund. As stated above, as a result of
the 2006 amendments, certified states and tribes no longer receive
State share and Tribal share funds. Since 2008, certified states and
tribes that have chosen to expend the certified in lieu funds or prior
balance replacement funds to work on noncoal reclamation projects could
not comply with the regulations in 30 CFR part 875 that had implemented
subsections (b) through (g) of Section 411 of SMCRA \18\ and,
therefore, could not benefit from the limited liability protection
afforded by 30 CFR 875.19 for their noncoal reclamation projects. 73 FR
at 67613-67614.
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\18\ 30 CFR 875.11(b)(2).
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Although we ultimately adopted this more restrictive approach in
the 2008 Rule, we considered other alternatives in the proposed rule
that preceded the 2008 Rule. First, we proposed to allow certified
states and tribes to choose to use their Title IV moneys for noncoal
[[Page 6438]]
reclamation projects under 30 CFR part 875. See Abandoned Mine Land
Program, 73 FR 35214, 35233 (June 20, 2008). Second, we presented an
alternative that would have required certified states and tribes to
spend their certified in lieu funds for noncoal reclamation projects
under 30 CFR part 875. Id.
As part of the 2008 rulemaking, we received a number of comments
regarding the application of the limited liability provision to
certified states and tribes. At that time, the Interstate Mining
Compact Commission (IMCC), the National Association of Abandoned Mine
Land Programs (NAAMLP), and one state commented that ``certified AML
programs should not be required to follow all of part 875 to enjoy the
protection of the limited liability provisions of Sec. 875.19.'' \19\
Since we adopted the 2008 Rule, program officials in certified states
and tribes have continued to express concern that the loss of limited
liability protection for noncoal reclamation projects creates a
disincentive to conduct at least some types of noncoal reclamation
activities.\20\
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\19\ 73 FR at 67613.
\20\ See, e.g., Statement of Madeline Roanhorse, Manager, AML
Reclamation/Uranium Mill Tailings Radiation Control Act Department,
Navajo Nation on Behalf of the National Association of Abandoned
Mine Land Programs re Oversight Hearing on The Effect of the
President's FY 2013 Budget and Legislative Proposals for the Office
of Surface Mining on Private Sector Job Creation, Domestic Energy
Production, State Programs and Deficit Reduction before the House
Energy and Mineral Resources Subcommittee, March 6, 2012, p. 7
(``Without this limited liability protection, these states and
tribes potentially subject themselves to liability under the Clean
Water Act and CERCLA for their AML reclamation work. Nothing in the
2006 Amendments suggested that there was a desire or intent to
remove these liability protections, and without them in place,
certified states and tribes will need to potentially reconsider at
least some of their more critical AML projects.'').
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Based on our reconsideration of these past public comments on the
2008 Rule and our own concerns about the potential disincentive that
the 2008 may have created, we reconsidered the position that we took in
the 2008 Rule and concluded that a more flexible approach could
increase reclamation of noncoal AML sites. In February 2013, we
published a proposed rule to revise the 2008 Rule to allow certified
states and tribes to choose to use their prior balance replacement
funds and certified in lieu funds for noncoal reclamation projects
under 30 CFR part 875 in accordance with an approved AML reclamation
plan. Abandoned Mine Land Reclamation Program; Limited Liability for
Noncoal Reclamation by Certified States and Indian Tribes, 78 FR 8822
(Feb. 6, 2013). Under the proposed rule, any noncoal reclamation
projects conducted under 30 CFR part 875 in accordance with an approved
AML reclamation plan would receive limited liability protection as
authorized by section 405(l) of SMCRA and 30 CFR 875.19.
The rule that we are promulgating today is designed to restore
limited liability protections for certain noncoal reclamation projects,
as described below.
II. Description of the Final Rule and Discussion of the Comments
Received
A. Summary of the Final Rule
The final rule that we are adopting today gives certified states
and tribes two options for conducting noncoal reclamation projects.
First, the final rule retains the ability of certified states and
tribes to expend their prior balance replacement funds and certified in
lieu funds on projects outside the scope of a SMCRA noncoal AML
reclamation program but without limited liability protection. Second,
the final rule allows certified states and tribes the ability to
voluntarily use prior balance replacement funds and certified in lieu
funds to conduct noncoal reclamation projects pursuant to a SMCRA
noncoal AML reclamation program under the provisions of subsections (b)
through (g) of section 411 of SMCRA and 30 CFR part 875 and other
applicable regulations. The limited liability protection provided by
section 405(l) and 30 CFR 875.19 would apply to noncoal reclamation
projects completed pursuant to a SMCRA noncoal AML reclamation program.
These two options are discussed in more detail below.
Under the first option, if a certified state or tribe chooses to
use some or all of its certified in lieu funds, prior balance
replacement funds, or both, on noncoal reclamation projects outside of
a SMCRA noncoal AML reclamation program, it will not be required to
comply with subsections (b) through (g) of section 411 and the
requirements of 30 CFR and other regulations related to SMCRA noncoal
AML reclamation programs. Thus, for example, a state could expend
certified in lieu funds on UMTRCA or CERCLA sites, but if it did so it
would not receive the limited liability protections afforded by SMCRA
because section 411(d) and 30 CFR 875.16 prohibit SMCRA noncoal AML
reclamation programs from expending moneys on those types of sites.
Certified states and tribes that choose this option will have the same
administrative responsibilities that they have been subject to under
the 2008 Rule.
Certified states and tribes, however, can receive limited liability
protections for noncoal reclamation projects taken under the aegis of
the second option--a SMCRA noncoal AML reclamation program that is part
of an approved AML reclamation plan in accordance with 30 CFR part 875
and other applicable regulations. In other words, under this rule, the
limited liability provision will apply to noncoal reclamation projects
conducted under an approved state or tribal SMCRA noncoal AML
reclamation program consistent with subsections (b) through (g) of
section 411 of SMCRA and the requirements of 30 CFR part 875 and other
applicable regulations.
Under such a SMCRA noncoal AML reclamation program, limited
liability protections will extend to onsite reclamation activities and
to program administration, site development, environmental management,
and other actions taken or not taken in support of noncoal reclamation
projects. Because the protections only extend to ``action taken or
omitted in the course of carrying out'' an approved abandoned mine
reclamation plan for a state or Indian tribe, there must be a clear
nexus between the action or inaction and a noncoal reclamation project
conducted pursuant to 30 CFR part 875 that is part of an approved AML
reclamation plan for the protections to apply. Because OSMRE must
verify that the projects conducted under the second option meet the
applicable statutory and regulatory criteria, certified states and
tribes choosing this option will be subject to more administrative
responsibilities, such as the requirement for the submittal and
approval of a written authorization to proceed. These individual
administrative requirements are described in the next section-by-
section analysis below.
As we explained in our proposed rule, the approach contained in
this final rule is consistent with section 411(h)(1) of SMCRA, which
grants the state legislatures and tribal councils almost complete
discretion as to how to spend prior balance replacement funds, and it
is consistent with section 411(h)(2) of SMCRA, which contains no
specific instruction on the use of certified in lieu funds and does not
place any restrictions upon them. 78 FR 8825. This broad congressional
grant of authority gives certified states and tribes discretion to
operate an approved noncoal AML reclamation program under subsections
(b) through (g) of section 411 of SMCRA and the implementing
regulations with these funds, should they chose to do so. This approach
would also be consistent with
[[Page 6439]]
our view that states and tribes may use these funds for coal
reclamation to maintain certification, a use also not explicitly
contained in either paragraph (h)(1) or paragraph (h)(2) of section 411
of SMCRA.
B. General Discussion of Comments
In response to the proposed rule, we received comments from seven
states and one Indian tribe, each with an approved AML reclamation plan
under Title IV of SMCRA. In addition, we also received joint comments
from the IMCC and the NAAMLP. We did not receive any comments from
environmental groups, the coal industry, or citizens. All comments
timely submitted are available for public review in the docket for this
rulemaking.
The comments that we received ranged from very specific to very
general. All comments either supported the rule or were neutral. We
received no comments opposing the rule. Seven states and one tribe
urged OSMRE to enact a final rule as soon as practicable. They also
endorsed the IMCC/NAAMLP comments, which can be summarized in the
following excerpt: ``While we anticipated fewer changes required to
effect the reinstatement [of limited liability coverage], our review
indicates OSMRE has done a thorough job in correcting all areas of the
rules necessary to support the reinstatement. OSMRE is to be commended
for their effort.''
Comments specific to a particular provision of the proposed rule
are discussed below in the section-by-section analysis.
C. Section by Section Analysis
1. How are we revising part 700--General?
To improve the clarity of the regulations, we are revising Sec.
700.5 to add a definition of the term ``SMCRA.'' We proposed to define
the term ``SMCRA'' as meaning the Surface Mining Control and
Reclamation Act of 1977 (Pub. L. 95-87), as amended. We received no
comments about the proposed definition and are adopting it as proposed,
with the exception that we are replacing the reference to Public Law
95-87 in the proposed rule with the appropriate United States Code
citation (30 U.S.C. 1201 et seq.) because that is the more commonly
used citation for the statute.
2. How are we revising part 875--Certification and Noncoal Reclamation?
We are revising this part to clarify that certified states and
tribes may voluntarily conduct noncoal reclamation activities under a
noncoal AML reclamation program in accordance with the provisions of 30
CFR part 875 and other applicable regulations and thus receive limited
liability protection for noncoal reclamation projects completed under
those provisions. In general, our revisions set forth the procedures
that certified states and tribes must follow if they voluntarily choose
to use their Title IV funding for noncoal reclamation projects under
part 875, which includes reclamation of noncoal AML sites as well as
the construction of certain utilities and public facilities as provided
under Sec. 875.15, pursuant to an approved SMCRA noncoal AML
reclamation plan. These procedures relate to the eligibility of sites
and restrictions for land acquisition and management, lien
determinations, and contractor eligibility. In addition, this part
makes clear that certified states and Indian tribes will receive
limited liability protection under 30 CFR 875.19 for authorized noncoal
reclamation projects and supporting administrative and programmatic
activities. A discussion of our revisions to individual sections of the
rules and our response to the comments that we received specific to
those sections follows.
Applicability (Sec. 875.11)
We are revising Sec. 875.11(b)(2) to allow certified programs to
use prior balance replacement funds and certified in lieu funds for
both coal reclamation projects that are necessary to maintain
certification and noncoal reclamation projects approved under SMCRA.
The final rule is consistent with section 411(h)(1) of SMCRA, which
grants the state legislatures and tribal councils discretion as to how
prior balance replacement funds may be spent, because the state
legislature or tribal council could direct these funds to be expended
on noncoal reclamation projects pursuant to 30 CFR part 875. In
addition, optional coverage is consistent with section 411(h)(2) of
SMCRA, which contains no specific instruction on the use of certified
in lieu funds and does not place any restrictions upon them. Therefore,
certified states and tribes now will have the discretionary authority
to direct some or all of these funds to SMCRA noncoal reclamation
projects consistent with section 411 of SMCRA and 30 CFR part 875. This
approach is also consistent with 30 CFR 875.14(b), which expressly
allows states and tribes to use certified in lieu funds and prior
balance replacement funds to address coal problems discovered
subsequent to certification, a use that also is not explicitly
contained in either subsection (h)(1) or subsection (h)(2) of section
411 of SMCRA, which authorize the payment of prior balance replacement
and certified in lieu funds.
By allowing certified states and tribes the latitude to conduct
noncoal reclamation projects under 30 CFR part 875 and an approved
SMCRA noncoal AML reclamation plan, we will continue to promote the AML
reclamation plan as a central component of SMCRA noncoal reclamation
projects. Activities carried out under a SMCRA noncoal AML reclamation
program under 30 CFR part 875 will enjoy the limited liability
protections of section 405(l) of SMCRA because the work will be
conducted pursuant to an approved AML reclamation plan that conforms to
subsections (e) and (f) of section 405 of SMCRA and the applicable
regulations.
We received no comments opposing the proposed revisions to this
section and we are adopting the revisions to this section as proposed.
Reclamation Priorities for Noncoal Program (Sec. 875.15)
In our proposed rule, we did not include any revisions to the
language in Sec. 875.15, which establishes priorities for SMCRA
noncoal AML reclamation programs. However, the IMCC/NAAMLP asked for
clarification regarding the priorities listed in that section. In
particular, they wanted to know whether we would require certified
states and tribes to strictly adhere to those priorities if the
certified state or tribe chooses to expend its AML moneys pursuant to
new Sec. 875.11(b)(2)(ii), which authorizes those states and tribes to
``conduct a noncoal reclamation program in accordance with the
requirements of this part.'' The commenters then opined that, because
the expenditure of funds on a SMCRA noncoal AML reclamation program
under 30 U.S.C. part 875 is voluntary, it would be inappropriate to
require a certified state or Indian tribe to strictly follow the
hierarchy of priorities in this section. They suggested that certified
states and Indian tribes should be able to choose which project or
projects to address, and in which order. For example, they would like
the flexibility to address a priority 3 site before all priority 1 and
2 sites are corrected.
We did not make any changes to Sec. 875.15 in response to this
comment because this section is derived from subsections (c), (e), and
(f) of section 411 of SMCRA, which are described above in section I.A
of this preamble.\21\
[[Page 6440]]
The priorities and restrictions contained in Sec. 875.15 are part of
the statutory requirements for a SMCRA noncoal AML reclamation program,
and we must give them effect. However, we have not historically
interpreted this language in an inflexible manner. Section 411(c) of
SMCRA and Sec. 875.15(b) state that the expenditure of moneys ``shall
reflect'' the priorities listed. This language is similar to the
language used to describe the priorities for coal reclamation under
section 403(a) of SMCRA. See 30 U.S.C. 1233(a) (``Expenditure of moneys
. . . shall reflect the following priorities in the order stated. . .
.''). Our longstanding approach for interpreting section 403(a) has
been ``that reclamation programs can reclaim Priority 3 land and water
projects before the completion of all Priority 1 and 2 projects as long
as the overall reclamation program generally reflects the priorities.''
\22\ Because section 411(c) and Sec. 875.15(b) are so similar to
section 403(a), the same approach would apply to noncoal reclamation
projects: i.e., Priority 3 noncoal reclamation projects may be
conducted before completion of all Priority 1 and 2 noncoal reclamation
projects so long as the overall SMCRA noncoal AML reclamation program
generally reflects the priorities listed in section 411(c) and 30 CFR
875.15.
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\21\ 30 U.S.C. 1240a(c), (e) and (f).
\22\ 73 FR at 67603 (summarizing OSM's history of this
approach).
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Exclusion of Certain Noncoal Reclamation Sites (Sec. 875.16)
Consistent with the proposed rule, we are revising this section to
prohibit the reclamation of sites designated for remedial action under
UMTRCA \23\ or listed for remedial action under CERCLA \24\ by
certified states or tribes using prior balance replacement funds or
certified in lieu funds if they conduct the reclamation as a component
of a voluntary SMCRA noncoal AML reclamation program under part 875.
SMCRA clearly prohibits ``[s]ites and areas designated for remedial
action pursuant to [UMTRCA] or which have been listed for remedial
action pursuant to [CERCLA]'' from being ``eligible for expenditures
from the Fund under'' section 411 of SMCRA.\25\
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\23\ 42 U.S.C. 7901 et seq.
\24\ 42 U.S.C. 9601 et seq.
\25\ 30 U.S.C. 1240a(d).
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The revision to Sec. 875.16(b) will continue to prohibit a
certified state or Indian tribe from expending money left over from the
pre-2008 distributions of funds from section 402(g)(1) on UMTRCA and
CERCLA sites. In addition, as described in the proposed rule, this
section is being revised to prohibit the expenditure of prior balance
replacement funds and certified in lieu funds for UMTRCA and CERCLA
sites if the state or tribe chooses to conduct a SMCRA noncoal AML
reclamation program under part 875. The revised rule does not prohibit
a certified state or tribe from expending Title IV moneys on UMTRCA and
CERCLA sites if those projects are completed outside the scope of a
SMCRA noncoal AML reclamation program operating under part 875.
However, the certified state or tribe will not receive limited
liability coverage under SMCRA for those projects.
We received no comments opposing this proposed provision. We did,
however, receive a suggestion to capitalize ``State'' in the regulatory
text to be consistent with capitalization of this word elsewhere in our
regulations. We are adopting the proposed rule with this editorial
change.
Land Acquisition Authority--Noncoal (Sec. 875.17)
As stated in the proposed rule, we are revising this section to
confirm that the requirements specified in parts 877 (Rights of Entry)
and 879 (Acquisition, Management and Disposition of Lands and Water)
also apply to a state's or tribe's SMCRA noncoal AML reclamation
projects conducted voluntarily under part 875. We received no comments
opposing the proposed changes to this section and we are adopting the
changes with a minor revision for clarity.
Limited Liability (Sec. 875.19)
Consistent with the proposed rule, we are revising this section to
clarify that no state or Indian tribe conducting noncoal reclamation
projects, including the reclamation of noncoal AML sites and the
construction of certain utilities and public facilities, under the
provisions of part 875 is liable under any provision of Federal law for
any costs or damages as a result of action taken or omitted in the
course of carrying out an approved state or Indian tribe AML
reclamation plan. The revision is also consistent with section 405(l)
of SMCRA, as this section preserves state and tribal liability for
costs or damages caused by a state's or tribe's gross negligence or
intentional misconduct when carrying out a SMCRA noncoal program under
an approved reclamation plan.
Although not specifically referring to this provision, one
commenter requested that we clarify whether the limited liability
provisions of section 405(l) of SMCRA and the Federal regulations would
``provide a certified state or tribal program operating under a
federally approved state abandoned mine program with exemption from
liability under the third-party lawsuit provision of the Clean Water
Act[.]'' This commenter noted that the legislative history surrounding
section 405(l) specifically refers to section 405(l) as limiting the
liability of CERCLA for reclamation projects associated with eligible
noncoal abandoned mine sites ``so long as the project is undertaken
pursuant to a federally approved reclamation plan.'' See H.R. Rep. 101-
294, at 30, 37 (1989).
We have opted not to make any changes to the regulatory text based
on this comment. We note that the language of section 405(l) of SMCRA
and Sec. 875.19 limits liability ``under any provision of Federal law
for any costs or damages as a result of action taken or omitted in the
course of carrying out an approved State or Indian tribe abandoned mine
reclamation plan.'' 30 U.S.C. 1235(l) (emphasis added). This limited
liability protection does not exempt states or tribes from complying
with applicable Federal laws, including the Clean Water Act.\26\
Rather, it protects a state or tribe from paying for costs or damages
that may arise as a result of the state's or tribe's actions or
inactions while carrying out its approved abandoned mine reclamation
plan. All grant recipients must provide assurances to OSMRE that
activities funded by the AML Fund, certified in lieu funds, or prior
balance replacement funds will comply with Federal laws, as well as
state, tribal, and local laws. We are unaware of any instances where
states or tribes have attempted to rely on this provision to avoid
complying with the Clean Water Act or any other Federal law.
Nevertheless, until such time as the courts define the scope of
coverage under section 405(l), we cannot definitively state the
parameters of the limited liability protection provision nor foresee
all future possible factual scenarios in which a state or tribe may
raise section 405(l) of SMCRA as a defense against a claim for costs or
damages arising from the state's or tribe's actions or inactions while
carrying out an approved abandoned mine reclamation plan.
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\26\ 33 U.S.C. 1251 et seq.
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We are making one minor revision to this section from the language
as proposed. We removed the word ``certified'' from the first sentence
of this rulemaking because, according to Sec. 875.11, this part
applies to both noncoal reclamation projects conducted by certified
states and tribes pursuant to SMCRA noncoal AML reclamation
[[Page 6441]]
programs under subsections (b) through (g) of section 411 of SMCRA and
part 875 as well as to noncoal reclamation activities conducted by
uncertified states consistent with section 409 of SMCRA and the
applicable regulations. We originally proposed to include the word
``certified'' to ensure that these states and tribes would be eligible
for limited liability coverage, and we did not intend to remove this
coverage from uncertified states. Thus, removing the word ``certified''
eliminates the possibility of any unintended loss of limited liability
coverage for uncertified states performing authorized noncoal
reclamation work.
Contractor Eligibility (Sec. 875.20)
As described in the proposed rule, we are revising this section to
clarify that certified states and tribes that voluntarily conduct
noncoal reclamation activities under part 875 must comply with the
contractor eligibility requirements. This section also applies to
certified states and tribes that conduct coal reclamation to maintain
certification. We received no comments opposing the proposed revisions
to this section and we are adopting the rule as proposed with a minor
revision for clarity.
3. How are we revising Part 877--Rights of Entry?
We did not propose any revisions to part 877 in the proposed rule,
but we are making minor, non-substantive revisions to Sec. 877.1
(Scope) for clarity in response to a comment suggesting that we add
introductory language to part 877 to clarify that ``noncoal'' replaces
all references to ``coal'' when certified states and tribes are
conducting noncoal reclamation projects under section 411 of SMCRA and
part 875 of the regulations. The commenter acknowledged that the
revisions to Sec. 875.17 would have the same effect, but the commenter
stated that repeating this language in part 877 would improve clarity
and avoid confusion. We agree with the commenter and are adding the
requested language to Sec. 877.1.
4. How are we revising Part 879--Acquisition, Management, and
Disposition of Lands and Water?
Because the final rule modifies part 875 to allow certified states
and tribes to voluntarily conduct noncoal reclamation projects under
SMCRA, we are revising, consistent with the proposed rule, part 879 so
that the procedures related to acquisition, management, and disposition
of land and water are consistent with this option. In general,
certified states and Indian tribes that voluntarily conduct noncoal
reclamation projects under part 875 will be required to follow the
provisions of part 879. Consistent with the proposed rule, we also are
revising Sec. 879.15 to specify that all moneys received by a
certified state or tribe in the context of their noncoal reclamation
projects conducted under part 875 must be handled in accordance with
Sec. 885.19 to ensure that any moneys received from the disposition of
lands and waters are returned to the AML reclamation program. Each
change, a summary of the comments we received, if any, and our
responses to these comments are described below in more detail.
Scope (Sec. 879.1)
Consistent with the proposed rule, we are revising this section to
clarify its applicability to certified states and tribes that choose to
conduct noncoal reclamation projects under part 875. We received no
comments opposing our proposed revisions to Sec. 879.1. However, one
commenter suggested that we add language to the introduction of part
879 to clarify that ``noncoal'' replaces all references to ``coal''
when certified states and tribes are conducting noncoal reclamation
projects under part 875. The commenter acknowledged that the revisions
to Sec. 875.17 would have the same effect, but the commenter stated
that repeating this language in part 879 would improve clarity and
avoid confusion.
We agree with the commenter. Accordingly, we are revising Sec.
879.1 to reflect the changes that we proposed, and we are adopting
additional language to clarify that ``noncoal'' replaces all references
to ``coal'' when certified states and tribes are conducting noncoal
reclamation projects under part 875.
Land Eligible for Acquisition (Sec. 879.11)
As described in the proposed rule, we are revising Sec. Sec.
879.11(a) and 879.11(b) to clarify that these sections apply to a
certified state or Indian tribe that chooses to conduct noncoal
reclamation activities under part 875. In addition, we determined that
previous Sec. 879.11 was not as clear as we intended, and we
restructured Sec. 879.11(a) to confirm that OSMRE must execute a
written approval and make the findings required by Sec. Sec.
879.11(a)(1) and 879.11(a)(2) when we acquire land. We received no
comments opposing the proposed changes and we are adopting the
revisions to this section as proposed with minor revisions to
Sec. Sec. 879.11(a)(2) and 879.11(b) for clarity.
Disposition of Reclaimed Land (Sec. 879.15)
As proposed, we are revising Sec. 879.15(h) to specify that moneys
received from disposal of land by certified states and tribes
conducting a SMCRA noncoal AML reclamation program under part 875 must
be handled as unused funds in accordance with Sec. 885.19. We received
no comments opposing the proposed changes to this section and we are
adopting the rule as proposed.
5. How are we revising Part 884--State Reclamation Plans?
As described in the proposed rule, we are revising part 884 to
specify the contents of an AML reclamation plan for certified states
and Indian tribes. In particular, we are revising two sections--
Sec. Sec. 884.13 and 884.17. Each change, a summary of the comments we
received, if any, and our responses to these comments are described
below in more detail.
Content of Proposed State Reclamation Plan (Sec. 884.13)
As proposed, we are revising this section to require that an AML
reclamation plan for a certified state or tribe contain all components
required for an AML reclamation plan for an uncertified state or tribe,
plus a commitment to address eligible coal problems found or occurring
after certification as required in Sec. Sec. 875.13(a)(3) and
875.14(b). This is a change from the 2008 Rule that specified that a
noncoal AML reclamation plan for a certified state or tribe need
include only two components: (1) a designation by the governor of the
state or the governing authority of the Indian tribe identifying the
agency authorized to administer the AML reclamation program and to
receive and administer grants, and (2) a commitment to address eligible
coal problems found or occurring after certification, as required in
Sec. Sec. 875.13(a)(3) and 875.14(b).
We are making this change so that certified states and tribes will
be able to avail themselves of the limited liability protections
afforded by section 405(l) of SMCRA. To receive the protection of
section 405(l), certified states and Indian tribes must conduct noncoal
reclamation projects under 30 CFR part 875 in accordance with an
approved AML reclamation plan that conforms to paragraphs (e) and (f)
of section 405 and the applicable regulations.
We received no comments opposing our proposed revisions to this
section. The final rule that we are adopting
[[Page 6442]]
today is substantively identical to proposed Sec. 884.13. However, we
are reorganizing this section for clarity and consistency with current
rule drafting principles. The final rule consolidates the requirements
that apply to all states and tribes (both certified and uncertified) in
paragraph (a). Paragraph (b) contains the additional requirement that
applies to certified states and tribes.
Other Uses by Certified States and Indian Tribes (Sec. 884.17)
In response to a comment received on the proposed rule, we are
revising section 884.17 in the final rule to alleviate confusion about
whether certain restrictions in that section apply to public facility
projects. Section 884.17 details the contents of a reclamation plan for
a certified state or tribe that chooses to use AML funds for a specific
type of noncoal reclamation project--a public facility project. In
particular, this section allows certified states and tribes to expend
money on public facility projects ``when the Governor of the State has
certified and the Director [of OSM] has concurred that'' (1) all
reclamation, both coal and noncoal reclamation, has been completed, (2)
the ``specific public facilities are required as a result of coal
development,'' and (3) other funds available under the Mineral Leasing
Act of 1920 (MLA),\27\ as amended, or the Payment in Lieu of Taxes Act
(PILTA),\28\ are inadequate.
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\27\ 30 U.S.C. 181 et seq.
\28\ Although existing 30 CFR 884.17(a)(3) refers to the
``Payment In Lieu of Taxes Act'' as the ``Act of October 20, 1978,
Public Law 94-565 (90 Stat. 2662)'' the correct reference to that
Act is the ``Act of October 20, 1976.''
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This provision was first proposed in 1978 as Sec. 850.12(d). See
Abandoned Mine Land Reclamation Program Provisions, 43 FR 17918, 17930
(Apr. 25, 1978). The preamble to the February 2013 proposed rule
explains that we proposed Sec. 850.12 to allow states and tribes to
include noncoal reclamation activities in their initial state or tribal
AML reclamation plan. See 43 FR at 17921. This 1978 provision, Sec.
850.12, helped to implement section 402(g)(2) of SMCRA, which
originally stated:
Fifty per centum of the funds collected annually in any State or
Indian reservation shall be allocated to that State or Indian
reservation by the Secretary pursuant to any approved abandoned mine
reclamation program to accomplish the purposes of this title. Where
the Governor of a State or the head of a governing body of a tribe
certifies that (i) objectives of the fund set forth in sections 403
and 409 have been achieved, (ii) there is a need for construction of
specific public facilities in communities impacted by coal
development, (iii) impact funds which may be available under
provisions of the Federal Mineral Leasing Act of 1920, as amended,
or the Act of October 20, 1976, Public Law 94-565 (90 Stat. 2662),
are inadequate for such construction, and (iv) the Secretary concurs
in such certification, then the Secretary may continue to allocate
all or part of the 50 per centum share to that State or tribe for
such construction: Provided, however, That if funds under this
subparagraph (2) have not been expended within three years after
their allocation, they shall be available for expenditure in any
eligible area as determined by the Secretary.
30 U.S.C. 1232(g)(2) (1978); see also 91 Stat. 458.
When OSMRE finalized the 1978 rule, it renumbered the provision as
Sec. 884.12(d). See Abandoned Mine Land Reclamation Program
Provisions, 43 FR 49932, 49948 (Oct. 25, 1978). In 1982, OSMRE revised
and recodified Sec. 884.12(d) as Sec. 884.17. See Revision of the
Abandoned Mine Land Reclamation Program Rules, 47 FR 28574, 28600 (June
30, 1982). As explained in the preamble to the corresponding proposed
rule, we proposed this change so as ``to avoid confusion as to when
impact assistance is available and how it can be obtained.'' Proposed
Revision of the Abandoned Mine Land Reclamation Program Regulations, 46
FR 60778, 60786 (Dec. 11, 1981).
Among the changes made by AMRA in 1990 was the removal of
restrictions on public facility projects contained in the second
sentence of section 402(g)(2), as originally enacted in 1977. AMRA also
added paragraphs (a) through (g) to section 411, which contain the
current restrictions on the types of noncoal reclamation projects,
including public facility projects, that can be financed with AML
moneys by certified states and tribes. Although we amended our
regulations in 1994 to incorporate the amendments to SMCRA contained in
AMRA and the Energy Policy Act of 1992, we did not make any changes to
Sec. 884.17. See Abandoned Mine Land Reclamation Fund Reauthorization
Implementation, 59 FR 28136 (May 31, 1994). At that time, however, we
did add Sec. 875.15 to incorporate the expanded authority of certified
states and tribes to use AML funds for projects related to the
protection, repair, replacement, or enhancement of facilities used by
the public, if these facilities are affected by coal or noncoal mining
activities. See 59 FR at 28161-28164.
Although we did not amend Sec. 884.17 in 1994, we recognized that
the restrictions contained in the second sentence of section 402(g)(2)
of SMCRA, as originally enacted in 1977, were inapplicable and that
certified States and Tribes would not have to meet the criteria in
Sec. 884.17 in order to expend AML funds on public facility projects
under SMCRA. In response to a comment that suggested that we require a
certified state or tribe to complete all known coal and noncoal
reclamation before allowing the construction of public facility
projects under section 411(f), we stated:
[A] State Governor or head of a governing body of an Indian
tribe may request funding for activities pursuant to Section 411(f)
at any time after certification. There is no requirement that a
State or Indian tribe complete all known noncoal reclamation before
utilizing this authority. The commenters' premise is based on the
original statutory language of Section 402(g)(2) as enacted in 1977.
This section provided that once a state had completed all of its
coal and noncoal reclamation, it could utilize AML funds for
community impact assistance. This old statutory scheme was deleted,
and OSM can find no references in the legislative history which
supports the commenter's position. . . . In the absence of
restricting language in Section 411(f) or qualifying language in
Section 411(c), OSM believes the proper interpretation is to permit
States and Indian tribes to utilize the authority in Section 411(f)
without regard to the completion of the priorities specified in
Section 411(c) [pertaining to noncoal reclamation].
59 FR at 28163. Thus, since the enactment of AMRA and the adoption of
Sec. 875.15, we have not required certified states and tribes to meet
the criteria in Sec. 884.17 in order to expend AML funds on public
facility projects under SMCRA.
In 2008, we revised our AML regulations to implement the 2006
amendments to SMCRA. At that time, we made editorial changes to Sec.
884.17, such as updating a cross-reference and updating the title. We
made no substantive changes to this section at that time. See 73 FR at
67642. In response to a comment in the 2008 rulemaking, we explained
that we were retaining the provision in order to accommodate unexpended
State and Tribal share moneys distributed to certified states and
tribes prior to the effective date of the 2006 amendments. See 73 FR at
67617. However, we reiterated that this section should ``reflect the
greater discretion that certified States and Indian tribes now have to
use Title IV moneys'' and that ``Sec. 884.17(a) no longer applies to
certified States and Indian tribes using prior balance replacement
funds or certified in lieu funds.'' Id.
Although we did not propose any changes to this section in the most
recent proposed rule, we received one comment requesting that we make
[[Page 6443]]
revisions to the section, if appropriate, to clarify how the section
relates to the flexibility granted to certified states and tribes by
the 2006 amendments to use their Title IV funds. In response to the
comment, we reviewed the history of this provision and verified that no
certified state or tribe has any funds remaining in their Title IV
grants that would be subject to these restrictions. Accordingly, we
have decided to revise Sec. 884.17(a) to remove these outdated
restrictions.
New Sec. 884.17(a) incorporates the language of section 411(f) of
SMCRA, which provides that certified states and tribes may expend AML
moneys on public facility projects if the governor of the state or the
head of the governing body of a tribe ``determines there is a need for
activities or construction of specific public facilities related to the
coal or minerals industry in States impacted by coal or minerals
development and the Secretary concurs.'' 30 U.S.C. 1240a(f). Thus, the
restrictions in previous Sec. 884.17(a)(1) and (3) that required
certified states to complete all coal and noncoal reclamation projects
and use any impact assistance funds available under the MLA or PILTA
before AML funds could be used on specific public facility projects
have been removed. The restriction in previous Sec. 884.17(a)(2) has
been modified to reflect the language of section 411(f) of SMCRA and
incorporated into new Sec. 884.17(a).
This revision is consistent with section 405(l) of SMCRA, which
provides that the limited liability protection of that provision
applies only to ``action taken or omitted in the course of carrying out
a State abandoned mine reclamation plan approved under this section
[section 405].'' The change to this regulation allows certified states
and tribes to revise their reclamation plans to provide for the
construction of public facility projects under those plans in
accordance with the current statutory and regulatory restrictions. Any
public facilities constructed under an approved AML reclamation plan in
accordance with part 875 would be a noncoal reclamation project and
would receive limited liability protection as authorized by section
405(l) of SMCRA and 30 CFR 875.19. Conversely, public facility projects
constructed with AML funds, but which are not undertaken as part of the
approved AML reclamation plan in accordance with part 875, will not
receive limited liability protection.
6. How are we revising Part 885--Grants to Certified States and Indian
Tribes?
As described in the proposed rule and discussed in more detail
below, we are revising this part to grant certified states and tribes
the discretionary authority to use prior balance replacement funds and
certified in lieu funds for noncoal reclamation projects under part
875. To accomplish this goal, we are revising Sec. 885.12 to expand
the list of activities eligible for certified program funding, and we
are revising Sec. 885.16 to ensure that the appropriate project
authorization and environmental reviews are conducted. Finally, we are
revising Sec. 885.20 to ensure that we receive the necessary grant
information and project reporting for all noncoal reclamation projects
conducted under part 875.
What can I use grant funds for? (Sec. 885.12)
As proposed, we are revising Sec. 885.12(b) to clarify that
certified states and tribes may use prior balance replacement funds and
certified in lieu funds for noncoal reclamation projects under section
411 of SMCRA and 30 CFR part 875. We received no comments opposing our
proposed revisions to this section, and we are adopting the revisions
as proposed, along with minor non-substantive organizational changes to
enhance clarity and be consistent with plain language principles.
What responsibilities do I have after OSMRE approves my grant? (Sec.
885.16)
As described in the proposed rule, we are revising Sec. 885.16(e)
to provide that certified states and tribes that use prior balance
replacement funds and certified in lieu funds for noncoal reclamation
projects under part 875 must request and receive a written
authorization from us to proceed before construction may begin on
individual projects. Our authorization to proceed denotes that both the
state or tribe and OSMRE have taken all actions necessary to ensure
compliance with the National Environmental Policy Act of 1969
(NEPA),\29\ and any other applicable laws, clearances, permits, or
requirements.
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\29\ 42 U.S.C. 4321 et seq.
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To receive an authorization to proceed from us, a certified state
or tribe must follow its approved AML reclamation plan and conduct
administrative and site development activities within the procedural
framework provided by 30 CFR part 875 and other applicable regulations.
If we issue an authorization to proceed, the certified state or tribe
will qualify under section 405(l) of SMCRA and 30 CFR 875.19 for
limited liability protection for that project, including the
administrative and programmatic activities directly related to that
project. However, a certified state or Indian tribe may elect to
conduct noncoal reclamation projects outside the parameters of a SMCRA
noncoal AML reclamation program under 30 CFR part 875. Those activities
may include projects at CERCLA or UMTRCA sites as provided by other
laws. If a certified state or tribe conducts noncoal reclamation
projects outside an approved SMCRA AML reclamation plan and part 875,
it need not request an authorization to proceed from us, and it will
not receive limited liability protection for that project.
Certified states and tribes have many years of experience designing
and carrying out noncoal reclamation projects with moneys from the AML
Fund. As with those projects, submissions for noncoal reclamation
projects using prior balance replacement funding and certified in lieu
funding must contain information sufficient to comply with NEPA and AML
grant and administrative requirements. These review elements include,
but are not limited to, information sufficient for the conduct of
assessments under NEPA, the Endangered Species Act, National Historic
Preservation Act, and the Clean Water Act. In addition, we will review
proposals and conduct oversight activities as needed to ensure that our
program requirements related to site eligibility, grants management,
and AML Inventory management are met. Proposals that receive our
approval as noncoal reclamation projects must be implemented consistent
with the scope of work that we approve, and we must review changes in
project scope or activities that would materially alter the
environmental consequences of the reclamation. We received no comments
opposing our proposed revisions to this section and are adopting the
revisions as proposed, with minor editorial revisions for clarity.
What must I report? (Sec. 885.20)
Consistent with the proposed rule, we are revising Sec. 885.20 to
clarify that certified programs using prior balance replacement funds
and certified in lieu funds for noncoal reclamation projects under
section 411 of SMCRA and part 875 of the regulations must update the
AML inventory for each noncoal reclamation project as it is funded. We
received no comments opposing our proposed revisions to this section
and are adopting the revisions as proposed.
[[Page 6444]]
III. Procedural Matters and Required Determinations
A. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order 12866 provides that the Office of Information and
Regulatory Affairs (OIRA) will review all significant rules. OIRA has
determined that this rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
12866 while calling for improvements in the nation's regulatory system
to promote predictability, to reduce uncertainty, and to use the best,
most innovative, and least burdensome tools for achieving regulatory
ends. The executive order directs agencies to consider regulatory
approaches that reduce burdens and maintain flexibility and freedom of
choice for the public where these approaches are relevant, feasible,
and consistent with regulatory objectives. Executive Order 13563
emphasizes further that regulations must be based on the best available
science and that the rulemaking process must allow for public
participation and an open exchange of ideas. We have developed this
rule in a manner consistent with these requirements.
Seven certified states and tribes will be affected by this rule,
which removes a disincentive for certified states and tribes to
undertake noncoal reclamation projects. We estimate that approximately
30 to 60 noncoal reclamation projects will be covered by SMCRA's
limited liability provision each year, although we cannot predict
whether these projects would have been undertaken in the absence of
this rule. This rule does not impose any additional mandatory costs on
certified states and tribes because participation is voluntary.
Reclamation projects improve the quality of the human environment and
eliminate hazardous conditions while improving water quality, air
quality, wildlife habitat, community aesthetics, and the visual
landscape. In the future, other states will be subject to this rule
upon certification.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (RFA).\30\ The revisions
are not expected to have a significant adverse economic impact on the
regulated community, including small entities. This rule will affect
the states of Louisiana, Montana, Texas, and Wyoming and the Crow
Tribe, the Hopi Tribe, and the Navajo Nation.
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\30\ 5 U.S.C. 601 et seq.
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C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under the Small Business Regulatory
Enforcement Fairness Act.\31\ For the reasons previously discussed, the
rule will not--
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\31\ 5 U.S.C. 804(2).
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a. Have an annual effect on the economy of $100 million or more.
b. Cause a major increase in costs or prices for consumers,
individual industries; Federal, state, or local government agencies; or
geographic regions.
c. Have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.-based
enterprises to compete with foreign-based enterprises.
D. Unfunded Mandates
This rule will not impose an unfunded mandate on state, local, or
tribal governments or the private sector of more than $100 million per
year. The rule will not have a significant or unique effect on state,
tribal, or local governments or the private sector. A statement
containing the information required by the Unfunded Mandates Reform Act
\32\ is not required.
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\32\ 2 U.S.C. 1534.
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E. Executive Order 12630--Takings
The rule will not have significant takings implications because it
is not a governmental action capable of interference with
constitutionally protected property rights. A takings implication
assessment is not required.
F. Executive Order 13132--Federalism
This rule will not alter or affect the relationship between states
and the Federal Government. Therefore, the rule will not have
significant Federalism implications. Consequently, there is no need to
prepare a Federalism assessment.
G. Executive Order 12988--Civil Justice Reform
The Office of the Solicitor for the Department of the Interior has
determined that this rule will not unduly burden the judicial system
and that it meets the requirements of sections 3(a) and 3(b)(2) of the
Executive Order.
H. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian tribes
and have determined that the revisions will not have substantial direct
effects on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
We invited tribal representatives to consult with us on our
intention to propose this rule. In response to a request for
consultation, we met with representatives from the Hopi Tribe and
Navajo Nation on July 10, 2012, at Kykotsmovi, Arizona. The Crow Tribe
did not request consultation.
The Hopi Tribe and the Navajo Nation stated that they would like
the rule to allow a tribe with an approved AML reclamation program to
be able to request limited liability protection for some projects but
to decline it for others. Our rule accommodates this approach by
granting certified states and tribes discretionary authority to conduct
noncoal reclamation projects (including construction of certain utility
and public facility projects) pursuant to 30 CFR part 875 under the
aegis of an approved SMCRA noncoal AML reclamation plan and the
applicable regulations whenever the state or tribe wishes to avail
itself of the limited liability protection of section 405(l) of SMCRA
and 30 CFR 875.19.
The tribes also indicated that they would prefer that the limited
liability protections apply to all projects, including public facility
projects, and that OSMRE should be involved in the NEPA process because
OSMRE understands the required NEPA procedures. The final rule
incorporates provisions accommodating these requests.
Similarly, the tribes requested that the limited liability
protection apply to noncoal AML projects, as they were concerned that
they could face liability issues if they chose to remediate sites, such
as abandoned uranium mines. As mentioned above, however, Section 411(d)
of SMCRA, effectively specifies that sites listed for remedial action
under UMTRCA or CERCLA are not eligible for projects under the noncoal
reclamation program operating under part 875. Consequently, under our
rule, certified states and tribes may not receive limited liability
protection for noncoal AML projects at such sites. We emphasize,
however that there is no prohibition against certified states and
tribes using prior balance replacement funds or certified in lieu funds
moneys at UMTRCA and CERCLA sites as long as they do so outside the
scope of a SMCRA noncoal AML reclamation
[[Page 6445]]
program. But, because of the statutory limitation, they cannot receive
limited liability coverage for those projects.
States and tribes should be cognizant that, while the limited
liability provision protects them from costs and damages under Federal
laws, they must still comply with applicable Federal laws. All grant
recipients, including Indian tribes, must provide assurances to OSMRE
that expenditures of AML funding will comply with Federal laws, as well
as state, tribal, and local laws.
The tribes questioned how the rule might affect a tribe's AML
reclamation plan. Certified states and tribes will need to conduct a
detailed review of their existing approved AML reclamation plans to
determine if any changes are necessary as a result of adoption of this
final rule. OSMRE staff will be available to assist in this review.
Because noncoal reclamation was routinely conducted by certified states
and tribes prior to our 2008 Rule, it is possible that some or all of
the approved AML reclamation plans may contain language sufficient to
implement the rule with only minimal changes.
The tribes also voiced concern about the extent of limited
liability protection provided to public facility projects. The limited
liability provision extends protections to public facility projects if
they are conducted under an approved SMCRA noncoal AML reclamation plan
consistent with paragraphs (b) through (g) of section 411 of SMCRA and
30 CFR part 875. The limited liability provision in 30 CFR 875.19
specifies that a state or Indian tribe is not liable under Federal law
for any costs or damages as a result of any action it takes or omits to
take while conducting noncoal reclamation activities under part 875.
The provision does not preclude liability for gross negligence or
intentional misconduct by a state or Indian tribe.
In addition, the tribes commented on the relationship between
SMCRA's limited liability provision and the Department of the
Interior's trust responsibilities. More specifically, the tribes asked
if OSMRE assumes liability whenever it provides funding to a tribe. The
answer to that question is no. OSMRE distributes AML funding to a tribe
not as part of a trust relationship but, instead, as part of a
government-to-government relationship. The limited liability provision
of section 405(l) of SMCRA, in turn, reduces the potential liability of
a state or Indian tribe under Federal law for costs or damages for
actions taken or omitted when carrying out an approved AML reclamation
plan and the applicable regulations. All grant recipients, including
Indian tribes, must provide assurances to OSMRE that expenditures of
AML funding will comply with Federal laws, as well as state, tribal,
and local laws. By providing funding, OSMRE assumes no liability for
actions taken by the tribe or tribal officials. This rule does not
affect or relate to the Department's trust responsibilities.
I. Executive Order 13211--Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not considered a significant energy action under
Executive Order 13211 because it is not classified as a significant
rule under Executive Order 12866 and because the revisions will not
have a significant adverse effect on the supply, distribution, or use
of energy. Therefore, a statement of energy effects is not required.
J. Paperwork Reduction Act
This rule contains no new information collection requirements that
are not already covered by Office of Management and Budget (OMB)
control numbers 1029-0059 (for 30 CFR parts 735, 885 and 886 and grant
forms OSM-47, OSM-49 and OSM-51) and 1029-0087 (for the OSM-76--Problem
Area Description Form). We anticipate that the rule will not result in
an increase in either the number of respondents who prepare grant forms
or the burden per respondent.
K. National Environmental Policy Act
We have determined that the revisions in this rule are
categorically excluded from preparation of an environmental assessment
or environmental impact statement under the National Environmental
Policy Act,\33\ as provided in 43 CFR 46.205(b). The specific
categorical exclusion that applies is the exclusion in 43 CFR
46.210(i). This exclusion includes policies, directives, regulations,
and guidelines that are of an administrative, financial, legal,
technical, or procedural nature. In this case, extension of the limited
liability provision of section 405(l) to noncoal reclamation projects
conducted by certified states is a legal matter. Moreover, this
categorical exclusion also covers policies, directives, regulations,
and guidelines ``whose environmental effects are too broad,
speculative, or conjectural to lend themselves to meaningful analysis
and will later be subject to the NEPA process, either collectively or
case-by-case.'' 43 CFR 46.210(i). In this case, because of the amount
of discretion that certified states and tribes have in expending their
AML funding, it is unclear if or how this limited liability coverage
will affect the number of noncoal reclamation projects performed.
However, as required by this rule at 30 CFR 885.16(e), any noncoal
reclamation project that is eligible for limited liability protection
must undergo specific NEPA review during the grant application process.
Thus, this categorical exclusion applies because, to the extent that
this rule generates any environmental effects, these effects will be
analyzed at a later date when the environmental effects are less
``broad, speculative, or conjectural.'' In addition, none of the
extraordinary circumstances listed in 43 CFR 46.215 applies.
---------------------------------------------------------------------------
\33\ 42 U.S.C. 4332(2)(c).
---------------------------------------------------------------------------
L. Information Quality Act
In developing this rule, we did not conduct or use a study,
experiment, or survey requiring peer review under the Information
Quality Act (Pub. L. 106-554, section 15).
List of Subjects
30 CFR Part 700
Administrative practice and procedure, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 875
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 877
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 879
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
30 CFR Part 884
Grant programs--natural resources, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 885
Abandoned Mine Reclamation Fund, Indian lands, Reclamation fees,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
[[Page 6446]]
Dated: December 3, 2014.
Janice M. Schneider,
Assistant Secretary, Land and Minerals Management.
For the reasons set forth in the preamble, the Department is
amending 30 CFR parts 700, 875, 877, 879, 884, and 885 as set forth
below.
PART 700--GENERAL
0
1. The authority citation for part 700 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Amend Sec. 700.5 by adding a definition for the term ``SMCRA'' in
alphabetical order to read as follows:
Sec. 700.5 Definitions.
* * * * *
SMCRA means the Surface Mining Control and Reclamation Act of 1977,
30 U.S.C. 1201 et seq., as amended.
* * * * *
PART 875--CERTIFICATION AND NONCOAL RECLAMATION
0
3. The authority citation for part 875 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
4. In Sec. 875.11, revise paragraph (b) to read as follows:
Sec. 875.11 Applicability.
* * * * *
(b) If you are a State or Indian tribe that has certified under
section 411(a) of the Act--
(1) You must use State share or Tribal share funds distributed to
you under section 402(g)(1) of the Act before October 1, 2007, in
accordance with this part; and
(2) You may use prior balance replacement funds distributed to you
under section 411(h)(1) of the Act, certified in lieu funds distributed
to you under section 411(h)(2) of the Act, or both, to--
(i) Maintain certification as required by Sec. Sec. 875.13 and
875.14 of this part; or
(ii) Conduct a noncoal reclamation project in accordance with the
requirements of this part.
0
5. In Sec. 875.16, revise paragraph (b) to read as follows:
Sec. 875.16 Exclusion of certain noncoal reclamation sites.
* * * * *
(b) You, the certified State or Indian tribe, may not reclaim sites
and areas designated for remedial action under the Uranium Mill
Tailings Radiation Control Act of 1978 (42 U.S.C. 7901 et seq.) or that
have been listed for remedial action under the Comprehensive
Environmental Response Compensation and Liability Act of 1980 (42
U.S.C. 9601 et seq.) using--
(1) Moneys distributed from the Fund under section 402(g)(1) of the
Act.
(2) Prior balance replacement funds distributed to you under
section 411(h)(1) of the Act where you are conducting reclamation under
the provisions of this part.
(3) Certified in lieu funds distributed to you under section
411(h)(2) of the Act where you are conducting reclamation under the
provisions of this part.
0
6. Revise Sec. 875.17 to read as follows:
Sec. 875.17 Land acquisition authority--noncoal.
The requirements of parts 877 (Rights of Entry) and 879
(Acquisition, Management and Disposition of Lands and Water) of this
chapter apply to a State's or Indian tribe's noncoal reclamation
projects conducted under this part, except that, for purposes of this
section, the term ``noncoal'' replaces all references to ``coal'' in
parts 877 and 879 of this chapter.
0
7. Revise Sec. 875.19 to read as follows:
Sec. 875.19 Limited liability.
No State or Indian tribe conducting noncoal reclamation activities
under the provisions of this part is liable under any provision of
Federal law for any costs or damages as a result of action taken or
omitted in the course of carrying out an approved State or Indian tribe
abandoned mine reclamation plan. This section does not preclude
liability for costs or damages as a result of gross negligence or
intentional misconduct by the State or Indian tribe. For purposes of
the preceding sentence, reckless, willful, or wanton misconduct will
constitute gross negligence or intentional misconduct.
0
8. Revise Sec. 875.20 to read as follows:
Sec. 875.20 Contractor eligibility.
Every successful bidder for any contract by an uncertified State or
Indian tribe under this part, or for any contract by a certified State
or Indian tribe to undertake a noncoal reclamation project under this
part, must be eligible under Sec. Sec. 773.12, 773.13, and 773.14 of
this chapter at the time of contract award to receive a permit or be
provisionally issued a permit to conduct surface coal mining
operations. This section applies only to any contracts by a certified
State or Indian tribe that are for coal reclamation or that are for a
noncoal reclamation project under this part.
PART 877--RIGHTS OF ENTRY
0
9. The authority citation for part 877 is revised to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
10. Revise Sec. 877.1 to read as follows:
Sec. 877.1 Scope.
This part establishes procedures for entry upon lands or property
by OSMRE, States, and Indian tribes for reclamation purposes. For
certified States or Indian tribes conducting noncoal reclamation
projects under the provisions of part 875, the term ``noncoal''
replaces all references to ``coal'' in this part.
PART 879--ACQUISITION, MANAGEMENT, AND DISPOSITION OF LANDS AND
WATERS
0
11. The authority citation for part 879 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
12. Revise Sec. 879.1 to read as follows:
Sec. 879.1 Scope.
This part establishes procedures for acquisition of eligible land
and water resources for emergency abatement activities and reclamation
purposes by you, a State or Indian tribe, with an approved reclamation
program that has not certified completion of coal reclamation or a
certified State or Indian tribe conducting noncoal reclamation
activities under part 875 of this chapter, or by us. It also provides
procedures for the management and disposition of lands acquired by the
State, the Indian tribe, or us. For certified States or Indian tribes
conducting noncoal reclamation projects under the provisions of part
875, the term ``noncoal'' replaces all references to ``coal'' in this
part.
0
13. In Sec. 879.11, revise paragraphs (a) and (b) to read as follows:
Sec. 879.11 Land eligible for acquisition.
(a)(1) We may acquire land adversely affected by past coal mining
practices with moneys from the Fund.
(2) You, an uncertified State or Indian tribe or a certified State
or Indian tribe conducting noncoal reclamation projects under part 875
of this chapter, may acquire land adversely affected by past coal
mining practices with moneys from the Fund or with prior balance
replacement funds and certified in lieu funds provided under Sec. Sec.
872.29 and 872.32 of this chapter, provided that we first approve the
acquisition in writing.
(3) Before acquiring land under paragraph (a)(1) of this section or
approving land acquisition under paragraph (a)(2) of this section, we
must
[[Page 6447]]
make a finding that the land acquisition is necessary for successful
reclamation and that--
(i) The acquired land will serve recreation, historic,
conservation, and reclamation purposes or provide open space benefits
after restoration, reclamation, abatement, control, or prevention of
the adverse effects of past coal mining practices; and
(ii) Permanent facilities will be constructed on the land for the
restoration, reclamation, abatement, control, or prevention of the
adverse effects of past coal mining practices. For the purposes of this
paragraph, ``permanent facility'' means any structure that is built,
installed, or established to serve a particular purpose or any
manipulation or modification of the site that is designed to remain
after the reclamation activity is completed, such as a relocated stream
channel or diversion ditch.
(b) You, an uncertified State or Indian tribe or a certified State
or Indian tribe conducting noncoal reclamation projects under part 875
of this chapter, if approved in advance by us, may acquire coal refuse
disposal sites, including the coal refuse, with moneys from the Fund
and with prior balance replacement funds and certified in lieu funds
provided under Sec. Sec. 872.29 and 872.32 of this chapter. We, OSMRE,
also may use moneys from the Fund to acquire coal refuse disposal
sites, including the coal refuse.
(1) Before the approval of the acquisition, the reclamation program
seeking to acquire the site will make a finding in writing that the
acquisition is necessary for successful reclamation and will serve the
purposes of the reclamation program.
(2) Where an emergency situation exists and a written finding as
set forth in Sec. 877.14 of this chapter has been made, we may acquire
lands where public ownership is necessary and will prevent recurrence
of the adverse effects of past coal mining practices.
* * * * *
0
14. In Sec. 879.15, revise paragraph (h) to read as follows:
Sec. 879.15 Disposition of reclaimed land.
* * * * *
(h) You must return all moneys received from disposal of land under
this part to us. We will handle all moneys received under this
paragraph as unused funds in accordance with Sec. Sec. 885.19 and
886.20 of this chapter.
PART 884--STATE RECLAMATION PLANS
0
15. The authority citation for part 884 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
16. Amend Sec. 884.13 as follows:
0
a. Remove the introductory text;
0
b. Redesignate paragraphs (a) through (f) as paragraphs (a)(1) through
(a)(6), respectively;
0
c. In newly redesignated paragraph (a)(3), redesignate paragraphs (1)
through (7) as paragraphs (a)(3)(i) through (vii), respectively;
0
d. In newly redesignated paragraph (a)(4), redesignate paragraphs (1)
through (4) as paragraphs (a)(4)(i) through (iv), respectively;
0
e. In newly redesignated paragraph (a)(5), redesignate paragraphs (1)
through (3) as paragraphs (a)(5)(i) through (iii), respectively;
0
f. In newly redesignated paragraph (a)(6), redesignate paragraphs (1)
through (3) as paragraphs (a)(6)(i) through (iii), respectively; and
0
g. Add new paragraphs (a) introductory text and (b).
The additions read as follows:
Sec. 884.13 Content of proposed State reclamation plan.
(a) Requirements applicable to all eligible States and Indian
tribes. You must submit the proposed reclamation plan to the Director
in writing. The plan must include the information in paragraphs (a)(1)
through (6) of this section.
* * * * *
(b) Additional requirement applicable to certified States and
Indian tribes. If you are a certified State or Indian tribe, the plan
must include a commitment to address eligible coal problems found or
occurring after certification as required in Sec. Sec. 875.13(a)(3)
and 875.14(b) of this chapter.
0
17. In Sec. 884.17, revise paragraph (a) to read as follows:
Sec. 884.17 Other uses by certified States and Indian tribes.
(a) The reclamation plan for a certified State or Indian tribe may
provide for the construction of specific public facilities related to
the coal or minerals industries in States impacted by coal or minerals
development. This form of assistance is available when the Governor of
the State or the head of a governing body of an Indian tribe determines
there is a need for such activities or construction and the Director
concurs.
* * * * *
PART 885--GRANTS FOR CERTIFIED STATES AND INDIAN TRIBES
0
18. The authority citation for part 879 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
19. In Sec. 885.12, revise paragraph (b) to read as follows:
Sec. 885.12 What can I use grant funds for?
* * * * *
(b)(1) You may use grant funds as established for each type of
funds you receive.
(2) You may use prior balance replacement funds as provided under
Sec. 872.31 of this chapter.
(3) You may use certified in lieu funds as provided under Sec.
872.34 of this chapter.
(4) You may use the following moneys for noncoal reclamation
projects under section 411 of the Act and part 875 of this chapter:
(i) Moneys that may be available to you from the Fund.
(ii) Prior balance replacement funds made available under Sec.
872.31 of this chapter.
(iii) Certified in lieu funds as provided under Sec. 872.34 of
this chapter.
* * * * *
0
20. In Sec. 885.16, revise the section heading and paragraph (e) to
read as follows:
Sec. 885.16 What responsibilities do I have after OSMRE approves my
grant?
* * * * *
(e) If you conduct a coal reclamation project under part 874 of
this chapter or noncoal reclamation project under part 875 of this
chapter, you must not expend any construction funds until you receive a
written authorization from us to proceed on an individual project. Our
authorization to proceed ensures that both you and we have taken all
actions necessary to ensure compliance with the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and any other applicable
laws, clearances, permits, or requirements.
* * * * *
0
21. In Sec. 885.20, revise paragraph (c) to read as follows:
Sec. 885.20 What must I report?
* * * * *
(c) You must use the AML inventory to maintain a current list of
AML problems and to report annual reclamation accomplishments with
grant funds.
(1) If you conduct coal reclamation projects or noncoal reclamation
projects under part 875 of this chapter, you must update the AML
inventory for each reclamation project as you fund it.
(2) You must update the AML inventory for each reclamation project
you complete as you complete it.
(3) We must approve any amendments to the AML inventory after
December 20, 2006. We define amendment as any
[[Page 6448]]
coal problems added to the AML inventory in a new or existing problem
area.
[FR Doc. 2015-02278 Filed 2-4-15; 8:45 am]
BILLING CODE 4310-05-P