[Federal Register Volume 59, Number 227 (Monday, November 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-29243]
[Federal Register: November 28, 1994]
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Part III
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 840 and 842
Surface Coal Mining and Reclamation
Operations; Initial and Permanent
Regulatory Programs; Abandoned Sites;
Final Rule
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 840 and 842
RIN: 1029-AB60
Surface Coal Mining and Reclamation Operations; Initial and
Permanent Programs; Abandoned Sites
AGENCY: Office and Surface Mining Reclamation and Enforcement,
Interior.
ACTION: Final rule.
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SUMMARY: This rule will change the minimum inspection frequency for
surface coal mining and reclamation operation that have been abandoned
without completion of reclamation or abatement of violations. The
change enables regulatory authorities to eliminate ineffective
inspections to redirect resources to minesites where inspection and
enforcement will achieve intended results. Before an abandoned site can
qualify for a change in inspection frequency under this rule, the
regulatory authority must make a written finding that a site is
abandoned and that the change in inspection frequency is appropriate
based on specified environmental and public health and safety criteria.
EFFECTIVE DATE: December 28, 1994.
FOR FURTHER INFORMATION CONTACT: Daniel Stocker, Office of Surface
Mining Reclamation and Enforcement, 1951 Constitution Avenue NW.,
Washington, DC 20240, Telephone: 202-208-2550 (Commercial or FTS).
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Rule and Response to Public Comments
III. Procedural Matters
I. Background
Section 517(c) of the Surface Mining Control and Reclamation Act of
1977 (the Act) states that the regulatory authority shall inspect on an
irregular basis averaging not less than one partial inspection per
month and one complete inspection per quarter each surface coal mining
and reclamation operation covered by a permit. To implement this
requirement, OSM first promulgated rules at 30 CFR 840.11 for State
regulatory authorities and at 30 CFR 842.11 for OSM where it is the
regulatory authority authority in a State. 44 FR 15455 (March 13,
1979). These rules essentially mirrored the inspection frequency
requirements of the Act.
These rules were revised on August 16, 1982 (47 FR 35620). Among
other things, the 1982 rules carved out for inspection frequency
purposes a distinct category of surface coal mining and reclamation
operations where reclamation was in the advanced stages. While
retaining the quarterly requirement for complete inspections, these
rules allowed regulatory authorities to reduce the number of partial
inspections required at these ``inactive'' operations from an average
of one per month to a frequency ``as necessary to ensure effective
enforcement of the regulatory program.'' Since abandoned sites are
incompletely reclaimed surface coal mining and reclamation operations
where the operators will not or cannot return to the minesite to
complete reclamation or correct violations, they remain in an
``active'' status, and, therefore, must continue to be inspected at the
full mandated frequency of twelve times per year.
To address the issue of inspection frequency at abandoned sites,
the rules were again revised in 1988. (53 FR 24872, June 30, 1988).
This time the rules defined an ``abandoned site'' as a distinct
category at surface coal mining and reclamation operations and enabled
regulatory authorities to reduce the inspection frequency at these
sites and to refrain from issuing additional enforcement actions at
abandoned sites under certain conditions. The definition of ``abandoned
site'' specifies that, before a site can be considered abandoned, it
must first meet certain criteria which ensure that the regulatory
authority has taken or is in the process of taking all enforcement
action available to it under the applicable regulatory program to
compel abatement of violations and completion of reclamation. Sites
meeting the definition could then, instead of twelve times per year, be
inspected ``as necessary to monitor for changes of environmental
conditions or operational status at the site.''
The 1988 final rule was subsequently challenged in Federal District
Court. On August 30, 1990, the United States District Court for the
District of Columbia issued an order in the case of National Wildlife
Federation, et al., v. Manuel Lujan, Jr., et al., 31 Env't Rep. Cas.
(BNR) 2034, 2042 (D.D.C. 1990) (NWF v. Lujan). The district court
remanded the rule to the Secretary to be withdrawn or revised on the
basis that the Secretary's arguments supporting the rule were
inconsistent with the inspection frequency requirements of Section
517(c) of the Act. However, the district court conceded that the rule
was practical, that it comported with common sense, and that it is not
wise to spend a lot of time and effort inspecting abandoned sites every
month when nothing changes. To implement the court's order, OSM
suspended those parts of the 1988 rule that related to inspection
frequency at abandoned sites. The definition of ``abandoned site'' at
30 CFR 840.11(g) and 842.11(e) and the provision at 30 CFR 843.22
allowing regulatory authorities to refrain from issuing additional
enforcement actions at abandoned sites were unaffected by the court
order and remain intact today (56 FR 25036, June 3, 1991).
In appealing the district court decision, the Secretary asked the
United States Court of Appeals to vacate the district court's remand in
order to allow him to promulgate a new regulation redefining
``abandoned sites'' to include only those sites where a permit has
expired or been revoked. Under this approach, Section 517(c) of the Act
would not apply to abandoned sites because the inspection frequency
requirements of that section speak only to surface coal mining and
reclamation operations covered by a permit and a permit that is expired
or revoked is no longer considered to be in existence. Without
expressing any view about whether the Secretary's proposed reading of
Section 517(c) of the Act was permissible, the court of appeals pointed
out that the district court remanded the 1988 rule to the Secretary
``to be withdrawn or revised'' and, in light of this statement, the
district court's decision does not stand in the way of the Secretary
proceeding with an alternative rulemaking on the subject of inspection
frequently at abandoned sites. See NWF v. Lujan, Civ. Action Nos.
890136, 88-3345 & 88-2416, U.S. App. Ct. (DC Circ., December 10, 1991)
mem. op. at 10. Accordingly, on December 18, 1992, OSM proposed for
public comment an alternative abandoned sites rule upon which today's
final rule is based (57 FR 60410).
The Secretary is required under section 201(c)(2) of the Act, 30
U.S.C. 1211(c)(2), to publish necessary implementing rules. Since
regular inspections of abandoned sites are a counterproductive use of
limited resources, and since fewer inspections are not likely to result
in increased environmental harm, the rule being promulgated today is
necessary and is consistent with the district court's opinion in NWF v.
Lujan, which struck down the previous 1988 abandoned sites rule.
In promulgating the 1988 rule on abandoned sites, OSM concluded
that repeated inspections of abandoned sites at the frequency required
under the existing rules are ineffective expenditures of resources and
that fewer inspections would not result in increased harm to the
environment or reduce the likelihood of ultimate compliance at
abandoned sites. The time inspectors spend at abandoned sites detracts
from the time they can spend at other active or inactive sites working
with viable operators to abate present violations and prevent future
violations. Thus, reducing the frequency of abandoned sites improves
the overall quality and effectiveness of inspection programs under the
Act.
Enforcement actions issued as a result of inspections at abandoned
sites have proven to be ineffective at compelling abatement of
violations or achieving reclamation. Moreover, inspectors normally have
cited all violations prior to or shortly after a site becomes
abandoned. The persons responsible for abating these violations
typically are financially insolvent or cannot be located. In such
instances, even when diligent efforts are made to enforce the Act, no
one is available to abate violations or to perform or pay for the
needed reclamation. Continuing regular partial and complete inspection
of these sites serves no useful purpose and wastes finite inspection
resources. To illustrate the extent of this waste, OSM has in the past
conducted approximately 2,900 inspections each year on an average of
236 abandoned sites in Tennessee. This effort comprises approximately
32 percent of the inspections in that State; however, few, if any, of
these inspections have resulted in abatement of violations or
completion of reclamation.
OSM experience has shown that environmental conditions at most
abandoned sites do not significantly degrade what has been observed
during prior inspections and that violations of substantive performance
standards do not necessarily deteriorate to imminent danger or harm
situations. While these sites do not comply with the Act, many, due to
their age or because they were partially reclaimed prior to
abandonment, become reasonably well stabilized through natural
settlement and revegetation occurring over time.
While the stated goal of section 517 of the Act is to ``enforce the
requirements of and carry out the purposes of [the] Act,'' inspecting
abandoned sites as frequently as other sites covered by a permit
frustrates rather than furthers this goal. Among the mechanisms
provided by the Act to achieve the stated goals of section 517(c) are
civil penalties under section 518, performance bonds under section 509
and 519, citizen suits under section 520, and enforcement under section
521. Each of these mechanisms has as its underlying premise the
existence of a person against whom an action can be taken, or of a bond
that can provide the funds to abate violations and secure reclamation.
If no such person can be found, or if the regulatory authority is
taking other appropriate legal actions to ensure reclamation or
abatement, and any permit has been revoked and any bond is being
forfeited, issuing multiple violation notices and cessation orders and
assessing uncollectible penalties as a result of the fixed inspection
frequency requirement are not productive tools to enforce the Act. The
waste of resources also extends beyond the inspector level as other
units within the regulatory authority must assess and attempt to
collect civil penalties. Under the foregoing circumstances, inspections
of abandoned sites performed at a minimum frequency less than that for
other sites based on the particular characteristics of the site are a
far more reasonable and realistic alternative. Moreover, the
conservation of resources that will flow from this rule promotes the
principles embodied in OSM's mission and vision statement by creating
fair and more efficient and effective processes for achieving the
objectives of the Act.
II. Discussion of Final Rule and Response to Public Comments
Section 840.10
Section 840.10 is being revised to include an estimate of the
average public reporting burden for the collections of information
under all of Part 840 as such part is revised by this final rule. The
section also lists the addresses for OSM and the Office of Management
and Budget where comments on the information collection requirements
may be sent.
Combined Section-by-Section Analysis
Since the revisions adopted for State regulatory authorities at
840.11 are identical to those adopted at 842.11 where OSM is the
regulatory authority, they will be combined for ease of discussion.
Section 840.11(g)(4)(i)/842.11(e)(i).
These sections are being adopted as proposed. They require that
before a site could meet the definition of ``abandoned site,'' the
permit covering the surface coal mining and reclamation operation must
be either revoked or expired. The existing rules allow a site to be
classified as abandoned on the basis that permit revocation proceedings
have only been initiated and are being pursued diligently.
The final provision will have two effects. First, a person who has
not or will not respond to enforcement action issued by the regulatory
authority and who cannot or will not meet his/her obligations to abate
violations or complete reclamation will not be entitled to resume coal
production under a valid permit. Second, the constraints of section
517(c) of the Act would be lifted for abandoned sites since the fixed
inspection frequency requirements of that section apply only to surface
coal mining and reclamation operations covered by each permit. The
preamble to OSM's final rule at 30 CFR 773.11, Requirements to obtain
permits, articulated and codified the concept that a surface coal
mining permit is required only where surface coal mining operations
defined under section 701(28) of the Act are occurring and that if this
authorization to extract coal expires or is revoked, it amounts to the
absence or the non-existence of the permit that once was in force (i.e.
the minesite is no longer considered to be covered by a permit). Of
course, this does not affect the permittee's legal obligation to
reclaim a site that has been abandoned, since, in accordance with 30
CFR 733.11, that obligation continues until all reclamation is
completed, regardless of whether the authorization to conduct surface
coal mining operations has expired or has been revoked. See 54 FR 13814
(April 5, 1989).
The National Wildlife Federation and the Kentucky Resources
Council, Inc. (hereafter NWF) concurred with this change to the
definition of abandoned site to the extent that the plain language of
the term ``abandoned site'' suggests that there should not be an
existing permit that is renewable or revisable by the operator.
The Joint National Coal Association and American Mining Congress on
Surface Mining Regulations (NCA/AMC), the National Coal Association
(NCA) and the Kentucky Coal Association supported this revision saying
that the proposed rule differs significantly from the abandoned sites
rule remanded in 1990 because the proposed rule defines ``abandoned
sites'' to include only those sites whose permits have either expired
or been revoked. Because the Act's inspection requirements only apply
to operations under permit, they believe that the revised definition
can no longer be considered inconsistent with section 517(c) of the Act
and consequently, the district court's earlier criticism of OSM's
statutory interpretation is no longer valid. They added that neither
the language nor legislative history of the statute indicates any
intent that the regulatory authority continue to expend its resources
to inspect an abandoned site where no activities listed in section
701(28) of the Act are currently conducted and enforcement action has
proven futile in compelling the correction of prior violations.
Finally, they believed that the U.S. Court of Appeals for the District
of Columbia gave tacit approval for OSM's revised reading of the
``covered by each permit'' language of section 517(c) because the court
clearly would have rejected OSM's announced efforts before the court to
undertake a curative rulemaking using this revised reading if it
perceived such a reading as inconsistent with the Act.
OSM agrees with the commenters, except for the proposition that the
U.S. Court of Appeals decision concerning the remanded 1988 abandoned
sites rule amounts to tacit approval of the Secretary's ``covered by
each permit'' reading of Section 517(c). The Secretary requested the
appeals court to vacate the district court's opinion remanding the 1988
abandoned sites rule because he believed that step was necessary before
engaging in a new rulemaking based on the interpretation that abandoned
sites for which the permits have expired or been revoked are not
subject to section 517(c) of the Act. In declining the Secretary's
request to vacate, the appeals court stated ``We express no view about
the validity of the Secretary's proposed reading. The significant point
on this appeal is that the district court's decision does not stand in
the way of the Secretary adopting it in a new rulemaking.'' Whether or
not the revised reading set forth as a basis for this rule would be
sustained by the appeals court will only be known if this rule becomes
ripe for a decision before that judicial body.
A State regulatory authority (SRA) said it would make more sense to
require the permit to be revoked/expired ``or'' actually be forfeited.
This could be accomplished by replacing the word ``and'' by the word
``or'' and deleting the phrase ``has initiated and is diligently
pursuing forfeiture of'' in subparagraph (ii). The commenter explained
that bond forfeiture proceedings may not always be accomplished
concurrently with permit expiration, that if a permit expires there may
not be a reason to immediately forfeit the bond and by requiring both
expiration and forfeiture to occur simultaneously could be a waste of
manpower and funds. This comment is not being adopted. As discussed
above, allowing a reduction from the inspection requirements of section
517(c) of the Act under this rule is based on the premise that
revocation or expiration of a permit is a necessary prerequisite in
order for an abandoned site not to be considered ``covered by a
permit.'' If, as the commenter suggests, bond forfeiture is an
alternative to revocation or expiration, an abandoned site could not
escape the constraints of section 517(c) of the Act since bond
forfeiture does not necessarily require permit revocation. In view of
the often prolonged process of bond forfeiture, this final section of
the rule does not require that bond forfeiture be completed, but rather
that it be initiated and diligently pursued and thus, the rule will
have more immediate applicability.
Section 840.11(g)(4)(ii)/842.11(e)(4)(ii).
To qualify under the definition of ``abandoned site,'' the existing
rules require that the regulatory authority has initiated and is
diligently pursuing forfeiture of, or has forfeited, the performance
bond. These sections are being revised by adding the phrase ``any
available'' before the phrase ``performance bond.'' This change is
minor and is intended to recognize that there is a relatively small
number of sites that are or were permitted, but for which a performance
bond was never required or no longer exists. The absence of a
performance bond has no bearing on whether a site should be classified
as abandoned for inspection purposes.
NWF supported the addition of the phrase ``any available'' agreeing
that the absence of a performance bond has no bearing on whether a site
should be classified and abandoned for inspection purposes. One SRA,
noting the time lag between initiation of bond forfeiture and actual
collection, supported the proposal to allow reduction of inspections
while the regulatory authority is diligently pursuing bond forfeiture.
This commenter believed that inspection resources would be used much
more efficiently by this change. Another SRA commented that this
provision should include those sites where no reclamation bond is
available due to insolvency of surety companies. These sections are
being adopted as proposed. To address the latter SRA's concern, if no
performance bond exists because of the insolvency of a surety company,
then under this rule a performance bond would not be considered
available.
Sections 840.11(h) introductory text/842.11(f) introductory text
These sections as proposed provided that the regulatory authority
shall inspect each abandoned site at a rate of no less than one
complete inspection per calendar year. This minimum inspection
frequency is being retained under this final rule. However, the
language has been revised to provide that the regulatory authority
shall inspect each abandoned site on a set frequency commensurate with
the public health and safety and environmental considerations present
at each specific site, but in no case shall the inspection frequency be
set at less than one complete inspection per calendar year. This
revised language emphasizes the requirement that the regulatory
authority must tailor an appropriate frequency to the site-specific
conditions that exist at each mine. That frequency could vary from one
to twelve or more per calendar year.
Most commenters supported a reduced inspection frequency for
abandoned sites and commended OSM for taking the initiative on this
rulemaking. Eight SRAs voiced strong support for the rule. One SRA
stated that, based on its long history of regulating coal mining
operations, it supported OSM's conclusions that fewer inspections of
certain abandoned sites would not harm the environment; the States'
finite resources could be used more effectively; all significant
violations are cited prior to abandonment; and that abandoned sites
often remain stable over the course of several years. Another SRA
stated that its inspection staff is being required to inspect abandoned
sites regularly under circumstances that serve absolutely no purpose
other than to meet an arbitrary inspection mandate and that eliminating
or curtailing redundant inspections will greatly improve the efficiency
of its inspection staff. A third SRA said that in these days of
increasingly restrictive State and Federal budgets, it is imperative
that our resources are effectively allocated to further the purposes of
the Act and that the time spent inspecting abandoned sites detracts
from the time that can be spent to ensure compliance at non-abandoned
sites. Finally, a fourth SRA maintained that the States continue to be
best suited and capable of deciding the appropriate frequency for
inspection of abandoned sites where all other enforcement measures have
failed to force compliance.
The Interstate Mining Compact Commission (IMCC), which represents
the natural resource interests of its 17 member States, strongly
supported the rule agreeing with OSM's analysis and conclusions in the
preamble to the proposed rule and noting that the States would not
support a situation where environmentally sensitive sites are left
unattended, unabated, or without meaningful followup in the way of
alternative enforcement proceedings such as those required in the
proposed rule.
The NCA and the Kentucky Coal Association fully supported the
proposed rule, characterizing it as a proper exercise of OSM's
discretion to provide regulatory authorities the necessary flexibility
to deploy limited resources in an efficient manner. The NCA/AMC also
supported the rule pointing out that along with the rules practical
benefits, the regulatory history of the Act shows that there is
precedent for the selective inspection of mines that pose no threat to
the environment as exemplified by the 1982 revised Federal rules that
allowed a reduction in the partial inspection frequency for
``inactive'' operations.
The United States Environmental Protection Agency (EPA) stated that
it is not unreasonable for OSM to conduct complete inspections twice a
year at a minimum on sites causing or likely to cause water pollution
or other nonpoint source problems. However, the EPA recommended that
the rule include criteria upon which the frequency of inspections would
be based, including the potential for the site to become further
degraded. As discussed later in this preamble, the final rule will
incorporate criteria, including a criterion similar to that suggested
by EPA, that must be taken into consideration and documented before
regulatory authorities can reduce inspection frequencies at abandoned
sites.
One commenter said that OSM'S statement in the preamble to the
proposed rule that reducing inspections at abandoned sites ``would
allow the regulatory authorities to redirect those inspection resources
to operations where inspection and enforcement would achieve the
intended results'' points to the failure of regulatory authorities to
achieve the intended results in the first place by preventing non-
compliance through inspection and enforcement during the mining and
reclamation phases. The commenter questioned why OSM is not concerning
itself with how to prevent abandonment rather than a way to assist
operators through reduced inspections. The commenter added that since
existing regulations require adequate bond be in place, abandonment
becomes irrelevant if those regulations are properly implemented.
OSM concurs with the commenter's view that not enough has been done
in the past to prevent abandonment and will place greater emphasis on
prevention. Prevention of environmental problems and inadequate
performance bonds often associated with abandoned sites are priorities
to OSM and the agency will work with the States to improve efforts in
these key areas. This rule promotes a policy of prevention because it
frees resources that can focus on existing or potential problems at
high risk sites that would result in long term adverse effects or
reclamation difficulties in the event of abandonment.
The NWF opposed the proposed reduction in the minimum inspection
frequency for abandoned sites because it allegedly fails to provide
adequately for the protection of public health and safety and the
environment from the adverse impacts of improperly conducted coal
mining and operations, and therefore contravenes the underlying purpose
of the Act. They maintained that the dramatic reduction in frequency or
even elimination of inspections altogether at abandoned sites as
proposed would unquestionably heighten the risk that site conditions
may worsen to create an imminent harm and trigger violations of on-or-
off site performance standards in addition to those violations already
cited by a regulatory authority. NWF stated that abandoned sites need
to be monitored to avert deterioration of site conditions into imminent
harms, to ensure no uncited violations exist, to provide early warning
to the public in the event of imminent harm and to determine or
prioritize sites that are eligible for abandoned mine lands funding.
They urged that OSM withdraw this proposal, or at a minimum, that a
more carefully designed, comprehensive clear and precise rule,
explained in greater detail, be substituted.
NWF asserts that the proposed rule is deficient because: (1) It is
excessively permissive in delegating decision making to the regulatory
authority without a meaningful check based on specified criteria or
site characteristics guiding reductions in frequency; (2) there is an
absence of binding criteria for ``tailoring'' inspection schedules for
sites requiring more than the minimum one inspection per year, but less
than currently required 12 per year; and (3) while OSM indicates in the
preamble that regulatory authorities may subsequently readjust a
reduced frequency as new information about the conditions at a site
become available, there are no criteria for what would trigger such a
readjustment.
NWF agrees, however, for some abandoned sites, rigid adherence to
the inspection requirements under Section 517(c) of the Act may be a
poor expenditure of limited inspection resources and to the extent that
the change to the definition of ``abandoned site'' enables regulatory
authorities to make limited reductions in inspection frequencies
without offending the language of Section 517(c), the rule is a
sensible one. However, they state that any change to the definition of
``abandoned site'' in order to allow reductions in inspection
frequencies must be accompanied by a comprehensive regulatory program
such as that they outline below. They assert that failure of OSM to
promulgate abandoned site inspection rules fitting this description
would offend the purpose of the Act as a whole, even where the
``covered by each permit'' definitional change of ``abandoned site''
has rendered Section 517(c) no longer at issue.
NWF asserts that, as part of their suggested program, any attempt
to reduce inspection frequencies must begin by creating a categorical
exclusion for which there can be no reduction from the existing
requirements of 12 inspections per year. This exclusion should at a
minimum include sites with potentially unstable structures, such as
impoundments or hollow or valley fills, and sites with existing on-or-
off site impacts, such as acid mine drainage. Moreover, NWF urged that,
where abandoned sites are not categorically excluded from any reduction
in inspection frequency, they should remain subject to an absolute
minimum frequency of one complete inspection per year and not have
their inspection frequencies eliminated altogether as the rule would
allow.
The comprehensive detailed inspection program suggested by NWF
would also need to include the following: (1) Quantitative inspection
requirements like the existing rule including an absolute minimum (e.g.
one complete inspection per year); (2) a standardized or regionalized
protocol so that criteria are applied consistently across different
inspectors and different regulatory authority jurisdictions or regions;
(3) specific written findings for all relevant on-and-off site
performance standard parameters and public health and safety concerns;
(4) based on quantitative inspection data charted over time, a
published table for which the regulatory authority could proceed to the
appropriate coordinates to determine the appropriate inspection
frequency and trigger any necessary subsequent adjustments; and (5)
traceable written documentation relating to inspection frequencies at
abandoned sites amenable to administrative review.
Finally, NWF's suggested comprehensive program also would include
opportunities for structured public participation in the decision
making process. NWF contends that OSM's regulation should begin with a
rebuttable presumption that inspection frequencies should not be
reduced from currently required levels unless that presumption can be
overcome by an affirmative showing of reasonableness and general public
notice, specific personal notice to identifiable parties that might be
adversely affected by on-or-off site impacts, and public comment
periods for all proposed changes in frequency. Also, if the regulatory
authority demonstrates that a reduced frequency is appropriate, NWF
asserts that there should be a general provision granting reasonable
citizen access, when requested in writing, to inspect any areas of the
site that would otherwise be inaccessible except to the regulatory
authority.
NWF charges that the absence of any discussion of why OSM has not
developed a more comprehensive and structured abandoned sites
inspection program is offensive to established principles of
administrative law. Citing National Wildlife Federation v. Hodel, 839
F.2d 694 (1988), NWF points out that the court condemned precisely the
type of conclusory rulemaking OSM has undertaken with its current
proposal, ``The Secretary * * * if he determines that there is no need
to `flesh out' the statute, must `flesh out' his explanations so that
we can review the rationality of his decision.'' In light of this clear
directive, NWF asserts OSM must at a minimum, repropose this rule and
explain to the public why it is declining to establish a detailed
regulatory program.
OSM set forth an adequate explanation of its rationale underlying
the proposed rule that has been greatly supplemented with the preamble
discussion and response to comments in this final rule. OSM appreciates
NWF's views and has decided to adopt most of the elements of NWF's
program in this final rule. OSM will include in the final rule NWF's
recommendation for an absolute minimum inspection frequency of not less
than one complete inspection per calendar year, criteria for
``tailoring'' inspection schedules for sites requiring more than one
inspection per year, and a requirement for specific and traceable
written findings by the regulatory authority based on relevant
environmental and public health and safety concerns and newspaper
advertisement providing the opportunity for public comment on any
proposed reduction in inspections of abandoned sites. These adopted
provisions are discussed below and under the discussion of final
Secs. 840.11(h)(1)/842.11(f)(1). OSM considered, but is not adopting,
NWF's request for quantitative fixed inspection frequencies in the form
of categorical exclusions, standardized or regionalized protocols,
published ``matrix'' tables, or public access to abandoned sites for
inspection purposes in light of the opportunities already available
under existing regulations.
Under this final rule the responsibility for selection of the
appropriate inspection frequency necessary to comply with this rule
rests with the expertise and judgment of each regulatory authority,
guided by specific written findings required in the final rule. With
site-specific historical knowledge at hand and through their experience
with local conditions and informal consultations with affected
residents, the regulatory authorities are well qualified to identify
sites with the potential for harm and to carefully tailor an
appropriate inspection frequency for individual abandoned sites, each
of which is unique, both in terms of its physical environment and the
problems it presents. This rule will maintain the regulatory
authority's responsibility for administering its regulatory program
consistent with congressional intent to have primary regulatory
authority rest with the States.
OSM is not adopting categorical exclusions or other fixed
inspection frequencies for abandoned sites beyond the minimum one per
year because to do so would merely substitute one inflexible frequency
for another and thus fail to achieve fully the goal of eliminating
counterproductive inspections. An arbitrary fixed inspection frequency
cannot account for the unique physical environment at each abandoned
site nor the variation of problems that each abandoned site may pose. A
fixed predetermined frequency is just as likely to yield too many
inspections, or too few inspections, as it is to yield a suitable
number. Categorical exclusions or inclusions also would almost
certainly result in inappropriate applications of the rule in many
cases. Further, the U.S. Court of Appeals explicitly acknowledged the
legal defensibility of OSM's ``flexible'' implementation of statutes
that allow regulatory authorities to consider the myriad site specific
situations that cannot be fully anticipated in writing a Federal
regulation. NWF v. Hodel, 839 F.2d 694, 745 (D.C. Cir. 1988). However,
nothing in this rule would preclude regulatory authorities from
establishing for administrative convenience categories of sites with
similar characteristics and evaluating and documenting the necessary
inspection frequency for each category as a whole.
As previously discussed, the reason inspections of abandoned sites
at the frequency imposed under section 517(c) of the Act are
counterproductive and a waste of resources is that enforcement actions
at the inspector level are no longer effective. Alternative enforcement
that must be initiated beyond the level of inspectors is generally the
only viable means to compel abatement of violations or completion of
reclamation at abandoned sites, even if conditions deteriorate. Where
the regulatory authority is taking all appropriate enforcement action
available to it as required under the definition of ``abandoned site,''
nothing more can be done through repeated inspections to reclaim a site
or abate violations than is already occurring. Thus, while a fixed
inspection frequency like that for active sites under the existing
rules might cause the regulatory authority to be informed of a problem
at an abandoned site more quickly, it will not provide any new remedy
to compel compliance. Accordingly, OSM believes that the inspection
frequency program under this rule strikes a sound balance between the
fixed inspection frequency required for active and inactive sites and
the need to periodically, but not less than once per year, inspect
abandoned sites to monitor environmental conditions or other changes in
the status of a site and to ensure bond forfeiture reclamation
priorities are adjusted as necessary.
Since OSM is accepting NWF's suggestion to set an absolute minimum
inspection frequency of not less than one complete inspection per year,
Secs. 840.11(h)(1)/842.11(f)(1) will not be adopted as proposed. Those
proposed sections would have enabled the regulatory authority to
further reduce the minimum inspection frequency required under
paragraphs (h) introductory text and (f) introductory text, possibly to
zero, if, based on no less than three consecutive complete annual
inspections conducted during a three-year period before or after the
effective date of this rule, the regulatory authority would have found
in writing that an abandoned site satisfies two criteria. The first
criterion would have been that no conditions or structures existed at
the site that could have created an imminent danger to the health or
safety of the public or an imminent harm to the environment. The second
criterion would have been that the site had become reasonably stable
through natural settlement or revegetation processes.
Eight SRAs, the NCA/AMC, the NCA and the Kentucky Coal Association
supported these proposed provisions without providing substantive
comments. The NWF was strongly opposed. It commented that under this
proposal, inspections at some abandoned sites could be discontinued
altogether even where serious deterioration of conditions occurred
subsequent to the decision to suspend inspections indefinitely. They
said that no State or Federal regulatory authority would have the duty
to revisit the abandoned site and would have every administrative and
budgetary incentive not to.
OSM acknowledges NWF's concern over the potential for
misapplication of these proposed sections. While some abandoned sites
may be so stable and so operationally defunct as to make further
inspections completely unnecessary, OSM believes that deletion of these
provisions will act as a safeguard against premature termination of
inspections at what could be a large number of abandoned sites where
conditions do not justify ending inspections altogether. OSM believes
that monitoring each abandoned site at least once per year to evaluate
the environmental conditions, operational status, and the bond
forfeiture reclamation priority is reasonable public policy that would
not excessively strain the resources of Federal or State regulatory
authorities, especially since many abandoned sites are located near
active and inactive sites requiring frequent inspections. Moreover,
there must be some minimum in place to ensure that each abandoned site
continues to be inspected at a frequency commensurate with public
safety and environmental considerations present at each specific site
as required under the final rule. Also, if there were no minimum
frequency, the regulatory authority might not become aware, other than
from information provided by citizens, that conditions had worsened to
the point that a higher alternative frequency would need to be set in
order for the frequency to be commensurate with the deteriorating
conditions.
Turning to NWF's recommendation that the rule contain enhanced
opportunities for public participation in the abandoned sites
inspection process, OSM is including a public notice provision that
provides the general public with the opportunity to submit written
comments to the regulatory authority when concerns are raised as to a
particular inspection frequency adjustment. This enhancement coupled
with opportunities for private citizen involvement in the inspection
process already provided under other regulations and discussed below
will provide ample public participation in the inspection of abandoned
sites. 30 CFR 842.14 provides that any person who is or may be
adversely affected by a surface coal mining and reclamation operation
may notify the Director in writing of any alleged failure on the part
of OSM to make adequate and complete periodic inspections and the
Director must respond with a determination including any actions to be
taken to remedy any noncompliance. When a person provides OSM with
reason to believe that there exists any violation at an abandoned site,
that person may request a Federal inspection and has the right to
accompany the inspector during the inspection. To the extent a person
is not satisfied with a Federal inspector's decision not to inspect or
enforce, the person is entitled to informal review of that decision by
the Director of OSM, and can subsequently appeal to the Office of
Hearings and Appeals within DOI. Finally, 30 CFR 840.15 provides that
each State program shall provide for public participation in the
enforcement of the State program consistent with the Federal provisions
cited above.
OSM encourages States to work with potentially affected citizens
where a concern arises for a particular minesite. The ability and
willingness of State regulatory authorities to work closely with
citizens is clearly recognized in OSM's mission and vision statement
and is a key part of making the Act work successfully. As part of its
oversight duties, OSM will monitor the willingness of States to be
responsive to the concerns of citizens and to allow them full access to
information needed to evaluate the effect of mining on their health,
safety, general welfare and property.
Final Sections 840.11(h)(1)/842.11(f)(1)
As discussed above, sections 840.11(h)(1)/842.11(f)(1) are not
being adopted as proposed, but instead are being revised. Under the
final rule, before proceeding to reduce the inspection frequency at any
abandoned site as authorized under 840.11(h) introductory text/
842.11(f) introductory text, the regulatory authority must first
conduct a complete inspection of the site. On that basis and on the
basis of comments received during the public notice period required
under this paragraph, the regulatory authority shall prepare and
maintain for public review and Federal oversight purposes a written
finding justifying the alternative inspection frequency selected. The
prerequisite complete inspection is an on-site status review of all
applicable performance standards conducted with an eye towards the long
term effects of reducing the inspection frequency. Regulatory
authorities shall make the written finding immediately available to OSM
and the public in the area of mining in accordance with 30 CFR 840.14,
Availability of records. To assist the public and OSM in reviewing
written findings in a meaningful and expeditious manner, regulatory
authorities are expected under this provision to maintain or be able to
generate within a reasonable time a current compilation or index of all
abandoned sites for which an inspection frequency adjustment has been
made under this rule. Each written finding shall justify a reduced
inspection frequency by affirmatively addressing in detail all of the
following criteria.
(h)(1)(i)/(f)(1)(i)
As a prerequisite to any reduction in inspection frequency, the
regulatory authority must explain how the site meets each of the
criteria under the definition of an abandoned site under 30 CFR
840.11(g)/842.11(e). Meeting these criteria demonstrates that the
regulatory authority has taken, and continues to be in the process of
taking, all available enforcement within its reach under its regulatory
program to secure abatement of violations and completion of reclamation
at an abandoned site.
(h)(1)(ii)/(f)(1)(ii)
The regulatory authority must document whether there exist
impoundments, earthen structures or other conditions such as acid mine
drainage that pose, or reasonably may be expected to progress into,
imminent dangers to the health and safety of the public or significant
environmental harms to land, air, or water resources as defined under
30 CFR 701.5. Depending on the circumstances, this criterion alone may
be sufficient to warrant no reduction in inspection frequency or at
least selection of a frequency in the high range. Even though there may
be no remedy immediately available to abate any such dangers or harms,
frequent monitoring can serve to give advance warning to the public or
appropriate government agencies and serve as a basis to expedite
reclamation or abatement of dangers or harms through the bond
forfeiture process.
(h)(1)(iii)/(f)(1)(iii)
The regulatory authority must document the extent to which existing
impoundments or earthen structures were constructed and certified in
accordance with prudent engineering practices and designs approved in
the permit. This could be beneficial in support of a reduced frequency
since structures such as ponds, head of hollow and valley fills, coal
waste refuse piles, backfills or impoundments pose less risk of failure
when constructed as designed and certified than structures that were
not.
(h)(1)(iv)/(f)(1)(iv)
This criterion addresses the degree to which erosion and sediment
control are present and functioning. Monitoring for damage caused by
off-site sedimentation may need to be more frequent where there are
extensive or critically located areas of loose soils that are not
controlled by any or by non-functioning sediment controls.
(h)(1)(v)(f)(1)(v)
Another factor to be considered by the regulatory authority is the
proximity of the abandoned site to urbanized areas, communities,
occupied dwellings, schools, and other public or commercial buildings
and facilities. This criterion will become either more or less
important depending on the regulatory authority's findings under the
other criteria.
(h)(1)(vi)/(f)(1)(vi)
This criterion concerns the extent of reclamation conducted prior
to abandonment and the degree of stability of unreclaimed areas.
Abandoned sites vary widely in this respect, ranging from no
reclamation at all to various combinations of backfilling, grading,
revegetation, and bond release.
(h)(1)(vii)/(f)(1)(vii)
This last criterion requires the regulatory authority to document
the rate at which adverse environmental or public health and safety
conditions have and can be expected to progressively deteriorate based
on the record of complete and partial inspection reports during the
last two consecutive years of inspections of the site. This snapshot
through time can be useful in predicting whether adverse conditions can
be expected in the future and their rate of acceleration, which may
have an important bearing on justifying any reduction in inspection
frequency.
Final Sections 840.11(h)(2)/842.11(f)(2)
In response to public comment, this section is being added to
require the regulatory authority to advertise each proposed frequency
reduction in the newspaper with the broadest circulation in the
locality of the abandoned site. The public will be provided a 30 day
period in which to submit written comments. Paragraph (h)(2)(ii)/
(f)(2)(ii) specifies the nature of the information that at a minimum
must be contained in the public notice. Nothing in this section
precludes the regulatory authority from consolidating more than one
permit into the same advertisement as long as all the information
required reflects site-specific differences in the permits included. It
is expected that the regulatory authority will give careful
consideration to the comments it receives and work with the public to
arrive at an inspection frequency acceptable to all parties with an
interest.
III. Procedural Matters
Effect in Federal Program States and on Indian Lands
These final rules will apply through cross-referencing in those
States with Federal programs and on Indian lands. The programs with
Federal programs are California, Georgia, Idaho, Massachusetts,
Michigan, North Carolina, Oregon, Rhode Island, South Dakota,
Tennessee, and Washington. The Federal programs for these States appear
at 30 CFR parts 905, 910, 912, 921, 922, 933, 937, 939, 941, 942, and
947 respectively. The Indian lands program appears at 30 CFR part 750.
Executive Order 12778 on Civil Justice Reform
This rule has been reviewed under the applicable standards of
Section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR
55195). In general, the requirements of Section 2(b)(2) of Executive
Order 12778 are covered by the preamble discussion of this rule.
Additional remarks follow concerning individual elements of the
Executive Order:
A. What is the preemptive effect, if any, to be given to the
regulation?
The rule would not preempt State law or regulation. States would
not be required to adopt similar provisions and could continue to
inspect abandoned sites at the current frequency required by existing
regulations if they so choose.
B. What is the effect on existing Federal law or regulation, if
any, including all provisions repealed or modified?
The proposed rule modifies the implementation of the Act as
described herein, and is not intended to modify the implementation of
any other Federal statute. The preceding discussion of this rule
specifies the only Federal regulatory provisions that are affected by
this proposed rule.
C. Does the rule provide a clear and certain legal standard for
affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of the Act.
D. What is the retroactive effect, if any, to be given to the
regulation?
The inspection reduction provisions of this rule may be applied to
any surface coal mining and reclamation operation conducted after the
effective date of the Act.
E. Are administrative proceedings required before parties may file
suite in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings are required before parties may file
suit in court challenging the provisions of this rule under section
526(a) of the Act, 30 U.S.C. 1276(a). Prior to any judicial challenge
to the application of the rule, however, administrative procedures must
be exhausted. In situations involving OSM application of the rule,
applicable administrative procedures may be found at 43 CFR part 4.
Applicable administrative procedures may be found at 43 CFR part 4.
F. Does the rule define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items?
Terms which are important to the understanding of this rule are set
forth in 30 CFR 700.5 and 701.5.
G. Does the rule address other important issues affecting clarity
and general draftsmanship of regulations set forth by the Attorney
General, with the concurrence of the Director of the Office of
Management and Budget, that are determined to be in accordance with the
purposes of the Executive Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
Federal Paperwork Reduction Act
The collections of information contained in this rule have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0051.
Executive Order 12866
This rule has been reviewed under the Executive Order 12866.
Regulatory Flexibility Act
The DOI certifies that this rule will not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. The rule does not
distinguish between small and large entities. This determination is
based on the findings that the regulatory changes contained in this
rule would serve to reduce the costs incurred by OSM and State
regulatory authorities in making routine inspections of abandoned
sites. Therefore, the rule will not add to the cost of operating a mine
under an approved regulatory program.
National Environmental Policy Act
OSM has prepared an environmental assessment (EA) of the rule and
has made a finding that it would not significantly affect the quality
of the human environment under section 102(2)(C) of the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). A
finding of no significant impact (FONSI) has been approved in
accordance with OSM procedures under NEPA. The EA is on file in the OSM
Administrative Record at the address previously specified (see
ADDRESSES).
Author
The author of this rule is Daniel Stocker, Chief, Branch of
Inspection and Enforcement with assistance from Frederick W. Fox. The
author may be reached at the Office of Surface Mining Reclamation and
Enforcement, 1951 Constitution Avenue NW., Washington DC 20240;
Telephone 202-208-2550.
List of Subjects
30 CFR Part 840
Intergovernmental relations, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
30 CFR Part 842
Law enforcement, Surface mining, Underground mining.
Dated: October 14, 1994.
Bob Armstrong,
Assitant Secretary for Land and Minerals Management.
Accordingly, 30 CFR Parts 840 and 842 are amended as set forth
below:
PART 840--STATE REGULATORY AUTHORITY--INSPECTION AND ENFORCEMENT
1. The authority citation for Part 840 continues to read as
follows:
Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L.
100-34, unless otherwise noted.
2. Section 840.10 is revised to read as follows:
Sec. 840.10 Information collection.
(a) The collections of information contained in part 840 have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0051. The information is being
collected by States for use in assessing penalties as evidence in
enforcement cases and as an inspection management record. The
obligation to respond is required to obtain a benefit in accordance
with 30 U.S.C. 1201 et seq.
(b) Public reporting burden for this information is estimated to
average 3.7 hours per response, including the time for the reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed and completing and reviewing the collection
of information. Send comments regarding this burden estimate or any
other aspect of this collection of information, including suggestions
for reducing the burden, to the Information Collection Clearance
Officer, 1951 Constitution Ave, NW, Room 640, NC, Washington DC 20240;
and the Office of Management and Budget, Paperwork Reduction Project
1029-0051, Washington, DC 20503.
3. Section 840.11 is amended by revising paragraphs (g)(4) and (h)
to read as follows:
Sec. 840.11 Inspection by State Regulatory Authority.
* * * * *
(9) * * *
(4) Where the site is, or was, permitted and bonded:
(i) The permit has either expired or been revoked; and
(ii) The regulatory authority has initiated and is diligently
pursuing forfeiture of, or has forfeited, any available performance
bond.
(h) In lieu of the inspection frequency established in paragraphs
(a) and (b) of this section, the regulatory authority shall inspect
each abandoned site on a set frequency commensurate with the public
health and safety and environmental considerations present at each
specific site, but in no case shall the inspection frequency be set at
less than one complete inspection per calendar year.
(1) In selecting an alternate inspection frequency authorized under
the paragraph above, the regulatory authority shall first conduct a
complete inspection of the abandoned site and provide public notice
under paragraph (h)(2) of this section. Following the inspection and
public notice, the regulatory authority shall prepare and maintain for
public review a written finding justifying the alternative inspection
frequency selected. This written finding shall justify the new
inspection frequency by affirmatively addressing in detail all of the
following criteria:
(i) How the site meets each of the criteria under the definition of
an abandoned site under paragraph (g) of this section and thereby
qualifies for a reduction in inspection frequency;
(ii) Whether, and to what extent, there exist on the site
impoundments, earthen structures or other conditions that pose, or may
reasonably be expected to ripen into, imminent dangers to the health or
safety of the public or significant environmental harms to land, air,
or water resources;
(iii) The extent to which existing impoundments or earthen
structures were constructed and certified in accordance with prudent
engineering designs approved in the permit;
(iv) The degree to which erosion and sediment control is present
and functioning;
(v) The extent to which the site is located near or above urbanized
areas, communities, occupied dwellings, schools and other public or
commercial buildings and facilities;
(vi) The extent of reclamation completed prior to abandonment and
the degree of stability of unreclaimed areas, taking into consideration
the physical characteristics of the land mined and the extent of
settlement or revegetation that has occurred naturally with them; and
(vii) Based on a review of the complete and partial inspection
report record for the site during at least the last two consecutive
years, the rate at which adverse environmental or public health and
safety conditions have and can be expected to progressively
deteriorate.
(2) The public notice and opportunity to comment required under
paragraph (h)(1) of this section shall be provided as follows:
(i) The regulatory authority shall place a notice in the newspaper
with the broadest circulation in the locality of the abandoned site
providing the public with a 30-day period in which to submit written
comments.
(ii) The public notice shall contain the permittee's name, the
permit number, the precise location of the land affected, the
inspection frequency proposed, the general reasons for reducing the
inspection frequency, the bond status of the permit, the telephone
number and address of the regulatory authority where written comments
on the reduced inspection frequency may be submitted, and the closing
date of the comment period.
PART 842--FEDERAL INSPECTIONS AND MONITORING
4. The authority citation for part 842 continues to read as
follows:
Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L.
100-34, unless otherwise noted.
5. Section 842.11 is amended by revising paragraphs (e)(4) and (f)
to read as follows:
Sec. 842.11 Federal inspections and monitoring.
* * * * *
(e) * * *
(4) Where the site is, or was, permitted or bonded:
(i) The permit has either expired or been revoked; and
(ii) The Office has initiated and is diligently pursuing forfeiture
of, or has forfeited, any available performance bond.
(f) In lieu of the inspection frequency established in paragraph
(c) of this section, the office shall inspect each abandoned site on a
set frequency commensurate with the public health and safety and
environmental considerations present at each specific site, but in no
case shall the inspection frequency be set at less than one complete
inspection per calendar-year.
(1) In selecting an alternate inspection frequency authorized under
the paragraph above, the office shall first conduct a complete
inspection of the abandoned site and provide public notice under
paragraph (f)(2) of this section. Following the inspection and public
notice, the office shall prepare and maintain for public review a
written finding justifying the alternative inspection frequency
selected. This written finding shall justify the new inspection
frequency by affirmatively addressing in detail all of the following
criteria:
(i) How the site meets each of the criteria under the definition of
an abandoned site under paragraph (e) of this section and thereby
qualifies for a reduction inspection frequency;
(ii) Whether, and to what extent, there exist on the site
impoundments, earthen structures or other conditions that pose, or may
reasonably be expected to ripen into, imminent dangers to the health or
safety of the public or significant environmental harms to land, air or
water resources;
(iii) The extent to which existing impoundments or earthen
structures were constructed and certified in accordance with prudent
engineering designs approved in the permit;
(iv) The degree to which erosion and sediment control is present
and functioning;
(v) The extent to which the site is located near or above urbanized
areas, communities, occupied dwellings, schools and other public or
commercial buildings and facilities;
(vi) The extent of reclamation completed prior to abandonment and
the degree of stability of unreclaimed areas, taking into consideration
the physical characteristics of the land mined and the extent of
settlement or revegetation that has occurred naturally with time; and
(vii) Based on a review of the complete and partial inspection
report record for the site during at least the last two consecutive
years, the rate at which adverse environmental or public health and
safety conditions have and can be expected to progressively
deteriorate.
(2) The public notice and opportunity to comment required under
paragraph (f)(1) of this section shall be provided as follows:
(i) The office shall place a notice in the newspaper with the
broadest circulation in the locality of the abandoned site providing
the public with a 30-day period in which to submit written comments.
(ii) The public notice shall contain the permittee's name, the
permit number, the precise location of the land affected, the
inspection frequency proposed, the general reasons for reducing the
inspection frequency, the bond status of the permit, the telephone
number and address of the office where written comments on the reduced
inspection frequency may be submitted, and the closing date of the
comment period.
[FR Doc. 94-29243 Filed 11-25-94; 8:45 am]
BILLING CODE 4310-05-M