[Federal Register Volume 72, Number 41 (Friday, March 2, 2007)]
[Rules and Regulations]
[Pages 9616-9637]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3649]
[[Page 9615]]
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Part II
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 942
Tennessee Federal Regulatory Program; Final Rule
Federal Register / Vol. 72, No. 41 / Friday, March 2, 2007 / Rules
and Regulations
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 942
RIN 1029-AC50
Tennessee Federal Regulatory Program
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
(OSM), are finalizing changes to the Tennessee Federal regulatory
program regarding performance bonds and revegetation success standards.
These revisions provide a mechanism to use our statutory authority to
accept financial assurances in the form of trust funds and annuities in
Tennessee to fund the treatment of long-term postmining pollutional
discharges from surface coal mining operations and thus satisfy
performance bond obligations for treatment of those discharges. Our
previous regulations also did not facilitate the growth of forests, and
we are taking a number of steps to ensure the reestablishment of high
quality hardwood forests where the postmining land uses are related to
forestry. To minimize competition with woody plants and support
healthier tree growth, we are removing the 80% ground cover
revegetation success standard for mine sites with postmining land uses
of wildlife habitat, undeveloped land, recreation, or forestry;
limiting the herbaceous ground cover success standards to those
necessary to control erosion and support the forestry-related
postmining land use; requiring seed mixes and seeding rates of
herbaceous vegetation for those land uses to be specified in the
permit; and removing the limitations on the amount of bare areas that
can remain after reclamation of mine sites with those land uses.
EFFECTIVE DATE: April 2, 2007.
FOR FURTHER INFORMATION CONTACT: Tim Dieringer, Field Office Director,
U.S. Department of the Interior, Office of Surface Mining Reclamation
and Enforcement, Knoxville Field Office, 710 Locust Street, 2nd Floor,
Knoxville, Tennessee 37902; Telephone: 865-545-4103; E-mail:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Tennessee Federal Program
II. Background on This Rulemaking
III. How and why are we revising the Tennessee Federal program
regulations?
IV. How did we respond to the comments that we received on the
proposed rule?
V. Procedural Determinations
I. Background on the Tennessee Federal Program
Section 503(a) of the Surface Mining Control and Reclamation Act of
1977 (SMCRA or the Act), 30 U.S.C. 1253, permits a State to assume
primacy for the regulation of surface coal mining and reclamation
operations on non-Federal and non-Indian lands within its borders under
certain conditions. The Secretary of the Interior conditionally
approved the Tennessee program on August 10, 1982. However, because of
actions that we took pursuant to 30 CFR Part 733 to correct
shortcomings in the administration and implementation of the approved
Tennessee program on May 16, 1984, the State repealed most of the
Tennessee Coal Surface Mining Law of 1980, Tennessee Code Annotated 59-
8-301-59-8-339, and its implementing regulations, effective October 1,
1984. As a result, on October 1, 1984, we withdrew approval of the
Tennessee permanent regulatory program and promulgated a Federal
program for Tennessee under the authority of section 504(a) of the Act,
30 U.S.C. 1254(a). This program appears in 30 CFR Part 942, where it
replaced the disapproved State program. With the promulgation of a
Federal regulatory program, we became the regulatory authority under
SMCRA in Tennessee. You can find background information on the
Tennessee Federal program, including our findings and the disposition
of comments, in the October 1, 1984, Federal Register. 49 FR 38874.
II. Background on This Rulemaking
We published the proposed rule underlying this final rule on April
6, 2006. 71 FR 17682. On May 3, 2006, we extended the public comment
period until June 30, 2006, and provided notice of a requested public
hearing that was held on June 1, 2006. 71 FR 25992.
III. How and why are we revising the Tennessee Federal program
regulations?
A. Section 942.800: Bond and Insurance Requirements for Surface Coal
Mining and Reclamation Operations
On April 6, 2006, we published proposed revisions to the Tennessee
Federal program that provided a mechanism to use our authority to
implement trust funds and annuities for funding treatment of long-term
postmining pollutional discharges. 71 FR 17682. Those revisions, which
we are adopting in slightly revised form in this final rule, reflect
our efforts to provide a system suitable for the long-term funding of
the treatment of the postmining pollutional discharges that exist in
Tennessee and any unanticipated discharges that may occur in the
future.
We are adopting new Sec. 942.800(c), which we proposed as Sec.
942.800(b)(4), to provide us with a mechanism to use our statutory
authority to accept trust funds and annuities as an alternative system
as provided for in SMCRA at Section 509(c), 30 U.S.C. 1259(c), by which
permittees may satisfy the requirement to provide a performance bond to
cover the treatment of postmining pollutional discharges. Final Sec.
942.800(c) reads as follows:
(c) Special consideration for sites with long-term postmining
pollutional discharges. With the approval of the Office, the
permittee may establish a trust fund, annuity or both to guarantee
treatment of long-term postmining pollutional discharges in lieu of
posting one of the bond forms listed in Sec. 800.12 of this chapter
for that purpose. The trust fund or annuity will be subject to the
following conditions:
(1) The Office will determine the amount of the trust fund or
annuity, which must be adequate to meet all anticipated treatment
needs, including both capital and operational expenses.
(2) The trust fund or annuity must be in a form approved by the
Office and contain all terms and conditions required by the Office.
(3) The trust fund or annuity must provide that the United
States or the State of Tennessee is irrevocably established as the
beneficiary of the trust fund or of the proceeds from the annuity.
(4) The Office will specify the investment objectives of the
trust fund or annuity.
(5) Termination of the trust fund or annuity may occur only as
specified by the Office upon a determination that no further
treatment or other reclamation measures are necessary, that a
replacement bond or another financial instrument has been posted, or
that the administration of the trust fund or annuity in accordance
with its purpose requires termination.
(6) Release of money from the trust fund or annuity may be made
only upon written authorization of the Office or according to a
schedule established in the agreement accompanying the trust fund or
annuity.
(7) A financial institution or company serving as a trustee or
issuing an annuity must be one of the following:
(i) A bank or trust company chartered by the Tennessee
Department of Financial Institutions;
(ii) A national bank chartered by the Office of the Comptroller
of the Currency;
(iii) An operating subsidiary of a national bank chartered by
the Office of the Comptroller of the Currency;
(iv) An insurance company licensed or authorized to do business
in Tennessee by the Tennessee Department of Commerce and Insurance
or designated by the Commissioner of that Department as an eligible
surplus lines insurer; or
[[Page 9617]]
(v) Any other financial institution or company with trust powers
and with offices located in Tennessee, provided that the
institution's or company's activities are examined or regulated by a
State or Federal agency.
(8) Trust funds and annuities, as described in this paragraph,
must be established in a manner that guarantees that sufficient
moneys will be available to pay for treatment of postmining
pollutional discharges (including maintenance, renovation, and
replacement of treatment and support facilities as needed), the
reclamation of the sites upon which treatment facilities are located
and areas used in support of those facilities.
(9) When a trust fund or annuity is in place and fully funded,
the Office may approve release under Sec. 800.40(c)(3) of this
chapter of conventional bonds posted for a permit or permit
increment, provided that, apart from the pollutional discharge and
associated treatment facilities, the area fully meets all applicable
reclamation requirements and the trust fund or annuity is sufficient
for treatment of pollutional discharges and reclamation of all areas
involved in such treatment. The portion of the permit required for
postmining water treatment must remain bonded. However, the trust
fund or annuity may serve as that bond.
SMCRA, its implementing regulations, and our policy require that
the performance bond be sufficient to cover treatment of those
discharges in the event that the permittee fails to do so. Section
509(a) of SMCRA, 30 U.S.C. 1259(a), requires that each permittee post a
performance bond conditioned upon faithful performance of all the
requirements of the Act and the permit. That section of the Act also
specifies that ``[t]he amount of the bond shall be sufficient to assure
the completion of the reclamation plan if the work had to be performed
by the regulatory authority in the event of forfeiture * * *.'' 30
U.S.C. 1259(a). Section 509(e) of the Act provides that ``[t]he amount
of the bond or deposit required and the terms of each acceptance of the
applicant's bond shall be adjusted by the regulatory authority from
time to time as affected land acreages are increased or decreased or
where the cost of future reclamation changes.'' 30 U.S.C. 1259(e). The
statutory requirements for a ``reclamation plan'' include the measures
to be taken to ensure water quality. 30 U.S.C. 1258(a)(13).
Our regulations at 30 CFR Part 800 implement the requirements of
section 509 of the Act, 30 U.S.C. 1259. Those regulations, first
promulgated in 1979, were revised in 1983 in a manner that clearly
implies that performance bonds must be adjusted when unanticipated
events, such as postmining pollutional discharges, increase the cost of
reclamation (in this case, treatment of the discharges).
In our discussion of determining bond amounts in the March 13,
1979, Federal Register (44 FR 15111), we noted:
The Office recognizes that the regulatory authority cannot
reasonably establish the initial bond amount based upon speculative
events such as the need to abate ground water pollution, since the
operation must be designed initially to prevent such consequences in
order to qualify for a permit. However, such unplanned consequences
occasionally occur due to improper mining or reclamation, or because
an important variable was not evaluated properly. When such
consequences are identified prior to the release of all liability
and termination of the permit in accordance with Part 807, the
permittee's legal obligation to abate them necessarily adds to the
cost of reclamation.
Under such circumstances, the regulatory authority would be
authorized to impose additional bond liability under that permit, or
to retain a larger portion of the total liability than otherwise
required in response to an application for release of bond, in order
to ensure adequate funding to complete the abatement work required
(Sections 805.14(a) and 807.12(d)).
According to this 1979 preamble discussion, regulatory authorities
have discretionary authority to increase bonds to reflect the increased
costs of reclamation that result from the occurrence of unanticipated
events such as postmining pollutional discharges. However, in the
preamble to our 1983 revisions to the bonding rules, we indicate that
increases in bond amounts under those circumstances are mandatory, not
discretionary:
If at any time the cost of future reclamation under the bond
changes, the regulatory authority is required to adjust the bond
accordingly (Sec. 800.15(a)). Thus, the amount of the bond for any
increment must at all times be sufficient to assure the completion
of the reclamation plan if the work had to be performed by the
regulatory authority.
48 FR 32937, July 19, 1983.
Under 30 CFR 780.21(h) and 784.14(g), one component of the
reclamation plan is a hydrologic reclamation plan. Among other things,
this plan must include the provision of ``water-treatment facilities
when needed.'' Consequently, the bond must be adequate to cover the
cost of treating long-term pollutional discharges because treatment of
those discharges is part of the reclamation plan.
We further affirmed and clarified our position on financial
guarantees for long-term postmining pollutional discharges in a March
31, 1997, document entitled, ``Policy Goals and Objectives on
Correcting, Preventing and Controlling Acid/Toxic Mine Drainage.''
Objective 2 under the policy goal concerning environmental protection
requires that financial responsibility associated with acid mine
drainage (AMD) be fully addressed. Specifically, the policy includes
the following strategies:
Strategy 2.2--If, subsequent to permit issuance, monitoring
identifies acid- or toxic-forming conditions which were not
anticipated in the mining and operation plan, the regulatory
authority should require the operator to adjust the financial
assurance.
Strategy 2.3--Where inspections conducted in response to bond
release requests identify surface or subsurface water pollution,
bond in an amount adequate to abate the pollution should be held as
long as water treatment is required, unless a financial guarantee or
some other enforceable contract or mechanism to ensure continued
treatment exists.
When responding to commenters on the policy who objected to the
requirement that permittees post financial guarantees for treatment of
pollutional discharges during and after land reclamation (comment
no.16), we stated:
Section 509(a) of the Act requires that each permittee post a
performance bond conditioned upon faithful performance of all the
requirements of the Act and the permit. Paragraph (b) of this
Section of the Act specifies that ``[t]he amount of the bond shall
be sufficient to assure the completion of the reclamation plan if
the work had to be performed by the regulatory authority in the
event of forfeiture.'' The hydrologic reclamation plan is part of
the reclamation plan to which this section refers. Section 519(c) of
SMCRA authorizes release of this bond only when the regulatory
authority is satisfied that the reclamation required by the bond has
been accomplished, and paragraph (c)(3) specifies that ``no bond
shall be fully released until all reclamation requirements of this
Act are fully met.'' Furthermore, section 519(b) of the Act provides
that whenever a bond release is requested, the regulatory authority
must conduct an inspection to evaluate the reclamation work
performed, including ``whether pollution of surface or subsurface
water is occurring, the probability of continuance of future
occurrence of such pollution, and the estimated cost of abating such
pollution.'' Therefore, there is no doubt that, under SMCRA, the
permittee must provide a financial guarantee to cover treatment of
postmining discharges when such discharges develop and require
treatment.
On May 30, 2000, our Knoxville, Tennessee Field Office (KFO) issued
Field Office Policy Memorandum No. 37 entitled ``Policy for Requiring
Bond Adjustments on Permitted Sites Requiring Long-Term Treatment of
Pollutional Discharges.'' This policy described the general procedure
that the KFO would utilize to require adjustments to performance bonds
on sites in Tennessee where unanticipated pollutional discharges are
occurring and
[[Page 9618]]
long-term treatment is required. The policy requires that treatment
costs be estimated based on an assumption that treatment will be needed
for at least 75 years, absent convincing evidence to the contrary.
Between June and September of the year in which the policy was issued,
the KFO ordered some permittees in Tennessee to submit permit revisions
to provide for the installation, operation and maintenance of long-term
treatment systems and to adjust performance bonds accordingly.
Those permittees then sought administrative review of the KFO's
orders. However, on October 2, 2000, the National Mining Association
(NMA) filed suit in the United States District Court for the Northern
Division of the Eastern District of Tennessee seeking to overturn the
policy. NMA v. Babbitt, No. 3:00-CV-549 (E.D. Tenn. filed Oct 2, 2000).
The plaintiffs alleged that the KFO's Policy Memorandum No. 37 was
unlawfully adopted in violation of the rulemaking requirements of the
Administrative Procedure Act, is inconsistent with the permitting and
bonding provisions of SMCRA by requiring retroactive revision of
permits that have already expired and the posting of performance bond
for expired permits, and violates the Due Process Clause of the U.S.
Constitution.
The Department of the Interior's Office of Hearings and Appeals
then placed the administrative appeals of the KFO's orders to
individual permittees in abeyance pending resolution of the Federal
district court case. On July 24, 2001, the Federal district court
litigation also was placed in abeyance in response to NMA's request
that the parties pursue settlement of the case. Settlement negotiations
are ongoing.
The Tennessee Federal program regulations at 30 CFR 942.800
incorporate the Federal bonding regulations in 30 CFR Part 800 by
reference. In addition, that section of the Tennessee Federal program
contains a few Tennessee-specific bonding provisions. As adopted on
October 1, 1984, the Tennessee Federal program relies upon a
conventional bonding system in which site-specific performance bonds
must be filed with the KFO. The KFO determines the amount of the
performance bond based upon the approved reclamation plan and adjusts
that amount periodically when the cost of future reclamation changes.
The bond amount must be sufficient to assure completion of the
reclamation plan if we have to perform the work in the event of bond
forfeiture.
A system that provides an income stream may be better suited to
ensuring the treatment of long-term pollutional discharges, such as
AMD, than conventional bonds. Surety bonds, the most common form of
conventional bond, are especially ill-suited for this purpose because
surety companies normally do not underwrite a bond when there is no
expectation of release of liability. Further, a mandate that would
require the permittee to immediately post other forms of conventional
bonds, such as cash or negotiable bonds, may force insolvency on a
permittee that is currently treating pollutional discharges but is
unable to provide the large sums required to guarantee treatment
through conventional bonding instruments. Insolvency will most likely
lead to forfeiture of existing bonds and the proceeds of that
forfeiture may not be sufficient to ensure long-term treatment of
discharges.
On May 17, 2002, we published an advance notice of proposed
rulemaking (ANPR) entitled ``Bonding and Other Financial Assurance
Mechanisms for Treatment of Long-Term Pollutional Discharges and Acid/
Toxic Mine Drainage (AMD) Related Issues.'' 67 FR 35070. In that ANPR,
we sought comments on, among other things, the form and amount of
financial assurance that should be required to guarantee treatment of
postmining pollutional discharges. Commenters on the ANPR disagreed as
to whether financial assurance should be required, but they largely
agreed that, if it was, surety bonds are not the best means--or even an
appropriate means--of accomplishing that purpose. For instance, the
Surety Association of America stated that surface coal mining
operations ``would not be prudently bondable if the scope of the
obligation included perpetual treatment of discharge[s].'' According to
the Association, ``the problem of acid mine drainage requires a funding
vehicle, and a surety bond is not a funding vehicle.''
Through responses to the ANPR and the experience of Pennsylvania
(discussed below), we have determined that the best approach to provide
an alternative for financial assurances for long-term treatment of
pollutional discharges is to allow the permittee to establish a
dedicated income-producing account, such as a trust fund or annuity or
both, that is held by a third party as trustee for the regulatory
authority. The income stream from a fully funded trust fund or annuity
will be used to fund treatment of postmining pollutional discharges
(including maintenance, renovation, and replacement of treatment and
support facilities as needed), the reclamation of the sites upon which
treatment facilities are located and areas used in support of those
facilities. However, until this rulemaking, our regulations did not
provide for a mechanism to accept such accounts in satisfaction of the
Tennessee Federal program's bonding requirements. The addition of
paragraph (c) to 30 CFR 942.800 now implements our statutory authority
and establishes the parameters under which trust funds and annuities
must operate.
By adding paragraph (c), we are building on the experience of
Pennsylvania, which has successfully implemented similar provisions.
Pennsylvania amended its Surface Mining Conservation and Reclamation
Act to include the authority to accept trust funds and annuities to
fund treatment of postmining discharges. Pennsylvania's statutes allow
the complete release of any conventional bonds remaining after land
reclamation has been fully completed and the revegetation
responsibility period has expired for a site with a pollutional
discharge if provisions have been made for sound future treatment of
that discharge. 52 Pa. Cons. Stat. Ann. 1396.4(g)(3). Pennsylvania's
provisions state that sound future treatment must consist of another
approved financial instrument, such as a trust fund, that will fully
secure the long-term treatment obligation and is applicable to the area
associated with that treatment. 52 Pa. Cons. Stat. Ann. 1396.4(d.2).
This rule is not intended to mirror the provisions of the Pennsylvania
program, but rather to adapt the concepts behind Pennsylvania's program
for use in the Tennessee Federal program.
When Pennsylvania submitted the amendment to its program
authorizing the use of trust funds and annuities, it characterized
those financial instruments as collateral bonds, and we approved them
as such. 70 FR 25472, amended at 70 FR 52916. However, the Federal
regulations at 30 CFR 800.11(e) provide another option for approving
trust funds and annuities. Those regulations implement the provision in
section 509(c) of SMCRA, 30 U.S.C. 1259(c), authorizing OSM and the
States to establish an ``alternative system that will achieve the
objectives and purposes of the bonding program pursuant to this
section.'' The regulations at 30 CFR 800.11(e) require that those
alternative systems (1) ``assure that the regulatory authority will
have available sufficient money to complete the reclamation plan for
any areas which may be in default at any time;'' and (2) ``provide a
substantial economic incentive for the permittee to comply with all
reclamation provisions.'' As we noted in the proposed rule,
establishment of a
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trust fund or annuity would satisfy the first criterion, while the
permittee's provision of the moneys needed to establish a trust fund or
annuity and the express terms of the trust would satisfy the second
criterion. 71 FR 17684.
In this rulemaking, we are providing for the use of trust funds and
annuities in Tennessee as an alternative bonding system (ABS), as
provided for in section 509(c) of the Act. As an ABS, trust funds and
annuities are not subject to the provisions of 30 CFR 800.12, 800.20,
800.21, and 800.23 because those provisions pertain only to various
types of conventional bonds. Except as otherwise provided in this rule,
trust funds and annuities will generally be subject to the other
provisions of 30 CFR Part 800. Specific information on the portions of
30 CFR Part 800 that apply to individual trust funds and annuities will
be set forth in a formal written trust fund or annuity agreement made
between the KFO and the permittee responsible for treating the
discharge.
We will allow permittees a reasonable time to fully fund trust
funds and annuities rather than requiring a lump-sum deposit as would
be required for collateral bonds. We will use the provisions of 30 CFR
800.15(a) on a site-specific basis to establish a schedule for periodic
review to ensure that trusts and annuities contain sufficient funds for
treatment of the discharge, and maintenance and reclamation of
associated facilities.
A permittee with postmining pollutional discharges that establishes
a trust fund or annuity to guarantee funding for treatment will be able
to secure release of conventional bonds on the portion of their permit
that does not support the treatment of the discharge. However, the
trust fund or annuity must be fully funded before the permittee
qualifies for release of the conventional bond. A fully funded trust
fund or annuity would be available to fund treatment and reclamation
activities in the event of a permittee's bankruptcy or dissolution.
In implementing this rule, we will first determine whether a
postmining pollutional discharge requiring long-term treatment exists.
If so, and if the permittee elects to use a trust fund or annuity to
satisfy the financial assurance (performance bond) obligation for
discharge treatment, we, in consultation with the permittee, will
develop a formal written agreement that sets forth the details of the
trust fund or annuity. While we will consult in good faith with the
permittee on the terms of the trust fund or annuity, including the
selection of the trustee, the investment mix making up the trust fund
or annuity, and the amount and duration of the trust agreement or
annuity, we retain the final authority and responsibility to establish
bond amounts, terms, and conditions, as provided by 30 CFR 800.16 and
this rule. In determining the amount needed to fully fund the trust
fund or annuity, we will consider the quality and quantity of the
discharge, anticipated future changes in discharge quantity and
quality, treatment options, support facilities needed, treatment
facility maintenance, renovation, and replacement intervals, current
and projected investment performance, and any other factors necessary
to ensure ongoing treatment and reclamation of the discharge. We will
use this rule, existing OSM policies, and computer software designed to
estimate treatment and associated costs to calculate the amount of
funding required to fulfill treatment obligations.
We anticipate that a fully funded trust or annuity may include
provisions for payments to the permittee as a mechanism to cover the
cost of water treatment, especially for those permittees no longer
generating income from the mining of coal. Payments from the income
stream of a fully funded trust fund or annuity will not be considered a
bond release or a bond forfeiture. This rule establishes an ABS
authorizing the establishment of a trust or annuity that produces an
income stream that can be transferred to a permittee or other entity to
pay for the treatment costs provided for in Sec. 942.800(c)(8). The
trust fund or annuity will also include other provisions that provide
for the continuation of treatment in the event that the permittee fails
to meet its treatment obligations.
This rule does not alter our existing responsibilities or those of
permittees or any other Federal or State agency relating to postmining
pollutional discharges. Existing treatment requirements and
obligations, as well as permitting and enforcement responsibilities,
are not affected by this rule.
Because of the adoption of this rule, we will not be pursuing a
national rulemaking regarding the use of trust funds and annuities in
response to the ANPR that we published in 2002. The successful
implementation of trusts and annuities in the Pennsylvania program and
our explicit addition of trust funds and annuities as an ABS in
Tennessee with this rulemaking demonstrate that adequate authority for
the use of trust funds and annuities is already available under SMCRA
and its implementing regulations. Therefore, a national rule is not
needed.
B. Sections 942.816(f)(3) and (4) and 942.817(e)(3) and (4):
Revegetation Success Requirements for Forestry-Related Postmining Land
Uses
On April 6, 2006, we proposed revisions to the Tennessee Federal
program regulations regarding ground-cover revegetation success
standards for reclaimed lands with postmining land uses of wildlife
habitat, undeveloped land, recreation, or forestry. In this final rule,
we are adopting the revisions as proposed, with one technical
correction and minor editorial modifications to reflect plain language
principles. The technical correction replaces the term ``mining and
reclamation plan'' in the proposed rule with ``reclamation plan'' to be
consistent with terminology used elsewhere throughout the Federal
regulations.
The revisions modify 30 CFR 942.816(f)(3) and 942.817(e)(3) by
eliminating the 80% vegetative ground cover revegetation success
standard for reclaimed lands with postmining land uses of wildlife
habitat, undeveloped land, recreation, or forestry. The regulations
will be changed to state that herbaceous ground cover should be limited
to that necessary to control erosion and support the postmining land
use and that the permit will specify the ground cover seed mixes and
seeding rates to be used. Final Sec. Sec. 942.816(f)(3) and
942.817(e)(3) read as follows:
(3) For areas developed for wildlife habitat, undeveloped land,
recreation, or forestry, the stocking of woody plants must be at
least equal to the rates specified in the approved reclamation plan.
To minimize competition with woody plants, herbaceous ground cover
should be limited to that necessary to control erosion and support
the postmining land use. Seed mixes and seeding rates will be
specified in the permit.
Section 515(b)(19) of SMCRA, 30 U.S.C. 1265(b)(19), requires
establishment of a diverse, effective, and permanent vegetative cover,
at least equal to the premining cover, that is capable of self-
regeneration and plant succession. The Federal regulations at 30 CFR
816.116 (for surface mining activities) and 817.117 (for underground
mining activities) provide national requirements and parameters for
revegetation success standards. Sections 816.116(b)(3) and
817.116(b)(3) establish requirements pertinent to revegetation success
standards for areas to be developed for postmining land uses of fish
and wildlife habitat, recreation, undeveloped land, or forest products.
Those regulations provide that
[[Page 9620]]
``success of vegetation shall be determined on the basis of tree and
shrub stocking and vegetative ground cover.''
At the time that we promulgated the Federal program for Tennessee,
the national rules at Sec. Sec. 816.116(a)(1) and 817.116(a)(1)
required the regulatory authority to select the standards for
revegetation success and include them in the regulatory program. 49 FR
38874. Therefore, we included specific standards in the Tennessee
Federal program at Sec. Sec. 942.816(f)(3) and 942.817(e)(3) for areas
with postmining land uses of wildlife habitat, recreation, or forest
products. Those regulations required a minimum 80% ground cover on
mined lands reclaimed for those postmining land uses. In the preamble
discussion of those rules, we noted that a minimum level of 80%
vegetative coverage was necessary to control erosion on the steep
terrain that is common to eastern Tennessee. 49 FR 38888.
In addition, we adopted Sec. Sec. 942.816(f)(4) and 942.817(e)(4)
which prohibit bare areas larger than one-sixteenth of an acre in size
and that total more than 10% of the area seeded. We adopted these
provisions because we believed that they were necessary to prevent the
release of bonds on lands that meet the overall requirements of 80% or
90% ground cover, but still have localized areas that are not yet
stabilized with respect to soil erosion. 49 FR 38888.
We have learned much more about reestablishing vegetation,
particularly trees, on mined land in the years since we adopted those
standards. Permittees generally prefer pasture or grazing land as
postmining land uses because they do not require the extra work and
expense of planting trees and ensuring successful tree establishment.
Thus, the reclamation of mine sites has typically resulted in dense
grasslands with few trees. Many trees that were planted had low
survival rates and required replanting, while those that survived often
did not reach their optimal growth potential, which further discouraged
operators from considering a land use that required planting trees.
We recognize the importance and benefits of promoting the
reestablishment of forests, especially native hardwood forests, on
mined land. Consequently, we have determined that changes to our
regulations are necessary to promote and enable the establishment of
diverse, vigorous forests on reclaimed mine sites. The conventional
method of mine reclamation typically includes using bulldozers to grade
and track-in spoil, creating smooth slopes. This method results in a
compacted soil surface that not only inhibits root growth of seedlings
and planted stock, but also restricts infiltration of precipitation and
increases runoff. To prevent erosion from runoff, operators seed the
regraded areas with aggressive, quick-growing herbaceous ground covers.
This method of reclamation is very effective in producing dense hayland
and pastureland. However, it is very detrimental to establishing
forested land on mine sites for three reasons. First, the dense
herbaceous ground covers used to control erosion compete with newly
planted trees and tree seedlings for soil nutrients, water, and
sunlight. Second, soil compaction inhibits root growth as well as water
infiltration. Third, the dense ground cover provides habitat for
rodents and other animals that damage tree seedlings and young trees.
In summarizing research into ground cover and its effects on
establishment of trees on mined lands, Jim King and Jeff Skousen of
West Virginia University noted in 2003:
The negative effects of overly abundant and aggressive ground
cover on the survival and growth of trees planted on reclaimed mine
lands has long been known. Trees planted into introduced, aggressive
forages [especially tall fescue and sericea lespedeza] often are
overtopped by the grass or legume and are unable to break free
(Burger and Torbert, 1992; Torbert et al., 1995). The seedlings are
pinned to the ground and have little chance for survival. If it is
known that trees are to be planted, a tree-compatible ground cover
should be seeded that will be less competitive with trees. Tree-
compatible ground cover should be slow growing, sprawling or low
growing, not allopathic, and non-competitive with trees (Burger and
Torbert, 1992). Plass (1968) reported that after four growing
seasons the height growth of sweetgum and sycamore planted into an
established stand of tall fescue on spoil banks was significantly
retarded. Andersen et al. (1989) found that survival and height
growth for red oak and black walnut was significantly greater on
sites where ground cover was chemically controlled.\1\
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\1\ Tree Survival on a Mountaintop Surface Mine in West Virginia
King, J., J. Skousen, West Virginia University Morgantown, American
Society of Mining and Reclamation, 2003.
Researchers affiliated with the Virginia Polytechnic Institute and
---------------------------------------------------------------------------
State University also found that:
The use of tree-compatible ground covers during reclamation can
allow seedlings to survive at rates exceeding the 70% that is
necessary to achieve regulatory compliance without the expense of
follow-up herbicide treatment. Furthermore, our experience indicates
that sowing tree-compatible ground covers at reduced rates often
allows invasion by woody vegetation from adjacent forests. The
results of this study suggest that sowing ground cover at reduced
rates achieving 50 to 70% cover, instead of 90% currently required
by Virginia's regulations, would also greatly improve the likelihood
of hardwood reforestation success.\2\
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\2\ Herbaceous Ground Cover Effects on Native Hardwoods Planted
on Mined Land Burger, J.A., D.O. Mitchem, C.E. Zipper, R. Williams,
Virginia Polytechnic Institute and State University, American
Society of Mining and Reclamation, 2005.
Researchers from the University of Maine determined that even a
---------------------------------------------------------------------------
small amount of herbaceous ground cover can inhibit tree growth:
Additional research has found that herbaceous vegetation
(grasses and broadleaves) in small amounts (<20% cover) around
seedlings immediately after planting will substantially reduce early
stand growth.\3\
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\3\ Top 10 Principles for Managing Competing Vegetation to
Maximize Regeneration Success and Long-Term Yields R.G. Wagner,
University of Maine.
These researchers are united in their findings that even ground
cover significantly less than the 80% ground cover standard in
Tennessee's rules would still be detrimental to tree survival and
growth.
We have also determined that dense herbaceous ground cover impedes
the natural succession of native forest plants, thereby frustrating
attainment of the requirement in section 515(b)(19) of SMCRA, 30 U.S.C.
1265(b)(19), for establishment of a diverse, effective, permanent
vegetative cover of the same seasonal variety native to the area and
capable of self-regeneration and plant succession. As Burger and Zipper
noted:
Another purpose of low ground cover seeding rates is to allow
the invasion of native plant species such as yellow poplar, red
maple, birches and other light-seeded trees. Dense ground covers
prevent the natural seeding-in of native plants.\4\
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\4\ How to Restore Forests on Surface-Mined Land Burger, J.A.,
C.E. Zipper, Virginia Polytechnic Institute and State University,
Powell River Project, Virginia Cooperative Extension Publication
460-123, Revised 2002.
While excessive herbaceous ground cover is detrimental to tree
growth and survival and natural succession, we are cognizant that some
vegetative cover is often needed to meet the cover requirements of 30
CFR 816.111(a)(3) and (4) and 817.111(a)(3) and (4). Additional cover
may be needed to control erosion on newly reclaimed mine sites, as
required by 30 CFR 816.95(a) and 817.95(a), and to prevent the
contribution of additional suspended solids to streamflow outside the
permit area, as required by 30 CFR 816.45(a) and 817.45(a) and section
515(b)(10)(B)(i) of SMCRA, 30 U.S.C. 1265(b)(10)(B)(i). However, the
amount of vegetative ground cover necessary to control erosion on any
particular site is
[[Page 9621]]
a function of the site topography, composition of the surface material,
precipitation amounts, and the degree of soil compaction. Loosely
graded or uncompacted material, particularly if placed on a relatively
gentle slope, may have virtually no runoff or erosion and would require
little or no herbaceous vegetative ground cover to control erosion.
Conversely, highly compacted material placed on a steep slope severely
limits infiltration and increases runoff so that a dense vegetative
cover may be needed to control erosion.
Researchers have stated:
Non-compacted mine soils have higher infiltration rates and
erode less than graded soils. When using the Forestland Reclamation
Approach, less ground cover is needed to prevent erosion and protect
water quality, and in the process, diverse mixes of trees are able
to survive and grow at rates that will create an economically viable
forest.\5\
---------------------------------------------------------------------------
\5\ Herbaceous Ground Cover Effects on Native Hardwoods Planted
on Mined Land Burger, J.A., D.O. Mitchem, C.E. Zipper, R. Williams,
Virginia Polytechnic Institute and State University, American
Society of Mining and Reclamation, 2005.
---------------------------------------------------------------------------
Third-year results show that intensive grading did not result in
better ground cover establishment or erosion control. In fact,
erosion was highest on the intensively graded plots.\6\
---------------------------------------------------------------------------
\6\ Influence of Grading Intensity on Ground Cover
Establishment, Erosion, and Tree Establishment on Steep Slopes
Torbert, J.L., Burger, J.A., Virginia Polytechnic Institute and
State University, International Land Reclamation and Mine Drainage
Conference and the Third International Conference on the Abatement
of Acidic Drainage, 1994.
Loosely grading the topsoil or topsoil substitutes on reclaimed
mine sites will result in less compacted growing media, which will
increase water infiltration and limit the amount of runoff. This in
turn will limit erosion and sedimentation as well as make more water
available for tree growth. Limited compaction is also more favorable to
tree root growth, which will increase survival and growth rates.
Forestry researchers agree that productive forest land can best be
created on reclaimed mine land by using techniques that we will refer
to as the Forestry Reclamation Approach (FRA). The FRA is a series of
five techniques designed to reestablish healthy productive forests on
reclaimed mine lands. These techniques include (1) Creating a suitable
rooting medium for tree growth that is no less than four feet deep and
that is comprised of topsoil, weathered sandstone and/or the best
available material; (2) loosely grading the topsoil or topsoil
substitute to create a non compacted growth medium; (3) using
herbaceous ground covers that are compatible with growing trees; (4)
planting two types of trees--early succession species (for wildlife and
soil stability) and commercially valuable crop trees; and (5) using
proper tree-planting techniques.
We examined the factors in Federal and State regulations that may
act as impediments to implementing the FRA. We determined that there
were no regulations regarding backfilling and grading that would act as
impediments to implementation of the provisions of the FRA that require
a minimum of four feet of topsoil or topsoil substitutes to be loosely
graded. Thus, we did not propose any changes in our backfilling and
grading regulations as part of this rulemaking.
However, we did identify the ground cover standards and bare area
restrictions adopted as part of the Tennessee Federal program on
October 1, 1984, as impediments to the FRA and disincentives to forest
restoration. Elimination of the 80% vegetative ground cover standard
and bare area restrictions will provide us with the flexibility to
adjust the amount of vegetative ground cover required on mine sites
with postmining land uses related to forestry to levels that are
sufficient to control erosion without impairing tree growth and
survival. To minimize competition with woody plants while meeting other
regulatory requirements, we are revising our rules to specify that
herbaceous ground cover should be limited to that amount necessary to
control erosion and support the approved postmining land use. We will
take into account all site characteristics when determining the level
of vegetative ground cover suitable for a mine site and require
permittees to specify the ground cover seeding mixes and seeding rates
in the permit.
As proposed, we are also expanding the postmining land uses to
which the regulations at Sec. Sec. 942.816(f)(3) and 942.817(e)(3)
apply by including undeveloped land and by modifying the postmining
land use of forest products to forestry. We made these changes to
accurately reflect the postmining land uses that require the
establishment of trees and shrubs. The revised version of the national
regulations at Sec. Sec. 816.116(b)(3) and 817.116(b)(3) that we
adopted in a separate rulemaking on August 30, 2006, likewise includes
undeveloped land as a postmining land use to which its requirements
apply. See 71 FR 51695-51697.
SMCRA and its implementing regulations clearly require control of
erosion and prevention of additional sedimentation. They also require
establishment of a vegetative cover that is capable of stabilizing the
soil surface from erosion. See 30 CFR 816.111(a)(4) and 817.111(a)(4).
At the same time, research has demonstrated that many types of
herbaceous ground cover are detrimental to tree growth and natural
succession and thus would impede attainment of the postmining land uses
of wildlife habitat, recreation, or forestry. The regulatory
modifications that we are adopting in this rule will ensure that the
FRA can be effectively implemented in Tennessee.
C. Removal of Restrictions on the Amount of Bare Areas for Postmining
Land Uses of Wildlife Habitat, Undeveloped Land, Recreation, or
Forestry
As proposed, we are revising the Tennessee Federal program
regulations to exempt sites with postmining land uses of wildlife
habitat, undeveloped land, recreation, or forestry from the
restrictions of Sec. Sec. 942.816(f)(4) and 942.817(e)(4) concerning
bare areas. This change facilitates implementation of the FRA, which
requires the use of less competitive herbaceous vegetative ground
covers at lower seeding rates, or in some cases no herbaceous ground
cover at all. Consequently, some areas may be essentially bare except
for tree seedlings and volunteer herbaceous vegetation. As we noted
earlier, reduced levels of herbaceous vegetative ground cover are
necessary for natural succession of native forest plants and to reduce
competition between grasses and legumes and planted tree seedlings for
water, nutrients and sunlight. To achieve this goal, some areas must be
devoid of herbaceous ground cover because many native woody plants and
forbs require bare soil conditions for seed germination. In addition,
most traditionally planted herbaceous ground cover species are not
expected to be part of the mature forest plant community.
Final Sec. Sec. 942.816(f)(4) and 942.817(e)(4) reads as follows:
(4) Bare areas shall not exceed one-sixteenth (\1/16\) acre in
size and total not more than ten percent (10%) of the area seeded,
except for areas developed for wildlife habitat, undeveloped land,
recreation, or forestry.
Nothing in this rule change should be construed as negating the
requirement in 30 CFR 816.111(a)(3) and 817.111(a)(3) that
reestablished vegetation on mined lands be at least equal in extent of
cover to the natural vegetation of the area. Nor does this change alter
the applicability of the erosion control requirement in 30 CFR
816.95(a) and 817.95(a).
[[Page 9622]]
IV. How did we respond to the comments that we received on the proposed
rule?
A. Section 942.800(c), (proposed as Sec. 942.800(b)(4)): Bond and
Insurance Requirements for Surface Coal Mining and Reclamation
Operations
Of the 13 commenters on the proposed revisions to 30 CFR
942.800(b), which we are adopting as 30 CFR 942.800(c) in this final
rule, four were coal companies, two were associations representing the
coal industry, two were government agencies, two were environmental
groups, one was an association representing mining states, one was an
organization that administers trusts in other states, and one was a
private citizen.
Seven commenters generally supported the concept of using trust
funds and annuities to satisfy financial assurance requirements for
treatment of long-term postmining pollutional discharges, but requested
that we put more details concerning the creation and administration of
those mechanisms in the rule.
We appreciate the support from these commenters. However, we do not
find it necessary or appropriate to adopt the suggestions for more
specific regulations regarding the creation and administration of trust
funds and annuities. The purpose of this rule is to provide us with
mechanism to use our statutory authority to accept trust funds and
annuities in lieu of conventional performance bond instruments to fund
treatment of postmining pollutional discharges. The final rule
establishes a framework (with safeguards) within which we will accept
trust funds and annuities. It is not, nor was it intended to be, a
handbook that specifies all the details of how trust funds or annuities
would work. Those details are best worked out on an individual basis,
taking into consideration the characteristics of the discharge, the
mine site, the investment instrument, and economic projections at the
time that the trust or annuity is finalized. The KFO will address the
specifics of each trust fund or annuity in formal written agreements
with permittees. This approach is consistent with the manner in which
conventional bond amounts are calculated, which is left to the
discretion of the regulatory authority. In situations where we are the
regulatory authority, Directive TSR-1, ``Handbook for Calculation of
Reclamation Bond Amounts,'' governs those calculations.
Two commenters requested that we either increase bond amounts or
require both bonds and trusts on the same mine site. We find that there
is no legal basis or practical reason to do so. Under section 509(a) of
SMCRA, ``[t]he amount of the bond shall be sufficient to assure the
completion of the reclamation plan if the work had to be performed by
the regulatory authority in the event of forfeiture and in no case
shall the bond for the entire area under one permit be less than
$10,000.'' 30 U.S.C. 1259(a). In addition, section 509(c) specifies
that an ABS, such as the trust funds and annuities approved under this
rule, must ``achieve the objectives and purposes of the bonding program
pursuant to this section.'' 30 U.S.C. 1259(c). Because Sec.
942.800(c)(1) requires the trust fund or annuity to ``be adequate to
meet all anticipated treatment needs, including both capital and
operating expenses,'' the amount of the trust fund or annuity should be
sufficient to meet the requirements of section 509(c) of SMCRA. On a
case-by-case basis, depending upon the stage of mining during which a
trust fund or annuity is established, a mine may have both conventional
bonds and a trust fund or annuity. Requiring multiple bonds in all
cases goes beyond the requirements of section 509(c) and would place an
unnecessary burden on permittees.
In the remainder of this section of the preamble, we will discuss
comments directed at specific sections of our revision to Sec.
942.800, followed by comments of a more general nature that were
directed to the use of trust funds and annuities. We will not discuss
comments that are beyond the scope of this rulemaking, such as comments
that do not pertain to the rule provisions that we proposed to revise
on April 6, 2006.
Section 942.800(c)(1), (Proposed as Sec. 942.800(b)(4)(i))
Subsection 942.800(c)(1) provides that we will determine the amount
of the trust fund or annuity, which must be adequate to meet all
anticipated treatment needs, including both capital and operating
expenses.
Five commenters suggested that the method for determining the
amount of the trust fund or annuity must be objective and clearly
stated in the rule. Two commenters recommend that we use the AMDTreat
software (a computer program used to estimate costs associated with
treating discharges) or the Pennsylvania law, as a model, to determine
the amount needed. One commenter provided two mathematical formulas to
calculate the present value of the amount needed to fund the trust,
while another commenter noted that historic operating and capital costs
for chemical treatment and construction of the treatment systems are
important indicators of future costs. Also, a commenter indicated that
data from the permittee should be used to determine the amount of the
trust fund or annuity because of personal experience with OSM requiring
excessive bond amounts based on outdated and erroneous information.
As previously noted, our rule establishes a framework (with
safeguards) within which we will accept trust funds and annuities. It
is not, nor was it intended to be, a handbook that specifies all the
details of how trust funds or annuities would work. Those details are
best worked out on an individual basis, taking into consideration the
characteristics of the discharge, the mine site, the method of
treatment, the investment instruments, and economic projections at the
time that the trust or annuity is finalized. Consequently, we are not
making the changes sought by the commenters. We do not believe that it
is advisable to limit our flexibility by including all the variables
that may factor in to the determination of the amount of the trust fund
or annuity in the rule. Doing so could restrict our ability to consider
the most current information and technology available when determining
the amount of money needed to fully fund a trust fund or annuity.
When calculating the amount of a trust fund or annuity, we plan to
look at, but are not limited to, the following sources: Historic
treatment cost data (if any) supplied by the permittee; existing
publicly available software, such as AMDTreat; and publicly available
policies and guidelines, such as OSM Directive TSR-1, ``Handbook for
Calculation of Reclamation Bond Amounts.'' For instance, the AMDTreat
software developed cooperatively by the Pennsylvania Department of
Environmental Protection, the West Virginia Department of Environmental
Protection, and OSM is one tool available to the KFO to use to estimate
the costs of treatment and the costs of constructing and maintaining
all associated treatment facilities.
Section 942.800(c)(2), (Proposed as Sec. 942.800(b)(4)(ii))
In subsection 942.800(c)(2), we require that the trust fund or
annuity be in a form that we approve and contain all the terms and
conditions that we require. We received no comments on this provision.
Section 942.800(c)(3), (Proposed as Sec. 942.800(b)(4)(iii))
In subsection 942.800(c)(3), we require that a trust fund or
annuity
[[Page 9623]]
irrevocably establish the United States or Tennessee as the beneficiary
of the trust fund or of the proceeds from the annuity. This provision
is intended to ensure that moneys in the trust fund or annuity will be
available to the regulatory authority for treatment regardless of an
operator's financial circumstances or business status.
The one commenter on this subsection recommended that the rule be
revised to allow trust accounts established for purposes of termination
of jurisdiction to name alternative trust beneficiaries, such as the
State of Tennessee. We disagree with the commenter's assumption that
trust funds or annuities will be established for purposes of
termination of jurisdiction. This rulemaking provides for the
establishment of a trust fund or annuity as an ABS, which means that we
are retaining jurisdiction over the mine site with respect to treatment
of the postmining pollutional discharge. However, we are accepting the
commenter's suggestion to name the State of Tennessee as an alternative
beneficiary. When OSM became the regulatory authority for the State of
Tennessee, we stated that the bonds posted for the Federal program for
Tennessee would be payable to ```The United States or the State of
Tennessee' * * * so as to ease the transition in the event that
[Tennessee] reassumes primary regulatory authority.'' 49 FR 38877-
38878. Because conventional bonds in Tennessee are payable to the
United States and the State of Tennessee, we decided to require trust
funds and annuities to be treated in a similar fashion to remain
consistent with existing provisions. We have revised Sec.
942.800(c)(3) to include this provision to be consistent with Sec.
942.800(b)(2).
Section 942.800(c)(4), (Proposed as Sec. 942.800(b)(4)(iv))
Subsection 942.800(c)(4) requires that we specify the investment
objectives of the trust fund or annuity. Four commenters stated that
the investment objectives of the trust fund should be both defined in
the rule and spelled out in the trust agreement. The commenters
asserted that the permittee should choose the investment objectives
subject to approval by the regulatory authority. The commenters opined
that if the regulatory authority alone selects the investment
objectives, it may use an overly conservative mix of assets that may
adversely impact the investment performance of the trust. Additionally,
one commenter stated that trusts created under these rules should allow
Tennessee law to regulate the duties and obligations of the trustees,
which would include making proper investment decisions. Another
commenter recommended deleting this subparagraph entirely because OSM
is not equipped to control the investment objectives of the trust fund
or annuity. The commenter argued that the investment objectives of the
trust should be established by the trust agreements themselves and by
professionals with experience in managing trust accounts.
We are adopting the rule as proposed because (1) We see no benefit
to restricting our flexibility by specifying investment objectives in
the rule, and (2) we must retain final control of the investment
objectives to protect the assets of the trust or annuity and ensure
that sufficient funds will be available for treatment. However, nothing
in this rule will prevent us from implementing this provision in a
manner consistent with the other comments that we received on this
subparagraph, should we determine that it would be appropriate and
beneficial to do so. Also, while we retain ultimate control of the
investment objectives, which will be defined in the trust or annuity
agreement, the trustee will make decisions regarding the investment of
the assets of the trust fund or annuity. Trustees have an inherent
obligation to comply with Tennessee law, so there is no need for us to
add that requirement to this rule.
Section 942.800(c)(5), (Proposed as Sec. 942.800(b)(4)(v))
Subsection 942.800(c)(5) provides that termination of the trust
fund or annuity may occur only as specified by OSM upon a determination
that no further treatment or other reclamation measures are necessary,
that a replacement bond or another financial instrument has been
posted, or that the trust fund or annuity can no longer be administered
to carry out the purpose for which it was established. As an example of
a trust fund or annuity that is terminated because it can no longer
carry out the purpose for which it was established, the trust documents
may specify that a trust will be terminated if the regulatory authority
determines that it is too small to be administered effectively. This
provision allows us to keep the trust fund or annuity in place as long
as necessary and practical to maintain and reclaim treatment
facilities.
Five commenters asserted that the rule should address the duration
of the trust and the criteria for termination of the trust fund or
annuity. The commenters requested the establishment of objective
criteria, based on time or other factors, to establish the point at
which the trust fund or annuity must be terminated and the remaining
assets of the trust or annuity must be returned to the permittee. One
commenter suggests that we modify the rule to require the regulatory
authority to make a determination, based on site-specific information,
of how long treatment is anticipated. The commenter further suggests
that we modify the rule to provide for monitoring of the untreated
discharge for a period not to exceed two years after treatment is
completed. After two years, the trust should be terminated and the
proceeds returned to the operator.
We do not agree that the suggested provisions should be part of the
rule. In order to meet the purposes of Sec. 509 of the Act, the
alternative system should meet the objectives and purposes of the
bonding program established by SMCRA, including the requirement that
liability ``be for the duration of the surface coal mining and
reclamation operation,'' 30 U.S.C. 1259(b). Consequently, each
agreement for a trust fund or annuity will specify the anticipated
length of treatment, based on site-specific information. Defining
treatment goals is an integral part of determining the funds necessary
for sustaining the trust fund or annuity. Furthermore, if appropriate,
the formal trust fund or annuity agreement may define a post-treatment
monitoring program and the program's anticipated duration. We intend
for trust funds and annuities to be an additional option for permittees
to fulfill their bonding obligations, while providing greater
flexibility than conventional bonds.
It is important to distinguish the duration of the trust or annuity
from the duration of the obligation to the permittee to perform
treatment of a pollutional discharge. We are providing that a trust
fund or annuity may be terminated if replaced by another bond or
financial instrument in Sec. 942.800(c)(5), consistent with Sec.
800.30 and other provisions of part 800. Thus, we anticipate that a
trust or annuity of limited duration may need to be replaced by another
bond or financial instrument if the permittee's obligation to treat a
pollutional discharge extends beyond the term of the trust or annuity.
Rather than establishing an arbitrary duration in this rule, we have
chosen to set the duration of the trust fund or annuity on a case-by-
case basis, which will allow us to consider the anticipated need for
treatment for each site, the permittee's proposals for meeting the
treatment obligations, and other considerations, such as the
requirements of Tennessee law.
One commenter noted that the specification of objective performance
[[Page 9624]]
standard criteria, such as reestablishment of biologic integrity, would
eliminate any potential dispute between the permittee and OSM as to
when it is appropriate to terminate the trust fund or annuity.
According to the commenter, these types of objective performance
standards exist in provisions of the Act detailing when a bond may be
released.
In response, we note that the trust or annuity agreement will
specify treatment goals and requirements. We see no need or purpose to
limit our flexibility by incorporating specific criteria in the rule
itself. Indeed, doing so may be impossible or impractical, given the
variation in discharges and the treatment standards applicable to those
discharges. The KFO will evaluate whether the permittee has met the
treatment goals in the agreements before terminating the trust or
annuity. In order to provide a structure for how and when a trust fund
or annuity will be released, we intend to incorporate the procedures
for bond release under 30 CFR 800.40 into the formal agreement creating
the trust fund or annuity. This provision will provide a permittee with
a mechanism for terminating the trust fund or annuity in the event that
the permittee believes that no further treatment or other reclamation
measures are necessary. We also intend to incorporate the notification
procedures of Sec. 519 of the Act and 30 CFR 800.40 into the trust
documents in order to inform the public about any request to release
the trust fund or annuity.
Section 942.800(c)(6), (Proposed as Sec. 942.800(b)(4)(vi))
Subsection 942.800(c)(6) provides that the release of money from
the trust fund or annuity may be made only upon our written
authorization. As discussed below, we have modified this provision to
require that release of money from the trust fund or annuity to any
source may be made only upon our written authorization or as a
disbursement according to a schedule established in the agreement
accompanying the trust fund or annuity. As we noted in the preamble to
the proposed rule, we included this provision in our rule to ensure
that we are aware of all expenditures from the trust fund or annuity
and that the disbursements are used for their intended purpose, 71 FR
17684. While we expect that the permittee will be treating the
discharge with funds from the trust fund or annuity, we also intend
that the trustee have the authority to employ other entities to
continue treatment in the event that the permittee cannot or does not
undertake the actions required for compliance.
One commenter stated that we should allow withdrawal or release of
funds according to the terms of the trust or annuity agreement instead
of requiring written authorization to release money from the trust fund
or annuity to the permittee. Another commenter suggested that we allow
distributions of the funds on an annual basis to reimburse the
permittee for capital investments and operating and maintaining
treatment facilities. Similarly, another commenter stated that the
trust fund or annuity agreements should include specific payment
schedules for treatment costs. Finally, one commenter suggested that we
modify this subsection to indicate the criteria that we will follow to
release funds from the trust fund or annuity and clarify that release
of funds to a permittee will not impair the ability of the fund to
guarantee treatment.
We have modified the rule to include the option of disbursing funds
according to a schedule established in the trust fund or annuity
agreement. That schedule could provide for annual payments if desired.
Disbursement according to a schedule established in the trust fund or
annuity agreement would meet our objective of ensuring that we are
aware of withdrawals from the trust fund or annuity and that those
funds are disbursed only for legitimate purposes.
However, we do not agree that establishing release criteria in the
rules would be beneficial or appropriate. Those details are best
determined on a case-by-case basis; they will be set forth in the
agreement accompanying the trust fund or annuity. The commenter's
concern that release of funds to the permittee may impair the ability
of the trust fund or annuity to guarantee treatment is misplaced. We
will use our authority under 30 CFR 800.15(a) to periodically evaluate
all trust funds and annuities to ensure that sufficient funds will be
available to meet the treatment mandate. If that evaluation indicates
that a shortfall exists or will develop, we will require that the
permittee provide additional funds to supplement the trust fund or
annuity.
Section 942.800(c)(7), (Proposed as Sec. 942.800(b)(4)(vii))
In subsection 942.800(c)(7), we specify which financial
institutions and companies may serve as trustees or issue annuities.
These requirements are intended to ensure that only qualified
businesses and institutions administer the trust funds and annuities,
thus reducing the possibility that the trust funds and annuities could
be mismanaged. In a change from the proposed rule, we are adding
insurance companies licensed or authorized to do business in Tennessee
to the list of acceptable financial institutions to issue annuities for
the treatment of long-term postmining pollutional discharges. This
addition reflects the fact that insurance companies are major providers
of annuities.
One commenter suggested changing the rule to allow the permittee to
pick the trustee subject to OSM approval. In response, we note that
nothing in the rule would prohibit this arrangement. We expect to
collaborate with a permittee in the establishment of a trust fund or
annuity, including the selection of the trustee.
Three commenters suggested that we allow entities organized as non-
profit organizations under 26 U.S.C. 501(c)(3), such as The Clean
Streams Foundation, Inc. (CSF), to act as trustees through a
participation agreement. CSF currently acts as a trustee for trust
funds for water treatment systems in Pennsylvania. The commenters were
concerned that organizations such as CSF might not meet the
requirements of this subsection and would not be eligible to serve as
trustees in Tennessee. One commenter stated that organizations like CSF
are in a better position to administer trusts because most financial
institutions are unwilling to take title to real property or to oversee
the operation of treatment facilities. According to the commenter,
organizations such as CSF can perform these and other functions that
financial institutions are unwilling to undertake. In addition, the
commenter recommended that Sec. 942.800(c)(7) (proposed as Sec.
942.800(b)(4)(vii)) be revised to allow any organization to serve as a
trustee as long as the custodian of the financial assets of the trust
fund is an appropriate financial institution. Another commenter stated
that the use of non-profit organizations would provide tax advantages
to permittees and noted that Pennsylvania has extensive experience
setting up charitable trusts for this purpose.
As we noted in the preamble to our proposed rule, we want to ensure
that institutions eligible to serve as trustees or to issue annuities
are qualified business institutions capable of administering the trust
funds or annuities in a competent manner so that the trust fund or
annuity will remain solvent for the long-term treatment of pollutional
discharges, 71 FR 17684. We recognize that Pennsylvania's regulations
allow for State or Federally regulated trust companies to act as
trustees and issue annuities. Finally, 30
[[Page 9625]]
CFR 942.800(c)(7) likewise provides that any financial institution or
company with trust powers and offices located in Tennessee is eligible
to participate in the program as long as the activities of the
institution are examined or regulated by a State or Federal agency.
This rule does not prohibit non-profit organizations from becoming
trustees provided the organization meets the qualifications set forth
in the rule. Nor does it prohibit the permittee or the institution
acting as the trustee from contracting with a non-profit organization
to administer the treatment system if the permittee elects not to
operate that system.
Section 942.800(c)(8), (Proposed as Sec. 942.800(b)(4)(viii))
Subsection 942.800(c)(8) provides that trust funds and annuities
must be established in a manner that guarantees that sufficient moneys
will be available to pay for treatment of postmining pollutional
discharges (including maintenance, renovation, and replacement of
treatment and support facilities as needed), the reclamation of the
sites upon which treatment facilities are located and areas used in
support of those facilities. The language of the final rule is more
precise than that of the proposed rule, which would have required that
``trust funds and annuities be established to guarantee that funds are
available to pay for treatment of postmining pollutional discharges or
reclamation of the mine site or both.'' As discussed below, commenters
found the proposed rule language too broad.
One commenter stated that the use of trust funds and annuities as
an alternative bonding mechanism should be limited to treatment of
postmining pollutional discharges exclusively. According to the
commenter, the proposed rule would allow us to use moneys from trust
funds and annuities on lands that previously met performance standards
and have received release of all conventional bonds. Consequently, the
commenter recommended deletion of the phrase ``or reclamation of the
mine site or both'' from this subsection. Similarly, a different
commenter requested that we clarify in the rule that trust funds and
annuities are not available to meet general reclamation requirements.
Another commenter stated that we have inconsistently described the
scope of activities for which the trust fund or annuity is established.
The commenter noted that while proposed Sec. 942.800(b)(4)) states
that the scope of the rule is limited to ``treatment of long-term
postmining pollutional discharges;'' proposed subparagraph Sec.
942.800(b)(4)(i) references ``all anticipated treatment needs,''
proposed subparagraph Sec. 942.800(b)(4)(v) references ``treatment or
reclamation measures,'' and proposed Sec. 942.800(b)(4)(viii)
references ``treatment of postmining pollutional discharges or
reclamation of the mine site, or both.'' The commenter recommended that
we delete the reference to ``reclamation'' in subparagraphs (v) (as
proposed) and (viii) (as proposed) and use the term ``long-term
postmining pollutional discharge.''
We do not agree with the commenters that the trust fund or annuity
should be used exclusively for treatment of long-term postmining
pollutional discharges. While that is its primary purpose, we also need
to ensure that funds are available for maintenance, renovation, and
replacement of the treatment system as necessary and, once there is no
longer a need for treatment, for reclamation of the land upon which
treatment facilities are sited, together with any areas used to support
those facilities, such as access roads. Further, we agree with the
commenters that a trust fund or annuity is not intended to be used for
the reclamation of portions of the mine site not associated with a
treatment facility or used in support of such a facility. We recognize
that the proposed language may have been too broad and subject to
misinterpretation. Consequently, we have used revised Sec.
942.800(c)(8) to specify the activities which may be funded as
treatment and reclamation.
Section 942.800(c)(9), (Proposed as Sec. 942.800(b)(4)(ix))
In subsection 942.800(c)(9), we allow the release of conventional
bonds posted for the mine site as a whole if, apart from the
pollutional discharge and associated treatment facilities, the
permittee has met all applicable reclamation requirements and has fully
funded a trust fund or annuity adequate for treatment of long-term
postmining pollutional discharges and reclamation of areas associated
with that treatment. The establishment of trust funds or annuities for
treatment of long-term pollutional discharges will constitute a
replacement of bonds under 30 CFR 800.30 for the areas upon which the
discharge and treatment and support facilities are located. Once a
fully funded trust fund or annuity exists, there is no need to retain
bonds for other areas for which all reclamation requirements have been
met and the revegetation responsibility period has expired.
Conventional bonds for those areas may be released, subject to the
requirements of 30 CFR 800.40.
Two commenters requested that we clarify this subsection to
emphasize the long-term nature of the problem. These commenters also
found our use of the word ``reclamation'' in the final phrase of this
subsection confusing. According to the commenters, the term
``reclamation'' should refer only to the removal of the treatment
facility and reclamation of the ground where it was located, not mining
impacts in the area. The commenters recommend modifying the final part
of subparagraph (ix) (as proposed) to state, ``* * * and the sum in the
trust fund is sufficient to guarantee the treatment of the pollutional
discharges for as long as it will be needed and to reclaim the
treatment facilities at the end of that time.''
While we have made minor wording changes in subparagraph (9) for
clarity, we do not find it necessary or appropriate to adopt the
language proposed by the commenters. Like the proposed rule, the final
rule requires that the trust fund or annuity be ``sufficient for
treatment of pollutional discharges and reclamation of all areas
involved in such treatment.'' This language establishes the appropriate
scope of the trust fund or annuity, which includes treatment of the
discharge and reclamation of areas upon which treatment facilities are
located and areas used in support of those facilities. The language
proposed by the commenters would not necessarily include reclamation of
areas used in support of treatment facilities. We also find it
unnecessary to add the qualifier ``long-term'' before ``pollutional
discharge'' in subparagraph (9) because the heading of paragraph (c)
clearly states that the entire paragraph applies only to sites with
long-term postmining pollutional discharges.
Another commenter requested that we replace the word ``may'' with
the word ``shall'' in this subparagraph to remove any uncertainty
concerning approval of final bond release once the trust fund or
annuity to address long-term pollutional discharges is established. A
different commenter stated that the rule should be revised to clarify
that the final bond release would occur when the trust fund or annuity
was fully funded.
Both section 519(c) of SMCRA, 30 U.S.C. 1269(c), and the Federal
regulations regarding approval of bond release applications at 30 CFR
800.40(c) provide that the regulatory authority may release all or part
of the bond for the entire permit area or an incremental area if it is
satisfied that reclamation has been accomplished. Therefore, a change
from ``may'' to ``shall'' in this rule would be inconsistent with the
bond
[[Page 9626]]
release provisions of both the Act and our bond release rules.
Consequently, we are not making the requested change. However, in
response to the second comment, we are changing the language of the
rule slightly to specify that the trust fund or annuity must be fully
funded before conventional bonds may be released and to make it clear
that release of the conventional bond will not extend to the treatment
of discharges.
Other comments referring to subsection 942.800(c)(9) were primarily
concerned with termination of jurisdiction. We discuss the relationship
between termination of jurisdiction and this rulemaking in the General
Comments on Sec. 942.800(c) below.
General Comments on Sec. 942.800(c), (Proposed as Sec. 942.800(b)(4))
One commenter stated that the proposed rule contained insufficient
detail about the mechanics of how trusts will be created and
administered. As a result, the commenter argued that he could not
adequately comment on the proposal. Additionally, the commenter
asserted that by not including those details, we violated the
Administrative Procedure Act (APA). The commenter noted that the
purpose of the notice requirement in Sec. 553(b) of the APA is to
allow potentially affected members of the public to file meaningful
comments under Sec. 553(c) of the APA. According to the commenter, it
was impossible to submit meaningful comments on the proposed rule
because of the lack of detail on how the process would work.
As we noted above and in the preamble to the proposed rule, we
proposed the regulations at Sec. 942.800(b)(4) (now Sec. 942.800(c))
to provide the KFO with a mechanism to use our statutory authority to
establish trust funds and annuities. 71 FR 17684. The rule included
nine criteria that all trust funds and annuities would be required to
meet, as well as an extensive preamble discussion. We believe that this
information was sufficient to provide a basis for informed comment,
both on the concept of trust funds and annuities for the treatment of
long-term postmining pollutional discharges and on the criteria for
those funding mechanisms. The comments that we received from other
persons support that conclusion.
We also complied with the other notice requirements of Sec. 553(b)
of the APA by stating the time, place, and nature of public rulemaking
proceedings, by referring to the legal authority under which the rule
was proposed, and by providing the terms or substance of the proposed
rule or a description of the subjects and issues involved. We provided
instructions on how to submit comments on the proposed rule, extended
the public comment period, and provided notice of a requested public
hearing that was held on June 1, 2006. 71 FR 17682; 71 FR 25992.
Two commenters stated a preference for approval of the use of trust
funds and annuities as an ABS rather than as a collateral bond. One of
those commenters stated that trust instruments are not traditional
bonds that would fit the collateral bond provisions of Sec. 800.21.
The other commenter noted that although he preferred treating trust
accounts as an ABS, they could also qualify as collateral bonds.
As previously stated in this preamble, we are approving trust funds
and annuities as an ABS. Trust funds and annuities meet the
requirements for an ABS as set forth in 30 CFR 800.11(e) because once
they are fully funded, the trust accounts or annuities will ensure that
we will have sufficient funds to complete the reclamation plan for any
areas on which the permittee may be in default on reclamation
obligations at any time. Additionally, the permittee provides the money
needed to establish a trust fund or annuity. Thus, the permittee has a
substantial economic incentive to comply with all reclamation
provisions as required by the second criterion for establishing an ABS
under 30 CFR 800.11(e).
Three commenters stated that the rule contained no explanation as
to which site-specific circumstances qualify as a long-term pollutional
discharge. According to the commenters, failure to define the term
``pollutional discharge'' would allow the rule to be extended to
situations beyond its intended scope. Two commenters stated that the
term should mean only discharges that will exist after reclamation has
been completed and will not meet applicable standards for point-source
discharges that are subject to the Clean Water Act (CWA). Another
commenter proposed that we define pollutional discharges as
``discharges that cannot meet State water quality standards or approved
alternative standards.'' This commenter stated that such a definition
would limit the applicability of this rule to the postmining situations
for which it was intended.
We do not agree with the commenters that the term ``pollutional
discharge'' needs to be defined as part of this regulation, nor do we
understand how the lack of a definition could result in misuse of this
rule. We have used this term for more than a decade without confusion.
Any discharge that is not in compliance with applicable standards is a
pollutional discharge.
Three commenters noted that the method of treatment could have a
major influence on the amount and terms and conditions of the required
trust fund or annuity. According to the commenters, the rule should
recognize that multiple upstream discharges can be treated more
efficiently with a single downstream treatment facility when
circumstances warrant. In addition, four commenters stated that we
should address passive treatment systems as an option for treating
discharges.
Nothing in the proposed or final rules restricts the type of
treatment systems that permittees may use or where they may be located.
Consequently, we find that there is no need to revise the rule in
response to these comments.
Two commenters stated that we should consider allowing operators to
bank credits for water treatment. As an example, operators could treat
discharges that are not required by law and then use this treatment as
a credit towards any other water treatment obligations that they may
have.
This comment is beyond the scope of this rulemaking. We did not
propose any changes regarding a permittee's water treatment
obligations, nor do we have the authority to do so under SMCRA. Section
702(a) of the Act, 30 U.S.C. 1292(a), in essence provides that nothing
in SMCRA (and by extrapolation its implementing regulations) may be
construed as superseding, amending, modifying, or repealing the CWA and
its implementing regulations.
Two commenters stated that the rule should specify that the trust
fund or annuity can be funded over time by the permittee, in some cases
over a period of several years.
Nothing in the final rule prohibits the funding of a trust fund or
annuity over time. In addition, the preambles to both the proposed and
final rules clearly state that we will allow a reasonable amount of
time for permittees to fund trust funds and annuities. However, both
the proposed and final rules do specify that any conventional bonds for
the mine site may not be released until the trust fund or annuity is
fully funded.
Two commenters indicated that the rule should be revised to clarify
how the trust funds are used, such as allowing the operator to be
reimbursed directly from the trust for all expenses of treatment and
capital expenditures that are incurred. Additionally, five commenters
indicated that the rule should provide for the periodic evaluation of
the trust funds or
[[Page 9627]]
annuities to ensure that they have the appropriate amount of assets to
treat AMD. These commenters also suggested that the rule state how
underfunded or overfunded trusts will be adjusted.
Trust funds and annuities can have different disbursement
requirements. Therefore, we are not modifying the rule to establish
rigid disbursement criteria. We will specify the mechanics of
disbursements from the trust fund or annuity in the formal trust
agreements with the permittee.
With regard to comments pertaining to the periodic evaluation of
the trust fund or annuity amounts, the formal agreement with the
permittee will make the trust fund or annuity subject to the provisions
of 30 CFR 800.15(a), which require periodic adjustment by the
regulatory authority when the cost of future reclamation changes. That
paragraph of the bonding regulations further allows the regulatory
authority to specify periodic times or set a schedule for reevaluating
and adjusting the bond amount. We will set such a schedule in the
formal trust or annuity agreement. Therefore, we do not find it
necessary to modify the Tennessee Federal program rules in the manner
advocated by the commenters.
Four commenters stated that conventional SMCRA reclamation bonds
should be released on a schedule according to existing regulations.
We agree, with one caveat. As stated above, the March 31, 1997,
policy statement provides that no bond should be released for any
permit with a long-term postmining pollutional discharge until there is
adequate financial assurance for treatment of that discharge.
Therefore, subsection 942.800(c)(9) of this final rule requires that a
fully funded trust fund or annuity be in place before conventional
bonds for the mine site may be released.
One commenter expressed concern that we intend to keep both a
conventional reclamation bond and a trust fund or annuity in place for
the same area. Two other commenters stated that it was their
understanding that if treatment of a discharge was required before land
reclamation was complete, we would require a conventional bond for land
reclamation and a trust fund for the discharge.
In response, we note that Sec. 942.800(c) of this final rule
authorizes the use of trust funds and annuities only for the treatment
of long-term postmining pollutional discharges and reclamation of the
areas upon which discharge treatment systems and support facilities are
located. Under the Tennessee Federal program regulations at 30 CFR
942.800, the permittee must post conventional performance bonds for all
other portions of the mine site and all other reclamation
responsibilities. The final rule allows the release of all conventional
bonds for a site with a postmining pollutional discharge once a fully
funded trust fund or annuity is in place, provided the site otherwise
qualifies for bond release under 30 CFR 800.40. There could be a period
where both conventional bonds and a partially funded trust fund or
annuity exist simultaneously for the same mine site. As examples, if a
permittee is funding a trust fund or annuity over time, or if other
areas of the mine do not qualify for release under 30 CFR 800.40, then
both a conventional bond and a trust fund or annuity could cover the
permit.
Three commenters requested that we clarify that the effluent limits
of 40 CFR Part 434 are no longer applicable after termination of
jurisdiction and bond release and when a trust fund or annuity is fully
funded. In contrast, two other commenters expressed concern that
treatment to meet the effluent limits in 40 CFR Part 434 may not be
sufficient to protect classified uses designated for waters of the
State of Tennessee.
In response, we note that, in keeping with section 702(a) of SMCRA,
30 U.S.C. 1292(a), we have no authority to modify discharge treatment
standards established under the authority of the CWA or its
implementing regulations. Issuance of a National Pollutant Discharge
Elimination System (NPDES) permit for point-source discharges and
establishment of effluent limits for those discharges is the
responsibility of the agency charged with administering the CWA in
Tennessee.
Five commenters requested that we add a provision requiring
termination of OSM jurisdiction once a fully funded trust fund or
annuity has been established. One of those commenters cited the
language from the preamble to our termination of jurisdiction rule in
support of his argument. 53 FR 44361-62 (November 2, 1988). The
commenter asserted that adequate provisions could be made in the trust
agreement to provide us with the ability to inspect and monitor the
treatment process. Another commenter stated that we should make a
distinction between those trust accounts that are posted as
alternatives to surety bonds for active permits and those trust
accounts that are established in accordance with the preamble to the
termination of jurisdiction rule to meet the requirements for ``a
contract or other mechanism enforceable under other provisions of law''
to provide financial assurance for long term treatment. This commenter
suggested an approach similar to that used by Pennsylvania where
consent orders are enforceable agreements that do not depend on the
regulatory authority retaining jurisdiction under SMCRA to oversee
compliance. The commenter urged us to consider other alternatives to
provide financial assurance for purposes of terminating jurisdiction.
For the reasons set forth below, we are not making the changes
sought by the commenters. In response to a question about sites with
postmining pollutional discharges, the preamble to our termination of
jurisdiction rule at 30 CFR 700.11(d) discussed the possibility of full
bond release (and hence termination of jurisdiction) if there are
``assurances which provide through a contract or other mechanism
enforceable under other provisions of law to provide, for example, long
term treatment of an alternative water supply or acid discharge.'' 53
FR 44361, November 2, 1988. We have not determined whether trust funds
and annuities could be structured to qualify for full bond release and
termination of jurisdiction. We do not find such a determination
necessary because termination of jurisdiction is a discretionary action
on the part of the regulatory authority. As provided in 30 CFR
700.11(d)(1), a ``regulatory authority may terminate its jurisdiction
under the regulatory program over the reclaimed site of a completed
surface coal mining and reclamation operation, or increment thereof * *
* .'' (emphasis added.)
We have elected not to exercise that discretion with respect to
postmining pollutional discharges and associated treatment facilities
and support areas. We believe that our decision to classify trust funds
and annuities established for the long-term treatment of postmining
pollutional discharges as an ABS and to retain jurisdiction over the
treatment site is a superior means of achieving the purpose of SMCRA
set forth at section 102(a) of the Act. 30 U.S.C. 1202(a) (``to protect
society and the environment from the adverse effects of surface coal
mining operations''). By retaining jurisdiction over the discharge and
associated treatment and support facilities, we can monitor the site,
its treatment needs, and the adequacy of the trust fund or annuity.
Contrary to the commenters' assertions, we would have no such authority
if we terminated jurisdiction. Similarly, because we have classified
trust funds and annuities as an ABS, we have authority under the bond
adjustment provisions of 30 CFR 800.15(a) to order the permittee to
contribute more funds if the assets of the trust fund or annuity
require
[[Page 9628]]
adjustment to reflect changes in discharge quality or quantity or
investment performance or projections. We could not do so if we
terminated jurisdiction. Indeed, in the absence of complaints from the
public, we probably would not be aware of the situation because we
would have no inspection or monitoring authority.
Our decision to retain jurisdiction and classify trust funds and
annuities as an ABS avoids these problems. However, nothing in this
rule would prohibit us from terminating jurisdiction over the portion
of the mine site that is not involved with treatment of the discharge
once the requirements of Sec. 942.800(c)(9) are met and bond is fully
released on that portion of the mine site.
One commenter suggested that the proposed rule should not be
applied retroactively, but prospectively only. The commenter reasoned
there is currently no requirement for bond or other financial
assurances for treatment of AMD. The commenter cited Bowen v.
Georgetown University Hospital, 488 U.S. 204 (1988) and NMA v. DOI, 177
F. 3d 1 (D.C. Cir. 1999), for the proposition that retroactive
application of rulemaking is prohibited unless specifically authorized
by Congress.
As explained at length in the preamble to both this rule and the
proposed rule, we disagree with the commenter's assertion that there is
no existing Federal regulation requiring bond or financial assurances
for treatment of postmining pollutional discharges. We interpret the
1983 changes to the Federal bonding regulations in 30 CFR Part 800 as
confirming that requirement. The final rule that we are adopting today
does not alter that requirement or otherwise modify the national
bonding regulations. Instead, it merely provides permittees in
Tennessee with the option of replacing conventional bonds with trust
funds or annuities as a means of satisfying the bonding requirements
for treatment of long-term postmining pollutional discharges.
Five commenters stated that the rule must specify standards for
termination of the trust fund or annuity, such as requiring that the
untreated discharge meet Tennessee water quality standards or approved
alternative standards, thus demonstrating that no further treatment is
necessary.
In response, we note that Sec. 942.800(c)(5) of this rule provides
that, apart from replacement with a different financial assurance or
administrative necessity, termination may only occur if we determine
``that no further treatment or other reclamation measures are
necessary.'' This rule language should be sufficient to ensure that
premature termination does not occur. The formal trust fund or annuity
agreement will contain specific treatment standards for each discharge,
which will reflect the standards in the NPDES permit. Under section
702(a) of SMCRA, 30 U.S.C. 1292, we have no authority to deviate from
those standards. The formal agreement also will specify the steps that
must be taken to demonstrate that treatment is no longer needed, which
may vary with site conditions and the nature of the discharge.
Two commenters stated that the proposed rule failed to address
formal participation by the permittee. According to the commenters, the
rule should require that we provide notice to the permittee under the
permit revision provisions of section 511(c) of SMCRA, 30 U.S.C.
1261(c), when we determine that a long-term postmining pollutional
discharge exists.
We find that no rule change is needed in response to these
comments. Whenever an unanticipated postmining pollutional discharge
develops, we will order the permittee to revise the reclamation plan to
address the discharge. In those cases, the permit revision notification
requirements of the Act and regulations will apply.
Two commenters noted that because the Tennessee Department of
Environment and Conservation (TDEC) has primary authority to regulate
discharges to waters of Tennessee under the CWA as well as State law,
there is overlapping jurisdiction between OSM and TDEC. The commenters
found the rule to be unclear on how the proposed trust funds would mesh
with TDEC's responsibilities. The commenters requested that decisions
regarding the terms of the trust be made jointly with TDEC and OSM.
Specifically, the commenters request that the proposed rule be changed
to indicate that TDEC's approval is needed for the determinations made
under our proposal at Sec. 942.800(b)(4)(i), (v), (vi), and (viii)
(now designated as Sec. 942.800(c)(1), (5), (6), and (8)).
We can find no reason to modify the rule in the manner that the
commenters advocate. Discharge treatment standards will be established
based upon the permits issued by TDEC as the CWA authority. Under
section 702(a) of SMCRA, 30 U.S.C. 1292(a), we have no authority to
establish different treatment standards or requirements for point-
source discharges regulated under the CWA. Conversely, TDEC has no
jurisdiction over the bonding of surface coal mining operations in
Tennessee under SMCRA. Therefore, there is no need to seek TDEC
approval for actions related to trust funds and annuities, which we are
approving as an ABS under section 509(c) of SMCRA, 30 U.S.C. 1259(c).
Another commenter expressed concerns about the workload that the
rule would impose on the Tennessee's CWA authority and the State's
ability to meet those demands. As we explained in the preceding
paragraph, this rule places no demands upon Tennessee's CWA authority.
Two commenters stated that the rule appears to be internally
inconsistent about who is responsible for treatment of pollutional
discharges and how the funds are to be released for treatment. The
commenters point out that proposed 30 CFR 942.800(b)(4)(vi) allows
funds from the trust to be released to the permittee, while proposed 30
CFR 942.800(b)(4)(viii) provided that the trust fund or annuity must
guarantee that moneys are available for OSM to pay for treatment. Two
commenters also stated that the rule should specify that the permittee
remains liable for the costs of the long-term treatment. According to
the commenters, this clarification would diminish any incentive to
underfund the trust.
We understand why the commenters described a potential internal
inconsistency, but we do not agree that proposed subsections (b)(4)(vi)
and (viii) (final subparagraphs (c)(6) and (8)) are, in fact,
inconsistent. However, we have made minor revisions to address the
commenters' concern. Final subparagraph (c)(6) allows release of funds
for treatment purposes (but only according to a set schedule or when
authorized by OSM), while final subparagraph (c)(8) requires that the
trust fund or annuity be structured in a manner that guarantees that
sufficient funds will be available for treatment and reclamation needs.
We removed the phrase ``to the permittee'' from (c)(6) (proposed as
Sec. 942.800(b)(4)(vi)) so now this provision requires our written
authorization for release of funds from the trust fund or annuity to
any entity. We also removed the unnecessary reference to OSM in
subparagraph (c)(8) that appeared in the proposed rule.
Nothing in this rule alters a permittee's responsibility for the
treatment of discharges under SMCRA or the Federal regulations.
Permittees are responsible for reclamation obligations under their
permits, including treatment of discharges, regardless of whether those
obligations are secured by a bond, a trust fund, or an annuity. In the
event the permittee defaults on those reclamation obligations, we will
use the bond, trust
[[Page 9629]]
fund, or annuity to fulfill the reclamation obligation. Therefore,
there is no incentive for the trust to be underfunded.
Two commenters inquired whether OSM, Tennessee or the trustee would
be responsible for complying with NPDES permit provisions if the
permittee failed to do so. In response, we note that the formal trust
fund or annuity agreement will set forth the procedure to be followed
in the event that the permittee does not fulfill its obligations,
which, at a minimum, will include ensuring that funds are available to
continue treatment of the discharge. That is one of the purposes of
establishing a trust fund or annuity, which is structured to provide an
income stream and continuation of treatment in the event the permittee
fails to fulfill its treatment obligations. If we are required to
forfeit a trust fund or annuity, we are acting in our capacity as the
regulatory authority. However, that is the extent of our responsibility
under SMCRA and these rules. We are not the permittee, and we do not
become the permittee when the permittee defaults on reclamation
obligations, which means that we do not assume the permittee's NPDES
compliance duties. The State of Tennessee is not a party to these trust
funds and annuities, so it would not have any NPDES compliance duties
if the permittee defaults on reclamation obligations.
Two commenters asserted that OSM should consult with the
Environmental Protection Agency (EPA) with regard to the proposed rule
because EPA has designated coal mining as a primary industry. The
commenters stated that another reason for consulting with EPA is that
EPA must approve all NPDES permits for coal mining prior to issuance by
TDEC.
This rule pertains only to the means by which permittees may comply
with the bonding requirements of SMCRA and the Tennessee Federal
regulatory program with respect to funding the treatment of postmining
pollutional discharges. EPA has no jurisdiction over performance bond
requirements under SMCRA, nor does SMCRA require consultation with EPA
on regulations concerning those requirements.
Two commenters suggested that the wording of the proposed rule
might unintentionally create a broader exception from bonding
requirements than we intended. The commenters noted that 30 CFR
942.800(a) states that the general rules for bond and insurance
requirements apply ``except as provided in paragraph (b) of this
section * * * .'' The commenters assert that the addition of proposed
subparagraph (b)(4) (now designated as paragraph (c)) would expand the
situations in which the bonding requirements do not apply and appears
to exempt the entire mine site from the bonding requirements, rather
than just the pollutional discharge. The commenters suggested moving
our proposed requirements for trust funds and annuities from
subparagraph (b)(4) to a new paragraph (c) and modifying the first two
sentences to read, ``If OSM makes a determination that a site will need
to have long-term treatment of pollutional discharges, it may require
the permittee to establish a trust fund to guarantee such treatment
will be provided as long as it is necessary.''
The commenters raise a potentially valid point, in part. All three
subparagraphs of existing paragraph (b) refer to the transition from
the defunct Tennessee State regulatory program to the current Federal
regulatory program for Tennessee. Consequently, the provisions of
proposed 30 CFR 942.800(b)(4) do not logically belong in paragraph (b).
Therefore, in the final rule, we are codifying proposed subparagraph
(b)(4) as paragraph (c) and slightly revising paragraph (a) to
incorporate the new paragraph (c). We are also adding language that
clarifies that the provisions of paragraph (c) may be used in lieu of
posting one of the forms of conventional bonds listed in 30 CFR 800.12.
We have revised proposed Sec. 942.800(b)(4)(viii) (now Sec.
942.800(c)(8)) to avoid any possibility that paragraph (c) could be
construed as applying to the entire mine site. We also revised proposed
Sec. 942.800(b)(4)(ix) (now Sec. 942.800(c)(9)) to make it clear that
the treatment and reclamation obligation on the portion of the mine
site associated with treatment of the discharges remains secured under
the trust fund or annuity in the event conventional bonds for the
permit are released. These changes should remedy the potential problem
identified by the commenters.
One commenter requested that we add a provision to prescribe a
process for transferring responsibilities under a trust agreement to
another permittee, a landowner, or a lessee. The commenter stated that
the provisions of 30 CFR 942.774 regarding revision, renewal and
transfer, assignment, or sale of permit rights do not cover or relate
to situations where another permittee, the landowner, or a subsequent
lessee desires to assume the permittee's responsibilities under an
existing trust agreement.
We do not interpret SMCRA or our regulations as allowing the
transfer of reclamation liability from the permittee to other persons
by any mechanism other than transfer of the permit itself in accordance
with the process established at 30 CFR 774.17 for the transfer,
assignment or sale of permit rights. Paragraphs (b)(3) and (d)(2) of
that section require that any successor to a permit submit a bond or
other guarantee or obtain the bond coverage of the original permittee
before the regulatory authority can approve the transfer, assignment,
or sale of the permit. Those regulations also apply in situations in
which the bond takes the form of trust funds and annuities approved as
an ABS. However, if a landowner, lessee, or another permittee wishes to
assume the permittee's responsibilities under the trust fund or annuity
agreement, nothing in the rule that we are adopting today would
prohibit the permittee and that person from entering into a contractual
agreement separate from the trust or annuity agreement, although
ultimate responsibility would still reside with the permittee in
accordance with the terms of the trust or annuity document.
A commenter suggested that we might want to require permittees to
provide rights to the real property needed to facilitate water
treatment as part of the trust. According to the commenter, the rights
to real property may be necessary to ensure successful treatment of
discharges.
The acquisition of property rights may or may not be required in
every trust situation. In general, the rights that allow mining provide
access to the site for reclamation. In the event a right-of-entry issue
arises, it can be addressed in the individual trust agreement.
One commenter stated that trust funds are unlikely to generate
enough capital to meet all SMCRA reclamation requirements.
We agree that there may be some situations in which the permittee
is unable to obtain the capital needed to establish a trust fund or
annuity. However, that fact should not operate to preclude the
establishment of trust funds or annuities in situations in which the
permittee can obtain the necessary capital. Furthermore, trust funds
and annuities are not intended to meet all SMCRA reclamation
requirements as this commenter suggests. Rather, we are approving the
use of these mechanisms as a means of providing financial assurance for
the long-term treatment of postmining pollutional discharges and
reclamation of associated facilities. The regulations continue to
require the posting of a conventional bond for land reclamation on the
remainder of the site.
[[Page 9630]]
One commenter noted that the adequacy of the bond is more important
than the bonding instrument.
We agree that adequacy of the bond is important, but we cannot
discount the importance of the instrument to secure long-term treatment
of postmining pollutional discharges. An income-producing financial
instrument, such as a trust fund or annuity, is a more appropriate
method of funding treatment of these discharges than a conventional
bond.
One commenter stated that we need to increase bonds because bond
forfeitures have allowed mining companies to avoid their reclamation
obligations and have placed those obligations on OSM. The commenter
argued that permittees should post both bonds and annuities because
annuities based on stock market performance can shrink as well as grow.
Thus, if the annuities shrink, they may not be funded sufficiently to
provide the necessary treatment.
We disagree that permittees should be required to post both
conventional bonds and trust funds or annuities for the same
reclamation liability. Under section 509 of SMCRA, 30 U.S.C. 1259, and
30 CFR 800.14, we have no basis for requiring bond amounts in excess of
the amount that we determine may reasonably be needed if the permittee
defaults on reclamation obligations and we need to contract with a
third party to complete the reclamation plan. We recognize that
investment performance is subject to fluctuations that may adversely
impact the assets of trust funds and annuities. Consequently, like
Pennsylvania, we will structure trust funds and annuities to maintain a
cushion against those times when investment performance does not
approach the target rate. In addition, as authorized by 30 CFR
800.15(a) and incorporated by the trust documents, we will conduct
periodic reviews of trust funds and annuities and require that the
permittee make additional contributions if the cushion proves to be an
inadequate safeguard against market fluctuations.
B. Sections 942.816(f)(3) and 942.817(e)(3): Revegetation Success
Standards What Are the Revisions to Sec. Sec. 942.816(f)(3) and
942.817(e)(3)
Of the 56 commenters submitting comments on the proposed revisions
to 30 CFR 942.816(f)(3) and 942.817(e)(3), twenty-three were from
environmental groups, one was from an association representing the coal
industry, two were from coal companies, two were from government
agencies, one was from an association representing mining states, and
27 did not provide an affiliation. While six of the comments were
favorable, fifty commenters were opposed to what the commenters viewed
as a weakening of the revegetation success standards of the Tennessee
Federal program.
Numerous commenters expressed their opposition to changes in the
shrub and tree stocking standards, even though the proposed rules did
not alter the existing tree and shrub stocking standards under the
Tennessee Federal program. The modified revegetation requirements that
we proposed on April 6, 2006, apply only to vegetative ground cover on
sites with a postmining land use requiring the planting of trees, i.e.,
wildlife habitat, undeveloped land, recreation, or forestry. The
regulations at 30 CFR 942.816(f)(3)(i) and (ii) and 942.817(e)(3)(i)
and (ii), which address the stocking levels of woody plants for those
postmining land uses, are not affected by these changes.
Twenty-six commenters expressed concern that the proposed rules
would ``waive'' the revegetation requirements for postmining land uses
of wildlife habitat, undeveloped land, recreation, or forestry. The
commenters generally suggest that we specify minimal planting
requirements for trees and shrubs, require that trees and shrub
plantings be species native to the area, and require that functional
tests measuring the number of trees and shrubs that must survive be
conducted years after planting and prior to any bond release.
As we have noted, the only changes regarding revegetation in this
rulemaking are the elimination of the 80% ground cover requirement from
30 CFR 942.816(f)(3) and 942.817(e)(3) for postmining land uses of
wildlife habitat, undeveloped land, recreation, or forestry. In
addition, we are eliminating the bare area restriction of 30 CFR
942.816(f)(4) and 942.817(e)(4) for those lands with a forestry-related
postmining land use.
We did not propose to modify the tree and shrub stocking and
planting arrangement requirements of the Tennessee Federal program at
Sec. Sec. 942.816(f)(3)(i)-(ii) and 942.817(e)(3)(i)-(ii). Therefore,
comments regarding tree and shrub planting standards are outside the
scope of this rulemaking, which means we will not discuss them.
Additionally, the elimination of the 80% vegetative ground cover
standard does not constitute a ``waiver'' of the ground cover
vegetation success standards. We are retaining the ground cover success
standards of the Tennessee Federal program at 30 CFR 942.816(f)(3)(iii)
and 30 CFR 942.817(e)(3)(iii), which provide that vegetative ground
cover must not be less than that required to achieve the postmining
land use. That requirement is the same as the one found in our national
regulations at 30 CFR 816.116(b)(3)(iii) and 817.116(b)(3)(iii)
regarding vegetative ground cover success standards for areas with
postmining land uses requiring the planting of trees and shrubs.
Removing the 80% vegetative ground cover requirement from 30 CFR
942.816(f)(3) and 30 CFR 942.817(e)(3) is consistent with our national
regulations at 816.116(b)(3)(iii) and 817.116(b)(3)(iii), which do not
require a fixed percentage of vegetative ground cover. Instead, the
national rules, and now the Tennessee Federal program rules, provide
that, to achieve revegetation success, vegetative ground cover must not
be less than that required to achieve the approved postmining land use.
One commenter argued that the scientific studies cited in the
proposed rule to justify elimination of the 80% vegetative ground cover
requirement mistakenly identify ground cover density as the cause of
forest regeneration failure. According to the commenter, the altered
hydrology and soil conditions of reclaimed mine sites, not excessive
ground cover, prevent long-term survival of trees. The commenter notes
that any area receiving sufficient precipitation in eastern Tennessee
will proceed by secondary succession from grassland to forest
regardless of the amount of herbaceous ground cover. However, the
commenter also asserts that mined mountaintops, which have no forested
slopes above them to provide a seed source, would require human seeding
or tree planting.
The research we cited does not identify vegetative ground cover
density alone as the cause of tree growth failure and mortality, but
rather identifies it as a significant contributing factor. Because
traditional mine reclamation typically includes compacting surface soil
materials, application of fertilizers and other soil amendments at high
rates, and then seeding the site with quick-growing, aggressive grasses
and legumes, the resulting vegetative ground cover is so dense that
most tree seedlings and newly planted trees cannot compete effectively
for nutrients, water and sunlight. In addition, the dense herbaceous
cover provides favorable habitat for small mammals that eat tree seeds
and damage tree seedlings and saplings.
We agree with the commenter that trees will eventually volunteer on
mine sites, but dense vegetative ground covers will inhibit their
growth and
[[Page 9631]]
increase mortality. Our objective is to establish, as quickly as
practicable, vigorous and healthy forests of native species on
reclaimed mine lands. Our removal of the 80% ground cover success
standard eliminates one of the regulatory barriers that we have
determined inhibits the reestablishment of high-quality hardwood
forests.
In addition to reducing competition from aggressive herbaceous
ground covers, loosely graded surface soil materials increase water
infiltration and make more water available for tree growth as well as
providing a favorable medium for root growth and development. While we
agree with the commenter's views on how hydrology and soil conditions
affect tree growth on conventionally reclaimed mines, mine sites with
reduced compaction and less aggressive ground cover are more likely to
overcome these obstacles.
One commenter agreed that some types of herbaceous ground covers
inhibit tree seedling growth less than others do. However, the
commenter stated that, rather than relaxing vegetative ground cover
standards, we should study the types of ground covers and specify which
herbaceous ``tree-friendly'' ground covers should be used to balance
erosion control and tree establishment.
As previously discussed in this preamble, we have found that the
80% ground cover success requirement is not only in conflict with tree
establishment and regeneration, it also interferes with the statutory
requirement to establish a diverse, effective, permanent vegetative
cover comprised of species native to the area. In addition, in most
cases, it is not needed to control erosion if the FRA is followed. Our
rules at 30 CFR 816.111(a)(4) and 817.111(a)(4) continue to provide
that vegetative ground cover must be sufficient to control erosion and
to maintain soil stability. We will continue to encourage the use of
those types of ground cover that achieve that requirement without
substantially inhibiting the growth, survival, and regeneration of
trees and shrubs.
One commenter expressed concern that the proposed rule language was
vague and that we did not provide substitute requirements for the 80%
ground cover rule or the bare area restrictions. The commenter
suggested that we incorporate guidelines for tree planting or
monitoring of natural succession to achieve tree coverage goals before
bond release. The commenter also requested that we include specific
runoff-monitoring procedures. Other commenters stated that the
regulations should specify the number of trees, shrubs, and other
vegetation that must be planted on reclaimed mine sites, including the
number of species to be planted and the survival rate by which success
will be judged.
The existing regulations for the Tennessee Federal program at 30
CFR 942.816(f)(3)(i) and 942.817(e)(3)(i), which were not affected by
this rulemaking, provide that we must specify stocking levels and
planting arrangements on the basis of local and regional conditions
after consultation with the State agencies responsible for the
administration of forestry and wildlife programs. Subparagraph (ii) of
those rules contains standards for evaluating the success of tree and
shrub growth and survival. Our surface water monitoring requirements
are found at 30 CFR 780.21(j), 784.14(i), 816.41(e), and 817.41(e). We
do not agree that separate runoff monitoring is needed to evaluate the
requirement that ground cover be adequate to control erosion. Visual
inspection of the site for rills and gullies will suffice.
A commenter characterized the rule as promoting ``patchwork''
revegetation upon a larger-scale mining site. The commenter expresses a
belief that we should focus on reforestation of the entire mine site as
was intended by SMCRA.
First, SMCRA does not allow us to require that mined lands be
returned to forest conditions. Section 515(b)(2), 30 U.S.C. 1265(b)(2),
requires that mined lands be reclaimed to a condition capable of
supporting the uses that they were capable of supporting prior to
mining or to higher or better uses. Consequently, the regulations that
we are adopting in this rulemaking only apply to mine sites with a
postmining land use requiring the planting of trees and shrubs. For
those mine sites, the rule eliminates the arbitrary 80% ground cover
requirement and the limitation on the maximum amount of bare area. The
revised regulations seek to encourage tree growth and survival by
limiting competition from excessive herbaceous ground cover. Research
and an examination of reclaimed mine sites has demonstrated that
competition from herbaceous ground cover, along with excessive soil
compaction during backfilling, regrading, and topsoiling, has resulted
in the creation of grasslands with few trees on most reclaimed mine
sites. We believe that adoption of this rule, which removes
requirements that make it difficult to establish woody plants, will
increase the probability that permittees will return mined lands to
forestry-related postmining land uses.
In Tennessee, most mine sites were originally forested prior to
mining and the surrounding land is, for the most part, still forested.
Conventional reclamation has resulted in forest fragmentation and the
``patchwork'' revegetation that is the subject of the commenter's
concern. We anticipate that adoption of the rule changes discussed in
this preamble will lessen the occurrence of ``patchwork'' revegetation
by creating more favorable conditions in which mine sites can and will
be returned to healthy, productive forests consistent with surrounding
lands.
One commenter stated that we have not identified how past hardwood
tree-planting failures can be avoided in the future.
We disagree with this comment. In our April 6, 2006, notice, we
identified the major factors that negatively affect tree growth on
reclaimed mine lands, such as compaction and competition from grasses.
We also explained that forestry researchers have agreed that productive
forestland can best be created on reclaimed mine land by using the FRA.
Specific comments regarding the FRA are discussed under the General
Comments section below.
A commenter expressed concern that implementation and enforcement
of compaction requirements would no longer be a priority on reclaimed
landforms where compaction is necessary to stabilize the backfilled
spoils or to prevent settlement-related highwall exposure.
The regulations we are approving in this rulemaking do not replace
or supersede any existing stability or highwall elimination
requirements. Mined-out areas must still be backfilled in a manner that
meets all stability and highwall elimination requirements.
One commenter stated that the proposed rule changes fail to provide
information on tree-compatible groundcover species and do not require
the use of low levels of nitrogen fertilizer (to avoid stimulating
overly lush herbaceous vegetation).
We believe that these details are best addressed through the permit
application submission and review process rather than in our
regulations.
A commenter stated that if OSM intends to leave all or part of mine
sites devoid of vegetation, the reclamation plan should specify how the
resultant increase in sediment will be controlled. Alternatively, we
should produce credible models demonstrating that an increase in
sedimentation will not occur. According to the commenter, failure to do
so will cause pollution to Tennessee's waters.
[[Page 9632]]
As discussed earlier in this preamble, non-compacted mine soils
have higher infiltration rates and erode less than graded soils, which
generally translates to lower runoff rates. Thus, when using the FRA,
less ground cover is needed to prevent erosion and protect water
quality. Regardless, nothing in the rules that we are adopting today
supersedes the existing regulations at 30 CFR 816.45(a) and 817.45(a),
which require the use of appropriate sediment control measures that
prevent, to the extent possible, using the best technology currently
available, additional contributions of sediment to streamflow or to
runoff outside the permit area. Also, under 30 CFR 816.42 and 817.42,
point-source discharges must comply with applicable State or Federal
effluent limitations.
Many commenters referred to removal of the 80% requirement as a
``waiver'' of revegetation ground cover success standards. As we noted
earlier, we are not promulgating regulations that create a ``waiver''
of revegetation ground cover success standards. Instead, we are
revising the vegetative ground cover success standards for mine sites
where the postmining land uses are related to forestry. These revisions
will support the growth and survivability of trees on those postmining
land uses. The rule that we are adopting today does not alter the
existing ground cover requirements in our revegetation rules at 30 CFR
816.111(a)(3), 817.111(a)(3), 942.816(f)(3)(iii), and
942.817(e)(3)(iii), which remain in effect.
Several commenters mentioned that we should ensure that native
trees, shrubs, and other vegetation were planted to help the
revegetation of mine sites. For example, one commenter recommended that
we require revegetation using native grasses, forbs, shrubs, and trees
because these would likely not be as competitive with native trees and
they would have beneficial effects on wildlife. Another commenter
requested that we specify in the regulations that the permittee must
plant a diverse mix of trees, shrubs, and herbs native to the area to
qualify for the new revegetation requirements.
Our regulations at 30 CFR 816.111 and 817.111 provide that the
species planted must be native to the area and that introduced species
are only allowed where necessary to achieve the approved postmining
land use when authorized by the regulatory authority. Therefore, it
would be redundant to include a requirement for native species
selection as part of this rulemaking.
One commenter asked whether the removal of the 80% ground cover
standard would apply to existing sites where the fill was compacted and
the site could not meet the prior 80% ground cover success standard or
whether it would only apply to new mines that are permitted after the
rule is in effect.
The revised regulations will apply to existing or future permits
approved with postmining land uses of wildlife habitat, undeveloped
land, recreation, or forestry, but existing mines must conform to the
requirements in their reclamation plans. If an existing permit's
reclamation plan incorporates or adopts the 80% ground cover success
standard or limits the amount of bare area, the permittee must either
comply with the existing permit requirements or seek a permit revision
under 30 CFR 942.774 to modify those requirements.
C. Sections 942.816(f)(4) and 942.817(e)(4): Revegetation Success
Standards--Bare Area Restrictions
We received nine comments on our proposal to exempt mine sites
reclaimed for the purposes of wildlife habitat, undeveloped land,
recreation, or forestry from the bare area limitation requirements of
30 CFR 942.816(f)(4) and 942.817(e)(4). Seven of these comments were
unfavorable and two comments were favorable. Of the nine commenters,
three were from environmental groups, three were from academic
institutions, one was from an association representing mining States,
one was from a government agency, and one was from industry. The seven
unfavorable comments were primarily concerned about the potential for
erosion from the bare areas that the revised rules allow on reclaimed
mine sites. The commenters suggested that eliminating this standard for
mine sites reclaimed for forestry-related postmining land uses would
allow permittees to completely forego revegetation on mine sites.
We exempted mine sites with postmining land uses related to
forestry from the bare area limitation requirements of Sec. Sec.
942.816(f)(4) and 942.817(e)(4) because portions of mine sites
reclaimed using the FRA may have sparse vegetative ground cover. These
potential bare areas are desirable because they allow planted trees to
grow without the threat of competition from aggressive ground covers.
Bare areas also allow native grasses, shrubs, and trees from
surrounding areas to voluntarily reseed the reclaimed mine site.
With respect to the commenters' concerns over increased erosion and
sedimentation, our regulations will not allow reclaimed mine sites to
be completely devoid of vegetation. While the change we are making as
part of this rulemaking may result in some portions of mine sites
without vegetation, the reclamation plan and the permittee will still
have to comply with all existing regulations, including 30 CFR
816.111(a)(4) and 817.111(a)(4), which state that permittees must
establish a vegetative cover that is capable of stabilizing the soil
surface from erosion; 30 CFR 816.116(a)(3) and 817.116(a)(3), which
require that the extent of cover be at least equal in extent of cover
to the natural vegetation of the area, and 30 CFR 816.95(a) and
817.95(a), which require control of erosion on exposed surfaces.
Additionally, our bond release regulations at 30 CFR 800.40(c)(2)
provide that ``[n]o part of the bond or deposit shall be released under
this paragraph so long as the lands to which the release would be
applicable are contributing suspended solids to streamflow or runoff
outside the permit area in excess of the requirements set by section
515(b)(1)) of the Act * * *.''
One commenter noted that the proposed rule would allow bare areas
not just on sites developed for forestry, but also for wildlife
habitat, undeveloped land, and recreation. According to the commenter,
it is not clear that trees would be used in the latter three land uses.
Consequently, the commenter recommended that all three of those uses be
deleted from the regulations.
We disagree with the commenter's premise that trees would not be a
part of the reclamation plan for postmining land uses of wildlife
habitat, undeveloped land, and recreation. By including these land uses
in 30 CFR 942.816(f)(3) and 942.817(e)(3), we are requiring that the
revegetation success standards for those land uses be based primarily
on the establishment of trees and shrubs. In addition, our regulations
at 30 CFR 816.111 and 817.111 require, among other things, the
establishment of a diverse, effective, permanent vegetative cover that
is at least equal in extent of cover to the natural vegetation of the
area and capable of stabilizing the soil surface from erosion. Those
requirements apply to all mined lands regardless of the postmining land
use.
One commenter recommended that the exemption from the restriction
on bare areas be limited to those lands where trees or shrubs will
ultimately provide the majority of the ground cover.
The change in our regulations removing the bare area restriction
applies only to those postmining mine uses for which we anticipate that
trees and shrubs will provide the majority of
[[Page 9633]]
the ground cover. Therefore, there is no need to modify the rule as the
commenter suggested.
Our experience has shown that plants and trees will voluntarily
germinate on any bare areas. In fact, sites mined prior to the passage
of the Act before revegetation requirements were in effect have
reverted to forest from volunteer reseeding. Consequently, we
anticipate that bare areas will encourage natural succession, which
will assist in fulfilling the requirement of Sec. 515(b)(19) of the
Act, 30 U.S.C. 1265(b)(19), to establish a diverse, effective,
permanent vegetative cover of the seasonal variety native to the land
to be affected and capable of self-regeneration and plant succession.
D. General Comments on the Proposed Revisions to the Tennessee
Revegetation Requirements
We received numerous comments that did not address the specific
changes to the revegetation portion of the Tennessee Federal program
that we set forth in our April 6, 2006, proposed rule. Many of these
comments focused on aspects of FRA other than the ground cover change
contained in this rulemaking. While these comments are not directly
responsive to this rulemaking, we have decided to respond.
The use of the FRA is voluntary in Tennessee. However, through the
Appalachian Regional Reforestation Initiative, we are encouraging the
use of the FRA in reclaiming mine sites that include planting trees. We
believe that as more operators become aware of the effectiveness of the
FRA, an increasing number of operators will use the method to
successfully restore forests.
Several commenters stated that we are implementing the FRA without
providing any specifics about how it should be considered in the
reclamation plan, or which standards apply to lands reclaimed under the
FRA. These commenters requested that the rule include such details as
the amount and type of grading and compaction, the type and number of
trees species planted, which sites or types of mines would qualify for
the FRA, and other criteria the commenters deemed necessary for
successful implementation of the FRA.
For example, one commenter generally supported the attempt to
promote reforestation on reclaimed mine sites, but expressed concern
that we were revising our rules to adopt the FRA. The commenter pointed
out that we neither defined the FRA in the rule nor defined what
constitutes successful implementation of the FRA as a mine reclamation
practice. The commenter asserted that the rule should set forth
performance standards that must be attained in order to determine if
the FRA was implemented successfully. The commenter also suggested that
we establish performance standards that include a ``minimum stand
density'' of trees and shrubs growing with sufficient vigor to
demonstrate long-term survival and regeneration. Furthermore, the
commenter opined that the bond release term for forestry-related
reclamation should be increased to allow more time to determine whether
the reclaimed mine site has met the performance standards.
The purpose of this rulemaking is to remove regulatory barriers to
effective tree establishment and growth for those areas where trees
will be planted as part of the reclamation. With the exception of the
changes being made by this final rule, the reclamation practices
advocated by the FRA can be implemented within existing regulations.
Whether the other aspects of FRA are or are not implemented as a part
of tree planting is beyond the scope of this rulemaking since those
other aspects are within the existing performance standards related to
backfilling, grading, and revegetation. For example, the Tennessee
Federal program at 30 CFR 942.816(f)(3)(i) and (ii) and 30 CFR
942.817(e)(3)(i) and (ii) already provides that revegetation success
standards for postmining land uses involving woody plants must include
stocking and planting arrangement requirements. Additionally, section
515(b)(20) of SMCRA, 30 U.S.C. 1265(b)(20), establishes the
revegetation responsibility period at five years after the last year of
augmented seeding, fertilizing, irrigation, or other work (excluding
normal husbandry practices).
Several commenters noted that the FRA and the changes made by this
rulemaking should be conducted first as a pilot program. Specifically,
one commenter stated that this rule should be considered experimental
and provisionally implemented only on a predetermined, relatively small
area until its feasibility and efficacy can be documented. Similarly,
another commenter stated that permits should only be granted when a
permittee can demonstrate that the proposed reclamation techniques have
proven successful on mine sites with similar characteristics. In
addition, another commenter suggested that we should reevaluate whether
any mine can comply with SMCRA's revegetation requirements rather than
embark upon another unproven experiment. The commenter noted that some
permittees have previously attempted reforestation of postmining land
and have either failed or met with something far less than success.
The benefits of reduced ground cover for tree seedling
establishment and growth have been demonstrated by research conducted
by major universities throughout the United States. In further support
of our conclusion, one commenter submitted additional research in
support of the FRA's techniques. The research provided by the commenter
indicates that native trees often show poor growth in areas with heavy
ground cover and that the use of less-competitive native grasses can
aid in forest succession.
Various commenters expressed their opinions regarding aspects of
the potential effects of reduced compaction. Some commenters expressed
concerns that the language of the rule did not address compaction and
grading and suggested that we promulgate new regulations specific to
the reduced grading and compaction of the soil under the FRA. One
commenter asserted that the preamble to our proposed rule created a
hidden rule setting forth guidance for grading and reduced compaction
of soil on mine sites.
Our revision to these rules only removes regulatory barriers that
impede successful establishment of trees. While minimizing compaction
is a critical part of successful forest restoration, there is
sufficient flexibility within existing rules to provide for it. Our
existing rules provide specific standards addressing erosion control,
sedimentation, water quality, and other related issues that are not
affected by this rulemaking. Further, the rule promulgated here is
designed to address variations in compaction. As compaction is reduced,
infiltration is increased and runoff is reduced. This rule requires
that ground cover in areas where trees are planted be limited to that
necessary to control erosion and support the postmining land use.
Therefore, where compaction and runoff are high, more ground cover will
be required. Where compaction and runoff are low, less ground cover
will be required.
Some commenters expressed concerns that loose grading of the
topsoil or topsoil substitute would cause erosion and sedimentation,
especially on steep slopes. One commenter, for example, expressed
concerns that the rule change would allow placement of loose or
uncompacted soil on mine sites with steep slopes, which would cause
high levels of erosion. The commenter noted that nothing in the rule
requires mine operators to increase the capacity of
[[Page 9634]]
erosion and sedimentation controls to accommodate the increased
sedimentation.
Again, there is nothing in this rule that modifies existing
regulatory requirements related to compaction and the rule continues to
require ground cover sufficient to control erosion.
Another commenter expressed concerns about the effects that
sedimentation from mining will have on populations of rare and
endangered species in streams. In response, we note that this rule
still requires control of erosion and that nothing in this rule alters
our regulations concerning protection of fish and wildlife, including
threatened and endangered species. See 30 CFR 780.16, 784.21, 816.97
and 817.97. All operations must continue to comply with those
regulations. Furthermore, this rule will promote more rapid restoration
of forest cover on mined lands, which will benefit stream quality and
associated wildlife.
Another commenter suggested that the provisions of the FRA for
loose grading of topsoil or topsoil substitutes would lead to more
water infiltration into reclaimed backfill areas and that excessive
water in the backfill would contribute to landslides.
In response, we again note that this rule does not alter existing
stability requirements, including the regulations related to
backfilling and grading. For example, 30 CFR 816.102(c) requires spoils
to be compacted where advisable to ensure stability.
One commenter expressed concerns about the difference in
sedimentation between tree-only plantings versus plantings with a more
diverse cover. In addition, the commenter questioned how these
differences in cover related to sequestering nutrients, controlling
flooding, capturing water for recharging aquifers, and developing
fertile soils.
Our changes to the ground cover standards in the Tennessee Federal
program do not alter any regulations regarding soil erosion. The
regulations at 30 CFR 816.45(a) and 30 CFR 817.45(a) require the use of
appropriate sediment control measures to prevent, to the extent
possible, additional contributions of suspended solids to streamflow or
to runoff outside the permit area. Additionally, the regulations at 30
CFR 816.111(a)(4) and 30 CFR 817.111(a)(4) require all permittees to
establish a vegetative cover on all reclaimed areas that is capable of
stabilizing the soil surface from erosion. All Tennessee mine sites
must still comply with these regulations.
One commenter also suggested that permittees might not adopt the
FRA because they would have to dispose of the extra spoil resulting
from not compacting soil materials. Again, there is nothing in this
rulemaking that alters backfilling or compaction standards. This
rulemaking is limited to the ground cover aspect of FRA.
Several commenters suggested types of materials that could be used
to provide or enhance a tree-friendly growing medium. For example, one
commenter recommended that we require permittees to gather fallen
leaves from urban areas to amend soils on reclaimed surface mines.
Another commenter advocated the use of biosolids for reclaiming mine
lands. The commenter noted that biosolids counteract the sulfur and
other pyrite and acidic materials in mine spoils, bring the pH back to
neutral, and provide large amounts of organic materials. Another
commenter advocated requiring permittees to improve mine soils.
We acknowledge that the soil supplements advocated by the
commenters may have value, but these comments are outside the scope of
this rulemaking.
One commenter advocated saving all the topsoil or organic matter on
mine sites. In response, we note that the Federal regulations at 30 CFR
816.22 and 30 CFR 817.22 already require the salvage of topsoil,
including the organic layer, unless the regulatory authority approves
the use of a topsoil substitute that is equal to or more suitable for
sustaining vegetation than the original topsoil.
One commenter requested increased permittee maintenance of sites
after planting because animals and landslides destroy trees and shrubs.
Our existing regulations provide sufficient safeguards to ensure
the stability of the land and the adequacy of revegetation on reclaimed
mine sites. At 30 CFR 942.816(f)(3) and 942.817(e)(3), the Tennessee
Federal program provides success standards for trees and shrubs on
sites with a postmining land use of wildlife habitat, undeveloped land,
recreation, or forestry. These regulations require that at least 80% of
trees and shrubs have been in place for at least three growing seasons
and that the trees and shrubs must be healthy. According to those
regulations, no trees and shrubs in place for less than two growing
seasons may be counted in determining stocking adequacy. Those
regulations also provide that vegetative ground cover must not be less
than that required to achieve the approved postmining land use. In
addition, under 30 CFR 816.116(c) and 817.116(c), the revegetation
responsibility period in Tennessee extends for five full years after
the last year of augmented seeding, fertilization, irrigation or work
other than normal husbandry practices. This rulemaking does not affect
any of these rules.
One commenter expressed concern that mining operations would cause
the death of small animals. The commenter noted, for example, that
there are genetically isolated, evolutionarily distinct, and unique
species of amphibians and reptiles in the Cumberland Mountains. The
commenter stated that OSM needs to consider the effect of mining on the
biological heritage of animals as well as plants.
While these comments are outside the scope of this rulemaking, the
existing Federal regulations at 30 CFR 780.16 and 784.21 provide that
applications for surface coal mining operations must include a fish and
wildlife protection and enhancement plan. This plan must include a
description of how, to the extent possible, using the best technology
currently available, the operator will minimize disturbances and avoid
adverse impacts on fish and wildlife and related environmental values,
including compliance with the Endangered Species Act, during the
operations and how enhancement of these resources will be achieved
where practicable.
A commenter suggested that we require public review of reclamation
plans and regular inspections of mine sites.
Again, while this comment is outside the scope of today's rule,
existing Federal regulations and the Tennessee Federal program already
provide for public review. Sections 30 CFR 773.6 and 942.773 provide
for public participation in the permitting process including procedures
for filing objections to applications. In addition, 30 CFR 842.11 and
942.842 set forth procedures for periodic Federal inspections and
monitoring.
Two commenters suggested that the rules would result in degraded
water quality at mine sites.
This rule, which limits excess ground cover where trees are
planted, still requires ground cover sufficient to control erosion.
Further, existing Federal regulations regarding control of sediment
from mine sites require prevention, to the extent possible, of
additional contributions of suspended solids to streamflow.
Additionally, under 30 CFR 816.42 and 817.42, discharges from mine
sites must comply with all applicable State and Federal water quality
laws and regulations and
[[Page 9635]]
with the effluent limitations for coal mining promulgated by the EPA as
set forth in 40 CFR Part 434. The regulations at 30 CFR 780.21 provide
for the assessment of water quality prior to mining and require a
ground and surface water monitoring plan and a hydrologic reclamation
plan. This information is to be used to minimize disturbance to the
hydrologic balance, prevent material damage outside the permit area,
and to protect the rights of present water users.
One commenter stated that the proposed amendments to the Tennessee
Federal program constitute a major Federal action that requires
detailed cumulative impact analysis and preparation of an environmental
impact statement (EIS) under the National Environmental Policy Act
(NEPA). The commenter stated that the proposed rule or an EIS should
have better addressed reforestation and revegetation reclamation
concerns and provided evidence that the proposed actions will not
affect Tennessee's watersheds, reservoirs and water resources.
We disagree with the commenter's assertions. Section 702(d) of
SMCRA specifies that the promulgation of a Federal regulatory program
for a State under section 504 of SMCRA does not constitute a major
action within the meaning of Sec. 102(2)(C) of NEPA. Therefore, there
is no need to prepare an EIS for those programs. Consequently, the
adoption of amendments to the Tennessee Federal program, which we
adopted under section 504 of SMCRA, 30 U.S.C. 1254, does not constitute
a major action within the meaning of Sec. 102(2)(C) of NEPA and does
not require preparation of an EIS.
The commenter also stated that OSM must determine the effects of
the proposed rules on the Tennessee Valley Authority's recent
Programmatic EIS and the U.S. Army Corps of Engineers' Floodplain
Management Program in Tennessee's coalfields and consult with those
agencies before enacting this rule. The commenter also stated that the
results of any consultation with various government agencies and with
individuals and organizations having an interest in the proposed
amendment are missing.
In response, we note that there is no requirement that we address
the effect of the rule on documents prepared by other agencies, and we
have addressed any comments that we received from State and Federal
agencies.
One commenter stated that the revisions to the rules give the KFO
too much discretion in determining the appropriate herbaceous
vegetative ground cover success standards.
While the revisions in this rulemaking do provide discretion to the
KFO to approve ground cover success standards, that discretion is
tempered with the existing regulations that require control of erosion.
The KFO cannot approve a reclamation plan that does not provide for
adequate erosion control from the site. For mine sites with postmining
land uses related to forestry, the KFO will require that the
permittee's reclamation plans carefully balance the need for erosion
control with a vegetative ground cover that does not interfere with
tree growth and survival.
Other commenters discussed a wide range of issues that are
unrelated to the proposed rule. We are not addressing those comments
because they are beyond the scope of this rulemaking.
V. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This document is not a significant rule and is not subject to
review by the Office of Management and Budget under Executive Order
12866.
a. This rule will not have an effect of $100 million or more on the
economy. The revisions to the bonding requirements and revegetation
standards will not adversely affect in a material way the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or Tribal governments or communities.
As discussed in the preamble to the proposed rule and the preamble
to the final rule, the bonding provisions should benefit coal operators
who experience unanticipated pollutional discharges by providing them
with an alternative financial mechanism for the treatment of AMD. The
bonding revisions will not add to the operator's cost of doing business
since the existing regulations in 30 CFR 942.800 and 30 CFR Part 800
already require that a bond amount be adequate for the cost of
reclamation and, when necessary, be adjusted to insure that adequate
funds are available. The trust funds or annuities will allow continued
treatment of postmining pollutional discharges by the operator and will
assist in preventing bankruptcies and potential bond forfeitures since
sureties will not likely fund treatment. There are approximately 52
mining operations in Tennessee with AMD problems that may avail
themselves of the new bonding provisions.
Our estimates have found that approximately 10 companies will take
advantage of the rule that eliminates the arbitrary ground cover
requirements on mine sites to be reclaimed for wildlife habitat,
undeveloped land, recreation, or forestry. Approximately 1000-1500
acres are eligible for Phase III bond release annually in Tennessee.
The changes to the rules will encourage reforestation of this acreage
and provide the basis for healthy, vigorous tree growth. While economic
benefits of reforestation to mine operators are limited, the benefits
to the environment are numerous and include: Creating diverse,
productive forests that provide watershed protection, wildlife habitat,
recreational opportunities, and remove carbon dioxide from the air.
Additionally, there are economic benefits of reforested sites because
forests can offer substantial revenue for landowners who own the trees
and job opportunities for local residents who harvest the trees and use
the lumber.
b. This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency.
c. This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients.
d. This rule does not raise novel legal or policy issues.
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
As previously stated, the revisions to the existing regulations may
benefit the regulated industry by allowing an alternative source of
bonding. Further, the rule produces no adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States enterprises to compete with foreign-based enterprises in
domestic or export markets.
Small Business Regulatory Enforcement Fairness Act
For the reasons previously stated, this rule is not a major rule
under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement
Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to
[[Page 9636]]
compete with foreign-based enterprises for the reasons stated above.
Unfunded Mandates
This rule does not impose an unfunded mandate on State, Tribal, or
local governments or the private sector of more than $100 million per
year. The rule does 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
(2 U.S.C. 1501 et seq.) is not required.
Executive Order 12630--Takings
The revisions to the Tennessee Federal program governing the use of
trust funds or annuities to fund treatment of postmining pollutional
discharges and the changes to the revegetation success standards do not
have any significant takings implications under Executive Order 12630.
Therefore, a takings implication assessment is not required.
Executive Order 12988--Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order.
Executive Order 13132--Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism implications to warrant the preparation of a
Federalism Assessment for the reasons discussed above.
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.
We have determined that the revisions would 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.
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. The revisions to the Tennessee Federal program
that govern use of trust funds or annuities to fund treatment of
postmining pollutional discharges and the changes to the revegetation
success standards will not have a significant effect on the supply,
distribution, or use of energy.
Paperwork Reduction Act
This rule does not contain collections of information which require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
promulgation of Federal programs do not constitute major Federal
actions within the meaning of section 102(2)(C) of the NEPA (42 U.S.C.
4332(2)(C)). This rulemaking was promulgated under section 504 of
SMCRA, 30 U.S.C. 1254, and therefore is not subject to NEPA
requirements.
List of Subjects in 30 CFR Part 942
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 21, 2007.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.
0
Accordingly, we are amending 30 CFR Part 942 as set forth below.
PART 942--TENNESSEE
0
1. The authority citation for 30 CFR Part 942 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Amend Sec. 942.800 by revising paragraph (a) and adding paragraph
(c) to read as follows:
Sec. 942.800 Bond and insurance requirements for surface coal mining
and reclamation operations.
(a) Except as provided in paragraphs (b) and (c) of this section,
part 800 of this chapter, Bond and Insurance Requirements for Surface
Coal Mining and Reclamation Operations Under Regulatory Programs, shall
apply to any person conducting surface mining and reclamation
operations.
(b) * * *
(c) Special consideration for sites with long-term postmining
pollutional discharges. With the approval of the Office, the permittee
may establish a trust fund, annuity or both to guarantee treatment of
long-term postmining pollutional discharges in lieu of posting one of
the bond forms listed in Sec. 800.12 of this chapter for that purpose.
The trust fund or annuity will be subject to the following conditions:
(1) The Office will determine the amount of the trust fund or
annuity, which must be adequate to meet all anticipated treatment
needs, including both capital and operational expenses.
(2) The trust fund or annuity must be in a form approved by the
Office and contain all terms and conditions required by the Office.
(3) The trust fund or annuity must provide that the United States
or the State of Tennessee is irrevocably established as the beneficiary
of the trust fund or of the proceeds from the annuity.
(4) The Office will specify the investment objectives of the trust
fund or annuity.
(5) Termination of the trust fund or annuity may occur only as
specified by the Office upon a determination that no further treatment
or other reclamation measures are necessary, that a replacement bond or
another financial instrument has been posted, or that the
administration of the trust fund or annuity in accordance with its
purpose requires termination.
(6) Release of money from the trust fund or annuity may be made
only upon written authorization of the Office or according to a
schedule established in the agreement accompanying the trust fund or
annuity.
(7) A financial institution or company serving as a trustee or
issuing an annuity must be one of the following:
(i) A bank or trust company chartered by the Tennessee Department
of Financial Institutions;
(ii) A national bank chartered by the Office of the Comptroller of
the Currency;
(iii) An operating subsidiary of a national bank chartered by the
Office of the Comptroller of the Currency;
(iv) An insurance company licensed or authorized to do business in
Tennessee by the Tennessee Department of Commerce and Insurance or
designated by the Commissioner of that Department as an eligible
surplus lines insurer; or
(v) Any other financial institution or company with trust powers
and with offices located in Tennessee, provided that the institution's
or company's activities are examined or regulated by a State or Federal
agency.
(8) Trust funds and annuities, as described in this paragraph, must
be established in a manner that guarantees that sufficient moneys will
be available to pay for treatment of postmining pollutional discharges
(including maintenance, renovation, and replacement of treatment and
support facilities as needed), the reclamation of the sites upon which
treatment facilities are located and areas used in support of those
facilities.
[[Page 9637]]
(9) When a trust fund or annuity is in place and fully funded, the
Office may approve release under Sec. 800.40(c)(3) of this chapter of
conventional bonds posted for a permit or permit increment, provided
that, apart from the pollutional discharge and associated treatment
facilities, the area fully meets all applicable reclamation
requirements and the trust fund or annuity is sufficient for treatment
of pollutional discharges and reclamation of all areas involved in such
treatment. The portion of the permit required for postmining water
treatment must remain bonded. However, the trust fund or annuity may
serve as that bond.
0
3. In Sec. 942.816, revise paragraph (f)(3) introductory text and
paragraph (f)(4) as follows:
Sec. 942.816 Performance standards--Surface mining activities.
* * * * *
(f) * * *
(3) For areas developed for wildlife habitat, undeveloped land,
recreation, or forestry, the stocking of woody plants must be at least
equal to the rates specified in the approved reclamation plan. To
minimize competition with woody plants, herbaceous ground cover should
be limited to that necessary to control erosion and support the
postmining land use. Seed mixes and seeding rates will be specified in
the permit.
* * * * *
(4) Bare areas shall not exceed one-sixteenth (1/16) acre in size
and total not more than ten percent (10%) of the area seeded, except
for areas developed for wildlife habitat, undeveloped land, recreation,
or forestry.
0
4. In Sec. 942.817, revise paragraph (e)(3) introductory text and
paragraph (e)(4) as follows:
Sec. 942.817 Performance standards--Underground mining activities.
* * * * *
(e) * * *
(3) For areas developed for wildlife habitat, undeveloped land,
recreation, or forestry, the stocking of woody plants must be at least
equal to the rates specified in the approved reclamation plan. To
minimize competition with woody plants, herbaceous ground cover should
be limited to that necessary to control erosion and support the
postmining land use. Seed mixes and seeding rates will be specified in
the permit.
* * * * *
(4) Bare areas shall not exceed one-sixteenth (1/16) acre in size
and total not more than ten percent (10%) of the area seeded, except
for areas developed for wildlife habitat, undeveloped land, recreation,
or forestry.
[FR Doc. E7-3649 Filed 3-1-07; 8:45 am]
BILLING CODE 4310-05-P