CHAPTER 6 LEGAL AUTHORITIES FOR ABANDONED MINE RECLAMATION BY A CERTIFIED STATE UNDER SMCRA: THE MONTANA PROGRAM

• Jurisdiction: United States

Mine Closure, Financial Assurance, and Final Reclamation
(Nov 2009)
CHAPTER 6
LEGAL AUTHORITIES FOR ABANDONED MINE RECLAMATION BY A CERTIFIED STATE UNDER SMCRA: THE MONTANA PROGRAM
Thomas E. Root
Special Assistant Attorney General
State of Montana
Department of Environmental Quality
Abandoned Mined Land Reclamation Program
Helena, Montana

Thomas E. Root received his bachelor's degree from the University of Colorado (BA - English Literature, 1970), a law degree from the University of Wyoming (JD, 1973), and master's degrees from the University of Denver (Environmental Policy and Management, 1996, Law, 1998). He taught law periodically at the University of Denver College of Law from 1980 -2002, where he is an adjunct professor of law. He was an editor and author of the American Law of Mining, 2nd (Rocky Mountain Mineral Law Foundation, 1988). He wrote a monograph on the history of railroad land grants for the American Bar Association (Land Grants from Canals to Transcontinentals, ABA Press). He has authored law review articles which were published by the University of Wyoming, the Rocky Mountain Mineral Law Foundation and the American Bar Association. He has served as Trustee of the Denver Bar Association, Chairman of the Geothermal Energy and Coal Committees of the American Bar Association, and as a member of the governing Council of the Section on Natural Resources, Energy and Environmental Law. He participated in the permitting/licensing of three mine/mill complexes, was project manager of a six billion ton coal project, and successfully litigated five water rights cases before the Idaho Supreme Court. He has represented clients at hardrock Superfund sites in Colorado, Idaho and Montana. He represented clients who undertook voluntary cleanups throughout the United States. He currently is a special assistant attorney general with the State of Montana Department of Environmental Quality, Remediation Division, in Helena, Montana, representing the Abandoned Mine Land Reclamation Program in reclamation of abandoned coal and non-coal mined lands. He is admitted to practice law in the states of Montana, Illinois and Colorado, the Seventh, Ninth and Tenth Federal Circuit Courts of Appeal, and the United States Supreme Court.

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TABLE OF CONTENTS

I. Introduction

A. Purpose

B. Background and Overview

1. Title IV of SMCRA

2. Focus of Title IV - Funding For Reclamation

3. Focus of Montana Program - Reclamation, Compliance with Federal and State Requirements, Funding, Preservation of Federal Shield for Reclamation

C. Use of These Materials

1. A Cautionary Note on Names of Entities Referred To In These Materials, Defined Terms, and Responsibility for Errors

II. Some Background on Abandoned Mines

A. Basic Mining Technology

1. Prior Mining Activity - The Condition Precedent for Abandoned Mine Reclamation

B. Life Cycle of a Mine

C. Hazards at Abandoned Mines

1. Introduction

2. Physical Hazards

3. Chemical Hazards

4. Results of Hazards

III. Federal Legislation Affecting Abandoned Mines - Surface Mine Control and Reclamation Act of 1977 - Title IV

A. Background

B. Some Legislative History of SMCRA and Title IV

C. Amendments to SMCRA Title IV - 1977 To 2006

D. A Brief Summary of Title IV Prior to 2006 Amendments

1. Section 401 - Abandoned Mine Reclamation Fund

2. Section 402 - Reclamation Fee

3. Section 403 - Objectives of the Abandoned Mine Reclamation Fund

4. Section 404 - Eligible Lands and Water

5. Section 405 - State Reclamation Program

6. Section 406 - Reclamation of Rural Lands

7. Section 407 - Acquisition and Reclamation of Land Adversely Affected By Past Mining Practices

8. Section 408 - Liens

9. Section 409 - Filling Voids and Sealing Tunnels

10. Section 410 - Emergency Powers

11. Section 411 - Certification

12. Section 412 - Annual Report to Congress

13. Section 413 - Powers of Secretary of the Interior or State

14. Section 414 - Inter-Agency Cooperation

E. Implementation of Title IV from 1977 to 2006 - OSM Activity Addressing Abandoned Mine Reclamation

1. Organization of OSM

2. OSM Abandoned Mine Reclamation Expenditures

3. Reclamation Fee Funding Of State Reclamation Activities - The Grant Process

a) Statutory Authority for the Grant Process

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b) Types of Grants- Administration and Construction Grants

c) Post-Approval Changes to Grants

F. 2006 Amendments to Title IV

1. Background

2. Reclamation Fee - Changes in Amount and Time of Assessment

3. Distribution - Changes in Distribution to States and Tribes

4. Interest on Funds Retained By OSM - UMW Retiree Funds

5. Distribution - Mechanics of Distribution by OSM

a) OSM Response to 2006 Amendments

6. Regulations Promulgated after 2006 Amendments

a) Issuance of Regulations Covering 2006 Amendments for Title IV - herein the "Final Rule"

(1) Limited Liability

(2) Reclamation Plan Modification

(3) NEPA Compliance

(4) Liens

b) FAM Directive GMT-10-13

7. Summary

IV. Authority under State Law to Implement the Federal Abandoned Mined Land Reclamation Program

A. SMCRA, State Statutory Authority, and Approved Reclamation Plan

1. SMCRA Requirements for Approval of Reclamation Plan

2. Contents of the Approved Montana Reclamation Plan, as amended

B. State Certification

C. Conclusion

V. State Implementation of Abandoned Mine Reclamation - The Montana Program

A. Amounts Received and Expended From Reclamation Fees 1977 - 2006

B. 2007 Activities

C. Organization and Responsibilities of Montana Abandoned Mines Section

1. Organization

D. Contract - The Vehicle for Reclamation

1. Scope of Reclamation Activity

a) Purpose

b) Activities

(1) Pre-Construction Activities

(2) Activity between Pre-Construction and Construction - Preparation of Bid Package and the Bidding Process

(3) Construction

(4) Post-Construction Activities

(5) Emergencies

2. Subject Matter of Abandoned Mine Section Contracts; Interagency Agreements

3. Method of Securing Contracts - Procurement

a) Introduction

b) Administration of Procurement

(1) General Rule

(2) Statutory Exceptions

(3) Conclusion

c) Delegation of Procurement Authority by Agreement

(1) Delegation of Level Two Authority

(2) Specific Delegation of Authority

d) Summary

4. Ordering Goods and Services - The Task Order

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a) Task Order Contents

b) Task Order Reports

VI. Abandoned Mine Reclamation - Pre-Construction Activity and Procedures

A. Preliminary Matters

1. Purpose and Categories Of Abandoned Mine Section Pre-Construction Activity

2. Caveat - Liability for Reclamation

a) SMCRA and CERCLA - The Shield from Federal Liability

B. Steps in the Montana Reclamation Process

1. Step 1: The Preliminary Assessment

a) Site Identification and Inventory of Abandoned Mine Sites

b) Investigation of Abandoned Mine Sites

c) Establishment of Priorities for Reclamation

2. Step 2: Ownership Determination, Owner/Operator Investigation and Consent for Entry

a) Summary

b) Ownership Determination

c) Owner/Operator Investigation

d) Consent for Entry

(1) Adverse Entry

3. Step 3: Community Relations Plan (CRP)

4. Step 4: Reclamation Work Plan

5. Step 5: Cultural Resources, Threatened and Endangered Species Investigations

a) Cultural Resources

(1) National Historic Preservation Act

b) Endangered Species

6. Step 6: Site Characterization

7. Step 7: Human and Ecologic Risk Assessment; Reclamation Goals

8. Step 8: Expanded Engineering Evaluation Cost Analysis (EEE/CA)

a) The NCP Model - Objectives for Engineering Evaluation/Cost Analysis (EE/CA)

b) The Montana Abandoned Mined Land Reclamation Section Approach - Addition of Components to Satisfy Related Federal Requirements: The Expanded Engineering Evaluation/Cost Analysis (EEE/CA)

(1) National Environmental Policy Act Component

(2) Montana Environmental Policy Act Component

(3) Synthesis of NEPA and MEPA Components

(4) Cleanup Standards (ARARS)

(a) ARARS for Removal Actions

(b) Identification of ARARs in the EEE/CA

9. Step 9: Environmental Justice

10. Step 10: 30 Day Comment Period

11. Conclusion

VII. Transition from Pre-Construction to Construction - Preparation of the Bid Package and the Bidding Process for Construction

A. Introduction

1. Definition of Construction

2. Definition of Project

3. Choice of a "Package"

a) Introduction

b) Design-Bid-Build Construction Package

c) Fixed Unit Price Construction Contract

B. The Bidding Process

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1. Sealed Bidding - Policy Objectives

2. Sealed Bidding - Strict Compliance Required

3. Sealed Bidding - Mechanics, Elements, And Sequencing

4. Preparation of Bid Package

5. Contractor Submission of Bid

6. Bid Opening; "Firm Bid Rule"

7. Evaluation of Bids

a) Responsiveness

b) Responsibility

c) Timing

d) Price

8. Award

9. Protest of Award

C. Components of Construction Bid Package

1. Invitation for Bid Cover Sheet

2. Standard Terms and Conditions

3. Table of Contents

4. Information for Bidders

a) Invitation for Bid

b) Instructions to Bidders

(1) Attachments to Instructions to Bidders

5. Contract Documents

a) Part I. - Bid Documents

(1) Bid Form

(2) Contractor Personnel and Proposed Project Approach; Contractor Questionnaire and Ownership Information; Bonds, Insurance, and Schedule

b) Part 2 - Contract Documents

(1) General Conditions

(2) Supplementary Conditions

(a) Attachments to Supplementary Conditions

(3) Special Provisions

(a) Attachment A - Miscellaneous Provisions

(4) Technical Specifications

(5) Project

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