What does the Infrastructure Investment and Jobs Act mean for OSMRE's AML Program?

• OSMRE Announces Bipartisan Infrastructure Law Informal Listening Sessions

From the Department of the Interior

• Biden-Harris Administration Announces More Than $2.3 Million to Create Good-Paying Union Jobs, Catalyze Economic Revitalization in Alaska and Texas (December 2022)
• Biden-Harris Administration Announces More Than $109 Million to Create Good-Paying Union Jobs, Catalyze Economic Revitalization (November 2022)
• Biden-Harris Administration Announces More Than $140 Million to Create Good-Paying Union Jobs, Catalyze Economic Revitalization in West Virginia (October 2022)
• Biden-Harris Administration Announces New Funding for Maryland, Ohio and Virginia to Create Good-Paying Union Jobs, Catalyze Economic Revitalization (October 2022)
• Biden-Harris Administration Announces More Than $74 Million to Create Good-Paying Union Jobs, Catalyze Economic Revitalization in Kentucky (October 2022)
• Biden-Harris Administration Announces Availability of $725 Million from Bipartisan Infrastructure Law to Clean Up Legacy Pollution (August 2022)
• Biden-Harris Administration Releases Draft Guidance, Invites Public Comment on Bipartisan Infrastructure Law Abandoned Mine Land Grant Program (May 2022)
• Biden-Harris Administration Announces $144 Million to Create Good-Paying Union Jobs, Revitalize Coal Communities (March 2022)
• DOI News Release: Biden Administration Announces Nearly $725 Million to Create Good-Paying Union Jobs, Catalyze Economic Revitalization in Coal Communities (February 2022)
• DOI News Release: Interior Department Extends Abandoned Mine Land Program Through 2034 (January 2022)
• DOI News Release: Secretary Haaland Highlights Bipartisan Infrastructure Law Investments in Visit to California (December 2021)
• DOI News Release: Secretary Haaland Highlights Bipartisan Infrastructure Law During Maryland Visit (November 2021)
• DOI News Release: Bipartisan Infrastructure Deal Will Clean Up Legacy Pollution, Protect Public Health (November 2021)

From the Biden-Harris White House

• Watch President Biden's remarks on the Infrastructure Law
• White House fact sheet: Bipartisan Infrastructure Investment and Jobs Act
• President Biden's Statement on the passage of the Infrastructure Law
• Notice of Reauthorization of Fee Collection Authority

• States and tribes have been getting AML money every year for decades – is this just the same? 

No – the annual AML fee-based grants that States and Tribes receive are separate from the Bipartisan Infrastructure Law (BIL) AML grants. The AML fee-based grants are funded primarily by reclamation fees and distributed as required by section 402 of SMCRA, while the BIL AML grants are funded from the United States Treasury and will be distributed as required by section 40701 of the BIL. 

The distribution announced on February 7, 2022, was the first of 15 annual installments under the BIL that will provide approximately $10.87 billion (after BIL-directed reductions) for AML reclamation projects, in addition to funds available under AML-fee based grants. The BIL AML guidance document published on July 21, 2022, provides additional details on the BIL AML grants and expectations for the program for fiscal year (FY) 2022. OSMRE is issuing FY 2023 BIL AML guidance with the FY 2023 BIL AML distribution.

• The FY 2022 BIL AML Grant Distribution was announced on February 7, 2022. Does this announcement represent a one-time distribution amount to states and Tribes?  

No. As directed by the Law, OSMRE will be distributing approximately $725 million annually for 15 years, beginning in FY2022. Eligible states and Tribes will receive these annual Law AML grant distributions for the remaining years, subject to any required adjustments. The first round of BIL AML grant funds were distributed in FY 2022.The second round of BIL AML grant funds will be distributed in June 2023.

• What formula was used to determine how much BIL AML funding each State and Tribe gets in FY 2022? 

As directed by the BIL, the distribution amounts were based on the number of tons of coal historically produced in each State or from the applicable Indian lands before August 3, 1977. OSMRE relied on the March 1980 Final Environmental Impact Statement (OSM-EIS-2) to ascertain these amounts and then calculated each State’s or Tribe’s percentage of total historic coal production. Once calculated, that percentage was simply multiplied by $10.87 billion and divided by 15 – with the exception of Alaska. 

• Why are there exceptions?  

The BIL provides that the total amount of BIL grant funding that each eligible State or Tribe receives over the life of the program will not be less than $20 million, unless the State or Tribe has less than $20 million in unfunded AML reclamation costs.

In FY 2022, Alaska had an unfunded inventory of roughly $25.8 million, so its 15-year allocation was increased from $3.3 million (under the formula) to raise its total to $20 million. The roughly $16.7 million in extra funds to Alaska resulted from a recalculation among the States and Tribes in proportion to their historic coal percentage. The same calculation methodology was applied to Alaska in FY 2023, resulting in a grant distribution amount of $1.3 million.

• How will the BIL AML distribution amounts be calculated in FY2023?

  The historic coal production numbers in the March 1980 Final Environmental Impact Statement will not change (OSM-EIS-2). However, as eligible States and Tribes update their inventories, OSMRE will adjust distributions to ensure that each eligible State and Tribe receives at least $20 million over the course of the 15-year distribution, unless the amount needed for reclamation on State and Tribal lands is less than $20 million.  

• Was the same calculation methodology for FY 2022 applied to the FY 2023 BIL AML distribution amounts?  

  Yes.

• How do states and tribes reconcile recommended labor provisions in the Bipartisan Infrastructure Law AML guidance document that conflict with state or tribal bid laws and regulations?

States and Tribes are encouraged to meet the recommendations set forth in the BIL AML guidance document to the extent those steps are possible and consistent with applicable State or Tribal laws and regulations.

• Do states and tribes need to use the Council on Environmental Quality (CEQ) Climate and Economic Justice Screening Tool (CEJST) map to identify a “disadvantaged community” to calculate benefits in relation to the Justice40 Initiative?

Yes. The primary resource to identify disadvantaged communities is Version 1 of the Climate and Economic Justice Screening Tool (CEJST) that was developed by the Council on Environmental Quality (CEQ) (screeningtool.geoplatform.gov) and released on November 22, 2022. Another tool to identify disadvantaged communities is available from the Environmental Protection Agency (EPA) at ejscreen.epa.gov/mapper.

A community may be considered disadvantaged based on a combination of: low income; high and/or persistent poverty; high unemployment and underemployment; racial and ethnic residential segregation, particularly where the segregation stems from discrimination by government entities; linguistic isolation; high housing cost burden and substandard housing; distressed neighborhoods; high transportation cost burden and/or low transportation access; disproportionate environmental stressor burden and high cumulative impacts; limited water and sanitation access and affordability; disproportionate impacts from climate change; high energy cost burden and low energy access; jobs lost through the energy transition; access to healthcare; and geographic areas within Tribal jurisdictions. A community may also be considered a disadvantaged community if it is included in the Climate and Economic Justice Screening Tool. (Definition adapted from OMB and CEQ Interim Implementation Guidance for the Justice40 Initiative (M-21-28) dated July 20, 2021.)

• When will States and Tribes actually get the FY 2023 money? 

We expect eligible States and Tribes will start applying for the FY 2023 funds in June 2023. OSMRE will also publish minor revisions to the final BIL Guidance in June 2023, with pertinent information explaining how eligible States and Tribes may apply for the second BIL distribution of $725 million.

• Will States and Tribes be able to apply for these BIL funds each year?   

Yes. Eligible States and Tribes will be able to apply annually for the amount specified in each fiscal year’s BIL grant distribution. 

• Will States and Tribes be required to submit separate grant applications for BIL AML grants and the AML-fee-based grants? 

Yes. OSMRE is requiring a separate grant application for BIL AML funding to ensure—consistent with federal financial assistance requirements—its ability to track the expenditure of BIL funds, ensure proper oversight of taxpayer dollars, facilitate audit reviews, be responsive to reporting requirements, and enhance transparency about the use of funds. OSMRE will continue to work with the States and Tribes to develop procedures that minimize burdens on applicants resulting from separate BIL and fee-based AML applications.

• When does OSMRE plan to provide funding to assist States and Tribes with making amendments to the coal AML inventory system, e-AMLIS?

OSMRE expects to announce the availability of funding to assist States and Tribes in updating their e-AMLIS inventories before September 30, 2023.

• For AML projects where OSMRE has completed its NEPA review and issued an Authorization to Proceed (ATP) to States or Tribes, will OSMRE require the States or Tribes to resubmit that paperwork for an additional ATP approval using BIL funds, or allow those projects to proceed under prior approvals? 

Assuming there has been no change in the scope of work and all legal requirements (e.g., compliance with the Davis-Bacon Act, and Build America, Buy America Act) have been or will be met, States and Tribes will not need to resubmit projects with a completed NEPA analysis and an ATP to use BIL funding. 

• Will former and current employees of coal-fired power plants be considered “former and current employees of the coal industry” for purposes of the Law implementation?

Yes.

• What information must be included in FY2023 grant applications? Only the information that is typically included in grant applications, or something more? For example, the FY2023 Notice of Funding Opportunity lists four things from the Guidance that are supposed to be prioritized: Justice 40/disadvantaged communities, public review of projects, methane reductions, and coal industry worker employment. Does information on those things need to be included in the FY2023 grant application? If so, what kind of information is required?

In order to receive FY2023 BIL funds, grant applications must include a budget justification breakdown explaining how funds will be allocated in the BIL AML subaccounts (see Appendix I: Subaccounts for BIL AML Financial Assistance), and a Program Narrative summarizing how project selection practices will achieve reclamation, and socio-economic benefits.  

To receive FY 2022 BIL AML funds, a State’s or Tribe’s completed grant application must include the OMB-approved forms identified in the BIL AML Grant Notice of Funding Opportunity in order to process required assistance agreement (i.e., signed application for Federal Assistance -SF-424 and related forms, budget justification forms, program narrative forms, etc.). 

• Will States/Tribes be allowed to consolidate the administrative costs they charge to AML grants to one form of grant, e.g., put all administrative costs for both their AML fee-funded and BIL grant-funded AML work on their BIL grant?

No. As required under the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards, at 2 CFR Part 200, Subpart D, grant funds must be expended and accounted for in accordance with applicable statutory authorities and through adequate fiscal control procedures so that the expenditure of these funds can be monitored and tracked to ensure compliance with the assistance agreement. It is imperative to maintain an effective system of controls and accountability for the use of these funds that ensure alignment with the activities supported by the grant agreement.

• How will the period of performance for the BIL grants be determined? How much flexibility will States and Tribes have to receive funds at different times to better align with their unique financial situations?

The period of performance for each BIL AML grant is five years from the award issue date. OSMRE will, however, work with each State and Tribe to address its unique situation where appropriate.  

• What information will need to be included in FY23 BIL grant applications?  Only the items in Appendix II, or also some or all of the bulleted items listed under the section “When applying for BIL AML grants, State and Tribal AML programs should include:” (Section V, of the BIL AML Guidance documents)?

In order to receive the FY2023 BIL funds, grant applications must include a budget justification breakdown of how the funds will be allocated in the BIL AML subaccounts (see Appendix I: Subaccounts for BIL AML Financial Assistance), and a Program Narrative summarizing how project selection practices will achieve reclamation, remediation, and socio-economic benefits.  

To receive FY 2023 BIL AML funds, a State’s or Tribe’s completed grant application must include the OMB-approved forms identified in the BIL AML Grant Notice of Funding Opportunity (i.e., signed application for Federal Assistance SF-424 and related forms, budget justification forms, program narrative forms, etc.). 

In addition, Appendix II of the BIL AML Guidance must be submitted as part of the FY 2023 grant application. As indicated in the BIL AML Guidance, Appendix II will be comprised of a list of Problem Area Descriptions (PADs) with AML problems that are proposed to be funded within the 5-year grant period of performance.  Appendix II will also include the types of AML problems within the PAD, the county within each State where the PADs and problems are located, the estimated costs derived from e-AMLIS of the problems within a PAD and the specific problems within each listed PAD proposed to be reclaimed within the grant period.

OSMRE encourages States and Tribes to include the following information at the time of the grant application (see Section V of the BIL AML Guidance):

• A Statement of how the State or Tribe will prioritize projects employing current or former employees of the coal industry, consistent with applicable State or Tribal law;
• Plans for engaging with other Federal, State, Tribal, or local governmental agencies and non- governmental entities on workforce training and development issues, including how activities encouraged under Section III  of the BIL AML Guidance will be implemented, if applicable, along with the names of potential partners to support recruiting and training efforts, including community colleges, workforce partners, community-based groups, and unions;
• Any known linkages to economic redevelopment opportunities created by carrying out proposed projects;
• A description of how the grantee will address environmental justice issues within coalfield communities;
• Details of how the grantee will engage with relevant State, Tribal, or local governmental agencies or non-governmental organizations to identify and address any disproportionate burden of adverse human health or environmental effects of coal AML problems on disadvantaged communities, communities of color, low-income communities, and Tribal and Indigenous communities;
• A description of whether and to what extent proposed projects may reduce greenhouse gas emissions, particularly methane emissions; and
• Proposed performance measurements.

• Will States and Tribes be required to update their existing AML Reclamation Plans?  

Yes. OSMRE is providing additional information to each State and Tribe about the nature of the updates that their specific AML Reclamation Plans may need. In addition, OSMRE will continue to schedule informal engagement meetings with each State and Tribe receiving BIL funds to discuss these Reclamation Plan updates.

• Will States and Tribes be allowed to receive BIL funding if they have not completed updates to their AML Reclamation Plans?     

Yes. States and Tribes are not required to complete the AML Reclamation Plan update, review, and approval process as a prerequisite to receiving BIL funds. However, we encourage States and Tribes to begin the informal review of their AML Reclamation Plans by collaborating with OSMRE in anticipation of issuance of formal 884 letters. Once the 884 letters have been issued, OSMRE and each State/Tribe will negotiate a schedule for completing and submitting a formal reclamation plan amendment.

• Pursuant to section 40701 of the BIL, may eligible States and Tribes use grant funds to design and build AMD treatment facilities? If so, may grant funds be used to design and build AMD treatment facilities that are “stand alone” Priority 3 projects (i.e., not in conjunction with a Priority 1 or Priority 2 site or within a qualified hydrologic unit)?

Yes. Eligible States and Tribes may use BIL AML grant funds to design and build AMD treatment facilities and may use those funds to design and build AMD treatment facilities that are not in conjunction with a Priority 1 or Priority 2 site or within a qualified hydrologic unit. Section 40701(c) of the BIL authorizes grant recipients to use BIL funds for (1) the “activities described in subsections (a) and (b) of section 403 and section 410 of [SMCRA],” and (2) deposit in a long-term abandoned mine land reclamation fund if those amounts are used for, among other things, “the abatement of the causes and the treatment of the effects of acid mine drainage resulting from coal mining practices, including for the costs of building, operating, maintaining, and rehabilitating acid mine drainage treatment systems.” Nothing in the BIL explicitly or implicitly incorporates other law that might limit expenditures for AMD treatment facilities to those that are in conjunction with a Priority 1 or Priority 2 site or within a qualified hydrologic unit, e.g., section 402(g) of SMCRA.

• Pursuant to section 40701 of the BIL, may eligible States and Tribes use grant funds to operate, maintain, and rehabilitate AMD treatment facilities?

Yes. Eligible States and Tribes may use BIL AML grant funds to operate, maintain, and rehabilitate AMD treatment facilities as part of the activities described in section 40701(c) of the BIL. These uses are contemplated by the BIL, and nothing in the relevant portions of the BIL or SMCRA forecloses these uses.

• Pursuant to the Consolidated Appropriations Act, 2023, which amended section 40701 of the BIL, may eligible States and Tribes place a portion of their BIL grant funds into their AMD set aside accounts?

Eligible States and Tribes may place up to 30% of their BIL AML grant funds into a long-term abandoned mine land reclamation fund. When requesting these funds in your grant application, please use the new subaccount (see Appendix I: Subaccounts for BIL AML Financial Assistance). Due to the annual reporting requirements on the status of these funds as required under the Consolidated Appropriations Act, 2023, it is incumbent upon each State and Tribe to ensure that moneys retained in their long-term abandoned mine land reclamation funds can be tracked separately from the AMD set aside funds established under the SMCRA Title IV AML fee-based program and that adequate fiscal control measures are put in place so that the expenditure of these funds can be monitored and tracked to ensure compliance with the assistance agreement.

States and Tribes can expend BIL funds placed in a long-term abandoned mine land reclamation fund to address only coal-related acid mine drainage, underground mine fires, and subsidence, provided that their existing State or Tribal law allows for the establishment of these interest-bearing accounts and that it is consistent with other federal laws, such as the Cash Management Improvement Act of 1990, 31 U.S.C. § 6501.

• Will AML projects funded by a State’s or Tribe’s long-term abandoned mine land reclamation fund be subject to NEPA analysis and OSMRE issuance of an Authorization to Proceed (ATP)? 

No, AML projects that are exclusively funded using BIL long-term abandoned mine land reclamation funds are not subject to NEPA or ATP requirements but must be entered into e-AMLIS upon completion and included in the annual grant reports. 

• Are States and Tribes required to report on the status of their BIL long-term abandoned mine land reclamation fund once established?

Yes, the Consolidated Appropriations Act, 2023, requires annual reporting on the status of each long-term abandoned mine land reclamation fund, projects funded, fund expenditures, and the balance of available funds.  

• The Consolidated Appropriations Act, 2023, was enacted in December 2022. Can eligible States and Tribes submit a grant amendment for their FY 2022 grant funds to place up to 30% into a long-term abandoned mine land reclamation fund to earn interest?

Yes. However, States and Tribes must (1) demonstrate that they have the authority under State law to establish a long-term abandoned mine land reclamation fund, (2) update their Reclamation Plans, if necessary, and (3) have any Reclamation Plan updates approved by OSMRE before they can begin depositing BIL grant funds in a long-term abandoned mine land reclamation fund.