[Federal Register Volume 60, Number 126 (Friday, June 30, 1995)]
[Rules and Regulations]
[Pages 34138-34141]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15967]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 904
Arkansas Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with additional requirements, a proposed
amendment to the Arkansas regulatory program (hereinafter referred to
as the ``Arkansas program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). Arkansas proposed changes to its
statute by adding definitions of the terms ``unanticipated event or
condition'' and ``lands eligible for remining,'' deleting the authority
to either regulate or not regulate surface coal mining operations
affecting 2 acres or less, and revising provisions pertaining to
violations and revegetation performance standards for remining permits.
The amendment was intended to revise the Arkansas program to be
consistent with SMCRA.
EFFECTIVE DATE: June 30, 1995.
FOR FURTHER INFORMATION CONTACT:Timothy Dieringer, Acting Director,
Tulsa Field Office, Telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Arkansas Program
On November 21, 1980, the Secretary of the Interior conditionally
approved the Arkansas program. General background information on the
Arkansas program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Arkansas program can
be found in the November 21, 1980, Federal Register (45 FR 77003).
Subsequent actions concerning Arkansas's program and program amendments
can be found at 30 CFR 904.12 and 904.15.
II. Proposed Amendment
By letter dated August 26, 1994, Arkansas submitted a proposed
amendment to its program pursuant to SMCRA (administrative record No.
AR-522). Arkansas submitted the proposed amendment at its own
initiative with the intent of making its coal mining statutes
consistent with SMCRA. Arkansas proposed to revise the Arkansas Surface
Coal Mining and Reclamation Act of 1979 (ASCMRA) at (1) section 5,
jurisdiction and powers; rules and regulations, (2) section 13, surface
coal mining permits, and (3) section 15, environmental protection
performance standards.
OSM published a notice in the September 29, 1994, Federal Register
(59 FR 49616) announcing receipt of the amendment and inviting public
comment on the adequacy of the proposed amendment (administrative
record No. AR-526). The public comment period ended October 31, 1994.
During its review of the amendment, OSM identified concerns with
section 13(k) of ASCMRA, regarding remining permit violations, and
section 15(d)(1) of ASCMRA, regarding revegetation performance
standards on lands eligible for remining. OSM notified Arkansas of the
concerns by letter dated November 22, 1994 (administrative record No.
AR-539). Arkansas responded in a letter dated March 1, 1995, by
submitting a revised amendment (administrative record No. AR-540).
In the revised amendment, Arkansas proposed to add definitions of
the terms ``unanticipated event or condition'' and ``lands eligible for
remining'' at sections 4(18) and 4(19) of ASCMRA.
Based upon the revisions to the proposed program amendment
submitted by Arkansas, OSM reopened the public comment period in the
March 17, 1995, Federal Register (60 FR 14399, administrative record
No. AR-544). The
[[Page 34139]]
public comment period ended on April 3, 1995.
By letter dated April 4, 1995, Arkansas withdrew from this
amendment section 15(d)(1) of ASCMRA, which was a counterpart to
section 515(b)(20)(B) of SMCRA, and which set forth a variance from the
liability period performance standard for revegetation on lands
eligible for remining. In doing so, Arkansas indicated that it intends
to insert a counterpart provision to section 515(b)(20)(B) of SMCRA in
its regulations rather than in its statute at section 15(d)(1) of
ASCMRA as originally proposed (administrative record No. AR-548).
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with additional requirements, that the
proposed program amendment submitted by Arkansas on August 26, 1994,
and as revised by it on March 1 and April 4, 1995, is no less stringent
than SMCRA. Accordingly, the Director approves the proposed amendment.
1. Substantive Arkansas Statute Provision That Is Substantively
Identical to the Corresponding SMCRA Provision
Arkansas proposed a definition of the term ``unanticipated event or
condition'' at section 4(18) of ASCMRA (to be codified at Arkansas Code
Annotated (ACA) 15-58-104(17)) that is substantively identical to the
definition of the same term at section 701(33) of SMCRA.
Because this proposed statutory provision is substantively
identical to the corresponding SMCRA provision, the Director finds that
it is no less stringent than SMCRA. The Director approves the proposed
definition of the term ``unanticipated event or condition.''
2. ASCMRA 4(19), Definition of the Term ``Lands Eligible for Remining''
Arkansas proposed at section 4(19) of ASCMRA (ACA 15-58-104(18)) to
define the term ``lands eligible for remining'' to mean those lands
that would otherwise be eligible for expenditures under section 6 of
ASCMRA (ACA 15-58-401).
Section 701(34) of SMCRA defines the term ``lands eligible for
remining'' to mean those lands that would otherwise be eligible for
expenditures under section 404 or 402(g)(4) of SMCRA.
Referenced section 6 of ASCMRA (ACA 15-58-401) in Arkansas'
proposed definition of the term ``lands eligible for remining'' is the
State counterpart provision to referenced sections 404 and 402(g)(4)(B)
of SMCRA in the Federal definition. However, unlike section 404 of
SMCRA, section 60 of ASCMRA (ACA 15-58-401) does not provide for an
exclusion of expenditures for those lands addressed by section 411 of
SMCRA. Accordingly, Arkansas' proposed definition of the term ``lands
eligible for remining'' at section 4(19) of ASCMRA (ACA 15-58-104(18)
is less stringent than section 404 of SMCRA.
Therefore, the Director approves but requires Arkansas to revise
its definition, or otherwise modify its program, to exclude those lands
addressed by section 411 of SMCRA.
3. ASCMRA 5(b)(1), Applicability of the 2-Acre Exemption
Arkansas proposed to delete the language of section 5(b)(1) of
ASCMRA, which provided, in part, that ``the Commission may, by
regulation, include, modify or omit permit application requirements,
permit approval or denial procedures, bond requirements and
environmental performance standards as it deems appropriate for surface
mining operations affecting two acres or less.'' Under this authority,
Arkansas previously promulgated rules at Part 772 of the Arkansas
Surface Coal Mining and Reclamation Code (ASCMRC) that exempted from
regulation surface mining operations affecting 2 acres or less.
As originally enacted, section 528(2) of SMCRA exempted from the
requirements of SMCRA coal operations affecting 2 acres or less.
However, on May 7, 1987, the President signed Pub. L. 100-34, which
repealed this exemption and preempted any corresponding acreage-based
exemptions included in State laws or regulations.
In accordance with the repeal of section 528(2) of SMCRA, Arkansas
proposed and the Director approved the deletion of the 2-acre exemption
allowance at ASCMRC Part 772 and the references to that exemption at
ASCMRC 707.12, 770.6(b), 770.6(i) (a) and (c), 810.11, 815, 815.2 (b)
and (c), 815.11(c), 815.15 (a) through (d), and (f) through (k), and
1000(d)(7) (August 19, 1992; 57 FR 37423, 37426-37427). Arkansas'
proposed deletion of its statutory language at section 5(b)(1) of
ASCMRA is consistent with its previous OSM-approved rule revisions
deleting the 2-acre exemption allowance and is no less stringent that
SMCRA, as amended by Pub. L. 100-34. Accordingly, the Director approves
Arkansas' proposed deletion.
4. ASCMRA 13(k), Remining Permit Violations
Arkansas proposed to create new section 13(k) of ASCMRA (ACA 15-58-
503(a)(3)(G)) to provide that certain violations incurred under a
remining permit shall not disqualify the holder of that permit from
obtaining subsequent surface coal mining permits. Specifically,
proposed section 13(k) of ASCMRA requires that
After the date of enactment of this subsection, the prohibition
of subsection (c)(3)(E) shall not apply to a permit application due
to any violation resulting from an unanticipated event or condition
at a surface coal mining operation on lands eligible for remining
under a permit held by the person making such application. As used
in this subsection, the term ``violation'' has the same meaning as
such term has under subsection (c)(3)(E). The authority of this
subsection and Section 15(d)(1) shall terminate on September 30,
2004.
The only difference in wording between this proposed statutory
provision and the counterpart provision at section 510(e) of SMCRA is
that it references section 13(c)(3)(E) of ASCMRA instead of section
510(c) of SMCRA and references section 15(d)(1) of ASCMRA instead of
section 515(b)(20)(B) of SMCRA.
Referenced section 13(c)(3)(E) of ASCMRA is a counterpart to
section 510(c) of SMCRA that Arkansas previously proposed and OSM
approved. Arkansas withdrew from this amendment referenced section
15(d)(1) of ASCMRA, which was a counterpart to section 515(b)(20)(B) of
SMCRA.
With the exception of the reference to section 15(d)(1) of ASCMRA,
which does not exist, proposed section 13(k) of ASCMRA is substantively
identical to and no less stringent than section 510(e) of SMCRA.
Accordingly, the Director approves proposed section 13(k) of ASCMRA but
requires Arkansas to delete the phrase ``and section 15(d)(1).''
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal
[[Page 34140]]
agencies with an actual or potential interest in the Arkansas program.
Soil Conservation Service (SCS). SCS responded on October 24, 1994,
that it had no comments to make concerning the proposed amendment. SCS
further stated that since the proposal deals with remining it expects
no impact on Rural Abandoned Mine Program projects in Arkansas, which
are administered by SCS under the abandoned mine reclamation provisions
of title IV of SMCRA (administrative record No. AR-532).
The Bureau of Land Management (BLM). BLM responded on October 19,
1994 (administrative record No. AR-533). It commented that Arkansas'
amendment to section 13(k) of ASCMRA tends to follow the intent of
SMCRA. As discussed in finding No. 4, the Director finds, with an
additional requirement, that proposed section 13(k) of ASCMRA is no
less stringent than section 510(e) of SMCRA.
BLM further commented that while the exception concerning rainfall
was left out of section 15(d) of ASCMRA, which serves as the statutory
authority for Arkansas' environmental protection performance standards
and regulations, a review of the SCS Handbook for Logan County,
Arkansas indicates an annual precipitation of 46 inches and, as such,
the probability of 26 inches or less of annual precipitation in the
State is probably remote. In its November 22, 1994, issue letter, OSM
notified Arkansas that it did not include in its proposed revision at
section 15(d)(1) of ASCMRA a counterpart to the last part of section
515(b)(20)(b), which states that ``in those areas or regions of the
country where the annual average precipitation is twenty-six inches or
less, then the operator's assumption of responsibility and liability
will be extended for a period of five full years after the last year of
augmented seeded, fertilizing, irrigation, or other work in order to
assure compliance with the applicable standards.'' OSM further notified
Arkansas that it requires in section 816.116(c)(3) of its rules a 10-
year liability period for areas receiving 26 inches or less of
precipitation. As a result, OSM requested that Arkansas clarify whether
or not the provision at section 816.116(c)(3), regarding the liability
period for areas receiving 26 inches or less of annual average
precipitation, is applicable to Arkansas on the basis of Arkansas'
climate. In its March 1, 1995, revised amendment, Arkansas responded
that because Arkansas' climate incurs 50 or more inches of annual
precipitation, section 816.116(c)(3) of its regulations is inapplicable
and, as such, shall be deleted in a subsequent amendment.
BLM also commented that the amendment to section 5(b)(1) of ASCMRA
striking the 2-acre or less exemption appears to follow the intent of
SMCRA. As discussed in finding No. 3, Arkansas' proposed deletion of
the statutory exemption for operations affecting 2 acres or less is (1)
consistent with Arkansas' deletion of the counterpart regulation
exemption that OSM previously approved and (2) is no less stringent
than SMCRA.
Lastly, BLM commented that the portion of the State law referring
to the extraction of coal as an incidental part of the Federal, State,
or local government-financed highway or other construction under
regulations and the extraction of coal by a landowner for noncommercial
use should be in the regulation elsewhere. In response to BLM's last
comment, the Arkansas provisions concerning the exemption for coal
incident to government-financed highways or other construction can be
found at ACA 15-58-106(3) and at Part 707 of Arkansas' rules.
U.S. Forest Service. The U.S. Forest Service responded on October
20, 1994, that it had no additions or corrections to offer on the
proposed amendment (administrative record No. AR-534).
U.S. Bureau of Mines. The U.S. Bureau of Mines responded on October
31, 1994, and March 30, 1995, that its Division of Environmental
Technology reviewed Arkansas' proposed amendment and had no comment
(administrative record Nos. AR-535 and AR-546).
U.S. Fish and Wildlife Service (USFWS). USFWS responded on November
14, 1994, that it had no objections to Arkansas' proposed amendments to
sections 5 and 15 of ASCMRA. However, it did express a concern that the
amendment to section 13 of ASCMRA, which would provide that certain
violations incurred under a remining permit shall not disqualify the
holder from obtaining subsequent coal mining permits, should not be
adopted (administrative record No. AR-537). USFWS further stated that
outstanding violations on existing permits should be corrected or
resolved prior to the permit holder being issued additional permits.
In response to USFWS's concern, section 510(e) of SMCRA, as
discussed in finding No. 4, provides, as does proposed section 13(k) of
ASCMRA, that violations resulting from an unanticipated event or
condition at a surface coal mining operation on lands eligible for
remining under a permit held by the person making such application
shall not disqualify the holder from obtaining subsequent coal mining
permits.
Therefore, this provision of proposed section 13(k) of ASCMRA is in
accordance with and no less stringent than section 510(e) of SMCRA.
Because the Federal regulations at 30 CFR 730.5(b) only require that a
State's laws and regulations be ``consistent with'' and ``in accordance
with'' SMCRA and the Federal regulations, the Director does not have
the authority to require standards in excess of SMCRA or the Federal
regulations. On this basis, the Director does not require Arkansas to
revise its program in response to USFWS's comment.
U.S. Army Corps of Engineers. The U.S. Army Corps of Engineers
responded on March 28, 1995, that it found the changes submitted by
Arkansas to be satisfactory (administrative record No. AR-545).
The National Park Service. The National Park Service responded by
telephone conversation on April 10, 1995, that it had no comments on
the proposed amendment (administrative record No. AR-547).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Arkansas proposed to make in its
amendment pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record Nos. AR-524 and AR-
541). By letter dated April 11, 1995, EPA responded that it had no
comments on the proposed amendment (administrative record No. AR-549).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record Nos.
AR-524 and AR-541). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with additional
requirements, Arkansas' proposed
[[Page 34141]]
amendment as submitted on August 26, 1994, and as revised on March 1
and April 4, 1995.
The Director approves, as discussed in: finding No. 1, section
4(18) of ASCMRA, concerning the definition of the term ``unanticipated
event or condition;'' and finding No. 3, section 5(b)(1) of ASCMRA,
concerning the applicability of the 2-acre exemption.
With the requirement that Arkansas further revise its statutes, the
Director approves, as discussed in: finding No. 2, section 4(19) of
ASCMRA, concerning the definition of the term ``lands eligible for
remining;'' and finding No. 4, section 13(k) of ASCMRA, concerning
remining permit violations.
The Director approves the statute revisions as proposed by Arkansas
with the provision that they be fully promulgated in identical form to
the statute revisions submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 904, codifying decisions
concerning the Arkansas program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
IV. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendment submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined 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.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 904
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 22, 1995.
Peter A. Rutledge,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 904--ARKANSAS
1. The authority citation for Part 904 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 904.15 is amended by adding paragraph (m) to read as
follows:
Sec. 904.15 Approval of amendments to State regulatory program.
* * * * *
(m) The following sections of the Arkansas Surface Coal Mining and
Reclamation Act of 1979 (ASCMRA), as submitted to OSM on August 26,
1994, and as revised on March 1 and April 4, 1995, are approved
effective on June 30, 1995:
section 4(18), definition of the term ``unanticipated event or
condition;''
4(19), definition of the term ``lands eligible for remining;''
5(b)(1), applicability of the 2-acre exemption; and
13(k), remining permit violations.
3. Section 904.16 is added to read as follows:
Sec. 904.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Arkansas is required to submit to
OSM by the specified date the following written, proposed program
amendment, or a description of an amendment to be proposed that meets
the requirements of SMCRA or 30 CFR Chapter VII and a timetable for
enactment that is consistent with Arkansas' established administrative
or legislative procedures.
(a) By August 29, 1995, Arkansas shall revise section 4(19) of the
Arkansas Surface Coal Mining and Reclamation Act of 1979 (ASCMRA),
concerning the definition of the term ``lands eligible for remining,''
or otherwise modify its program, to exclude those lands addressed by
section 411 of SMCRA.
(b) By August 29, 1995, Arkansas shall revise section 13(k) of
ASCMRA, concerning remining permit violations, by deleting the phrase
``and section 15(d)(1).''
[FR Doc. 95-15967 Filed 6-29-95; 8:45 am]
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