[Federal Register Volume 62, Number 223 (Wednesday, November 19, 1997)]
[Proposed Rules]
[Pages 61712-61715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30304]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 918

[SPATS No. LA-017-FOR]


Louisiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

-----------------------------------------------------------------------

Summary: OSM is announcing receipt of a proposed amendment to the 
Louisiana regulatory program (hererinfafter the ``Louisiana program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The proposed amendment consists of revisions to and/or additions of 
regulations pertaining to definitions, request for hearing, permitting 
requirements, small operator assistance program, bond release 
requirements, performance standards, and enforcement procedures/civil 
penalties. The amendment is intended to revise the Louisiana program to 
be consistent with the corresponding Federal regulations.
    This document sets forth the times and locations that the Louisiana 
program and proposed amendment to that program are available for public 
inspection, the comment period during which interested persons may 
submit written comments on the proposed amendment, and the procedures 
that will be followed regarding the public hearing, if one is 
requested.

DATES: Written comments must be received by 4:00 p.m., c.s.t., December 
19, 1997. If requested, a public hearing on the proposed amendment will 
be held on December 15, 1997. Requests to speak at the hearing must be 
received by 4:00 p.m., c.s.t. on December 4, 1997.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    Copies of the Louisiana program, the proposed amendment, a listing 
of any scheduled public hearings, and all written comments received in 
response to this document will be available for public review at the 
addresses listed below during normal business hours, Monday through 
Friday, excluding holidays. Each requester may receive one free copy of 
the proposed amendment by contacting OSM's Tulsa Field Office.
    Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, 
Tulsa, Oklahoma 74135-6547, Telephone (918) 581-6430.
    Department of Natural Resources, Office of Conservation, Injection 
and Mining Division, 625 N. 4th Street, P.O. Box 94275, Baton Rouge, LA 
70804, Telephone: (504) 342-5540.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Telephone (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Louisiana Program

    On October 10, 1980, the Secretary of the Interior conditionally 
approved the Louisiana program. General background information on the 
Louisiana program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the Louisiana program 
can be found in the October 10, 1980, Federal Register (45 FR 67340). 
Subsequent actions concerning the Louisiana program and program 
amendments can be found at 30 CFR 918.15 and 918.16.

II. Description of the Proposed Amendment

    By letter dated October 24, 1997 (Administrative Record No. LA-
362), Louisiana submitted a proposed amendment to its program pursuant 
to SMCRA. Louisiana submitted the proposed amendment in response to a 
June 17, 1997, letter (Administrative Record No. LA-361) that OSM sent 
to Louisiana in accordance with 30 CFR 732.17(c). Louisiana proposes to 
amend the Louisiana Surface Mining Regulations. The full text of the 
proposed program amendment submitted by Louisiana is available for 
public inspection at the locations listed above under ADDRESSES. A 
brief discussion of the proposed amendment is presented below.

A. Section 105. Definitions

    1. Louisiana proposes to revise its definition for ``other 
treatment facilities.''
    2. Louisiana proposes to add a definition for ``previously mined 
area.''
    3. Louisiana proposes to add a definition for ``qualified 
laboratory.''

B. Section 2537. Cross-Sections, Maps and Plans

    Louisiana proposes to delete paragraph 2537.11. that requires 
cross-sections, maps and plans in the permit applications to show 
sufficient slope measurements to adequately represent the existing land 
surface configuration of the proposed permit area.

C. Section 2725. Reclamation Plan: Ponds, Impoundments, Banks, Dams and 
Embankments

    1. Louisiana proposes to revise paragraph 2725.A. by adding 
``siltation structure'' to the types of ponds, impoundments, banks, 
dams and embankments requiring a general reclamation plan, and by 
adding a provision that requires each application to include a detailed 
reclamation plan for each proposed containment structure.
    2. At paragraph 2725.A.2., Louisiana proposes to delete the 
existing language and to replace it with language that adds specific 
references to the U.S. Department of Agriculture, Soil Conservation 
Service Technical Release No. 60 criteria for dam classification and 
requires compliance with this technical release if structures meet or 
exceed the size or other criteria of the Mine Safety and Health 
Administration.
    3. Louisiana proposes to revise paragraph 2725.A.3. to refer to 
structures that are not included in paragraph 2725.A.2.
    4. At paragraph 2725.A.3.a., Louisiana proposes to require 
qualified, registered, professional engineers to certify all coal 
processing waste dams and embankments covered by sections 5375 through 
5395.

[[Page 61713]]

    5. At section 2725, Louisiana proposes to add new paragraph C.1. 
that specifies that for impoundments not included in paragraph 
2725.A.2., engineering design standards shall ensure stability 
comparable to a 1.3 minimum static safety factor in lieu of engineering 
tests to establish compliance with the minimum static safety factor of 
1.3 specified in section 5333.
    6. Louisiana proposes to revise paragraph 2725.F. by deleting the 
phrase, ``If the structure is 20 feet or higher or impounds more than 
20 acre-feet,'' and replacing it with the phrase, ``If the structure 
meets the Class B or C criteria for dams in TR-60 or meets the size or 
other criteria of 30 CFR 77.216(a).''

D. Section 2907. Prime Farmland

    At section 2907, Louisiana proposes to add new paragraph C.5. to 
read as follows:

    The aggregate total prime farmland acreage shall not be 
decreased from that which existed prior to mining. Water bodies, if 
any, to be constructed during mining and reclamation operations must 
be located within the post-reclamation non-prime farmland portions 
of the permit area. The creation of any such water bodies must be 
approved by the regulatory authority and the consent of all affected 
property owners within the permit area must be obtained.

E. Section 3705. Eligibility for Assistance

    1. At paragraph 3705.A.2., Louisiana proposes to change from 
100,000 to 300,000 tons the probable total actual and attributed 
production of coal that an applicant for small operator assistance 
cannot exceed during any consecutive 12-month period either during the 
term of his or her permit or during the first five years after issuance 
of his or her permit, whichever period is shorter.
    2. Currently at paragraph 3705.A.2.a., applicants for small 
operator assistance, with an ownership interest in other coal 
production operations, have a pro rata share of coal produced by those 
operations attributed to their total coal production in any consecutive 
12-month period if they have more than a five percent ownership 
interest in those other coal production operations. Louisiana proposes 
to change the percentage of ownership interest from more than five 
percent to more than ten percent.
    3. Currently at paragraph 3705.A.2.b., applicants for small 
operator assistance have a pro rata share of coal produced by other 
coal production operations attributed to their total coal production in 
any consecutive 12-month period if the coal operators of the other coal 
production operations have more than a five percent ownership interest 
in the applicant for small operator assistance. Louisiana proposes to 
change the percentage of ownership interest from more than five percent 
to more than ten percent.

F. Section 3711. Program Services and Data Requirements

    1. Louisiana proposes to revise paragraph 3711.A. by adding the 
phrase, ``and provide other services,'' to closely follow the Federal 
regulation at 30 CFR 795.9(a).
    2. Louisiana proposes to revise paragraph 3711.B.1. by adding the 
phrase, ``including the engineering analyses and designs necessary for 
the determination,'' to closely follow the Federal regulation at 30 CFR 
795.9(b)(1).
    3. Louisiana proposes to revise paragraph 3711.B.2. by adding the 
phrase, ``the drilling and,'' to closely follow the Federal regulation 
at 30 CFR 795.9(b)(2).
    4. Louisiana proposes to add new paragraph 3711.B.3., ``the 
development of cross-section maps and plans required by Sec. 2537,'' to 
closely follow the Federal regulation at 30 CFR 795.9(b)(3).
    5. Louisiana proposes to add new paragraph 3711.B.4, ``the 
collection of archaeological and historic information and related plans 
required by Secs. 2505.A.2. and 2731 and any other archaeological and 
historic information required by the office,'' to closely follow the 
Federal regulation at 30 CFR 795.9(b)(4).
    6. Louisiana proposes to add new paragraph 3711.B.5., ``pre-blast 
surveys required by Sec. 2707; and'' to closely follow the Federal 
regulation at 30 CFR 795.9(b)(5).
    7. Louisiana proposes to add new paragraph 3711.B.6, ``the 
collection of site-specific resources information, the production of 
protection and enhancement plans for fish and wildlife habitats 
required by Sec. 2713, and information and plans for any other 
environmental values required by the office under the act.'' to closely 
follow the Federal regulation at 30 CFR 795.9(b)(6).

G. Section 3717. Applicant Liability

    1. At paragraph 3717.A., Louisiana proposes to revise this 
paragraph by adding the phrase, ``A coal operator,'' and by deleting 
the words ``laboratory'' and ``performed'' to closely follow the 
Federal regulation at 30 CFR 795.12(a).
    2. Louisiana proposes to revise paragraph 3717.A.2. by replacing 
the ``applicant's'' actual and attributed annual production of coal for 
all locations with the ``operator's'' actual and attributed annual 
production of coal for all locations. Also, Louisiana proposes to 
change the actual and attributed annual production of coal for all 
locations from 100,000 to 300,000 tons during the 12 months immediately 
following the date on which the permit was originally issued.
    3. Louisiana proposes to revise paragraph 3717.A.3. concerning 
permits that are sold, transferred, or assigned by changing the 
transferee's total actual and attributed annual production of coal from 
100,000 to 300,000 tons during the 12 months immediately following the 
date on which the permit was originally issued.

H. Section 4501. Procedures for Seeking Release of Performance Bond

    1. Louisiana proposes to add new paragraph 4501.A.3. to read as 
follows:

    The permittee shall include in the application for bond release 
a notarized statement which certifies that all applicable 
reclamation activities have been accomplished in accordance with the 
requirements of the Act, the regulatory program, and the approved 
reclamation plan. Such certification shall be submitted for each 
application or phase of bond release.

    2. With the addition of this new paragraph, Louisiana proposes to 
re-number existing paragraph A.3. as A.4.

I. Section 5333. Hydrologic Balance: Impoundments

    1. Louisiana proposes to add new paragraph 5333.A.1 that requires 
impoundments meeting the Class B or C criteria for dams in the U.S. 
Department of Agriculture, Soil Conservation Service Technical Release 
No. 60 (210-VI-TR60, October 1985), ``Earth Dams and Reservoirs,'' 1985 
to comply with the ``Minimum Emergency Spillway Hydrologic Criteria'' 
table in TR-60. Louisiana also proposes to incorporate by reference the 
above technical release.
    2. Louisiana proposes to redesignate existing paragraphs 5333.A.1. 
through 5333.A.12. as paragraphs 5333.A.2 through 5333.A.13.
    3. Louisiana proposes to revise redesignated paragraph 5333.A.4. 
(previously paragraph 5333.A.3.) by deleting all of its language except 
for the word ``Stability.'' The State also proposes to add new 
paragraphs a. and b. containing the following language:

    a. An impoundment meeting the Class B or C criteria for dams in 
TR-60, or the size or other criteria of 30 CFR 77.216(a) shall have 
a minimum static safety factor of 1.5 for a normal pool with steady 
state seepage saturation conditions, and a seismic safety factor of 
at least 1.2.
    b. Impoundments not included in Sec. 5333.A.4.a. except for a 
coal mine waste

[[Page 61714]]

impounding structure, shall have a minimum static safety factor of 
1.3 for a normal pool with steady state seepage saturation 
conditions or meet the requirements of Sec. 2725.C.1.

    4. At redesignated paragraph 5333.A.6. (previously paragraph 
5333.A.5.),
    Louisiana proposes to revise this paragraph by adding the following 
language:

    For an impoundment meeting the Class B or C criteria for dams in 
TR-60, or the size or other criteria of 30 CFR 77.216(a), foundation 
investigation, as well as any necessary laboratory testing of 
foundation material, shall be performed to determine the design 
requirements for foundation stability.

    5. At redesignated paragraph 5333.A.9. (previously paragraph 
5333.A.8.), Louisiana proposes to revise this paragraph by deleting the 
existing language and replacing it, and by adding new paragraphs 
A.9.a., a.i., and a.ii., and A.9.b., b.i., b.ii., and b.iii. The new 
language pertains to the types of spillways that shall be designed and 
constructed for impoundments: (a.) meeting the Class B or C criteria 
for dams in TR-60, the emergency spillway hydrograph criteria in the 
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60, or 
greater event as specified by the State; (b.) meeting or exceeding the 
size or other criteria of 30 CFR 77.216(a), a 100-year 6-hour event, or 
greater event as specified by the State; and (c.) not included in 
Sec. 5333.A.9.b.i. and ii., 25-year 6-hour or greater event as 
specified by the State.
    6. At redesignated paragraph 5333.A.12 (previously paragraph 
5333.A.11.), Louisiana proposes to revise this paragraph by deleting 
the existing language and replacing it with language pertaining to 
impoundments ``meeting'' and ``not meeting'' the SCS Class B or C 
criteria for dams in TR-60, or the size or other criteria in 30 CFR 
77.216. The State also proposes how often and by whom these 
impoundments must be examined and what must be looked for during the 
examinations.
    7. Louisiana proposes to revise paragraph 5333.C.2. by deleting the 
existing language and replacing it with new language and by adding new 
paragraphs C.2.a. and C.2.b. The new language pertains to the State's 
option to approve temporary impoundments that are constructed to 
control runoff, from the design precipitation event, primarily through 
storage of the runoff.

J. Section 5411. Backfilling and Grading: Thin Overburden

    Louisiana proposes to revise paragraph 5411.A. by deleting the 
existing language and replacing it with new language, and by adding new 
paragraphs A.1. and A.2. The proposed new language for these paragraphs 
contains the definition for and explanations pertaining to ``thin 
overburden.''

K. Section 5413. Backfilling and Grading: Thick Overburden

    Louisiana proposes to revise paragraph 5413.A. by deleting the 
existing language and replacing it with new language, and by adding new 
paragraphs A.1. and A.2. The proposed new language for these paragraphs 
contains the definition for and explanations pertaining to ``thick 
overburden.''

L. Section 5503. Prime Farmland: Soil Removal

    Louisiana proposes to revise paragraph 5503.A.2. by adding language 
to require coal operators:

    to separately remove the B horizon of the soil, a combination of 
B horizon and underlying C horizon, or other suitable soil material 
to provide the thickness of suitable soil required by paragraph 
5507.A.1. that will create a reconstructed soil of equal or greater 
productivity capacity than that which existed before mining, except 
as approved by the regulatory authority where the B or C soil 
horizons would not otherwise be removed and where soil capabilities 
can be retained;

M. Section 5507. Prime Farmland: Soil Replacement

    Louisiana proposes to revise paragraph 5507.A.4. by deleting the 
existing language and replacing it with the following language:

    The operator shall replace the B horizon, C horizon, or other 
suitable material specified in Sec. 5503.A.2. to the thickness 
needed to meet the requirements of Sec. 5507.A.1. In those areas 
where the B or C horizons were not removed but may have been 
compacted or otherwise damaged during the mining operation, the 
operator shall engage in deep tilling or other appropriate means to 
restore premining capabilities.

N. Section 6507. Service of Notices of Violation and Cessation Orders

    Louisiana proposes to revise paragraph 6507.A.2. by adding language 
to its regulation regarding how notices of violations and cessation 
orders are to be served. The added language allows the State to serve 
the person to whom the notice or order was issued by any means 
consistent with the rules governing service of a summons and complaint 
under the Louisiana Rules of Civil Procedure.

O. Section 6913. Procedures for Assessment of Civil Penalties

    Louisiana proposes to revise paragraph 6913.B by adding language to 
its regulation regarding how copies of the proposed assessment and the 
worksheet showing the computation of the proposed assessment are to be 
served. The added language allows the State to serve the person to whom 
the notice or order was issued by any alternative means consistent with 
the rules governing service of a summons and complaint under the 
Louisiana Rules of Civil Procedure.

P. Section 6915. Procedures for Assessment Conference

    Louisiana proposes to revise paragraph 6915.B.1 by changing the 
time when the assessment conference is to be held from ``within 60 days 
from the date of the issuance of the proposed assessment or the end of 
the abatement period, whichever is later'' to ``within 60 days from the 
date the conference request is received or the end of the abatement 
period, whichever is later.'' Louisiana also proposes to add that 
failure by the State to hold the conference within 60 days shall not be 
grounds for dismissal of all or part of an assessment unless the person 
against whom the proposed penalty has been assessed proves actual 
prejudice as a result of the delay.

Q. Section 6917. Request for Hearing

    Louisiana proposes to change from 15 days to 30 days the amount of 
time a person has to submit a petition for requesting a hearing after 
the date of service of the conference office's action.

R. Section 7105. Procedure for Assessment of Individual Civil Penalty

    Louisiana proposes to revise paragraph 7105.C. by adding language 
to its regulation regarding when service of a notice of proposed 
assessment and included information shall be deemed complete. The added 
language states that service is complete upon tender of the notice of 
proposed assessment and included information or of the certified mail 
and shall not be deemed incomplete because of refusal to accept.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Louisiana program.

[[Page 61715]]

Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Tusla Field Office will not 
necessarily be considered in the final rulemaking or included in the 
Administrative Record.

Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
c.s.t. on December 4, 1997. The location and time of the hearing will 
be arranged with those persons requesting the hearing. Any disabled 
individual who has need for a special accommodation to attend a public 
hearing should contact the individual listed under FOR FURTHER 
INFORMATION CONTACT. If no one requests an opportunity to speak at the 
public hearing, the hearing will not be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. Persons in the audience who 
have not been scheduled to speak, and who wish to do so, will be heard 
following those who have been scheduled. The hearing will end after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notices of meetings will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the Administrative Record.

IV. Procedural Determinations

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).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, 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 30 
CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments 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.

National Environment Policy Act

    No environment 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)).

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.).

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 which 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 an 
assumptions for the counterpart Federal regulations.

Unfunded Mandates

    OSM has determined and certifies pursuant to the Unfunded Mandates 
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a 
cost of $100 million or more in any given year on local, state, or 
tribal governments or private entities.

List of Subjects in 30 CFR Part 918

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 7, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 97-30304 Filed 11-18-97; 8:45 am]
BILLING CODE 4310-05-M