[Federal Register Volume 62, Number 245 (Monday, December 22, 1997)]
[Rules and Regulations]
[Pages 66819-66822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33335]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 901
[SPATS No. AL-067-FOR]
Alabama 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 a proposed amendment to the Alabama
regulatory program (hereinafter referred to as the ``Alabama program'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
Alabama proposed revisions to the Alabama Surface Mining Commission
Rules pertaining to hearing orders and decisions, license application
requirements, procedures for permit application review, determination
of bond forfeiture amount, surface and ground water monitoring,
disposal of excess spoil, and coal mine waste. The amendment is
intended to revise the Alabama program to provide additional
safeguards, clarify ambiguities, and improve operational efficiency.
EFFECTIVE DATE: December 22, 1997.
FOR FURTHER INFORMATION CONTACT:
Arthur Abbs, Director, Birmingham Field Office, Office of Surface
Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215,
Homewood, Alabama 35209, Telephone: (205) 290-7282.
SUPPLEMENTARY INFORMATION:
I. Background on the Alabama Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Alabama Program
On May 20, 1982, the Secretary of the Interior conditionally
approved the Alabama program. Background information on the Alabama
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the May 20,
1982, Federal Register (47 FR 22062). Subsequent actions concerning the
conditions of approval and program amendments can be found at 30 CFR
901.15 and 901.16.
II. Submission of the Proposed Amendment
By letter dated March 28, 1997 (Administrative Record No. AL-0562),
Alabama submitted a proposed amendment to its program pursuant to
SMCRA. Alabama submitted the proposed amendment at its own initiative.
OSM announced receipt of the proposed amendment in the April 25,
1997, Federal Register (62 FR 20138), and in the same document opened
the public comment period and provided an opportunity for a public
hearing or meeting on the adequacy of the proposed amendment. The
public comment period closed on May 27, 1997. Because no one requested
a public hearing or meeting, none was held.
During its review of the amendment, OSM identified concerns
relating to hearing orders and decisions (Rule 880-X-5A-.22), and
placement of coal mine waste on refuse piles (Rules 880-X-10C-.40 and
880-X-10D-.36). OSM notified Alabama of these concerns by telephone and
fax on June 16, 1997 (Administrative Record No. AL-0570).
By letter dated July 9, 1997 (Administrative Record No. AL-0560),
Alabama responded to OSM's concerns regarding placement of coal mine
waste on refuse piles by submitting additional explanatory information
to its proposed program amendment. Regarding OSM's concerns on hearing
orders and decisions, Alabama submitted an emergency rule, on July 30,
1997 (Administrative Record No. AL-0572), that changed the number of
days in which hearing officers are to furnish written decisions on
hearings from 60 days to 30 days. Based upon the additional explanatory
information and/or revisions to the proposed program amendment
submitted by Alabama, OSM reopened the public comment period in the
October 17, 1997, Federal Register (62 FR 53996). The public comment
period closed on November 3, 1997.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
A. Nonsubstantive Revisions to the Alabama Program
Alabama proposed revisions to the following previously-approved
rules that are nonsubstantive in nature and consist of minor editorial,
punctuation, grammatical, and recodification changes:
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Federal counterpart
Topic State regulations regulations
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Procedures for Permit 880-X-7B-.07(5)..... 30 CFR 761.12(e)(1)-
Application Review. (e)(3).
Determination of Forfeiture 880-X-9E-.05(2) and 30 CFR 800.50(d)(1)
Amount. (3). and (d)(2).
Hydrologic Ground Water 880-X-10C-.23(2)(a). 30 CFR 816.41(e)(1).
Monitoring.
Disposal of Excess Spoil.... 880-X-10C-.36(13)(b) 30 CFR 816.71(i) and
and (b)(1) and 816.74(h)(4).
(15)(B)(3).
Disposal of Excess Spoil and 880-X-10D-.33(13)(b) 30 CFR 817.71(i) and
Underground Development and (b)(1) and 817.74(h)(4).
Waste. (15)(b)(3).
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Because Alabama's proposed revisions to these previously-approved
rules are nonsubstantive in nature, the Director finds that the
proposed revisions do not render Alabama's rules less effective than
the Federal regulations.
B. Revisions to Alabama's Regulations That Are Not Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Rules 880-X-10C-.40 and 880-X-10D-.36 Cost Mine Waste: Refuse Piles
At paragraphs (3)(a), Alabama proposed an exception to the
requirement that limits coal mine operators from spreading coal mine
waste in layers thicker than 24 inches. If engineering data
substantiates a minimum safety factor of 1.5 for the refuse pile, the
State regulatory authority may approve layers exceeding 24 inches in
thickness. The Federal
[[Page 66820]]
regulations at 30 CFR 816.83 and 817.83 require refuse piles to meet
the requirements of 816.81 and 817.81, respectively. At 30 CFR
816.81(c)(2) and 817.81(c)(2), respectively, a disposal facility shall
be designed to attain a minimum long-term static safety factor of 1.5.
The Director is approving Alabama's proposed exception because it is no
less effective than the Federal regulations.
C. Revisions to Alabama's Regulations With No Corresponding Federal
Regulations
1. Rule 880-X-5A-.22 Orders and Decisions
Alabama proposed to replace the existing requirements with the
following new requirements. At paragraph (1)(a), the hearing officer is
to make a written decision within 30 days after the close of ``any''
hearing. OSM has regulations for hearings that provide time frames of
30 or 60 days in which written decisions must be furnished to the
participants of the hearing based upon the reason the hearing is being
held. For example, the Federal regulation at 30 CFR 775.11(b)(4)
regarding administrative review of decisions on permits require that
decisions be made, in writing, within 30 days after these hearings. As
another example, the Federal regulation at 30 CFR 769.18 regarding
decisions on petitions for designating lands unsuitable for mining
requires that a written decision be made within 60 days of the
completion of the hearing. The Director finds that Alabama's proposal
for requiring decisions to be made within 30 days after the close of
``any'' hearing is no less effective than the Federal regulations and
is approving it.
At paragraph (1)(b), Alabama proposed that the Division of Hearings
and Appeals (DHA) provide copies of all orders of the hearing officer
to all parties. Parties other than the regulatory authority will
receive copies of the orders by the first class mail. The Federal
regulations at 30 CFR 769.18(b) regarding decisions on petitions for
designating lands unsuitable for mining and 30 CFR 775.11(b)(4)
regarding administrative review of decisions on permits, require
written hearing decisions to be sent to each person who participated in
the hearing. The Director finds that Alabama's proposed amendment is
not inconsistent with the Federal regulations and is approving it.
At paragraph (2), Alabama proposed that any party may petition the
Commission for an expedited review of any pending appeal if the hearing
officer fails to render a decision within the time specified in
paragraph (1)(a). OSM does not have a counterpart Federal regulation
that provides for an expedited review of any pending appeal if the
hearing officer fails to render a decision within specified time
frames. The Director finds that Alabama's proposed regulation is not
inconsistent with the Federal regulations and is approving it.
2. Rule 880-X-6A-.06 License Application Requirements
At paragraph (k), Alabama proposed to replace the reference to
``Chapter 880-X-7'' with the corrected reference to ``Chapter 880-X-
8.'' The Director is approving this correction.
3. Rule 880-X-10C-.36 Disposal of Excess Spoil and 880-X-10D-.33
Disposal of Excess Spoil and Underground Development Waste
At paragraphs (16)(a) in the first sentence, Alabama proposed to
remove the language ``in natural ground along the periphery of the
fill.'' The Director is approving the removal of this language because
there is no Federal counterpart and because the removal of this
language will not render the Alabama program less effective than the
Federal regulations.
4. Rules 880-X-10C-.38 and 880-X-10D-.34 Coal Mine Waste: General
Requirements
Alabama proposed to remove existing paragraphs (1)(d) for its
regulations and to redesignate existing paragraphs (1)(e) and (1)(f) as
paragraph (1)(d) and (1)(e), respectively. The Director is approving
theses revisions because there is no Federal counterpart regulation to
existing paragraph (d) that the State proposed to remove and because
its removal will not render the Alabama program less effective than the
Federal regulations.
IV. Summary and Disposition of Comments
Public Comments
OSM solicited public comments on the proposed amendment. No public
comments were received.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited
comments on the proposed amendment from various Federal Agencies with
an actual or potential interest in the Alabama program. OSM received
comments from the U.S. Fish and Wildlife Service dated April 24, 1997
(Administrative Record No. AL-0564), and the U.S. Department of Labor
Mine Safety and Health Administration dated May 5, 1997 (Administrative
Record No. AL-0565). The agencies stated that they either had no
comments or no concerns regarding the amendment.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the 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 Alabama proposed to make in this amendment
pertain to air or water quality standards. Therefore, OSM did not
request the EPA's concurrence.
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from the EPA (Administrative Record No. AL-0563).
The EPA did not respond to OSM's request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. OSM solicited comments on the
proposed amendment from the SHPO and ACHP (Administrative Record No.
AL-0563). The ACHP did not respond to OSM's request. OSM received a
comment dated June 3, 1997, from the Alabama Historical Commission
(Administrative Record No. AL-0567). The Alabama Historical Commission
felt that properties eligible for inclusion on the National Register
along with properties listed on the National Register should be
included in the Alabama Surface Mining Commission Rules regarding
procedures for areas unsuitable for mining at 880-X-7B-.07(6)(a). The
Alabama Historical Commission felt that this inclusion of properties
would be appropriate because it would conform with the Advisory Council
on Historic Properties' regulations at 36 CFR Part 800. In response to
these comments, Alabama did not propose to amend its regulation at 880-
X-7B-.07(6)(a) which is substantially identical to the Federal
regulation at 30 CFR 761.12(f)(1), and, therefore, is not inconsistent
with the Federal requirement. Also, in acting on State program
amendments, the Directory only addresses those sections of a State's
laws and regulations where revisions are proposed by the State.
[[Page 66821]]
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by Alabama on March 28, 1997, and as revised on
July 9 and 30, 1997.
The Director approves the rules as proposed by Alabama with the
provision that they be fully promulgated in identical form to the rules
submitted to and reviewed by OSM and the public.
The Director is also taking this opportunity to correct editorial
errors in the required regulatory program amendments section at 30 CFR
901.16.
The Federal regulations at 30 CFR Part 901, codifying decisions
concerning the Alabama 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.
VI. 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 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)).
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
corresponding 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 corresponding 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 901
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 25, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 901 is amended
as set forth below:
PART 901--ALABAMA
1. The authority citation for Part 901 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 901.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 901.15 Appoval of Alabama regulatory program amendments.
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Original amendment submission date Date of final publication Citation/description
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* * * * * * *
March 28, 1997........................... December 22, 1997....................... 880-X-5A-.22(1)(a), (1)(b)
and (2); 880-X-6A-.06(k);
880-X-7B-.07(5); 880-X-9E-
.05(2) and (3); 880-X-10C-
.23(2)(a), .36(13)(b) and
(b)(1), (15)(b)(3), and
(16)(a), .38(1)(d) through
(1)(f), .40(3)(a); 880-X-
10D-.33(13)(b) and (b)(1),
(15)(b)(3), and (16)(a),
.34(1)(d) through (1)(f),
and .36(3)(a)
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[[Page 66822]]
Sec. 901.16 Removed and [Reserved]
3. The text of Sec. 901.16 is removed and the section and section
heading are reserved.
[FR Doc. 97-33335 Filed 12-19-97; 8:45 am]
BILLING CODE 4310-05-M