[Federal Register Volume 63, Number 179 (Wednesday, September 16, 1998)]
[Rules and Regulations]
[Pages 49427-49430]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24780]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

[SPATS No. AR-030-FOR]


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 an 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 revisions to, and additions of, regulations pertaining to 
definitions; reclamation plans; disposal of excess spoil; steep slope 
mining; permits incorporating variances from approximate original 
contour restoration requirements for steep slope mining; prime 
farmlands; performance standards for coal exploration and prime 
farmland; signs and markers; topsoil and subsoil; hydrologic balance; 
backfilling and grading; procedures for assessment conference; and 
request for adjudicatory public hearing. Arkansas intends to revise its 
program to be consistent with the corresponding Federal regulations and 
to enhance enforcement of its program.

EFFECTIVE DATE: September 16, 1998.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining Reclamation and Enforcement, 
5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6548, 
Telephone: (918) 581-6430; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas 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 Arkansas Program

    On November 21, 1980, the Secretary of the Interior conditionally 
approved Arkansas' program. You can find background information on 
Arkansas' program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval in the November 21, 1980, 
Federal Register (45 FR 77003). Subsequent actions concerning the 
conditions of approval and program amendments can be found at 30 CFR 
904.10, 904.12, 904.15, and 904.16.

II. Submission of the Proposed Amendment

    In a letter dated February 6, 1998 (Administrative Record No. AR-
561), Arkansas sent us a proposed amendment to its program in 
accordance with SMCRA. The proposed amendment responded to our June 17, 
1997, letter (Administrative Record No. AR-559) that we sent to 
Arkansas in accordance with 30 CFR 732.17(c). The amendment also 
included changes made at Arkansas' own initiative.
    We announced receipt of the proposed amendment in the February 26, 
1998, Federal Register (63 FR 9747). In the same document, we 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 March 30, 1998. Because no one 
requested a public hearing or meeting, we did not hold one.
    During our review of the amendment, we identified concerns relating 
to Arkansas' regulations at the Arkansas Surface Coal Mining and 
Reclamation Code (ASCMRC) 816.56, Hydrologic Balance: Postmining 
Rehabilitation of Sediment Ponds, Diversions, Impoundments, and 
Treatment Facilities; ASCMRC 816.102, Backfilling and Grading: General 
Grading Requirements; ASCMRC 823.11, Applicability; and minor 
typographical errors. We notified Arkansas of these concerns in a fax 
dated July 6, 1998 (Administrative Record No. AR-561.06).
    In a letter dated July 15, 1998 (Administrative Record No. AR-
561.07), Arkansas responded to our concerns by sending us additional 
explanatory information and revisions to its proposed program 
amendment. Arkansas proposed additional revisions to ASCMRC 701.5, 
Definitions; ASCMRC 780.14, Operation Plan: Maps and Plans; ASCMRC 
816.46, Hydrologic Balance: Siltation Structures; ASCMRC 816.56, 
Hydrologic Balance: Postmining Rehabilitation of Sediment Ponds, 
Diversions, Impoundments, and Treatment Facilities; ASCMRC 816.102, 
Backfilling and Grading: General Grading Requirements; ASCMRC 823.11, 
Applicability; and ASCMRC 823.15, Revegetation and Restoration of Soil 
Productivity. Throughout its regulations, Arkansas also changed the 
name of the old U.S. Soil Conversation Services to its new name of 
Natural Resources Conservation Service.
    Based upon the additional explanatory information and/or revisions 
to the proposed program amendment submitted by Arkansas, we reopened 
the public comment period in the August 4, 1998, Federal Register (63 
FR 41506). The public comment period closed on August 19, 1998.

III. Director's Findings

    Following, and in accordance with SMCRA and the Federal regulations 
at 30 CFR 732.15 and 732.17, are our findings concerning the proposed 
amendment.
    Any revisions that we do not specifically discuss below concern 
nonsubstantive wording changes, or revised cross-references and 
paragraph notations to reflect organizational changes that result from 
this amendment.

A. Regulations That Arkansas Removed From the Arkansas Surface Coal 
Mining and Reclamation Code

1. ASCMRC 701.5, Definitions and ASCMRC 816.46, Hydrologic Balance: 
Siltation Structures
    Arkansas' current definition of ``siltation structure'' at ASCMRC 
816.46(a)(1) only applies to section 816.46. The definition of 
``siltation

[[Page 49428]]

structure'' must also apply to siltation structures at ASCMRC 780.25, 
Reclamation Plan: Siltation Structures, Impoundments, Banks, Dams and 
Embankments. Therefore, Arkansas proposed to remove the definition of 
``siltation structure'' from section 816.46(a)(1) and reserve paragraph 
(a)(1), and add the definition of ``siltation structure'' to the 
general definition section of its regulations at ASCMRC 701.5, 
Definitions. We are approving the removal of this definition from 
section 816.46(a)(1) and its addition to section 701.5 because we 
removed the definition of ``siltation structure'' from our own 
regulation at 30 CFR 816/817.46(a)(1) and added it to 30 CFR 701.5. We 
made the changes in recognition of the broader applicability of 
``siltation structure'' under the revised impoundment regulations. (See 
59 FR 53022, October 20, 1994.)
2. ASCMRC 816.21, Topsoil: General Requirements; ASCMRC 816.23, 
Topsoil: Storage; ASCMRC 816.24, Topsoil: Redistribution; ASCMRC 
816.25, Topsoil: Nutrients and Soil Amendments
    Arkansas proposed to remove ASCMRC 816.21, 816.23, 816.24 and 
816.25 from its regulations and combine their provisions into fully 
revised ASCMRC 816.22. We are approving the removal of the above 
sections because we removed the counterpart Federal regulations at 30 
CFR 816/817.21, 816/817.23, 816/817.24, and 816/817.25 from our 
regulations and incorporated their provisions into 30 CFR 816/817.22. 
(See 48 FR 22092, May 16, 1983.)
3. ASCMRC 816.103, Backfilling and Grading: Covering Coal and Acid and 
Toxic Forming Materials and ASCMRC Part 826, Special State Program 
Performance Standards--Operations on Steep Slopes
    Arkansas proposed to remove ASCMRC 816.103 and Part 826 from its 
regulations and incorporate their essential provisions into ASCMRC 
816.102(f) and 816.106, respectively. We are approving the removal of 
these sections because we removed the counterpart Federal regulations 
at 30 CFR 816.103 and Part 826, respectively, from our regulations and 
incorporated their essential provisions into 30 CFR 816.102(f), and 
816.107 and 817.107, respectively. (See 48 FR 23356, May 24, 1983.)

B. Revisions to Arkansas' Regulations That Are Substantively Identical 
to the Corresponding Provisions of the Federal Regulations

    1. Arkansas proposed to change the name of the ``U.S. Soil 
Conservation Service'' to its new name of ``Natural Resources 
Conservation Service'' throughout its regulations. We find that these 
changes will not make the Arkansas regulations less effective than the 
Federal regulations.
    2. The proposed State regulations listed in the table below contain 
language that is the same as or similar to the corresponding sections 
of the Federal regulations. Any differences between the proposed State 
regulations and the Federal regulations are nonsubstantive.

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                                                                                        Federal counterpart     
                Topic                           State regulation (ASCMRC)               regulation (30 CFR)     
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Definition of ``Significant            761.5.....................................  761.5.                       
 recreational, timber, economic or                                                                              
 other values compatible with surface                                                                           
 coal mining operations''.                                                                                      
Operation Plan: Maps and Plans.......  780.14(c).................................  780.14(c).                   
Disposal of Excess Spoil.............  780.35(b).................................  780.35(b).                   
Prime Farmland.......................  785.17(d)(5)..............................  785.17(e)(5).                
Topsoil and Subsoil..................  816.22....................................  816.22.                      
Hydrologic Balance: Postmining         816.56....................................  816.56.                      
 Rehabilitation of Sedimentation                                                                                
 Ponds, Diversions, Impoundments, and                                                                           
 Treatment Facilities.                                                                                          
Disposal of Excess Spoil: Pre-         816.74....................................  816.74.                      
 existing Benches.                                                                                              
Backfilling and Grading: General       816.102...................................  816.102.                     
 Grading Requirements.                                                                                          
Backfilling and Grading: Thin          816.104-S.................................  816.104.                     
 Overburden.                                                                                                    
Backfilling and Grading: Thick         816.105-S.................................  816.105.                     
 Overburden.                                                                                                    
Backfilling and Grading: Steep Slopes  816.106...................................  816.107.                     
Special State Program Performance      Part 823..................................  Part 823.                    
 Standards--Operations on Prime                                                                                 
 Farmland.                                                                                                      
Procedures for Assessment Conference.  845.18(b).................................  845.18(b).                   
Request for Adjudicatory Public        845.19(a).................................  845.19(a)                    
 Hearing.                                                                                                       
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    Because the above proposed revisions are identical in meaning to 
the corresponding Federal regulations, we find that Arkansas' proposed 
regulations are no less effective than the Federal regulations.

C. Revisions to Arkansas' Regulations That Are Not Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

1. ASCMRC 780.25, Reclamation Plan: Siltation Structures, Impoundments, 
Banks, Dams and Embankments
    Except for all coal processing waste dams and embankments covered 
by Section 816.81 through 816.84, Arkansas' current regulation at 
paragraph (a)(3)(i) authorizes a registered land surveyor to prepare 
and certify detailed design plans for structures not included in 
paragraph (a)(2). In this amendment, Arkansas removed the language that 
authorizes a registered land surveyor to prepare and certify these 
detailed design plans. We approve the removal of this authorization 
because 30 CFR 780.25(a)(3)(i) allows the preparation and certification 
of the above mentioned detailed design plans only in States that 
authorize land surveyors to prepare and certify such plans. Arkansas' 
regulations do not authorize land surveyors to prepare or certify such 
plans. Therefore, the removal of this provision does not conflict with 
30 CFR 780.25(a)(3)(i).

IV. Summary and Disposition of Comments

Public Comments

    We solicited public comments on the proposed amendment, but did not 
receive any.

Federal Agency Comments

    According to 30 CFR 732.17(h)(11)(i), and in a letter dated 
February 18, 1998 (Administrative Record No. AR-561.03), we solicited 
comments on the proposed amendment from various Federal

[[Page 49429]]

agencies with an actual or potential interest in Arkansas' program. We 
received comments from the U.S. Army Corp of Engineers in two letters 
dated March 17, 1998, and August 11, 1998 (Administrative Record Nos. 
AR-561.05 and AR-561.12, respectively). Both letters stated that they 
are satisfied with the changes that Arkansas proposed to make to the 
Arkansas program.

Environmental Protection Agency (EPA)

    According to 30 CFR 732.17(h)(11)(ii), we are required to obtain 
the written consent of the EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards that are in force 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 this amendment 
pertain to air or water quality standards. Therefore, we did not 
request the EPA's consent.
    According to 30 CFR 732.17(h)(11)(i), we solicited comments on the 
proposed amendment from the EPA (Administrative Record No. AR-561.01). 
The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    According to 30 CFR 732.17(h)(4), we are required to solicit 
comments from the SHPO and ACHP on proposed amendments which may have 
an effect on historic properties. We solicited comments on the proposed 
amendment from the SHPO and ACHP (Administrative Record No. AR-561.02), 
but neither responded to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment as submitted 
to us by Arkansas on February 6, 1998, and as revised on July 15, 1998.
    We approve the regulations that Arkansas proposed with the 
provision that they be fully placed in force in identical form to the 
regulations submitted to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 904 which codifies decisions concerning the Arkansas 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Arkansas 
to bring the Arkansas program into conformity with the Federal 
standards without undue delay. SMCRA requires consistency of State and 
Federal standards.

VI. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) under Executive Order 
12866 (Regulatory Planning and Review) exempts this rule from 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

    This rule does not require an environmental impact statement 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 under 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 904

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 31, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 904 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 in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 904.15  Approval of Arkansas regulatory program amendments.

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[[Page 49430]]



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        Original amendment submission date                      Date of final publication                             Citation/description              
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                                              *         *         *         *         *         *         *                                             
February 6, 1998..................................  September 16, 1998...............................  ASCMRC 701.5; 761.5(d); 780.14(c); 780.18(b)(7), 
                                                                                                        .25(a)(3)(i), .35(b); 785.15(b)-(c), .16(a),    
                                                                                                        (c)(6), and (d), .17(d)(5); 815.15(k);          
                                                                                                        816.11(g), .21, .22, .23, .24, .25, .43(e),     
                                                                                                        (f)(5), .44(c), .46, .48(b), .56, .74, .102,    
                                                                                                        .103, .104-S, .105-S, .106, .107(a)-(b); Part   
                                                                                                        823; Part 826; 845.18(b) and .19(a).            
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[FR Doc. 98-24780 Filed 9-15-98; 8:45 am]
BILLING CODE 4310-05-P