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[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:

------------------------------------------------------------------------
                                                     Federal counterpart
            Topic               State regulations        regulations    
------------------------------------------------------------------------
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).                              
------------------------------------------------------------------------

    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   
----------------------------------------------------------------------------------------------------------------
                                                                                                                
                 *            *            *            *            *            *            *                
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
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