Arkansas Regulatory Program

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

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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

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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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