Alaska Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 902

Alaska Permanent Regulatory Program

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

Interior.

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

hearing on proposed program amendment.

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SUMMARY: OSM is announcing the receipt of a proposed amendment to the

Alaska permanent regulatory program (hereinafter, the ``Alaska

program'') under the Surface Mining Control and Reclamation Act of 1977

(30 U.S.C. 1201 et seq.) (SMCRA). The proposed amendment consists of

revisions to rules pertaining to fees, adoption by reference, general

permitting requirements, permit application information requirements,

environmental resource information requirements, reclamation and

operation plan, processing of permit applications, permitting for

special categories of mining, exploration, small operator assistance

program, bonding, performance standards, inspection and enforcement,

and general provisions. The amendment is intended to revise the Alaska

program to be consistent with the corresponding Federal regulations,

clarify ambiguities, and improve operational efficiency. The amendment

consists of proposed changes to the Alaska program as required by Part

902.16 of the Code of Federal Regulations and program deficiency

letters dated November 1, 1989, February 7, 1990, and January 15, 1993.

DATES: Written comments must be received by 4:00 p.m., m.s.t. March 29,

1995. If requested, a public hearing on the proposed amendment will be

held on March 24, 1995. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.s.t. on March 14, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to Guy

Padgett at the address listed below.

Copies of the Alaska program, the proposed amendment, and all

written comments received in response to this notice 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 contracting OSM's

Casper Field Office.

Guy Padgett, Director, Office of Surface Mining Reclamation and

Enforcement, Casper Field Office, 100 East B Street, Room 2128, Casper,

WY 82601-1918, (307) 261-5776

Mr. Jules Tileston, Director, Division of Mining and Water Resources,

Alaska Department of Natural Resources, 3601 C Street, Suite 800,

Anchorage, Alaska 99503-5935, (907) 762-5163

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Director, Telephone:

(307) 261-5776.

SUPPLEMENTARY INFORMATION

I. Background on the Alaska Program

On March 23, 1983, the Secretary of the Interior conditionally

approved the Alaska program as administered by the Alaska Department of

Natural Resources. General background information on the Alaska

program, including the Secretary's findings, the disposition of

comments, and conditions of approval of the Alaska program can be found

in the March 23, 1983, Federal Register (48 FR 12274). Subsequent

actions concerning Alaska's program and program amendments can be found

at 30 CFR 902.15 and 902.16.

II. Proposed Amendment

By letter dated January 26, 1995 and FAX transmittals dated

February 13 and 14, 1994 (Administrative Record No. AK IV-01), Alaska

submitted proposed Amendment IV to its permanent program pursuant to

SMCRA (SPATS AK-004-FOR). Alaska's proposed Amendment IV consists of:

changes to the Alaska program as required by 30 CFR Part 902.16;

changes in response to program deficiency letters from OSM dated

November 1, 1989, February 7, 1990, and January 15, 1993; and changes

to Alaska's own initiative. The provisions of the Alaska Administrative

Code (AAC) that Alaska proposes to revise are: 11 AAC 05.010(a)(9) and

11 AAC 90.011, fees; 11 AAC 90.001, adoption of rules by reference; 11

AAC 90.002, responsibilities; 11 AAC 90.003, interim permits; 11 AAC

90.023, identification of interests and compliance information; 11 AAC

90.025, authority to enter and ownership information; 11 AAC 90.045(a),

geology description; 11 AAC 90.049, surface water information; 11 AAC

90.083(b), reclamation plan requirements, roads; 11 AAC 90.097,

transportation facilities; 11 AAC 90.099, placement of coal mine waste

in underground workings; 11 AAC 90.117, processing of permit

applications; 11 AAC 90.125, commissioner's findings; 11 AAC 90.126,

improvidently issued permits; 11 AAC 90.127, permit conditions; 11 AAC

90.129, permit revisions and renewals; 11 AAC 90.149, alluvial valley

floors; 11 AAC 90.163, exploration that substantially disturbs or is

conducted in areas designated unsuitable for mining; 11 AAC 90.173,

eligibility for small operator assistance; 11 AAC 90.207, self-bonding

provisions; 11 AAC 90.321, hydrologic balance; 11 AAC 90.323, water

quality standards; 11 AAC 90.325, diversions and conveyance of flow; 11

AAC 90.327, stream channel diversions; 11 AAC 90.336, impoundment

design and construction; 11 AAC 90.337, impoundment inspection; 11 AAC

90.341, underground mine discharges; 11 AAC 90.345, surface and ground

water monitoring; 11 AAC 90.375, public notice of blasting; 11 AAC

90.391, disposal of excess spoil or coal mine waste; 11 AAC 90.401,

coal mine waste, refuse piles; 11 AAC 90.407, coal mine waste, dams and

embankments; 11 AAC 90.409, coal mine waste, return to underground

workings; 11 AAC 90.423, protection of fish and wildlife; 11 AAC

90.443, backfilling and grading; 11 AAC 90.457, Revegetation success

standards; 11 AAC 90.491, construction and maintenance of roads and

other transportation and support facilities; 11 AAC 90.601,

inspections; 11 AAC 90.613, cessation orders, 11 AAC 90.901,

applicability; 11 AAC 90.902, exception for coal extraction incidental

to the extraction of other minerals; 11 AAC 90.907, public

participation; and 11 AAC 90.911, definitions.

Specifically, Alaska proposes to:

--Revise 11 AAC 05.010(a)(9) and 90.011 to move the regulatory

requirements for permit fees to the fee provisions for the whole

department, and to set a fee for incidental boundary revisions;

--Revise 11 AAC 90.002 and delete 90.003, to eliminate provisions for

continued operation or exploration under interim permits;

--Repeal and readopt 11 AAC 90.023 to clarify and add requirements for

identification of ownership and control interests and compliance

histories;

--Revise 11 AAC 90.025 to require ownership information for owners,

lessees, and purchasers of record of [[Page 10521]] the surface and

coal to be affected and owners of record of surface and mineral estates

contiguous to the proposed permit area;

--Revise 11 AAC 90.045 to clarify the geologic strata for which permit

application information is required.

--Revise 11 AC 90.049 to add ``alkalinity'' as a parameter required in

surface water information;

--Revise 11 AAC 90.083 to require plans and schedule for road

reclamation;

--Revise 11 AAC 90.097 to require descriptions of temporary fords and

low water crossings;

--Revise 11 AAC 90.117(b) to clarify conditional permit issuance when

unabated violations are under appeal;

--Revise 11 AAC 90.125 to add written findings regarding unabated

violations for application approval or permit issuance;

--Add a new rule at 11 AAC 90.126 regarding permits subsequently found

to have been improvidently issued due to unabated violations, including

requirements for abatement plans or permit suspension or revocation;

--Revise 11 AAC 90.127 to require updates of ownership and control

information when certain cessation orders are issued;

--Repeal and readopt 11 AAC 90.129 to add additional application

requirements and procedures for major revisions, to revise the time

schedules for processing of revisions, and to clarify that revisions

are processed separately from associated renewal applications;

--Revise 11 AAC 90.149 to require that permit application information

for alluvial valley floors include factors contributing to the

collection and storage of water, regulation of flow of ground or

surface waters, and water availability;

--Revise 11 AAC 90.163 to require a permit application for exploration

in areas designated unsuitable for mining, for removal of more than 250

tons of coal under an exploration permit to require that coal testing

is necessary for development of a surface coal mining operation for

which a permit will soon be submitted, and to require that the

demonstration must evidence that the entire reserve will not be removed

and that other means of exploration are not adequate;

--Revise 11 AAC 90.173 to alter the proportions of coal produced by

other operations that would be attributed to an applicant for small

operator assistance under various ownership and control scenarios;

--Add at 11 AAC 90.207 new requirements for self-bonding;

--Revise 11 AAC 90.321, 90.325, 90.327, and 90.341 to replace the

phrases ``water treatment facility[ies],'' ``treatment facilities,''

and ``erosion control structures'' with the phrase ``siltation

structures;''

--Revise 11 AAC 90.336 to require spillways for a 100-year, 6-hour

storm event for impoundments meeting the criteria of 30 CFR 77.216(a),

and for a 25-year, 6-hour storm event for impoundments not meeting

those criteria;

--Add a new requirement at 11 AAC 90.337 that all impoundments be

inspected quarterly for structural weakness or other hazardous

conditions;

--Revise 11 AAC 90.345 to require that surface water monitoring be

conducted at both upstream and downstream monitoring sites in all

receiving water bodies;

--Revise 11 AAC 90.391 to allow coal mine waste to be placed in excess

spoil fills under certain circumstances, and to add requirements for

slope protection and revegetation or other surface protection;

--Revise 11 AAC 90.401 to grant the commissioner discretion in allowing

less than four feet of cover on refuse piles;

--Revise 11 AAC 90.407 to provide spillway design and operation for

dams and embankments of coal mine waste that meet the criteria of 30

CFR 77.216(a);

--Revise 11 AAC 90.423 to require reports of state-listed or federally-

listed species, to add consultation requirements for determining

whether the operation may proceed, and to add requirements for, on

request, informing the U.S. Fish and Wildlife Service of certain

resource information;

--Revise 11 AAC 90.443 to require that all spoil generated and all

reasonably available spoil be used to backfill remining operations, and

to allow for use of spoil for blending in non-steep slope areas;

--Revise 11 AAC 90.457 to require, for some land uses, consultation

with state agencies in specifying stocking and planting requirements,

to add utility and time-in-place requirements for woody species to be

counted, and to specify normal husbandry practices;

--Revise 11 AAC 90.491 to add design, construction, maintenance, and

reclamation requirements for roads and facilities;

--Revise 11 AAC 90.601 by adding new requirements allowing the

commission to establish inspection frequency on certain abandoned

sites;

--Revise 11 AAC 90.603 by adding new requirements for updating

ownership and control information after issuance of a cessation order;

--Revise 11 AAC 90.901 by adding provisions allowing for termination of

jurisdiction and reassertion of jurisdiction in specified

circumstances;

--Add a new rule at 11 AAC 90.902 specifying the requirements for

exemption from regulation for coal extraction incidental to the

extraction of other minerals;

--Revise 11 AAC 90.907 to allow for provision of documents to the

public by mail in some instances, and to require the availability of

documents for five years after bond release;

--Repeal and readopt 11 AAC 90.911 (definitions), including revision or

addition of the definitions of ``alluvial valley floor,''

``applicant,'' ``best technology currently available,'' ``coal,''

``collateral bond,'' ``commissioner,'' ``compaction,'' ``cumulative

measurement period,'' ``cumulative production,'' ``cumulative

revenue,'' ``current assets,'' ``current liabilities,'' ``department,''

``existing structure,'' ``fixed assets,'' ``fragile land,'' ``historic

land,'' ``imminent danger to the health and safety of the public,''

``incidental boundary revision,'' ``intermittent stream,''

``irreparable damage to the environment,'' ``liabilities,'' ``major

revision,'' ``mining area,'' ``natural hazard land,'' ``net worth,''

``operation,'' ``operator,'' ``other minerals,'' ``ownership or

control,'' ``parent corporation,'' ``perennial stream,'' ``performing

any function or duty under this Act,'' ``permanent,'' ``permit,''

``permit area,'' ``permittee,'' ``person,'' ``previously mined area,''

``reclamation plan,'' ``significant imminent environmental harm to

land, air, or water resources,'' ``siltation structure,'' ``soil

horizons,'' ``soil survey,'' ``surface coal mining and reclamation

operation,'' ``surface coal mining operations,'' ``[SMCRA],''

``tangible net worth,'' ``topsoil,'' and ``unwarranted failure to

comply''; and

--In the above and in other rules, make minor editorial and

codification revisions.

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 [[Page 10522]] program approval criteria of 30 CFR 732.15.

If the amendment is deemed adequate, it will become part of the Alaska

program.

1. 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 Casper Field Office will not

necessarily be considered in the final rulemaking or included in the

administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

m.s.t. on March 14, 1995. 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. The location

and time of the hearing will be arranged with those persons requesting

the hearing. If no one requests an opportunity to testify 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 specific date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

If only one person requests an opportunity to testify 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

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 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.

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 902

Intergovernmental relations, Surface mining, Underground mining.

Dated: February 21, 1995.

Peter A. Rutledge,

Acting Assistant Director, Western Support Center.

[FR Doc. 95-4683 Filed 2-24-95; 8:45 am]

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