Arkansas Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

[SPATS No. AR-027-FOR]

Arkansas Regulatory Program

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

Interior.

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

hearing.

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

Arkansas regulatory program (hereinafter the ``Arkansas program'')

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The proposed amendment was submitted at the State's own initiative and

consists of revisions to and additions of regulations pertaining to

remining, water replacement, subsidence damage repair/compensation, and

enforcement. Arkansas also proposes to remove duplicated regulation

sections for surface and underground mining permit applications

pertaining to general requirements for the description of hydrology and

geology, groundwater information, surface water information,

alternative water supply information, and fish and wildlife resources

information. The amendment is intended to incorporate the additional

flexibility afforded by the revised Federal regulations, and to enhance

the enforcement of the State program.

DATES: Written comments must be received by 4:00 p.m., c.d.t., June 3,

1996. If requested, a public hearing on the proposed amendment will be

held on May 28, 1996. Requests to speak at the hearing must be received

by 4:00 p.m., c.d.t. on May 20, 1996.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Mr. Jack R. Carson, Acting Director,

Tulsa Field Office, at the address listed below.

Copies of the Arkansas program, the proposed amendment, a listing

of any scheduled public hearings, and all written comments received in

response to this document 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 contacting OSM's Tulsa Field Office.

Jack R. Carson, Acting Director, Tulsa Field Office, Office of Surface

Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470,

Tulsa, Oklahoma 74135-6547, Telephone: (918) 581-6430.

Arkansas Department of Pollution Control and Ecology, Surface Mining

and Reclamation Division, 8001 National Drive, Little Rock, Arkansas

72219-8913, Telephone (501) 682-0744.

FOR FURTHER INFORMATION CONTACT: Mr. Jack Carson, 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. Background information on the Arkansas

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

comments, and the conditions of approval can be found in the November

21, 1980, Federal Register (45 FR 77003). Arkansas amended its program

by submitting provisions that satisfied all of the conditions of the

Secretary's approval of November 21, 1980. Effective January 22, 1982,

OSM removed the conditions of the approval of the Arkansas permanent

regulatory program. Information on the removal of the conditions can be

found in the January 22, 1982, Federal Register (47 FR 3108).

Subsequent actions concerning the conditions of approval and program

amendments can be found at 30 CFR 904.12, 904.15, and 904.16.

II. Description of the Proposed Amendment

By letter dated April 2, 1996 (Administrative Record No. AR-557),

Arkansas submitted a proposed amendment to its program pursuant to

SMCRA. Arkansas submitted the proposed amendment at its own initiative.

The provisions of the Arkansas Surface Coal Mining and Reclamation Code

(ASCMRC) that Arkansas proposes to amend are:

A. Subchapter A--General

1. ASCMRC Section 700.10(b) Termination of Jurisdiction

Arkansas proposed to add this paragraph to include provisions for

termination of jurisdiction.

2. ASCMRC Section 705.5 Definitions

Arkansas proposes to amend this section by adding, alphabetically,

definitions of ``drinking, domestic or residential water supply,''

``land eligible for remining,'' ``material damage,''

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``non-commercial building,'' ``occupied residential dwelling and

structures related thereto,'' ``previously mined areas,'' ``replacement

of water supply,'' and ``unanticipated event or condition.''

B. Subchapter G--Surface Coal Mining and Reclamation Operations Permits

and Coal Exploration Procedures Systems

1. ASCMRC Section 771.12(h) Procedures

Arkansas proposes to amend this section by replacing the incorrect

reference to Sections 787.11(b) and 787.12(b)(1) with a reference to

Sections 787.11 and 787.12.

2. ASCMRC Section 771.25(b) Permit Fees

Arkansas proposes to amend this section by replacing the

calculation of the annual administration and enforcement fee on a per

affected acre basis with a flat fee of $600.00 per year through the

life of the permit.

3. ASCMRC Section 778.14(c) Compliance Information

Arkansas proposes to amend this section by replacing all existing

language except for the last sentence of the paragraph.

4. ASCMRC Section 778.18 Personal Injury and Property Insurance

Information

Arkansas proposes to amend this section by removing the reference

to Part 806 and adding a reference to Section 800.60.

5. ASCMRC Section 779.19(b) Vegetation Information

Arkansas proposes to amend this section by replacing the reference

to Part 779.20 with a reference to Section 780.16.

6. ASCMRC Section 779.22 Land Use Information

Arkansas proposes to remove this section and to incorporate its

provisions into Section 780.23.

7. ASCMRC Section 779.25(k) Cross-sections, Maps, and Plans

Arkansas proposes to remove and reserve this section.

8. ASCMRC Sections 780.21 and 784.14 Hydrologic Information

Arkansas proposes to amend Section 780.21 by inserting a new

subparagraph (f)(3)(v). Also, through an inadvertent oversight, Section

784.14 was not updated when Section 780.21 was amended in 1988.

Therefore, Arkansas proposes to amend Section 784.14 by renaming the

heading, by deleting the inappropriate reference to Section

780.21(b)(3) and referencing instead Sections 780.21(e) and

780.21(f)(3)(iii) as inapplicable to underground operations, and

inserting a reference to new paragraph Section 780.21(f)(3)(v).

Additionally, through an apparent typographical error, the heading for

Section 784.15 had been deleted making it appear that section 784.14

also references Section 780.23. Moreover, this reference incorrectly

excluded Section 780.23(a)(2) from consideration for underground mining

operations. Therefore, Section 784.14 is further amended by deleting

the reference to Section 780.23 and placing the corrected reference

under relisted Section 784.15.

9. ASCMRC Sections 780.23 and 784.15 Land Use Information

Arkansas proposes to amend Section 780.23 by replacing it in its

entirety. Additionally, through an apparent typographical error, the

heading for Section 784.15 had been deleted making it appear that

Section 784.14 also references Section 780.23. Moreover, this reference

incorrectly excluded Section 780.23(a)(2) from consideration for

underground mining operations. Therefore, Arkansas proposes to relist

the heading for Section 784.15, and to place the reference to Section

780.23 under this section.

10. ASCMRC Sections 780.25 and 784.16 Ponds, Impoundments, Banks, Dams

and Embankments

Arkansas proposes to amend Sections 780.25 and 7847.16 by replacing

the term ``Pond'' in the heading with ``Siltation Structures.'' Also,

Section 780.25 is proposed to be amended by replacing the terms ``pond

and sedimentation ponds'' with ``siltation structures'' in paragraphs

(a) and (b), by adding the phrase ``and a detailed design plan'' to

paragraph (a), by replacing the impoundment classification criteria in

paragraphs (a)(2), (a)(3), and (f), by replacing the references to now-

removed Sections 816.91 through 816.93 in paragraphs (a)(3) (i) and (e)

with a reference to Sections 816.81 through 816.84, by replacing the

existing language in paragraph (c), and by revising the referenced

sections in paragraph (d) from 816.85 to 816.84.

11. ASCMRC Section 783.22 Land Use Information

Arkansas proposes to remove this section and consolidate its

provisions into amended Section 783.23.

12. ASCMRC Section 784.20 Subsidence Control

Arkansas proposes to amend this section by removing all existing

language and adding new provisions for presubsidence surveys and

subsidence control plans.

13. ASCMRC Section 784.25(a) Return of Coal Processing Waste to

Abandoned Underground Workings

Arkansas proposes to amend this subsection by revising the

reference to Section 816.88 with a reference to Section 816.81(f).

14. ASCMRC Section 785.25 Lands Eligible for Remining

Arkansas proposes to add new Section 785.25 pertaining to

permitting requirements for lands eligible for remining.

15. ASCMRC Section 786.5(b) Definitions

Arkansas proposes to amend this subsection by revising the

introductory text; by rearranging, alphabetically, the existing

definitions; and by inserting alphabetically, definitions for

``Applicant/Violator System or AVS,'' ``Federal violation notice,''

``Ownership or control link,'' ``State violation notice,'' and

``violation notice.''

16. ASCMRC Section 786.11(c)(2) Public Notices of Filing of Permit

Applications

Arkansas proposes to amend this subsection by replacing the

reference to Section 783.20 with a reference to Section 780.16.

17. ASCMRC Section 786.17(c) Reveiw of Violations

Arkansas proposes to amend Section 786.17 by revising paragraph

(c)(1), by adding an additional qualifying phrase to paragraph (c)(2)

regarding permits which will be conditionally issued, and by adding new

paragraph (c)(4) regarding an exception to the prohibitions of

paragraph (b).

18. ASCMRC Section 786.19(g)-(r) Criteria for Permit Approval or

Denial

Arkansas proposes to amend this section by adding new paragraphs

(q) and (r) pertaining to lands eligible for remining.

19. ASCMRC Section 786.30 Improvidently Issued Permits: General

Procedures

Arkansas proposes to amend this section by revising paragraphs (b)

and (c), by renumbering the existing subparagraphs under (b) and (c),

and by adding new paragraphs (b)(2) and (c)(2)

[[Page 19883]]

pertaining to when an ownership and control link may be challenged

under Section 786.35.

20. ASCMRC Section 786.31 Improvidently Issued Permits: Rescission

Procedures

Arkansas proposes to amend this section by replacing the reference

to Section 786.30(c)(4) with 786.30(c)(1)(iv), by adding a qualifying

phrase regarding the provisions of proposed Section 786.35 to paragraph

(a), and by deleting the right to appeal provisions of paragraph (c)

which are now incorporated in Section 786.30.

21. ASCMRC Section 786.32 Verification of Ownership or Control

Application Information

Arkansas proposes to add new Section 786.32 pertaining to

verification of ownership or control application information through

manual data sources and automated data sources.

22. ASCMRC Section 786.33 Review of Ownership or Control Violation

Information

Arkansas proposes to add new Section 786.33 pertaining to the

review of violation notices and ownership or control links to determine

whether the application can be approved.

23. ASCMRC Section 786.34 Procedures for Challenging Ownership or

Control Links Shown in AVS

Arkansas proposes to add new Section 786.34 pertaining to

procedures for challenging ownership or control links shown in the AVS.

24. ASCMRC Section 786.35 Standards for Challenging Ownership or

Control Links and the Status of Violations

Arkansas proposes to add new Section 786.35 pertaining to the

standards for challenging ownership or control links shown in the AVS.

25. ASCMRC Section 788.14(a)(3) Permit Renewals: Completed

Applications

Arkansas proposes to amend this subsection by replacing the

reference to Section 806.14 with a reference to Section 800.60.

C. Subchapter H--Small Operator Assistance

1. ASCMRC Section 795.12 Program Services and Data Requirements

Arkansas proposes to revise the provisions in this section

pertaining to its small operator assistance program (SOAP) and to

revise the section title from ``Program Services'' to ``Program

Services and Data Requirements.'' This amended section includes the

provisions of former Section 795.16 Data Requirements.

2. ASCMRC Section 795.13(a)(2) Eligibility for Assistance

Arkansas proposes to amend paragraph (a)(2) by changing the

liability period and increasing the production level to 300,000 tons

with respect to operator eligibility.

3. ASCMRC Section 795.16 Data Requirements

Arkansas proposes to remove this section and combine it with

amended Section 795.12 Program Services and Data Requirements.

4. ASCMRC Section 795.17 Qualified Laboratories

Arkansas proposes to amend this section by revising the definition

of ``qualified laboratory'' in paragraph (a)(1) and by replacing the

references of Sections 795.16 (b)(1) and (b)(2) in paragraph (b)(2)

with Sections 795.12 (b)(1) and (b)(2).

5. ASCMRC Section 795.19 Applicant Liability

Arkansas proposes to amend this section by raising the production

level to 300,000 tons and reducing the liability period, and by making

other minor changes.

D. Subchapter J--Bond Insurance Requirements for Surface Coal Mining

and Reclamation Operations

1. Part 800--General Requirements for Bonding of Surface Coal Mining

and Reclamation Operations Under the State Program

Arkansas proposes to amend Subchapter J by deleting all existing

language from Part 800, and by removing Parts 805, 806, 807, and 808,

and consolidating the provisions of these removed Parts into amended

Part 800. Arkansas also proposes to change the title of Part 800 from

``General Requirements for Bonding of Surface Coal Mining and

Reclamation Operations Under the State Program'' to ``Bond and

Insurance Requirements for Surface Coal Mining and Reclamation

Operations Under the State Program.''

E. Subchapter K--State Program Performance Standards

1. ASCMRC Section 816.41 Hydrologic Balance Protection

Arkansas proposes to amend this section by adding new paragraph (e)

pertaining to permittees replacing a drinking, domestic or residential

water supply that is adversely impacted by underground mining

activities.

2. ASCMRC Section 816.46 Hydrologic Balance: Siltation Structures

Arkansas proposes to amend this section by expanding the definition

of ``other treatment facility'' in paragraph (a)(3), by suspending

paragraph (b)(2), and by revising paragraph (c)(2) regarding spillways.

3. ASCMRC Section 816.49 Impoundments

Arkansas proposes to amend this section by redesigning paragraphs

(a)(1) through (a)(8) as paragraphs (a)(2) through (a)(9),

respectively, and paragraphs (a)(9) through (a)(11) as paragraphs

(a)(11) through (a)(13), respectively; by replacing the language of

paragraph (a)(1) with language pertaining to impoundments meeting the

Class B or C criteria for dams in the U.S. Department of Agriculture,

Soil Conservation Service (SCS) Technical Release No. 60; by adding new

paragraph (a)(10) pertaining to high walls; by revising newly

redesignated paragraphs (a)(4), (a)(5), (a)(6)(i), and (a)(11), and

existing paragraphs (c)(2) (i) and (ii) by inserting references to the

SCS criteria for dam classification; and by replacing the existing

language of a newly redesignated paragraph (a)(9) with language

pertaining to spillways.

4. ASCMRC Section 816.81 Coal Mine Waste: General Requirements

Arkansas proposes to amend this section by replacing the

introductory text in paragraph (a); by replacing existing language in

paragraph (c)(2) with language pertaining to design criteria for a

disposal facility; and by deleting paragraphs (c)(3) and (c)(4).

5. ASCMRC Section 816.82 Coal Processing Waste Banks: Site Inspection

Arkansas proposes to remove this section pertaining to inspections

of coal processing waste banks.

6. ASCMRC Section 816.85 Coal Processing Waste Banks: Construction

Requirements

Arkansas proposes to remove this section pertaining to the

construction of coal processing waste banks.

7. ASCMRC Section 816.86 Coal Processing Waste: Burning

Arkansas proposes to remove this section pertaining to

extinguishing coal processing waste fires.

[[Page 19884]]

8. ASCMRC Section 816.88 Coal Processing Waste: Return to Underground

Workings

Arkansas proposes to remove this section pertaining to the return

of coal processing waste to underground mine workings.

9. ASCMRC Section 816.89 Disposal of Noncoal Mine Wastes

Arkansas proposes to amend this section by removing paragraph (d)

pertaining to the handling of hazardous noncoal mine waste.

10. ASCMRC Section 816.91--816.93 Coal Processing Waste: Dams and

Embankments

Arkansas proposes to remove Sections 816.91, 816.92, and 816.93 and

incorporate their provisions into Section 816.84. Sections 816.91,

816.92, and 816.93 pertain to obtaining State approval, site

preparation, and design and construction standards, respectively,

before using coal processing waste to construct dams and embankments.

11. ASCMRC Section 816.112 Revegetation, Use of Introduced Species

Arkansas proposes to remove this section pertaining to substituting

introduced species for native species.

12. ASCMRC Section 816.116 Revegetation: Standards for Success

Arkansas proposes to amend this section by revising paragraph

(c)(2) by deleting the precipitation qualifier and by adding new

subparagraphs (c)(2)(i) and (c)(2)(ii) pertaining to success standards

for lands eligible for remining, by deleting paragraph (c)(3)

pertaining to an average annual precipitation criterion, and by

redesignating paragraph (c)(4) as (c)(3).

13. ASCMRC Section 816.121-U Subsidence Control: General Requirements

Arkansas proposes to amend this section by combining the provisions

of Sections 816.121-U General requirements, 816.124-U Surface owner

protection, and 816.126-U Buffer zones into revised Section 816.121-U

General requirements.

14. ASCMRC Section 816.121-U Subsidence Control: Public Notice

Arkansas proposes to remove the first sentence of the introductory

paragraph and paragraphs (b) and (c) and insert language pertaining to

notifying landowners of proposed underground mining operations.

15. ASCMRC Section 816.124-U and 816.126-U Subsidence Control: Surface

Owner Protection and Buffer Zones, Respectively

Arkansas proposes to remove these two sections and incorporate

their provisions under revised Section 816.121-U General requirements.

16. ASCMRC Section 827.12 Coal Processing Plants: Performance

Standards

Arkansas proposes to replace the references to Sections 816.91

through 816.93 in paragraph (e) with Section 816.84. Arkansas also

proposes to amend paragraph (g) by replacing the terms ``solid waste''

and ``any excavated materials'' with ``noncoal mine waste'' and

``excess spoil,'' and by rearranging and revising the referenced

sections.

F. Subchapter L--State Program Inspection and Enforcement Procedures

1. ASCMRC Section 842.11 Inspections

Arkansas proposes to replace all existing language in paragraphs

(c)(1) through (c)(4), and to add new paragraphs (d) through (f).

2. ASCMRC Section 842.14 Review of Adequacy and Completeness of

Inspections

Arkansas proposes to amend this section by replacing references to

specific sections with more generalized language.

G. Subchapter R--Abandoned Mine Land Reclamation

1. ASCMRC Section 874.5 Definitions

Arkansas proposes to amend this section by revising the definition

of ``left or abandoned in either an unreclaimed or inadequately

reclaimed condition.''

2. ASCMRC Section 874.12 Eligible Lands and Water

Arkansas proposes to amend this section by adding new paragraphs

(a)(4) through (a)(8) pertaining to coal lands and water eligible for

reclamation activities.

H. The proposed amendment also consists of removals of duplicative

regulation sections for surface and underground mining permit

applications pertaining to ASCMRC Sections 779.13 and 783.13

Description of hydrology and geology: General requirements, ASCMRC

Sections 779.15 and 783.15 Groundwater information, ASCMRC Sections

779.16 and 783.16 Surface water information, ASCMRC Sections 779.17 and

783.17 Alternative water supply information, and ASCMRC Sections 779.20

and 783.20 Fish and wildlife resources information.

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 program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Arkansas program.

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 Tulsa Field Office will not

necessarily be considered in the final rulemaking or included in the

Administrative Record.

Public Hearing

Persons wishing to speak at the public hearing should contact the

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

c.d.t. on May 20, 1996. The location and time of the hearing will be

arranged with those persons requesting the hearing. 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. If no one requests an opportunity to speak 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 specified date until all

persons scheduled to speak have been heard. Persons in the audience who

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

following those who have been scheduled. The hearing will end after all

persons scheduled to speak and persons present in the audience who wish

to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak 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

[[Page 19885]]

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

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 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, 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

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: April 26, 1996.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 96-11022 Filed 5-2-96; 8:45 am]

BILLING CODE 4310-05-M