Alaska Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 902

[AK-004-FOR; Alaska Amendment IV]

Alaska Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is approving, with certain exceptions and additional requirements, a

proposed amendment to the Alaska regulatory program (hereinafter

referred to as the ``Alaska program'') under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). Alaska proposed revisions to and

additions of rules pertaining to fees for services, general permitting

requirements, general permit application information requirements,

environmental resource information requirements, reclamation and

operation plan requirements, processing of permit applications,

permitting for special categories of mining, exploration, the small

operator assistance program, bonding, performance standards, inspection

and enforcement, and general provisions. The amendment revised the

Alaska program to be consistent with the corresponding Federal

regulations, to clarify ambiguities, and to improve operational

efficiency.

EFFECTIVE DATE: September 17, 1996.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: (303) 672-

5524.

SUPPLEMENTARY INFORMATION:

I. Background on the Alaska Program

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

approved the Alaska program. 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, 1995, Alaska submitted a proposed amendment

(Amendment IV, administrative record No. AK-E-01) to its program

pursuant to SMCRA (30 U.S.C. 1201 et seq.). Alaska submitted the

proposed amendment at its own initiative and in response to (1) letters

dated November 1, 1989, and February 7, 1990 (administrative record

Nos. AK-60-05 and AK-60-06), that OSM sent to Alaska in accordance with

30 CFR 732.17(c), and (2) required program amendments at 30 CFR Part

902.16(a)(1), (2), (3), (6) through (14), and (16).

The provisions of the Alaska Administrative Code (AAC) that Alaska

proposed to revise, repeal, and add were: 11 AAC 05.010(a)(9)(D), fees

for incidental boundary revisions; 11 AAC 90.002, responsibilities; 11

AAC 90.003, continued operation under interim permits; 11 AAC 90.011,

permit fees; 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(2),

surface water information; 11 AAC 90.083(b), reclamation plan general

requirements; 11 AAC 90.097, transportation facilities; 11 AAC 90.099,

return of coal mine waste to abandoned underground workings; 11 AAC

90.117, administrative processing of permit applications; 11 AAC

90.125, Commissioner's [of Natural Resources] 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(d), operations

near alluvial valley floors; 11 AAC 90.163, exploration that

substantially disturbs the natural land surface or occurs in areas

designated unsuitable for mining; 11 AAC 90.173(b), eligibility for

small operator assistance; 11 AAC 90.207(f), self-bonding provisions;

11 AAC 90.321(d), hydrologic balance; 11 AAC 90.323(a), water quality

standards; 11 AAC 90.325(a), diversions and conveyance of flows; 11 AAC

90.327 (b) and (c), stream channel diversions; 11 AAC 90.336(b),

impoundment design and construction; 111 AAC 90.337(f), impoundment

inspection; 11 AAC 90.341(b), underground mine entry and access

discharges; 11 AAC 90.345(e), surface and ground water monitoring; 11

AAC 90.375(f), public notice of blasting; 11 AAC 90.391, disposal of

excess spoil or coal mine waste; 11 AAC 90.401(e), coal mine waste,

refuse piles; 11 AAC 90.407(e), coal mine waste, dams and embankments;

11 AAC 90.409, return of coal mine waste to underground workings; 11

AAC 90.423(b), protection of fish and wildlife; 11 AAC 90.443 (d) and

(k), backfilling and grading; 11 AAC 90.457 (c) and (d), standards for

revegetation success; 11 AAC 90.491, construction and maintenance of

roads, transportation and support facilities, and utility

installations; 11 AAC 90.601, inspections; 11 AAC 90.613, cessation

orders; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for coal

extraction incidental to the extraction of other minerals; 11 AAC

90.907, public participation; and 11 AAC 90.911, definitions.

Additionally, Alaska proposed several minor editorial revisions.

OSM announced receipt of the proposed amendment in the February 27,

1995, Federal Register (60 FR 10520), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. AK-E-05).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on March 29, 1995.

During its review of the amendment, OSM identified concerns

relating to the provisions of the Alaska Administrative Code at 11 AAC

05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.023, identification

of interests and compliance information; 11 AAC 90.117, administrative

processing of permit applications; 11 AAC 90.125, Commissioner's

findings; 11 AAC 90.126, improvidently issued permits; 11 AAC 90.129,

permit revisions and renewals; 11 AAC 90.149(d), operations near

alluvial valley floors; 11 AAC 90.173, eligibility for small operator

assistance; 11 AAC 90.207(f), self-bonding provisions; 11 AAC 90.327,

stream channel diversions; 11 AAC 90.336, impoundment design and

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

waste; 11 AAC 90.409, return of materials 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, transportation and

support facilities, and utility installations; 11 AAC 90.601,

inspections; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for

coal extraction incidental to the extraction of other minerals; 11 AAC

90.907, public participation; and 11 AAC 90.911, definitions. OSM

notified Alaska of the concerns by letter

[[Page 48836]]

dated July 19, 1995 (administrative record No. AK-E-12).

Alaska responded in letters dated October 11 and 24, 1995, and by a

FAX transmittal dated October 23, 1995, by submitting a revised

amendment and additional explanatory information and withdrawing

certain provisions (administrative record No. AK-E-14). Alaska proposed

revisions to and additional explanatory information for: 11 AAC

05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.045(a), geology

description; 11 AAC 90.099, return of coal mine waste and excess spoil

to abandoned underground workings; 11 AAC 90.149(d), operations near

alluvial valley floors; 11 AAC 90.163, exploration that occurs in an

area designated unsuitable for surface coal mining; 11 AAC 90.207,

self-bonding provisions; 11 AAC 90.327, stream channel diversions; 11

AAC 90.391, disposal of excess spoil or coal mine waste; 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 90491, construction and maintenance of roads,

transportation and support facilities, and utility installations; 11

AAC 90.901, applicability; and 11 AAC 90907, public participation.

In addition, Alaska withdrew proposed revisions and additions at:

11 AAC 90.023, identification of interests and compliance information;

11 AAC 90.117, administrative processing of permit applications; 11 AAC

90.125, Commissioner's findings; 11 ACC 90.126, improvidently issued

permits; 11 AAC 90.127, permit conditions; 11 AAC 90.129, permit

revisions and renewals; 11 AAC 90.336, impoundment design and

construction; 11 AAC 90.457, revegetation success standards; 11 AAC

90.601, inspections; 11 AAC 90.613, cessation order; 11 AAC 90.902,

exemption for coal extraction incidental to the extraction of other

minerals; and 11 AAC 90.911, definitions.

Based upon the revisions to and additional explanatory information

for the proposed amendment submitted by Alaska and the withdrawal of

certain proposed provisions, OSM reopened the public comment period in

the November 9, 1995, Federal Register (60 FR 56547; administrative

record No. AK-E-21). The public comment period ended on November 24,

1995.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with certain exceptions and additional

requirements, that the proposed program amendment submitted by Alaska

on January 26 and February 13 and 14, 1995, and as revised by it and

supplemented with additional explanatory information on October 11, 23,

and 24, 1995, is no less effective than the corresponding Federal

regulations. Accordingly, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to Alaska's Rules

Alaska proposed revisions to the following previously-approved

rules that are non substantive in nature and consist of minor

editorial, punctuation, grammatical, and recodification changes

(corresponding Federal regulation provisions are listed in

parentheses):

11 AAC 90.025(b) and (c) (30 CFR 778.15(a) and (b)), right of entry

information,

11 AAC 90.049(2) and (2)(E) through (H) (30 CFR 780.21(b)(2) and

784.14(b)(2)), surface water information,

11 AAC 90.083(b)(10) and (11) (30 CFR 780.27, 780.37(a)(4), and

784.24(a)(4)), reclamation plan general requirements,

11 AAC 90.149(d) (30 CFR 785.19(b)(2)), operations near alluvial

valley floors,

11 AAC 90.163(b), (c), and (c)(3)(B) (30 CFR 772.14(b)(1), and

(b)(2)(i), exploration that substantially disturbs the natural land

surface or occurs in an area designated unsuitable for mining,

11 AAC 90.391(b) (30 CFR 816.71(b) and 817.71(b)), disposal of

excess spoil or coal mine waste,

11 AAC 90.401(e) (30 CFR 816.83(c)(4) and 817.83(c)(4)), coal mine

waste refuse piles,

11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8) (30 CFR 816.150(b),

(b)(4), (f)(4), and (f)(6) and 817.150(b), (b)(4), (f)(4), and

(f)(6)), construction and maintenance of roads, transportation and

support facilities, and utility installations, and

11 AAC 90.907(e), (f), (g), (h), and (j) (30 CFR 740.13(c),

772.12(c), 773.13, 774.17(c), 785.13(h), 800.40, and 840.15), public

participation.

Because the proposed revisions to these previously-approved rules

are nonsubstantive in nature, the Director finds that these proposed

Alaska rules are no less effective than the Federal regulations. The

Director approves these proposed rules.

2. Substantive Revisions to Alaska's Rules That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

Alaska proposed revisions to the following rules that are

substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal regulation

provisions (listed in parentheses):

11 AAC 05.010(a)(11)(D) and 11 AAC 90.011 (30 CFR 777.17), permit

fees,

11 AAC 90.002 (30 CFR Part 772 and 773.11), responsibilities under

general permitting requirements,

11 AAC 90.025(a) (30 CFR 778.13(e) and (f)), authority to enter and

ownership information,

11 AAC 90.045(a) (30 CFR 780.22(b)(1) and 784.22(b)(1)), geology

description,

11 AAC 90.049(2)(D) (30 CFR 780.21(b)(2) and 784.14(b)(1)), surface

water information,

11 AAC 90.083(b)(12) (30 CFR 780.37(a)(6) and 784.24(a)(6)),

reclamation plan general requirements,

11 AAC 90.097 (30 CFR 780.37(a)(1), (3), and (5) and 784.24(a)(1),

(3), and (5)), transportation facilities,

11 AAC 90.149(d)(1) (30 CFR 785.19(d)(2)(1)), operations near

alluvial valley floors,

11 AAC 90.163, (a), (b)(1), (c)(4), and (c)(5) (30 CFR 772.12(a) and

772.14(b), (b)(1), (3), and (4)), exploration that substantially

disturbs the natural land surface or occurs in an area designated

unsuitable for mining,

11 AAC 90.207(f)(1), (2), and (4) through (7) (30 CFR 800.16(e)(2)

and 800.23(b), (c)(1), and (d) through (g)), requirements for self-

bonding,

11 AAC 90.375 (30 CFR 816.64(b) and 817.64(b)), public notice of

blasting,

11 AAC 90.391 (h) and (s) (30 CFR 816.71 (g) and (i) and 817.71 (g)

and (i)), disposal of excess spoil or coal mine waste,

11 AAC 90.407(e) (30 CFR 816.84(b)(2) and 817.84(b)(2)), coal mine

waste, dams and embankments,

11 AAC 90.409 (30 CFR 816.71(j), 817.71(j), 816.81(f), and

817.81(f), return to underground workings,

11 AAC 90.423(b) and (h) (30 CFR 780.16(c), 784.21(c), 816.97(b),

and 817.91(b)), protection of fish and wildlife,

11 AAC 90.443(d)(1) (30 CFR 816.106(b)(1) and 817.106(b)(1)),

backfilling and grading of previously mined areas,

11 AAC 90.491(a)(1), (6), and (8), (c) (5) through (7), and (e) (30

CFR 816.150(b)(1), (3), (7), (d), and (f) (3) and (6); 816.181(b)

(1) and (2)(ii), 817.150(b)(1), (3), and (7), (d), and (f) (3) and

(6); and 817.181(b) (1) and (2)(ii)), construction and maintenance

of roads, transportation and support facilities, and utility

installations,

11 AAC 90.901(e) (30 CFR 700.11(d)(1)(ii)), applicability, and

11 AAC 90.907 (c) and (d) (30 CFR 840.14 (b) and (c)(2)), public

participation.

Because these proposed Alaska rules are substantively identical to

the corresponding provisions of the Federal regulations, the Director

finds that they are no less effective than the Federal regulations. The

Director approves these proposed rules.

3. 11 AAC 90.003. Continued Operation Under Interim Permits

Alaska proposed to repeal 11 AAC 90.003, which provides that a

person operation under a permit issued or amended by the Commissioner

in accordance with section 502 of SMCRA

[[Page 48837]]

may conduct operations more than eight months after approval of the

Alaska program if certain criteria are met. 11 AAC 90.003 is

substantively the same as the counterpart Federal regulations at 30 CFR

773.11(b)(2), which provide for continuation of initial program

operations when certain conditions are met. Alaska has informed OSM

that there are no interim permits within the State. Therefore, the

Director finds that 11 AAC 90.003 is no longer applicable in Alaska's

program. The Director approves the repeal of this rule.

4. 11 AAC 90.099, Return of Coal Mine Waste and Excess Spoil to

Abandoned Underground Workings

Alaska proposed to revise 11 AAC 90.099 to require that the

underground mining plan must describe the design, operation, and

maintenance of any proposed facility to return coal mine waste and

excess spoil to underground workings, including flow diagrams and other

drawing and maps required by the Commissioner, and that the permit

application also include any plans required to be submitted to the

Federal Mine Safety and Health Administration (MSHA) under 30 CFR

817.81(f). The Federal regulations at 30 CFR 784.25(a) provide, in

pertinent part, that each plan shall describe the design, operation and

maintenance of any proposed coal processing waste disposal facility,

for the approval of the regulatory authority and MSHA under 30 CFR

817.81(f). The performance standards at reference 30 CFR 817.81(f) and

those concerning excess spoil at 30 CFR 817.71(j) allow for the

disposal of coal mine waste and excess spoil in underground mine

workings in accordance with a plan approved by the regulatory authority

and MSHA under 30 CFR 784.25. Despite the fact that the plan

requirements at 30 CFR 784.25 do not specifically provide for the

underground disposal of excess spoil, the reference to 30 CFR 784.24 in

the performance standard at 30 CFR 817.71(j), which provides that

excess spoil may be disposed of in underground workings, clearly does

provide for such disposal. Therefore, the Director finds that the

proposed revision by Alaska at 11 AAC 90.099 is no less effective than

the Federal regulations at 30 CFR 784.25(a), 817.81(f) and 817.71(j).

The Director approves the revisions to this rule.

5. 11 AAC 90.163(C) (4) and (5), Exploration That Substantially

Disturbs the Natural Land Surface or Occurs in an Area Designated

Unsuitable for Surface Coal Mining

Alaska proposed the addition of new provisions at 11 AAC 90.163(c)

(4) and (5) to require that the demonstration that coal testing is

necessary for the development of a surface coal mining and reclamation

operation must also include evidence that sufficient reserves of coal

are available to the applicant for future commercial use or sale and an

explanation of why other mean of exploration are not adequate. Proposed

11 AAC 90.163(c) (4) and (5) are substantively the same as the

counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4). They

are also identical to existing 11 AAC 90.163(d) (1) and (2). It is not

clear to OSM why Alaska choose to add 11 AAC 90.163(c) (4) & (5) to its

rules when the same requirements already existed at 11 AAC 90.163(d)

(1) and (2). The Director finds that the addition of the provisions at

11 AAC 90.163(c) (4) and (5) is superfluous; however, the addition of

these provisions does not render Alaska's rule less effective than the

counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4).

Therefore, the Director approves the addition of these rules.

6. 11 AAC 90.207(f), Requirements for Self-Bonding

Alaska proposed new rules at 11 AAC 90.207(f) to provide specific

requirements for self-bonding. With the exceptions discussed below, the

proposed 11 AAC 90.207(f) is substantively similar to the requirements

of the counterpart Federal regulations at 30 CFR 800.23. Therefore, the

Director finds proposed 11 AAC 90.207(f) to be no less effective than

the Federal regulations and approves it.

a. 11 AAC 90.207(f), Definitions of ``self-bond'' and other terms

concerning financial statements.--Alaska's rules at 11 AAC 90.207 do

not define ``self-bond,'' which is an allowable form of bond under the

Federal regulations at 30 CFR 800.23. The term `'self-bond'' as defined

at 30 CFR 800.5(c) means ``an indemnity agreement in a sum certain

executed by the applicant or by the applicant and any corporate

guarantor and made payable to the regulatory authority with or without

a separate surety.''

OSM, in its July 19, 1995, issue letter, notified Alaska of the

lack of a counterpart definition in its rules (issue No. 9). Alaska's

response, dated October 11 and 24, 1995, provided that the term ``self-

bond'' was defined at Alaska Statute (AS) 27.21.160(d). AS 27.21.160(d)

is Alaska's statutory counterpart to section 509(c) of SMCRA, which

provides the conditions under which the regulatory authority may accept

a self-bond. Neither the Alaska statute nor the cited section of SMCRA

define ``self-bond.'' Therefore, the Director finds that the lack of a

definition of ``self-bond'' at 11 AAC 90.207(f) is less effective than

the Federal regulations and is requiring Alaska to add a definition of

`'self-bond'' to its rules or otherwise revise its program to define

``self-bond'' consistent with the Federal regulations at 30 CFR

800.5(c).

In addition, Alaska's proposed rules at 11 AAC 90.207(f) do not

include definitions for financial statement terms associated with self-

bonding such as ``current assets,'' ``current liabilities,'' ``fixed

assets,'' ``liabilities,'' ``net worth,'' and ``tangible net worth.''

The Federal regulations at 30 CFR 800.23(a) provide definitions for

financial statement terms because they are terms used in the provisions

concerning self-bonding to clarify what is meant or required by the

self-bonding financial tests. The terms are defined to avoid

misunderstandings about what an applicant can and cannot include in its

self-bonding application. This is necessary because not all financial

term definitions are consistent with standard accounting definitions.

For example, `'fixed assets,'' as defined for self-bonding, does not

allow land and coal in place to be counted as fixed assets because they

are difficult to evaluate and to liquidate. Standard accounting

principles, on the other hand, allow land and coal in place to be

counted as an asset when calculating total assets.

Therefore, the Director finds 11 AAC 90.207(f) to be less effective

than the counterpart Federal regulations at 30 CFR 800.23(a) to the

extent that the Alaska rule does not define the financial statement

terms used specifically for self-bonding. The Director requires Alaska

to provide financial statement definitions that are similar to the

definitions provided in the Federal regulations or otherwise revise its

program to be consistent with and no less effective than the Federal

regulations at 30 CFR 800.23(a)

b. 11 90.207(f)(3), Agent for service.--The rules proposed by

Alaska at 11 AAC 90.207(f)(3) provide requirements for acceptance of a

corporate guarantee of an applicant's self-bond, including requirements

concerning business history, submission of financial statements, and an

agent for service of process in Alaska. These requirements are

consistent with the Federal regulations at 30 CFR 800.23(c)(2), except

that the Federal regulations contain an additional requirement

concerning an agent for service for the applicant. The Director finds,

to the extent that 11 AAC 90.207(f)(3) does not require an applicant

whose self-bond is

[[Page 48838]]

guaranteed by a corporate guarantor to maintain its own agent for

service of process in Alaska, that Alaska's rule is less effective than

the counterpart Federal regulations at 30 CFR 800.23(c)(2). The

Director requires Alaska to amend its rule to require an applicant for

a self-bond to meet the requirements of 11 AAC 90.207(f)(1) (A), (C),

and (D), otherwise revise its program to require the permittee to

maintain an agent for service of process while its self-bond is

guaranteed by a corporate guarantor.

7. 11 AAC 90.321(d), Hydrologic Balance

Alaska proposed at 11 AAC 90.321(d) to require that the

Commissioner will, in the Commissioner's discretion, require operation

of necessary ``siltation structures,'' rather than water treatment

facilities, for as long as treatment is required. The counterpart

Federal regulations at 30 CFR 816.41 (a) and (d) provide, in pertinent

part, that the regulatory authority may require additional

preventative, remedial, or monitoring measures to assure that material

damage to the hydrologic balance outside the permit area is prevented

and that if drainage control, restabilization and revegetation of

disturbed areas, diversion of runoff, mulching, or other reclamation

and remedial practices are not adequate, the operator shall use and

maintain the necessary water-treatment facilities or water quality

controls. Further, the Federal regulations at 30 CFR 701.5 define

``siltation structure'' to mean ``a sedimentation pond, a series of

sedimentation ponds, or other treatment facility.'' Alaska has no

counterpart definition for ``siltation structure.'' Because Alaska's

rule lacks the requirement that the operator maintain and use necessary

water-treatment facilities, not just siltation structures, the Director

finds 11 AAC 90.321(d) to be less effective than the Federal

regulations at 30 CFR 816.41 (a) and (d) and 817.41 (a) and (d). The

Director does not approve 11 AAC 90.321(d) and requires Alaska to

revise it by ensuring that water treatment facilities will be operated

for as long as necessary or by adding a definition of ``siltation

structure'' to its rules that is no less effective than the Federal

definition of this term at 30 CFR 701.5.

8. 11 AAC 90.323(a), Water Quality Standards

Alaska proposed nonsubstantive editorial changes at 11 AAC

90.323(a), which are approved by the Director (see finding No. 1);

however, existing language contained in this provision provides that

discharges from underground workings to surface water and surface

drainage from the disturbed area must pass through one or more

``siltation structures.'' As discussed in finding No. 7 above, the

Director finds use of the term ``siltation structure'' to be less

effective than the Federal regulations at 30 CFR 816.41 (a) and (d) and

817.41 (a) and (d). The Director requires Alaska to revise 11 AAC

90.323 (a) to replace ``siltation structures'' with ``sedimentation

ponds or a treatment facility,'' or otherwise amend its regulatory

program to provide a definition of ``siltation structures'' that is no

less effective than the Federal definition of this term at 30 CFR

701.5.

9. 11 AAC 90.325(a), Diversions and Conveyance of Flow

Alaska proposed at 11 AACV 90.325(a) to require that all diversions

and collection drains that are used to transport water into ``siltation

structures,'' rather than ``treatment facilities,'' must meet the

requirements of this section for diversions and conveyance of flow. The

counterpart Federal regulations at 30 CFR 816.43(a) and (c)(2) and

817.43(a) and (c)(2) provide, in pertinent part, that all diversions

shall be designed to minimize the adverse impacts to the hydrologic

balance, which includes, as provided at 30 CFR 816.41(d)(1) and

817.41(d)(1), the use and maintenance of necessary water-treatment

facilities or water quality controls if drainage control,

restabilization and revegetation of disturbed areas, diversion of

runoff, mulching, or other reclamation or remedial practices are not

adequate to meet the hydrologic-balance protection requirements and the

water quality standards and effluent limitations. Therefore, because

Alaska's rule uses the term ``siltation structure,'' which is not

defined in the Alaska program, and because the rule lacks the

requirement that the operator maintain and use necessary water-

treatment facilities, not just siltation structures, the Director finds

11 AAC 90.325(a) to be less effective than the Federal regulations at

30 CFR 816.41(d)(1) and 817.41(d)(1), and does not approve the

replacement of ``treatment facilities'' with ``siltation structures.''

The Director requires Alaska to revise 11 AAC 90.325(a) by ensuring

that water treatment facilities will be operated for as long as

necessary or by adding a definition of ``siltation structure'' to its

rules that is no less effective than the Federal definition of this

term at 30 CFR 701. 5.

10. 11 AAC 90.327(b)(1) and (c), Stream Channel Diversions

Alaska proposed at 11 AAC 90.327 (b)(1) and (c) to replace

``erosion control structures'' and ``water treatment facilities'' with

the term ``siltation structures.'' The Director finds such replacement

to be less effective than the counterpart Federal regulations at 30 CFR

816.43 (a)(1) and (3) and 817.43 (a)(1) and (3) for the reasons

discussed below.

a. 11 AAC 90.327(b)(2), Design and Construction of stream channel

diversions.--Alaska proposed at 11 AAC 90.327(b)(1) to require that

``siltation structures'' rather than ``erosion control structures''

must be approved by the Commissioner and should be used only if

necessary to control erosion.

In the context of describing Federal performance standards for

stream channel diversions, ``erosion control structures'' and

``siltation structures'' are different kinds of structures and not

inter-changeable. The preamble for the Federal regulations at 30 CFR

816.44(b)(1) (44 FR 15399, March 13, 1979) stated that ``erosion

control structures such as channel lining structures, retention basins,

and artificial channel roughness structures shall be used in diversions

only when approved by the regulatory authority as being necessary to

control erosion.'' Because the Alaska program lacks a definition for

``siltation structures,'' it is not known whether ``siltation

structures,'' as used here, would include structures such as channel

linings, gabions, or retention basins. Therefore, the Director does not

approve at proposed 11 AAC 90.327(b)(1) the replacement of the term

``erosion control structures'' with ``siltation structures,'' and

requires Alaska to continue to use ``erosion control structures'' when

describing standards for stream channel diversions used to control

erosion.

b. 11 AAC 90.327(c), Removal of temporary stream channel

diversions.--Alaska proposed at 11 AAC 90.327(c) to require that

downstream ``siltation structures,'' rather than ``water treatment

facilities,'' previously protected by the diversion, must be modified

or removed at the time diversions are removed to prevent overtopping or

failure of the facilities, and that this requirement does not relieve

the operator from maintenance of a ``siltation structure,'' rather than

a ``water treatment facility,'' otherwise required under this chapter

or the permit. The counterpart Federal regulations at 30 CFR

816.43(a)(3) and

[[Page 48839]]

817.43(a)(3) require, in pertinent part, that downstream water-

treatment facilities previously protected by a diversion shall be

modified or removed, as necessary, to prevent overtopping or failure of

the facilities, and that this requirement shall not relieve the

operator from maintaining water-treatment facilities as otherwise

required. Because Alaska has not defined ``siltation structures,'' the

Director finds that replacement of ``water treatment facilities'' or

water treatment facility'' with ``siltation structures'' or ``siltation

structure'' is less effective than 30 CFR 816.43(a)(3) and

817.43(a)(3). The Director is not approving proposed 11 AAC 90.327(c)

and is requiring Alaska to revise it by retaining the terms ``water

treatment facilities'' and ``water treatment facility,'' or to provide

a definition of ``siltation structures'' that includes ``water-

treatment facilities.''

11. 11 AAC 90.337(f), Impoundment Inspection

Alaska proposed at 11 AAC 90.337(f) to require that in addition to

the formal inspections required under 11 AAC 90.337(a) through (e), all

impoundments must be examined at least once a quarter by a qualified

person for any appearances of structural weakness or other hazardous

conditions. The Federal regulations at 30 CFR 816.49(a)(12) and

817.49(a)(12) require, in pertinent part, that impoundments not meeting

the SCS (Soil Conservation Service, now Natural Resources Conservation

Service) class B or C criteria for dams in TR-60, or subject to 30 CFR

77.216-3, shall be examined at least quarterly. The Director finds 11

AAC 90.337(f), which requires that all impoundments must be examined at

least quarterly, is no less effective than the Federal regulations and

approves the revisions to this rule.

12. 11 AAC 90.341(b)(2), Underground Mine Entry and Access Discharges

Alaska proposed at 11 AAC 90.341(b)(2) to replace ``treatment

facility'' with ``siltation structure,'' and allow gravity discharge of

water from an underground mine if all water discharged, whether treated

or not, meets applicable State and Federal laws and regulations, and

the Commissioner finds that consistent maintenance of any siltation

structure required under 11 AAC 90.323 will occur throughout the

anticipated period of gravity discharge. The Federal regulations at 30

CFR 817.41(i)(1) require, in pertinent part, that gravity discharges of

water from underground mines may be allowed by the regulatory authority

if it is demonstrated that the untreated or treated discharge complies

with the performance standards of this part. This part includes the

provisions at 817.41(d)(1), concerning protection of the hydrologic

balance and monitoring, 817.42, concerning water quality standards, and

817.46(b)(5), concerning maintenance of siltation structures until

removal is authorized by the regulatory authority. As discussed in

previous findings, because Alaska has not defined ``siltation

structures,'' the Director finds that use of the term ``siltation

structures'' is less effective than the Federal regulations at 30 CFR

817.46(b)(5). The Director does not approve proposed 11 AAC

90.341(b)(2) and requires Alaska to revise it to provide for consistent

maintenance of any treatment facility used during the anticipated

period of gravity discharge, or otherwise revise its regulatory program

to ensure that ``siltation structure'' is defined in accordance with 30

CFR 701.5.

13. 11 AAC 90.345(e), Surface and Ground Water Monitoring

Alaska proposed at 11 AAC 90.345(e), concerning the monitoring of

stream, lake, and other surface water bodies that may be affected by

the mining operation or that will receive a discharge, to require that

the monitoring must be conducted at both upstream and downstream

locations in all receiving water bodies. The Federal regulations

concerning ground-water and surface-water monitoring at 30 CFR

816.41(c) and (e) and 817.41(c) and (e) require that monitoring shall

be conducted according to the ground-water monitoring plan and surface-

water monitoring plan approved under 30 CFR 780.21(i) and (j) for

surface mining activities and 30 CFR 784.14(h) and (i) for underground

mining activities, and that the regulatory authority may require

additional monitoring when necessary. There is no specific Federal

regulatory counterpart to Alaska's proposed rule at 11 AAC 90.345(e),

which requires both upstream and downstream monitoring locations.

However, the proposed requirement is not inconsistent with the Federal

regulations. Therefore, the Director finds that proposed 11 AAC

90.345(e) is no less effective than 30 CFR 816.41(c) and (e) and

817.41(c) and (e), which provide, in addition to conducting monitoring

in accordance with the approved monitoring plan, that the regulatory

authority may require additional monitoring when necessary. The

Director approves the proposed revisions to this rule.

14. 11 AAC 90.443(k), Backfilling and Grading

Alaska proposed new language at 11 AAC 90.443(k) to provide that spoil

shall be returned to the mined-out area, except for (1) excess spoil

disposed of in accordance with 11 AAC 90.391, and (2) spoil necessary

to blend regraded areas into the surrounding terrain in non-steep slope

areas so long as all vegetative and organic material is removed. The

counterpart Federal regulations at 30 CFR 816.102(b) provide that

spoil, except excess spoil disposed of in accordance with 30 CFR 816.71

through 816.74, shall be returned to the mined-out area. In addition,

30 CFR 816.102(d) (1) through (3) provide that spoil may be placed on

the area outside the mined-out area in nonsteep slope areas to restore

the approximate original contour by blending the spoil into the

surrounding terrain if certain requirements are met, including removal

of all vegetative and organic material, removal, segregation, storage

and redistribution of topsoil, and backfilling and grading of the spoil

in accordance with the requirements of 30 CFR 816.102.

Alaska's proposed rule at 11 AAC 90.443(k) is similar to the

Federal regulations at 30 CFR 816.102 (b) and (d), except that Alaska's

rule does not require that (1) the topsoil on the area outside the

mined-out area in nonsteep slope areas be removed, segregated, stored,

and redistributed in accordance with Alaska's counterpart to the cited

Federal regulation at 30 CFR 816.22, and (2) the spoil to be placed on

the area outside the mined-out area in nonsteep slope areas be

backfilled and graded in accordance with the requirements of Alaska's

counterpart to the cited Federal regulation at 30 CFR 816.102.

Therefore, the Director finds, to the extent that Alaska's rule at 11

AAC 90.443(k) lacks the counterpart requirements of the Federal

regulations at 30 CFR 816.102(d) (2) and (3), 11 AAC 90.443(k) to be

less effective than the Federal regulations. The Director approves

proposed 11 AAC 90.443(k), but requires Alaska to revise it to provide

that the topsoil on the area outside the mined-out area in nonsteep

slope areas shall be removed, segregated, stored and redistributed in

accordance with its topsoil removal provisions and that the spoil be

backfilled and graded on the area in accordance with its provisions

concerning performance standards for backfilling and grading, or

otherwise amend its program to ensure that the disposal of spoil

provisions are no less effective than the Federal regulations at 30 CFR

816.102(d) (2) and (3).

[[Page 48840]]

15. 11 AAC 90.491(f) Construction and Maintenance of Roads

Alaska proposed at 11 AAC 90.491(f) that any road used to transport

coal or spoil, frequently used in excess of six months for access or

other purposes, or retained for an approved postmining land use, must

meet several additional requirements, including certification, safety

factor, location, drainage control, and surfacing. Proposed 11 AAC

90.491(f) is substantively the same as the counterpart Federal

regulations at 30 CFR 816.150(b) and 817.150(b) and 816.151 (a) through

(c), (d) (1) through (4), and (e) and 817.151 (a) through (c), (d) (1)

through (4), and (e). However, proposed 11 AAC 90.491(f) lacks

provisions that are required by the Federal regulations at 30 CFR

816.151(c)(2), (d)(5), and (d)(6) and 817.151(c)(2), (d)(5) and (d)(6),

concerning fords of perennial or intermittent streams, the alteration

or relocation of natural stream channels, and structures for perennial

or intermittent stream channel crossings. Alaska proposed new language

at 11 AAC 90.097 concerning reclamation plan general requirements for

transportation facilities, to require that the surface coal mining

application contain the specifications for each low water crossing and

temporary stream ford (see finding No. 2), but Alaska did not include

all the necessary performance standards concerning location and

drainage control. With the exception of the lack of necessary

provisions discussed above, the Director finds that proposed 11 AAC

90.491(f) is no less effective than the Federal regulations at 30 CFR

816.151 and 817.151 and approves it. The Director is, however,

requiring Alaska to revise 11 AAC 90.491(f) to ensure that its

performance standards for primary roads include requirements concerning

fords, alteration or relocation of natural stream channels, and stream

crossings, or otherwise revise its program to provide counterpart

provisions to the Federal regulations at 30 CFR 816.151(c)(2), (d)(5),

and (d)(6) and 817.151(c)(2), (d)(5), and (d)(6).

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 agencies with an actual or

potential interest in the Alaska program (administrative record Nos.

AK-E-2 and AK-E-16).

U.S. Bureau of Reclamation (BOR).--By letter dated March 15, 1995,

the BOR Washington, D.C. office responded that it does not have

jurisdiction in the Alaska area (administrative record No. AK-E-6). OSM

has, therefore, removed the BOR Washington, D.C. office from the

mailing list soliciting comments on Alaska amendments.

Bureau of Land Management (BLM).--By letters dated March 17 and

November 9, 1995, the BLM Alaska State Office responded that the

amendment created no potential conflicts with the management criteria

of the BLM surface management program in Alaska concerning mineral

development. Therefore, BLM had no comments on the proposed amendment

(administrative record Nos. AK-E-7 and AK-E-19).

U.S. Bureau of Mines (BOM).--The BOM Washington, D.C. office

responded on March 17 and November 2, 1995, that it had no comments

(administrative record Nos. AK-E-8 and AK-E-18). In addition, the BOM

Alaska Field Operations Center responded on March 27, 1995, that it had

no comments on the proposed revisions (administrative record No. AK-E-

11).

U.S. Fish and Wildlife Service (FWS).--FWS responded on March 22,

1995, that it was not able to thoroughly review the proposed changes to

Alaska's rules due to staffing and funding constraints, and therefore,

it had no specific comments (administrative record No. AK-E-9).

U.S. Department of Energy (DOE).--By letters dated March 21 and

November 1, 1995, the DOE Alaska Power Administration responded on that

it had no comments (administrative record Nos. AK-E-10 and AK-E-17).

Natural Resources Conservation Service (NRCS).--NRCS responded on

December 5, 1995, with comments on the proposed amendment

(administrative record No. AK-E-20).

NRCS commented that the ``history of farming'' at 11 AAC 90.149(d)

should be expanded to include ``or potential for farming.'' NRCS stated

that many alluvial valley floors have soil and climate characteristics

suitable for agriculture and that even though the total existing acres

in production in Alaska are limited due to market conditions, that

should not preclude maintaining hydrologic functions on areas with

agriculture potential. NRCS suggested that these areas can be

identified using existing Department of Natural Resources guidelines

for identifying lands with agricultural potential.

Alaska's rule at 11 AAC 90.149(d) provides, in pertinent part, that

certain information must be included in the permit application if the

proposed operation may affect an alluvial valley floor, unless the

Commissioner determines that some or all of the information is

unnecessary because the particular valley floor has no history of

farming, is not subirrigated, or has no deficiency of water. The

counterpart Federal regulations at 30 CFR 785.19(b)(2) and (d)(1)

provide, in pertinent part, for statutory exclusions concerning

alluvial valley floors, including determinations by the State

regulatory authority that (1) the premining land use is undeveloped

rangeland which is not significant to farming or (2) any farming on the

alluvial valley floor that would be affected by the surface coal mining

operation is of such small acreage as to be of negligible impact on the

farm's agricultural production. Farm, as used in these Federal

regulations, is one or more land units on which farming is conducted

and a farm is considered to be the combination of land units with

acreage and boundaries in existence prior to enactment of SMCRA, or if

established after August 3, 1977, with those boundaries based on

enhancement of the farm's agricultural productivity.

The Federal regulations do not specifically address ``history of

farming'' or ``potential for farming.'' However, OSM has determined

that Alaska's rule at 11 AAC 90.149(d) is no less effective than the

Federal regulations at 30 CFR 785.19(d)(2) (see finding No. 1). OSM

interprets the phrase ``history of farming'' to be consistent with the

exceptions provided at 30 CFR 785.19(b)(2) in that the Federal

regulations require the regulatory authority to determine the presence

or absence of an alluvial valley floor, and if an alluvial valley floor

is present, then the regulatory authority determines the premining land

use and extent of farming in relation to the farm's agricultural

production. If there is no history of farming on the lands, then the

premining land use was not farming nor will a surface coal mining

operation impact the farm's agricultural production. Therefore, OSM is

not requiring Alaska to revise 11 AAC 90.149(d).

NRCS questioned why areas with permafrost or ice-covered ponds are

[[Page 48841]]

excluded from the provisions at 11 AAC 90.323(a). NRCS stated that

permafrost or ice-covered ponds should have no impact on the need for

siltation structures to maintain water quality because many areas with

permafrost will, upon disturbance, mining or otherwise, release

considerable sediment-laden water as the permafrost thaws. NRCS also

commented that the relevancy of ice-covered ponds is not clear at all.

Alaska's rule at 11 AAC 90.323(a) provides for protection of the

hydrologic balance and requires, in pertinent part, that the

Commissioner must make a finding, when conditions such as permafrost or

ice-covered ponds are present, that the drainage will meet the

applicable State and Federal water quality laws and regulations without

treatment. What NCRA has interpreted to be an exclusion from the

requirements of 11 AAC 90.323(a) is not an exclusion from the

requirement to meet the State's water quality standards. Therefore, OSM

is not requiring Alaska to revise 11 AAC 90.323(a) to remove the

language concerning permafrost and ice-covered ponds.

Concerning proposed 11 AAC 90.391, NRCS questioned to what

standards must revegetation occur, whether this meant native species,

and if revegetation had to be compatible with the post-mining land use.

Proposed 11 AAC 90.391(s) requires, in pertinent part, that all

disturbed areas, including diversion channels that are not riprapped or

otherwise protected, shall be revegetated upon completion of

construction. The requirements of proposed 11 AAC 90.391(s) concern

stabilization of the surface area and are substantively the same as the

counterpart Federal regulations at 816.71(g) and 817.71(g) (see finding

No. 2). OSM states that the performance standards for revegetation are

provided at 30 CFR 816.111 and 817.111, including the use of native

species and compatibility with the approved postmining land use.

Therefore, vegetative cover used for surface area stabilization must

meet the specific requirements addressed by NRCS's questions concerning

revegetation.

3. Environmental Protection Agency (EPA) Concurrence

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 Alaska proposed to make in its amendment

pertain to air or water quality standards. Nevertheless, OSM requested

EPA's concurrence with the proposed amendment (administrative record

No. AK-E-03). EPA did not respond to OSM's request.

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 No.

AK-E-02). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, Alaska's proposed amendment as

submitted on January 26 and February 13 and 14, 1995, and as revised

and supplemented with additional explanatory information on October 11,

23, and 24, 1995.

With the requirement that Alaska further revise its rules, the

Director does not approve, as discussed in:

(1) Finding No. 7, 11 AAC 90.321(d), concerning hydrologic balance,

(2) Finding No. 9, 11 AAC 90.325(a), concerning diversions and

conveyance of flow,

(3) Finding No. 10(a) and (b), 11 AAC 90.327(b)(1) and (c),

concerning stream channel diversions, and

(4) Finding No. 12, 11 AAC 90.341(b)(2), concerning underground

mine entry and access discharges.

The Director approves, as discussed in:

(1) finding No. 1, 11 AAC 90.025(b) and (c), concerning right of

entry information, 11 AAC 90.049(2) and (2)(E) through (H), concerning

surface water information, 11 AAC 90.083(b)(10) and (11), concerning

reclamation plan general requirements, 11 AAC 90.149(d), concerning

operations near alluvial valley floors, 11 AAC 90.163(b), (c), and

(c)(3)(B), concerning exploration that substantially disturbs the

natural land surface or occurs in an area designated unsuitable for

mining, 11 AAC 90.391(b), concerning disposal of excess spoil or coal

mine waste, 11 AAC 90.401(e), concerning coal mine waste refuse piles,

11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8), concerning construction

and maintenance of roads, transportation and support facilities, and

utility installations, and 11 AAC 90.907(e), (f), (g), (h), and (j),

concerning public participation;

(2) Finding No. 2, 11 AAC 05.010(a)(11)(D) and 11 AAC 90.011,

concerning permit fees, 11 AAC 90.002, concerning responsibilities, 11

AAC 90.025(a), concerning authority to enter and ownership information,

11 AAC 90.045(a), concerning geology description, 11 AAC 90.049(2)(D),

concerning surface water information, 11 AAC 90.083(b)(12), concerning

reclamation plan general requirements, 11 AAC 90.097, concerning

transportation facilities, 11 AAC 90.149(d)(1), concerning operations

near alluvial valley floors, 11 AAC 90.163, (a), (b)(1), (c)(4), and

(c)(5), concerning exploration that substantially disturbs the natural

land surface or occurs in an area designated unsuitable for mining, 11

AAC 90.207(f)(1), (2), and (4) through (7), concerning requirements for

self-bonding, 11 AAC 90.375, concerning public notice of blasting, 11

AAC 90.391(h) and (s), concerning disposal of excess spoil or coal mine

waste, 11 AAC 90.407(e), concerning coal mine waste dams and

embankments, 11 AAC 90.409, concerning return to underground workings,

11 AAC 90.423(b) and (h), concerning protection of fish and wildlife,

11 AAC 90.443(d)(1), concerning backfilling and grading previously

mined areas, 11 AAC 90.491(a)(1), (6), and (8), (c)(5) through (7),

(e), and (f)(1) through (9), concerning construction and maintenance of

roads, transportation and support facilities, and utility

installations, 11 AAC 90.901(e), concerning authority, and 11 AAC

90.907(c) and (d), concerning public participation;

(3) Finding No. 3, 11 AAC 90.003, repeal of provisions concerning

continued operation under interim permits;

(4) Finding No. 4, 11 AAC 90.099, concerning return of coal mine

waste and excess spoil to abandoned underground workings;

(5) Finding No. 5, 11 AAC 90.163(c)(4) and (5), concerning

exploration that substantially disturbs the natural land surface or

occurs in an area designated unsuitable for surface coal mining;

(6) Finding No. 11, 11 AAC 90.337(f), concerning impoundment

inspections; and

(7) Finding No. 13, 11 AAC 90.345(e), concerning surface and ground

water monitoring.

With the requirement that Alaska further revise its rules, the

Director approves, as discussed in:

(1) Finding No. 6a., 11 AAC 90.207(f), concerning definitions of

``self-bond'' and other terms concerning financial statements,

[[Page 48842]]

(2) Finding No. 6b, 11 AAC 90.207(f)(3), concerning an agent for

service,

(3) Finding No. 8, 11 AAC 90.323(a), concerning water quality

standards,

(4) Finding No. 14, 11 AAC 90.443(k), concerning backfilling and

grading, and

(5) Finding No. 15, concerning construction and maintenance of

roads.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

902.16 that, within 60 days of the publication of this final rule,

Alaska must either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Alaska's established administrative or legislative

procedures.

The Director approves the rules as proposed by Alaska with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 902, codifying decisions

concerning the Alaska 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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Alaska program, the Director will recognize only the

statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by [State] of only such

provisions.

VI. 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 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 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.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 902

Intergovernmental relations, Surface mining, Underground mining.

Dated: August 26, 1996.

James F. Fulton,

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 902--ALASKA

1. The authority citation for part 902 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 902.15 is amended by adding paragraph (d) to read as

follows:

Sec. 902.15 Approval of regulatory program amendments.

* * * * *

(d) With the exception of 11 AAC 207(f), concerning requirements

for self-bonds, 11 AAC 90.321(d), concerning hydrologic balance, 11 AAC

90.323(a), concerning water quality standards, 11 AAC 90.325(a),

concerning diversions and conveyance of flow, 11 AAC 90.327(b)(1) and

(c), concerning stream channel diversions, 11 AAC 90.341(b)(2),

concerning underground mine entry and access discharges, 11 AAC

90.443(k), concerning backfilling and grading, and 11 AAC 90.491(f),

concerning construction and maintenance of roads, the revisions to and

additions of rules proposed in Alaska Amendment IV, as submitted to OSM

on January 26, 1995, and as revised on October 11, 23, and 24, are

approved effective September 17, 1996.

3. Section 902.16 is amended by adding the introductory paragraph

and paragraph (b) to read as follows:

Sec. 902.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), Alaska is required to submit to

OSM by the specified date the following written, proposed program

amendments, or a description of an amendment to be proposed that meets

the requirements of SMCRA and 30 CFR Chapter VII and a timetable for

enactment that is consistent with Alaska's established administrative

or legislative procedures.

* * * * *

[[Page 48843]]

(b) By November 18, 1996, Alaska shall revise the following rules,

or otherwise modify its program, to:

(1) At 11 AAC 90.207(f), require the addition of a definition for

the term ``self-bond'' and other financial terms used to describe self-

bonds consistent with the Federal regulations at 30 CFR 800.5(c) and

800.23(a), and to require the applicant for a self-bond that is

guaranteed by a corporate guarantor to retain his/her own agent for

service in Alaska.

(2) At 11 AAC 90.321(d), require that water treatment facilities

will be operated for as long as necessary, or add a definition of

``siltation structure'' that is no less effective than the Federal

definition of this term at 30 CFR 701.5.

(3) At 11 AAC 90.323(a), replace ``siltation structures'' with

``treatment facilities,'' or add a definition of ``siltation

structure'' that is no less effective than the Federal definition of

this term at 30 CFR 701.5.

(4) At 11 AAC 90.325(a), require that water treatment facilities

will be operated for as long as necessary or add a definition of

``siltation structure'' that is no less effective than the Federal

definition of this term at 30 CFR 701.5.

(5) At 11 AAC 90.327(b)(1) and (c), require that ``erosion control

structures'' be used when describing standards for stream channel

diversions used to control erosion, and that the terms ``water

treatment facilities'' and ``water treatment facility'' be retained or

provide a definition of ``siltation structures'' that includes ``water-

treatment facilities.''

(6) At 11 AAC 90.341(b)(2), require that any treatment facility

used during the anticipated period of gravity discharge will be

consistently maintained, or add a definition of ``siltation structure''

that is no less effective than the Federal definition of this term at

30 CFR 701.5.

(7) At 11 AAC 90.443(k), require that the topsoil on the area

outside the mined-out area in nonsteep slope areas shall be removed,

segregated, stored and redistributed in accordance with its topsoil

removal provisions and that the spoil be backfilled and graded on the

area in accordance with its provisions concerning performance standards

or backfilling and grading, or add provisions to ensure that the

disposal of spoil provisions are no less effective than the Federal

regulations at 30 CFR 816.102(d) (2) and (3).

(8) At 11 AAC 90.491(f), require the addition of provisions

concerning fords of perennial or intermittent streams, the alteration

or relocation of natural stream channels, and structures for perennial

or intermittent stream channel crossings that are no less effective

than 30 CFR 816.151(b)(2), (d)(5), and (d)(6) and 817.151(b)(2), (d)(5)

and (d)(6).

[FR Doc. 96-23677 Filed 9-16-96; 8:45 am]

BILLING CODE 4310-05-M