Louisiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 918

[SPATS No. LA-017-FOR]

Louisiana 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

Louisiana regulatory program (hererinfafter the ``Louisiana program'')

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

The proposed amendment consists of revisions to and/or additions of

regulations pertaining to definitions, request for hearing, permitting

requirements, small operator assistance program, bond release

requirements, performance standards, and enforcement procedures/civil

penalties. The amendment is intended to revise the Louisiana program to

be consistent with the corresponding Federal regulations.

This document sets forth the times and locations that the Louisiana

program and proposed amendment to that program are available for public

inspection, the comment period during which interested persons may

submit written comments on the proposed amendment, and the procedures

that will be followed regarding the public hearing, if one is

requested.

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

19, 1997. If requested, a public hearing on the proposed amendment will

be held on December 15, 1997. Requests to speak at the hearing must be

received by 4:00 p.m., c.s.t. on December 4, 1997.

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

be mailed or hand delivered to Michael C. Wolfrom, Director, Tulsa

Field Office, at the address listed below.

Copies of the Louisiana 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.

Michael C. Wolfrom, 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.

Department of Natural Resources, Office of Conservation, Injection

and Mining Division, 625 N. 4th Street, P.O. Box 94275, Baton Rouge, LA

70804, Telephone: (504) 342-5540.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa

Field Office, Telephone (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Louisiana Program

On October 10, 1980, the Secretary of the Interior conditionally

approved the Louisiana program. General background information on the

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

of comments, and the conditions of approval of the Louisiana program

can be found in the October 10, 1980, Federal Register (45 FR 67340).

Subsequent actions concerning the Louisiana program and program

amendments can be found at 30 CFR 918.15 and 918.16.

II. Description of the Proposed Amendment

By letter dated October 24, 1997 (Administrative Record No. LA-

362), Louisiana submitted a proposed amendment to its program pursuant

to SMCRA. Louisiana submitted the proposed amendment in response to a

June 17, 1997, letter (Administrative Record No. LA-361) that OSM sent

to Louisiana in accordance with 30 CFR 732.17(c). Louisiana proposes to

amend the Louisiana Surface Mining Regulations. The full text of the

proposed program amendment submitted by Louisiana is available for

public inspection at the locations listed above under ADDRESSES. A

brief discussion of the proposed amendment is presented below.

A. Section 105. Definitions

1. Louisiana proposes to revise its definition for ``other

treatment facilities.''

2. Louisiana proposes to add a definition for ``previously mined

area.''

3. Louisiana proposes to add a definition for ``qualified

laboratory.''

B. Section 2537. Cross-Sections, Maps and Plans

Louisiana proposes to delete paragraph 2537.11. that requires

cross-sections, maps and plans in the permit applications to show

sufficient slope measurements to adequately represent the existing land

surface configuration of the proposed permit area.

C. Section 2725. Reclamation Plan: Ponds, Impoundments, Banks, Dams and

Embankments

1. Louisiana proposes to revise paragraph 2725.A. by adding

``siltation structure'' to the types of ponds, impoundments, banks,

dams and embankments requiring a general reclamation plan, and by

adding a provision that requires each application to include a detailed

reclamation plan for each proposed containment structure.

2. At paragraph 2725.A.2., Louisiana proposes to delete the

existing language and to replace it with language that adds specific

references to the U.S. Department of Agriculture, Soil Conservation

Service Technical Release No. 60 criteria for dam classification and

requires compliance with this technical release if structures meet or

exceed the size or other criteria of the Mine Safety and Health

Administration.

3. Louisiana proposes to revise paragraph 2725.A.3. to refer to

structures that are not included in paragraph 2725.A.2.

4. At paragraph 2725.A.3.a., Louisiana proposes to require

qualified, registered, professional engineers to certify all coal

processing waste dams and embankments covered by sections 5375 through

5395.

[[Page 61713]]

5. At section 2725, Louisiana proposes to add new paragraph C.1.

that specifies that for impoundments not included in paragraph

2725.A.2., engineering design standards shall ensure stability

comparable to a 1.3 minimum static safety factor in lieu of engineering

tests to establish compliance with the minimum static safety factor of

1.3 specified in section 5333.

6. Louisiana proposes to revise paragraph 2725.F. by deleting the

phrase, ``If the structure is 20 feet or higher or impounds more than

20 acre-feet,'' and replacing it with the phrase, ``If the structure

meets the Class B or C criteria for dams in TR-60 or meets the size or

other criteria of 30 CFR 77.216(a).''

D. Section 2907. Prime Farmland

At section 2907, Louisiana proposes to add new paragraph C.5. to

read as follows:

The aggregate total prime farmland acreage shall not be

decreased from that which existed prior to mining. Water bodies, if

any, to be constructed during mining and reclamation operations must

be located within the post-reclamation non-prime farmland portions

of the permit area. The creation of any such water bodies must be

approved by the regulatory authority and the consent of all affected

property owners within the permit area must be obtained.

E. Section 3705. Eligibility for Assistance

1. At paragraph 3705.A.2., Louisiana proposes to change from

100,000 to 300,000 tons the probable total actual and attributed

production of coal that an applicant for small operator assistance

cannot exceed during any consecutive 12-month period either during the

term of his or her permit or during the first five years after issuance

of his or her permit, whichever period is shorter.

2. Currently at paragraph 3705.A.2.a., applicants for small

operator assistance, with an ownership interest in other coal

production operations, have a pro rata share of coal produced by those

operations attributed to their total coal production in any consecutive

12-month period if they have more than a five percent ownership

interest in those other coal production operations. Louisiana proposes

to change the percentage of ownership interest from more than five

percent to more than ten percent.

3. Currently at paragraph 3705.A.2.b., applicants for small

operator assistance have a pro rata share of coal produced by other

coal production operations attributed to their total coal production in

any consecutive 12-month period if the coal operators of the other coal

production operations have more than a five percent ownership interest

in the applicant for small operator assistance. Louisiana proposes to

change the percentage of ownership interest from more than five percent

to more than ten percent.

F. Section 3711. Program Services and Data Requirements

1. Louisiana proposes to revise paragraph 3711.A. by adding the

phrase, ``and provide other services,'' to closely follow the Federal

regulation at 30 CFR 795.9(a).

2. Louisiana proposes to revise paragraph 3711.B.1. by adding the

phrase, ``including the engineering analyses and designs necessary for

the determination,'' to closely follow the Federal regulation at 30 CFR

795.9(b)(1).

3. Louisiana proposes to revise paragraph 3711.B.2. by adding the

phrase, ``the drilling and,'' to closely follow the Federal regulation

at 30 CFR 795.9(b)(2).

4. Louisiana proposes to add new paragraph 3711.B.3., ``the

development of cross-section maps and plans required by Sec. 2537,'' to

closely follow the Federal regulation at 30 CFR 795.9(b)(3).

5. Louisiana proposes to add new paragraph 3711.B.4, ``the

collection of archaeological and historic information and related plans

required by Secs. 2505.A.2. and 2731 and any other archaeological and

historic information required by the office,'' to closely follow the

Federal regulation at 30 CFR 795.9(b)(4).

6. Louisiana proposes to add new paragraph 3711.B.5., ``pre-blast

surveys required by Sec. 2707; and'' to closely follow the Federal

regulation at 30 CFR 795.9(b)(5).

7. Louisiana proposes to add new paragraph 3711.B.6, ``the

collection of site-specific resources information, the production of

protection and enhancement plans for fish and wildlife habitats

required by Sec. 2713, and information and plans for any other

environmental values required by the office under the act.'' to closely

follow the Federal regulation at 30 CFR 795.9(b)(6).

G. Section 3717. Applicant Liability

1. At paragraph 3717.A., Louisiana proposes to revise this

paragraph by adding the phrase, ``A coal operator,'' and by deleting

the words ``laboratory'' and ``performed'' to closely follow the

Federal regulation at 30 CFR 795.12(a).

2. Louisiana proposes to revise paragraph 3717.A.2. by replacing

the ``applicant's'' actual and attributed annual production of coal for

all locations with the ``operator's'' actual and attributed annual

production of coal for all locations. Also, Louisiana proposes to

change the actual and attributed annual production of coal for all

locations from 100,000 to 300,000 tons during the 12 months immediately

following the date on which the permit was originally issued.

3. Louisiana proposes to revise paragraph 3717.A.3. concerning

permits that are sold, transferred, or assigned by changing the

transferee's total actual and attributed annual production of coal from

100,000 to 300,000 tons during the 12 months immediately following the

date on which the permit was originally issued.

H. Section 4501. Procedures for Seeking Release of Performance Bond

1. Louisiana proposes to add new paragraph 4501.A.3. to read as

follows:

The permittee shall include in the application for bond release

a notarized statement which certifies that all applicable

reclamation activities have been accomplished in accordance with the

requirements of the Act, the regulatory program, and the approved

reclamation plan. Such certification shall be submitted for each

application or phase of bond release.

2. With the addition of this new paragraph, Louisiana proposes to

re-number existing paragraph A.3. as A.4.

I. Section 5333. Hydrologic Balance: Impoundments

1. Louisiana proposes to add new paragraph 5333.A.1 that requires

impoundments meeting the Class B or C criteria for dams in the U.S.

Department of Agriculture, Soil Conservation Service Technical Release

No. 60 (210-VI-TR60, October 1985), ``Earth Dams and Reservoirs,'' 1985

to comply with the ``Minimum Emergency Spillway Hydrologic Criteria''

table in TR-60. Louisiana also proposes to incorporate by reference the

above technical release.

2. Louisiana proposes to redesignate existing paragraphs 5333.A.1.

through 5333.A.12. as paragraphs 5333.A.2 through 5333.A.13.

3. Louisiana proposes to revise redesignated paragraph 5333.A.4.

(previously paragraph 5333.A.3.) by deleting all of its language except

for the word ``Stability.'' The State also proposes to add new

paragraphs a. and b. containing the following language:

a. An impoundment meeting the Class B or C criteria for dams in

TR-60, or the size or other criteria of 30 CFR 77.216(a) shall have

a minimum static safety factor of 1.5 for a normal pool with steady

state seepage saturation conditions, and a seismic safety factor of

at least 1.2.

b. Impoundments not included in Sec. 5333.A.4.a. except for a

coal mine waste

[[Page 61714]]

impounding structure, shall have a minimum static safety factor of

1.3 for a normal pool with steady state seepage saturation

conditions or meet the requirements of Sec. 2725.C.1.

4. At redesignated paragraph 5333.A.6. (previously paragraph

5333.A.5.),

Louisiana proposes to revise this paragraph by adding the following

language:

For an impoundment meeting the Class B or C criteria for dams in

TR-60, or the size or other criteria of 30 CFR 77.216(a), foundation

investigation, as well as any necessary laboratory testing of

foundation material, shall be performed to determine the design

requirements for foundation stability.

5. At redesignated paragraph 5333.A.9. (previously paragraph

5333.A.8.), Louisiana proposes to revise this paragraph by deleting the

existing language and replacing it, and by adding new paragraphs

A.9.a., a.i., and a.ii., and A.9.b., b.i., b.ii., and b.iii. The new

language pertains to the types of spillways that shall be designed and

constructed for impoundments: (a.) meeting the Class B or C criteria

for dams in TR-60, the emergency spillway hydrograph criteria in the

``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60, or

greater event as specified by the State; (b.) meeting or exceeding the

size or other criteria of 30 CFR 77.216(a), a 100-year 6-hour event, or

greater event as specified by the State; and (c.) not included in

Sec. 5333.A.9.b.i. and ii., 25-year 6-hour or greater event as

specified by the State.

6. At redesignated paragraph 5333.A.12 (previously paragraph

5333.A.11.), Louisiana proposes to revise this paragraph by deleting

the existing language and replacing it with language pertaining to

impoundments ``meeting'' and ``not meeting'' the SCS Class B or C

criteria for dams in TR-60, or the size or other criteria in 30 CFR

77.216. The State also proposes how often and by whom these

impoundments must be examined and what must be looked for during the

examinations.

7. Louisiana proposes to revise paragraph 5333.C.2. by deleting the

existing language and replacing it with new language and by adding new

paragraphs C.2.a. and C.2.b. The new language pertains to the State's

option to approve temporary impoundments that are constructed to

control runoff, from the design precipitation event, primarily through

storage of the runoff.

J. Section 5411. Backfilling and Grading: Thin Overburden

Louisiana proposes to revise paragraph 5411.A. by deleting the

existing language and replacing it with new language, and by adding new

paragraphs A.1. and A.2. The proposed new language for these paragraphs

contains the definition for and explanations pertaining to ``thin

overburden.''

K. Section 5413. Backfilling and Grading: Thick Overburden

Louisiana proposes to revise paragraph 5413.A. by deleting the

existing language and replacing it with new language, and by adding new

paragraphs A.1. and A.2. The proposed new language for these paragraphs

contains the definition for and explanations pertaining to ``thick

overburden.''

L. Section 5503. Prime Farmland: Soil Removal

Louisiana proposes to revise paragraph 5503.A.2. by adding language

to require coal operators:

to separately remove the B horizon of the soil, a combination of

B horizon and underlying C horizon, or other suitable soil material

to provide the thickness of suitable soil required by paragraph

5507.A.1. that will create a reconstructed soil of equal or greater

productivity capacity than that which existed before mining, except

as approved by the regulatory authority where the B or C soil

horizons would not otherwise be removed and where soil capabilities

can be retained;

M. Section 5507. Prime Farmland: Soil Replacement

Louisiana proposes to revise paragraph 5507.A.4. by deleting the

existing language and replacing it with the following language:

The operator shall replace the B horizon, C horizon, or other

suitable material specified in Sec. 5503.A.2. to the thickness

needed to meet the requirements of Sec. 5507.A.1. In those areas

where the B or C horizons were not removed but may have been

compacted or otherwise damaged during the mining operation, the

operator shall engage in deep tilling or other appropriate means to

restore premining capabilities.

N. Section 6507. Service of Notices of Violation and Cessation Orders

Louisiana proposes to revise paragraph 6507.A.2. by adding language

to its regulation regarding how notices of violations and cessation

orders are to be served. The added language allows the State to serve

the person to whom the notice or order was issued by any means

consistent with the rules governing service of a summons and complaint

under the Louisiana Rules of Civil Procedure.

O. Section 6913. Procedures for Assessment of Civil Penalties

Louisiana proposes to revise paragraph 6913.B by adding language to

its regulation regarding how copies of the proposed assessment and the

worksheet showing the computation of the proposed assessment are to be

served. The added language allows the State to serve the person to whom

the notice or order was issued by any alternative means consistent with

the rules governing service of a summons and complaint under the

Louisiana Rules of Civil Procedure.

P. Section 6915. Procedures for Assessment Conference

Louisiana proposes to revise paragraph 6915.B.1 by changing the

time when the assessment conference is to be held from ``within 60 days

from the date of the issuance of the proposed assessment or the end of

the abatement period, whichever is later'' to ``within 60 days from the

date the conference request is received or the end of the abatement

period, whichever is later.'' Louisiana also proposes to add that

failure by the State to hold the conference within 60 days shall not be

grounds for dismissal of all or part of an assessment unless the person

against whom the proposed penalty has been assessed proves actual

prejudice as a result of the delay.

Q. Section 6917. Request for Hearing

Louisiana proposes to change from 15 days to 30 days the amount of

time a person has to submit a petition for requesting a hearing after

the date of service of the conference office's action.

R. Section 7105. Procedure for Assessment of Individual Civil Penalty

Louisiana proposes to revise paragraph 7105.C. by adding language

to its regulation regarding when service of a notice of proposed

assessment and included information shall be deemed complete. The added

language states that service is complete upon tender of the notice of

proposed assessment and included information or of the certified mail

and shall not be deemed incomplete because of refusal to accept.

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 Louisiana program.

[[Page 61715]]

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 Tusla 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.s.t. on December 4, 1997. 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 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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards are not applicable to the actual language of

State regulatory programs and program amendments since each such

program is drafted and promulgated by a specific State, not by OSM.

Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

National Environment Policy Act

No environment 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 an

assumptions for the counterpart Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to the Unfunded Mandates

Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a

cost of $100 million or more in any given year on local, state, or

tribal governments or private entities.

List of Subjects in 30 CFR Part 918

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 7, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 97-30304 Filed 11-18-97; 8:45 am]

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