Alabama Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 901

[SPATS No. AL-067-FOR]

Alabama Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Alabama

regulatory program (hereinafter referred to as the ``Alabama program'')

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

Alabama proposed revisions to the Alabama Surface Mining Commission

Rules pertaining to hearing orders and decisions, license application

requirements, procedures for permit application review, determination

of bond forfeiture amount, surface and ground water monitoring,

disposal of excess spoil, and coal mine waste. The amendment is

intended to revise the Alabama program to provide additional

safeguards, clarify ambiguities, and improve operational efficiency.

EFFECTIVE DATE: December 22, 1997.

FOR FURTHER INFORMATION CONTACT:

Arthur Abbs, Director, Birmingham Field Office, Office of Surface

Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215,

Homewood, Alabama 35209, Telephone: (205) 290-7282.

SUPPLEMENTARY INFORMATION:

I. Background on the Alabama Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Alabama Program

On May 20, 1982, the Secretary of the Interior conditionally

approved the Alabama program. Background information on the Alabama

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

comments, and the conditions of approval can be found in the May 20,

1982, Federal Register (47 FR 22062). Subsequent actions concerning the

conditions of approval and program amendments can be found at 30 CFR

901.15 and 901.16.

II. Submission of the Proposed Amendment

By letter dated March 28, 1997 (Administrative Record No. AL-0562),

Alabama submitted a proposed amendment to its program pursuant to

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

OSM announced receipt of the proposed amendment in the April 25,

1997, Federal Register (62 FR 20138), and in the same document opened

the public comment period and provided an opportunity for a public

hearing or meeting on the adequacy of the proposed amendment. The

public comment period closed on May 27, 1997. Because no one requested

a public hearing or meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to hearing orders and decisions (Rule 880-X-5A-.22), and

placement of coal mine waste on refuse piles (Rules 880-X-10C-.40 and

880-X-10D-.36). OSM notified Alabama of these concerns by telephone and

fax on June 16, 1997 (Administrative Record No. AL-0570).

By letter dated July 9, 1997 (Administrative Record No. AL-0560),

Alabama responded to OSM's concerns regarding placement of coal mine

waste on refuse piles by submitting additional explanatory information

to its proposed program amendment. Regarding OSM's concerns on hearing

orders and decisions, Alabama submitted an emergency rule, on July 30,

1997 (Administrative Record No. AL-0572), that changed the number of

days in which hearing officers are to furnish written decisions on

hearings from 60 days to 30 days. Based upon the additional explanatory

information and/or revisions to the proposed program amendment

submitted by Alabama, OSM reopened the public comment period in the

October 17, 1997, Federal Register (62 FR 53996). The public comment

period closed on November 3, 1997.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

A. Nonsubstantive Revisions to the Alabama Program

Alabama proposed revisions to the following previously-approved

rules that are nonsubstantive in nature and consist of minor editorial,

punctuation, grammatical, and recodification changes:

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Federal counterpart

Topic State regulations regulations

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Procedures for Permit 880-X-7B-.07(5)..... 30 CFR 761.12(e)(1)-

Application Review. (e)(3).

Determination of Forfeiture 880-X-9E-.05(2) and 30 CFR 800.50(d)(1)

Amount. (3). and (d)(2).

Hydrologic Ground Water 880-X-10C-.23(2)(a). 30 CFR 816.41(e)(1).

Monitoring.

Disposal of Excess Spoil.... 880-X-10C-.36(13)(b) 30 CFR 816.71(i) and

and (b)(1) and 816.74(h)(4).

(15)(B)(3).

Disposal of Excess Spoil and 880-X-10D-.33(13)(b) 30 CFR 817.71(i) and

Underground Development and (b)(1) and 817.74(h)(4).

Waste. (15)(b)(3).

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Because Alabama's proposed revisions to these previously-approved

rules are nonsubstantive in nature, the Director finds that the

proposed revisions do not render Alabama's rules less effective than

the Federal regulations.

B. Revisions to Alabama's Regulations That Are Not Substantively

Identical to the Corresponding Provisions of the Federal Regulations

Rules 880-X-10C-.40 and 880-X-10D-.36 Cost Mine Waste: Refuse Piles

At paragraphs (3)(a), Alabama proposed an exception to the

requirement that limits coal mine operators from spreading coal mine

waste in layers thicker than 24 inches. If engineering data

substantiates a minimum safety factor of 1.5 for the refuse pile, the

State regulatory authority may approve layers exceeding 24 inches in

thickness. The Federal

[[Page 66820]]

regulations at 30 CFR 816.83 and 817.83 require refuse piles to meet

the requirements of 816.81 and 817.81, respectively. At 30 CFR

816.81(c)(2) and 817.81(c)(2), respectively, a disposal facility shall

be designed to attain a minimum long-term static safety factor of 1.5.

The Director is approving Alabama's proposed exception because it is no

less effective than the Federal regulations.

C. Revisions to Alabama's Regulations With No Corresponding Federal

Regulations

1. Rule 880-X-5A-.22 Orders and Decisions

Alabama proposed to replace the existing requirements with the

following new requirements. At paragraph (1)(a), the hearing officer is

to make a written decision within 30 days after the close of ``any''

hearing. OSM has regulations for hearings that provide time frames of

30 or 60 days in which written decisions must be furnished to the

participants of the hearing based upon the reason the hearing is being

held. For example, the Federal regulation at 30 CFR 775.11(b)(4)

regarding administrative review of decisions on permits require that

decisions be made, in writing, within 30 days after these hearings. As

another example, the Federal regulation at 30 CFR 769.18 regarding

decisions on petitions for designating lands unsuitable for mining

requires that a written decision be made within 60 days of the

completion of the hearing. The Director finds that Alabama's proposal

for requiring decisions to be made within 30 days after the close of

``any'' hearing is no less effective than the Federal regulations and

is approving it.

At paragraph (1)(b), Alabama proposed that the Division of Hearings

and Appeals (DHA) provide copies of all orders of the hearing officer

to all parties. Parties other than the regulatory authority will

receive copies of the orders by the first class mail. The Federal

regulations at 30 CFR 769.18(b) regarding decisions on petitions for

designating lands unsuitable for mining and 30 CFR 775.11(b)(4)

regarding administrative review of decisions on permits, require

written hearing decisions to be sent to each person who participated in

the hearing. The Director finds that Alabama's proposed amendment is

not inconsistent with the Federal regulations and is approving it.

At paragraph (2), Alabama proposed that any party may petition the

Commission for an expedited review of any pending appeal if the hearing

officer fails to render a decision within the time specified in

paragraph (1)(a). OSM does not have a counterpart Federal regulation

that provides for an expedited review of any pending appeal if the

hearing officer fails to render a decision within specified time

frames. The Director finds that Alabama's proposed regulation is not

inconsistent with the Federal regulations and is approving it.

2. Rule 880-X-6A-.06 License Application Requirements

At paragraph (k), Alabama proposed to replace the reference to

``Chapter 880-X-7'' with the corrected reference to ``Chapter 880-X-

8.'' The Director is approving this correction.

3. Rule 880-X-10C-.36 Disposal of Excess Spoil and 880-X-10D-.33

Disposal of Excess Spoil and Underground Development Waste

At paragraphs (16)(a) in the first sentence, Alabama proposed to

remove the language ``in natural ground along the periphery of the

fill.'' The Director is approving the removal of this language because

there is no Federal counterpart and because the removal of this

language will not render the Alabama program less effective than the

Federal regulations.

4. Rules 880-X-10C-.38 and 880-X-10D-.34 Coal Mine Waste: General

Requirements

Alabama proposed to remove existing paragraphs (1)(d) for its

regulations and to redesignate existing paragraphs (1)(e) and (1)(f) as

paragraph (1)(d) and (1)(e), respectively. The Director is approving

theses revisions because there is no Federal counterpart regulation to

existing paragraph (d) that the State proposed to remove and because

its removal will not render the Alabama program less effective than the

Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment. No public

comments were received.

Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited

comments on the proposed amendment from various Federal Agencies with

an actual or potential interest in the Alabama program. OSM received

comments from the U.S. Fish and Wildlife Service dated April 24, 1997

(Administrative Record No. AL-0564), and the U.S. Department of Labor

Mine Safety and Health Administration dated May 5, 1997 (Administrative

Record No. AL-0565). The agencies stated that they either had no

comments or no concerns regarding the amendment.

Environmental Protection Agency (EPA)

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the 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 Alabama proposed to make in this amendment

pertain to air or water quality standards. Therefore, OSM did not

request the EPA's concurrence.

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from the EPA (Administrative Record No. AL-0563).

The EPA did not respond to OSM's request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

AL-0563). The ACHP did not respond to OSM's request. OSM received a

comment dated June 3, 1997, from the Alabama Historical Commission

(Administrative Record No. AL-0567). The Alabama Historical Commission

felt that properties eligible for inclusion on the National Register

along with properties listed on the National Register should be

included in the Alabama Surface Mining Commission Rules regarding

procedures for areas unsuitable for mining at 880-X-7B-.07(6)(a). The

Alabama Historical Commission felt that this inclusion of properties

would be appropriate because it would conform with the Advisory Council

on Historic Properties' regulations at 36 CFR Part 800. In response to

these comments, Alabama did not propose to amend its regulation at 880-

X-7B-.07(6)(a) which is substantially identical to the Federal

regulation at 30 CFR 761.12(f)(1), and, therefore, is not inconsistent

with the Federal requirement. Also, in acting on State program

amendments, the Directory only addresses those sections of a State's

laws and regulations where revisions are proposed by the State.

[[Page 66821]]

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Alabama on March 28, 1997, and as revised on

July 9 and 30, 1997.

The Director approves the rules as proposed by Alabama with the

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

submitted to and reviewed by OSM and the public.

The Director is also taking this opportunity to correct editorial

errors in the required regulatory program amendments section at 30 CFR

901.16.

The Federal regulations at 30 CFR Part 901, codifying decisions

concerning the Alabama 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.

VI. 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 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

corresponding 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 corresponding 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 901

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 25, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 901 is amended

as set forth below:

PART 901--ALABAMA

1. The authority citation for Part 901 continues to read as

follows:

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

2. Section 901.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 901.15 Appoval of Alabama regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description

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March 28, 1997........................... December 22, 1997....................... 880-X-5A-.22(1)(a), (1)(b)

and (2); 880-X-6A-.06(k);

880-X-7B-.07(5); 880-X-9E-

.05(2) and (3); 880-X-10C-

.23(2)(a), .36(13)(b) and

(b)(1), (15)(b)(3), and

(16)(a), .38(1)(d) through

(1)(f), .40(3)(a); 880-X-

10D-.33(13)(b) and (b)(1),

(15)(b)(3), and (16)(a),

.34(1)(d) through (1)(f),

and .36(3)(a)

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Sec. 901.16 Removed and [Reserved]

3. The text of Sec. 901.16 is removed and the section and section

heading are reserved.

[FR Doc. 97-33335 Filed 12-19-97; 8:45 am]

BILLING CODE 4310-05-M