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: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Louisiana

regulatory program (hereinafter referred to as the ``Louisiana

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

(SMCRA). Louisiana proposed revisions to and additions of regulations

pertaining to definitions, request for

[[Page 25392]]

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.

EFFECTIVE DATES: May 8, 1998.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface

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

Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Louisiana 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 Louisiana Program

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

approved the Louisiana program. Background information on the Louisiana

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

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

10, 1980, Federal Register (45 FR 67340). Subsequent actions concerning

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

CFR 918.15 and 918.16.

II. Submission 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).

OSM announced receipt of the proposed amendment in the November 19,

1997, Federal Register (62 FR 61712), 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 December 19, 1997. Because no one

requested a public hearing or meeting, none was held.

During its review of the amendment, OSM identified concerns

relating to Section 2725., Reclamation plan: ponds, impoundments, bank,

dams and embankments, and Section 6507., Service of notices of

violation and cessation orders. OSM notified Louisiana of these

concerns by electronic mail dated March 12, 1998, (Administrative

Record No. LA-362.07).

By letter dated March 24, 1998 (Administrative Record No. AL-

362.09), Louisiana responded to OSM's concerns by submitting additional

explanatory information and revisions to its proposed program

amendment. Louisiana proposed additional revisions to paragraph A. and

A.2. of Section 2725., Reclamation plan: ponds, impoundments, bank,

dams and embankments. Because the additional information merely

clarified certain provisions of Louisiana's proposed amendment, OSM did

not reopen the public comment period.

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.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

A. Revisions to Louisiana's Regulations That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

The proposed State regulations listed in the table below contain

language that is the same as or similar to the corresponding sections

of the Federal regulations. Differences between the proposed State

regulations and the Federal regulations are nonsubstantive.

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Federal

Topic State Regulation Counterpart

Regulation

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Definitions: ``other treatment Section 105....... 30 CFR 701.5 and

facilities,'' ``previously 795.3.

mined area,'' and ``qualified

laboratory''.

Reclamation plan: Ponds, Section 2725.A, 30 CFR 780.25(a),

Impoundments, Bank, Dams and A.2., A.3., (a)(2), (a)(3),

Embankments--General. A.3.a., C.1., and (a)(3)(i),

F. (c)(3), and (f).

Prime Farmlands Issuance of Section 2907.C.5.. 30 CFR

Permit. 785.17(e)(5).

Eligibility for Assistance...... Section 30 CFR

3705.A.2.a. and 795.6(a)(2)(i)

A.2.b. and (a)(2)(ii).

Program Services and Data Section 3711.A., 30 CFR 795.9(b)(1)

Requirements. B.1. through B.6. through (b)(6).

Applicant Liability............. Section 3717.A., 30 CFR 795.12(a),

A.2., and A.3. (a)(2), and

(a)(3).

Backfilling and Grading: Thin Section 5411.A.... 30 CFR 816.104(a).

Overburden.

Backfilling and Grading: Thick Section 5413.A.... 30 CFR 816.105(a).

Overburden.

Prime Farmland: Soil Removal.... Section 5503.A.2.. 30 CFR

823.12(c)(2).

Prime Farmland: Soil Replacement Section 5507.A.4.. 30 CFR 823.14(d).

Service of Notices of Violation Section 6507.A.2.. 30 CFR

and Cessation Orders. 843.14(a)(2)

Procedures for Assessment Section 6915.B.1.. 30 CFR

Conference. 845.18(b)(1).

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Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, the Director finds that

Louisiana's proposed regulations are no less effective than the Federal

regulations.

B. Section 2537. Permit Application Requirements

Louisiana proposed to delete paragraph A.11. regarding cross

sections, maps, and plans from its regulations. The Director is

approving this deletion because OSM deleted the Federal counterpart

regulation from its regulations that was previously found at 30 CFR

779.25(a)(11) (See 59 FR 27932, dated May 27, 1994).

C. Section 3705. Eligibility for Assistance

At paragraph A.2., an applicant is eligible for assistance if his

or her probable total actual and attributed production from all

locations does not exceed 100,000 tons during any consecutive 12-month

period either during the term of his or her permit or during the first

five years after issuance

[[Page 25393]]

of his or her permit, whichever period is shorter. Louisiana proposed

to increase the tonnage limit to 300,000 tons. The Director is

approving this tonnage increase because it will result in the State

regulation being no less effective than the counterpart Federal

regulation at 30 CFR 795.6(a)(1).

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

Louisiana proposed to add new paragraph A.3. that requires each

application for each phase of bond release to include a notarized

statement certifying that all applicable reclamation activities have

been accomplished in accordance with the requirements of the State Act,

the regulatory program, and the approved reclamation plan. Louisiana

also proposed to redesignate old paragraph A.3 as A.4. The Director is

approving the revisions because the resulting regulations will be no

less effective than the counterpart Federal regulations at 30 CFR

800.40 (a)(2) and (a)(3).

E. Section 5333. Hydrologic Balance: Impoundments

Louisiana proposed to add new paragraph 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 (120-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' to

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

table in TR-60 and the requirements of Section 5333. Louisiana also

proposed to redesignate paragraphs A.1. through A.12. as paragraphs

A.2. through A.13. The Director is approving these revisions because

they will not render the State regulations less effective than the

counterpart Federal regulations at 30 CFR 816.49.

F. Section 6913. Procedures for Assessment of Civil Penalties

Paragraph B. of this section pertains to procedures the State can

use to serve a person, who is issued a violation notice or cessation

order, a copy of the proposed civil penalties assessment and the

worksheet showing the computation of the proposed assessment. Louisiana

proposed to add a new and alternative provision for serving these

documents. The new provision allows the State to use any means

consistent with the rules governing service of a summons and complaint

under the Louisiana Rules of Civil Procedure. The Director is approving

the new provision because it is no less effective than the counterpart

Federal regulation at 30 CFR 843.14(a)(2).

G. Section 6917. Request for Hearing

At paragraph A., Louisiana allows a person charged with a violation

15 days, from the date of service of the conference office's action, to

contest the proposed penalty or the fact of the violation by submitting

a petition and an amount equal to the proposed penalty. Louisiana

proposed to change from 15 days to 30 days the amount of time for

contesting the proposed penalty or the fact of the violation after the

date of service of the conference office's action. The Director is

approving this revision because it will make the State regulation no

less effective than the counterpart Federal regulation at 30 CFR

845.19(a).

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

Louisiana proposed to revise paragraph C. to read as follows:

C. Service. For purposes of this Section, service is sufficient

if it would satisfy the Louisiana Rules of Civil Procedure for

service of a summons and complaint. Service shall be 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.

The Director is approving this revision because it is no less

effective than the counterpart Federal regulation at 30 CFR 846.17(c).

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comments on the proposed amendment, but none

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 Louisiana program.

In a letter dated November 17, 1997 (Administrative Record No. LA-

362.04), the U.S. Army Corps of Engineers responded that Louisiana's

changes to its program were satisfactory to their agency. The U.S.

Department of the Interior's Fish and Wildlife Service also submitted

comments in a letter dated November 17, 1997 (Administrative Record No.

LA-362.05). this agency stated that it had no objections to the

proposed amendments to Louisiana's Surface Mining Regulations and that

the changes should result in greater program consistency and should not

adversely impact fish and wildlife resources within their trusteeship.

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 Louisiana proposed to make in this amendment

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

request the EPA's concurrence.

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

proposed amendment from the EPA (Administrative Record No. LA-362.01).

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.

LA-362.02). Neither the SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Louisiana on October 24, 1997, and as revised

on March 24, 1998.

The Director approves the regulations as proposed by Louisiana with

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

regulations submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 918, codifying decisions

concerning the Louisiana 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

[[Page 25394]]

(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 918

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 28, 1997.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 918 is amended

as set forth below:

PART 918--LOUISIANA

1. The authority citation for Part 918 continues to read as

follows:

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

2. Section 918.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 918.15 Approval of Louisiana regulatory program amendments.

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Original amendment submission Date of final

date publication Citation/description

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* * * * *

* * *

October 24, 1997.............. May 8, 1998...... Sections 105.;

2537.A.11.; 2725.A.,

A.2., A.3., A.3.a.,

C.1., F; 2907.C.5.;

3705.A.2., A.2a.,

A.2.b.; 3711.A.,

B.1. through B.6.;

3717.A., A.2., A.3.;

4501.A.3., A.4.;

5333.A.1. through

A.13.; 5411.A.;

5413.A.; 5503.A.2.;

5507.A.4.;

6507.A.2.; 6913 .B.;

6915.B.1.; 6917.A.;

7105.C.

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[FR Doc. 98-12249 Filed 5-7-98; 8:45 am]

BILLING CODE 4310-05-M