Alabama Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 901

[SPATS No. AL-065-FOR]

Alabama Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving an 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's

revisions to and additions of statutes pertain to the small operator

assistance program (SOAP), the repair of homes and other structures

materially damaged by underground coal mining, and the replacement of

affected water supplies. The amendments is intended to revise the

Alabama program to be consistent with SMCRA.

EFFECTIVE DATE: July 1, 1998.

FOR FURTHER INFORMATION CONTACT:

Arthur W. 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 April 14, 1998 (Administrative Record No. AL-0579),

Alabama submitted an amendment to its program pursuant to SMCRA.

Alabama submitted the amendment in response to a May 20, 1996, letter

(Administrative Record No. AL-0555) that OSM sent to Alabama in

accordance with 30 CFR 732.17(c). OSM announced receipt of the

amendment in the April 29, 1998, Federal Register (63 FR 23403), 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 29, 1998.

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

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

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. Section 9-16-83. Permits; Fee

1. Alabama proposed to revise paragraph (c) to read as follows:

(c)(1) If the regulatory authority finds that the probable total

annual production at all locations of any surface coal mining

operator will not exceed 300,000 tons, the cost of the following

activities, which shall be performed by a qualified public or

private laboratory or such other public or private qualified entity

designated by the regulatory authority, shall be assumed by the

regulatory authority upon the written request of the operator in

connection with a permit application, provided that funds are made

available to the regulatory authority for such purposes by the

Secretary of the U.S. Department of Interior.

(A) The determination of probable hydrologic consequences

required by subsection (b)(10), including the engineering analyses

and designs necessary for the determination.

(B) The development of cross-section maps and plans required by

subsection (b)(13).

(C) The geologic drilling and statement of results of test

borings and core samplings required by subsection (b)(14).

(D) The collection of archaeological information required by

subsection (b)(12) and any other archaeological and historical

information required by the regulatory authority, and the

preparation of plans necessitated thereby.

(E) Pre-blast surveys required by subsection 9-16-90(b)(15)e.

(F) The collection of site-specific resource information and

production of protection and enhancement plans for fish and wildlife

habitats and other environmental values required by the regulatory

authority under this Act.

(2) The regulatory authority shall provide or assume the cost of

training coal operators that meet the qualifications stated in

paragraph (1) concerning the preparation of permit applications and

compliance with the regulatory program, and shall ensure that

qualified coal operators are aware of the assistance available under

this subsection; provided that funds for such purposes are made

available to the regulatory authority by the Secretary of the U.S.

Department of Interior.

The Director is approving this revision because it is no less

stringent than section 507(c)(1) of SMCRA.

2. Alabama proposed to add new paragraph (h) to read as follows:

(h) A coal operator that has received assistance pursuant to

subsection (c) (1) or (2) shall reimburse the regulatory authority

for the cost of the services rendered if the program administrator

finds that the operator's actual and attributed annual production of

coal for all locations exceeds 300,000 tons during the 12 months

immediately following the date on which the operator is issued the

surface coal mining and reclamation permit.

[[Page 35806]]

The Director is approving this revision because it is no less

stringent than section 507(h) of SMCRA.

B. Section 9-16-91. Underground Coal Mining; Effects on Surface

Alabama proposed to add new paragraph (e) to read as follows:

(e) Underground coal mining operations conducted after the date

of enactment of this section shall comply with each of the following

requirements:

(1) Promptly repair, or compensate for, material damage

resulting from subsidence caused to any occupied residential

dwelling and structure related thereto, or non-commercial building

due to underground coal mining operations. Repair of damage shall

include rehabilitation, restoration, or replacement of the damaged

occupied residential dwelling and structures related thereto, or

non-commercial building. Compensation shall be provided to the owner

of the damaged occupied residential dwelling and structures related

thereto or non-commercial building and shall be in the full amount

of the diminution in value resulting from the subsidence.

Compensation may be accomplished by the purchase, prior to mining,

of a noncancellable premium-prepaid insurance policy.

(2) Promptly replace any drinking, domestic, or residential

water supply from a well or spring in existence prior to the

application for a surface coal mining and reclamation permit, which

has been affected by contamination, diminution, or interruption

resulting from underground coal mining operations. Nothing in this

section shall be construed to prohibit or interrupt underground coal

mining operations.

The Director is approving this revision because it is no less

stringent than section 720 of SMCRA.

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 Alabama program.

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-0580).

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-0580). The Alabama Historical Commission (Commission) responded in a

letter dated May 5, 1998 (Administrative Record No. AL-0582). The

Commission wanted to know who defines the terms ``known'' and

``significant'' at section 9-16-83(b)(12) regarding archaeological

sites and if the Alabama Surface Mining Commission (ASMC) or some other

agency would pay for archaeological studies discussed at section 9-16-

83(c)(1). The Commission also wanted clarification on what it meant to

``seal all portals'' at section 9-16-91(b)(2), and stated that there

are historic portal facings which need to be preserved and that this

issue needed to be more clearly addressed. In addition, at section 9-

16-91(b)(7), the Commission wanted to know if the proximity of

culturally significant sites to mining activities should be of more

concern in cases where adverse effects could come from a greater

distance, i.e., blasting. Furthermore, at section 9-16-91(b)(10), it

wanted to know if other surface impacts not specified in section 9-16-

91(b) would be subject to section 106 of the National Historic

Preservation Act of 1966 if the ASMC received a permit. Finally, the

Commission felt that significant cultural resources should be addressed

at section 9-16-91(c)(1) which pertains to protecting the stability of

the land.

Alabama did not propose to amend the above aforementioned sections

of its statutes. In addition, these statute sections are substantially

identical to the Federal statutes at sections 507 and 516 of SMCRA,

and, therefore, are not inconsistent with the Federal requirement. In

acting on State program amendments, the Director only addresses those

sections of a State's laws and regulations where revisions are proposed

by the State. However, OSM forwarded a copy of the Commission's

comments to the ASMC for its consideration in future rulemaking.

The Commission made one other comment pertaining to Alabama's

amendment. It stated that section 9-16-83(c)(1)(d) needed to be

clarified and that a possible agreement be developed between the

Commission and the ASMC. Section 9-16-83(c)(1)(d) pertains to one

activity that the ASMC can provide assistance for to eligible mine

operators if a surface coal mining operator does not exceed a total

annual production of 300,000 tons at all its coal mining locations, and

provided that funds are made available to the ASMC for such purposes by

the Secretary of the United States Department of the Interior under the

small operator assistance program (SOAP). The assistance allows the

regulatory authority to obtain certain services on behalf of the

operator to aid in the preparation of a permit application. This

statute is substantially identical to the Federal statute at section

507(c)(1)(D) of SMCRA, and is, therefore, not inconsistent with the

Federal requirement. Any clarification or agreement that the Commission

feels a need for must be discussed directly with the ASMC.

V. Director's Decision

Based on the above findings, the Director approves the proposed

amendment as submitted by Alabama on April 14, 1998.

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.

[[Page 35807]]

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: June 23, 1998.

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 Approval of Alabama regulatory program amendments.

* * * * *

------------------------------------------------------------------------

Original amendment submission Date of final Citation/

date publication description

------------------------------------------------------------------------

* * * * *

April 14, 1998.................. July 6, 1998...... Code of Ala.

Sections 9-16-

83(c) and (h); 9-

16-91(e).

------------------------------------------------------------------------

[FR Doc. 98-17526 Filed 6-30-98; 8:45 am]

BILLING CODE 4310-05-M