Arkansas Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

[SPATS No. AR-030-FOR]

Arkansas 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 an amendment to the Arkansas regulatory

program (hereinafter referred to as the ``Arkansas program'') under the

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

proposed revisions to, and additions of, regulations pertaining to

definitions; reclamation plans; disposal of excess spoil; steep slope

mining; permits incorporating variances from approximate original

contour restoration requirements for steep slope mining; prime

farmlands; performance standards for coal exploration and prime

farmland; signs and markers; topsoil and subsoil; hydrologic balance;

backfilling and grading; procedures for assessment conference; and

request for adjudicatory public hearing. Arkansas intends to revise its

program to be consistent with the corresponding Federal regulations and

to enhance enforcement of its program.

EFFECTIVE DATE: September 16, 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; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas 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 Arkansas Program

On November 21, 1980, the Secretary of the Interior conditionally

approved Arkansas' program. You can find background information on

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

of comments, and the conditions of approval in the November 21, 1980,

Federal Register (45 FR 77003). Subsequent actions concerning the

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

904.10, 904.12, 904.15, and 904.16.

II. Submission of the Proposed Amendment

In a letter dated February 6, 1998 (Administrative Record No. AR-

561), Arkansas sent us a proposed amendment to its program in

accordance with SMCRA. The proposed amendment responded to our June 17,

1997, letter (Administrative Record No. AR-559) that we sent to

Arkansas in accordance with 30 CFR 732.17(c). The amendment also

included changes made at Arkansas' own initiative.

We announced receipt of the proposed amendment in the February 26,

1998, Federal Register (63 FR 9747). In the same document, we 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 March 30, 1998. Because no one

requested a public hearing or meeting, we did not hold one.

During our review of the amendment, we identified concerns relating

to Arkansas' regulations at the Arkansas Surface Coal Mining and

Reclamation Code (ASCMRC) 816.56, Hydrologic Balance: Postmining

Rehabilitation of Sediment Ponds, Diversions, Impoundments, and

Treatment Facilities; ASCMRC 816.102, Backfilling and Grading: General

Grading Requirements; ASCMRC 823.11, Applicability; and minor

typographical errors. We notified Arkansas of these concerns in a fax

dated July 6, 1998 (Administrative Record No. AR-561.06).

In a letter dated July 15, 1998 (Administrative Record No. AR-

561.07), Arkansas responded to our concerns by sending us additional

explanatory information and revisions to its proposed program

amendment. Arkansas proposed additional revisions to ASCMRC 701.5,

Definitions; ASCMRC 780.14, Operation Plan: Maps and Plans; ASCMRC

816.46, Hydrologic Balance: Siltation Structures; ASCMRC 816.56,

Hydrologic Balance: Postmining Rehabilitation of Sediment Ponds,

Diversions, Impoundments, and Treatment Facilities; ASCMRC 816.102,

Backfilling and Grading: General Grading Requirements; ASCMRC 823.11,

Applicability; and ASCMRC 823.15, Revegetation and Restoration of Soil

Productivity. Throughout its regulations, Arkansas also changed the

name of the old U.S. Soil Conversation Services to its new name of

Natural Resources Conservation Service.

Based upon the additional explanatory information and/or revisions

to the proposed program amendment submitted by Arkansas, we reopened

the public comment period in the August 4, 1998, Federal Register (63

FR 41506). The public comment period closed on August 19, 1998.

III. Director's Findings

Following, and in accordance with SMCRA and the Federal regulations

at 30 CFR 732.15 and 732.17, are our findings concerning the proposed

amendment.

Any revisions that we do not specifically discuss below concern

nonsubstantive wording changes, or revised cross-references and

paragraph notations to reflect organizational changes that result from

this amendment.

A. Regulations That Arkansas Removed From the Arkansas Surface Coal

Mining and Reclamation Code

1. ASCMRC 701.5, Definitions and ASCMRC 816.46, Hydrologic Balance:

Siltation Structures

Arkansas' current definition of ``siltation structure'' at ASCMRC

816.46(a)(1) only applies to section 816.46. The definition of

``siltation

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structure'' must also apply to siltation structures at ASCMRC 780.25,

Reclamation Plan: Siltation Structures, Impoundments, Banks, Dams and

Embankments. Therefore, Arkansas proposed to remove the definition of

``siltation structure'' from section 816.46(a)(1) and reserve paragraph

(a)(1), and add the definition of ``siltation structure'' to the

general definition section of its regulations at ASCMRC 701.5,

Definitions. We are approving the removal of this definition from

section 816.46(a)(1) and its addition to section 701.5 because we

removed the definition of ``siltation structure'' from our own

regulation at 30 CFR 816/817.46(a)(1) and added it to 30 CFR 701.5. We

made the changes in recognition of the broader applicability of

``siltation structure'' under the revised impoundment regulations. (See

59 FR 53022, October 20, 1994.)

2. ASCMRC 816.21, Topsoil: General Requirements; ASCMRC 816.23,

Topsoil: Storage; ASCMRC 816.24, Topsoil: Redistribution; ASCMRC

816.25, Topsoil: Nutrients and Soil Amendments

Arkansas proposed to remove ASCMRC 816.21, 816.23, 816.24 and

816.25 from its regulations and combine their provisions into fully

revised ASCMRC 816.22. We are approving the removal of the above

sections because we removed the counterpart Federal regulations at 30

CFR 816/817.21, 816/817.23, 816/817.24, and 816/817.25 from our

regulations and incorporated their provisions into 30 CFR 816/817.22.

(See 48 FR 22092, May 16, 1983.)

3. ASCMRC 816.103, Backfilling and Grading: Covering Coal and Acid and

Toxic Forming Materials and ASCMRC Part 826, Special State Program

Performance Standards--Operations on Steep Slopes

Arkansas proposed to remove ASCMRC 816.103 and Part 826 from its

regulations and incorporate their essential provisions into ASCMRC

816.102(f) and 816.106, respectively. We are approving the removal of

these sections because we removed the counterpart Federal regulations

at 30 CFR 816.103 and Part 826, respectively, from our regulations and

incorporated their essential provisions into 30 CFR 816.102(f), and

816.107 and 817.107, respectively. (See 48 FR 23356, May 24, 1983.)

B. Revisions to Arkansas' Regulations That Are Substantively Identical

to the Corresponding Provisions of the Federal Regulations

1. Arkansas proposed to change the name of the ``U.S. Soil

Conservation Service'' to its new name of ``Natural Resources

Conservation Service'' throughout its regulations. We find that these

changes will not make the Arkansas regulations less effective than the

Federal regulations.

2. 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. Any differences between the proposed State

regulations and the Federal regulations are nonsubstantive.

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Federal counterpart

Topic State regulation (ASCMRC) regulation (30 CFR)

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Definition of ``Significant 761.5..................................... 761.5.

recreational, timber, economic or

other values compatible with surface

coal mining operations''.

Operation Plan: Maps and Plans....... 780.14(c)................................. 780.14(c).

Disposal of Excess Spoil............. 780.35(b)................................. 780.35(b).

Prime Farmland....................... 785.17(d)(5).............................. 785.17(e)(5).

Topsoil and Subsoil.................. 816.22.................................... 816.22.

Hydrologic Balance: Postmining 816.56.................................... 816.56.

Rehabilitation of Sedimentation

Ponds, Diversions, Impoundments, and

Treatment Facilities.

Disposal of Excess Spoil: Pre- 816.74.................................... 816.74.

existing Benches.

Backfilling and Grading: General 816.102................................... 816.102.

Grading Requirements.

Backfilling and Grading: Thin 816.104-S................................. 816.104.

Overburden.

Backfilling and Grading: Thick 816.105-S................................. 816.105.

Overburden.

Backfilling and Grading: Steep Slopes 816.106................................... 816.107.

Special State Program Performance Part 823.................................. Part 823.

Standards--Operations on Prime

Farmland.

Procedures for Assessment Conference. 845.18(b)................................. 845.18(b).

Request for Adjudicatory Public 845.19(a)................................. 845.19(a)

Hearing.

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Because the above proposed revisions are identical in meaning to

the corresponding Federal regulations, we find that Arkansas' proposed

regulations are no less effective than the Federal regulations.

C. Revisions to Arkansas' Regulations That Are Not Substantively

Identical to the Corresponding Provisions of the Federal Regulations

1. ASCMRC 780.25, Reclamation Plan: Siltation Structures, Impoundments,

Banks, Dams and Embankments

Except for all coal processing waste dams and embankments covered

by Section 816.81 through 816.84, Arkansas' current regulation at

paragraph (a)(3)(i) authorizes a registered land surveyor to prepare

and certify detailed design plans for structures not included in

paragraph (a)(2). In this amendment, Arkansas removed the language that

authorizes a registered land surveyor to prepare and certify these

detailed design plans. We approve the removal of this authorization

because 30 CFR 780.25(a)(3)(i) allows the preparation and certification

of the above mentioned detailed design plans only in States that

authorize land surveyors to prepare and certify such plans. Arkansas'

regulations do not authorize land surveyors to prepare or certify such

plans. Therefore, the removal of this provision does not conflict with

30 CFR 780.25(a)(3)(i).

IV. Summary and Disposition of Comments

Public Comments

We solicited public comments on the proposed amendment, but did not

receive any.

Federal Agency Comments

According to 30 CFR 732.17(h)(11)(i), and in a letter dated

February 18, 1998 (Administrative Record No. AR-561.03), we solicited

comments on the proposed amendment from various Federal

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agencies with an actual or potential interest in Arkansas' program. We

received comments from the U.S. Army Corp of Engineers in two letters

dated March 17, 1998, and August 11, 1998 (Administrative Record Nos.

AR-561.05 and AR-561.12, respectively). Both letters stated that they

are satisfied with the changes that Arkansas proposed to make to the

Arkansas program.

Environmental Protection Agency (EPA)

According to 30 CFR 732.17(h)(11)(ii), we are required to obtain

the written consent of the EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards that are in force 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 Arkansas proposed to make in this amendment

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

request the EPA's consent.

According to 30 CFR 732.17(h)(11)(i), we solicited comments on the

proposed amendment from the EPA (Administrative Record No. AR-561.01).

The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

According to 30 CFR 732.17(h)(4), we are required to solicit

comments from the SHPO and ACHP on proposed amendments which may have

an effect on historic properties. We solicited comments on the proposed

amendment from the SHPO and ACHP (Administrative Record No. AR-561.02),

but neither responded to our request.

V. Director's Decision

Based on the above findings, we approve the amendment as submitted

to us by Arkansas on February 6, 1998, and as revised on July 15, 1998.

We approve the regulations that Arkansas proposed with the

provision that they be fully placed in force in identical form to the

regulations submitted to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 904 which codifies decisions concerning the Arkansas

program. We are making this final rule effective immediately to

expedite the State program amendment process and to encourage Arkansas

to bring the Arkansas program into conformity with the Federal

standards without undue delay. SMCRA requires consistency of State and

Federal standards.

VI. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) under Executive Order

12866 (Regulatory Planning and Review) exempts this rule from 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

This rule does not require an environmental impact statement 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 under 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 904

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 31, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 904 is amended

as set forth below:

PART 904--ARKANSAS

1. The authority citation for Part 904 continues to read as

follows:

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

2. Section 904.15 is amended in the table by adding a new entry in

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

follows:

Sec. 904.15 Approval of Arkansas regulatory program amendments.

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Original amendment submission date Date of final publication Citation/description

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February 6, 1998.................................. September 16, 1998............................... ASCMRC 701.5; 761.5(d); 780.14(c); 780.18(b)(7),

.25(a)(3)(i), .35(b); 785.15(b)-(c), .16(a),

(c)(6), and (d), .17(d)(5); 815.15(k);

816.11(g), .21, .22, .23, .24, .25, .43(e),

(f)(5), .44(c), .46, .48(b), .56, .74, .102,

.103, .104-S, .105-S, .106, .107(a)-(b); Part

823; Part 826; 845.18(b) and .19(a).

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[FR Doc. 98-24780 Filed 9-15-98; 8:45 am]

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