[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Proposed Rules]
[Pages 1396-1399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-530]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 904
[SPATS No. AR-031-FOR]
Arkansas 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
Arkansas regulatory program (hereinafter the ``Arkansas program'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
The proposed amendment consists of revisions to and additions of
regulations pertaining to revegetation success standards and selective
husbandry practices that would not extend the period of responsibility
for revegetative success and bond liability. The amendment is intended
to revise the Arkansas program to be consistent with the corresponding
Federal regulations and improve operational efficiency.
This document sets forth the times and locations that the Arkansas
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. on
February 9, 1998. If requested, a public hearing on the proposed
amendment will be held on February 3, 1998. Requests to speak at the
hearing must be received by 4:00 p.m., c.s.t. on January 26, 1998.
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 Arkansas 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.
Arkansas Department of Pollution Control and Ecology, Surface
Mining and Reclamation Division, 8001 National Drive, Little Rock,
Arkansas 72219-8913. Telephone (501) 682-0744.
FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Director, Tulsa Field Office, Telephone: (918) 581-
6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Arkansas Program
On November 21, 1980, the Secretary of the Interior conditionally
approved the Arkansas program. Background information on the Arkansas
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in
[[Page 1397]]
the November 21, 1980, Federal Register (45 FR 77003). Arkansas amended
its program by submitting provisions that satisfied all of the
conditions of the Secretary's approval of November 21, 1980. Effective
January 22, 1982, OSM removed the conditions of the approval of the
Arkansas permanent regulatory program. Information on the removal of
the conditions can be found in January 22, 1982, Federal Register (47
FR 3108). Subsequent actions concerning the conditions of approval and
program amendments can be found at 30 CFR 904.12, 904.15, and 904.16.
II. Description of the Proposed Amendment
By letter dated November 24, 1997 (Administrative Record No. AR-
560), Arkansas submitted a proposed amendment to its program pursuant
to SMCRA. Arkansas submitted the proposed amendment at its own
initiative. Arkansas proposes to amend the Arkansas Surface Coal Mining
and Reclamation Code to include revegetation success standards at
section 816.116. Arkansas also submitted copies of the parts of the
United States Department of Agriculture, Natural Resources Conservation
Service (NCRS) Arkansas Field Office Technical Guide to which the
proposed amendment refers. The full text of the proposed program
amendment and the parts of the Technical Guide submitted by Arkansas
are available for public inspection at the locations listed above under
ADDRESSES. A brief discussion of the proposed amendment is presented
below.
1. ASCMRC Subsection 816.116(a) General Revegetation Success Standards
Arkansas proposes to delete existing paragraph (1) and redesignate
existing paragraph (2) as (1). Arkansas also proposes to revise the
second sentence of redesignated paragraph (1) to read, ``Ground cover,
production, or stocking shall be considered equal to the approved
success standard when they are not less than 90 percent of the success
standards in paragraphs (b)(1), and (2) of this section.''
2. ASCMRC Subsection 816.116(b)(1) Revegetation Success Standards for
Areas Developed for Use as Grazing and Pasture Land
Arkansas proposes to delete the existing language at subsection
816.116(b)(1) and replace it with the following language:
(1) Areas developed for use as a grazing land or pasture land
shall be maintained using proper management practice as set forth in
the United States Department of Agriculture, Natural Resources
Conservation Service (NRCS) Arkansas Field Office Technical Guide
Section IV, Codes 342, 510, and 512) and this subsection until the
end of the responsibility period. Production for proof of
productivity purposes shall be initiated within five years after
completion of backfilling and final grading; and (i) The ground
cover and production of living plants on the revegetated area shall
be at least equal to that of a reference area, except for erosion
control devices and other structure (i.e., levees, ditches,
waterways, impounding structures, etc.). The productivity and ground
cover figures shall have a 90-percent statistical confidence (i.e.,
one-sided test with a 0.10 alpha error) derived from any two years
of the five year responsibility period prior to release of the
performance bond, except for the first year; or (ii) When no
reference area is employed, productivity success [tons of grass,
animal unit months (A.U.M.), and/or legumes per acre, etc.], except
for erosion control devices and other structures (i.e., levees,
ditches, waterways, impounding structures, etc.), shall be
considered successful if it is 90 percent of the predicted yields
under improved management established by the NRCS's respective
county District Conservationist, County Soil Manual, and/or Soil
Survey Database for the vegetation type(s) planted on the soil
series present before the area was disturbed. Ground cover shall be
considered successful if it is 90 percent. The productivity and
ground cover figures shall have a 90-percent statistical confidence
(i.e., one-sided test with a 0.10 alpha error) derived from any two
years of the five responsibility period prior to release of the
performance bond, except for the first.
3. ASCMRC Subsection 816.116(b)(2) Proof of Productivity Standards for
Area Developed for Use as Cropland
Arkansas proposes to delete the existing language at subsection
816.116(b)(2) and replace it with the following language:
(2) For those areas developed for use as cropland, production
for proof of productivity purposes shall be initiated within ten
years after completion of backfilling and final grading, and (i)
Production on the revegetated areas shall be at least equal to that
of a reference area, except for erosion control devices and other
structures (i.e., levees, ditches, waterways, impounding structures,
etc.) With a 90-percent statistical confidence (i.e., one-sided test
with a 0.10 alpha error) for a minimum of any two crop years of ten
year responsibility period prior to release of the performance bond,
except the first year of the five year responsibility period; or
(ii) When no reference area is employed, 90 percent of that crop
production established in NRCS's respective county District
Conservationist, County Soil Survey Manual, and/or the Soil Survey
Database for the soil series present prior to disturbance with a 90-
percent statistical confidence (i.e., one-sided test with a 0.10
alpha error) for a minimum of any two crop years of a ten year
responsibility period prior to release of the performance bond,
except the first year of the five year responsibility period. (iii)
During the extended five year responsibility period, erosion from
cropland must be minimized using equivalent or better management
practices than surrounding unmined cropland. The five responsibility
period shall begin after the last year of augmented seeding,
fertilizing, or soil treatment and at the time of the planting of
the crop(s) to be grown for the productivity showing or crops grown
in rotation.
4. ASCMRC Subsection 816.116(b)(3) Revegetation Success Standards for
Areas to be Developed for Fish and Wildlife Habitat
At existing subsection 816.116(b)(3), Arkansas proposed to delete
the language, ``success of vegetation shall be determined on the basis
of tree and shrub stocking and vegetative ground cover. Such parameters
are described as follows:''
Arkansas proposes to redesignate existing paragraphs
816.116(b)(3)(i), (ii), and (iii), as 816.116(b)(3)(i)(A), (B), and
(C), respectively, and to add the following language at proposed new
paragraph 816.116(b)(3), ``Success of vegetation shall be determined on
the basis of tree and shrub stocking and vegetative ground cover using
proper management practices set forth in the NRCS's Arkansas Field
Office Technical Guide (Section IV, Codes 612, and 645) and such
parameters described as follows:''
5. ASCMRC Subsection 816.116(b)(4) Revegetation Success Standards for
Areas to be Developed for Industrial, Commercial, or Residential Use
Arkansas proposes to revise subsection 816.116(b)(4) by adding the
phase, ``and shall not be less than 70 percent.''
6. ASCMRC Subsection 816,116(b)(5) Revegetation Success for Areas
Previously Disturbed by Mining
Arkansas proposes to revise subsection 816.116(b)(5) to require
that vegetative ground cover shall not be less than the greater 70
percent or the percentage of the ground cover existing before
redisturbance, and shall be adequate to control erosion during the last
year of responsibility.
7. ASCMRC Subsection 816.116(b)(6) Revegetation Success for Non-
contiguous Areas
Arkansas proposes to add a new subsection at 816.116(b)(6) as
follows:
Non-contiguous areas less than or equal to four acres which we
disturbed from activities such as, but no limited to, signs,
boreholes, power poles, stockpiles and substations shall
[[Page 1398]]
be considered successfully revegetated if the operator can
demonstrate the soil disturbance was minor, i.e., the majority of
the subsoil remains in place, the soil has been returned to its
original capability and the area is supporting its approved
postmining use at the end of the responsibility period.
8. ASCMRC Subsection 816.116(c) Vegetative Ground Cover Measurement
Technique
Arkansas proposes to redesignate existing (c) as (d), and replace
it with new subsection (c) as follows:
(c) Vegetative ground cover shall be measured by the following
technique: (1) Ten (10) random points shall be identified in the
area to be tested. (2) A twenty (20) foot engineer's tape shall be
extended directly south of each point. If the tape extends beyond
the boundary of the area to be tested or extends into an area where
herbaceous ground cover has been controlled with herbicides to
minimize competition with woody plants, the tape shall be rotated in
ninety (90) degree increments until the entire twenty (20) foot
length is within the boundary of the area to be tested or area not
treated with herbicides. (3) A measurement shall be taken at each
two: tenths (0.2) foot increment directly above or below the tape. A
Ground cover shall be determined to be present if any vegetation
identified in the NRCS's Arkansas Field Office Technical Guide
(Section IV, Codes 342, 510, and 512) and the approved reclamation
plan, including ten percent (10%) site-produced litter and/or other
desirable annual species described in (Section IV, Code 342, Table
2) is measured at the increment. (5) A percentage of ground cover
shall be established for the area tested by taking the total number
of measurements where ground cover was determined to be present.
9. ASCMRC Subsection 816.116(d) Period of Extended Responsibility for
Revegetation Success
Arkansas proposes to revise redesignated subsection 816.116(d) by
deleting (d)(3) and by making non-substantive language changes and
paragraph notation changes to reflect the revisions made by this
amendment.
10. ASCMRC Subsection 816.116(e) Selective Husbandry Practices
Arkansas proposes to add new subsection (e) as follows:
(e) Selective husbandry practices which will not extend the
period of responsibility for revegetative success and bond
liability, if such practices can be expected to continue as part of
the postmining land use or if discontinuance of the practices after
the liability period expires sill not reduce the probability of
permanent revegetative success, include: (1) Augmented seeding,
fertilization, liming, mulching, mowing, or irrigation; (2)
Temporary erosion control structures such as silt fencing, straw, or
hay bale dikes; (3) Practices such as disease, pest, and vermin
control; and any pruning, reseeding and/or transplanting
specifically necessitated by such action; (4) Land smoothing and
reseeding, provided the cumulative acreage is no greater than ten
percent (10%) of the disturbed area of the permit; (5) Rip-rap
repair and maintenance; (6) Terrace repair and maintenance; (7) Rill
and gully repair on noncropland-capable or cropland-capable
reclaimed land will be considered a husbandry practice if an
operator has an approved erosion control plan in place in the field,
and shortly after the first rainfall event after the repair, the
Department makes the following determination: (i) The area is a
minor erosional feature; (ii) The area is small; (iii) The erosion
is not expected to recur; and (iv) The area is stable. The
Department shall notify the permittee in writing whether on not a
repair is an augmentation. Such written notice shall be in the form
of an inspection report or other document issued by the Department.
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 Arkansas program.
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 Tulsa 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 January 26, 1998. 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. 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 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
[[Page 1399]]
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 and
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 904
Intergovernmental relations, Surface mining, Underground mining.
Dated: December 31, 1997
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 98-530 Filed 1-8-98; 8:45 am]
BILLING CODE 4310-05-M
