[Federal Register Volume 62, Number 223 (Wednesday, November 19, 1997)]
[Proposed Rules]
[Pages 61712-61715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-30304]
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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: 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
Louisiana regulatory program (hererinfafter the ``Louisiana program'')
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
The proposed amendment consists of revisions to and/or additions of
regulations pertaining to definitions, request for 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.
This document sets forth the times and locations that the Louisiana
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., December
19, 1997. If requested, a public hearing on the proposed amendment will
be held on December 15, 1997. Requests to speak at the hearing must be
received by 4:00 p.m., c.s.t. on December 4, 1997.
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 Louisiana 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.
Department of Natural Resources, Office of Conservation, Injection
and Mining Division, 625 N. 4th Street, P.O. Box 94275, Baton Rouge, LA
70804, Telephone: (504) 342-5540.
FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa
Field Office, Telephone (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Louisiana Program
On October 10, 1980, the Secretary of the Interior conditionally
approved the Louisiana program. General background information on the
Louisiana program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Louisiana program
can be found in the October 10, 1980, Federal Register (45 FR 67340).
Subsequent actions concerning the Louisiana program and program
amendments can be found at 30 CFR 918.15 and 918.16.
II. Description 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). Louisiana proposes to
amend the Louisiana Surface Mining Regulations. The full text of the
proposed program amendment submitted by Louisiana is available for
public inspection at the locations listed above under ADDRESSES. A
brief discussion of the proposed amendment is presented below.
A. Section 105. Definitions
1. Louisiana proposes to revise its definition for ``other
treatment facilities.''
2. Louisiana proposes to add a definition for ``previously mined
area.''
3. Louisiana proposes to add a definition for ``qualified
laboratory.''
B. Section 2537. Cross-Sections, Maps and Plans
Louisiana proposes to delete paragraph 2537.11. that requires
cross-sections, maps and plans in the permit applications to show
sufficient slope measurements to adequately represent the existing land
surface configuration of the proposed permit area.
C. Section 2725. Reclamation Plan: Ponds, Impoundments, Banks, Dams and
Embankments
1. Louisiana proposes to revise paragraph 2725.A. by adding
``siltation structure'' to the types of ponds, impoundments, banks,
dams and embankments requiring a general reclamation plan, and by
adding a provision that requires each application to include a detailed
reclamation plan for each proposed containment structure.
2. At paragraph 2725.A.2., Louisiana proposes to delete the
existing language and to replace it with language that adds specific
references to the U.S. Department of Agriculture, Soil Conservation
Service Technical Release No. 60 criteria for dam classification and
requires compliance with this technical release if structures meet or
exceed the size or other criteria of the Mine Safety and Health
Administration.
3. Louisiana proposes to revise paragraph 2725.A.3. to refer to
structures that are not included in paragraph 2725.A.2.
4. At paragraph 2725.A.3.a., Louisiana proposes to require
qualified, registered, professional engineers to certify all coal
processing waste dams and embankments covered by sections 5375 through
5395.
[[Page 61713]]
5. At section 2725, Louisiana proposes to add new paragraph C.1.
that specifies that for impoundments not included in paragraph
2725.A.2., engineering design standards shall ensure stability
comparable to a 1.3 minimum static safety factor in lieu of engineering
tests to establish compliance with the minimum static safety factor of
1.3 specified in section 5333.
6. Louisiana proposes to revise paragraph 2725.F. by deleting the
phrase, ``If the structure is 20 feet or higher or impounds more than
20 acre-feet,'' and replacing it with the phrase, ``If the structure
meets the Class B or C criteria for dams in TR-60 or meets the size or
other criteria of 30 CFR 77.216(a).''
D. Section 2907. Prime Farmland
At section 2907, Louisiana proposes to add new paragraph C.5. to
read as follows:
The aggregate total prime farmland acreage shall not be
decreased from that which existed prior to mining. Water bodies, if
any, to be constructed during mining and reclamation operations must
be located within the post-reclamation non-prime farmland portions
of the permit area. The creation of any such water bodies must be
approved by the regulatory authority and the consent of all affected
property owners within the permit area must be obtained.
E. Section 3705. Eligibility for Assistance
1. At paragraph 3705.A.2., Louisiana proposes to change from
100,000 to 300,000 tons the probable total actual and attributed
production of coal that an applicant for small operator assistance
cannot exceed during any consecutive 12-month period either during the
term of his or her permit or during the first five years after issuance
of his or her permit, whichever period is shorter.
2. Currently at paragraph 3705.A.2.a., applicants for small
operator assistance, with an ownership interest in other coal
production operations, have a pro rata share of coal produced by those
operations attributed to their total coal production in any consecutive
12-month period if they have more than a five percent ownership
interest in those other coal production operations. Louisiana proposes
to change the percentage of ownership interest from more than five
percent to more than ten percent.
3. Currently at paragraph 3705.A.2.b., applicants for small
operator assistance have a pro rata share of coal produced by other
coal production operations attributed to their total coal production in
any consecutive 12-month period if the coal operators of the other coal
production operations have more than a five percent ownership interest
in the applicant for small operator assistance. Louisiana proposes to
change the percentage of ownership interest from more than five percent
to more than ten percent.
F. Section 3711. Program Services and Data Requirements
1. Louisiana proposes to revise paragraph 3711.A. by adding the
phrase, ``and provide other services,'' to closely follow the Federal
regulation at 30 CFR 795.9(a).
2. Louisiana proposes to revise paragraph 3711.B.1. by adding the
phrase, ``including the engineering analyses and designs necessary for
the determination,'' to closely follow the Federal regulation at 30 CFR
795.9(b)(1).
3. Louisiana proposes to revise paragraph 3711.B.2. by adding the
phrase, ``the drilling and,'' to closely follow the Federal regulation
at 30 CFR 795.9(b)(2).
4. Louisiana proposes to add new paragraph 3711.B.3., ``the
development of cross-section maps and plans required by Sec. 2537,'' to
closely follow the Federal regulation at 30 CFR 795.9(b)(3).
5. Louisiana proposes to add new paragraph 3711.B.4, ``the
collection of archaeological and historic information and related plans
required by Secs. 2505.A.2. and 2731 and any other archaeological and
historic information required by the office,'' to closely follow the
Federal regulation at 30 CFR 795.9(b)(4).
6. Louisiana proposes to add new paragraph 3711.B.5., ``pre-blast
surveys required by Sec. 2707; and'' to closely follow the Federal
regulation at 30 CFR 795.9(b)(5).
7. Louisiana proposes to add new paragraph 3711.B.6, ``the
collection of site-specific resources information, the production of
protection and enhancement plans for fish and wildlife habitats
required by Sec. 2713, and information and plans for any other
environmental values required by the office under the act.'' to closely
follow the Federal regulation at 30 CFR 795.9(b)(6).
G. Section 3717. Applicant Liability
1. At paragraph 3717.A., Louisiana proposes to revise this
paragraph by adding the phrase, ``A coal operator,'' and by deleting
the words ``laboratory'' and ``performed'' to closely follow the
Federal regulation at 30 CFR 795.12(a).
2. Louisiana proposes to revise paragraph 3717.A.2. by replacing
the ``applicant's'' actual and attributed annual production of coal for
all locations with the ``operator's'' actual and attributed annual
production of coal for all locations. Also, Louisiana proposes to
change the actual and attributed annual production of coal for all
locations from 100,000 to 300,000 tons during the 12 months immediately
following the date on which the permit was originally issued.
3. Louisiana proposes to revise paragraph 3717.A.3. concerning
permits that are sold, transferred, or assigned by changing the
transferee's total actual and attributed annual production of coal from
100,000 to 300,000 tons during the 12 months immediately following the
date on which the permit was originally issued.
H. Section 4501. Procedures for Seeking Release of Performance Bond
1. Louisiana proposes to add new paragraph 4501.A.3. to read as
follows:
The permittee shall include in the application for bond release
a notarized statement which certifies that all applicable
reclamation activities have been accomplished in accordance with the
requirements of the Act, the regulatory program, and the approved
reclamation plan. Such certification shall be submitted for each
application or phase of bond release.
2. With the addition of this new paragraph, Louisiana proposes to
re-number existing paragraph A.3. as A.4.
I. Section 5333. Hydrologic Balance: Impoundments
1. Louisiana proposes to add new paragraph 5333.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 (210-VI-TR60, October 1985), ``Earth Dams and Reservoirs,'' 1985
to comply with the ``Minimum Emergency Spillway Hydrologic Criteria''
table in TR-60. Louisiana also proposes to incorporate by reference the
above technical release.
2. Louisiana proposes to redesignate existing paragraphs 5333.A.1.
through 5333.A.12. as paragraphs 5333.A.2 through 5333.A.13.
3. Louisiana proposes to revise redesignated paragraph 5333.A.4.
(previously paragraph 5333.A.3.) by deleting all of its language except
for the word ``Stability.'' The State also proposes to add new
paragraphs a. and b. containing the following language:
a. An impoundment meeting the Class B or C criteria for dams in
TR-60, or the size or other criteria of 30 CFR 77.216(a) shall have
a minimum static safety factor of 1.5 for a normal pool with steady
state seepage saturation conditions, and a seismic safety factor of
at least 1.2.
b. Impoundments not included in Sec. 5333.A.4.a. except for a
coal mine waste
[[Page 61714]]
impounding structure, shall have a minimum static safety factor of
1.3 for a normal pool with steady state seepage saturation
conditions or meet the requirements of Sec. 2725.C.1.
4. At redesignated paragraph 5333.A.6. (previously paragraph
5333.A.5.),
Louisiana proposes to revise this paragraph by adding the following
language:
For an impoundment meeting the Class B or C criteria for dams in
TR-60, or the size or other criteria of 30 CFR 77.216(a), foundation
investigation, as well as any necessary laboratory testing of
foundation material, shall be performed to determine the design
requirements for foundation stability.
5. At redesignated paragraph 5333.A.9. (previously paragraph
5333.A.8.), Louisiana proposes to revise this paragraph by deleting the
existing language and replacing it, and by adding new paragraphs
A.9.a., a.i., and a.ii., and A.9.b., b.i., b.ii., and b.iii. The new
language pertains to the types of spillways that shall be designed and
constructed for impoundments: (a.) meeting the Class B or C criteria
for dams in TR-60, the emergency spillway hydrograph criteria in the
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60, or
greater event as specified by the State; (b.) meeting or exceeding the
size or other criteria of 30 CFR 77.216(a), a 100-year 6-hour event, or
greater event as specified by the State; and (c.) not included in
Sec. 5333.A.9.b.i. and ii., 25-year 6-hour or greater event as
specified by the State.
6. At redesignated paragraph 5333.A.12 (previously paragraph
5333.A.11.), Louisiana proposes to revise this paragraph by deleting
the existing language and replacing it with language pertaining to
impoundments ``meeting'' and ``not meeting'' the SCS Class B or C
criteria for dams in TR-60, or the size or other criteria in 30 CFR
77.216. The State also proposes how often and by whom these
impoundments must be examined and what must be looked for during the
examinations.
7. Louisiana proposes to revise paragraph 5333.C.2. by deleting the
existing language and replacing it with new language and by adding new
paragraphs C.2.a. and C.2.b. The new language pertains to the State's
option to approve temporary impoundments that are constructed to
control runoff, from the design precipitation event, primarily through
storage of the runoff.
J. Section 5411. Backfilling and Grading: Thin Overburden
Louisiana proposes to revise paragraph 5411.A. by deleting the
existing language and replacing it with new language, and by adding new
paragraphs A.1. and A.2. The proposed new language for these paragraphs
contains the definition for and explanations pertaining to ``thin
overburden.''
K. Section 5413. Backfilling and Grading: Thick Overburden
Louisiana proposes to revise paragraph 5413.A. by deleting the
existing language and replacing it with new language, and by adding new
paragraphs A.1. and A.2. The proposed new language for these paragraphs
contains the definition for and explanations pertaining to ``thick
overburden.''
L. Section 5503. Prime Farmland: Soil Removal
Louisiana proposes to revise paragraph 5503.A.2. by adding language
to require coal operators:
to separately remove the B horizon of the soil, a combination of
B horizon and underlying C horizon, or other suitable soil material
to provide the thickness of suitable soil required by paragraph
5507.A.1. that will create a reconstructed soil of equal or greater
productivity capacity than that which existed before mining, except
as approved by the regulatory authority where the B or C soil
horizons would not otherwise be removed and where soil capabilities
can be retained;
M. Section 5507. Prime Farmland: Soil Replacement
Louisiana proposes to revise paragraph 5507.A.4. by deleting the
existing language and replacing it with the following language:
The operator shall replace the B horizon, C horizon, or other
suitable material specified in Sec. 5503.A.2. to the thickness
needed to meet the requirements of Sec. 5507.A.1. In those areas
where the B or C horizons were not removed but may have been
compacted or otherwise damaged during the mining operation, the
operator shall engage in deep tilling or other appropriate means to
restore premining capabilities.
N. Section 6507. Service of Notices of Violation and Cessation Orders
Louisiana proposes to revise paragraph 6507.A.2. by adding language
to its regulation regarding how notices of violations and cessation
orders are to be served. The added language allows the State to serve
the person to whom the notice or order was issued by any means
consistent with the rules governing service of a summons and complaint
under the Louisiana Rules of Civil Procedure.
O. Section 6913. Procedures for Assessment of Civil Penalties
Louisiana proposes to revise paragraph 6913.B by adding language to
its regulation regarding how copies of the proposed assessment and the
worksheet showing the computation of the proposed assessment are to be
served. The added language allows the State to serve the person to whom
the notice or order was issued by any alternative means consistent with
the rules governing service of a summons and complaint under the
Louisiana Rules of Civil Procedure.
P. Section 6915. Procedures for Assessment Conference
Louisiana proposes to revise paragraph 6915.B.1 by changing the
time when the assessment conference is to be held from ``within 60 days
from the date of the issuance of the proposed assessment or the end of
the abatement period, whichever is later'' to ``within 60 days from the
date the conference request is received or the end of the abatement
period, whichever is later.'' Louisiana also proposes to add that
failure by the State to hold the conference within 60 days shall not be
grounds for dismissal of all or part of an assessment unless the person
against whom the proposed penalty has been assessed proves actual
prejudice as a result of the delay.
Q. Section 6917. Request for Hearing
Louisiana proposes to change from 15 days to 30 days the amount of
time a person has to submit a petition for requesting a hearing after
the date of service of the conference office's action.
R. Section 7105. Procedure for Assessment of Individual Civil Penalty
Louisiana proposes to revise paragraph 7105.C. by adding language
to its regulation regarding when service of a notice of proposed
assessment and included information shall be deemed complete. The added
language states that service is 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.
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 Louisiana program.
[[Page 61715]]
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 Tusla 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 December 4, 1997. 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 as it will greatly assist the transcriber. 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 Environment Policy Act
No environment 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
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 an
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 918
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 7, 1997.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 97-30304 Filed 11-18-97; 8:45 am]
BILLING CODE 4310-05-M
