[Federal Register Volume 59, Number 181 (Tuesday, September 20, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23247]
[[Page Unknown]]
[Federal Register: September 20, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 918
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, with additional requirements, 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 the
Louisiana Surface Mining Regulations (LSMR) pertaining to revegetation
success standards for tree and shrub stocking on lands with a
postmining land use of forestry. The amendment specifies revegetation
success standards for final bond release on reclaimed lands developed
for forestry.
EFFECTIVE DATE: September 20, 1994.
FOR FURTHER INFORMATION CONTACT:
James H. Moncrief 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 Louisiana's program and program
amendments can be found at 30 CFR 918.15 and 918.16.
II. Proposed Amendment
By letter dated May 3, 1994, Louisiana submitted a proposed
amendment to its program pursuant to SMCRA (administrative record No.
LA-348). Louisiana submitted the proposed amendment at its own
initiative. The provision of its regulatory program that Louisiana
proposed to revise was LSMR 53123.B.4.a, standards for success of
revegetation at final bond release on reclaimed lands developed for
forestry.
In the May 26, 1994, Federal Register (59 FR 27252), OSM announced
receipt of the proposed amendment, provided an opportunity for a public
hearing or meeting on its substantive adequacy, and invited public
comment on its adequacy (administrative record No. 348.02). Because no
one requested a public hearing or meeting, none was held. The public
comment period ended on June 27, 1994.
During its review of the amendment, OSM identified concerns
relating to the provisions of LSMR 53123.B.4.a, revegetation success
standards for tree and shrub stocking on lands with a postmining land
use of forestry. OSM notified Louisiana of the concerns by letter dated
July 11, 1994 (administrative record No. LA-348.10).
In a letter dated August 16, 1994, Louisiana responded that (1) it
would not, at this time, submit revisions in response to OSM's July 11,
1994, issue letter, and (2) OSM should proceed with the publishing of
the final rule Federal Register notice (administrative record No. LA-
348.11).
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with additional requirements, that the
proposed program amendment submitted by Louisiana on May 3, 1994, is no
less effective than the requirements of the corresponding Federal
regulations. Accordingly, the Director approves the proposed amendment.
1. LSMR 53123.B.4.a, Standards for Success of Revegetation at Final
Bond Release on Reclaimed Lands Developed for Forestry.
a. Revegetation success standards for tree stocking and ground
cover. Louisiana proposed to revise LSMR 53123.B.4.a to require that
prior to final bond release there shall be 450 well-distributed free-
to-grow live pine trees per acre of the same age or 250 well-
distributed live hardwood trees per acre of the same age, and that
countable stems shall be a minimum of 3 years old. At proposed LSMR
53123.B.4.a, Louisiana defined ``well-distributed'' to mean uniform
stockings levels over an entire planting site, and ``free-to-grow'' to
mean pine seedlings or saplings without significant hardwood
competition, competing vegetation shades the pine's crown on less than
30 percent of the crown's circumference, and the pines are judged to
have better than a 90 percent chance of capturing a place in the crown
canopy.
LSMR 53123.B.4.a, which OSM previously approved (October 28, 1992;
57 FR 48726; administrative record No. LA-350), requires that
vegetative ground cover shall not be less than 70 percent
(administrative record Nos. LA-321 and LA-350). Louisiana's existing
LSMR 53117.A.4, applicable to revegetation on land reclaimed for any
land use, requires that a vegetative cover be established that is
capable of stabilizing the soil surface from erosion. Therefore, the
requirement for 70 percent ground cover on land developed for forestry
is a minimum standard that must be increased if it is insufficient to
control erosion.
Louisiana stated at proposed LSMR 53123.B.4.a that the tree
stocking and ground cover standards were developed after consultation
with and approval by the Louisiana Department of Agriculture and
Forestry. Louisiana submitted to OSM a letter, dated December 27, 1993,
from the Louisiana Office of Forestry, Department of Agriculture and
Forestry (administrative record No. LA-348.01). In it, the Office of
Forestry concurred with the technical success standards for areas
developed for forestry proposed at LSMR 53123.B.4.a.
The Federal regulations at 30 CFR 816.116(b)(3)(i) and
817.116(b)(3)(i) require that minimum stocking and planting
arrangements shall be specified by the regulatory authority on the
basis of local and regional conditions and after consultation with and
approval by the State agencies responsible for the administration of
forestry and wildlife programs. Consultation and approval may occur on
either a programwide or a permit-specific basis.
Because Louisiana proposed, at LSMR 53123.B.4.a, to specify the
minimum stocking and planting arrangements, and submitted approval by
the State agency responsible for the administration of forestry,
Louisiana has proposed programwide standards for all reclaimed land
with a designated postmining land use of forestry.
The Director finds that proposed LSMR 53123.B.4.a is no less
effective than the requirements of the Federal regulations at 30 CFR
816.116(b)(3)(i) and 817.116(b)(3)(i), and approves it.
b. Utility of trees for the approved postmining land use and tree
health. Louisiana proposed at LSMR 53123.B.4.a to delete the
requirements that the trees that will be used in determining the
success of stocking and the adequacy of the plant arrangement shall (1)
have utility for the approved postmining land use and (2) be healthy.
The Federal regulations at 30 CFR 816.116(b)(3)(ii) and
817.116(b)(3)(ii) require (in part) that trees and shrubs that will be
used in determining the success of stocking and the adequacy of the
plant arrangement shall (1) have utility for the approved postmining
land use and (2) be healthy.
Because Louisiana has deleted the State counterparts to the Federal
requirements, the Director finds that proposed LSMR 53123.B.4.a is less
effective than the requirements of the Federal regulations at 30 CFR
816.116(b)(3)(ii) and 817.116(b)(3)(ii). The Director requires that
Louisiana revise LSMR 53123.B.4.a to include these requirements.
c. Length of time trees have been established. Louisiana proposed
at LSMR 53123.B.4.a to delete the requirement that, at the time of
final bond release, at least 80 percent of the trees and shrubs shall
have been in place for 60 percent of the 5-year responsibility period.
Louisiana proposed to require that (1) there shall be 450 well-
distributed free-to-grow live pine trees per acre of the same age or
250 well-distributed live hardwood trees per acre of the same age and
(2) countable stems shall be a minimum of 3 years old.
The Federal regulations at 30 CFR 816.116(b0(3)(ii) and
817.116(b)(3)(ii) require in part that, at the time of bond release, at
least 80 percent of the trees and shrubs used to determine such success
shall have been in place for 60 percent of the applicable minimum
period of responsibility (``80/60 requirement'').
OSM interprets proposed LSMR 53123.B.4.a to require that 100
percent (i.e., all countable stems) of the trees must be in place for a
minimum of 60 percent of the responsibility period (i.e., 3 of the 5-
year minimum period of responsibility). Under this interpretation,
proposed LSMR 53123.B.4.a is no less effective than the ``80/60
requirement'' in the Federal regulations at 30 CFR 816.116(b)(3)(ii)
and 817.116(b)(3)(ii). However, before OSM can make this determination,
Louisiana must clarify that this is its intent. Therefore, the Director
requires that Louisiana either (1) clarify, by policy statement, that
proposed LSMR 53123.B.4.a requires that 100 percent (i.e., all
countable stems) of the trees must be in place for a minimum of 60
percent of the responsibility period (i.e., 3 of the 5-year minimum
period of responsibility), or (2) revise proposed LSMR 53123.B.4.a to
add the requirement that at least 80 percent of the trees and shrubs
used to determine success of revegetation shall have been in place for
60 percent of the applicable minimum period of responsibility.
IV. Summary and Disposition of Comments
Following are summaries of all substantive oral and written
comments on the proposed amendment that were received by OSM, and OSM's
responses to them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Louisiana program (administrative record No.
LA-348.03).
The U.S. Army Corps of Engineers responded on June 10, 1994, that
the proposed revisions were satisfactory (administrative record No. La-
348.04).
The U.S. Bureau of Mines responded on June 14, 1994, that it had no
comments (administrative record No. LA-348.05).
The U.S. Forest Service responded on June 15, 1994, that, after
consulting the forest administrators in Louisiana, it had no comments
(administrative record No. LA-348.06).
The U.S. Soil Conservation Service (SCS) responded on June 20,
1994, that (1) it concurred with the number of trees required for
successful revegetation of mined forest land, (2) it recommended a
ground cover of at least 75 percent to prevent unacceptable levels of
soil erosion, and (3) all gullies should be repaired and revegetated
prior to final bond release (administrative record No. 348.08).
With respect to the SCS comment concurring with the number of trees
required to demonstrate revegetation success, as discussed in finding
No. 1.a, the Director is approving the standard for the tree stocking
rate proposed by Louisiana at LSMR 53123.B.4.a.
With respect to the SCS comment concerning a recommended ground
cover of 75 percent, as discussed in finding No. 1.a, Louisiana's
requirement at LSMR 53123.B.4.a for 70 percent ground cover was
previously approved by OSM and is a minimum standard. The Federal
regulations of 30 CFR 816.116(b)(3)(iii) and 817.116(b)(3)(iii)
require, for areas to be developed for forestry, that vegetative ground
cover shall not be less than that required to achieve the approved
postmining land use. Louisiana, at LSMR 531117.A.4 (which is applicable
to revegetation on land reclaimed for any land use), requires that a
vegetative cover be established that is capable for stabilizing the
soil surface from erosion.
LSMR 53117.A.4 is substantively identical to the requirements of
the Federal regulations at 30 CFR 816.111(a)(4) and 817.111(a)(4). In
addition, Louisiana requires at LSMR 53121.A that suitable mulch and
other soil stabilizing practices shall be used on all regraded and
topsoiled areas to control erosion, promote germination of seeds, or
increase the moisture content of the soil. LSMR 53121.A is no less
effective than the requirements of the Federal regulations at 30 CFR
816.114 and 817.114. Louisiana's standard for ground cover at LSMR
53123.B.4.a, in conjunction with the requirements at LSMR 53117.A.4 and
53121.A, is consistent with and no less effective in meeting SMCRA's
requirements than the Federal regulations at 30 CFR 816.116(b)(3)(iii)
and 817.116(b)(3)(iii). Therefore, the Director is not requiring that
Louisiana revise the standard for ground cover on areas to be developed
for forestry at LSMR 53123.B.4.a in response to this comment.
With respect to the SCS comment that gullies should be repaired and
revegetated prior to final bond release, Louisiana's program at LSMR
53115 requires that (1) when rills and gullies deeper than 9 inches
form in areas that have been regarded and topsoiled, the rills and
gullies shall be filled, graded, or otherwise stabilized and the area
reseeded or replanted according to the requirements of LSMR 53117
through 53123, and (2) rills or gullies of lesser size be stabilized
and the area reseeded or replanted if the rills or gullies are
disruptive to the approved postmining land use or may result in
additional erosion and sedimentation. Therefore, because Louisiana's
approved program addresses the repair and revegetation of gullies, the
Director is not requiring that Louisiana revise LSMR 53123.B.4.a in
response to this comment.
The U.S. Fish and Wildlife Service responded on June 21, 1994, that
it had no objection to the proposed amendment (administrative record
No. 348.07).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of 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 its
amendment pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. LA-348.03). It
responded on July 8, 1994, that it had no comments (administrative
record No. LA-348.09).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit the
written comments of SHPO and ACHP with respect to those provisions of
the proposed program amendment that relate to historic properties.
None of the revisions that Louisiana proposed to make in its
amendment pertain to historic properties. Therefore, OSM did not
request SHPO and ACHP comments.
V. Director's Decision
Based on the above findings, the Director approves with additional
requirements Louisiana's proposed amendment as submitted on May 3,
1994.
With the requirement that Louisiana further revise its rules, the
Director approves, as discussed in finding Nos. 1.a through 1.c, LSMR
53123.B.4.a, concerning standards of success for revegetation on lands
developed for forestry.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
918.16 that, within 60 days of the publication of this final rule,
Louisiana must either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with Louisiana's established administrative or legislative
procedures.
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
1. 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).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that 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 12550) and the Federal regulations at 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.
3. 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)).
4. 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.).
5. 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 that 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.
List of Subjects in 30 CFR Part 918
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 14, 1994.
Russell F. Price,
Acting Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations 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 by revising the section heading and
adding paragraph (d) to read as follows:
Sec. 918.15 Approval of amendments to the Louisiana regulatory
program.
* * * * *
(d) Revisions to LSMR 53123.B.4.a, revegetation success standards
for forestry, as submitted to OSM on May 3, 1994, are approved
effective September 20, 1994.
3. Section 918.16 is revised to read as follows:
Sec. 918.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Louisiana is required to submit to
OSM by the specified date the following written, proposed program
amendment, or a description of an amendment to be proposed that meets
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for
enactment that is consistent with Louisiana's established
administrative or legislative procedures.
(a) By November 21, 1994, Louisiana shall revise LSMR 53123.B.4.a
or otherwise modify its program, to require that trees and shrubs that
will be used in determining the success of stocking and the adequacy of
the plant arrangement shall (1) have utility for the approved
postmining land use and (2) be healthy.
(b) By November 21, 1994, Louisiana shall revise LSMR 53123.B.4.a
or otherwise modify its program, to either (1) clarify, by policy
statement, that proposed LSMR 53123.B.4.a requires that 100 percent
(i.e., all countable stems) of the trees must be in place for a minimum
of 60 percent of the responsibility period, or (2) add the requirement
that at least 80 percent of the trees and shrubs used to determine
success of revegetation shall have been in place for 60 percent of the
applicable minimum period of responsibility.
[FR Doc. 94-23247 Filed 9-19-94; 8:45 am]
BILLING CODE 4310-05-M
