02-12460. Arkansas Abandoned Mine Land Reclamation Plan and Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Arkansas abandoned mine land (AML) reclamation plan (Arkansas plan) and the Arkansas regulatory program (Arkansas program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). Arkansas proposed revisions to its AML reclamation plan regulations concerning eligible lands and water, reclamation objectives and priorities, and reclamation project evaluation. Arkansas proposed to revise its regulatory program regulations concerning procedures for assessment conference and to add revegetation success standards for grazingland and prime farmland. Arkansas revised its plan and program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE:

May 17, 2002.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa Field Office, Telephone: [phone], Internet: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas Plan and Program

II. Submission of the Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Arkansas Plan and Program

The Abandoned Mine Land Reclamation Program was established by Title IV of the Act (30 U.S.C. 1201 et seq.) in response to concerns over extensive environmental damage caused by past coal mining activities. The program is funded by a reclamation fee collected on each ton of coal that is produced. The money collected is used to finance the reclamation of abandoned coal mines and for other authorized activities. Section 405 of the Act allows States and Indian tribes to assume exclusive responsibility for reclamation activity within the State or on Indian lands if they develop and submit to the Secretary of the Interior for approval, a program (often referred to as a plan) for the reclamation of abandoned coal mines. On May 2, 1983, the Secretary of the Interior approved the Arkansas plan. You can find background information on the Arkansas plan, including the Secretary's findings, the disposition of comments, and the approval of the plan in the May 2, 1983, Federal Register (48 FR 19710). You can find later actions on the Arkansas plan at 30 CFR 904.25 and 904.26.

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Arkansas program on November 21, 1980. You can find background information on the 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). You can find later actions on the Arkansas program at 30 CFR 904.10, 904.12, 904.15, and 904.16.

II. Submission of the Amendment

By letter dated August 13, 2001 (Administrative Record No. AR-568), Arkansas sent us an amendment to its plan and program under SMCRA (30 U.S.C. 1201 et seq.). Arkansas sent the amendment in response to our letters dated November 26, 1985, and October 14, 1997 (Administrative Record Nos. AR-332 and AR-559.02, respectively), that we sent to Arkansas under 30 CFR 732.17(c). Arkansas also sent the amendment in response to our letter dated May 5, 1999 (Administrative Record No. AAML-30) that we sent Arkansas under 30 CFR 884.15(d). The amendment also includes a change made at Arkansas' own initiative. Arkansas proposes to amend the Arkansas Surface Coal Mining and Reclamation Code.

We announced receipt of the proposed amendment in the October 5, 2001, Federal Register (66 FR 50952). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendments adequacy. We did not hold a public hearing or meeting because no one requested one. The public comment period ended on November 5, 2001. We received comments from two Federal agencies.

During our review of the amendment, we identified concerns about the Phase III revegetation success standards for grazingland and the Phase II and Phase III revegetation success standards for prime farmland. We notified Arkansas of these concerns by letter dated December 10, 2001 (Administrative Record No. AR-586.05).

By letter dated February 25, 2002 (Administrative Record No. AR-586.07), Arkansas sent us additional explanatory information and revisions to its proposed program amendment. Because the additional information and revisions merely clarified certain provisions of Arkansas' amendment, we did not reopen the public comment period.

III. OSM's Findings

Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15, 732.17, 884.14, and 884.15. We are approving the amendment.

A. Revisions to Arkansas' AML Reclamation Plan

1. Section 874.12, Eligible Lands and Water

Arkansas revised paragraph (b)(4) by replacing the reference to “30 CFR 872.11(b)(2) and (3)” with a reference to “Section 402(g)(1) and (5) of Public Law 95-97.”

The reference change in section 874.12 merely corrects an incorrect citation reference and does not change the meaning of this previously approved section. Therefore, we find that the revision does not alter the substance of the Arkansas plan.

2. Section 874.13, Reclamation Objectives and Priorities

Arkansas deleted paragraph (d) of this section regarding research and demonstration projects relating to the development of surface coal mining reclamation and water quality control program methods and techniques. By deleting this paragraph, the above projects will no longer have priority as AML reclamation projects.

Section 874.13 of Arkansas' regulations provides the specific criteria for ranking and identifying AML reclamation projects. The provisions of 30 CFR 884.13(c)(2) of the Federal regulations requires the specific criteria used by a State to be consistent with section 403 of the Act. The Energy Policy Act of 1992 removed the funding of coal research and demonstration projects from section 403 of the Act. Therefore, we find that, with the deletion of paragraph (d), section 874.13 of Arkansas' regulations is consistent with the requirements of 30 CFR 884.13(c)(2).

3. Section 874.14, Reclamation Project Evaluation

Arkansas revised paragraph (a)(2) of this section by deleting the last sentence concerning research and demonstration projects.

Section 874.14 of Arkansas' regulations provides the factors for evaluating proposed reclamation projects and completed reclamation work. The last sentence of paragraph (a)(2) concerned the evaluation of research and demonstration projects. As stated above, the Energy Policy Act of 1992 removed the funding of coal research and demonstration projects from section 403 of the Act. Further, Arkansas has removed coal research and demonstration projects from its specific criteria for ranking and identifying AML reclamation projects. Therefore, we find that the deletion of the last sentence in section 874.14(a)(2) is consistent with the requirements of 30 CFR 884.13.

B. Revisions to Arkansas' Regulatory Program

1. Section 845.18, Procedures for Assessment Conference

In paragraph (a) of this section, Arkansas removed the department's old name of “Arkansas Department of Pollution Control and Ecology” and replaced it with the department's new name of “Arkansas Department of Environmental Quality.”

We find that the name change in section 845.18 does not change the meaning of this previously approved section, and therefore does not render the provision less effective than the corresponding Federal regulation at 30 CFR 845.18.

2. Revegetation Success Standards for Grazingland and Prime Farmland

The Federal regulations at 30 CFR 816.116(a)(1) require that each regulatory authority select revegetation success standards and statistically valid sampling techniques for measuring revegetation success and include them in its approved regulatory program. Arkansas developed its revegetation success guidelines to satisfy this requirement. The guidelines include revegetation success standards and statistically valid sampling techniques for measuring revegetation success of reclaimed grazingland in accordance with Arkansas' counterparts to the Federal regulations at 30 CFR 816.116. The guidelines also include revegetation success standards and statistically valid sampling techniques for restoring soil productivity of prime farmland soils in accordance with Arkansas' counterparts to the Federal regulations at 30 CFR 823.15. Arkansas' standards, criteria, and parameters for revegetation success reflect the extent of cover, species composition, and soil stabilization required in the Federal regulations at 30 CFR 816.111. As required by the Federal regulations at 30 CFR 816.116(a)(2) and 823.15, Arkansas' revegetation success standards include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover, production, or stocking suitable to the approved postmining land uses. Arkansas' guidelines specify the procedures and techniques to be used for sampling, measuring, and analyzing vegetation parameters. Ground cover, production, and stocking suitable to grazinglands are considered equal to the approved success standard when they are not less than 90 percent of the success standard. The average production of crops for prime farmland soils must equal or exceed the average production of the same crops for the same or similar unmined prime farmland soils. Sampling techniques for measuring success use a 90-percent statistical confidence interval for all land uses. We find that use of these procedures and techniques will ensure consistent, objective collection of vegetation data.

For the above reasons, we find that the revegetation success standards and statistically valid sampling techniques for measuring revegetation success contained in Arkansas' revegetation success guidelines satisfy the requirements of 30 CFR 816.116(a)(1) and 823.15.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment, but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), 884.14(a)(2), and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Arkansas program (Administrative Record No. AR-568.01). The U.S. Fish and Wildlife Service (FWS) responded on October 17, 2001 (Administrative Record No. AR-568.04), that there are numerous endangered and threatened species that occur throughout the state where potential reclamation sites could be located, but it finds that the standards established by Arkansas would not adversely affect any listed species. The FWS further stated that the standards established by Arkansas would probably serve as a benefit to listed species as well as wildlife as a whole. Finally, the FWS provided several specific comments on Arkansas' proposed revegatation success standards for grazingland and prime farmland. These comments are discussed below.

A. Comments Concerning Arkansas' Revegetation Success Standards for Grazingland

1. The FWS stated that at III.C.1 concerning reference area requirements, the guidelines should stipulate that reference plots using crops should not be used for grazingland reclamation sites. Only like plant species should be used as reference plots.

Response: The word “crop” in this section is a generic term used to refer to the product of a reference area. It does not specifically refer to row crops. In the case of grazinglands, reference areas would consist of similar plant species, and the crop yields of these reference areas must be at a level that is reasonably comparable to the county average for grazinglands on the same or similar soils.

2. The FWS stated that at IV.B concerning sampling techniques, the guidelines should stipulate that the same transects are used each year.

Response: We disagree with this comment. Using the same transects each year would negate the “randomness” of the selection of transect locations. The “randomness” of transect site selection is necessary to ensure that sample sites are impartial and that the results of the sampling represent an average for the reclaimed or reference areas.

3. The FWS stated that at IV.B concerning sampling techniques, the guidelines should clarify what criteria is used to determine whether sampling frames or whole harvesting is chosen to calculate productivity.

Response: We disagree with this comment. The operator has discretion to select the method of sampling, subject to regulatory authority approval.

4. The FWS recommended that whole area harvesting should not be conducted during ground bird nesting season.

Response: This comment is a matter of wildlife management, and therefore outside the scope of SMCRA and the Federal regulations. However, we have forwarded this comment on to the State for their consideration.

5. The FWS recommended that the operator should record the date on the sampling data sheets. The FWS pointed out that this is important since samples will be weighed both before and after drying, and the time of year that the samples were harvested needs to be taken into consideration. Also, since comparisons of the reference plots with the reclamation plots will be made, these samples should be collected at the same time.

Response: We agree that the operator should record the date the sample was taken on the sampling data sheets. We further agree that the operator must collect the samples from the reference area and reclamation plots at the same time. The data forms in Appendices B and C have a place to record the date of sampling. Further, section III.D concerning reference areas provides that reference area crops and crops in the reclaimed prime farmland area must have the same harvest dates. Therefore, we determined that Arkansas did not need to make any changes to these data forms.

However, Appendix D did not have a place to record the date of sampling. By letter dated December 10, 2001 (Administrative Record No. AR-568.05), we notified Arkansas that the data form in Appendix D must provide an area for recording the date of sampling. By letter dated February 25, 2002 (Administrative Record No. AR-568.07), Arkansas revised Appendix D to include a place to record the date of sampling. We find that Arkansas' revision to Appendix D is acceptable and resolves the FWS's concern.

6. The FWS recommended that only native species be replanted on reclamation sites.

Response: We disagree with this comment. Section 816.111(a) of the Federal regulations allows a permittee to establish a vegetative cover on regraded areas that is comprised of introduced species where desirable and necessary to achieve the approved postmining land use and approved by the regulatory authority. Thus, introduced species are acceptable when approved by the regulatory authority.

B. Comments Concerning Arkansas' Revegetation Success Standards for Prime Farmland

1. The FWS wondered when the predicted average yield per acre for each county was calculated. The FWS stated that if it was calculated an extended period from the present, the results might not be comparable to the results of the reference plots due to improved farming practices of today. The FWS stated that the operator should be encouraged to use reference plots if this is the situation.

Response: We do not share the FWS's concern that operators will use outdated predicted average yields as standards for success. The regulatory authority has discretion over the selection of the success standard. Section 780.18(b)(5) of Arkansas' regulations requires a permittee to submit a plan for revegetation that includes, among other things, the measures the permittee will use to determine the success of revegetation. Section II.C.5 of Arkansas' revegetation success guidelines for prime farmland states that the Natural Resources Conservation Service will be notified at the time of permit submittal of the area to be mined. If updated soil productivity values are available, they will be used for the standard of success. The regulatory authority has discretion to disapprove the use of predicted average yield if it is so outdated that it would not serve as an adequate measure of soil productivity. Furthermore, even if an operator uses predicted average yields that are outdated, section II.C.5.b provides that the yield data may be adjusted to compensate for differences in specific management practices. Therefore, if the yield data is outdated, they can be adjusted to take into account improved farming practices.

2. The FWS recommended that the operator record the date the sample was taken on the sampling data sheets. The FWS pointed out that this is important since samples will be weighed both before and after drying, and the time of year that the samples were harvested needs to be taken into consideration. Also, since comparisons of the reference plots with the reclamation plots will be made, these samples should be collected at the same time.

Response: We agree that the operator should record the date the sample was taken on the sampling data sheets. We further agree that the operator must collect the samples from the reference area and reclamation plots at the same time. The data forms in Appendices B and C have a place to record the date of sampling. Further, section III.D concerning reference areas provides that reference area crops and crops in the reclaimed prime farmland area must have the same harvest dates. Therefore, we determined that Arkansas did not need to make any changes to these data forms.

However, Appendix G did not have a place to record the date of sampling. By letter dated December 10, 2001 (Administrative Record No. AR-568.05), we notified Arkansas that the data form in Appendix G must provide an area for recording the date of sampling. By letter dated February 25, 2002 (Administrative Record No. AR-568.07), Arkansas revised Appendix G to include a place to record the date of sampling. We find that Arkansas' revision to Appendix G is acceptable and resolves the FWS's concern.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written concurrence from the EPA for those provisions of the program amendment that relate to air or water quality standards issued 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 ask the EPA to concur on the amendment.

Under 30 CFR 732.17(h)(11)(i) and 884.15(a)(2), we requested comments on the amendment from the EPA (Administrative Record No. AR-568.01). The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4) and 884.14(a)(6), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On September 6, 2001, we requested comments on Arkansas's amendment (Administrative Record No. AR-568.01). The Arkansas Historic Preservation Office responded on September 6, 2001 (Administrative Record No. AR-568.02), that because no known historic properties would be affected, it has no comment on the proposed program amendment.

V. OSM's Decision

Based on the above findings, we approve the amendment as submitted by Arkansas on August 13, 2001, and as revised on February 25, 2002.

We approve the regulations proposed by Arkansas with the provision that they be fully promulgated 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 codify decisions concerning the Arkansas program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Section 405(d) of SMCRA requires that the state have a program that is in compliance with the procedures, guidelines, and requirements established under the Act. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 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 AML reclamation plans, and program and plan amendments, because each program and plan 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 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. Decisions on proposed AML reclamation plans and revisions submitted by a State or Tribe are based on a determination of whether the submittal meets the requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part 884 of the Federal regulations.

Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Section 405(d) of SMCRA requires State abandoned mine reclamation programs to be in compliance with the procedures, guidelines, and requirements of SMCRA.

Executive Order 13211—Regulations That Significantly Affect The Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

This rule does not require an environmental impact statement because 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)). Also, this rule does not require an environmental impact statement since agency decisions on proposed State and Tribal AML reclamation plans and revisions are categorically excluded from compliance with the National Environmental Policy Act (42 U.S.C. 4332) by the Manual of the Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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 certifies 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. 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.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 904

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: April 5, 2002.

Charles E. Sandberg,

Acting 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 904.12 is amended by revising the section heading to read as follows:

§ 904.12

State program provisions and amendments not approved.

* * * * *

3. 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:

§ 904.15

Approval of Arkansas regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
August 13, 2001	May 17, 2002	ASCMRC 845.18(a); Phase II and III Revegtation Success Standards for Grazingland; and Phase III Revegetation Success Standards for Prime Farmland.

4. Section 904.25 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 904.25

Approval of Arkansas abandoned mine land reclamation plan amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
August 13, 2001	May 17, 2002	ASCMRC 874.12(b)(4); 874.13(d); and 874.14(a)(2).