[Federal Register Volume 59, Number 102 (Friday, May 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13014]
[[Page Unknown]]
[Federal Register: May 27, 1994]
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Part IV
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Parts 779, 780, et al.
Surface Coal Mining and Reclamation Operations; Permanent Regulatory
Program; Land Use Information; Final Rule
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 779, 780, 783, and 784
RIN 1029-AB57
Surface Coal Mining and Reclamation Operations; Permanent
Regulatory Program; Land Use Information
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
of the United States Department of the Interior (DOI) is amending its
regulations governing the information that must be submitted in a
permit application concerning premining and postmining land use. The
regulations are being amended for the purpose of eliminating
duplicative and/or unnecessary reporting requirements in order to
simplify and reduce the reporting burden for permit applicants.
EFFECTIVE DATE: June 27, 1994.
FOR FURTHER INFORMATION CONTACT:Archana Kohli, 1951 Constitution
Avenue, suite 640 NC, Washington, DC 20240; Telephone: (202) 343-3871
commercial or FTS.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Comments and Final Rule
III. Procedural Matters
I. Background
On March 13, 1979, OSM promulgated permanent program rules (44 FR
14902) as required by section 501(b) of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act), 30 U.S.C. 1201 et seq. In
these rules, 30 CFR part 779 establishes the minimum permit application
requirements for information on existing environmental resources that
may be impacted by the location and conduct of proposed surface mining
activities. (Part 783 for underground mining) (44 FR 15026, March 13,
1979).
Thirty CFR part 780 establishes the minimum permit application
requirements for surface mining operation and reclamation plans. (Part
784 for underground mining) (44 FR 15047, March 13, 1979).
The information requirements of parts, 779, 780, 783, and 784
accord with the prescriptions of sections 507, 508, 515, and 516 of the
Act in two ways: First, the permit application submitted pursuant to
these parts must contain sufficient information to meet the public
disclosure requirements of the Act. Second, the permit application must
also contain sufficient information for the regulatory authority to be
able to find in writing, on the basis of that information and
information otherwise available, whether the proposed operation should
be permitted.
The level of detail and scope of information required in the permit
application will vary depending on the needs of the regulatory
authority to fulfill its responsibility to make sound approval
decisions based on the findings prescribed under section 510(b) or
SMCRA and 30 CFR 773.15(c). The information required in a permit
application is, in the main, intended to assist the regulatory
authority in determining whether the applicant can comply with the
performance standards for surface and underground mining and whether
reclamation of these areas is feasible.
The information requirements of parts 779, 780, 783, and 784 impose
a significant reporting burden on permit applicants to obtain, analyze,
and present information to both the regulatory authority and the public
when seeking to permit a surface coal mining operation. Under the
Paperwork Reduction Reauthorization Act of 1986, OSM is responsible for
ensuring that its rules do not impose any unnecessary reporting burden
on the permit applicant (44 U.S.C. 3507(a)(1)(B)). In 1987, OSM
established a work group to review its regulatory program and
permitting rules. One purpose of the review was to determine whether
changes to the information requirements of the permitting rules could
be made to reduce the reporting burden on the permit applicant without
compromising the implementation of the purposes and provisions of the
Act.
After reviewing the work group's recommendations regarding rule
changes, OSM identified two changes to its regulations governing
surface and underground mining activities which are the subject of this
rulemaking. While OSM recognizes its obligation under the Paperwork
Reduction Reauthorization Act of 1986 to ensure that public reporting
burden be minimized, the Office also recognizes the need to maintain a
stable regulatory program implementing the Act. On this basis, the
balance of the work group's recommended rule changes were rejected
because OSM felt the insignificant reduction in reporting burden which
they would afford did not justify the potential disruption to the
regulatory program which would be caused by such changes.
On January 8, 1993 (57 FR 3458), OSM proposed a rulemaking based on
two of these recommendations. The public comment period closed on March
9, 1993. For surface mining activities, this final rulemaking
consolidates the land use information requirements of sections 30 CFR
779.22 and 30 CFR 780.23 into final 30 CFR 780.23 and deletes the slope
measurement requirements of 30 CFR 779.25(a)(11). For the counterpart
regulations governing underground mining activities, this rulemaking
consolidates the land use information requirmeents of 30 CFR 783.22 and
30 CFR 784.15 into final 30 CFR 784.15 and deletes the slope
measurement requirements of 30 CFR 783.25 (a)(11).
Because the cited regulations governing underground activities are
identical to counterpart regulations governing surface mining
activities, the discussion of changes or deletions to 30 CFR 779.22,
779.25(a)(11) and 780.23 will also apply to 30 CFR 783.22,
783.25(a)(11) and 784.15.
A. Land Use Information Rules
Section 30 CFR 779.22 identified the premining land use information
required in a permit application.
Section 779.22(a) required that the application contain a statement
of the condition, capability, and productivity of the land within the
proposed permit area. Section 779.22(a)(1) required that the
application contain a map and a narrative that describes the use of the
proposed permit area at the time of filing and the premining land use
if its use was changed within five years before the date of
application. The map was used to compare premining land uses with
proposed postmining land uses. Section 779.22(a)(1) implemented section
508(a)(2)(A) of the Act.
Section 779.22(a)(2) required that the permit application include a
narrative of the capability and productivity of the land to support a
number of uses which can be used in analyzing the land use description
contained in section 779.22(a)(1). Environmental information from
Sec. 779.22(a)(2) together with land use information from
Sec. 779.22(a)(1) provided a foundation for the reclamation plan
required by former section 30 CFR 780.23 (Reclamation plan: Postmining
land uses). Section 779.22(a)(2) and its two subsections, (i) and (ii),
implemented sections 508 (a)(2) (B) and (C) of the Act.
Section 779.22(b) required a description of premining land use
conditions for previously mined areas. These regulations provided that
an application for a previously mined area identify the type of mining
method used, the coal seams or other mineral strata mined, the extent
of coal or minerals removed, the approximate dates of past mining, and
the uses of the land preceding mining. According to the 1979 Preamble,
this information, if available, was intended to be used by the operator
and the regulatory authority to assure that the mining operation will
be conducted in a manner which mitigates the environmental damage
caused by the previous mining activities (44 FR 15041, March 13, 1979).
The 779.22(b)(5) informational requirements as to the uses of land
preceding prior mining implemented sections 508(a)(2)(A) and 515(b)(2)
of the Act. The balance of Sec. 779.22(b) is not specifically required
by the Act.
Section 779.22(c) required that the application describe the
proposed mining area's existing land uses and their classifications
under local law. Information from this section was used by the
regulatory authority to evaluate the proposed postmining land uses and
to assess the compatibility of the proposed land use with the existing
land use policies and plans. The information required by this section
was essentially the same information required by former
Sec. 780.23(a)(4) and (b). Section 779.22(c) implemented Section
508(a)(3) of the Act.
Section 30 CFR 780.23 established the criteria used to approve a
postmining land use analysis and plan. Section 780.23 implemented
Section 508(a) (3) and (4) of the Act.
Section 780.23(a) required that the applicant's reclamation plan
describe the proposed postmining land use. Included must be a
discussion of the utility and capacity of the reclaimed land to support
a variety of alternative uses which must conform to the existing land
use policies and plans. Section 780.23(a) implemented Section 508(a)(3)
of the Act.
Section 780.23(a)(1) required a description of the proposed
postmining land use and the method in which the proposed postmining
land use is attained. Section 780.23(a)(1) implemented section
508(a)(4) of the Act.
Section 780.23(a)(2) required specific management plans when range
and grazing is proposed as a postmining land use. Range or grazing
management plans are not specifically required by the Act.
Section 780.23(a)(3) required information needed to support
approval for an alternative postmining land use when requested under
Sec. 816.133. Section 780.23(a)(3) implemented section 508(a)(3) of the
Act.
Section 780.23(a)(4) required that consideration be given to making
proposed mining activities consistent with the existing surface owner
plans and applicable State and local land use plans and programs.
Section 780.23(a)(4) implemented section 508(a)(3) of the Act.
Section 780.23(b) provided that the reclamation plan include a copy
of the comments of the proposed land use by the legal or equitable
owner of record of the surface of the proposed permit area and the
applicable State and local government agency. Section 780.23(b)
implemented section 508(a)(3) of the Act.
B. Slope Measurement
Section 30 CFR 779.25 (Cross sections, maps, and plans) required
slope measurements against which new mining effects can be compared.
Section 779.25(a)(11) required the applicant to include the existing
slopes of the proposed mine site. The 1979 preamble indicates that
slope can be derived from either a topographic map or from field
calculations (44 FR 15045, March 13, 1979). These slope measurements
were to be used by the regulatory authority to evaluate the applicant's
ability to achieve approximate original contour. There is no specific
requirement in the Act to provide preexisting slope measurements.
II. Discussion of Comments and Final Rule
OSM received letters on the proposed rule from eight commenters
representing industry, State regulatory authorities, Federal and State
agencies, and individual citizens. OSM has reviewed each comment
carefully and has considered the commenters' suggestions and remarks in
writing this final rule.
The final rulemaking simplifies the current regulations by
promulgating a single new rule, 30 CFR 780.23 (Land use information),
to replace the two former land use information rules. Final Sec. 780.23
combines sections from former 780.23 (Reclamation plan: Postmining land
uses) and former 779.22 (Land use information). This rulemaking deletes
former Sec. 779.22 in its entirety. Paragraphs from former Sec. 779.22
needed to implement prescriptions of the Act have been relocated to
final 780.23. The final rule also deletes 30 CFR 779.25(a)(11) (Cross
sections, maps, and plans) in its entirety.
A. Land Use Information
Listed below is an outline of the informational requirements that
are incorporated into final 30 CFR 780.23 (Reclamation plan: Land use
information). This rule is identical to proposed 30 CFR 780.23 except
as indicated below.
1. Final section 780.23(a) requires that the applicant provide a
statement of the condition, capability, and the productivity of the
land within the proposed permit area. Section 780.23(a) is identical to
former Sec. 779.22(a). No comments were received addressing the
redesignation of this section. Section 780.23(a) implements section
508(a)(2) of the Act.
2. Final Sec. 780.23(a)(1) requires a map and supporting narrative
describing the uses of the land at the time of the filing of the
application. The description must also include any changes to the land
use which occurred during the past five years, except in a case where
the application is for lands which were previously mined, in which case
the description must include the use of the land prior to any mining to
the extent such information is available. Final section 780.23(a)(1)
incorporates the provisions of former Sec. 779.22 (a)(1) and (b)(5).
Proposed section 780.23(a)(1) was identical to former Sec. 779.22(a)(1)
except that it would have deleted the five-year limit on the historical
land use description. As proposed, Sec. 780.23(a)(1) would have also
subsumed the reporting requirements of Sec. 779.22(b)(5).
Several commenters felt that the proposed deletion of the five-year
limit on the historical land use description would have added to the
reporting burden on the applicant and that the information collected
would often be unnecessary. One commenter supported the proposed change
and believed that there was sufficient enabling language for the
regulatory agency's requirement of a historical land use description.
OSM has reconsidered the proposal and agrees with the concerns of the
commenters opposing the deletion of the five-year time frame in that it
may add an unnecessary reporting burden on the applicant.
Section 515(b)(2) of the Act requires that the operation restore
the land affected to a condition capable of supporting the uses which
it was capable of supporting prior to any mining and section
508(a)(2)(A) requires the reclamation plan to include a statement on
the condition of the land to be covered by the permit prior to any
mining, including the uses existing at the time of the application and,
if the land has a history of previous mining, the uses which preceded
any mining. Accordingly, final Sec. 780.23(a)(1) will retain the five-
year limit on the historical land use description of former
Sec. 779.22(a)(1) and will include for previously mined areas the land
use reporting provisions of former Sec. 779.22(b)(5) which are required
to implement sections 508(a)(2)(A) and 515(b)(2) of the Act.
3. Final Sec. 780.23(a)(2) requires that the applicant provide a
narrative of the land capability and productivity, which analyzes the
land use description in conjunction with other environmental resource
information. Final Sec. 780.23(a)(2) is identical to former
Sec. 779.22(a)(2). No comments were received addressing this
redesignation. Section 780.23(a)(2)(i) implements section 508(a)(2)(B)
of the Act and Sec. 780.23(a)(2)(ii) implements section 508(a)(2)(C) of
the Act.
4. Final section 780.23(b) requires that the applicant provide a
statement on the utility and capacity of the reclaimed land to support
a variety of alternative uses. Final Sec. 780.23(b) is identical to
former Sec. 780.23(a). No comments were received addressing this
redesignation. Section 780.23(b) implements section 508(a)(3) of the
Act.
5. Final Sec. 780.23(b)(1) requires that the applicant discuss how
the proposed postmining land use will be achieved. Final
Sec. 780.23(b)(1) is identical to former Sec. 780.23(a)(1). No comments
were received addressing this redesignation. Section 780.23(b)(1)
implements sections 508(a)(4) of the Act.
6. Final Sec. 780.23(b)(2) requires that the applicant include a
detailed description of proposed postmining land uses that are
different from the premining land uses. Final Sec. 780.23(b)(2) is
identical to former section 780.23(a)(3). No comments were received
addressing this redesignation. Section 780.23(b)(2) implements sections
508(a)(2)(A) and 508(a)(3) of the Act.
7. Final Sec. 780.23(b)(3) requires that the applicant describe the
consideration which has been given to making all of the proposed
surface mining activities consistent with surface owner plans and
applicable State and local land use plans and programs. These
provisions are identical to those of former Sec. 780.23(a)(4) and the
first sentence of proposed Sec. 780.23(c) and have been redesignated as
Sec. 780.23(b)(3) to enhance the organizational clarity of the final
rule. Section 780.23(b)(3) implements section 508(a)(8) of the Act.
8. Final Sec. 780.23(c) requires that the applicant describe
comments by the legal or equitable owner of record of the surface of
the proposed permit area and the State and local government agencies
which would have to initiate, implement, approve, or authorize the
proposed use of the land following reclamation. Final Sec. 780.23(c) is
identical to former Sec. 780.23(b). Section 780.23(c) implements
section 508(a)(3) of the Act.
One comment was received alleging the impracticality of such a
requirement and the lack of flexibility which it affords the operator
in obtaining comments. However, OSM is retaining this requirement as it
implements specific statutory prescriptions.
B. Deletion of Land Use Information Requirements
Listed below is an outline of the informational requirements that
were deleted from former rules during the formulation of final 30 CFR
780.23 (Reclamation plan: Land use information). This rule is identical
to proposed 30 CFR 780.23 except as indicated below.
1. This rulemaking deletes section 30 CFR 779.22(b). This section
required that if specific information about mining activities at
previously mined areas is available, such information must be included
in the permit application. As will be discussed below, if the
information required under this section is even available, it is either
provided elsewhere by the applicant in his permit application or is
available from former program permitting records and is, therefore,
more accessible to the regulatory authority than to the applicant.
Two commenters agreed with OSM's proposed deletion of
Sec. 779.22(b) in its entirety. They felt that much of the information
required under this provision will already be contained in the
application through other applicable provisions.
a. Former Sec. 779.22(b)(1) required a description of the type of
mining method used at any previously mined area. To the extent that the
applicant is able to submit the required cross sections, maps, and
plans of prior mining operations within and adjacent to the permit area
under existing 30 CFR 779.25(a) (5) and (8), the regulatory authority
can determine from this information the type of mining methods which
were used. OSM agrees with the one comment received regarding the
deletion of 779.22(b)(1) that the information provided by this section
has historically been of minimal benefit.
b. Former Secs. 779.22(b) (2) and (3) required a description of the
coal seams or other mineral strata mined and the extent of coal or
other minerals removed from the previously mined area. This information
can easily be calculated by the regulatory authority from other
information required to be submitted by the applicant under 30 CFR
779.25(a) (3), (4), (8), and 30 CFR 780.11(a). OSM agrees with the one
comment received regarding the deletion of 779.22(b) (2) and (3) that
the information provided by these sections has historically been of
minimal benefit.
c. Former Sec. 779.22(b)(4) required a statement of the approximate
dates of previous mining activities. In its 1979 rules, OSM did not
require the precise dates of these activities because of the
acknowledged difficulty of obtaining such information with any degree
of accuracy (44 FR 15041, March 13, 1979). In practice, information as
to the approximate dates of previous mining activities has proven to be
generally unnecessary. The only time that the approximate dates of
previous mining activities might be necessary is when the applicant
intends to reclaim in accordance with the requirements of 30 CFR
816.106. Under those circumstances, the applicant is required by the
authority, that of 30 CFR 773.15(c) and (c)(12), to affirmatively
include in the permit application information as to the cessation dates
of previous activities. The regulatory authority must then find in
writing that the site of the proposed operation is a ``previously mined
area'' as defined in 30 CFR 701.5. Accordingly, the continuance of
Sec. 779.22(b) serves no useful regulatory purpose.
One commenter opposed this deletion claiming that the information
of 779.22(b)(4) is necessary when judging the success at 30 CFR
816.116(5). As this section is nonexistent, the apparent intended
reference is 30 CFR 816.116(b)(5). OSM rejects this comment as there is
no clear relationship between the approximate date of premining
operations required under 779.22(b)(4) and establishment of the
baseline level of vegetative cover before redisturbance required by
816.115(b)(5). As it is, there is more than sufficient information
required under the other permit application provisions of 30 CFR parts
779 and 780 for the regulatory authority to fulfill its
responsibilities under Sec. 816.116(b)(5).
d. Former Sec. 779.22(b)(5) required a statement of the premining
land use for lands previously affected by mining to the extent such
information is available. Final Sec. 780.23(a)(1) will include this
requirement among its provisions. One commenter supported the proposed
deletion of 779.22(b)(5) on the basis that the scope of information
required by that section served little useful purpose. Another
commenter contended that because the same historical land use
information required by 779.22(b)(5) would also be required by proposed
780.23(a)(1), the stated purpose of the rulemaking of eliminating or
reducing paperwork would not really be accomplished. In partial
response to this comment and as discussed above, OSM decided not to
finalize the expanded reporting requirement of proposed 780.23(a)(1)
but instead retain that section's existing, less burdensome
requirements. This necessitated the inclusion of former
Sec. 779.22(b)(5) in final Sec. 780.23(a)(1) in order to ensure that
Secs. 515(b)(2) and 508(a)(2)(A) of the Act are implemented and that
the land use of previously mined land is described. This description
helps to ensure the restoration of the land affected by mining will be
to the same or higher or better land use than existed prior to any
mining as required by the Act. The permit applicant's historical land
use reporting burden continues to be reduced as the consolidation of
requirements into final Sec. 780.23(a)(1) eliminates duplicative
reporting requirements.
2. This rulemaking deletes 30 CFR 779.22(c) which required a
description of the existing land uses and land use classifications
under local law of the proposed permit area and adjacent areas. While
OSM considers the information required by this provision to be
important land use information, it is essentially the same information
required by former Secs. 780.23 (a)(4) and (b) redesignated in the
final rule as Secs. 780.23 (b)(3) and (c). These redesignated sections
provide that the application indicate the consideration given to making
the surface mining activities consistent with applicable State and
local land use plans and programs as well as comments on the proposed
use by applicable State and local agencies.
One commenter opposed this deletion alleging that proposed
780.23(c) does not specifically require the same information as was
provided to the regulatory authority by former 779.22(c) deleted in
this rulemaking. The commenter characterized Sec. 779.22(c) as serving
to eliminate any doubt as to the regulatory agency's authority for
requiring a description and classification of the land uses under local
law. In deleting former Sec. 779.22(c), OSM does not intend to infer
that final 780.23(c) does not continue to convey sufficient general
authority for the regulatory authority to require all the information
previously and specifically required by the deleted section.
3. This rulemaking also deletes former 30 CFR 780.23(a)(2) which
required the submission of a detailed management plan where range or
grazing was the proposed postmining land use. In 1979, OSM rejected
comments to delete this section. At that time, OSM stated its belief
that a detailed management plan was necessary to determine the
feasibility of a proposed range/grazing postmining land use. (44 FR
15058, March 13, 1979). Since then, OSM has reconsidered the utility of
requiring such detailed plans. In concert with this rulemaking, OSM
consulted the Bureau of Land Management regarding its current views on
the need for a detailed management plan to be included in the permit
application for a surface coal mining and reclamation operation. The
Bureau indicated that the proposed deletion of the requirement for
submitting such plans would not affect its program which also required
detailed management plans. OSM understands that for legitimate economic
and/or ecological reasons the actual management plan implemented for a
reclaimed area may often vary greatly from the detailed plan originally
submitted under Sec. 780.23(a)(2). The uncertain benefit which may be
derived from the submission of these plans is not felt to justify the
burden of their preparation.
One commenter supported the deletion of Sec. 780.23(a)(2) stating
that a detailed management plan was unnecessary. Two other commenters
disagreed with the deletion but suggested a change in the regulatory
language of Sec. 780.23(a)(2) to require a ``general'' instead of a
``detailed'' management plan. OSM does not accept that suggestion.
Former Sec. 780.23(a)(1) which required an explanation of how the
postmining land use is to be achieved has been redesignated as final
section 780.23(b)(1) and should allow for the level of reporting detail
necessary for the regulatory authority to determine the feasibility of
any proposed range land/grazing land use.
B. Vegetation Information
The Proposed Rules discussed the deletion of 30 CFR 779.19
(Vegetation information). This section authorizes a regulatory
authority to require a map and a description of the plant communities
within the proposed permit area and within any proposed reference area.
OSM originally envisioned that this detailed information could be
helpful in completing the vegetative land use analysis required by
Sec. 779.22 (land use information). (44 FR 15037, March 13, 1979). In
revisiting this issue in its proposed rule, OSM justified the deletion
of Sec. 779.19 on the grounds that it was felt to be redundant and that
other specified permit application provisions provide the regulatory
authority with sufficient authority to require the level of detailed
information necessary to complete Sec. 779.22(a)'s vegetative land use
information requirements.
Numerous comments were received strongly opposing this deletion.
The commenters stressed that the information of Secs. 779.19 and 779.22
was ``complementary and not duplicative.'' The commenters expressed
their view that section 779.19 serves an essential and wider purpose
than merely helping to complete Sec. 779.22(a)'s land use information
requirements. These commenters further questioned whether the other
permit application provisions cited by OSM in its proposed rule
actually provide the regulatory authority with sufficient authority to
require the detailed information relative to species diversity and
ground cover which is needed to properly evaluate an operator's ability
to revegetate the disturbed area. In light of the comments opposing the
proposed deletion of Sec. 779.19, OSM has determined to retain that
section unaffected by this rulemaking.
C. Premining Slope Measurement
This rulemaking deletes section 30 CFR 779.25(a)(11) (Cross
sections, maps, and plans) requiring slope measurements. OSM recognizes
that premining slope measurements are needed to ensure that restored
contours meet approximate original contour (AOC) conditions. The former
rule was, however, redundant as it provided no additional information
beyond that already available to the regulatory authority under 30 CFR
777.14(a) and OSM's technical information processing system (TIPS). In
the 1979 preamble to Sec. 779.25, OSM acknowledged that the required
slope measurements could be derived from existing topographic maps or
from measurements taken in the field (44 FR 15045, March 13, 1979).
Since that time, OSM has found that most permit applicants derive the
required measurements from a topographic map rather than from field
measurements. Section 777.14(a) requires a permit applicant to submit a
topographic map of the permit area which includes U.S. Geological
Survey topographic features. Therefore, it makes no difference whether
the applicant measures the slope from a topographic map, in fulfillment
of the requirements under Sec. 779.25(a)(11), or the regulatory
authority measures the slope from the same or similar topographic map
submitted under Sec. 777.14(a) so long as the regulatory authority has
adequate information on the slope of the proposed permit area to assure
that approximate original contour will be achieved. Subsequent to the
1979 promulgation and issuance of Sec. 779.25(a)(11), OSM has also made
available to regulatory authorities the TIPS software and data analysis
capabilities which allows both premining slopes and cross sections to
be computed.
Several commenters agreed with the proposal to delete
Sec. 779.25(a)(11) as they felt that the information is already
available to the regulatory authority independent of any submission by
the applicant. One commenter opposed the proposal on the basis that it
is the operator's responsibility to supply the baseline slope
measurement data. However, as discussed above, the operator is already
required by Sec. 777.14(a) to supply the appropriate topographic maps
of the permit area which represent the baseline information for slope
measurement calculations. All regulatory authorities also have access
to TIPS systems and have the capability to calculate premining slopes
and cross sections from the topographic maps provided. This same
commenter alleged that the operator may not be able to demonstrate AOC
if the regulatory authority is the only party with the slope data. OSM
does not agree. Irrespective of the deletion of Sec. 779.25(a)(11), the
permit applicant must demonstrate in the plan, under the requirement of
Sec. 816.102, the ability to meet the performance standards for AOC.
Thus, the deletion of this section does not relieve the applicant of
the responsibility to demonstrate how AOC is achieved in the
reclamation plan.
IV. Procedural Matters
Federal Paperwork Reduction Act
The collections of information contained in this rule have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance numbers 1029-0035 and 1029-0038.
Executive Order 12866
This rule has been reviewed under Executive Order 12866.
Regulatory Flexibility Act
The Department of Interior has determined, pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that the final rule
will not have a significant economic impact on a substantial number of
small entities. The final rule consolidates requirements for premining
and postmining land use and thereby eliminates redundancies in the
regulations with a resulting reduction in the reporting burden on the
public. This should result in a cost savings to the public.
National Environmental Policy Act
OSM has prepared an environmental assessment (EA), and has made a
finding that this rule will not significantly affect the quality of the
human environment under section 102(2)(C) of the National Environmental
Policy Act of 1969, 42 U.S.C. 4332(2)(C). The EA and finding of no
significant impact are on file in the OSM Administrative Record, room
660, 800 North Capitol Street NW., Washington, DC.
Executive Order 12778 on Civil Justice Reform
This rule has been reviewed under the applicable standards of
section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56 FR
55195). In general, the requirements of section 2(b)(2) of Executive
Order 12778 are covered by the preamble discussion of this rule.
Additional remarks follow concerning individual elements of the
Executive Order:
A. What is the preemptive effect, if any, to be given to the
regulation?
To the extent that the rule would relieve, rather than impose,
regulatory requirements, the rule would have no preemptive effect.
B. What is the effect on existing Federal law or regulation, if
any, including all provisions repealed or modified?
This rule modifies the implementation of SMCRA as described herein,
and is not intended to modify the implementation of any other Federal
statute. The preceding discussion of this rule specifies the Federal
regulatory provisions that are affected by this rule.
C. Does the rule provide a clear and certain legal standard for
affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of SMCRA.
D. What is the retroactive effect, if any, to be given to the
regulation?
This rule is not intended to have retroactive effect.
E. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings are required before parties may file
suit in court challenging the provisions of this rule under section
526(a) of SMCRA, 30 U.S.C. 1276(a).
Prior to any judicial challenge to the application of the rule,
however, administrative procedures must be exhausted. In situations
involving OSM application of the rule, applicable administrative
procedures may be found at 43 CFR part 4. In situations involving State
regulatory authority application of provisions equivalent to those
contained in this rule, applicable administrative procedures are set
forth in the particular State program.
F. Does the rule define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items?
Terms which are important to the understanding of this rule are set
forth in 30 CFR 700.5 and 701.5.
G. Does the rule address other important issues affecting clarity
and general draftsmanship of regulations set forth by the Attorney
General, with the concurrence of the Director of the Office of
Management and Budget, that are determined to be in accordance with the
purposes of the Executive Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
Author
The principal author of this rule is Ms. Archana Kohli, Civil
Engineer, Division of Technical Services, Office of Surface Mining,
1951 Constitution Avenue, suite 640 NC, Washington, DC 20240. Ms.
Kohli's telephone number is (202) 343-3871 commercial or FTS.
List of Subjects
30 CFR Part 779
Environmental protection, Reporting and recordkeeping requirements,
Surface mining.
30 CFR Part 780
Reporting and recordkeeping requirements, Surface mining.
30 CFR Part 783
Environmental protection, Reporting and recordkeeping requirements,
Underground mining.
30 CFR Part 784
Reporting and Recordkeeping requirements, Underground mining.
Dated: May 4, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
Accordingly, 30 CFR Parts 779, 780, 783, and 784 are amended as set
forth below.
PART 779--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENTS
FOR INFORMATION ON ENVIRONMENTAL RESOURCES
1. The authority citation for part 779 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.; sec. 115 of Pub. L. 98-146,
(30 U.S.C. 1257), and 16 U.S.C. 470 et seq.
Sec. 779.22 [Removed]
2. Section 779.22 is removed.
Sec. 779.25 [Amended]
3. In section 779.25, paragraph (a)(11) is removed.
PART 780--SURFACE MINING PERMIT APPLICATIONS--MINIMUM REQUIREMENT
FOR RECLAMATION AND OPERATION PLAN
4. The authority citation for part 780 continues to read as
follows:
Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., as amended;
sec. 115 of Pub. L. 98-146, 30 U.S.C. 1257; 16 U.S.C. 470 et seq.;
and Pub. L. 100-34.
5. Section 780.23 is revised to read as follows:
Sec. 780.23 Reclamation plan: Land use information.
(a) The plan shall contain a statement of the condition,
capability, and productivity of the land within the proposed permit
area, including:
(1) A map and supporting narrative of the uses of the land existing
at the time of the filing of the application. If the premining use of
the land was changed within 5 years before the anticipated date of
beginning the proposed operations, the historic use of the land shall
also be described. In the case of previously mined land, the use of the
land prior to any mining shall also be described to the extent such
information is available.
(2) A narrative of land capability and productivity, which analyzes
the land-use description under paragraph (a) of this section in
conjunction with other environmental resources information. The
narrative shall provide analyses of:
(i) The capability of the land before any mining to support a
variety of uses, giving consideration to soil and foundation
characteristics, topography, vegetative cover, and the hydrology of the
proposed permit area; and
(ii) The productivity of the proposed permit area before mining,
expressed as average yield of food, fiber, forage, or wood products
from such lands obtained under high levels of management. The
productivity shall be determined by yield data or estimates for similar
sites based on current data from the U.S. Department of Agriculture,
State agricultural universities, or appropriate State natural resource
or agricultural agencies.
(b) Each plan shall contain a detailed description of the proposed
use, following reclamation, of the land within the proposed permit
area, including a discussion of the utility and capacity of the
reclaimed land to support a variety of alternative uses, and the
relationship of the proposed use of existing land use policies and
plans. This description shall explain:
(1) How the proposed post mining land use is to be achieved and the
necessary support activities which may be needed to achieve the
proposed land use; and
(2) Where a land use different from the premining land use is
proposed, all materials needed for approval of the alternative use
under 30 CFR 816.133.
(3) The consideration which has been given to making all of the
proposed surface mining activities consistent with surface owner plans
and applicable State and local land use plans and programs.
(c) The description shall be accompanied by a copy of the comments
concerning the proposed use by the legal or equitable owner of record
of the surface of the proposed permit area and the State and local
government agencies which would have to initiate, implement, approve,
or authorize the proposed use of the land following reclamation.
PART 783--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM
REQUIREMENTS FOR INFORMATION ON ENVIRONMENTAL RESOURCES
6. The authority citation for part 783 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.; sec. 115 of Pub. L. 98-146,
(30 U.S.C. 1257), and 16 U.S.C. 470 et seq.
Sec. 783.22 [Removed]
7. Section 783.22 is removed.
Sec. 783.25 [Amended]
8. In section 783.25, paragraph (a)(11) is removed.
PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN
9. The authority citation for part 784 continues to read as
follows:
Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., as amended;
sec. 115 of Pub. L. 98-146, 30 U.S.C. 1257; 16 U.S.C. 470 et seq.;
and Pub. L. 100-34.
10. Section 784.15 is revised to read as follows:
Sec. 784.15 Reclamation plan: Land use Information.
(a) The plan shall contain a statement of the condition,
capability, and productivity of the land within the proposed permit
area, including:
(1) A map and supporting narrative of the uses of the land existing
at the time of the filing of the application. If the premining use of
the land was changed within 5 years before the anticipated date of
beginning the proposed operations, the historic use of the land shall
also be described. In the case of previously mined land, the use of the
land prior to any mining shall also be described to the extent such
information is available.
(2) A narrative of land capability and productivity, which analyzes
the land-use description under paragraph (a) of this section in
conjunction with other environmental resources information. The
narrative shall provide analyses of:
(i) The capability of the land before any mining to support a
variety of uses, giving consideration to soil and foundation
characteristics, topography, vegetative cover, and the hydrology of the
proposed permit area; and
(ii) The productivity of the proposed permit area before mining,
expressed as average yield of food, fiber, forage, or wood products
from such lands obtained under high levels of management. The
productivity shall be determined by yield data or estimates for similar
sites based on current data from the U.S. Department of Agriculture,
State agricultural universities, or appropriate State natural resource
or agricultural agencies.
(b) Each plan shall contain a detailed description of the proposed
use, following reclamation, of the land within the proposed permit area
including a discussion of the utility and capacity of the reclaimed
land to support a variety of alternative uses, and the relationship of
the proposed use to existing land use policies and plans. This
description shall explain:
(1) How the proposed postmining land use is to be achieved and the
necessary support activities which may be needed to achieve the
proposed land use; and
(2) Where a land use different from the premining land use is
proposed, all materials needed for approval of the alternative use
under 30 CFR 817.133.
(3) The consideration which has been given to making all of the
proposed surface mining activities consistent with surface owner plans
and applicable State and local land use plans and programs.
(c) The description shall be accompanied by a copy of the comments
concerning the proposed use by the legal or equitable owner of record
of the surface of the proposed permit area and the State and local
government agencies which would have to initiate, implement, approve,
or authorize the proposed use of the land following reclamation.
[FR Doc. 94-13014 Filed 5-26-94; 8:45 am]
BILLING CODE 4310-05-M
