00-15835. Alabama Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is approving an amendment to the Alabama regulatory program (Alabama program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Alabama proposed revisions to and additions of regulations concerning removal of coal incidental to government-financed construction and the suitability of topsoil substitutes or supplements. Alabama also corrected citation references. Alabama intends to revise its program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE:

June 22, 2000.

FOR FURTHER INFORMATION CONTACT:

Arthur W. Abbs, Director, Birmingham Field Office, Office of Surface Mining, 135 Gemini Circle, Suite 215, Homewood, Alabama 35209. Telephone: [phone]. Internet: [e-mail].

SUPPLEMENTARY INFORMATION:

 

I. Background on the Alabama Program

II. Submission of the Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Alabama Program

On May 20, 1982, the Secretary of the Interior conditionally approved the Alabama program. You can find background information on the Alabama program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the May 20, 1982, Federal Register (47 FR 22062). You can find later actions on the Alabama program at 30 CFR 901.15 and 901.16.

II. Submission of the Amendment

By letter dated April 11, 2000 (Administrative Record No. AL-0631), Alabama sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Alabama sent the amendment in response to our letters dated January 13, 1998, and October 15, 1998 (Administrative Record Nos. AL-0577 and AL-0587 respectively), that we sent to Alabama under 30 CFR 732.17(c). The amendment also includes changes made at Alabama's own initiative. Alabama proposes to amend the Alabama Surface Mining Commission (ASMC) rules.

We announced receipt of the amendment in the April 26, 2000, Federal Register (65 FR 24433). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment. The public comment period closed on May 26, 2000. Because no one requested a public hearing or meeting, we did not hold one.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the amendment to the Alabama program.

A. 880-X-2A-.06, Definitions

1. Alabama revised the definition of “government-finance construction” to read as follows:

Government-finance construction means construction funded 50 percent or more by funds appropriated from a government financing agency's budget or obtained from general revenue bonds. Funding at less than 50 percent may qualify if the construction is undertaken as an approved reclamation project under Title IV of the Federal Surface Mining Control and Reclamation Act, 30 U.S.C. 1201 et seq., as amended. Construction funded through government financing agency guarantees, insurance, loans, funds obtained through industrial revenue bonds or their equivalent, or in-kind payments does not qualify as government-financed construction.

The revised definition is substantively the same as the Federal definition of “government-financed construction” found at 30 CFR 707.5. Therefore, we find that Alabama's definition is no less effective than the Federal definition, and we are approving it.

2. In our letter dated October 15, 1998, we notified Alabama that its definitions of “material damage” and “occupied residential dwelling and structures related thereto” contained citation reference errors. Alabama corrected the definitions by removing a reference to 880-X-8I-.20 and adding a reference to 880-X-8I-.10. We find that the revised citation references are consistent with the citation references in the counterpart Federal definitions, and we are approving the revisions.

B. 880-X-2D-.04, Applicability

Alabama added language to Rule 880-X-2D-.04(1) to provide that with the exception of the requirements of Rule 880-X-2D-.06, if applicable, coal extraction which is incidental to government-financed construction is exempt from the Alabama Surface Mining Control and Reclamation Act and its implementing regulations.

As discussed below in finding C, Alabama's proposed exception to the exemption under Subchapter 880-X-2D would be applicable for coal removal incidental to government-financed construction where funding for the project is less than 50 percent and the construction is undertaken as an approved project under Title IV of SMCRA. Specifically, Rule 880-X-2D-.06 provides additional requirements for such coal removal when it is undertaken as part of a project under Alabama's approved Abandoned Mine Land Reclamation Program. Although the Federal regulations at 30 CFR Part 707 do not contain this exception language, the Federal regulations at 30 CFR Part 874 were revised to provide additional requirements for coal removal incident to AML projects receiving less than 50 percent government funding. Therefore, we find that the addition of the new exception language will not make Rule 880-X-2D-.04(1) less effective than the counterpart Federal regulation at 30 CFR 707.11(a).

C. 880-X-2D-.06, Additional Requirements for Coal Removal Incidental to Abandoned Mine Land Projects

Alabama proposes to add this new rule to provide additional requirements that apply to coal removal incidental to AML reclamation projects. The requirements of this rule apply to coal removal incidental to government-financed construction where funding for the project is less than 50 percent and the construction is undertaken as an approved reclamation project under Title IV of SMCRA. Paragraph (1) requires the AML contractor and any subcontractor involved in the removal of coal from, or processing of coal on, the project site to obtain or possess a valid license under Chapter 880-X-6 of Alabama's regulations. Paragraph (2) requires the AML contractor to identify the prospective purchasers or end users of all coal that he or she will extract under the project before the ASMC can grant concurrence under the Federal regulations at 30 CFR 874.17. Paragraph (3) requires the AML contractor to maintain records of the exact tonnage of coal removed, as well as the names and addresses of all purchasers or end users of the coal at the project site. The AML contractor must make these records available to the ASMC upon request. Paragraph (4) provides that this exemption applies only to coal located within the boundaries of the approved construction project. In addition, removal of the coal must be necessary to achieve the objectives of the AML reclamation project. Paragraph (5) provides that both the Alabama Department of Industrial Relations and the ASMC must approve the project in accordance with the provisions of the Federal regulations at 30 CFR 874.17 before the AML contractor can remove coal under Subchapter 880-X-2D. Finally, paragraph (6) provides that all coal removal under this exemption must be under the direct supervision of the AML contractor. The AML contractor is liable for any violations of these regulations.

This new rule establishes the conditions under which ASMC, as the Title V regulatory authority, will approve an exemption for the removal of coal incidental to performance of a government-financed construction project where government funding for the project is less than 50 percent and the construction in undertaken as an approved AML reclamation project under Alabama's approved Abandoned Mine Land Reclamation Program. There are no counterparts in the Federal regulations at 30 CFR Part 707 for the additional requirements proposed at Rule 880-X-2D-.06. However, the requirements are not inconsistent with the provisions in 30 CFR Part 707. Also, Alabama's proposed regulation at paragraph (5) ensures the ASMC and the Alabama AML agency's actions are consistent with the Federal regulations at 30 CFR 874.17, which provide AML agency procedures for coal removal incident to reclamation projects receiving less than 50 percent government funding. The Federal regulation at 30 CFR 874.17(a) requires the AML agency to make specific determinations in consultation with the Title V regulatory authority. The Federal regulation at 30 CFR 874.17(b) requires the AML agency to concur with the Title V regulatory authority in specific determinations before proceeding with an AML reclamation project that involves coal removal incident to government-financed construction with less than 50 percent government financing. These consultations and concurrences are intended to ensure the appropriateness of the project being undertaken as a Title IV AML project and not under the Title V regulatory program. Therefore, we are approving Alabama's new regulation at Rule 880-X-2D-.06.

D. 880-X-8I-.08(2)(d), Reclamation Plan: General Requirements; Topsoil

In response to our letter dated January 13, 1998, Alabama added two additional sentences to Rule 880-X-8I-.08(2)(d). The revised regulation reads as follows:

A plan for removal, storage, and redistribution of topsoil, subsoil and other material to meet the requirements of Rules 880-X-10D-.07—880-X-10D-.11. A demonstration of the suitability of topsoil substitutes or supplements shall be based upon analysis of the thickness of soil horizons, total depth, texture, percent coarse fragments, pH, and areal extent of the different kinds of soils. The regulatory authority may require other chemical and physical analyses, field-site trials, or greenhouse tests if determined to be necessary or desirable to demonstrate the suitability of the topsoil substitutes or supplements.

Alabama's revised regulation at Rule 880-X-8I-.08(2)(d) is substantively the same as the counterpart Federal regulation at 30 CFR 784.13(b)(4), and we are approving it.

E. 880-X-8I-.10, Subsidence Control Plan

In our letter dated October 15, 1998, we notified Alabama that its regulation at 880-X-8I-.10(2)(h) contained a citation reference error. Alabama corrected its regulation by removing a reference to 880-X-10D-.12(10) and adding a reference to 880-X-10D-12(9). We find that the revised citation reference is consistent with the citation reference in the counterpart Federal regulation, and we are approving the revision.

IV. Summary and Disposition of Comments

Federal Agency Comments

On April 14, 2000, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Alabama program (Administrative Record No. AL-0633). By letter dated May 2, 2000 (Administrative Record No. AL-0638), the Mine Safety and Health Administration responded that it had no comments on the proposal.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of 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 Alabama proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA for its concurrence.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. AL-0633). 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), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On April 14, 2000, we requested comments on Alabama's amendment (Administrative Record No. AL-0633). By letter dated May 17, 2000 (Administrative Record No. AL-0639), the Alabama Historical Commission (AHC) provided the following comments for our consideration:

1. The AHC commented that Alabama's regulation at 880-X-2D-.04(1) appears to state that coal extraction is exempt from these regulations and asked us to clarify Alabama's provision. The AHC thought that this statement appeared to be contrary to Section 106 of the National Historic Preservation Act of 1966.

Response: The exemption for extraction of coal which is incidental to Federal, State, or local government-financed highway or other construction is authorized by section 528(2) of SMCRA. Alabama's existing regulations at Subchapter 880-X-2D exempt the extraction of coal which is incidental to Federal, State, or local government-financed highway or other construction from the State Act and Alabama's regulations when that construction meets specified criteria. Alabama's current regulations limit the exemption to those construction projects that are funded 50 percent or more by a government agency. As discussed in finding A.1, the proposed revision extends the exemption to government funding at less than 50 percent if the construction is undertaken as an approved reclamation project under Title IV of SMCRA. As discussed in finding B, Alabama revised its applicability regulation at 880-X-2D-.04(1) to specify additional criteria that would apply to coal extraction under the new exemption. Alabama's proposed regulations at Subchapter 880-X-2D are no less effective than the Federal regulations at 30 CFR Part 707.

Compliance with Section 106 is not jeopardized by the proposed revision because it requires that, for coal extraction with less than 50 percent government funding to be exempt from the State Act and regulations, it must be included as an integral part of an approved abandoned mine land reclamation project that is administered by the State Abandoned Mine Land (AML) Reclamation Program. State AML Programs are required to comply with the requirements of Section 106 for all reclamation projects. The Alabama Historical Commission will be consulted prior to any coal extraction activities authorized under Alabama's proposed revision because such consultation is required by the Office of Surface Mining as part of the National Environmental Policy Act (NEPA) review of all AML reclamation projects.

2. AHC commented that historical and archaeological should be added to the definition of a “person having an interest which is or may be adversely affected * * * . ”

Response: Alabama is not proposing to revise this previously approved definition. Also, Alabama's definition is substantively identical to the Federal definition at 30 CFR 700.5. However, a copy of your comments will be forwarded to Alabama for consideration in a future rulemaking.

3. The AHC provided the following additional comments:

Cultural resource consultation should be required when activities will affect previously undisturbed areas. This should include any undisturbed areas impacted during reclamation projects.

The Alabama Historical Commission should be consulted if human remains or historic cemeteries are known or expected to be in the area of effect, in accordance with the Alabama Burial Act.

Response: Alabama is not proposing any revisions to its regulations concerning the consideration that must be given to historic properties, cultural resources, or cemeteries. Also, Alabama's currently approved regulations require coordination with requirements under other laws, including the National Historic Preservation Act of 1966. However, a copy of your comments will be forwarded to Alabama for consideration in a future rulemaking.

Public Comments

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

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us by Alabama on April 11, 2000. We approve the rules that Alabama proposed with the provision that they be published in identical form to the rules sent to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 901, which codify decisions concerning the Alabama program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage Alabama to bring its program into conformity with the Federal standards. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

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 12630—Takings

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

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, to the extent allowed by law, this rule meets the applicable standards of subsections (a) and (b) of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments since each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR Parts 730, 731, and 732 have been met.

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

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.

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 a cost of $100 million or more in any given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 901

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: June 6, 2000.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 901 is amended as set forth below:

PART 901—ALABAMA

1. The authority citation for Part 901 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 901.15 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 901.15

Approval of Alabama regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
April 11, 2000	June 22, 2000	880-X-2A-.06; 880-X-2D-.04(1) and .06; 880-X-8I-.08(2)(d); 880-X-8I-.10(2)(h).