[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48835-48843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23677]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 902
[AK-004-FOR; Alaska Amendment IV]
Alaska Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving, with certain exceptions and additional requirements, a
proposed amendment to the Alaska regulatory program (hereinafter
referred to as the ``Alaska program'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA). Alaska proposed revisions to and
additions of rules pertaining to fees for services, general permitting
requirements, general permit application information requirements,
environmental resource information requirements, reclamation and
operation plan requirements, processing of permit applications,
permitting for special categories of mining, exploration, the small
operator assistance program, bonding, performance standards, inspection
and enforcement, and general provisions. The amendment revised the
Alaska program to be consistent with the corresponding Federal
regulations, to clarify ambiguities, and to improve operational
efficiency.
EFFECTIVE DATE: September 17, 1996.
FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: (303) 672-
5524.
SUPPLEMENTARY INFORMATION:
I. Background on the Alaska Program
On March 23, 1983, the Secretary of the Interior conditionally
approved the Alaska program. General background information on the
Alaska program, including the Secretary's findings, the disposition of
comments, and conditions of approval of the Alaska program can be found
in the March 23, 1983, Federal Register (48 FR 12274). Subsequent
actions concerning Alaska's program and program amendments can be found
at 30 CFR 902.15 and 902.16.
II. Proposed Amendment
By letter dated January 26, 1995, and FAX transmittals dated
February 13 and 14, 1995, Alaska submitted a proposed amendment
(Amendment IV, administrative record No. AK-E-01) to its program
pursuant to SMCRA (30 U.S.C. 1201 et seq.). Alaska submitted the
proposed amendment at its own initiative and in response to (1) letters
dated November 1, 1989, and February 7, 1990 (administrative record
Nos. AK-60-05 and AK-60-06), that OSM sent to Alaska in accordance with
30 CFR 732.17(c), and (2) required program amendments at 30 CFR Part
902.16(a)(1), (2), (3), (6) through (14), and (16).
The provisions of the Alaska Administrative Code (AAC) that Alaska
proposed to revise, repeal, and add were: 11 AAC 05.010(a)(9)(D), fees
for incidental boundary revisions; 11 AAC 90.002, responsibilities; 11
AAC 90.003, continued operation under interim permits; 11 AAC 90.011,
permit fees; 11 AAC 90.023, identification of interests and compliance
information; 11 AAC 90.025, authority to enter and ownership
information; 11 AAC 90.045(a), geology description; 11 AAC 90.049(2),
surface water information; 11 AAC 90.083(b), reclamation plan general
requirements; 11 AAC 90.097, transportation facilities; 11 AAC 90.099,
return of coal mine waste to abandoned underground workings; 11 AAC
90.117, administrative processing of permit applications; 11 AAC
90.125, Commissioner's [of Natural Resources] findings; 11 AAC 90.126,
improvidently issued permits; 11 AAC 90.127, permit conditions; 11 AAC
90.129, permit revisions and renewals; 11 AAC 90.149(d), operations
near alluvial valley floors; 11 AAC 90.163, exploration that
substantially disturbs the natural land surface or occurs in areas
designated unsuitable for mining; 11 AAC 90.173(b), eligibility for
small operator assistance; 11 AAC 90.207(f), self-bonding provisions;
11 AAC 90.321(d), hydrologic balance; 11 AAC 90.323(a), water quality
standards; 11 AAC 90.325(a), diversions and conveyance of flows; 11 AAC
90.327 (b) and (c), stream channel diversions; 11 AAC 90.336(b),
impoundment design and construction; 111 AAC 90.337(f), impoundment
inspection; 11 AAC 90.341(b), underground mine entry and access
discharges; 11 AAC 90.345(e), surface and ground water monitoring; 11
AAC 90.375(f), public notice of blasting; 11 AAC 90.391, disposal of
excess spoil or coal mine waste; 11 AAC 90.401(e), coal mine waste,
refuse piles; 11 AAC 90.407(e), coal mine waste, dams and embankments;
11 AAC 90.409, return of coal mine waste to underground workings; 11
AAC 90.423(b), protection of fish and wildlife; 11 AAC 90.443 (d) and
(k), backfilling and grading; 11 AAC 90.457 (c) and (d), standards for
revegetation success; 11 AAC 90.491, construction and maintenance of
roads, transportation and support facilities, and utility
installations; 11 AAC 90.601, inspections; 11 AAC 90.613, cessation
orders; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for coal
extraction incidental to the extraction of other minerals; 11 AAC
90.907, public participation; and 11 AAC 90.911, definitions.
Additionally, Alaska proposed several minor editorial revisions.
OSM announced receipt of the proposed amendment in the February 27,
1995, Federal Register (60 FR 10520), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. AK-E-05).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on March 29, 1995.
During its review of the amendment, OSM identified concerns
relating to the provisions of the Alaska Administrative Code at 11 AAC
05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.023, identification
of interests and compliance information; 11 AAC 90.117, administrative
processing of permit applications; 11 AAC 90.125, Commissioner's
findings; 11 AAC 90.126, improvidently issued permits; 11 AAC 90.129,
permit revisions and renewals; 11 AAC 90.149(d), operations near
alluvial valley floors; 11 AAC 90.173, eligibility for small operator
assistance; 11 AAC 90.207(f), self-bonding provisions; 11 AAC 90.327,
stream channel diversions; 11 AAC 90.336, impoundment design and
construction; 11 AAC 90.391, disposal of excess spoil or coal mine
waste; 11 AAC 90.409, return of materials to underground workings; 11
AAC 90.423, protection of fish and wildlife; 11 AAC 90.443, backfilling
and grading; 11 AAC 90.457, revegetation success standards; 11 AAC
90.491, construction and maintenance of roads, transportation and
support facilities, and utility installations; 11 AAC 90.601,
inspections; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for
coal extraction incidental to the extraction of other minerals; 11 AAC
90.907, public participation; and 11 AAC 90.911, definitions. OSM
notified Alaska of the concerns by letter
[[Page 48836]]
dated July 19, 1995 (administrative record No. AK-E-12).
Alaska responded in letters dated October 11 and 24, 1995, and by a
FAX transmittal dated October 23, 1995, by submitting a revised
amendment and additional explanatory information and withdrawing
certain provisions (administrative record No. AK-E-14). Alaska proposed
revisions to and additional explanatory information for: 11 AAC
05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.045(a), geology
description; 11 AAC 90.099, return of coal mine waste and excess spoil
to abandoned underground workings; 11 AAC 90.149(d), operations near
alluvial valley floors; 11 AAC 90.163, exploration that occurs in an
area designated unsuitable for surface coal mining; 11 AAC 90.207,
self-bonding provisions; 11 AAC 90.327, stream channel diversions; 11
AAC 90.391, disposal of excess spoil or coal mine waste; 11 AAC 90.409,
coal mine waste, return to underground workings; 11 AAC 90.423,
protection of fish and wildlife; 11 AAC 90.443, backfilling and
grading; 11 AAC 90491, construction and maintenance of roads,
transportation and support facilities, and utility installations; 11
AAC 90.901, applicability; and 11 AAC 90907, public participation.
In addition, Alaska withdrew proposed revisions and additions at:
11 AAC 90.023, identification of interests and compliance information;
11 AAC 90.117, administrative processing of permit applications; 11 AAC
90.125, Commissioner's findings; 11 ACC 90.126, improvidently issued
permits; 11 AAC 90.127, permit conditions; 11 AAC 90.129, permit
revisions and renewals; 11 AAC 90.336, impoundment design and
construction; 11 AAC 90.457, revegetation success standards; 11 AAC
90.601, inspections; 11 AAC 90.613, cessation order; 11 AAC 90.902,
exemption for coal extraction incidental to the extraction of other
minerals; and 11 AAC 90.911, definitions.
Based upon the revisions to and additional explanatory information
for the proposed amendment submitted by Alaska and the withdrawal of
certain proposed provisions, OSM reopened the public comment period in
the November 9, 1995, Federal Register (60 FR 56547; administrative
record No. AK-E-21). The public comment period ended on November 24,
1995.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with certain exceptions and additional
requirements, that the proposed program amendment submitted by Alaska
on January 26 and February 13 and 14, 1995, and as revised by it and
supplemented with additional explanatory information on October 11, 23,
and 24, 1995, is no less effective than the corresponding Federal
regulations. Accordingly, the Director approves the proposed amendment.
1. Nonsubstantive Revisions to Alaska's Rules
Alaska proposed revisions to the following previously-approved
rules that are non substantive in nature and consist of minor
editorial, punctuation, grammatical, and recodification changes
(corresponding Federal regulation provisions are listed in
parentheses):
11 AAC 90.025(b) and (c) (30 CFR 778.15(a) and (b)), right of entry
information,
11 AAC 90.049(2) and (2)(E) through (H) (30 CFR 780.21(b)(2) and
784.14(b)(2)), surface water information,
11 AAC 90.083(b)(10) and (11) (30 CFR 780.27, 780.37(a)(4), and
784.24(a)(4)), reclamation plan general requirements,
11 AAC 90.149(d) (30 CFR 785.19(b)(2)), operations near alluvial
valley floors,
11 AAC 90.163(b), (c), and (c)(3)(B) (30 CFR 772.14(b)(1), and
(b)(2)(i), exploration that substantially disturbs the natural land
surface or occurs in an area designated unsuitable for mining,
11 AAC 90.391(b) (30 CFR 816.71(b) and 817.71(b)), disposal of
excess spoil or coal mine waste,
11 AAC 90.401(e) (30 CFR 816.83(c)(4) and 817.83(c)(4)), coal mine
waste refuse piles,
11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8) (30 CFR 816.150(b),
(b)(4), (f)(4), and (f)(6) and 817.150(b), (b)(4), (f)(4), and
(f)(6)), construction and maintenance of roads, transportation and
support facilities, and utility installations, and
11 AAC 90.907(e), (f), (g), (h), and (j) (30 CFR 740.13(c),
772.12(c), 773.13, 774.17(c), 785.13(h), 800.40, and 840.15), public
participation.
Because the proposed revisions to these previously-approved rules
are nonsubstantive in nature, the Director finds that these proposed
Alaska rules are no less effective than the Federal regulations. The
Director approves these proposed rules.
2. Substantive Revisions to Alaska's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Alaska proposed revisions to the following rules that are
substantive in nature and contain language that is substantively
identical to the requirements of the corresponding Federal regulation
provisions (listed in parentheses):
11 AAC 05.010(a)(11)(D) and 11 AAC 90.011 (30 CFR 777.17), permit
fees,
11 AAC 90.002 (30 CFR Part 772 and 773.11), responsibilities under
general permitting requirements,
11 AAC 90.025(a) (30 CFR 778.13(e) and (f)), authority to enter and
ownership information,
11 AAC 90.045(a) (30 CFR 780.22(b)(1) and 784.22(b)(1)), geology
description,
11 AAC 90.049(2)(D) (30 CFR 780.21(b)(2) and 784.14(b)(1)), surface
water information,
11 AAC 90.083(b)(12) (30 CFR 780.37(a)(6) and 784.24(a)(6)),
reclamation plan general requirements,
11 AAC 90.097 (30 CFR 780.37(a)(1), (3), and (5) and 784.24(a)(1),
(3), and (5)), transportation facilities,
11 AAC 90.149(d)(1) (30 CFR 785.19(d)(2)(1)), operations near
alluvial valley floors,
11 AAC 90.163, (a), (b)(1), (c)(4), and (c)(5) (30 CFR 772.12(a) and
772.14(b), (b)(1), (3), and (4)), exploration that substantially
disturbs the natural land surface or occurs in an area designated
unsuitable for mining,
11 AAC 90.207(f)(1), (2), and (4) through (7) (30 CFR 800.16(e)(2)
and 800.23(b), (c)(1), and (d) through (g)), requirements for self-
bonding,
11 AAC 90.375 (30 CFR 816.64(b) and 817.64(b)), public notice of
blasting,
11 AAC 90.391 (h) and (s) (30 CFR 816.71 (g) and (i) and 817.71 (g)
and (i)), disposal of excess spoil or coal mine waste,
11 AAC 90.407(e) (30 CFR 816.84(b)(2) and 817.84(b)(2)), coal mine
waste, dams and embankments,
11 AAC 90.409 (30 CFR 816.71(j), 817.71(j), 816.81(f), and
817.81(f), return to underground workings,
11 AAC 90.423(b) and (h) (30 CFR 780.16(c), 784.21(c), 816.97(b),
and 817.91(b)), protection of fish and wildlife,
11 AAC 90.443(d)(1) (30 CFR 816.106(b)(1) and 817.106(b)(1)),
backfilling and grading of previously mined areas,
11 AAC 90.491(a)(1), (6), and (8), (c) (5) through (7), and (e) (30
CFR 816.150(b)(1), (3), (7), (d), and (f) (3) and (6); 816.181(b)
(1) and (2)(ii), 817.150(b)(1), (3), and (7), (d), and (f) (3) and
(6); and 817.181(b) (1) and (2)(ii)), construction and maintenance
of roads, transportation and support facilities, and utility
installations,
11 AAC 90.901(e) (30 CFR 700.11(d)(1)(ii)), applicability, and
11 AAC 90.907 (c) and (d) (30 CFR 840.14 (b) and (c)(2)), public
participation.
Because these proposed Alaska rules are substantively identical to
the corresponding provisions of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations. The
Director approves these proposed rules.
3. 11 AAC 90.003. Continued Operation Under Interim Permits
Alaska proposed to repeal 11 AAC 90.003, which provides that a
person operation under a permit issued or amended by the Commissioner
in accordance with section 502 of SMCRA
[[Page 48837]]
may conduct operations more than eight months after approval of the
Alaska program if certain criteria are met. 11 AAC 90.003 is
substantively the same as the counterpart Federal regulations at 30 CFR
773.11(b)(2), which provide for continuation of initial program
operations when certain conditions are met. Alaska has informed OSM
that there are no interim permits within the State. Therefore, the
Director finds that 11 AAC 90.003 is no longer applicable in Alaska's
program. The Director approves the repeal of this rule.
4. 11 AAC 90.099, Return of Coal Mine Waste and Excess Spoil to
Abandoned Underground Workings
Alaska proposed to revise 11 AAC 90.099 to require that the
underground mining plan must describe the design, operation, and
maintenance of any proposed facility to return coal mine waste and
excess spoil to underground workings, including flow diagrams and other
drawing and maps required by the Commissioner, and that the permit
application also include any plans required to be submitted to the
Federal Mine Safety and Health Administration (MSHA) under 30 CFR
817.81(f). The Federal regulations at 30 CFR 784.25(a) provide, in
pertinent part, that each plan shall describe the design, operation and
maintenance of any proposed coal processing waste disposal facility,
for the approval of the regulatory authority and MSHA under 30 CFR
817.81(f). The performance standards at reference 30 CFR 817.81(f) and
those concerning excess spoil at 30 CFR 817.71(j) allow for the
disposal of coal mine waste and excess spoil in underground mine
workings in accordance with a plan approved by the regulatory authority
and MSHA under 30 CFR 784.25. Despite the fact that the plan
requirements at 30 CFR 784.25 do not specifically provide for the
underground disposal of excess spoil, the reference to 30 CFR 784.24 in
the performance standard at 30 CFR 817.71(j), which provides that
excess spoil may be disposed of in underground workings, clearly does
provide for such disposal. Therefore, the Director finds that the
proposed revision by Alaska at 11 AAC 90.099 is no less effective than
the Federal regulations at 30 CFR 784.25(a), 817.81(f) and 817.71(j).
The Director approves the revisions to this rule.
5. 11 AAC 90.163(C) (4) and (5), Exploration That Substantially
Disturbs the Natural Land Surface or Occurs in an Area Designated
Unsuitable for Surface Coal Mining
Alaska proposed the addition of new provisions at 11 AAC 90.163(c)
(4) and (5) to require that the demonstration that coal testing is
necessary for the development of a surface coal mining and reclamation
operation must also include evidence that sufficient reserves of coal
are available to the applicant for future commercial use or sale and an
explanation of why other mean of exploration are not adequate. Proposed
11 AAC 90.163(c) (4) and (5) are substantively the same as the
counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4). They
are also identical to existing 11 AAC 90.163(d) (1) and (2). It is not
clear to OSM why Alaska choose to add 11 AAC 90.163(c) (4) & (5) to its
rules when the same requirements already existed at 11 AAC 90.163(d)
(1) and (2). The Director finds that the addition of the provisions at
11 AAC 90.163(c) (4) and (5) is superfluous; however, the addition of
these provisions does not render Alaska's rule less effective than the
counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4).
Therefore, the Director approves the addition of these rules.
6. 11 AAC 90.207(f), Requirements for Self-Bonding
Alaska proposed new rules at 11 AAC 90.207(f) to provide specific
requirements for self-bonding. With the exceptions discussed below, the
proposed 11 AAC 90.207(f) is substantively similar to the requirements
of the counterpart Federal regulations at 30 CFR 800.23. Therefore, the
Director finds proposed 11 AAC 90.207(f) to be no less effective than
the Federal regulations and approves it.
a. 11 AAC 90.207(f), Definitions of ``self-bond'' and other terms
concerning financial statements.--Alaska's rules at 11 AAC 90.207 do
not define ``self-bond,'' which is an allowable form of bond under the
Federal regulations at 30 CFR 800.23. The term `'self-bond'' as defined
at 30 CFR 800.5(c) means ``an indemnity agreement in a sum certain
executed by the applicant or by the applicant and any corporate
guarantor and made payable to the regulatory authority with or without
a separate surety.''
OSM, in its July 19, 1995, issue letter, notified Alaska of the
lack of a counterpart definition in its rules (issue No. 9). Alaska's
response, dated October 11 and 24, 1995, provided that the term ``self-
bond'' was defined at Alaska Statute (AS) 27.21.160(d). AS 27.21.160(d)
is Alaska's statutory counterpart to section 509(c) of SMCRA, which
provides the conditions under which the regulatory authority may accept
a self-bond. Neither the Alaska statute nor the cited section of SMCRA
define ``self-bond.'' Therefore, the Director finds that the lack of a
definition of ``self-bond'' at 11 AAC 90.207(f) is less effective than
the Federal regulations and is requiring Alaska to add a definition of
`'self-bond'' to its rules or otherwise revise its program to define
``self-bond'' consistent with the Federal regulations at 30 CFR
800.5(c).
In addition, Alaska's proposed rules at 11 AAC 90.207(f) do not
include definitions for financial statement terms associated with self-
bonding such as ``current assets,'' ``current liabilities,'' ``fixed
assets,'' ``liabilities,'' ``net worth,'' and ``tangible net worth.''
The Federal regulations at 30 CFR 800.23(a) provide definitions for
financial statement terms because they are terms used in the provisions
concerning self-bonding to clarify what is meant or required by the
self-bonding financial tests. The terms are defined to avoid
misunderstandings about what an applicant can and cannot include in its
self-bonding application. This is necessary because not all financial
term definitions are consistent with standard accounting definitions.
For example, `'fixed assets,'' as defined for self-bonding, does not
allow land and coal in place to be counted as fixed assets because they
are difficult to evaluate and to liquidate. Standard accounting
principles, on the other hand, allow land and coal in place to be
counted as an asset when calculating total assets.
Therefore, the Director finds 11 AAC 90.207(f) to be less effective
than the counterpart Federal regulations at 30 CFR 800.23(a) to the
extent that the Alaska rule does not define the financial statement
terms used specifically for self-bonding. The Director requires Alaska
to provide financial statement definitions that are similar to the
definitions provided in the Federal regulations or otherwise revise its
program to be consistent with and no less effective than the Federal
regulations at 30 CFR 800.23(a)
b. 11 90.207(f)(3), Agent for service.--The rules proposed by
Alaska at 11 AAC 90.207(f)(3) provide requirements for acceptance of a
corporate guarantee of an applicant's self-bond, including requirements
concerning business history, submission of financial statements, and an
agent for service of process in Alaska. These requirements are
consistent with the Federal regulations at 30 CFR 800.23(c)(2), except
that the Federal regulations contain an additional requirement
concerning an agent for service for the applicant. The Director finds,
to the extent that 11 AAC 90.207(f)(3) does not require an applicant
whose self-bond is
[[Page 48838]]
guaranteed by a corporate guarantor to maintain its own agent for
service of process in Alaska, that Alaska's rule is less effective than
the counterpart Federal regulations at 30 CFR 800.23(c)(2). The
Director requires Alaska to amend its rule to require an applicant for
a self-bond to meet the requirements of 11 AAC 90.207(f)(1) (A), (C),
and (D), otherwise revise its program to require the permittee to
maintain an agent for service of process while its self-bond is
guaranteed by a corporate guarantor.
7. 11 AAC 90.321(d), Hydrologic Balance
Alaska proposed at 11 AAC 90.321(d) to require that the
Commissioner will, in the Commissioner's discretion, require operation
of necessary ``siltation structures,'' rather than water treatment
facilities, for as long as treatment is required. The counterpart
Federal regulations at 30 CFR 816.41 (a) and (d) provide, in pertinent
part, that the regulatory authority may require additional
preventative, remedial, or monitoring measures to assure that material
damage to the hydrologic balance outside the permit area is prevented
and that if drainage control, restabilization and revegetation of
disturbed areas, diversion of runoff, mulching, or other reclamation
and remedial practices are not adequate, the operator shall use and
maintain the necessary water-treatment facilities or water quality
controls. Further, the Federal regulations at 30 CFR 701.5 define
``siltation structure'' to mean ``a sedimentation pond, a series of
sedimentation ponds, or other treatment facility.'' Alaska has no
counterpart definition for ``siltation structure.'' Because Alaska's
rule lacks the requirement that the operator maintain and use necessary
water-treatment facilities, not just siltation structures, the Director
finds 11 AAC 90.321(d) to be less effective than the Federal
regulations at 30 CFR 816.41 (a) and (d) and 817.41 (a) and (d). The
Director does not approve 11 AAC 90.321(d) and requires Alaska to
revise it by ensuring that water treatment facilities will be operated
for as long as necessary or by adding a definition of ``siltation
structure'' to its rules that is no less effective than the Federal
definition of this term at 30 CFR 701.5.
8. 11 AAC 90.323(a), Water Quality Standards
Alaska proposed nonsubstantive editorial changes at 11 AAC
90.323(a), which are approved by the Director (see finding No. 1);
however, existing language contained in this provision provides that
discharges from underground workings to surface water and surface
drainage from the disturbed area must pass through one or more
``siltation structures.'' As discussed in finding No. 7 above, the
Director finds use of the term ``siltation structure'' to be less
effective than the Federal regulations at 30 CFR 816.41 (a) and (d) and
817.41 (a) and (d). The Director requires Alaska to revise 11 AAC
90.323 (a) to replace ``siltation structures'' with ``sedimentation
ponds or a treatment facility,'' or otherwise amend its regulatory
program to provide a definition of ``siltation structures'' that is no
less effective than the Federal definition of this term at 30 CFR
701.5.
9. 11 AAC 90.325(a), Diversions and Conveyance of Flow
Alaska proposed at 11 AACV 90.325(a) to require that all diversions
and collection drains that are used to transport water into ``siltation
structures,'' rather than ``treatment facilities,'' must meet the
requirements of this section for diversions and conveyance of flow. The
counterpart Federal regulations at 30 CFR 816.43(a) and (c)(2) and
817.43(a) and (c)(2) provide, in pertinent part, that all diversions
shall be designed to minimize the adverse impacts to the hydrologic
balance, which includes, as provided at 30 CFR 816.41(d)(1) and
817.41(d)(1), the use and maintenance of necessary water-treatment
facilities or water quality controls if drainage control,
restabilization and revegetation of disturbed areas, diversion of
runoff, mulching, or other reclamation or remedial practices are not
adequate to meet the hydrologic-balance protection requirements and the
water quality standards and effluent limitations. Therefore, because
Alaska's rule uses the term ``siltation structure,'' which is not
defined in the Alaska program, and because the rule lacks the
requirement that the operator maintain and use necessary water-
treatment facilities, not just siltation structures, the Director finds
11 AAC 90.325(a) to be less effective than the Federal regulations at
30 CFR 816.41(d)(1) and 817.41(d)(1), and does not approve the
replacement of ``treatment facilities'' with ``siltation structures.''
The Director requires Alaska to revise 11 AAC 90.325(a) by ensuring
that water treatment facilities will be operated for as long as
necessary or by adding a definition of ``siltation structure'' to its
rules that is no less effective than the Federal definition of this
term at 30 CFR 701. 5.
10. 11 AAC 90.327(b)(1) and (c), Stream Channel Diversions
Alaska proposed at 11 AAC 90.327 (b)(1) and (c) to replace
``erosion control structures'' and ``water treatment facilities'' with
the term ``siltation structures.'' The Director finds such replacement
to be less effective than the counterpart Federal regulations at 30 CFR
816.43 (a)(1) and (3) and 817.43 (a)(1) and (3) for the reasons
discussed below.
a. 11 AAC 90.327(b)(2), Design and Construction of stream channel
diversions.--Alaska proposed at 11 AAC 90.327(b)(1) to require that
``siltation structures'' rather than ``erosion control structures''
must be approved by the Commissioner and should be used only if
necessary to control erosion.
In the context of describing Federal performance standards for
stream channel diversions, ``erosion control structures'' and
``siltation structures'' are different kinds of structures and not
inter-changeable. The preamble for the Federal regulations at 30 CFR
816.44(b)(1) (44 FR 15399, March 13, 1979) stated that ``erosion
control structures such as channel lining structures, retention basins,
and artificial channel roughness structures shall be used in diversions
only when approved by the regulatory authority as being necessary to
control erosion.'' Because the Alaska program lacks a definition for
``siltation structures,'' it is not known whether ``siltation
structures,'' as used here, would include structures such as channel
linings, gabions, or retention basins. Therefore, the Director does not
approve at proposed 11 AAC 90.327(b)(1) the replacement of the term
``erosion control structures'' with ``siltation structures,'' and
requires Alaska to continue to use ``erosion control structures'' when
describing standards for stream channel diversions used to control
erosion.
b. 11 AAC 90.327(c), Removal of temporary stream channel
diversions.--Alaska proposed at 11 AAC 90.327(c) to require that
downstream ``siltation structures,'' rather than ``water treatment
facilities,'' previously protected by the diversion, must be modified
or removed at the time diversions are removed to prevent overtopping or
failure of the facilities, and that this requirement does not relieve
the operator from maintenance of a ``siltation structure,'' rather than
a ``water treatment facility,'' otherwise required under this chapter
or the permit. The counterpart Federal regulations at 30 CFR
816.43(a)(3) and
[[Page 48839]]
817.43(a)(3) require, in pertinent part, that downstream water-
treatment facilities previously protected by a diversion shall be
modified or removed, as necessary, to prevent overtopping or failure of
the facilities, and that this requirement shall not relieve the
operator from maintaining water-treatment facilities as otherwise
required. Because Alaska has not defined ``siltation structures,'' the
Director finds that replacement of ``water treatment facilities'' or
water treatment facility'' with ``siltation structures'' or ``siltation
structure'' is less effective than 30 CFR 816.43(a)(3) and
817.43(a)(3). The Director is not approving proposed 11 AAC 90.327(c)
and is requiring Alaska to revise it by retaining the terms ``water
treatment facilities'' and ``water treatment facility,'' or to provide
a definition of ``siltation structures'' that includes ``water-
treatment facilities.''
11. 11 AAC 90.337(f), Impoundment Inspection
Alaska proposed at 11 AAC 90.337(f) to require that in addition to
the formal inspections required under 11 AAC 90.337(a) through (e), all
impoundments must be examined at least once a quarter by a qualified
person for any appearances of structural weakness or other hazardous
conditions. The Federal regulations at 30 CFR 816.49(a)(12) and
817.49(a)(12) require, in pertinent part, that impoundments not meeting
the SCS (Soil Conservation Service, now Natural Resources Conservation
Service) class B or C criteria for dams in TR-60, or subject to 30 CFR
77.216-3, shall be examined at least quarterly. The Director finds 11
AAC 90.337(f), which requires that all impoundments must be examined at
least quarterly, is no less effective than the Federal regulations and
approves the revisions to this rule.
12. 11 AAC 90.341(b)(2), Underground Mine Entry and Access Discharges
Alaska proposed at 11 AAC 90.341(b)(2) to replace ``treatment
facility'' with ``siltation structure,'' and allow gravity discharge of
water from an underground mine if all water discharged, whether treated
or not, meets applicable State and Federal laws and regulations, and
the Commissioner finds that consistent maintenance of any siltation
structure required under 11 AAC 90.323 will occur throughout the
anticipated period of gravity discharge. The Federal regulations at 30
CFR 817.41(i)(1) require, in pertinent part, that gravity discharges of
water from underground mines may be allowed by the regulatory authority
if it is demonstrated that the untreated or treated discharge complies
with the performance standards of this part. This part includes the
provisions at 817.41(d)(1), concerning protection of the hydrologic
balance and monitoring, 817.42, concerning water quality standards, and
817.46(b)(5), concerning maintenance of siltation structures until
removal is authorized by the regulatory authority. As discussed in
previous findings, because Alaska has not defined ``siltation
structures,'' the Director finds that use of the term ``siltation
structures'' is less effective than the Federal regulations at 30 CFR
817.46(b)(5). The Director does not approve proposed 11 AAC
90.341(b)(2) and requires Alaska to revise it to provide for consistent
maintenance of any treatment facility used during the anticipated
period of gravity discharge, or otherwise revise its regulatory program
to ensure that ``siltation structure'' is defined in accordance with 30
CFR 701.5.
13. 11 AAC 90.345(e), Surface and Ground Water Monitoring
Alaska proposed at 11 AAC 90.345(e), concerning the monitoring of
stream, lake, and other surface water bodies that may be affected by
the mining operation or that will receive a discharge, to require that
the monitoring must be conducted at both upstream and downstream
locations in all receiving water bodies. The Federal regulations
concerning ground-water and surface-water monitoring at 30 CFR
816.41(c) and (e) and 817.41(c) and (e) require that monitoring shall
be conducted according to the ground-water monitoring plan and surface-
water monitoring plan approved under 30 CFR 780.21(i) and (j) for
surface mining activities and 30 CFR 784.14(h) and (i) for underground
mining activities, and that the regulatory authority may require
additional monitoring when necessary. There is no specific Federal
regulatory counterpart to Alaska's proposed rule at 11 AAC 90.345(e),
which requires both upstream and downstream monitoring locations.
However, the proposed requirement is not inconsistent with the Federal
regulations. Therefore, the Director finds that proposed 11 AAC
90.345(e) is no less effective than 30 CFR 816.41(c) and (e) and
817.41(c) and (e), which provide, in addition to conducting monitoring
in accordance with the approved monitoring plan, that the regulatory
authority may require additional monitoring when necessary. The
Director approves the proposed revisions to this rule.
14. 11 AAC 90.443(k), Backfilling and Grading
Alaska proposed new language at 11 AAC 90.443(k) to provide that spoil
shall be returned to the mined-out area, except for (1) excess spoil
disposed of in accordance with 11 AAC 90.391, and (2) spoil necessary
to blend regraded areas into the surrounding terrain in non-steep slope
areas so long as all vegetative and organic material is removed. The
counterpart Federal regulations at 30 CFR 816.102(b) provide that
spoil, except excess spoil disposed of in accordance with 30 CFR 816.71
through 816.74, shall be returned to the mined-out area. In addition,
30 CFR 816.102(d) (1) through (3) provide that spoil may be placed on
the area outside the mined-out area in nonsteep slope areas to restore
the approximate original contour by blending the spoil into the
surrounding terrain if certain requirements are met, including removal
of all vegetative and organic material, removal, segregation, storage
and redistribution of topsoil, and backfilling and grading of the spoil
in accordance with the requirements of 30 CFR 816.102.
Alaska's proposed rule at 11 AAC 90.443(k) is similar to the
Federal regulations at 30 CFR 816.102 (b) and (d), except that Alaska's
rule does not require that (1) the topsoil on the area outside the
mined-out area in nonsteep slope areas be removed, segregated, stored,
and redistributed in accordance with Alaska's counterpart to the cited
Federal regulation at 30 CFR 816.22, and (2) the spoil to be placed on
the area outside the mined-out area in nonsteep slope areas be
backfilled and graded in accordance with the requirements of Alaska's
counterpart to the cited Federal regulation at 30 CFR 816.102.
Therefore, the Director finds, to the extent that Alaska's rule at 11
AAC 90.443(k) lacks the counterpart requirements of the Federal
regulations at 30 CFR 816.102(d) (2) and (3), 11 AAC 90.443(k) to be
less effective than the Federal regulations. The Director approves
proposed 11 AAC 90.443(k), but requires Alaska to revise it to provide
that the topsoil on the area outside the mined-out area in nonsteep
slope areas shall be removed, segregated, stored and redistributed in
accordance with its topsoil removal provisions and that the spoil be
backfilled and graded on the area in accordance with its provisions
concerning performance standards for backfilling and grading, or
otherwise amend its program to ensure that the disposal of spoil
provisions are no less effective than the Federal regulations at 30 CFR
816.102(d) (2) and (3).
[[Page 48840]]
15. 11 AAC 90.491(f) Construction and Maintenance of Roads
Alaska proposed at 11 AAC 90.491(f) that any road used to transport
coal or spoil, frequently used in excess of six months for access or
other purposes, or retained for an approved postmining land use, must
meet several additional requirements, including certification, safety
factor, location, drainage control, and surfacing. Proposed 11 AAC
90.491(f) is substantively the same as the counterpart Federal
regulations at 30 CFR 816.150(b) and 817.150(b) and 816.151 (a) through
(c), (d) (1) through (4), and (e) and 817.151 (a) through (c), (d) (1)
through (4), and (e). However, proposed 11 AAC 90.491(f) lacks
provisions that are required by the Federal regulations at 30 CFR
816.151(c)(2), (d)(5), and (d)(6) and 817.151(c)(2), (d)(5) and (d)(6),
concerning fords of perennial or intermittent streams, the alteration
or relocation of natural stream channels, and structures for perennial
or intermittent stream channel crossings. Alaska proposed new language
at 11 AAC 90.097 concerning reclamation plan general requirements for
transportation facilities, to require that the surface coal mining
application contain the specifications for each low water crossing and
temporary stream ford (see finding No. 2), but Alaska did not include
all the necessary performance standards concerning location and
drainage control. With the exception of the lack of necessary
provisions discussed above, the Director finds that proposed 11 AAC
90.491(f) is no less effective than the Federal regulations at 30 CFR
816.151 and 817.151 and approves it. The Director is, however,
requiring Alaska to revise 11 AAC 90.491(f) to ensure that its
performance standards for primary roads include requirements concerning
fords, alteration or relocation of natural stream channels, and stream
crossings, or otherwise revise its program to provide counterpart
provisions to the Federal regulations at 30 CFR 816.151(c)(2), (d)(5),
and (d)(6) and 817.151(c)(2), (d)(5), and (d)(6).
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Alaska program (administrative record Nos.
AK-E-2 and AK-E-16).
U.S. Bureau of Reclamation (BOR).--By letter dated March 15, 1995,
the BOR Washington, D.C. office responded that it does not have
jurisdiction in the Alaska area (administrative record No. AK-E-6). OSM
has, therefore, removed the BOR Washington, D.C. office from the
mailing list soliciting comments on Alaska amendments.
Bureau of Land Management (BLM).--By letters dated March 17 and
November 9, 1995, the BLM Alaska State Office responded that the
amendment created no potential conflicts with the management criteria
of the BLM surface management program in Alaska concerning mineral
development. Therefore, BLM had no comments on the proposed amendment
(administrative record Nos. AK-E-7 and AK-E-19).
U.S. Bureau of Mines (BOM).--The BOM Washington, D.C. office
responded on March 17 and November 2, 1995, that it had no comments
(administrative record Nos. AK-E-8 and AK-E-18). In addition, the BOM
Alaska Field Operations Center responded on March 27, 1995, that it had
no comments on the proposed revisions (administrative record No. AK-E-
11).
U.S. Fish and Wildlife Service (FWS).--FWS responded on March 22,
1995, that it was not able to thoroughly review the proposed changes to
Alaska's rules due to staffing and funding constraints, and therefore,
it had no specific comments (administrative record No. AK-E-9).
U.S. Department of Energy (DOE).--By letters dated March 21 and
November 1, 1995, the DOE Alaska Power Administration responded on that
it had no comments (administrative record Nos. AK-E-10 and AK-E-17).
Natural Resources Conservation Service (NRCS).--NRCS responded on
December 5, 1995, with comments on the proposed amendment
(administrative record No. AK-E-20).
NRCS commented that the ``history of farming'' at 11 AAC 90.149(d)
should be expanded to include ``or potential for farming.'' NRCS stated
that many alluvial valley floors have soil and climate characteristics
suitable for agriculture and that even though the total existing acres
in production in Alaska are limited due to market conditions, that
should not preclude maintaining hydrologic functions on areas with
agriculture potential. NRCS suggested that these areas can be
identified using existing Department of Natural Resources guidelines
for identifying lands with agricultural potential.
Alaska's rule at 11 AAC 90.149(d) provides, in pertinent part, that
certain information must be included in the permit application if the
proposed operation may affect an alluvial valley floor, unless the
Commissioner determines that some or all of the information is
unnecessary because the particular valley floor has no history of
farming, is not subirrigated, or has no deficiency of water. The
counterpart Federal regulations at 30 CFR 785.19(b)(2) and (d)(1)
provide, in pertinent part, for statutory exclusions concerning
alluvial valley floors, including determinations by the State
regulatory authority that (1) the premining land use is undeveloped
rangeland which is not significant to farming or (2) any farming on the
alluvial valley floor that would be affected by the surface coal mining
operation is of such small acreage as to be of negligible impact on the
farm's agricultural production. Farm, as used in these Federal
regulations, is one or more land units on which farming is conducted
and a farm is considered to be the combination of land units with
acreage and boundaries in existence prior to enactment of SMCRA, or if
established after August 3, 1977, with those boundaries based on
enhancement of the farm's agricultural productivity.
The Federal regulations do not specifically address ``history of
farming'' or ``potential for farming.'' However, OSM has determined
that Alaska's rule at 11 AAC 90.149(d) is no less effective than the
Federal regulations at 30 CFR 785.19(d)(2) (see finding No. 1). OSM
interprets the phrase ``history of farming'' to be consistent with the
exceptions provided at 30 CFR 785.19(b)(2) in that the Federal
regulations require the regulatory authority to determine the presence
or absence of an alluvial valley floor, and if an alluvial valley floor
is present, then the regulatory authority determines the premining land
use and extent of farming in relation to the farm's agricultural
production. If there is no history of farming on the lands, then the
premining land use was not farming nor will a surface coal mining
operation impact the farm's agricultural production. Therefore, OSM is
not requiring Alaska to revise 11 AAC 90.149(d).
NRCS questioned why areas with permafrost or ice-covered ponds are
[[Page 48841]]
excluded from the provisions at 11 AAC 90.323(a). NRCS stated that
permafrost or ice-covered ponds should have no impact on the need for
siltation structures to maintain water quality because many areas with
permafrost will, upon disturbance, mining or otherwise, release
considerable sediment-laden water as the permafrost thaws. NRCS also
commented that the relevancy of ice-covered ponds is not clear at all.
Alaska's rule at 11 AAC 90.323(a) provides for protection of the
hydrologic balance and requires, in pertinent part, that the
Commissioner must make a finding, when conditions such as permafrost or
ice-covered ponds are present, that the drainage will meet the
applicable State and Federal water quality laws and regulations without
treatment. What NCRA has interpreted to be an exclusion from the
requirements of 11 AAC 90.323(a) is not an exclusion from the
requirement to meet the State's water quality standards. Therefore, OSM
is not requiring Alaska to revise 11 AAC 90.323(a) to remove the
language concerning permafrost and ice-covered ponds.
Concerning proposed 11 AAC 90.391, NRCS questioned to what
standards must revegetation occur, whether this meant native species,
and if revegetation had to be compatible with the post-mining land use.
Proposed 11 AAC 90.391(s) requires, in pertinent part, that all
disturbed areas, including diversion channels that are not riprapped or
otherwise protected, shall be revegetated upon completion of
construction. The requirements of proposed 11 AAC 90.391(s) concern
stabilization of the surface area and are substantively the same as the
counterpart Federal regulations at 816.71(g) and 817.71(g) (see finding
No. 2). OSM states that the performance standards for revegetation are
provided at 30 CFR 816.111 and 817.111, including the use of native
species and compatibility with the approved postmining land use.
Therefore, vegetative cover used for surface area stabilization must
meet the specific requirements addressed by NRCS's questions concerning
revegetation.
3. Environmental Protection Agency (EPA) Concurrence
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Alaska proposed to make in its amendment
pertain to air or water quality standards. Nevertheless, OSM requested
EPA's concurrence with the proposed amendment (administrative record
No. AK-E-03). EPA did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
AK-E-02). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, Alaska's proposed amendment as
submitted on January 26 and February 13 and 14, 1995, and as revised
and supplemented with additional explanatory information on October 11,
23, and 24, 1995.
With the requirement that Alaska further revise its rules, the
Director does not approve, as discussed in:
(1) Finding No. 7, 11 AAC 90.321(d), concerning hydrologic balance,
(2) Finding No. 9, 11 AAC 90.325(a), concerning diversions and
conveyance of flow,
(3) Finding No. 10(a) and (b), 11 AAC 90.327(b)(1) and (c),
concerning stream channel diversions, and
(4) Finding No. 12, 11 AAC 90.341(b)(2), concerning underground
mine entry and access discharges.
The Director approves, as discussed in:
(1) finding No. 1, 11 AAC 90.025(b) and (c), concerning right of
entry information, 11 AAC 90.049(2) and (2)(E) through (H), concerning
surface water information, 11 AAC 90.083(b)(10) and (11), concerning
reclamation plan general requirements, 11 AAC 90.149(d), concerning
operations near alluvial valley floors, 11 AAC 90.163(b), (c), and
(c)(3)(B), concerning exploration that substantially disturbs the
natural land surface or occurs in an area designated unsuitable for
mining, 11 AAC 90.391(b), concerning disposal of excess spoil or coal
mine waste, 11 AAC 90.401(e), concerning coal mine waste refuse piles,
11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8), concerning construction
and maintenance of roads, transportation and support facilities, and
utility installations, and 11 AAC 90.907(e), (f), (g), (h), and (j),
concerning public participation;
(2) Finding No. 2, 11 AAC 05.010(a)(11)(D) and 11 AAC 90.011,
concerning permit fees, 11 AAC 90.002, concerning responsibilities, 11
AAC 90.025(a), concerning authority to enter and ownership information,
11 AAC 90.045(a), concerning geology description, 11 AAC 90.049(2)(D),
concerning surface water information, 11 AAC 90.083(b)(12), concerning
reclamation plan general requirements, 11 AAC 90.097, concerning
transportation facilities, 11 AAC 90.149(d)(1), concerning operations
near alluvial valley floors, 11 AAC 90.163, (a), (b)(1), (c)(4), and
(c)(5), concerning exploration that substantially disturbs the natural
land surface or occurs in an area designated unsuitable for mining, 11
AAC 90.207(f)(1), (2), and (4) through (7), concerning requirements for
self-bonding, 11 AAC 90.375, concerning public notice of blasting, 11
AAC 90.391(h) and (s), concerning disposal of excess spoil or coal mine
waste, 11 AAC 90.407(e), concerning coal mine waste dams and
embankments, 11 AAC 90.409, concerning return to underground workings,
11 AAC 90.423(b) and (h), concerning protection of fish and wildlife,
11 AAC 90.443(d)(1), concerning backfilling and grading previously
mined areas, 11 AAC 90.491(a)(1), (6), and (8), (c)(5) through (7),
(e), and (f)(1) through (9), concerning construction and maintenance of
roads, transportation and support facilities, and utility
installations, 11 AAC 90.901(e), concerning authority, and 11 AAC
90.907(c) and (d), concerning public participation;
(3) Finding No. 3, 11 AAC 90.003, repeal of provisions concerning
continued operation under interim permits;
(4) Finding No. 4, 11 AAC 90.099, concerning return of coal mine
waste and excess spoil to abandoned underground workings;
(5) Finding No. 5, 11 AAC 90.163(c)(4) and (5), concerning
exploration that substantially disturbs the natural land surface or
occurs in an area designated unsuitable for surface coal mining;
(6) Finding No. 11, 11 AAC 90.337(f), concerning impoundment
inspections; and
(7) Finding No. 13, 11 AAC 90.345(e), concerning surface and ground
water monitoring.
With the requirement that Alaska further revise its rules, the
Director approves, as discussed in:
(1) Finding No. 6a., 11 AAC 90.207(f), concerning definitions of
``self-bond'' and other terms concerning financial statements,
[[Page 48842]]
(2) Finding No. 6b, 11 AAC 90.207(f)(3), concerning an agent for
service,
(3) Finding No. 8, 11 AAC 90.323(a), concerning water quality
standards,
(4) Finding No. 14, 11 AAC 90.443(k), concerning backfilling and
grading, and
(5) Finding No. 15, concerning construction and maintenance of
roads.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
902.16 that, within 60 days of the publication of this final rule,
Alaska must either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with Alaska's established administrative or legislative
procedures.
The Director approves the rules as proposed by Alaska with the
provision that they be fully promulgated in identical form to the rules
submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR Part 902, codifying decisions
concerning the Alaska program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the Alaska program, the Director will recognize only the
statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by [State] of only such
provisions.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on proposed State regulatory
programs and program amendments submitted by the States must be based
solely on a determination of whether the submittal is consistent with
SMCRA and its implementing Federal regulations and whether the other
requirements of 30 CFR Parts 730, 731, and 732 have been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates Reform Act
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 902
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 26, 1996.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 902--ALASKA
1. The authority citation for part 902 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 902.15 is amended by adding paragraph (d) to read as
follows:
Sec. 902.15 Approval of regulatory program amendments.
* * * * *
(d) With the exception of 11 AAC 207(f), concerning requirements
for self-bonds, 11 AAC 90.321(d), concerning hydrologic balance, 11 AAC
90.323(a), concerning water quality standards, 11 AAC 90.325(a),
concerning diversions and conveyance of flow, 11 AAC 90.327(b)(1) and
(c), concerning stream channel diversions, 11 AAC 90.341(b)(2),
concerning underground mine entry and access discharges, 11 AAC
90.443(k), concerning backfilling and grading, and 11 AAC 90.491(f),
concerning construction and maintenance of roads, the revisions to and
additions of rules proposed in Alaska Amendment IV, as submitted to OSM
on January 26, 1995, and as revised on October 11, 23, and 24, are
approved effective September 17, 1996.
3. Section 902.16 is amended by adding the introductory paragraph
and paragraph (b) to read as follows:
Sec. 902.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Alaska is required to submit to
OSM by the specified date the following written, proposed program
amendments, or a description of an amendment to be proposed that meets
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for
enactment that is consistent with Alaska's established administrative
or legislative procedures.
* * * * *
[[Page 48843]]
(b) By November 18, 1996, Alaska shall revise the following rules,
or otherwise modify its program, to:
(1) At 11 AAC 90.207(f), require the addition of a definition for
the term ``self-bond'' and other financial terms used to describe self-
bonds consistent with the Federal regulations at 30 CFR 800.5(c) and
800.23(a), and to require the applicant for a self-bond that is
guaranteed by a corporate guarantor to retain his/her own agent for
service in Alaska.
(2) At 11 AAC 90.321(d), require that water treatment facilities
will be operated for as long as necessary, or add a definition of
``siltation structure'' that is no less effective than the Federal
definition of this term at 30 CFR 701.5.
(3) At 11 AAC 90.323(a), replace ``siltation structures'' with
``treatment facilities,'' or add a definition of ``siltation
structure'' that is no less effective than the Federal definition of
this term at 30 CFR 701.5.
(4) At 11 AAC 90.325(a), require that water treatment facilities
will be operated for as long as necessary or add a definition of
``siltation structure'' that is no less effective than the Federal
definition of this term at 30 CFR 701.5.
(5) At 11 AAC 90.327(b)(1) and (c), require that ``erosion control
structures'' be used when describing standards for stream channel
diversions used to control erosion, and that the terms ``water
treatment facilities'' and ``water treatment facility'' be retained or
provide a definition of ``siltation structures'' that includes ``water-
treatment facilities.''
(6) At 11 AAC 90.341(b)(2), require that any treatment facility
used during the anticipated period of gravity discharge will be
consistently maintained, or add a definition of ``siltation structure''
that is no less effective than the Federal definition of this term at
30 CFR 701.5.
(7) At 11 AAC 90.443(k), require that the topsoil on the area
outside the mined-out area in nonsteep slope areas shall be removed,
segregated, stored and redistributed in accordance with its topsoil
removal provisions and that the spoil be backfilled and graded on the
area in accordance with its provisions concerning performance standards
or backfilling and grading, or add provisions to ensure that the
disposal of spoil provisions are no less effective than the Federal
regulations at 30 CFR 816.102(d) (2) and (3).
(8) At 11 AAC 90.491(f), require the addition of provisions
concerning fords of perennial or intermittent streams, the alteration
or relocation of natural stream channels, and structures for perennial
or intermittent stream channel crossings that are no less effective
than 30 CFR 816.151(b)(2), (d)(5), and (d)(6) and 817.151(b)(2), (d)(5)
and (d)(6).
[FR Doc. 96-23677 Filed 9-16-96; 8:45 am]
BILLING CODE 4310-05-M
