[Federal Register Volume 63, Number 164 (Tuesday, August 25, 1998)]
[Proposed Rules]
[Pages 45192-45199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-22721]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 901
[SPATS No. AL-068-FOR]
Alabama Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing.
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SUMMARY: OSM is announcing receipt of a proposed amendment to the
Alabama regulatory program (hereinafter the ``Alabama program'') under
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
amendment consists of revisions to and additions of regulations
pertaining to definitions, petitions to initiate rulemaking license
applications, operation plans, reclamation plans, subsidence control,
lands eligible for remining, permit applications, small operator
assistance program, performance bond release, hydrologic balance, coal
mine waste, backfilling and grading, revegetation, soil removal and
stockpiling, inspections, and hearings. The amendment is intended to
revise the Alabama program to be consistent with the corresponding
Federal regulations.
This document sets forth the times and locations that the Alabama
program and proposed amendment to that program are available for public
inspection, the comment period during which interested persons may
submit written comments on the proposed amendment, and the procedures
that will be followed regarding the public hearing, if one is
requested.
DATES: Written comments must be received by 4:00 p.m., c.d.t.,
September 24, 1998. If requested, a public hearing on the proposed
amendment will be held on September 21, 1998. Requests to speak at the
hearing must be received by 4:00 p.m., c.d.t. on September 9, 1998.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand delivered to Arthur W. Abbs, Director, Birmingham
Field Office, at the address listed below.
Copies of the Alabama program, the proposed amendment, a listing of
any scheduled public hearings, and all written comments received in
response to this document will be available for public review at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. Each requester may receive one free copy of
the proposed amendment by contacting OSM's Birmingham Field Office.
Arthur W. Abbs, Director, Birmingham Field Office, Office of
Surface Mining Reclamation and Enforcement, 135 Gemini Circle, Suite
215, Homewood, Alabama 35209.
Alabama Surface Mining Commission, 1811 Second Avenue, P.O. Box
2390, Jasper, Alabama 35502-2390.
FOR FURTHER INFORMATION CONTACT:
Arthur W. Abbs, Director, Birmingham Field Office. Telephone: (205)
290-7282. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Alabama Program
On May 20, 1982, the Secretary of the Interior conditionally
approved the Alabama program. Background information on the Alabama
program, including the Secretary's findings, the disposition of
comments, and the conditions of approval can be found in the May 20,
1982, Federal Register (47 FR 22062). Subsequent actions
[[Page 45193]]
concerning the conditions of approval and program amendments can be
found at 30 CFR 901.15 and 901.16.
II. Description of the Proposed Amendment
By letter dated August 4, 1998 (Administrative Record No. AL-0584),
Alabama submitted a proposed amendment to its program pursuant to
SMCRA. Alabama submitted the amendment in response to a May 20, 1996,
letter (Administrative Record No. AL-0555) and a June 17, 1997, letter
(Administrative Record No. AL-0568) that OSM sent to Alabama in
accordance with 30 CFR 732.17(c) and at its own initiative. Alabama
proposes to amend the Alabama Surface Mining Commission (ASMC) Rules.
The full text of the proposed program amendment submitted by Alabama is
available for public inspection at the locations listed above under
ADDRESSES. A summary of the proposed amendment is presented below.
1. 880-X-2A-06, Definitions
Alabama is adding a definition of ``drinking, domestic or
residential water supply'' to mean ``water received from a well or
spring and any appurtenant delivery system that provides water for
direct human consumption or household use. Wells and springs that serve
only agricultural, commercial or industrial enterprises are not
included except to the extent the water supply is for direct human
consumption or human sanitation, or domestic use.''
Alabama is adding a definition of ``lands eligible for remining''
to mean ``those lands that would otherwise be eligible for expenditures
under section 404 or under section 402(g)(4) of the Surface Mining
Control and Reclamation Act of 1977, P.L. 95-87.''
Alabama is adding a definition of ``material damage'' to mean ``in
the context of 880-X-8I-.20 and 880-X-10D-.58, (a) Any functional
impairment of surface lands, features, structures or facilities; (b)
Any physical change that has a significant adverse impact on the
affected land's capability to support any current or reasonably
foreseeable uses or causes significant loss in production or income; or
(c) Any significant change in the condition, appearance or utility of
any structure or facility from its pre-subsidence condition.''
Alabama is adding a definition of ``non-commercial building'' to
mean ``any building other than an occupied residential dwelling, that,
at the time the subsidence occurs, is used on a regular or temporary
basis as a public building or community or institutional building as
those terms are defined in this section. Any building used only for
commercial agricultural, industrial, retail or other commercial
enterprise is excluded.''
Alabama is adding a definition of ``occupied residential dwelling
and structures related thereto'' to mean ``for purposes of 880-X-8I-.20
and 880-X-10D-.58, any building or other structure that, at the time
the subsidence occurs, is used either temporarily, occasionally,
seasonally, or permanently for human habitation. This term also
includes any building, structure or facility installed on, above or
below, or a combination thereof, the land surface if that building,
structure of facility is adjunct to or used in connection with an
occupied residential dwelling. Examples of such structures include, but
are not limited to, garages; storage sheds and barns; greenhouses and
related buildings; utilities and cables; fences and other enclosures;
retaining walls; paved or improved patios, walks and driveways; septic
sewage treatment facilities; and lot drainage and lawn and garden
irrigation systems. Any structure used only for commercial
agricultural, industrial, retail or other commercial purposes is
excluded.''
Alabama is revising the definition of ``previously mined area'' to
mean ``land affected by surface coal mining operations prior to August
3, 1977, that has not been reclaimed to the standards of 30 CFR Chapter
VII.''
Alabama is adding a definition of ``program administrator'' to mean
``the Alabama Surface Mining Commission's designee who has the
authority and responsibility for overall management of the Small
Operator's Assistance Program.''
Alabama is adding a definition of ``qualified laboratory'' to mean
``a designated public agency, private firm, institution, or analytical
laboratory that can provide the required determination of probable
hydrologic consequences or statement of results of test borings or core
samplings or other services as specified at 880-X-8N-.10 under the
Small Operator's Assistance Program and that meets the standards of
880-X-8N-.11.''
Alabama is adding a definition of replacement of water supply'' to
mean ``with respect to protected water supplies contaminated,
diminished, or interrupted by coal mining operators, provision of water
supply on both a temporary and permanent basis equivalent to premining
quantity and quality. Replacement includes provision of an equivalent
water delivery system and payment of operation and maintenance costs in
excess of customary and reasonable delivery costs for premining water
supplies. (a) Upon agreement by the permittee and the water supply
owner, the obligation to pay such operation and maintenance costs may
be satisfied by a one-time payment in an amount which covers the
present worth of the increased annual operation and maintenance costs
for a period agreed to by the permittee and the water supply owner, (b)
If the affected water supply was not needed for the land use in
existence at the time of loss, contamination, or diminution, and if the
supply is not needed to achieve the postmining land use, replacement
requirements may be satisfied by demonstrating that a suitable
alternative water source is available and could feasibly be developed.
If the latter approach is selected, written concurrence must be
obtained from the water supply owner.''
Alabama is adding a definition of ``siltation structure'' to mean a
sedimentation pond, a series of sedimentation ponds, or other treatment
facility.
Finally, Alabama is adding a definition of ``unanticipated event or
condition'' to mean ``as used in 880-X-8K-.10 of this chapter, an event
or condition related to prior mining activity which arises from a
surface coal mining and reclamation operation on lands eligible for
remining and was not contemplated by the applicable permit.''
2. 880-X-2A-.08, Petitions To Initiate Rulemaking
At section 880-X-2A-.08(3), Alabama proposes to add the language
``once a week'' after the phrase ``a notice shall be published in a
newspaper of general circulation for the State of Alabama.'' Also,
Alabama is revising section 880-X-2A-.08(4) to require that the State
Regulatory Authority, within 60 days from the receipt of the petition,
either deny a petition in writing on the merits, stating the reasons
for denial, or initiate rulemaking proceedings on the petition.
3. 880-X-6A-06, License Application Requirements
At paragraph (d)3., Alabama is correcting the citation reference to
880-X-8K-.11(8).
4. 880-X-8F-.08, Surface Mining and 880-X-8I-.07, Underground Mining;
Operations Plan: Permit Map(s)
At paragraph (1)(e), Alabama is removing the language ``oil wells,
gas wells, water wells''; adding the language ``and adjacent areas''
after the phrase, ``or passing over the proposed permit area''; and
adding the language ``ponds, springs'' after the word ``lakes.''
[[Page 45194]]
At paragraph (1)(l), Alabama is revising the language to require
the permit map(s) of an application to show the ``location and extent
of existing or previously surface mined areas within the proposed
permit area.''
Finally, at paragraph (1)(o), Alabama is revising the language to
read:
Location and dimensions or extent of areas of existing and
proposed spoil, waste and non-coal waste disposal, dams embankments,
settling ponds, and other impoundments, and water treatment and air
pollution control facilities, haul roads, and stockpile areas within
the proposed permit area.
5. 880-X-8F-.09, Reclamation Plan: General Requirements
Alabama is adding a second sentence to section 880-X-8F-.09(2)(d)
to read as follows:
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.
6. 880-X-8F-.11, Surface Mining and 880-X-8I-.12, Underground Mining;
Reclamation Plan; Siltation Structures, Impoundments, Banks, Dams, and
Embankments
At paragraph (1), Alabama is removing the language ``sedimentation
pond'' and replacing it with the language ``siltation structure.''
Alabama is revising paragraph (1)(b) to require that impoundments
meeting the Class B or C criteria for dams in the U.S. Department of
Agriculture, Soil Conservation Service Technical Release No. 60 (210-
VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' Technical Release
No. 60 (TR-60) comply with the requirements for structures that meet or
exceed the size or other criteria of the Mine Safety and Health
Administration.
Alabama is amending paragraph (1)(c) by replacing the reference to
``30 CFR 77.216(a)'' with a reference to ``paragraph (1)(b).''
Alabama is revising the first sentence of paragraph (2) to require
that siltation structures be designed in compliance with the
requirements of 880-X-10C-.17 under its surface mining rule and 880-X-
10D-.17 under its underground mining rule. The second sentence of this
paragraph is being removed.
At paragraph (3)(c), Alabama is removing the language ``30 CFR
77.216(a) and located where failure would not be expected to cause loss
of life or serious property damage,'' and replacing it with a reference
to ``paragraph (1)(b).''
Finally, Alabama is amending paragraph (6) by replacing the
language ``[I]f the structure is 20 feet or higher or impounds more
than 20 acre feet, each plan under Paragraph (2), (3),and (5) of this
Section shall include a stability analysis of each structure'' with the
language ``[I]f the structure meets the Class B or C criteria for dams
in TR-60 or meets the size or other criteria of 30 CFR 77.216(a), each
plan under paragraphs (2), (3), and (5) of this section shall include a
stability analysis of the structure.''
7. 880-X-8F-.20, Surface Mining and 880-X-8I-.20, Underground Mining
Additional Cross Sections, Maps, and Plans
Alabama is adding a new section requiring the inclusion of
additional cross sections, maps, and plans in the permit application.
At paragraph (1), the cross sections, maps, and plans must show the
following information: elevations and locations of test borings and
core samplings; elevations and locations of monitoring stations used to
gather data for water quality and quantity, fish and wildlife, and air
quality, if required; nature, depth, and thickness of the coal seams to
be mined, any coal or rider seams above the seam to be mined, each
stratum of overburden, and the stratum immediately below the lowest
coal seam to be mined; all coal crop lines and the strike and dip of
the coal to be mined within the proposed permit area; location and
extent of subsurface water, if encountered, within the proposed permit
or adjacent areas; and location, and depth if available, of gas and oil
wells within the proposed permit area and water wells in the permit
area and adjacent area. Paragraph (2) provides that the information
required in paragraph (1) may be shown on the permit maps required by
880-X-8F-.08 under its surface mining rules or 880-X-8I-.07 under its
underground mining rules.
8. 880-X-8H-.06, Description of Geology and Hydrology and Determination
of the Probable Hydrologic Consequence (PHC)
Alabama is requiring the PHC determination to include the following
finding at 880-X-8H-.06(1)(e)3.(iv):
Whether the underground mining activities conducted after
October 24, 1992, may result in contamination, diminution or
interruption of a well or spring in existence at the time the permit
application is submitted and used for domestic, drinking, or
residential purposes within the permit or adjacent areas.
9. 880-X-8I.10, Subsidence Control Plan
Alabama is adding new provisions at paragraph (1) to require a pre-
subsidence survey in each underground coal mining permit application.
Paragraph (1)(a) requires a map of the permit and adjacent areas
showing the location and type of structures and renewable resource
lands that subsidence may materially damage or diminish in value. The
map must also show the location and type of drinking, domestic, and
residential water supplies that could be contaminated, diminished, or
interrupted by subsidence.
Paragraph (1)(b) requires a narrative indicating whether subsidence
could cause material damage to or diminish the value or reasonably
foreseeable use of such structures or renewable resource lands. The
narrative must also indicate whether subsidence could contaminate,
diminish, or interrupt drinking, domestic, or residential water
supplies.
Paragraph (1)(c) requires a survey of the condition of all non-
commercial buildings or occupied residential dwellings and associated
structures that may be materially damaged or for which the reasonably
foreseeable use may be diminished by subsidence, within the area
encompassed by the applicable angle of draw. It also requires a survey
of the quantity and quality of all drinking, domestic, and residential
water supplies within the permit area and adjacent area that could be
contaminated, diminished, or interrupted by subsidence. If the
applicant cannot make these surveys because the owner will not allow
access to the site, the applicant will notify the owner, in writing, of
the effect that denial of access will have as described in 880-X-
10D-.58(3)(d). The applicant must pay for any technical assessment or
engineering evaluation used to determine the pre-mining conditions or
values of the above buildings, dwellings, structures, or water
supplies. The applicant also must provide copies of the surveys and
technical assessments or engineering evaluations to the property owners
and the Regulatory Authority.
Alabama is amending the existing introductory language of 880-X-
8I-.10 and redesignating it as paragraph (2). The first sentence is
being removed, and the second sentence is being revised by adding the
language ``conducted under paragraph (1) of this section'' after the
word ``survey.'' Existing paragraphs (1) through (8) are being
redesignated as paragraphs (2)(a) through (i) with the following
changes. New paragraph (2)(g)
[[Page 45195]]
requires a description of methods to be employed to minimize damage
from planned subsidence to non-commercial buildings and occupied
residential dwellings and associated structures or the written consent
of the owner of the structure or facility that minimization measures
not be taken. This description or written consent may not be needed if
the applicant can demonstrate that the costs of minimizing damage
exceed the anticipated costs of repair, unless the anticipated damage
would constitute a threat to health or safety. Existing paragraph (7)
is being redesignated as paragraph (2)(h) and is being amended to
require a description of the measures to be taken in accordance with
880-X-10D-.12(10) and 880-X-10D-.58(3) to replace adversely protected
water supplies or to mitigate or remedy any subsidence-related material
damage to the land and protected structures.
10. 880-X-8J-.13, Lands Eligible for Remining
Paragraph (1) covers the scope of this new section. This section
contains permitting requirements to implement 880-X-8K-.10(2)(d).
Persons who submit a permit application to conduct a surface coal
mining operation on lands eligible for remining must comply with this
section.
Paragraph (2) provides that any application for a permit under this
section must be made according to all requirements applicable to
surface coal mining and reclamation operations and the additional
requirements of paragraphs (2)(a), (b), and (c). Paragraph (2)(a)
requires that to the extent not otherwise addressed in the permit
application, the applicant is to identify potential environmental and
safety problems related to prior mining activity at the site that could
be reasonably anticipated to occur. The identification is to be based
on an investigation which includes visual observations, a record review
of past mining, and environmental sampling. Paragraph (2)(b) requires a
description of the mitigative measures that will be taken to ensure the
applicable reclamation requirements can be met if potential
environmental and safety problems are identified in paragraph (2)(a).
Paragraph (2)(c) provides that the requirements of this section shall
not apply after September 30, 2004.
11. 880-X-8K.10, Review of Permit Applications
Alabama is adding a new provision at paragraph (2)(d). Paragraph
(2)(d)1. provides that subsequent to October 24, 1992, the prohibitions
of paragraph (2) shall not apply to any violation that occurs after
that date, is unabated, and results from an unanticipated event or
condition that arises from a surface coal mining and reclamation
operation on lands that are eligible for remining under a permit. The
permit must be issued before September 30, 2004, or any renewals
thereof, and held by the person making application for the new permit.
Paragraph (2)(d)2. provides that for permits issued under 880-X-8J-.13,
an event or condition shall be presumed to be unanticipated for the
purposes of this paragraph if it arose after permit issuance, was
related to prior mining, and was not identified in the permit.
Alabama is adding a new provision at paragraph (3)(m) that
specifies the permit application requirements for permits issued under
880-X-8J-.13. Paragraph (3)(m)1. requires the permit application to
contain lands eligible for remining. Paragraph (3)(m)2. requires the
application to contain an identification of the potential environmental
and safety problems related to prior mining activity which could
reasonably be anticipated to occur at the site. Paragraph (3)(m)3.
requires mitigation plans to sufficiently address potential
environmental and safety problems so that reclamation can be
accomplished.
12. 880-X-8N-.07, Small Operator Assistance Program; Eligibility for
Assistance.
Alabama is amending paragraph (c) by removing the existing first
sentence and adding the following sentence:
Establishes that his or her probable total attributed annual
production from all locations on which the operator is issued the
surface coal mining and reclamation permit will not exceed 300,000
tons.
Alabama is removing the language in existing paragraph (c)1. and is
redesignating paragraph (c)2. as paragraph (c)1. with the following
changes: the word ``beneficial'' is removed; the phrase ``of the
applicant'' is added after the word ``ownership''; and the percent of
ownership is changed to 10 percent.
New paragraph (c)2. provides that production from the pro rata
share, based upon percentage of ownership of applicant, of coal
produced in other operations by persons who own more than 10 percent of
the applicant's operation shall be attributed to the permittee.
Alabama is removing existing paragraph (c)3. New paragraph (c)3.
provides that production from all coal produced by operations owned by
persons who directly or indirectly control the applicant by reason of
direction of the management shall be attributed to the permittee.
Alabama is removing paragraph (c)4. and redesignating paragraph
(c)5. as paragraph (c)4.
Alabama is adding a new provision at paragraph (d) to provide that
the applicant is eligible for assistance if he is not restricted in any
manner from receiving a permit under the permanent regulatory program.
Existing paragraph (d) is redesignated as paragraph (e).
13. 880-X-8N-.10, Small Operator Assistance Program; Data Requirements
Alabama is removing the existing requirements under 880-X-8N-.10
and adding new requirements. Paragraph (1) provides that to the extent
possible with available funds, the Program Administrator shall select
and pay a qualified laboratory to make the determination and statement
and provide other services referenced in paragraph (2) of this section
for eligible operators who request assistance.
Paragraph (2) requires the Program Administrator to determine the
data needed for each applicant or group of applicants. It also requires
that the data collected shall be sufficient to satisfy the requirements
of paragraphs (2)(a) through (f). Paragraph (2)(a) requires the
determination of the probable hydrologic consequences of the surface
mining and reclamation operation in the proposed permit area and
adjacent areas, including the engineering analyses and designs
necessary for the determination in accordance with 880-X-8E-.06(f),
880-X-8H-.06(1)(e) and any other applicable provisions of these
regulations. Paragraph (2)(b) requires the drilling and statement of
the results of test borings or core samplings for the proposed permit
area in accordance with 880-X-8E-.06(2)(b) and 880-X-8H-.06(2)(b) and
any other applicable provisions of these regulations. Paragraph (2)(c)
requires the development of cross-section maps and plans for the
information required by 880-X-8F-.08(e), (l), (m) and (o) and 880-X-
8F-.20, or 880-X-8I-.07(e), (l), (m) and (o) and 880-X-8I-.20.
Paragraph (2)(d) requires the collection of archaeological and historic
information and related plans required by 880-X-8E-.05 and 880-X-8H-.05
and 880-X-8F-.14 and 880-X-8I-.14 and any other archaeological and
historic information required by the Regulatory Authority. Paragraph
(2)(e) requires pre-blast surveys required by 880-X-10C-.31. Paragraph
(2)(f) requires the collection of site-specific resources information,
protection and enhancement plans for fish and wildlife habitats
required by 880-X-8E-.11 and
[[Page 45196]]
880-X-8F-.18, and information and plans for any other environmental
values required by the Regulatory Authority.
Paragraph (3) provides that data collection and analysis may
proceed concurrently with the development of mining and reclamation
plans by the operator.
Paragraph (4) provides that data collected under this program shall
be made publicly available in accordance with 880-X-8K-.05(4) and that
the Regulatory Authority shall develop procedures for interstate
coordination and exchange of data.
14. 880-X-8N-.13, Small Operator Assistance Program; Applicant
Liability
Alabama is revising paragraph (1) by requiring the applicant to
reimburse the Regulatory Authority for the cost of the services if any
of the conditions specified in paragraphs (1)(a) through (f) occur. New
paragraph (1)(c) is being added to require reimbursement if the
applicant fails to submit a permit application within one year from the
date of receipt of the approved laboratory report. Existing paragraphs
(1)(c) through (e) are being redesignated as paragraphs (1)(d) through
(f). Redesignated paragraph (1)(e) is being revised to require
reimbursement if ``the Program Administrator finds that the applicant's
actual and attributed annual production of coal exceeds 300,000 tons
during the 12 months immediately following the date on which the
operator is issued the surface coal mining and reclamation permit.''
Redesignated paragraph (1)(f) is being revised to require reimbursement
if ``the permit is sold, transferred, or assigned to another person and
the transferee's total actual and attributed tonnage exceeds the
300,000 annual production limit during the twelve months immediately
following the date on which the permit was originally issued.''
Alabama is revising paragraph (2) by replacing the language
``Regulatory Authority'' with the language ``Program Administrator.''
15. 880-X-9D-.02, Procedures for Seeking Release of Performance Bond
At new paragraph (1)(c), Alabama requires the permittee to include
in each application for bond release a notarized statement which
certifies that all applicable reclamation activities have been
accomplished in accordance with the requirements of the Act, the
regulatory program, and the approved reclamation plan. Existing
paragraph (1)(c) is redesignated as paragraph (1)(d).
16. 880-X-10C-.17, Surface Mining and 880-X-10D-.17, Underground
Mining; Hydrologic Balance: Siltation Structures
Alabama is removing and reserving paragraph (1)(a). Alabama further
revises paragraph (1)(c) to read as follows:
Other treatment facilities mean any chemical treatments, such as
flocculation or neutralization, or mechanical structures, such as
clarifiers or precipitators, that have a point source discharge and
are utilized: 1. To prevent additional contributions of dissolved or
suspended solids to streamflow or runoff outside the permit area, or
2. To comply with all applicable State and Federal water-quality
laws and regulations.
Finally, Alabama is revising paragraph (3)(b) to require
sedimentation ponds to include either a combination of principal and
emergency spillways or a single spillway configured as specified in
880-X-10C-.20(1)(i) for the surface mining rule and 880-X-10D-.20(1)(i)
for the underground mining rule. The language found at 880-X-
10C-.17(3)(b)1., 2., and 3. and 880-X-10D-.17(3)(b)1., 2., and 3. is
removed.
17. 880-X-10C-.20, Surface Mining and 880-X-10D-.20, Underground
Mining; Impoundments
Alabama is adding a new paragraph at (1)(a) that requires
impoundments meeting the Class B or C criteria for dams in the U.S.
Department of Agriculture, Soil Conservation Service Technical Release
No. 60 (210-VI-TR60, Oct. 1985), ``Earth Dams and Reservoirs,'' 1985 to
comply with ``Minimum Emergency Spillway Hydrologic Criteria'' table in
the TR-60 and the requirements of this section.
Existing paragraphs (1)(a) through (1) are redesignated as
paragraphs (1)(b) through (m). Paragraph (1)(d)1. is revised by adding
the language ``the Class B or C criteria for Dams in TR-60, or'' after
the phrase ``[A]n impoundment meeting.'' Further, the language ``or
located where failure would be expected to cause loss of life or
serious property damage'' is removed. Paragraph (1)(d)2. is revised by
removing the language ``meeting the size or other criteria of 30 CFR
77.216(a)'' and replacing it with the phrase ``included in paragraph
(1)(d)1. of this section.'' Further, the language ``and located where
failure would be expected to cause loss of life or serious property
damage'' is removed.
A second sentence is added at paragraph (1)(e) to require
impoundments meeting the Class B or C criteria for dams in TR-60 to
comply with the freeboard hydrograph criteria in the ``Minimum
Emergency Spillway Hydrologic Criteria'' table in TR-60.
The second sentence of paragraph (1)(f)1. is revised by adding the
language ``the Class B or C criteria for dams in TR-60, or'' after the
phrase ``[F]or an impoundment meeting.''
The following new provision is added at paragraph (1)(i)2.(i):
For an impoundment meeting the Class B or C criteria for dams in
the TR-60, the emergency spillway hydrograph criteria in the
``Minimum Emergency Spillway Hydrologic Criteria'' table in TR-60,
or greater event as specified by the Regulatory Authority.
Existing paragraphs (1)(i)2.(i) and (ii) are redesignated as
paragraphs (1)(i)2.(ii) and (iii). At redesignated paragraph
(1)(i)2.(iii), the reference to ``30 CFR 77.216(a)'' is removed and
replaced by a reference to ``paragraphs (1)(i)2.(i) and (ii) above.''
Paragraph (1)(l) is revised to read as follows:
Impoundments meeting the SCS Class B or C criteria for dams in
TR-60, or the size or other criteria of 30 CFR 77.216 must be
examined in accordance with 30 CFR 77.216-3. Impoundments not
meeting the SCS Class B or C criteria for dams in TR-60, or subject
to 30 CFR 77.216, shall be examined at least quarterly. A qualified
person designated by the operator shall examine impoundments for
appearance of structural weakness and other hazardous conditions.
Paragraph (3)(b)1. is revised by adding the language ``the SCS
Class B or C criteria for dams in TR-60, or'' after the phrase ``[I]n
the case of an impoundment meeting.'' Finally, paragraph (3)(b)2. is
revised by removing the language ``meeting the size or other criteria
of 30 CFR 77.216(a)'' and replacing it with the phrase ``included in
paragraph (3)(b)1.of this section.''
18. 880-X-10C-.38, Surface Mining and 880-X-10D-.34, Underground
Mining; Coal Mine Waste: General Requirements
Alabama is revising the second sentence of paragraph (1) to require
coal mine waste to be hauled or conveyed and placed for final placement
in a controlled manner.
19. 880-X-10C-.54, Backfilling and Grading:Thin Overburden
Alabama is removing the existing requirements and adding the
following definition and performance standards for thin overburden:
(1) Definition. Thin overburden means insufficient spoil and
other waste materials available from the entire permit area to
restore the disturbed area to its approximate original contour.
Insufficient spoil and other waste materials occur where the
overburden thickness times the swell factor, plus the
[[Page 45197]]
thickness of other available waste materials, is less than the
combined thickness of the overburden and coal bed prior to removing
the coal, so that after backfilling and grading the surface
configuration of the reclaimed area would not: (a) Closely resemble
the surface configuration of the land prior to mining, or (b) Blend
into and complement the drainage pattern of the surrounding terrain.
(2) Performance standards. Where thin overburden occurs within
the permit area, the permittee at a minimum shall: (a) Use all spoil
and other waste materials available from the entire permit area to
attain the lowest practicable grade, but not more than the angle of
response; and (b) Meet the requirements of 880-X-10C-.53(1)(b)
through (10).
20. 880-X-10C-.55, Backfilling and Grading: Thick Overburden
Alabama is removing the existing requirements and adding the
following definition and performance standards for thick overburden:
(1) Definition. Thick overburden means more than sufficient
spoil and other waste materials available from the entire permit
area to restore the disturbed area to its approximate original
contour. More than sufficient spoil and other waste materials occur
where the overburden thickness times the swell factor exceeds the
combined thickness of the overburden and coal bed prior to removing
the coal, so that after backfilling and grading the surface
configuration of the reclaimed area would not: (a) Closely resemble
the surface configuration of the land prior to mining; or (b) Blend
into and complement the drainage pattern of the surrounding terrain.
(2) Performance standards. Where thick overburden occurs within
the permit area, the permittee at a minimum shall: (a) Restore the
approximate original contour and then use the remaining spoil and
other waste materials to attain the lowest practicable grade, but
not more than the angle of repose; (b) Meet the requirements of 880-
X10C-.53(1)(b) through (10); and (c) Dispose of any excess spoil in
accordance with Rule 880-X-10C-.36.
21. 880-X-10C-.62, Surface Mining and 880-X-10D-.56, Underground
Mining; Revegetation; Standards for Success
Alabama is revising Rule 880-X-10C-.62(3) for surface mining and
Rule 880-X-10D-.56(3) for underground mining by redesignating the
existing language as paragraph (3)(a); amending the existing language
by adding the phrase ``except as provided in paragraph (3)(b) of this
section'' after the phrase ``for five (5) full years''; and adding the
following new provision at paragraph (3)(b):
Two full years for lands eligible for remining included in
permits issued before September 30, 2004, or any renewals thereof.
To the extent that the success standards are established by
paragraph (2)(f) of this section, the lands shall equal or exceed
the standards during the growing season of the last year of the
responsibility period.
22. 880-X-10D-.12, Hydrologic-Balance Protection
Alabama is adding a new provision at paragraph (9) that requires
the permittee to promptly replace any drinking, domestic or residential
water supply that is contaminated, diminished or interrupted by
underground mining activities conducted after October 24, 1992, if the
affected well or spring was in existence before the date the permit
application for the activities causing the loss, contamination or
interruption was received. Alabama will use the baseline hydrologic and
geologic information required in 880-X-8E-.06 and 880-X-8H-.06 to
determine the impact of mining activities upon the water supply.
23. 880-X-10D-.58, Subsidence Control
Alabama is removing the existing provisions from this section and
adding numerous new provisions that pertain to preventing, minimizing,
and repairing damage resulting from subsidence.
Paragraph (1) covers measures to prevent or minimize damage. Under
this paragraph, the permittee has the alternative of either adopting
measures consistent with known technology that prevents subsidence from
causing material damage to the extent technologically and economically
feasible, or adopting mining technology that provides for planned
subsidence in a predictable and controlled manner. If the permittee
employs mining technology that provides for planned subsidence, the
permittee is required to minimize damage to the extent technologically
and economically feasible to noncommercial buildings and occupied
residential dwelling and related structures. If the permittee has the
written consent of the owners of such structures or facilities, no
measures to protect structures and facilities would be required. Unless
the anticipated damage would constitute a threat to health or safety,
the permittee would not have to minimize material damage if the
permittee demonstrates that the cost of minimization would exceed the
cost of repair. The permittee also will not be required to take
measures to minimize subsidence damage if the surface owner denies the
permittee access to the surface.
Paragraph (2) requires the operator to comply with all provisions
of the approved subsidence control plan required under 880-X-81-.10.
Paragraph (3) concerns repair of damage. Paragraph (3)(a) requires
the permittee to correct any material damage to surface lands resulting
from subsidence to the extent technologically and economically
feasible. Paragraph (3)(b) requires the permittee to repair or
compensate the owner for material damage resulting from subsidence to
any non-commercial building or occupied residential dwelling or related
structures. Paragraph (3)(c) requires the permittee, to the extent
required under State law, to either repair or compensate for material
damage resulting from subsidence caused to structures or facilities not
protected under paragraph (3)(b). Paragraph (3)(d) provides a
rebuttable presumption of causation by subsidence. If damage to non-
commercial buildings or occupied residential dwellings and related
structures occur as a result of earth movement within the area
determined by projecting a specified angle of draw from underground
mine workings to the surface, a rebuttable presumption exists that the
permittee caused the damage. This presumption will normally apply to a
30-degree angle of draw. Alabama may approve application of the
presumption to a site-specific angle of draw under specified
conditions. If the permittee is denied access to the land or property
for the purpose of conducting the pre-subsidence survey, no rebuttable
presumption will exist. Paragraph (3)(e) covers provisions for
adjustment of the performance bond amount because of subsidence-related
damage. When subsidence-related damage occurs, Alabama must require the
permittee to obtain additional performance bond in the amount of the
estimated cost of the repairs or decrease in value to land, structures
or facilities or in the amount of the estimated cost to replace
protected water supplies until the repair, compensation, or replacement
is completed. If repair, compensation, or replacement is competed
within 90 days of occurrence of damage, no additional bond is required.
This time may be extended under specified circumstances.
Paragraphs (4), (5), and (6) relate to restrictions placed on
underground mining activities. Paragraph (4) provides that underground
mining activities shall not be conducted beneath or adjacent to public
buildings and facilities; churches, schools, and hospitals; or
impoundments with a storage capacity of 20 acre-feet or more or bodies
of water with a volume of 20 acre-feet or more, unless the subsidence
control plan demonstrates that subsidence will not cause material
damage to, or reduce the use of, such features or facilities. Alabama
may also limit the percentage
[[Page 45198]]
of coal extracted under or adjacent to these features or facilities.
Paragraph (5) provides that if subsidence causes material damage to
any of the features or facilities covered by paragraph (4), Alabama may
suspend mining under or adjacent to these features or facilities to
ensure prevention of further material damage. This suspension would
remain in place until the subsidence control plan is modified to ensure
prevention of further material damage.
Paragraph (6) requires that if imminent danger is found to
inhabitants, Alabama must suspend underground mining activities under
urbanized areas, cities, towns, and communities, and adjacent to
industrial or commercial buildings, major impoundments, or perennial
streams.
Paragraph (7) requires the operator to submit a detailed plan of
the underground workings, including maps and descriptions of
significant features of the underground mine. Upon request, information
submitted with the detailed plan may be held as confidential under the
requirements of 880-X-8K-.05(4).
24. 880-X-10G-.03, Applicability
Alabama is adding a new paragraph (2) to specify that the
requirements of this subchapter do not apply to disposal areas
containing coal mine waste resulting from underground mines that is not
technologically and economically feasible to store in underground mines
or on non-prime farmland. The operator is required to minimize the area
of prime farmland used for underground coal mine waste disposal.
Existing paragraph (2) is redesignated as paragraph (3).
25. 880-X-10G-.04, Soil Removal and Stockpiling
Alabama is amending paragraph (3)(b) by adding an exception to the
requirement to separately remove the B or C horizon or other suitable
soil materials. This exception applies where the B or C soil horizons
would not otherwise be removed and where soil capabilities can be
retained.
26. 880-X-11B-.02, Inspections
Alabama is revising paragraph (8)(d)1. by removing the language
``or permit revocation proceedings have been initiated and are being
pursued diligently.'' Paragraph (8)(d)2. is being revised by replacing
the reference to ``Alabama Surface Mining Commission'' with a reference
to ``Regulatory Authority.''
Alabama is removing the existing language in paragraph (9) and
adding the following new language:
(9) In lieu of the inspection frequency established in
paragraphs (1) and (2) of this section, the Regulatory Authority
shall inspect each abandoned site on a set frequency commensurate
with the public health and safety and environmental considerations
present at each specific site, but in no case shall the inspection
frequency be set at less than one complete inspection per calendar
year.
(a) In selecting an alternate inspection frequency authorized
under the paragraph above, the Regulatory Authority shall first
conduct a complete inspection of the abandoned site and provide
public notice under paragraph (9)(b) of this section. Following the
inspection and public notice, the Regulatory Authority shall prepare
and maintain for public review a written finding justifying the
alternative inspection frequency selected. This written finding
shall justify the new inspection frequency by affirmatively
addressing in detail all of the following criteria:
1. How the site meets each of the criteria under the definition
of an abandoned site under paragraph (8) of this section and thereby
qualifies for a reduction in inspection frequency;
2. Whether, and to what extent, there exist on the site
impoundments, earthen structures or other conditions that pose, or
may reasonably be expected to ripen into, imminent dangers to the
health or safety of the public or significant environmental harms to
land, air, or water resources;
3. The extent to which existing impoundments or earthen
structures were constructed and certified in accordance with prudent
engineering designs approved in the permit;
4. The degree to which erosion and sediment control is present
and functioning;
5. The extent to which the site is located near or above
urbanized areas, communities, occupied dwellings, schools and other
public or commercial buildings and facilities;
6. The extent of reclamation completed prior to abandonment and
the degree of stability of unreclaimed areas, taking into
consideration the physical characteristics of the land mined and the
extent of settlement or revegetation that has occurred naturally
with them; and
7. Based on a review of the complete and partial inspection
report record for the site during at least the last two consecutive
years, the rate at which adverse environmental or public health and
safety conditions have and can be expected to progressively
deteriorate.
(b) The public notice and opportunity to comment required under
paragraph (9)(a) of this section shall be provided as follows:
1. The Regulatory Authority shall place a notice in the
newspaper with the broadest circulation in the locality of the
abandoned site providing the public with a 30-day period in which to
submit written comments.
2. The public notice shall contain the permittee's name, the
permit number, the precise location of the land affected, the
inspection frequency proposed, the general reasons for reducing the
inspection frequency, the bond status of the permit, the telephone
number and address of the Regulatory Authority where written
comments on the reduced inspection frequency may be submitted, and
the closing date of the comment period.
27. 880-X-11D-.11, Request for Hearing
Alabama is revising paragraph (1) to allow the person charged with
a violation to contest the proposed penalty or the fact of the
violation within 30 days from the date of service of the conference
officer's action.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable program approval criteria of 30 CFR 732.15. If the amendment
is deemed adequate, it will become part of the Alabama program.
Written Comments
Written comments should specify, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Birmingham Field Office will
not necessarily be considered in the final rulemaking or included in
the Administrative Record.
Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
c.d.t. on September 9, 1998. The location and time of the hearing will
be arranged with those persons requesting the hearing. Any disabled
individual who has need for a special accommodation to attend a public
hearing should contact the individual listed under FOR FURTHER
INFORMATION CONTACT. If no one requests an opportunity to speak at the
public hearing, the hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
[[Page 45199]]
Public Meeting
If only one person requests an opportunity to speak at a hearing, a
pubic meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the Administrative Record.
IV. Procedural Determinations
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).
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, to the extent allowed by law, this rule meets the
applicable standards of subsection (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 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
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).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior 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.
Unfunded Mandates
OSM has determined and certifies pursuant to the Unfunded Mandates
Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a
cost of $100 million or more in any given year on local, state, or
tribal governments or private entities.
List of Subjects in 30 CFR Part 901
Intergovernmental relations, Surface mining, Underground mining.
Dated: August 14, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 98-22721 Filed 8-24-98; 8:45 am]
BILLING CODE 4310-05-M