[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