[Federal Register Volume 69, Number 137 (Monday, July 19, 2004)]
[Proposed Rules]
[Pages 42920-42926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-16287]
[[Page 42920]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 902
[SATS No. AK-006]
Alaska Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: We are announcing receipt of a proposed amendment to the
Alaska regulatory program (hereinafter, the ``Alaska program'') under
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the
Act). Alaska proposes revisions to and additions of rules about the
description of hydrology and geology; protection of fish and wildlife;
protection of the hydrologic balance; the requirement that certain
plans be designed, constructed, and/or certified by a registered
professional engineer; the small operator assistance program; bonding;
topsoil protection; the western alkaline mine initiative; design
precipitation events; stream channel protection; impoundment design and
construction; water monitoring; blasting; coal mine waste, refuse piles
and excess spoil; thick and thin overburden; auger mining; inspection
of abandoned sites; administrative procedures for civil penalties;
individual civil penalties; petitions to designate areas unsuitable for
mining; underground mining, subsidence, and replacement of drinking
water supplies; extraction of coal incidental to extraction of other
minerals; and definitions. Alaska also proposed to demonstrate that a
reference to the Alaska Dam Safety rules incorporates the hazard
evaluation in accordance with the Natural Resources Conservation
Service (NRCS) Technical Release 60 (TR-60); the necessity for an
exemption from topsoil removal where permafrost or cold weather
conditions exist in the State, that the Commissioner of the Alaska
Program (Commissioner) can determine who should approve minimum
requirements for shrub stocking and planting arrangements on land where
the post-mining land use is designated as fish and wildlife habitat,
recreation, shelter belts, and forestry; that no prime farmlands exist
in the State; and that notarization of a certified statement in a bond
release application is not necessary for the statement to be
enforceable. Alaska intends to revise its program to be consistent with
the corresponding Federal regulations and SMCRA.
This document gives the times and locations that the Alaska program
and proposed amendment to that program are available for your
inspection, the comment period during which you may submit written
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
m.d.t. August 18, 2004. If requested, we will hold a public hearing on
the amendment on August 13, 2004. We will accept requests to speak
until 4 p.m., m.d.t. on August 3, 2004.
ADDRESSES: You may submit comments, identified by AK-006, by any of the
following methods:
E-mail: [email protected]. Include AK-006 in the subject
line of the message.
Mail: James F. Fulton, Chief, Denver Field Division Office
of Surface Mining Reclamation and Enforcement, P.O. Box No. 4666,
Denver, CO 80201-6667.
Hand Delivery/Courier: James F. Fulton, Chief Denver Field
Division, Office of Surface Mining, Reclamation and Enforcement, 1999
Broadway, Suite 3320, Denver, CO 80202-5733.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name
and docket number for this rulemaking. For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: For access to the docket to review copies of the Alaska
program, this amendment, a listing of any scheduled public hearings,
and all written comments received in response to this document at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. You may receive one free copy of the
amendment by contacting Office of Surface Mining Reclamation and
Enforcement (OSM's) Denver Field Division. In addition, you may review
a copy of the amendment during regular business hours at the following
locations:
James F. Fulton, Chief, Denver Field Division, Office of Surface Mining
Reclamation and Enforcement, P.O. Box No. 4666, 1999 Broadway, Suite
3320, Denver, CO 80201-6667, 303-844-1400 extension 1424,
[email protected].
Stan Foo, Mining Chief, Division of Mining, Land and Water, Alaska
Department of Natural Resources, 550 W. 7th Avenue, Suite 900D,
Anchorage, AK 99501, (907) 269-8503, [email protected].
FOR FURTHER INFORMATION CONTACT: James F. Fulton Telephone: 303-844-
1400 ext. 1442. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Alaska Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Alaska Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Alaska program on March 23, 1983. You can
find background information on the Alaska program, including the
Secretary's findings, the disposition of comments, and conditions of
approval of the Alaska program in the March 23, 1983, Federal Register
(48 FR 12274). You can also find later actions concerning Alaska's
program and program amendments at 30 CFR 902.10, 902.15 and 902.16.
II. Description of the Proposed Amendment
By letter dated May 11, 2004, Alaska sent us a proposed amendment
to its program, (State Amendment Tracking System (SATS) No. AK-006,
administrative record No. AK-9) under SMCRA (30 U.S.C. 1201 et seq.).
Alaska sent the amendment in response to portions of letters dated May
7, 1986, December 16, 1988, February 7, 1990, June 4, 1996, and June
19, 1997 (administrative record Nos. AK-01, AK-03, AK-06, AK-07 and AK-
09), that we sent to Alaska in accordance with 30 CFR 732.17(c). Alaska
also submitted the amendment in response to required program amendments
codified at 30 CFR 902.16(a) and (b). Alaska submitted one provision at
its own initiative. The full text of the program amendment is
[[Page 42921]]
available for you to read at the locations listed above under
ADDRESSES.
Specifically, Alaska proposes to make the following additions or
revisions to its rules.
Description of Hydrology and Geology
Revise 11 Alaska Annotated Code (AAC) 90.043(b), concerning
hydrology and geology, to require that all water quality analyses
performed to meet the requirements of 11 AAC 90.043, 11 AAC 90.047, or
11 AAC 90.049, must be conducted according to the methodology in the
most current edition of the Standard Methods for the Examination of
Water and Wastewater, or the methodology in 40 CFR 136 and 40 CFR 434.
Revise 11 AAC 90.045(a) by requiring a description of the geology
within the permit and adjacent areas to include the deeper of either
the stratum immediately below the lowest coal seam to be mined or any
aquifer below the lowest coal seam to be mined which may be adversely
impacted by mining, and to require that the description shall include
the areal and structural geology of the permit and adjacent areas, and
other parameters which influence the required reclamation and the
occurrence, availability, movement, quantity, and quality of
potentially impacted surface and ground waters.
Add 11 AAC 90.045(b) to require that test borings, or core samples
from the proposed permit area must be collected and analyzed down to
and including the deeper of either the stratum immediately below the
lowest coal seam to be mined, or any aquifer below the lowest coal seam
to be mined that may be adversely impacted, and to state what the
analysis must include.
Add 11 AAC 90.045(c) to allow the Commissioner to require, at his
or her discretion, that test borings or core samplings be collected and
analyzed to greater depths within the proposed permit area or, for the
area outside the proposed permit area, to provide for evaluation of the
impact of the proposed activities on the hydrologic balance.
Add 11 AAC 90.045(d) to require that an application for an
underground mine include a separate description of the geology of the
area proposed to be affected by surface operations and facilities,
surface land overlying coal to be mined, and the coal to be mined, and
to state what must be included in the description.
Protection of Fish and Wildlife
Add 11 AAC 90.045(e) to provide an opportunity for an applicant to
request that the requirements of 11 AAC 90.045(b) and (d) be waived,
and require that the Commissioner will, in his or her discretion, grant
the request upon a written determination that the requirement is
unnecessary because other equivalent information is available.
Revise 11 AAC 90.057, concerning fish and wildlife information, by
adding that upon request, the Commissioner shall provide the resource
information and the protection and enhancement plan to the U.S.
Department of the Interior, Fish and Wildlife Service (Service)
regional or field office for their review, and that the information
shall be provided within 10 days of receipt of the request from the
Service.
Revise 11 AAC 90.457(c)(3) to require, for areas to be developed
for fish and wildlife habitat, recreation, shelter belts, or forest
products, that minimum stocking and planting arrangements be specified
by the Commissioner, or his designee, on the basis of local conditions.
Protection of the Hydrologic Balance
Add 11 AAC 90.085(e), concerning the plan for protection of the
hydrologic balance, to tie the cumulative hydrologic impact assessment
to the ``cumulative impact area.''
Revise 11 AAC 90.349(l), concerning discharge of water or coal mine
waste into an underground mine, to prohibit such discharge unless the
operator demonstrates that the discharge will minimize disturbance to
the hydrologic balance on the permit area, prevent material damage
outside the permit area and otherwise eliminate public hazards
resulting from surface mining activities.
Design, Construction and/or Certification By a Registered Professional
engineer
Revised 11 AAC 90.089(a)(1) and 90.336(a) to require that the
design and construction of a siltation structure, temporary or
permanent impoundment, and coal mine waste dam or embankment, be
prepared and certified by, or under the direction of, a registered
professional engineer who is experienced or trained in the design and
construction of impoundments.
Revise 11 AAC 90.337(a) to require that each permanent or temporary
impoundment must be inspected by, or under the supervision of, a
registered professional engineer or other qualified professional
specialist under the direction of a professional engineer, and that the
professional engineer or specialist shall be experienced or trained in
the construction of impoundments.
Revise 11 AAC 90.491(f)(1) to require that plans and drawings for
primary roads be prepared by, or under the direction of, and certified
by a qualified registered professional engineer or a qualified
registered professional land surveyor, with experience or training in
the design and construction of roads.
Small Operator Assistance Program
Revise 11 AAC 90.173(a)(2), to allow eligibility for assistance
under the small operator assistance program if the applicant
establishes that the probable total, actual, and attributed production
for each year of the permit will not exceed 300,000 tons.
Revise 11 AAC 90.173(b)(2) and (3) to determine that production
will be attributed to the applicant based upon, respectively, (1) the
pro rata share of coal produced by operations in which the applicant
owns more than ten percent interest, or (2) all coal produced by
persons who own more than ten percent of the applicant or who directly
or indirectly control the applicant by reason of stock ownership,
direction of the management, or in any other manner.
Revise 11 AAC 90.179(a), concerning data required in an application
for small operator assistance, to allow the Commissioner to require, in
order for the applicant to determine the probable hydrologic
consequences of the operation, drilling and a statement of the results
of test borings or core samplings from the proposed permit area.
Add 11 AAC 90.179(b) to require data, in an application for
assistance under the small operator program, sufficient for (1) the
development of cross-section maps and plans required by 11 AAC 90.065,
(2) the collection of archaeological and historic information and
related plans required by 11 AAC 90.041 and any other archaeological
and historic information required by the Commissioner, (3) pre-blast
surveys required by 11 AAC 90.373, (4) the collection of site-specific
resources information, (5) the production of protection and enhancement
plans for fish and wildlife habitats required by 11 AAC 90.057 and 11
AAC 90.423, and (6) information and plans for any other environmental
values required by the Commissioner under the Act.
Add 11 AAC 90.179(c) to require that data collected under the small
operator assistance program must be made available to interested
persons as provided in Alaska Statutes (AS) 27.21.100.
Revise 11 AAC 90.185(a)(4) and (5) to require that an applicant for
assistance under the small operator program shall reimburse the
department for the cost of services rendered under 11 AAC 90.179
[[Page 42922]]
if the applicant has actual and attributed production of coal exceeding
300,000 tons during any consecutive 12-month period during the term of
the permit for which the assistance is provided; or transfers, sells,
or assigns the permit to another person whose total actual and
attributed production exceeds 300,000 tons during any consecutive 12-
month period of the remaining term of the permit (in this case, the
applicant and its successor are jointly and severally obligated to
reimburse the department).
Bonding
Revise 11 AAC 90.201(d), concerning incremental bonding, to require
that the independent increments must be of sufficient size and
configuration to provide for efficient reclamation operations should
reclamation by the regulatory authority become necessary.
Add 11 AAC 90.201(f), concerning the requirement to file a bond, to
require that the operator maintain adequate bond coverage at all times
and to state that, except as provided in 11 AAC 90.209(c), operating
without a bond is a violation of a condition upon which the permit is
issued.
Revise 11 AAC 90.211(a), concerning bond release procedure and
criteria, to require the permittee to include in the application for
each phase of bond release, a statement which certifies that all
applicable reclamation activities have been accomplished in accordance
with the requirements of AS 27.21, 11 AAC 90, and the approved
reclamation plan.
Topsoil Protection
Revise 11 AAC 90.311(g), concerning the removal of topsoil, to
provide an exemption, based on accepted construction and reclamation
practices for arctic permafrost or similar cold-weather conditions,
from the requirements for removal, stockpiling, and redistribution of
topsoil and other materials, if the Commissioner authorizes the
handling of the material as part of the backfilling and grading process
under 11 AAC 90.441 and 11 AAC 90.443.
Revise 11 AAC 90.443(k)(2), concerning backfilling and grading
requirements, to require that all topsoil be removed segregated, stored
and redistributed in accordance with 11 AAC 90.311 to 90.315.
Western Alkaline Mine Initiative
Revise 11 AAC 90.323(a), concerning water quality standards, to
refer to an exception at 11 AAC 90.323(b) from the requirement that any
discharge of water from an underground working to surface water and all
surface drainage from the disturbed area, including any disturbed area
that has been graded, seeded, or planted, must pass through one or more
siltation structures before leaving the permit area, unless the
Commissioner finds that conditions such as permafrost or ice-covered
ponds will allow the drainage to meet applicable State and Federal
water quality laws and regulations without treatment, and until removal
is approved by the Commissioner under 11 AAC 90.331(e).
Revise 11 AAC 90.323(b) to state that the Commissioner may allow
other sediment control measures for primary sediment control for
disturbed areas that have been regraded, respread with topsoil, and
stabilized against erosion, if the Commissioner and the Environmental
Protection Agency have approved the use of best management practices as
the effluent limitation.
Revise 11 AAC 90.323(c) to require that the operator shall meet all
applicable Federal and State water quality laws and regulations for the
mixed drainage from the permit area when there is mixing of drainage
from disturbed, reclaimed, and undisturbed areas.
Revise 11 AAC 90.331(e), concerning siltation structures, to state
that unless removal is authorized under 11 AAC 90.232(b), a siltation
structure may not be removed before the Commissioner's approval under
11 AAC 90.323(b), the untreated drainage from the disturbed area meets,
and is expected to permanently meet, the applicable State and Federal
water quality laws and regulations for the receiving stream (after the
disturbed area has been stabilized and revegetated), and no earlier
than two years after the last augmented seeding.
Design Precipitation Events
Revise 11 AAC 90.325(b) and (c) to require that each temporary and
permanent diversion be designed and constructed to pass, respectively,
the 2-year, 6-hour, and the 10-year, 6-hour, discharge, or larger event
specified by the Commissioner.
Revise 11 AAC 90.327(b)(2) to require that each stream channel
diversion be designed and constructed so that the combination of
channel, bank, and flood plain configurations will be adequate to pass
safely the 10-year, 6-hour, discharge for temporary diversions, the
100-year, 6-hour, discharge for permanent diversions, or larger events
specified by the Commissioner based on the period of use and local
conditions, and to require that the capacity of the channel itself must
be at least equal to the capacity of the unmodified stream channel
immediately upstream and downstream from the diversion.
Revise 11 AAC 90.331(d)(1), concerning siltation structures, to
require that each sedimentation pond must be designed, constructed, and
maintained to contain or treat the 10-year, 24-hour precipitation event
(``design event'') unless a lesser design event is approved by the
Commissioner based on terrain, climate, other site-specific conditions
and on a demonstration by the operator that the effluent limitations of
11 AAC 90.323 will be met.
Add 11 AAC 90.331(h), concerning other treatment facilities, to
require (1) other treatment facilities shall be designed to treat the
10-year, 24-hour precipitation event unless a lesser design event is
approved by the Commissioner based on terrain, climate, other site-
specific conditions and a demonstration by the operator that the
effluent limitations of 11 AAC 90.323 will be met; and (2) other
treatment facilities shall be designed in accordance with the
applicable requirements of this section.
Revise 11 AAC 90.336(b)(1) and (2) to require that impoundments
must contain a combination of principal and emergency spillways
designed and constructed to pass safely the design peak discharge with
the following recurrence interval, or larger event specified by the
Commissioner based on the period of use and local conditions, (1) for a
temporary impoundment, the 25-year, 6-hour, discharge; or (2) for a
permanent impoundment, the 100-year, 6-hour, discharge.
Revise 11 AAC 90.391(n) to require that surface water runoff from
the areas adjacent to and above valley fills must be diverted away from
the fill, and surface runoff from the fill itself must be diverted into
stabilized diversion channels designed to pass safely the 100-year 6-
hour discharge or larger event specified by the Commissioner based on
local conditions.
Revise 11 AAC 90.407(c) to require that surface runoff that may
cause instability or erosion of the coal mine waste dam or embankment
must be diverted into stabilized channels designed to pass safely the
100-year 6-hour discharge.
Stream Channel Protection
Revise 11 AAC 90.327(b)(1), concerning stream channel diversions,
to clarify the meaning of ``erosion control structures'' by adding that
they are features such as channel lining structures, retention basins,
and artificial roughness structures used in diversions.
[[Page 42923]]
Add 11 AAC 90.491(f)(3) to require that natural stream channels
shall not be altered or relocated without the prior approval of the
Commissioner in accordance with 11 AAC 90.321 through 11 AAC 90.327 and
11 AAC 90.353.
Add 11 AAC 90.491(f)(4) to require that, except as provided in 11
AAC 90.491(e), structures for perennial or intermittent stream channel
crossings shall be made using bridges, culverts, low-water crossings,
or other structures designed, constructed, and maintained using
current, prudent engineering practices, and that the Commissioner shall
ensure that low-water crossings are designed, constructed, and
maintained to prevent erosion of the structure or streambed and
additional contributions of suspended solids to steam flow.
Impoundment Design and Construction
Revise 11 AAC 90.336(f), concerning impoundment design and
construction, to correct the reference to the Alaska Dam Safety Program
at 11 AAC 93.151--11 AAC 93.201.
Water Monitoring
Revise 11 AAC 90.345(e), concerning surface and ground water
monitoring, to require monitoring of each stream, lake, and other
surface water body that may be affected by the mining operation or that
will receive a discharge, and at upstream locations.
Blasting
Revise 11 AAC 90.375(f) to require the operator to publish a
blasting schedule in local newspapers, at least 10 days, but not more
than 30 days, before beginning a blasting program.
Revise 11 AAC 90.375(g) to require that an operator must distribute
a revised blasting schedule at least 10 days, but not more than 30
days, before blasting when the area covered by the schedule changes or
actual time periods for blasting significantly differ from the original
schedule.
Coal Mine Waste, Refuse Piles and Excess Spoil
Revise 11 AAC 90.391(b), concerning disposal of excess spoil or
coal mine waste, to require that the fill and associated drainage
system be designed and certified by a registered professional engineer
experienced in the design of similar earth and waste structures.
Revise 11 AAC 90.391(h)(2) to provide for disposal of nontoxic and
nonacid forming coal mine waste in excess spoil fills if the operator
demonstrates to the Commissioner, before the Commissioner approves of
the disposal, that the placement of such material is consistent with
the design stability of the fill.
Add 11 AAC 90.391(l), concerning disposal of excess spoil or coal
mine waste, to require that the final configuration of the refuse pile
shall be suitable for the approved post-mining land use; allow terraces
to be constructed on the outslope of the refuse pile if required for
stability, control or erosion, conservation of soil moisture, or
facilitation of the approved post-mining land use, and require that the
grade of the outslope between terrace benches shall not be steeper than
2h:1v (50 percent).
Revise 11 AAC 90.395(a), concerning coal mine waste, to require
that (1) all coal mine waste, that will be disposed of in an area other
than the mine workings or excavations, must be placed in new or
existing disposal areas within a permit area, which are approved for
this purpose, and (2) that coal mine waste must be hauled or conveyed
and placed for final placement in a controlled manner to prevent mass
movement during and after construction.
Revise 11 AAC 90.397(a), concerning inspections of excess spoil,
underground development waste, or coal processing waste disposal areas,
to require that the inspections be conducted by or under the direction
of a registered professional engineer experienced in the construction
of similar earth and waste structures.
Revise 11 AAC 90.401(a), concerning coal mine waste and refuse
piles, to add the requirement that coal mine waste disposal areas that
do not impound water, slurry, or other liquid or semi-liquid material
comply with the requirements of 30 CFR 77.214 and 77.215.
Revise 11 AAC 90.401(d), concerning coal mine waste and refuse
piles, to make an editorial correction to a referenced rule citation.
Revise 11 AAC 90.401(e), concerning coal mine waste and refuse
piles, to allow less than four feet of cover over a regraded coal mine
waste disposal area if the operator, based upon a physical and chemical
demonstration, ensures that the requirements of 11 AAC 90.451 through
90.457 will be met.
Add 11.AAC 90.407(f), concerning impounding structures constructed
of or impounding coal mine waste, to require that at least 90 percent
of the water stored during the design precipitation event shall be
removed within the 10-day period following the design precipitation
event.
Thick and Thin Overburden
Revise 11 AAC 90.443(a) to allow for exceptions to the requirements
to return all spoil to the mined out area and regrade to the
approximate original contour if the operator demonstrates conditions of
thick or thin overburden.
Revise 11 AAC 90.443(i) to state that where thin overburden occurs
within the permit area, the permittee at a minimum shall (1) 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
repose, and (2) meet the requirements of 11 AAC 90.443(a)(2) through
(k).
Revise 11 AAC 90.443(m) to require where thick overburden occurs
within the permit area, the permittee at a minimum shall (1) 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, (2) meet the requirements of 11 AAC
90.443(a)(2) through (k), and (3) dispose of any excess spoil in
accordance with 11 AAC 90.391.
Auger Mining
Revise 11 AAC 90.447(c)(1) to require that auger holes must be
sealed within 72 hours after completion with an impervious and
noncombustible material, if the holes are discharging water containing
acid- or toxic-forming material, and that, if sealing is not possible
within 72 hours, the discharge shall be treated commencing within 72
hours after completion to meet applicable effluent limitations and
water-quality standards until the holes are sealed.
Inspections of Abandoned Sites
Revise 11 AAC 90.601 by adding rules at paragraphs (h) and (i)
concerning inspections of abandoned sites.
Administrative Procedures for Civil Penalties
Revise 11 AAC 90.629(a) to allow 30 days from the date a proposed
assessment or reassessment of a penalty was received by the operator
for the operator to submit a written request for review of the
assessment.
Revise 11 AAC 90.631(a) to provide that an operator may contest a
proposed penalty or fact of a violation by requesting a hearing in
accordance with AS 27.21.250(b) or within 30 days of the date of
service under 11 AAC 90.629(c), whichever is later.
Individual Civil Penalties
Add 11 AAC 90.635(a) and (b), 90.637(a) and (b), 90.639(a) through
(c),
[[Page 42924]]
and 90.641(a) through (d), concerning assessments of an individual
civil penalty against any corporate director, officer, or agent of a
corporate permittee who knowingly and willfully authorized, ordered or
carried out a violation, failure or refusal, to (1) identify when an
individual civil penalty may be assessed, (2) determine the amount of
an individual civil penalty, (3) identify procedures for assessment of
an individual civil penalty, and (4) identify when payment of the
penalty is due.
Petition To Designate Areas Unsuitable for Mining
Revise 11 AAC 90.701(a) to provide that any person having an
interest which is or may be adversely affected to have the right to
petition the Commissioner to have an area designated as unsuitable for
surface coal mining operations, or to have an existing designation
terminated, and to state that for the purpose of this action, a person
having an interest which is or may be adversely affected must
demonstrate how he or she meets an ``injury in fact'' test by
describing the injury to his or her specific affected interests and
demonstrate how he or she is among the injured.
Revise 11 AAC 90.701(b) to require that petitions must be filed at
the Alaska Department of Natural Resources.
Add 11 AAC 90.701(c)(1) to require that the Commissioner determine
what information must be provided by the petitioner to have an area
designated as unsuitable for surface coal mining operations and state
the minimum requirements for a complete petition.
Add 11 AAC 90.701(c)(2) to state that the Commissioner may request
that the petitioner provide other supplementary information which is
readily available.
Add 11 AAC 90.701(d)(1) to state that the Commissioner shall
determine what information must be provided by the petitioner to
terminate designations of lands as unsuitable for surface coal mining
operations and to state the minimum requirements for a complete
petition for termination.
Add 11 AAC 90.701(d)(2) to state that the Commissioner may request
that the petitioner provide other supplementary information which is
readily available.
Underground Mining, Subsidence, and Replacement of Water Supplies
Revise 11 AAC 90.085(a)(5), concerning the plan for protection of
the hydrologic balance, to add the requirement that the applicant's
determination of probable hydrologic consequences include findings on
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.
Revise 11 AAC 90.101(a) and (b) concerning an application for
underground mining, to require that the application include a survey
that identifies protected water supplies and all structures within the
applicable angle of draw, a 1:12,000 scale map, identification of the
pre-mining condition of all protected structures and water supplies, a
narrative discussing potential impacts, and a subsidence control plan.
Add 11 AAC 90.321(e), concerning the hydrologic balance and
drinking, domestic or residential water supplies, to (1) require that
the permittee must 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 Commissioner received the permit application for the
activities causing the loss, contamination or interruption, and (2)
state that the baseline hydrologic information required in 11 AAC
90.043-11 AAC 90.051 will be used to determine the impact of mining
activities upon the water supply.
Revise 11 AAC 90.461(b), concerning applications for underground
mining, to require that the permittee must either (1) adopt measures
consistent with known technology that prevent subsidence from causing
material damage to the extent technologically and economically
feasible, maximize mine stability, and maintain the value and
reasonably foreseeable use of surface lands, or (2) adopt mining
technology that provides for planned subsidence in a predictable and
controlled manner and, in doing so, employ mining technology that
provides for planned subsidence in a predictable and controlled manner
to minimize material damage to the extent technologically and
economically feasible to non-commercial buildings and occupied
residential dwellings and structures related thereto, except that
measures required to minimize material damage to such structures are
not required, if the permittee has the written consent of their owners,
or, unless the anticipated damage would constitute a threat to health
or safety, the costs of such measures exceed the anticipated costs of
repair.
Add 11 AAC 90.461(g), concerning subsidence control, to require
that, (1) within a schedule approved by the Commissioner, the operator
shall submit a detailed plan of the underground workings, and (2) the
detailed plan shall include maps and descriptions, as appropriate, of
significant features of the underground mine, including the size,
configuration, and approximate location of pillars and entries,
extraction ratios, measure taken to prevent or minimize subsidence and
related damage, areas of full extraction, and other information
required by the Commissioner, and to provide that, upon request of the
operator, information submitted with the detailed plan may be held as
confidential, in accordance with the requirements of AS 27.21.100(c).
Add 11 AAC 90.461(g)(1) and (2), concerning damage caused by
subsidence within the angle of draw, to allow, if damage to any non-
commercial building or occupied residential dwelling or structure
related thereto occurs as a result of earth movement within an area
determined by projecting a specified angle of draw from the outermost
boundary of any underground mine workings to the surface of the land, a
rebuttable presumption that the permittee caused the damage, which will
apply to a 30-degree angle of draw unless a permittee or permit
applicant, based on a site-specific analysis, requests that the
presumption apply to an angle of draw different from that established
in 11 AAC 90.461(g)(1) (an applicant must demonstrate and the
Commissioner must determine in writing that the proposed angle of draw
has a more reasonable basis than the standard set forth in 11 AAC
90.461(g)(1), based on a site-specific geotechnical analysis of the
potential surface impacts of the mining operation).
Add 11 AAC 90.461(g)(3) and (4) to state that if the permittee was
denied access to the land or property for the purpose of conducting the
pre-subsidence survey in accordance with 11 AAC 90.101(a), no
rebuttable presumption will exist, and that the presumption will be
rebutted if, for example, the evidence established that: the damage
predated the mining in question, the damage was proximately caused by
some other factor or factors and was not proximately caused by
subsidence, or the damage occurred outside the surface area within
which subsidence was actually caused by the mining in question.
Add 11 AAC 90.461(g)(5) to require, in any determination whether
damage to protected structures was caused by subsidence from
underground mining,
[[Page 42925]]
that all relevant and reasonably available information will be
considered by the Commissioner.
Add 11 AAC 90.461(h), to set forth requirements for an additional
bond amount, when subsidence-related material damage to land,
structures or facilities or facilities protected under (e), or when
contamination, diminution, or interruption to a water supply protected
under 11 AAC 90.321(e) occurs.
Extraction of Coal Incidental to the Extraction of Other Minerals
Revise 11 AAC 90.901(a)(2), concerning applicability of the Alaska
program, to provide an exemption from the program for extraction of
coal incidental to the extraction of other minerals if the coal is 16
\2/3\ percent or less of the total tonnage of minerals removed and
approved in accordance with 11 AAC 90.650 through 11 AAC 90.657.
Add Article 13, concerning extraction of coal incidental to the
extraction of other minerals, to define at 11 AAC 90.650(a) through (e)
cumulative measurement period, cumulative production, cumulative
revenue, mining area, and other minerals; set forth at 11 AAC 90.651(a)
through (e), application requirements and procedures; set forth at 11
AAC 90.652 minimum requirements for the contents of application for
exemption; set forth at 11 AAC 90.653(a) through (c), what information
submitted must be made available to the public; set forth at 11 AAC
90.654(a) and (b) which requirements must be satisfied in order to
qualify for an exemption from the requirements of 11 AAC 90.901; set
forth at 11 AAC 90.655(a) through (f), conditions of an exemption if
approved and rights of inspection; set forth at 11 AAC 90.656(a) and
(b), the ability to stockpile coal qualifying for exemption; set forth
at 11 AAC 90.657(a) and (b), revocation and enforcement authority under
the Alaska program; and set forth at 11 AAC 90.658(a) and (b),
reporting requirements.
Definitions
Revise AAC 90.911 by modifying or adding definitions for ``coal
mine waste,'' ``collateral bond,'' ``community or institutional
building,'' ``cumulative impact area,'' ``drinking, domestic, or
residential water supply,'' ``impounding structure,'' ``material
damage,'' ``non-commercial building,'' ``occupied residential dwelling
and structures related thereto,'' ``other treatment facilities,''
``previously mined area,'' ``qualified laboratory,'' ``refuse pile,''
``replacement water supply,'' ``siltation structure,'' ``thick
overburden,'' and ``thin overburden.''
Demonstrations
Alaska proposes to demonstrate that the Alaska Dam Safety
regulations incorporate the NRCS TR-60 requirements concerning
downstream hazard evaluations of impoundments (proposed rule 11 AAC
90.336(f)).
Alaska proposes to demonstrate the necessity for an exemption from
topsoil removal where permafrost or cold weather conditions exist in
the State of Alaska (proposed rule 11 AAC 90.311(g)).
Alaska proposes to demonstrate that the Commissioner can determine
who should approve minimum requirements for shrub stocking and planting
arrangements on land where the post mining land use is designated as
fish and wildlife habitat, recreation, shelter belts, and forestry
(proposed rule 11 AAC 90.457(c)(3)).
Alaska proposes to demonstrate that no prime farmlands exist in the
State of Alaska (no associated proposed rule language).
Alaska proposes to demonstrate that the certified statement that
all applicable reclamation activities have been accomplished in
accordance with the requirements of AS 27.21, 11 AAC 90, and the
approved reclamation plan (required from the applicant in the
application for each phase of bond release) need not be notarized to be
enforceable (proposed rule 11 AAC 90.211(a)).
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Alaska program.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your comments should be specific, pertain only to the
issues proposed in this rulemaking, and include explanations in support
of your recommendations. We will not consider or respond to your
comments when developing the final rule if they are received after the
close of the comment period (see Dates). We will make every attempt to
log all comments into the administrative record, but comments delivered
to an address other than the Denver Field Division may not be logged
in.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: SATS No. AK-006'' and your name and return address in your
Internet message. If you do not receive a confirmation that we have
received your Internet message, contact the Denver Field Division at
303-844-1400 ext. 1424.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t. on
August 3, 2004. If you are disabled and need special accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold the hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak, have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to
[[Page 42926]]
discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Procedural Determinations
Executive Order 12630-Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because 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 certifies 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. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation was not considered a
major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the state
submittal, which is the subject of this rule, is based upon counterpart
federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 902
Intergovernmental relations, Surface mining, Underground mining.
Dated: June 18, 2004.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 04-16287 Filed 7-16-04; 8:45 am]
BILLING CODE 4310-05-P