North Dakota Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-031; Amendment XXI]

North Dakota Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed program amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the North

Dakota regulatory program (hereinafter, the ``North Dakota program'')

under the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

The proposed amendment consists of revisions to and additions of rules

pertaining to: Areas unsuitable for mining; permit applications

(environmental monitoring plans); permit application approval

procedures; permit revisions, renewals, and transfer or sale;

performance bond; resoiling performance standards; sediment pond

performance standards; contemporaneous reclamation performance

standards; and enforcement actions. The amendment is intended to revise

the North Dakota program to be consistent with the corresponding

Federal regulations, clarify ambiguities, correct cross-references, and

improve program efficiency.

This document sets forth the times and locations that the North

Dakota 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 procedures

that will be followed regarding the public hearing, if one is

requested.

DATES: Written comments must be received by 4:00 p.m., m.s.t. January

9, 1995. If requested, a public hearing on the proposed amendment will

be held on January 3, 1995. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.s.t. on December 27, 1994.

ADDRESSES: Written comments should be mailed or hand delivered to Guy

Padgett at the address listed below.

Copies of the North Dakota program, the proposed amendment, 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 Casper Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining

Reclamation and Enforcement, 100 East B Street, Room 2128, Casper, WY

82601-1918, Telephone: (307) 261-5776

Edward J. Englerth, Director, Reclamation Division, North Dakota Public

Service Commission, Capitol Building, Bismarck, ND 58505-0165,

Telephone: (701) 224-4092

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

On December 15, 1980, the Secretary of the Interior conditionally

approved the North Dakota program. General background information on

the North Dakota program, including the Secretary's findings, the

disposition of comments, and the conditions of approval of the North

Dakota program can be found in the December 15, 1980, Federal Register

(45 FR 82214). Subsequent actions concerning North Dakota's program and

program amendments can be found at 30 CFR 934.12, 934.13, 934.15,

934.16, and 934.30.

II. Proposed Amendment

By letter dated November 10, 1994, North Dakota submitted a

proposed amendment to its program pursuant to SMCRA (Amendment number

XXI, Administrative Record No. ND-V-1). North Dakota submitted the

proposed amendment in response to the required program amendments at 30

CFR 934.16(u) and at its own initiative. The provisions of the North

Dakota Administrative Code (NDAC) that North Dakota proposes to revise

or add are: NDAC 69-05.2-04-07(3), lands unsuitable for mining; NDAC

69-05.2-05-09, permit applications (environmental monitoring plans);

NDAC 69-05.2-06-01(2), permit applications (identification of

interests); NDAC 69-05.2-06-02, permit applications (compliance

information); NDAC 69-05.2-10-03(5), criteria for permit approval; NDAC

69-05.2-11-02, permit revisions; NDAC 69-05.2-11-03, permit renewals;

NDAC 69-05.2-11-06, transfer, sale, or assignment of permit rights:

NDAC 69-05.2-12-09(2), performance bond (period of liability); NDAC 69-

05.2-15-02(2a), performance standards (suitable plant growth material,

removal); NDAC 69-05.2-16-09(7) and (20), performance standards

(sediment ponds); NDAC 69-05.2-21-01(2) performance standards

(backfilling and grading, timing requirements); and NDAC 69-05.2-28-03,

inspection and enforcement (cessation orders). The specific changes and

additions proposed by North Dakota are described below.

1. NDAC 69-05.2-04-07(3a) [lands unsuitable for mining].

North Dakota proposes to revise a cross-reference from NDAC 69-

05.2-04-05(3) to North Dakota Century Code (NDCC) 38-14.1-05(3).

2. NDAC 69-05.2-05-09 [permit applications (environmental

monitoring plans)].

North Dakota proposes to add this new rule, which would allow the

consolidation of monitoring plans for several permits authorizing a

single mining operation into a single consolidated monitoring plan.

Such consolidated monitoring plans would be subject to the approval

procedures for permit revisions; each individual permit would have to

be revised to describe its individual monitoring plans proposed to be

subject to review at midterm or renewal of each individual permit; and

a permittee would be allowed to propose modifications to the

consolidated monitoring plan by applying for a permit revision to the

most recently issued of the individual permits included in the plan.

The monitoring plans proposed for consolidation would be those required

by NDAC article 69-05.2 and NDCC Chapter 38-14.1.

North Dakota also appends to its proposed amendment a narrative

statement further describing how much consolidated monitoring plans

would be administered and enforced. Among other things, the narrative

states that the intent of the rule is directed toward ground water

monitoring, surface water monitoring, alluvial valley floor monitoring,

and fish and wildlife monitoring.

3. NDAC 69-05.2-06-01(2) [permit applications (identification of

interests)].

North Dakota proposes to revise this rule to change the point

during the approval process at which the applicant must update

ownership and control information; currently, the rule requires this

after the application is approved but before the permit is issued; the

proposed revision would require this when the application is deemed

ready for approval but before the permit is issued.

4. NDAC 69-05.2-06-02(6) [permit applications (compliance

information)].

Similar to the rule discussed above, North Dakota's proposed

revision would change the point at which a permit applicant must update

compliance information, to after the application is deemed ready for

approval but before the permit is issued.

5. NDAC 69-05.2-10-03(5) [criteria for permit approval].

Similar to the two rules discussed above, North Dakota's proposed

revision would change the point at which the commission would make its

decision on application approval or disapproval in light of updated

ownership and control and compliance information.

6. NDAC 69-05.2-11-02(1)(d) [permit revisions].

North Dakota proposes to revise this rule to correct a cross-

reference from NDAC 69-05.2-11-02(5) to subsection (2).

7. NDAC 69-05.2-11-03(5c) [permit renewals].

North Dakota proposes to revise this rule to correct a cross-

reference from NDAC 69-05.2-11-03(3) to subsection (6).

8. NDAC 69-05.2-11-06(1c) [transfer, sale, or assignment of permit

rights].

North Dakota proposes to revise this rule to correct a cross-

reference from NDAC 69-05.2-11-06(2) to subsection (4).

9. NDAC 69-05.2-12-09(2) [performance bond (period of liability)].

North Dakota proposes to revise this rule to correct a cross-

reference from NDAC 69-05.2-22-07(5) to subsection (4j).

10. NDAC 69-05.2-15-02(2a) [performance standards (suitable plant

growth material, removal)].

North Dakota proposes to revise this rule by deleting the

requirement that the topsoil removal operation for an area be approved

by the commission prior to any other disturbances.

11. NDAC 69-05.2-16-09(7) [performance standards (sediment ponds)].

North Dakota proposes to revise this rule to require that for

sediment ponds designed to contain the ten-year, twenty-four-hour

storm, there must be no spillway outflow from the design event or

lesser event, unless multiple runoff events occur before the pond can

be dewatered in accordance with the permit.

12. NDAC 69-05.2-16-09(20) [performance standards (sediment

ponds)].

North Dakota proposes to revise this rule to require that

impoundments not meeting the criteria of subsection (17) must be

examined at least quarterly.

13. NDAC 69-05.2-21-01(2) [performance standards (backfilling and

grading, timing requirements)].

North Dakota proposes to revise this rule to allow the commission

to approve additional time, as well as additional distance, for rough

backfilling and grading.

14. NDAC 69-05.2-28-03(6) [inspection and enforcement (cessation

orders)].

North Dakota proposes to revise this rule by deleting reclamation

operations from those operations that, conducted without a valid

permit, under some circumstances constitute significant imminent

environmental harm.

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 North Dakota program.

1. Written Comments

Written comments should be specific, 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 Casper Field Office will not

necessarily be considered in the final rulemaking or included in the

administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

m.s.t. on December 27, 1994. The location and time of the hearing will

be arranged with those persons requesting the hearing. If no one

requests an opportunity to testify at the public hearing, the hearing

will not be held.

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. 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 testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

If only one person requests an opportunity to testify at a hearing,

a public 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

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR

730.11, 731.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface mining, Underground mining.

Dated: December 1, 1994.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

[FR Doc. 94-30347 Filed 12-8-94; 8:45 am]

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