North Dakota Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

North Dakota Permanent Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving a proposed amendment to the North Dakota

permanent regulatory program (hereinafter referred to as the ``North

Dakota program'') under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). The amendment consists of changes to provisions of

North Dakota's rules concerning permit application requirements, permit

application approval, transportation facility plans, performance

standards regarding impoundment stability, bald and golden eagles, and

coal mine waste impoundments. The amendment is intended to revise the

North Dakota program to be consistent with the corresponding Federal

regulations.

EFFECTIVE DATE: March 15, 1994.

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 as administered by the Public Service

Commission and Industrial Commission. General background information on

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

disposition of comments, and 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 934.15 and 934.16.

II. Proposed Amendment

By letter dated April 21, 1993 (Administrative Record No. ND-P-01),

North Dakota submitted a proposed amendment (``Amendment XVII'') to its

permanent program pursuant to SMCRA. North Dakota proposed this

amendment: (1) In response to program amendments required at 30 CFR

Part 934.16 (m), (o), (p), (q), (r), (s), (t), & (v), codified in the

January 9, 1992, Federal Register (57 FR 827); (2) to provide minor

editorial revisions, and (3) to propose a State initiative to delete a

requirement that the Commission approve subsoil respreading prior to

the redistribution of topsoil by the operator.

OSM published a proposed rule in the May 19, 1993, Federal Register

(58 FR 29153) announcing receipt of the amendment and inviting public

comment on its adequacy (Administrative Record No. ND-P-7). The public

comment period ended June 18, 1993. No substantive comments were

received. The public hearing, scheduled for June 14, 1993, was not held

because no one requested an opportunity to testify.

During its review of the amendment, OSM identified concerns

relating to the proposed provisions of the North Dakota Administrative

Code (NDAC) 69-05.2-10-03(1) regarding permit denial for unpaid civil

penalties for certain violations. OSM notified North Dakota of the

concerns by letter dated October 6, 1993 (Administrative Record No. ND-

P-10). North Dakota responded in a letter dated November 23, 1993, by

submitting revisions to its proposed program amendment at NDAC 69-05.2-

10-03(1)(a) (Administrative Record No. ND-P-11) that would require that

the Commission not issue a permit if there are delinquent civil

penalties under the North Dakota Century Code (NDCC) sections 38-14.1-

32 and 38-12.1-08, SMCRA, or any law or rule in any state enacted under

federal law or regulation pertaining to air or water environmental

protection, incurred in connection with any surface coal mining and

reclamation operation. OSM then reopened the public comment period in

the December 8, 1993, Federal Register (58 FR 64528); Administrative

Record No. ND-P-12). The public comment period closed on December 23,

1993.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed North Dakota program amendment as submitted on April 21, 1993,

and revised on November 23, 1993.

1. Provisions Not Discussed

North Dakota proposes a few non-substantive editorial revisions to

certain of its rules. Because these proposed revisions to its

previously approved rules are non-substantive in nature, the Director

finds that these proposed revisions are not inconsistent with or less

effective than the Federal regulations, and is approving the proposed

non-substantive editorial revisions.

2. Permit Applications: List of Violation Notices

At NDAC 69-05.2-06-02(3), North Dakota proposes to revise the

requirement that each permit application contain a ``violation list''

as required by NDCC 38-14.1-14(1)(g) (for a discussion of the

referenced statutory provision, see 57 FR 807, 811 (January 9, 1992)).

Under the proposed revision to NDAC 69-05.2-06-02(3), the phrase

``violation list'' will be replaced by the phrase ``list of all

violation notices.''

In a previous rulemaking action concerning the North Dakota program

(57 FR 807, 812, January 9, 1992), OSM had noted the term ``violation

notice'' is broader than and encompasses the term ``notice of

violation'' (NOV). For instance, the term ``violation notice,'' as

defined in the Federal and the North Dakota program, includes cessation

orders, notices of noncompliance, and other citations, regardless of

terminology, in addition to NOV's (see citation above). OSM thus found

that the existing language at NDAC 69-05.2-06-02(3), by referencing the

requirement of NDCC 38-14.1-14(1)(g) for a list of ``notices of

violation,'' was not as inclusive as the Federal regulation language at

30 CFR 778.14(c), which requires a ``list of all violation notices.''

North Dakota now proposes to revise the existing phrase so that it is

substantively the same as the corresponding phrase in the Federal

requirement; i.e., the proposed revision would interpret the statutory

provision to encompass the broader term ``violation notice,'' just as

the Federal regulation interprets SMCRA. The Director therefore finds

that the proposed phrase ``list of all violation notices'' is no less

effective than the Federal regulation requirement, and is approving the

proposed revision. For a discussion of the remainder of this North

Dakota provision, the reader is directed to the earlier OSM rulemaking

action (57 FR 807, 811; January 9, 1992; Finding No. 6).

The Director notes that the approval of this proposed revision

satisfies the required amendment at 30 CFR 934.16(m) that was placed on

the North Dakota program in the earlier rulemaking action (57 FR 807,

812, January 9, 1992), and is herewith removing that requirement.

3. Permit Applications: Plans for Support Facilities

North Dakota proposes to revise NDAC 69-05.2-09-01(4) to require

that plans for support facilities be sufficient to demonstrate

compliance with either section 69-05.2-24-08 or section 69-05.2-24-09,

as applicable. Section 69-05.2-24-08 contains the performance standards

for transportation facilities other than roads, while section 69-05.2-

24-09 contains the performance standards for support facilities and

utility installations.

The corresponding Federal requirement at 30 CFR 780.38 requires

that plans for support facilities be sufficient to demonstrate

compliance with 30 CFR 816.181. This latter section contains the

performance standards for support facilities, which, under the Federal

provisions, includes all transportation facilities other than roads

(see 53 FR 45190, 45197, November 8, 1988). Thus, North Dakota's

proposal would require plans in permit applications to demonstrate

compliance with the equivalent performance standards as those required

by the Federal rule. The Director finds that the proposed revision to

NDAC 69-05.2-09-01(4) is no less effective than the Federal regulation

in meeting SMCRA's requirements and is approving the proposed change.

The Director notes that the approval of this provision satisfies

the required amendment at 30 CFR 934.16(o) that was placed on the North

Dakota program in a January 9, 1992, rulemaking action (57 FR 807,

814), and is herewith removing that requirement.

4. Permit Approval/Denial: Review of Violations

a. Proposed Subsection (1)--Applicable Laws

North Dakota proposes to revise NDAC 69-05.2-10-03 (1) so that it

would provide as follows:

1. The Commission will not issue the permit if any surface coal

mining and reclamation operation owned or controlled by either the

applicant or by any person who owns or controls the applicant is

currently in violation of any law or rule of this state, [SMCRA], or

any law or rule in any state enacted under Federal law or regulation

pertaining to air or water environmental protection, incurred in

connection with any surface coal mining and reclamation operation,

or if any of the following are outstanding:

a. Delinquent civil penalties under [NDCC] sections 38-14.1-32

and 38-12.1-08, [SMCRA], or any law or rule in any state enacted

under federal law or regulation pertaining to air or water

environmental protection, incurred in connection with any surface

coal mining and reclamation operation.

* * * * *

d. Unabated violations of federal and state laws, rules, and

regulations pertaining to air or water environmental protection

incurred in connection with any surface coal mining and reclamation

operation.

* * * * *

In this amendment, the State proposed changes to subsections (1)

and (1)(a).

The Federal rules at 30 CFR 773.15(b)(1) require that the

regulatory authority deny a permit if any surface coal mining and

reclamation operation owned or controlled by the applicant or by any

person who owns or controls the applicant is currently in violation of

``the Act or any other law, rule or regulation referred to in this

paragraph,'' as indicated by any available information, including the

list of violation notices submitted in the permit application. Among

the specified violations are:

Federal and State failure-to-abate cessation orders, unabated

Federal and State imminent harm cessation orders, delinquent civil

penalties issued pursuant to section 518 of the Act, bond

forfeitures where violations upon which the forfeitures where based

have not been corrected, delinquent abandoned mine reclamation fees,

and unabated violations of Federal and State laws, rules, and

regulations pertaining to air or water environmental protection

incurred in connection with any surface coal mining operation * * *.

The reference to ``the Act'' in section 510(c) of SMCRA and 30 CFR

773.15(b)(1) includes SMCRA, its implementing regulations, and all

State and Federal programs approved under SMCRA (see 48 FR 44344, 44389

(September 28, 1983); 53 FR 38868, 38882-38883 (October 3, 1988); see

also 45 FR 82214, 82223 (December 15, 1980) (conditional approval of

North Dakota program); 57 FR 807, 816 (January 9, 1992)). Similarly,

the reference in proposed NDAC 69-05.2-10-03, subsection (1), to

violations of SMCRA is interpreted to mean violations of SMCRA, its

implementing regulations, and any State or Federal program approved

pursuant to SMCRA.

Regarding other environmental laws and rules, the State proposal at

NDAC 69-05.2-10-03, subsection (1), prohibits permit issuance for

current violations of ``any law or rule in any state * * * pertaining

to air or water environmental protection * * *'' (emphasis added). The

Federal regulation cited above prohibits permit issuance if any surface

coal mining and reclamation operation owned or controlled by the

applicant or by any person who owns or controls the applicant has

``unabated violations of Federal and State laws, rules, and regulations

pertaining to air or water environmental protection * * *.'' Thus the

Federal provision, unlike the State proposal, encompasses Federal as

well as State laws, rules, and regulations. However, OSM notes that

existing NDAC 69-05.2-10-03(1)(d), which is not proposed for revision

and which is quoted above, prohibits the Commission from issuing a

permit if there are outstanding ``* * * [u]nabated violations of

Federal and State laws, rules, and regulations pertaining to air or

water environmental protection * * *'' (emphasis added). As a result,

even though the proposed revision at NDAC 69-05.2-10-03(1) is less

inclusive than the Federal regulation requirement at 30 CFR

773.15(b)(1), the North Dakota program as proposed would nevertheless

contain the same requirements for prohibiting permit issuance for

current violations of Federal and State laws, rules, and regulations

pertaining to air or water environmental protection. Therefore the

Director finds the proposed revision to NDAC 69-05.2-10-03(1) to be no

less effective than the Federal regulation requirements, and is

approving the proposed revision.

b. Proposed Subsection (1)(a)--Delinquent Civil Penalties

At NDAC 69-05.2-10-03, subsection (1)(a), North Dakota proposes

revisions that would require that the Commission deny a permit if there

are outstanding delinquent civil penalties under NDCC sections 38-14.1-

32 and 38-12.1-08, SMCRA, or any law or rule in any State, enacted

under Federal law or regulation, pertaining to air or water

environmental protection, if incurred in connection with a surface coal

mining and reclamation operation.

The Federal rule at 30 CFR 778.15(b)(1) requires that the

regulatory authority deny a permit if, among other circumstances,

``civil penalties issued pursuant to section 518 of the Act'' are

delinquent. The reference to ``the Act'' includes SMCRA, its

implementing regulations, and all State and Federal programs approved

under SMCRA (see 48 FR 44344, 44389 (September 28, 1983); see also 53

FR 38868, 38882-38883 (October 3, 1988)). Accordingly, the reference in

the State proposal at NDAC 69-05.2-03, subsection (1)(a), to delinquent

civil penalties under SMCRA is interpreted to encompass civil penalties

under SMCRA, its implementing regulations, and all State and Federal

programs approved under SMCRA.

The State proposal at NDAC 69-05.2-03, subsection (1)(a), would

also require permit denial if civil penalties under ``any law or rule

in any State enacted under Federal law or regulation pertaining to air

or water environmental protection . . .'' are delinquent. In the

preamble to the Federal rule at 30 CFR 773.15(b)(1), OSM stated:

OSMRE intends to construe references to civil penalties in final

Sec. 773.15(b)(1) as referring only to those civil penalties that

arise from violations of the Act, its implementing regulations and

approved State or Federal programs * * *. Whether failure to pay

civil penalties arising under other laws is covered depends upon

whether such failure constitutes an unabated violation of other law

pertaining to air or water environmental protection.

53 FR 38868, 38882-38883 (October 3, 1988)

North Dakota's proposal would thus require permit denial for at

least the same delinquencies as would be required by the Federal

regulation; and it could be interpreted to require permit denial for

additional delinquencies beyond those required by the Federal

regulation. In accordance with section 505(b) of SMCRA and 30 CFR

730.11(b), the State regulatory authority has the discretion to impose

land use and environmental controls and regulations of surface coal

mining and reclamation operations that are more stringent than those

imposed under SMCRA and the Federal regulations.

Moreover, the State regulatory authority has the discretion to

impose land use and environmental controls and regulations of surface

coal mining and reclamation operations for which no Federal counterpart

provision exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate

that such State provisions shall not be construed to be inconsistent

with the Federal program. Therefore the Director finds that North

Dakota's proposed revision to NDAC 69-05.2-10-03(1)(a) is not

inconsistent with the Federal program requirements and is approving the

proposed revision.

The Director notes that the approval of the proposed provisions at

NDAC 69-05.2-10-03 (1) and (1)(a) (discussed in Finding Nos. 4a and 4b

above) satisfy the requirement amendment at 30 CFR 934.16(q) that was

placed on the North Dakota program in a January 9, 1992, rulemaking

action (57 FR 807, 817), and is herewith removing that requirement.

5. Permit Approval/Denial: Patterns of Violations

North Dakota proposes to revise NDAC 69-05.2-10-03, subsection (4),

so that it would provide, in part, as follows:

The Commission will not issue a permit if it finds the

applicant, anyone who owns or controls the applicant, or the

operator specified in the application, controls or has controlled

surface mining and reclamation operations with a demonstrated

pattern of willful violations of any law or rule of this state,

[SMCRA], or any state or federal program approved under [SMCRA], of

such nature and duration, and with resulting irreparable damage to

the environment as to indicate an intent not to comply with those

laws, rules or programs.

The Federal regulation at 30 CFR 773.15(b)(3) requires that the

regulatory authority deny a permit if it finds a demonstrated pattern

of willful violations of ``the Act.'' As discussed in Finding No. 4a

above, the reference to ``the Act'' in section 510(c) of SMCRA and 30

CFR 773.15(b)(3) includes SMCRA, its implementing regulations, and all

State and Federal programs approved under SMCRA.

Similarly, the reference in proposed NDAC 69-05.2-10-03(4) to

violations of SMCRA is interpreted to mean violations of SMCRA, its

implementing regulations, and any State or Federal program approved

pursuant to SMCRA. When so interpreted, the proposed language actually

addresses violations of State and Federal programs twice, since

proposed NDAC 69-05.2-10-03(4) refers to violations of both ``[SMCRA]''

and ``any State or Federal program approved under [SMCRA]''. OSM finds

that the additional language clarifies the implicit requirement.

In addition, North Dakota's proposal would include violations of

North Dakota laws and rules outside its SMCRA-approved program.

Therefore, the North Dakota proposal would encompass more violations

than those encompassed by the Federal regulation at 30 CFR

773.15(b)(3). In accordance with section 505(b) of SMCRA and 30 CFR

730.11(b), the State regulatory authority has the discretion to impose

land use and environmental controls and regulations of surface coal

mining and reclamation operations that are more stringent than those

imposed under SMCRA and the Federal regulations. Moreover, the State

regulatory authority has the discretion to impose land use and

environmental controls and regulations of surface coal mining and

reclamation operations for which no Federal counterpart provision

exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such

State provisions shall not be construed to be inconsistent with the

Federal program. Therefore the Director finds that North Dakota's

proposed revisions at NDAC 69-05.2-10-03(4) are not inconsistent with

the Federal program and is approving them.

The Director notes that the approval of the proposal satisfies the

required amendment at 30 CFR 934.16(r) that was placed on the North

Dakota program in a January 9, 1992, rulemaking action (57 FR 807, 817-

818), and is herewith removing that requirement.

Note regarding applicable persons in violation: NDAC 69-05.2-10-3,

subsection (4), as it was previously proposed by North Dakota (November

20, 1990; Administrative Record No. ND-L-01) and approved by OSM (57 FR

807, 817, January 9, 1992) applied the requirement for permit denial

based upon a pattern of willful violations to ``the applicant, anyone

who owns or controls the applicant, or the operator specified in the

application * * * .'' In this current proposal (April 21, 1993;

Administrative Record No. ND-P-01), the clause referring to anyone who

owns or controls the applicant has been omitted. On January 31, 1994,

OSM contacted North Dakota by telephone to determine whether this

language was intended to be deleted or whether its omission was an

editorial error. North Dakota responded that the clause was not

intended to be deleted but rather its omission from the submission was

an editorial error, and that the clause will be restored when the

revision is promulgated (Administrative Record No. ND-P-14). The

Director's approval of proposed NDAC 69-05.2-10-03(4) is based on this

understanding.

6. Permit Revisions, Approval/Denial: Violation Review

At NDAC 69-05.2-11-02(5)(d) [approval/denial of permit revisions],

North Dakota proposes to revise a reference to ``subsection 3 of

section 69-05.2-10-03 [permit approval/denial, review of violations]''

to ``subsection 6 of section 69-05.2-10-03.'' This revision corrects

the reference to reflect a recodification of that subsection that was

approved by OSM in a previous rulemaking action (57 FR 807; January 9,

1992). The Director finds that the revision references the correct

subsection and is approving the revision.

The Director notes that the approval of the proposal satisfies the

required amendment at 30 CFR 934.16(s) that was placed on the North

Dakota program in the January 9, 1992, rulemaking action (57 FR 807,

817-818), and is herewith removing that requirement.

7. Annual Maps: Acreage Listing

Under the North Dakota program at NDAC 69-05.2-13-02, a permittee

is required to submit two copies of an annual map to the Commission for

all permit areas by each February fifteenth. North Dakota proposes to

revise subsection (4)(e) of the provision to require that the required

annual map must clearly show, among other things, a tabular listing of

acreage within the permit area where bond has been totally released.

There are no Federal requirements regarding the submission of annual

maps of permit areas. In accordance with section 505(b) and 30 CFR

730.11(b), the State regulatory authority has the discretion to impose

land use and environmental controls and regulations of surface coal

mining and reclamation operations that are more stringent than those

imposed under SMCRA and the Federal regulations. Moreover, the State

regulatory authority has the discretion to impose land use and

environmental controls and regulations of surface coal mining and

reclamation operations for which no Federal counterpart provision

exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such

State provisions shall not be construed to be inconsistent with the

Federal program. Therefore, the Director finds that the State proposal

at NDAC 69-05.2-13-02(4)(e) is not inconsistent with the Federal

requirements and is approving the proposal.

8. Protection of Bald and Golden Eagles

North Dakota proposes to revise NDAC 69-05.2-13-08(3) by adding a

new sentence requiring that no surface mining activity may be conducted

in a manner that would result in the unlawful taking of any bald or

golden eagle or nests or eggs thereof. North Dakota further proposes to

add a new subsection (4) to NDAC 69-05.2-13-08 to add a specific

requirement that nothing in NDAC Article 69-05.2 authorizes the taking

of endangered or threatened species, or a bald or golden eagle, its

nest, or any of its eggs, in violation of the Endangered Species Act or

the Bald Eagle Protection Act. The proposed new sentence in subsection

(3) is substantively the same as the corresponding Federal requirement

at 30 CFR 816.97(c)(first sentence); and the proposed new subsection

(4) is substantively the same as the corresponding Federal requirement

at 30 CFR 816.97(d). Therefore the Director finds that the proposed

revisions at NDAC 69-05.2-13-08(3) and (4) are no less effective than

the Federal regulations in meeting SMCRA's requirements and is

approving the proposed revisions.

The Director notes that the approval of the proposal satisfies the

required amendment at 30 CFR 934.16(t) that was placed on the North

Dakota program in the January 9, 1992, rulemaking action (57 FR 807,

819), and is herewith removing that requirement.

9. Subsoil and Topsoil Redistribution

At NDAC 69-05.2-15-04(3), North Dakota proposes to delete the

requirement that the Commission approve the respreading of subsoil

prior to topsoil redistribution.

The Federal program does not impose any requirement for regulatory

authority approval of subsoil respreading prior to topsoil

redistribution. Additionally, North Dakota's proposal would not

conflict with any other program requirement, and the operator would

still be required to replace the full required subsoil and topsoil

depths in order to meet the bond release requirements of NDCC 38-14.1-

17(7)(b) and NDAC 69-05.2-12-12(6). Therefore, the Director finds that

the proposal is not inconsistent with any Federal requirements and will

assist in the administration of the North Dakota program, and is

approving the proposal.

10. Sedimentation Ponds: Design Standards and Stability Requirements

North Dakota proposes to revise certain sediment pond performance

standards at NDAC 69-05.2-16-09(13) and (16). Subsection (13) as

proposed would require that the upstream slop of a settled embankment

not be steeper than 3h:1v and that the downstream slope not be steeper

than 2h:1v. One proposed revision to subsection (16) would require that

embankment fill adjacent to structures, pipe conduits, and drainfill or

antiseep collars be compacted to the density of the surrounding fill by

hand tamping or by using manually directed power tampers or plate

vibrators. A second revision to subsection (16) would allow the

operator, in lieu of the specific design requirements of subsections

(11) through (16), to demonstrate that the structure's design has a

minimum static safety factor (SSF) of 1.3 for a normal pool with steady

state seepage saturation conditions. OSM notes that there exist in the

North Dakota program additional requirements for large or hazardous

impoundments, specified in subsection (17).

The Federal requirements for sediment ponds at 30 CFR 816.49 do not

contain specific design standards. However, 30 CFR 816.49(a)(3)(ii)

requires that small and nonhazardous ponds either have a minimum SSF of

1.3 for a normal pool with steady-state seepage saturation conditions,

or meet the requirements of 30 CFR 780.25(c)(3). This latter section

allows, in lieu of engineering tests to demonstrate compliance with the

minimum 1.3 SSF, engineering design standards to be established by

regulatory authorities, through the State program approval process,

that ensure stability comparable to a 1.3 minimum SSF.

OSM has reviewed North Dakota's existing and proposed design

standards at NDAC 69-05.2-16-09 subsections (11) through (16). These

include, among other things, minimum 5% height increase to allow for

settlement, minimum top widths (based in part on embankment height),

maximum side slopes (as described above), foundation clearing and

scarification, requirements for fill materials, and compaction

requirements. Based on this review, OSM is satisfied that these design

standards would ensure embankment stability comparable to a 1.3 SSF.

Further, the proposed provision in NDAC 69-05.2-16-09(16) that would

allow the use of other design parameters if a minimum 1.3 SSF is

demonstrated is substantively the same as the provision in the Federal

requirement at 30 CFR 816.49(a)(3)(ii) that allows impoundments to have

a minimum 1.3 SSF as an alternative to meeting specific design

standards approved in accordance with 30 CFR 780.25(c)(3). Therefore

the Director finds that North Dakota's proposed revisions to NDAC 69-

05.2-16-09(13) and (16) are no less effective than the Federal program

requirements and is approving the proposed revisions.

The Director notes that the approval of the proposal satisfies that

required amendment at 30 CFR 934.16(p) that was placed on the North

Dakota program in the January 9, 1992, rulemaking action (57 FR 807,

815), and is herewith removing that requirement.

11. Coal Processing Waste Impoundments: Dewatering

North Dakota proposes to revise NDAC 69-05.2-20-03(3) to require

that dams or embankments constructed of or impounding waste materials

be designed so that at least ninety percent of the water stored during

the design precipitation event can be removed within a ten-day period.

North Dakota also proposes to add a new subsection (4) to NDAC 69-05.2-

20-03 that would require that for such dams and embankments, at least

ninety percent of the water stored during the design precipitation

event be removed within the ten-day period following such an event. The

proposal is substantively identical to the Federal requirements at 30

CFR 816.84 (e) and (f). Therefore the Director finds that North

Dakota's proposed revisions to NDAC 69-05.2-20-03 (3) and (4) are no

less effective than the Federal program requirements and is approving

the proposed revisions.

The Director notes that the approval of the proposal satisfies the

required amendment at 30 CFR 934.16(v) that was placed in the North

Dakota program in the January 9, 1992, rulemaking action (57 FR 807,

821), and is herewith removing that requirement.

IV. Summary and Disposition of Comments

1. Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received, and because no one requested an opportunity to testify at a

public hearing, no hearing was held.

2. Agency Comments

Pursuant to section 503(b) of SMCRA and implementing regulations at

30 CFR 732.17(h)(11)(i), comments were solicited from various Federal

agencies with an actual or potential interest in the North Dakota

program. A summary of the comments, and the Director's responses to

them, appear below.

a. The State Conservationist of the Soil Conservation Service (U.S.

Department of Agriculture) and the Bureau of Mines (U.S. Department of

the Interior) responded that they had no comments (Administrative

Record Nos. ND-P-8b and ND-P-8a).

b. The Mine Safety and Health Administration (U.S. Department of

Labor) (MSHA) responded that the proposed amendment would not affect

MSHA's mandate and that it thus had no comments (Administrative Record

No. ND-P-9).

c. The U.S. Army Corps of Engineers (Corps) responded with a

technical comment on the proposed static safety factor for small and

nonhazardous impoundments at NDAC 69-05.2-16-09(16) (Administrative

Record No. ND-P-13). The Corps noted that there are many methods for

stability analysis, and that each can produce a different safety factor

for the same design and data. The Corps stated that where no particular

method of analysis is specified, the minimum SSF for seepage conditions

should not be less than 1.5.

The Federal regulations at 30 CFR 816/817.49(a)(3)(ii) specify only

the minimum 1.3 SSF for small, non-hazardous impoundments; they do not

specify methods of stability analysis. OSM's duty in reviewing State

program amendments (SPA's) like the one under consideration here is

limited to determining whether the SPA is ``in accordance with'' and

``consistent with'' SMCRA and its implementing regulations (see

sections 503(a)(1) and (a)(7) of SMCRA; see also 30 CFR 730.5). OSM

does not have the authority to require standards in excess of the

Federal regulations that implement SMCRA, and therefore cannot require

that North Dakota adopt the Corp's recommendation.

OSM also notes that under NDAC 69-05.2-09-09(1)(h), the plan for

each impoundment must be certified as meeting the requirements of the

North Dakota program using current, prudent engineering practices and

any design requirements established by the Commission. Further, under

NDCC 38-14.1-21(3)(a), the Commission may not approve a permit unless

the application affirmatively demonstrates, and the Commission finds in

writing, that the application is accurate and complete and that all

requirements of the North Dakota program, including the 1.3 minimum

SSF, have been complied with.

3. Environmental Protection Agency (EPA) Concurrence

Pursuant to 30 CFR 732.17 (h)(11(ii), OSM solicited the written

concurrence of the Administrator of the EPA with respect to those

provisions of the proposed program amendment which relate to air or

water quality standards promulgated under the authority of the Clean

Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401

et seq.) (Administrative Record No. ND-P-6).

No response was received from the EPA, Washington, DC office, and

their concurrence is not required on the proposed amendment, since it

did not address any requirements that would impact the Clean Water or

Clean Air Acts.

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), the Director provided the proposed

amendments to the SHPO and ACHP for comment. Neither SHPO nor ACHP

provided any comments to OSM.

V. Director's Decision

Based on the above findings, the Director approves North Dakota's

proposed program amendment as submitted on April 21, 1993, and

subsequently revised on November 23, 1993.

The Director has determined that the previously-required program

amendments, discussed in the Findings as follows: have been satisfied,

and is removing those requirements: Finding No. 2, 30 CFR 934.16(m)

[lists of violation notices]; Finding No. 3, Sec. 934.16(o) [support

facility plans]; Finding Nos. 4a and 4b, Sec. 934.16(q) [permit

approval/denial, review of violations]; Finding No. 5, Sec. 934.16(r)

[permit approval/denial, patterns of violations]; Finding No. 6,

Sec. 934.16(s) [permit revisions, violation review]; Finding No. 8,

Sec. 934.16(t) [protection of eagles]; Finding No. 10, Sec. 934.16(p)

[sediment pond design standards and stability]; and Finding No. 11,

Sec. 934.16(v) [dewatering of coal processing waste impoundments].

The Federal regulations at 30 CFR part 934, codifying decisions

concerning the North Dakota program, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

Compliance With Executive Order 12866

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

and Budget under Executive Order 12866 (Regulatory Planning and

Review).

Compliance With 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 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 12550) and 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

requirements of 30 CFR parts 730, 731, and 732 have been met.

Compliance With the 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 of 1969 (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by the Office of Management and Budget under the

Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Compliance With the 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. Hence, 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 934

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 8, 1994.

Raymond L. Lowrie,

Assistant Director Western Support Center.

For the reasons set out in the preamble, title 30, chapter VII,

subchapter T, of the Code of Federal Regulations is amended as set

forth below.

PART 934--NORTH DAKOTA

1. The authority citation for part 934 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 934.15 is amended by adding paragraph (q) to read as

follows:

Sec. 934.15 Approval of regulatory program amendments.

* * * * *

(q) The following provisions of the North Dakota Administrative

Code, as submitted on April 21, 1993 (Amendment XVII), and revised on

November 23, 1993, are approved effective March 15, 1994: 69-05.2-06-

02(3) (permit applications, violation information); 69-05.2-09-01(4)

(permit applications, support facility plans); 69-05.2-10-03 (1),

(1)(a), & (4) (permit approval/denial, violation review); 69-05.2-13-

02(4)(e) (annual maps/information); 69-05.2-13-08 (3) through (6)

(protection of eagles and recodification); 69-05.2-15-04(3)

(resoiling); 69-05.2-16-09 (13), (14), & (16) (sediment ponds,

performance & design standards); and 69-05.2-20-03 (3) & (4) (coal

processing waste impoundments, dewatering).

Sec. 934.16 [Amended]

3. Section 934.16 is amended by removing and reserving paragraphs

(m), (o) through (t), and (v).

[FR Doc. 94-5974 Filed 3-14-94; 8:45 am]

BILLING CODE 4310-05-M