Missouri Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925

Missouri Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with certain exceptions and additional

requirements, a proposed amendment to the Missouri regulatory program

(hereinafter referred to as the ``Missouri program'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). Missouri proposed

revisions to rules pertaining to definitions, topsoil redistribution,

impoundment design, disposal of coal processing and noncoal waste,

backfilling and grading, coal exploration, fish and wildlife plan,

permit approval findings, notice of violations, and eligibility for

small operators assistance. The amendment is intended to revise the

State program to be consistent with the corresponding Federal

regulations and SMCRA, clarify ambiguities, and improve operational

efficiency.

EFFECTIVE DATE: July 13, 1995.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Telephone: (816) 374-6405.

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Program

On November 21, 1980, the Secretary of Interior conditionally

approved the Missouri program. General background information on the

Missouri program, including the Secretary's findings, the disposition

of comments, and the conditions of approval of the Missouri program can

be found in the November 21, 1980, Federal Register (45 FR 77017).

Subsequent actions concerning Missouri's program and program amendments

can be found at 30 CFR 925.12, 925.15, and 925.16.

II. Proposed Amendment

By letter dated February 10, 1995 (administrative record No. MO-

612), Missouri submitted a proposed amendment to its program pursuant

to SMCRA (30 U.S.C. 1201 et seq.). Missouri submitted the proposed

amendment with the intent of satisfying the required program amendments

at 30 CFR 925.16(b)(4), (p)(9), and (q)(1) through (q)(5), and at its

own initiative to improve its program. The amendment also contains

nonsubstantive revisions to eliminate editorial and typographical

errors and to accomplish necessary recodification required by the

addition or deletion of provisions. The provisions of 10 Code of State

Regulations (CSR) that Missouri proposed to revise were: (1) 10 CSR 40-

3.030(4) to require that contamination of topsoil be prevented during

redistribution; (2) 10 CSR 40-3.040(10)(B)5 to reference the January

1991, U.S. Natural Resources Conservation Service (formerly the Soil

Conservation Service) technical document, Practice Standards 378,

concerning impoundment design; (3) 10 CSR 40-3.110(3)(A)1 to clarify

that the requirements of this section apply to coal seams, combustible

materials, and acid- and toxic-forming materials, to require that coal

processing waste and noncoal waste be covered in accordance with the

regulations for disposal of coal processing waste at 10 CSR 40-3.080,

and to delete the existing requirement that exposed coal seams and

combustible materials, including coal processing waste, be covered with

a

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minimum of 4 feet of nontoxic- and nonacid-producing materials; (4) 10

CSR 40-3.110(6)(B) to provide that the regulations for repair of rills

and gullies at 10 CSR 40-3.110(6)(A) apply, on areas that have been

previously mined, only after final grading of the area when topsoil or

a topsoil substitute is not available; (5) 10 CSR 40-6.010(2)(H) to add

a definition of ``Secretary;'' (6) 10 CSR 40-6.020(2)(A) and (3)(A) to

clarify that these regulations concern exploration activities outside

of a permit area; (7) 10 CSR 40-6.050(7) (C) and (D), and 10 CSR 40-

6.120(12) (C) and (D) to specify the information that must be included

in a fish and wildlife plan and that, when the plan does not include

enhancement measures, it must include an explanation of why enhancement

is not practicable; (8) 10 CSR 40-6.070(8)(M) to require that the

Director of the Missouri program must find, prior to permit approval

for a proposed remining operation where the applicant intends to

reclaim in accordance with the requirements of 10 CSR 40-4.080, that

the site of the operation is a previously mined area; (9) at 10 CSR 40-

8.010(1)(A)72 the definition of ``previously mined area;'' (10) at 10

CSR 40-8.010(1)(A)84 the definition of ``road;'' (11) 10 CSR 40-

8.030(7)(A) to delete the requirement that modification, termination,

or vacating of notice of violations must be in accordance with the

regulation at 10 CSR 40-8.040; (12) 10 CSR 40-8.040(9) to delete the

definition of ``habitual violator;'' and (13) 10 CSR 40-8.050(2)(B) to

change the eligibility requirement of coal production of 100,000 tons

per year to 300,000 tons per year for a small operator assistance

applicant.

OSM announced receipt of the proposed amendment in the March 2,

1995, Federal Register (41 FR 11640), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. MO-618).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on April 3, 1995.

During its review of the amendment, OSM identified concerns

relating to the provisions of Missouri's rules at 10 CSR 40-

3.140(1)(A), roads and control of air pollution attendant to erosion;

10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), permit application

requirements for a fish and wildlife plan; and 10 CSR 40-8.050(2)(B),

small operator assistance program. OSM notified Missouri of the

concerns by letter dated April 10, 1995 (administrative record No. MO-

627).

Missouri responded by telephone on May 9, 1995, that it would not

submit revisions to the amendment and that OSM should proceed with the

publishing of this final rule Federal Register notice (administrative

record No. MO-629).

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with certain exceptions and additional

requirements, that the proposed program amendment submitted by Missouri

on February 10, 1995, is no less effective than the corresponding

Federal regulations and no less stringent than SMCRA. Accordingly, the

Director approves the proposed amendment.

1. Editorial Revisions to Missouri's Rules

Missouri proposed revisions to the following previously-approved

rules that consist of minor editorial changes or corrections of

referenced citations due in part to recodification (corresponding

Federal regulation provisions are listed in parentheses):

10 CSR 40-3.100(5)2 (30 CFR 816.97(g)(3)), concerning

distribution of plants to maximize benefit to fish and wildlife, by

replacing a semicolon with a period at the end of a sentence;

10 CSR 40-3.100(6) (30 CFR 816.97(h)), concerning cropland as an

alternative postmining land use, by replacing the term ``fields''

with ``reclaimed lands;''

10 CSR 40-3.100(7) (30 CFR 816.97(h)), concerning use of

greenbelts for residential, public service, or industrial land uses,

by deleting the ``s'' from the word ``lands;''

10 CSR 40-3.060(1)(L)1 (30 CFR 816.71(i)(1)), concerning the

prohibition of placing coal processing wastes in head-of-hollow or

valley fills, by correcting the citation of the reference for the

requirements for the disposal of coal-processing waste in excess

spoil fills at 10 CSR 40-3.080(4);

10 CSR 40-3.060(1)(O) (30 CFR 816.71(j)), concerning disposal of

excess spoil, by correcting the citation of the reference to the

requirements for permit application approval of the plan for return

of coal processing waste to abandoned underground workings at 10 CSR

40-6.120(17);

10 CSR 40-3.080(8)(B) (30 CFR 816.89(b)), concerning the final

disposal of noncoal wastes, by correcting the citation of the

reference for revegetation requirements for surface coal mining

operations at 10 CSR 40-3.120.

10 CSR 40-3.110(3)3 (30 CFR 816.102(f) and 816.41(a)),

concerning the prohibition of disposal or storage of acid-forming or

toxic-forming material in proximity to a drainage course, by adding

the word ``forming'' in the phrase ``acid-forming or toxic-forming

material;''

10 CSR 40-6.030(1)(C)(3) (30 CFR 778.13(c)(3)), concerning

identification of interests for legal and financial permit

application requirements, by correcting the citation of the

reference for the permit condition that requires submittal of

information after receipt of a cessation order at 10 CSR 40-

6.070(13)(E);

10 CSR 40-6.030(5)(B) (30 CFR 778.17(b), concerning permit

application requirements, by correcting the citation of the

reference for information required for permit terms in excess of 5

years at 10 CSR 40-6.070(12)(A);

10 CSR 40-6.060(4)(D)(4) (30 CFR 785.17(d)(4)), concerning the

requirement on prime farmland that the State conservationist review

and comment on the proposed method of soil reconstruction, by

correcting the citation of the reference for permit application

requirements for a plan for soil reconstruction, replacement, and

stabilization at 10 CSR 40-6.060(4)(C)(2); and

10 CSR 40-6.070(9)(A)1, 6.070(9)(A)2.A, and 6.070(9)(A)2.B (30

CFR 773.15(c)(6) and 701.11(d)), concerning criteria for permit

approval or denial for existing structures, by correcting the

citation of the reference for exemptions for existing structures at

10 CSR 40-8.070(2)(D) (1)(A), (1)(B) and (1)(C);

The Director finds that the proposed revisions to these previously-

approved rules, which are editorial in nature, do not make these

proposed Missouri rules less effective than the Federal regulations.

The Director approves the revisions proposed to these rules.

2. Substantive Revisions to Missouri's Rules That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

Missouri proposed revisions to the following rules that are

substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal regulation

provisions (listed in parentheses).

10 CSR 40-6.010(2)(H) (30 CFR 700.5), concerning the definition

of ``Secretary;''

10 CSR 40-6.070(8)(M) (30 CFR 773.15(c)(12)), concerning

criteria for permit approval or denial for remining operations; and

10 CSR 40-8.010(1)(A)84 (30 CFR 701.5), concerning the

definition of ``road''

Because these proposed Missouri rules are substantively identical to

the corresponding provisions of the Federal regulations, the Director

finds that they are no less effective than the Federal regulations. The

Director approves these proposed rules.

3. Proposed Revisions to Missouri's Rules Made in Response to Required

Amendments

a. 10 CSR 40-3.110(3)1, Performance Standards for Backfilling and

Grading of Acid- and Toxic-Forming Materials

OSM required at 30 CFR 925.16(q)(1) that Missouri amend 10 CSR 40-

3.110(3)1 by (1) requiring that exposed coal seams and combustible

materials be

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adequately covered or treated as required at 30 CFR 816.102(f) and (2)

explaining why these two groups of materials, i.e., acid- and toxic-

forming materials and exposed coal seams and combustible materials, are

treated differently and clarify what is required to be demonstrated if

less than 4 feet of cover is proposed (Finding No. 7, 58 FR 64142,

64144, December 6, 1993).

Missouri proposed to revise 10 CSR 40-3.110(3)1 to require that

exposed coal seams, acid-forming and toxic-forming materials, and

combustible materials exposed, used, or produced during mining shall be

adequately covered with nontoxic and noncombustible material or treated

to control the impact on surface and ground water in accordance with 10

CSR 40-3.040, to prevent sustained combustion, and to minimize adverse

effects on plant growth and the approved postmining land use. Missouri

proposed to delete from 10 CSR 40-3.110(3)1 the allowance for an

exception to a 4 foot cover requirement for exposed coal seams and

materials, and combustible materials. Missouri also proposed to add at

10 CSR 40-3.110(3)1 a reference to its rules for covering coal

processing waste and noncoal waste at 10 CSR 40-3.080.

Proposed 10 CSR 40-3.110(3)1 is substantively identical to the

Federal regulation at 30 CFR 816.102(f) with the exception of the

reference to Missouri's rules for covering coal processing waste and

noncoal waste at 10 CSR 40-3.080. This reference does not affect the

requirements in proposed 10 CSR 40-3.110(3)1 concerning exposed coal

seams, acid-forming and toxic forming materials, and combustible

materials.

The Director finds that proposed 10 CSR 40-3.110(3)1 is not less

effective than the Federal regulation at 30 CFR 816.102(f), and

satisfies the program amendment requirement at 30 CFR 925.16(q)(1). The

Director approves proposed 10 CSR 40-3.110(3)1 and removes the required

amendment at 30 CFR 925.16(q)(1).

b. 10 CSR 40-3.110(6)(B), Stabilization of Rills and Gullies After

Backfilling and Grading

OSM required at 30 CFR 925.16(q)(2) that Missouri revise 10 CSR 40-

3.110(6)(B) to require for previously mined areas, that an operator

identify the best suited material available for topsoil replacement and

segregate that material for later use as a topsoil substitute (Finding

No. 9, 58 FR 64142, 64144, December 6, 1993).

Missouri proposed to revise 10 CSR 40-3.110(6)(B) to require, on

areas that have been previously mined where topsoil or a topsoil

substitute are not available, stabilization of rills and gullies

pursuant to subsection (6)(A) after final grading. Missouri's rule at

10 CSR 40-3.110(6)(A) requires stabilization of rills and gullies

deeper than 9 inches on areas that have been regraded and topsoiled.

Although Missouri proposed to delete at 10 CSR 40-3.110(6)(B) the

provision that the area need not be topsoiled, Missouri's revised 10

CSR 40-3.110(6)(B) continues to require topsoil or a topsoil substitute

if available on reclaimed areas that have been previously mined

(emphasis added).

The counterpart Federal regulations at 30 CFR 816.106, concerning

previously mined areas, require that these areas comply with the

requirements of 30 CFR 816.102 through 816.107. The Federal regulations

at 30 CFR 816.102(d)(2) requires topsoil removal, storage, and

redistribution in accordance with 30 CFR 816.22. The Federal

regulations at 30 CFR 816.22 require, among other things, the removal

of the topsoil, material approved as a topsoil substitute, or the

topsoil and the unconsolidated materials immediately below the topsoil.

There is no Federal provision for an exception to the identification of

topsoil or topsoil substitutes on areas that have been previously

mined.

Therefore, the Director finds that proposed 10 CSR 40-3.110(6)(B)

remains less effective than the Federal regulations at 30 CFR 816.102

and 816.22 and does not satisfy the program amendment requirement at 30

CFR 925.16(q)(2). The Director approves the revisions proposed at 10

CSR 40-3.110(6)(B), and revises the required amendment at 30 CFR

925.16(q)(2) to require that Missouri further revise 10 CSR 40-

3.110(6)(B) to clearly require, for areas that have been previously

mined, either topsoil or a topsoil substitute, in accordance with its

rules at 10 CSR 40-3.030.

c. 10 CSR 40-3.140(1)(A), Control or Prevention of Air Pollution

Attendant to Erosion at Surface Mining Operations

OSM required at 30 CFR 925.16(p)(9) that Missouri amend its program

at 10 CSR 3.140(1)(A) by requiring that all exposed surfaces be

stabilized in accordance with current prudent engineering practices

(Finding No. 32, 57 FR 44660, 44669, September 29, 1992).

Missouri proposed to revise 10 CSR 40-3.140(1)(A), concerning the

control or prevention of air pollution attendant to erosion at surface

mining operations, to remove the word ``road'' from the phrase ``other

exposed road surfaces.'' However, Missouri proposed to remove the word

``road'' only from the list of possible measures by which to control or

prevent air pollution. The word ``road'' still exists in the portion of

proposed 10 CSR 40-3.140(1)(A) that requires control or prevention of

air pollution attendant to erosion, including dust occurring ``on other

exposed road surfaces'' (emphasis added).

The Federal regulations at 30 CFR 816.150(b)(1) require that each

road shall be located, designed, constructed, reconstructed, used,

maintained, and reclaimed so as to control or prevent erosion,

siltation, and the air pollution attendant to erosion, including road

dust as well as dust occurring on other exposed surfaces, by measures

such as vegetating, watering, using chemical or other dust

suppressants, or otherwise stabilizing all exposed surfaces in

accordance with current, prudent engineering practices. To fully

satisfy the required amendment, Missouri must further revise proposed

10 CSR 40-3.140(1)(A) to delete the first occurrence of the word

``road'' in the phrase ``other exposed road surfaces.''

Therefore, the Director finds that (1) proposed 10 CSR 40-

3.140(1)(A) remains less effective than the Federal regulations at 30

CFR 816.150(b)(1) and (2) Missouri has not satisfied the program

amendment requirement at 30 CFR 925.16(p)(9). The Director approves the

revisions proposed at 10 CSR 40-3.140(1)(A), but does not remove the

required amendment at 30 CFR 925.16(p)(9).

d. 10 CSR 40-6.050(7)(C), 40-6.050(7)(D), 40-6.120(12)(C), and 40-

6.120(12)(D), Surface and Underground Coal Mining and Reclamation

Operations Permit Application Requirements for Protection of Fish and

Wildlife

OSM required at 30 CFR 925.16(b)(4) that Missouri amend its program

to indicate that the informational requirements of the rules,

concerning a description of protective measures that will be used

during the active mining phase of operations, must be included in the

fish and wildlife plan; require a description of the enhancement

measures that will be used during the reclamation and postmining phase

of operation to develop aquatic and terrestrial habitat; and require

the fish and wildlife protection and enhancement plan requirements also

apply to species or habitats protected by State laws similar to the

Endangered Species Act of 1973 and to threatened or endangered species

or plants or animals proposed as well as listed

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under the Endangered Species Act of 1973 or similar State statutes

(Finding No. 5, 55 FR 22907, 22910, June 5, 1990).

Missouri has proposed revisions at 10 CSR 40-6.050(7)(C), 40-

6.050(7)(D), 40-6.120(12)(C), and 40-6.120(12)(D), that, as discussed

below, satisfy the program amendment requirement at 30 CFR

925.16(b)(4). Therefore, the Director removes the required amendment at

30 CFR 925.16(b)(4).

i. 10 CSR 40-6.050(7)(C) and 40-6.120(12)(C), Informational

requirements for a fish and wildlife plan. Missouri proposed to revise

10 CSR 40-6.050(7)(C) and 6.120(12)(C), concerning surface and

underground coal mining and reclamation operations permit application

requirements, to require that the statement explaining how the

applicant will utilize impact control measures, management techniques,

and monitoring methods to protect or enhance fish and wildlife ``must

be included in the fish and wildlife plan.'' These proposed revisions

of 10 CSR 40-6.050(7)(C) and 6.120(12)(C)(1) are no less effective than

the Federal regulations at 30 CFR 780.16(b) and 784.21(b) and (2)

satisfy the requirement at 30 CFR 925.16(b)(4) concerning the

informational requirements that must be included in a fish and wildlife

plan. The Director approves the revisions proposed at 10 CSR 40-

6.050(7)(C) and 6.120(12)(C).

ii. 10 CSR 40-6.050(7)(D) and 40-6.120(12)(D), Minimum contents of

a fish and wildlife plan. Missouri proposed addition of new rules at 10

CSR 40-6.050(7)(D) and 40-6.120(12)(D), concerning surface and

underground coal mining and reclamation operations permit application

requirements, that specify the minimum contents of a fish and wildlife

plan. With one exception, proposed 10 CSR 40-6.050(7)(D) and

6.120(12)(D) are substantively identical to the counterpart Federal

regulations at 30 CFR 780.16(b) and 784.21(b) and satisfy the program

amendment requirement at 30 CFR 925.16(b)(4).

The exception concerns Missouri's requirement, proposed at 10 CSR

40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), that the description of how,

to the extent possible using the best technology currently available,

the operator will minimize disturbances and adverse impacts on fish and

wildlife and related environmental values during surface coal mining

and reclamation operations and how enhancement of these resources will

be achieved where practicable ``shall be consistent with this

section.'' The counterpart Federal regulations at 30 CFR 780.16(b)(1)

and 784.21(b)(1) require that this description be consistent with the

requirements of the performance standards at 30 CFR 816.97 and 817.97.

Missouri's corresponding performance standards for the protection of

fish, wildlife, and related environmental values are at 10 CSR 40-3.100

and 10 CSR 40-3.250.

Therefore, the Director finds, with the exception of proposed 10

CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), proposed 10 CSR 40-

6.050(7)(D) and 40-6.120(12)(D) are no less effective than the Federal

regulations at 30 CFR 780.16(b) and 784.21(b). With the exception of

proposed 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), the Director

approves proposed 10 CSR 40-6.050(7)(D) and 40-6.120(12)(D). The

Director is adding a new required amendment stating that Missouri must

revise proposed 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1) to

require that the description in the fish and wildlife plan must be

consistent with, respectively, its performance standards for protection

of fish, wildlife, and related environmental values at 10 CSR 40-3.100

and 10 CSR 40-3.250.

e. 10 CSR 40-8.010(1)(A)72, Definition of ``Previously Mined Area''

OSM required at 30 CFR 925.16(q)(3) that Missouri amend 10 CSR 40-

8.010(1)(A) by furnishing a definition for ``previously mined area''

(Finding No. 17.b, 58 FR 64142, 64147, December 6, 1993).

Missouri proposed revising 10 CSR 40-8.010(1)(A) by adding a

definition of ``previously mined area'' at 10 CSR 40-8.010(1)(A)72

which is substantively identical to the Federal definition of

``previously mined area'' at 30 CFR 701.5.

The Director finds that proposed 10 CSR 40-8.010(1)(A)72 is no less

effective than the Federal definition of ``previously mined area'' at

30 CFR 701.5 and satisfies the program amendment requirement at 30 CFR

925.16(q)(3). The Director approves proposed 10 CSR 40-8.010(1)(A)72

and removes the required amendment at 30 CFR 925.16(q)(3).

f. 10 CSR 40-8.030(7), Extension of an Abatement Period for a Notice of

Violation (NOV)

OSM required at 30 CFR 925.16(q)(4) that Missouri amend 10 CSR

40.8.030(7)(A) by removing the phrase ``in accordance with 10 CSR 40-

8.040'' or by providing the proper citation to the State rule that

addresses extension of time for abatement of NOVs (Finding No. 18, 58

FR 64142, 64148, December 6, 1993).

Missouri proposed to revise 10 CSR 40-8.030(7)(A), concerning the

allowance to extend an abatement period for a notice of violation, by

deleting the phrase `` in accordance with 10 CSR 40-8.040,'' a

reference to its rules concerning penalty assessments.

The Director finds that proposed 10 CSR 40-8.030(7)(A) is no less

effective than the Federal regulations at 30 CFR 843.12(c) and

satisfies the program amendment requirement at 30 CFR 925.16(q)(4). The

Director approves proposed 10 CSR 40-8.030(7)(A) and removes the

required amendment at 30 CFR 925.16(q)(4).

g. 10 CSR 40-8.040, Penalty Assessments

OSM required at 30 CFR 925.16(q)(5) that Missouri amend 10 CSR 40-

8.040 by removing its rules concerning habitual violators at 10 CSR 40-

8.040(9) (Finding No. 20, 58 FR 64142, 64148, December 6, 1993).

Missouri proposed to revise 10 CSR 40-8.040, concerning penalty

assessments, by deleting 10 CSR 40-8.040(9) and recodifying existing 10

CSR 40-8.040(10) and (11) as 10 CSR 40-8.040(9) and (10). Deleted 10

CSR 40-8.040(9) included a definition of ``habitual violator'' and

requirements regarding civil penalties for habitual violators.

The Director finds that Missouri's proposed deletion of 10 CSR 40-

8.040(9) is consistent with the Federal regulations at 30 CFR 843 and

845 and satisfies the program amendment requirement at 30 CFR

925.16(q)(5). The Director approves the proposed deletion of 10 CSR 40-

8.040(9) and removes the required amendment at 30 CFR 925.16(q)(5).

4. 10 CSR 40-3.030(4)(B)2, Prevention of Contamination of the Topsoil

During Redistribution

Missouri proposed to revise 10 CSR 40-3.030(4)(B)2 to require

prevention of contamination of topsoil during its redistribution.

Missouri stated that this provision was revised to be consistent with

section 444.855.2(5) of the Revised Statutes of Missouri (RSMo).

The counterpart Federal regulation at 30 CFR 816.22(d)(ii),

concerning redistribution of topsoil, has no such requirement. However,

section 444.855.2(5) of RSMo is identical to section 515(b)(5) of

SMCRA. Both section 444.855.2(5) of RSMo and section 515(b)(5) of SMCRA

require, with respect to stockpiled or stored topsoil, that the topsoil

remain free of any contamination by other acid or toxic material.

[[Page 36048]]

The requirement to prevent contamination of topsoil during its

redistribution proposed at 10 CSR 40-3.030(4)(B)2 is consistent with

and no less stringent than section 515(b)(5) of SMCRA and no less

effective than the Federal regulations at 30 CFR 816.22 regarding

topsoil storage and redistribution. Therefore, the Director approves

proposed 10 CSR 40-3.030(4)(B)2.

5. 10 CSR 40-3.040(10)(B)5, Performance Standards for Impoundments

Missouri proposed to revise, at 10 CSR 40-3.040(10)(B)5, the

requirements concerning design, construction, and maintenance of

impoundments that protect the hydrologic balance during surface coal

mining operations. Specifically, Missouri proposed to revise the date

of the referenced U.S. Natural Resources Conservation Service (NRCS,

formerly the Soil Conservation Service) ``Practice Standards 378,

Ponds'' from October 1978 to January 1991. This referenced document

contains the design and construction requirements for permanent

impoundments that do not meet the size or other criteria of 30 CFR

77.216(a) approved in a surface mining operation permit.

Missouri's proposed 10 CSR 40-3.040(10)(B)5 is no less effective

than the design and construction requirements in the Federal

regulations at 30 CFR 816.49(a) for impoundments that do not meet or

exceed the size or other criteria of the Mine Safety and Health

Administration (MSHA) at 30 CFR 77.216(a).

However, the Federal regulations at 30 CFR 780.25 and 784.16 were

revised to require that all impoundments meeting the Class B or C

criteria of the U.S. Department of Agriculture, NRCS Technical Release

No. 60 (210-VI-TR60, Oct. 1985), Earth Dams and Reservoirs, comply with

the requirements of the Federal regulations for structures that meet or

exceed the size or other criteria of MSHA. And the Federal regulations

at 30 CFR 816.49 and 817.49 were revised to require that any

impoundment meeting the Class B or C criteria for dams in the U.S.

Department of Agriculture, NRCS Technical Release No. 60 (210-VI-TR60,

Oct. 1985), Earth Dams and Reservoirs, comply with ``Minimum Emergency

Spillway Hydrologic Criteria'' table in TR-60 as well as the

requirements of 30 CFR 816.49 and 817.49 (59 FR 53022, October 20,

1994).

OSM will evaluate all State programs to ascertain the need for

revision to be no less effective than the revised Federal regulations

at 30 CFR 780.25, 784.16, 816.49, and 817.49. At that time, OSM will

notify Missouri, in accordance with the Federal regulations at 30 CFR

732, of the need to revise its regulations at 10 CSR 40-6.040(11),

6.120(7), 3.040(10), and 3.200(10) to include the hazard classification

criteria for impoundments.

At this time, based on the above discussion, the Director finds

that proposed 10 CSR 40-3.040(10)(B)5 is no less effective than the

Federal regulations at 30 CFR 816.49(a) with regard to impoundments

that (1) do not meet the NRCS class B or C hazard classification

criteria and (2) do not meet or exceed the size of other criteria of 30

CFR 77.216(a). The Director approves proposed 10 CSR 40-3.040(10)(B)5

to the extent that its requirements apply only to impoundments that (1)

do not meet the NRCS class B or C hazard classification criteria and

(2) do not meet or exceed the size or other criteria of MSHA at 30 CFR

77.216(a). The Director does not approve proposed 10 CSR 40-

3.040(10)(B)5 to the extent that it does not exclude permanent

impoundments that meet the NRCS class B or C hazard classification

criteria from the design and construction requirements in the NRCS

``Practice Standards 378, Ponds,'' dated January 1991.

6. 10 CSR 40-6.020(2)(A) and 40-6.020(3)(A), Requirements for Coal

Exploration

Missouri proposed revisions at 10 CSR 40-6.020(2)(A) and 10 CSR 40-

6.020(3)(A), concerning applications and permits for coal exploration

during which, respectively, less than and more than 250 tons of coal

will be removed. Specifically, Missouri proposed to delete the phrase

``outside a permit area'' with regard to the location of a proposed

coal exploration operation. The effect of Missouri's proposed revisions

is to require exploration applications or permits regardless of where

the exploration operation occurs. Missouri stated in its proposed

amendment that these revisions were proposed in order to remove

confusing language and clarify the requirements for obtaining coal

exploration permits.

The counterpart Federal regulations at 30 CFR 772.11 and 772.12

include the phrase ``outside a permit area'' with regard to the

location of coal exploration operations that must obtain approved

applications or permits. These Federal regulations exclude coal

exploration operations from the requirements of 30 CFR 772.11 and

772.12 if the exploration operations occur within the boundaries of an

existing surface coal mining and reclamation operation permit.

Missouri's proposed 10 CSR 40-6.020(2)(A) and 10 CSR 40-6.020(3)(A)

are more inclusive of the requirement to obtain exploration

applications and permits than are the counterpart Federal regulations.

Therefore, the Director finds that proposed 10 CSR 40-6.020(2)(A) and

10 CSR 40-6.020(3)(A) are no less effective than the Federal

regulations at 30 CFR 772.11 and 772.12 and approves the proposed

rules.

7. 10 CSR 40-8.050(2)(B), Small Operator Assistance Program

Missouri proposed to revise 10 CSR 40-8.050(2)(B) to increase, from

100,000 tons to 300,000 tons, the amount of coal an operator can mine

and be considered eligible for small operator assistance.

The Abandoned Mine Reclamation Act of 1990 (AMRA), as amended, was

reauthorized on November 5, 1990, when the Omnibus Budget

Reconciliation Act of 1990, Public Law 101-508 was enacted. Included in

AMRA was new legislation that raised the annual coal production limit

from 100,000 to 300,000 tons for eligibility under SOAP authorized at

section 507(c) of SMCRA.

Therefore, the Director finds that Missouri's proposed revision of

10 CSR 40-8.050(2)(B) is consistent with and no less stringent than

section 507(c) of SMCRA as amended by AMRA. The Director approves the

proposed rule.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Missouri program.

The Natural Resources Conservation Service responded on March 3,

1995, that it had no comments concerning the proposed amendments

(administrative record No. MO-616).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to

[[Page 36049]]

those provisions of the proposed program amendment that 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.).

None of the revisions that Missouri proposed to make in its

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. MO-614. It did

not respond to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with certain

exceptions and additional requirements, Missouri's proposed amendment

as submitted on February 10, 1995.

The Director does not approve, as discussed in Finding No. 5, 10

CSR 40-3.040(10)(B)5, to the extent it does not exclude permanent

impoundments that meet the NRCS class B or C hazard classification

criteria from the design and construction requirements in the NRCS

``Practice Standards 378, Ponds,'' dated January 1991.

With the requirement that Missouri further revise its rules, the

Director does not approve, as discussed in Finding No. 3.d.ii, 10 CSR

40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), concerning the fish and

wildlife plan.

With the requirement that Missouri further revise its rules, the

Director approves, as discussed in: Finding No. 3.b, 10 CSR 40-

3.110(6)(B), Finding No. 3.c, 10 CSR 40-3.140(1)(A), concerning the

control or prevention of air pollution attendant to erosion at surface

mining operations; and Finding No. 3.d.ii, 10 CSR 40-6.050(7)(D) and

40-6.120(12)(D), concerning the fish and wildlife plan.

The Director approves, as discussed in: Finding No. 1, 10 CSR 40-

3.100(5)2, (6), and (7), 40-3.060(1)(L)1 and (O), 40-3.080(8)(B), 40-

3.110(3)3, 40-6.030(1)(C) and (5)(B), 40-6.060(4)(D)(4), 40-

6.070(9)(A)1 and 40-6.070(9)(A)2.A and 2.B, concerning minor editorial

revisions or corrections of referenced citations; Finding No. 2, 10 CSR

40-6.010(2)(H), 40-6.070(8)(M), and 40-8.010(1)(A)84, concerning

substantive revisions that are substantively identical to the

corresponding Federal regulations; Finding Nos. 3.a, 3.d.i, 3.e, 3.f,

and 3.g, 10 CSR 40-3.110(3)1, 40-6.050(7)(C) and 40-6.120(7)(C), 40-

8.010(1)(A)72, 40-8.030(7)(A), and 40-8.040(9), concerning responses to

required amendments; Finding No. 4, 10 CSR 40-3.030(4)(B)2, concerning

topsoil; Finding No. 5, 10 CSR 40-3.040(10)(B)5, concerning design and

construction of impoundments, to the extent that its requirements apply

only to impoundments that (1) do not meet the NRCS class B or C hazard

classification criteria and (2) do not meet or exceed the size or other

criteria of MSHA at 30 CFR 77.216(a); Finding No. 6, 10 CSR 40-

6.020(2)(A) and (3)(A), concerning coal exploration; and Finding No. 7,

10 CSR 40-8.050(2)(B), concerning small operator's assistance.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

925.16 that, within 60 days of the publication of this final rule,

Missouri must either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Missouri's established administrative or legislative

procedures.

The Director approves the rules as proposed by Missouri with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 925, codifying decisions

concerning the Missouri 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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the Missouri program, the Director will recognize only the

statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by Missouri of only such

provisions.

VI. 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 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.

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 of 1969 (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. 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

[[Page 36050]]

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 925

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 6, 1995.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating 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 925--MISSOURI

1. The authority citation for Part 925 continues to read as

follows:

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

2. Section 925.15 is amended by adding paragraph (s) to read as

follows:

Sec. 925.15 Approval of amendments to the Missouri regulatory program.

* * * * *

(s) With the exception of 10 CSR 40-3.040(10)(B)5, to the extent it

does not exclude permanent impoundments that meet the NRCS class B or C

hazard classification criteria from the design and construction

requirements in the NRCS ``Practice Standards 378, Ponds,'' dated

January 1991; and 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1),

concerning the requirement that a fish and wildlife plan in

applications for surface and underground mining operations be

consistent with the performance standards for protection of fish,

wildlife, and related environmental values at 10 CSR 40-3.100 and 10

CSR 40-3.250, revisions to the following rules, as submitted to OSM on

February 10, 1995, are approved effective July 13, 1995:

10 CSR 40-3.030(4)(B)2, performance standards concerning topsoil

redistribution;

10 CSR 40-3.040(10)(B)5, performance standards concerning design

and construction of certain impoundments;

10 CSR 40-3.060(1)(L)1 and (0), performance standards concerning

the disposal of coal processing wastes and excess spoil;

10 CSR 40-3.080(8)(B), performance standards concerning the

final disposal of noncoal wastes;

10 CSR 40-3.100(5)2, (6), and (7), performance standards

concerning protection of fish and wildlife;

10 CSR 40-3.110(3)1, (3)3, and (6)(B) performance standards

concerning disposal or storage of acid-forming or toxic-forming

material;

10 CSR 40-3.140(1)(A), performance standards concerning the

control or prevention of air pollution attendant to erosion at

surface mining operations;

10 CSR 40-6.010(2)(H), concerning the definition of

``Secretary;''

10 CSR 40-6.020(2)(A) and (3)(A), concerning coal exploration;

10 CSR 40-6.030(1)(C) and (5)(B), and 6.050(7)(C) and (7)(D),

concerning permit application requirements for surface mining

operations;

10 CSR 40-6.060(4)(D)(4), concerning permit application

requirements for operations involving prime farmland;

10 CSR 40-6.070(8)(M), (9)(A)1, and (9)(A)2.A and 2.B,

concerning criteria for permit approval or denial for remining

operations and existing structures;

10 CSR 40-6.120(7)(C) and (12)(D), concerning permit application

requirements for underground mining operations;

10 CSR 40-8.010(1)(A)72 and 84, concerning the definitions for

``previously mined area'' and ``road;''

10 CSR 40-8.030(7)(A), concerning the extension of an abatement

period for a notice of violation;

10 CSR 40-8.040(9), concerning the deletion of a definition for

``habitual violator'' and requirements regarding civil penalties for

habitual violators; and

10 CSR 40-8.050(2)(B), concerning small operator's assistance.

3. Section 925.16 is amended by removing and reserving paragraphs

(b)(4), (q)(1), and (q)(3) through (q)(5); revising paragraph (q)(2);

and adding paragraph (u) to read as follows:

Sec. 925.16 Required program amendments.

* * * * *

(q)(2) By September 11, 1995, Missouri shall revise 10 CSR 40-

3.110(6)(B) or otherwise modify its program, to clearly require, for

areas that have been previously mined, either topsoil or a topsoil

substitute, in accordance with its rules at 10 CSR 40-3.030.

* * * * *

(u) By September 11, 1995, Missouri shall revise 10 CSR 40-

6.050(7)(D)(1) and 40-6.120(12)(D)(1), or otherwise modify its program,

to require that the description in the fish and wildlife plan must be

consistent with, respectively, its performance standards for protection

of fish, wildlife, and related environmental values at 10 CSR 40-3.100

and 10 CSR 40-3.250.

[FR Doc. 95-17167 Filed 7-12-95; 8:45 am]

BILLING CODE 4310-05-M