North Dakota Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

North Dakota 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, a proposed

amendment to the North Dakota regulatory program (hereinafter referred

to as the ``North Dakota program'') under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). North Dakota proposed 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, address required program amendments,

clarify ambiguities, correct cross-references, and improve program

efficiency.

EFFECTIVE DATE: April 13, 1995.

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-01, State Program Amendment

Tracking System No. ND-031-FOR). 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)(a), 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(6), permit applications (compliance information);

NDAC 69-05.2-10-03(5), criteria for permit approval; NDAC 69-05.2-11-

02(1)(d), permit revisions; NDAC 69-05.2-11-03(5)(c), permit renewals;

NDAC 69-05.2-11-06(1)(c), 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(2)(a), performance standards (suitable plant growth

materials); 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(b), inspection and enforcement (cessation orders).

OSM announced receipt of the proposed amendment in the December 9,

1994, Federal Register (59 FR 63738), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (Administrative Record No. ND-V-06).

Because no one

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requested a public hearing or meeting, none was held. The public

comment period ended on January 9, 1995.

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, that the

proposed program amendment submitted by North Dakota on November 10,

1994, is no less effective than the corresponding Federal regulations

in meeting SMCRA's requirements. Accordingly, the Director approves the

proposed amendment.

1. Nonsubstantive Revisions to North Dakota's Rules

North Dakota proposed revisions to the following previously-

approved rules that are nonsubstantive in nature and consist of minor

editorial changes or correction of cross-references (corresponding

Federal regulation provisions are listed in parentheses):

NDAC 69-05.2-11-02(1)(d) (30 CFR 774.13(d)), when permit revisions are

required;

NDAC 69-05.2-11-03(5)(c) (30 CFR 774.15(b)(2)(iv)), requirements for

applications to renew permits;

NDAC 69-05.2-11-06(1)(c) (30 CFR 774.17(a), (d)), requirements for

transfer, sale, or assignment of permit rights; and

NDAC 69-05.2-12-09(2) (30 CFR 800.13), period of performance bond

liability.

Because the proposed revisions to these previously-approved rules

are nonsubstantive in nature, the Director finds that these proposed

revisions do not substantively change the North Dakota program as

already approved. The Director approves these proposed revisions.

2. Substantive Revisions to North Dakota's Rules That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

North Dakota proposed revisions to the following previously-

approved 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):

NDAC 69-05.2-04-07(3)(a) (30 CFR 764.21(c)(1)), database and inventory

system for use in designating lands unsuitable for mining; and

NDAC 69-05.2-28-03(6) (30 CFR 843.11(a)(2)) (introductory text),

significant imminent environmental harm.

Because these proposed revisions to the North Dakota 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 in meeting SMCRA's requirements. The Director

approves these proposed revisions.

3. NDAC 69-05.2-05-09, Consolidated Monitoring Plans

North Dakota proposes to add a new rule to allow a permittee to

develop one consolidated monitoring plan (hereinafter, ``CMP'') for

certain required monitoring plans that would cover multiple permits for

a particular surface coal mining and reclamation operation.

Specifically, North Dakota proposes NDAC 69-05.2-05-09 as follows:

The Commission will allow monitoring plans required by [NDAC]

article 69.05 and North Dakota Century Code chapter 38-14.1 to be

consolidated by the permittee into one single monitoring plan for

each surface coal mining and reclamation operation subject to the

following requirements:

1. Each [CMP] will be subject to the approval procedures established

for permit revisions.

2. Each mining permit must be revised describing the specific

monitoring plan or plans to be consolidated into a single monitoring

plan covering the entire surface coal mining and reclamation

operation under permit.

3. Each [CMP] will be subject to review by the commission at the

time of the midterm review or renewal for each permit covered by the

[CMP] in accordance with the requirements of section 69-05.2-11-01.

4. A permittee may propose modifications to a [CMP] by filing a

permit revision application to the most recently issued permit

covered by the [CMP].

North Dakota also appends to the submittal a written rationale for

its proposal at NDAC 69-05.2-05-09 (Amendment XXI, Administrative

Record No. ND-V-1, ``IV. Appendix''). In that written rationale, North

Dakota clarifies that the proposal is directed toward instances where

one mine (i.e., one surface coal mining and reclamation operation) is

authorized by multiple permits. The proposal would allow, as one

example, the ground water monitoring plans for each of the individual

permits to be combined into one consolidated ground water monitoring

plan. The same allowance would apply for surface water monitoring,

alluvial valley floor monitoring, and fish and wildlife monitoring.

A separate CMP would have to be developed for each category of

monitoring. North Dakota indicates that this procedure would allow

easier review of monitoring plans by both the regulatory authority and

the public where one mine is covered by multiple permits.

North Dakota also indicated that individual permits would have to

contain appropriate references to the various CMP's and that the CMP's

would be a part of each permit. ``Since the [CMP] will be considered

part of each mining permit it covers, failure to comply with the [CMP]

will subject the permittee to the same enforcement action as would the

failure to comply with any other part of a mining permit.'' In this

case a single violation would be issued that lists all permits covered

by the CMP. North Dakota states that it uses this same practice for

violations of performance standards or requirements that are the same

in more than one permit.

North Dakota's written rationale further notes that since CMP's may

be revised, the reference in each permit will have to be the most

recent (i.e., current) CMP. North Dakota proposes to review each CMP as

part of the midterm review and renewal review of each included permit,

and will require at those times any necessary revisions. North Dakota

adds that, as it interprets its rule at NDAC 69-05.2-11-01(2), the

commission is not precluded from reviewing permits and requiring permit

revisions more frequently than at midterm or every five years (OSM

notes that this interpretation would apply to requiring more frequent

revisions to CMP's if necessary). The permittee may request revision of

a CMP by applying for a permit revision to the most recently issued

permit covered by the CMP. When new areas are added to a mining

operation by application for new permits, the CMP's for the operation

will have to be updated, and the updated CMP will be subject to the

approval procedures for permit applications. If a CMP indicates any

adverse environmental impacts, the portion of the whole operation

affected would be subject to preventative or remedial measures as

required by NDAC 69-05.2-09-12(2). Depending on the impacts, that area

affected could involve parts of or all of one, several, or all of the

permits covering the operation. Following final bond release of any

portion of the area covered by a CMP, the permittee would have to

continue monitoring that area until the CMP is revised to delete that

area from the CMP.

North Dakota also specifically listed the monitoring requirements

that could be consolidated, as follows: (1) Ground water monitoring--

the requirements of NDAC 69-05.2-09-12(1)(e) and 69-05.2-16-14; (2)

surface water

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monitoring--the requirements of NDAC 69-05.2-09-12(1)(e) and 69-05.2-

16-05; (3) alluvial valley floor monitoring--the requirements of NDAC

69-05.2-08-14(1)(e), 69-05.2-09-16, and 69-05.2-25-03; and (4) fish and

wildlife monitoring--the requirements of NDAC 69-05.2-09-17(1)(e) and

69-05.2-13-08(1).

OSM acknowledges that on surface coal mining and reclamation

operation may be authorized by a succession of permits for individual

areas. Both the State statute at North Dakota Century Code (NDCC) at

39-14.1-15(1) and SMCRA Section 508(a)(1) provide that all permit

applications include the identification of ``land subject to surface

coal mining operations over the estimated life of those operations and

the size, sequence, and timing of the subareas for which it is

anticipated that individual permits will be sought.'' And, OSM agrees

with North Dakota that it would be easier for the public, the

permittee, and the regulatory authority to review and revise the

monitoring plans for the operation, and evaluate the monitoring data

submitted, if those materials were in one place rather than spread out

through several permit files.

OSM also notes that North Dakota does not propose to eliminate or

reduce any monitoring required under the individual permits. For

example, in order to be approved, a consolidated ground water

monitoring plan would have to contain sufficient monitoring sites,

monitoring methodologies, monitoring parameters, monitoring frequency,

etc., to meet the requirements of NDAC 69-05.2-09-12(1)(e) and 69-05.2-

16-14 for each of the included permit areas. Similarly, all of North

Dakota's rule requirements would remain in effect regarding required

preventative or remedial changes to surface coal mining and reclamation

operations if monitoring data indicates the operation is having

unanticipated adverse environmental impacts. North Dakota's written

rationale for the provision specifically addresses this requirement at

NDAC 69-05.2-09-12(2) (protection of the hydrologic balance), but any

other such regulatory requirement (for preventative or remedial changes

to the operation) would also be unaffected by this proposal for CMP's.

Finally, North Dakota's proposal would not eliminate or reduce any

required enforcement actions, since CMP's would be made part of each

included permit, meaning that failure to comply with the CMP would mean

noncompliance with each of the permits. Since each included permit

would be listed in any such enforcement action, the single enforcement

action would be considered for potential patterns of violation for each

of the included permits.

OSM closely considered two aspects of North Dakota's proposal.

First, the proposal would allow a CMP to be revised by submitting a

revision application for only one of the permits included in the CMP;

since the revised CMP would be incorporated into the other permits by

reference, this would in effect revise all of the permits in the

particular surface mining operation. But as noted above, the proposal

does not eliminate or reduce the regulatory monitoring requirements of

the individual permits. Thus in order to be approved, the revision

application would in essence have to be revised as a revision to each

permit. Further, OSM notes that if a revision to a CMP were considered

a significant alteration subject to public notice under NDAC 69-05.2-

11-02(5)(a), the public notice required by NDCC 38-14.1-18(1) would

have to list all of the permit areas as lying within the ``boundaries

of the land proposed to be affected by the * * * permit revision.''

Hence, the public would have adequate notice that all included permits

are being revised.

The second aspect that OSM considered is the adoption of revised

CMP as part of a permit application to add new permit area to a life-

of-mine operation. North Dakota's written rationale, as noted above,

addressed this by noting that the proposed revised CMP would in that

instance be subject to the approval procedures for permit applications.

On its fact, this statement appears to contradict proposed NDAC 69-

05.2-05-09(1) (which proposes that CMP's will be subject to the

approval procedures established for permit revisions) and proposed NDAC

69-05.2-05-09(4) (which proposes that modifications to a CMP may be

proposed by an operator by filing a permit revision application).

OSM does not consider this apparent contradiction to be a

deficiency. OSM notes that for any proposal to revise a CMP that would

be included in a permit application to be approved, the regulatory

authority would have to find (under NDCC 38-14.1-21(3)(a) [written

findings for permit approval]) that the proposed CMP complied with NDAC

69-05.2-05-09. Strictly interpreted, that would require that the

applicant simultaneously file a permit revision application to the most

recent existing permit, and that that revision application be reviewed

simultaneously with the application for the new permit. However, OSM

observes that nothing would be gained from such a simultaneous dual

application and dual review. As noted earlier, a proposed CMP does not

eliminate or reduce the regulatory monitoring requirements of the

individual permits. Thus, a proposed modified CMP contained in an

application for a new permit would, in the review of the new

application, be reviewed to ensure that it would fulfill all the

regulatory monitoring requirements of all of the included permits. That

is precisely the same level of review and approval that would be

accomplished under the dual application and review under the strict

interpretation. Therefore OSM does not find any deficiency in North

Dakota's written intention to have the permit application approval

procedures supersede the permit revision procedures under these

circumstances. OSM notes that this aspect of the proposal would be

clearer if this supersession were incorporated in the North Dakota

program at NDAC 69-05.2-05-09, and OSM encourages North Dakota to

consider this in the future.

Based upon the above discussion, the Director finds that North

Dakota's proposal at NDAC 69-05.2-05-09 is consistent with the Federal

regulations, and will assist North Dakota in the efficient

administration of its program. Therefore the Director is approving the

proposal.

4. NDAC 69-05.2-06-01(2), 69-05.2-06-02(6), and 69-05.2-10-03(5),

Permit Application Review and Criteria for Approval, Final Compliance

Review

NDAC 69-05.2-06-01(2) currently requires that after a permit

application has been approved but before the permit is issued, the

applicant shall update or correct the ownership and control

(identification of interests) information in the application, or

indicate that no change has occurred. North Dakota proposes to revise

this provision to require that the update, correction, or indication be

made when the application is ``deemed ready for approval'' but before

the permit is issued. Similarly, NDAC 69-05.2-06-02(6) currently

requires that after a permit application is approved (but before the

permit is issued), the applicant shall update or correct the compliance

information (violations list) in the application, or indicate that no

change has occurred. North Dakota proposes to revise this provision to

require that the update, correction, or indication be made when the

permit application is ``deemed ready for approval'' but before the

permit is issued. Finally, NDAC 69-05.2.-10-03(5) currently requires

North Dakota,

[[Page 18747]]

after a permit application is approved (but before the permit is

issued) to reconsider its approval decision based on the updates or

corrections resulting from the provisions mentioned above. North Dakota

proposes to revise this provision to require that after an application

is ``deemed ready for approval'' (but before the permit is issued), the

regulatory authority make its decision to approve or disapprove the

application, based on the updated or corrected information.

The Federal regulations at 30 CFR 778.13(i) require that after a

permit application is approved (but before the permit is issued), the

applicant shall update or correct the ownership and control

(identification of interests) information in the permit, or indicate

that no change has occurred. Similarly, 30 CFR 778.14(d) requires that

after an application has been approved (but before the permit is

issued), the applicant shall update or correct the violation

information in the application, or indicate that no change has

occurred. Finally, 30 CFR 773.15(e) requires the regulatory authority,

after an application is approved (but before the permit is issued) to

reconsider its approval decision, based on the corrected or updated

application information submitted under the provisions mentioned above.

In all three cases, North Dakota's proposal would require the

submission or review of the updated or corrected information when the

application is ``deemed ready for approval,'' while the Federal

regulations require that the corrected or updated information be

submitted or reviewed after the application is approved but before the

permit is issued. OSM interprets the proposed language ``deemed ready

for approval'' to mean that all technical and legal review of the

permit application has been completed, all written findings have been

completed, and the regulatory authority has determined that all

criteria for the approval of the application have been met.

The intent of the Federal regulations cited above was expressed in

the preamble to those rules (54 FR 8962; March 2, 1989):

Experience has shown that the time that elapses between the

submission of an application and the issuance of the permit

typically is several months at a minimum. Information submitted with

the application may become dated by the time of permit issuance,

thus making it impossible for the regulatory authority to make an

accurate compliance review under [30 CFR] 773.15(b)(1).

This rule adds * * * [a requirement] that before a permit is

issued the regulatory authority reconsider its initial

Sec. 773.15(b)(1) compliance review in light of any new information

submitted pursuant to Secs. 778.13(i) and 778.14(d) * * * The final

compliance review based on this updated information will [e]nsure

that the regulatory authority makes an accurate permitting decision

under Sec. 773.15(b)(1).

OSM notes that under North Dakota's proposals, the corrected or

updated information would also be required at the very end of the

application review period, and would be reviewed by the regulatory

authority at that time. The regulatory authority's decision on permit

issuance would be based on the updated or corrected information. Thus

the Director finds that North Dakota's proposals at NDAC 69-05.2-06-

01(2), 69-05.2-06-02(6), and 69-05.2-10-03(5) are no less effective in

meeting SMCRA's requirements than the Federal regulations at 30 CFR

773.15(e), 778.13(i), and 778.14(d), and is approving those proposals.

5. NDAC 69-05.2-15-02(2)(a), Performance Standards (Suitable Plant

Growth Material)

North Dakota proposes to delete the existing requirement that the

regulatory authority must approve the topsoil removal for an area

before subsoil removal begins or before any other disturbances occur in

that area.

The Federal regulations at 30 CFR 816.22 do not require that the

regulatory authority approve the removal of topsoil prior to further

operations. Because the Federal regulations do not require regulatory

authority approval of topsoil removal prior to further disturbance, the

Director finds that North Dakota's proposed deletion of this

requirement is not inconsistent with the Federal regulations, and is

approving the proposal.

6. NDAC 69-05.2-16-09(7), Performance Standards for Sedimentation Ponds

North Dakota proposes to delete the existing requirement,

applicable to all sediment ponds, that there must be no outflow through

the emergency spillway from the ten-year, twenty-four-hour

precipitation event or lesser events. In its place, North Dakota

proposes a new provision that would require (for sedimentation ponds

designed to contain the runoff from a ten-year, twenty-four-hour design

event) that there must be no spillway outflow as a result of runoff

from the design event or lesser runoff events, unless multiple runoff

events occur before the pond can be dewatered in accordance with

approved plans in the permit. North Dakota adds in a note to the

submittal (see Administrative Record No. ND-V-01, side-by-side) that

the North Dakota Department of Health requires operators to dewater

sedimentation ponds within 10 days after a precipitation event. OSM

notes that an existing provision of the North Dakota program, NDAC 69-

05.2-16-09(6), states that the design, construction, and maintenance of

a sediment pond or other sediment control measures does not relieve the

operator from compliance with applicable effluent limitations.

The Federal regulations governing sediment ponds at 30 CFR 816.46

do not prohibit outflow from the emergency spillway in connection with

any specified design event. Therefore, North Dakota's proposed deletion

of its existing requirement is not inconsistent with those Federal

regulations.

Regarding North Dakota's proposed new provision, the Federal

regulations at 30 CFR 816.46(c)(iii)(C) require that sediment ponds be

designed, constructed, and maintained to, among other things, contain

or treat the 10-year, 24-hour precipitation event (lesser events can be

approved by the regulatory authority in some specified circumstances).

However, there is an implicit exception to the ``containment''

requirement, for those ponds designed to contain rather than treat the

design event, at Sec. 816.46(c)(1)(iii)(D). This regulation requires

the provision of a nonclogging dewatering device to maintain the

required detention time. In the preamble to this requirement (48 FR

44032, 44044; September 26, 1983), OSM noted that:

If water accumulates in the pond and is not allowed to exit, the

water level will rise and may not recede sufficiently to assure

adequate detention time in the event of increased inflow to the

pond.

Hence, the Federal rules anticipate that while a pond may be designed

to ``contain'' the design event, the pond may not be able to contain

runoff from a subsequent design event that occurs soon after an initial

design event, unless some of the stored water is removed. But under

Sec. 816.46(c)(1)(iii)(C), that runoff must still be treated.

North Dakota's proposal in essence defines the performance standard

of ``containment'': if a sediment pond is designed to ``contain,'' then

there must be no spillway discharge from that design event. But it also

explicitly recognizes what the Federal regulations only implicitly

recognize: the sedimentation pond may not be able to contain subsequent

design event that occurs before sufficient time elapses for dewatering

the sedimentation pond. However, by requiring that effluent

[[Page 18748]]

standards must be met regardless of pond design or maintenance

(subsection (6)), North Dakota requires that any resulting discharges

be treated.

Based on the above discussion, the Director finds North Dakota's

proposed replacement of the existing provision with the new provisions

to be no less effective than the Federal regulations at 30 CRR

816.46(c)(1)iii)(C) in meeting SMCRA's requirements, and is approving

the proposal.

7. NDAC 69-05.2-16-09(20), Inspection Frequency for Sedimention ponds.

North Dakota proposes to revise this provision to require that

impoundments not meeting the criteria of 30 CFR Part 77.216 be

inspected quarterly. The provision, as revised, would be substantively

the same as the Federal regulation requirement at 30 CFR 816.49(a)(11)

as it existed prior to November 21, 1994.

Effective November 21, 1994, OSM's requirement was redesignated as

30 CFR 816.49(a)(12). It was also revised to require that impoundments

that meet the Soil Conservation Service (SCS) Class B or C criteria for

dams in TR-60 (hereinafter, ``SCS criteria''), as well as impoundments

that meet the criteria of 30 CFR Part 77.216 (hereinafter, ``MSHA

criteria''), must be examined in accordance with Sec. 77.216-3 (see 59

FR 53022; October 20, 1994). Under the revised Federal regulation, only

impoundments that meet neither the MSHA criteria nor the SCS criteria

may be inspected quarterly.

North Dakota's proposed rule would allow sedimentation ponds that

do not meet the MSHA criteria, but do meet the SCS criteria, to be

inspected quarterly. This would be less effective in meeting SMCRA's

requirements than the new Federal regulation at 30 CFR 816.49(a)(12),

under which those same sedimentation ponds would have to be examined in

accordance with 30 CFR 77.216-3 (in most cases, weekly). However, OSM's

rulemaking noted, under the section entitled ``Effect on State

Programs,'' that State programs will not be required to meet the

requirements of the new regulations until the Director reviews the

State programs and informs the States of any deficiencies in accordance

with 30 CFR 732.17 (see 59 FR 53022, 53026). North Dakota has to yet

been informed by the Director that it must revise its program to

conform with the new Federal regulation at 30 CFR 816.49(a)(12); hence,

OSM is not at this time requiring North Dakota to revise its proposed

rule to require that the new category of impoundments (those that meet

the SCS criteria) be inspected in accordance with Sec. 77.216-3.

North Dakota's proposal would require sedimentation ponds that meet

neither the MSHA criteria nor the SCS criteria to be inspected

quarterly. The Federal regulation at 30 CFR 816.49(a)(12) also requires

those same impoundments to be inspected quarterly. Therefore the

Director finds that North Dakota's proposal, insofar as it addresses

that category of sedimentation ponds, is no less effective than the

Federal regulation, and is approving the proposal insofar as it

addresses that category (sedimentation ponds that meet neither the MSHA

criteria nor the SCS criteria). The Director is not approving the

proposal insofar as it allows sedimentation ponds that meet the SCS

criteria, to be inspected quarterly.

The Director notes that this partial approval satisfies a required

program amendment codified at 30 CFR 934.16(u) that was imposed on the

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

807, 827). That action required North Dakota to amend its program to

require quarterly inspections of certain impoundments, to be no less

effective than then-existing 30 CFR 816.49(a)(11). As noted above,

North Dakota's proposal, insofar as approved, fulfills that

requirement, and the Director is herewith removing it. OSM notes that

the forthcoming notification from the Director in accordance with 30

CFR 732.17 will require North Dakota to amend its program to address

those sedimentation ponds that meet the SCS criteria.

8. NDAC 69-05.2-21-01(2), Performance Standards for Contemporaneous

Reclamation, Time and Distance Requirements

North Dakota proposes to revise this provision to allow the

regulatory authority to grant additional distance (in addition to four

spoil ridges behind the pit being worked) for completion of rough

backfilling and grading if the permittee can demonstrate that such

additional distance is necessary. The existing provision only allows

the regulatory authority, in the same circumstances, to grant

additional time (in addition to 180 days following coal removal) for

completion of rough backfilling and grading.

OSM notes that a statutory requirement of the North Dakota program,

at NDCC 38-14.1-24(14), requires, among other things, that permittees

ensure that all reclamation efforts proceed in an environmentally sound

manner and as contemporaneously as practicable with the surface coal

mining operations.

OSM's time and distance requirements at 30 CFR 816.101 were

suspended on July 31, 1992 (57 FR 33874). Therefore OSM must evaluate

State time and distance requirements against the general

contemporaneous reclamation requirements of 30 CFR 816.100. This

regulation requires that all reclamation efforts (including

backfilling, grading, topsoil replacement, and revegetation) on all

land that is disturbed by surface mining activities shall occur as

contemporaneously as practicable with mining operations (except when

variances are granted for concurrent surface and underground mining

activities).

As noted above, the North Dakota program contains a statutory

general contemporaneous reclamation requirement substantively

equivalent to 30 CFR 816.100. North Dakota's proposed additional

distance allowance at NDAC 69-05.2-21-01(2) provides additional

specificity to one aspect of the general statutory requirement at NDCC

38-14.1-24(14) and is not inconsistent with that statutory requirement.

Based on the above discussion, the Director finds North Dakota's

proposal at NDAC 69-05.2-21-01(2) to be consistent with the Federal

regulations at 30 CFR 816.100, and is approving the proposal.

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

(Administrative Record No. ND-V-06), 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 North Dakota program.

The U.S. Bureau of Mines responded on November 30, 1994, that it

had no comment (Administrative Record No. ND-V-04). The State Director

of the U.S. Department of Agriculture (USDA) Rural Economic and

Community Development (formerly the Farmers Home Administration)

responded on December 2, 1994, that it had no comment and felt the

proposed

[[Page 18749]]

amendment would not affect its programs (Administrative Record No. ND-

V-05). The U.S. Army Corps of Engineers responded on December 8, 1994,

that the proposed changes were satisfactory to it (Administrative

Record No. ND-V-07). The Agricultural Research Service, USDA, responded

on December 13, 1994, that it had no comments or additions to the

amendment (Administrative Record No. ND-V-08). The Fish and Wildlife

Service responded on December 16, 1994, that it found the proposed

changes to be logical and reasonable, and that the proposed rules were

not anticipated to have any significant impacts on fish and wildlife

resources (Administrative Record No. ND-V-09).

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 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 North Dakota 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. ND-V-03). EPA's

Region VIII office responded on December 21, 1994, that it had no

comments and that it did not believe there would be any impacts to

water quality standards promulgated under the Clean Water Act

(Administrative Record No. ND-V-10).

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

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (Administrative Record No.

ND-V-03). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

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

exception, North Dakota's proposed amendment as submitted on November

10, 1994. The Director does not approve, as discussed in Finding No. 7,

NDAC 69-05.2-16-09(20) (insofar as it would allow sedimentation ponds

not meeting the MSHA criteria but meeting that SCS criteria to be

inspected quarterly).

The Director approves the rules as proposed by North Dakota 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 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.

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 North Dakota 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 North Dakota 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 (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: April 7, 1995.

Charles E. Sandberg,

Acting 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.

[[Page 18750]]

2. Section 934.15 is amended by revising the heading and by adding

paragraph (t) to read as follows:

Sec. 934.15 Approval of amendments to the North Dakota regulatory

program.

* * * * *

(t) With the exception of NDAC 69-05.2-16-09(20) (to the extent

that it addresses sedimentation ponds that do not meet the criteria of

30 CFR 77.216 but do meet SCS Class B or C criteria), revisions to the

following rules, as submitted to OSM on November 10, 1994, are approved

effective April 13, 1995.

North Dakota Administrative Code (NDAC) 69-05.2-04-07(3)(a),

lands unsuitable for mining; NDAC 69-05.2-05-09, permit applications

(permit monitoring plans); NDAC 69-05.2-06-01(2), permit

applications (identification of interests); NDAC 69-05.2-06-02(6),

permit applications (compliance information); NDAC 69-05.1-10-03(5),

criteria for permit approval; NDAC 69-05.2-11-01(1)(d), permit

revisions; NDAC 69-05.2-11-03(5)(c), permit renewals; NDAC 69-05.2-

11-06(1)(c), 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); 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(6), inspection and enforcement (cessation orders).

Sec. 934.16 [Amended]

3. Section 934.16 is amended by removing and reserving paragraph

(u).

[FR Doc. 95-9176 Filed 4-12-95; 8:45 am]

BILLING CODE 4310-05-M