North Dakota Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SPATS No. ND-034-FOR]

North Dakota Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is

approving 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 rules pertaining to: Permit application

requirements for the disposal of noncoal wastes; performance standards

concerning soil redistribution; revegetation success standards on lands

developed for use as prime farmland, recreation, and on previously-

mined areas to be developed for water, residential, industrial, and/or

commercial uses. The amendment is intended to revise the North Dakota

program to be consistent with the corresponding Federal regulations,

clarify ambiguities, and improve operational efficiencies.

EFFECTIVE DATE: April 28, 1997.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Director, Casper Field Office, Telephone: (307) 261-6550.

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 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, 934.16, and 934.30.

II. Proposed Amendment

By letter dated March 20, 1996, North Dakota submitted a proposed

amendment (Amendment No. XXIII, administrative record No. ND-Y-01) to

its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). North Dakota

submitted the proposed amendment on its own initiative and in response

to required program amendments at 30 CFR 934.16 (aa) and (bb). OSM

announced receipt of the proposed amendment in the April 24, 1996,

Federal Register (61 FR 18100; administrative record No. ND-Y-05),

provided an opportunity for a public hearing or meeting on its

substantive adequacy, and invited public comment on its adequacy. The

public comment period ended May 24, 1996. Because no one requested a

public hearing or meeting, none was held.

III. Director's Findings

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

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by North Dakota on March 20, 1996, is no less effective than

the corresponding Federal regulations and no less stringent than SMCRA.

Accordingly, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to North Dakota's Rules

North Dakota proposed revisions to its approved program that are

nonsubstantive in nature and consist of editorial changes. North Dakota

proposed to replace, throughout its program, the name of the U.S.

``Soil Conservation Service''with its new name, the ``National Resource

Conservation Service.'' North Dakota also proposed to replace the name

of the North Dakota ``Department of Health and Consolidated

Laboratories,'' with its new name, the ``Department of Health.''

Because these editorial revisions have no significant impact on the

substance of the requirements of the program, other than to correctly

identify the appropriate Federal and State agencies, the Director finds

that the proposed revisions are consistent with and no less effective

than the Federal program and approves them.

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 rules that are

substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal regulations

(listed in parentheses).

NDAC 69-05.2-19-04.3 (30 CFR 816.89(b)), concerning design and

construction of noncoal waste disposal sites to ensure that leachate

and drainage from the noncoal waste areas does not degrade surface

or underground water.

NDAC 69-05.2-26-05.3.e (30 CFR 823.15(b)(5)), concerning the

demonstration of restoration of prime farmland productivity, to

require an average annual yield rather than yields from three

consecutive growing seasons.

Because these proposed revisions to 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 corresponding Federal regulations. The Director approves these

proposed revisions.

3. NDAC 69-05.2-09-02.8, Permit Applications Requirements for Noncoal

Waste Disposal

North Dakota proposed to revise NDAC 69-05.2-09-02.8, which

currently provides that the required maps and plans of the proposed

permit and adjacent areas show each coal storage, cleaning, and loading

area, and each coal waste and noncoal waste storage area. Under the

proposed revisions, for noncoal wastes that will be disposed of in the

proposed permit area, the applicant would be required to provide a

description of: (1) Any wastes listed under NDAC 33-20-02.1-01.2.i and

(2) ``any other wastes requiring a permit from the state department of

[[Page 22890]]

health.'' Pursuant to NDAC 33-20-02.1-01.2.i, a solid waste management

permit is not required for the disposal of certain specified mining

operation wastes into areas designated in a surface coal mining permit

issued by the State regulatory authority for such disposal. Thus, the

Director interprets the proposed revision as requiring a description of

all noncoal wastes that will be disposed of in the proposed permit

area, whether or not the applicant is required to obtain a solid waste

management permit from the State Department of Health. North Dakota

also proposed to require that the location of any noncoal waste

disposal areas within the proposed permit area be shown on a map of the

permit area.

There are no exact Federal counterpart provisions to the State's

proposed revisions to NDAC 69-05.2-09-02.8. Pursuant to 30 CFR

730.11(b), States may promulgate regulations for which no corresponding

provisions exist in SMCRA or the Federal regulations. Since there are

no exact Federal counterpart provisions, OSM compared North Dakota's

proposed revisions to NDAC 69-05.2-09-02.8 for consistency with section

515(b)(14) of SMCRA and the Federal regulations at 30 CFR 780.11(b)(4).

Section 515(b)(14) of SMCRA requires that surface coal mining and

reclamation operations be conducted in a manner which insures, among

other things, that all debris, acid-forming materials, toxic materials,

or materials constituting a fire hazard are treated or buried and

compacted or otherwise disposed of in a manner designed to prevent

contamination of ground or surface waters. The Federal regulations at

30 CFR 780.11(b)(4) require that each permit application contain a

narrative explaining, among other things, the use and maintenance of

coal processing waste and noncoal disposal areas. Existing North Dakota

rule NDAC 69-05.2-09-01 ``Permit applications--Operation plans--General

requirements'' requires that ``Each application must contain a detailed

description of the proposed mining operations, including: ``3. A

narrative for each operations plan explaining the plan in detail and

the construction, modification, use and maintenance of each mine

facility, water and air pollution control facilities or structures, * *

*. In addition, NDAC 69-05.2-09-02. ``Permit applications--Operation

plans--Maps and plans.'' requires that ``Each application must contain

* * * an appropriate combination of * * * topo maps, planimetric maps,

and plans of the proposed permit and adjacent areas showing: ``8. Each

coal storage, cleaning and loading area, and each coal waste and

noncoal waste storage area.'' These North Dakota rules meet the

requirements of 30 CFR 780(b)(4).

The Director finds that North Dakota's proposed revisions will

assist the State in insuring that wastes produced by surface coal

mining and reclamation operations be disposed of in a manner designed

to prevent contamination of ground or surface waters.

Based on the above discussion, the Director finds that North

Dakota's proposed revisions to NDAC 69-05.2-09-02.8 are not

inconsistent with section 515(b)(14) of SMCRA or the provisions of 30

CFR 780.11(b)(4) and approves the proposed revisions.

4. NDAC 69-05.2-13-02, General Requirements for an Annual Map

North Dakota proposed to revise NDAC 69-05.2-13-02 to more clearly

specify the required scale for an annual map (1:4,800), and to allow

another scale upon approval of North Dakota's Public Service

Commission.

There are no exact Federal counterpart provisions to the State's

proposed revisions to NDAC 69-05.2-13-02 as the Federal regulations do

not require submission of an annual map. Pursuant to 30 CFR 730.11(b),

States may promulgate regulations for which no corresponding provisions

exist in SMCRA or the Federal regulations. Since there are no exact

Federal counterpart provisions, OSM evaluated North Dakota's proposed

revisions to NDAC 69-05.2-13-02 for consistency with the Federal

regulations at 30 CFR 777.14(a), which deals with the requirements for

maps submitted with a permit application.

The Federal regulations at 30 CFR 777.14(a) require, among other

things, that maps of the permit area submitted with applications shall

be presented at a scale of 1:6,000 or larger and maps of the adjacent

area shall be in a scale determined by the regulatory authority, but in

no event smaller than 1:24,000.

North Dakota's proposed rule provides for reporting requirements on

maps that are larger than those required by the Federal program.

Because the required maps are on a larger scale than required to be in

Federal permit applications and locations will therefore be shown with

more specificity, the required map scale is not inconsistent with the

Federal regulation at 30 CFR 777.14. Given that there is no Federal

counterpart for reporting on annual maps, and given 30 CFR 730.11(b)

which has been previously discussed in this section, the requirement

for annual maps at other scales approved by the Public Service

Commission is not inconsistent with the requirements of the Federal

program. Moreover, the Director notes that the North Dakota provision

concerning maps submitted with a permit application, NDAC 69-05.2-09-

02, requires the scale of such maps to be 1:4,800.

Based on the aforementioned discussion, the Director finds that the

proposed revisions to NDAC 69-05.2-13-02 are not inconsistent with the

requirements of the Federal regulations at 30 CFR 777.14(a) and

approves the proposed revisions.

5. NDAC 69-05.2-15-04.4.a(2)(c), Performance Standard Concerning an

Alternative Method for Determining the Requirements for Redistribution

of Suitable Plant Growth Material

On October 21, 1986 (51 FR 37271, 37273, finding No. 8), the

Director approved the provision at NDAC 69-05.2-15-04.4(a)(2) that

allows an alternative method for determining the depth of suitable

plant growth material required to be redistributed. North Dakota now

proposes to revise NDAC 69-05.2-15-04.4a(2)(c) to specify that the rule

is effective for those areas distributed prior to the year 1999, rather

than 1997. Because there is no exact Federal counterpart provision to

the State's proposed revision, 30 CFR 730.11(b) is relevant. It says

that States may promulgate regulations for which no corresponding

provisions exist in SMCRA or the Federal regulations. The effect of

proposed NDAC 69-05.2-15-04.4a(2)(c) is to extend the applicable time

of the rule by two years, to 1999.

The Federal regulations at 30 CFR 816.22 allow an operator to

demonstrate to the regulatory authority that the resulting soil medium

of substituting or supplementing the overburden soil medium is equal to

or more suitable for sustaining vegetation.

OSM notes that the technical information submitted when the

alternative was first approved indicates that adverse effects on

vegetation were unlikely. Further, permittees employing the alternative

are still responsible for meeting revegetation success standards at the

end of the responsibility period.

North Dakota explained (administrative record Nos. ND-Y-13, 14, 16)

that the time extension until 1999 is necessary because a draft of a

study, which just became available in 1997, and which examined the

option of respreading a lesser amount of suitable plant growth material

rather than the procedure imposed by existing North Dakota State rules,

shows no difference in vegetation results and therefore there is no

rational basis for not allowing the State to allow its operators to use

the

[[Page 22891]]

less expensive option. In addition, before the study is finalized and

data completely synthesized and analyzed, the State sees no reason why

the option should not be continued until its 1999 sunset provision is

eliminated and the option becomes permanent.

The Director agrees with the State and finds that the proposed

revision to NDAC 69-05.2-15-04.4.a(2)(c) is not inconsistent with the

Federal regulations at 30 CFR 816.22 and approves the proposed

revision.

6. NDAC 69-05.2-19-04.2, Performance Standards for the Disposal of

Noncoal Wastes

The modified regulation as proposed by North Dakota would provide

as follows:

Noncoal wastes including concrete products, plastic material,

abandoned mining machinery, wood materials, and other non-hazardous

materials generated during mining and noncoal waste materials from

activities outside the permit area, such as municipal wastes, must

be placed and stored in a controlled manner in a designated approved

portion of the permit area. Placement and storage must ensure that

leachate and surface runoff do not degrade surface or ground water,

fires are prevented, and that the area remains stable and suitable

for reclamation and revegetation compatible with the natural

surroundings. Any wastes containing asbestos may not be disposed of

in the permit area unless specific approval is obtained from the

state department of health. Solvents, grease, lubricants, paints,

flammable liquids, and other combustible materials must be disposed

off the permit area except for land treatments of small spills as

approved by the state department of health.

The Federal regulations at 30 CFR 816.89(a) provide for placement

and storage of noncoal mine wastes such as grease, lubricants,

flammable liquids, garbage and abandoned mining machinery in a

controlled manner in a designated portion of the permit area. In

addition, .89(a) goes on to say that ``Placement and storage shall

ensure that leachate and surface run off do not degrade surface or

ground water, that fires are prevented, and that the area remains

stable and suitable for reclamation and revegetation compatible with

the natural surroundings. The Federal regulations at 30 CFR 816.89(b)

provide that final disposal of such noncoal mine wastes shall be in a

designated disposal site in the permit area or a State-approved solid

waste disposal area. They go on to state ``Disposal sites in the permit

area shall be designed and constructed to ensure that leachate and

drainage from the noncoal waste area does not degrade surface or

underground water.'' Further, that ``Wastes shall be routinely

compacted and covered to prevent combustion and wind-borne waste.'' And

that ``When disposal is completed, a minimum of 2 feet of soil cover

shall be placed over the site, slopes stabilized, and revegetation

accomplished in accordance with 886.111 through 886.116.'' Finally,

that ``Operation of the disposal site shall be conducted in accordance

with all local, State, and Federal requirements.''

North Dakota's proposed requirement at NDAC 69-05.2-19-04.2 that

``solvents, grease, lubricants, paints, flammable liquids, and

combustibles in general, be disposed of off the permit area'' is

consistent with the federal regulation insofar as the federal

regulations at 30 CFR 816.89(b) anticipate disposal of non-coal wastes

either in a designated disposal site on the permit area or in a State-

approved solid-waste area. The North Dakota Department of Health rules

at NDAC 33-20-04.1 contain the general performance standards for solid

waste management facilities including performance standards for, among

other things, location, plan of operation, record keeping and

reporting, closure, transfer stations, baling and compaction systems

and drop box facilities, solid wastes and resource recovery, and

general disposal.

The state also proposes that, ``any wastes containing asbestos may

not be disposed of in the permit area unless specific approval is

obtained from the state department of health.'' There is no direct

Federal counterpart regulation. Pursuant to 30 CFR 730.11(b), States

may promulgate provisions for which no corresponding provisions exist

in SMCRA or the Federal regulations. Moreover, the Director finds that

the State proposal is not inconsistent with the requirements of the

Federal regulations at 30 CFR 816.89.

North Dakota's proposed allowance for the placement and storage of

nonhazardous non-coal waste materials, including concrete, plastic, and

wood, is not less effective than the Federal regulations at 30 CFR

816.89(a). Like the Federal regulations, the State regulations require

that such wastes be placed and stored in a controlled manner in a

designated approved portion of the permit area. The State regulations

also require, like the Federal regulations, that placement and storage

of nonhazardous noncoal wastes ensure that: (1) Leachate and surface

runoff do not degrade surface or ground water; (2) fires are prevented;

and (3) that the area remains stable and suitable for reclamation and

revegetation compatible with the natural surroundings. In addition,

North Dakota solid waste management rules specify detailed standards

for storage and treatment which apply to of nonhazardous solid waste,

including ``solid waste stored or treated in piles, composting, sludge

piles, tire piles . . ., garbage which is in place for more than three

days, putrescible waste, other than garbage, which is in place for more

than three weeks, and other solid waste not intended for recycling

which is in place for more than three months.'' See e.g., NDAC 33-20-

04.1-07 and NDAC 33-20-01.1-04.

North Dakota's proposed rules are different from the Federal

regulations insofar as the State standards for placement and storage of

noncoal waste within the permit area only apply to nonhazardous noncoal

waste. The Federal regulations at 30 CFR 816.89 are not so limited.

That is, the Federal standards for placement and storage of noncoal

wastes apply to all types of noncoal wastes.

The rationale provided by North Dakota for not including standards

for placement and storage of hazardous noncoal wastes on the permit

area is that the State does not allow the storage or placement of

hazardous wastes on the permit area (see the telephone conference call

of 1/23/97 with Jim Deutsch, administrative record No. ND-Y-15). The

State explained that such wastes will be routinely picked up from the

permit area and disposed of off-permit. However, in order to be no less

effective than the counterpart Federal regulations, the State must

provide standards for placement and storage of all types of noncoal

wastes, even if certain wastes will only be stored or placed on the

permit area for a short period of time before they are removed for

disposal off-permit.

Based upon the above discussion, the Director finds that proposed

NDAC 69-05.2-19-04.2 is not inconsistent with the Federal regulations

at 30 CFR 816.89(a) and (b), concerning disposal of noncoal wastes on

the permit site, and approves the proposed rule. However, the State

needs to provide standards for placement and storage of all types of

noncoal wastes and therefore the Director is requiring North Dakota to

further amend the rule to include placement and storage standards for

all types of noncoal wastes.

7. NDAC 69-05.2-22-07.3.c and 4.d, and NDAC 69-05.2-26-05.3.c,

Requirements for Demonstrating Success of Revegetation Prior to Stage 3

Bond Release on Prime Farmland

OSM required at 30 CFR 934.16(aa) that North Dakota revise Chapter

II, Section C in its revegetation document

[[Page 22892]]

and its rules at NDAC 69-05.2-22-07.3.c and 69-05.2-26-05.3.c to

require that, prior to stage 3 bond release on land reclaimed for use

as prime farmland, the permittee demonstrate restoration of

productivity using 3 crop years (finding No. 3.a, 60 FR 36213, 36217

through 18, July 14, 1995; administrative record No. ND-Y-10).

In response to this required amendment, North Dakota proposed to

revise NDAC 69-05.2-22-07.3.c to require, for demonstration of success

of productivity on prime farmland prior to stage 3 bond release

(equivalent to OSM's Phase II release), that the annual average crop

production from the permit area must be equal to or greater than that

of the approved reference area or standard with ninety percent

statistical confidence for a minimum of three crop years. North Dakota

proposed to revise NDAC 69-05.2-26-05.3.c, concerning the demonstration

of restoration of prime farmland productivity, to reference the

measurement period (3 years) for determining average annual crop

production that is specified at proposed NDAC 69-05.2-22-07.3.c. In

addition, North Dakota proposed to revise NDAC 69-05.2-22-07.4.d,

concerning requirements for final or stage 4 bond release (equivalent

to OSM's Phase III release), to reference the demonstration required at

proposed NDAC 69-05.2-22-07.3.c for stage 3 bond release in addition to

the requirement for the completion of the 10 year liability period.

The Federal regulations at 30 CFR 800.40, concerning phase II bond

release on prime farmland, and 30 CFR 823.15(b), concerning the

measurement for success of productivity on prime farmland prior to bond

release, require a successful demonstration of productivity using 3

years of data prior to phase II bond release (equivalent to North

Dakota's stage 3 bond release).

Because North Dakota has, with the revisions described above,

clearly required that a permittee demonstrate restoration of

productivity using 3 crop years prior to stage 3 bond release on land

reclaimed for use a prime farmland, the Director finds that the

proposed revisions to NDAC 69-05.2-22-07.3.c and 4.d and NDAC 69-05.2-

26-05.3.c are no less effective than the Federal regulations at 30 CFR

800.40 and 823.15(b). The Director approves the proposed revisions.

However, because North Dakota has, with the above rule revisions,

only partially satisfied the requirement at 30 CFR 934.16(aa), the

Director is revising 30 CFR 934.16(aa) to state that North Dakota must

revise Chapter II, Section C in its revegetation document to require,

prior to stage 3 bond release on land reclaimed for use as prime

farmland, the permittee demonstrate restoration of productivity using 3

crop years, consistent with the proposed rules discussed in this

finding. (In its side-by-side comparison which it submitted along with

its 3/30/96 State Program Amendment proposal, North Dakota stated that

``once the rule change is in place, North Dakota will make the

appropriate modification to its revegetation document).

8. NDAC 69-05.2-22-07.4.i, Final Bond Release on Previously Mined Areas

North Dakota proposed to revise NDAC 69-05.2-26-07.4.i, concerning

the stage 4 or final bond release requirement for ground cover on

previously mined areas, to delete the phrase ``of living plants'' which

appears whenever the term, ``ground cover'' is used.

The Federal regulations at 30 CFR 816.116(b)(5) require that

vegetative ground cover shall not be less than the cover existing prior

to redisturbance and shall be adequate to control erosion. The

requirements for ground cover at final bond release at proposed NDAC

69-05.2-22-07.4.i are otherwise substantively identical to the Federal

regulations at 30 CFR 816.116(b)(5). North Dakota explained that it

deleted the phrase ``of living plants'' because ``by definition, ground

cover is vegetative'' (administrative record number ND-Y-08) and is

therefore duplicative and unnecessary. Moreover, North Dakota's

existing definition of ``ground cover'' at NDAC 69-05.2-01-02.39 is

substantively identical to the same Federal definition at 30 CFR 701.5.

Both include the statement that ground cover is vegetative.

Based on the aforementioned discussion, the Director finds that the

proposed revision to NDAC 69-05.2-22-07.4.i is no less effective than

the Federal regulation at 30 CFR 816.116(b)(5) and approves the

proposed revision.

9. NDAC 69-05.2-22-07.4.j, Final Bond Release Requirements for Ground

Cover on Areas to be Developed for Water, Residential, or Industrial

and Commercial Uses

North Dakota proposed to revise NDAC 69-05.2-22-07.4.j, concerning

the final bond release requirement that ground cover must not be less

than that required to control erosion, to delete a reference to

``recreation'' so that the rule applies only to ``areas to be developed

for water, residential, or industrial and commercial uses within two

years after the completion of grading or soil replacement'' and to

delete the phrase ``of living plants'' after ``ground cover `of living

plants' on these areas must not be less than required to control

erosion.''

North Dakota's requirement at proposed NDAC 69-05.2-22-07.4.j, that

ground cover, prior to final bond release, must be not be less than

that required to control erosion, is substantively identical to the

requirement for ground cover on land developed for residential or

commercial and industrial use at 30 CFR 816.116(b)(3). North Dakota's

proposed deletion of the reference to ``recreation'' is appropriate

because proposed NDAC 69-05.2-22-07.4.k now addresses standards for

land reclaimed for use as recreation (see discussion in finding No. 10

below). The deletion of the word ``areas'' after water is editorial in

nature and does not affect the substance of the rule. As stated in the

preceding finding No. 8, North Dakota explained that the term ``of

living plants'' is duplicative since ground cover by definition is

living plants.

Therefore, the Director finds that the proposed revisions to NDAC

69.05.2-22-07.4.j are no less effective than the Federal regulations at

30 CFR 816.116(b)(3) and approves the proposed revisions.

10. NDAC 69-05.2-22-07.4.k, final Bond Release requirements for Ground

Cover and Woody Plant Stocking and Plant Establishment Standards on

Areas Developed for Recreation

OSM required at 30 CFR 934.16(bb) that North Dakota revise Chapter

II, Section I in its revegetation document and its rule at NDAC 69-

05.2-22-07(4)(j) to require tree and shrub stocking standards that meet

all requirements in 30 CFR 816.116(b)(3), including approval by the

appropriate State agencies, on land reclaimed for use as recreation.

OSM also required that North Dakota also provide documentation of

consultation with and approval from the appropriate State agencies for

the ground cover standard in Chapter II, Section I on land reclaimed

for use as recreation. (finding No. 3.e, 60 FR 36213, 36219, July 14,

1995; administrative record No. ND-Y-10).

In response to the required amendment at 30 CFR 934.16(bb), North

Dakota proposed to add a new rule at NDAC 69-05.2-22-07.4.k, concerning

land reclaimed for use as recreation, that requires (1) Standards for

woody plants by reference to NDAC 69-05.2-22-07.4e(1) and f, existing

approved rules for respectively, revegetation in general and fish and

wildlife habitat or

[[Page 22893]]

shelterbelts standards, and (2) ground cover not less than that

required to achieve the approved postmining land use.

For areas developed for use as recreation, the Federal regulations

at 30 CFR 816.116(b)(3) (i) through (iii) and 817.116(b)(3) (i) through

(iii) require, that success of revegetation be determined on the basis

of tree and shrub stocking and vegetative ground cover and include the

requirements that, among other things, (1) Permit specific or

programwide minimum stocking and planting arrangements shall be

specified by the regulatory authority on the basis of local and

regional conditions and after consultation with and approval by the

State agencies responsible for the administration of forestry and

wildlife programs, (2) trees and shrubs counted in determining such

success shall be healthy and have been in place for not less than two

growing seasons, (3) at least 80 percent of the trees and shrubs used

to determine such success shall have been in place for 60 percent of

the applicable minimum period of responsibility, and (4) vegetative

ground cover shall not be less than that required to achieve the

approved postmining land use.

By referencing the tree and shrub standards at previously approved

NDAC 69-05.2-22-07.4e(1) and f, North Dakota has included in its

requirements for final bond release on land developed for recreation,

woody plant (i.e. tree and shrub) standards that are no less effective

than the requirements in the Federal regulations at 30 CFR

816.116(b)(3) (i) and (ii). North Dakota's proposed requirement that

ground cover must not be less than required to achieve the approved

postmining land use is substantively identical to the Federal

regulations at 30 CFR 816.116(b)(3)(iii). OSM erred in its requirement

that ground cover standards must also meet the consultation and

approval requirement of appropriate State agencies. That requirement is

only applicable to woody plants.

Based on the above discussion, the Director finds that North

Dakota's proposed revisions to NDAC 69-05.2-22-07.4.k are no less

effective than the Federal regulations at 30 CFR 816.116(b)(3) and

817.116(b)(3). The Director approves the proposed revisions to NDAC 69-

05.2-22-07.4.k.

However, because North Dakota has, with the above rule revisions,

only partially satisfied the requirement at 30 CFR 934.16(bb), the

Director is revising 30 CFR 934.16(bb) to state that North Dakota must

revise Chapter II, Section C in its revegetation document to require

tree and shrub stocking standards that meet all requirements in 30 CFR

816.116(b)(3), including approval by the appropriate State agencies, on

land reclaimed for use as recreation. It should be noted that in the

``Changes and Legal Effect'' column of the side-by-side comparison

chart that North Dakota submitted with this State Program Amendment,

North Dakota stated that it would make the appropriate modification to

its revegetation document ``once these rule changes are in place''

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that we 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 Sec. 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 (administrative record

No. ND-Y-01).

The U.S. Natural Resources Conservation Service, responded on June

18, 1996 (administrative record No. ND-Y-07), with the following

comment concerning the performance standards for prime farmland:

The [North Dakota's] previous standards stated that crop

production on prime farmland must be equal to or greater than that

of approved reference areas for three consecutive years. It now

states that annual average crop production must be equal to or

greater than that of approved reference areas for a minimum of three

crop years.

Our understanding of this change is that it would allow the

performance standards to be dependent upon the selection of three

years of yield information instead of the last three years of crop

production. This would allow the selection of the most optimum data

and may not truly reflect the average production of the permit area.

This change seems to weaken the language related to the performance

standards.

The commenter referred to the revisions proposed by North Dakota at

NDAC 69-05.2-22-07.3.c and 69-05.2-26-05.3.c. North Dakota revised

these rules to require a demonstration of restoration of productivity

on prime farmland prior to stage 3, rather than stage 4, bond release,

using the average annual yields from 3 crop years rather than from 3

consecutive crop years. It is the comparison of yield data from the

reclaimed area to yield data from nonmined prime farmland (or to a

technical standard determined from data applicable to the reclaimed and

surrounding nonmined prime farmland) that determines whether

restoration of productivity is successful. Because crop data will

fluctuate accordingly for both mined and nonmined prime farmland, a

meaningful comparison can be made whether the 3 years are consecutive

or not. In addition, because the Federal regulations at 30 CFR 730.5(b)

only require that a State's laws be ``in accordance with'' and ``no

less effective than'' the Federal regulations meeting the requirements

of SMCRA, the Director does not have the authority to require standards

in excess of the Federal regulations that implement SMCRA. For this

reason, the Director is not requiring that North Dakota further revise

its program in response to this comment.

The U.S. Fish and Wildlife Service responded on May 3, 1996

(administrative record No. ND-Y-04), that the proposed changes were

logical and reasonable.

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.).

OSM solicited EPA's concurrence with the proposed amendment

(administrative record No. ND-Y-01). EPA responded on April 30, 1996

(administrative record No. ND-Y-09), with its concurrence.

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

V. Director's Decision

Based on the above findings, the Director approves, as discussed

in:

Finding No. 1, nonsubstantive revisions reflecting editorial

changes to include the new names of the U.S. Natural Resource

Conservation Service and the North Dakota Department of Health;

Finding No. 2, NDAC 69-05.2-19-04.3 and 69-05.2-22-07.3.c,

concerning substantive revisions that are

[[Page 22894]]

substantively identical to the corresponding provisions of the Federal

regulations; concerning substantive revisions that are substantively

identical to the corresponding provisions of the Federal regulations;

Finding No. 3, NADC 69-05.2-09-02.8, concerning permit application

requirements for noncoal waste disposal;

Finding No. 4, NADC 69-05.2-09-02, concerning general requirements

for an annual map;

Finding No. 5, NADC 69-05.2-15-04.4a(2)c, concerning an alternative

method for determining the requirements for soil redistribution;

Finding No. 6, NADC 69-05.2-19-04.2, concerning performance

standards for the disposal of noncoal wastes;

Finding No. 7, NADC 69-05.2-22-07.3.c and 4.d and NDAC 69-05.2-26-

05.3.c, concerning requirements for demonstrating success of

revegetation prior to stage 3 bond release on prime farmland;

Finding No. 8, NADC 69-05.2-22-07.4.i, concerning final bond

release requirements for ground cover on previously mined areas;

Finding No. 9, NDAC 69-05-22-07.4.j, concerning final bond release

requirements for ground cover on areas to be developed for water,

residential or industrial and commercial uses; and

Finding No. 10, NDAC 69-05-22-07.4.k, concerning final bond release

requirements for ground cover and woody plant stocking and plant

establishment standards on areas developed for recreation.

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

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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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(c)(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.

6. Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface mining, Underground mining.

Dated: April 2, 1997.

Richard J. Seibel,

Regional Director, Western 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 934--NORTH DAKOTA

1. The authority citation for 30 CFR part 934 continues to read as

follows:

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

2. Section 934.15 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 934.15 Approval of North Dakota regulatory program amendments.

* * * * *

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

Original amendment submission

date Date of final publication Citation/description

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

* * * * * *

*

March 20, 1996.................. April 28, 1997................. NDAC 69-05.2-09-02.8 -13-02, -15-04.4a(2)c, -

19-04.2, 3, -22-07.3.c, 4.d, 4.i, -26-

05.3.c; 69-05, 22-07.4.j, .k; changes to new

names of U.S. Natural Resource Conservation

Service and the North Dakota Department of

Health.

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

[[Page 22895]]

3. Section 934.16 is amended by revising paragraphs (aa) and (bb)

and adding (cc) to read as follows:

Sec. 934.16 Required program amendments.

* * * * *

(aa) by June 27, 1997, North Dakota shall revise Chapter II,

Section C of its revegetation document to require, prior to stage 3

bond release on land reclaimed for use as prime farmland, the permittee

demonstrate restoration of productivity using three crop years.

(bb) By June 27, 1997, North Dakota shall revise Chapter II,

Section C in its revegetation document to require tree and shrub

stocking standards that meet all requirements in 30 CFR 816.116(b)(3),

including approval by the appropriate State agencies, on land reclaimed

for use as recreation.

(cc) By June 27, 1997, North Dakota shall revise its rules at NDAC

69-05.2-19-04.2, ``Performance Standards for Disposal of Noncoal

Wastes,'' to include placement and storage standards for all types of

noncoal hazardous wastes.

[FR Doc. 97-10823 Filed 4-25-97; 8:45 am]

BILLING CODE 4310-05-M