North Dakota Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-038-FOR, Amendment NO. XXVII]

North Dakota Regulatory Program

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

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

hearing on proposed amendment.

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

announcing receipt of a proposed amendment to the North Dakota

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

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

proposed amendment consists of the addition of the: definition of water

supply, and revision of existing rules on: rulemaking notices,

consolidation of information in permits, water management design plans,

annual maps, wildlife monitoring reports, subsoil removal approvals,

soil respreading requirements, sedimentation pond performance

standards, and noncoal waste disposal. In addition to the above, the

U.S. Office of Surface Mining is proposing to: remove the program

requirement at 30 CFR 934.16(n) concerning the submission of specific

fish and wildlife resource information.

The amendment is intended to revise the North Dakota program to be

consistent with the corresponding Federal regulations and incorporate

the additional flexibility afforded by the revised Federal regulations

and provide additional safeguards, and clarify ambiguities, and improve

operational efficiency.

DATES: Written comments must be received by 4:00 p.m., m.d.t. October

21, 1998. If requested, a public hearing on the proposed amendment will

be held on October 16, 1998. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.d.t. on October 6, 1998.

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

Padgett at the address listed below.

Copies of the North Dakota program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed

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amendment by contacting OSM's Casper Field Office.

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

Reclamation and Enforcement, 100 East ``B'' Street, Federal Building,

Room 2128, Casper, Wyoming 82601-1918, Telephone: 307/261-6550

Jim Deutsch, Director, Reclamation Division, North Dakota Public

Service Commission, Capitol Building, 600 E. Boulevard Ave., Bismarck,

North Dakota 58505-0480, Telephone: 701/328-2251

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: 307/261-6550; Internet: [email protected]

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 and 934.16.

II. Proposed Amendment

By letter dated September 2, 1998, North Dakota submitted a

proposed amendment to its program pursuant to SMCRA (Amendment number

XXVII, administrative record No. ND-BB-01, 30 U.S.C. 1201 et seq.).

North Dakota submitted the proposed amendment in response to a July 17,

1997 letter (administrative record No. ND-BB-02) that OSM sent to North

Dakota in accordance with 30 CFR 732.17(c), and in response to the

required program amendments at 30 CFR 934.16(cc) and at its own

initiative. The provisions of the North Dakota Administrative Code

(NDAC) that North Dakota proposed to revise and add were: (1) NDAC 69-

05.2-01-02.90, Replacement of water supply; (2) NDAC 69-05.2-01-03,

publication of hearing notices; (3) NDAC 69.05.2-05-09, Permit

Applications--Consolidation for multiple permit operations; (4) NDAC

69-05.2-09-09, Permit applications--Operation plans--Surface water

management--Ponds, impoundments, banks, dams, embankments, and

diversions; (5) NDAC 69-05.2-13-02, Performance standards--General

requirements--Annual map; (6) NDAC 69-05.2-13-08, Performance

standards--General requirements Protection of fish, wildlife, and

related environmental values; (7) NDAC 69-05.2-15-02, Performance

standards--Suitable plant growth material--Removal; (8) NDAC 69-05.2-

15-04, Performance standards--Suitable plant growth material--

Redistribution; (9) NDAC 69-05.2-16-09, Performance standards--

Hydrologic balance--Sedimentation ponds; and (10) NDAC 69-05.2-19-04,

Performance standards--Waste materials--Disposal of noncoal wastes. In

addition, the U.S. Office of Surface Mining is proposing to remove the

program requirement at 30 CFR 934.16(n) which would have revised NDAC

69-05.2-08-15(3)(a), to require the submission of site-specific fish

and wildlife resource information when the permit or adjacent areas are

likely to include species listed or proposed to be listed by North

Dakota under State statutes similar to the Endangered Species Act.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h), OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the North Dakota program.

1. Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Casper Field Office will not

necessarily be considered in the final rulemaking or included in the

administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

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

m.d.t. on October 6, 1998. Any disabled individual who has need for a

special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. The location

and time of the hearing will be arranged with those persons requested

the hearing. If no one requests an opportunity to testify at the public

hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

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

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

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

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

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 12988

The Department of the Interior had 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 State 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))

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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 date 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: September 10, 1998.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 98-25116 Filed 9-18-98; 8:45 am]

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