Missouri Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925

[SPATS No. MO-035-FOR]

Missouri Regulatory Program

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

ACTION: Final rule; approval of amendment.

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

is approving an amendment to the Missouri regulatory program (Missouri

program) under the Surface Mining Control and Reclamation Act of 1977

(SMCRA). Missouri proposed normal husbandry practices that the

permittee may use without causing the Phase III liability period or the

five-year responsibility period to be extended. The practices include

applying pesticides and soil amendments; subsoiling; repairing rills

and gullies; burning; overseeding; and planting and pruning trees.

Missouri intends to revise its program to be consistent with the

corresponding Federal regulations.

EFFECTIVE DATE: October 28, 1999.

FOR FURTHER INFORMATION CONTACT: John W. Coleman, Office of Surface

Mining, Mid-Continent Regional Coordinating Center, Alton Federal

Building, 501 Belle Street, Alton, Illinois 62002. Telephone: (618)

463-6460. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Missouri Program

On November 21, 1980, the Secretary of Interior conditionally

approved the Missouri program. You can find general background

information on the Missouri program, including the Secretary's

findings, the disposition of comments, and the conditions of approval

in the November 21, 1980, Federal Register (45 FR 77017). You can find

later actions on the Missouri program at 30 CFR 925.12, 925.15, and

925.16.

II. Submission of the Proposed Amendment

By letter dated October 10, 1990, Missouri sent us an amendment to

its program under SMCRA (Administrative Record No. MO-519). We

announced receipt of the amendment in the November 1, 1990, Federal

Register (55 FR 46076) and invited public comment on its adequacy. The

public comment period closed December 3, 1990. In the September 29,

1992, Federal Register (57 FR 44660), we approved the amendment with

exceptions. The exceptions included revisions to

[[Page 57979]]

Missouri's rule at 10 CSR 40-7.021(1)(B)2 concerning normal husbandry

practices. We did not approve this rule because Missouri had not

provided evidence to substantiate the use of each proposed practice as

a normal husbandry practice. As codified at 30 CFR 925.16(p)(15), we

required Missouri to provide such evidence for the administrative

record or to delete the rule at 10 CSR 40-7.021(1)(B)2.

By letter dated June 4, 1999, Missouri submitted agricultural

publications and guidelines as supporting documentation for the normal

husbandry practices proposed in its rule at 10 CSR 40-7.021(1)(B)2. We

announced receipt of the supporting documentation for Missouri's

proposed normal husbandry practices in the June 17, 1999, Federal

Register (64 FR 32449). In the same document, we opened the public

comment period. The public comment period closed on July 19, 1999.

We are also taking this opportunity to remove the required

amendments codified at 30 CFR 925.16(p)(7) and 925.16(p)(8). Missouri

satisfied these required amendments in a previous submittal dated

December 14, 1995 (Administrative Record No. MO-633).

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15

and 732.17, are our findings concerning Missouri's amendment.

A. Required Amendment at 30 CFR 925.16(p)(15): 10 CSR 40-7.021(1)(B)2.

Normal Husbandry Practices

1. Missouri's rule at 10 CSR 40-7.021(1)(B)2 would allow the

permittee to use specified normal husbandry practices. Using these

practices will not cause the Phase III liability period or the five-

year responsibility period to be extended if the permittee can

demonstrate that: (1) discontinuance of these measures after the

liability period expires will not reduce the probability of permanent

revegetation success; (2) the practices are normal husbandry practices

within the region on unmined lands having land uses similar to the

approved postmining land use of the areas; and (3) the practices are

necessary to prevent exploitation, destruction or neglect of the

resource and to maintain the prescribed level of use or productivity.

The Federal regulations at 30 CFR 816.116(c)(4) for surface mining

operations and 817.116(c)(4) for underground mining operations allow

the regulatory authority to approve selective husbandry practices,

excluding augmented seeding, fertilization, or irrigation, without

extending the period of responsibility for revegetation success and

bond liability, under specified conditions. The regulatory authority

must obtain prior approval from OSM in accordance with 30 CFR 732.17

that the practices are normal husbandry practices that can be expected

to continue as part of the postmining land use, or if discontinuance of

the practices after the liability period expires will not reduce the

probability of permanent revegetation success. Approved practices must

be normal husbandry practices within the region for unmined lands

having land uses similar to the approved postmining land use of the

disturbed area. We find that Missouri's requirements at 10 CSR 40-

7.021(1)(B)2. are no less effective than the requirements of the

counterpart Federal regulations at 30 CFR 816.116(c)(4) and

817.116(c)(4).

2. Missouri specified mowing, applying pesticides, applying soil

amendments, subsoiling, burning, overseeding, and planting and pruning

trees as normal husbandry practices. The application of soil amendments

must be equal to or less than that recommended by the high management

yield goal of the NRCS. Subsoiling must not remove the revegetation

from the surface and is limited to less than two feet below the

surface. Overseeding must only be done to maintain the approved

composition of the vegetation stand. Missouri submitted agricultural

publications and guidelines developed by the University of Missouri--

Columbia Extension Division (UMC); other cooperative extension services

in cooperation with the U.S. Department of Agriculture (DOA); the

Missouri Department of Conservation (MDOC); and the U.S. Natural

Resources Conservation Service (NRCS) as supporting documentation for

these practices.

We determined that the agricultural publications and guidelines

provided by Missouri demonstrate that the listed practices are normal

husbandry practices within the region for unmined lands. We find that

Missouri's proposed normal husbandry practices in 10 CSR 40-

7.021(1)(B)2. meet the requirements of the counterpart Federal

regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4).

3. Missouri also proposed the repair of rills and gullies as a

normal husbandry practice under specified conditions. Repairing rills

and gullies will not cause the Phase III liability period to be

extended when rills and gullies develop after the initiation of the

Phase III liability period and when the repair is restricted to the

filling, grading, and reseeding of the eroded portion of the area.

Missouri submitted guidelines from the NRCS to support this practice.

We determined that the documents submitted by Missouri for this

provision represent normal husbandry practices in the State for repair

of rills and gullies. We believe that by restricting the size of areas

that may be repaired, requiring the eroded portion of the areas to be

filled, and demonstrating that such practices are supported as normal

husbandry practices, Missouri has ensured that the probability of

revegetation success will not be reduced. Therefore, we find that

Missouri's proposed guidelines for repair of rills and gullies are no

less effective than the Federal regulation requirements at 30 CFR

816.116(c)(4) and 817.116(c)(4).

B. Required Amendment at 30 CFR 925.16(p)(7): 10 CSR 40-

3.120(6)(B)2.A., D., and G. and 3.270(6)(B)2.A., D., and G.

Revegetation Standards for Success for Woodland, Wildlife Habitat, and

Recreational Postmining Land Uses

On October 10, 1990, Missouri proposed to amend its rules at 10 CSR

40-3.120(6)(B) 2.A., D., and G and 3.270(6)(B)2.A., D., and G.

(Administrative Record No. MO-519). Missouri proposed a ground cover

success standard of 70 percent for areas to be developed for woodland,

wildlife habitat, and recreation land use. In the September 29, 1992,

Federal Register (57 FR 44660), we did not approve the rule changes

because Missouri did not demonstrate that a vegetative ground cover

standard of 70 percent would achieve the approved post mining land use

as required by the Federal regulations at 30 CFR 816.116(b)(3)(iii) and

817.116(b)(3)(iii). At 30 CFR 925.16(p)(7) we required Missouri to

provide statistical proof that a vegetative ground cover of 70 percent

will in all cases achieve the approved woodland, wildlife habitat, and

recreational postmining land uses or otherwise amend its program to be

no less effective than the Federal regulations at 30 CFR

816.116(b)(3)(iii) and 817.117(b)(3)(iii).

By letter dated December 14, 1995 (Administrative Record No. MO-

633), Missouri submitted a proposed amendment that contained the

statistical proof that we required. Based on this proof, we approved

Missouri's rules at 10 CSR 40-3.120(6)(B)2.A., D., G. and

3.270(6)(B)2.A., D., and G. in the May 28, 1996, Federal Register (61

FR 26454). Therefore, we are removing the required amendment at 30 CFR

925.16(p)(7).

[[Page 57980]]

C. Required Amendment at 30 CFR 925.16(p)(8): 10 CSR 40-3.120(6)(B)2.E.

and 3.270(6)(B)2.E. Revegetation Standards for Success for Pasture Land

Use

On October 10, 1990, Missouri proposed to amend its rules at 10 CSR

40-3.120(6)(B) 2.E. and 3.270(6)(B)2.E. (Administrative Record No. MO-

519). Missouri proposed a ground cover success standard of 90 percent

for areas to be developed for pasture land use. In the September 29,

1992, Federal Register (57 FR 44660), we did not approve this provision

because Missouri did not demonstrate that a vegetative ground cover

standard of 90 percent would achieve the approved post mining land use

as required by the Federal regulations at 30 CFR 816.116(a)(2) and

817.116(a)(2). At 30 CFR 925.16(p)(8) we required Missouri to provide

statistical proof that a vegetative ground cover of 90 percent will in

all cases achieve the approved pasture postmining land use, or

otherwise amend its program to be no less effective than the Federal

regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2).

By letter dated December 14, 1995 (Administrative Record No. MO-

633), Missouri submitted a proposed amendment that contained the

statistical proof that we required. Based on this proof, we approved

Missouri's provisions at 10 CSR 40-3.120(6)(B)2.E. and 3.270(6)(B)2.E.

in the May 28, 1996, Federal Register (61 FR 26454). Therefore, we are

removing the required amendment at 30 CFR 925.16(p)(8).

IV. Summary and Disposition of Comments

Public Comments

We requested public comments on the amendment, but did not receive

any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from various Federal agencies with an actual or potential

interest in the Missouri program (Administrative Record No. MO-656.1).

We did not receive any comments on the amendment.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written

agreement from the EPA with respect to those provisions of the program

amendment that relate to air or water quality standards issued under

the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the

Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that

Missouri proposed to make in this amendment pertain to air or water

quality standards. Therefore, we did not ask the EPA to agree on the

amendment.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the

amendment from the EPA (Administrative Record No. 656.1). The EPA did

not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from

the SHPO and ACHP on amendments that may have an effect on historic

properties. On June 9, 1999, we requested comments on Missouri's

amendment (Administrative Record No. MO-656.1), but neither responded

to our request.

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us

by Missouri on June 4, 1999.

To implement this decision, we are amending the Federal regulations

at 30 CFR Part 925, which codify decisions concerning the Missouri

program. We are making this final rule effective immediately to

expedite the State program amendment process and to encourage Missouri

to bring its program into conformity with the Federal standards. SMCRA

requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) exempts this rule from

review under Executive Order 12866 (Regulatory Planning and Review).

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, to the extent allowed by law, 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 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on State regulatory

programs and program amendments 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.

National Environmental Policy Act

This rule does not require an environmental impact statement since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on 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)).

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.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

corresponding 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. Therefore, this rule will ensure that existing requirements

previously published 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 corresponding Federal regulations.

Unfunded Mandates

OSM has determined and certifies under the Unfunded Mandates Reform

Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of

$100 million or more in any given year on local, state, or tribal

governments or private entities.

List of Subjects in 30 CFR Part 925

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 13, 1999.

Richard J. Seibel,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 925 is amended

as set forth below:

PART 925--MISSOURI

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

follows:

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

[[Page 57981]]

2. Section 925.15 is amended in the table by adding a new entry in

chronological order by ``Date of final publication'' to read as

follows:

Sec. 925.15 Approval of Missouri regulatory program amendments.

* * * * *

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Original amendment submission Date of final

date publication Citation/description

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June 4, 1999.................. 10-28-9

9. 10 CSR 40-

7.021(1)(B)2........

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Sec. 925.16 [Amended]

3. Section 925.16 is amended by removing and reserving paragraphs

(p)(7), (p)(8), and (p)(15).

[FR Doc. 99-28230 Filed 10-27-99; 8:45 am]

BILLING CODE 4310-05-P