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: 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 North Dakota regulatory program under

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

[[Page 60655]]

North Dakota proposed revisions to rules for the definition of

replacement of water supply, the issuance of rules, consolidation for

multiple permit operations, the submission of an annual map to the

Commission for all permit areas, and performance standards for the

disposal of noncoal wastes. North Dakota intends to revise its program

to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 8, 1999.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: (307) 261-

6550, Internet address: [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. You can find background information

on the North Dakota program, including the Secretary's findings, the

disposition of comments, and the conditions of approval in the December

15, 1980, Federal Register (45 FR 82214). You can find later actions on

North Dakota's program and program amendments at 30 CFR 934.15 and

934.16.

II. Proposed Amendment

By letter dated September 2, 1998, (Administrative Record No. ND-

BB-01) North Dakota sent us an amendment to its program under SMCRA.

North Dakota's amendment was in response to a July 17, 1997 letter

(administrative record No. ND-BB-02) that we sent 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.

We announced receipt of the amendment in the September 21, 1998,

Federal Register (63 FR 50177). In the same document we opened the

public comment period and provided an opportunity for a public hearing

or meeting on the adequacy of the amendment. Because no one requested a

public hearing or meeting, we did not hold one. The public comment

period closed on October 21, 1998.

III. Director's Findings

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

and 732.17, are our findings concerning the amendment. As discussed

below, in accordance with SMCRA and 30 CFR 732.15 and 732.17, we find

that the proposed program amendment submitted by North Dakota on

September 2, 1998, is no less effective than the corresponding Federal

regulations. Accordingly, we approve the proposed amendment.

1. NDAC 69-05.2-01-02.90, Replacement of water supply. North Dakota

submitted a definition of ``Replacement of Water Supply,'' in

accordance with the Federal definition at 30 CFR 701.5 and pursuant to

a June 5, 1996 letter from OSM (administrative record No. ND-BB-13).

The proposed definition is very similar to the OSM definition

except for the last part. Paragraph b(2) of the definition places

additional requirements on a mining company when the water supply is

not needed and the water supply owner waives the replacement of a

premine water delivery system. The new language will require mining

companies, when applying for final bond release, to provide public

notice if the landowner waives the replacement of a premine water

delivery system. The waiver would have to be clearly discussed in a

newspaper advertisement and in letters that the mining company must

provide as part of the bond release process. Based on comments received

by the State on the final bond release application, the Commission will

decide if a replacement water delivery system is needed to protect the

public interest. If the Commission determines that a replacement water

delivery system is needed, it would have to be installed by the mining

company prior to the Commission granting final bond release. Providing

the notice as part of the bond release process also gives interested

persons the opportunity to request an informal conference on the bond

release application and a formal hearing on the Commission's bond

release decision. In accordance with Section 505(b) of SMCRA and the

Federal regulations at 730.11(b), the State regulatory authority has

the discretion to impose land use and environmental controls and

regulations of surface coal mining and reclamation operations that are

more stringent than those imposed under SMCR and the Federal

regulations. Moreover, the State regulatory authority has the

discretion to impose land use and environmental controls and

regulations of surface coal mining and reclamation operations for which

no federal counterpart exists. Section 505(b) of SMCRA and 30 CFR

730.11(b) dictate that such provisions shall not be construed to be

inconsistent with the Federal program. Accordingly, the Director is

approving the proposed revision to 69-05.2-01-02.90.

2. NDAC 69-05.2-01-03, Publication of hearing notices. Current NDAC

69-05.2-01-03(5) deals with public hearings required in connection with

the proposal of the issuance, amendment, or repeal of a rule and

provides as follows:

The commission will publish notice of hearing twice in the

official newspapers of each county in which surface coal mining

operations occur and each daily newspaper of general circulation in

the state. The commission will file the notice of hearing with the

legislative council. The commission will cause the first publication

and the filing with the legislative council to occur at least thirty

days before the hearing.

The State proposed to change the provision to require that the

commission will cause the last (rather than the first) publication, as

well as the filing with the legislative council, to occur at least

thirty days before the hearing. This change is being made to be

consistent with legislative changes to North Dakota's Administrative

Practices Act and will result in more advance notice of hearings. There

is no Federal counterpart regulation. This proposed rule is not

inconsistent with any provision of the Federal program; therefore, we

approve it.

3. NDAC 69.05.2-05-09, Permit Applications--Consolidation for

multiple permit operations. There is no federal counterpart to this

proposed rule. The current North Dakota rule allows permit monitoring

plans to be consolidated into a single plan if a plan covers multiple

permits. Most mines in North Dakota are incrementally permitted and

therefore have multiple permits that apply to a given mine site.

[[Page 60656]]

Each of these permits contains nearly identical surface water, ground

water, and wildlife monitoring plans. Any revision to the consolidated

plan requires the filing of only one revision (to the most recently

issued permit) rather than multiple revisions. We approved North

Dakota's use of consolidated monitoring plans in the April 13, 1995

Federal Register (60 FR 18744, administrative record No. ND-BB-16).

North Dakota's proposed revision would give the North Dakota Public

Service Commission discretion to allow other required permit

information and plans to be consolidated into a single document that

covers more than one permit. Some examples of other permit information

that could be appropriately consolidated are ownership and control

information, violation history, lease information, permit and license

listings.

North Dakota believes that consolidation is logical and appropriate

where the same information applies to more than one permit. Thus

consolidation would save time and effort for both the permittee and the

State with no loss of information required by the approved State

Program. The Commission would not allow the consolidation of site-

specific mining and reclamation plans that apply to only one permit and

therefore would not be appropriate for consolidation.

In a September 30, 1999 telephone conversation with Jim Deutsch,

director of North Dakota Public Service Commission's Reclamation

Division (administrative record No. ND-BB-17), Mr. Deutsch stated that

the proposed rule has similar requirements and the same rationale that

was submitted in writing to us with State Program Amendment ND-31-FOR

(North Dakota amendment XXI) which OSM approved in the April 13, 1995

Federal Register (60 FR 18744, administrative record No. ND-BB-16). As

outlined in the April 13, 1995 Federal Register, each consolidated

document would be subject to the following requirements:

1. The consolidation of information and plans will be limited to

sections of the permit application where the same information and plans

cover more than one permit area. Each consolidated document will is

subject to the approval procedures established for permit revisions.

2. Each mining permit must be revised to describe the specific

information and plans to be consolidated into a single document

covering the entire surface coal mining and reclamation under permit.

3. Each consolidated document is subject to review by the

Commission at the time of the midterm review or renewal for each permit

covered by the consolidated document in accordance with section 69-

05.2-11-01.

4. A permittee may propose modifications to a consolidated document

by filing a permit revision application to the most recently issued

permit covered by the consolidated document.

In addition, a separate consolidated plan would have to be

developed for each category of plans (e.g., violation history, lease

information, permit and license listings, ownership and control

information). This would allow for easier review of the consolidated

plans by both the regulatory authority and the public where one mine is

covered by multiple permits.

Also, individual permits would contain appropriate references to

the various consolidated plans and the consolidated plans would be part

of each permit. Since consolidated plans will be considered part of

each mining permit they cover, failure to comply with the consolidated

plans will subject the permittee to the same enforcement action as

would the failure to comply with any other part of a mining permit. A

single violation would be issued that lists all permits covered by the

consolidated plan. North Dakota uses this same practice for violations

of performance standards or requirements that are the same in more than

one permit.

Since consolidated plans may have to be revised, the reference in

each permit must be to the most current consolidated plan. North Dakota

will review each consolidated plan as part of its midterm and permit

renewal reviews and will require any necessary revisions that result

from these reviews. The North Dakota Public Service Commission is not

precluded from reviewing permits an requiring permit revisions more

frequently than at midterm or permit renewal (every five years). This

applies to more frequent reviews of consolidated plans if necessary.

The permittee may request revision of a consolidated plan by applying

for a permit revision to the most recently issued permit covered by the

consolidated plan. When new areas are added to a mining operation by

application for new permits, the consolidated plan for the operation

will have to be updated, and the updated consolidated plan will be

subject to the approval procedures for permit applications. Following

final bond release of any portion of the area covered by the

consolidated plan, the permittee would have to continue monitoring that

area (and/or continue complying with the applicable consolidated plan)

until the consolidated plan was revised to delete the released area

from the applicable plan(s).

Based upon the above discussion, this proposed rule is not

inconsistent with the Federal regulations; therefore, we approve it.

4. NDAC 69-05.2-09-09, Permit application--Operation Plans--Surface

Water Management--Ponds, impoundments, banks, dams, embankments, and

diversions. North Dakota is proposing to have operators submit a

general surface water management plan that identifies and describes

each water management structure and provides preliminary technical

information on the structures. North Dakota's rules do not use the

term, ``siltation structure,'' which is used in the Federal

regulations. Use of that term, however, is not mandatory. Both North

Dakota's rules and the Federal rules, however, require the same thing:

that drain-off water from disturbed areas pass through sedimentation

ponds and meet effluent standards before it leaves the permit area. The

State will require that detailed plans must be submitted and approved

prior to the construction of a structure and that detailed plans must

be included with the application for any structure to be built within

the first year of the permit term. North Dakota will require the

operator to submit with the general plan a schedule for construction of

the structures.

Federal regulations at 30 CFR 780.25(a) allow for a general plan to

be submitted as long as no structures are built without prior approval

and a timetable for construction of proposed structures is included

with the submittal.

Also included in the proposed rule change is the incorporation of

new OSM provisions of ponds meeting certain Natural Resources

Conservation Service (NRCS) criteria. In 1994 (59 FR 53028, Oct. 20,

1994), OSM added additional information requirements for impoundments

meeting Class B and C size criteria at 30 CFR 780.25(a). These changes

were listed as a required program amendment in OSM's July 17, 1997

letter to the Public Service Commission. The State is requiring

operators to submit this additional information for Class B and C

impoundments. Mining Safety and Health Administration (MSHA) standards

require that plans be prepared and certified by a qualified registered

professional engineer. North Dakota states in NDAC 69-05.2-09-16.1(h)

that ``plans must be certified as meeting the

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requirements of this article'' and ``this article'' refers to NDAC 69-

05.2 which includes a references to the MSHA provision on certification

by a professional engineer at 30 CFR 77.216-2(17), as well as to a

requirement (at 30 CFR 77.216(b)) that ``plans . . . be approved by the

District Manager (of MSHA) prior to the beginning of any work

associated with the construction of the impounding structure.''

A new addition to North Dakota rule at NDAC 69-05.2-09-09.2(j)

requires information on any direct connections of the impoundment basin

to ground water flow in the area. This added provision has no Federal

counterpart.

30 CFR 780.25(a)(1)(v) requires that the general plan include a

``certification statement which includes a schedule setting forth the

dates that any detailed design plans for structures that are not

submitted with the general plan will be submitted to the regulatory

authority.'' The State's counterpart is NDAC 69-05.2-09-09 which

states:

d. Include a schedule of the approximate construction dates for

each structure and, if appropriate, a timetable to remove each

structure.

In addition, as stated above, the referenced 30 CFR 77.216(b) states

that plans be approved by the District Manager (of MSHA) prior to the

beginning of any work associated with the construction of the

impounding structure.

Based on the above discussion, the revised rule requires the

submittal of all information that is required by the Federal

regulations and is no less effective than the Federal regulations;

therefore, we approve it.

5. NDAC 69-05.2-13-02, Performance standards--General

requirements--Annual map. There is no federal counterpart to this

proposed rule. The required submission date for the annual map

depicting permit areas and section lines is being moved back one month,

from February to March. The reason is that coal operators in North

Dakota have many other reports due near the beginning of the calendar

year and need the additional month. In addition, the requirement for

quarter lines is being eliminated because it is unnecessary and

clutters the map. We find that this rule is not inconsistent with the

Federal regulations and therefore approve it.

6. NDAC 69-05.2-13-08, Performance standards--General

requirements--Protection of fish, wildlife, and related environmental

values. North Dakota's existing rules include a requirement for the

applicant to report to the Public Service Commission by each February

15 with the management plan results and data derived from the

monitoring plan for the calendar year. The State has proposed to change

the submittal of the monitoring reports to once every 2 years, in even

numbered years. Yearly monitoring must still be carried out in

accordance with approved monitoring plans.

The Federal regulations for protection and enhancement plans (30

CFR 780.16(b)) and performance standards (30 CFR 816.97) do not require

a periodic report from the operator with management plan results and

data derived from the monitoring plan for conducting fish and wildlife

monitoring. Accordingly, we are approving the proposed revisions to

NDAC 69-05.2-13-08.

7. NDAC 69-05.2-15-02, Performance standards--Suitable plant growth

material--Removal. Existing North Dakota rule NDAC 69-05.2-15-02(2)(a)

requires that

(t)he suitable plant growth materials, commonly referred to as

topsoil (first lift suitable plant growth material) and subsoil

(second lift suitable plant growth material) as identified by the

soil survey required by NDAC 69-05.2-08-10 must be removed and

segregated in two separate operations, unless otherwise approved by

the Commission. The topsoil removal operation for an area must be

completed before subsoil removal begins or before any other

disturbances occur in that area. If use of other suitable strata is

approved as a supplement to suitable plant growth material, all such

materials to be saved must be removed and segregated. Further

disturbances which significantly alter an area must not begin until

the subsoil or other suitable strata removal operations for that

area have been completed and approved by the commission.

North Dakota proposes to add the following statement to the end of rule

NDAC 69-05.2-15-02(2)(a),

(h)owever, the commission may waive the approval of subsoil removal

operations if the operator demonstrates, in a detailed soil removal

plan, surplus subsoil is available and that subsoil to be removed

has good and relatively uniform characteristics. A request for such

a waiver must be included as part of a detailed soil removal plan or

permit revision application that contains the necessary information.

The Federal Regulations at 30 CFR 816.22(e) state that for subsoil

segregation, ``[t]he regulatory authority may require that the B

horizon, C horizon, or other underlying strata, or portions thereof, be

removed and segregated, stockpiled, and redistributed as subsoil in

accordance with the requirements of paragraphs (c) and (d) of this

section if it finds that such subsoil layers are necessary to comply

with the revegetation requirements of Secs. 816.111, 816.113, 816.114,

and 816.116 of this Chapter.''

North Dakota is proposing additional language to subsection 2 of

NDAC 69-05.2-15-02 to allow the Commission to waive subsoil removal

approvals when the operator demonstrates in a detailed soil removal

plan that there is a surplus of stockpiled subsoil and the subsoil

characteristics are good and relatively uniform. The Commission's rule

has required operators to obtain approvals from the Reclamation

Division once subsoil removal has been completed and before additional

disturbance of the areas occur. The rule change will allow the

Commission to waive such approvals in some instances. The waiving of

this approval process will not reduce the amount of subsoil that must

be removed and saved by the mine operator. A waiver request would be

included as part of an annual soil removal plan or permit revision that

provides the necessary information of soil inventories and a discussion

of subsoil characteristics.

The Federal regulations allow the regulatory authority to require

subsoil segregation. There is no counterpart or discussion in the

Federal regulations for the need for regulatory approval following

completion of subsoil salvage operations and prior to initiation of

additional disturbance. The North Dakota rules would continue to

require subsoil salvage. The proposed amendment would only allow the

State to waive the requirement that operators obtain approvals from the

Reclamation Division once subsoil removal has been completed and before

additional disturbance of the areas occur and only if the operator

makes the required demonstration.

Based on the above discussion, the proposed revisions to NDAC 69-

05.2-15-02(2)(a) are not inconsistent with the Federal regulations and

therefore we approve them.

8. NDAC 69-05.2-15-04, Performance standards--Suitable plant growth

material--Redistribution. Under rule NDAC 69-05.2-15-04(4)(a)(2) North

Dakota includes a tabled title ``Suitable Plant Growth Material

Redistribution Thickness'' that identifies certain spoil properties

(i.e., texture, sodium absorption ratio, and saturation percentage) and

the total redistribution thickness of topsoil plus subsoil that must be

used based on the given spoil properties.

North Dakota rule NDAC 69-05.2-15-04(4)(c) states that this

paragraph is effective only for those areas disturbed prior to the year

1999.

North Dakota proposes to eliminate saturation percentage as one of

the spoil

[[Page 60658]]

properties that must be used to determine total topsoil plus subsoil

redistribution thickness. North Dakota also proposed to delete NDAC 69-

05.2-15-04(4)(c).

The Federal regulations at 30 CFR 816.102(f) require that exposed

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

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

covered with nontoxic and noncombustible material, or treated, to

control the impact on surface and ground water in accordance with

Section 816.41, to prevent sustained combustion, and to minimize

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

In the May 24, 1983 Federal Register promulgating the final rule in

the Permanent Regulatory Program for backfilling and grading, two

commenters were quoted as advocating retaining the 4-foot-cover

requirement for acid- and toxic-forming material. We responded that:

OSM is aware of the many potential problems that attend the

proper disposal of toxic materials. However, a national standard for

cover thickness is not the solution to these problems. Instead, the

regulatory authority should set whatever standards, specific or

otherwise, which provide the best solution within the state. The

problems of interpretation will be avoided by allowing the state

regulatory authorities to set and explain standards designed for

local conditions. These standards must be based on the national

performance standard requiring successful covering or treatment in

accordance with the provisions of 30 CFR 816.102(f).

The change proposes to eliminate saturation percentage as a

parameter used for determining the total soil respread thickness when

it is based on graded spoil characteristics. This change is supported

by North Dakota State University technical report No. 8, (Relation of

Saturation Percentage to Absorption Ratios in North Dakota Soils by

Eugene C. Doll and F. Scott Carter, February 1991) recommended that the

saturation percentage parameter be eliminated since it is of little

practical value. The other change to this rule would eliminate the

sunset clause for allowing total soil respread thicknesses to be based

on regraded spoil characteristics. The North Dakota public Service

Commission originally adopted provisions to base the total soil

respread thickness on graded spoil properties as a result of

reclamation research findings from studies conducted on mined lands in

North Dakota in the late 1970's and early 1980's. The studies were

primarily conducted on small plots and occurred over a relatively short

period of time. Therefore, when the original provision was adopted, the

Commission added a sunset clause (subdivision c of subsection 4) to

require a future review to determine if the provision should be

retained or deleted. While waiting for additional research findings,

the Commission extended the sunset clause on two occasions.

The sunset clause is now being eliminated since a 1997 research

report by North Dakota State University (Reducing the Management

Variable in Assessing Reclamation Success by Gary A. Albertson,

February, 1997) found that yields on areas where the total soil

respread thicknesses were based on the graded spoil properties were as

good as reclaimed areas where all available topsoil and subsoil (up to

60 inches) has been respread.

While the Federal regulations require that exposed coal seams,

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

used, or produced during mining be adequately covered with nontoxic and

noncombustible material, they do not include specific spoil properties

requiring burial or the depth of burial required. North Dakota's

proposed amendment to NDAC 69-05.2-15-04(4) (a)(2), does not reduce the

effectiveness of the existing State rules, and the revised rule is not

inconsistent with the Federal requirements at 30 CFR 816.102(f) and

therefore we approve it.

There is no federal counterpart to NDAC 69-05.2-15-04(4)(c). The

deletion of this rule does not in any way render the State program less

effective than the Federal regulations and therefore we approve it.

9. NDAC 69-05.2-16-09, Performance standards--Hydrologic balance--

Sedimentation ponds. Revisions to this North Dakota rule are being made

by the State to: (1) satisfy program amendment changes required in a

July 17, 1997 letter from the U.S. Office of Surface Mining.

(specifically, the reference to ponds meeting Mining Safety and Health

Administration (MSHA) design criteria has been modified); and (2) to

add performance standards for impoundments that meet the Class B or C

criteria for dams in NRCS Technical Release No. 60 as required by the

U.S. Office of Surface Mining in its July 17, 1997 letter).

As proposed, North Dakota's rules at 69-05.2-16-09.17 and 69-05.2-

16-09.18 are no less effective than the corresponding Federal

regulation at 30 CFR 816.49 dealing with stability, spillway,

foundation investigations, and freeboard hydrograph. However, only NDAC

69-05.2-16-09.18, which refers to impoundments meeting class B or C

criteria for dams, specify foundation testing, not .17, which refers to

the MSHA criteria at 30 CFR 77.216. NDAC 69-05.2-16-09.17.d, however,

states that ``The criteria of the mine safety and health administration

as published in 30 CFR 77.216 must be met.'' Mine Safety and Health

Administration regulations at 30 CFR 77.216-2(a)(5) state that ``The

plan * * * shall contain * * * the following information: A description

of the physical engineering properties of the foundation materials on

which the structure is or will be constructed'' (underlining added for

emphasis). In order to make a description of the physical engineering

properties of the foundation materials, foundation testing must be

done. North Dakota's rule is therefore the equivalent of the Federal

regulations and we approve it.

10. NDAC 69-05.2-19-04, Performance standards--Waste materials--

Disposal of noncoal wastes. This revision is in response to Program

Requirement 934.16(cc) which calls for ``placement and storage

standards for all types of noncoal hazardous wastes.'' North Dakota

proposed adding wording to its rule dealing with disposal of noncoal

wastes generated as part of a mining operation to read as follows:

Placement and storage of all types of noncoal wastes, including any

hazardous materials, * * *

The addition of the language makes the North Dakota rule no less

effective than the Federal regulations at 30 CFR 816.89 and we approve

the revision. We also are removing the required program amendment at 30

CFR 934.16(cc).

11. NDAC 69-05.2-08-15(3)(a). The required program amendment at 30

CFR 934.16(n) requires revision to North Dakota rules for 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.

This required program amendment resulted through a misunderstanding

of the State's statute at NDCC (North Dakota Century Code) 20.1-02-05,

``Powers of the (Game and Fish Department) Director.'' It was

interpreted in the January 9, 1992 Federal Register (57 FR 814) to mean

that North Dakota had its own Endangered Species Act and if in fact it

did, then it needed to refer to it, as the Federal regulations require

at 30 CFR 780.16(a)(2).

After an extensive review of both North Dakota's statute and its

regulations, it is clear that the State statute is referring to the

U.S. Endangered Species Act of 1973. In a

[[Page 60659]]

June 19, 1997 letter (administrative record No. ND-BB-12) to ND

Reclamation Division Director, James R. Deutsch, Natural Resource

Biologist, John Schumacher, who is with the ND Game and Fish

Department, stated that ``North Dakota does not have legislation

governing endangered species,'' and ``We instead defer to the Federal

laws and regulations.'' Therefore the existing State regulations, NDAC

(North Dakota Administrative Code) 69-05.2-08-15(3)(a) are no less

effective than the Federal regulations at 30 CFR 780.16(a)(2)(i) and we

are eliminating the required program amendment at 30 CFR 934.16(n).

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

No individual or State agency name responded to OSM's invitation

for comments.

2. Federal Agency Comments

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

proposed amendment from various Federal agencies with an actual or

potential interest in the North Dakota program.

The Agricultural Research Service of the U.S. Department of

Agriculture responded on October 5, 1998 that it saw no problems with

the proposed changes (administrative record No. ND-BB-05).

The U.S. Fish and Wildlife Service responded on October 9, 1998

that the proposed changes are logical and reasonable and that it did

not anticipate any significant impacts to fish and wildlife resources

as a result of the proposed rules (administrative record No. ND-BB-07).

3. Environmental Protection Agency (EPA) Concurrence and Comments

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

from the EPA for those provisions of the proposed 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.).

We requested EPA's written agreement with the proposed amendment

(administrative record No. ND-BB-03). On October 8, 1998, EPA gave its

written agreement (administrative record No. ND-BB-06).

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

on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we asked for comments on the proposed

amendment from the SHPO and ACHP (administrative record No. ND-BB-03).

Neither SHPO nor ACHP responded to our request.

V. Director's Decision

Based on the above findings, we approve the proposed amendment as

submitted on September 2, 1998.

To implement this decision we are amending the Federal regulations

at 30 CFR Part 934, which codify decisions concerning the North Dakota

program. We are making this final rule effective immediately to

expedite the State program amendment process and to encourage North

Dakota to bring its programs into conformity with the Federal

standards. SMCRA requires consistency of State and Federal standards.

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: October 13, 1999.

Brent Wahlquist,

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 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.

* * * * *

[[Page 60660]]

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Date of final

Original amendment submission date publication Citation/description

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* * * * * *

*

9/2/98........................................ 11-8-99 NDAC 69-05.2.90

NDAC 69-05.2-01-03

NDAC 69-05.2-05-09

NDAC 69-05.2-09-09

NDAC 69-05.2-13-02

NDAC 69-05.2-13-08

NDAC 69-05.2-15-02

NDAC 69-05.2-15-04

NDAC 69-05.2-16-09

NDAC 69-05.2-19-04

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Sec. 934.16 [Amended]

3. Section 934.16 is amended by removing paragraphs (cc) and (n).

[FR Doc. 99-29152 Filed 11-5-99; 8:45 am]

BILLING CODE 4310-05-M