[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Rules and Regulations]
[Pages 60654-60660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29152]
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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
[[Page 60657]]
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
----------------------------------------------------------------------------------------------------------------
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
