[Federal Register Volume 64, Number 208 (Thursday, October 28, 1999)]
[Rules and Regulations]
[Pages 57978-57981]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28230]
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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: jcoleman@mcrgw.osmre.gov.
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
