[Federal Register Volume 62, Number 81 (Monday, April 28, 1997)]
[Rules and Regulations]
[Pages 22889-22895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10823]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
[SPATS No. ND-034-FOR]
North Dakota Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is
approving a proposed amendment to the North Dakota regulatory program
(hereinafter referred to as the ``North Dakota program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). North
Dakota proposed revisions to rules pertaining to: Permit application
requirements for the disposal of noncoal wastes; performance standards
concerning soil redistribution; revegetation success standards on lands
developed for use as prime farmland, recreation, and on previously-
mined areas to be developed for water, residential, industrial, and/or
commercial uses. The amendment is intended to revise the North Dakota
program to be consistent with the corresponding Federal regulations,
clarify ambiguities, and improve operational efficiencies.
EFFECTIVE DATE: April 28, 1997.
FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Director, Casper Field Office, Telephone: (307) 261-6550.
SUPPLEMENTARY INFORMATION:
I. Background on the North Dakota Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the North Dakota program. General background information on
the North Dakota program, including the Secretary's findings, the
disposition of comments, and conditions of approval of the North Dakota
program can be found in the December 15, 1980 Federal Register (45 FR
82214). Subsequent actions concerning North Dakota's program and
program amendments can be found at 30 CFR 934.15, 934.16, and 934.30.
II. Proposed Amendment
By letter dated March 20, 1996, North Dakota submitted a proposed
amendment (Amendment No. XXIII, administrative record No. ND-Y-01) to
its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). North Dakota
submitted the proposed amendment on its own initiative and in response
to required program amendments at 30 CFR 934.16 (aa) and (bb). OSM
announced receipt of the proposed amendment in the April 24, 1996,
Federal Register (61 FR 18100; administrative record No. ND-Y-05),
provided an opportunity for a public hearing or meeting on its
substantive adequacy, and invited public comment on its adequacy. The
public comment period ended May 24, 1996. Because no one requested a
public hearing or meeting, none was held.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds that the proposed program amendment
submitted by North Dakota on March 20, 1996, is no less effective than
the corresponding Federal regulations and no less stringent than SMCRA.
Accordingly, the Director approves the proposed amendment.
1. Nonsubstantive Revisions to North Dakota's Rules
North Dakota proposed revisions to its approved program that are
nonsubstantive in nature and consist of editorial changes. North Dakota
proposed to replace, throughout its program, the name of the U.S.
``Soil Conservation Service''with its new name, the ``National Resource
Conservation Service.'' North Dakota also proposed to replace the name
of the North Dakota ``Department of Health and Consolidated
Laboratories,'' with its new name, the ``Department of Health.''
Because these editorial revisions have no significant impact on the
substance of the requirements of the program, other than to correctly
identify the appropriate Federal and State agencies, the Director finds
that the proposed revisions are consistent with and no less effective
than the Federal program and approves them.
2. Substantive Revisions to North Dakota's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
North Dakota proposed revisions to the following rules that are
substantive in nature and contain language that is substantively
identical to the requirements of the corresponding Federal regulations
(listed in parentheses).
NDAC 69-05.2-19-04.3 (30 CFR 816.89(b)), concerning design and
construction of noncoal waste disposal sites to ensure that leachate
and drainage from the noncoal waste areas does not degrade surface
or underground water.
NDAC 69-05.2-26-05.3.e (30 CFR 823.15(b)(5)), concerning the
demonstration of restoration of prime farmland productivity, to
require an average annual yield rather than yields from three
consecutive growing seasons.
Because these proposed revisions to North Dakota rules are
substantively identical to the corresponding provisions of the Federal
regulations, the Director finds that they are no less effective than
the corresponding Federal regulations. The Director approves these
proposed revisions.
3. NDAC 69-05.2-09-02.8, Permit Applications Requirements for Noncoal
Waste Disposal
North Dakota proposed to revise NDAC 69-05.2-09-02.8, which
currently provides that the required maps and plans of the proposed
permit and adjacent areas show each coal storage, cleaning, and loading
area, and each coal waste and noncoal waste storage area. Under the
proposed revisions, for noncoal wastes that will be disposed of in the
proposed permit area, the applicant would be required to provide a
description of: (1) Any wastes listed under NDAC 33-20-02.1-01.2.i and
(2) ``any other wastes requiring a permit from the state department of
[[Page 22890]]
health.'' Pursuant to NDAC 33-20-02.1-01.2.i, a solid waste management
permit is not required for the disposal of certain specified mining
operation wastes into areas designated in a surface coal mining permit
issued by the State regulatory authority for such disposal. Thus, the
Director interprets the proposed revision as requiring a description of
all noncoal wastes that will be disposed of in the proposed permit
area, whether or not the applicant is required to obtain a solid waste
management permit from the State Department of Health. North Dakota
also proposed to require that the location of any noncoal waste
disposal areas within the proposed permit area be shown on a map of the
permit area.
There are no exact Federal counterpart provisions to the State's
proposed revisions to NDAC 69-05.2-09-02.8. Pursuant to 30 CFR
730.11(b), States may promulgate regulations for which no corresponding
provisions exist in SMCRA or the Federal regulations. Since there are
no exact Federal counterpart provisions, OSM compared North Dakota's
proposed revisions to NDAC 69-05.2-09-02.8 for consistency with section
515(b)(14) of SMCRA and the Federal regulations at 30 CFR 780.11(b)(4).
Section 515(b)(14) of SMCRA requires that surface coal mining and
reclamation operations be conducted in a manner which insures, among
other things, that all debris, acid-forming materials, toxic materials,
or materials constituting a fire hazard are treated or buried and
compacted or otherwise disposed of in a manner designed to prevent
contamination of ground or surface waters. The Federal regulations at
30 CFR 780.11(b)(4) require that each permit application contain a
narrative explaining, among other things, the use and maintenance of
coal processing waste and noncoal disposal areas. Existing North Dakota
rule NDAC 69-05.2-09-01 ``Permit applications--Operation plans--General
requirements'' requires that ``Each application must contain a detailed
description of the proposed mining operations, including: ``3. A
narrative for each operations plan explaining the plan in detail and
the construction, modification, use and maintenance of each mine
facility, water and air pollution control facilities or structures, * *
*. In addition, NDAC 69-05.2-09-02. ``Permit applications--Operation
plans--Maps and plans.'' requires that ``Each application must contain
* * * an appropriate combination of * * * topo maps, planimetric maps,
and plans of the proposed permit and adjacent areas showing: ``8. Each
coal storage, cleaning and loading area, and each coal waste and
noncoal waste storage area.'' These North Dakota rules meet the
requirements of 30 CFR 780(b)(4).
The Director finds that North Dakota's proposed revisions will
assist the State in insuring that wastes produced by surface coal
mining and reclamation operations be disposed of in a manner designed
to prevent contamination of ground or surface waters.
Based on the above discussion, the Director finds that North
Dakota's proposed revisions to NDAC 69-05.2-09-02.8 are not
inconsistent with section 515(b)(14) of SMCRA or the provisions of 30
CFR 780.11(b)(4) and approves the proposed revisions.
4. NDAC 69-05.2-13-02, General Requirements for an Annual Map
North Dakota proposed to revise NDAC 69-05.2-13-02 to more clearly
specify the required scale for an annual map (1:4,800), and to allow
another scale upon approval of North Dakota's Public Service
Commission.
There are no exact Federal counterpart provisions to the State's
proposed revisions to NDAC 69-05.2-13-02 as the Federal regulations do
not require submission of an annual map. Pursuant to 30 CFR 730.11(b),
States may promulgate regulations for which no corresponding provisions
exist in SMCRA or the Federal regulations. Since there are no exact
Federal counterpart provisions, OSM evaluated North Dakota's proposed
revisions to NDAC 69-05.2-13-02 for consistency with the Federal
regulations at 30 CFR 777.14(a), which deals with the requirements for
maps submitted with a permit application.
The Federal regulations at 30 CFR 777.14(a) require, among other
things, that maps of the permit area submitted with applications shall
be presented at a scale of 1:6,000 or larger and maps of the adjacent
area shall be in a scale determined by the regulatory authority, but in
no event smaller than 1:24,000.
North Dakota's proposed rule provides for reporting requirements on
maps that are larger than those required by the Federal program.
Because the required maps are on a larger scale than required to be in
Federal permit applications and locations will therefore be shown with
more specificity, the required map scale is not inconsistent with the
Federal regulation at 30 CFR 777.14. Given that there is no Federal
counterpart for reporting on annual maps, and given 30 CFR 730.11(b)
which has been previously discussed in this section, the requirement
for annual maps at other scales approved by the Public Service
Commission is not inconsistent with the requirements of the Federal
program. Moreover, the Director notes that the North Dakota provision
concerning maps submitted with a permit application, NDAC 69-05.2-09-
02, requires the scale of such maps to be 1:4,800.
Based on the aforementioned discussion, the Director finds that the
proposed revisions to NDAC 69-05.2-13-02 are not inconsistent with the
requirements of the Federal regulations at 30 CFR 777.14(a) and
approves the proposed revisions.
5. NDAC 69-05.2-15-04.4.a(2)(c), Performance Standard Concerning an
Alternative Method for Determining the Requirements for Redistribution
of Suitable Plant Growth Material
On October 21, 1986 (51 FR 37271, 37273, finding No. 8), the
Director approved the provision at NDAC 69-05.2-15-04.4(a)(2) that
allows an alternative method for determining the depth of suitable
plant growth material required to be redistributed. North Dakota now
proposes to revise NDAC 69-05.2-15-04.4a(2)(c) to specify that the rule
is effective for those areas distributed prior to the year 1999, rather
than 1997. Because there is no exact Federal counterpart provision to
the State's proposed revision, 30 CFR 730.11(b) is relevant. It says
that States may promulgate regulations for which no corresponding
provisions exist in SMCRA or the Federal regulations. The effect of
proposed NDAC 69-05.2-15-04.4a(2)(c) is to extend the applicable time
of the rule by two years, to 1999.
The Federal regulations at 30 CFR 816.22 allow an operator to
demonstrate to the regulatory authority that the resulting soil medium
of substituting or supplementing the overburden soil medium is equal to
or more suitable for sustaining vegetation.
OSM notes that the technical information submitted when the
alternative was first approved indicates that adverse effects on
vegetation were unlikely. Further, permittees employing the alternative
are still responsible for meeting revegetation success standards at the
end of the responsibility period.
North Dakota explained (administrative record Nos. ND-Y-13, 14, 16)
that the time extension until 1999 is necessary because a draft of a
study, which just became available in 1997, and which examined the
option of respreading a lesser amount of suitable plant growth material
rather than the procedure imposed by existing North Dakota State rules,
shows no difference in vegetation results and therefore there is no
rational basis for not allowing the State to allow its operators to use
the
[[Page 22891]]
less expensive option. In addition, before the study is finalized and
data completely synthesized and analyzed, the State sees no reason why
the option should not be continued until its 1999 sunset provision is
eliminated and the option becomes permanent.
The Director agrees with the State and finds that the proposed
revision to NDAC 69-05.2-15-04.4.a(2)(c) is not inconsistent with the
Federal regulations at 30 CFR 816.22 and approves the proposed
revision.
6. NDAC 69-05.2-19-04.2, Performance Standards for the Disposal of
Noncoal Wastes
The modified regulation as proposed by North Dakota would provide
as follows:
Noncoal wastes including concrete products, plastic material,
abandoned mining machinery, wood materials, and other non-hazardous
materials generated during mining and noncoal waste materials from
activities outside the permit area, such as municipal wastes, must
be placed and stored in a controlled manner in a designated approved
portion of the permit area. Placement and storage must ensure that
leachate and surface runoff do not degrade surface or ground water,
fires are prevented, and that the area remains stable and suitable
for reclamation and revegetation compatible with the natural
surroundings. Any wastes containing asbestos may not be disposed of
in the permit area unless specific approval is obtained from the
state department of health. Solvents, grease, lubricants, paints,
flammable liquids, and other combustible materials must be disposed
off the permit area except for land treatments of small spills as
approved by the state department of health.
The Federal regulations at 30 CFR 816.89(a) provide for placement
and storage of noncoal mine wastes such as grease, lubricants,
flammable liquids, garbage and abandoned mining machinery in a
controlled manner in a designated portion of the permit area. In
addition, .89(a) goes on to say that ``Placement and storage shall
ensure that leachate and surface run off do not degrade surface or
ground water, that fires are prevented, and that the area remains
stable and suitable for reclamation and revegetation compatible with
the natural surroundings. The Federal regulations at 30 CFR 816.89(b)
provide that final disposal of such noncoal mine wastes shall be in a
designated disposal site in the permit area or a State-approved solid
waste disposal area. They go on to state ``Disposal sites in the permit
area shall be designed and constructed to ensure that leachate and
drainage from the noncoal waste area does not degrade surface or
underground water.'' Further, that ``Wastes shall be routinely
compacted and covered to prevent combustion and wind-borne waste.'' And
that ``When disposal is completed, a minimum of 2 feet of soil cover
shall be placed over the site, slopes stabilized, and revegetation
accomplished in accordance with 886.111 through 886.116.'' Finally,
that ``Operation of the disposal site shall be conducted in accordance
with all local, State, and Federal requirements.''
North Dakota's proposed requirement at NDAC 69-05.2-19-04.2 that
``solvents, grease, lubricants, paints, flammable liquids, and
combustibles in general, be disposed of off the permit area'' is
consistent with the federal regulation insofar as the federal
regulations at 30 CFR 816.89(b) anticipate disposal of non-coal wastes
either in a designated disposal site on the permit area or in a State-
approved solid-waste area. The North Dakota Department of Health rules
at NDAC 33-20-04.1 contain the general performance standards for solid
waste management facilities including performance standards for, among
other things, location, plan of operation, record keeping and
reporting, closure, transfer stations, baling and compaction systems
and drop box facilities, solid wastes and resource recovery, and
general disposal.
The state also proposes that, ``any wastes containing asbestos may
not be disposed of in the permit area unless specific approval is
obtained from the state department of health.'' There is no direct
Federal counterpart regulation. Pursuant to 30 CFR 730.11(b), States
may promulgate provisions for which no corresponding provisions exist
in SMCRA or the Federal regulations. Moreover, the Director finds that
the State proposal is not inconsistent with the requirements of the
Federal regulations at 30 CFR 816.89.
North Dakota's proposed allowance for the placement and storage of
nonhazardous non-coal waste materials, including concrete, plastic, and
wood, is not less effective than the Federal regulations at 30 CFR
816.89(a). Like the Federal regulations, the State regulations require
that such wastes be placed and stored in a controlled manner in a
designated approved portion of the permit area. The State regulations
also require, like the Federal regulations, that placement and storage
of nonhazardous noncoal wastes ensure that: (1) Leachate and surface
runoff do not degrade surface or ground water; (2) fires are prevented;
and (3) that the area remains stable and suitable for reclamation and
revegetation compatible with the natural surroundings. In addition,
North Dakota solid waste management rules specify detailed standards
for storage and treatment which apply to of nonhazardous solid waste,
including ``solid waste stored or treated in piles, composting, sludge
piles, tire piles . . ., garbage which is in place for more than three
days, putrescible waste, other than garbage, which is in place for more
than three weeks, and other solid waste not intended for recycling
which is in place for more than three months.'' See e.g., NDAC 33-20-
04.1-07 and NDAC 33-20-01.1-04.
North Dakota's proposed rules are different from the Federal
regulations insofar as the State standards for placement and storage of
noncoal waste within the permit area only apply to nonhazardous noncoal
waste. The Federal regulations at 30 CFR 816.89 are not so limited.
That is, the Federal standards for placement and storage of noncoal
wastes apply to all types of noncoal wastes.
The rationale provided by North Dakota for not including standards
for placement and storage of hazardous noncoal wastes on the permit
area is that the State does not allow the storage or placement of
hazardous wastes on the permit area (see the telephone conference call
of 1/23/97 with Jim Deutsch, administrative record No. ND-Y-15). The
State explained that such wastes will be routinely picked up from the
permit area and disposed of off-permit. However, in order to be no less
effective than the counterpart Federal regulations, the State must
provide standards for placement and storage of all types of noncoal
wastes, even if certain wastes will only be stored or placed on the
permit area for a short period of time before they are removed for
disposal off-permit.
Based upon the above discussion, the Director finds that proposed
NDAC 69-05.2-19-04.2 is not inconsistent with the Federal regulations
at 30 CFR 816.89(a) and (b), concerning disposal of noncoal wastes on
the permit site, and approves the proposed rule. However, the State
needs to provide standards for placement and storage of all types of
noncoal wastes and therefore the Director is requiring North Dakota to
further amend the rule to include placement and storage standards for
all types of noncoal wastes.
7. NDAC 69-05.2-22-07.3.c and 4.d, and NDAC 69-05.2-26-05.3.c,
Requirements for Demonstrating Success of Revegetation Prior to Stage 3
Bond Release on Prime Farmland
OSM required at 30 CFR 934.16(aa) that North Dakota revise Chapter
II, Section C in its revegetation document
[[Page 22892]]
and its rules at NDAC 69-05.2-22-07.3.c and 69-05.2-26-05.3.c to
require that, prior to stage 3 bond release on land reclaimed for use
as prime farmland, the permittee demonstrate restoration of
productivity using 3 crop years (finding No. 3.a, 60 FR 36213, 36217
through 18, July 14, 1995; administrative record No. ND-Y-10).
In response to this required amendment, North Dakota proposed to
revise NDAC 69-05.2-22-07.3.c to require, for demonstration of success
of productivity on prime farmland prior to stage 3 bond release
(equivalent to OSM's Phase II release), that the annual average crop
production from the permit area must be equal to or greater than that
of the approved reference area or standard with ninety percent
statistical confidence for a minimum of three crop years. North Dakota
proposed to revise NDAC 69-05.2-26-05.3.c, concerning the demonstration
of restoration of prime farmland productivity, to reference the
measurement period (3 years) for determining average annual crop
production that is specified at proposed NDAC 69-05.2-22-07.3.c. In
addition, North Dakota proposed to revise NDAC 69-05.2-22-07.4.d,
concerning requirements for final or stage 4 bond release (equivalent
to OSM's Phase III release), to reference the demonstration required at
proposed NDAC 69-05.2-22-07.3.c for stage 3 bond release in addition to
the requirement for the completion of the 10 year liability period.
The Federal regulations at 30 CFR 800.40, concerning phase II bond
release on prime farmland, and 30 CFR 823.15(b), concerning the
measurement for success of productivity on prime farmland prior to bond
release, require a successful demonstration of productivity using 3
years of data prior to phase II bond release (equivalent to North
Dakota's stage 3 bond release).
Because North Dakota has, with the revisions described above,
clearly required that a permittee demonstrate restoration of
productivity using 3 crop years prior to stage 3 bond release on land
reclaimed for use a prime farmland, the Director finds that the
proposed revisions to NDAC 69-05.2-22-07.3.c and 4.d and NDAC 69-05.2-
26-05.3.c are no less effective than the Federal regulations at 30 CFR
800.40 and 823.15(b). The Director approves the proposed revisions.
However, because North Dakota has, with the above rule revisions,
only partially satisfied the requirement at 30 CFR 934.16(aa), the
Director is revising 30 CFR 934.16(aa) to state that North Dakota must
revise Chapter II, Section C in its revegetation document to require,
prior to stage 3 bond release on land reclaimed for use as prime
farmland, the permittee demonstrate restoration of productivity using 3
crop years, consistent with the proposed rules discussed in this
finding. (In its side-by-side comparison which it submitted along with
its 3/30/96 State Program Amendment proposal, North Dakota stated that
``once the rule change is in place, North Dakota will make the
appropriate modification to its revegetation document).
8. NDAC 69-05.2-22-07.4.i, Final Bond Release on Previously Mined Areas
North Dakota proposed to revise NDAC 69-05.2-26-07.4.i, concerning
the stage 4 or final bond release requirement for ground cover on
previously mined areas, to delete the phrase ``of living plants'' which
appears whenever the term, ``ground cover'' is used.
The Federal regulations at 30 CFR 816.116(b)(5) require that
vegetative ground cover shall not be less than the cover existing prior
to redisturbance and shall be adequate to control erosion. The
requirements for ground cover at final bond release at proposed NDAC
69-05.2-22-07.4.i are otherwise substantively identical to the Federal
regulations at 30 CFR 816.116(b)(5). North Dakota explained that it
deleted the phrase ``of living plants'' because ``by definition, ground
cover is vegetative'' (administrative record number ND-Y-08) and is
therefore duplicative and unnecessary. Moreover, North Dakota's
existing definition of ``ground cover'' at NDAC 69-05.2-01-02.39 is
substantively identical to the same Federal definition at 30 CFR 701.5.
Both include the statement that ground cover is vegetative.
Based on the aforementioned discussion, the Director finds that the
proposed revision to NDAC 69-05.2-22-07.4.i is no less effective than
the Federal regulation at 30 CFR 816.116(b)(5) and approves the
proposed revision.
9. NDAC 69-05.2-22-07.4.j, Final Bond Release Requirements for Ground
Cover on Areas to be Developed for Water, Residential, or Industrial
and Commercial Uses
North Dakota proposed to revise NDAC 69-05.2-22-07.4.j, concerning
the final bond release requirement that ground cover must not be less
than that required to control erosion, to delete a reference to
``recreation'' so that the rule applies only to ``areas to be developed
for water, residential, or industrial and commercial uses within two
years after the completion of grading or soil replacement'' and to
delete the phrase ``of living plants'' after ``ground cover `of living
plants' on these areas must not be less than required to control
erosion.''
North Dakota's requirement at proposed NDAC 69-05.2-22-07.4.j, that
ground cover, prior to final bond release, must be not be less than
that required to control erosion, is substantively identical to the
requirement for ground cover on land developed for residential or
commercial and industrial use at 30 CFR 816.116(b)(3). North Dakota's
proposed deletion of the reference to ``recreation'' is appropriate
because proposed NDAC 69-05.2-22-07.4.k now addresses standards for
land reclaimed for use as recreation (see discussion in finding No. 10
below). The deletion of the word ``areas'' after water is editorial in
nature and does not affect the substance of the rule. As stated in the
preceding finding No. 8, North Dakota explained that the term ``of
living plants'' is duplicative since ground cover by definition is
living plants.
Therefore, the Director finds that the proposed revisions to NDAC
69.05.2-22-07.4.j are no less effective than the Federal regulations at
30 CFR 816.116(b)(3) and approves the proposed revisions.
10. NDAC 69-05.2-22-07.4.k, final Bond Release requirements for Ground
Cover and Woody Plant Stocking and Plant Establishment Standards on
Areas Developed for Recreation
OSM required at 30 CFR 934.16(bb) that North Dakota revise Chapter
II, Section I in its revegetation document and its rule at NDAC 69-
05.2-22-07(4)(j) to require tree and shrub stocking standards that meet
all requirements in 30 CFR 816.116(b)(3), including approval by the
appropriate State agencies, on land reclaimed for use as recreation.
OSM also required that North Dakota also provide documentation of
consultation with and approval from the appropriate State agencies for
the ground cover standard in Chapter II, Section I on land reclaimed
for use as recreation. (finding No. 3.e, 60 FR 36213, 36219, July 14,
1995; administrative record No. ND-Y-10).
In response to the required amendment at 30 CFR 934.16(bb), North
Dakota proposed to add a new rule at NDAC 69-05.2-22-07.4.k, concerning
land reclaimed for use as recreation, that requires (1) Standards for
woody plants by reference to NDAC 69-05.2-22-07.4e(1) and f, existing
approved rules for respectively, revegetation in general and fish and
wildlife habitat or
[[Page 22893]]
shelterbelts standards, and (2) ground cover not less than that
required to achieve the approved postmining land use.
For areas developed for use as recreation, the Federal regulations
at 30 CFR 816.116(b)(3) (i) through (iii) and 817.116(b)(3) (i) through
(iii) require, that success of revegetation be determined on the basis
of tree and shrub stocking and vegetative ground cover and include the
requirements that, among other things, (1) Permit specific or
programwide minimum stocking and planting arrangements shall be
specified by the regulatory authority on the basis of local and
regional conditions and after consultation with and approval by the
State agencies responsible for the administration of forestry and
wildlife programs, (2) trees and shrubs counted in determining such
success shall be healthy and have been in place for not less than two
growing seasons, (3) at least 80 percent of the trees and shrubs used
to determine such success shall have been in place for 60 percent of
the applicable minimum period of responsibility, and (4) vegetative
ground cover shall not be less than that required to achieve the
approved postmining land use.
By referencing the tree and shrub standards at previously approved
NDAC 69-05.2-22-07.4e(1) and f, North Dakota has included in its
requirements for final bond release on land developed for recreation,
woody plant (i.e. tree and shrub) standards that are no less effective
than the requirements in the Federal regulations at 30 CFR
816.116(b)(3) (i) and (ii). North Dakota's proposed requirement that
ground cover must not be less than required to achieve the approved
postmining land use is substantively identical to the Federal
regulations at 30 CFR 816.116(b)(3)(iii). OSM erred in its requirement
that ground cover standards must also meet the consultation and
approval requirement of appropriate State agencies. That requirement is
only applicable to woody plants.
Based on the above discussion, the Director finds that North
Dakota's proposed revisions to NDAC 69-05.2-22-07.4.k are no less
effective than the Federal regulations at 30 CFR 816.116(b)(3) and
817.116(b)(3). The Director approves the proposed revisions to NDAC 69-
05.2-22-07.4.k.
However, because North Dakota has, with the above rule revisions,
only partially satisfied the requirement at 30 CFR 934.16(bb), the
Director is revising 30 CFR 934.16(bb) to state that North Dakota must
revise Chapter II, Section C in its revegetation document to require
tree and shrub stocking standards that meet all requirements in 30 CFR
816.116(b)(3), including approval by the appropriate State agencies, on
land reclaimed for use as recreation. It should be noted that in the
``Changes and Legal Effect'' column of the side-by-side comparison
chart that North Dakota submitted with this State Program Amendment,
North Dakota stated that it would make the appropriate modification to
its revegetation document ``once these rule changes are in place''
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that we received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to Sec. 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the North Dakota program (administrative record
No. ND-Y-01).
The U.S. Natural Resources Conservation Service, responded on June
18, 1996 (administrative record No. ND-Y-07), with the following
comment concerning the performance standards for prime farmland:
The [North Dakota's] previous standards stated that crop
production on prime farmland must be equal to or greater than that
of approved reference areas for three consecutive years. It now
states that annual average crop production must be equal to or
greater than that of approved reference areas for a minimum of three
crop years.
Our understanding of this change is that it would allow the
performance standards to be dependent upon the selection of three
years of yield information instead of the last three years of crop
production. This would allow the selection of the most optimum data
and may not truly reflect the average production of the permit area.
This change seems to weaken the language related to the performance
standards.
The commenter referred to the revisions proposed by North Dakota at
NDAC 69-05.2-22-07.3.c and 69-05.2-26-05.3.c. North Dakota revised
these rules to require a demonstration of restoration of productivity
on prime farmland prior to stage 3, rather than stage 4, bond release,
using the average annual yields from 3 crop years rather than from 3
consecutive crop years. It is the comparison of yield data from the
reclaimed area to yield data from nonmined prime farmland (or to a
technical standard determined from data applicable to the reclaimed and
surrounding nonmined prime farmland) that determines whether
restoration of productivity is successful. Because crop data will
fluctuate accordingly for both mined and nonmined prime farmland, a
meaningful comparison can be made whether the 3 years are consecutive
or not. In addition, because the Federal regulations at 30 CFR 730.5(b)
only require that a State's laws be ``in accordance with'' and ``no
less effective than'' the Federal regulations meeting the requirements
of SMCRA, the Director does not have the authority to require standards
in excess of the Federal regulations that implement SMCRA. For this
reason, the Director is not requiring that North Dakota further revise
its program in response to this comment.
The U.S. Fish and Wildlife Service responded on May 3, 1996
(administrative record No. ND-Y-04), that the proposed changes were
logical and reasonable.
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated 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.).
OSM solicited EPA's concurrence with the proposed amendment
(administrative record No. ND-Y-01). EPA responded on April 30, 1996
(administrative record No. ND-Y-09), with its concurrence.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
ND-Y-03). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, as discussed
in:
Finding No. 1, nonsubstantive revisions reflecting editorial
changes to include the new names of the U.S. Natural Resource
Conservation Service and the North Dakota Department of Health;
Finding No. 2, NDAC 69-05.2-19-04.3 and 69-05.2-22-07.3.c,
concerning substantive revisions that are
[[Page 22894]]
substantively identical to the corresponding provisions of the Federal
regulations; concerning substantive revisions that are substantively
identical to the corresponding provisions of the Federal regulations;
Finding No. 3, NADC 69-05.2-09-02.8, concerning permit application
requirements for noncoal waste disposal;
Finding No. 4, NADC 69-05.2-09-02, concerning general requirements
for an annual map;
Finding No. 5, NADC 69-05.2-15-04.4a(2)c, concerning an alternative
method for determining the requirements for soil redistribution;
Finding No. 6, NADC 69-05.2-19-04.2, concerning performance
standards for the disposal of noncoal wastes;
Finding No. 7, NADC 69-05.2-22-07.3.c and 4.d and NDAC 69-05.2-26-
05.3.c, concerning requirements for demonstrating success of
revegetation prior to stage 3 bond release on prime farmland;
Finding No. 8, NADC 69-05.2-22-07.4.i, concerning final bond
release requirements for ground cover on previously mined areas;
Finding No. 9, NDAC 69-05-22-07.4.j, concerning final bond release
requirements for ground cover on areas to be developed for water,
residential or industrial and commercial uses; and
Finding No. 10, NDAC 69-05-22-07.4.k, concerning final bond release
requirements for ground cover and woody plant stocking and plant
establishment standards on areas developed for recreation.
The Federal regulations at 30 CFR part 934, codifying decisions
concerning the North Dakota program, are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
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: April 2, 1997.
Richard J. Seibel,
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 30 CFR 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.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission
date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
March 20, 1996.................. April 28, 1997................. NDAC 69-05.2-09-02.8 -13-02, -15-04.4a(2)c, -
19-04.2, 3, -22-07.3.c, 4.d, 4.i, -26-
05.3.c; 69-05, 22-07.4.j, .k; changes to new
names of U.S. Natural Resource Conservation
Service and the North Dakota Department of
Health.
----------------------------------------------------------------------------------------------------------------
[[Page 22895]]
3. Section 934.16 is amended by revising paragraphs (aa) and (bb)
and adding (cc) to read as follows:
Sec. 934.16 Required program amendments.
* * * * *
(aa) by June 27, 1997, North Dakota shall revise Chapter II,
Section C of its revegetation document to require, prior to stage 3
bond release on land reclaimed for use as prime farmland, the permittee
demonstrate restoration of productivity using three crop years.
(bb) By June 27, 1997, North Dakota shall revise Chapter II,
Section C in its revegetation document to require tree and shrub
stocking standards that meet all requirements in 30 CFR 816.116(b)(3),
including approval by the appropriate State agencies, on land reclaimed
for use as recreation.
(cc) By June 27, 1997, North Dakota shall revise its rules at NDAC
69-05.2-19-04.2, ``Performance Standards for Disposal of Noncoal
Wastes,'' to include placement and storage standards for all types of
noncoal hazardous wastes.
[FR Doc. 97-10823 Filed 4-25-97; 8:45 am]
BILLING CODE 4310-05-M
