[Federal Register Volume 61, Number 103 (Tuesday, May 28, 1996)]
[Rules and Regulations]
[Pages 26454-26461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13263]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 925
[SPATS No. MO-025-FOR]
Missouri Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving, with certain exceptions, a proposed
amendment to the Missouri regulatory program (hereinafter referred to
as the ``Missouri program'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The proposed amendment consists of a
proposed set of revegetation success guidelines and a rulemaking that
eliminates the reference to an earlier set of guidelines that was never
approved by OSM. The amendment is intended to revise the Missouri
program to be consistent with the corresponding Federal regulations.
EFFECTIVE DATE: May 28, 1996.
FOR FURTHER INFORMATION CONTACT:
Brent Wahlquist, Regional Director, Mid-Continent Regional Coordinating
Center, Office of Surface Mining Reclamation and Enforcement, Alton
Federal Building, 501 Belle Street, Alton, Illinois 62002, Telephone:
(618) 463-6460.
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. General background information on the
Missouri program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Missouri program can
be found in the November 21, 1980, Federal Register (45 FR 77017).
Subsequent actions concerning Missouri's program and program amendments
can be found at 30 CFR 925.12, 925.15, and 925.16.
II. Submission of the Proposed Amendment
By letter dated December 14, 1995 (Administrative Record no. MO-
633), Missouri submitted a proposed amendment to its program pursuant
to SMCRA. Missouri submitted the proposed amendment in response to the
required program amendments at 30 CFR 925.16 (a) and (p)(6). The
provisions of the Code of State Regulations (CSR) that Missouri
proposes to amend are: 10 CSR 40-3.120/3.270(c)(B)2.A-H., Specific
revegetation success standards for postmining land uses. Specifically,
Missouri proposes revisions to its approved program for evaluating
revegetation success. Missouri revised its regulations for the specific
standards for each of its approved land uses to delete the reference to
an earlier set of guidelines that had not been approved by OSM and
reference the guidelines as currently proposed in this amendment. The
proposed revegetation success guidelines consist of eight separate
guidance documents that establish the revegetation success standards by
land use. These documents are titled the: (1) Phase II and Phase III
revegetation standards for prime farmland; (2) Phase III revegetation
standards for cropland; (3) Phase III revegetation standards for
pasture and previously mined areas; (4) Phase III revegetation
standards for wildlife habitat; (5) Phase III revegetation standards
for woodland; (6) Phase III revegetation standards for industrial/
commercial revegetation; (7) Phase III revegetation success standards
for residential land use; and (8) Phase III revegetation success
standards for recreation land use. Each set of guidelines elaborates by
land use type the revegetation success standards, measurement
frequency, sampling procedures, data submission and analysis, maps, and
mitigation plan requirements. The guidance documents follow the
approved Missouri program regulations at 10 CSR 40-3.120/3.270(6).
OSM announced receipt of the proposed amendment in the January 26,
1996, Federal Register (61 FR 2459), and in the same document opened
the public comment period and provided an opportunity for a public
hearing on the adequacy of the proposed amendment. The public comment
period closed on February 26, 1996.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
proposed amendment.
Revisions not specifically discussed below concern nonsubstantive
wording changes, or revised cross-references and paragraph notations to
reflect organizational changes resulting from this amendment.
[[Page 26455]]
1. 10 CSR 40-3.120/3.270(6)(B)--Specific Standards for Postmining Land
Uses
The required amendment at 30 CFR 925.16(p)(6) requires Missouri to
amend its program at 10 CSR 40-3.120/3.270(6)(B) 2.A through H to
remove the reference to the Land Reclamation Commission's June 1990
Phase III Liability Release Guidelines.
Missouri proposes to revise each land use specific revegetation
success guidance document which it incorporated by reference into its
regulations. Measurement, for applicable land use specific levels of
ground cover, production, or stocking shall be performed in accordance
with the criteria contained in the current land use specific guidelines
of the Land Reclamation Commission.
Although there is not an exact counterpart Federal regulation
concerning the incorporation by reference of revegetation success
guidance documents, the Federal regulations at 30 CFR 816/817.116(a)(1)
require a State to include its standards for success and statistically
valid sampling techniques for measuring revegetation success in its
approved regulatory program. Missouri is proposing to accomplish this
by incorporating eight land use specific guidance documents by
reference in its regulations at 10 CSR 40-3.120/3.270(6)(B). The
Director finds that Missouri's proposal to include these documents by
reference into its approved program is not inconsistent with the
Federal regulation requirements. Accordingly, the Director is removing
the required program amendment from the Missouri program as codified at
30 CFR 925.16(p)(6).
2. Revegetation Success Guidelines
The required amendment at 30 CFR 925.16(a) requires Missouri to
amend its program to include those technical guidance procedures that
the State considers acceptable for use in evaluating revegetation
success.
a. Phase III Revegetation Success Standards for Woodland
Missouri proposes to adopt a guidance document entitled ``Phase III
Revegetation Success Standards for Woodland.'' This document describes
the criteria and procedures for determining Phase III success standards
for areas being restored as Woodland pursuant to 10 CSR 40-3.120/
3.270(6) and (7).
Missouri proposes that revegetation success on woodland be
determined on the basis of: the general revegetation requirements of
the approved permit; ground cover; and tree/shrub stocking and
survival. The permittee is responsible for measuring the vegetation and
for submitting the data to the director of Missouri Land Reclamation
Program (MLRP) for analysis. Measurements of the vegetation must be
made in accordance with the procedures outlined in the guidance
document. The director of MLRP must determine that the general
requirements for revegetation success be satisfied as stated in 10 CSR
40-3.120/3.270(1). The guidance document sets out specific success
standards and measurement frequencies for ground cover and tree and
shrub stocking rate based on the regulatory requirements of 10 CSR 40-
3.120/3.270. Sampling procedures are to use statistically valid random
sampling methods using a 90 percent statistical confidence limit.
Ground cover is to be measured by the line-point transect method and
tree/shrub stocking is to be measured with sampling circles. Sample
adequacy is to be determined using a prescribed formula. If the data
indicates that the vegetation is close to the standard but less than
the standard, the data is to be submitted to the director of MLRP for
statistical analysis to determine if the differences are statistically
significant within the limits allowed by regulation. Maps must be
provided by the permittees for each Phase III plan indicating the
location of each sampling transect and sample frame point, the area
covered by the sampling and all permit boundaries. If the permittees
can not demonstrate revegetation success in the fifth year after
completion of initial seeding, a mitigation plan must be submitted to
the director of MLRP including a statement of the problem, a discussion
of methods to correct the problem, and a new phase III liability
release plan. If the plan involves augmented activities then the 5 year
responsibility period will begin again. Appendices are attached
illustrating the selection of random sampling sites; data forms for
line-point transect; data forms for sample circle; T-table; example of
sample adequacy determination for ground cover; example of sample
adequacy determination for tree/shrub stocking; statistical analysis
for ground cover and tree/shrub stocking; accepted plant species; and
references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulations
at 30 CFR 816/817.116(a)(2) require that standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. Ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard. The sampling
techniques for measuring success shall use a 90 percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).
Missouri is proposing to accomplish this by adoption of a detailed
guidance document illustrating the methods to be used by the permittee
to measure revegetation success for woodland. The Director finds that
the guidance document is not inconsistent with and no less effective
than the Federal regulations.
b. Phase III Success Standards for Industrial/Commercial Revegetation
Missouri proposes to adopt a guidance document entitled ``Phase III
Success Standards for Industrial/Commercial Revegetation.'' This
document describes the criteria and procedures for determining Phase
III success standards for areas being restored as industrial/commercial
pursuant to 10 CSR 40-3.120/3.270 (6) and (7).
Missouri proposes that revegetation success on industrial/
commercial be determined on the basis of: the general revegetation
requirements of the approved permit; and ground cover density. The
permittee is responsible for measuring the vegetation and for
submitting the data to the director of MLRP for analysis. Measurements
of the vegetation must be made in accordance with the procedures
outlined in the guidance document. The director of MLRP must determine
that the general requirements for revegetation success be satisfied as
stated in 10 CSR 40-3.120/3.270(1). The guidance document sets out
specific success standards and measurement frequencies for ground cover
based on the regulatory requirements of 10 CSR 40-3.120/3.270. Sampling
procedures are to use statistically valid random sampling methods using
a 90 percent confidence interval. Ground cover is to be measured by the
line-point transect method. Sample adequacy is to be determined using a
prescribed formula. If the data indicates that the vegetation is close
to the standard but less than the standard, the data is to be submitted
to the director of MLRP for statistical analysis to determine if the
differences are
[[Page 26456]]
statistically significant within the limits allowed by regulation. Maps
must be provided by the permittee for each Phase III plan indicating
the location of each sampling transect and sample frame point, the area
covered by the sampling, and all permit boundaries. If the permittee
can not demonstrate revegetation success in the fifth year after
completion of initial seeding, a mitigation plan must be submitted to
the director of MLRP including a statement of the problem, a discussion
of methods to correct the problem, and a new phase III liability
release plan. If the plan involves augmented activities then the 5 year
responsibility period will begin again. Appendices are attached
illustrating the selection of random sampling sites; data forms for
line-point transect; data forms for sample circle; T-table; example of
sample adequacy determination for ground cover; statistical analysis
for ground cover; accepted plant species; and references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulations
at 30 CFR 816/817.116(a)(2) require that standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. Ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard. The sampling
techniques for measuring success shall use a 90 percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).
Missouri is proposing to accomplish this by adoption of a detailed
guidance document illustrating the methods to be used by the permittee
to measure revegetation success for industrial/commercial land uses.
The Director finds that the guidance document is not inconsistent with
and is no less effective than the Federal regulations.
c. Phase III Revegetation Success Standards for Cropland
Missouri proposes to adopt a guidance document entitled ``Phase III
Revegetation Success Standards for Cropland.'' This document describes
the criteria and procedures for determining Phase III success standards
for areas being restored as cropland pursuant to 10 CSR 40-3.120/3.270
(6) and (7).
Missouri proposes that revegetation success on cropland be
determined on the basis of ground cover and crop production. The
permittee is responsible for measuring the vegetation and for
submitting the data to the director of MLRP for analysis. Measurements
of the vegetation must be made in accordance with the procedures
outlined in the guidance document. The guidance document sets out
specific success standards and measurement frequencies for ground cover
and crop production based on the regulatory requirements of 10 CSR 40-
3.120/3.270. The crop production standard is to be determined with a
reference area or the use of a technical standard. Approved technical
standards include the county average or target yield established by the
U.S. Department of Agriculture Natural Resources Conservation Service
(USDA NRCS). Target yields must be adjusted annually and be
representative of yields expected when using high management practices
common to the area. Sampling procedures are to use statistically valid
random sampling methods. Ground cover is to be measured by the line-
point transect method. Crop production is to be measured utilizing
sampling frames for forage production or whole area harvest for forage
or row crop production. Manual sampling of row crops is only allowed
when weather or other factors prevent mechanical harvest and must have
prior approval by the director of MLRP. The guidance document also
establishes a method for establishing representative test plots for use
with row crop production. Sample adequacy is to be determined using a
prescribed formula. If the data indicates that the vegetation is close
to the standard but less than the standard, the data is to be submitted
to the director of MLRP for statistical analysis to determine if the
differences are statistically significant within the limits allowed by
regulation. Maps must be provided by the permittee for each Phase III
plan indicating the location of each sampling transect and sample frame
point, the area covered by the sampling, and all permit boundaries. If
the permittee can not demonstrate revegetation success in the fifth
year after completion of initial seeding, a mitigation plan must be
submitted to the director of MLRP including a statement of the problem,
a discussion of methods to correct the problem, and a new phase III
liability release plan. If the plan involves augmented activities then
the 5 year responsibility period will begin again. Appendices are
attached illustrating the selection of random sampling sites; summary
data forms for sampling frames; data forms for crop production data; T-
table; example of sample adequacy determination for hay production
measurements; statistical analysis for sampling frame data; data form
for forage crop production data harvested as baled hay; statistical
analysis of whole release area harvesting; yield adjustments for
release areas due to differing soil series; yield adjustments for
moisture; crop surveyor's affidavit of qualifications and crop
production yields; grasses of acceptable plant species for permanent
ground cover on agricultural areas; procedure for manually sampling row
crops; and references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulations
at 30 CFR 816/817.116(a)(2) require that standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. Ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard. The sampling
techniques for measuring success shall use a 90 percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).
Missouri is proposing to accomplish this by adoption of a detailed
guidance document illustrating the methods to be used by the permittee
to measure revegetation success for cropland. The Director finds that
the guidance document is not inconsistent with and no less effective
than the Federal regulations.
d. Phase III Revegetation Success Standards for Wildlife Habitat
Missouri proposes to adopt a guidance document entitled ``Phase III
Revegetation Success Standards for Wildlife Habitat.'' This document
describes the criteria and procedures for determining Phase III success
standards for areas being restored as wildlife habitat pursuant to 10
CSR 40-3.120/3.270 (6) and (7).
Missouri proposes that revegetation success on wildlife habitat be
determined on the basis of: the general revegetation requirements of
the approved permit; ground cover; and tree/shrub stocking and
survival. The permittee is responsible for measuring the vegetation and
for submitting the
[[Page 26457]]
data to the director of MLRP for analysis. Measurements of the
vegetation must be made in accordance with the procedures outlined in
the guidance document. The director of MLRP must determine that the
general requirements for revegetation success be satisfied as stated in
10 CSR 40-3.120/3.270(1). The guidance document sets out specific
success standards and measurement frequencies for ground cover and tree
and shrub stocking rate based on the regulatory requirements of 10 CSR
40-3.120/3.270. Sampling procedures are to use statistically valid
random sampling methods. Ground cover is to be measured by the line-
point transect method and tree/shrub stocking is to be measured with
sampling circles. Sample adequacy is to be determined using a
prescribed formula. If the data indicates that the vegetation is close
to the standard but less than the standard, the data is to be submitted
to the director of MLRP for statistical analysis to determine if the
differences are statistically significant within the limits allowed by
regulation. Maps must be provided by the permittee for each Phase III
plan indicating the location of each sampling transect and sample frame
point, the area covered by the sampling, and all permit boundaries. If
the permittee can not demonstrate revegetation success in the fifth
year after completion of initial seeding, a mitigation plan must be
submitted to the director of MLRP including a statement of the problem,
a discussion of methods to correct the problem, and a new phase III
liability release plan. If the plan involves augmented activities then
the 5 year responsibility period will begin again. Appendices are
attached illustrating the selection of random sampling sites; data
forms for line-point transect; data forms for sample circle; T--table;
example of sample adequacy determination for ground cover; example of
sample adequacy determination for tree/shrub stocking; statistical
analysis for ground cover and tree/shrub stocking; accepted plant
species; and references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulations
at 30 CFR 816/817.116(a)(2) require that standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. Ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard. The sampling
techniques for measuring success shall use a 90 percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).
Missouri is proposing to accomplish this by adoption of a detailed
guidance document illustrating the methods to be used by the permittee
to measure revegetation success for wildlife habitat. The Director
finds that the guidance document is not inconsistent with and no less
effective than the Federal regulations.
e. Phase III Revegetation Success Standards for Pasture and Previously
Mined areas
Missouri proposes to adopt a guidance document entitled ``Phase III
Revegetation Success Standards for Pasture and Previously Mined
Areas.'' This document describes the criteria and procedures for
determining Phase III success standards for areas being restored as
pasture and previously mined land pursuant to 10 CSR 40-3.120/3.270 (6)
and (7).
Missouri proposes that revegetation success on pasture and
previously mined land be determined on the basis of: the general
revegetation requirements of the approved permit; ground cover; and
production. The permittee is responsible for measuring the vegetation
and for submitting the data to the director of MLRP for analysis. Any
previously mined land that was remined or redistributed and reclaimed
to a land use of pasture, must achieve the same success standard for
cover as land that was not previously disturbed by mining. However if
the area is not reclaimed to the requirements of 10 CSR 40-3.120(6)(B),
the vegetation cover shall not be less than the ground cover existing
before redisturbance and shall be adequate to control erosion. This
ground cover standard must have been determined and incorporated into
the permit prior to disturbance. There is no productivity standard for
previously mined land. The director of MLRP must determine that the
general requirements for revegetation success be satisfied as stated in
10 CSR 40-3.120/3.270(1). Measurements of the vegetation must be made
in accordance with the procedures outlined in the guidance document.
The guidance document sets out specific success standards and
measurement frequencies for ground cover and production based on the
regulatory requirements of 10 CSR 40-3.120/3.270. The forage production
standard is to be determined with a reference area or a current USDA/
NRCS high management target yield. Sampling procedures are to use
statistically valid random sampling methods at a 90 percent statistical
confidence interval. Ground cover is to be measured by the line-point
transect method. Forage production is to be measured utilizing sampling
frames or whole area harvest. The guidance document also establishes a
method for establishing representative test plots. Sample adequacy is
to be determined using a prescribed formula. If the data indicates that
the vegetation is close to the standard but less than the standard, the
data is to be submitted to the director of MLRP for statistical
analysis to determine if the differences are statistically significant
within the limits allowed by regulation. Maps must be provided by the
permittee for each Phase III plan indicating the location of each
sampling transect and sample frame point, the area covered by the
sampling and all permit boundaries. If the permittee can not
demonstrate revegetation success in the fourth year after completion of
last augmented seeding, a mitigation plan must be submitted to the
director of MLRP including a statement of the problem, a discussion of
methods to correct the problem, and a new phase III liability release
plan. If the plan involves augmented activities then the 5 year
responsibility period will begin again. Appendices are attached
illustrating the selection of random sampling sites; data forms for
line point transects; summary data forms for sampling frames; T-table;
data form for forage crop production data harvested as baled hay;
example use of sample adequacy formula for ground cover measurements
and hay production measurements; statistical analysis on sampling frame
data and whole release area harvesting; yield adjustments for release
areas due to differing soil series; grasses of acceptable plant species
for permanent ground cover on agricultural areas; and references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulations
at 30 CFR 816/817.116(a)(2) require that standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. Ground cover, production, or stocking
shall be
[[Page 26458]]
considered equal to the approved success standard then they are not
less than 90 percent of the success standard. The sampling techniques
for measuring success shall use a 90 percent statistical confidence
interval (i.e., one-sided test with a 0.10 alpha error). Missouri is
proposing to accomplish this by adoption of a detailed guidance
document illustrating the methods to be used by the permittee to
measure revegetation success for pasture and previously mined land. The
Director finds that the guidance document is not inconsistent with and
no less effective than the Federal regulations.
f. Phase II/III Revegetation Success Standards for Prime Farmland
Missouri proposes to adopt a guidance document entitled ``Phase II/
III Revegetation Success Standards for Prime Farmland.'' This document
describes the criteria and procedures for determining Phase II and III
success standards for areas being restored as prime farmland pursuant
to 10 CSR 40-3.120/3.270 (6) and (7) and 10 CSR 40-4.030.
Missouri proposes that revegetation success on prime farmland be
determined on the basis of crop production. The permittee is
responsible for measuring the vegetation and for submitting the data to
the director of MLRP for analysis. Measurements of the vegetation must
be made in accordance with the procedures outlined in the guidance
document. Ground cover must be established following soil replacement
with approved species to effectively control erosion. The guidance
document sets out specific success standards and measurement
frequencies for crop production based on the regulatory requirements of
10 CSR 40-3.120/3.270 and 10 CSR 40-4.030. The crop production standard
is to be determined with a reference area or the use of a technical
standard. Approved technical standards include the county average or
target yield established by the USDA NRCS. Target yields must be
adjusted annually and be representative of yields expected when using
high management practices common to the area.
Sampling procedures are to use statistically valid random sampling
methods. Crop production is to be measured utilizing sampling frames
for forage production or whole area harvest for forage or row crop
production. Manual sampling of row crops is only allowed when weather
or other factors prevent mechanical harvest and must have prior
approval by the director of MLRP. The guidance document also
establishes a method for establishing representative test plots for use
with row crop production. Sample adequacy is to be determined using a
prescribed formula. If the data indicates that the vegetation is close
to the standard but less than the standard, the data is to be submitted
to the director of MLRP for statistical analysis to determine if the
differences are statistically significant within the limits allowed by
regulation. Maps must be provided by the permittee for each Phase III
plan indicating the location of each sampling transect and sample frame
point, the area covered by the sampling, and all permit boundaries. If
the permittee cannot demonstrate revegetation success in the fifth year
after completion of initial seeding, a mitigation plan must be
submitted to the director of MLRP including a statement of the problem,
a discussion of methods to correct the problem, and a new phase III
liability release plan. If the plan involves augmented activities, then
the 5-year responsibility period will begin again. Appendices are
attached illustrating the selection of random sampling sites; summary
data forms for sampling frames; data forms for crop production data;
T--table; example of sample adequacy determination for hay production
measurements; statistical analysis for sampling frame data; data form
for forage crop production data harvested as baled hay; statistical
analysis of whole release area harvesting; yield adjustments for
release areas due to differing soil series; yield adjustments for
moisture; crop surveyor's affidavit of qualifications and crop
production yields; grasses of acceptable plant species for permanent
ground cover on agricultural areas; procedure for manually sampling row
crops; and references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulation
at 30 CFR 823.15 establishes the revegetation and restoration
requirements for soil productivity on prime farmland.
Missouri is proposing to accomplish this by adoption of a detailed
guidance document illustrating the methods to be used by the permittee
to measure revegetation success for prime farmland. The Director finds
that portion of the prime farmland guidance document that establishes
the revegetation standards and sampling techniques is not inconsistent
with and no less effective than the Federal regulations and is
approving it with the following exception.
As previously discussed, Missouri proposes in its prime farmland
guidance document one option for establishing a success standard by
utilizing approved technical standards including the county average or
target yield established by the USDA NRCS. Target yields must be
adjusted annually and be representative of yields expected when using
high management practices common to the area. The Federal regulation at
30 CFR 823.15(b)(7) requires that reference crop yields for a given
crop season are to be determined from * * * (ii) the average county
yields recognized by the USDA, which have been adjusted by the U.S.
Soil Conservation Service for local yield variation within the county
that is associated with differences between nonmined prime farmland
soil and all other soils that produce the reference crop. The Director
finds that Missouri's proposal to utilize county averages of production
is less effective than the Federal regulations because county averages
would not have been adjusted by the U.S. Soil Conservation Service to
remove the influence of other nonprime soils that produce the reference
crop. The Director finds that portion of the prime farmland guidance
document concerning Missouri's option for establishing a revegetation
success standard for prime farmland soils with county averages that do
not distinguish between nonprime and prime soil is less effective than
the Federal regulations and is not approving its use.
g. Phase III Revegetation Success Standards for a Recreation Land Use
Missouri proposes to adopt a guidance document entitled ``Phase III
Revegetation Success Standards for a Recreation land use.'' This
document describes the criteria and procedures for determining Phase
III success standards for areas being restored for a recreation land
use pursuant to 10 CSR 40-3.120/3.270 (6) and (7).
Missouri proposes that revegetation success for a recreation land
use be determined on the basis of: the general revegetation
requirements of the approved permit; ground cover; and tree/shrub
stocking and survival. The permittee is responsible for measuring the
vegetation and for submitting the data to the director of MLRP for
analysis. Measurements of the vegetation must be made in accordance
with the procedures outlined in the guidance document. The director of
MLRP must determine that the general requirements for revegetation
success be satisfied as stated in 10 CSR 40-3.120/
[[Page 26459]]
3.270(1). The guidance document sets out specific success standards and
measurement frequencies for ground cover and tree and shrub stocking
rate based on the regulatory requirements of 10 CSR 40-3.120/3.270.
Sampling procedures are to use statistically valid random sampling
methods. Ground cover is to be measured by the line-point transect
method and tree/shrub stocking is to be measured with sampling circles.
Sample adequacy is to be determined using a prescribed formula. If the
data indicates that the vegetation is close to the standard but less
than the standard, the data is to be submitted to the director of MLRP
for statistical analysis to determine if the differences are
statistically significant within the limits allowed by regulation. Maps
must be provided by the permittee for each Phase III plan indicating
the location of each sampling transect and sample frame point, the area
covered by the sampling and all permit boundaries. If the permittee can
not demonstrate revegetation success in the fifth year after completion
of initial seeding, a mitigation plan must be submitted to the director
of MLRP including a statement of the problem, a discussion of methods
to correct the problem, and a new phase III liability release plan. If
the plan involved augmented activities then the 5 year responsibility
period will begin again. Appendices are attached illustrating the
selection of random sampling sites; data forms for line-point transect;
T--table; example of sample adequacy determination for ground cover;
statistical analysis for ground cover; accepted plant species; and
references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulations
at 30 CFR 816/817.116(a)(2) require that standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. Ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard. The sampling
techniques for measuring success shall use a 90 percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).
Missouri is proposing to accomplish this by adoption of a detailed
guidance document illustrating the methods to be used by the permittee
to measure revegetation success for a recreation land use. The Director
finds that the guidance document is not inconsistent with and no less
effective than the Federal regulations.
h. Phase III Revegetation Success Standards for Residential Land Use
Missouri proposes to adopt a guidance document entitled ``Phase III
Revegetation Success Standards for Residential land use.'' This
document describes the criteria and procedures for determining Phase
III success standards for areas being restored as industrial/commercial
pursuant to 10 CSR 40-3.120/3.270 (6) and (7).
Missouri proposes that revegetation success for a residential land
use be determined on the basis of: the general revegetation
requirements of the approved permit; ground cover density; and if
approved in the permit, tree and shrub stocking. The permittee is
responsible for measuring the vegetation and for submitting the data to
the director of MLRP for analysis. Measurements of the vegetation must
be made in accordance with the procedures outlined in the guidance
document. The director of MLRP must determine that the general
requirements for revegetation success be satisfied as stated in 10 CSR
40-3.120/3.270(1). The guidance document sets out specific success
standards and measurement frequencies for ground cover based on the
regulatory requirements of 10 CSR 40-3.120/3.270. Sampling procedures
are to use statistically valid random sampling methods. Ground cover is
to be measured by the line-point transect method and tree/shrub
stocking is to be measured with sampling circles. Sample adequacy is to
be determined using a prescribed formula. If the data indicates that
the vegetation is close to the standard but less than the standard, the
data is to be submitted to the director of MLRP for statistical
analysis to determine if the differences are statistically significant
within the limits allowed by regulation. Maps must be provided by the
permittee for each Phase III plan indicating the location of each
sampling transect and sample frame point, the area covered by the
sampling and all permit boundaries. If the permittee can not
demonstrate revegetation success in the fifth year after completion of
initial seeding, a mitigation plan must be submitted to the director of
MLRP including a statement of the problem, a discussion of methods to
correct the problem, and a new phase III liability release plan. If the
plan involves augmented activities then the 5 year responsibility
period will begin again. Appendices are attached illustrating the
selection of random sampling sites; data forms for line-point transect;
data forms for sample circle; T-table; example of sample adequacy
determination for ground cover measurements and tree/shrub counts;
statistical analysis for ground cover and tree/shrub data; accepted
plan species; and references.
The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)
require that standards for success and statistically valid sampling
techniques for measuring success shall be selected by the regulatory
authority and included in an approved program. The Federal regulations
at 30 CFR 816/817.116(a)(2) require that standards for success shall
include criteria representative of unmined lands in the area being
reclaimed to evaluate the appropriate vegetation parameters of ground
cover, production, or stocking. Ground cover, production, or stocking
shall be considered equal to the approved success standard when they
are not less than 90 percent of the success standard. The sampling
techniques for measuring success shall use a 90 percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).
Missouri is proposing to accomplish this by adoption of a detailed
guidance document illustrating the methods to be used by the permittee
to measure revegetation success for a residential land use. The
Director finds that the guidance document is not inconsistent with and
no less effective than the Federal regulations.
Based on the above findings, the Director is removing the required
program amendment from the Missouri program as codified at 30 CFR
925.16(a).
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to speak at a
public hearing, no hearing was held.
Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(I), the Director solicited
comments on the proposed amendment from various Federal agencies with
an actual or potential interest in the Missouri program. No comments
were received.
Environmental Protection Agency (EPA)
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written
[[Page 26460]]
concurrence of the 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.). None of the
revisions that Missouri proposed to make in this amendment pertain to
air or water quality standards. Therefore, OSM did not request EPA's
concurrence.
Pursuant to 732.17(h)(11)(I), OSM solicited comments on the
proposed amendment from EPA (Administrative Record No. MO-634). EPA did
not respond to OSM's request.
State Historical Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments on proposed amendments which may have an effect on historic
properties from the SHPO and ACHP. Since the proposed amendment would
not have any effect on historic properties, OSM did not solicit comment
from the SHPO or ACHP.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions, the proposed amendment as submitted by Missouri on December
14, 1995.
The Director does not approve, as discussed in: finding No. 2.f,
Phase II/III Revegetation Success Standards for Prime Farmland,
Missouri's proposal to utilize county averages of production as one
method of establishing a target yield for prime farmland. This is less
effective than the Federal regulations at 30 CFR 823.15(b)(7) because
the county averages would not have been adjusted by the U.S. Soil
Conservation Service to remove the influence of other nonprime soils
that produce the reference crop. Missouri must not use the option for
utilizing a county average as a success standard for prime farmland
soils unless and until it is revised consistent with the Federal
regulations and approved by OSM.
The Director approves, as discussed in: finding No. 1, 10 CSR 40-
3.120/3.270(6)(B) concerning Specific standards for postmining land
uses; finding No. 2.a, concerning its Phase III Revegetation Success
Standards for Woodland; finding No. 2.b, concerning its Phase III
Success Standards for Industrial/Commercial Revegetation; finding No.
2.c, concerning its Phase III Revegetation Success Standards for
Cropland; finding No. 2.d, concerning its Phase III Revegetation
Success Standards for Wildlife Habitat; finding No. 2.e, concerning its
Phase III Revegetation Success Standards for Pasture and Previously
Mined Areas; finding No. 2.f, concerning its Phase II/III Revegetation
Success standards for Prime Farmland, with the exception noted above;
finding No. 2.g, concerning its Phase III Revegetation Success
Standards for a Recreation land use; finding No. 2.h, concerning its
Phase III Revegetation Success Standards for Residential land use.
The Director approves the rules and guidance documents as proposed
by Missouri with the provision that they be fully promulgated in
identical form to the rules submitted to and reviewed by OSM and the
public.
The Federal regulations at 30 CFR Part 925, codifying decisions
concerning the Missouri 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.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
unilateral changes to approved State programs. In the oversight of the
Missouri program, the Director will recognize only the statutes,
regulations and other materials approved by OSM, together with any
consistent implementing policies, directives and other materials, and
will require the enforcement by Missouri of only such provisions.
VI. Procedural Determinations
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).
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 731.17(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.
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(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. 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 corresponding Federal regulations.
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.
[[Page 26461]]
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 8, 1996.
Brent Wahlquist,
Regional Director, Mid-Continent 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 925--MISSOURI
1. The authority citation for Part 925 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 925.15 is amended by adding paragraph (u) to read as
follows:
Sec. 925.15 Approval of regulatory program amendments.
* * * * *
(u) With the exception of that portion of the Phase II/III
Revegetation Success Standards for Prime Farmland, concerning the
option to utilize county averages of production as one method of
establishing a target yield for prime farmland, the addition of the
following revegetation success guidelines: Phase III Revegetation
Success Standards for Woodland; Phase III Success Standards for
Industrial/Commercial Revegetation; Phase III Revegetation Success
Standards for Cropland; Phase III Revegetation Success Standards for
Wildlife Habitat; Phase III Revegetation Success Standards for Pasture
and Previously Mined Areas; Phase II/III Revegetation Success Standards
for Prime Farmland; Phase III Revegetation Success Standards for a
Recreation land use; Phase III Revegetation Success Standards for
Residential land use; and the revision of the rules at 10 CSR 40-3.120/
3.270(6)(B) concerning specific standards for postmining land uses, as
submitted to OSM on December 14, 1995, are approved effective May 28,
1996.
Sec. 925.16 [Amended]
3. Section 925.16 is amended by removing and reserving paragraphs
(a) and (p)(6).
[FR Doc. 96-13263 Filed 5-24-96; 8:45 am]
BILLING CODE 4310-05-M
