[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36044-36050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17167]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
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 and additional
requirements, 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). Missouri proposed
revisions to rules pertaining to definitions, topsoil redistribution,
impoundment design, disposal of coal processing and noncoal waste,
backfilling and grading, coal exploration, fish and wildlife plan,
permit approval findings, notice of violations, and eligibility for
small operators assistance. The amendment is intended to revise the
State program to be consistent with the corresponding Federal
regulations and SMCRA, clarify ambiguities, and improve operational
efficiency.
EFFECTIVE DATE: July 13, 1995.
FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Telephone: (816) 374-6405.
SUPPLEMENTARY INFORMATION:
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. Proposed Amendment
By letter dated February 10, 1995 (administrative record No. MO-
612), Missouri submitted a proposed amendment to its program pursuant
to SMCRA (30 U.S.C. 1201 et seq.). Missouri submitted the proposed
amendment with the intent of satisfying the required program amendments
at 30 CFR 925.16(b)(4), (p)(9), and (q)(1) through (q)(5), and at its
own initiative to improve its program. The amendment also contains
nonsubstantive revisions to eliminate editorial and typographical
errors and to accomplish necessary recodification required by the
addition or deletion of provisions. The provisions of 10 Code of State
Regulations (CSR) that Missouri proposed to revise were: (1) 10 CSR 40-
3.030(4) to require that contamination of topsoil be prevented during
redistribution; (2) 10 CSR 40-3.040(10)(B)5 to reference the January
1991, U.S. Natural Resources Conservation Service (formerly the Soil
Conservation Service) technical document, Practice Standards 378,
concerning impoundment design; (3) 10 CSR 40-3.110(3)(A)1 to clarify
that the requirements of this section apply to coal seams, combustible
materials, and acid- and toxic-forming materials, to require that coal
processing waste and noncoal waste be covered in accordance with the
regulations for disposal of coal processing waste at 10 CSR 40-3.080,
and to delete the existing requirement that exposed coal seams and
combustible materials, including coal processing waste, be covered with
a
[[Page 36045]]
minimum of 4 feet of nontoxic- and nonacid-producing materials; (4) 10
CSR 40-3.110(6)(B) to provide that the regulations for repair of rills
and gullies at 10 CSR 40-3.110(6)(A) apply, on areas that have been
previously mined, only after final grading of the area when topsoil or
a topsoil substitute is not available; (5) 10 CSR 40-6.010(2)(H) to add
a definition of ``Secretary;'' (6) 10 CSR 40-6.020(2)(A) and (3)(A) to
clarify that these regulations concern exploration activities outside
of a permit area; (7) 10 CSR 40-6.050(7) (C) and (D), and 10 CSR 40-
6.120(12) (C) and (D) to specify the information that must be included
in a fish and wildlife plan and that, when the plan does not include
enhancement measures, it must include an explanation of why enhancement
is not practicable; (8) 10 CSR 40-6.070(8)(M) to require that the
Director of the Missouri program must find, prior to permit approval
for a proposed remining operation where the applicant intends to
reclaim in accordance with the requirements of 10 CSR 40-4.080, that
the site of the operation is a previously mined area; (9) at 10 CSR 40-
8.010(1)(A)72 the definition of ``previously mined area;'' (10) at 10
CSR 40-8.010(1)(A)84 the definition of ``road;'' (11) 10 CSR 40-
8.030(7)(A) to delete the requirement that modification, termination,
or vacating of notice of violations must be in accordance with the
regulation at 10 CSR 40-8.040; (12) 10 CSR 40-8.040(9) to delete the
definition of ``habitual violator;'' and (13) 10 CSR 40-8.050(2)(B) to
change the eligibility requirement of coal production of 100,000 tons
per year to 300,000 tons per year for a small operator assistance
applicant.
OSM announced receipt of the proposed amendment in the March 2,
1995, Federal Register (41 FR 11640), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. MO-618).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on April 3, 1995.
During its review of the amendment, OSM identified concerns
relating to the provisions of Missouri's rules at 10 CSR 40-
3.140(1)(A), roads and control of air pollution attendant to erosion;
10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), permit application
requirements for a fish and wildlife plan; and 10 CSR 40-8.050(2)(B),
small operator assistance program. OSM notified Missouri of the
concerns by letter dated April 10, 1995 (administrative record No. MO-
627).
Missouri responded by telephone on May 9, 1995, that it would not
submit revisions to the amendment and that OSM should proceed with the
publishing of this final rule Federal Register notice (administrative
record No. MO-629).
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with certain exceptions and additional
requirements, that the proposed program amendment submitted by Missouri
on February 10, 1995, is no less effective than the corresponding
Federal regulations and no less stringent than SMCRA. Accordingly, the
Director approves the proposed amendment.
1. Editorial Revisions to Missouri's Rules
Missouri proposed revisions to the following previously-approved
rules that consist of minor editorial changes or corrections of
referenced citations due in part to recodification (corresponding
Federal regulation provisions are listed in parentheses):
10 CSR 40-3.100(5)2 (30 CFR 816.97(g)(3)), concerning
distribution of plants to maximize benefit to fish and wildlife, by
replacing a semicolon with a period at the end of a sentence;
10 CSR 40-3.100(6) (30 CFR 816.97(h)), concerning cropland as an
alternative postmining land use, by replacing the term ``fields''
with ``reclaimed lands;''
10 CSR 40-3.100(7) (30 CFR 816.97(h)), concerning use of
greenbelts for residential, public service, or industrial land uses,
by deleting the ``s'' from the word ``lands;''
10 CSR 40-3.060(1)(L)1 (30 CFR 816.71(i)(1)), concerning the
prohibition of placing coal processing wastes in head-of-hollow or
valley fills, by correcting the citation of the reference for the
requirements for the disposal of coal-processing waste in excess
spoil fills at 10 CSR 40-3.080(4);
10 CSR 40-3.060(1)(O) (30 CFR 816.71(j)), concerning disposal of
excess spoil, by correcting the citation of the reference to the
requirements for permit application approval of the plan for return
of coal processing waste to abandoned underground workings at 10 CSR
40-6.120(17);
10 CSR 40-3.080(8)(B) (30 CFR 816.89(b)), concerning the final
disposal of noncoal wastes, by correcting the citation of the
reference for revegetation requirements for surface coal mining
operations at 10 CSR 40-3.120.
10 CSR 40-3.110(3)3 (30 CFR 816.102(f) and 816.41(a)),
concerning the prohibition of disposal or storage of acid-forming or
toxic-forming material in proximity to a drainage course, by adding
the word ``forming'' in the phrase ``acid-forming or toxic-forming
material;''
10 CSR 40-6.030(1)(C)(3) (30 CFR 778.13(c)(3)), concerning
identification of interests for legal and financial permit
application requirements, by correcting the citation of the
reference for the permit condition that requires submittal of
information after receipt of a cessation order at 10 CSR 40-
6.070(13)(E);
10 CSR 40-6.030(5)(B) (30 CFR 778.17(b), concerning permit
application requirements, by correcting the citation of the
reference for information required for permit terms in excess of 5
years at 10 CSR 40-6.070(12)(A);
10 CSR 40-6.060(4)(D)(4) (30 CFR 785.17(d)(4)), concerning the
requirement on prime farmland that the State conservationist review
and comment on the proposed method of soil reconstruction, by
correcting the citation of the reference for permit application
requirements for a plan for soil reconstruction, replacement, and
stabilization at 10 CSR 40-6.060(4)(C)(2); and
10 CSR 40-6.070(9)(A)1, 6.070(9)(A)2.A, and 6.070(9)(A)2.B (30
CFR 773.15(c)(6) and 701.11(d)), concerning criteria for permit
approval or denial for existing structures, by correcting the
citation of the reference for exemptions for existing structures at
10 CSR 40-8.070(2)(D) (1)(A), (1)(B) and (1)(C);
The Director finds that the proposed revisions to these previously-
approved rules, which are editorial in nature, do not make these
proposed Missouri rules less effective than the Federal regulations.
The Director approves the revisions proposed to these rules.
2. Substantive Revisions to Missouri's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
Missouri 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 regulation
provisions (listed in parentheses).
10 CSR 40-6.010(2)(H) (30 CFR 700.5), concerning the definition
of ``Secretary;''
10 CSR 40-6.070(8)(M) (30 CFR 773.15(c)(12)), concerning
criteria for permit approval or denial for remining operations; and
10 CSR 40-8.010(1)(A)84 (30 CFR 701.5), concerning the
definition of ``road''
Because these proposed Missouri rules are substantively identical to
the corresponding provisions of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations. The
Director approves these proposed rules.
3. Proposed Revisions to Missouri's Rules Made in Response to Required
Amendments
a. 10 CSR 40-3.110(3)1, Performance Standards for Backfilling and
Grading of Acid- and Toxic-Forming Materials
OSM required at 30 CFR 925.16(q)(1) that Missouri amend 10 CSR 40-
3.110(3)1 by (1) requiring that exposed coal seams and combustible
materials be
[[Page 36046]]
adequately covered or treated as required at 30 CFR 816.102(f) and (2)
explaining why these two groups of materials, i.e., acid- and toxic-
forming materials and exposed coal seams and combustible materials, are
treated differently and clarify what is required to be demonstrated if
less than 4 feet of cover is proposed (Finding No. 7, 58 FR 64142,
64144, December 6, 1993).
Missouri proposed to revise 10 CSR 40-3.110(3)1 to require that
exposed coal seams, acid-forming and toxic-forming materials, and
combustible materials exposed, used, or produced during mining shall be
adequately covered with nontoxic and noncombustible material or treated
to control the impact on surface and ground water in accordance with 10
CSR 40-3.040, to prevent sustained combustion, and to minimize adverse
effects on plant growth and the approved postmining land use. Missouri
proposed to delete from 10 CSR 40-3.110(3)1 the allowance for an
exception to a 4 foot cover requirement for exposed coal seams and
materials, and combustible materials. Missouri also proposed to add at
10 CSR 40-3.110(3)1 a reference to its rules for covering coal
processing waste and noncoal waste at 10 CSR 40-3.080.
Proposed 10 CSR 40-3.110(3)1 is substantively identical to the
Federal regulation at 30 CFR 816.102(f) with the exception of the
reference to Missouri's rules for covering coal processing waste and
noncoal waste at 10 CSR 40-3.080. This reference does not affect the
requirements in proposed 10 CSR 40-3.110(3)1 concerning exposed coal
seams, acid-forming and toxic forming materials, and combustible
materials.
The Director finds that proposed 10 CSR 40-3.110(3)1 is not less
effective than the Federal regulation at 30 CFR 816.102(f), and
satisfies the program amendment requirement at 30 CFR 925.16(q)(1). The
Director approves proposed 10 CSR 40-3.110(3)1 and removes the required
amendment at 30 CFR 925.16(q)(1).
b. 10 CSR 40-3.110(6)(B), Stabilization of Rills and Gullies After
Backfilling and Grading
OSM required at 30 CFR 925.16(q)(2) that Missouri revise 10 CSR 40-
3.110(6)(B) to require for previously mined areas, that an operator
identify the best suited material available for topsoil replacement and
segregate that material for later use as a topsoil substitute (Finding
No. 9, 58 FR 64142, 64144, December 6, 1993).
Missouri proposed to revise 10 CSR 40-3.110(6)(B) to require, on
areas that have been previously mined where topsoil or a topsoil
substitute are not available, stabilization of rills and gullies
pursuant to subsection (6)(A) after final grading. Missouri's rule at
10 CSR 40-3.110(6)(A) requires stabilization of rills and gullies
deeper than 9 inches on areas that have been regraded and topsoiled.
Although Missouri proposed to delete at 10 CSR 40-3.110(6)(B) the
provision that the area need not be topsoiled, Missouri's revised 10
CSR 40-3.110(6)(B) continues to require topsoil or a topsoil substitute
if available on reclaimed areas that have been previously mined
(emphasis added).
The counterpart Federal regulations at 30 CFR 816.106, concerning
previously mined areas, require that these areas comply with the
requirements of 30 CFR 816.102 through 816.107. The Federal regulations
at 30 CFR 816.102(d)(2) requires topsoil removal, storage, and
redistribution in accordance with 30 CFR 816.22. The Federal
regulations at 30 CFR 816.22 require, among other things, the removal
of the topsoil, material approved as a topsoil substitute, or the
topsoil and the unconsolidated materials immediately below the topsoil.
There is no Federal provision for an exception to the identification of
topsoil or topsoil substitutes on areas that have been previously
mined.
Therefore, the Director finds that proposed 10 CSR 40-3.110(6)(B)
remains less effective than the Federal regulations at 30 CFR 816.102
and 816.22 and does not satisfy the program amendment requirement at 30
CFR 925.16(q)(2). The Director approves the revisions proposed at 10
CSR 40-3.110(6)(B), and revises the required amendment at 30 CFR
925.16(q)(2) to require that Missouri further revise 10 CSR 40-
3.110(6)(B) to clearly require, for areas that have been previously
mined, either topsoil or a topsoil substitute, in accordance with its
rules at 10 CSR 40-3.030.
c. 10 CSR 40-3.140(1)(A), Control or Prevention of Air Pollution
Attendant to Erosion at Surface Mining Operations
OSM required at 30 CFR 925.16(p)(9) that Missouri amend its program
at 10 CSR 3.140(1)(A) by requiring that all exposed surfaces be
stabilized in accordance with current prudent engineering practices
(Finding No. 32, 57 FR 44660, 44669, September 29, 1992).
Missouri proposed to revise 10 CSR 40-3.140(1)(A), concerning the
control or prevention of air pollution attendant to erosion at surface
mining operations, to remove the word ``road'' from the phrase ``other
exposed road surfaces.'' However, Missouri proposed to remove the word
``road'' only from the list of possible measures by which to control or
prevent air pollution. The word ``road'' still exists in the portion of
proposed 10 CSR 40-3.140(1)(A) that requires control or prevention of
air pollution attendant to erosion, including dust occurring ``on other
exposed road surfaces'' (emphasis added).
The Federal regulations at 30 CFR 816.150(b)(1) require that each
road shall be located, designed, constructed, reconstructed, used,
maintained, and reclaimed so as to control or prevent erosion,
siltation, and the air pollution attendant to erosion, including road
dust as well as dust occurring on other exposed surfaces, by measures
such as vegetating, watering, using chemical or other dust
suppressants, or otherwise stabilizing all exposed surfaces in
accordance with current, prudent engineering practices. To fully
satisfy the required amendment, Missouri must further revise proposed
10 CSR 40-3.140(1)(A) to delete the first occurrence of the word
``road'' in the phrase ``other exposed road surfaces.''
Therefore, the Director finds that (1) proposed 10 CSR 40-
3.140(1)(A) remains less effective than the Federal regulations at 30
CFR 816.150(b)(1) and (2) Missouri has not satisfied the program
amendment requirement at 30 CFR 925.16(p)(9). The Director approves the
revisions proposed at 10 CSR 40-3.140(1)(A), but does not remove the
required amendment at 30 CFR 925.16(p)(9).
d. 10 CSR 40-6.050(7)(C), 40-6.050(7)(D), 40-6.120(12)(C), and 40-
6.120(12)(D), Surface and Underground Coal Mining and Reclamation
Operations Permit Application Requirements for Protection of Fish and
Wildlife
OSM required at 30 CFR 925.16(b)(4) that Missouri amend its program
to indicate that the informational requirements of the rules,
concerning a description of protective measures that will be used
during the active mining phase of operations, must be included in the
fish and wildlife plan; require a description of the enhancement
measures that will be used during the reclamation and postmining phase
of operation to develop aquatic and terrestrial habitat; and require
the fish and wildlife protection and enhancement plan requirements also
apply to species or habitats protected by State laws similar to the
Endangered Species Act of 1973 and to threatened or endangered species
or plants or animals proposed as well as listed
[[Page 36047]]
under the Endangered Species Act of 1973 or similar State statutes
(Finding No. 5, 55 FR 22907, 22910, June 5, 1990).
Missouri has proposed revisions at 10 CSR 40-6.050(7)(C), 40-
6.050(7)(D), 40-6.120(12)(C), and 40-6.120(12)(D), that, as discussed
below, satisfy the program amendment requirement at 30 CFR
925.16(b)(4). Therefore, the Director removes the required amendment at
30 CFR 925.16(b)(4).
i. 10 CSR 40-6.050(7)(C) and 40-6.120(12)(C), Informational
requirements for a fish and wildlife plan. Missouri proposed to revise
10 CSR 40-6.050(7)(C) and 6.120(12)(C), concerning surface and
underground coal mining and reclamation operations permit application
requirements, to require that the statement explaining how the
applicant will utilize impact control measures, management techniques,
and monitoring methods to protect or enhance fish and wildlife ``must
be included in the fish and wildlife plan.'' These proposed revisions
of 10 CSR 40-6.050(7)(C) and 6.120(12)(C)(1) are no less effective than
the Federal regulations at 30 CFR 780.16(b) and 784.21(b) and (2)
satisfy the requirement at 30 CFR 925.16(b)(4) concerning the
informational requirements that must be included in a fish and wildlife
plan. The Director approves the revisions proposed at 10 CSR 40-
6.050(7)(C) and 6.120(12)(C).
ii. 10 CSR 40-6.050(7)(D) and 40-6.120(12)(D), Minimum contents of
a fish and wildlife plan. Missouri proposed addition of new rules at 10
CSR 40-6.050(7)(D) and 40-6.120(12)(D), concerning surface and
underground coal mining and reclamation operations permit application
requirements, that specify the minimum contents of a fish and wildlife
plan. With one exception, proposed 10 CSR 40-6.050(7)(D) and
6.120(12)(D) are substantively identical to the counterpart Federal
regulations at 30 CFR 780.16(b) and 784.21(b) and satisfy the program
amendment requirement at 30 CFR 925.16(b)(4).
The exception concerns Missouri's requirement, proposed at 10 CSR
40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), that the description of how,
to the extent possible using the best technology currently available,
the operator will minimize disturbances and adverse impacts on fish and
wildlife and related environmental values during surface coal mining
and reclamation operations and how enhancement of these resources will
be achieved where practicable ``shall be consistent with this
section.'' The counterpart Federal regulations at 30 CFR 780.16(b)(1)
and 784.21(b)(1) require that this description be consistent with the
requirements of the performance standards at 30 CFR 816.97 and 817.97.
Missouri's corresponding performance standards for the protection of
fish, wildlife, and related environmental values are at 10 CSR 40-3.100
and 10 CSR 40-3.250.
Therefore, the Director finds, with the exception of proposed 10
CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), proposed 10 CSR 40-
6.050(7)(D) and 40-6.120(12)(D) are no less effective than the Federal
regulations at 30 CFR 780.16(b) and 784.21(b). With the exception of
proposed 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), the Director
approves proposed 10 CSR 40-6.050(7)(D) and 40-6.120(12)(D). The
Director is adding a new required amendment stating that Missouri must
revise proposed 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1) to
require that the description in the fish and wildlife plan must be
consistent with, respectively, its performance standards for protection
of fish, wildlife, and related environmental values at 10 CSR 40-3.100
and 10 CSR 40-3.250.
e. 10 CSR 40-8.010(1)(A)72, Definition of ``Previously Mined Area''
OSM required at 30 CFR 925.16(q)(3) that Missouri amend 10 CSR 40-
8.010(1)(A) by furnishing a definition for ``previously mined area''
(Finding No. 17.b, 58 FR 64142, 64147, December 6, 1993).
Missouri proposed revising 10 CSR 40-8.010(1)(A) by adding a
definition of ``previously mined area'' at 10 CSR 40-8.010(1)(A)72
which is substantively identical to the Federal definition of
``previously mined area'' at 30 CFR 701.5.
The Director finds that proposed 10 CSR 40-8.010(1)(A)72 is no less
effective than the Federal definition of ``previously mined area'' at
30 CFR 701.5 and satisfies the program amendment requirement at 30 CFR
925.16(q)(3). The Director approves proposed 10 CSR 40-8.010(1)(A)72
and removes the required amendment at 30 CFR 925.16(q)(3).
f. 10 CSR 40-8.030(7), Extension of an Abatement Period for a Notice of
Violation (NOV)
OSM required at 30 CFR 925.16(q)(4) that Missouri amend 10 CSR
40.8.030(7)(A) by removing the phrase ``in accordance with 10 CSR 40-
8.040'' or by providing the proper citation to the State rule that
addresses extension of time for abatement of NOVs (Finding No. 18, 58
FR 64142, 64148, December 6, 1993).
Missouri proposed to revise 10 CSR 40-8.030(7)(A), concerning the
allowance to extend an abatement period for a notice of violation, by
deleting the phrase `` in accordance with 10 CSR 40-8.040,'' a
reference to its rules concerning penalty assessments.
The Director finds that proposed 10 CSR 40-8.030(7)(A) is no less
effective than the Federal regulations at 30 CFR 843.12(c) and
satisfies the program amendment requirement at 30 CFR 925.16(q)(4). The
Director approves proposed 10 CSR 40-8.030(7)(A) and removes the
required amendment at 30 CFR 925.16(q)(4).
g. 10 CSR 40-8.040, Penalty Assessments
OSM required at 30 CFR 925.16(q)(5) that Missouri amend 10 CSR 40-
8.040 by removing its rules concerning habitual violators at 10 CSR 40-
8.040(9) (Finding No. 20, 58 FR 64142, 64148, December 6, 1993).
Missouri proposed to revise 10 CSR 40-8.040, concerning penalty
assessments, by deleting 10 CSR 40-8.040(9) and recodifying existing 10
CSR 40-8.040(10) and (11) as 10 CSR 40-8.040(9) and (10). Deleted 10
CSR 40-8.040(9) included a definition of ``habitual violator'' and
requirements regarding civil penalties for habitual violators.
The Director finds that Missouri's proposed deletion of 10 CSR 40-
8.040(9) is consistent with the Federal regulations at 30 CFR 843 and
845 and satisfies the program amendment requirement at 30 CFR
925.16(q)(5). The Director approves the proposed deletion of 10 CSR 40-
8.040(9) and removes the required amendment at 30 CFR 925.16(q)(5).
4. 10 CSR 40-3.030(4)(B)2, Prevention of Contamination of the Topsoil
During Redistribution
Missouri proposed to revise 10 CSR 40-3.030(4)(B)2 to require
prevention of contamination of topsoil during its redistribution.
Missouri stated that this provision was revised to be consistent with
section 444.855.2(5) of the Revised Statutes of Missouri (RSMo).
The counterpart Federal regulation at 30 CFR 816.22(d)(ii),
concerning redistribution of topsoil, has no such requirement. However,
section 444.855.2(5) of RSMo is identical to section 515(b)(5) of
SMCRA. Both section 444.855.2(5) of RSMo and section 515(b)(5) of SMCRA
require, with respect to stockpiled or stored topsoil, that the topsoil
remain free of any contamination by other acid or toxic material.
[[Page 36048]]
The requirement to prevent contamination of topsoil during its
redistribution proposed at 10 CSR 40-3.030(4)(B)2 is consistent with
and no less stringent than section 515(b)(5) of SMCRA and no less
effective than the Federal regulations at 30 CFR 816.22 regarding
topsoil storage and redistribution. Therefore, the Director approves
proposed 10 CSR 40-3.030(4)(B)2.
5. 10 CSR 40-3.040(10)(B)5, Performance Standards for Impoundments
Missouri proposed to revise, at 10 CSR 40-3.040(10)(B)5, the
requirements concerning design, construction, and maintenance of
impoundments that protect the hydrologic balance during surface coal
mining operations. Specifically, Missouri proposed to revise the date
of the referenced U.S. Natural Resources Conservation Service (NRCS,
formerly the Soil Conservation Service) ``Practice Standards 378,
Ponds'' from October 1978 to January 1991. This referenced document
contains the design and construction requirements for permanent
impoundments that do not meet the size or other criteria of 30 CFR
77.216(a) approved in a surface mining operation permit.
Missouri's proposed 10 CSR 40-3.040(10)(B)5 is no less effective
than the design and construction requirements in the Federal
regulations at 30 CFR 816.49(a) for impoundments that do not meet or
exceed the size or other criteria of the Mine Safety and Health
Administration (MSHA) at 30 CFR 77.216(a).
However, the Federal regulations at 30 CFR 780.25 and 784.16 were
revised to require that all impoundments meeting the Class B or C
criteria of the U.S. Department of Agriculture, NRCS Technical Release
No. 60 (210-VI-TR60, Oct. 1985), Earth Dams and Reservoirs, comply with
the requirements of the Federal regulations for structures that meet or
exceed the size or other criteria of MSHA. And the Federal regulations
at 30 CFR 816.49 and 817.49 were revised to require that any
impoundment meeting the Class B or C criteria for dams in the U.S.
Department of Agriculture, NRCS Technical Release No. 60 (210-VI-TR60,
Oct. 1985), Earth Dams and Reservoirs, comply with ``Minimum Emergency
Spillway Hydrologic Criteria'' table in TR-60 as well as the
requirements of 30 CFR 816.49 and 817.49 (59 FR 53022, October 20,
1994).
OSM will evaluate all State programs to ascertain the need for
revision to be no less effective than the revised Federal regulations
at 30 CFR 780.25, 784.16, 816.49, and 817.49. At that time, OSM will
notify Missouri, in accordance with the Federal regulations at 30 CFR
732, of the need to revise its regulations at 10 CSR 40-6.040(11),
6.120(7), 3.040(10), and 3.200(10) to include the hazard classification
criteria for impoundments.
At this time, based on the above discussion, the Director finds
that proposed 10 CSR 40-3.040(10)(B)5 is no less effective than the
Federal regulations at 30 CFR 816.49(a) with regard to impoundments
that (1) do not meet the NRCS class B or C hazard classification
criteria and (2) do not meet or exceed the size of other criteria of 30
CFR 77.216(a). The Director approves proposed 10 CSR 40-3.040(10)(B)5
to the extent that its requirements apply only to impoundments that (1)
do not meet the NRCS class B or C hazard classification criteria and
(2) do not meet or exceed the size or other criteria of MSHA at 30 CFR
77.216(a). The Director does not approve proposed 10 CSR 40-
3.040(10)(B)5 to the extent that it does not exclude permanent
impoundments that meet the NRCS class B or C hazard classification
criteria from the design and construction requirements in the NRCS
``Practice Standards 378, Ponds,'' dated January 1991.
6. 10 CSR 40-6.020(2)(A) and 40-6.020(3)(A), Requirements for Coal
Exploration
Missouri proposed revisions at 10 CSR 40-6.020(2)(A) and 10 CSR 40-
6.020(3)(A), concerning applications and permits for coal exploration
during which, respectively, less than and more than 250 tons of coal
will be removed. Specifically, Missouri proposed to delete the phrase
``outside a permit area'' with regard to the location of a proposed
coal exploration operation. The effect of Missouri's proposed revisions
is to require exploration applications or permits regardless of where
the exploration operation occurs. Missouri stated in its proposed
amendment that these revisions were proposed in order to remove
confusing language and clarify the requirements for obtaining coal
exploration permits.
The counterpart Federal regulations at 30 CFR 772.11 and 772.12
include the phrase ``outside a permit area'' with regard to the
location of coal exploration operations that must obtain approved
applications or permits. These Federal regulations exclude coal
exploration operations from the requirements of 30 CFR 772.11 and
772.12 if the exploration operations occur within the boundaries of an
existing surface coal mining and reclamation operation permit.
Missouri's proposed 10 CSR 40-6.020(2)(A) and 10 CSR 40-6.020(3)(A)
are more inclusive of the requirement to obtain exploration
applications and permits than are the counterpart Federal regulations.
Therefore, the Director finds that proposed 10 CSR 40-6.020(2)(A) and
10 CSR 40-6.020(3)(A) are no less effective than the Federal
regulations at 30 CFR 772.11 and 772.12 and approves the proposed
rules.
7. 10 CSR 40-8.050(2)(B), Small Operator Assistance Program
Missouri proposed to revise 10 CSR 40-8.050(2)(B) to increase, from
100,000 tons to 300,000 tons, the amount of coal an operator can mine
and be considered eligible for small operator assistance.
The Abandoned Mine Reclamation Act of 1990 (AMRA), as amended, was
reauthorized on November 5, 1990, when the Omnibus Budget
Reconciliation Act of 1990, Public Law 101-508 was enacted. Included in
AMRA was new legislation that raised the annual coal production limit
from 100,000 to 300,000 tons for eligibility under SOAP authorized at
section 507(c) of SMCRA.
Therefore, the Director finds that Missouri's proposed revision of
10 CSR 40-8.050(2)(B) is consistent with and no less stringent than
section 507(c) of SMCRA as amended by AMRA. The Director approves the
proposed rule.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Missouri program.
The Natural Resources Conservation Service responded on March 3,
1995, that it had no comments concerning the proposed amendments
(administrative record No. MO-616).
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
[[Page 36049]]
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 its
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-614. It did
not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with certain
exceptions and additional requirements, Missouri's proposed amendment
as submitted on February 10, 1995.
The Director does not approve, as discussed in Finding No. 5, 10
CSR 40-3.040(10)(B)5, to the extent it does not exclude permanent
impoundments that meet the NRCS class B or C hazard classification
criteria from the design and construction requirements in the NRCS
``Practice Standards 378, Ponds,'' dated January 1991.
With the requirement that Missouri further revise its rules, the
Director does not approve, as discussed in Finding No. 3.d.ii, 10 CSR
40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), concerning the fish and
wildlife plan.
With the requirement that Missouri further revise its rules, the
Director approves, as discussed in: Finding No. 3.b, 10 CSR 40-
3.110(6)(B), Finding No. 3.c, 10 CSR 40-3.140(1)(A), concerning the
control or prevention of air pollution attendant to erosion at surface
mining operations; and Finding No. 3.d.ii, 10 CSR 40-6.050(7)(D) and
40-6.120(12)(D), concerning the fish and wildlife plan.
The Director approves, as discussed in: Finding No. 1, 10 CSR 40-
3.100(5)2, (6), and (7), 40-3.060(1)(L)1 and (O), 40-3.080(8)(B), 40-
3.110(3)3, 40-6.030(1)(C) and (5)(B), 40-6.060(4)(D)(4), 40-
6.070(9)(A)1 and 40-6.070(9)(A)2.A and 2.B, concerning minor editorial
revisions or corrections of referenced citations; Finding No. 2, 10 CSR
40-6.010(2)(H), 40-6.070(8)(M), and 40-8.010(1)(A)84, concerning
substantive revisions that are substantively identical to the
corresponding Federal regulations; Finding Nos. 3.a, 3.d.i, 3.e, 3.f,
and 3.g, 10 CSR 40-3.110(3)1, 40-6.050(7)(C) and 40-6.120(7)(C), 40-
8.010(1)(A)72, 40-8.030(7)(A), and 40-8.040(9), concerning responses to
required amendments; Finding No. 4, 10 CSR 40-3.030(4)(B)2, concerning
topsoil; Finding No. 5, 10 CSR 40-3.040(10)(B)5, concerning design and
construction of impoundments, to the extent that its requirements apply
only to impoundments that (1) do not meet the NRCS class B or C hazard
classification criteria and (2) do not meet or exceed the size or other
criteria of MSHA at 30 CFR 77.216(a); Finding No. 6, 10 CSR 40-
6.020(2)(A) and (3)(A), concerning coal exploration; and Finding No. 7,
10 CSR 40-8.050(2)(B), concerning small operator's assistance.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
925.16 that, within 60 days of the publication of this final rule,
Missouri must either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is
consistent with Missouri's established administrative or legislative
procedures.
The Director approves the rules 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. Thus, any changes to the State program are not enforceable
until approved by OSM. 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
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 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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(2)(C) of the National Environmental Policy Act of 1969 (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. 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
[[Page 36050]]
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.
List of Subjects in 30 CFR Part 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 6, 1995.
Charles E. Sandberg,
Acting 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 (s) to read as
follows:
Sec. 925.15 Approval of amendments to the Missouri regulatory program.
* * * * *
(s) With the exception of 10 CSR 40-3.040(10)(B)5, to the extent it
does not exclude permanent impoundments that meet the NRCS class B or C
hazard classification criteria from the design and construction
requirements in the NRCS ``Practice Standards 378, Ponds,'' dated
January 1991; and 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1),
concerning the requirement that a fish and wildlife plan in
applications for surface and underground mining operations be
consistent with the performance standards for protection of fish,
wildlife, and related environmental values at 10 CSR 40-3.100 and 10
CSR 40-3.250, revisions to the following rules, as submitted to OSM on
February 10, 1995, are approved effective July 13, 1995:
10 CSR 40-3.030(4)(B)2, performance standards concerning topsoil
redistribution;
10 CSR 40-3.040(10)(B)5, performance standards concerning design
and construction of certain impoundments;
10 CSR 40-3.060(1)(L)1 and (0), performance standards concerning
the disposal of coal processing wastes and excess spoil;
10 CSR 40-3.080(8)(B), performance standards concerning the
final disposal of noncoal wastes;
10 CSR 40-3.100(5)2, (6), and (7), performance standards
concerning protection of fish and wildlife;
10 CSR 40-3.110(3)1, (3)3, and (6)(B) performance standards
concerning disposal or storage of acid-forming or toxic-forming
material;
10 CSR 40-3.140(1)(A), performance standards concerning the
control or prevention of air pollution attendant to erosion at
surface mining operations;
10 CSR 40-6.010(2)(H), concerning the definition of
``Secretary;''
10 CSR 40-6.020(2)(A) and (3)(A), concerning coal exploration;
10 CSR 40-6.030(1)(C) and (5)(B), and 6.050(7)(C) and (7)(D),
concerning permit application requirements for surface mining
operations;
10 CSR 40-6.060(4)(D)(4), concerning permit application
requirements for operations involving prime farmland;
10 CSR 40-6.070(8)(M), (9)(A)1, and (9)(A)2.A and 2.B,
concerning criteria for permit approval or denial for remining
operations and existing structures;
10 CSR 40-6.120(7)(C) and (12)(D), concerning permit application
requirements for underground mining operations;
10 CSR 40-8.010(1)(A)72 and 84, concerning the definitions for
``previously mined area'' and ``road;''
10 CSR 40-8.030(7)(A), concerning the extension of an abatement
period for a notice of violation;
10 CSR 40-8.040(9), concerning the deletion of a definition for
``habitual violator'' and requirements regarding civil penalties for
habitual violators; and
10 CSR 40-8.050(2)(B), concerning small operator's assistance.
3. Section 925.16 is amended by removing and reserving paragraphs
(b)(4), (q)(1), and (q)(3) through (q)(5); revising paragraph (q)(2);
and adding paragraph (u) to read as follows:
Sec. 925.16 Required program amendments.
* * * * *
(q)(2) By September 11, 1995, Missouri shall revise 10 CSR 40-
3.110(6)(B) or otherwise modify its program, to clearly require, for
areas that have been previously mined, either topsoil or a topsoil
substitute, in accordance with its rules at 10 CSR 40-3.030.
* * * * *
(u) By September 11, 1995, Missouri shall revise 10 CSR 40-
6.050(7)(D)(1) and 40-6.120(12)(D)(1), or otherwise modify its program,
to require that the description in the fish and wildlife plan must be
consistent with, respectively, its performance standards for protection
of fish, wildlife, and related environmental values at 10 CSR 40-3.100
and 10 CSR 40-3.250.
[FR Doc. 95-17167 Filed 7-12-95; 8:45 am]
BILLING CODE 4310-05-M
