18744 Federal Register / Vol. 60, No. 71 / Thursday, April 13, 1995 / Rules and Regulations

1, 1995) for an explanation of how

amounts are taken into account under

the cut-off method (except that, for

purposes of this paragraph (d)(2), the

change applies to all amounts otherwise

incurred on or after the first day of the

first taxable year beginning after

December 31, 1991). For taxable years

ending before April 7, 1995, see Q&A–

6 of § 1.461–7T (as it appears in 26 CFR

part 1 revised April 1, 1995) for an

explanation of how amounts are taken

into account under the full-year change

method (except that the change in

method occurs on the first day of the

first taxable year beginning after

December 31, 1991). For taxable years

ending before April 7, 1995, the fullyear change in method may result in a

section 481(a) adjustment that must be

taken into account in the manner

described in Q&A–8 and Q&A–9 of

§ 1.461–7T (as it appears in 26 CFR part

1 revised April 1, 1995) (except that the

taxable year of change is the first taxable

year beginning after December 31,

1991).

(ii) Manner of changing to the

recurring item exception method. For

the first taxable year beginning after

December 31, 1991, a taxpayer may

change to the recurring item exception

method by accounting for the item on its

timely filed original return for such

taxable year (including extensions). For

taxable years ending before April 7,

1995, the automatic consent of the

Commissioner is limited to those items

accounted for under the recurring item

exception method on the timely filed

return, unless the taxpayer indicates a

wider scope of change by filing the

statement provided in Q&A–7(b)(2) of

§ 1.461–7T (as it appears in 26 CFR part

1 revised April 1, 1995).

* * * * *

§ 1.461–7T [Removed]

Par. 5. Section 1.461–7T is removed.

PART 602—OMB CONTROL NUMBERS

UNDER THE PAPERWORK

REDUCTION ACT

Par. 6. The authority citation for part

602 continues to read as follows:

Authority: 26 U.S.C. 7805.

Par. 7. In § 602.101, paragraph (c) is

amended by removing the entry for

1.461–3T from the table and adding the

following entries in numerical order to

read as follows:

§ 602.101 OMB Control numbers.

* * * * *

(c) * * *

CFR part or section where

identified and described

Current

OMB control

No.

* * * * *

1.461–4 ..................................... 1545–0917

1.461–5 ..................................... 1545–0917

* * * * *

Margaret Milner Richardson,

Commissioner of Internal Revenue.

Approved: April 5, 1995.

Leslie Samuels,

Assistant Secretary of the Treasury.

[FR Doc. 95–9034 Filed 4–7–95; 4:56 pm]

BILLING CODE 4830–01–U

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 934

North Dakota Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving, with

certain exceptions, a proposed

amendment to the North Dakota

regulatory program (hereinafter referred

to as the ‘‘North Dakota program’’)

under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA).

North Dakota proposed revisions to and

additions of rules pertaining to: areas

unsuitable for mining; permit

applications (environmental monitoring

plans); permit application approval

procedures; permit revisions, renewals,

and transfer or sale; performance bond;

resoiling performance standards;

sediment pond performance standards;

contemporaneous reclamation

performance standards; and

enforcement actions. The amendment is

intended to revise the North Dakota

program to be consistent with the

corresponding Federal regulations,

address required program amendments,

clarify ambiguities, correct crossreferences, and improve program

efficiency.

EFFECTIVE DATE: April 13, 1995.

FOR FURTHER INFORMATION CONTACT: Guy

Padgett, Telephone: (307) 261–5776.

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota

Program

On December 15, 1980, the Secretary

of the Interior conditionally approved

the North Dakota program. General

background information on the North

Dakota program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval of the North Dakota program

can be found in the December 15, 1980,

Federal Register (45 FR 82214).

Subsequent actions concerning North

Dakota’s program and program

amendments can be found at 30 CFR

934.12, 934.13, 934.15, 934.16, and

934.30.

II. Proposed Amendment

By letter dated November 10, 1994,

North Dakota submitted a proposed

amendment to its program pursuant to

SMCRA (Amendment number XXI,

Administrative Record No. ND–V–01,

State Program Amendment Tracking

System No. ND–031–FOR). North

Dakota submitted the proposed

amendment in response to the required

program amendments at 30 CFR

934.16(u) and at its own initiative. The

provisions of the North Dakota

Administrative Code (NDAC) that North

Dakota proposes to revise or add are:

NDAC 69–05.2–04–07(3)(a), lands

unsuitable for mining; NDAC 69–05.2–

05–09, permit applications

(environmental monitoring plans);

NDAC 69–05.2–06–01(2), permit

applications (identification of interests);

NDAC 69–05.2–06–02(6), permit

applications (compliance information);

NDAC 69–05.2–10–03(5), criteria for

permit approval; NDAC 69–05.2–11–

02(1)(d), permit revisions; NDAC 69–

05.2–11–03(5)(c), permit renewals;

NDAC 69–05.2–11–06(1)(c), transfer,

sale, or assignment of permit rights;

NDAC 69–05.2–12–09(2), performance

bond (period of liability); NDAC 69–

05.2–15–02(2)(a), performance

standards (suitable plant growth

materials); NDAC 69–05.2–16–09 (7)

and (20), performance standards

(sediment ponds); NDAC 69–05.2–21–

01(2), performance standards

(backfilling and grading, timing

requirements); and NDAC 69–05.2–28–

03(b), inspection and enforcement

(cessation orders).

OSM announced receipt of the

proposed amendment in the December

9, 1994, Federal Register (59 FR 63738),

provided an opportunity for a public

hearing or meeting on its substantive

adequacy, and invited public comment

on its adequacy (Administrative Record

No. ND–V–06). Because no one
Federal Register / Vol. 60, No. 71 / Thursday, April 13, 1995 / Rules and Regulations 18745

requested a public hearing or meeting,

none was held. The public comment

period ended on January 9, 1995.

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, that the proposed program

amendment submitted by North Dakota

on November 10, 1994, is no less

effective than the corresponding Federal

regulations in meeting SMCRA’s

requirements. Accordingly, the Director

approves the proposed amendment.

1. Nonsubstantive Revisions to North

Dakota’s Rules

North Dakota proposed revisions to

the following previously-approved rules

that are nonsubstantive in nature and

consist of minor editorial changes or

correction of cross-references

(corresponding Federal regulation

provisions are listed in parentheses):

NDAC 69–05.2–11–02(1)(d) (30 CFR

774.13(d)), when permit revisions are

required;

NDAC 69–05.2–11–03(5)(c) (30 CFR

774.15(b)(2)(iv)), requirements for

applications to renew permits;

NDAC 69–05.2–11–06(1)(c) (30 CFR

774.17(a), (d)), requirements for

transfer, sale, or assignment of permit

rights; and

NDAC 69–05.2–12–09(2) (30 CFR

800.13), period of performance bond

liability.

Because the proposed revisions to

these previously-approved rules are

nonsubstantive in nature, the Director

finds that these proposed revisions do

not substantively change the North

Dakota program as already approved.

The Director approves these proposed

revisions.

2. Substantive Revisions to North

Dakota’s Rules That Are Substantively

Identical to the Corresponding

Provisions of the Federal Regulations

North Dakota proposed revisions to

the following previously-approved 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):

NDAC 69–05.2–04–07(3)(a) (30 CFR

764.21(c)(1)), database and inventory

system for use in designating lands

unsuitable for mining; and

NDAC 69–05.2–28–03(6) (30 CFR

843.11(a)(2)) (introductory text),

significant imminent environmental

harm.

Because these proposed revisions to

the North Dakota rules are substantively

identical to the corresponding

provisions of the Federal regulations,

the Director finds that they are no less

effective than the Federal regulations in

meeting SMCRA’s requirements. The

Director approves these proposed

revisions.

3. NDAC 69–05.2–05–09, Consolidated

Monitoring Plans

North Dakota proposes to add a new

rule to allow a permittee to develop one

consolidated monitoring plan

(hereinafter, ‘‘CMP’’) for certain

required monitoring plans that would

cover multiple permits for a particular

surface coal mining and reclamation

operation. Specifically, North Dakota

proposes NDAC 69–05.2–05–09 as

follows:

The Commission will allow monitoring

plans required by [NDAC] article 69.05 and

North Dakota Century Code chapter 38–14.1

to be consolidated by the permittee into one

single monitoring plan for each surface coal

mining and reclamation operation subject to

the following requirements:

1. Each [CMP] will be subject to the approval

procedures established for permit

revisions.

2. Each mining permit must be revised

describing the specific monitoring plan or

plans to be consolidated into a single

monitoring plan covering the entire surface

coal mining and reclamation operation

under permit.

3. Each [CMP] will be subject to review by

the commission at the time of the midterm

review or renewal for each permit covered

by the [CMP] in accordance with the

requirements of section 69–05.2–11–01.

4. A permittee may propose modifications to

a [CMP] by filing a permit revision

application to the most recently issued

permit covered by the [CMP].

North Dakota also appends to the

submittal a written rationale for its

proposal at NDAC 69–05.2–05–09

(Amendment XXI, Administrative

Record No. ND–V–1, ‘‘IV. Appendix’’).

In that written rationale, North Dakota

clarifies that the proposal is directed

toward instances where one mine (i.e.,

one surface coal mining and reclamation

operation) is authorized by multiple

permits. The proposal would allow, as

one example, the ground water

monitoring plans for each of the

individual permits to be combined into

one consolidated ground water

monitoring plan. The same allowance

would apply for surface water

monitoring, alluvial valley floor

monitoring, and fish and wildlife

monitoring.

A separate CMP would have to be

developed for each category of

monitoring. North Dakota indicates that

this procedure would allow easier

review of monitoring plans by both the

regulatory authority and the public

where one mine is covered by multiple

permits.

North Dakota also indicated that

individual permits would have to

contain appropriate references to the

various CMP’s and that the CMP’s

would be a part of each permit. ‘‘Since

the [CMP] will be considered part of

each mining permit it covers, failure to

comply with the [CMP] will subject the

permittee to the same enforcement

action as would the failure to comply

with any other part of a mining permit.’’

In this case a single violation would be

issued that lists all permits covered by

the CMP. North Dakota states that it

uses this same practice for violations of

performance standards or requirements

that are the same in more than one

permit.

North Dakota’s written rationale

further notes that since CMP’s may be

revised, the reference in each permit

will have to be the most recent (i.e.,

current) CMP. North Dakota proposes to

review each CMP as part of the midterm

review and renewal review of each

included permit, and will require at

those times any necessary revisions.

North Dakota adds that, as it interprets

its rule at NDAC 69–05.2–11–01(2), the

commission is not precluded from

reviewing permits and requiring permit

revisions more frequently than at

midterm or every five years (OSM notes

that this interpretation would apply to

requiring more frequent revisions to

CMP’s if necessary). The permittee may

request revision of a CMP by applying

for a permit revision to the most

recently issued permit covered by the

CMP. When new areas are added to a

mining operation by application for new

permits, the CMP’s for the operation

will have to be updated, and the

updated CMP will be subject to the

approval procedures for permit

applications. If a CMP indicates any

adverse environmental impacts, the

portion of the whole operation affected

would be subject to preventative or

remedial measures as required by NDAC

69–05.2–09–12(2). Depending on the

impacts, that area affected could involve

parts of or all of one, several, or all of

the permits covering the operation.

Following final bond release of any

portion of the area covered by a CMP,

the permittee would have to continue

monitoring that area until the CMP is

revised to delete that area from the

CMP.

North Dakota also specifically listed

the monitoring requirements that could

be consolidated, as follows: (1) Ground

water monitoring—the requirements of

NDAC 69–05.2–09–12(1)(e) and 69–

05.2–16–14; (2) surface water
18746 Federal Register / Vol. 60, No. 71 / Thursday, April 13, 1995 / Rules and Regulations

monitoring—the requirements of NDAC

69–05.2–09–12(1)(e) and 69–05.2–16–

05; (3) alluvial valley floor monitoring—

the requirements of NDAC 69–05.2–08–

14(1)(e), 69–05.2–09–16, and 69–05.2–

25–03; and (4) fish and wildlife

monitoring—the requirements of NDAC

69–05.2–09–17(1)(e) and 69–05.2–13–

08(1).

OSM acknowledges that on surface

coal mining and reclamation operation

may be authorized by a succession of

permits for individual areas. Both the

State statute at North Dakota Century

Code (NDCC) at 39–14.1–15(1) and

SMCRA Section 508(a)(1) provide that

all permit applications include the

identification of ‘‘land subject to surface

coal mining operations over the

estimated life of those operations and

the size, sequence, and timing of the

subareas for which it is anticipated that

individual permits will be sought.’’

And, OSM agrees with North Dakota

that it would be easier for the public,

the permittee, and the regulatory

authority to review and revise the

monitoring plans for the operation, and

evaluate the monitoring data submitted,

if those materials were in one place

rather than spread out through several

permit files.

OSM also notes that North Dakota

does not propose to eliminate or reduce

any monitoring required under the

individual permits. For example, in

order to be approved, a consolidated

ground water monitoring plan would

have to contain sufficient monitoring

sites, monitoring methodologies,

monitoring parameters, monitoring

frequency, etc., to meet the

requirements of NDAC 69–05.2–09–

12(1)(e) and 69–05.2–16–14 for each of

the included permit areas. Similarly, all

of North Dakota’s rule requirements

would remain in effect regarding

required preventative or remedial

changes to surface coal mining and

reclamation operations if monitoring

data indicates the operation is having

unanticipated adverse environmental

impacts. North Dakota’s written

rationale for the provision specifically

addresses this requirement at NDAC 69–

05.2–09–12(2) (protection of the

hydrologic balance), but any other such

regulatory requirement (for preventative

or remedial changes to the operation)

would also be unaffected by this

proposal for CMP’s. Finally, North

Dakota’s proposal would not eliminate

or reduce any required enforcement

actions, since CMP’s would be made

part of each included permit, meaning

that failure to comply with the CMP

would mean noncompliance with each

of the permits. Since each included

permit would be listed in any such

enforcement action, the single

enforcement action would be

considered for potential patterns of

violation for each of the included

permits.

OSM closely considered two aspects

of North Dakota’s proposal. First, the

proposal would allow a CMP to be

revised by submitting a revision

application for only one of the permits

included in the CMP; since the revised

CMP would be incorporated into the

other permits by reference, this would

in effect revise all of the permits in the

particular surface mining operation. But

as noted above, the proposal does not

eliminate or reduce the regulatory

monitoring requirements of the

individual permits. Thus in order to be

approved, the revision application

would in essence have to be revised as

a revision to each permit. Further, OSM

notes that if a revision to a CMP were

considered a significant alteration

subject to public notice under NDAC

69–05.2–11–02(5)(a), the public notice

required by NDCC 38–14.1–18(1) would

have to list all of the permit areas as

lying within the ‘‘boundaries of the land

proposed to be affected by the * * *

permit revision.’’ Hence, the public

would have adequate notice that all

included permits are being revised.

The second aspect that OSM

considered is the adoption of revised

CMP as part of a permit application to

add new permit area to a life-of-mine

operation. North Dakota’s written

rationale, as noted above, addressed this

by noting that the proposed revised

CMP would in that instance be subject

to the approval procedures for permit

applications. On its fact, this statement

appears to contradict proposed NDAC

69–05.2–05–09(1) (which proposes that

CMP’s will be subject to the approval

procedures established for permit

revisions) and proposed NDAC 69–

05.2–05–09(4) (which proposes that

modifications to a CMP may be

proposed by an operator by filing a

permit revision application).

OSM does not consider this apparent

contradiction to be a deficiency. OSM

notes that for any proposal to revise a

CMP that would be included in a permit

application to be approved, the

regulatory authority would have to find

(under NDCC 38–14.1–21(3)(a) [written

findings for permit approval]) that the

proposed CMP complied with NDAC

69–05.2–05–09. Strictly interpreted, that

would require that the applicant

simultaneously file a permit revision

application to the most recent existing

permit, and that that revision

application be reviewed simultaneously

with the application for the new permit.

However, OSM observes that nothing

would be gained from such a

simultaneous dual application and dual

review. As noted earlier, a proposed

CMP does not eliminate or reduce the

regulatory monitoring requirements of

the individual permits. Thus, a

proposed modified CMP contained in an

application for a new permit would, in

the review of the new application, be

reviewed to ensure that it would fulfill

all the regulatory monitoring

requirements of all of the included

permits. That is precisely the same level

of review and approval that would be

accomplished under the dual

application and review under the strict

interpretation. Therefore OSM does not

find any deficiency in North Dakota’s

written intention to have the permit

application approval procedures

supersede the permit revision

procedures under these circumstances.

OSM notes that this aspect of the

proposal would be clearer if this

supersession were incorporated in the

North Dakota program at NDAC 69–

05.2–05–09, and OSM encourages North

Dakota to consider this in the future.

Based upon the above discussion, the

Director finds that North Dakota’s

proposal at NDAC 69–05.2–05–09 is

consistent with the Federal regulations,

and will assist North Dakota in the

efficient administration of its program.

Therefore the Director is approving the

proposal.

4. NDAC 69–05.2–06–01(2), 69–05.2–06–

02(6), and 69–05.2–10–03(5), Permit

Application Review and Criteria for

Approval, Final Compliance Review

NDAC 69–05.2–06–01(2) currently

requires that after a permit application

has been approved but before the permit

is issued, the applicant shall update or

correct the ownership and control

(identification of interests) information

in the application, or indicate that no

change has occurred. North Dakota

proposes to revise this provision to

require that the update, correction, or

indication be made when the

application is ‘‘deemed ready for

approval’’ but before the permit is

issued. Similarly, NDAC 69–05.2–06–

02(6) currently requires that after a

permit application is approved (but

before the permit is issued), the

applicant shall update or correct the

compliance information (violations list)

in the application, or indicate that no

change has occurred. North Dakota

proposes to revise this provision to

require that the update, correction, or

indication be made when the permit

application is ‘‘deemed ready for

approval’’ but before the permit is

issued. Finally, NDAC 69–05.2.–10–

03(5) currently requires North Dakota,
Federal Register / Vol. 60, No. 71 / Thursday, April 13, 1995 / Rules and Regulations 18747

after a permit application is approved

(but before the permit is issued) to

reconsider its approval decision based

on the updates or corrections resulting

from the provisions mentioned above.

North Dakota proposes to revise this

provision to require that after an

application is ‘‘deemed ready for

approval’’ (but before the permit is

issued), the regulatory authority make

its decision to approve or disapprove

the application, based on the updated or

corrected information.

The Federal regulations at 30 CFR

778.13(i) require that after a permit

application is approved (but before the

permit is issued), the applicant shall

update or correct the ownership and

control (identification of interests)

information in the permit, or indicate

that no change has occurred. Similarly,

30 CFR 778.14(d) requires that after an

application has been approved (but

before the permit is issued), the

applicant shall update or correct the

violation information in the application,

or indicate that no change has occurred.

Finally, 30 CFR 773.15(e) requires the

regulatory authority, after an application

is approved (but before the permit is

issued) to reconsider its approval

decision, based on the corrected or

updated application information

submitted under the provisions

mentioned above.

In all three cases, North Dakota’s

proposal would require the submission

or review of the updated or corrected

information when the application is

‘‘deemed ready for approval,’’ while the

Federal regulations require that the

corrected or updated information be

submitted or reviewed after the

application is approved but before the

permit is issued. OSM interprets the

proposed language ‘‘deemed ready for

approval’’ to mean that all technical and

legal review of the permit application

has been completed, all written findings

have been completed, and the regulatory

authority has determined that all criteria

for the approval of the application have

been met.

The intent of the Federal regulations

cited above was expressed in the

preamble to those rules (54 FR 8962;

March 2, 1989):

Experience has shown that the time that

elapses between the submission of an

application and the issuance of the permit

typically is several months at a minimum.

Information submitted with the application

may become dated by the time of permit

issuance, thus making it impossible for the

regulatory authority to make an accurate

compliance review under [30 CFR]

773.15(b)(1).

This rule adds * * * [a requirement] that

before a permit is issued the regulatory

authority reconsider its initial § 773.15(b)(1)

compliance review in light of any new

information submitted pursuant to

§§ 778.13(i) and 778.14(d) * * * The final

compliance review based on this updated

information will [e]nsure that the regulatory

authority makes an accurate permitting

decision under § 773.15(b)(1).

OSM notes that under North Dakota’s

proposals, the corrected or updated

information would also be required at

the very end of the application review

period, and would be reviewed by the

regulatory authority at that time. The

regulatory authority’s decision on

permit issuance would be based on the

updated or corrected information. Thus

the Director finds that North Dakota’s

proposals at NDAC 69–05.2–06–01(2),

69–05.2–06–02(6), and 69–05.2–10–

03(5) are no less effective in meeting

SMCRA’s requirements than the Federal

regulations at 30 CFR 773.15(e),

778.13(i), and 778.14(d), and is

approving those proposals.

5. NDAC 69–05.2–15–02(2)(a),

Performance Standards (Suitable Plant

Growth Material)

North Dakota proposes to delete the

existing requirement that the regulatory

authority must approve the topsoil

removal for an area before subsoil

removal begins or before any other

disturbances occur in that area.

The Federal regulations at 30 CFR

816.22 do not require that the regulatory

authority approve the removal of topsoil

prior to further operations. Because the

Federal regulations do not require

regulatory authority approval of topsoil

removal prior to further disturbance, the

Director finds that North Dakota’s

proposed deletion of this requirement is

not inconsistent with the Federal

regulations, and is approving the

proposal.

6. NDAC 69–05.2–16–09(7),

Performance Standards for

Sedimentation Ponds

North Dakota proposes to delete the

existing requirement, applicable to all

sediment ponds, that there must be no

outflow through the emergency spillway

from the ten-year, twenty-four-hour

precipitation event or lesser events. In

its place, North Dakota proposes a new

provision that would require (for

sedimentation ponds designed to

contain the runoff from a ten-year,

twenty-four-hour design event) that

there must be no spillway outflow as a

result of runoff from the design event or

lesser runoff events, unless multiple

runoff events occur before the pond can

be dewatered in accordance with

approved plans in the permit. North

Dakota adds in a note to the submittal

(see Administrative Record No. ND–V–

01, side-by-side) that the North Dakota

Department of Health requires operators

to dewater sedimentation ponds within

10 days after a precipitation event. OSM

notes that an existing provision of the

North Dakota program, NDAC 69–05.2–

16–09(6), states that the design,

construction, and maintenance of a

sediment pond or other sediment

control measures does not relieve the

operator from compliance with

applicable effluent limitations.

The Federal regulations governing

sediment ponds at 30 CFR 816.46 do not

prohibit outflow from the emergency

spillway in connection with any

specified design event. Therefore, North

Dakota’s proposed deletion of its

existing requirement is not inconsistent

with those Federal regulations.

Regarding North Dakota’s proposed

new provision, the Federal regulations

at 30 CFR 816.46(c)(iii)(C) require that

sediment ponds be designed,

constructed, and maintained to, among

other things, contain or treat the 10-

year, 24-hour precipitation event (lesser

events can be approved by the

regulatory authority in some specified

circumstances). However, there is an

implicit exception to the ‘‘containment’’

requirement, for those ponds designed

to contain rather than treat the design

event, at § 816.46(c)(1)(iii)(D). This

regulation requires the provision of a

nonclogging dewatering device to

maintain the required detention time. In

the preamble to this requirement (48 FR

44032, 44044; September 26, 1983),

OSM noted that:

If water accumulates in the pond and is not

allowed to exit, the water level will rise and

may not recede sufficiently to assure

adequate detention time in the event of

increased inflow to the pond.

Hence, the Federal rules anticipate that

while a pond may be designed to

‘‘contain’’ the design event, the pond

may not be able to contain runoff from

a subsequent design event that occurs

soon after an initial design event, unless

some of the stored water is removed.

But under § 816.46(c)(1)(iii)(C), that

runoff must still be treated.

North Dakota’s proposal in essence

defines the performance standard of

‘‘containment’’: if a sediment pond is

designed to ‘‘contain,’’ then there must

be no spillway discharge from that

design event. But it also explicitly

recognizes what the Federal regulations

only implicitly recognize: the

sedimentation pond may not be able to

contain subsequent design event that

occurs before sufficient time elapses for

dewatering the sedimentation pond.

However, by requiring that effluent
18748 Federal Register / Vol. 60, No. 71 / Thursday, April 13, 1995 / Rules and Regulations

standards must be met regardless of

pond design or maintenance (subsection

(6)), North Dakota requires that any

resulting discharges be treated.

Based on the above discussion, the

Director finds North Dakota’s proposed

replacement of the existing provision

with the new provisions to be no less

effective than the Federal regulations at

30 CRR 816.46(c)(1)iii)(C) in meeting

SMCRA’s requirements, and is

approving the proposal.

7. NDAC 69–05.2–16–09(20), Inspection

Frequency for Sedimention ponds.

North Dakota proposes to revise this

provision to require that impoundments

not meeting the criteria of 30 CFR Part

77.216 be inspected quarterly. The

provision, as revised, would be

substantively the same as the Federal

regulation requirement at 30 CFR

816.49(a)(11) as it existed prior to

November 21, 1994.

Effective November 21, 1994, OSM’s

requirement was redesignated as 30 CFR

816.49(a)(12). It was also revised to

require that impoundments that meet

the Soil Conservation Service (SCS)

Class B or C criteria for dams in TR–60

(hereinafter, ‘‘SCS criteria’’), as well as

impoundments that meet the criteria of

30 CFR Part 77.216 (hereinafter, ‘‘MSHA

criteria’’), must be examined in

accordance with § 77.216–3 (see 59 FR

53022; October 20, 1994). Under the

revised Federal regulation, only

impoundments that meet neither the

MSHA criteria nor the SCS criteria may

be inspected quarterly.

North Dakota’s proposed rule would

allow sedimentation ponds that do not

meet the MSHA criteria, but do meet the

SCS criteria, to be inspected quarterly.

This would be less effective in meeting

SMCRA’s requirements than the new

Federal regulation at 30 CFR

816.49(a)(12), under which those same

sedimentation ponds would have to be

examined in accordance with 30 CFR

77.216–3 (in most cases, weekly).

However, OSM’s rulemaking noted,

under the section entitled ‘‘Effect on

State Programs,’’ that State programs

will not be required to meet the

requirements of the new regulations

until the Director reviews the State

programs and informs the States of any

deficiencies in accordance with 30 CFR

732.17 (see 59 FR 53022, 53026). North

Dakota has to yet been informed by the

Director that it must revise its program

to conform with the new Federal

regulation at 30 CFR 816.49(a)(12);

hence, OSM is not at this time requiring

North Dakota to revise its proposed rule

to require that the new category of

impoundments (those that meet the SCS

criteria) be inspected in accordance

with § 77.216–3.

North Dakota’s proposal would

require sedimentation ponds that meet

neither the MSHA criteria nor the SCS

criteria to be inspected quarterly. The

Federal regulation at 30 CFR

816.49(a)(12) also requires those same

impoundments to be inspected

quarterly. Therefore the Director finds

that North Dakota’s proposal, insofar as

it addresses that category of

sedimentation ponds, is no less effective

than the Federal regulation, and is

approving the proposal insofar as it

addresses that category (sedimentation

ponds that meet neither the MSHA

criteria nor the SCS criteria). The

Director is not approving the proposal

insofar as it allows sedimentation ponds

that meet the SCS criteria, to be

inspected quarterly.

The Director notes that this partial

approval satisfies a required program

amendment codified at 30 CFR

934.16(u) that was imposed on the

North Dakota program in a rulemaking

action on January 9, 1992 (57 FR 807,

827). That action required North Dakota

to amend its program to require

quarterly inspections of certain

impoundments, to be no less effective

than then-existing 30 CFR 816.49(a)(11).

As noted above, North Dakota’s

proposal, insofar as approved, fulfills

that requirement, and the Director is

herewith removing it. OSM notes that

the forthcoming notification from the

Director in accordance with 30 CFR

732.17 will require North Dakota to

amend its program to address those

sedimentation ponds that meet the SCS

criteria.

8. NDAC 69–05.2–21–01(2),

Performance Standards for

Contemporaneous Reclamation, Time

and Distance Requirements

North Dakota proposes to revise this

provision to allow the regulatory

authority to grant additional distance (in

addition to four spoil ridges behind the

pit being worked) for completion of

rough backfilling and grading if the

permittee can demonstrate that such

additional distance is necessary. The

existing provision only allows the

regulatory authority, in the same

circumstances, to grant additional time

(in addition to 180 days following coal

removal) for completion of rough

backfilling and grading.

OSM notes that a statutory

requirement of the North Dakota

program, at NDCC 38–14.1–24(14),

requires, among other things, that

permittees ensure that all reclamation

efforts proceed in an environmentally

sound manner and as

contemporaneously as practicable with

the surface coal mining operations.

OSM’s time and distance

requirements at 30 CFR 816.101 were

suspended on July 31, 1992 (57 FR

33874). Therefore OSM must evaluate

State time and distance requirements

against the general contemporaneous

reclamation requirements of 30 CFR

816.100. This regulation requires that all

reclamation efforts (including

backfilling, grading, topsoil

replacement, and revegetation) on all

land that is disturbed by surface mining

activities shall occur as

contemporaneously as practicable with

mining operations (except when

variances are granted for concurrent

surface and underground mining

activities).

As noted above, the North Dakota

program contains a statutory general

contemporaneous reclamation

requirement substantively equivalent to

30 CFR 816.100. North Dakota’s

proposed additional distance allowance

at NDAC 69–05.2–21–01(2) provides

additional specificity to one aspect of

the general statutory requirement at

NDCC 38–14.1–24(14) and is not

inconsistent with that statutory

requirement.

Based on the above discussion, the

Director finds North Dakota’s proposal

at NDAC 69–05.2–21–01(2) to be

consistent with the Federal regulations

at 30 CFR 816.100, and is approving the

proposal.

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 (Administrative

Record No. ND–V–06), 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 North Dakota program.

The U.S. Bureau of Mines responded

on November 30, 1994, that it had no

comment (Administrative Record No.

ND–V–04). The State Director of the

U.S. Department of Agriculture (USDA)

Rural Economic and Community

Development (formerly the Farmers

Home Administration) responded on

December 2, 1994, that it had no

comment and felt the proposed
Federal Register / Vol. 60, No. 71 / Thursday, April 13, 1995 / Rules and Regulations 18749

amendment would not affect its

programs (Administrative Record No.

ND–V–05). The U.S. Army Corps of

Engineers responded on December 8,

1994, that the proposed changes were

satisfactory to it (Administrative Record

No. ND–V–07). The Agricultural

Research Service, USDA, responded on

December 13, 1994, that it had no

comments or additions to the

amendment (Administrative Record No.

ND–V–08). The Fish and Wildlife

Service responded on December 16,

1994, that it found the proposed

changes to be logical and reasonable,

and that the proposed rules were not

anticipated to have any significant

impacts on fish and wildlife resources

(Administrative Record No. ND–V–09).

3. Environmental Protection Agency

(EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii),

OSM is required to solicit the written

concurrence of EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated

under the authority of the Clean Water

Act (33 U.S.C. 1251 et seq.) or the Clean

Air Act (42 U.S.C. 7401 et seq.). None

of the revisions that North Dakota

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. ND–V–03). EPA’s Region

VIII office responded on December 21,

1994, that it had no comments and that

it did not believe there would be any

impacts to water quality standards

promulgated under the Clean Water Act

(Administrative Record No. ND–V–10).

4. State Historic Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM

solicited comments on the proposed

amendment from the SHPO and ACHP

(Administrative Record No. ND–V–03).

Neither SHPO nor ACHP responded to

OSM’s request.

V. Director’s Decision

Based on the above findings, the

Director approves, with one exception,

North Dakota’s proposed amendment as

submitted on November 10, 1994. The

Director does not approve, as discussed

in Finding No. 7, NDAC 69–05.2–16–

09(20) (insofar as it would allow

sedimentation ponds not meeting the

MSHA criteria but meeting that SCS

criteria to be inspected quarterly).

The Director approves the rules as

proposed by North Dakota 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 934, codifying decisions concerning

the North Dakota program, are being

amended to implement this decision.

This final rule is being made effective

immediately to expedite the State

program amendment process and to

encourage States to bring their programs

into conformity with the Federal

standards without undue delay.

Consistency of State and Federal

standards is required by SMCRA.

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 North

Dakota 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 North Dakota 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 (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

that is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface

mining, Underground mining.

Dated: April 7, 1995.

Charles E. Sandberg,

Acting Assistant Director, Western Support

Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations is amended as set forth

below:

PART 934—NORTH DAKOTA

1. The authority citation for Part 934

continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.
18750 Federal Register / Vol. 60, No. 71 / Thursday, April 13, 1995 / Rules and Regulations

2. Section 934.15 is amended by

revising the heading and by adding

paragraph (t) to read as follows:

§ 934.15 Approval of amendments to the

North Dakota regulatory program.

* * * * *

(t) With the exception of NDAC 69–

05.2–16–09(20) (to the extent that it

addresses sedimentation ponds that do

not meet the criteria of 30 CFR 77.216

but do meet SCS Class B or C criteria),

revisions to the following rules, as

submitted to OSM on November 10,

1994, are approved effective April 13,

1995.

North Dakota Administrative Code (NDAC)

69–05.2–04–07(3)(a), lands unsuitable for

mining; NDAC 69–05.2–05–09, permit

applications (permit monitoring plans);

NDAC 69–05.2–06–01(2), permit applications

(identification of interests); NDAC 69–05.2–

06–02(6), permit applications (compliance

information); NDAC 69–05.1–10–03(5),

criteria for permit approval; NDAC 69–05.2–

11–01(1)(d), permit revisions; NDAC 69–

05.2–11–03(5)(c), permit renewals; NDAC

69–05.2–11–06(1)(c), transfer, sale, or

assignment of permit rights; NDAC 69–05.2–

12–09(2), performance bond (period of

liability); NDAC 69–05.2–15–02(2a),

performance standards (suitable plant growth

material); NDAC 69–05.2–16–09(7) and (20),

performance standards (sediment ponds);

NDAC 69–05.2–21–01(2) performance

standards (backfilling and grading, timing

requirements); and NDAC 69–05.2–28–03(6),

inspection and enforcement (cessation

orders).

§ 934.16 [Amended]

3. Section 934.16 is amended by

removing and reserving paragraph (u).

[FR Doc. 95–9176 Filed 4–12–95; 8:45 am]

BILLING CODE 4310–05–M

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA37–1–6370a; FRL–5188–2]

Approval and Promulgation of Air

Quality Implementation Plans;

Pennsylvania; Withdrawal of Final Rule

Pertaining to the Promulgation of SO2:

Conewango Township, Warren County

Implementation Plan

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Withdrawal of direct final rule.

SUMMARY: On February 15, 1995, EPA

published a final rule approving a

revision to the State implementation

plan for the Commonwealth of

Pennsylvania. The revision provides for,

and demonstrates, the attainment of the

national ambient air quality standards

(NAAQS) for sulfur oxides in the

Conewango Township, Warren County

nonattainment area. This action was

published without prior proposal

because EPA anticipated no adverse

comment. Because EPA received

adverse comments on this action, EPA

is withdrawing the February 15, 1995

final rulemaking action pertaining to the

State implementation plan for

Pennsylvania.

EFFECTIVE DATE: April 13, 1995.

FOR FURTHER INFORMATION CONTACT:

David J. Campbell, Air Programs

(3AT22), U.S. Environmental Protection

Agency, Region III, 841 Chestnut

Building, Philadelphia, Pennsylvania

19107, phone: 215 597–9781.

SUPPLEMENTARY INFORMATION: On

February 15, 1995, EPA published a

final rule to approve a revision to the

Commonwealth of Pennsylvania State

implementation plan (SIP) (60 FR 8566).

The revision provides for, and

demonstrates, the attainment of the

national ambient air quality standards

(NAAQS) for sulfur oxides in the

Conewango Township, Warren County

nonattainment area. The

implementation plan was submitted by

Pennsylvania to satisfy the requirements

of the Clean Air Act (CAA) pertaining to

nonattainment areas. EPA approved this

direct final rulemaking without prior

proposal because the Agency viewed it

as noncontroversial and anticipated no

adverse comments. The final rule was

published in the Federal Register with

a provision for a 30-day comment

period. At the same time, EPA

published a proposed rule which

announced that this final rule would

convert to a proposed rule in the event

that adverse comments were submitted

to EPA within 30 days of publication of

the rule in the Federal Register (60 FR

8612). By publishing a notice

announcing withdrawal of the final

rulemaking action, this action would be

withdrawn. EPA received adverse

comment within the prescribed

comment period.

Therefore, EPA is withdrawing the

February 15, 1995 final rulemaking

action pertaining to the Pennsylvania

SIP for sulfur oxides. All public

comments received will be addressed in

a subsequent rulemaking action based

on the proposed rule.

List of Subjects in 40 CFR Part 52

Environmental protection, Air

pollution control, Reporting and

recordkeeping requirements, Sulfur

Oxides.

Dated: March 30, 1995.

Stanley Laskowski,

Acting Regional Administrator, Region III.

[FR Doc. 95–9045 Filed 4–12–95; 8:45 am]

BILLING CODE 6560–50–P

40 CFR Part 52

[OAQPS CA38–5–6959; FRL–5184–3]

Approval and Promulgation of

Implementation Plans; California State

Implementation Plan Revision, South

Coast Air Quality Management District

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA is finalizing the approval

of revisions to the California State

Implementation Plan (SIP) proposed in

the Federal Register on June 2, 1994.

The revisions concern rules from the

South Coast Air Quality Management

District (SCAQMD). This approval

action will incorporate these rules into

the federally approved SIP. The

intended effect of approving these rules

is to regulate emissions of volatile

organic compounds (VOCs) in

accordance with the requirements of the

Clean Air Act, as amended in 1990

(CAA or the Act). The revised rules

control VOC emissions from Pleasure

Craft Coating Operations and set general

recordkeeping requirements for VOC

emissions. Thus, EPA is finalizing the

approval of these revisions into the

California SIP under provisions of the

CAA regarding EPA action on SIP

submittals, SIPs for national primary

and secondary ambient air quality

standards and plan requirements for

nonattainment areas.

EFFECTIVE DATE: This action is effective

on May 15, 1995.

ADDRESSES: Copies of the rule revisions

and EPA’s evaluation report for each

rule are available for public inspection

at EPA’s Region IX office during normal

business hours. Copies of the submitted

rule revisions are available for

inspection at the following locations:

Rulemaking Section (A–5–3), Air and

Toxics Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105.

Environmental Protection Agency, Air

Docket (6102), 401 ‘‘M’’ Street, SW.,

Washington, DC 20460.

South Coast Air Quality Management

District, 21865 East Copley Drive,

Diamond Bar, CA 91765–4182.

California Air Resources Board,

Stationary Source Division, Rule

Evaluation Section, 2020 L Street,

Sacramento, CA 95814.