[Federal Register Volume 60, Number 71 (Thursday, April 13, 1995)]
[Rules and Regulations]
[Pages 18744-18750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-9176]



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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.

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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 cross-references, 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 

[[Page 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 

[[Page 18746]]
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, 

[[Page 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 
Sec. 773.15(b)(1) compliance review in light of any new information 
submitted pursuant to Secs. 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 Sec. 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 Sec. 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 
Sec. 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 

[[Page 18748]]
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 Sec. 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 Sec. 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 

[[Page 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.


[[Page 18750]]

    2. Section 934.15 is amended by revising the heading and by adding 
paragraph (t) to read as follows:


Sec. 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).


Sec. 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