[Federal Register Volume 59, Number 50 (Tuesday, March 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-5974]


[[Page Unknown]]

[Federal Register: March 15, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

 

North Dakota Permanent 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 a proposed amendment to the North Dakota 
permanent regulatory program (hereinafter referred to as the ``North 
Dakota program'') under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The amendment consists of changes to provisions of 
North Dakota's rules concerning permit application requirements, permit 
application approval, transportation facility plans, performance 
standards regarding impoundment stability, bald and golden eagles, and 
coal mine waste impoundments. The amendment is intended to revise the 
North Dakota program to be consistent with the corresponding Federal 
regulations.

EFFECTIVE DATE: March 15, 1994.


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 as administered by the Public Service 
Commission and Industrial Commission. General background information on 
the North Dakota program, including the Secretary's findings, the 
disposition of comments, and conditions of approval of the North Dakota 
program can be found in the December 15, 1980 Federal Register (45 FR 
82214). Subsequent actions concerning North Dakota's program and 
program amendments can be found at 30 CFR 934.15 and 934.16.

II. Proposed Amendment

    By letter dated April 21, 1993 (Administrative Record No. ND-P-01), 
North Dakota submitted a proposed amendment (``Amendment XVII'') to its 
permanent program pursuant to SMCRA. North Dakota proposed this 
amendment: (1) In response to program amendments required at 30 CFR 
Part 934.16 (m), (o), (p), (q), (r), (s), (t), & (v), codified in the 
January 9, 1992, Federal Register (57 FR 827); (2) to provide minor 
editorial revisions, and (3) to propose a State initiative to delete a 
requirement that the Commission approve subsoil respreading prior to 
the redistribution of topsoil by the operator.

    OSM published a proposed rule in the May 19, 1993, Federal Register 
(58 FR 29153) announcing receipt of the amendment and inviting public 
comment on its adequacy (Administrative Record No. ND-P-7). The public 
comment period ended June 18, 1993. No substantive comments were 
received. The public hearing, scheduled for June 14, 1993, was not held 
because no one requested an opportunity to testify.

    During its review of the amendment, OSM identified concerns 
relating to the proposed provisions of the North Dakota Administrative 
Code (NDAC) 69-05.2-10-03(1) regarding permit denial for unpaid civil 
penalties for certain violations. OSM notified North Dakota of the 
concerns by letter dated October 6, 1993 (Administrative Record No. ND-
P-10). North Dakota responded in a letter dated November 23, 1993, by 
submitting revisions to its proposed program amendment at NDAC 69-05.2-
10-03(1)(a) (Administrative Record No. ND-P-11) that would require that 
the Commission not issue a permit if there are delinquent civil 
penalties under the North Dakota Century Code (NDCC) sections 38-14.1-
32 and 38-12.1-08, SMCRA, or any law or rule in any state enacted under 
federal law or regulation pertaining to air or water environmental 
protection, incurred in connection with any surface coal mining and 
reclamation operation. OSM then reopened the public comment period in 
the December 8, 1993, Federal Register (58 FR 64528); Administrative 
Record No. ND-P-12). The public comment period closed on December 23, 
1993.


III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed North Dakota program amendment as submitted on April 21, 1993, 
and revised on November 23, 1993.

1. Provisions Not Discussed

    North Dakota proposes a few non-substantive editorial revisions to 
certain of its rules. Because these proposed revisions to its 
previously approved rules are non-substantive in nature, the Director 
finds that these proposed revisions are not inconsistent with or less 
effective than the Federal regulations, and is approving the proposed 
non-substantive editorial revisions.

2. Permit Applications: List of Violation Notices

    At NDAC 69-05.2-06-02(3), North Dakota proposes to revise the 
requirement that each permit application contain a ``violation list'' 
as required by NDCC 38-14.1-14(1)(g) (for a discussion of the 
referenced statutory provision, see 57 FR 807, 811 (January 9, 1992)). 
Under the proposed revision to NDAC 69-05.2-06-02(3), the phrase 
``violation list'' will be replaced by the phrase ``list of all 
violation notices.''
    In a previous rulemaking action concerning the North Dakota program 
(57 FR 807, 812, January 9, 1992), OSM had noted the term ``violation 
notice'' is broader than and encompasses the term ``notice of 
violation'' (NOV). For instance, the term ``violation notice,'' as 
defined in the Federal and the North Dakota program, includes cessation 
orders, notices of noncompliance, and other citations, regardless of 
terminology, in addition to NOV's (see citation above). OSM thus found 
that the existing language at NDAC 69-05.2-06-02(3), by referencing the 
requirement of NDCC 38-14.1-14(1)(g) for a list of ``notices of 
violation,'' was not as inclusive as the Federal regulation language at 
30 CFR 778.14(c), which requires a ``list of all violation notices.'' 
North Dakota now proposes to revise the existing phrase so that it is 
substantively the same as the corresponding phrase in the Federal 
requirement; i.e., the proposed revision would interpret the statutory 
provision to encompass the broader term ``violation notice,'' just as 
the Federal regulation interprets SMCRA. The Director therefore finds 
that the proposed phrase ``list of all violation notices'' is no less 
effective than the Federal regulation requirement, and is approving the 
proposed revision. For a discussion of the remainder of this North 
Dakota provision, the reader is directed to the earlier OSM rulemaking 
action (57 FR 807, 811; January 9, 1992; Finding No. 6).
    The Director notes that the approval of this proposed revision 
satisfies the required amendment at 30 CFR 934.16(m) that was placed on 
the North Dakota program in the earlier rulemaking action (57 FR 807, 
812, January 9, 1992), and is herewith removing that requirement.

3. Permit Applications: Plans for Support Facilities

    North Dakota proposes to revise NDAC 69-05.2-09-01(4) to require 
that plans for support facilities be sufficient to demonstrate 
compliance with either section 69-05.2-24-08 or section 69-05.2-24-09, 
as applicable. Section 69-05.2-24-08 contains the performance standards 
for transportation facilities other than roads, while section 69-05.2-
24-09 contains the performance standards for support facilities and 
utility installations.
    The corresponding Federal requirement at 30 CFR 780.38 requires 
that plans for support facilities be sufficient to demonstrate 
compliance with 30 CFR 816.181. This latter section contains the 
performance standards for support facilities, which, under the Federal 
provisions, includes all transportation facilities other than roads 
(see 53 FR 45190, 45197, November 8, 1988). Thus, North Dakota's 
proposal would require plans in permit applications to demonstrate 
compliance with the equivalent performance standards as those required 
by the Federal rule. The Director finds that the proposed revision to 
NDAC 69-05.2-09-01(4) is no less effective than the Federal regulation 
in meeting SMCRA's requirements and is approving the proposed change.
    The Director notes that the approval of this provision satisfies 
the required amendment at 30 CFR 934.16(o) that was placed on the North 
Dakota program in a January 9, 1992, rulemaking action (57 FR 807, 
814), and is herewith removing that requirement.

4. Permit Approval/Denial: Review of Violations

a. Proposed Subsection (1)--Applicable Laws
    North Dakota proposes to revise NDAC 69-05.2-10-03 (1) so that it 
would provide as follows:

    1. The Commission will not issue the permit if any surface coal 
mining and reclamation operation owned or controlled by either the 
applicant or by any person who owns or controls the applicant is 
currently in violation of any law or rule of this state, [SMCRA], or 
any law or rule in any state enacted under Federal law or regulation 
pertaining to air or water environmental protection, incurred in 
connection with any surface coal mining and reclamation operation, 
or if any of the following are outstanding:
    a. Delinquent civil penalties under [NDCC] sections 38-14.1-32 
and 38-12.1-08, [SMCRA], or any law or rule in any state enacted 
under federal law or regulation pertaining to air or water 
environmental protection, incurred in connection with any surface 
coal mining and reclamation operation.
* * * * *
    d. Unabated violations of federal and state laws, rules, and 
regulations pertaining to air or water environmental protection 
incurred in connection with any surface coal mining and reclamation 
operation.
* * * * *
    In this amendment, the State proposed changes to subsections (1) 
and (1)(a).
    The Federal rules at 30 CFR 773.15(b)(1) require that the 
regulatory authority deny a permit if any surface coal mining and 
reclamation operation owned or controlled by the applicant or by any 
person who owns or controls the applicant is currently in violation of 
``the Act or any other law, rule or regulation referred to in this 
paragraph,'' as indicated by any available information, including the 
list of violation notices submitted in the permit application. Among 
the specified violations are:

    Federal and State failure-to-abate cessation orders, unabated 
Federal and State imminent harm cessation orders, delinquent civil 
penalties issued pursuant to section 518 of the Act, bond 
forfeitures where violations upon which the forfeitures where based 
have not been corrected, delinquent abandoned mine reclamation fees, 
and unabated violations of Federal and State laws, rules, and 
regulations pertaining to air or water environmental protection 
incurred in connection with any surface coal mining operation * * *.

    The reference to ``the Act'' in section 510(c) of SMCRA and 30 CFR 
773.15(b)(1) includes SMCRA, its implementing regulations, and all 
State and Federal programs approved under SMCRA (see 48 FR 44344, 44389 
(September 28, 1983); 53 FR 38868, 38882-38883 (October 3, 1988); see 
also 45 FR 82214, 82223 (December 15, 1980) (conditional approval of 
North Dakota program); 57 FR 807, 816 (January 9, 1992)). Similarly, 
the reference in proposed NDAC 69-05.2-10-03, subsection (1), to 
violations of SMCRA is interpreted to mean violations of SMCRA, its 
implementing regulations, and any State or Federal program approved 
pursuant to SMCRA.
    Regarding other environmental laws and rules, the State proposal at 
NDAC 69-05.2-10-03, subsection (1), prohibits permit issuance for 
current violations of ``any law or rule in any state * * * pertaining 
to air or water environmental protection * * *'' (emphasis added). The 
Federal regulation cited above prohibits permit issuance if any surface 
coal mining and reclamation operation owned or controlled by the 
applicant or by any person who owns or controls the applicant has 
``unabated violations of Federal and State laws, rules, and regulations 
pertaining to air or water environmental protection * * *.'' Thus the 
Federal provision, unlike the State proposal, encompasses Federal as 
well as State laws, rules, and regulations. However, OSM notes that 
existing NDAC 69-05.2-10-03(1)(d), which is not proposed for revision 
and which is quoted above, prohibits the Commission from issuing a 
permit if there are outstanding ``* * * [u]nabated violations of 
Federal and State laws, rules, and regulations pertaining to air or 
water environmental protection * * *'' (emphasis added). As a result, 
even though the proposed revision at NDAC 69-05.2-10-03(1) is less 
inclusive than the Federal regulation requirement at 30 CFR 
773.15(b)(1), the North Dakota program as proposed would nevertheless 
contain the same requirements for prohibiting permit issuance for 
current violations of Federal and State laws, rules, and regulations 
pertaining to air or water environmental protection. Therefore the 
Director finds the proposed revision to NDAC 69-05.2-10-03(1) to be no 
less effective than the Federal regulation requirements, and is 
approving the proposed revision.
b. Proposed Subsection (1)(a)--Delinquent Civil Penalties
    At NDAC 69-05.2-10-03, subsection (1)(a), North Dakota proposes 
revisions that would require that the Commission deny a permit if there 
are outstanding delinquent civil penalties under NDCC sections 38-14.1-
32 and 38-12.1-08, SMCRA, or any law or rule in any State, enacted 
under Federal law or regulation, pertaining to air or water 
environmental protection, if incurred in connection with a surface coal 
mining and reclamation operation.
    The Federal rule at 30 CFR 778.15(b)(1) requires that the 
regulatory authority deny a permit if, among other circumstances, 
``civil penalties issued pursuant to section 518 of the Act'' are 
delinquent. The reference to ``the Act'' includes SMCRA, its 
implementing regulations, and all State and Federal programs approved 
under SMCRA (see 48 FR 44344, 44389 (September 28, 1983); see also 53 
FR 38868, 38882-38883 (October 3, 1988)). Accordingly, the reference in 
the State proposal at NDAC 69-05.2-03, subsection (1)(a), to delinquent 
civil penalties under SMCRA is interpreted to encompass civil penalties 
under SMCRA, its implementing regulations, and all State and Federal 
programs approved under SMCRA.
    The State proposal at NDAC 69-05.2-03, subsection (1)(a), would 
also require permit denial if civil penalties under ``any law or rule 
in any State enacted under Federal law or regulation pertaining to air 
or water environmental protection . . .'' are delinquent. In the 
preamble to the Federal rule at 30 CFR 773.15(b)(1), OSM stated:

    OSMRE intends to construe references to civil penalties in final 
Sec. 773.15(b)(1) as referring only to those civil penalties that 
arise from violations of the Act, its implementing regulations and 
approved State or Federal programs * * *. Whether failure to pay 
civil penalties arising under other laws is covered depends upon 
whether such failure constitutes an unabated violation of other law 
pertaining to air or water environmental protection.

53 FR 38868, 38882-38883 (October 3, 1988)

    North Dakota's proposal would thus require permit denial for at 
least the same delinquencies as would be required by the Federal 
regulation; and it could be interpreted to require permit denial for 
additional delinquencies beyond those required by the Federal 
regulation. In accordance with section 505(b) of SMCRA and 30 CFR 
730.11(b), the State regulatory authority has the discretion to impose 
land use and environmental controls and regulations of surface coal 
mining and reclamation operations that are more stringent than those 
imposed under SMCRA and the Federal regulations.
    Moreover, the State regulatory authority has the discretion to 
impose land use and environmental controls and regulations of surface 
coal mining and reclamation operations for which no Federal counterpart 
provision exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate 
that such State provisions shall not be construed to be inconsistent 
with the Federal program. Therefore the Director finds that North 
Dakota's proposed revision to NDAC 69-05.2-10-03(1)(a) is not 
inconsistent with the Federal program requirements and is approving the 
proposed revision.
    The Director notes that the approval of the proposed provisions at 
NDAC 69-05.2-10-03 (1) and (1)(a) (discussed in Finding Nos. 4a and 4b 
above) satisfy the requirement amendment at 30 CFR 934.16(q) that was 
placed on the North Dakota program in a January 9, 1992, rulemaking 
action (57 FR 807, 817), and is herewith removing that requirement.

5. Permit Approval/Denial: Patterns of Violations

    North Dakota proposes to revise NDAC 69-05.2-10-03, subsection (4), 
so that it would provide, in part, as follows:

    The Commission will not issue a permit if it finds the 
applicant, anyone who owns or controls the applicant, or the 
operator specified in the application, controls or has controlled 
surface mining and reclamation operations with a demonstrated 
pattern of willful violations of any law or rule of this state, 
[SMCRA], or any state or federal program approved under [SMCRA], of 
such nature and duration, and with resulting irreparable damage to 
the environment as to indicate an intent not to comply with those 
laws, rules or programs.

    The Federal regulation at 30 CFR 773.15(b)(3) requires that the 
regulatory authority deny a permit if it finds a demonstrated pattern 
of willful violations of ``the Act.'' As discussed in Finding No. 4a 
above, the reference to ``the Act'' in section 510(c) of SMCRA and 30 
CFR 773.15(b)(3) includes SMCRA, its implementing regulations, and all 
State and Federal programs approved under SMCRA.
    Similarly, the reference in proposed NDAC 69-05.2-10-03(4) to 
violations of SMCRA is interpreted to mean violations of SMCRA, its 
implementing regulations, and any State or Federal program approved 
pursuant to SMCRA. When so interpreted, the proposed language actually 
addresses violations of State and Federal programs twice, since 
proposed NDAC 69-05.2-10-03(4) refers to violations of both ``[SMCRA]'' 
and ``any State or Federal program approved under [SMCRA]''. OSM finds 
that the additional language clarifies the implicit requirement.
    In addition, North Dakota's proposal would include violations of 
North Dakota laws and rules outside its SMCRA-approved program. 
Therefore, the North Dakota proposal would encompass more violations 
than those encompassed by the Federal regulation at 30 CFR 
773.15(b)(3). In accordance with section 505(b) of SMCRA and 30 CFR 
730.11(b), the State regulatory authority has the discretion to impose 
land use and environmental controls and regulations of surface coal 
mining and reclamation operations that are more stringent than those 
imposed under SMCRA and the Federal regulations. Moreover, the State 
regulatory authority has the discretion to impose land use and 
environmental controls and regulations of surface coal mining and 
reclamation operations for which no Federal counterpart provision 
exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such 
State provisions shall not be construed to be inconsistent with the 
Federal program. Therefore the Director finds that North Dakota's 
proposed revisions at NDAC 69-05.2-10-03(4) are not inconsistent with 
the Federal program and is approving them.
    The Director notes that the approval of the proposal satisfies the 
required amendment at 30 CFR 934.16(r) that was placed on the North 
Dakota program in a January 9, 1992, rulemaking action (57 FR 807, 817-
818), and is herewith removing that requirement.
    Note regarding applicable persons in violation: NDAC 69-05.2-10-3, 
subsection (4), as it was previously proposed by North Dakota (November 
20, 1990; Administrative Record No. ND-L-01) and approved by OSM (57 FR 
807, 817, January 9, 1992) applied the requirement for permit denial 
based upon a pattern of willful violations to ``the applicant, anyone 
who owns or controls the applicant, or the operator specified in the 
application * * * .'' In this current proposal (April 21, 1993; 
Administrative Record No. ND-P-01), the clause referring to anyone who 
owns or controls the applicant has been omitted. On January 31, 1994, 
OSM contacted North Dakota by telephone to determine whether this 
language was intended to be deleted or whether its omission was an 
editorial error. North Dakota responded that the clause was not 
intended to be deleted but rather its omission from the submission was 
an editorial error, and that the clause will be restored when the 
revision is promulgated (Administrative Record No. ND-P-14). The 
Director's approval of proposed NDAC 69-05.2-10-03(4) is based on this 
understanding.

6. Permit Revisions, Approval/Denial: Violation Review

    At NDAC 69-05.2-11-02(5)(d) [approval/denial of permit revisions], 
North Dakota proposes to revise a reference to ``subsection 3 of 
section 69-05.2-10-03 [permit approval/denial, review of violations]'' 
to ``subsection 6 of section 69-05.2-10-03.'' This revision corrects 
the reference to reflect a recodification of that subsection that was 
approved by OSM in a previous rulemaking action (57 FR 807; January 9, 
1992). The Director finds that the revision references the correct 
subsection and is approving the revision.
    The Director notes that the approval of the proposal satisfies the 
required amendment at 30 CFR 934.16(s) that was placed on the North 
Dakota program in the January 9, 1992, rulemaking action (57 FR 807, 
817-818), and is herewith removing that requirement.

7. Annual Maps: Acreage Listing

    Under the North Dakota program at NDAC 69-05.2-13-02, a permittee 
is required to submit two copies of an annual map to the Commission for 
all permit areas by each February fifteenth. North Dakota proposes to 
revise subsection (4)(e) of the provision to require that the required 
annual map must clearly show, among other things, a tabular listing of 
acreage within the permit area where bond has been totally released. 
There are no Federal requirements regarding the submission of annual 
maps of permit areas. In accordance with section 505(b) and 30 CFR 
730.11(b), the State regulatory authority has the discretion to impose 
land use and environmental controls and regulations of surface coal 
mining and reclamation operations that are more stringent than those 
imposed under SMCRA and the Federal regulations. Moreover, the State 
regulatory authority has the discretion to impose land use and 
environmental controls and regulations of surface coal mining and 
reclamation operations for which no Federal counterpart provision 
exists. Section 505(b) of SMCRA and 30 CFR 730.11 dictate that such 
State provisions shall not be construed to be inconsistent with the 
Federal program. Therefore, the Director finds that the State proposal 
at NDAC 69-05.2-13-02(4)(e) is not inconsistent with the Federal 
requirements and is approving the proposal.

8. Protection of Bald and Golden Eagles

    North Dakota proposes to revise NDAC 69-05.2-13-08(3) by adding a 
new sentence requiring that no surface mining activity may be conducted 
in a manner that would result in the unlawful taking of any bald or 
golden eagle or nests or eggs thereof. North Dakota further proposes to 
add a new subsection (4) to NDAC 69-05.2-13-08 to add a specific 
requirement that nothing in NDAC Article 69-05.2 authorizes the taking 
of endangered or threatened species, or a bald or golden eagle, its 
nest, or any of its eggs, in violation of the Endangered Species Act or 
the Bald Eagle Protection Act. The proposed new sentence in subsection 
(3) is substantively the same as the corresponding Federal requirement 
at 30 CFR 816.97(c)(first sentence); and the proposed new subsection 
(4) is substantively the same as the corresponding Federal requirement 
at 30 CFR 816.97(d). Therefore the Director finds that the proposed 
revisions at NDAC 69-05.2-13-08(3) and (4) are no less effective than 
the Federal regulations in meeting SMCRA's requirements and is 
approving the proposed revisions.
    The Director notes that the approval of the proposal satisfies the 
required amendment at 30 CFR 934.16(t) that was placed on the North 
Dakota program in the January 9, 1992, rulemaking action (57 FR 807, 
819), and is herewith removing that requirement.

9. Subsoil and Topsoil Redistribution

    At NDAC 69-05.2-15-04(3), North Dakota proposes to delete the 
requirement that the Commission approve the respreading of subsoil 
prior to topsoil redistribution.
    The Federal program does not impose any requirement for regulatory 
authority approval of subsoil respreading prior to topsoil 
redistribution. Additionally, North Dakota's proposal would not 
conflict with any other program requirement, and the operator would 
still be required to replace the full required subsoil and topsoil 
depths in order to meet the bond release requirements of NDCC 38-14.1-
17(7)(b) and NDAC 69-05.2-12-12(6). Therefore, the Director finds that 
the proposal is not inconsistent with any Federal requirements and will 
assist in the administration of the North Dakota program, and is 
approving the proposal.

10. Sedimentation Ponds: Design Standards and Stability Requirements

    North Dakota proposes to revise certain sediment pond performance 
standards at NDAC 69-05.2-16-09(13) and (16). Subsection (13) as 
proposed would require that the upstream slop of a settled embankment 
not be steeper than 3h:1v and that the downstream slope not be steeper 
than 2h:1v. One proposed revision to subsection (16) would require that 
embankment fill adjacent to structures, pipe conduits, and drainfill or 
antiseep collars be compacted to the density of the surrounding fill by 
hand tamping or by using manually directed power tampers or plate 
vibrators. A second revision to subsection (16) would allow the 
operator, in lieu of the specific design requirements of subsections 
(11) through (16), to demonstrate that the structure's design has a 
minimum static safety factor (SSF) of 1.3 for a normal pool with steady 
state seepage saturation conditions. OSM notes that there exist in the 
North Dakota program additional requirements for large or hazardous 
impoundments, specified in subsection (17).
    The Federal requirements for sediment ponds at 30 CFR 816.49 do not 
contain specific design standards. However, 30 CFR 816.49(a)(3)(ii) 
requires that small and nonhazardous ponds either have a minimum SSF of 
1.3 for a normal pool with steady-state seepage saturation conditions, 
or meet the requirements of 30 CFR 780.25(c)(3). This latter section 
allows, in lieu of engineering tests to demonstrate compliance with the 
minimum 1.3 SSF, engineering design standards to be established by 
regulatory authorities, through the State program approval process, 
that ensure stability comparable to a 1.3 minimum SSF.
    OSM has reviewed North Dakota's existing and proposed design 
standards at NDAC 69-05.2-16-09 subsections (11) through (16). These 
include, among other things, minimum 5% height increase to allow for 
settlement, minimum top widths (based in part on embankment height), 
maximum side slopes (as described above), foundation clearing and 
scarification, requirements for fill materials, and compaction 
requirements. Based on this review, OSM is satisfied that these design 
standards would ensure embankment stability comparable to a 1.3 SSF. 
Further, the proposed provision in NDAC 69-05.2-16-09(16) that would 
allow the use of other design parameters if a minimum 1.3 SSF is 
demonstrated is substantively the same as the provision in the Federal 
requirement at 30 CFR 816.49(a)(3)(ii) that allows impoundments to have 
a minimum 1.3 SSF as an alternative to meeting specific design 
standards approved in accordance with 30 CFR 780.25(c)(3). Therefore 
the Director finds that North Dakota's proposed revisions to NDAC 69-
05.2-16-09(13) and (16) are no less effective than the Federal program 
requirements and is approving the proposed revisions.
    The Director notes that the approval of the proposal satisfies that 
required amendment at 30 CFR 934.16(p) that was placed on the North 
Dakota program in the January 9, 1992, rulemaking action (57 FR 807, 
815), and is herewith removing that requirement.

11. Coal Processing Waste Impoundments: Dewatering

    North Dakota proposes to revise NDAC 69-05.2-20-03(3) to require 
that dams or embankments constructed of or impounding waste materials 
be designed so that at least ninety percent of the water stored during 
the design precipitation event can be removed within a ten-day period. 
North Dakota also proposes to add a new subsection (4) to NDAC 69-05.2-
20-03 that would require that for such dams and embankments, at least 
ninety percent of the water stored during the design precipitation 
event be removed within the ten-day period following such an event. The 
proposal is substantively identical to the Federal requirements at 30 
CFR 816.84 (e) and (f). Therefore the Director finds that North 
Dakota's proposed revisions to NDAC 69-05.2-20-03 (3) and (4) are no 
less effective than the Federal program requirements and is approving 
the proposed revisions.
    The Director notes that the approval of the proposal satisfies the 
required amendment at 30 CFR 934.16(v) that was placed in the North 
Dakota program in the January 9, 1992, rulemaking action (57 FR 807, 
821), and is herewith removing that requirement.

IV. Summary and Disposition of Comments

1. Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No public comments were 
received, and because no one requested an opportunity to testify at a 
public hearing, no hearing was held.

2. Agency Comments

    Pursuant to section 503(b) of SMCRA and implementing regulations at 
30 CFR 732.17(h)(11)(i), comments were solicited from various Federal 
agencies with an actual or potential interest in the North Dakota 
program. A summary of the comments, and the Director's responses to 
them, appear below.
    a. The State Conservationist of the Soil Conservation Service (U.S. 
Department of Agriculture) and the Bureau of Mines (U.S. Department of 
the Interior) responded that they had no comments (Administrative 
Record Nos. ND-P-8b and ND-P-8a).
    b. The Mine Safety and Health Administration (U.S. Department of 
Labor) (MSHA) responded that the proposed amendment would not affect 
MSHA's mandate and that it thus had no comments (Administrative Record 
No. ND-P-9).
    c. The U.S. Army Corps of Engineers (Corps) responded with a 
technical comment on the proposed static safety factor for small and 
nonhazardous impoundments at NDAC 69-05.2-16-09(16) (Administrative 
Record No. ND-P-13). The Corps noted that there are many methods for 
stability analysis, and that each can produce a different safety factor 
for the same design and data. The Corps stated that where no particular 
method of analysis is specified, the minimum SSF for seepage conditions 
should not be less than 1.5.
    The Federal regulations at 30 CFR 816/817.49(a)(3)(ii) specify only 
the minimum 1.3 SSF for small, non-hazardous impoundments; they do not 
specify methods of stability analysis. OSM's duty in reviewing State 
program amendments (SPA's) like the one under consideration here is 
limited to determining whether the SPA is ``in accordance with'' and 
``consistent with'' SMCRA and its implementing regulations (see 
sections 503(a)(1) and (a)(7) of SMCRA; see also 30 CFR 730.5). OSM 
does not have the authority to require standards in excess of the 
Federal regulations that implement SMCRA, and therefore cannot require 
that North Dakota adopt the Corp's recommendation.
    OSM also notes that under NDAC 69-05.2-09-09(1)(h), the plan for 
each impoundment must be certified as meeting the requirements of the 
North Dakota program using current, prudent engineering practices and 
any design requirements established by the Commission. Further, under 
NDCC 38-14.1-21(3)(a), the Commission may not approve a permit unless 
the application affirmatively demonstrates, and the Commission finds in 
writing, that the application is accurate and complete and that all 
requirements of the North Dakota program, including the 1.3 minimum 
SSF, have been complied with.

3. Environmental Protection Agency (EPA) Concurrence

    Pursuant to 30 CFR 732.17 (h)(11(ii), OSM solicited the written 
concurrence of the Administrator of the EPA with respect to those 
provisions of the proposed program amendment which 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.) (Administrative Record No. ND-P-6).
    No response was received from the EPA, Washington, DC office, and 
their concurrence is not required on the proposed amendment, since it 
did not address any requirements that would impact the Clean Water or 
Clean Air Acts.

4. State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), the Director provided the proposed 
amendments to the SHPO and ACHP for comment. Neither SHPO nor ACHP 
provided any comments to OSM.

V. Director's Decision

    Based on the above findings, the Director approves North Dakota's 
proposed program amendment as submitted on April 21, 1993, and 
subsequently revised on November 23, 1993.
    The Director has determined that the previously-required program 
amendments, discussed in the Findings as follows: have been satisfied, 
and is removing those requirements: Finding No. 2, 30 CFR 934.16(m) 
[lists of violation notices]; Finding No. 3, Sec. 934.16(o) [support 
facility plans]; Finding Nos. 4a and 4b, Sec. 934.16(q) [permit 
approval/denial, review of violations]; Finding No. 5, Sec. 934.16(r) 
[permit approval/denial, patterns of violations]; Finding No. 6, 
Sec. 934.16(s) [permit revisions, violation review]; Finding No. 8, 
Sec. 934.16(t) [protection of eagles]; Finding No. 10, Sec. 934.16(p) 
[sediment pond design standards and stability]; and Finding No. 11, 
Sec. 934.16(v) [dewatering of coal processing waste impoundments].
    The Federal regulations at 30 CFR part 934, codifying decisions 
concerning the North Dakota program, are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

Compliance With Executive Order 12866

    This final rule is exempted from review by the Office of Management 
and Budget under Executive Order 12866 (Regulatory Planning and 
Review).

Compliance With 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 subsection 
(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 12550) and 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 
requirements of 30 CFR parts 730, 731, and 732 have been met.

Compliance With the 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)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Compliance With the Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
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. Hence, 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 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 8, 1994.
Raymond L. Lowrie,
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.

    2. Section 934.15 is amended by adding paragraph (q) to read as 
follows:


Sec. 934.15  Approval of regulatory program amendments.

* * * * *
    (q) The following provisions of the North Dakota Administrative 
Code, as submitted on April 21, 1993 (Amendment XVII), and revised on 
November 23, 1993, are approved effective March 15, 1994: 69-05.2-06-
02(3) (permit applications, violation information); 69-05.2-09-01(4) 
(permit applications, support facility plans); 69-05.2-10-03 (1), 
(1)(a), & (4) (permit approval/denial, violation review); 69-05.2-13-
02(4)(e) (annual maps/information); 69-05.2-13-08 (3) through (6) 
(protection of eagles and recodification); 69-05.2-15-04(3) 
(resoiling); 69-05.2-16-09 (13), (14), & (16) (sediment ponds, 
performance & design standards); and 69-05.2-20-03 (3) & (4) (coal 
processing waste impoundments, dewatering).


Sec. 934.16  [Amended]

    3. Section 934.16 is amended by removing and reserving paragraphs 
(m), (o) through (t), and (v).

[FR Doc. 94-5974 Filed 3-14-94; 8:45 am]
BILLING CODE 4310-05-M