[Federal Register Volume 59, Number 236 (Friday, December 9, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30347]


[[Page Unknown]]

[Federal Register: December 9, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-031; Amendment XXI]

 

North Dakota Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed program amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the North 
Dakota regulatory program (hereinafter, the ``North Dakota program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The proposed amendment consists of 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, clarify ambiguities, correct cross-references, and 
improve program efficiency.
    This document sets forth the times and locations that the North 
Dakota program and proposed amendment to that program are available for 
public inspection, the comment period during which interested persons 
may submit written comments on the proposed amendment, and procedures 
that will be followed regarding the public hearing, if one is 
requested.

DATES: Written comments must be received by 4:00 p.m., m.s.t. January 
9, 1995. If requested, a public hearing on the proposed amendment will 
be held on January 3, 1995. Requests to present oral testimony at the 
hearing must be received by 4:00 p.m., m.s.t. on December 27, 1994.

ADDRESSES: Written comments should be mailed or hand delivered to Guy 
Padgett at the address listed below.
    Copies of the North Dakota program, the proposed amendment, and all 
written comments received in response to this document will be 
available for public review at the addresses listed below during normal 
business hours, Monday through Friday, excluding holidays. Each 
requester may receive one free copy of the proposed amendment by 
contacting OSM's Casper Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining 
Reclamation and Enforcement, 100 East B Street, Room 2128, Casper, WY 
82601-1918, Telephone: (307) 261-5776
Edward J. Englerth, Director, Reclamation Division, North Dakota Public 
Service Commission, Capitol Building, Bismarck, ND 58505-0165, 
Telephone: (701) 224-4092

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-1). 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), 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, permit applications (compliance 
information); NDAC 69-05.2-10-03(5), criteria for permit approval; NDAC 
69-05.2-11-02, permit revisions; NDAC 69-05.2-11-03, permit renewals; 
NDAC 69-05.2-11-06, 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, 
removal); 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, 
inspection and enforcement (cessation orders). The specific changes and 
additions proposed by North Dakota are described below.
    1. NDAC 69-05.2-04-07(3a) [lands unsuitable for mining].
    North Dakota proposes to revise a cross-reference from NDAC 69-
05.2-04-05(3) to North Dakota Century Code (NDCC) 38-14.1-05(3).
    2. NDAC 69-05.2-05-09 [permit applications (environmental 
monitoring plans)].
    North Dakota proposes to add this new rule, which would allow the 
consolidation of monitoring plans for several permits authorizing a 
single mining operation into a single consolidated monitoring plan. 
Such consolidated monitoring plans would be subject to the approval 
procedures for permit revisions; each individual permit would have to 
be revised to describe its individual monitoring plans proposed to be 
subject to review at midterm or renewal of each individual permit; and 
a permittee would be allowed to propose modifications to the 
consolidated monitoring plan by applying for a permit revision to the 
most recently issued of the individual permits included in the plan. 
The monitoring plans proposed for consolidation would be those required 
by NDAC article 69-05.2 and NDCC Chapter 38-14.1.
    North Dakota also appends to its proposed amendment a narrative 
statement further describing how much consolidated monitoring plans 
would be administered and enforced. Among other things, the narrative 
states that the intent of the rule is directed toward ground water 
monitoring, surface water monitoring, alluvial valley floor monitoring, 
and fish and wildlife monitoring.
    3. NDAC 69-05.2-06-01(2) [permit applications (identification of 
interests)].
    North Dakota proposes to revise this rule to change the point 
during the approval process at which the applicant must update 
ownership and control information; currently, the rule requires this 
after the application is approved but before the permit is issued; the 
proposed revision would require this when the application is deemed 
ready for approval but before the permit is issued.
    4. NDAC 69-05.2-06-02(6) [permit applications (compliance 
information)].
    Similar to the rule discussed above, North Dakota's proposed 
revision would change the point at which a permit applicant must update 
compliance information, to after the application is deemed ready for 
approval but before the permit is issued.
    5. NDAC 69-05.2-10-03(5) [criteria for permit approval].
    Similar to the two rules discussed above, North Dakota's proposed 
revision would change the point at which the commission would make its 
decision on application approval or disapproval in light of updated 
ownership and control and compliance information.
    6. NDAC 69-05.2-11-02(1)(d) [permit revisions].
    North Dakota proposes to revise this rule to correct a cross-
reference from NDAC 69-05.2-11-02(5) to subsection (2).
    7. NDAC 69-05.2-11-03(5c) [permit renewals].
    North Dakota proposes to revise this rule to correct a cross-
reference from NDAC 69-05.2-11-03(3) to subsection (6).
    8. NDAC 69-05.2-11-06(1c) [transfer, sale, or assignment of permit 
rights].
    North Dakota proposes to revise this rule to correct a cross-
reference from NDAC 69-05.2-11-06(2) to subsection (4).
    9. NDAC 69-05.2-12-09(2) [performance bond (period of liability)].
    North Dakota proposes to revise this rule to correct a cross-
reference from NDAC 69-05.2-22-07(5) to subsection (4j).
    10. NDAC 69-05.2-15-02(2a) [performance standards (suitable plant 
growth material, removal)].
    North Dakota proposes to revise this rule by deleting the 
requirement that the topsoil removal operation for an area be approved 
by the commission prior to any other disturbances.
    11. NDAC 69-05.2-16-09(7) [performance standards (sediment ponds)].
    North Dakota proposes to revise this rule to require that for 
sediment ponds designed to contain the ten-year, twenty-four-hour 
storm, there must be no spillway outflow from the design event or 
lesser event, unless multiple runoff events occur before the pond can 
be dewatered in accordance with the permit.
    12. NDAC 69-05.2-16-09(20) [performance standards (sediment 
ponds)].
    North Dakota proposes to revise this rule to require that 
impoundments not meeting the criteria of subsection (17) must be 
examined at least quarterly.
    13. NDAC 69-05.2-21-01(2) [performance standards (backfilling and 
grading, timing requirements)].
    North Dakota proposes to revise this rule to allow the commission 
to approve additional time, as well as additional distance, for rough 
backfilling and grading.
    14. NDAC 69-05.2-28-03(6) [inspection and enforcement (cessation 
orders)].
    North Dakota proposes to revise this rule by deleting reclamation 
operations from those operations that, conducted without a valid 
permit, under some circumstances constitute significant imminent 
environmental harm.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the North Dakota program.

1. Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Casper Field Office will not 
necessarily be considered in the final rulemaking or included in the 
administrative record.

2. Public Hearing

    Persons wishing to testify at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
m.s.t. on December 27, 1994. The location and time of the hearing will 
be arranged with those persons requesting the hearing. If no one 
requests an opportunity to testify at the public hearing, the hearing 
will not be held.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT. Filing of a written statement at the time 
of the hearing is requested as it will greatly assist the transcriber. 
Submission of written statements in advance of the hearing will allow 
OSM officials to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to testify have been heard. Persons in the audience 
who have not been scheduled to testify, and who wish to do so, will be 
heard following those who have been scheduled. The hearing will end 
after all persons scheduled to testify and persons present in the 
audience who wish to testify have been heard.

3. Public Meeting

    If only one person requests an opportunity to testify at a hearing, 
a public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notices of meetings will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the administrative record.

IV. 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 12550) and the Federal regulations at 30 CFR 
730.11, 731.15, 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: December 1, 1994.
 Charles E. Sandberg,
Acting Assistant Director, Western Support Center.
[FR Doc. 94-30347 Filed 12-8-94; 8:45 am]
BILLING CODE 4310-05-M