[Federal Register Volume 60, Number 134 (Thursday, July 13, 1995)]
[Rules and Regulations]
[Pages 36044-36050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17167]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 925


Missouri Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving, with certain exceptions and additional 
requirements, a proposed amendment to the Missouri regulatory program 
(hereinafter referred to as the ``Missouri program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). Missouri proposed 
revisions to rules pertaining to definitions, topsoil redistribution, 
impoundment design, disposal of coal processing and noncoal waste, 
backfilling and grading, coal exploration, fish and wildlife plan, 
permit approval findings, notice of violations, and eligibility for 
small operators assistance. The amendment is intended to revise the 
State program to be consistent with the corresponding Federal 
regulations and SMCRA, clarify ambiguities, and improve operational 
efficiency.

EFFECTIVE DATE: July 13, 1995.

FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Telephone: (816) 374-6405.

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Program

    On November 21, 1980, the Secretary of Interior conditionally 
approved the Missouri program. General background information on the 
Missouri program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the Missouri program can 
be found in the November 21, 1980, Federal Register (45 FR 77017). 
Subsequent actions concerning Missouri's program and program amendments 
can be found at 30 CFR 925.12, 925.15, and 925.16.

II. Proposed Amendment

    By letter dated February 10, 1995 (administrative record No. MO-
612), Missouri submitted a proposed amendment to its program pursuant 
to SMCRA (30 U.S.C. 1201 et seq.). Missouri submitted the proposed 
amendment with the intent of satisfying the required program amendments 
at 30 CFR 925.16(b)(4), (p)(9), and (q)(1) through (q)(5), and at its 
own initiative to improve its program. The amendment also contains 
nonsubstantive revisions to eliminate editorial and typographical 
errors and to accomplish necessary recodification required by the 
addition or deletion of provisions. The provisions of 10 Code of State 
Regulations (CSR) that Missouri proposed to revise were: (1) 10 CSR 40-
3.030(4) to require that contamination of topsoil be prevented during 
redistribution; (2) 10 CSR 40-3.040(10)(B)5 to reference the January 
1991, U.S. Natural Resources Conservation Service (formerly the Soil 
Conservation Service) technical document, Practice Standards 378, 
concerning impoundment design; (3) 10 CSR 40-3.110(3)(A)1 to clarify 
that the requirements of this section apply to coal seams, combustible 
materials, and acid- and toxic-forming materials, to require that coal 
processing waste and noncoal waste be covered in accordance with the 
regulations for disposal of coal processing waste at 10 CSR 40-3.080, 
and to delete the existing requirement that exposed coal seams and 
combustible materials, including coal processing waste, be covered with 
a 

[[Page 36045]]
minimum of 4 feet of nontoxic- and nonacid-producing materials; (4) 10 
CSR 40-3.110(6)(B) to provide that the regulations for repair of rills 
and gullies at 10 CSR 40-3.110(6)(A) apply, on areas that have been 
previously mined, only after final grading of the area when topsoil or 
a topsoil substitute is not available; (5) 10 CSR 40-6.010(2)(H) to add 
a definition of ``Secretary;'' (6) 10 CSR 40-6.020(2)(A) and (3)(A) to 
clarify that these regulations concern exploration activities outside 
of a permit area; (7) 10 CSR 40-6.050(7) (C) and (D), and 10 CSR 40-
6.120(12) (C) and (D) to specify the information that must be included 
in a fish and wildlife plan and that, when the plan does not include 
enhancement measures, it must include an explanation of why enhancement 
is not practicable; (8) 10 CSR 40-6.070(8)(M) to require that the 
Director of the Missouri program must find, prior to permit approval 
for a proposed remining operation where the applicant intends to 
reclaim in accordance with the requirements of 10 CSR 40-4.080, that 
the site of the operation is a previously mined area; (9) at 10 CSR 40-
8.010(1)(A)72 the definition of ``previously mined area;'' (10) at 10 
CSR 40-8.010(1)(A)84 the definition of ``road;'' (11) 10 CSR 40-
8.030(7)(A) to delete the requirement that modification, termination, 
or vacating of notice of violations must be in accordance with the 
regulation at 10 CSR 40-8.040; (12) 10 CSR 40-8.040(9) to delete the 
definition of ``habitual violator;'' and (13) 10 CSR 40-8.050(2)(B) to 
change the eligibility requirement of coal production of 100,000 tons 
per year to 300,000 tons per year for a small operator assistance 
applicant.
    OSM announced receipt of the proposed amendment in the March 2, 
1995, Federal Register (41 FR 11640), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. MO-618). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on April 3, 1995.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of Missouri's rules at 10 CSR 40-
3.140(1)(A), roads and control of air pollution attendant to erosion; 
10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), permit application 
requirements for a fish and wildlife plan; and 10 CSR 40-8.050(2)(B), 
small operator assistance program. OSM notified Missouri of the 
concerns by letter dated April 10, 1995 (administrative record No. MO-
627).
    Missouri responded by telephone on May 9, 1995, that it would not 
submit revisions to the amendment and that OSM should proceed with the 
publishing of this final rule Federal Register notice (administrative 
record No. MO-629).

III. Director's Findings
    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds, with certain exceptions and additional 
requirements, that the proposed program amendment submitted by Missouri 
on February 10, 1995, is no less effective than the corresponding 
Federal regulations and no less stringent than SMCRA. Accordingly, the 
Director approves the proposed amendment.

1. Editorial Revisions to Missouri's Rules

    Missouri proposed revisions to the following previously-approved 
rules that consist of minor editorial changes or corrections of 
referenced citations due in part to recodification (corresponding 
Federal regulation provisions are listed in parentheses):

    10 CSR 40-3.100(5)2 (30 CFR 816.97(g)(3)), concerning 
distribution of plants to maximize benefit to fish and wildlife, by 
replacing a semicolon with a period at the end of a sentence;
    10 CSR 40-3.100(6) (30 CFR 816.97(h)), concerning cropland as an 
alternative postmining land use, by replacing the term ``fields'' 
with ``reclaimed lands;''
    10 CSR 40-3.100(7) (30 CFR 816.97(h)), concerning use of 
greenbelts for residential, public service, or industrial land uses, 
by deleting the ``s'' from the word ``lands;''
    10 CSR 40-3.060(1)(L)1 (30 CFR 816.71(i)(1)), concerning the 
prohibition of placing coal processing wastes in head-of-hollow or 
valley fills, by correcting the citation of the reference for the 
requirements for the disposal of coal-processing waste in excess 
spoil fills at 10 CSR 40-3.080(4);
    10 CSR 40-3.060(1)(O) (30 CFR 816.71(j)), concerning disposal of 
excess spoil, by correcting the citation of the reference to the 
requirements for permit application approval of the plan for return 
of coal processing waste to abandoned underground workings at 10 CSR 
40-6.120(17);
    10 CSR 40-3.080(8)(B) (30 CFR 816.89(b)), concerning the final 
disposal of noncoal wastes, by correcting the citation of the 
reference for revegetation requirements for surface coal mining 
operations at 10 CSR 40-3.120.
    10 CSR 40-3.110(3)3 (30 CFR 816.102(f) and 816.41(a)), 
concerning the prohibition of disposal or storage of acid-forming or 
toxic-forming material in proximity to a drainage course, by adding 
the word ``forming'' in the phrase ``acid-forming or toxic-forming 
material;''
    10 CSR 40-6.030(1)(C)(3) (30 CFR 778.13(c)(3)), concerning 
identification of interests for legal and financial permit 
application requirements, by correcting the citation of the 
reference for the permit condition that requires submittal of 
information after receipt of a cessation order at 10 CSR 40-
6.070(13)(E);
    10 CSR 40-6.030(5)(B) (30 CFR 778.17(b), concerning permit 
application requirements, by correcting the citation of the 
reference for information required for permit terms in excess of 5 
years at 10 CSR 40-6.070(12)(A);
    10 CSR 40-6.060(4)(D)(4) (30 CFR 785.17(d)(4)), concerning the 
requirement on prime farmland that the State conservationist review 
and comment on the proposed method of soil reconstruction, by 
correcting the citation of the reference for permit application 
requirements for a plan for soil reconstruction, replacement, and 
stabilization at 10 CSR 40-6.060(4)(C)(2); and
    10 CSR 40-6.070(9)(A)1, 6.070(9)(A)2.A, and 6.070(9)(A)2.B (30 
CFR 773.15(c)(6) and 701.11(d)), concerning criteria for permit 
approval or denial for existing structures, by correcting the 
citation of the reference for exemptions for existing structures at 
10 CSR 40-8.070(2)(D) (1)(A), (1)(B) and (1)(C);

The Director finds that the proposed revisions to these previously-
approved rules, which are editorial in nature, do not make these 
proposed Missouri rules less effective than the Federal regulations. 
The Director approves the revisions proposed to these rules.

2. Substantive Revisions to Missouri's Rules That Are Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

    Missouri proposed revisions to the following rules that are 
substantive in nature and contain language that is substantively 
identical to the requirements of the corresponding Federal regulation 
provisions (listed in parentheses).

    10 CSR 40-6.010(2)(H) (30 CFR 700.5), concerning the definition 
of ``Secretary;''
    10 CSR 40-6.070(8)(M) (30 CFR 773.15(c)(12)), concerning 
criteria for permit approval or denial for remining operations; and
    10 CSR 40-8.010(1)(A)84 (30 CFR 701.5), concerning the 
definition of ``road''

Because these proposed Missouri rules are substantively identical to 
the corresponding provisions of the Federal regulations, the Director 
finds that they are no less effective than the Federal regulations. The 
Director approves these proposed rules.

3. Proposed Revisions to Missouri's Rules Made in Response to Required 
Amendments

a. 10 CSR 40-3.110(3)1, Performance Standards for Backfilling and 
Grading of Acid- and Toxic-Forming Materials
    OSM required at 30 CFR 925.16(q)(1) that Missouri amend 10 CSR 40-
3.110(3)1 by (1) requiring that exposed coal seams and combustible 
materials be 

[[Page 36046]]
adequately covered or treated as required at 30 CFR 816.102(f) and (2) 
explaining why these two groups of materials, i.e., acid- and toxic-
forming materials and exposed coal seams and combustible materials, are 
treated differently and clarify what is required to be demonstrated if 
less than 4 feet of cover is proposed (Finding No. 7, 58 FR 64142, 
64144, December 6, 1993).
    Missouri proposed to revise 10 CSR 40-3.110(3)1 to require that 
exposed coal seams, acid-forming and toxic-forming materials, and 
combustible materials exposed, used, or produced during mining shall be 
adequately covered with nontoxic and noncombustible material or treated 
to control the impact on surface and ground water in accordance with 10 
CSR 40-3.040, to prevent sustained combustion, and to minimize adverse 
effects on plant growth and the approved postmining land use. Missouri 
proposed to delete from 10 CSR 40-3.110(3)1 the allowance for an 
exception to a 4 foot cover requirement for exposed coal seams and 
materials, and combustible materials. Missouri also proposed to add at 
10 CSR 40-3.110(3)1 a reference to its rules for covering coal 
processing waste and noncoal waste at 10 CSR 40-3.080.
    Proposed 10 CSR 40-3.110(3)1 is substantively identical to the 
Federal regulation at 30 CFR 816.102(f) with the exception of the 
reference to Missouri's rules for covering coal processing waste and 
noncoal waste at 10 CSR 40-3.080. This reference does not affect the 
requirements in proposed 10 CSR 40-3.110(3)1 concerning exposed coal 
seams, acid-forming and toxic forming materials, and combustible 
materials.
    The Director finds that proposed 10 CSR 40-3.110(3)1 is not less 
effective than the Federal regulation at 30 CFR 816.102(f), and 
satisfies the program amendment requirement at 30 CFR 925.16(q)(1). The 
Director approves proposed 10 CSR 40-3.110(3)1 and removes the required 
amendment at 30 CFR 925.16(q)(1).
b. 10 CSR 40-3.110(6)(B), Stabilization of Rills and Gullies After 
Backfilling and Grading
    OSM required at 30 CFR 925.16(q)(2) that Missouri revise 10 CSR 40-
3.110(6)(B) to require for previously mined areas, that an operator 
identify the best suited material available for topsoil replacement and 
segregate that material for later use as a topsoil substitute (Finding 
No. 9, 58 FR 64142, 64144, December 6, 1993).
    Missouri proposed to revise 10 CSR 40-3.110(6)(B) to require, on 
areas that have been previously mined where topsoil or a topsoil 
substitute are not available, stabilization of rills and gullies 
pursuant to subsection (6)(A) after final grading. Missouri's rule at 
10 CSR 40-3.110(6)(A) requires stabilization of rills and gullies 
deeper than 9 inches on areas that have been regraded and topsoiled. 
Although Missouri proposed to delete at 10 CSR 40-3.110(6)(B) the 
provision that the area need not be topsoiled, Missouri's revised 10 
CSR 40-3.110(6)(B) continues to require topsoil or a topsoil substitute 
if available on reclaimed areas that have been previously mined 
(emphasis added).
    The counterpart Federal regulations at 30 CFR 816.106, concerning 
previously mined areas, require that these areas comply with the 
requirements of 30 CFR 816.102 through 816.107. The Federal regulations 
at 30 CFR 816.102(d)(2) requires topsoil removal, storage, and 
redistribution in accordance with 30 CFR 816.22. The Federal 
regulations at 30 CFR 816.22 require, among other things, the removal 
of the topsoil, material approved as a topsoil substitute, or the 
topsoil and the unconsolidated materials immediately below the topsoil. 
There is no Federal provision for an exception to the identification of 
topsoil or topsoil substitutes on areas that have been previously 
mined.
    Therefore, the Director finds that proposed 10 CSR 40-3.110(6)(B) 
remains less effective than the Federal regulations at 30 CFR 816.102 
and 816.22 and does not satisfy the program amendment requirement at 30 
CFR 925.16(q)(2). The Director approves the revisions proposed at 10 
CSR 40-3.110(6)(B), and revises the required amendment at 30 CFR 
925.16(q)(2) to require that Missouri further revise 10 CSR 40-
3.110(6)(B) to clearly require, for areas that have been previously 
mined, either topsoil or a topsoil substitute, in accordance with its 
rules at 10 CSR 40-3.030.
c. 10 CSR 40-3.140(1)(A), Control or Prevention of Air Pollution 
Attendant to Erosion at Surface Mining Operations
    OSM required at 30 CFR 925.16(p)(9) that Missouri amend its program 
at 10 CSR 3.140(1)(A) by requiring that all exposed surfaces be 
stabilized in accordance with current prudent engineering practices 
(Finding No. 32, 57 FR 44660, 44669, September 29, 1992).
    Missouri proposed to revise 10 CSR 40-3.140(1)(A), concerning the 
control or prevention of air pollution attendant to erosion at surface 
mining operations, to remove the word ``road'' from the phrase ``other 
exposed road surfaces.'' However, Missouri proposed to remove the word 
``road'' only from the list of possible measures by which to control or 
prevent air pollution. The word ``road'' still exists in the portion of 
proposed 10 CSR 40-3.140(1)(A) that requires control or prevention of 
air pollution attendant to erosion, including dust occurring ``on other 
exposed road surfaces'' (emphasis added).
    The Federal regulations at 30 CFR 816.150(b)(1) require that each 
road shall be located, designed, constructed, reconstructed, used, 
maintained, and reclaimed so as to control or prevent erosion, 
siltation, and the air pollution attendant to erosion, including road 
dust as well as dust occurring on other exposed surfaces, by measures 
such as vegetating, watering, using chemical or other dust 
suppressants, or otherwise stabilizing all exposed surfaces in 
accordance with current, prudent engineering practices. To fully 
satisfy the required amendment, Missouri must further revise proposed 
10 CSR 40-3.140(1)(A) to delete the first occurrence of the word 
``road'' in the phrase ``other exposed road surfaces.''
    Therefore, the Director finds that (1) proposed 10 CSR 40-
3.140(1)(A) remains less effective than the Federal regulations at 30 
CFR 816.150(b)(1) and (2) Missouri has not satisfied the program 
amendment requirement at 30 CFR 925.16(p)(9). The Director approves the 
revisions proposed at 10 CSR 40-3.140(1)(A), but does not remove the 
required amendment at 30 CFR 925.16(p)(9).
d. 10 CSR 40-6.050(7)(C), 40-6.050(7)(D), 40-6.120(12)(C), and 40-
6.120(12)(D), Surface and Underground Coal Mining and Reclamation 
Operations Permit Application Requirements for Protection of Fish and 
Wildlife
    OSM required at 30 CFR 925.16(b)(4) that Missouri amend its program 
to indicate that the informational requirements of the rules, 
concerning a description of protective measures that will be used 
during the active mining phase of operations, must be included in the 
fish and wildlife plan; require a description of the enhancement 
measures that will be used during the reclamation and postmining phase 
of operation to develop aquatic and terrestrial habitat; and require 
the fish and wildlife protection and enhancement plan requirements also 
apply to species or habitats protected by State laws similar to the 
Endangered Species Act of 1973 and to threatened or endangered species 
or plants or animals proposed as well as listed 

[[Page 36047]]
under the Endangered Species Act of 1973 or similar State statutes 
(Finding No. 5, 55 FR 22907, 22910, June 5, 1990).
    Missouri has proposed revisions at 10 CSR 40-6.050(7)(C), 40-
6.050(7)(D), 40-6.120(12)(C), and 40-6.120(12)(D), that, as discussed 
below, satisfy the program amendment requirement at 30 CFR 
925.16(b)(4). Therefore, the Director removes the required amendment at 
30 CFR 925.16(b)(4).
    i. 10 CSR 40-6.050(7)(C) and 40-6.120(12)(C), Informational 
requirements for a fish and wildlife plan. Missouri proposed to revise 
10 CSR 40-6.050(7)(C) and 6.120(12)(C), concerning surface and 
underground coal mining and reclamation operations permit application 
requirements, to require that the statement explaining how the 
applicant will utilize impact control measures, management techniques, 
and monitoring methods to protect or enhance fish and wildlife ``must 
be included in the fish and wildlife plan.'' These proposed revisions 
of 10 CSR 40-6.050(7)(C) and 6.120(12)(C)(1) are no less effective than 
the Federal regulations at 30 CFR 780.16(b) and 784.21(b) and (2) 
satisfy the requirement at 30 CFR 925.16(b)(4) concerning the 
informational requirements that must be included in a fish and wildlife 
plan. The Director approves the revisions proposed at 10 CSR 40-
6.050(7)(C) and 6.120(12)(C).
    ii. 10 CSR 40-6.050(7)(D) and 40-6.120(12)(D), Minimum contents of 
a fish and wildlife plan. Missouri proposed addition of new rules at 10 
CSR 40-6.050(7)(D) and 40-6.120(12)(D), concerning surface and 
underground coal mining and reclamation operations permit application 
requirements, that specify the minimum contents of a fish and wildlife 
plan. With one exception, proposed 10 CSR 40-6.050(7)(D) and 
6.120(12)(D) are substantively identical to the counterpart Federal 
regulations at 30 CFR 780.16(b) and 784.21(b) and satisfy the program 
amendment requirement at 30 CFR 925.16(b)(4).
    The exception concerns Missouri's requirement, proposed at 10 CSR 
40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), that the description of how, 
to the extent possible using the best technology currently available, 
the operator will minimize disturbances and adverse impacts on fish and 
wildlife and related environmental values during surface coal mining 
and reclamation operations and how enhancement of these resources will 
be achieved where practicable ``shall be consistent with this 
section.'' The counterpart Federal regulations at 30 CFR 780.16(b)(1) 
and 784.21(b)(1) require that this description be consistent with the 
requirements of the performance standards at 30 CFR 816.97 and 817.97. 
Missouri's corresponding performance standards for the protection of 
fish, wildlife, and related environmental values are at 10 CSR 40-3.100 
and 10 CSR 40-3.250.
    Therefore, the Director finds, with the exception of proposed 10 
CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), proposed 10 CSR 40-
6.050(7)(D) and 40-6.120(12)(D) are no less effective than the Federal 
regulations at 30 CFR 780.16(b) and 784.21(b). With the exception of 
proposed 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), the Director 
approves proposed 10 CSR 40-6.050(7)(D) and 40-6.120(12)(D). The 
Director is adding a new required amendment stating that Missouri must 
revise proposed 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1) to 
require that the description in the fish and wildlife plan must be 
consistent with, respectively, its performance standards for protection 
of fish, wildlife, and related environmental values at 10 CSR 40-3.100 
and 10 CSR 40-3.250.
e. 10 CSR 40-8.010(1)(A)72, Definition of ``Previously Mined Area''
    OSM required at 30 CFR 925.16(q)(3) that Missouri amend 10 CSR 40-
8.010(1)(A) by furnishing a definition for ``previously mined area'' 
(Finding No. 17.b, 58 FR 64142, 64147, December 6, 1993).
    Missouri proposed revising 10 CSR 40-8.010(1)(A) by adding a 
definition of ``previously mined area'' at 10 CSR 40-8.010(1)(A)72 
which is substantively identical to the Federal definition of 
``previously mined area'' at 30 CFR 701.5.
    The Director finds that proposed 10 CSR 40-8.010(1)(A)72 is no less 
effective than the Federal definition of ``previously mined area'' at 
30 CFR 701.5 and satisfies the program amendment requirement at 30 CFR 
925.16(q)(3). The Director approves proposed 10 CSR 40-8.010(1)(A)72 
and removes the required amendment at 30 CFR 925.16(q)(3).
f. 10 CSR 40-8.030(7), Extension of an Abatement Period for a Notice of 
Violation (NOV)
    OSM required at 30 CFR 925.16(q)(4) that Missouri amend 10 CSR 
40.8.030(7)(A) by removing the phrase ``in accordance with 10 CSR 40-
8.040'' or by providing the proper citation to the State rule that 
addresses extension of time for abatement of NOVs (Finding No. 18, 58 
FR 64142, 64148, December 6, 1993).
    Missouri proposed to revise 10 CSR 40-8.030(7)(A), concerning the 
allowance to extend an abatement period for a notice of violation, by 
deleting the phrase `` in accordance with 10 CSR 40-8.040,'' a 
reference to its rules concerning penalty assessments.
    The Director finds that proposed 10 CSR 40-8.030(7)(A) is no less 
effective than the Federal regulations at 30 CFR 843.12(c) and 
satisfies the program amendment requirement at 30 CFR 925.16(q)(4). The 
Director approves proposed 10 CSR 40-8.030(7)(A) and removes the 
required amendment at 30 CFR 925.16(q)(4).
g. 10 CSR 40-8.040, Penalty Assessments
    OSM required at 30 CFR 925.16(q)(5) that Missouri amend 10 CSR 40-
8.040 by removing its rules concerning habitual violators at 10 CSR 40-
8.040(9) (Finding No. 20, 58 FR 64142, 64148, December 6, 1993).
    Missouri proposed to revise 10 CSR 40-8.040, concerning penalty 
assessments, by deleting 10 CSR 40-8.040(9) and recodifying existing 10 
CSR 40-8.040(10) and (11) as 10 CSR 40-8.040(9) and (10). Deleted 10 
CSR 40-8.040(9) included a definition of ``habitual violator'' and 
requirements regarding civil penalties for habitual violators.
    The Director finds that Missouri's proposed deletion of 10 CSR 40-
8.040(9) is consistent with the Federal regulations at 30 CFR 843 and 
845 and satisfies the program amendment requirement at 30 CFR 
925.16(q)(5). The Director approves the proposed deletion of 10 CSR 40-
8.040(9) and removes the required amendment at 30 CFR 925.16(q)(5).

4. 10 CSR 40-3.030(4)(B)2, Prevention of Contamination of the Topsoil 
During Redistribution
    Missouri proposed to revise 10 CSR 40-3.030(4)(B)2 to require 
prevention of contamination of topsoil during its redistribution. 
Missouri stated that this provision was revised to be consistent with 
section 444.855.2(5) of the Revised Statutes of Missouri (RSMo).
    The counterpart Federal regulation at 30 CFR 816.22(d)(ii), 
concerning redistribution of topsoil, has no such requirement. However, 
section 444.855.2(5) of RSMo is identical to section 515(b)(5) of 
SMCRA. Both section 444.855.2(5) of RSMo and section 515(b)(5) of SMCRA 
require, with respect to stockpiled or stored topsoil, that the topsoil 
remain free of any contamination by other acid or toxic material.

[[Page 36048]]

    The requirement to prevent contamination of topsoil during its 
redistribution proposed at 10 CSR 40-3.030(4)(B)2 is consistent with 
and no less stringent than section 515(b)(5) of SMCRA and no less 
effective than the Federal regulations at 30 CFR 816.22 regarding 
topsoil storage and redistribution. Therefore, the Director approves 
proposed 10 CSR 40-3.030(4)(B)2.

5. 10 CSR 40-3.040(10)(B)5, Performance Standards for Impoundments

    Missouri proposed to revise, at 10 CSR 40-3.040(10)(B)5, the 
requirements concerning design, construction, and maintenance of 
impoundments that protect the hydrologic balance during surface coal 
mining operations. Specifically, Missouri proposed to revise the date 
of the referenced U.S. Natural Resources Conservation Service (NRCS, 
formerly the Soil Conservation Service) ``Practice Standards 378, 
Ponds'' from October 1978 to January 1991. This referenced document 
contains the design and construction requirements for permanent 
impoundments that do not meet the size or other criteria of 30 CFR 
77.216(a) approved in a surface mining operation permit.
    Missouri's proposed 10 CSR 40-3.040(10)(B)5 is no less effective 
than the design and construction requirements in the Federal 
regulations at 30 CFR 816.49(a) for impoundments that do not meet or 
exceed the size or other criteria of the Mine Safety and Health 
Administration (MSHA) at 30 CFR 77.216(a).
    However, the Federal regulations at 30 CFR 780.25 and 784.16 were 
revised to require that all impoundments meeting the Class B or C 
criteria of the U.S. Department of Agriculture, NRCS Technical Release 
No. 60 (210-VI-TR60, Oct. 1985), Earth Dams and Reservoirs, comply with 
the requirements of the Federal regulations for structures that meet or 
exceed the size or other criteria of MSHA. And the Federal regulations 
at 30 CFR 816.49 and 817.49 were revised to require that any 
impoundment meeting the Class B or C criteria for dams in the U.S. 
Department of Agriculture, NRCS Technical Release No. 60 (210-VI-TR60, 
Oct. 1985), Earth Dams and Reservoirs, comply with ``Minimum Emergency 
Spillway Hydrologic Criteria'' table in TR-60 as well as the 
requirements of 30 CFR 816.49 and 817.49 (59 FR 53022, October 20, 
1994).
    OSM will evaluate all State programs to ascertain the need for 
revision to be no less effective than the revised Federal regulations 
at 30 CFR 780.25, 784.16, 816.49, and 817.49. At that time, OSM will 
notify Missouri, in accordance with the Federal regulations at 30 CFR 
732, of the need to revise its regulations at 10 CSR 40-6.040(11), 
6.120(7), 3.040(10), and 3.200(10) to include the hazard classification 
criteria for impoundments.
    At this time, based on the above discussion, the Director finds 
that proposed 10 CSR 40-3.040(10)(B)5 is no less effective than the 
Federal regulations at 30 CFR 816.49(a) with regard to impoundments 
that (1) do not meet the NRCS class B or C hazard classification 
criteria and (2) do not meet or exceed the size of other criteria of 30 
CFR 77.216(a). The Director approves proposed 10 CSR 40-3.040(10)(B)5 
to the extent that its requirements apply only to impoundments that (1) 
do not meet the NRCS class B or C hazard classification criteria and 
(2) do not meet or exceed the size or other criteria of MSHA at 30 CFR 
77.216(a). The Director does not approve proposed 10 CSR 40-
3.040(10)(B)5 to the extent that it does not exclude permanent 
impoundments that meet the NRCS class B or C hazard classification 
criteria from the design and construction requirements in the NRCS 
``Practice Standards 378, Ponds,'' dated January 1991.

6. 10 CSR 40-6.020(2)(A) and 40-6.020(3)(A), Requirements for Coal 
Exploration

    Missouri proposed revisions at 10 CSR 40-6.020(2)(A) and 10 CSR 40-
6.020(3)(A), concerning applications and permits for coal exploration 
during which, respectively, less than and more than 250 tons of coal 
will be removed. Specifically, Missouri proposed to delete the phrase 
``outside a permit area'' with regard to the location of a proposed 
coal exploration operation. The effect of Missouri's proposed revisions 
is to require exploration applications or permits regardless of where 
the exploration operation occurs. Missouri stated in its proposed 
amendment that these revisions were proposed in order to remove 
confusing language and clarify the requirements for obtaining coal 
exploration permits.
    The counterpart Federal regulations at 30 CFR 772.11 and 772.12 
include the phrase ``outside a permit area'' with regard to the 
location of coal exploration operations that must obtain approved 
applications or permits. These Federal regulations exclude coal 
exploration operations from the requirements of 30 CFR 772.11 and 
772.12 if the exploration operations occur within the boundaries of an 
existing surface coal mining and reclamation operation permit.
    Missouri's proposed 10 CSR 40-6.020(2)(A) and 10 CSR 40-6.020(3)(A) 
are more inclusive of the requirement to obtain exploration 
applications and permits than are the counterpart Federal regulations. 
Therefore, the Director finds that proposed 10 CSR 40-6.020(2)(A) and 
10 CSR 40-6.020(3)(A) are no less effective than the Federal 
regulations at 30 CFR 772.11 and 772.12 and approves the proposed 
rules.

7. 10 CSR 40-8.050(2)(B), Small Operator Assistance Program

    Missouri proposed to revise 10 CSR 40-8.050(2)(B) to increase, from 
100,000 tons to 300,000 tons, the amount of coal an operator can mine 
and be considered eligible for small operator assistance.
    The Abandoned Mine Reclamation Act of 1990 (AMRA), as amended, was 
reauthorized on November 5, 1990, when the Omnibus Budget 
Reconciliation Act of 1990, Public Law 101-508 was enacted. Included in 
AMRA was new legislation that raised the annual coal production limit 
from 100,000 to 300,000 tons for eligibility under SOAP authorized at 
section 507(c) of SMCRA.
    Therefore, the Director finds that Missouri's proposed revision of 
10 CSR 40-8.050(2)(B) is consistent with and no less stringent than 
section 507(c) of SMCRA as amended by AMRA. The Director approves the 
proposed rule.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Missouri program.
    The Natural Resources Conservation Service responded on March 3, 
1995, that it had no comments concerning the proposed amendments 
(administrative record No. MO-616).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to 

[[Page 36049]]
those provisions of the proposed program amendment that relate to air 
or water quality standards promulgated under the authority of the Clean 
Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 
et seq.).
    None of the revisions that Missouri proposed to make in its 
amendment pertain to air or water quality standards. Therefore, OSM did 
not request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record No. MO-614. It did 
not respond to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves, with certain 
exceptions and additional requirements, Missouri's proposed amendment 
as submitted on February 10, 1995.
    The Director does not approve, as discussed in Finding No. 5, 10 
CSR 40-3.040(10)(B)5, to the extent it does not exclude permanent 
impoundments that meet the NRCS class B or C hazard classification 
criteria from the design and construction requirements in the NRCS 
``Practice Standards 378, Ponds,'' dated January 1991.
    With the requirement that Missouri further revise its rules, the 
Director does not approve, as discussed in Finding No. 3.d.ii, 10 CSR 
40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), concerning the fish and 
wildlife plan.
    With the requirement that Missouri further revise its rules, the 
Director approves, as discussed in: Finding No. 3.b, 10 CSR 40-
3.110(6)(B), Finding No. 3.c, 10 CSR 40-3.140(1)(A), concerning the 
control or prevention of air pollution attendant to erosion at surface 
mining operations; and Finding No. 3.d.ii, 10 CSR 40-6.050(7)(D) and 
40-6.120(12)(D), concerning the fish and wildlife plan.
    The Director approves, as discussed in: Finding No. 1, 10 CSR 40-
3.100(5)2, (6), and (7), 40-3.060(1)(L)1 and (O), 40-3.080(8)(B), 40-
3.110(3)3, 40-6.030(1)(C) and (5)(B), 40-6.060(4)(D)(4), 40-
6.070(9)(A)1 and 40-6.070(9)(A)2.A and 2.B, concerning minor editorial 
revisions or corrections of referenced citations; Finding No. 2, 10 CSR 
40-6.010(2)(H), 40-6.070(8)(M), and 40-8.010(1)(A)84, concerning 
substantive revisions that are substantively identical to the 
corresponding Federal regulations; Finding Nos. 3.a, 3.d.i, 3.e, 3.f, 
and 3.g, 10 CSR 40-3.110(3)1, 40-6.050(7)(C) and 40-6.120(7)(C), 40-
8.010(1)(A)72, 40-8.030(7)(A), and 40-8.040(9), concerning responses to 
required amendments; Finding No. 4, 10 CSR 40-3.030(4)(B)2, concerning 
topsoil; Finding No. 5, 10 CSR 40-3.040(10)(B)5, concerning design and 
construction of impoundments, to the extent that its requirements apply 
only to impoundments that (1) do not meet the NRCS class B or C hazard 
classification criteria and (2) do not meet or exceed the size or other 
criteria of MSHA at 30 CFR 77.216(a); Finding No. 6, 10 CSR 40-
6.020(2)(A) and (3)(A), concerning coal exploration; and Finding No. 7, 
10 CSR 40-8.050(2)(B), concerning small operator's assistance.
    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify in the required amendment section at 30 CFR 
925.16 that, within 60 days of the publication of this final rule, 
Missouri must either submit a proposed written amendment, or a 
description of an amendment to be proposed that meets the requirements 
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is 
consistent with Missouri's established administrative or legislative 
procedures.
    The Director approves the rules as proposed by Missouri with the 
provision that they be fully promulgated in identical form to the rules 
submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 925, codifying decisions 
concerning the Missouri program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Missouri program, the Director will recognize only the 
statutes, regulations and other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Missouri of only such 
provisions.

VI. Procedural Determinations

1. Executive Order 12866

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

2. Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. et 
seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that 

[[Page 36050]]
existing requirements previously promulgated by OSM will be implemented 
by the State. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 6, 1995.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 925--MISSOURI

    1. The authority citation for Part 925 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 925.15 is amended by adding paragraph (s) to read as 
follows:


Sec. 925.15  Approval of amendments to the Missouri regulatory program.

* * * * *
    (s) With the exception of 10 CSR 40-3.040(10)(B)5, to the extent it 
does not exclude permanent impoundments that meet the NRCS class B or C 
hazard classification criteria from the design and construction 
requirements in the NRCS ``Practice Standards 378, Ponds,'' dated 
January 1991; and 10 CSR 40-6.050(7)(D)(1) and 40-6.120(12)(D)(1), 
concerning the requirement that a fish and wildlife plan in 
applications for surface and underground mining operations be 
consistent with the performance standards for protection of fish, 
wildlife, and related environmental values at 10 CSR 40-3.100 and 10 
CSR 40-3.250, revisions to the following rules, as submitted to OSM on 
February 10, 1995, are approved effective July 13, 1995:

    10 CSR 40-3.030(4)(B)2, performance standards concerning topsoil 
redistribution;
    10 CSR 40-3.040(10)(B)5, performance standards concerning design 
and construction of certain impoundments;
    10 CSR 40-3.060(1)(L)1 and (0), performance standards concerning 
the disposal of coal processing wastes and excess spoil;
    10 CSR 40-3.080(8)(B), performance standards concerning the 
final disposal of noncoal wastes;
    10 CSR 40-3.100(5)2, (6), and (7), performance standards 
concerning protection of fish and wildlife;
    10 CSR 40-3.110(3)1, (3)3, and (6)(B) performance standards 
concerning disposal or storage of acid-forming or toxic-forming 
material;
    10 CSR 40-3.140(1)(A), performance standards concerning the 
control or prevention of air pollution attendant to erosion at 
surface mining operations;
    10 CSR 40-6.010(2)(H), concerning the definition of 
``Secretary;''
    10 CSR 40-6.020(2)(A) and (3)(A), concerning coal exploration;
    10 CSR 40-6.030(1)(C) and (5)(B), and 6.050(7)(C) and (7)(D), 
concerning permit application requirements for surface mining 
operations;
    10 CSR 40-6.060(4)(D)(4), concerning permit application 
requirements for operations involving prime farmland;
    10 CSR 40-6.070(8)(M), (9)(A)1, and (9)(A)2.A and 2.B, 
concerning criteria for permit approval or denial for remining 
operations and existing structures;
    10 CSR 40-6.120(7)(C) and (12)(D), concerning permit application 
requirements for underground mining operations;
    10 CSR 40-8.010(1)(A)72 and 84, concerning the definitions for 
``previously mined area'' and ``road;''
    10 CSR 40-8.030(7)(A), concerning the extension of an abatement 
period for a notice of violation;
    10 CSR 40-8.040(9), concerning the deletion of a definition for 
``habitual violator'' and requirements regarding civil penalties for 
habitual violators; and
    10 CSR 40-8.050(2)(B), concerning small operator's assistance.

    3. Section 925.16 is amended by removing and reserving paragraphs 
(b)(4), (q)(1), and (q)(3) through (q)(5); revising paragraph (q)(2); 
and adding paragraph (u) to read as follows:


Sec. 925.16  Required program amendments.

* * * * *
    (q)(2) By September 11, 1995, Missouri shall revise 10 CSR 40-
3.110(6)(B) or otherwise modify its program, to clearly require, for 
areas that have been previously mined, either topsoil or a topsoil 
substitute, in accordance with its rules at 10 CSR 40-3.030.
* * * * *
    (u) By September 11, 1995, Missouri shall revise 10 CSR 40-
6.050(7)(D)(1) and 40-6.120(12)(D)(1), or otherwise modify its program, 
to require that the description in the fish and wildlife plan must be 
consistent with, respectively, its performance standards for protection 
of fish, wildlife, and related environmental values at 10 CSR 40-3.100 
and 10 CSR 40-3.250.

[FR Doc. 95-17167 Filed 7-12-95; 8:45 am]
BILLING CODE 4310-05-M