[Federal Register Volume 62, Number 81 (Monday, April 28, 1997)]
[Rules and Regulations]
[Pages 22889-22895]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10823]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SPATS No. ND-034-FOR]


North Dakota Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is 
approving a proposed amendment to the North Dakota regulatory program 
(hereinafter referred to as the ``North Dakota program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA). North 
Dakota proposed revisions to rules pertaining to: Permit application 
requirements for the disposal of noncoal wastes; performance standards 
concerning soil redistribution; revegetation success standards on lands 
developed for use as prime farmland, recreation, and on previously-
mined areas to be developed for water, residential, industrial, and/or 
commercial uses. The amendment is intended to revise the North Dakota 
program to be consistent with the corresponding Federal regulations, 
clarify ambiguities, and improve operational efficiencies.

EFFECTIVE DATE: April 28, 1997.

FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Director, Casper Field Office, Telephone: (307) 261-6550.

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 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, 934.16, and 934.30.

II. Proposed Amendment

    By letter dated March 20, 1996, North Dakota submitted a proposed 
amendment (Amendment No. XXIII, administrative record No. ND-Y-01) to 
its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). North Dakota 
submitted the proposed amendment on its own initiative and in response 
to required program amendments at 30 CFR 934.16 (aa) and (bb). OSM 
announced receipt of the proposed amendment in the April 24, 1996, 
Federal Register (61 FR 18100; administrative record No. ND-Y-05), 
provided an opportunity for a public hearing or meeting on its 
substantive adequacy, and invited public comment on its adequacy. The 
public comment period ended May 24, 1996. Because no one requested a 
public hearing or meeting, none was held.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds that the proposed program amendment 
submitted by North Dakota on March 20, 1996, is no less effective than 
the corresponding Federal regulations and no less stringent than SMCRA. 
Accordingly, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to North Dakota's Rules

    North Dakota proposed revisions to its approved program that are 
nonsubstantive in nature and consist of editorial changes. North Dakota 
proposed to replace, throughout its program, the name of the U.S. 
``Soil Conservation Service''with its new name, the ``National Resource 
Conservation Service.'' North Dakota also proposed to replace the name 
of the North Dakota ``Department of Health and Consolidated 
Laboratories,'' with its new name, the ``Department of Health.''
    Because these editorial revisions have no significant impact on the 
substance of the requirements of the program, other than to correctly 
identify the appropriate Federal and State agencies, the Director finds 
that the proposed revisions are consistent with and no less effective 
than the Federal program and approves them.

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

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

    NDAC 69-05.2-19-04.3 (30 CFR 816.89(b)), concerning design and 
construction of noncoal waste disposal sites to ensure that leachate 
and drainage from the noncoal waste areas does not degrade surface 
or underground water.
    NDAC 69-05.2-26-05.3.e (30 CFR 823.15(b)(5)), concerning the 
demonstration of restoration of prime farmland productivity, to 
require an average annual yield rather than yields from three 
consecutive growing seasons.

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

3. NDAC 69-05.2-09-02.8, Permit Applications Requirements for Noncoal 
Waste Disposal

    North Dakota proposed to revise NDAC 69-05.2-09-02.8, which 
currently provides that the required maps and plans of the proposed 
permit and adjacent areas show each coal storage, cleaning, and loading 
area, and each coal waste and noncoal waste storage area. Under the 
proposed revisions, for noncoal wastes that will be disposed of in the 
proposed permit area, the applicant would be required to provide a 
description of: (1) Any wastes listed under NDAC 33-20-02.1-01.2.i and 
(2) ``any other wastes requiring a permit from the state department of

[[Page 22890]]

health.'' Pursuant to NDAC 33-20-02.1-01.2.i, a solid waste management 
permit is not required for the disposal of certain specified mining 
operation wastes into areas designated in a surface coal mining permit 
issued by the State regulatory authority for such disposal. Thus, the 
Director interprets the proposed revision as requiring a description of 
all noncoal wastes that will be disposed of in the proposed permit 
area, whether or not the applicant is required to obtain a solid waste 
management permit from the State Department of Health. North Dakota 
also proposed to require that the location of any noncoal waste 
disposal areas within the proposed permit area be shown on a map of the 
permit area.
    There are no exact Federal counterpart provisions to the State's 
proposed revisions to NDAC 69-05.2-09-02.8. Pursuant to 30 CFR 
730.11(b), States may promulgate regulations for which no corresponding 
provisions exist in SMCRA or the Federal regulations. Since there are 
no exact Federal counterpart provisions, OSM compared North Dakota's 
proposed revisions to NDAC 69-05.2-09-02.8 for consistency with section 
515(b)(14) of SMCRA and the Federal regulations at 30 CFR 780.11(b)(4).
    Section 515(b)(14) of SMCRA requires that surface coal mining and 
reclamation operations be conducted in a manner which insures, among 
other things, that all debris, acid-forming materials, toxic materials, 
or materials constituting a fire hazard are treated or buried and 
compacted or otherwise disposed of in a manner designed to prevent 
contamination of ground or surface waters. The Federal regulations at 
30 CFR 780.11(b)(4) require that each permit application contain a 
narrative explaining, among other things, the use and maintenance of 
coal processing waste and noncoal disposal areas. Existing North Dakota 
rule NDAC 69-05.2-09-01 ``Permit applications--Operation plans--General 
requirements'' requires that ``Each application must contain a detailed 
description of the proposed mining operations, including: ``3. A 
narrative for each operations plan explaining the plan in detail and 
the construction, modification, use and maintenance of each mine 
facility, water and air pollution control facilities or structures, * * 
*. In addition, NDAC 69-05.2-09-02. ``Permit applications--Operation 
plans--Maps and plans.'' requires that ``Each application must contain 
* * * an appropriate combination of * * * topo maps, planimetric maps, 
and plans of the proposed permit and adjacent areas showing: ``8. Each 
coal storage, cleaning and loading area, and each coal waste and 
noncoal waste storage area.'' These North Dakota rules meet the 
requirements of 30 CFR 780(b)(4).
    The Director finds that North Dakota's proposed revisions will 
assist the State in insuring that wastes produced by surface coal 
mining and reclamation operations be disposed of in a manner designed 
to prevent contamination of ground or surface waters.
    Based on the above discussion, the Director finds that North 
Dakota's proposed revisions to NDAC 69-05.2-09-02.8 are not 
inconsistent with section 515(b)(14) of SMCRA or the provisions of 30 
CFR 780.11(b)(4) and approves the proposed revisions.

4. NDAC 69-05.2-13-02, General Requirements for an Annual Map

    North Dakota proposed to revise NDAC 69-05.2-13-02 to more clearly 
specify the required scale for an annual map (1:4,800), and to allow 
another scale upon approval of North Dakota's Public Service 
Commission.
    There are no exact Federal counterpart provisions to the State's 
proposed revisions to NDAC 69-05.2-13-02 as the Federal regulations do 
not require submission of an annual map. Pursuant to 30 CFR 730.11(b), 
States may promulgate regulations for which no corresponding provisions 
exist in SMCRA or the Federal regulations. Since there are no exact 
Federal counterpart provisions, OSM evaluated North Dakota's proposed 
revisions to NDAC 69-05.2-13-02 for consistency with the Federal 
regulations at 30 CFR 777.14(a), which deals with the requirements for 
maps submitted with a permit application.
    The Federal regulations at 30 CFR 777.14(a) require, among other 
things, that maps of the permit area submitted with applications shall 
be presented at a scale of 1:6,000 or larger and maps of the adjacent 
area shall be in a scale determined by the regulatory authority, but in 
no event smaller than 1:24,000.
    North Dakota's proposed rule provides for reporting requirements on 
maps that are larger than those required by the Federal program. 
Because the required maps are on a larger scale than required to be in 
Federal permit applications and locations will therefore be shown with 
more specificity, the required map scale is not inconsistent with the 
Federal regulation at 30 CFR 777.14. Given that there is no Federal 
counterpart for reporting on annual maps, and given 30 CFR 730.11(b) 
which has been previously discussed in this section, the requirement 
for annual maps at other scales approved by the Public Service 
Commission is not inconsistent with the requirements of the Federal 
program. Moreover, the Director notes that the North Dakota provision 
concerning maps submitted with a permit application, NDAC 69-05.2-09-
02, requires the scale of such maps to be 1:4,800.
    Based on the aforementioned discussion, the Director finds that the 
proposed revisions to NDAC 69-05.2-13-02 are not inconsistent with the 
requirements of the Federal regulations at 30 CFR 777.14(a) and 
approves the proposed revisions.

5. NDAC 69-05.2-15-04.4.a(2)(c), Performance Standard Concerning an 
Alternative Method for Determining the Requirements for Redistribution 
of Suitable Plant Growth Material

    On October 21, 1986 (51 FR 37271, 37273, finding No. 8), the 
Director approved the provision at NDAC 69-05.2-15-04.4(a)(2) that 
allows an alternative method for determining the depth of suitable 
plant growth material required to be redistributed. North Dakota now 
proposes to revise NDAC 69-05.2-15-04.4a(2)(c) to specify that the rule 
is effective for those areas distributed prior to the year 1999, rather 
than 1997. Because there is no exact Federal counterpart provision to 
the State's proposed revision, 30 CFR 730.11(b) is relevant. It says 
that States may promulgate regulations for which no corresponding 
provisions exist in SMCRA or the Federal regulations. The effect of 
proposed NDAC 69-05.2-15-04.4a(2)(c) is to extend the applicable time 
of the rule by two years, to 1999.
    The Federal regulations at 30 CFR 816.22 allow an operator to 
demonstrate to the regulatory authority that the resulting soil medium 
of substituting or supplementing the overburden soil medium is equal to 
or more suitable for sustaining vegetation.
    OSM notes that the technical information submitted when the 
alternative was first approved indicates that adverse effects on 
vegetation were unlikely. Further, permittees employing the alternative 
are still responsible for meeting revegetation success standards at the 
end of the responsibility period.
    North Dakota explained (administrative record Nos. ND-Y-13, 14, 16) 
that the time extension until 1999 is necessary because a draft of a 
study, which just became available in 1997, and which examined the 
option of respreading a lesser amount of suitable plant growth material 
rather than the procedure imposed by existing North Dakota State rules, 
shows no difference in vegetation results and therefore there is no 
rational basis for not allowing the State to allow its operators to use 
the

[[Page 22891]]

less expensive option. In addition, before the study is finalized and 
data completely synthesized and analyzed, the State sees no reason why 
the option should not be continued until its 1999 sunset provision is 
eliminated and the option becomes permanent.
    The Director agrees with the State and finds that the proposed 
revision to NDAC 69-05.2-15-04.4.a(2)(c) is not inconsistent with the 
Federal regulations at 30 CFR 816.22 and approves the proposed 
revision.

6. NDAC 69-05.2-19-04.2, Performance Standards for the Disposal of 
Noncoal Wastes

    The modified regulation as proposed by North Dakota would provide 
as follows:

    Noncoal wastes including concrete products, plastic material, 
abandoned mining machinery, wood materials, and other non-hazardous 
materials generated during mining and noncoal waste materials from 
activities outside the permit area, such as municipal wastes, must 
be placed and stored in a controlled manner in a designated approved 
portion of the permit area. Placement and storage must ensure that 
leachate and surface runoff do not degrade surface or ground water, 
fires are prevented, and that the area remains stable and suitable 
for reclamation and revegetation compatible with the natural 
surroundings. Any wastes containing asbestos may not be disposed of 
in the permit area unless specific approval is obtained from the 
state department of health. Solvents, grease, lubricants, paints, 
flammable liquids, and other combustible materials must be disposed 
off the permit area except for land treatments of small spills as 
approved by the state department of health.

    The Federal regulations at 30 CFR 816.89(a) provide for placement 
and storage of noncoal mine wastes such as grease, lubricants, 
flammable liquids, garbage and abandoned mining machinery in a 
controlled manner in a designated portion of the permit area. In 
addition, .89(a) goes on to say that ``Placement and storage shall 
ensure that leachate and surface run off do not degrade surface or 
ground water, that fires are prevented, and that the area remains 
stable and suitable for reclamation and revegetation compatible with 
the natural surroundings. The Federal regulations at 30 CFR 816.89(b) 
provide that final disposal of such noncoal mine wastes shall be in a 
designated disposal site in the permit area or a State-approved solid 
waste disposal area. They go on to state ``Disposal sites in the permit 
area shall be designed and constructed to ensure that leachate and 
drainage from the noncoal waste area does not degrade surface or 
underground water.'' Further, that ``Wastes shall be routinely 
compacted and covered to prevent combustion and wind-borne waste.'' And 
that ``When disposal is completed, a minimum of 2 feet of soil cover 
shall be placed over the site, slopes stabilized, and revegetation 
accomplished in accordance with 886.111 through 886.116.'' Finally, 
that ``Operation of the disposal site shall be conducted in accordance 
with all local, State, and Federal requirements.''
    North Dakota's proposed requirement at NDAC 69-05.2-19-04.2 that 
``solvents, grease, lubricants, paints, flammable liquids, and 
combustibles in general, be disposed of off the permit area'' is 
consistent with the federal regulation insofar as the federal 
regulations at 30 CFR 816.89(b) anticipate disposal of non-coal wastes 
either in a designated disposal site on the permit area or in a State-
approved solid-waste area. The North Dakota Department of Health rules 
at NDAC 33-20-04.1 contain the general performance standards for solid 
waste management facilities including performance standards for, among 
other things, location, plan of operation, record keeping and 
reporting, closure, transfer stations, baling and compaction systems 
and drop box facilities, solid wastes and resource recovery, and 
general disposal.
    The state also proposes that, ``any wastes containing asbestos may 
not be disposed of in the permit area unless specific approval is 
obtained from the state department of health.'' There is no direct 
Federal counterpart regulation. Pursuant to 30 CFR 730.11(b), States 
may promulgate provisions for which no corresponding provisions exist 
in SMCRA or the Federal regulations. Moreover, the Director finds that 
the State proposal is not inconsistent with the requirements of the 
Federal regulations at 30 CFR 816.89.
    North Dakota's proposed allowance for the placement and storage of 
nonhazardous non-coal waste materials, including concrete, plastic, and 
wood, is not less effective than the Federal regulations at 30 CFR 
816.89(a). Like the Federal regulations, the State regulations require 
that such wastes be placed and stored in a controlled manner in a 
designated approved portion of the permit area. The State regulations 
also require, like the Federal regulations, that placement and storage 
of nonhazardous noncoal wastes ensure that: (1) Leachate and surface 
runoff do not degrade surface or ground water; (2) fires are prevented; 
and (3) that the area remains stable and suitable for reclamation and 
revegetation compatible with the natural surroundings. In addition, 
North Dakota solid waste management rules specify detailed standards 
for storage and treatment which apply to of nonhazardous solid waste, 
including ``solid waste stored or treated in piles, composting, sludge 
piles, tire piles . . ., garbage which is in place for more than three 
days, putrescible waste, other than garbage, which is in place for more 
than three weeks, and other solid waste not intended for recycling 
which is in place for more than three months.'' See e.g., NDAC 33-20-
04.1-07 and NDAC 33-20-01.1-04.
    North Dakota's proposed rules are different from the Federal 
regulations insofar as the State standards for placement and storage of 
noncoal waste within the permit area only apply to nonhazardous noncoal 
waste. The Federal regulations at 30 CFR 816.89 are not so limited. 
That is, the Federal standards for placement and storage of noncoal 
wastes apply to all types of noncoal wastes.
    The rationale provided by North Dakota for not including standards 
for placement and storage of hazardous noncoal wastes on the permit 
area is that the State does not allow the storage or placement of 
hazardous wastes on the permit area (see the telephone conference call 
of 1/23/97 with Jim Deutsch, administrative record No. ND-Y-15). The 
State explained that such wastes will be routinely picked up from the 
permit area and disposed of off-permit. However, in order to be no less 
effective than the counterpart Federal regulations, the State must 
provide standards for placement and storage of all types of noncoal 
wastes, even if certain wastes will only be stored or placed on the 
permit area for a short period of time before they are removed for 
disposal off-permit.
    Based upon the above discussion, the Director finds that proposed 
NDAC 69-05.2-19-04.2 is not inconsistent with the Federal regulations 
at 30 CFR 816.89(a) and (b), concerning disposal of noncoal wastes on 
the permit site, and approves the proposed rule. However, the State 
needs to provide standards for placement and storage of all types of 
noncoal wastes and therefore the Director is requiring North Dakota to 
further amend the rule to include placement and storage standards for 
all types of noncoal wastes.

7. NDAC 69-05.2-22-07.3.c and 4.d, and NDAC 69-05.2-26-05.3.c, 
Requirements for Demonstrating Success of Revegetation Prior to Stage 3 
Bond Release on Prime Farmland

    OSM required at 30 CFR 934.16(aa) that North Dakota revise Chapter 
II, Section C in its revegetation document

[[Page 22892]]

and its rules at NDAC 69-05.2-22-07.3.c and 69-05.2-26-05.3.c to 
require that, prior to stage 3 bond release on land reclaimed for use 
as prime farmland, the permittee demonstrate restoration of 
productivity using 3 crop years (finding No. 3.a, 60 FR 36213, 36217 
through 18, July 14, 1995; administrative record No. ND-Y-10).
    In response to this required amendment, North Dakota proposed to 
revise NDAC 69-05.2-22-07.3.c to require, for demonstration of success 
of productivity on prime farmland prior to stage 3 bond release 
(equivalent to OSM's Phase II release), that the annual average crop 
production from the permit area must be equal to or greater than that 
of the approved reference area or standard with ninety percent 
statistical confidence for a minimum of three crop years. North Dakota 
proposed to revise NDAC 69-05.2-26-05.3.c, concerning the demonstration 
of restoration of prime farmland productivity, to reference the 
measurement period (3 years) for determining average annual crop 
production that is specified at proposed NDAC 69-05.2-22-07.3.c. In 
addition, North Dakota proposed to revise NDAC 69-05.2-22-07.4.d, 
concerning requirements for final or stage 4 bond release (equivalent 
to OSM's Phase III release), to reference the demonstration required at 
proposed NDAC 69-05.2-22-07.3.c for stage 3 bond release in addition to 
the requirement for the completion of the 10 year liability period.
    The Federal regulations at 30 CFR 800.40, concerning phase II bond 
release on prime farmland, and 30 CFR 823.15(b), concerning the 
measurement for success of productivity on prime farmland prior to bond 
release, require a successful demonstration of productivity using 3 
years of data prior to phase II bond release (equivalent to North 
Dakota's stage 3 bond release).
    Because North Dakota has, with the revisions described above, 
clearly required that a permittee demonstrate restoration of 
productivity using 3 crop years prior to stage 3 bond release on land 
reclaimed for use a prime farmland, the Director finds that the 
proposed revisions to NDAC 69-05.2-22-07.3.c and 4.d and NDAC 69-05.2-
26-05.3.c are no less effective than the Federal regulations at 30 CFR 
800.40 and 823.15(b). The Director approves the proposed revisions.
    However, because North Dakota has, with the above rule revisions, 
only partially satisfied the requirement at 30 CFR 934.16(aa), the 
Director is revising 30 CFR 934.16(aa) to state that North Dakota must 
revise Chapter II, Section C in its revegetation document to require, 
prior to stage 3 bond release on land reclaimed for use as prime 
farmland, the permittee demonstrate restoration of productivity using 3 
crop years, consistent with the proposed rules discussed in this 
finding. (In its side-by-side comparison which it submitted along with 
its 3/30/96 State Program Amendment proposal, North Dakota stated that 
``once the rule change is in place, North Dakota will make the 
appropriate modification to its revegetation document).

8. NDAC 69-05.2-22-07.4.i, Final Bond Release on Previously Mined Areas

    North Dakota proposed to revise NDAC 69-05.2-26-07.4.i, concerning 
the stage 4 or final bond release requirement for ground cover on 
previously mined areas, to delete the phrase ``of living plants'' which 
appears whenever the term, ``ground cover'' is used.
    The Federal regulations at 30 CFR 816.116(b)(5) require that 
vegetative ground cover shall not be less than the cover existing prior 
to redisturbance and shall be adequate to control erosion. The 
requirements for ground cover at final bond release at proposed NDAC 
69-05.2-22-07.4.i are otherwise substantively identical to the Federal 
regulations at 30 CFR 816.116(b)(5). North Dakota explained that it 
deleted the phrase ``of living plants'' because ``by definition, ground 
cover is vegetative'' (administrative record number ND-Y-08) and is 
therefore duplicative and unnecessary. Moreover, North Dakota's 
existing definition of ``ground cover'' at NDAC 69-05.2-01-02.39 is 
substantively identical to the same Federal definition at 30 CFR 701.5. 
Both include the statement that ground cover is vegetative.
    Based on the aforementioned discussion, the Director finds that the 
proposed revision to NDAC 69-05.2-22-07.4.i is no less effective than 
the Federal regulation at 30 CFR 816.116(b)(5) and approves the 
proposed revision.

9. NDAC 69-05.2-22-07.4.j, Final Bond Release Requirements for Ground 
Cover on Areas to be Developed for Water, Residential, or Industrial 
and Commercial Uses

    North Dakota proposed to revise NDAC 69-05.2-22-07.4.j, concerning 
the final bond release requirement that ground cover must not be less 
than that required to control erosion, to delete a reference to 
``recreation'' so that the rule applies only to ``areas to be developed 
for water, residential, or industrial and commercial uses within two 
years after the completion of grading or soil replacement'' and to 
delete the phrase ``of living plants'' after ``ground cover `of living 
plants' on these areas must not be less than required to control 
erosion.''
    North Dakota's requirement at proposed NDAC 69-05.2-22-07.4.j, that 
ground cover, prior to final bond release, must be not be less than 
that required to control erosion, is substantively identical to the 
requirement for ground cover on land developed for residential or 
commercial and industrial use at 30 CFR 816.116(b)(3). North Dakota's 
proposed deletion of the reference to ``recreation'' is appropriate 
because proposed NDAC 69-05.2-22-07.4.k now addresses standards for 
land reclaimed for use as recreation (see discussion in finding No. 10 
below). The deletion of the word ``areas'' after water is editorial in 
nature and does not affect the substance of the rule. As stated in the 
preceding finding No. 8, North Dakota explained that the term ``of 
living plants'' is duplicative since ground cover by definition is 
living plants.
    Therefore, the Director finds that the proposed revisions to NDAC 
69.05.2-22-07.4.j are no less effective than the Federal regulations at 
30 CFR 816.116(b)(3) and approves the proposed revisions.

10. NDAC 69-05.2-22-07.4.k, final Bond Release requirements for Ground 
Cover and Woody Plant Stocking and Plant Establishment Standards on 
Areas Developed for Recreation

    OSM required at 30 CFR 934.16(bb) that North Dakota revise Chapter 
II, Section I in its revegetation document and its rule at NDAC 69-
05.2-22-07(4)(j) to require tree and shrub stocking standards that meet 
all requirements in 30 CFR 816.116(b)(3), including approval by the 
appropriate State agencies, on land reclaimed for use as recreation. 
OSM also required that North Dakota also provide documentation of 
consultation with and approval from the appropriate State agencies for 
the ground cover standard in Chapter II, Section I on land reclaimed 
for use as recreation. (finding No. 3.e, 60 FR 36213, 36219, July 14, 
1995; administrative record No. ND-Y-10).
    In response to the required amendment at 30 CFR 934.16(bb), North 
Dakota proposed to add a new rule at NDAC 69-05.2-22-07.4.k, concerning 
land reclaimed for use as recreation, that requires (1) Standards for 
woody plants by reference to NDAC 69-05.2-22-07.4e(1) and f, existing 
approved rules for respectively, revegetation in general and fish and 
wildlife habitat or

[[Page 22893]]

shelterbelts standards, and (2) ground cover not less than that 
required to achieve the approved postmining land use.
    For areas developed for use as recreation, the Federal regulations 
at 30 CFR 816.116(b)(3) (i) through (iii) and 817.116(b)(3) (i) through 
(iii) require, that success of revegetation be determined on the basis 
of tree and shrub stocking and vegetative ground cover and include the 
requirements that, among other things, (1) Permit specific or 
programwide minimum stocking and planting arrangements shall be 
specified by the regulatory authority on the basis of local and 
regional conditions and after consultation with and approval by the 
State agencies responsible for the administration of forestry and 
wildlife programs, (2) trees and shrubs counted in determining such 
success shall be healthy and have been in place for not less than two 
growing seasons, (3) at least 80 percent of the trees and shrubs used 
to determine such success shall have been in place for 60 percent of 
the applicable minimum period of responsibility, and (4) vegetative 
ground cover shall not be less than that required to achieve the 
approved postmining land use.
    By referencing the tree and shrub standards at previously approved 
NDAC 69-05.2-22-07.4e(1) and f, North Dakota has included in its 
requirements for final bond release on land developed for recreation, 
woody plant (i.e. tree and shrub) standards that are no less effective 
than the requirements in the Federal regulations at 30 CFR 
816.116(b)(3) (i) and (ii). North Dakota's proposed requirement that 
ground cover must not be less than required to achieve the approved 
postmining land use is substantively identical to the Federal 
regulations at 30 CFR 816.116(b)(3)(iii). OSM erred in its requirement 
that ground cover standards must also meet the consultation and 
approval requirement of appropriate State agencies. That requirement is 
only applicable to woody plants.
    Based on the above discussion, the Director finds that North 
Dakota's proposed revisions to NDAC 69-05.2-22-07.4.k are no less 
effective than the Federal regulations at 30 CFR 816.116(b)(3) and 
817.116(b)(3). The Director approves the proposed revisions to NDAC 69-
05.2-22-07.4.k.
    However, because North Dakota has, with the above rule revisions, 
only partially satisfied the requirement at 30 CFR 934.16(bb), the 
Director is revising 30 CFR 934.16(bb) to state that North Dakota must 
revise Chapter II, Section C in its revegetation document to require 
tree and shrub stocking standards that meet all requirements in 30 CFR 
816.116(b)(3), including approval by the appropriate State agencies, on 
land reclaimed for use as recreation. It should be noted that in the 
``Changes and Legal Effect'' column of the side-by-side comparison 
chart that North Dakota submitted with this State Program Amendment, 
North Dakota stated that it would make the appropriate modification to 
its revegetation document ``once these rule changes are in place''

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that we 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 Sec. 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the North Dakota program (administrative record 
No. ND-Y-01).
    The U.S. Natural Resources Conservation Service, responded on June 
18, 1996 (administrative record No. ND-Y-07), with the following 
comment concerning the performance standards for prime farmland:

    The [North Dakota's] previous standards stated that crop 
production on prime farmland must be equal to or greater than that 
of approved reference areas for three consecutive years. It now 
states that annual average crop production must be equal to or 
greater than that of approved reference areas for a minimum of three 
crop years.
    Our understanding of this change is that it would allow the 
performance standards to be dependent upon the selection of three 
years of yield information instead of the last three years of crop 
production. This would allow the selection of the most optimum data 
and may not truly reflect the average production of the permit area. 
This change seems to weaken the language related to the performance 
standards.

    The commenter referred to the revisions proposed by North Dakota at 
NDAC 69-05.2-22-07.3.c and 69-05.2-26-05.3.c. North Dakota revised 
these rules to require a demonstration of restoration of productivity 
on prime farmland prior to stage 3, rather than stage 4, bond release, 
using the average annual yields from 3 crop years rather than from 3 
consecutive crop years. It is the comparison of yield data from the 
reclaimed area to yield data from nonmined prime farmland (or to a 
technical standard determined from data applicable to the reclaimed and 
surrounding nonmined prime farmland) that determines whether 
restoration of productivity is successful. Because crop data will 
fluctuate accordingly for both mined and nonmined prime farmland, a 
meaningful comparison can be made whether the 3 years are consecutive 
or not. In addition, because the Federal regulations at 30 CFR 730.5(b) 
only require that a State's laws be ``in accordance with'' and ``no 
less effective than'' the Federal regulations meeting the requirements 
of SMCRA, the Director does not have the authority to require standards 
in excess of the Federal regulations that implement SMCRA. For this 
reason, the Director is not requiring that North Dakota further revise 
its program in response to this comment.
    The U.S. Fish and Wildlife Service responded on May 3, 1996 
(administrative record No. ND-Y-04), that the proposed changes were 
logical and reasonable.

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    OSM solicited EPA's concurrence with the proposed amendment 
(administrative record No. ND-Y-01). EPA responded on April 30, 1996 
(administrative record No. ND-Y-09), with its concurrence.

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

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (administrative record No. 
ND-Y-03). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves, as discussed 
in:
    Finding No. 1, nonsubstantive revisions reflecting editorial 
changes to include the new names of the U.S. Natural Resource 
Conservation Service and the North Dakota Department of Health;
    Finding No. 2, NDAC 69-05.2-19-04.3 and 69-05.2-22-07.3.c, 
concerning substantive revisions that are

[[Page 22894]]

substantively identical to the corresponding provisions of the Federal 
regulations; concerning substantive revisions that are substantively 
identical to the corresponding provisions of the Federal regulations;
    Finding No. 3, NADC 69-05.2-09-02.8, concerning permit application 
requirements for noncoal waste disposal;
    Finding No. 4, NADC 69-05.2-09-02, concerning general requirements 
for an annual map;
    Finding No. 5, NADC 69-05.2-15-04.4a(2)c, concerning an alternative 
method for determining the requirements for soil redistribution;
    Finding No. 6, NADC 69-05.2-19-04.2, concerning performance 
standards for the disposal of noncoal wastes;
    Finding No. 7, NADC 69-05.2-22-07.3.c and 4.d and NDAC 69-05.2-26-
05.3.c, concerning requirements for demonstrating success of 
revegetation prior to stage 3 bond release on prime farmland;
    Finding No. 8, NADC 69-05.2-22-07.4.i, concerning final bond 
release requirements for ground cover on previously mined areas;
    Finding No. 9, NDAC 69-05-22-07.4.j, concerning final bond release 
requirements for ground cover on areas to be developed for water, 
residential or industrial and commercial uses; and
    Finding No. 10, NDAC 69-05-22-07.4.k, concerning final bond release 
requirements for ground cover and woody plant stocking and plant 
establishment standards on areas developed for recreation.
    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

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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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(c)(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.

6. Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 2, 1997.
Richard J. Seibel,
Regional Director, Western 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 934--NORTH DAKOTA

    1. The authority citation for 30 CFR part 934 continues to read as 
follows:

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

    2. Section 934.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 934.15  Approval of North Dakota regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
  Original amendment submission                                                                                 
              date                   Date of final publication                  Citation/description            
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                  *                  *                  *                  *                  *                
                                                        *                                                       
March 20, 1996..................  April 28, 1997.................  NDAC 69-05.2-09-02.8 -13-02, -15-04.4a(2)c, -
                                                                    19-04.2, 3, -22-07.3.c, 4.d, 4.i, -26-      
                                                                    05.3.c; 69-05, 22-07.4.j, .k; changes to new
                                                                    names of U.S. Natural Resource Conservation 
                                                                    Service and the North Dakota Department of  
                                                                    Health.                                     
----------------------------------------------------------------------------------------------------------------


[[Page 22895]]

    3. Section 934.16 is amended by revising paragraphs (aa) and (bb) 
and adding (cc) to read as follows:


Sec. 934.16  Required program amendments.

* * * * *
    (aa) by June 27, 1997, North Dakota shall revise Chapter II, 
Section C of its revegetation document to require, prior to stage 3 
bond release on land reclaimed for use as prime farmland, the permittee 
demonstrate restoration of productivity using three crop years.
    (bb) By June 27, 1997, North Dakota shall revise Chapter II, 
Section C in its revegetation document to require tree and shrub 
stocking standards that meet all requirements in 30 CFR 816.116(b)(3), 
including approval by the appropriate State agencies, on land reclaimed 
for use as recreation.
    (cc) By June 27, 1997, North Dakota shall revise its rules at NDAC 
69-05.2-19-04.2, ``Performance Standards for Disposal of Noncoal 
Wastes,'' to include placement and storage standards for all types of 
noncoal hazardous wastes.

[FR Doc. 97-10823 Filed 4-25-97; 8:45 am]
BILLING CODE 4310-05-M