[Federal Register Volume 68, Number 233 (Thursday, December 4, 2003)]
[Rules and Regulations]
[Pages 67801-67804]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30153]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-044-FOR, Amendment No. XXXIII]


North Dakota Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the North Dakota 
regulatory program (the ``North Dakota program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). North 
Dakota proposed revisions to and additions of rules about valid 
existing rights, the process for determining whether or not a mine 
operator has valid existing rights, lands prohibited from mining, 
changes in the format of permit applications, general requirements for 
mining plans, land descriptions for partial bond release requests, 
filing requirements for copies of reports required by the State Health 
Department, sediment control measures, and removal of sedimentation 
ponds. North Dakota intended to revise its program to be consistent 
with the corresponding Federal regulations and SMCRA, provide 
additional safeguards, clarify ambiguities, and improve operational 
efficiency.

EFFECTIVE DATE: December 4, 2003.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: 307/261-6550; 
Internet address: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the North Dakota Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the North Dakota Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act'; and rules 
and regulations consistent with regulations issued by the Secretary 
pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the North Dakota program on December 15, 1980. You can find background 
information on the North Dakota program, including the Secretary's 
findings, the disposition of comments, and conditions of approval in 
the December 15, 1980, Federal Register (45 FR 82214). You can also 
find later actions concerning North Dakota's program and program 
amendments at 30 CFR 934.15, 934.16, and 934.30.

II. Submission of the Proposed Amendment

    By letter dated February 10, 2003, North Dakota sent us an 
amendment to its program (Amendment number XXXIII, Administrative 
Record No. ND-HH-01 under SMCRA (30 U.S.C. 1201 et seq.). North Dakota 
sent the amendment in response to an April 2, 2001, letter 
(Administrative Record No. ND-HH-02) that we sent to North Dakota in 
accordance with 30 CFR 732.17(c), and to include changes made at its 
own initiative.
    The provisions of the North Dakota Administrative Code (NDAC) that 
North Dakota proposed to revise or add are:
    (1) NDAC 69-05.2-01-02(120), Definition of Valid Existing Rights; 
(2) NDAC 69-05.2-04-01.1 through 01.7, Processing Requests for Valid 
Existing Rights and Exceptions from Areas Prohibited from Mining; (3) 
NDAC 69-05.2-05-01, Copies and format of permit applications; (4) NDAC 
69-05.2-

[[Page 67802]]

09-01, General Requirements for Mining Plans; (5) NDAC 69-05.2-12-12, 
Bond release requirements; (6) NDAC 69-05.2-16-04, Sediment control 
measures under the general water management requirements; (7) NDAC 69-
05.2-16-05, Water discharge reports; and (8) NDAC 69-05.2-16-09, 
Removal of water management structures.
    We announced receipt of the proposed amendment in the June 3, 2003, 
Federal Register (68 FR 33035). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the amendment's adequacy (Administrative Record No. ND-
HH-08). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on July 3, 2003. We did 
not receive any comments.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.

A. Revisions to North Dakota's Rules or Statutes That Have the Same 
Meaning as the Corresponding Provisions of the Federal Regulations and/
or SMCRA

    1. NDAC 69-05.2-01-02(120), Definition of Valid Existing Rights.(30 
CFR 761.5)
    2. NDAC 69-05.2-04-01.1 through 01.7, Processing Requests for Valid 
Existing Rights and Exceptions from Areas Prohibited from Mining.
    a. NDAC 69-05.2-04-01.1, Areas Unsuitable for Mining--Areas where 
surface coal mining operations are prohibited or limited (30 CFR 
761.11).
    b. NDAC 69-05.2-04-01.2, Areas Unsuitable for Mining--Exception for 
existing operations from areas where mining is prohibited (30 CFR 
761.12).
    c. NDAC 69-05.2-04-01.3, Areas Unsuitable for mining--Procedures 
for relocating or closing a public road or waiving the buffer zone for 
a public road (30 CFR 761.14).
    d. NDAC 69-05.2-04-01.4, Areas Unsuitable for Mining--Procedures 
for waiving the prohibition on mining within the buffer zone around an 
occupied dwelling (30 CFR 761.15).
    e. NDAC 69-05.2-04-01.5, Areas Unsuitable for mining--Submission of 
requests for valid existing rights determinations (30 CFR 761.16).
    f. NDAC 69-05.2-04-01.6, Areas Unsuitable for mining--Processing 
requests for valid existing rights determinations (30 CFR 761.16(c)-
(g).
    g. NDAC 69-05.2-04-01.7, Areas Unsuitable for mining--Commission 
obligations at time of permit application review (30 CFR 761.17).
    Because these proposed rules contain language that is the same or 
similar to the corresponding Federal regulations, we find that they are 
no less effective than the corresponding Federal regulations.

B. Revisions to North Dakota's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

1. NDAC 69-05.2-05-01, Copies and Format of Permit Applications
    This revision of North Dakota's rules would allow permit 
applications to be filed in an electronic format approved by the North 
Dakota Public Service Commission. In addition, it would require that 
the applicant send a complete copy of the permit application to the 
Bureau of Land Management (BLM) when Federal lands are located in the 
permit area.
    The Federal regulations at 30 CFR 777.11(a)(3) state that an 
application shall ``be filed in the format required by the regulatory 
authority.'' Therefore the State's revision concerning electronic 
filing is allowed and is no less effective than the Federal rules. 
There is no Federal counterpart to the North Dakota requirement that a 
copy of the application be sent to BLM and OSM when Federal lands are 
located in the permit area; it is therefore no less effective than the 
Federal rules.
2. NDAC 69-05.2-16-04, Sediment Control Measures Under the General 
Water Management Requirements
    Under this proposed change, sediment ponds remain the primary 
structure for treating runoff from disturbed areas. However, the 
proposal allows the use of sediment ponds or ``other sediment control 
measures'' to control runoff from disturbed areas. The term, ``other 
sediment control measures,'' is defined as the use of the best 
technology currently available to meet applicable effluent limitations 
and, to the extent possible, minimize erosion and prevent additional 
contributions of sediment to streamflow or to runoff outside the permit 
area. The term includes a number of different methods such as sumps, 
check dams, berms, silt fences, bale dikes, sediment filters, riprap, 
mulches, and other measures to reduce runoff, trap sediment or treat 
runoff water. The use of ``other sediment control measures'' is limited 
to small disturbed areas or reclaimed areas that have been properly 
stabilized against erosion and must be approved by the State Department 
of Health.
    These changes are consistent with the new rules recently adopted by 
the U.S. Environmental Protection Agency (EPA) that allow the 
installation of best management practices as the standard for treating 
runoff from reclaimed lands in the western United States (January 23, 
2002, at 67 FR 3370). Therefore they are no less effective than the 
Federal regulations at 30 CFR 816.42.
3. NDAC 69-05.2-16-05(1)(b)(3), Water Discharge Reports
    Currently, copies of the North Dakota pollutant discharge 
elimination system (NDPDES) report must be submitted to the North 
Dakota Public Service Commission on the schedule required by the NDPDES 
permit. The rule states that reports have to be filed on a quarterly 
basis. However, the proposed revised rule would require mining 
companies to submit the report on the same schedule as required by the 
State Health Department. The State Health Department has modified some 
NDPDES permits for some mines to require reports on a semiannual basis. 
EPA gives this authority to State Health Departments. Other surface 
water monitoring reports must be submitted quarterly. Based on this, 
the proposed State rule is no less effective than the Federal 
regulations.
    The Federal regulations at 30 CFR 816.41(e)(2) state that ``The 
reporting requirements of this paragraph do not exempt the operator 
from meeting any National Pollutant Discharge Elimination System 
reporting requirements.''
    The proposed revision in the State rules are no less effective than 
the Federal regulations.
4. NDAC 69-05.2-16-09, Removal of Water Management Structures
    The proposed revision concerns requirements for the removal of 
ponds and other sediment control structures. Added language requires 
``other sediment control structures'' to remain in place for at least 
two years following the last seeding in the reclaimed watershed. This 
change is connected to the proposed change (at NDAC 69-05.2-04) to 
allow the substitution of other sediment control structures for 
sedimentation ponds once a reclaimed tract is topsoiled and stabilized 
against erosion. As in the Federal rule (30 CFR 816.46(b)(5)), these 
structures cannot be removed unless approved by the regulatory 
authority. The proposed State rule is no less effective than the 
Federal regulations.

[[Page 67803]]

C. Revisions to North Dakota's Rules That Have No Federal Counterpart

1. NDAC 69-05.2-12-12, Bond Release Requirements
    This revision to North Dakota's rules specifies that when lands are 
proposed to undergo partial bond release, the release application must 
be accompanied by either a legal description of the area or by a map 
that clearly depicts and identifies the lands to be released. Allowing 
a map in place of a legal description will encourage the submission of 
more partial bond release applications. There is no Federal counterpart 
to the State's proposal. According to 30 CFR 730.11(b) of the Federal 
regulations, in these cases, the State rule shall not be construed to 
be inconsistent with (SMCRA). Therefore it is no less effective than 
the Federal regulations.
2. NDAC 69-05.2-09-01, Permit Applications--Operation Plans--General 
Requirements
    This North Dakota provision requires that if coal removal areas are 
proposed within 500 feet of any farm building, the applicant must 
provide documentation showing compliance with the State's surface 
owners protection act (North Dakota Century Code 38-18-07). There is no 
Federal counterpart to this North Dakota provision. According to 30 CFR 
730.11(b) of the Federal regulations, in these cases, the State rule 
shall not be construed to be inconsistent with (SMCRA). Therefore it is 
no less effective than the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment in the June 3, 2003, 
Federal Register (68 FR 33035), but received none (Administrative 
Record ND-HH-08).

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the North Dakota program 
(Administrative Record No. ND-HH-04).
    On March 3, 2003, the State Conservationist with the Natural 
Resources Conservation Service (NRCS), replied that NRCS had no 
comments (Administrative Record No. ND-HH-06).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued 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.).
    On February 21, 2003, we asked for agreement on the amendment 
(Administrative Record No. ND-HH-04). On March 31, 2003, the Director 
of the Ecosystems Protection Program with the EPA sent us the following 
comment: ``We believe the proposed program amendments to be consistent 
with 40 CFR Part 434 and, therefore, have no concerns.'' 
(Administrative Record No. ND-HH-07)

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On February 21, 2003, we requested comments on North 
Dakota's amendment (Administrative Record No. ND-HH-04), but neither 
responded to our request. North Dakota's SHPO responded on March 5, 
2003, that ``We have reviewed (the amendment) and have no comments.'' 
(Administrative Record No. ND-HH-05).

V. OSM's Decision

    Based on the above findings, we approve North Dakota's February 10, 
2003, amendment, as follows: (1) NDAC 69-05.2-10-02 (120), Definition 
of Valid Existing Rights; (2) NDAC 69-05.2-04-01.1 through 01.7, 
Processing requests for valid existing rights and exceptions from areas 
prohibited from mining; (3) NDAC 69-05.2-05-01, Copies and format of 
permit applications; (4) NDAC 69-05.2-09-01, Permit applications--
Operation plans--General requirements; (5) NDAC 69-05.2-12-12, Bond 
release requirement; (6) NDAC 69-05.2-16-04, Sediment control measures 
under the general water management requirements; (7) NDAC 69-05.2-16-
05(1)(b)(3), Water discharge reports; (8) NDAC 69-05.2-16-09, Removal 
of water management structures.
    We approve the rules as proposed by North Dakota with the provision 
that they be fully promulgated in identical form to the rules submitted 
to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 934, which codify decisions concerning the North Dakota 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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 because 
each 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.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and

[[Page 67804]]

reclamation operations be ``in accordance with'' the requirements of 
SMCRA, and section 503(a)(7) requires that State programs contain rules 
and regulations ``consistent with'' regulations issued by the Secretary 
pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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)).

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.).

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: a. does not 
have an annual effect on the economy of $100 million; b. will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and c. does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is largely based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is largely based upon 
counterpart Federal regulations for which an analysis was prepared and 
a determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 29, 2003.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 934 is amended as 
set forth below:

PART 934--NORTH DAKOTA

0
1. The authority citation for part 934 continues to read as follows:

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


0
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.

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    Original amendment submission date             Date of final publication                                 Citation/description
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                                                                      * * * * * * *
Feb. 10, 2003............................  Dec. 4, 2003.............................  NDAC 69-05.2-01-02(120)
                                                                                      NDAC 69-05.2-04-01.1 through 01.7
                                                                                      NDAC 69-05.2-05-01
                                                                                      NDAC 69-05.2-09-01
                                                                                      NDAC 69-05.2-12-12
                                                                                      NDAC 69-05.2-16-04
                                                                                      NDAC 69-05.2-16-05(1)(b)(3)
                                                                                      NDAC 69-05.2-16-09
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[FR Doc. 03-30153 Filed 12-3-03; 8:45 am]
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