[Federal Register Volume 66, Number 90 (Wednesday, May 9, 2001)]
[Rules and Regulations]
[Pages 23593-23605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11635]
[[Page 23593]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 925
[SPATS No. MO-033-FOR]
Missouri Regulatory Program and Abandoned Mine Land Reclamation
Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving, with certain exceptions and additional requirements, an
amendment to the Missouri regulatory program (Missouri program) and the
Missouri Abandoned Mine Land Reclamation Plan (Missouri plan) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Missouri
proposed revisions to its rules pertaining to surface mining
performance standards, special mining activities, prohibitions and
limitations on mining in certain areas and areas unsuitable for mining,
permitting requirements, bond and insurance requirements, definitions
and general requirements, and abandoned mine land reclamation
requirements. Missouri intends to revise its program to be consistent
with the corresponding Federal regulations, to provide additional
safeguards, to clarify ambiguities, and to improve operational
efficiency.
EFFECTIVE DATE: May 9, 2001.
FOR FURTHER INFORMATION CONTACT: John W. Coleman, Office of Surface
Mining, Mid-Continent Regional Coordinating Center, Alton Federal
Building, 501 Belle Street, Alton, Illinois 62002. Telephone: (618)
463-6460. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background on the Missouri Program and Plan
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Missouri Program and Plan
On November 21, 1980, the Secretary of Interior conditionally
approved the Missouri program. You can find general background
information on the Missouri program, including the Secretary's
findings, the disposition of comments, and the conditions of approval
in the November 21, 1980, Federal Register (45 FR 77017). You can find
later actions on the Missouri program at 30 CFR 925.12, 925.15, and
925.16.
On January 29, 1982, the Secretary of the Interior approved the
Missouri plan. Background information on the Missouri plan, including
the Secretary's findings, the disposition of comments, and the approval
of the plan can be found in the January 29, 1982, Federal Register (47
FR 4253). Subsequent actions concerning the Missouri plan and
amendments to the plan can be found at 30 CFR 925.25.
II. Submission of the Amendment
By letter dated October 5, 2000 (Administrative Record No. MO-
662.1), Missouri sent us an amendment to its program and plan under
SMCRA and the Federal regulations at 30 CFR 732.17(b) and 884.15,
respectively. Missouri sent the amendment in response to our letter
dated June 17, 1997 (Administrative Record No. MO-651), that we sent to
Missouri under 30 CFR 732.17(c), and in response to required program
amendments codified at 30 CFR 925.16. The amendment also includes
changes made at Missouri's own initiative. Missouri proposed to amend
the Missouri Code of State Regulations (CSR) at Title 10, Division 40.
We announced receipt of the amendment in the October 31, 2000,
Federal Register (65 FR 64906). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the adequacy of the amendment. The public comment period
closed on November 30, 2000. Because no one requested a public hearing
or meeting, we did not hold one.
During our review of the amendment, we identified concerns relating
to spillways, temporary impoundments, air resource protection, and the
exemption for coal extraction incidental to the extraction of other
minerals. We notified Missouri of these concerns by letter dated
December 15, 2000 (Administrative Record No. MO-662.5).
By letter dated January 12, 2001 (Administrative Record No. MO-
662.6), during a telephone conference on February 13, 2001
(Administrative Record No. MO-662.7), and by letter dated April 17,
2001 (Administrative Record No. MO-662.8), Missouri provided us
additional explanatory information regarding its provisions for
spillways. Because the additional information merely clarified
Missouri's proposed spillway requirements, we did not reopen the public
comment period. In its letters, Missouri indicated that it would submit
revisions to its rules relating to temporary impoundments, air resource
protection, and the exemption for coal extraction incidental to the
extraction of other minerals in a future rulemaking. Therefore, we are
proceeding with the publication of this final rule Federal Register
document.
III. Director's Findings
Following, under SMCRA and the Federal regulations at 30 CFR
732.15, 732.17, 884.14, and 884.15, are the Director's findings
concerning the amendment to the Missouri program and plan.
Any revisions that we do not discuss below are about minor wording
changes, or revised cross-references and paragraph notations to reflect
organizational changes resulting from this amendment.
A. Revisions to Missouri's Rules That Are Minor
Missouri proposed minor wording, editorial, and rule reference
changes to several previously-approved rules.
1. Missouri corrected rule references at 10 CSR 40-3.040(4)(A)1,
40-3.040(13)(A)1.A, 40-3.040(13)(B)1, 40-3080(3)(D), 40-
3.200(12)(A)1.A, 40-3.200(12)(B)1, 40-4.010(3)(J), 40-4.020(2)(B), 40-
4.050(11), 40-4.050(12), 40-6.020(7)(A), 40-6.050(9)(C)3, 40-
6.050(9)(C)4, 40-6.070(8)(C), 40-6.070(8)(D)3, 40-6.090(6)(A), 40-
6.090(7), 40-8.010(1)(A)97.B, 40-8.030(6)(A)3, 40-8.030(12)(C), and 40-
8.070(2)(C)1.A(II).
2. At 10 CSR 40-4.030(3)(A), (6)(A), and (7)(B)2 and 7; 40-
6.040(16)(C)1 and 3; and 40-6.060(4), Missouri corrected references to
the United States Natural Resources Conservation Service (NRCS) by
replacing the ``United States Soil Conservation Service'' and ``SCS''
with the current agency name and acronym, the ``United States Natural
Resources Conservation Service'' and ``NRCS,'' respectively. At 10 CSR
40-8.010(1)(A) 52.C, Missouri revised the secondary definition of
``prime farmland'' in its definition of ``land use'' by adding the
information ``(now known as the Natural Resources Conservation
Service)'' after the term ``Soil Conservation Service.''
3. Missouri corrected typographical errors at 10 CSR 40-
3.080(8)(A), 40-6.070(5) (B)4, and 40-6.070(10)(D).
4. At 10 CSR 40-3.050, 40-4.010, 40-4.030, 40-6.020, and 40-8.050,
Missouri revised the purpose statements to identify the topic and
statutory authority of the rules.
[[Page 23594]]
Because the above revisions are minor and do not change the meaning
of these previously approved rules, we find that they will not make
Missouri's rules less effective than the counterpart Federal
regulations.
B. Revisions to Missouri's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
The State rules listed in the table contain language that is the
same as or similar to the corresponding sections of the Federal
regulations. Differences between the State rules and the Federal
regulations are minor.
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Topic State rule Federal regulation
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Impoundments: Examination... 10 CSR 40- 30 CFR 816.49(a)(12)/
3.040(6)(T)/40- 817.49(a)(12).
3.200(6)(T).
Impoundments: Stability..... 10 CSR 40- 30 CFR
040(10)(L)1/40- 816.49(a)(4)(i)
3.200(10)(L)1. 817.49(a)(4)(i).
Inpoundments: Freeboard..... 10 CSR 40- 30 CFR 816.49(a)(5)/
3.04(10)(M)/40- 817.49(a)(5).
3.200(10)(N).
Impoundments: Foundation.... 10 CSR 40- 30 CFR 816.49(a)(6)/
3.040(10)(N)/40- 817.49(a)(6).
3.200(10(N).
Impoundments: Spillways..... 10 CSR 40- 30 CFR 816.49(a)(9),
3.040(10)(O), (O)1, (9)(i), (9)(ii)(A)/
(O)2.A/40-3.200. 817.49(A)(9),
(9)(i), (9)(ii)(A).
Temporary Impoundments...... 10 CSR 40- 30 CFR 816.49(c)(2),
3.040(10)(O)3, 3.A/ (2)(i)/
40-3.200(10)(O)3, 817.49(c)(2),
3.A. (2)(i).
Blasting Schedule Contents.. 10 CSR 40- 30 CFR 816.64(c)(1).
3.050(3)(C)1.
Disposal of Coal Processing 10 CSR 40- 30 CFR 816.81(a).
Waste. 3.080(1)(A).
Backfilling and Grading: 10 CSR 40- 30 CFR 816.104(a),
Thin Overburden. 3.110(4)(A), (A)(1) (a)(1) and (2).
and (2).
Backfilling and Grading: 10 CSR 40- 30 CFR 816.105(a),
Thick Overburden. 3.110(5)(A), (A)(1) (a)(1) and (2).
and 2.
Operations on Prime 10 CSR 40- 30 CFR 823.11(a) and
Farmland: Applicability. 4.030(4)(B). (b).
Prohibitions and Limitations 10 CSR 40- 30 CFR 761.5.
on Mining in Certain Areas: 5.010(1)(B).
Definition of Significant
Recreational, Timber,
Economic or Other Values
Incompatible With Surface
Coal Mining Operations.
Prohibitions and Limitations 10 CSR 40- 30 CFR 761.11(e)(1).
on Mining in Certain Areas: 5.010(2)(E).
Areas Where Mining is
Prohibited or Limited.
Coal Exploration Permits: 10 CSR 40-6.020(5).. 30 CFR 772.14(a) and
Commercial Use or Sale. (b).
Geology Description......... 10 CSR 40- 30 CFR
6.040(5)(B) 1.E. 780.22(b)(2)(iii).
Probable Hydrologic 10 CSR 40- 30 CFR 780.21(f)(4).
Consequences Determination. 6.050(9)(D)3.
Cumulative Hydrologic Impact 10 CSR 40- 30 CFR 780.21(g)/
Assessment. 6.050(9)(E)/40- 784.14(f).
6.120(5)(E).
Reclamation Plan: Ponds, 10 CSR 40- 30 CFR 780.25(a),
Impoundments, Banks, Dams, 6.050(11)(A), (A)2, (a)(2), (a)(3),
and Embankments. (A)3, (B), (C), (F)/ (b), (c), (f)/
40-6.120(7)(A), 784.16(a), (a)(2),
(A)2, (A)3, (B)1, (a)(3), (b), (c),
(C), (F).. (f).
Prime Farmlamds: Issuance of 10 CSR 40- 30 CFR 785.17(e)(5).
Permit. 6.060(4)(E)5.
Self-Bonding................ 10 CSR 40- 30 CFR
7.011(6)(D)2 C(II), 800.23(b)(3)(ii),
(D)5.A and C. (e)(1) and (4).
Bond Release Application: 10 CSR 40- 30 CFR 800.40(a)(3).
Notarized Statement of 7.021(3)(D).
Accomplished Reclamation.
Definition of Approximate 10 CSR 40- 30 CFR 701.5.
Original Contour. 8.010(1)(A)9.
Definition of Other 10 CSR 40- 30 CFR 701.5.
Treatment Facilities. 8.010(1)(A)59.
Definition of Prime Farmland 10 CSR 40- 30 CFR 701.5.
8.010(1)(A)73.
Definition of Regulatory 10 CSR 40- 30 CFR 700.5.
Authority. 8.10(1)(A)82.
Small Operator's Assistance: 10 CSR 40-8.050(1).. 30 CFR 795.3.
Definition of Qualified
Laboratory.
Small Operator Assistance: 10 CSR 40- 30 CFR 795.6(a)(2),
Eligibility for Assistance. 8.050(2)(B), (B)1 (a)(2)(i) and (ii).
and 2.
Small Operator Assistance: 10 CSR 40- 30 CFR 795.9(a),
Program Services and Data 8.050(5)(A), (B)1 (b)(1) through (6).
Requirements. through 6.
Small Operator Assistance: 10 CSR 40- 30 CFR 795.12(a),
Applicant Liability. 8.050(9)(A) (A)2 (a)(2) and (3).
and 3.
Termination of Jurisdiction. 10 CSR 40- 30 CFR 700.11(d)(1)
8.070(2)(F) and (G). and (2).
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Because the above State rules have the same meaning as the
corresponding Federal regulations, we find that they are no less
effective than the Federal regulations.
C. 10 CSR 40-3 Performance Requirements for Surface and Underground
Mining Operations
1. 10 CSR 40-3.010(6) Buffer Zone Markers. Missouri added a
reference to 10 CSR 40-8.010(1)(A)13 in its rule for buffer zone
markers. Missouri's rule at 10 CSR 40-8.010(1)(A)13 defines the term
``buffer zone.'' Although the Federal regulation at 30 CFR 816.11(e)
for buffer zone markers does not contain a counterpart reference, we
find that Missouri's reference to its approved definition of ``buffer
zone'' will not make its rule at 10 CSR 40-3.010(6) less effective than
the Federal regulation.
2. 10 CSR 40-3.020 Requirements for Casing and Sealing of Drilled
Holes. In its rules at 10 CSR 40-3.020(1) and (3), Missouri corrected a
citation reference by changing 10 CSR 40.3.040(13) to 10 CSR 40-
3.040(14). Missouri also added a reference to the rules of the Wellhead
Protection Section, Division of Geology and Land Survey, at 10 CSR 23,
Chapter 6. Coal mine operators in Missouri must meet both the
requirements of 10 CSR 40-3.040(14) and the Division of Geology and
Land Survey's rules at 10 CSR 23, Chapter 6, in order to convert a
drilled hole, borehole, or monitoring well into a water well.
Missouri's rule at 10 CSR 40-3.040(14) contains provisions for
transferring exploratory or monitoring wells for use as water wells. We
find that changing the existing citation reference to 10 CSR 40-
3.040(14) is appropriate because it is consistent with the reference to
30 CFR 816.41 in the counterpart Federal regulations at 30 CFR 816.13
and 816.15. The Federal regulation at 30
[[Page 23595]]
CFR 816.41 allows wells to be transferred to another party for further
use if approved by the regulatory authority and if the transfer
complies with State and local law. Therefore, we find that requiring
coal mine operators to meet other State regulations relating to water
wells, as well as the State counterpart to 30 CFR 816.41, will not make
Missouri's rules at 10 CSR 40-3.010(1) and (3) less effective than the
counterpart Federal regulations at 30 CFR 816.13 and 816.15.
3. 10 CSR 40-3.040 and 10 CSR 40-3.200 Requirements for Protection
of the Hydrologic Balance. Missouri proposed several changes to its
rules at 10 CSR 40-3.040 for surface mining operations and 10 CSR 40-
3.200 for underground mining operations.
a. Missouri replaced all instances of the term ``sedimentation
ponds'' with the term ``siltation structures'' in its rules at 10 CSR
40-3.040(2)(A), 40-3.040(6), 40-3.040(8), 40-3.040(17), 40-3.200(2)(A),
40-3.200(6), 40-3.200(8), and 40-3.200(16). On October 20, 1994, OSM
replaced the term ``sedimentation ponds'' with the term ``siltation
structures'' in many of its counterpart regulations (59 FR 53022). OSM
did this because the term ``siltation structures'' provides a broader
classification of structures for the control of sediment than the term
``sedimentation ponds.'' For this reason and because sedimentation
ponds are included in the Missouri and the Federal definitions of
``siltation structure'' at 10 CSR 40-8.010(1)(A)89 and 30 CFR 701.5,
respectively, we find that Missouri's changes will not make its rules
less effective than the counterpart Federal regulations.
b. 10 CSR 40-3.040(4) and 10 CSR 3.200(4) Stream Channel
Diversions. On September 29, 1992, we required Missouri to amend its
rules at 10 CSR 3.040(4) and 40-3.200(4) to require the certification
of any design criteria set by the regulatory authority as required at
30 CFR 816.43(b)(4) and 817.43(b)(4). We codified this requirement at
30 CFR 925.16(f)(1). In response to this requirement, Missouri added
the language ``and any design criteria set by the director'' at the end
of 10 CSR 40-3.040(4)(B)3 and 40-3.200 (4)(B)3. The revised rules
require the design and construction of all stream channel diversions of
perennial and intermittent streams to be certified by a qualified
registered professional engineer as meeting the performance standards
of the rules and any design criteria set by the director. We find that
Missouri's revised rules at 10 CSR 40-3.040(4)(B)3 and 40-3.200(4)(B)3
are substantively identical to the counterpart Federal regulations at
30 CFR 816.43(b)(4) and 817.43(b)(4), respectively. The revisions also
satisfy the required amendment that was codified at 30 CFR
925.16(f)(1), which we are removing.
c. At 10 CSR 40-3.040(10)(A) and 40-3.200(10)(A), Missouri added
the following new provision:
Furthermore, impoundments meeting the Class B or C criteria for
dams in TR-60 shall comply with the ``Minimum Emergency Spillway
Hydrologic Criteria'' table in TR-60 and the requirements of this
section.
We find that Missouri's new provision contains requirements that
are substantively the same as the counterpart Federal regulation
requirements at 30 CFR 816.49(a)(1) and 817.49(a)(1). Therefore, we are
approving Missouri's revised rules at 10 CSR 40-3.040 (10)(A) and 40-
3.200(10)(A).
d. At 10 CSR 40-3.040(10)(B)5 and 40-3.200(10)(B)5, Missouri
updated its reference to the requirements for impoundments that do not
meet the size or other criteria contained in 30 CFR 77.216(a) by
changing the ``United States Soil Conservation Service Practice
Standards 378, Ponds, January 1991'' to the ``United States Natural
Resources Conservation Service, Conservation Practice Standard, POND,
CODE, No. 378, December 1998.'' We are approving this reference change
because the December 1998 version of Practice Standard No. 378 is the
current version issued by the Natural Resources Conservation Service
for the State of Missouri.
e. Missouri added a new subsection at 10 CSR 40-3.040(10)(L) and
40-3.200(10)(L) entitled ``Stability.'' As shown above in finding B,
paragraphs (10)(L)1 are substantively the same as the counterpart
Federal regulations. Paragraphs (10)(L)2 require an impoundment not
meeting the Class B or C criteria for dams in TR-60 or the size or
other criteria of 30 CFR 77.216(a), except for a coal mine waste
impounding structure, to have a minimum static safety factor of 1.3 for
a normal pool with steady state seepage saturation conditions or meet
the requirements of the Natural Resources Conservation Service,
Conservation Practice Standard 378, ``Ponds,'' December 1998, and be
less than 20 feet in height.
Missouri's rules provide for two alternatives to determine the
stability of an embankment for impoundments that do not meet the Class
B or C criteria for dams in TR-60 or the size or other criteria of 30
CFR 77.216(a). The first alternative requires that the slope stability
of the earth embankment meet the same 1.3 minimum static safety factor
requirements for steady state seepage as found in 30 CFR
816.49(a)(4)(ii) and 817.49(a)(4)(ii). The second alternative refers to
the NRCS Practice Standard No. 378 design standards developed for
Missouri in December 1998. On November 17, 2000, we conducted a
technical review of these standards (Administrative Record No. MO-
662.4). The NRCS Practice Standard No. 378 requires that slopes be
2.5H:1V or flatter with combined slopes being 6H:1V or flatter for an
embankment. This is a conservative standard when compared to other
approved design standards, usually 5H:1V. It further requires that the
slopes be stable, even if flatter slopes are required. The slope
stability evaluation must be based on soil mechanics analysis or past
experience in the surrounding area. The Federal regulations at 30 CFR
816.49(a)(4)(ii) and 817.49(a)(4)(ii) allow a regulatory authority to
establish engineering design standards comparable to the 1.3 static
safety factor for impoundments not meeting the Class B or C criteria
for dams in TR-60 or the size or other criteria of 30 CFR 77.216(a).
Our technical review of Conservation Practice Standard No. 378 found
that its design standards are comparable to the 1.3 static safety
factor required for these types of impoundments. Therefore, we find the
proposed rules at 10 CSR 40-3.040(10)(L)2 and 40-3.200(10)(L)2 are no
less effective than the counterpart Federal regulations at 30 CFR
816.49(a)(4)(ii) and 817.49(a)(4)(ii), respectively.
f. Missouri added a new subsection at 10 CSR 40-3.040(10)(O) and 10
CSR 40-3.200(10)(O) entitled ``Spillways.''
(1) Missouri rules at 10 CSR 40-3.040(10)(O)2 and 40-3.200(10)(O)2
provide the spillway requirements for permanent and temporary
impoundments. They specify the design precipitation events that the
various types of impoundments must be designed and constructed to
safely pass or contain. With the following differences, Missouri's
rules at 10 CSR 40-3.040(10)(O)2 and 40-3.200(10)(O)2 are substantively
the same as the counterpart Federal regulations at 30 CFR 816.49(a)(9)
and 817.49(a)(9) for permanent and temporary impoundments with
spillways.
(a) Missouri's rules at 10 CSR 40-3.040(10)(O)2.B and 40-
3.200(10)(O)2.B contain the spillway design precipitation event
requirements for permanent and temporary impoundments meeting or
exceeding the size or other criteria of 30 CFR 77.216(a). Missouri's
rules provide that
[[Page 23596]]
the required design precipitation event for this type of impoundment is
a 100-year, 24-hour event or greater as specified by the director or
commission.
The Federal regulations at 30 CFR 816.49(a)(9)(ii) and
817.49(a)(9)(ii) specify a 100-year, 6-hour or greater design
precipitation event for this type of impoundment. We conducted a
technical review and found that overall the two are generally accepted
as comparable events (Administrative Record No. MO-662.4). The 100-
year, 24-hour precipitation event will have a higher peak discharge
than the 100-year, 6-hour precipitation event. This means that in
Missouri, the spillways for this type of impoundment will be designed
and constructed to safely pass the design precipitation event required
by the Federal regulations. Therefore, we find Missouri's rules at 10
CSR 40-3.040(10)(O)2.B and 40-3.200(10)(O)2.B are no less effective
than the counterpart Federal regulations at 30 CFR 816.49(a)(9)(ii) and
817.49(a)(9)(ii), respectively.
(b) Missouri's rules at 10 CSR 40-3.040(10)(O)2.C and 40-
3.200(10)(O)2.C contain the spillway design precipitation event
requirements for impoundments not meeting the Class B or C criteria for
dams in TR-60 or the size or other criteria of 30 CFR 77.216(a).
Missouri's rules provide that the required design precipitation event
for this type of impoundment is as specified in Table 3 of the United
States Natural Resources Conservation Service, Conservation Practice
Standard 378, ``Ponds,'' December 1998.
We conducted a technical review and found that Table 3 in
Conservation Practice Standard 378 contains design criteria for
principal and auxiliary spillways for small impoundments
(Administrative Record No. MO-662.4). Table 3 includes requirements for
sizing principal and auxiliary spillways for 10-year, 24-hour; 25-year,
24-hour; and 50-year, 24-hour design storm events. The requirements for
impoundments with watersheds of 20 acres or less includes spillways
designed for either a 10-year, 24-hour or 25-year, 24-hour design
precipitation event. The Federal regulation standard at 30 CFR
816.49(a)(9)(ii)(C) and 817.49 (a)(9)(ii)(C) for small impoundments is
a 25-year, 6-hour or greater precipitation event. The peak flow
resulting from a 10-year, 24-hour event will be slightly lower than the
peak flow resulting from the 25-year, 6-hour event. A spillway for this
type of impoundment must be designed to at least discharge the peak
flow produced by the minimum design precipitation event specified in
the Federal regulations. This issue was discussed with Missouri during
the February 13, 2001, telephone conference (Administrative Record No.
MO-662.7). Missouri explained that its policy is to require operators
to construct spillways for small impoundments that will meet a 25-year,
24-hour or greater precipitation event design standard. Missouri stated
in its letter of April 17, 2001, that its rule at 10 CSR 40-3.040(6)(I)
requires a minimum 25-year, 24-hour design event. Missouri indicated
that it will add a provision to its rules at 10 CSR 40-3.040(10)(0) and
40-3.200(10)(0) that will require a minimum 25-year, 24-hour design
storm event for any emergency or auxiliary spillway. Missouri further
stated that until the future rule change becomes effective, it will not
approve any temporary or permanent impoundments with an emergency
spillway design event less that the 25-year, 24-hour event. Missouri's
rule at 10 CSR 40-3.040(6)(I) for sedimentation ponds requires that an
appropriate combination of principal and emergency spillways be
provided to safely discharge the runoff from a 25-year, 24-hour
precipitation event or larger event required in the permit and plan.
Our technical review found that a 25-year, 24-hour precipitation event
will have a higher peak discharge than a 25-year, 6-hour precipitation
event. This means that in Missouri, the spillways for small
impoundments that control sediment will be designed and constructed to
safely pass the minimum design precipitation event required by the
Federal regulations at 30 CFR 816.49(a)(9)(ii)(2)(C) and 817.49(a)(9)
(ii)(2)(C). We are approving Missouri's rules at 10 CSR 40-
3.040(10)(O)2.C and 40-3.200(10)(O)2.C in combination with its policy
letter dated April 17, 2001, and its rule at 10 CSR 40-40-3.040(6)(I)
that requires operators to design and construct spillways for
impoundments that will safely pass a 25-year, 24-hour or greater
precipitation event.
(2) Missouri's rules at 10 CSR 40-3.040(10)(O)3 and 40-
3.200(10)(O)3 provide the requirements for temporary impoundments that
rely solely on storage capacity to control runoff from a design
precipitation event. They specify the design precipitation events that
the impoundments must be designed and constructed to contain. With the
following differences, Missouri's rules at 10 CSR 40-3.040(10)(O)3 and
40-3.200(10)(O)3 are substantively the same as the counterpart Federal
regulations at 30 CFR 816.49(c) and 817.49(c) for temporary
impoundments that rely primarily on storage to control the runoff from
a design precipitation event.
(a) Missouri's rules at 10 CSR 40-3.040(10)(O)3.B and 40-
3.200(10)(O)3.B contain the design precipitation event requirements for
temporary impoundments, with no spillways, that do not meet the Class B
or C criteria for dams in TR-60 or the size or other criteria of 30 CFR
77.216(a). These impoundments rely primarily on storage to control the
runoff from a design precipitation event. Missouri's rules specify that
this type of temporary impoundment shall be designed to control the
precipitation of a 100-year, 24-hour event.
The Federal regulations at 30 CFR 816.49(c)(2)(ii) and
817.49(c)(2)(ii) specify a 100-year, 6-hour or greater event for this
type of temporary impoundment. As discussed above under finding
3(f)(1)(a), we determined that 100-year, 6-hour and 100-year, 24-hour
events are generally accepted as comparable design precipitation
events. However, the total runoff from the 100-year, 24-hour
precipitation event will be larger than from a 100-year, 6-hour event
with a similar return period. This means that in Missouri, temporary
impoundments without spillways that do not meet the Class B or C
criteria for dams in TR-60 or the size or other criteria of 30 CFR
77.216(a) will be designed and constructed to safely control the runoff
from the minimum design precipitation event required by the Federal
regulations. Therefore, we find that Missouri's rules at 10 CSR 40-
3.040(10)(O)3.B and 40-3.200(10)(O)3.B are no less effective than the
counterpart Federal regulations at 30 CFR 816.49(c)(2)(ii) and
817.49(c)(2)(ii).
(b) Missouri's rules at 10 CSR 40-3.040(10)(O)3.C and 40-
3.200(10)(O)3.C provide spillway design, precipitation event
requirements for permanent and temporary impoundments. These paragraphs
do not contain any requirements for temporary impoundments that rely
solely on storage capacity to control the runoff from a design
precipitation event, which is the intended purpose of the provisions in
10 CSR 40-3.040(10)(O)3 and 40-3.200(10)(O)3. Instead, they contain the
same requirements as Missouri's proposed rules at 10 CSR 40-
3.040(10)(O)2.C and 40-3.200(10)(O)2.C for impoundments that rely on
spillways to safely pass the applicable design precipitation event.
We find that Missouri's rules at 10 CSR 40-3.040(10)(O)3.C and 40-
3.200(10)(O)3.C are not consistent with the other requirements of
Missouri's rules at 10 CSR 40-3.040(10)(O)3 and 40-3.200(10)(O)3 or
with the Federal
[[Page 23597]]
regulation requirements at 30 CFR 816.49(c) and 817.49(c) for temporary
impoundments that rely primarily on storage to control the runoff from
a design precipitation event. Further, we are requiring Missouri to
remove these provisions from its program. In its January 12, 2001,
letter, Missouri indicated that the two paragraphs (10 CSR 40-
3.040(10)(O)3.C and 10 CSR 40-3.200(10)(O)3.C) were inappropriate in
this part of its program and will be deleted in a future rulemaking.
g. 10 CSR 40-3.040(14) and 10 CSR 40-3.200(13)(B) Transfer of
Wells. Missouri revised 10 CSR 40-3.040(14)(B)3 and 40-3.200(13)(B)3 to
require that upon transfer of a well, the transferee must assume
primary responsibility for compliance with 10 CSR 40-3.020 and 40-
3.180, respectively, and those rules of the Wellhead Protection
Section, Division of Geology and Land Survey, at 10 CSR 23, Chapter 3,
applicable to the well. The current rules just require compliance with
10 CSR 40-3.020 and 40-3.180, which are counterparts to the Federal
regulations at 30 CFR 816.13 through 15 and 817.13 through 15,
respectively. The Wellhead Protection Section, Division of Geology and
Land Survey rules provide requirements that owners must meet for
protection of groundwater quality and resources and maintenance of
wells. The Federal regulations at 30 CFR 816.41(g) and 817.41(g) allow
wells to be transferred to another party for further use if approved by
the regulatory authority and if the transfer complies with State and
local law. Therefore, we find that requiring coal mine operators to
meet other State regulations relating to water wells will not make
Missouri's rules at 10 CSR 40-3.040(14)(B)3 and 40-3.200 (13)(B)3 less
effective than the counterpart Federal regulations.
4. 10 CSR 40-3.050 Requirements for the Use of Explosives. At 10
CSR 40-3.050(1)(D)1.A, Missouri proposes to clarify that an operator
must submit a blast design if blasting operations will be conducted
within 1000 feet of a dam that is outside the permit area. At 10 CSR
40-3.050(2)(A), Missouri proposes to clarify that the operator must
notify owners of dams that are located within one-half mile of the
permit area at least forty days before initiation of blasting and tell
them how to request a preblast survey.
Missouri's currently approved rules require a blast design for dams
and an opportunity for a preblasting survey for owners of dams because
of each rule's reference to structures listed in 10 CSR 40-
3.050(5)(D)1. The structures listed in 10 CSR 40-3.050(5)(D)1 include
dams. We find that Missouri's clarification of its rules at 10 CSR 40-
3.050(1)(D)1.A and 10 CSR 40-3.050(2)(A) will not make them less
effective than the counterpart Federal regulations at 30 CFR
816.61(d)(i) and 816.62(a), respectively.
5. 10 CSR 40-3.090, Surface Mining Operations, and 10 CSR 40-3.240,
Underground Mining Operations: Air Resource Protection. On September
29, 1992, we required Missouri to amend its rules at 10 CSR 40-3.090
and 40-3.240 by providing performance standards that address air
quality in a manner no less effective than the Federal regulations at
30 CFR 816.95(a) and 817.95(a). We codified this requirement at 30 CFR
925.16(p)(4). The Federal regulations require that all exposed surface
areas be protected and stabilized to effectively control erosion and
air pollution attendant to erosion.
a. Missouri revised 10 CSR 40-3.090 by adding the following new
provision at the end of the previously approved rule language:
All exposed surface areas shall be protected and stabilized to
effectively control erosion and air pollution attendant to erosion
according to 10 CSR 40-3.040(5)(A).
We find that Missouri's new provision at 10 CSR 40-3.090 is
substantively identical to the Federal regulation requirement for
protection of air resources at 30 CFR 816.95(a), and we are approving
it. Missouri's new provision also satisfies a portion of the required
amendment that we codified at 30 CFR 925.16(p)(4), and it will be
modified accordingly.
b. Missouri removed the existing requirements at 10 CSR 40-3.240
and added the following new requirement:
All exposed surface areas shall be protected attendant to
erosion according to 10 CSR 40-3.200(5)(A).
The counterpart Federal regulation at 30 CFR 817.95(a) requires all
exposed surface areas to be protected ``and stabilized to effectively
control erosion and air pollution'' attendant to erosion. We find that
Missouri's revised rule at 10 CSR 40-3.240 is less effective than the
Federal regulation because it is missing pertinent requirements
relating to control of erosion and air pollution. Therefore, we are not
approving Missouri's revised rule to the extent that it is missing
these requirements, and we are modifying 30 CFR 925.16(p)(4) to require
further revision to 10 CSR 40-3.240.
6. 10 CSR 40-3.110(6) Regrading or Stabilizing Rills and Gullies.
On July 13, 1995 (60 FR 36046), we required Missouri to 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. We codified this requirement at 30 CFR
925.16(q)(2). In response to this requirement, Missouri revised 10 CSR
40-3.110(6)(B) to read as follows:
On areas that have been previously mined, the requirements for
regrading or stabilizing rills and gullies pursuant to subsection
(6)(A) apply after final grading and placement of topsoil or the
best available topsoil substitute.
We find that Missouri's revised rule at 10 CSR 40-3.110(6)(B) meets
the requirements of the Federal regulations at 30 CFR 816.106(a) and
816.102(d)(2) concerning redistribution of topsoil on previously mined
areas, and we are approving it. We also find that Missouri's revision
satisfies the required amendment at 30 CFR 925.16(q)(2), which we are
removing.
7. 10 CSR 40-3.120 and 10 CSR 40-3.270 Revegetation Requirements.
Missouri proposed several changes to its rules at 10 CSR 40-3.120 for
surface mining operations and 10 CSR 40-3.270 for underground mining
operations.
a. 10 CSR 40-3.120(5) and 10 CSR 40-3.270(5) Grazing. On September
29, 1992 (60 FR 44666), we required Missouri to revise 10 CSR 40-
3.120(5) and 40-3.270(5) by removing or defining the term ``range
land.'' We codified this requirement at 30 CFR 925.16(p)(5). In
response to this requirement, Missouri removed the term ``range land''
from its provisions for grazing at 10 CSR 40-3.120(5) and 40-3.270(5).
Based on the discussion in finding 19 of the September 29, 1992,
Federal Register (57 FR 44665), we find that, with the removal of the
term ``range land,'' Missouri's requirements at 10 CSR 40-3.120(5) and
40-3.270(5) for grazing and pasture land are no less effective than the
Federal regulation requirements at 30 CFR 816.116(b)(1) and
817.116(b)(1), respectively. We also find that Missouri has satisfied
the required amendment at 30 CFR 925.16(p)(5), which we are removing.
b. 10 CSR 40-3.120(8) and 10 CSR 40-3.270(8) Reclamation Schedule.
Missouri replaced all instances of the term ``sedimentation ponds''
with the term ``siltation structures'' in its rules at 10 CSR 40-
3.120(8)(A)4, (B), and (D) and 10 CSR 40-3.270(8) (A)4 and (B). Because
sedimentation ponds are included in the Missouri and the Federal
definitions of ``siltation structure'' at 10 CSR 40-8.010(1)(A)89 and
30 CFR 701.5, respectively, we find that Missouri's changes will not
make its rules less effective than the
[[Page 23598]]
counterpart Federal regulations. Also, because the term ``siltation
structures,'' as defined, includes a broader range of sediment control
structures than the term ``sedimentation ponds,'' we find that
Missouri's revisions clarify that all sediment control structures, not
just sedimentation ponds, are included in the reclamation schedule
requirements.
8. 10 CSR 40-3.140 Road and Other Transportation Requirements. On
September 29, 1992 (60 FR 44669), we required Missouri to revise 10 CSR
40-3.140(1)(A) by requiring that all exposed surfaces be stabilized in
accordance with current prudent engineering practices. We codified this
requirement at 30 CFR 925.16(p)(9). In response to this requirement,
Missouri removed the word ``road'' from the phrase ``as well as dust
occurring on other exposed road surfaces.'' Missouri's revised rule at
10 CSR 40-3.140(1) (A) now requires that Class 1 roads be maintained 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.
Because the Federal regulation at 30 CFR 816.150(b)(1) provides the
same requirements for roads, we find that Missouri's revised rule is no
less effective than the Federal regulation. We also find that Missouri
has satisfied the required amendment at 30 CFR 925.16(p)(9), which we
are removing.
D. 10 CSR 40-6 Permitting Requirements for Permits, Permit
Applications, and Coal Exploration
1. 10 CSR 40-6.010(4)(B)2 Renewal of Valid Permits. Missouri
corrected a citation reference in its existing provision at 10 CSR 40-
6.010(4)(B)2 by changing ``10 CSR 40-6.080(5) and (6)'' to ``10 CSR 40-
6.090(5) and (6).'' Missouri also added the following new provision to
the end of 10 CSR 40-6.010(4)(B)2:
A permittee need not renew the permit if no surface coal mining
operations will be conducted under the permit and solely reclamation
activities remain to be done. Obligations established under a permit
continue until completion of surface coal mining and reclamation
operations, regardless of whether the authorization to conduct
surface coal mining operations has expired or has been terminated,
revoked, or suspended.
As revised, the existing provision in 10 CSR 40-6.010(4)(B)2
requires a permittee to file an application for renewal of a permit
under 10 CSR 40-6.090(5) and (6) at least 120 days before the
expiration of the permit. The corrected citation reference is
appropriate because 10 CSR 40-6.090(5) and (6) contain Missouri's
requirements for permit renewals. This provision is substantively the
same as the Federal regulation at 30 CFR 774.15(b)(1). Missouri's new
provision in 10 CSR 40-6.010(4)(B)2 is substantively the same as the
counterpart Federal provision in 30 CFR 773.11(a). Based on the above
discussion, we find that Missouri's provisions at 10 CSR 40-
6.010(4)(B)2 are no less effective than the counterpart Federal
regulation provisions at 30 CFR 774.15(b)(1) and 773.11(a),
respectively.
2. 10 CSR 40-6.010(6)(A) Permit Fees. Missouri removed the existing
third sentence that specified that ``[a]ll permits shall be on a yearly
basis and shall require the entire initial fee and the acreage fee for
that year.'' Missouri also revised the existing fifth sentence to read
as follows:
Afterwards and until the operator obtains the final liability
release on all lands covered by the permit, the annual fee and
acreage fee shall be paid as a condition to and prior to operating
for that permit year.
Missouri's removal of the existing third sentence eliminates an
apparent conflict with other provisions in the rule that allow multiple
year permits. Missouri revised the existing fifth sentence to clarify
that the annual fee and acreage fee must be paid until the operator
obtains the final liability release on all permitted acres. The Federal
regulation at 30 CFR 777.17 requires the regulatory authority to
determine the amount of the permit application fee and allows the
regulatory authority to develop procedures for the fee to be paid over
the term of the permit. Based on the above discussion, we find that
Missouri's revisions will not make its previously approved rule less
effective than the counterpart Federal regulation.
3. 10 CSR 40-6.030 and 10 CSR 40-6.100 Minimum Requirements for
Legal, Financial, Compliance and Related Information. We are approving
Missouri's proposed revisions to its rules at 10 CSR 40-6.030 for
surface mining operations and 10 CSR 40-6.100 for underground mining
operations. Missouri proposed the revisions to clarify previously
approved provisions or to meet the required amendments codified at 30
CFR 925.16(p)(10) and (11) on September 29, 1992.
On December 19, 2000 (65 FR 79582), we revised the Federal
counterparts to the rules that Missouri is proposing to amend. Because
Missouri submitted its amendment before the date that we published our
new regulations, we are using previous versions of the Federal
regulations as our standards of comparison. In accordance with the
requirements and procedures in 30 CFR 732.17(d) through (f), we will
notify Missouri at a later time if we determine that our revised
regulations will require additional revisions to the Missouri program.
a. Missouri clarified the introductory paragraph of 10 CSR 40-
6.030(1)(C) by adding the phrase ``each application shall contain''
after the words ``as applicable.'' The revised paragraph reads as
follows:
For each person who owns or controls the applicant under the
definition of owned or controlled and owns or controls in 10 CSR 40-
6.010(2)(E), as applicable each application shall contain--
We find that Missouri's clarification did not change the meaning of
this previously approved rule. We also find that the introductory
paragraph of 10 CSR 40-6.030(1)(C) is substantively the same as the
introductory paragraph of the former Federal regulation at 30 CFR
778.13(c) that was promulgated on April 21, 1997.
b. Missouri revised the introductory paragraph of 10 CSR 40-
6.030(1)(D) to read as follows:
For any surface coal mining operation owned or controlled by the
applicant under the definition of owned or controlled and owns or
controls in 10 CSR 40-6.010(2)(E), each application shall contain--
We find that Missouri's revised introductory paragraph is
substantively the same as the introductory paragraph of the former
Federal regulation at 30 CFR 778.13(f) that was promulgated on April
21, 1997.
c. 10 CSR 40-6.030(1)(I) and 10 CSR 40-6.100(1)(I) Identification
of Interests and Violation Information Format. On September 29, 1992
(57 FR 44671), we required Missouri to revise its rules to require that
a permit applicant submit ownership and control and violation
information in a format prescribed by OSM. We codified this requirement
at 30 CFR 925.16(p)(10). In response to this requirement, Missouri
revised its rules at 10 CSR 40-6.030(1)(I) and 40-6.100(1)(I) to
require the applicant to submit the information required by 10 CSR 40-
6.010(1) and (2) and 40-6.100(1) and (2) in any prescribed format
issued by the ``Office of Surface Mining Reclamation and Enforcement
(OSMRE).''
We find that Missouri's revised rules at 10 CSR 40-6.030(1)(I) and
40-6.100(1)(I) are substantively the same as the former Federal
regulation at 30 CFR 778.13(l) that was promulgated on April 21, 1997,
and they satisfy the required amendment at 30 CFR 925.16(p)(10), which
we are removing.
d. 10 CSR 40-6.030(2)(C) Surface Mining Permit Applications--
[[Page 23599]]
Compliance Information. On September 29, 1992 (57 FR 44671), we
required Missouri to revise 10 CSR 40-6.030(2)(C) to require any
violation of SMCRA to be listed by the operator to make this regulation
no less effective than the Federal regulation at 30 CFR 778.14(c). We
codified this requirement at 30 CFR 925.16(p)(11). In response to this
requirement, Missouri revised 10 CSR 40-6.030(2)(C) to read as follows:
A list of all violation notices received by the applicant during
the three year period preceding the application date, and a list of
all unabated cessation orders and unabated violation notices
received prior to the date of the application by any surface coal
mining and reclamation operation that is deemed or presumed to be
owned or controlled by the applicant under the definition of ``owned
or controlled'' and ``owns or controls'' in 10 CSR 40-6.010(2)(E) of
this chapter. For each notice of violation issued pursuant to 10 CSR
40-8.030(7) or under the Federal or State program for which the
abatement period has not expired, the applicant must certify that
such notice of violation is in the process of being corrected to the
satisfaction of the agency with jurisdiction over the violation. For
each violation notice or cessation order reported, the lists shall
include the following information, as applicable:
A. Any identifying numbers for the operation, including the
Federal or State permit number and MSHA number, the dates of the
violation notice and MSHA number, the name of the person to whom the
violation notice was issued, and the name of the issuing regulatory
authority, department or agency;
B. A brief description of the violation alleged in the notice;
C. The date, location and type of any administrative or judicial
proceedings initiated concerning the violation, including, but not
limited to, proceedings initiated by any person identified in
subsection (C) of this section to obtain administrative or judicial
review of the violation;
D. The current status of the proceedings and of the violation
notice; and
E. The actions, if any, taken by any person identified in
subsection (C) of this section to abate the violation.
We find that Missouri's revised rule at 10 CSR 40-6.030(2)(C) is
substantively the same as the former counterpart Federal regulation at
30 CFR 778.14(c) that was promulgated on April 21, 1997. Missouri's
revised rule also satisfies a portion of the required amendment at 30
CFR 925.16(p)(11), which we are removing.
e. 10 CSR 40-6.100(2)(C) Underground Mining Permit Applications--
Compliance Information. On September 29, 1992 (57 FR 44671), we
required Missouri to revise 10 CSR 40-6.100(2)(C) to require any
violation of SMCRA to be listed by the operator to make this regulation
no less effective than the Federal regulation at 30 CFR 778.14(c). We
codified this requirement at 30 CFR 925.16(p)(11). In response to this
requirement, Missouri revised 10 CSR 40-6.100(2)(C) to read as follows:
For any violation of a provision of the Act, or of any law, rule
or regulation of the United States, or of any State law, rule or
regulation enacted pursuant to Federal law, rule or regulation
pertaining to air or water environmental protection incurred in
connection with any surface coal mining operation, a list of all
violations notices received by the applicant during the three (3)
year period preceding the application date, and a list of all
unabated cessation orders and unabated air and water quality
violation notices received prior to the date of the application by
any surface coal mining and reclamation operation owned or
controlled by either the applicant or by any person who owns or
controls the applicant. For each violation notice or cessation order
reported, the lists shall include the following information, as
applicable:
1. Any identifying numbers for the operation, including the
Federal or State permit number and MSHA number, the dates of
issuance of the violation notice and MSHA number, the name of the
person to whom the violation notice was issued, and the name of the
issuing regulatory authority, department or agency;
2. A brief description of the violation alleged in the notice;
3. The date, location and type of any administrative or judicial
proceedings initiated concerning the violation, including, but not
limited to, proceedings initiated by any person identified in
subsection (C) of this section to obtain administrative or judicial
review of the violation;
4. The current status of the proceedings and of the violation
notice; and
5. The actions, if any, taken by any person identified in
subsection (C) of this section to abate the violation.
We find that Missouri's revised rule at 10 CSR 40-6.100(2)(C) is
substantively the same as the former counterpart Federal regulation at
30 CFR 778.14(c) that existed on September 29, 1992, the date that we
required Missouri to revise its rule. Missouri's revision also
satisfies the remaining portion of the required amendment at 30 CFR
925.16(p)(11) by requiring that ``any violation of a provision of the
Act'' be listed by the operator. Missouri's rule at 10 CSR 40-
8.010(1)(A)3 defines ``Act'' to mean SMCRA.
4. 10 CSR 40-6.050 and 10 CSR 40-6.120 Minimum Requirements for
Reclamation and Operations Plan. Missouri proposed changes to its rules
at 10 CSR 40-6.050 for surface mining operations and 10 CSR 40-6.120
for underground mining operations.
a. Missouri changed the term ``sedimentation pond'' to the term
``siltation structure'' in its rules at 10 CSR 40-6.050(5)(B)11, 40-
6.050(5)(C)1, 40-6.120(14)(B)10, and 40-6.120(14)(C)1. Because
sedimentation ponds are included in the Missouri and the Federal
definitions of ``siltation structure'' at 10 CSR 40-8.010(1)(A)89 and
30 CFR 701.5, respectively, we find that Missouri's changes will not
make its rules less effective than the counterpart Federal regulations.
Also, because the term ``siltation structures,'' as defined, includes a
broader range of sediment control structures than the term
``sedimentation ponds,'' we find that Missouri's revisions clarify that
all sediment control structures must be shown on the maps and plans of
the proposed mine operation.
b. 10 CSR 40-6.050(5) Operations Plan--Maps and Plans. At 10 CSR
40-6.050(5) (C), Missouri removed the provision that would allow, with
certain exceptions, a professional geologist experienced in the design
and construction of impoundments to prepare and certify maps, plans,
and cross-sections required under 10 CSR 40-6.050(5) (B)4, 5, 6, 10,
and 11. As revised, Missouri's rule requires all maps, plans, and
cross-sections to be prepared and certified by a qualified registered
professional engineer, with assistance from experts in related fields
such as land surveying and landscape architecture.
With identified exceptions, the counterpart Federal regulation at
30 CFR 780.14(c) requires a qualified registered professional engineer,
a professional geologist, or a qualified registered professional land
surveyor to prepare and certify the specified cross sections, maps, and
plans. A qualified registered professional engineer must certify maps,
plans, and cross-sections for the identified exceptions, which include
impoundments, siltation structures, excess spoil disposal sites, and
coal mine waste disposal sites. Because only a qualified registered
professional engineer can prepare and certify the specified cross
sections, maps, and plans under the Missouri rule, we find that
Missouri's revised rule at 10 CSR 40-6.050(5)(C) is no less effective
than the counterpart Federal regulation.
c. 10 CSR 40-6.050(7) and 40-6.120(12) Fish and Wildlife Plan. On
July 13, 1995 (60 FR 36047), we required Missouri to revise 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 be consistent with, respectively, its
performance standards for protection of fish, wildlife, and related
environmental values at 10 CSR 40-3.100 and 40-3.250. We codified this
requirement at 30 CFR 925.16(u). At 10 CSR 40-6.050(7)(D)1, Missouri
proposed to require that each fish and
[[Page 23600]]
wildlife plan description be consistent with the requirements of 10 CSR
40-6.050 and 40-3.100. At 10 CSR 40-6.120(12)(D)1, Missouri proposed to
require that each fish and wildlife plan description be consistent with
the requirements of 10 CSR 40-6.120 and 40-3.250. Missouri's rules at
10 CSR 40-3.100 for surface coal mining and 40-3.250 for underground
coal mining contain performance requirements for the protection of
fish, wildlife, and related environmental values.
We find that Missouri's revised rules at 10 CSR 40-6.050(7)(D)1 and
40-6.120(12)(D)1 are substantively the same as the counterpart Federal
regulations at 30 CFR 780.16(b)(1) and 784.21(b)(1), respectively, and
we are approving them. We also find that Missouri's revisions satisfy
the required amendment at 30 CFR 925.16(u), which we are removing.
d. 10 CSR 40-6.050(11) Reclamation Plan--Ponds, Impoundments,
Banks, Dams and Embankments. At 10 CSR 40-6.050(11)(A)1.A, Missouri
removed the provision that would allow a professional geologist to
prepare and certify a general plan for each siltation structure, water
impoundment, and coal processing waste bank, dam, or embankment within
the mine plan area. As revised, Missouri's rule requires general plans
for these structures to be prepared and certified by a qualified
registered professional engineer, with assistance from experts in
related fields such as land surveying and landscape architecture.
The counterpart Federal regulation at 30 CFR 780.25(a)(1)(i)
requires a qualified registered professional engineer, a professional
geologist, or a qualified registered professional land surveyor, with
assistance from experts in related fields such as landscape
architecture, to prepare and certify general plans for these
structures. Because use of the word ``or'' in the Federal regulation
would allow any one of the listed professionals to prepare and certify
general plans, we find that Missouri's revised rule at 10 CSR 40-
6.050(11)(A)1.A is no less effective than the counterpart Federal
regulation at 30 CFR 780.25(a)(1)(i).
e. 10 CSR 40-6.050(17) and 40-6.120(15) Transportation Facilities.
On September 29, 1992 (57 FR 44671), we required Missouri to provide
proof that land surveyors are authorized in the State to prepare and
certify plans and drawings for road design or delete the provision from
10 CSR 40-6.050(17)(B) and 40-6.120(15)(B). We codified this
requirement at 30 CFR 925.16(p)(12). In response to this requirement,
Missouri removed the language ``or a qualified registered professional
land surveyor'' from its provisions at 10 CSR 40-6.050(17)(B) and 40-
6.120(15)(B). Missouri's revised rules require the plans and drawings
for each class I and II road to be prepared by, or under the direction
of, and certified by a qualified registered professional engineer.
In those States that do not authorize land surveyors to certify the
design of roads, the Federal regulations at 30 CFR 780.37(b) and
784.24(b) require the plans and drawings for roads to be prepared by,
or under the direction of, and certified by a qualified registered
professional engineer. Therefore, we find that Missouri's revised rules
at 10 CSR 40-6.050(17)(B) and 40-6.120(15)(B) are no less effective
than the counterpart Federal regulations at 30 CFR 780.37(b) and
784.24(b), respectively. We also find that Missouri's revisions satisfy
the requirements of 30 CFR 925.16(p)(12), which we are removing.
5. 10 CSR 40-6.070 Review, Public Participation and Approval of
Permit Applications and Permit Terms and Conditions.
a. 10 CSR 40-6.070(3) Opportunity for Submission of Written
Comments on Permit Applications. At 10 CSR 40-6.070(3)(B), Missouri
proposed to require that written comments on permit applications by
public entities notified under subsections (2)(B) and (C) be submitted
to the commission and director within 30 days after the last
publication of the newspaper advertisement required by subsection
(2)(A). Missouri previously required that written comments be submitted
within 60 days after the application is filed.
The counterpart Federal regulation at 30 CFR 773.13(b)(1) requires
that written comments on permit applications by these public entities
be submitted within a reasonable time established by the regulatory
authority. We find that Missouri's proposed time frame is reasonable,
and we are approving the revisions to 10 CSR 40-6.070(3)(B).
b. 10 CSR 40-6.070(4) Right to File Written Objections. At 10 CSR
40-6.070(4) (A), Missouri is proposing to require that written
objections to an initial, renewed, or revised application for a permit
be filed within 30 days after the last publication of the newspaper
advertisement required by subsection (2)(A). Missouri previously
required that written objections be filed within 60 days after the
application is filed.
Missouri's revised rule contains substantively the same
requirements for filing written objections as the counterpart Federal
regulation at 30 CFR 773.13(b)(2), including the 30-day time frame.
Therefore, we find that Missouri's rule at 10 CSR 40-6.070(4)(A) is no
less effective than the Federal regulation.
6. 10 CSR 40-6.090(4) Permit Revisions. Missouri is revising 10 CSR
40-6.090 (4)(B)2 to read as follows:
The scale or extent of permit application information
requirements and procedures, including notice and hearings,
applicable to revision requests shall be sufficient to demonstrate
compliance with all applicable rules. Any application for a revision
which proposes significant alterations in the operations described
in the materials submitted in the application for the original
permit under 10 CSR 40-6.030, 10 CSR 40-6.040, 10 CSR 40-6.050, 10
CSR 40-6.060, 10 CSR 40-6.100, 10 CSR 40-6.110 or 10 CSR 40-6.120 or
in the conditions of the original permit, at a minimum, shall be
subject to the requirements of 10 CSR 40-6.070 and 10 CSR 40-6.080.
Missouri's rule at 10 CSR 40-6.070 contains requirements for
review, public participation, and approval of permit applications. It
includes Missouri's provisions for permit terms and conditions.
Missouri's rule at 10 CSR 40-6.080 contains requirements for
administrative and judicial review of decisions on permit applications.
The Federal regulation at 30 CFR 774.13(b)(2) requires the
regulatory authority to establish guidelines for the scale or extent of
revisions for which all the permit application information requirements
and procedures, including notice, public participation, and notice of
decision requirements shall apply. We find that Missouri's revised rule
at 10 CSR 40-6.090(4)(B)(2) is consistent with this Federal
requirement, and we are approving it.
E. 10 CSR 40-7 Bond and Insurance Requirements for Surface Coal Mining
and Reclamation Operations
1. 10 CSR 40-7.011(6) Bond Requirements--Type of Bonds. On
September 29, 1992 (57 FR 44673), we required Missouri to revise its
rule at 10 CSR 40-7.011(6)(D)8 to provide that, upon issuance of a
cessation order, mining operations shall not resume until the
regulatory authority has determined that an acceptable bond has been
posted as required by the Federal regulations at 30 CFR 800.16(e)(2).
We codified this requirement at 30 CFR 925.16(p)(14). In response to
this requirement, Missouri revised its rule provisions at 10 CSR 40-
7.011(6)(A)8 for surety bonds and 10 CSR 40-7.011(6)(D)8 for self-bonds
to require that when a cessation order is issued for failure to replace
bond coverage, mining operations shall not resume until the director
has determined that an acceptable bond has been posted.
[[Page 23601]]
Missouri's revised provisions at 10 CSR 40-7.011(6)(A)8 and 40-
7.011(6)(D)8 have substantively the same requirements for replacing
bond coverage as the counterpart Federal regulations at 30 CFR
800.16(e) for surety bonds and 800.23(g) for self-bonds. Therefore,
Missouri's revised rules are no less effective than the counterpart
Federal regulations. Missouri's revision to 10 CSR 40-7.011(6)(D)(8)
satisfies the required amendment at 30 CFR 925.16(p)(14), which we are
removing.
2. 10 CSR 40-7.021 Duration and Release of Reclamation Liability.
a. 10 CSR 40-7.021(1)(C) and (D)/40-7.021(2)(B)5 and 6 Termination
of Jurisdiction. On September 29, 1992 (57 FR 44674), we required
Missouri to relocate its provisions at 10 CSR 40-7.021(2)(B)5 and 6
that addressed termination of jurisdiction to an appropriate location
in its regulations. Missouri had placed these provisions under its
phase II bond release requirements. We were concerned that this
location could lead to possible misinterpretation of the requirements
for phase II bond release and termination of jurisdiction. We codified
this requirement at 30 CFR 925.16(p)(16). In response to the required
amendment, Missouri removed its provisions from 10 CSR 40-7.021(2)(B)5
and 6 and added them to 10 CSR 40-7.021(1)(C) and (D) under its period
of liability requirements.
As discussed in finding 51 of the September 29, 1992, Federal
Register, Missouri's rules for termination of jurisdiction are
substantively the same as the counterpart Federal regulations at 30 CFR
700.11(d). Both the Federal regulations and Missouri's rules clarify
the circumstances under which a regulatory authority may terminate or
reassert jurisdiction for the reclaimed sites of completed surface coal
mining and reclamation operations. Because regulatory jurisdiction may
only be terminated upon the final release of a performance bond or,
where no bond was required, upon a finding that all reclamation had
been successfully completed, we find locating these provisions under
its requirements concerning the period of reclamation liability at 10
CSR 40-7.021(1) is appropriate. Therefore, we are approving Missouri's
deletion of 10 CSR 40-7.021(2)(B)5 and 6 and addition of 10 CSR 40-
7.021(1)(C) and (D). We are also removing the required amendment at 30
CFR 925.16(p)(16).
b. 10 CSR 40-7.021(2) Criteria for Release of Reclamation
Liability. Missouri replaced the term ``sediment ponds'' with the term
``siltation structures'' in its rule at 10 CSR 40-7.021(2)(A). The
revised provision provides that phase I bond must be retained on
unreclaimed temporary structures, such as roads, siltation structures,
diversions and stockpiles.
Because the term ``siltation structures,'' as defined in Missouri's
rules at 10 CSR 40-8.010(1)(A)89 and the Federal regulations at 30 CFR
701.5, includes a broader range of sediment control structures than the
term ``sedimentation ponds,'' we find that Missouri's revision will
provide additional guidance for retention of phase I bond for
unreclaimed temporary structures.
c. 10 CSR 40-7.021(3) Bond Release Application Procedures. Missouri
added the following new procedure at 10 CSR 40-7.021(3)(C):
(C) At the time of final or phase III bond release submittal,
the operator shall include evidence that an affidavit has been
recorded with the recorder of deeds in the county where the mined
land is located generally describing the parcel or parcels of land
where operations such as underground mining, auger mining, covering
of slurry ponds, or other underground activities occurred which
could impact or limit future use of that land. This requirement
shall be applicable to mined land where phase I reclamation was
completed on or after September 1, 1992.
There is no counterpart Federal regulation. However, we find that
this new requirement does not conflict with any existing Federal or
State requirements concerning performance bond release. Therefore, 10
CSR 40-7.021(3)(C) will not make Missouri's rules concerning
performance bond release at 10 CSR 40-7.021 less effective than the
counterpart Federal regulations at 30 CFR 800.40.
F. 10 CSR 40-8 Definitions and General Requirements
1. 10 CSR 40-8.010(1)(A)12 Definition of Best Technology Currently
Available. Missouri replaced the term ``sedimentation ponds'' with the
term ``siltation structures,'' in its definition of ``best technology
currently available.''
Because the term ``siltation structures'' provides a broader
classification of sediment control structures than the term
``sedimentation ponds'' and because sedimentation ponds are included in
the Missouri and the Federal definitions of ``siltation structure'' at
10 CSR 40-8.010(1)(A)89 and 30 CFR 701.5, respectively, we find that
Missouri's revision will not make its definition of ``best technology
currently available'' less effective than the counterpart Federal
definition at 30 CFR 701.5.
2. 10 CSR 40-8.010(1)(A)87 and 40-8.010(1)(A)89 Definitions of
Sedimentation Pond and Siltation Structure, respectively. Missouri
removed its definition of ``sedimentation pond'' at 10 CSR 40-
8.010(1)(A)87 and added its substantive provisions to the following new
definition of ``siltation structure'' at 10 CSR 40-8.010(1)(A)89:
Siltation structure means a sedimentation pond, a series of
sedimentation ponds, or other treatment facility, it also means a
primary sediment control structure designed, constructed and
maintained in accordance with 10 CSR 40-3.040(6) and including, but
not limited to, barrier, dam or excavated depression which slows
down water runoff to allow sediment to settle out. A siltation
structure shall not include secondary sedimentation control
structures, such as straw dikes, riprap, check dams, mulches,
dugouts and other measures that reduce overland flow velocity,
reduce runoff volume or trap sediment, to the extent that those
secondary sedimentation structures drain to the siltation structure.
The counterpart Federal regulation at 30 CFR 701.5 defines
``siltation structure'' to mean a sedimentation pond, a series of
sedimentation ponds, or other treatment facility. As shown above,
Missouri's proposed definition of ``siltation structure'' at 10 CSR 40-
8.010(1)(A)89 contains the language from the Federal definition and the
previously approved language from its definition of ``sedimentation
pond'' at 10 CSR 40-8.010(1)(A)87. As discussed throughout this
document, Missouri replaced all instances of the term ``sedimentation
pond'' with the term ``siltation structure'' in its rules at 10 CSR 40.
Because Missouri no longer uses the term ``sedimentation pond'' in its
rules and because Missouri added the substantive language from its
currently approved definition of ``sedimentation ponds'' to its
definition of ``siltation structure,'' we find that Missouri's removal
of its definition of ``sedimentation pond'' will not make its rules
less effective than the Federal regulations. Also, because Missouri's
definition of ``siltation structure'' at 10 CSR 40-8.010(1)(A)89
includes the language from the Federal definition of ``siltation
structure'' at 30 CFR 701.5, we find that Missouri's definition is no
less effective than the Federal definition.
3. 10 CSR 40-8.030(1) Inspections. On September 29, 1992 (57 FR
44675), we required Missouri to revise 10 CSR 40-8.030(1)(F) and (G) to
remove limitations regarding the required number of inspections of
abandoned mine sites. We codified this requirement at 30 CFR
925.16(p)(18). In response to this requirement, Missouri proposed
revisions to its regulations at 10 CSR 40-8.030(1)(F)4.A and 40-
8.030(1)(G).
[[Page 23602]]
Missouri revised 10 CSR 40-8.030(1)(F)4.A by requiring a site to be
classified as abandoned only in cases where a permit has either expired
or been revoked. Missouri's revised rule is substantively identical to
the counterpart Federal regulation at 30 CFR 840.11(g)(4)(i). Missouri
revised 10 CSR 40-8.030(1)(G) by removing its existing provisions and
adding new provisions that require Missouri to inspect abandoned sites
on a frequency commensurate with the public health and safety and
environmental conditions present. Missouri must always perform at least
one complete inspection per calendar year for each abandoned site.
Missouri's revised rule incorporates criteria that must be taken into
consideration and documented before it can reduce inspection
frequencies at an abandoned site. We find that Missouri's new
provisions are substantively identical to the Federal regulation
provisions at 30 CFR 840.11(h). We also find that Missouri's revisions
at 10 CSR 40-8.030(1)(F)4.A and 40-8.030(1)(G) removed the previous
limitations regarding the required number of inspections of abandoned
mine sites and satisfied the required amendment at 30 CFR
925.16(p)(18). Therefore, we are approving 10 CSR 40-8.030(1)(F)4.A and
40-8.030(1)(G), and we are removing the required amendment at 30 CFR
925.16(p)(18).
4. 10 CSR 40-8.070(2)(C) Exemption for Coal Extraction Incidental
to the Extraction of Other Minerals.
a. 10 CSR 40-8.070(2)(C)1.A Definition of Cumulative Measurement
Period. Missouri's current rule at 10 CSR 40-8.070(2)(C)1.A(II)(a)
requires that, for coal or other minerals extracted prior to November
1, 1990, a person with an approved exemption for coal extraction
incidental to the extraction of other minerals submit a written report
of cumulative production and revenue every October after that. On
September 29, 1992, we required Missouri to amend 10 CSR 40-
8.070(2)(C)1.A(II) to provide appropriate dates for reporting of
cumulative production that are no earlier than the date Missouri's
October 10, 1990, amendment is published in the Federal Register as a
final rule. We codified this requirement at 30 CFR 925.16(p)(20). In
response to this requirement, Missouri amended 10 CSR 40-
8.070(2)(C)1.A(II)(a) to require that, for coal or other minerals
extracted prior to October 1, 1990, a person with an approved exemption
for coal extraction incidental to the extraction of other minerals
submit an annual written report of cumulative production and revenue on
September 30, 1992, and every September 30 after that.
Missouri's October 10, 1990, amendment was published in the Federal
Register on September 29, 1992. Therefore, the initial annual reporting
date proposed at 10 CSR 40-8.070(2)(C)1.A(II)(a) of September 30, 1992,
and subsequent annual reporting date of September 30 satisfy a portion
of the required amendment at 30 CFR 925.16(p)(20). However, Missouri's
proposed rule still specifies the end of the period for which
cumulative production and revenue is calculated is where the coal or
other minerals were extracted prior to October 1, 1990, which is a date
earlier than September 29, 1992. This date needs to be revised to be no
earlier than September 29, 1992. Therefore, we find that Missouri's
proposed rule at 10 CSR 40-8.070(2)(C)1.A(II) is less effective than
the counterpart Federal regulation at 30 CFR 702.5(a)(2), and we are
not approving the October 1, 1990, date proposed at 10 CSR 40-
8.070(2)(C)1.A(II)(a). Also, Missouri did not revise its rule at 10 CSR
40-8.070(2)(C)1.A(II)(b). This rule still refers to extraction of coal
or other minerals commenced on or after November 1, 1990, which is
earlier than the required date. Based on this finding, we are modifying
the required amendment at 30 CFR 925.16(p)(20).
b. 10 CSR 40-8.070(2)(C)10.F Revocation and Enforcement--Direct
Enforcement. Missouri's current rules at paragraph (2)(C)10.F provide
direct enforcement requirements for operators who did or did not
conduct activities in accordance with the terms of an approved
exemption before revocation of the exemption. Subparagraph (C)10.F(I)
specifies that an operator mining in accordance with the terms of an
approved exemption shall not be cited for violations of the commission
which occurred prior to the revocation of the exemption. Subparagraph
(C)10.F(II) specifies that an operator who does not conduct activities
in accordance with the terms of an approved exemption shall be subject
to direct enforcement action for violations of the commission.
Subparagraph (C)10.F(III) specifies that upon revocation of an
exemption or denial of an exemption application, an operator shall
comply with the reclamation standards of the commission. On September
29, 1992, we required Missouri to amend its rules at 10 CSR 40-
8.070(2)(C)10.F(I), (II), and (III). We codified these requirements at
30 CFR 925.16(p)(21). The counterpart Federal regulations at 30 CFR
702.17(d)(1), (2), and (3) have similar requirements with the exception
that the Federal regulations either specify violations of the
regulatory program or reclamation standards of the regulatory program.
Missouri's current rules limit its direct enforcement requirements to
violations or reclamation standards of its commission rather than its
regulatory program. In response to the required amendment at 30 CFR
925.16(p)(21), Missouri replaced the term ``commission'' with the term
``regulatory program'' in each of its rules at 10 CSR 40-
8.070(2)(C)10.F(I), (II), and (III).
We find that Missouri's revised rules at 10 CSR 40-
8.070(2)(C)10.F(I), (II), and (II) are substantively identical to the
counterpart Federal regulations at 30 CFR 702.17(d)(1), (2), and (3),
respectively, and we are approving them. We also find that Missouri's
revisions satisfy the required amendment at 30 CFR 925.16(p)(21), which
we are removing.
G. 10 CSR 40-9.020 Abandoned Mine Reclamation and Restoration;
Reclamation
1. Missouri revised its rule at 10 CSR 40-9.020(1)(D)4 to require
the commission to find in writing whether coal lands and waters damaged
and abandoned after August 3, 1977, meet the specified eligibility
requirements and priority objectives. Missouri also added the
requirement that the commission find in writing that the reclamation
priority of the site is the same or more urgent than the reclamation
priority for other lands and waters. Missouri's revised rule reads as
follows:
The commission finds in writing that the site meets the
eligibility requirements of this section and the priority objectives
stated in subsections (4)(A) and (B) of this rule and that the
reclamation priority of the site is the same or more urgent than the
reclamation priority for other lands and waters eligible pursuant to
this section. Priority will be given to those sites which are in the
immediate vicinity of a residential area or which have an adverse
economic impact upon a community.
The counterpart Federal regulation at 30 CFR 874.12(d) also
requires a written determination of eligibility for these sites.
Therefore, we find that Missouri's revised rule at 10 CSR 40-
9.020(1)(D)4 is consistent with the requirements of the counterpart
Federal regulation at 30 CFR 874.12(d)(3), and we are approving it.
2. Missouri added the following new provision at 10 CSR 40-
9.020(1)(F):
If reclamation of a site covered by an interim or permanent
program permit is carried out under the State reclamation program,
the permittee of the site shall
[[Page 23603]]
reimburse the abandoned mine land reclamation fund for the cost of
the reclamation that is in excess of any bond forfeited to ensure
reclamation. In performing reclamation under subsection (1)(D) of
this rule, the commission shall not be held liable for any
violations of any performance standards or reclamation requirements
specified in Chapter 444 RSMo (1994) nor shall a reclamation
activity undertaken on such lands or waters be held to any standards
set forth in Chapter 444 RSMo (1994).
We find that Missouri's rule at 10 CSR 40-9.020(1)(F) is
substantively identical to the counterpart Federal regulation at 30 CFR
874.12(g), and we are approving it.
IV. Summary and Disposition of Comments
Federal Agency Comments
On October 18, 2000, under section 503(b) of SMCRA and 30 CFR
732.17(h)(11)(i) of the Federal regulations, we requested comments on
the amendment from various Federal agencies with an actual or potential
interest in the Missouri program (Administrative Record No. MO-662.2).
We did not receive any comments.
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the
written concurrence of the 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.).
None of the revisions that Missouri proposed to make in this
amendment pertain to air or water quality standards. Therefore, we did
not ask the EPA for its concurrence.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. MO-662.2). The EPA
did not respond to our request.
State Historical 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 October 18, 2000, we requested comments on Missouri's
amendment (Administrative Record No. MO-662.2), but neither responded
to our request.
Public Comments
We asked for public comments on the amendment, but did not receive
any.
V. Director's Decision
Based on the above findings, we approve, with certain exceptions
and additional requirements, the amendment as sent to us by Missouri on
October 5, 2000.
With the requirement that Missouri further revise its rules, we do
not approve, as discussed in: finding No. C.3.f(2)(b), 10 CSR 40-
3.040(10)(O)3.C and 40-3.200(10)(O)3.C, design precipitation event
requirements for permanent and temporary impoundments; finding No.
C.5.b, 10 CSR 40-3.240, air resource protection, to the extent that it
is missing pertinent requirements relating to control of erosion and
air pollution; finding No. F.4.a, 10 CSR 40-8.070(2)(C)1.A(II)(a),
definition of cumulative measurement period, to the extent that it uses
October 1, 1990, for determining the end of the period for which
cumulative production and revenue is reported.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 925, which codify decisions concerning the Missouri
program. We are making this final rule effective immediately to
expedite the State program amendment process and to encourage Missouri
to bring its program into conformity with the Federal standards. SMCRA
requires consistency of State and Federal standards.
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. The Federal regulations at 30 CFR 732.17(g) prohibit any
changes to State programs that are not approved by OSM. In the
oversight of the Missouri program, we will recognize only the statutes,
rules and other materials approved by the Secretary or by us, together
with any consistent implementing policies, directives and other
materials. We will require the enforcement by Missouri of only such
provisions.
VI. Procedural Determinations
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget under Executive Order 12866.
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal
regulations.
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 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 under SMCRA. Section 405(d)
of SMCRA requires State abandoned mine reclamation programs to be in
compliance with the procedures, guidelines, and requirements of SMCRA.
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, to the
extent allowed by law, 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 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 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. Decisions on proposed abandoned mine
land reclamation plans and revisions submitted by a State or Tribe are
based on a determination of whether the submittal meets the
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and 30 CFR part
884 of the Federal regulations.
National Environmental Policy Act
Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a
decision on a proposed State regulatory program
[[Page 23604]]
provision does not constitute a major Federal action within the meaning
of section 102(2)(C) of the National Environmental Policy Act (NEPA)
(42 U.S.C. 4332(2)(C)). A determination has been made that such
decisions are categorically excluded from the NEPA process (516 DM
8.4.A). Agency decisions on proposed State and Tribal abandoned mine
land reclamation plans and revisions are also categorically excluded
from compliance with the National Environmental Policy Act (42 U.S.C.
4332) by the Manual of the Department of the Interior (516 DM 6,
appendix 8, paragraph 8.4B(29)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by the Office of Management and Budget under the
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. 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.
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.
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 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 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 925
Intergovernmental relations, Surface mining, Underground mining.
Dated: April 25, 2001.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 925 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 925.12 is amended by removing the introductory
paragraph; by revising paragraphs (a), (b), and (c) and adding
paragraphs (d), (e), and (f) to read as follows:
Sec. 925.12 State program provisions and amendments disapproved.
(a) The amendment at 10 CSR 40-4.030(4)(A), submitted on December
14 and 18, 1987, is disapproved insofar as it would exempt from prime
farmland performance standards coal preparation plants, support
facilities, and roads associated with surface coal mining activities.
(b) The amendment at 10 CSR 40-4.030(4)(B), submitted on December
14 and 18, 1987, is disapproved insofar as it would exempt from prime
farmland performance standards water bodies as a postmining land use.
(c) The definitions of ``coal processing plant'' and ``coal
preparation plant'' at 10 CSR 40-8.010(1)(A)18, submitted on December
14 and 18, 1987, are disapproved insofar as they exempt from regulation
certain facilities where coal is subjected to chemical or physical
processing or cleaning, concentrating, or other processing or
preparation, if they do not separate coal from its impurities.
(d) The amendments at 10 CSR 40-3.040(10)(O)3.C and 40-
3.200(10)(O)3.C, submitted on October 5, 2000, concerning temporary
impoundment design are disapproved effective May 9, 2001.
(e) The amendment at 10 CSR 40-3.240, submitted on October 5, 2000,
concerning air resource protection is disapproved effective May 9,
2001, to the extent that it is missing pertinent requirements relating
to control of erosion and air pollution.
(f) The amendment at 10 CSR 40-8.070(2)(C)1.A(II)(a), submitted on
October 5, 2000, concerning the definition of cumulative measurement
period is disapproved effective May 9, 2001, to the extent that it uses
October 1, 1990, for determining the end of the period for which
cumulative production and revenue is reported.
3. Section 925.15 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 925.15 Approval of Missouri regulatory program amendments.
* * * * *
[[Page 23605]]
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
October 5, 2000.......................... May 9, 2001............................. 10 CSR 40-3.010(6);
3.020(1); 3.020(3);
3.040(2)(A)1, 2, 3.B, 4,
5, 6; 3.040(4)(A)1 and
(B)3; 3.040(6)(A), (B),
(C), (E), (F), (G), (H),
(Q), (T), (U); 3.040(8);
3.040(10)(A), (B)5, (L),
(M), (N), (O), (O)1,
(O)2.A and B, (O)2.C,
(O)3, (O)3.A and B;
3.040(10)(O)3.C [not
approved]; 3.040(13)(A)1.A
and (B)1; 3.040(14)(B)3;
3.040(17); 3.050 Purpose;
3.050(1)(D)1.A;
3.050(2)(A); 3.050(3)(C)1;
3.080(1)(A); 3.080(3)(D);
3.080(8)(A); 3.090;
3.110(4)(A); 3.110(5)(A);
3.110(6)(B); 3.120(5);
3.120(8)(A)4, (B), (D)2
and 8; 3.140(1)(A);
3.200(2)(A)1, 2, 3.A, 4,
5, 6; 3.200(4)(B)3;
3.200(6)(A), (B), (C),
(E), (F), (G), (Q), (T),
(U); 3.200(8),
3.200(10)(A), (B)5, (K),
(L), (M), (N), (O), (O)1,
(O)2.A, B, and C, (O)3,
(O)3.A and B;
3.200(10)(O)3.C [not
approved]; 3.200(12)
(A)1.A and (B)1;
3.200(13)(B)3; 3.200(16);
3.240 [partial approval];
3.270(5); 3.270(8)(A)4 and
(B); 4.010 Purpose; 4.010
(3)(J); 4.020(2)(B); 4.030
Purpose; 4.030 (3)(A);
4.030(4)(A), (B), (C);
4.030(6)(A), 4.030(7)(B)2
and 7; 4.050(11), (12);
5.010(1)(B); 5.010(2)(E);
6.010(4)(B)2; 6.010(6)(A);
6.020 Purpose; 6.020(5);
6.020(7)(A); 6.030(1)(C),
(D), (I); 6.030(2)(C);
6.040(5)(B)1.E;
6.040(16)(C)1 and 3;
6.050(1); 6.050(5)(B)11,
(C), and (C)1;
6.050(7)(D)1; 6.050(9)(C)3
and 4, (D)3, (E);
6.050(11)(A), (A)1.A, 2
and 3, (B), (C), (F);
6.050(17)(B); 6.060(4)(C)1
and 5, (D)1, (E)5;
6.070(3) and (3)(B);
6.070(4)(A); 6.070(5)(B)4;
6.070(8)(C), (D)3;
6.070(10) (D);
6.090(4)(B)2; 6.090(6)(A);
6.090(7); 6.100(1)(I);
6.100(2)(C); 6.120(5)(E);
6.120(7)(A), (A)2 and 3,
(B)1, (C), (F);
6.120(12)(D)1;
6.120(14)(B)10, (C)1;
6.120(15)(B);
7.011(6)(A)8, (D)2.C(II),
5.A and C, 8; 7.021(1)(C)
and (D); 7.021(2)(A), (B)5
and 6; 7.021(3)(C) and
(D); 8.010(1) (A)9, 12,
52.C, 59, 73, 82, 87, 89,
and 97B; 8.030(1)(F)4.A
and (G); 8.030(6)(A)3 and
(B)1; 8.030(10)(A);
8.030(12)(C); 8.050
Purpose; 8.050(1);
8.050(2)(B); 8.050(5)(A)
and (B); 8.050(9)(A);
8.070(2)(C)1.A(II)(a)
[partial approval] and
10.F, (F), (G).
----------------------------------------------------------------------------------------------------------------
4. Section 925.16 is amended by removing and reserving paragraphs
(b), (f)(1), (g), (p)(5), (p)(9), (p)(10), (p)(11), (p)(12), (p)(14),
(p)(16), (p)(18), (p)(21), (q), (q)(2), and (u); by revising paragraphs
(p), (p)(4), and (p)(20) and adding paragraph (v) to read as follows:
Sec. 925.16 Required program amendments.
* * * * *
(p) By May 10, 2002, Missouri shall amend its program as follows:
* * * * *
(4) At 10 CSR 40-3.240 by providing performance standards that
address air quality in a manner no less effective than the Federal
regulations at 30 CFR 817.95(a).
* * * * *
(20) At 10 CSR 40-8.070(2)(C)1.A(II)(a) and (b) to revise the
definition of cumulative measurement period to provide appropriate
dates for the end of the period for which cumulative production and
revenue is reported that are no earlier than September 29, 1992, in
accordance with the Federal regulation requirements at 30 CFR
702.5(a)(2)(i) and (ii).
* * * * *
(v) By May 10, 2002, Missouri must submit either an amendment or a
description of an amendment to be proposed, together with a timetable
for adoption of proposed revisions to remove its provisions at 10 CSR
40-3.040(10)(O)3.C and 40-3.200(10)(O)3.C.
5. Section 925.25 is amended in the table by adding a new entry in
chronological order by ``Date of final publication'' to read as
follows:
Sec. 925.25 Approval of Missouri abandoned mine land reclamation plan
amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
October 5, 2000.......................... May 9, 2001............................. 10 CSR 40-9.020(1)(D)4 and
(F).
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[FR Doc. 01-11635 Filed 5-8-01; 8:45 am]
BILLING CODE 4310-05-P