NORTH DAKOTA
FEDERAL REGISTER CITE: 53 FR 11500 (11501)
PUBLISHED DATE: 04/07/88
EFFECTIVE DATE: 05/09/88
This is a Cooperative Agreement (Agreement) between North
Dakota (State) acting by and through the North Dakota Public
Service Commission (Commission) and the Governor, and the United
States Department of the Interior (Interior), acting by and
through the Secretary of the Interior (Secretary) and the Office
of Surface Mining. (OSM).
Article I: Introduction and Purpose
A. Authority: This Agreement is authorized by Section 523(c)
of the Surface Mining Control and Reclamation Act (Federal Act),
Pub. L. 95-87, 30 U.S.C. 1273(c), which allows a State with a
permanent regulatory program approved under 30 U.S.C. 1253 to
elect to enter into an Agreement for the regulation and control
of surface coal mining on Federal lands, and by Chapter 38-14.1
of the North Dakota Century Code, Reclamation of Surface Mined
Lands (State Act). This Agreement provides for State regulation
of surface coal mining and reclamation operations on Federal
lands within North Dakota consistent with the State and Federal
Acts and the Federal lands program (Section 523(a) of the Federal
Act and 30 CFR Chapter VII, Subchapter D).
B. Purpose: The purpose of the Agreement is to: (1) Foster
State-Federal cooperation in the regulation of surface coal
mining and reclamation operations;(2) eliminate unnecessary
intergovernmental overlap and duplication; and (3) provide
uniform and effective application of the State Program on all
non-Indian lands in North Dakota.
Article II: Effective Date
Following signing by the Secretary, the Governor, and the
Commission, the Agreement shall take effect upon publication in
the Federal Register as a final rule. This Agreement shall
remain in effect until terminated as provided in Article X.
Article III: Scope
In accordance with the Federal lands program in 30 CFR Parts
740-746, the laws, rules, terms, and conditions of North Dakota's
Permanent State Program (Program conditionally approved effective
December 15, 1980, 30 CFR 934.11 or as hereinafter amended in
accordance with 30 CFR 732.17) are applicable to Federal lands
within North Dakota except as otherwise stated in this Agreement,
the Federal Act, 30 CFR 745.13, or other applicable laws or rules
and regulations. Orders and decisions issued by the Commission
in accordance with the State Program that are reviewable shall be
reviewed pursuant to Section 38-14.1-30 of the North Dakota
Century Code. Orders and decisions issued by the Department that
are appealable shall be appealed to the Department of the
Interior's Office of Hearings and Appeals.
Article IV: Requirements for Cooperative Agreement
The Commission and the Secretary affirm that they will comply
with all of the provisions of this Agreement and will continue to
meet all the conditions and requirements specified in this
Article.
A. Responsible Administrative Agency: The Commission is, and
shall continue to be, the sole agency responsible for
administering this Agreement on behalf of North Dakota on Federal
lands throughout the State. OSMRE shall administer this
Agreement on behalf of the Secretary, in accordance with the
regulations in 30 CFR Chapter VII.
B. Authority of State Agency: The Commission has and shall
continue to have authority under State law to carry out this
Agreement.
C. Funds: The State will devote adequate funds to the
administration and enforcement on Federal lands in North Dakota
of the requirements contained in the Program. If the State
complies with the terms of this Agreement, and if necessary funds
have been appropriated, OSMRE shall reimburse the State as
provided in Section 705(c) of the Federal Act and 30 CFR 735.16,
for costs associated with carrying out responsibilities under
this Agreement. The grants procedures established in 30 CFR Part
735 are applicable to funding under this Agreement.
Reimbursement shall be in the form of annual grants, and
applications for grants shall be processed and grants awarded in
a prompt manner.
If sufficient funds have not been appropriated, OSMRE and the
Commission shall promptly meet to decide on appropriate measures
that will insure that surface coal mining and reclamation
operations are regulated in accordance with the Program.
D. Reports and Records: The Commission shall make annual
reports to OSMRE pursuant to 30 CFR 745.12(d), containing
information respecting its implementation and administration of
the terms of this Agreement. The Commission and OSMRE shall
exchange, upon request, information developed under this
Agreement except where prohibited by Federal law. OSMRE shall
provide the Commission with a copy of any final evaluation report
concerning State administration and enforcement of this
Agreement.
E. Personnel: The Commission shall provide the necessary
personnel to fully implement this Agreement in accordance with
the provisions of the Federal and State Acts and the State
Program.
F. Equipment and Laboratories: The Commission shall assure
itself access to equipment, laboratories, and facilities with
which all inspections, investigations, studies, tests, and
analyses can be performed and which are necessary to carry out
the requirements of this Agreement.
G. Permit Application Fees and Civil Penalty Assessments: The
amount of the fee accompanying an application for a permit shall
be determined in accordance with Section 38-14.1-13 of the State
Act. All permit fees and civil penalty assessments collected by
the State from operators on Federal lands shall be retained by
the State and deposited with the State Treasurer. These funds
shall be disposed of in accordance with Federal requirements in
OMB Circular No. A-102, Attachment E. The financial status
report submitted pursuant to 30 CFR 735.26 shall include a report
of the amount of permit application fees collected and
attributable to Federal lands during the prior Federal fiscal
year.
Article V: Policies and Procedures: Review of a Permit
Application Package or an Application for a Permit Renewal or
Revision
A. Contents of Permit Application Package: The Commission and
the Secretary will require that an operator proposing to mine on
Federal land shall submit an identical permit application package
in an appropriate number of copies to the Commission and OSM.
Any documentation or information submitted by the operator for
the sole purpose of complying with the 3-year requirement of
Section 7(c) of the Mineral Leasing Act (30 U.S.C. 181 et seq.)
will be submitted directly to the Bureau of Land Management,
Department of the Interior. The permit application package shall
be in the form required by the Commission and include any
supplemental information required by the Secretary. The permit
application package shall satisfy the requirements of 30 CFR
Chapter VII, Subchapter D and shall include the information
required by, or necessary for, the Commission and the Secretary,
acting within their statutory authority, to make a determination
of compliance with:
(1) Chapter 38-14.1 and Chapter 38-18 of the North Dakota
Century Code;
(2) Article 69-05.2 of the North Dakota Administrative Code
(NDAC);
(3) Applicable terms and conditions of the Federal coal lease;
(4) Applicable requirements of the Bureau of Land Management's
30 CFR Part 211 regulations pertaining to the Mineral Leasing
Act; and
(5) Applicable requirements of other Federal laws and the
Program, including but not limited to those in Appendix A of this
Agreement.
B. Review Procedures: 1. The Commission shall assume primary
responsibility for the analysis, review, and approval of permit
applications required by 30 CFR Chapter VII, Subchapter D for
surface coal mining on Federal lands in North Dakota. OSMRE
shall, as requested, assist the Commission in this analysis and
review.
2. The Commission shall be the primary point of contact for
operators regarding the approval of the permit application
package, except on matters concerned exclusively with the 30 CFR
Part 211 regulations administered by the Bureau of Land
Management. The Commission will be responsible for informing the
applicant of all joint State-Federal or Federal determinations,
except matters concerned exclusively with the 30 CFR Part 211
regulations. The Commission shall send to the Bureau of Land
Management all correspondence with the applicant which may have a
bearing on decisions regarding Mineral Leasing Act requirements.
Except in exigent circumstances, OSMRE shall generally not
independently initiate contacts with applicants regarding
completeness or deficiencies of permit application packages with
respect to matters which are properly within the jurisdiction of
the Commission. The Commission may arrange for an operator to
send written communications and documents regarding a permit
application package directly to OSM. The Secretary reserves the
right to act independently of the Commission to carry out his
responsibilities under laws other than the Federal Act. A copy
of any independent correspondence with the applicant required to
carry out these responsibilities which may have a bearing on
decisions regarding the permit application package shall be sent
to the State.
3. OSMRE is responsible for ensuring that any information
OSMRE receives from an applicant regarding the permit application
package is sent to the Commission and the Commission will send
any information received from the applicant to OSM. OSMRE shall
have access to Commission files for mines on Federal lands.
OSMRE and the Commission shall regularly coordinate with each
other during the permit application package review process.
4. OSMRE shall be responsible for obtaining, in a timely
manner, the views of all Federal agencies with jurisdiction or
responsibility over a permit application package on Federal lands
in North Dakota and for making these views known to the
Commission within 90 days of the receipt of the application by
OSM. The Commission shall keep OSMRE informed of findings during
the review which bear on the responsibilities of other Federal
agencies. OSMRE shall take appropriate steps to facilitate
discussions between the Commission and the concerned agencies
wherever desirable to resolve issues or problems identified in
the review.
5. Upon receipt of a permit application package, both OSMRE
and the Commission shall each designate its application manager.
The application managers shall serve as the primary point of
contact between OSMRE and the Commission throughout the review
process and shall be responsible for identifying areas of
avoidable duplication of review and analysis, which shall be
eliminated where possible. Not later than 15 days after an
application has been received, OSMRE and the Commission shall
discuss the application and agree upon a work plan and schedule
for the review of the application. OSMRE shall thereafter inform
the Commission of any specific or general areas of concern,
including the scope of required environmental analyses under the
National Environmental Policy Act, which require special handling
or analysis. The Commission shall likewise inform OSMRE where
OSMRE assistance will be needed to perform any specific or
general analysis or prepare any studies or similar work.
6. The Commission shall prepare a technical-environmental
analysis on the permit application package. Copies of drafts of
this document shall be sent to OSMRE for review and comment.
OSMRE shall independently evaluate the documents and inform the
Commission within 30 days of any changes that should be made.
The Commission shall consider the comments of OSMRE and send a
final technical-environmental analysis to OSMRE which will form
the basis for and be included in the decision document which
OSMRE will prepare for the Secretary's consideration. The
Commission shall approve or disapprove the permit application by
written decision in accordance with the Program. The Secretary's
decision on the mining plan and those other Federal
responsibilities which cannot be delegated (including but not
limited to those listed in Appendix A) shall be made concurrently
with or as soon as possible after the final decision of the
Commission on the permit. The permit issued by the Commission
shall condition the initiation of surface coal mining operations
on Federal lands within the permit area on obtaining mining plan
approval from the Secretary. The Commission shall, in the
approved permit, reserve the right to amend or rescind its action
to conform with action taken, or with terms or conditions
imposed, by the Secretary when approving the mining plan. After
the Commission makes its decision on the permit, it shall send a
notice to the applicant and OSMRE with a statement of findings
and conclusions in support of the action.
7. The Commission may approve and issue permits, permit
renewals, and permit revisions for surface disturbances
associated with surface coal mining and reclamation operations,
and disturbance of the surface may commence without need for an
approved mining plan on lands where:
(a) The surface estate is non-Federal and non-Indian;
(b) The mineral estate is Federal and is unleased;
(c) The Commission consults with the Bureau of Land Management
through OSMRE in order to insure that actions are not taken which
would substantially and adversely affect the Federal mineral
estate; and
(d) The proposed surface disturbances are planned to support
surface coal mining and reclamation operations on adjacent
non-Federal lands and this is specified in the permit, permit
renewal, or permit revision.
8. Any permit renewal requested pursuant to applicable State
laws and rules for a surface coal mining and reclamation
operation on Federal lands, and for which a mining plan has been
approved by the Secretary, shall be reviewed and approved or
disapproved by the Commission in consultation with OSMRE for
Federal responsibility under other laws. The Commission shall
inform OSMRE and BLM of the approval or disapproval of the
renewal and provide OSMRE and BLM with copies of the application
documents.
9. The Commission shall inform OSMRE of each permit revision
request with respect to surface coal mining and reclamation
operations on Federal lands containing leased Federal coal. For
other Federal lands, the Commission shall inform the Federal land
management agency of each permit revision request. Surface coal
mining and reclamation operations shall not occur pursuant to the
revision unless the permit revision request has been approved by
the Commission and:
(a) With respect to Federal lands containing leased Federal
coal --
(i) The Secretary has determined that the permit revision does
not constitute a mining plan modification, or
(ii) If the revision does constitute a mining plan
modification, the modification has been approved by the
Secretary.
(b) With respect to other Federal lands, the Commission has
consulted with the Federal land management agency to ensure that
the permit revision is consistent with Federal laws and
regulations other than the Act.
10. When the Commission and OSMRE cannot resolve differences
that develop during permit application package review or cannot
agree on the final actions to be taken by the Commission and the
Department, the matter shall be referred to the Governor and the
Secretary for resolution.
Article VI: Inspections
The Commission shall conduct inspections on Federal lands and
prepare and file inspection reports in accordance with the
approved Program.
A. Inspection Reports: The Commission shall, within 15 days
of conducting any inspection on Federal lands, file with OSMRE an
inspection report describing (1) the general conditions of the
lands under the permit; (2) whether the operator is complying
with applicable performance and reclamation requirements; and (3)
the manner in which specific operations are being conducted.
B. Commission Authority: The Commission shall be the point of
contact and primary inspection authority in dealing with the
operator concerning operations and compliance with the
requirements covered by this Agreement, except as described in
this Agreement and the Secretary's regulations. Nothing in this
Agreement shall prevent inspections by authorized Federal or
State agencies for purposes other than those covered by this
Agreement.
C. OSMRE Authority: For the purpose of evaluating the manner
in which this Agreement is being carried out and to insure that
performance and reclamation standards are being met, OSMRE may
conduct inspections of surface coal mining and reclamation
operations on Federal lands without prior notice to the
Commission. In order to facilitate a joint Federal-State
inspection, when OSMRE is responding to a citizen complaint of an
imminent danger to the health or safety of the public or of a
significant, imminent environmental harm pursuant to 30 CFR
842.11(b)(1)(i), it will contact the Commission if circumstances
and time permit, prior to the Federal inspection. The Department
may conduct any inspections necessary to comply with 30 CFR Part
842 and 30 CFR 740.17 (as 30 CFR 740.17 relates to obligations
under laws other than the Federal Act). If an inspection is made
without Commission inspectors, OSMRE shall provide the Commission
with a copy of the inspection report within 15 days after the
inspections.
D. Witness Availability: Personnel of the State and the
Department shall be mutually available to serve as witnesses in
enforcement actions taken by either party.
Article VII: Enforcement
A. Commission Enforcement: The Commission shall have primary
enforcement authority on Federal lands in accordance with the
Program and this Agreement. During any joint inspection by OSMRE
and the Commission, the Commission shall take appropriate
enforcement action, including issuance of orders of cessation and
notices of violation. OSMRE and the Commission shall consult
prior to issuance of any decision to suspend or revoke a permit.
B. Notification: The Commission and OSMRE shall promptly
notify each other of all violations of applicable laws,
regulations, orders, approved mining and reclamation plans and
permits subject to this Agreement and of all actions taken with
respect to such violations.
C. Secretary's Authority: (1) This Agreement does not affect
or limit the Secretary's authority to enforce violations of laws
other than the Federal Act. (2) During any inspection made solely
by OSMRE or any joint inspection where the Commission and OSMRE
fail to agree regarding the propriety of any particular
enforcement action, OSMRE may take any enforcement action
necessary to comply with 30 CFR Parts 843 and 845. Such
enforcement action shall be based on the substantive standards
included in the approved Program and shall be taken using the
procedures and penalty system contained in 30 CFR Parts 843 and
845.
Article VIII: Bonds
A. Bond Coverage and Terms: The Commission and OSMRE shall
require all operators on Federal lands to submit a single
performance bond to cover the operator's responsibilities under
the Federal Act and the Program, payable to both the United
States and North Dakota. The performance bond shall be of
sufficient amount to comply with the requirements of both State
and Federal law and release of the performance bond shall be
conditioned upon compliance with all applicable requirements. If
this Agreement is terminated, the bond will continue in effect
and to the extent that Federal lands are involved will be payable
to the United States.
Submission of a performance bond does not satisfy the
requirements for a Federal lease bond required by 43 CFR Subpart
3474 or a lessee protection bond required in addition to a
performance bond, in certain circumstances, by Section 715 of the
Federal Act.
B. Bond Release: The Commission shall obtain OSM's
concurrence prior to releasing the operator from any performance
bonding obligation required under the Program for any Federal
lands containing leased Federal coal. For surface coal mining
and reclamation operations on other Federal lands, the Commission
shall obtain the concurrence of the Federal land management
agency prior to releasing the performance bond. The Commission
shall advise OSMRE of any release of and adjustments made to the
performance bond.
C. Forfeiture: The operator's performance bond shall be
subject to forfeiture with the consent of OSM, in accordance with
the procedures and requirements of the Program.
Article IX: Designation of Lands as Unsuitable
The Commission and OSMRE shall cooperate in the review and
processing of petitions to designate lands as unsuitable for
surface coal mining operations. When either agency receives a
petition which could have an impact on lands the designation of
which as unsuitable for mining would be the responsibility of the
other agency, the agency shall: (1) Notify the other of its
receipt of the petition and of the anticipated schedule for
reaching a decision; and (2) request and fully consider data,
information and views of the other. The authority to designate
Federal lands as unsuitable for mining is reserved to the
Secretary or his designated representative.
Article X: Termination of Cooperative Agreement
This Agreement may be terminated as follows:
A. Termination by the State: The Agreement may be terminated
by the Commission upon written notice to the Secretary,
specifying the date upon which the Agreement shall be terminated.
The date of termination shall not be less than 90 days from the
date of the notice.
B. Termination by the Secretary: This Agreement may be
terminated by the Secretary according to the following
procedures:
1. A written notice from the Secretary to the Commission
shall specify the grounds upon which he proposes to terminate the
Agreement. In addition, a written notice containing the grounds
for termination shall be published in the Federal Register
affording the Commission and the public a minimum of 30 days for
comment.
2. A written notice in the Federal Register and a local
newspaper of general circulation shall also specify the date and
place within the State of North Dakota where the Commission and
the public shall be afforded the opportunity for a hearing. The
date of such hearing shall not be less than 30 days from the date
of publication in the Federal Register. Prior to the time fixed
for public hearing, representatives of the Commission may be
permitted to appear and confer in person with representatives of
the Secretary and present oral or written statements, and any
other documents relative to the proposed termination.
3. The proposed termination hearing shall be conducted by
OSMRE and a record shall be made of the hearing. The Commission
shall be entitled to have legal, and technical and other
representatives present at the hearing, and may present, either
orally or in writing, evidence, information, testimony,
documents, records or materials as may be relevant to the issues
involved.
4. The Secretary's decision shall be made after the hearing
and close of the comment period.
5. A decision to terminate the Agreement may be made if the
Secretary finds in writing that:
(a) The Commission has substantially failed to comply with the
requirements of the Federal Act, 30 CFR Parts 740-746, the
Program, or provisions of this Agreement; or
(b) The Commission has failed to comply with any undertaking
by the Commission in this Agreement upon which the approval of
the Program, this Agreement, or grants by OSMRE for
administration or enforcement of the Program or this Agreement
were based.
6. The Secretary shall send written notice of the decision
and findings to the Commission and publish notice of it in the
Federal Register.
7. This Agreement shall terminate not less than 60 days after
publication of the notice of the decision to terminate in the
Federal Register. The Commission may remedy any failure during
the 60-day period. If the Secretary determines that the State
has taken effective remedial action, the Agreement will not
terminate.
C. Termination by Operation of Law: This Agreement shall
terminate by operation of law under either of the following
circumstances:
1. When no longer authorized by Federal law or North Dakota
laws and regulations; or
2. Upon termination or withdrawal of the Secretary's approval
of the Program pursuant to 30 CFR Part 733.
D. Mutual Termination: This Agreement may be terminated at
any time upon mutual agreement by the Secretary and the
Commission.
Article XI: Reinstatement of Cooperative Agreement
If this Agreement has been terminated as provided in Article
X, it may be reinstated upon application by the Commission and
upon its giving evidence satisfactory to the Secretary that the
Commission can and will comply with all the provisions of the
Agreement and that the Commission has remedied all defects in
administration for which this Agreement was terminated.
Article XII: Amendments To Cooperative Agreement
This Agreement may be amended by mutual agreement of the
Commission and the Secretary. An amendment proposed by one party
shall be submitted to the other with a statement of the reasons
for such proposed amendment. The amendment shall be adopted or
rejected in accordance with the requirements of 30 CFR 745.11.
The party to whom the proposed amendment is submitted shall
signify its acceptance or rejection of the proposed amendment and
if rejected shall state the reason for rejection.
Article XIII: Changes in State or Federal Standards
A. Time for Change: The Secretary or the State may from time
to time promulgate new Federal or State regulations, including
new or revised performance or reclamation requirements or
enforcement or administration procedures. OSMRE and the
Commission shall immediately inform each other of any final
changes in their respective laws or regulations as provided in 30
CFR Part732. Each party shall, if it is determined to be
necessary to keep this Agreement in force, change or revise its
regulations and request necessary legislative action. Such
changes shall be made under the procedures of 30 CFR Part 732 for
changes to the Program and Section 501 of the Federal Act for
changes to the Federal lands program.
B. Copies of Changes: The State and OSMRE shall provide each
other with copies of any changes to their respective laws, rules,
regulations, and standards pertaining to the enforcement and
administration of this Agreement.
Article XIV: Changes in Personnel and Organization
The Commission and the Secretary shall, consistent with 30 CFR
Part 745, advise each other of changes in the organization,
structure, functions, duties, and funds of the offices,
departments, divisions, and persons within their organizations
which could affect administration and enforcement of this
Agreement. Each shall promptly advise the other in writing of
changes in key personnel, including the head of a department or
division, or changes in the functions or duties of persons
occupying the principal offices within the structure of the
program. The Commission and OSMRE shall advise each other in
writing of changes in the location of offices, addresses,
telephone numbers, and changes in the names, location and
telephone numbers of their respective mine inspectors and the
area within the State for which such inspectors are responsible.
Article XV: Reservation of Rights
In accordance with 30 CFR 745.13, this Agreement shall not be
construed as waiving or preventing the assertion of any rights
that have not been expressly addressed in this Agreement that the
State or the Secretary may have under other laws or regulations,
including but not limited to those listed in Appendix A.
Article XVI: Definitions
Terms and phrases used in this Agreement which are defined in
30 CFR Part 700, 701 and 740 shall be given the meanings set
forth in those definitions.
Approved:
Donald Paul Hodel,
Secretary of the Interior.
Date: March 23, 1988.
George A. Sinner,
Governor of North Dakota.
Date: September 10, 1987.
Dale Sandstrom,
President, North Dakota Public Service Commission.
Date: August 18, 1987.
Bruce Hagen,
Commissioner, North Dakota Public Service Commission.
Date: August 18, 1987.
Leo M. Reinbold,
Commissioner, North Dakota Public Service Commission.
Date: August 18, 1987.
Appendix A
1. The Federal Land Policy and Management Act, 43 U.S.C. 1701,
et seq ., and implementing regulations.
2. The Mineral Leasing Act of 1920, 30 U.S.C. 181, et seq .,
and implementing regulations including 30 CFR Part 211 et seq.
3. The National Environmental Policy Act of 1969, 42 U.S.C.
4321, et seq ., and implementing regulations including 40 CFR
1500 et seq.
4. The Endangered Species Act, 16 U.S.C. 1531 et seq ., and
implementing regulations including 50 CFR Part 402. 5. The
National Historic Preservation Act of 1966, 16 U.S.C. 470, et seq
., and implementing regulations, including 36 CFR Part 800.
6. The Clean Air Act, 42 U.S.C. 7401, et seq ., and
implementing regulations.
7. The Federal Water Pollution Control Act, 33 U.S.C. 1251, et
seq ., and implementing regulations.
8. The Resource Conservation and Recovery Act of 1976, 42
U.S.C. 6901 et seq ., and implementing regulations.
9. The Reservoir Salvage Act of 1960, amended by the
Preservation of Historical and Archaeological Data Act of 1974,
16 U.S.C. 469, et seq.
10. Executive Order 11593, Cultural Resource Inventories on
Federal Lands.
11. Executive Order 11988 (May 24, 1977), for flood plain
protection. Executive Order 11990 (May 24, 1977), for wetlands
protections.
12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C 351,
et seq ., and implementing regulations.
13. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291, et
seq.
14. The Archaeological Resources Protection Act of 1979, 16
U.S.C. 470aa., et seq.
15. The Constitution of the United States.
16. The Constitution of the State of North Dakota, State law,
and rules.
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