[Federal Register Volume 60, Number 138 (Wednesday, July 19, 1995)]
[Rules and Regulations]
[Pages 37002-37012]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17716]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 944


Utah Regulatory Program and Utah Abandoned Mine Land Reclamation 
(AMLR) Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with additional requirements, a proposed 
amendment to the Utah regulatory program and Utah AMLR plan 
(hereinafter referred to as the ``Utah program'' and the ``Utah plan'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The amendment consists of proposed revisions to the Utah Coal Mining 
and Reclamation Act of 1979. The revisions to the Utah program concern 
definitions of new terms; rulemaking authority and procedures; 
administrative procedures; Division of Oil, Gas and Mining (Division) 
action on permit applications; informal conferences; appeals and 
further review; release of performance bonds; revegetation standards on 
lands eligible for remining; operator requirements for underground coal 
mining; contest of violation or amount of penalty; violations of Utah's 
program or permit conditions; judicial review of rules and orders; 
repeal of specific sections of the Utah Code Annotated 1953; and repeal 
dates of certain provisions of the Utah program. The revisions to the 
Utah plan concern lands and water eligible for reclamation, recovery of 
reclamation costs, and liens against reclaimed lands. The amendment is 
intended to revise the Utah program to be consistent with the 

[[Page 37003]]
Utah Administrative Procedures Act, and to revise the Utah program and 
Utah plan to be consistent with SMCRA, and improve operational 
efficiency.

EFFECTIVE DATE: July 19, 1995.

FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Chief, Denver Field Division, Western Regional 
Coordinating Center, Telephone: (303) 672-5524.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program and the Utah Plan

    On January 21, 1981, and June 3, 1983, the Secretary of the 
Interior conditionally approved the Utah program and approved the Utah 
plan. General background information on the Utah program and Utah plan, 
including the Secretary's findings, the disposition of comments, the 
conditions of approval of the Utah program, and approval of the Utah 
plan, can be found in the January 21, 1981, and June 3, 1983, 
publications of the Federal Register (46 FR 5899 and 48 FR 24876). 
Subsequent actions concerning Utah's program and program amendments can 
be found at 30 CFR 944.15, 944.16, and 944.30. Subsequent actions 
concerning Utah's plan amendments can be found at 30 CFR 944.25.

II. Proposed Amendment

    By letter dated April 14, 1994, Utah submitted a proposed amendment 
to its program and plan pursuant to SMCRA (administrative record No. 
UT-917). The amendment consists of proposed revisions to the Utah Coal 
Mining and Reclamation Act of 1979. Utah submitted the proposed 
amendment in part to make its program and plan consistent with SMCRA 
and in part at its own initiative to make its program consistent with 
the Utah Administrative Procedures Act, thereby improving operational 
efficiency.
    The Utah program provisions of the Utah Coal Mining and Reclamation 
Act of 1979 that Utah proposed to revise were: Utah Code Annotated 
(UCA) 40-10-2, purpose of Chapter 10; (2) UCA 40-10-3, definitions of 
new terms ``adjudicative proceeding,'' ``lands eligible for remining,'' 
and ``unanticipated event or condition;'' (3) UCA 40-10-6.5, rulemaking 
authority and procedure; (4) UCA 40-10-6.7, administrative procedures; 
(5) UCA 40-10-7, prohibition of financial interest in any coal mining 
operation; (6) UCA 40-10-8, coal exploration rules issued by the 
Division and penalty for violation; (7) UCA 40-10-10, permit 
applications; (8) UCA 40-10-11, Division action on the permit 
application; (9) UCA 40-10-12, revision or modification of permit 
provisions; (10) UCA 40-10-13, informal conferences; (11) UCA 40-10-14, 
permit approval or disapproval, appeals, and further review; (12) UCA 
40-10-15, performance bonds; (13) UCA 40-10-16, release of performance 
bond, surety, or deposit; (14) UCA 40-10-17, revegetation standards on 
lands eligible for remining; (15) UCA 40-10-18, operator requirements 
for underground coal mining; (16) UCA 40-10-19, information provided by 
the permittee to the Division and right of entry; (17) UCA 40-10-20, 
contest of violation or amount of penalty; (18) UCA 40-10-21, civil 
action to compel compliance with Utah's program and other rights not 
affected; (19) UCA 40-10-22, violations of Utah's program or permit 
conditions; (20) UCA 40-10-24, determination of unsuitability of lands 
for surface coal mining; and (21) UCA 40-10-30, judicial review of 
rules or orders. Utah also proposed to repeal UCA 40-10-4, ``Mined land 
reclamation provisions applied,'' and UCA 40-10-31, ``Chapter's 
procedures supersede Title 63, Chapter 46b.'' Finally, Utah proposed to 
repeal UCA 40-10-11(5), modification of permit issuance prohibition, 
and UCA 40-10-17(2)(t)(ii), revegetation standards on lands eligible 
for remining, effective September 30, 2004.
    The Utah plan provisions of the Utah Coal Mining and Reclamation 
Act of 1979 that Utah proposed to revise were: (1) UCA 40-10-25, lands 
and water eligible for reclamation; (2) UCA 40-10-27, entry upon land 
adversely affected by past coal mining practices, State acquisition of 
land and public sale, and water pollution control and treatment plants; 
and (3) UCA 40-10-28, recovery of reclamation costs and liens against 
reclaimed land.
    OSM announced receipt of the proposed amendment in the May 12, 
1994, Federal Register (59 FR 24675), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. UT-926). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on June 13, 1994.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of the Utah Coal Mining and Reclamation Act 
of 1979 at UCA 40-10-3(1), definition of ``adjudicative proceeding;'' 
UCA 40-10-4, applicability of provisions of UCA 40-8; UCA 40-10-6.7 and 
Utah Administrative Rule (Utah Admin. R.) 641-100-100, administrative 
procedures; UCA 40-10-11(3) schedule of applicant's mining law 
violations; UCA 40-10-11(5), remining operation violations resulting 
from unanticipated events or conditions; UCA 40-1013(2)(b), location of 
informal conferences; UCA 40-1014(6)(c), appeal to district court and 
further review; UCA 40-10-16(6), information conference or formal 
hearings concerning performance bond release decisions; UCA 40-10-
18(4), damage resulting from underground coal mining subsidence; UCA 
40-10-20(2)(e), contest of a violation or amount of a civil penalty; 
UCA 40-10-22(2)(b), cessation order, abatement notice or show cause 
order; UCA 40-10-22(3)(e), costs assessed against the permittee or any 
person having an interest that is or may be adversely affected by the 
notice or order of the Board of Oil, Gas and Mining (Board); and UCA 
40-10-28 (1)(b) and (2)(b), recovery of reclamation costs and liens 
against reclaimed land. OSM notified Utah of the concerns by letter 
dated October 24, 1994 (administrative record No. UT-980).
    Utah responded in a letter dated December 7, 1994, by submitting a 
revised amendment and additional explanatory information 
(administrative record No. UT-997). Utah proposed revisions to its 
Rules of Practice and Procedure of the Board at Utah Admin. R. 641-100-
100, administrative procedures. Utah also proposed revisions to and 
additional explanatory information for UCA 40-10-14(6), appeal to 
district court and further review, UCA 40-10-4, mined land reclamation 
provisions applied, UCA 40-10-16(6), formal hearings or informal 
conferences, and UCA 40-10-22(2)(b), cessation orders, abatement 
notices, or show cause orders.
    Based upon the revisions to and additional explanatory information 
for the proposed program and plan amendment submitted by Utah, OSM 
reopened the public comment period in the December 15, 1994, Federal 
Register (59 FR 64636, administrative record No. UT-1002). The public 
comment period ended on December 30, 1994.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds, with additional requirements, that the 
proposed program and plan amendment submitted by Utah on April 14, 
1994, and as revised by it and supplemented with additional explanatory 
information on December 7, 1994, is no less effective than the 
corresponding Federal regulations and no less stringent than SMCRA. 
Accordingly, the Director approves the proposed amendment.

[[Page 37004]]


1. Nonsubstantive Revisions to Utah's Statutes

    Utah proposed revisions to the following previously-approved 
statutes that are nonsubstantive in nature and consist of minor 
editorial, punctuation, grammatical, and recodification changes 
(corresponding SMCRA provisions are listed in parentheses):

    UCA 40-10-2 (1) through (6), purpose (section 102 of SMCRA),
    UCA 40-10-3 (2) through (7), (9) through (20), and (22), 
recodification of definitions for the terms ``alluvial valley 
floors,'' ``approximate original contour,'' ``Board,'' ``Division,'' 
``imminent danger to the health and safety of the public,'' 
``employee,'' ``operator,'' ``other minerals,'' ``permit,'' ``permit 
applicant,'' or ``applicant,'' ``permitting agency,'' ``permit 
area,'' ``permittee,'' ``person,'' ``prime farmland,'' ``reclamation 
plan,'' ``surface coal mining and reclamation operations,'' 
``surface coal mining operations,'' and ``unwarranted failure to 
comply'' (sections 701 (1), (2), (8), (13) through (21), (28), (29), 
and (33) of SMCRA),
    UCA 40-10-6.5 (2) and (3) [recodification], rulemaking 
procedures (section 505 of SMCRA),
    UCA 40-10-7(1), prohibited financial interest in mining 
operations (section 201(f) of SMCRA),
    UCA 40-10-8 (1) and (3), exploration rules issued by Division 
and penalty for violation (section 512 of SMCRA),
    UCA 40-10-10(2), submission of application and reclamation plan 
(section 507 of SMCRA),
    UCA 40-10-11 (1), (2) (a) through (d), (e)(ii), (f) (i) and 
(iii); and (4) (a) and (b), Division action on permit application, 
requirements for approval, and restoration of prime farmland 
(section 510 of SMCRA),
    UCA 40-10-12(3), revision or modification of permit provisions 
(section 511(c) of SMCRA),
    UCA 40-10-14 (2) and (3), notice to the applicant of approval or 
disapproval of the application and hearings (section 514 of SMCRA),
    UCA 40-10-15(1), performance bonds (section 509(a) of SMCRA),
    UCA 40-10-16(1), (3), and (6)(a), release of performance bond, 
surety, or deposit; action on application for relief of bond; and 
formal hearings or informal conferences (section 519 of SMCRA),
    UCA 40-10-17(2)(g); (2)(j) (i)(B) and (ii) (A) and (B); (2)(m); 
(2)(o) and (o) (i), (iv), and (v); (2)(p) (i)(F), (ii), and (iii); 
(2)(t)(i); (2)(v)(viii); (3)(b) and (b)(ii); (3)(c); (4) (a) and 
(d); and (5), performance standards for all coal mining and 
reclamation operations, additional standards for steep-slope surface 
coal mining, and variances (section 515 of SMCRA),
    UCA 40-10-18(1), (2)(i)(i)(B), (2)(j), and (5), underground coal 
mining, rules regarding surface effects, operator requirements for 
underground coal mining, and applicability of other chapter 
provisions (section 516 of SMCRA),
    UCA 40-10-19(1) and (2)(a), information provided by the 
permittee to the Division and inspections by the Division (sections 
(517(b) and (b)(3) of SMCRA),
    UCA 40-10-21(1)(a)(i) and (ii), (2)(a)(ii), and (5), civil 
action to compel compliance with chapter, jurisdiction, and other 
rights not affected (section 520 of SMCRA),
    UCA 40-10-22 (1)(c) and (2)(a)(i), violation of chapter or 
permit conditions and inspections (section 521 of SMCRA),
    UCA 40-10-24(1)(c) (i) (A), (B), (C), and (D), and (ii); (e) 
(i), (ii), and (iii); and (2) (a) and (b), determination of 
unsuitability of lands for surface coal mining, petitions, and 
public hearings (section 522 of SMCRA),
    UCA 40-10-25(2) (d) and (e) [recodification] and (3) and (3)(a), 
AMLR program, expenditure priorities, and eligible lands and water 
(sections 402(g)(4), 403, and 404 of SMCRA), and
    UCA 40-10-27 (5)(a) and (12)(b), entry upon land adversely 
affected by past coal mining practices and State acquisition of 
lands (sections 407(g) and 413 of SMCRA).

    Because the proposed revisions to these previously-approved 
statutes are nonsubstantive in nature, the Director finds that these 
proposed Utah statutes are no less stringent than SMCRA. The Director 
approves these proposed statutes.

2. Substantive Revisions to Utah's Statutes That Are Substantively 
Identical to the Corresponding Provision of SMCRA

    Utah proposed revisions to the following statutes that are 
substantive in nature and contain language that is substantively 
identical to the requirements of the corresponding SMCRA provisions 
(listed in parentheses).

    UCA 40-10-3 (8) and (21), definitions for the terms ``lands 
eligible for remining'' and ``unanticipated event or condition'' 
(sections 701 (33) and (34) of SMCRA),
    UCA 40-10-11(5) (b), and (c), Division action on permit 
application and requirements for approval (section 510(e) of SMCRA),
    UCA 40-10-17(2)(t)(ii), performance standards for lands eligible 
for remining (section 515(b)(20)(B) of SMCRA),
    UCA 40-10-22(1) (d), and (3) (a), (b), (d), and (f), violations 
of chapter or permit conditions; cessation orders, abatement 
notices, or show cause orders; suspension or revocation of permits; 
and reviews (sections 521(a)(4) and 525 (a)(1) and (a)(2) and (d) of 
SMCRA), and
    UCA 40-10-25(2)(d) [deletion], 3(b), (4), (5), and (6), AMLR 
program and eligible lands and water (section 402(g)(4) of SMCRA).

    Because these proposed Utah statutes are substantively identical to 
the corresponding provisions of SMCRA, the Director finds that they are 
no less stringent than SMCRA. The Director approves these proposed 
statute provisions.

3. UCA 40-10-3(1), Definition of ``Adjudicative Proceeding''

    Utah proposed at UCA 40-10-3(1) a definition for the term 
``adjudicative proceeding'' to mean ``a division or board action or 
proceeding that determines the legal rights, duties, privileges, 
immunities, or other legal interests of one or more identifiable 
persons, including all actions to grant, deny, revoke, suspend, modify, 
annul, withdraw, or amend an authority, right, permit, or license.'' 
This definition is similar to the definitions of the same term at 
existing UCA 63-46b-2(1)(a) as described at UCA 63-46b-1 of the Utah 
Administrative Procedures Act (UAPA) and Utah Admin. R. 641-100-200 of 
the Rules of Practice and Procedure of the Board, except that the 
proposed definition at UCA 40-10-3(1) does not contain the phrase ``and 
judicial review of all such actions.''
    The term ``adjudicative proceeding'' is not specifically defined in 
the provisions of SMCRA or the Federal regulations at 30 CFR Chapter 
VII. Although there is no counterpart definition of ``adjudicative 
proceeding'' in SMCRA or the implementing Federal regulations, section 
526(e) of SMCRA provides, in part, that ``[a]ction of the State 
regulatory authority pursuant to an approved State program shall be 
subject to judicial review by a court of competent jurisdiction in 
accordance with State law * * *.''
    UCA 40-10-30, which is Utah's counterpart to 526(e) of SMCRA, 
establishes requirements for judicial review of any ``rule or order of 
the Board.'' However, the proposed definition at UCA 40-10-3(1) of 
``adjudicative proceeding'' does not reference the judicial review 
provision at UCA 40-10-30(1), and by not specifically providing for 
``judicial review of all such actions'' in the proposed definition, the 
implication is that judicial review is not included in ``adjudicative 
proceedings.'' The inconsistency between definitions of the same term 
within provisions of the Utah regulatory program and the lack of 
consistency between the provisions of UCA 40-10-3(1) and 40-10-30 were 
pointed out to Utah by OSM in its October 24, 1994, issue letter (issue 
No. 1). In order to be consistent with its own provisions at UCA 40-10-
30(1), which do require judicial review of adjudicative proceedings, 
and with its other existing definitions of ``adjudicative proceedings'' 
at UCA 63-46b-2(1)(a), which is further clarified at UCA 63-46b-1, and 
Utah Admin. R. 641-100-200, Utah, in its December 7, 1994, response to 
OSM's issue letter, 

[[Page 37005]]
stated that it would pursue the inclusion of judicial review in its 
definition of ``adjudicative proceeding'' at UCA 40-10-3(1) during its 
1996 legislative session.
    Therefore, the Director finds that Utah's proposed definition of 
``adjudicative proceeding'' at UCA 40-10-3(1), while not inconsistent 
with the provisions of SMCRA because there is no Federal counterpart 
definition for this term, is inconsistent with the definition of the 
same term elsewhere at UCA 63-46b-2(1)(a), as clarified at UCA 63-46b-
1, of the UAPA, and the implementing rules at Utah Admin. R. 641-100-
200. With the requirement that Utah further revise its definition of 
``adjudicative proceeding'' at UCA 40-10-3(1) to include judicial 
review of agency actions, the Director is approving Utah's proposed 
definition of ``adjudicative proceeding'' at UCA 40-10-3(1).

4. Repeal of UCA 40-10-4, Applicability of Provisions of UCA 40-8

    Utah proposed to repeal its provisions at UCA 40-10-4, which 
concern the applicability of provisions of Title 40, Chapter 8 and its 
implementing rules at Utah Admin. R. Part 647 to the State's coal 
mining and reclamation operations. UCA 40-8 and Utah Admin. R. Part 647 
pertain to the Utah Mined Land Reclamation Act and contain general 
reclamation standards for mining, principally for hard rock mining. 
There are no Federal SMCRA to either UCA 40-10-4 or 40-8.
    The repeal of UCA 40-10-4 would appear to eliminate any 
applicability of the provisions of UCA 40-8 and Utah Admin. R. Part 647 
to the Utah program. OSM notes, however, that UCA 40-10-6, which is not 
proposed for revision in this amendment, also references UCA 40-8. The 
language at UCA 40-10-6 provides that the Board and Division have 
powers, functions, and duties in addition to those provided in Title 
40, Chapter 8, and that employees, agents, and contractors are 
authorized by the Board and Division to enter upon any property for the 
purpose of carrying out the provisions of Chapter 10 and Chapter 8, 
Title 40.
    OSM, in its October 24, 1994, issue letter (issue No. 2), asked 
Utah to clarify whether the Board and Division derived some or all of 
their powers, functions, or duties necessary for the administration of 
Utah's coal program from provisions contained in UCA 40-8. Utah stated 
in its December 7, 1994, response to this issue that UCA 40-10-4 was 
proposed for deletion from the Utah Coal Mining and Reclamation Act in 
order to remove ambiguity from Utah's statute to clarify which, if any, 
of the UCA 40-8 provisions would apply to the State's coal regulatory 
program. Utah clarified further that the reference to UCA 40-8 at UCA 
40-10-6 stems from the legislative branch awarding more powers in 1979 
to the Board and Division and that such reference is only for 
historical purposes. Utah also stated that should there be provisions 
of UCA 40-8 or 40-6 which are discovered to apply to coal or which, 
when changed, would impact Utah's coal regulatory program, these 
provisions would be included in a program amendment.
    Based upon the explanation provided by Utah and the State's 
assurance that the Board and Division do not derive powers needed to 
implement Utah's coal regulatory program from UCA 40-8, the Director 
finds that the deletion of the UCA 40-10-4 from the Coal Mining and 
Reclamation Act of 1979 is not inconsistent with SMCRA and approves the 
deletion of this statutory provision.

5. UCA 40-10-6.5 (1) and (3), Rulemaking Authority and Deletion of 
Administrative Procedures

    Utah proposed the addition of new language at UCA 40-10-6.5(1) to 
provide that ``[t]he board shall promulgate rules under this chapter in 
accordance with Title 63, Chapter 46a, Utah Administrative Rulemaking 
Act [UARA].'' OSM, in the January 21, 1981, Federal Register (46 FR 
5899), approved UARA provisions that were incorporated by Utah into its 
program as part of its original program submittal.
    Section 503(a)(7) of SMCRA provides, in part, that ``[e]ach state * 
* * shall submit to the Secretary, * * * a State program which 
demonstrates that such State has the capability of carrying out the 
provisions of this Act and meeting its purposes through * * * rules and 
regulations consistent with regulations issued by the Secretary 
pursuant to this Act.''
    The Director finds that the proposed addition at UCA 40-10-6.5(1) 
is not inconsistent with section 503(a)(7) of SMCRA and the Director 
approves the proposed addition of this statute.
    In addition, Utah proposed to delete UCA 40-10-6.5(3) in its 
entirety. Existing UCA 40-10-6.5(3) provides that:

[h]earings under this chapter shall be conducted in a manner which 
guarantees the parties' due process rights. This includes, but is 
not limited to, the right to examine any evidence presented to the 
[hearing] committee, the right to cross-examine any witness, and a 
prohibition of ex parte communication between any party and a member 
of the board.

    Utah proposed at UCA 40-10-6.7(2)(b) the addition of similar 
provisions to those proposed for deletion (see finding No. 6). The 
Director finds that, with the proposed addition of similar language at 
UCA 40-10-6.7(2)(b), the deletion of UCA 40-10-6.5(3) is not 
inconsistent with SMCRA. The Director approves the deletion of this 
statute.

6. UCA 40-10-6.7 and Utah Admin. R. 641-100-100, Administrative 
Procedures

    Utah proposed new administrative procedures at UCA 40-10-6.7 to 
provide:

    (1)(a) Informal adjudicative proceedings shall be conducted by 
the division under this chapter and shall be referred to as 
conferences or informal conferences.
    (b) The conduct of conferences shall be governed by rules 
adopted by the board which are in accordance with Title 63, Chapter 
46b, Administrative Procedures Act [UAPA].
    (2)(a)(i) Formal adjudicative proceedings shall be conducted by 
the division or board under this chapter and shall be referred to as 
hearings or public hearings.
    (ii) The conduct of hearings shall be governed by rules adopted 
by the board which are in accordance with Title 63, Chapter 46b, 
Administrative Procedures Act [UAPA].
    (b) Hearings under this chapter shall be conducted in a manner 
which guarantees the parties' due process rights. This includes:
    (i) the right to examine any evidence presented to the board;
    (ii) the right to cross-examine any witness; and
    (iii) a prohibition of ex parte communication between any party 
and a member of the board.
    (c) A verbatim record of each public hearing required by this 
chapter shall be made, and a transcript made available on the motion 
of any party or by order of the board.

    Although not explicitly stated in this provision, the Utah Admin. 
R. Parts 645 and 641 rules respectively apply to informal and formal 
adjudicative proceedings and provide clear direction on how formal and 
informal hearings are to be conducted. There are no specific 
counterpart provisions in SMCRA, however, as discussed in finding No. 5 
above, Utah's proposed deletion of UCA 40-10-6.5(3) in its entirety and 
the addition of the deleted provisions at UCA 40-10-6.7(2)(b) and 
(b)(i), (ii), and (iii) provides hearing requirements that are not 
inconsistent with SMCRA and its implementing Federal regulations.
    Utah, in this amendment, also proposed a revision to its Rules of 
Practice and Procedure of the Board at Utah Admin. R. 641-100-100 to 
add the phrase ``the Coal Program Rules'' in the 

[[Page 37006]]
sentence ``[t]he rules for informal adjudicative proceedings are in the 
Coal Program Rules, the Oil and Gas Conservation Rules and the Mineral 
Rules.'' OSM previously approved the informal proceeding provisions of 
Utah Admin. R. 645 and formal proceeding provisions of Utah Admin. R. 
641.
    The Director finds that the addition of new administrative 
procedures at UCA 40-10-6.7 is not inconsistent with SMCRA. OSM wishes 
to clarify that any future rules implemented by Utah in accordance with 
UAPA must be revised and determined to be consistent with SMCRA. In 
addition, the Director finds that the proposed revision at Utah Admin. 
R. 641-100-100 referencing Utah's coal mining rules at Utah Admin. R. 
Part 645 is not inconsistent with SMCRA. Therefore, the Director 
approves the addition of UCA 40-10-6.7 and the revision of Utah Admin. 
R. 641-100-100.

7. UCA 40-10-11(3), Schedule of Applicant's Mining Law Violations and 
Pattern of Violations Determination

    Utah proposed to revise UCA 40-10-11(3) to provide, in part:

[t]he applicant shall file with his permit application a schedule 
listing any and all notices of violations of this chapter, any state 
or federal program or law approved under the Surface Mining Control 
and Reclamation Act of 1977, 30 U.S.C. Sec. 1201 et seq., and any 
law, rule, or regulation of the United States, State of Utah, or any 
department or agency in the United States pertaining to air or water 
environmental protection incurred by the applicant in connection 
with any surface coal mining operation during the three-year period 
prior to the date of application. * * * no permit shall be issued to 
an applicant after a finding by the board * * * that the applicant, 
or the operator specified in the application, controls or has 
controlled mining operations with a demonstrated pattern of willful 
violations of this chapter of such nature and duration with such 
resulting irreparable damage to the environment as to indicate an 
intent not to comply with the provisions of this chapter.

    Emphasis added. As used by Utah in UCA 40-10-11(3), ``this 
chapter'' means UCA Title 40, Chapter 10.
    Section 510(c) of SMCRA provides, in part, that (1) the applicant 
shall file with the permit application a schedule listing any and all 
notices of violations of, among other things, ``this Act;'' and (2) the 
permit shall not be issued after a finding that the applicant, or the 
operator specified in the application, controls or has controlled 
mining operations with a demonstrated pattern of willful violations of 
``this Act'' of such nature and duration with such resulting 
irreparable damage to the environment as to indicate an intent not to 
comply with the provisions of ``this Act.'' The reference to ``this 
Act'' in section 510(c) of SMCRA includes SMCRA, the implementing 
Federal regulations, and all State and Federal programs approved under 
SMCRA. (See 48 FR 44344, 44389, September 28, 1983. See also 53 FR 
38868, 38882-38883, October 3, 1988.)
    With regard to the first sentence of UCA 40-10-11(3) that requires 
that the permit application contain a schedule listing any and all 
notices of violations, the provision encompasses violations of all 
State and Federal programs approved under SMCRA, but it does not 
encompass violations of SMCRA itself or violations of the implementing 
Federal regulations. With regard to the portion of UCA 40-10-11(3) that 
deals with the pattern of violations, ``this chapter'' encompasses only 
violations of the State statute. It does not encompass violations of 
SMCRA, the implementing Federal regulations, any State and Federal 
programs enacted under SMCRA, or other provisions of the approved Utah 
program.
    OSM discussed these issues in its October 24, 1994, issue letter to 
Utah (issue No. 4). Utah agreed in its December 7, 1994, response to 
OSM's issue letter that UCA 40-10-11(3) needed to be revised in 
accordance with the deficiencies identified in OSM's issue letter. Utah 
stated that it would, in its 1996 legislative session, pursue the 
changes to UCA 40-10-11(3).
    Based upon the above, the Director, with the requirement that Utah 
revise UCA 40-10-11(3) to require that (1) the schedule of the 
applicant's mining law violations required in connection with a permit 
application includes violations of SMCRA and the implementing Federal 
regulations and (2) the pattern of violations determination discussed 
therein includes violations of SMCRA, the implementing Federal 
regulations, any State or Federal programs enacted under SMCRA, and 
other provisions of the approved Utah program, finds UCA 40-10-11(3) to 
be no less stringent than section 510(c) of SMCRA. The Director 
approves the proposed revisions at UCA 40-10-11(3).

8. UCA 40-10-11(5)(a), Remining Operation Violations Resulting From 
Unanticipated Events or Conditions

    Proposed UCA 40-10-11(5)(a) provides that the prohibition of UCA 
40-10-11(3), which limits the issuance of a permit for violations 
(discussed above at finding No. 7), does not apply to a permit 
application after October 14, 1992, if the violation resulted from an 
unanticipated event or condition that occurred at a surface coal mining 
operation on lands eligible for remining under a permit held by the 
person making the application. This provision is similar to section 
510(e) of SMCRA, except that section 510(e) of SMCRA applies after the 
date of enactment of the Energy Policy Act of 1992, which was October 
24, 1992. OSM discussed the difference in dates in its October 24, 
1994, issue letter to Utah (issue No. 4). Utah stated in its December 
7, 1994, response to OSM's issue letter that the October 14 date at UCA 
40-10-11(5)(a) is a typographical error and that the correct date 
should be October 24.
    With the requirement that Utah revise UCA 40-10-11(5)(a) to reflect 
an effective date of ``after October 24, 1992,'' the Director finds UCA 
40-10-11(5)(a) to be no less stringent than section 510(e) of SMCRA. 
The Director approves proposed UCA 40-10-11(5)(a).

9. UCA 40-10-13(2)(b), Location of Informal Conferences

    Existing UCA 40-10-13(2)(b) states that, if a person files written 
objections on an initially-proposed or revised mine permit application, 
the Division shall hold an informal conference within a reasonable time 
of the receipt of the objections or request. Utah proposed to revise 
this rule to further state, among other things, that:

[t]he conference shall be informal and shall be conducted in 
accordance with the procedures described in Subsection (b), 
irrespective of the requirements of Section [UCA] 63-46b-5, 
Administrative Procedures Act. The conference may be held in the 
locality of the coal mining and reclamation operation if requested 
within a reasonable time after written objections or the request for 
an informal conference are received by the division.

    Emphasis added. The procedures described in subsection (b) of UCA 
40-10-13(2) are consistent with the procedures for informal conferences 
established by section 513(b) of SMCRA, except that SMCRA requires that 
the regulatory authority shall hold an informal conference in the 
locality of the proposed mining, if requested within a reasonable time 
of the receipt of such written objections or the request.
    Because Utah did not submit any rationale for this statute, it is 
not clear what it intended with the use of the word ``may'' instead of 
``shall.'' It is possible that Utah intended, as section 513(b) of 
SMCRA requires, that the Division would always hold an informal 
conference in the locality of the proposed mining when requested within 
a reasonable time after receipt of the objections or request. However, 
the use of the word ``may'' in the proposed 

[[Page 37007]]
statute would appear to allow Utah discretion to not hold the informal 
conference in the locality of the proposed mining even when the 
Division receives a request to do so within a reasonable time. The 
Director finds that UCA 40-10-13(2)(b), to the extent that the first 
sentence of the proposed new language at this statute requires that the 
conference be informal and be conducted in accordance with the 
procedures for informal conferences, is no less stringent than section 
513(b) of SMCRA, and approves this part of the statute. However, to the 
extent that the second sentence Utah proposed to add at UCA 40-10-
13(2)(b) allows the Division to possibly not hold the informal 
conference in the locality of the coal mining and reclamation operation 
when such conference is requested within a reasonable time, the 
Director finds UCA 40-10-13(2)(b) is less stringent than section 513(b) 
of SMCRA. Utah stated in its December 7, 1994, response to OSM's 
October 24, 1994, issue letter (issue No. 6), that it would pursue a 
change from the discretionary ``may'' in holding the informal 
conference in the locality of the mining operation to a mandatory 
``shall'' in its 1995 legislative session.
    Therefore, with the requirement that Utah revise UCA 40-10-13(2)(b) 
to change the word ``may'' to ``shall'' in the sentence that begins 
``[t]he conference may be held in the locality of the coal mining and 
reclamation operation * * *,'' the Director finds UCA 40-10-13(2)(b) to 
be no less stringent than section 513(b) of SMCRA. The Director 
approves the proposed revisions at UCA 40-10-13(2)(b).

10. UCA 40-10-14(6), Appeal to District Court and Further Review

    In response to the required amendment at 30 CFR 944.16(b) 
(September 27, 1994; 59 FR 49185, 49186; finding No. 3), which required 
Utah to alleviate a discrepancy in the requirements addressing the 
jurisdiction of the Utah Supreme Court and the State district courts, 
and at its own initiative, Utah proposed to revise UCA 40-10-14(6). 
Specifically, Utah proposed that:

    (a) [a]n applicant or person with an interest which is or may be 
adversely affected who has participated in the proceedings [to 
determine whether a permit should be issued] as an objector, and who 
is aggrieved by the decision of the board, may appeal the decision 
of the board directly to the Utah Supreme Court.
    (b) [i]f the board fails to act within the time limits specified 
in this chapter [UCA Title 40, Chapter 10], the applicant or any 
person with an interest which is or may be adversely affected, who 
has requested a hearing in accordance with Subsection (3), may bring 
an action in the district court for the county in which the proposed 
operation is located.
    (c) [a]ny party to the action in district court may appeal from 
the final judgment, order, or decree of the district court.
    (d) [t]ime frames for appeals under Subsections (6) (a) through 
(c) shall be consistent with applicable provisions in Section 63-46-
14, Administrative Procedures Act.

    (Italics indicate new language proposed to be added to this 
statute.) Utah also proposed the deletion of the provision at UCA 40-
10-14(6)(b) that required that ``[r]eview of the adjudication of the 
district court is by the [Utah] Supreme Court.''
    Section 526(e) of SMCRA provides, in pertinent part, that actions 
of the State regulatory authority pursuant to an approved State program 
are subject to judicial review by a court of competent jurisdiction in 
accordance with State law.
    The Director finds that Utah's proposed procedures for further 
review and appeal of decisions concerning permit applications at UCA 
40-10-14(6) are consistent with and no less stringent than the judicial 
review requirements of section 526(e) of SMCRA. Therefore, the Director 
approves proposed UCA 40-10-14(6). The Director also notes that the 
proposed revisions at UCA 40-10-14(6) satisfy the required amendment at 
30 CFR 944.16(b) (59 FR 49185, 49186; September 27, 1994; finding No. 
3), which required Utah to amend this statute to eliminate 
inconsistencies regarding appellate procedures. Accordingly, the 
Director is removing the required amendment at 30 CFR 9434.16(b).

11. UCA 40-10-16(6) (b) through (d), Informal Conferences or Formal 
Hearings Pertaining to Performance Bond Release Decisions

    Utah proposed to delete its procedural requirements pertaining to 
bond release decisions at UCA 40-10-16(6) (b) through (d) and to 
replace them with a reference in UCA 40-10-16(6)(d) to the Board's 
Rules of Practice and Procedure, which are at Utah Admin. R. Part 641. 
Existing UCA 40-10-16(6) is substantively identical to the provisions 
of sections 519 (f), (g), and (h) of SMCRA, which provides, in 
pertinent part, the requirements for advertising notice of a hearing, 
establishing an informal conference to resolve written objections, 
gathering evidence, and compiling a verbatim record and making a 
transcript available.
    The procedural requirements at sections 519 (f), (g), and (h) of 
SMCRA are contained in the referenced Rules of Practice and Procedure 
of the Board at Utah Admin. R. Part 641. In addition, Utah has 
clarified, that for the purposes of UCA 40-10-16(6), all of the 
provisions of Utah Admin. R. Part 641 apply to hearings held for the 
purpose of bond release.
    There is no counterpart provision in SMCRA similar to Utah's 
provision at UCA 40-10-16(6)(c) that allows an informal conference to 
be converted to a formal proceeding under the standards set forth at 
UCA 63-46b-4 of UAPA. OSM requested in its October 24, 1994, issue 
letter (issue No. 8) that Utah verify that all procedural requirements 
accompanying a formal hearing will occur prior to continuing the 
conference as a formal proceeding when an informal conference is 
converted to a formal proceeding under UCA 63-46b-4. Utah responded in 
its December 7, 1994, letter that when a hearing is converted to a 
formal proceeding from an informal proceeding, all of the requirements 
of a formal proceeding apply.
    Based upon Utah's assurances that the provisions of Utah Admin. R. 
Part 641, Rules of Practice and Procedure of the Board, provide for 
counterpart requirements to sections 519 (f), (g), and (h) of SMCRA, 
apply to bond release hearings, and that, when an informal hearing is 
converted to a formal hearing, the requirements of a formal proceeding 
apply, the Director finds that the revisions proposed by Utah at UCA 
40-10-16(6) are no less stringent than sections 519 (f), (g), and (h) 
of SMCRA. The Director approves the revised statute.

12. UCA 40-10-18(4) (a) through (c), Damage Resulting From Underground 
Coal Mining Subsidence

    Utah proposed new language at UCA 40-10-18(4) (a) through (c) to 
provide:

    (a) [u]nderground coal mining operations conducted after October 
24, 1994, shall be subject to the following requirement: The 
permittee shall promptly repair, or compensate for, material damage 
resulting from subsidence caused to any occupied residential 
dwelling and related structures of noncommercial building due to 
underground coal mining operations. Repair of damage will include 
rehabilitation, restoration, or replacement of the damaged occupied 
residential dwelling and related structures of noncommercial 
building. Compensation shall be provided to the owner of the damaged 
occupied residential dwelling and related structures or 
noncommercial building and will be in the full amount of the 
diminution in value resulting from the subsidence. Compensation may 
be accomplished by the purchase, prior to mining, of a 
noncancellable premium prepaid insurance policy.

[[Page 37008]]

    (b) [n]othing in Subsection (4) shall be construed to prohibit 
or interrupt underground coal mining operations.
    (c) [w]ithin one year after the date of enactment of Subsection 
(4), the board shall adopt final rules to implement Subsection (4).

    The proposed language at UCA 40-10-18(4)(a) is substantively 
identical to the language provided at section 720(a)(1) of SMCRA, which 
requires repair or compensation for material damage to certain 
structures resulting from subsidence due to underground coal mining. 
Therefore, the Director finds that UCA 40-10-18(4)(a) is no less 
stringent than SMCRA and approves the statute.
    The proposed language at UCA 40-10-18(4)(b) is identical to the 
last sentence of section 720(a)(2) of SMCRA, which provides that 
``[n]othing in this section shall be construed to prohibit or interrupt 
underground coal mining operations.'' This proposed language is 
consistent with section 720(a)(2) of SMCRA and the Director approves 
it. However, UCA 40-10-18(4)(b) lacks a counterpart provision to the 
first sentence of section 720(a)(2), which requires the prompt 
replacement of any drinking, domestic, or residential water supply from 
a well or spring in existence prior to the application for a surface 
coal mining and reclamation permit, which has been affected by 
contamination, diminution, or interruption resulting from underground 
coal mining operations. As stated in the March 31, 1995, Federal 
Register final rule (60 FR 16722, 16745), if the Director determines 
that certain State program provisions should be amended in order to be 
made no less effective that the revised Federal rules, the individual 
States will be notified in accordance with the provisions of 30 CFR 
732.17. For Utah, this may mean that a 30 CFR part 732 issue letter may 
be written if a determination is made that Utah's program is less 
effective than the Federal rules concerning the protection of water 
supplies affected by underground coal mining operations.
    The proposed language at UCA 40-10-18(4)(c) is Utah's counterpart 
provisions to section 720(b) of SMCRA, which requires the promulgation, 
after providing notice and an opportunity for public comment, of final 
regulations to implement the subsidence provisions of section 720 of 
SMCRA. The Director finds that UCA 40-10-18(4)(c) is no less stringent 
than section 720(b) of SMCRA and approves it.

13. UCA 40-10-20(2)(e)(ii), Contest of Violation or Amount of Civil 
Penalty

    In response to the Director's previous finding that UCA 40-10-20(3) 
was less stringent than section 518(c) of SMCRA, and the Director's 
deferred decision on this statutory provision (September 27, 1994; 59 
FR 49185, 49187; finding No. 5), Utah proposed to create UCA 40-10-
20(2)(e)(ii) to require that, if the operator charged with a violation 
fails to forward the amount of the penalty to the Division within 30 
days of receipt of the results of an informal conference, the operator 
waives any opportunity ``for further review of the violation or to 
contest the violation.''
    Section 518(c) of SMCRA provides, in part, that failure of the 
operator to forward the amount of the penalty to the Secretary of the 
Interior within 30 days shall result in a waiver of all legal rights to 
contest the violation or the amount of the penalty. Utah's proposed 
phrase ``for further review of the violation or to contest the 
violation'' addresses an operator's waiver of the right to contest the 
fact of the violation, but does not address an operator's waiver of the 
right to contest the amount of the civil penalty.
    The Director finds UCA 40-10-22(2)(e)(ii) to be less stringent than 
section 518(c) of SMCRA to the extent that it does not preclude an 
operator from contesting the amount of the penalty when the operator 
does not forward the amount of the civil penalty to the Division within 
30 days of the operator's receipt of the results of the informal 
conference. Utah stated in its December 7, 1994, response to OSM's 
October 24, 1994, issue letter (issue No. 10) that it would pursue 
clarification in its 1996 legislative session of what is waived when an 
operator fails to forward the amount of the penalty to the Division.
    Therefore, with the requirement that Utah revise UCA 40-10-
20(2)(e)(ii) to provide for a waiver of the operator's right to contest 
the amount of the civil penalty when the operator fails to forward the 
amount of the penalty to the regulatory authority within 30 days of 
receipt of the results of the informal conference, the Director finds 
UCA 40-10-20(2)(e)(ii) to be no less stringent than section 518(c) of 
SMCRA. The Director approves the proposed statute.

14. UCA 40-10-22(2)(b), Cessation Orders, Abatement Notices, and Show 
Cause Orders

    Utah proposed at UCA 40-10-22(2)(b), among other things, that any 
relief granted by a State district court to enforce an order pursuant 
to UCA 40-10-22(2)(a)(i) shall continue in effect until the completion 
or final termination of all proceedings for review of such order, 
unless prior to completion or termination, the Utah Supreme Court on 
review grants a stay of enforcement or sets aside or modifies the 
Board's order that is being appealed.
    Section 521(c) of SMCRA provides that, under similar circumstances, 
any relief granted by the Federal district court shall continue in 
effect until completion or final termination of all proceedings for 
review of such order, unless prior thereto, the district court granting 
such relief sets it aside or modifies it. Section 521(d) of SMCRA 
requires that an approved State program contain the same or similar 
procedural requirements relating to the enforcement provisions of 
section 521 of SMCRA.
    OSM requested in its October 24, 1994, issue letter that Utah 
clarify whether the provisions of UCA 40-10-22(2)(b) allow the State 
district court to set aside or modify its own relief as section 521(d) 
of SMCRA does (issue No. 11). Utah stated in its December 7, 1994, 
response to OSM's issue letter that State law provides for the Utah 
Supreme Court to be the authority for modifying or setting aside a 
Board order or decision, and that, to the extent that any judicial body 
can reconsider its own order or decision, the State district court can 
also modify or set aside its own order or decision.
    Based upon Utah's explanation of its rationale for the proposed 
revisions at UCA 40-10-22(2)(b), the Director finds that this provision 
is consistent with the provisions of section 521(c) of SMCRA. The 
Director approves the proposed revisions to UCA 40-10-22(2)(b).
15. UCA 40-10-22(3)(e), Costs Assessed Against Either Party Adversely 
Affected by the Board's Notice or Order

    Utah proposed to revise UCA 40-10-22(3)(e) to provide:

    [w]henever an order is entered under this section or as a result 
of any adjudicative proceeding under this chapter, at the request of 
any person, a sum equal to the aggregate amount of all costs and 
expenses (including attorney fees) as determined by the board to 
have been reasonably incurred by that person in connection with his 
participation in the proceedings, including any judicial review of 
agency actions, may be assessed against either party as the court, 
resulting from judicial review, or the board, resulting from 
adjudicative proceedings, deems proper.

    UCA 40-10-22(3)(e) is similar to section 525(e) of SMCRA, except 
Utah is proposing to change the term ``administrative proceedings'' to 
``adjudicative proceedings.'' This 

[[Page 37009]]
change is consistent with the addition of a definition for the term 
``adjudicative proceeding'' proposed by Utah in this amendment at UCA 
40-10-3(1). As discussed in finding No. 3, the definition of 
``adjudicative proceeding'' as proposed by Utah at UCA 40-10-3(1) does 
not encompass judicial review.
    Use of the term ``adjudicative proceeding'' in UCA 40-10-22(3)(e) 
allows Utah to limit the reimbursement of costs and expenses incurred 
through participation in the proceedings to only proceedings which are 
adjudicatory in nature. Section 525(e) of SMCRA provides for the award 
of costs and expenses incurred in connection with ``any administrative 
proceeding.'' Prior to Utah's adoption of the amendment under 
consideration in this rulemaking, UCA 40-10-22(3)(e) contained similar 
language.
    Both the Interior Board of Land Appeals (IBLA) and the U.S. 
District Court for the Utah District declined to delineate the full 
reach of the phrase ``any administrative proceeding'' in section 525(e) 
of SMCRA when presented with an opportunity to do so. Natural Resources 
Defense Council, Inc. (NRDC), et al. v. Office of Surface Mining 
Reclamation and Enforcement (OSM) et al., 107 IBLA 339, 365 n. 12 
(1989); Utah International, Inc. v. Department of the Interior, 643 F. 
Supp. 819, 825 n. 25 (D. Utah 1986). However, in deciding these cases, 
both IBLA and the U.S. District Court held that this phrase should not 
be read literally, but rather must be interpreted in the context of the 
legislative history of SMCRA and case law concerning attorney fee and 
expense awards under other statutes. Both opinions contain extensive 
dicta suggesting that the phrase could or should be read to include 
only administrative proceedings of an adjudicatory nature, not 
proceedings that are part of the fact-finding process culminating in an 
initial agency decision, e.g., informal conferences on permit 
applications. NRDC, supra, at 354-360; Utah International, supra, at 
820-825.
    Furthermore, the Federal regulations at 43 CFR 4.1290 and 4.1291, 
which implement this section of SMCRA in part, provide for an award of 
costs and expenses only in connection with administrative proceedings 
resulting in the issuance of a final order by an administrative law 
judge or IBLA. The preamble to these regulations notes that the 
Secretary rejected comments requesting the scope of the rules be 
expanded to allow the award of costs and expenses in other types of 
administrative proceedings, such as rulemaking (4 CFR 34385, August 3, 
1978).
    Therefore, the Director finds the Utah statutory provision at UCA 
40-10-22(3)(e) that allows for award of costs and expenses in 
connection with an adjudicatory proceeding is not inconsistent with 
section 525(e) of SMCRA and its implementing regulations, as 
interpreted by case law. The Director approves the proposed revisions 
to this sttatute.
    The Director's approval is based upon OSM's interpretation that the 
term ``adjudicatory proceedings,'' as used at UCA 40-10-22(3)(e) 
includes all classes of actions in which participants would be eligible 
for an award of costs and expenses under 43 CFR 4.1290 through 4.1295. 
The Director notes that, as more case law develops, it may be necessary 
in the future to further expand the provisions at UCA 40-10-22(3)(e) to 
include other types of administrative proceedings. In that event, OSM 
would notify Utah in accordance with 30 CFR Part 732.

16. UCA 40-10-28 (1)(a)(ii) and (2)(a), Recovery of Reclamation Costs 
and Liens Against Reclaimed Lands

    In response to the Director's previous finding that UCA 40-10-
28(1)(a)(ii) and 40-10-28(2)(a) were not consistent with sections 
407(e) and 408(a) of SMCRA and the Director's deferred decision on 
these statutory provisions (September 27, 1994; 59 FR 49185, 49187-88; 
finding Nos. 7 and 9), Utah proposed to add new language to its 
provisions at UCA 40-10-28(1)(a)(ii) and UCA 40-10-28(2)(a).
    Utah proposed at UCA 40-10-28(1)(a)(ii) to require that the sale 
price of land that is sold to the State or local government for public 
purposes may not be less than the actual ``cost of the purchase of the 
property by the State plus the'' costs of reclaiming the land. This 
requirement is analogous to and no less stringent than the counterpart 
Federal provision at section 407(e) of SMCRA, which provides that the 
sale price of land sold to the State or local government for public 
purposes may in no case be less than the cost of purchase and 
reclamation of such land.
    Utah also proposed the addition of a new provision at UCA 40-10-
28(2)(a) to provide, in addition to other criteria, that a lien will be 
placed against reclaimed land except where the surface owner ``owned 
the land prior to May 2, 1977.'' This specific requirement is analogous 
to and no less stringent than the requirement of section 408(a) of 
SMCRA, which provides, in part, that no lien shall be filed against the 
property of any person who owned the land prior to May 2, 1977.
    As discussed above, the revisions proposed by Utah in this 
amendment at UCA 40-10-28(1)(a)(ii) and 40-10-28(2)(a) are consistent 
with sections 407(e) and 408(a) of SMCRA. Therefore, the Director 
approves the proposed revisions to these statutes.

17. UCA 40-10-30, Judicial Review of Orders or Rules

    Utah proposed new provisions at UCA 40-10-30 to provide, in part:

    (1) [j]udicial review of adjudicative proceedings under this 
chapter is governed by Title 63, Chapter 46b, Administrative 
Procedures Act, and provisions of this chapter consistent with the 
Administrative Procedures Act.
    (2) [j]udicial review of the board's rulemaking procedures and 
rules adopted under this chapter is governed by Title 63, Chapter 
46a, Utah Administrative Rulemaking Act.
    (3) [a]n appeal from an order of the board shall be directly to 
the Utah Supreme Court and is not a trial de novo. * * *
    (4) [a]n action or appeal involving an order of the board shall 
be determined as expeditiously as feasible and in accordance with 
Subsection 78-2-2(3)(e)(iv). The Utah Supreme Court shall determine 
the issues on both questions of law and fact and shall affirm or set 
aside the rule or order, enjoin or stay the effective date of agency 
action, or remand the cause to the board for further proceedings. * 
* *
    (5) [i]f the board fails to perform any act or duty under this 
chapter which is not discretionary, the aggrieved person may bring 
an action in the district court of the county in which the operation 
or proposed operation is located.

(Italics indicate new language proposed to be added to this statute.) 
Utah also proposed to delete the requirement at existing UCA 40-10-
30(3) that ``[r]eview of the adjudication of the district court is by 
the Supreme Court.''
    The proposed revisions at UCA 40-10-30 are consistent with the 
requirements of the counterpart Federal provisions of section 526 of 
SMCRA. Therefore, the Director finds that the proposed revisions at UCA 
40-10-30 are no less stringent than section 526 of SMCRA and approves 
them.

IV. Summary and Disposition of Comments

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

1. Public Comments

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

[[Page 37010]]


2. Federal Agency Comments
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Utah program and Utah AMLR plan.
    In a telephone conversation on May 11, 1994, the Bureau of Mines 
stated that it had no comments on the proposed amendment 
(administrative record No. UT-922).
    The U.S. Army Corps of Engineers responded in a letter dated May 
23, 1994, that it found the proposed changes to be satisfactory 
(administrative record No. UT-930).
    In a letter dated May 18, 1995, the Mine Safety and Health 
Administration stated that its personnel had reviewed the proposed 
amendment for possible conflicts with MSHA regulations and that no 
conflicts between the two were found (administrative record No. UT-
1056).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). 
None of the revisions that Utah proposed to make in its amendment 
pertain to air or water quality standards. Therefore, OSM did not 
request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record No. UT-919). It 
responded on May 9, 1994, that it believed that the proposed amendment 
would have no impact on water quality standards promulgated under the 
authority of the Clean Water Act, as amended (33 U.S.C. 1251 et seq.).

4. State Historic Preservation Officer (SHPO)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO (administrative record Nos. UT-919). 
The SHPO did not respond to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves, with additional 
requirements, Utah's proposed amendment as submitted on April 14, 1994, 
and as revised and supplemented with additional explanatory information 
on December 7, 1994.
    The Director approves the following sections of the proposed 
amendment, as discussed in: finding No. 1, UCA 40-10-2 (1) through (6), 
concerning purpose; UCA 40-10-3 (2) through (7), (9) through (20), and 
(22) [recodification], concerning the definitions of certain terms; UCA 
40-10-6.5 (2) and (3) [recodification], concerning rulemaking 
procedures; UCA 40-10-7(1), concerning prohibited financial interest in 
mining operations; UCA 40-10-8 (1) and (3), concerning exploration 
rules issued by the Division and penalties for violations; UCA 40-10-
10(2), concerning submission of the application and reclamation plan; 
UCA 40-10-11 (1), (2)(a) through (d), (e)(ii), (f) (i) and (iii), and 
(4) (a) and (b), concerning Division action on the permit application, 
requirements for approval, and restoration of prime farmland; UCA 40-
10-12(3), concerning revision or modification of permit provisions; UCA 
40-10-14 (2) and (3), concerning notice to the applicant of approval or 
disapproval of the application and hearings; UCA 40-10-15(1), 
concerning performance bonds; UCA 40-10-16 (1), (3), and (6)(a), 
concerning release of the performance bond, surety, or deposit, action 
on the application for relief of bond, and formal hearings or informal 
conferences; UCA 40-10-17 (2)(g), (2)(j) (i)(B) and (ii) (A) and (B), 
(2)(m), (2) (o) and (o)(i), (iv), and (v), (2)(p)(i)(F), (ii), and 
(iii), (2)(t)(i), (2)(v)(viii), (3)(b) and (b)(ii), (3)(c), (4) (a) and 
(d), and (5), concerning performance standards for all coal mining and 
reclamation operations, additional standards for steep-slope surface 
coal mining, and variances; UCA 40-10-18 (1), (2)(i)(i)(B), (2)(j), and 
(5), concerning underground coal mining, rules regarding surface 
effects, operator requirements for underground coal mining, and 
applicability of other chapter provisions; UCA 40-10-19 (1) and (2)(a), 
concerning information provided by the permittee to the Division and 
inspections by the Division; UCA 40-10-21(1)(a) (i) and (ii), and 
(2)(a)(ii), and (5), concerning civil action to compel compliance with 
chapter, jurisdiction, and other rights not affected; UCA 40-10-22 
(1)(c) and (2)(a)(i), concerning violation of chapter or permit 
conditions and inspections; UCA 40-10-24(1)(c)(i) (A), (B), (C), and 
(D), and (ii), (e) (i), (ii), and (iii), and (2) (a) and (b), 
concerning determination of unsuitability of lands for surface coal 
mining, petitions, and public hearings; UCA 40-10-25(2) (d) and (e) 
[recodification] and (3) and (3)(a), concerning abandoned mine 
reclamation program, expenditure priorities, and eligible lands and 
water; and UCA 40-10-27(5)(a) and (12)(b), concerning entry upon land 
adversely affected by past coal mining practices and State acquisition 
of lands; finding No. 2, UCA 40-10-3 (8) and (21), concerning 
definitions for the terms ``lands eligible for remining'' and 
``unanticipated event or condition;'' UCA 40-10-11(5) (b), and (c), 
concerning Division action on permit application and requirements for 
approval; UCA 40-10-17(2)(t)(ii), concerning performance standards for 
lands eligible for remining; UCA 40-10-22 (1)(d) and (3) (a), (b), (d) 
and (f), concerning violations of chapter or permit conditions, 
cessation orders, abatement notices, or show cause orders, suspension 
or revocation of permits, and reviews,; and UCA 40-10-25(2)(d) 
[deletion], 3(b), (4), (5), and (6), concerning abandoned mine 
reclamation program, eligible lands and water; finding No. 4, UCA 40-
10-4, concerning repeal of the applicability of provisions of UCA 40-8; 
finding No. 5, UCA 40-10-6.5 (1) and (3), concerning rulemaking 
authority and deletion of administrative procedures; finding No. 6, UCA 
UCA 40-10-6.7 and Utah Admin. R. 641-100-100, concerning administrative 
procedures; finding No. 10, UCA 40-10-14(6), concerning appeal to 
district court and further review; finding No. 11, UCA 40-10-16(6) (b) 
through (d), concerning informal conferences or formal hearings 
pertaining to performance bond release decisions; finding No. 12, UCA 
40-10-18(4), concerning damage resulting from underground coal mining 
subsidence; finding No. 15, UCA 40-10-22(2)(b), concerning cessation 
orders, abatement notices, and show cause orders; finding No. 15, UCA 
40-10-22(3)(e), concerning costs assessed against either party 
adversely affected by the Board's notice or order; finding No. 16, UCA 
40-10-28(1)(a)(ii) and (2)(a), concerning recovery of reclamation costs 
and liens against reclaimed lands; and finding No. 17, UCA 40-10-30, 
concerning judicial review of rules or orders.
    With the requirement that Utah further revise its statutes, the 
Director approves, as discussed in: finding No. 3, UCA 40-10-3(1), 
concerning the definition of ``adjudicative proceeding;'' finding No. 
7, UCA 40-10-11(3), concerning the schedule of an applicant's mining 
law violations and pattern of violations determination; finding No. 8, 
UCA 40-10-11(5)(a), concerning remining operation violations resulting 
from unanticipated events or conditions; finding No. 9, UCA 40-10-
13(2)(b), concerning the 

[[Page 37011]]
location of informal conferences; and finding No. 13, UCA 40-10-
20(2)(e)(ii), concerning contest of the violation or the amount of the 
civil penalty.
    The Director approves the statutes and rule as proposed by Utah 
with the provision that they be fully promulgated in identical form to 
the statutes and rule submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 944, codifying decisions 
concerning the Utah program and Utah plan, are being amended to 
implement this decision. This final rule is being made effective 
immediately to expedite the State program and plan amendment process 
and to encourage States to bring their programs into conformity with 
the Federal standards without undue delay. Consistency of State and 
Federal standards is required by SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

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

2. Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments or AMLR plans and revisions thereof since each such 
program or plan is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met. Decisions on proposed State AMLR plans 
and revisions thereof submitted by a State are based on a determination 
of whether the submittal meets the requirements of Title IV of SMCRA 
(30 U.S.C. 1231-1243) and the applicable Federal regulations at 30 CFR 
Parts 884 and 888.

3. National Environmental Policy Act

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

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
established by SMCRA or previously promulgated by OSM will be 
implemented by the State. In making the determination as to whether 
this rule would have a significant economic impact, the Department 
relied upon the data and assumptions for the counterpart Federal 
regulations.

List of Subjects in 30 CFR Part 944

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 13, 1995.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.

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

PART 944--UTAH

    1. The authority citation for Part 944 continues to read as 
follows:

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

    2. Section 944.15 is amended by adding paragraph (ff) to read as 
follows;


Sec. 944.15  Approval of amendments to State regulatory program.

* * * * *
    (ff) The revisions to or additions of the following sections of the 
Utah Code Annotated 1953 (UCA), Title 40, and the Utah Administrative 
Rules (Utah Admin. R.) for Coal Mining, as submitted to OSM on April 
14, 1994, and as revised and supplemented with explanatory information 
on December 7, 1994, are approved effective July 19, 1995.

UCA 40-10-2 (1) through (6)........  Purpose.                           
40-10-3(1).........................  Definition of ``Adjudicative       
                                      Proceeding.''                     
40-10-3 (2) through (7), (9)         Recodification of Definitions.     
 through (20), and (22).                                                
40-10-3 (8) and (21)...............  Definitions of ``Lands Eligible for
                                      Remining'' and ``Unanticipated    
                                      Event or Condition.''             
40-10-4............................  Repeal of the Applicability        
                                      Provisions of 40-8.               
40-10-6.5(1).......................  Rulemaking Authority.              
40-10-6.5 (2) and (3)..............  Recodification of Rulemaking       
                                      Procedures.                       
40-10-6.5(3).......................  Deletion of Administrative         
                                      Procedures.                       
40-10-6.7..........................  Administrative Procedures.         
40-10-7(1).........................  Prohibited Financial Interests in  
                                      Mining Operations.                
40-10-8 (1) and (3)................  Exploration Rules Issued by        
                                      Division and Penalty for          
                                      Violations.                       
40-10-10(2)........................  Submission of Applications and     
                                      Reclamation Plans.                
40-10-11 (1), (2)(a) through (d),    Division of Oil, Gas and Mining    
 (e)(ii), (f) (i) and (iii), and      (Division) Action on Permit       
 (4) (a) and (b).                     Applications, Requirements for    
                                      Approval, and Restoration of Prime
                                      Farmland.                         
40-10-11(3)........................  Schedule of Applicant's Mining Law 
                                      Violations and Pattern of         
                                      Violations Determination.         

[[Page 37012]]
                                                                        
40-10-11(5)(a).....................  Remining Operation Violations      
                                      Resulting From Unanticipated      
                                      Events or Conditions.             
40-10-(5) (b) and (c)..............  Division Action on Permit          
                                      Applications and Requirements for 
                                      Approval.                         
40-10-12(3)........................  Revisions or Modifications of      
                                      Permit Provisions.                
40-10-13(2)(b).....................  Location of Informal Conferences.  
40-10-14 (2) and (3)...............  Notice to Applicant of Approval or 
                                      Disapproval of Application and    
                                      Hearings.                         
40-10-14(6)........................  Appeals to District Court and      
                                      Further Review.                   
40-10-15(1)........................  Performance Bonds.                 
40-10-16 (1), (3), and (6)(a)......  Release of the Performance Bond,   
                                      Surety, or Deposit, Action on     
                                      Application for Relief of Bond,   
                                      and Formal Hearings or Informal   
                                      Conferences.                      
40-10-16(6) (b) through (d)........  Information Conferences or Formal  
                                      Hearings Pertaining to Performance
                                      Bond Release Decisions.           
40-10-17(2) (g), (2)(j)(i) (B) and   Performance Standards for All Coal 
 (ii)(A) and (B), (2)(m), (2) (o),    Mining and Reclamation Operations,
 and (o)(i), (iv), and (v), (2)(p)    Additional Standards for Steep-   
 (i)(F), (ii), and (iii),             Slope Surface Coal Mining, and    
 (2)(t)(i), (2) (v)(viii), (3) (b)    Variances.                        
 and (b)(ii), (3)(c), (4) (a) and                                       
 (d), and (5).                                                          
40-10-17(2)(t)(ii).................  Performance Standards for All Coal 
                                      Mining and Reclamation Operations.
40-10-18 (1), (2)(i)(i)(B), (2)(j),  Underground Coal Mining, Rules     
 and (5).                             Regarding Surface Effects,        
                                      Operator Requirements for         
                                      Underground Coal Mining, and      
                                      Applicability of Other Chapter    
                                      Provisions.                       
40-10-18(4) (a) through (c)........  Damage Resulting From Underground  
                                      Coal Mining Subsidence.           
40-10-19 (1) and (2)(a)............  Information Provided by Permittee  
                                      to Division and Inspections by    
                                      Division.                         
40-10-20(2)(e)(ii).................  Contest of the Violation or the    
                                      Amount of the Civil Penalty.      
40-10-21 (1)(a) (i) and (ii),        Civil Action to Compel Compliance  
 (2)(a)(ii), and (5).                 with Chapter, Jurisdiction, and   
                                      Other Rights Not Affected.        
40-10-22 (1)(c) and (2)(a)(i)......  Violations of Chapter or Permit    
                                      Conditions and Inspections.       
40-10-22 (1)(d) and (3) (a), (b),    Violations of Chapter or Permit    
 (d), and (f).                        Conditions, Cessation Orders,     
                                      Abatement Notices, or Show Cause  
                                      Orders, and Suspensions or        
                                      Revocations of Permit.            
40-10-22(2)(b).....................  Cessation Orders, Abatement        
                                      Notices, and Show Cause Orders.   
40-10-22(3)(e).....................  Costs Assessed Against Either      
                                      Party.                            
40-10-24(1)(c)(i) (A), (B), (C),     Determination of Unsuitability of  
 and (D), and (ii), (e) (i), (ii),    Lands for Surface Coal Mining,    
 and (iii), and (2) (a) and (b).      Petitions, and Public Hearings.   
40-10-30...........................  Judicial Review of Rules or Orders.
Utah Admin. R. 641-100-100.........  Administrative Procedures.         
                                                                        


    3. Section 944.16 is amended by removing and reserving paragraph 
(b) and adding paragraphs (e) through (i) to read as follows:


Sec. 944.16   Required program amendments.

* * * * *
    (e) By March 1, 1996, Utah shall revise its definition of 
``adjudicative proceeding'' at UCA 40-10-3(1) to include judicial 
review of agency actions.
    (f) By March 1, 1996, Utah shall revise UCA 40-10-11(3) to require 
that (1) the schedule of the applicant's mining law violations required 
in connection with a permit application includes violations of SMCRA 
and the implementing Federal regulations and (2) the pattern of 
violations determination discussed therein includes violations of 
SMCRA, the implementing Federal regulations, any State or Federal 
programs enacted under SMCRA, and other provisions of the approved Utah 
program.
    (g) By March 1, 1996, Utah shall revise UCA 40-10-11(5)(a) to 
reflect an effective date of ``after October 24, 1992.''
    (h) By March 1, 1996, Utah shall revise UCA 40-10-13(2)(b) to 
change the word ``may'' to ``shall'' in the sentence that begins 
``[t]he conference may be held in the locality of the coal mining and 
reclamation operation * * *.''
    (i) By March 1, 1996, Utah shall revise UCA 40-10-20(2)(e)(ii) to 
provide for a waiver of the operator's right to contest the amount of 
the civil penalty when the operator fails to forward the amount of the 
penalty to the regulatory authority within 30 days of receipt of the 
results of the informal conference.

    4. Section 944.25 is amended by adding paragraph (c) to read as 
follows:


Sec. 944.25   Approval of amendments to State abandoned mine plan.

* * * * *
    (c) The following sections of the Utah Code Annotated 1953 (UCA), 
Title 40, pertaining to the Utah abandoned mine plan, as submitted to 
OSM on April 14, 1994, and revised on December 7, 1994, are approved 
effective July 19, 1995.

40-10-25(2)(d), Deletion of Research and Demonstration Projects.
40-10-25(2) (d) and (e), Recodification of Expenditure Priorities.
40-10-25 (3), (3)(a), (3)(b), (4), (5), and (6), Eligible Lands and 
Water.
40-10-27 (5)(a) and (12)(b), Entry Upon Land Adversely Affected by Past 
Coal Mining Practices and State Acquisition of Lands.
40-10-28 (1)(a)(ii) and (2)(a), Recovery of Reclamation Costs and Liens 
Against Reclaimed Lands.

[FR Doc. 95-17716 Filed 7-18-95; 8:45 am]
BILLING CODE 4310-05-M