[Federal Register Volume 62, Number 149 (Monday, August 4, 1997)]
[Rules and Regulations]
[Pages 41845-41850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20401]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 944
[UT-035-FOR]
Utah Regulatory Program and Utah Abandoned Mine Land Reclamation
Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is approving a proposed amendment to the Utah regulatory program and
Utah abandoned mine land reclamation (AMLR) plan (hereinafter, the
``Utah program and plan'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). Utah proposed revisions to and
additions of statutes pertaining to the definition for ``adjudicative
proceeding''; schedule of applicant's mining law violations and
remining operation violations resulting from unanticipated events or
conditions; location of informal conferences; performance standards for
all coal mining and reclamation operations and approximate original
contour variances for surface coal mining operations; requirements
regarding surface effects of underground coal mining, repair or
compensation for damage, replacement of water, suspension of
underground mining upon finding of immediate danger to inhabitants at
the surface, and applicability to other chapters; contest of violation
or amount of civil penalty; and lands and waters eligible for
expenditure of AMLR funds. The amendment was intended to revise the
Utah program and plan to be consistent with SMCRA and to improve
operational efficiency.
EFFECTIVE DATE: August 4, 1997.
FOR FURTHER INFORMATION CONTACT:
James F. Fulton, Chief, Denver Field Division; telephone: (303) 844-
1424; Internet address: WWW.JFULTONOSMRE.GOV.
SUPPLEMENTARY INFORMATION:
I. Background on the Utah Program and Plan
On January 21, 1981, the Secretary of the Interior conditionally
approved the Utah program; on June 3, 1983, the Secretary approved the
Utah plan. General background information on the Utah program and plan,
including the Secretary's findings, the disposition of comments, and
the conditions of approval of the Utah program 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 May 27, 1997, Utah submitted a proposed amendment
to its program and plan (administrative record No. UT-1090) pursuant to
SMCRA (30 U.S.C. 1201 et seq.). Utah submitted the proposed amendment
in response to required program amendments at 30 CFR 944.16 (e) through
(i), in response to a June 5, 1996, letter (administrative record No.
UT-1083) that OSM sent to Utah in accordance with 30 CFR 732.17(c), and
at its own initiative. The provisions of the Utah coal mining and
reclamation statute that Utah proposed to revise or add were: Utah Code
Annotated (UCA) 40-10-3(1), definition for ``adjudicative proceeding'';
UCA 40-10-11 (3) and (5), schedule of applicant's mining law violations
and remining operation violations resulting from unanticipated events
or conditions; UCA 40-10-13(2), location of informal conferences; UCA
40-10-17 (2), (3), and (4), performance standards for all coal mining
and reclamation operations and approximate original contour variances
for surface coal mining operations; UCA 40-10-18 (1) through (15),
18.1, and 18.2, requirements regarding surface effects of underground
coal mining, repair or compensation for damage, replacement of water,
suspension of underground mining upon finding of immediate danger to
inhabitants at the surface, and applicability of other chapter
provisions; UCA 40-10-20(2) (2)(e), contest of violation or amount of
civil penalty; and UCA 40-10-25(6), lands and waters eligible for
expenditure of AMLR funds.
OSM announced receipt of the proposed amendment in the June 13,
1997, Federal Register (62 FR 32255), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. UT-1095).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on July 14, 1997.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA, 30 CFR
732.15 and 732.17, and 30 CFR 884.14 and 884.15, finds that the
proposed program and plan amendment submitted by Utah on May 27, 1997,
is no less stringent than SMCRA and consistent with SMCRA. Accordingly,
the Director approves the proposed amendment.
1. Nonsubstantive Revisions to Utah's Statutes
Utah proposed revisions to the following previously-approved
statutes concerning underground mining that are nonsubstantive in
nature and consist of minor editorial, punctuation, grammatical, and
recodification changes (corresponding SMCRA provisions are listed in
parentheses):
UCA 40-10-17 (2) (j)(ii)(B), (p) (ii) and (iii); (3) (a) and (c);
and (4), (4) (a) and (d), performance standards for all coal mining and
reclamation operations, and approximate original contour variances for
surface coal mining operations (sections 515 (b) (10)(B)(ii), (16) (B)
and (C); (c) (2) and (6); and (d), (d) (1) and (4) of SMCRA),
UCA 40-10-18(1), adoption of rules for control of surface effects
of underground coal mining operations (section 516(a) of SMCRA),
UCA 40-10-18(2), requirements for underground coal mining permits
(section 516(b) of SMCRA),
UCA 40-10-18(3) (a), (a) (i) through (iii), and (b), prevention of
subsidence effects (section 516(b)(1) of SMCRA),
UCA 40-10-18(4), filling or sealing of portals, entryways, drifts,
shafts, or other openings (section 516(b)(2) of SMCRA),
UCA 40-10-18(5), sealing of exploratory holes and return of mine
waste to mine workings or excavations (section 516(b)(3) of SMCRA),
UCA 40-10-18(6) (a), (b), and (b) (i) through (iii), surface
disposal of mine waste (section 516(b)(4) of SMCRA),
UCA 40-10-18(7), dams or embankments constructed of coal mine waste
(section 516(b)(5) of SMCRA),
UCA 40-10-18 (8), (8) (a) and (b), revegetation (section 516(b)(6)
of SMCRA),
UCA 40-10-18(9), protection of offsite areas from damage (section
516(b)(7) of SMCRA),
UCA 40-10-18(10), elimination of fire hazards and public health and
safety hazards (section 516(b)(8) of SMCRA),
UCA 40-10-18 (11), (11)(a), and (11)(a) (i) through (iii),
minimization of disturbances of the prevailing hydrologic balance
(section 516(b)(9)(A) of SMCRA),
[[Page 41846]]
UCA 40-10-18(11) (b) and (c), prevention of additional
contributions of suspended solids to streamflow and avoidance of
channel deepening or enlargement (section 516(b)(9)(B) of SMCRA),
UCA 40-10-18(12) (a), (a) (i) through (iii), and (b), applicability
of UCA 40-10-17 for roads, structures, and facilities, and
accommodation in requirements to take into account the distinct
differences between surface and underground coal mining methods
(section 516(b)(10) of SMCRA),
UCA 40-10-18(13), minimization of adverse impacts to fish,
wildlife, and related environmental values (section 516(b)(11) of
SMCRA),
UCA 40-10-18(14), prevention of acid mine drainages (section
516(b)(12) of SMCRA),
UCA 40-10-18(15)(a), requirements for underground coal mining
operations conducted after October 24, 1992 (section 720(a) of SMCRA),
UCA 40-10-18(15)(b) (i) through (iv), repair or compensation for
damage caused by subsidence to occupied residential dwellings, related
structures, and noncommercial buildings (section 720(a)(1) of SMCRA),
UCA 40-10-18(15)(d), nothing to be construed in UCA 40-10-18(15) to
prohibit or interrupt underground coal mining operations (section
720(a)(2) of SMCRA),
UCA 40-10-18(15)(e), adoption of rules within 1 year to implement
UCA 40-10-18(15) (section 720(b) of SMCRA),
UCA 40-10-18.1, suspension of underground coal mining upon finding
of immediate danger to inhabitants at the surface (section 516(c) of
SMCRA), and
UCA 40-10-18.2, applicability of other chapter provisions (section
516(d) of SMCRA).
Because the proposed revisions to these previously-approved Utah
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 Statute That Are Substantively
Identical to the Corresponding Provisions of SMCRA
Utah proposed revisions to UCA 40-10-25(6)(b), concerning remined
lands eligible for AMLR expenditures, that are substantive in nature
and contain language that is substantively identical to requirements in
section 404 of SMCRA. Because the proposed Utah statute is
substantively identical to the corresponding provision of SMCRA, the
Director finds that it is no less stringent than SMCRA. The Director
approves the proposed revisions to UCA 40-10-25(6)(b).
3. UCA 40-10-3(1), Definition of ``Adjudicative Proceeding''
On July 19, 1995, OSM at 30 CFR 944.16(e) required Utah to revise
its definition of ``adjudicative proceeding'' at UCA 40-10-3(1) to
include judicial review of agency actions (finding No. 3, 60 FR 37002,
37004-37005).
In this amendment, Utah proposed to revise the definition of
``adjudicative proceeding'' at UCA 40-10-3(1) to recodifying existing
UCA 40-10-3(1) as UCA 40-10-3(1)(a) and making minor, nonsubstantive,
editorial revisions to it; and adding a new UCA 40-10-3(1)(b) so that
``adjudicative proceeding'', in part, means ``judicial review of a
division or board ((Division or Board of Oil, Gas and Mining)) action
or proceeding specified in Subsection (a)''.
The Director finds that the proposed definition of ``adjudicative
proceeding'' at UCA 40-10-3(1)(b) is consistent with: the definition of
the same term at UCA 63-46b-2(1)(a), as clarified at UCA 63-46b-1, of
the Utah Administrative Procedures Act (UAPA); the definition of the
same term in the rules at Utah Administrative Rule (Utah Admin. R) 641-
100-200 implementing UAPA; and UCA 40-10-30(1), which provides for the
judicial review of the Division's and Board's adjudicative proceedings.
The Director approves the proposed revisions to the definition of
``adjudicative proceeding'' at UCA 40-10-3 (1), (1) (a) and (b) and
removes the required amendment at 30 CFR 944.16(e).
4. UCA 40-10-11(3), Review of Applicant Violations Prior to Permit
Issuance
In the July 19, 1995, Federal Register (finding No. 7, 60 FR 37002,
37006), OSM placed two required amendments on the Utah program. At 30
CFR 944.16(f), OSM required Utah to 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.
In response to the required amendment at 30 CFR 944.16(f)(1), Utah
proposed to add the phrase ``the Surface Mining Control and Reclamation
Act of 1977 or its implementing regulations'' to the first sentence of
UCA 40-10-11(3). As proposed, the sentence requires permit applicants
to file a schedule listing any and all notices of violation of ``the
Surface Mining Control and Reclamation Act of 1977 or its implementing
regulations'', this chapter (UCA 40-10), any State or Federal program
or law approved under SMCRA, and any law, rule, or regulation of the
United States or Utah pertaining to air or water environmental
protection incurred by the applicant in connection with any surface
coal mining operation during the 3-year period prior to the date of
application. The Director finds that the proposed addition of the
phrase ``the Surface Mining Control and Reclamation Act of 1977 or its
implementing regulations'' makes the first sentence of UCA 40-10-11(3)
no less stringent than the corresponding requirement of section 510(c)
of SMCRA and satisfies the required amendment at 30 CFR 944.16(f)(1).
Therefore, the Director approves this revision to UCA 40-10-11(3) and
removes the required amendment at 30 CFR 944.16(f)(1).
Utah also proposed in the third sentence of UCA 40-10-11(3) to (1)
make a substantive revision by adding the phrase ``and regulation'' and
(2) make a clarifying nonsubstantive revision by referring to ``this
Subsection (3)'' instead of ``this Subsection''. As proposed, the
sentence requires that a permit not be issued if the schedule or other
information available to the Division indicates that any surface coal
mining operation owned or controlled by the applicant is in violation
of this chapter (UCA 40-10) or the laws ``and regulations'' referred to
in ``this Subsection (3)'' (UCA 40-10-11(3)). The substantive revision
is consistent with the first sentence of UCA 40-10-11(3), which not
only requires compliance with this chapter and various laws, but also
various regulations. The corresponding requirement of section 510(c) of
SMCRA is that a permit not be issued if the schedule or other
information available to the regulatory authority indicates that any
surface coal mining operation owned or controlled by the applicant is
in violation of ``this Act'' (SMCRA) or such other laws referred to in
section 510(c) of SMCRA. The reference to ``this Act'' in section
510(c) of SMCRA includes SMCRA, the implementing Federal regulations at
30 CFR Chapter VII, and all State and Federal programs approved under
SMCRA (48 FR 44389, September 28, 1983, and 45 FR 82223, December 15,
1980). With the proposed addition of the phrase ``and regulations'',
the third
[[Page 41847]]
sentence of UCA 40-10-11(3) requires compliance with the same laws and
regulations as the corresponding requirement of section 510(c) of
SMCRA. Therefore, the Director finds that the revised third sentence of
UCA 40-10-11(3) is no less stringent than the corresponding requirement
of section 510(c) of SMCRA. The Director approves the proposed
revisions to UCA 40-10-11(3).
In this amendment, Utah did not, in response to the required
amendment at 30 CFR 944.16(f)(2), propose to revise the second half of
the third sentence of UCA 40-10-11(3) that still requires that no
permit be issued if the applicant or operator controls or has
controlled mining operations with a demonstrated pattern of willful
violations of ``this chapter'' (UCA 40-10). As explained in the July
19, 1995, Federal Register (finding No. 7, 60 FR 37002, 37006), ``this
chapter'' encompasses only violations of the State statute. It does
not, as required by section 510(c) of SMCRA, encompass violations of
SMCRA, the implementing Federal regulations, any State and Federal
programs enacted under SMCRA, or other provisions of the approved Utah
program. Because the second half of the third sentence of UCA 40-10-
11(3) is still less stringent than section 510(c) of SMCRA, the
Director lets stand the required amendment at 30 CFR 944.16(f)(2).
5. UCA 40-10-11(5)(a), Remining Operation Violations Resulting From
Unanticipated Events or Conditions
In the July 19, 1995, Federal Register (finding No. 8, 60 FR 37002,
37006), OSM at 30 CFR 944.16(g) required Utah to revise UCA 40-10-
11(5)(a) to reflect an effective date ``after October 24, 1992''.
In response to the required amendment, Utah proposed in this
amendment at UCA 40-10-11(5)(a) that after October 24, rather than 14,
1992, the prohibition of UCA 40-10-11(3) for issuing permits does not
apply to a permit application, 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. The Director finds that the proposed
date change makes UCA 40-10-11(5)(a) substantively identical to section
510(e) of SMCRA and satisfies the required amendment at 30 CFR
944.16(g). Therefore, the Director approves this proposed revision to
UCA 40-10-11(5)(a) and removes the required amendment at 30 CFR
944.16(g).
6. UCA 40-10-13(2)(b), Location of Informal Conferences
In the July 19, 1995, Federal Register (finding No. 9, 60 FR 37002,
37006-37007), OSM at 30 CFR 944.16(h) required Utah to revise UCA 40-
10-13(2)(b) to require that informal conferences for permits and permit
revisions ``shall'', instead of ``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.
In response to the required amendment at 30 CFR 944.16(h), Utah
proposed to change ``may'' to ``shall'' in UCA 40-10-13(2)(b). Utah, at
its own initiative, also proposed a nonsubstantive revision to
previously approved language at UCA 40-10-13(2)(b). It proposed that
the informal conference shall be conducted in accordance with the
procedures described in ``this Subsection (b)'', instead of
``Subsection (b)'', irrespective of the requirements of section 63-46b-
5, the Utah Administrative Procedures Act. In making this revision,
Utah clarified that the reference is to UCA 40-10-13(2)(b) itself
rather than another subsection of Utah's statute.
The Director finds that Utah's proposed revisions to USA 40-10-
13(2)(b) are no less stringent than section 513(b) of SMCRA. Therefore,
the Director approves the proposed revision to UCA 40-10-13(2)(b) and
removes the required amendment at 30 CFR 944.16(h).
7. UCA 40-10-18(15)(c), Water Replacement by Operators of Underground
Coal Mines
Utah proposed new UCA 40-10-18(15)(c) as follows:
(c) Subject to the provisions of Section 40-10-29, the permittee
shall promptly replace any state-appropriated water 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.
For the reasons discussed below, the Director finds that proposed
UCA 40-10-18(15)(c) is no less stringent than sections 720(a)(2) and
717(a) of SMCRA. Therefore, the Director approves the proposed addition
of UCA 40-10-18(15)(c).
a. The Phrase ``Subject to the Provisions of Section 40-10-29''
In UCA 40-10-18(15)(c), Utah proposed water replacement provisions
that are ``Subject to the provisions of Section 40-10-29''. In a
January 29, 1997, letter to OSM (administrative record No. UT-1094),
Utah clarified that the phrase ``Subject to the provisions of Section
UCA 40-10-29'' was intended as a reference to subsection (1) of UCA 40-
10-29.
UCA 40-10-29(1) states that ``[n]othing in this chapter shall be
construed as affecting in any way the right of any person to enforce or
protect, under applicable law, his interest in water resources affected
by a surface coal mining operation.'' This requirement is substantively
identical to section 717(a) of SMCRA.
Utah explained that the phrase ``Subject to the provisions of
Section 40-10-29'' was included in UCA 40-10-18(15)(c) expressly at the
request of Utah water users because they wanted to make it clear that
the water replacement provisions of UCA 40-10-18 supplement, rather
than replace, any common law or other statutory remedies otherwise
available to them (administrative record No. UT-1094). Utah also stated
that its own interpretation is that the underground mine water
replacement requirements of proposed UCA 40-10-18(15)(c) are intended
to supplement, not replace, any other remedies that may be available to
water users.
On the basis of this rationale, the Director finds that the phrase
``Subject to the provisions of Section 40-10-29'' in proposed UCA 40-
10-18(15)(c) is consistent with the requirements of sections 720(a)(2)
and 717(a) of SMCRA.
b. Replacement of State-Appropriated Water
In UCA 40-10-18(15)(c), Utah proposed that ``the permittee shall
promptly replace any state-appropriated water 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'' (emphasis added). This
proposed provision is the same as the counterpart provision at section
720(a)(2) of SMCRA, except that the SMCRA provision protects ``any
drinking, domestic, or residential water supply from a well or spring''
instead of ``any state-appropriated water''.
Utah explained that, under Utah water law, ``a person or entity
cannot be a `legitimate' water user if he/she/it is using water that
not has been appropriated by the State''. Utah then went on to explain
that ``[t]he deliberately broad phrase `any state-appropriated water'
covers the universe of legal Utah water users * * * '' (administrative
record No. UT-1094).
[[Page 41848]]
OSM interprets sections 720(a)(2) and 717(a) of SMCRA to mean that
the water replacement requirements of section 720(a)(2) do not
supersede the deference provided by section 717 to State water law on
matters of allocation and use. (See March 31, 1995, 60 FR 16722,
16733.) Utah's proposed phrase ``any state-appropriated water''
incorporates this concept of deferral to State water law provisions
concerning allocation and use, as set forth in section 717(a) of SMCRA,
while protecting drinking, domestic, or residential water supplies from
wells or springs, as required by section 720(a)(2) of SMCRA.
Furthermore, the proposed term ``any state-appropriated water''
protects more types of water supplies than drinking, domestic, or
residential water supplies from wells or springs. For instance, it
protects agricultural, commercial, and industrial water supplies that
are not used for direct human consumption, human sanitation, or
domestic use. In this respect, proposed USA 40-10-18(15)(c) is more
stringent than section 720(a)(2) of SMCRA.
For these reasons, the Director finds that the proposed
requirements in UCA 40-10-18(15)(c) that ``the permittee shall promptly
replace any state-appropriated water 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'' are no less stringent than
the requirements of sections 720(a)(2) and 717(a) of SMCRA.
8. UCA 40-10-20(2)(e)(ii), Contest of Violation or Amount of Civil
Penalty
In the September 27, 1994, Federal Register, the Director deferred
decision on a proposed revision to UCA 40-10-20(2) (finding No. 5, 59
FR 49185, 49187). Subsequently, in the July 19, 1995, Federal Register
(finding No. 13, 60 FR 37002, 37008), OSM placed a required amendment
on the revised version of the same section of the Utah program. At 30
CFR 944.16(i), OSM required Utah to 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 the operator's
receipt of the results of the informal conference.
In response to the Director's decision deferral and the required
amendment at 30 CFR 944.16(i), Utah proposed to add the phrases ``fact
of the'' and ``amount of the civil penalty assessed for the'' to UCA
40-10-20(2)(e)(ii). The proposed provision requires that if the
operator fails to forward the amount of the civil penalty to the
Division within 30 days of receipt of the results of the informal
conference, the operator waives any opportunity for further review of
the ``fact of the'' violation or to contest the ``amount of the civil
penalty assessment for the'' violation.
The Director finds that the proposed addition of the phrases ``fact
of the'' and ``amount of the civil penalty assessed for the'' make UCA
40-10-20(2)(e)(ii) no less stringent than the counterpart requirements
of section 518(c) of SMCRA.
Utah's proposed revisions to the civil penalty procedures at UCA
40-10-20-(2)(e)(ii) address the issues raised in the Director's
September 27, 1994, decision deferral and satisfy the required
amendment at 30 CFR 944.16(i). Therefore, the Director approves the
proposed revisions to UCA 40-10-20(2)(e)(ii) and removes the required
amendment at 30 CFR 944.16(i).
IV. Summary and Disposition of Comments
Following are summaries of all written comments on the proposed
amendment that were received by OSM, and OSM's responses to them.
1. Public Comments
In response to OSM's invitation for public comments, the Utah
Mining Association responded on June 25, 1997, that it supported the
proposed amendment and encouraged OSM to approve it (administrative
record No. UT-1096). It stated that it was heavily involved in the
drafting the two pieces of legislation that comprise the amendment. The
mining association indicated that it had worked closely with water
users on the legislation language and had worked with the State
Engineer to ensure that the legislation adequately protected water
rights.
2. Federal Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), 884,15(a), and 884.14(a)(2),
OSM solicited comments on the proposed amendment from various Federal
agencies with an actual or potential interest in the Utah program and
plan.
The U.S. Fish and Wildlife Service, Utah Field Office, responded on
July 7, 1997, that it had received the proposed amendment but had no
comments on it (administrative record No. UT-1097).
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 amendments 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 Ct (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-1091). It did
not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
UT-1091). Neither SHPO nor ACHP responded to OSM's request.
V. Director's Decision
Based on the above findings, the Director approved Utah's proposed
amendment as submitted on May 27, 1997.
The Director approves, as discussed in:
Finding No. 1, revisions to UCA 40-10-17 (2) (j)(ii)(B), (p) (ii)
and (iii), (3) (a) and (c), and (4), (4) (a) and (d), performance
standards for all coal mining and reclamation operations, and
approximate original contour variances for surface coal mining
operations; UCA 40-10-18(1), adoption of rules for control of surface
effects of underground coal mining operations; UCA 40-10-18(2),
requirements for underground coal mining permits; UCA 40-10-18(3) (a),
(a) (i) through (iii), and (b), prevention of subsidence effects; UCA
40-10-18(4), sealing of portals, entryways, drifts, shafts, or other
openings; UCA 40-10-18(5), filling or sealing of exploratory holes and
return of mine waste to mine workings or excavations; UCA 40-10-18(6)
(a), (b), and (b) (i) through (iii), surface disposal of mine waste;
UCA 40-10-18(7), dams or embankments constructed of coal mine waste;
UCA 40-10-18 (8), (8) (a) and (b), revegetation; UCA 40-10-18(9),
protection of offsite areas from damage; UCA 40-10-18(10), elimination
of fire hazards and public health and safety hazards; UCA 40-10-18
(11), (11)(a), and (11)(a) (i) through (iii), minimization of
disturbances of the prevailing hydrologic balance; UCA 40-10-18(11) (b)
and (c), prevention of additional contributions of suspended solids to
streamflow and avoidance of channel deepening or enlargement; UCA
[[Page 41849]]
40-10-18(12) (a), (a) (i) through (iii), and (b), applicability of UCA
40-10-17 for roads, structures, and facilities, and accommodation in
requirements to take into account the distinct differences between
surface and underground coal mining methods; UCA 40-10-18(13),
minimization of adverse impacts to fish, wildlife, and related
environmental values; UCA 40-10-18(14), prevention of acid mine
drainages; UCA 40-10-18(15)(a), requirements for underground coal
mining operations conducted after October 24, 1992; UCA 40-10-18(15)(b)
(i) through (iv), repair or compensation for damage caused by
subsidence to occupied residential dwellings, related structures, and
noncommercial buildings; UCA 40-10-18(15)(d), nothing to be construed
in UCA 40-10-18(15) to prohibit or interrupt underground coal mining
operations; UCA 40-10-18(15)(e), adoption of rules within 1 year to
implement UCA 40-10-18(15); UCA 40-10-18.1, suspension of underground
coal mining upon finding of immediate danger to inhabitants at the
surface; and UCA 40-10-18.2, applicability of other chapter provisions;
Finding No. 2, revisions to UCA 40-10-25(6)(b), remined lands
eligible for AMLR expenditures;
Finding No. 3, revisions to UCA 40-10-3 (1), (1) (a) and (b),
definition of ``adjudicative proceeding'';
Finding No. 4, revisions to UCA 40-10-11(3), review of applicant
violations prior to permit issuance;
Finding No. 5, revisions to UCA 40-10-11(5)(a), remining operation
violations resulting from unanticipated events or conditions;
Finding No. 6, revisions to UCA 40-10-13(2)(b), location of
informal conferences;
Finding No. 7, revisions to UCA 40-10-18(15)(c), water replacement
by operators of underground coal mines; and
Finding No. 8, revisions to UCA 40-10-20(2)(e)(ii), contest of
violation or amount of civil penalty.
The Federal regulations at 30 CFR Part 944, codifying decisions
concerning the Utah program and 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 and plans into conformity with the
Federal standards without undue delay. Consistency of State and Federal
standards is required by SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs, State
AMLR plans, and program and plan amendments since each such program,
plan, and amendment 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 submittals are consistent with SMCRA and
its implementing Federal regulations and whether the other requirements
of 30 CFR parts 730, 731, and 732 have been met. Under Title IV SMCRA
(30 U.S.C. 1231-1243), decisions on proposed State AMLR plans and plan
amendments must be based on a determination of whether the submittals
meet the requirements of the implementing 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 (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
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
6. Unfunded Mandates
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
List of Subjects in 30 CFR Part 944
Intergovernmental relations, Surface mining, Underground mining,
Abandoned mine reclamation programs.
Dated: July 23, 1997.
Peter A. Rutledge,
Acting 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 in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 944.15 Approval of Utah regulatory program amendments.
* * * * *
[[Page 41850]]
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
May 27, 1997.............................. August 4, 1997............................ Definition of
``adjudicative
proceeding'' at UCA 40-
10-3(1), (a), (b); 40-
10-11 (3), (5)(a); 40-
10-13(2)(b); 40-10-17
(2) (j) (ii) (B), (p)
(ii), (iii), (3) (a),
(c), (4), (a), (d); 40-
10-18 (1), (2), (3)(a),
(i) through (iii), (b),
(4), (5), (6) (a), (b),
(i) through (iii), (7),
(8), (a), (b), (9),
(10), (11), (a), (i)
through (iii), (b),
(c), (12)(a), (i)
through (iii), (b),
(13), (14), (15)(a),
(b) (i) through (iv),
(c), (d), (e); 40-10-
18.1, .2, 40-10-
20(2)(e)(ii).
----------------------------------------------------------------------------------------------------------------
3. Section 944.16 is amended by removing and reserving paragraphs
(e) and (f)(1) and removing paragraphs (g), (h), and (i).
4. Section 944.25 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 944.25 Approval of Utah abandoned mine land reclamation plan.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
May 27, 1997.............................. August 4, 1997............................ UCA 40-10-25(6)(b).
----------------------------------------------------------------------------------------------------------------
[FR Doc. 97-20401 Filed 8-1-97; 8:45 am]
BILLING CODE 4310-05-M