[Federal Register Volume 66, Number 79 (Tuesday, April 24, 2001)]
[Rules and Regulations]
[Pages 20600-20607]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-9968]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

[SPATS UT-038-FOR]


Utah Regulatory Program

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 
(hereinafter, the ``Utah program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). Utah's amendment proposed to 
change the State's rules pertaining to: Definitions of ``abandoned 
site,'' ``other treatment facilities,'' ``previously mined area,'' 
``qualified laboratory,'' and ``significant recreational, timber, 
economic, or other values incompatible with coal mining and reclamation 
operations;'' engineering requirements for impoundments and for 
backfilling and grading; hydrologic requirements for impoundments; 
requirements for bond release applications; prime farmland acreage; 
inspection frequency for abandoned sites; and the period in which to 
pay a penalty when requesting a formal hearing. Utah intended to revise 
its program to make it consistent with the corresponding Federal 
regulations and SMCRA.

EFFECTIVE DATE: April 24, 2001.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Denver Field Division 
Chief; telephone: (303) 844-1400, extension 1424; e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Utah Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the Utah program. You can find background information about 
Utah's program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval of the Utah program in the 
January 21, 1981, Federal Register (46 FR 5899). You can also find 
later actions concerning Utah's program and program amendments at 30 
CFR 944.15 and 944.30.

II. Submission of the Proposed Amendment

    By letter dated December 23, 1999, Utah sent to us an amendment 
(UT-038-FOR, administrative record No. UT-1133) to its program under 
SMCRA (30 U.S.C. 1201 et seq.). The State sent the amendment in 
response to a June 19, 1997, letter (administrative record No. UT-1093) 
that we sent to Utah in accordance with 30 CFR 732.17(c). Changes to 
the Utah Administrative Rule (Utah Admin. R.) that the State proposed 
to make are summarized below.

A. Changes to Definitions at Utah Admin. R. 645-100-200

    1. ``Abandoned site:'' Utah proposed to revise its definition of 
this term by changing the conditions sites must meet to be considered 
abandoned and allowing the Division of Oil, Gas and Mining (the 
Division) to decide if it wants to inspect abandoned sites less than 12 
times a year. The proposed changes also require the Division to make 
written findings on specific topics to justify a decision to set an 
alternative inspection frequency;
    2. ``Other treatment facilities:'' The State proposed to change 
this definition to include neutralization and precipitators. Utah also 
proposed to include in this definition those facilities used to prevent 
additional contributions of dissolved solids to streamflow or runoff 
outside the permit area or to comply with all applicable State and 
Federal water quality laws and regulations;
    3. ``Previously mined area:'' Utah proposed to change its 
definition of this term to mean land affected by coal mining and 
reclamation operations prior to August 3, 1977, that has not been 
reclaimed to the standards of Utah Admin. R. 645 or 30 CFR Chapter VII;
    4. ``Qualified laboratory:'' The State proposed to change this 
definition to include those facilities that can provide other services 
specified at Utah Admin. R. 645-302-299;
    5. ``Significant recreational, timber, economic, or other values 
incompatible with coal mining operations:'' Utah proposed to change its 
definition of this term by removing the qualifying statement that 
damage to these values caused by mining must be beyond an operator's 
ability to repair or restore in order for these values' significance to 
be evaluated;

B. Changes to Engineering Requirements for Impoundments

    1. At Utah Admin. R. 645-301-514.320 and -514.330, Utah proposed to 
change its description of inspection requirements for impoundments that 
meet, and those that do not meet, the Class B or C criteria of the 
Natural Resources Conservation Service's (NRCS) Technical Release 60 
(TR-60) or the size or other criteria of 30 CFR 77.216;
    2. At Utah Admin. R. 645-301-531, the State proposed to require 
permit applications to contain detailed design plans for siltation 
structures, water impoundments, and coal processing waste banks, dams, 
or embankments located inside the permit area;
    3. At Utah Admin. R. 645-301-533.100 and -533.110, Utah proposed to 
include references to provisions of TR-60 in its descriptions of safety 
factors required for different sizes and types of impoundments;
    4. At Utah Admin. R. 645-301-533.200 and -533.210, the State 
proposed to include references to provisions of TR-60 for, and expand 
its description of, foundation safety factors and stability, 
investigation, and testing requirements for different sizes and types 
of impoundments;
    5. At Utah Admin. R. 645-301-533.610, Utah proposed to include TR-
60 in its rules by reference and to require impoundments meeting the 
Class B or C criteria of TR-60 or the size or other criteria of 30 CFR 
77.216 to comply with this section of its rules. Further, at Utah 
Admin. R. 645-301-533.610 through -533.714, Utah proposed to change its 
description of the information to be included in detailed design plans 
for various types and sizes of impoundments;

C. Changes to Engineering Requirements for Backfilling and Grading

    At Utah Admin R.645-553.700 and -553.800, the State proposed to 
revise its definitions of ``thin overburden'' and ``thick overburden,'' 
respectively, for the purposes of surface coal mining and reclamation 
activities;

D. Changes to Hydrologic Requirements for Impoundments

    1. At Utah Admin. R. 645-301-733.100, Utah proposed to require 
permit applications to contain detailed design plans for water 
impoundments located inside the permit area;
    2. At Utah Admin. R. 645-301-733.210, the State proposed to allow 
the

[[Page 20601]]

Division to develop design standards for impoundments not included in 
Utah Admin. R. 645-301-533.610 (discussed previously under Part II.B.5 
of this final rule), that ensure stability comparable to a minimum 
static safety factor of 1.3 in lieu of requiring engineering tests to 
ensure that level of safety;
    3. At Utah Admin. R. 645-301-742.200, Utah proposed to require 
siltation structures to comply with the design criteria for sediment 
control measures in Utah Admin. R. 645-301-742;
    4. At Utah Admin. R. 645-301-742.224, the State proposed to allow 
construction of temporary impoundments as sedimentation ponds that will 
contain and control all runoff from a design precipitation event 
without using spillways if they meet certain conditions;
    5. At Utah Admin. R. 645-301-742.225.1, for impoundments that meet 
the NRCS Class B or C criteria for dams in TR-60 or the size or other 
criteria of 30 CFR 77.216(a), Utah proposed to require them to be 
designed to control the probable maximum precipitation of a 6-hour 
event, or a greater event if specified by the Division;
    6. At Utah Admin. R. 645-301-742.225.2, the State repeated the 
requirement stated above in Part II.D.5 of this final rule for Utah 
Admin. R. 645-301-742.225.1;
    7. At Utah Admin R. 645-301-743.100, the State proposed to require 
impoundments that meet the NRCS Class B or C criteria for dams of TR-60 
to comply with this section of Utah's rules and the table in TR-60 
entitled, ``Minimum Emergency Spillway Hydrologic Criteria;''
    8. At Utah Admin. R. 645-301-743.120, Utah proposed to require 
impoundments that meet the NRCS Class B or C criteria for dams of TR-60 
to comply with the freeboard hydrograph criteria in the TR-60 table 
entitled, ``Minimum Emergency Spillway Hydrologic Criteria;''
    9. At Utah Admin. R. 645-301-743.131.3 through -743.131.6, the 
State proposed spillway design precipitation events for temporary and 
permanent impoundments of different types and sizes that meet the 
spillway requirements of Utah Admin. R. 645-301-743.130;

E. Adding Requirements for Bond Release Applications at Utah Admin. R. 
645-301-880.130:

    The State's proposed rule requires permittees to include in a bond 
release application a notarized statement certifying that all 
applicable reclamation activities have been completed as required by 
the Utah Code Annotated (UCA) sections 40-10-1 et seq., the regulatory 
program, and the approved reclamation plan. Also, each application for 
each phase of bond release must include this certification;

F. Adding Requirements for Prime Farmland Acreage at Utah Admin. R. 
645-302-316.500

    Utah's proposed rule does not allow a decrease in the aggregate 
total acreage of prime farmland after reclamation from the acreage that 
existed before mining. It requires Division approval of water bodies 
built during mining and reclamation along with the consent of all 
affected property owners in the permit area. Also, the proposed rule 
requires water bodies to be located in parts of the permit area that 
will not be reclaimed to prime farmland;

G. Adding an Alternative Inspection Frequency for Abandoned Sites at 
Utah Admin. R. 645-400-132

    Utah proposed to allow the Division to inspect abandoned sites on a 
frequency that it sets using procedures proposed under the definition 
of ``abandoned site'' at Utah Admin. R. 645-100-200. The State's 
proposed definition changes are described in Part II. A of this final 
rule; and

H. Changing the Time in Which To Pay a Penalty When Requesting a Formal 
Hearing at Utah Admin. R. 645-401-810

    The State proposed to extend to 30 days the period in which a 
permittee, charged with a violation, must pay a reassessed or affirmed 
civil penalty to the Division when requesting a formal hearing. The 30-
day period begins with the date of service of a conference officer's 
action.
    We announced receipt of the proposed amendment in the January 14, 
2000, Federal Register (65 FR 2364). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (administrative record 
No. UT-1136). We did not hold a public hearing or meeting because 
nobody requested one. The public comment period ended on February 14, 
2000.
    During our review of the amendment, we identified a concern about a 
substantive typographical error at proposed Utah Admin. R. 645-301-
742.225.2. In that rule, the State inadvertently repeated the wording 
it proposed at Utah Admin. R. 645-301-742.225.1 and proposed to remove 
existing wording. These rules allow exceptions to the sediment pond 
location provision at Utah Admin. R. 645-301-742.224. We notified Utah 
of our concern, and a suggested minor editorial change, by letter dated 
April 17, 2000 (administrative record No. UT-1142).
    Utah responded in a letter dated November 27, 2000, (administrative 
record No. UT-1147) with a revised amendment. We reopened and extended 
the comment period for the revised amendment in the January 9, 2001, 
Federal Register (66 FR 1616; administrative record No. UT-1155). The 
extended comment period closed January 24, 2001. Utah's revision 
corrected proposed Utah Admin. R. 645-301-742.225.2 and made one minor 
editorial change at proposed Utah Admin. R. 645-301-742.225. A 
description of the editorial change appears below in Part III. A. of 
this final rule and the correction is described in Part III.B.

III. Director's Findings

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

A. Minor Revisions to Utah's Rules

    Utah proposed one minor editorial change in response to our April 
17, 2000, concern letter (administrative record No. UT-1142). The State 
added the word ``where'' to the end of the clause at Utah Admin. R. 
645-301-742.225 that leads into the two exceptions to sediment pond 
location guidance at Utah Admin. R. 645-301-742.225.1 and -742.225.2. 
With the proposed change, the clause now reads, ``An exception to the 
sediment pond location guidance in R645-301-752.224 may be allowed 
where: * * *'' (30 CFR 816.49(c)(2) and 817.49(c)(2)). Because this is 
a minor change, we find that it will not make Utah's rules less 
effective than the corresponding Federal regulations.

B. Revisions to Utah's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    Utah proposed revisions to the following rules containing language 
that is the same as or similar to the corresponding sections of the 
Federal regulations:
    Utah Admin. R. 645-100-200, revised definition of ``Abandoned 
Site'' with provisions for an alternate inspection frequency, and 
partial removal of existing wording, in paragraphs (d), (d)(i), 
(d)(ii), (e), (e)(1), (e)(1)(i) through (1)(vi), (e)(2), (e)(2)(i) and 
(ii), (f), (f)(i), and (f)(ii), (30 CFR 840.11(g), (g)(4)(i)

[[Page 20602]]

and (ii), 11(h) and (h)(1), 11(h)(1)(i) through (vi), and 11(h)(2), 
(2)(i), and (2)(ii); item XII.A of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-100-200, revised definition of ``Other Treatment 
Facilities'' (30 CFR 701.5; item XI.A.1 of OSM's 6/19/97 Part 732 
letter);
    Utah Admin. R. 645-100-200, revised definition of ``Previously 
Mined Area'' and partial removal of existing wording (30 CFR 701.5; 
item VIII.A of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-100-200, revised definition of ``Qualified 
Laboratory'' and removal of the word ``or'' between clauses (30 CFR 
795.3; item X.A.1 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-100-200, revised definition of ``Significant 
Recreational, Timber, Economic, or Other Values Incompatible With Coal 
Mining and Reclamation Operations'' with the existing phrase ``beyond 
an operator's ability to repair or restore,'' removed (30 CFR 761.5; 
item VI.A.1 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-514.320, addition of requirements for 
inspecting impoundments that meet, and those that do not meet, the 
Class B or C criteria of TR-60 or the size or other criteria of 30 CFR 
77.216, and removal of existing provisions in this section and at Utah 
Admin. R. 645-301-514.330 (30 CFR 816.49(a)(12) and 817.49(a)(12); item 
XI.A.4 of OSM's 6/19/97 Part 732 letter); Utah Admin. R. 645-301-531, 
addition of a requirement for detailed design plans for siltation 
structures, water impoundments, and coal processing waste banks, dams 
or embankments in each permit application, and removal of the term 
``sediment ponds'' (30 CFR 780.25(a) and 784.16(a); item XI.A.3 of 
OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-533.100 and 533.110, addition of static 
safety factor requirements for impoundments that meet, and those that 
do not meet, the Class B or C criteria of TR-60 or the size or other 
criteria of 30 CFR 77.216(a), and removal of existing provisions (30 
CFR 816.49(a)(4)(i)and (4)(ii) and 817.49(a)(4)(i) and (a)(4)(ii); item 
XI.A.4 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-533.200 and 533.210, addition of foundation 
construction, investigation, and testing requirements for temporary and 
permanent impoundments, and removal of existing provisions (30 CFR 
816.49(a)(6)(i)and 817.49(a)(6)(i); item XI.A.4 of OSM's 6/19/97 Part 
732 letter);
    Utah Admin. R. 645-301-533.610 through 533.614, addition of 
permitting requirements for impoundments meeting the Class B or C 
criteria for dams in TR-60 and that meet or exceed the criteria of 30 
CFR 77.216(a), and removal of existing provisions (30 CFR 780.25(a)(2), 
and (a)(2)(i) through (a)(2)(iv) and 784.16(a)(2), and (a)(2)(i) 
through (a)(2)(iv); item XI.A.3 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-533.620, addition of a requirement for 
permit applications to include a stability analysis for impoundments 
meeting the Class B or C criteria for dams in TR-60, and removal of 
existing provisions (30 CFR 780.25(f) and 784.16(f); item XI.A.3 of 
OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-533.710 through 533.714, addition of 
provisions describing detailed design plans for impoundments not 
included in Utah Admin. R. 645-3-1-533.610, as revised by this 
amendment, and removal of existing provisions (30 CFR 780.25(a)(3) and 
(a)(3)(i) through (a)(3)(iv), and 784.16(a)(3) and (a)(3)(i) through 
(a)(3)(iv); item XI.A.3 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-553.700, addition of provisions defining 
``thin overburden'' and removal of existing provisions (30 CFR 
816.105(a); item VI.A.5 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-733.210, addition of design requirements for 
permanent and temporary impoundments that are not included in Utah 
Admin. R. 645-3-1-533.610, as revised by this amendment, and removal of 
existing provisions (30 CFR 780.25(c)(2) and (c)(3) and 784.16(c)(2) 
and (c)(3); item XI.A.3 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-742.200, addition of permit application 
requirements for siltation structure designs (30 CFR 780.25(b) and 
784.16(b); item XI.A.3 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-742.224, revision of permit application 
requirements to allow construction of temporary impoundments as 
sedimentation ponds that will contain and control all runoff from a 
design precipitation event without using spillways if they meet certain 
conditions (30 CFR 780.25(b) and 784.16(b));
    Utah Admin. R. 645-301-742.225.1, addition of an exception to the 
sediment pond location guidance at Utah Admin. R. 645-301-742.224 for 
impoundments meeting the Class B or C criteria in TR-60 or the size or 
other criteria of 30 CFR 77.216(a), and removal of existing provisions 
(30 CFR 816.49(c)(2)(i) and 817.49(c)(2)(i); item XI.A.4 of OSM's 6/19/
97 Part 732 letter);
    Utah Admin. R. 645-301-742.225.2, addition of an exception to the 
sediment pond location guidance at Utah Admin. R. 645-301-742.224 for 
impoundments not included in Utah Admin. R. 645-301-742.225.1, and 
removal of existing provisions (30 CFR 816.49(c)(2)(ii) and 
817.49(c)(2)(ii); item XI.A.4 of OSM's 6/19/97 Part 732 letter). This 
is the correction Utah submitted in the November 27, 2000, revision to 
its amendment in response to our concern;
    Utah Admin. R. 645-301-743.120, addition of a requirement that 
impoundments meeting the Class B or C criteria of TR-60 comply with the 
freeboard hydrograph criteria in ``Minimum Emergency Spillway 
Hydrologic Criteria'' table of TR-60 (30 CFR 816.49(a)(5) and 
817.49(a)(5); item XI.A.4 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-743.131.3 through 743.131.6, addition of 
design precipitation event criteria for impoundments meeting certain 
spillway requirements (30 CFR 816.49(a)(9)(ii), and (9)(ii)(A), (B), 
and (C), and 817.49(a)(9)(ii), and (9)(ii)(A), (B), and (C); item 
XI.A.4 of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-301-880.130, addition of a requirement for a 
notarized statement in the bond release application certifying that all 
applicable reclamation activities have been accomplished (30 CFR 
800.40; item V.A of OSM's 6/19/97 Part 732 letter);
    Utah Admin. R. 645-302-316.500, addition of new permitting 
provisions for total prime farmland acreage and construction of water 
bodies in relation to prime farmlands (30 CFR 785.17(e); item I.A.1 of 
OSM's 6/19/97 Part 732 letter); and
    Utah Admin. R. 645-401-810, revised provision for contesting a 
proposed penalty or fact of a violation within 30 days from the date of 
service of the conference officer's action, and removal of the existing 
provision for doing so within 15 days (30 CFR 723.19 and 845.19; item 
III.A of OSM's 6/19/97 Part 732 letter).
    Because these proposed rules contain wording that is the same as or 
similar to the corresponding Federal regulations, we find that they are 
no less effective than the corresponding Federal regulations.

C. Revisions to Utah's Rules That Are Not the Same as the Corresponding 
Provisions of the Federal Regulations

1. Definition of ``Thick Overburden'' at Utah Admin. R. 645-301-553.800
    Utah proposes to change its definition of ``thick overburden'' by 
removing language that explains the specific numerical limit on which 
determining the existence of thick overburden was based. This change is 
consistent with

[[Page 20603]]

the same change we made to the Federal definition in 1991. In place of 
the numerical limit, Utah proposes to base determinations of thick 
overburden on whether the thickness of overburden as increased by the 
swell factor ``* * * plus the thickness of other available waste 
materials * * *'' is greater than the combined thickness of the 
overburden and the coal before removing the coal. There is no 
counterpart to the phrase ``* * * plus the thickness of other available 
waste materials * * *'' in the corresponding part of the Federal 
definition of ``thick overburden'' at 30 CFR 816.105(a).
    References to ``other waste materials'' appear in SMCRA and in 
other parts of the corresponding definition in the Federal regulations. 
Reference to the thickness of other available waste materials is in the 
beginning statement in the Federal definition of what ``thick 
overburden'' means at CFR 816.105(a). It also follows in that 
definition's next statement of where thick overburden occurs. Both 
parts correspond to identical wording in the same parts of Utah's 
proposed definition. Further, section 515(b)(3) of SMCRA provides 
``[t]hat in surface coal mining where the volume of overburden is large 
relative to the thickness of the coal deposit and where the operator 
demonstrates that due to volumetric expansion the amount of overburden 
and other spoil and waste materials removed in the course of the mining 
operations is more than sufficient to restore the approximate contour, 
the operator shall after restoring the approximate contour, backfill, 
grade, and compact (where advisable) the excess overburden and other 
spoil and waste material * * *'' (emphasis added). [``Spoil'' is 
defined at 30 CFR 701.5 as ``* * * overburden that has been removed 
during surface coal mining operations.'']
    Utah's proposed definition also uses two terms that are not in the 
Federal definition. It uses ``topography'' where the Federal definition 
uses ``surface configuration'' and refers to thickness of the ``coal'' 
compared to the coal ``bed'' in the Federal definition. The first part 
of the third definition of ``topography'' in Webster's Ninth New 
Collegiate Dictionary is ``the configuration of a surface including its 
relief and the position of its natural and man-made features'' 
(emphasis added). Reference to ``* * * the combined thickness of the 
overburden and the coal prior to removing the coal * * *'' in Utah's 
definition has the same meaning as the Federal definition's ``* * * the 
combined thickness of the overburden and coal bed prior to removing the 
coal * * *'' (emphasis added) because both refer to the thickness of 
the actual layer, stratum, or deposit of coal that mining removes. This 
is consistent with the definition of the word ``bed'' in the Second 
Edition of the American Geologic Institute's Dictionary of Mining, 
Mineral, and Related Terms (meaning ``layer'' or ``stratum'' ) and use 
of the term ``coal deposit'' in the discussion of thin and thick 
overburden at section 515(b)(3) of SMCRA.
    As described above, we find Utah's proposed definition of thick 
overburden to be consistent with, and no less stringent than, SMCRA and 
to be consistent with, and no less effective than, the Federal 
regulations.

2. Requirement at Utah Admin. R. 645-301-743.100 for Certain 
Impoundments To Comply With the ``Minimum Emergency Spillway Hydrologic 
Criteria'' Table in TR-60

    Utah's proposed rule explicitly requires impoundments meeting the 
Class B or C criteria for dams in TR-60 to comply with the ``Minimum 
Emergency Spillway Hydrologic Criteria'' table in TR-60 and the 
requirements of Utah Admin. R. 645-301-743. That requirement 
corresponds to identical wording in the counterpart Federal 
regulations. The State's proposed rule does not incorporate TR-60 by 
reference in the State's hydrology performance standards for 
impoundments. However, Utah proposes to incorporate TR-60 in its 
entirety into its rules at Utah Admin. R. 645-301-533.610, which we 
found in Part III.A.10 of this final rule to have the same meaning as, 
and therefore is no less effective than, the counterpart Federal 
regulations. That incorporation of TR-60 by reference ties into the 
State's hydrology provisions through a number of other cross-
references. Utah's engineering performance standards at Utah Admin. R. 
645-301-560 require coal mining and reclamation operations (which 
include impoundments by definition) to be conducted in accordance with 
requirements of Utah Admin. R. 645-301-510 through 301-553. At Utah 
Admin. R. 645-301-512.240, the State requires professional engineers to 
use current and prudent engineering practices, to be experienced in 
impoundment design and construction, and to certify impoundment designs 
in accordance with Utah Admin. R. 645-301-743. Also, at Utah Admin. R. 
645-301-533.600, Utah requires impoundments meeting MSHA's criteria at 
30 CFR 77.216(a) to comply with 30 CFR 77.216 and Utah Admin. R. 645-
301-743, among other State rules. Under Utah Admin. R. 645-301-552.200, 
the State may approve permanent impoundments if they meet the 
requirements of Utah Admin. R. 645-301-743 and several other State 
rules.
    In the preamble to our proposed rulemaking at 30 CFR 780.25 and 
784.16 (56 FR 29774, 29776; June 28, 1991) we explained that editorial 
changes and ``the addition of specific reference to the SCS criteria 
for dam classification found in their Technical Release No. 60 (TR-60) 
* * * are needed to ensure that the permitting requirements for 
impoundments [i.e., 30 CFR 780 and 784] are consistent with the 
performance standards for impoundments [i.e., 30 CFR 816 and 817] that 
are tied both to SCS standards and MSHA requirements.'' As proposed in 
this amendment at Utah Admin. R. 645-301-533, 645-301-733, 645-301-742, 
and 645-301-743, which include permitting requirements and performance 
standards, Utah's rules ensure that its permitting requirements for 
impoundments are consistent with its performance standards by 
explicitly invoking the specific criteria for dam classification found 
in TR-60.
    There are other differences between Utah's proposed rule and the 
Federal regulations that are minor. One is Utah's current reference to 
the Natural Resources Conservation Service, which corresponds to the 
Federal regulations' outdated reference to the Soil Conservation 
Service. The other is the State's inclusion of Utah addresses where 
people can get copies of TR-60, which correspond to Virginia and 
Washington addresses in the Federal regulations.
    Unless stated otherwise, Utah's rules do not address surface and 
underground mining separately. This proposed Utah Admin. R. 645-301-743 
applies to both.
    We find proposed Utah Admin. R. 645-301-743 to be no less effective 
than counterpart 30 CFR 816.49(a)(1) and 817.49(a)(1). Our finding is 
based on the State's proposed incorporation of TR-60 in its rules at 
Utah Admin. R. 645-301-533.610 and the explicit references in Utah 
Admin. R. 645-301-743, and in other rules being changed in this 
amendment, to specific criteria of TR-60 that correspond to identical 
references in the counterpart Federal regulations.

3. Alternate Inspection Frequency for Abandoned Sites at Utah Admin. R. 
645-400.132

    Utah proposes to add to its provision for complete inspection 
frequency another provision for inspecting abandoned sites on an 
alternate frequency determined according to the procedures included in 
the definition of

[[Page 20604]]

``abandoned sites'' proposed at Utah Admin. R. 645-100-200.
    As noted in Part III.B. of this final rule, we find the revised 
definition of ``abandoned sites'' that the State proposed at Utah 
Admin. R. 645-100-200 (as part of this amendment) to have the same 
meaning as, and therefore to be no less effective than, the Federal 
definition at 30 CFR 840.11(g). As also noted in Part III.B. of this 
final rule, we find Utah's alternate inspection frequency provisions 
for abandoned sites in paragraph (e) of the definition at Utah Admin. 
R. 645-100-200 (also as proposed in this amendment) to have the same 
meaning as, and to be no less effective than, the Federal alternate 
inspection frequency at 30 CFR 840.11(h). The counterpart Federal 
regulation for complete inspection frequency at 30 CFR 840.11(b) does 
not include a cross reference to the alternate inspection frequency for 
abandoned sites; the Federal definition of ``abandoned site'' already 
appears in the same section under subsection 840.11(g), and the 
alternate inspection frequency for abandoned sites is found at 
840.11(h). Because Utah defines ``abandoned sites'' at Utah Admin. R. 
645-100-200 along with most of its regulatory terms, and its 
requirement for complete inspection frequency is at Utah Admin. R. 645-
400-132, the cross reference in the State's rule for complete 
inspection frequency to its definition of abandoned site provides a 
clear connection between the two.
    Moreover, the statement in Utah's proposed rule that ``Abandoned 
sites may be inspected on a frequency as determined under the 
definition of `abandoned site' at Utah Admin. R. 645-100-200 * * *'' 
[emphasis added] leaves intact DOGM's requirement for conducting no 
less than one complete inspection of abandoned sites each calendar year 
while leaving open the option of inspecting them more frequently.
    For these reasons, we find that Utah's proposed rule will provide 
for the same alternate inspection frequency for abandoned sites that 
the counterpart Federal regulation provides for, and therefore is no 
less effective than the Federal regulation.

D. Revisions to Utah's Rules With No Corresponding Federal Regulations

Requirement at Utah Admin. R. 645-301-733.100 That Permit Applications 
Include a Detailed Design Plan for Each Proposed Water Impoundment
    Utah proposes to revise its hydrology provisions for impoundments 
by adding the requirement that permit applications include a detailed 
design plan for each proposed water impoundment in the proposed permit 
area. Adding this requirement to this rule makes Utah's hydrology 
provisions for permit applications consistent with its engineering 
provisions because the State also proposes to add a provision for 
detailed design plans at Utah Admin. R. 645-301-531 as part of this 
rulemaking.
    There are no direct counterparts to this proposed rule in the 
Federal regulations, but 30 CFR 780.25(a) and 784.16(a) for surface and 
underground mining, respectively, are similar. On the other hand, 30 
CFR 780.25(a) and 784.16(a) are the direct counterparts to Utah Admin. 
R. 645-301-531. Utah Admin. R. 645-301-530 et seq., which include Utah 
Admin. R. 645-301-531, contain the operational design criteria and 
plans requirements for the engineering component of permit 
applications, as noted above. The Federal regulations at 30 CFR 780 et 
seq. and 784 et seq. include permit application requirements for 
reclamation and operation plans for surface and underground mining, 
respectively. Utah does not separate these rules for surface and 
underground mining; the revised rule applies to both.
    Proposed Utah Admin. R. 645-301-531 references ``* * * each 
proposed siltation structure, water impoundment, and coal processing 
waste bank, dam or embankment within the proposed permit area * * *,'' 
compared to the reference to ``* * * each proposed water impoundment * 
* *'' in Utah Admin. R. 645-301-733.100. Our review of other changes to 
Utah Admin. R. 645-301-531 and the State's proposal to add the phrase 
``and detailed design plans'' found that rule, with the proposed 
changes, has the same meaning as counterparts 30 CFR 780.25(a) and 
784.16(a). The revision of Utah Admin. R. 645-301-733.100 is consistent 
with proposed Utah Admin. R. 645-301-531. We find these proposed rules 
are consistent with, and no less effective than, the counterpart 
Federal regulations at 30 CFR 780.25(a) and 784.16(a) for surface and 
underground mining, respectively.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the original amendment in the 
January 14, 2000, proposed rule Federal Register (65 FR 2365; 
administrative record No. UT-1136), and in letters dated January 6, 
2000, that we sent to several organizations (administrative record No. 
UT-1135). We also asked for public comments on the revised amendment in 
the January 9, 2001, Federal Register (66 FR 1616; administrative 
record No. UT-1155) and in letters dated December 13, 2000 
(administrative record No. UT-1152), which we sent to the same 
organizations we previously contacted for comments about the original 
amendment.
    In a letter dated February 2, 2000, the Utah Mining Association 
(UMA) noted that it participated in preparing and reviewing the 
proposed rules in the original amendment and supported them in hearings 
before the Utah Board of Oil, Gas and Mining. UMA suggested no 
additional changes and urged us to approve the amendment 
(administrative record no. UT-1140).
    The UMA also responded to our December 13, 2000, request for 
comments on the revised amendment by noting again its participation in 
Utah's rulemaking process and its support for the proposed rules. UMA 
encouraged us to complete the approval process (administrative record 
No. UT-1153).
    We did not receive any other public comments on the original or 
revised amendment.

Federal Agency Comments

    In a letter dated January 6, 2000, we requested comments on the 
amendment under 30 CFR 732.17(h)(11)(i) from various Federal agencies 
with an actual or potential interest in the Utah program 
(administrative record No. UT-1135). We also asked for the same 
agencies' comments on the revised amendment in letters dated December 
13, 2000 (administrative record No. UT-1152).
    The U.S. Department of the Interior, Bureau of Land Management 
(BLM), responded to our January 6, 2000, request in a letter dated 
January 25, 2000 (administrative record no. UT-1138). BLM said the 
proposed changes are understandable and appropriate for regulating coal 
mining in Utah, and did not suggest any changes.
    We also received comments on the original amendment from the Utah 
Field Office of the U.S. Department of the Interior, Fish and Wildlife 
Service (FWS). In its letter dated January 27, 2000, FWS provided 
general and specific comments (administrative record no. UT-1139). In 
general, FWS stated its concern that active coal mining activities and 
abandoned mines can adversely affect fish, wildlife, and plant species 
through habitat loss and alteration and other human activities. FWS 
added that mined land reclamation and restoration should evaluate 
conditions for fish, wildlife, plants, and other organisms that are 
important to the proper functioning of ecosystems. In

[[Page 20605]]

that context, FWS specifically recommended adding the word ``biotic'' 
to part (e)(1)(ii) of the definition of ``abandoned site'' at Utah 
Admin. R. 645-100-200. The phrase at that part is one criterion of 
several that DOGM must affirm in writing when selecting an alternate 
inspection frequency for abandoned sites. Utah proposed this phrase in 
its amendment to read ``[w]hether, and to what extent, there exist on 
the site impoundments, earthen structures or other conditions that 
pose, or may reasonably be expected to change into, imminent dangers to 
the health or safety of the public or significant environmental harms 
to land, air, or water resources * * *.'' With the FWS recommendation, 
the phrase would address ``land, air, water, or biotic resources.''
    We agree with FWS in principle and believe Utah's rule considers 
fish, wildlife, plants, and other organisms as proposed in this 
amendment. At Utah Admin. R. 645-100-200, the State defines 
``significant, imminent environmental harm to land, air, or water 
resources'' to mean, in part, an environmental harm that has ``an 
adverse impact on land, air, or water resources which resources 
include, but are not limited to, plant and animal life * * *.'' This 
definition is Utah's counterpart to the Federal definition of the same 
term at 30 CFR 701.5. Because Utah proposed to define abandoned site 
with wording that is similar to, or the same as, that used in the 
counterpart Federal definition, we found the proposed definition to 
have the same meaning as, and therefore to be no less effective than, 
the Federal definition. We state that finding in Part III.B. of this 
final rule. We therefore conclude that Utah does not need to change its 
proposed rule in response to this comment.
    In a telephone message of January 3, 2001, the Natural Resources 
Conservation Service commented that it concurred with Utah's amendment 
as revised on November 27, 2000 (administrative record No. UT-1154).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
agreement from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that Utah proposed to make in this amendment 
pertain to air or water quality standards. Therefore, we did not ask 
EPA to agree on the amendment. However, under 30 CFR 732.17(h)(11)(i), 
we asked EPA to comment on the original and revised amendment 
(administrative record No. UT-1135). EPA did not respond.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On January 6, 2000, we requested comments on the State's 
original amendment from the Utah SHPO and the ACHP (administrative 
record No. UT-1135). We asked for their comments on the revised 
amendment in letters dated December 13, 2000 (administrative record No. 
UT-1152). In a letter dated January 14, 2000, the SHPO responded that 
it had no comments about the original amendment (administrative record 
No. UT-1137). The ACHP did not respond to our requests.

V. Director's Decision

    Based on the above findings, we approve the amendment sent to us by 
Utah, as revised on November 27, 2000.
    We approve the following proposed rules as discussed in: Finding 
No. III.A: At Utah Admin. R. 645-301-742.225, addition of the word 
``where'' to the end of the clause; in Finding No. III.B: At Utah 
Admin. R. 645-100-200: Revised definitions of ``Abandoned Site;'' 
``Other Treatment Facilities;'' ``Previously Mined Area;'' ``Qualified 
Laboratory;'' and ``Significant Recreational, Timber, Economic, or 
Other Values Incompatible With Coal Mining and Reclamation 
Operations;'' at Utah Admin. R. 645-301-514.320, addition of 
requirements for inspecting impoundments that meet, and those that do 
not meet, the Class B or C criteria of TR-60 or the size or other 
criteria of 30 CFR 77.216, and removal of existing provisions in this 
section and at Utah Admin. R. 645-301-514.330; at Utah Admin. R. 645-
301-531, addition of a requirement for detailed design plans for 
siltation structures, water impoundments, and coal processing waste 
banks, dams or embankments in each permit application, and removal of 
the term ``sediment ponds;'' at Utah Admin. R. 645-301-533.100 and 
533.110, addition of static safety factor requirements for impoundments 
that meet, and those that do not meet, the Class B or C criteria of TR-
60 or the size or other criteria of 30 CFR 77.216(a), and removal of 
existing provisions; at Utah Admin. R. 645-301-533.200 and 533.210, 
addition of foundation construction, investigation, and testing 
requirements for temporary and permanent impoundments, and removal of 
existing provisions; at Utah Admin. R. 645-301-533.610 through 533.614, 
addition of permitting requirements for impoundments meeting the Class 
B or C criteria for dams in TR-60 and that meet or exceed the criteria 
of 30 CFR 77.216(a), and removal of existing provisions; at Utah Admin. 
R. 645-301-533.620, addition of requirement for permit applications to 
include a stability analysis for impoundments meeting the Class B or C 
criteria for dams in TR-60, and removal of existing provisions; at Utah 
Admin. R. 645-301-533.710 through 533.714, addition of provisions 
describing detailed design plans for impoundments not included in Utah 
Admin. R. 645-3-1-533.610, and removal of existing provisions; at Utah 
Admin. R. 645-301-553.700, revised definition of ``thin overburden;'' 
at Utah Admin. R. 645-301-733.210, addition of design requirements for 
permanent and temporary impoundments that are not included in Utah 
Admin. R. 645-3-1-533.610, and removal of existing provisions; at Utah 
Admin. R. 645-301-742.200, addition of permit application requirements 
for siltation structure designs; at Utah Admin. R. 645-301-742.224, 
revision of permit application requirements to allow construction of 
temporary impoundments as sedimentation ponds that will contain and 
control all runoff from a design precipitation event without using 
spillways if they meet certain conditions; at Utah Admin. R. 645-301-
742.225.1, revised exception to the sediment pond location guidance at 
Utah Admin. R. 645-301-742.224 for impoundments meeting the Class B or 
C criteria in TR-60 or the size or other criteria of 30 CFR 77.216(a), 
and removal of existing provisions; at Utah Admin. R. 645-301-
742.225.2, revised exception to the sediment pond location guidance at 
Utah Admin. R. 645-301-742.224 for impoundments not included in Utah 
Admin. R. 645-301-742.225.1, and removal of existing provisions; at 
Utah Admin. R. 645-301-743.120, addition of a requirement that 
impoundments meeting the Class B or C criteria of TR-60 comply with the 
freeboard hydrograph criteria in ``Minimum Emergency Spillway 
Hydrologic Criteria'' table of TR-60; at Utah Admin. R. 645-301-
743.131.3 through 743.131.6, addition of design precipitation event 
criteria for impoundments meeting certain spillway requirements; at 
Utah Admin. R. 645-301-880.130, addition of a requirement for a 
notarized statement in the bond

[[Page 20606]]

release application certifying that all applicable reclamation 
activities have been accomplished; at Utah Admin. R. 645-302-316.500, 
addition of new permitting provisions for total prime farmland acreage 
and construction of water bodies in relation to prime farmlands; and at 
Utah Admin. R. 645-401-810, revised provision for contesting a proposed 
penalty or fact of a violation within 30 days from the date of service 
of the conference officer's action; in Finding No. III.C.1, the 
definition of ``Thick Overburden'' at Utah Admin. R. 645-100-200; in 
Finding No. III.C.2, the requirement at Utah Admin. R. 645-301-743.100 
for certain impoundments to comply with the ``Minimum Emergency 
Spillway Hydrologic Criteria'' table in TR-60; in Finding No. III.C.3, 
the alternate inspection frequency for abandoned sites at Utah Admin. 
R. 645-400.132; and in Finding D, the requirement at Utah Admin. R. 
645-301-733.100 that permit applications include a detailed design plan 
for each proposed water impoundment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 944, which codify decisions concerning the Utah program. 
We are making this final rule effective immediately to expedite the 
Utah program amendment process and to encourage states to make their 
programs conform to the Federal standards. SMCRA requires consistency 
of state and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior conducted the reviews required by 
section 3 of Executive Order 12988 (Civil Justice Reform) and 
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 since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR Parts 730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed state regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior 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 Utah submittal that is the subject of this rule is based on 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect on a substantial number of small entities. 
Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by Utah. In making 
the determination as to whether this rule would have a significant 
economic impact, the Department relied on the data and assumptions for 
the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates

    OSM determined and certifies under the Unfunded Mandates Reform Act 
(2 U.S.C. 1502 et seq.) that this rule will not impose a cost of $100 
million or more in any given year on any local, state, or tribal 
governments or private entities.

List of Subjects in 30 CFR Part 944

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 26, 2001.
Brent Wahlquist,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 944 is amended as 
described 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:

[[Page 20607]]

Sec. 944.15  Approval of Utah regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
   Original amendment submission date        publication                    Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
December 23, 1999.......................          4/24/01   Definitions of ``abandoned site,'' ``other treatment
                                                             facilities,'' ``previously mined area,''
                                                             ``qualified laboratory,'' and ``significant
                                                             recreational, timber, economic, or other values
                                                             incompatible with coal mining and reclamation
                                                             operations'' at Utah Admin. R. 645-100-200; Utah
                                                             Admin. R. 645-301-514.320 and -514.330; -301-531; -
                                                             301-533.100 and -533.110; -301-533.200 and 210; -
                                                             301-533-610 through 614; -301-533.620; -301-533.700
                                                             through 714; -301-553.700; -301-553.800; -301-
                                                             733.100; -301-733.210; -301-742.200; -301-742.224;
                                                             301-742.225, -742.225.1 and -742.225.2; -301-
                                                             743.100; -301-743.120; -301-743.131.3 through
                                                             131.6; -301-880.130; -302-316.500; R. 645-400.132;
                                                             and R. 645-401-810.
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[FR Doc. 01-9968 Filed 4-23-01; 8:45 am]
BILLING CODE 4310-05-P