[Federal Register Volume 73, Number 156 (Tuesday, August 12, 2008)]
[Rules and Regulations]
[Pages 46804-46807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-18496]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

[SATS No. UT-044-FOR; Docket ID: OSM-2007-0014]


Utah Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving an amendment to the Utah regulatory program 
(the Utah program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). Utah proposed revisions to its statute and 
rules regarding permit application requirements which may be waived 
with a written determination that they are unnecessary by the Division 
of Oil Gas and Mining (the Division), permit applications being filed 
in a local public office for public inspection, and extensions to 
permitted area being processed as significant revisions or applications 
for new permits. Utah is revising its program to be consistent with the 
corresponding Federal regulations and SMCRA, clarify ambiguities, and 
improve operational efficiency. This amendment package contains changes 
proposed previously under UT-042-FOR and UT-043-FOR.

DATES: Effective Date: August 12, 2008.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Chief, Denver Field 
Division, Office of Surface Mining Reclamation and Enforcement, 1999 
Broadway, suite 3320, Denver, CO 80202-5733, 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. Office of Surface Mining Reclamation and Enforcement's (OSM's) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Utah Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Utah program on January 21, 1981. You can 
find background information on the Utah program, including the 
Secretary's findings, the disposition of comments, and 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, 944.20, 944.25 and 944.30.

II. Submission of the Proposed Amendment

    By letter dated August 31, 2007, Utah sent us an amendment to its 
program (Administrative Record No. \1\ OSM-2007-0014-0004 & OSM-2007-
0014-0005) under SMCRA (30 U.S.C. 1201 et seq.). Utah sent the 
amendment in response to concern letters sent by OSM regarding changes 
proposed under UT-042-FOR (Administrative Record No. UT-1181 dated 
February 21, 2003) and UT-043-FOR (Administrative Record No. UT-1193 
informal concern letter dated February 14, 2006), and to include 
changes made at its own initiative. Concerns regarding section 40-10-
10(2)(d) of the Utah Code Annotated (UCA) and UCA 40-10-10(5) as 
submitted under UT-042-FOR are addressed here and the remainder of the 
UT-042-FOR package is being processed through a separate Federal 
Register notice. Utah formally withdrew the amendment to Administrative 
Rule R645-303-222 proposed under UT-043-FOR in a letter dated February 
16, 2006 (Administrative Record No. UT-1194), and we approved the 
remainder of that amendment package on June 8, 2006 (71 FR 33249; 
Administrative Record No. UT-1195).
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    \1\ This final rule notice contains references to documents 
assigned Administrative Record numbers through our old record system 
and those assigned through the new regulations.gov system. OSM is 
transitioning to regulations.gov and all administrative record 
numbers will be assigned through this system in the future.
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    We announced receipt of this proposed amendment in the October 22, 
2007, Federal Register (72 FR 59489). 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. OSM-2007-0014-0001). We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on 
November 21, 2007. We received comments from two Federal agencies and 
one private citizen.

III. OSM's Findings

    The following are our findings concerning the amendment under SMCRA 
and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.

A. Utah proposes to amend UCA 40-10-10(2)(d) to read:

    40-10-10(2)(d)(i) A permit application will also include the 
following information:
    (A) the result of test borings or core samples from the permit 
area, including logs of the drill holes;
    (B) the thickness of the coal seam found;
    (C) an analysis of the chemical properties of the coal;
    (D) the sulfur content of any coal seam;
    (E) chemical analysis of potentially acid or toxic-forming 
sections of the overburden; and
    (F) chemical analysis of the stratum lying immediately 
underneath the coal to be mined.
    (ii) Application requirements of Subsection (2)(d)(i) may be 
waived by the division if there is a written determination that 
these requirements are unnecessary.

    Utah proposes to revise its statute at UCA 40-10-10(2)(d) to 
include recodification and language changes that are intended to 
increase accessibility and readability, limit the requirements to 
permit applications rather than permit applications and reclamation 
plans, and clarify which permit application requirements may be waived 
with a written determination by the Department that they are 
unnecessary.
    UCA 40-10-10(2)(d) is being recodified as UCA 40-10-10(2)(d)(i)(A) 
through (F), and (ii). This proposed change will increase accessibility 
and readability of the section by identifying each requirement set 
forth in a separate subsection rather than having all requirements 
stated in one sentence. The recodification and minor language changes 
necessary to create separate sentences do not change the meaning or 
effectiveness of this provision.
    The proposed language change at UCA 40-10-10(2)(d)(i) will replace 
the phrase ``A statement of'' with ``A permit application will also 
include the following''. This change has the effect of limiting the 
requirements set forth under 40-10-10(2)(d) to only permit

[[Page 46805]]

applications. The remainder of UCA 40-10-10(2) applies to both permit 
applications and reclamation plans. Reclamation plans must always be 
submitted as part of permit applications under State and Federal law. 
Utah's reclamation plan requirements are included in but not limited to 
UCA 40-10-10 and Administrative Rules R645-301-240, R645-301-340, R645-
301-540, and R645-301-550.
    The Federal counterpart language at SMCRA section 507(b)(15) 
contains the same requirements for permit applications only. Specific 
reclamation plan requirements are set forth under SMCRA section 508 and 
30 CFR parts 780 and 784.
    Utah Administrative Rule R645-300-133.710 requires the applicant to 
demonstrate that reclamation as required by the Program can be 
accomplished according to information given in the permit application. 
Informational requirements set forth under UCA 40-10-10(2)(d) will be 
considered in the reclamation plan by inclusion in the permit 
application.
    Both Federal and State laws require the operator to demonstrate to 
the satisfaction of the regulatory authority that reclamation can be 
accomplished in the area proposed for mining. With the proposed change, 
UCA 40-10-10(2)(d) is substantively identical to its Federal 
counterpart, SMCRA section 507(b)(15). We find this change to be no 
less stringent than SMCRA.
    The addition of the reference to ``(2)(d)(i)'' in subsection 
(2)(d)(ii) has the effect of limiting the requirements which may be 
waived by Utah with a written determination that they are unnecessary. 
With the proposed addition, both State and corresponding Federal 
provisions at SMCRA section 507(b)(15) call for but allow the 
regulatory authority to waive the requirements for reports on test 
borings or core samplings from the permit area including logs of the 
drill holes; thickness of the coal seam found; an analysis of the 
chemical properties of the coal; the sulfur content of any coal seam; 
chemical analysis of potential acid or toxic forming sections of the 
overburden; and chemical analysis of the stratum lying immediately 
underneath the coal to be mined.
    In amendment UT-042-FOR, Utah proposed a provision under which it 
could waive the information required in paragraph (2) rather than 
restricting this waiver to (2)(d)(i). This interpretation would allow 
Utah to waive the required information pertaining to ownership, maps 
and plans, hydrology and probable hydrologic consequences, as well as 
the test borings, core samples, and the physical and chemical 
characteristics of the coal, overburden, and the stratum underlying the 
coal. This interpretation is inconsistent with Federal requirements 
under SMCRA and was raised as a concern in a letter from OSM to Utah on 
February 21, 2003 (Administrative Record No. UT-1180). This addition in 
UT-044-FOR clarifies the ambiguity and specifically defines which 
informational requirements may be waived with a written finding by Utah 
that they are unnecessary. It is also consistent with counterpart 
section 507(b)(15) of SMCRA.
    The final change to this provision replaces the phrase ``with 
respect to the specific application by'' with ``if there is'' (a 
written determination * * *). This change is intended to increase the 
readability of the provision by writing in plain language without 
altering the provision's meaning. Moreover, we interpret this provision 
to mean that written determinations to waive application requirements 
will be made on a case-by-case basis. This interpretation was confirmed 
with Utah on December 3, 2007 (Administrative record No. OSM-2007-0014-
0010). We approve the change with this understanding.
    For the reasons discussed above, we find that Utah's proposed 
revisions to UCA 40-10-10(2)(d) are in accordance with and no less 
stringent than SMCRA.

B. Utah proposes to amend UCA 40-10-10(5) to read:

    40-10-10(5) An applicant for a surface coal mining and 
reclamation permit shall file a copy of the application for public 
inspection with the county clerk of the county, or an appropriate 
public office approved by the division where the mining is proposed 
to occur, except for information pertaining to the coal seam itself.

    Utah previously proposed changes to its statute at UCA 40-10-10(5) 
(October 22, 2002 Administrative Record No. UT-1171; processed under 
SATS No. UT-042-FOR) including deletion of the term ``for public 
inspection'' from the provision. This raised a concern in that the 
proposed deletion would remove the provision's purpose of making permit 
applications available for public inspection near the area where mining 
is proposed to occur. A concern letter was sent by OSM to Utah February 
21, 2003 (Administrative Record No. UT-1180) and we never formally 
approved the proposed changes.
    The current amendment to UCA 40-10-10(5) resubmits the other minor 
editorial changes to the statute while retaining the phrase ``for 
public inspection''. The provision's Federal counterpart at SMCRA 
section 507(e) contains the same language. Additional proposed changes 
are minor editorial revisions that are intended to improve readability 
and do not alter the provision's meaning or effectiveness. For these 
reasons, we find the provision to be no less stringent than SMCRA and 
we approve Utah's proposed changes.

C. Utah proposes to amend UCA 40-10-12(1)(c) to read:

    UCA 40-10-12(1)(e) Any extensions to the area covered by the 
permit, except incidental boundary revisions, must be made by:
    (i) An application for a significant revision of the permit; or
    (ii) An application for another permit.

    Utah proposes to change the way extensions to area covered by a 
permit are made from exclusively requiring an application for another 
permit to either requiring an application for a significant permit 
revision or an application for another permit. By changing this 
statute, Utah has addressed our concerns raised in the February 14, 
2006 concern letter (Administrative Record No. UT-1193). With this 
statute change, Utah is now able to amend the implementing 
Administrative Rule R645-303-222 originally proposed on November 28, 
2005 (SATS No UT-043-FOR; Administrative Record No. UT-1181) and 
formally withdrawn February 16, 2006 (Administrative Record No. UT-
1194). This rule change has been resubmitted and is discussed below in 
Finding III(D).
    Section 511 of SMCRA requires that extensions to an area covered 
under a permit be made through applications for new permits. 
Significant permit revisions and new permit applications have the same 
information and public notice requirements. The fundamental difference 
between significant permit revisions and applications for new permits 
is the amount of time Utah has to process the application. Significant 
permit revisions are processed in 120 days as opposed to applications 
for new permits which are processed in 360 days. Because the 
information and public notice requirements for significant permit 
revisions are the same as for new permits, we find this rule change to 
be no less stringent than SMCRA. We approve this change.

D. Utah proposes to amend Administrative Rule R645-303-222 to read:

    R645-303-222. The operator will obtain approval of a permit 
change by making application in accordance with 645-303-220 for 
changes in the method of conduct of mining or reclamation operations 
or in the conditions authorized or required under the approved 
permit; provided, however, that any extensions to the approved 
permit area,

[[Page 46806]]

except for Incidental Boundary Changes, must be processed and 
approved using the procedural requirements of R645-303-226.

    Proposed Utah Administrative Rule R645-303-222 would allow Utah to 
process and approve permit area extensions (except incidental boundary 
changes, or IBCs) using procedures for significant permit revisions at 
R645-303-226 instead of new permit procedures. The proposed rule 
implements changes to UCA Sec.  40-10-12(1)(c), which require ``[a]ny 
extensions to the area covered by the permit, except incidental 
boundary revisions must be made by: (i) an application for a 
significant revision of the permit; or (ii) an application for another 
permit.''
    The proposed rule appears, on its face, to be less effective than 
the counterpart Federal regulation at 30 CFR 774.13(d) which requires 
extensions to the area covered by the permit, except incidental 
boundary revisions, to be made by an application for a new permit. 
However, a review of Utah's referenced rules shows otherwise. SMCRA and 
the Federal regulations require such permit extensions to be processed 
as new permit applications. Referenced Utah Administrative Rule R645-
303-226 requires Utah to review and process significant permit 
revisions, and as proposed, permit extensions, in accordance with the 
requirements of Utah Administrative Rules R645-300-100 and R645-300-200 
and the information requirements of R645-301 and R645-302. The 
requirements of those rules also apply to new permits.
    By imposing the requirements of R645-300-100, R645-300-200, R645-
301, and R645-302 on significant permit revisions, the proposed rule 
would subject extensions to the permit area, when processed and 
reviewed as significant permit revisions, to the same requirements as 
new permits except for a shorter review period. This is true 
notwithstanding the obvious difference between the plain wording of the 
proposed rule and the provisions of SMCRA and the Federal regulations. 
This proposed change is not inconsistent with the counterpart Federal 
regulation and is in accordance with SMCRA.
    The proposed rule would require Utah to process applications for 
permit area extensions (except IBC's) within 120 days of receipt of a 
complete application (same as for significant permit revisions). That 
would reduce Utah's review and processing time for such permit area 
extensions by 67 percent compared to the existing 1-year period it has 
under the current rules to process them as new permit applications. 
Utah's existing rule at R645-300-131.111.1 requires it to process 
significant permit revisions within 120 days, and such revisions must 
meet the same requirements as new permit applications as noted above. 
The State may choose to impose on itself the same 120-day deadline for 
permit area extensions. This aspect of the change does not make the 
proposed rule less effective than or inconsistent with the Federal 
regulation or less stringent than or not in accordance with SMCRA. For 
the reasons discussed above, we approve these changes.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on this amendment (Administrative 
Record No. OSM-2007-0014-0001). Three nonsubstantive comments were 
received; two from Federal agencies and one from a private citizen.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Utah program (Administrative 
Record No. OSM-2007-0014-0008).
    On September 21, 2007 we received a letter from the Natural 
Resource Conservation Service dated September 17, 2007 (Administrative 
Record No. OSM-2007-0014-0002) declining to comment on this amendment.
    On October 26, 2007 a representative from EPA Region 8 contacted 
OSM via telephone and stated that the EPA has no substantive comments 
on this amendment (Administrative Record No. OSM-2007-0014-0009).

Private Citizen Comment

    On October 23, 2007 we received a citizen comment stating that the 
amendment is ``interesting'' (Administrative Record No. OSM-2007-0014-
0003). While we agree, we consider this to be a nonsubstantive comment 
that does not require further response.

V. OSM's Decision

    Based on the above findings, we approve Utah's August 31, 2007 
amendment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 944, which codify decisions concerning the Utah program. 
We find that good cause exists under 5 U.S.C. 553(d)(3) to make this 
final rule effective immediately. Section 503(a) of SMCRA requires that 
the State's program demonstrates that the State has the capability of 
carrying out the provisions of the Act and meeting its purposes. Making 
this regulation effective immediately will expedite that process. SMCRA 
requires consistency of State and Federal standards.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an 
approved State program be submitted to OSM for review as a program 
amendment. Federal regulations at 30 CFR 732.17(g) prohibit any changes 
to approved State programs that are not approved by OSM. In the 
oversight of the Utah program, we will recognize only the statutes, 
regulations and other materials we have approved, together with any 
consistent implementing policies, directives and other materials. We 
will require Utah to enforce only those approved provisions.

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 has conducted the reviews required 
by section 3 of Executive Order 12988 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 because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
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.

[[Page 46807]]

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.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 CFR 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) et seq).

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. 
3501 et seq.).

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 944

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 21, 2008.
Allen D. Klein,
Regional Director, Western Region.

0
For the reasons set out in the preamble, 30 CFR part 944 is amended as 
set forth below:

PART 944--UTAH

0
1. The authority citation for part 944 continues to read as follows:

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


0
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.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                               * * * * * *
August 31, 2007...............  August 12, 2008..  Utah Code Annotated
                                                    40-10-10(2)(d), (5),
                                                    40-10-12(1)(e).
                                                   Utah Admin R 645-303-
                                                    222.
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[FR Doc. E8-18496 Filed 8-11-08; 8:45 am]
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