Utah Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

[SPATS No. UT-038-FOR]

Utah Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

is announcing receipt of a proposed amendment to the Utah regulatory

program (the ``Utah program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). Utah's amendment proposes 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

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a formal hearing. Utah wants to revise its program to make it

consistent with the corresponding Federal regulations.

DATES: Will accept written comments on this amendment until 4:00 p.m.

mountain standard time on February 14, 2000. If requested, will hold a

public hearing on the amendment on Tuesday February 8, 2000. Will also

accept requests to speak at the hearing until 4:00 p.m. mountain

standard time on January 31, 2000.

ADDRESSES: You should mail or hand deliver written comments and

requests to speak at the hearing to James F. Fulton, Denver Field

Division Chief, at the address listed below.

You may review copies of the Utah program, this amendment, a

listing of any scheduled public hearings, and all written comments we

received in response to this document at the addresses listed below

during normal business hours, Monday through Friday, excluding

holidays. You may receive one free copy of the amendment by contacting

OSM's Denver Field Division.

James F. Fulton, Chief, Denver Field Division, Western Regional

Coordinating Center, Office of Surface Mining, 1999 Broadway, suite

3320, Denver, Colorado, 80202-5733, telephone (303) 844-1400, extension

1424.

Lowell P. Braxton, Director, Division of Oil, Gas and Mining, 1594 West

North Temple, Suite 1210, P.O. Box 145801, Salt Lake City, Utah, 84114-

5801 telephone (801) 538-5370.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Denver Field Division

Chief; telephone: (303) 844-1400, extension 1424; e-mail:

[email protected].

SUPPLEMENTARY INFORMATION:

1. 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 can be

found in the January 21, 1981, Federal Register (46 FR 5899). You can

also find later actions concerning Utah's program and program

amendments can be found at 30 CFR 944.15 and 944.30.

II. What Utah Proposes In This 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). The full text

of the program amendment is available for you to read at the locations

listed above under ADDRESSES. Changes to the Utah Administrative Rule

(Utah Admin. R.) that the State proposes to make are summarized below.

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

1. ``Abandoned site'': Utah proposes 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 proposes to change

this definition to include neutralization and precipitators. Utah also

proposes 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 proposes 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 proposes 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 proposes 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 proposes to

change its description of inspection requirements for impoundments that

meet, and those that don't 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 proposes to require

permit applications to certain 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 proposes 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

proposes 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 proposes 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 proposes 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

1. At Utah Admin. R.645-533.700 and -553.800, the State proposes 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 proposes 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 proposes to allow

the 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 document), 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 proposes to require

siltation structures to comply with the

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design criteria for sediment control measures in Utah Admin. R.645-301-

742;

4. At Utah Admin. R.645-301-742.224, the State proposes to allow

construction of temporary impoundments as sedimentation ponds that will

contain and control all runoff from a design precipitation without

using spillways, as long as 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 of other

criteria of 30 CFR 77.216(a), Utah proposes 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, for impoundments that don't

fall under subsection -742-225.1 (described above in Part II. D.5 of

this document), Utah proposes to require them to be designed to control

the precipitation of the 100-year, 6-hour event, or a greater event if

specified by the Division;

7. At Utah Admin. R.645-301-743.100, the State proposes 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 proposes 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

proposes spillway design precipitation events for temporary and

permanent impoundments of different types and size 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

This proposed rule will require 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 Section 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

This proposed rule doesn't 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

won't be reclaimed to prime farmland;

G. Adding an Alternative Inspection Frequency for Abandoned Sites at

Utah Admin. R.645-400-132

Utah proposes 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

document; and

H. Changing the Time in Which To Pay a Penalty When Requesting a Formal

Hearing at Utah Admin. R.645-401-800

The State proposes 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.

III. How You Can Comment on This Amendment

Under the provisions of 30 CFR 732.17(h), we are requesting your

comments on whether the amendment satisfies the applicable program

approval criteria of 30 CFR 732.15. If we approve the amendment, it

will become part of the Utah regulatory program.

Send Written Comments to Us

Send your written comments to us at the location shown under

ADDRESSES. We'll make the comments, and the names and addresses of

people who send us comments, available for public review during normal

business hours. If you, as an individual, comment on the amendment and

want us to keep your name and/or address confidential, you must state

this prominently at the beginning of your comments. We'll honor your

request to the extent allowed by law. However, we won't consider

anonymous comments. Also, we'll make all submissions from organizations

or businesses, and from individuals who identify themselves as

representatives or officials of organizations or businesses, available

for public review in their entirety.

Please submit Internet comments to us as an ASCII file and don't

use special characters and any form of encryption. Please also include

``Attn: SPATS No. UT-R038-FOR'' and your name and return address in

your Internet message. If you don't receive a confirmation that we've

received your Internet message, contact the Denver Field Division at

(303) 844-1400, extension 1424.

Your written comments should be specific and pertain only to the

issues proposed in this rulemaking. Please explain your reasons for any

changes you recommend. In the final rulemaking, we won't necessarily

consider or include in the Administrative Record any comments we

received after the time indicated under DATES or at locations other

than the Denver Field Division.

Speak at a Public Hearing

If you want to speak at a public hearing, contact the person listed

under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., mountain standard

time on January 31, 2000. If you're disabled and need special

accommodations to attend a public hearing, contact the person listed

under FOR FURTHER INFORMATION CONTACT. We'll arrange when and where to

hold a hearing with those persons who request the hearing. If no one

asks for an opportunity to speak at a public hearing, we won't hold

one.

To help the transcriber and ensure an accurate record, we ask, if

possible, that each person who speaks at a public hearing give us a

written copy of his or her testimony. The public hearing will continue

on the specified date until everyone scheduled to speak and want to,

you'll be allowed to after those who have been scheduled. We'll end the

hearing after everyone scheduled to speak and others who want to speak

have been heard.

Attend a Public Meeting

If only one person requests an opportunity to speak at a hearing,

we might hold a public meeting instead. If you want to meet with us to

discuss the amendment, ask for a meeting by contacting the person

listed under FOR FURTHER INFORMATION CONTACT. All such meetings will be

open to the public. If possible, we'll post meeting notices at the

locations listed under ADDRESSES. We'll make a written summary of each

meeting part of the administrative record.

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IV. 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 conducted the reviews required by

section 3 of Executive Order 12988 (Civil Justice Reform) and

determined that, to the extent allowed by law, this rule meets the

applicable standards of subsections (a) and (b) of that section.

However, these standards don't apply 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 must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementation Federal regulations and whether the other

requirements of 30 CFR parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

This rule doesn't 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 aren't major

Federal actions within the meaning of section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C. 4332(2)(C)).

4. Paperwork Reduction Act

This rule doesn't 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 determined that this rule won't 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 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. Therefore,

this rule will ensure that the State will implement existing

requirements that OSM previously published. In determining whether this

rule would have a significant economic impact, the Department relied on

the data and assumptions for the corresponding Federal regulations.

6. Unfunded Mandates

OSM has determined and certifies under the Unfunded Mandates Reform

Act (2 U.S.C. 1502 et seq.) that this rule won't impose a cost of $100

million or more in any given year on local, state, or tribal

governments or private entities.

List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 6, 2000.

Brent Wahlquest,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 00-970 Filed 1-13-00; 8:45 am]

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