Utah Regulatory Program and Abandoned Mine Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

Utah Regulatory Program and Abandoned Mine Plan

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

Interior.

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

hearing on proposed amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the Utah

regulatory program and abandoned mine plan (hereinafter, the ``Utah

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

Reclamation Act of 1977 (SMCRA). The amendment consists of proposed

revisions to the Utah Coal Mining and Reclamation Act of 1979. The Utah

program revisions pertain to purpose; definitions of new terms;

rulemaking authority and procedure; administrative procedures;

financial interests; permit applications; informal conferences; appeals

and further review; performance bonds; revegetation standards on lands

eligible for remining; operator requirements for underground coal

mining; information provided by permittees; contest of violation or

amount of penalty; civil actions to compel compliance with Utah's

program; violations of Utah's program or permit conditions; lands

unsuitable determination; judicial review of rules and orders; repeal

of specific sections of the Utah Code Annotated 1953 (UCA); and a

repeal date of certain provisions. The Utah plan revisions pertain to

lands and water eligible for reclamation, recovery of reclamation

costs, and liens. The amendment is intended to revise Utah's program

and plan to be consistent with SMCRA and the Utah Administrative

Procedures Act, and to improve operational efficiency.

DATES: Written comments must be received by 4 p.m., m.d.t. on June 13,

1994. If requested, a public hearing on the proposed amendment will be

held on June 6, 1994. Requests to present oral testimony at the hearing

must be received by 4 p.m., m.d.t. on May 27, 1994. Any disabled

individual who has a need for a special accommodation to attend a

public hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT.

ADDRESSES: Written comments should be mailed or hand delivered to

Thomas E. Ehmett at the address listed below.

Copies of the Utah program and Utah plan, the proposed amendment,

and all written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Albuquerque Field Office.

Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office of

Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW.,

suite 1200, Albuquerque, New Mexico 87102.

Utah Coal Regulatory Program, Division of Oil, Gas and Mining, 3 Triad

Center, suite 350, 355 West North Temple, Salt Lake City, Utah 84180-

1203, Telephone: (801) 538-5340.

FOR FURTHER INFORMATION CONTACT: Thomas E. Ehmett, Telephone: (505)

766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program and Utah Plan

On January 21, 1981, and June 3, 1983, the Secretary of the

Interior conditionally approved the Utah program and approved the Utah

plan. General background information on the Utah program and Utah plan,

including the Secretary's findings, the disposition of comments, the

conditions of approval of the Utah program, and approval of the Utah

plan, can be found in the January 21, 1981, and June 3, 1983,

publications of the Federal Register (46 FR 5899 and 48 FR 24876).

Subsequent actions concerning Utah's program and program amendments can

be found at 30 CFR 944.15, 944.16, and 944.30. Subsequent actions

concerning Utah's plan amendments can be found at 30 CFR 944.25.

II. Proposed Amendment

By letter dated April 14, 1994, Utah submitted a proposed amendment

to its program and plan pursuant to SMCRA (administrative record No.

UT-917). The proposed amendment consists of revisions to the Utah Coal

Mining and Reclamation Act of 1979. Utah submitted the proposed

amendment with the intent of making its program and plan consistent

with SMCRA and the Utah Administrative Procedures Act, and improving

operational efficiency.

The program provisions of the Utah Coal Mining and Reclamation Act

that Utah proposes to revise are (1) Utah Code Annotated (UCA) 40-10-2,

purpose [of Chapter 10]; (2) UCA 40-10-3, definitions of new terms

``adjudicative proceeding,'' ``lands eligible for remining,'' and

``unanticipated event or condition;'' (3) UCA 40-10-6.5, rulemaking

authority and procedure; (4) UCA 40-10-6.7, administrative procedures;

(5) UCA 40-10-7, prohibition of financial interest in any coal mining

operation; (6) UCA 40-10-8, coal exploration rules issued by the

Division of Oil, Gas and Mining (Division) and penalty for violation;

(7) UCA 40-10-10, permit applications; (8) UCA 40-10-11, Division

action on the permit application; (9) UCA 40-10-12, revision or

modification of permit provisions; (10) UCA 40-10-13, informal

conferences; (11) UCA 40-10-14, permit approval or disapproval,

appeals, and further review; (12) UCA 40-10-15, performance bonds; (13)

UCA 40-10-16, release of performance bond, surety, or deposit; (14) UCA

40-10-17, revegetation standards on lands eligible for remining; (15)

UCA 40-10-18, operator requirements for underground coal mining; (16)

UCA 40-10-19, information provided by the permittee to the Division and

right of entry; (17) UCA 40-10-20, contest of violation or amount of

penalty; (18) UCA 40-10-21, civil action to compel compliance with

Utah's program and other rights not affected; (19) UCA 40-10-22,

violations of Utah's program or permit conditions; (20) UCA 40-10-24,

determination of unsuitability of lands for surface coal mining; and

(21) UCA 40-10-30, judicial review of rules or orders. Utah also

proposes to repeal UCA 40-10-4, ``Mined land reclamation provisions

applied,'' and UCA 40-10-31, ``Chapter's procedures supersede Title 63,

Chapter 46b,'' and add the requirement that UCA 40-10-11(5),

modification of permit issuance prohibition, and UCA 40-10-

17(2)(t)(ii), revegetation standards on lands eligible for remining,

are repealed effective September 30, 2004.

The plan provisions of the Utah Coal Mining and Reclamation Act

that Utah proposes to revise are (1) UCA 40-10-25, lands and water

eligible for reclamation; (2) UCA 40-10-27, entry upon land adversely

affected by past coal mining practices, State acquisition of land and

public sale, and water pollution control and treatment plants; and (3)

UCA 40-10-28, recovery of reclamation costs and liens against reclaimed

land.

Following are more specific descriptions of the revisions that Utah

proposes to make to the above-listed sections of its statute. These

descriptions do not address several editorial revisions including

changes in punctuation and capitalization; recodification; replacement

of the word ``regulations'' and the term ``rules and regulations'' with

the synonymous word ``rules;'' the joining with the conjunction ``and''

of the last two provisions in a series of three or more provisions

joined by semicolons; the use of Arabic numbers instead of spelling out

the numbers; and the deletion of the word ``this'' prior to the word

``Subsection'' when it is followed by a specific statute citation.

Utah proposes the following revisions to its program provisions.

Utah proposes to add new definitions for the terms (1)

``adjudicative proceeding'' at UCA 40-10-3(1) to mean ``a division or

board action or proceeding that determines the legal rights, duties,

privileges, immunities, or other legal interests of one or more

identifiable persons, including all actions to grant, deny, revoke,

suspend, modify, annul, withdraw, or amend an authority, right, permit,

or license;'' (2) ``lands eligible for remining'' at UCA 40-10-3(8) to

mean ``those lands that would otherwise be eligible for expenditures

under Section 40-10-25 or 40-10-25.1;'' and (3) ``unanticipated event

or condition'' at UCA 40-10-3(21) to mean ``an event or condition

encountered in a remining operation that was not contemplated by the

applicable surface coal mining and reclamation permit.''

Utah proposes to revise its rulemaking authority and procedure

provisions at UCA 40-10-6.5 by adding new language at UCA 40-10-6.5(1)

to require the Board of Oil, Gas and Mining (Board) to promulgate rules

in accordance with Title 63, Chapter 46a of the Utah Administrative

Rulemaking Act and deleting the provisions of UCA 40-10-6.5(3), which

set forth the requirements for conducting hearings under Chapter 10.

Utah proposes to add new language at UCA 40-10-6.7, administrative

procedures, to require that the Division shall conduct informal

adjudicative proceedings, which are referred to as conferences or

informal conferences. Utah also proposes to require that the Board or

Division shall conduct formal adjudicative proceedings, which are

referred to as hearings or public hearings. The conduct of these

conferences and hearings will be governed by rules adopted by the Board

which are in accordance with Title 63, Chapter 46b of the Utah

Administrative Procedures Act (UAPA). In addition, Utah proposes that

such hearings, will be conducted in a manner which guarantees the

parties' due process rights, includes provisions to ensure this

protection, and requires a verbatim record of each public hearing

required by Chapter 10 will be made and a transcript will be available

on the motion of any party or by order of the Board.

Utah proposes an editorial revision at UCA 40-10-10, permit

applications, by changing the word ``implementing'' to ``the'' before

the word ``rules.''

Utah proposes to revise UCA 40-10-11 by requiring that the schedule

listing any and all notices of violations submitted as part of the

permit application include violations of any State or Federal program

or law approved under SMCRA. Utah also proposes to add new UCA 40-10-

11(5) to require that (1) the prohibition of UCA 40-10-11(3),

concerning issuance of a permit to persons with outstanding violations

or with a history of willful violations, does not apply after October

14, 1992, if the violation resulted from an unanticipated event or

condition that occurred on lands eligible for remaining, (2) the term

``violation'' as used here as the same meaning as the term

``violation'' under UCA 40-10-11(3) prohibiting permit issuance, and

(3) UCA 40-10-11(5) is repealed effective September 30, 2004.

Utah proposes to add new langauge to its provisions pertaining to

informal conferences at UCA 40-10-13(2)(b) to specify that, if written

objections to a proposed initial or revised application for a surface

coal mining and reclamation operations permit are filed, the Division

will hold an informal conference and conduct it in accordance with

subsection (b) irrespective of the requirements of section 63-46b-5 of

UAPA and that such conference may be held in the locality of the coal

mining and reclamation operation if requested within a reasonable time

after written objections or a request for an informal conference are

received by the Division.

Utah proposes to revise its provisions at UCA 40-10-14, pertaining

to permit approval or disapproval, appeals, and further review, by

adding new language at subsection (6) to provide that an applicant or

aggrieved person may appeal the Board's decision granting or denying

the permit in whole or in part directly to the Utah Supreme Court, that

if the Board fails to act, the applicant or aggrieved person may bring

an action in the appropriate district court, and that time frames for

appeals under this subsection shall be consistent with UAPA.

Utah proposes to revise its statutory provisions at UCA 40-10-16(6)

for release of performance bonds, sureties, or deposits by deleting the

requirements that provide for advertisement of a public hearing, govern

the manner in which hearings are conducted, and allow the Division to

establish an informal conference to resolve written objections. Utah

also proposes new language there requiring that:

If written objections are filed and a conference is requested,

the division shall inform all interested parties of the time and

place of the conference and hold an informal conference within 30

days after the request is filed with the division. The conference

officer may convert the conference to a formal proceeding under the

standards set forth in section 63-46b-4 [of the UAPA]. The matter

shall be scheduled for hearing before the board and a hearing shall

be held in accordance with the rules of practice and procedure of

the board. A decision from the informal conference may be appealed

to the board. The board shall hold a hearing pursuant to the rules

of practice and procedure of the board.

Utah proposes to revise its performance standards provisions at UCA

40-10-17(2) by adding new subsection (t)(ii) to require that on lands

eligible for remining, the operations shall assume the responsibility

for successful revegetation for a period of 2 full years after the last

year of augmented seeding, fertilizing, irrigation, or other work in

order to assure compliance with performance standards. Utah also

proposes to add new UCA 40-10-17(6) to specify that UCA 40-10-

17(2)(t)(ii) is repealed effective September 30, 2004.

Utah proposes to revise UCA 40-10-18, operator requirements for

underground coal mining, by adding new subsection (4) to require the

permittee of an underground coal mining operation after October 24,

1992, to promptly repair or compensate for material damage resulting

from subsidence to occupied residential dwellings and related

structures or noncommercial buildings. Utah further proposes that

repair of damage includes rehabilitation, restoration, or replacement

of such damaged dwellings, structures, or buildings; and compensation

is to be in the full amount of the diminution in value resulting from

the subsidence. Lastly, Utah proposes that the requirement to repair or

compensate for material damage resulting from subsidence will not

prohibit or interrupt underground coal mining operations, and the Board

will adopt final rules to implement these provisions within 1 year

after enactment of UCA 40-10-18(4).

Utah proposes to revise UCA 40-10-20, contest of violation or

amount of penalty, by adding new subsection (2)(e)(ii) to provide that

if the operator fails to submit the amount of the civil penalty within

30 days of receipt of the results of an informal conference, the

operator waives any opportunity for further review of the violation or

to contest the violation.

Utah proposes to revise UCA 40-10-22 pertaining to violations of

Utah's program or permit conditions by (1) requiring at subsection

(1)(d) that, where a determination is made that a pattern of violations

exists has existed and the violations were caused by the permittee's

unwarranted failure to comply with Utah's program or the conditions of

the permit, the Division will request the Board to issue an order to

the permittee to show cause as to why the permit should not be

suspended or revoked and provide an opportunity for a public hearing;

if the permittee requests a hearing, the Board will give notice in

accordance with its rules of practice and procedure; and if the

permittee fails to show cause as to why the permit should not be

suspended or revoked, the Board will immediately enter an order to

suspend or revoke the permit; (2) adding the word ``district'' before

``court'' at subsection (2)(a) and clarifying that any relief granted

by the district court will continue in effect unless the Utah Supreme

Court on review grants a stay of enforcement or sets aside or modifies

the Board's order which is being appealed; (3) providing at subsection

(3)(a) that a permittee or aggrieved person may initiate Board action

by requesting a hearing and requiring at subsections (3)(b) and (d)

that the Board will act in accordance with its rules of practice and

procedure; (4) changing terms at subsection (3)(e) from ``issued'' to

``entered'' when describing the outcome of the Board's order and from

``administrative'' to ``adjudicative'' when describing ``proceeding;''

and (5) at subsection (3)(f), providing that the Board's action is

subject to judicial review by the Utah Supreme Court as prescribed in

subsection 78-2-2(3)(e)(iv), rather than by the appropriate district

court.

Utah proposes to add new language to its judicial review of rules

and orders provisions at UCA 40-10-30 by adding new language to require

that (1) judicial review of adjudicative proceedings is governed by

Title 63, Chapter 46b, of UAPA and provisions of Chapter 10 consistent

with UAPA and (2) judicial review of the Board's rulemaking procedures

and rules adopted under Chapter 10 is governed by Title 63, Chapter

46a, Utah Administrative Rulemaking Act. Utah also proposes to revise

recodified subsection (3) to require that an appeal from the Board's

order will be directly to the Utah Supreme Court and to revise

recodified subsection (4) to require that an action or appeal involving

the Board's order will be determined as expeditiously as feasible by

the Utah Supreme Court in accordance with subsection 78-2-2(3)(e)(iv).

Finally, Utah proposes to delete existing subsection (3) pertaining to

review of the adjudication of the district court and add new language

at subsection (5) to specify that, if the Board fails to perform any

act or duty that is not discretionary, the aggrieved person may bring

an action in the appropriate district court.

Utah proposes to repeal UCA 40-10-4, ``Mined land reclamation

provisions applied,'' Utah Code Annotated 1953, as enacted by Chapter

145, Laws of Utah 1979. Utah also proposes to repeal UCA 40-10-31,

``Chapter's procedures supersede Title 63, Chapter 46b,'' Utah Code

Annotated 1953, as enacted by Chapter 161, Laws of Utah 1987.

Utah proposes to add new language requiring that UCA 40-10-11(5)

and UCA 40-10-17(2)(t)(ii) are repealed effective September 30, 2004.

Utah proposes the following revisions to its plan provisions.

Utah proposes to revise UCA 40-10-25 pertaining to lands and water

eligible for reclamation by deleting, as a priority for the expenditure

of AMLR funds, existing subsection (2)(d), which pertains to research

and demonstration projects relating to the development of surface

mining reclamation and water quality control program methods and

techniques, and adding new requirements for eligible lands and water to

include lands and water left in an inadequate reclamation status and

which meet the criteria of subsection (4) (a) or (b). Utah proposes to

allow AMLR funds to be used for reclamation or drainage abatement at

sites (1) where operations occurred during the period beginning August

4, 1977, and ending before January 21, 1981, and where funds pursuant

to a loan or other form of financial guarantee or from any other source

are not sufficient to provide for adequate reclamation or abatement at

the site and (2) where operations occurred during the period beginning

on August 4,1977, and ending on or before November 5, 1990, and where

the surety of the mining operator became insolvent during that period,

and as of November 5,1990, funds immediately available from proceedings

relating to the insolvency, or from any financial guarantee or other

source, are not sufficient to provide for adequate reclamation or

abatement at the site. Utah proposes to require that, in determining

which sites to reclaim, priority be given to those sites in the

immediate vicinity of a residential area or which have an adverse

economic impact upon a local community. Finally, Utah proposes to

provide that (1) surface coal mining operations on lands eligible for

remining do not affect eligibility for reclamation and restoration

after the release of the bond or deposit for the operation, (2) when

the bond or deposit for a coal surface mining operation on lands

eligible for remining is forfeited and the amount of the bond or

deposit is not sufficient to provide for adequate reclamation or

abatement, AMLR funds may be used for reclamation, and (3) regardless

of the provisions above that pertain to operations on lands eligible

for remining, the Director of the Division can expend monies from the

abandoned mine reclamation trust fund for any emergency requiring

immediate reclamation.

Utah proposes to revise UCA 40-10-28, recovery of reclamation costs

and liens against reclaimed land, by adding new language at subsection

(1)(a)(ii) to require that the sale price for land reclaimed using

reclamation funds that is sold to a State or local government for

public purposes, may not be less than the actual cost of purchase of

the property by the State plus the costs of reclamation. At subsection

(2)(a), Utah proposes that a lien shall not be placed against reclaimed

land where the surface owner owned the land prior to May 2, 1977, and

neither consented to nor participated in nor exercised control over the

mining operation that necessitated the reclamation work.

III. Public Comment Procedures

In accordance with the provisions of 30 CFR 732.17(h) and

884.15(a), OSM is seeking comments on whether the proposed amendment

satisfies the applicable program and plan approval criteria of 30 CFR

732.15 and 884.14. If the amendment is deemed adequate, it will become

part of the Utah program and plan.

1. Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Albuquerque Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t.

on May 27, 1994. The location and time of the hearing will be arranged

with those persons requesting the hearing. If no one requests an

opportunity to testify at the public hearing, the hearing will not be

held.

Filing of a written statement at the time of the hearing is

requested as it will greatly assist the transcriber. Submission of

written statements in advance of the hearing will allow OSM officials

to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

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

a public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listing under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the administrative record.

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 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments 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 12550) 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.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal Actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

V. List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 6, 1994.

Russell F. Price,

Acting Assistant Director, Western Support Center.

[FR Doc. 94-11531 Filed 5-11-94; 8:45 am]

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