Surface Mining and Reclamation Operations Under a Federal Program for Arizona; Proposed Rule DEPARTMENT OF THE INTERIOR
Federal RegisterAug 10, 1994
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
of the Department of the Interior (DOI) proposes a Federal program to
regulate coal exploration and surface coal mining and reclamation
operations on non-Federal and non-Indian lands in the State of Arizona.
This includes surface effects of underground coal mining. This proposed
program is necessary in order to regulate surface coal mining
activities that may be taken in Arizona under applicable provisions of
the Surface Mining Control and Reclamation Act of 1977 (SMCRA), and
under regulations found in 30 CFR Part 736, in the absence of a State
program.
DATES: Written comments: OSM will accept written comments on the
proposed rule until 4:00 p.m. local time on October 11, 1994
Public hearings: Upon request, OSM will hold a public hearing on
the proposed rule in Phoenix, Arizona on September 26, 1994 at 9:30
a.m. local time. OSM will accept requests for public hearings until
4:00 p.m. local time on September 9, 1994. Individuals wishing to
attend but not testify at any hearing should contact a person
identified under FOR FURTHER INFORMATION CONTACT beforehand to verify
that the hearing will be held.
ADDRESSES: Written comments: Mail or hand-deliver to: Office of Surface
Mining Reclamation and Enforcement, 505 Marquette Avenue NW, Suite
1200, Albuquerque, New Mexico, 87102.
Public hearings: The addresses and times for any hearings which may
be scheduled will be announced prior to the hearings.
Requests for public hearings: Submit requests orally or in writing
to a person and address specified under FOR FURTHER INFORMATION
CONTACT.
FOR FURTHER INFORMATION CONTACT:
Thomas E. Ehmett, Office of Surface Mining Reclamation and Enforcement,
505 Marquette Avenue NW, Suite 1200, Albuquerque, New Mexico 87102;
Telephone (505) 766-1486; or Nancy Broderick, Branch of Federal and
Indian Programs, Division of Regulatory Programs, Office of Surface
Mining Reclamation and Enforcement, 1951 Constitution Avenue NW,
Washington, DC 20240; Telephone (202) 208-2564.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures.
II. Background.
III. Discussion of Proposed Rule.
IV. Procedural Matters.
I. Public Comment Procedures
Availability of Copies
Copies of the proposed Arizona Federal regulatory program and all
written comments received in response to this notice will be available
for public inspection and may be obtained at the OSM office listed
above under ADDRESSES Monday through Friday, 9:00 am to 4:00 pm local
time, excluding holidays.
Written Comments
Written comments on the proposed rules should be specific, pertain
to issues pertinent to the proposed rules, and explain the reason for
any recommendation. Where possible, commenters should submit three
copies of their comments (see ADDRESSES). Comments received after the
time indicated under DATES or delivered to addresses other than
Albuquerque, New Mexico will not necessarily be considered or included
in the Administrative Record for the final rule.
Public Hearing
OSM will hold public hearings on the proposed rule on request only.
The time, date, and address scheduled for the hearing in Phoenix,
Arizona, is specified previously in this notice (see DATES and
ADDRESSES).
Any person interested in participating at the hearing should inform
Mr. Ehmett or Ms. Broderick (see FOR FURTHER INFORMATION CONTACT)
either orally or in writing by 4:00 p.m. local time September 9, 1994.
If no one has contacted Mr. Ehmett or Ms. Broderick to express an
interest in participating in a hearing by that date, the hearing will
not be held. If only one person expresses an interest, a public meeting
rather than a hearing may be held and the results included in the
Administrative Record.
If a hearing is held, it will be transcribed and will continue
until all persons in attendance wishing to testify have been heard. To
assist the transcriber and ensure an accurate record, OSM requests that
persons who testify at a hearing give the transcriber a copy of their
testimony. To assist OSM in preparing appropriate questions, OSM also
requests that persons who plan to testify submit an advance copy of
their testimony to OSM, at least two working days prior to the hearing.
The testimony should be submitted to the address previously specified
for the submission of written comments (see ADDRESSES). Any disabled
individual who has need for a special accommodation to attend a public
hearing should contact the individual listed under FOR FURTHER
INFORMATION CONTACT.
II. Background
Under Sec. 504(a) of the Surface Mining Control and Reclamation Act
of 1977 (SMRCA), 30 U.S.C. 1201 et seq., the Secretary of the Interior
(the Secretary) is required to promulgate a Federal program for a State
for, among other reasons, the failure of the State to submit a proposed
State program to the Secretary. Upon promulgation of a Federal
regulatory program, the Secretary becomes the regulatory authority.
Once a decision is made that a Federal regulatory program is
necessary for a State, the Secretary must make several determinations
before promulgating a program. Section 504(a) of SMCRA requires that
the Secretary take into consideration the nature of the State's
terrain, climate, biological, chemical, and other relevant physical
conditions. This requirement is also set forth in the regulations for
the promulgation of Federal programs at 30 CFR Part 736. Section 505(b)
of SMCRA and 30 CFR 736.22(a)(1) also provide that if a State has more
stringent land use and environmental protection laws or regulations,
they shall not be construed to be inconsistent with SMCRA or the
Secretary's regulations. If the State's laws or regulations establish
more stringent standards than those of SMCRA or the Secretary's
regulations, or if the State regulates any aspect of the environment
which neither SMCRA nor the Secretary's regulations protect, the
Secretary would then specifically preserve those State standards in the
Federal program. Thus the Secretary believes that the requirements of
Sec. 505(b) of SMCRA can best be met by identifying any State laws and
regulations which impose equivalent or more stringent environmental
controls and by listing them in Sec. 903.700(e) of the Federal program.
Also, in promulgating a program for a State, Section 504(g) of
SMCRA specifies that any State statutes or regulations which regulate
surface mining and reclamation operations subject to SMCRA will be
superseded and preempted by the Federal program to the extent that they
interfere with the achievement of the purposes and requirements of
SMCRA and the Federal program. This provision is reinforced by
Sec. 505(a) of SMCRA, which states that only those State laws and
regulations that are inconsistent with SMCRA and its implementing
regulations shall be superseded by the Federal program. Thus, State
statutes and rules regulating the same activities as those covered by
the Federal statute and regulations, but which do not provide as much
protection as do the Federal statute and regulations are considered to
interfere with the achievement of the purposes of SMCRA and must be
identified and preempted.
Finally, according to Sec. 504(h) of SMCRA, a Federal program must
include a process for coordinating the review and issuance of surface
mining permits with other Federal or State permits applicable to the
proposed operation. The Federal statutes with which compliance must be
coordinated in the issuance of a surface mining permit are set out at
30 CFR 736.22(c). State statutes for which a permit is required must be
identified in the process of promulgating a Federal program, and the
Federal program must provide for coordination with the permit review
and issuance procedures required by those statutes.
Federal programs are based on the Secretary's permanent program
regulations, 30 CFR Chapter VII, Subchapters A, F, G, H, J, K, L, and
M, which implement five essential aspects of the surface coal mining
regulatory program: permitting, performance standards, designation of
lands as unsuitable for mining, bonding, and inspection and
enforcement. These regulations establish procedures and performance
standards under SMCRA and form the benchmark for State and Federal
regulatory programs.
The permanent regulations refer to the ``regulatory authority,''
which is the Secretary under a Federal program. The Secretary has
delegated all of his authority under SMCRA to the Assistant Secretary--
Land and Minerals Management. (Secretarial Order No. 3013, Nov. 9,
1977, and Order No. 3099, Dec. 22, 1983). With limited exceptions, the
Assistant Secretary has in turn redelegated all of this authority under
SMCRA to the Director, OSM (216 Departmental Manual 1, November 9,
1977). Thus, the Director of OSM is the official directly responsible
for the implementation of a Federal regulatory program.
The parts of the permanent regulatory program regulations that must
be included in a Federal program are listed at 30 CFR 736.22(b). They
include general requirements and definitions (Parts 700 and 701), the
exemption for coal extraction incident to government-financed highway
or other construction (Part 707), the designation of lands as
unsuitable for surface mining (Parts 761, 762, and 769), permits and
permit applications (Subchapter G), small operator assistance
(Subchapter H), reclamation bonding (Subchapter J), performance
standards (Subchapter K), inspection and enforcement (Parts 842, 843,
and 845), and blaster training and certification (Subchapter M).
Federal programs are promulgated by means of cross-referencing the
permanent program rules which set the substantive standards. Cross-
referencing avoids duplication of the full text of the permanent
regulatory program rules for each Federal program. The proposed Federal
regulatory program for Arizona would establish 30 CFR Part 903.
Sections within Part 903 would cross-reference the counterpart
permanent program rules. For example, for general requirements for
permits and permit applications, proposed Sec. 903.773 of the Arizona
Federal regulatory program would cross-reference 30 CFR Part 773 of the
permanent program rules by stating that 30 CFR Part 773 shall apply to
any person who makes application for a permit to conduct surface coal
mining and reclamation operations.
For each particular permanent program regulation which needs to be
modified for use in a Federal program, an additional paragraph or
paragraphs would be added under the appropriate section to modify that
particular permanent regulatory program standard to make it applicable
to the Federal program State or to add additional requirements or
standards.
One effect of cross-referencing in a Federal program is that if a
permanent program rule is revised, the corresponding Federal program
rule would be similarly revised. However, the notice of proposed
rulemaking would invite comments not only on the proposed rule
generally, but also on how it might affect a particular Federal
program. If certain changes were needed for a Federal program, then a
separate provision would be added to the Federal program regulation
that is the counterpart to the permanent program rule.
Several provisions of the permanent program rules are already
applicable to all Federal programs because they were promulgated for
application to all regulatory programs and therefore need not be cross-
referenced here. These provisions are 30 CFR Chapter VII, Subchapter
P--Protection of Employees; Part 706-Restrictions on Financial
Interests of Federal Employees; Part 769--Petition Process for
Designation of Federal Lands Unsuitable for Surface Coal Mining;
Subchapter D--Federal Lands Program; Part 955--Certification of
Blasters in Federal Program States and on Indian lands.
On October 6, 1982, OSM published in the Federal Register a
proposed Federal program to regulate coal exploration and surface coal
mining and reclamation operations on non-Federal and non-Indian lands
in Arizona (47 FR 44194). During the public comment period, OSM was
informed by Arizona officials that all known coal reserves in Arizona
are located on Indian lands. Based on this information, OSM determined
at that time that a Federal program for Arizona for non-Federal and
non-Indian lands was not necessary. Therefore, by notice published in
the Federal Register on January 4, 1983, OSM withdrew its proposal for
a Federal program (48 FR 273).
Subsequently, OSM has determined that a regulatory program in
Arizona is needed in the event that coal exploration and surface coal
mining and reclamation operations should occur on non-Federal and non-
Indian lands in Arizona in the future. The State of Arizona has elected
not to pursue primacy under a State program at this time. Consequently,
pursuant to Sec. 504(a) of SMCRA, OSM is once again proposing a Federal
program in Arizona to regulate coal exploration and surface coal mining
and reclamation operations on non-Federal and non-Indian lands.
III. Discussion of Proposed Rule
As mentioned above, when promulgating a Federal program for a
State, the Secretary is required by Section 504(a) of SMCRA to take
into consideration the nature of the terrain, climate, biological,
chemical, and other relevant physical conditions of that State. OSM has
reviewed the Arizona laws and regulations to determine whether they
suggest that special provisions may be necessary or appropriate based
on special terrain or other physical conditions in the State.
Review of State Law
In connection with its 1982 proposal, OSM reviewed Arizona State
statutes to determine which ones provide regulatory requirements for
coal exploration and surface coal mining and reclamation operations as
defined by SMCRA, and to identify provisions that might be either more
stringent than or inconsistent with the requirements of SMCRA. The more
stringent requirements, whether State or Federal, would be adopted for
this program by listing in the proposed rules the Arizona State
statutes that set different controls and for which compliance is
required in the surface coal mining and reclamation operation.
Determining whether the State statutes are more stringent than the
Federal regulations was done on a case-by-case basis. Citation in the
proposed Federal program of State statutes with which compliance is
required is not meant as an adoption of those State statutes and
regulations for purposes of enforcement by OSM. Citation of such
statutes is intended as an aid to persons who must comply with both the
Federal program requirements and State statutes. However, if a State
law is cited below as interfering with the achievement of the purposes
of SMCRA, it would be superseded to the extent that it is less
stringent than the Federal program.
In accordance with 30 CFR Part 736, OSM has tentatively identified
the following statutes and regulations which, in certain circumstances,
impose stricter environmental controls than are provided for under
SMCRA or the Federal regulations. Section 903.700(e) of the proposed
Federal program for Arizona lists the Arizona laws which OSM has
tentatively identified as setting more stringent land use and
environmental controls for surface mining. The list set forth below is
based in part on the list published on October 6, 1982 (47 FR 44194),
and may need to be updated in a final rule adopting an Arizona Federal
program. Those more stringent Arizona statutes are described and
summarized as follows:
(1) The Arizona Commission of Agriculture and Horticulture has
authority to abate public nuisances including noxious weed seeds.
Arizona Revised Statutes (A.R.S.) Section 3-231 to Section 3-242.
Violation of this statute is a misdemeanor.
(2) It is unlawful to injure any bird or harass any bird upon its
nest to remove the nests or eggs of any bird without prior
authorization of the Arizona Game and Fish Commission. A.R.S. Section
17-236.
(3) A bridge, dam, dike, or causeway may not be constructed over or
in a navigable river or other navigable water without the authorization
of the Governor. A.R.S. Section 18-301.
(4) The Department of Mineral Resources has jurisdiction over the
mining of minerals, and oil and gas under Title 27 of the Arizona
Revised Statutes. One of the functions of that Department is the
prevention and elimination of hazardous dust conditions. A.R.S. Section
27-128. Violation of orders of state mine inspectors respecting dust
prevention and control is a misdemeanor.
(5) Roads leading into waste dump areas and tailing areas from
inhabited or public areas are required to be blocked off and warning
signs posted on the perimeter of such areas. A.R.S. Section 27-317.
(6) The primary responsibility for the control and abatement of air
pollution rests with the Arizona Department of Health Services and its
Hearing Board. The Department is responsible for the establishment and
enforcement of air pollution emission standards and ambient air quality
standards as a part of a comprehensive air quality plan for Arizona.
A.R.S. Title 49.
(7) The Arizona Department of Water Resources has jurisdiction over
State water, including ``surface waters.'' ``Surface waters'' means
``the waters of all sources, flowing in streams, canyons, ravines or
other natural channels, or in definite underground channels, whether
perennial or intermittent, flood, waste or surplus water, and of lakes,
ponds, and springs on the surface.
For the purposes of administering this title surface water is
deemed to include Central Arizona Project water.'' A.R.S. Section 45-
101. It is a misdemeanor to knowingly use the water of another, or
divert water from a stream, waste water or obstruct water flowing into
a water work. A.R.S. Section 45-112. Possession of water lawfully
denied to the possessor is prima facie evidence of one's guilt. A.R.S.
Section 45-112. If water is to be used for mining purposes, the water
rights may be severed from the land rights and transferred separately.
The separation and transference of water rights are subject to numerous
limitations, A.R.S. Section 45-172.
(8) Dams are defined as ``any artificial barrier, including
appurtenenant works for the impounding or diversion of water except
those barriers for the purpose of controlling liquid borne material,
twenty-five or more in height or the storage capacity of which will be
more than fifty acre feet, but does not include any such barrier which
is or will be less than six feet in height, regardless of storage
capacity, or which has or will have a storage capacity not in excess of
fifteen acre feet, regardless of height.'' A.R.S. Section 45-701. The
construction, operation, repair or alteration of any dam without the
prior approval of the Director of Water Resources is a misdemeanor.
A.R.S. Section 45-702 to Section 45-716.
In accordance with 30 CFR Part 736, OSM has tentatively identified
the following statutes and regulations as which, in certain
circumstances, interfere with achievement of the purposes of SMCRA and
the Federal program. Accordingly, OSM proposes to preempt them to the
extent they relate to surface coal mining and reclamation operations
subject to regulation under SMCRA. Section 903.700(f) of the proposed
Federal program for Arizona lists the Arizona statutes and regulations
which OSM has tentatively identified as interfering with the
achievement of the purposes of SMCRA. The list set forth below is based
on the list published on October 6, 1982 (47 FR 44194), and may need to
be updated in a final rule adopting an Arizona Federal program. Those
less stringent Arizona statutes and regulations are:
(1) Arizona Open Pits Mining Statute, A.R.S. Section 27-421 to
Section 27-425.
(2) Arizona Administrative Code Rules 11-1-1301 through 11-1-1315.
Thus, OSM proposes that the Arizona statutes and regulations
described above be followed only to the extent that they are not
inconsistent with the regulation of coal exploration, surface coal
mining operations, or the reclamation of surface coal mined lands in
the State of Arizona pursuant to the proposed Federal regulations.
Comment is invited on whether the Arizona laws identified in
Section 903.700(e) of the proposed Federal Program accurately reflect
more stringent Arizona environmental controls which adequately modify
the permanent program for application to Arizona so as to take into
consideration the nature of the State's relevant physical conditions.
Comment is similarly invited on whether the Arizona laws identified in
Section 903.700(f) of the proposed Federal Program would interfere in
certain circumstances with achievement of the purposes of SMCRA and the
Federal program.
Comment is also invited concerning any other Arizona laws and
regulations which establish more stringent or less stringent land use
and environmental controls than SMCRA, which may not be included in
this proposed rule, or which may have been revised or adopted since
1982.
Content and Organization of the Federal Program
This proposed rule, 30 CFR Part 903, is consistent with the
previously proposed rulemaking of October 6, 1982 (47 FR 44194), except
that this rulemaking includes modifications to account for revisions to
the permanent program rules that have taken place during the period
between proposed rulemakings.
The content and organization of the proposed Federal program for
Arizona would generally follow the permanent program regulations.
However, as discussed above, instead of the full text appearing, each
section includes only a reference to the pertinent permanent program
regulation section. Sections 903.700(e) and (f) set out both more
stringent and inconsistent State statutes. A separate paragraph is
proposed to be added under each section where there are deviations from
the Federal permanent program regulations for the Arizona Federal
program. These paragraphs will generally be found in a subsection (b).
The content and organization of the proposed Arizona Federal program
would be based on the following provisions of the Federal permanent
program regulations, 30 CFR Chapter VII:
Subchapter A--General
Subchapter F--Areas Unsuitable for Mining
Subchapter G--Surface Coal Mining and Reclamation Operations Permits
and Coal Exploration Systems under Regulatory Programs
Subchapter H--Small Operator Assistance
Subchapter J--Bond and Insurance Requirements for Bonding of Surface
Coal Mining and Reclamation Operations
Subchapter K--Permanent Program Performance Standards
Subchapter L--Permanent Program Inspection and Enforcement
Procedures
Part 955--Certification Program for Blasters
Technical literature cited by OSM in the preambles to the permanent
regulatory program (44 FR 14901-15309, March 13, 1979) and the
regulatory reform rulemaking notices ending September 30, 1983, was
relied upon in developing the Arizona Federal program. The reader is
referred to those preambles for a discussion of the bases and purposes
of the permanent program rules proposed to be referenced in the Arizona
program without substantive change.
The numbering system of the permanent program regulations has been
incorporated into the numbering system for the proposed Arizona Federal
program. Subchapter T of 30 CFR Chapter VII has been established to
include regulatory programs by State in alphabetical order, and each
State has been assigned a part number. As previously indicated, the
regulatory program for Arizona is assigned Part 903. Program elements
have been categorized under headings similar to the subchapter titles
of the permanent program in 30 CFR Chapter VII.
Detailed Discussion of the Arizona Program
General
Section 903.700 would contain six subsections: the first four
subsections, 903.700(a), (b), (c), and (d), would contain general
statements on the scope and applicability of the program. Section
903.700(e) would indicate Arizona State laws that have been identified
as having provisions that regulate activities involved in surface coal
mining operations and that have provisions that in some instances are
more stringent than SMCRA and the Secretary's regulations. Section
903.700(f) would identify Arizona State laws and regulations that
interfere with achievement of the purpose of SMCRA and Federal
regulations. These identified State laws and regulations would be
preempted and superseded.
Sections 903.701 through 903.707 would establish the same
provisions, where applicable, as 30 CFR Chapter VII, Subchapter A,
General. Section 903.701(a) would contain all applicable general
requirements, including the definitions in 30 CFR 700.5 and 701.5.
Subsection (b) is proposed to be added at Sec. 903.701 to make clear
that beginning on the effective date of this program and continuing
until an operation has a permanent program permit issued by OSM,
compliance with the interim program standards in 30 CFR Chapter VII,
Subchapter B is required. Section 502(c) of SMCRA provides that all
surface coal mining operations on lands on which such operations are
regulated by a State shall comply with the interim program standards
until a permanent program permit is issued. Paragraph (c) of
Sec. 903.701 would provide that records required by 30 CFR 700.14 to be
made available locally to the public shall be retained at the OSM
Albuquerque Field Office. Section 703.702 would establish the same
requirements as Part 702, Exemption for Coal Extraction Incidental to
the Extraction of Other Minerals. Section 903.707 would establish the
same requirements as Part 707, Exemption for Coal Extraction Incident
to Government-Financed Highway or Other Construction.
Permit Fees
Section 903.736 Permit fees, would establish the same provisions as
30 CFR section 736.25.
Areas Designated Unsuitable for Mining
Sections 903.761 through 903.764 would establish the same
provisions, where applicable, as 30 CFR Chapter VII, Subchapter F,
Areas Unsuitable for Mining. However, 30 CFR 736.15(b)(1) provides that
the procedures and criteria for designating lands unsuitable shall be
implemented one year after a Federal program is made effective for a
State. Therefore, Sec. 903.764 provides that Part 764 shall apply
beginning one year after the effective date of the Arizona program. No
separate section for Federal lands is proposed because 30 CFR Part 769
is directly applicable and need not be made a part of a Federal program
for a State.
Permits and Coal Exploration Approvals
Sections 903.772 through 903.785 would establish the same
provisions, where applicable, as 30 CFR Chapter VII, Subchapter G,
Surface Coal Mining and Reclamation Operations Permits and Coal
Exploration Systems Under Regulatory Programs. The following
amplifications are being proposed: For exploration applications where
30 CFR 772.12 applies, Sec. 903.772(b) would require that upon receipt
of notification from the regulatory authority of the submission of an
administratively complete application for an exploration permit, the
applicant shall publish one public notice of the filing in a newspaper
of general circulation in the county of the proposed exploration area,
and provide proof of this publication to the regulatory authority
within one week after the newspaper notice is published.
Section 903.772(c) would allow thirty (30) days after publication
of the public notice for persons adversely affected to file written
comments. Section 903.772(d) would require the regulatory authority to
act upon a complete exploration application and any written comments
within 15 days from the close of the comment period unless additional
time is necessary due to the number of, or complexity of the issues.
In Sec. 903.773, Requirements for permits and permit processing,
proposed subsection (b) would list Federal laws and corresponding or
relevant State laws that need coordination by OSM to prevent or
minimize duplication of effort with Arizona. Section 905.773(c) as
proposed contains the stipulation that no person may conduct coal
exploration or surface coal mining and reclamation operations without
first obtaining all other necessary permits from the State. This
section, which lists State laws with which the Secretary will endeavor
to coordinate when issuing a permit under this Federal program, is
based on the list published on October 6, 1982, (47 FR 44194) and may
have to be updated in a final rule establishing a Federal program for
Arizona. The State laws requiring coordination are summarized below:
(1) Arizona towns and cities are given long-range development and
planning responsibility for their jurisdictions, are authorized to
issue zoning ordinances and regulate the industrial use of municipal
land and establish special zoning districts (A.R.S. Section 9-461 to
Section 9-462-01). Arizona counties have general permitting authority
and violation of a county building permit is a petty offense. A.R.S.
11-322 et seq. Each County's Board of Supervisors has responsibility
for promulgating and enforcing the zoning ordinances for the county,
and it is unlawful to use land in violation of a zoning regulation,
ordinance or permit; violation of such regulation, ordinance or permit
is a misdemeanor. A.R.S. Section 11-808, Section 11-803, and A.R.S.
Section 11-821.
(2) The Arizona law concerning the perfection of mining claims and
the establishment of claims to mineral rights is found in A.R.S.
Section 27-201 to 27-210. Notice of such a claim must be recorded
within 90 days in the appropriate office of the County having
jurisdiction over the recording of land claims. A.R.S. Section 27-203.
(3) A mineral exploration permit is required before prospecting is
allowed on public land. A.R.S. Section 27-251 to Section 27-256.
(4) A permit from the Department of Health Services is required for
the discharge of solid wastes and air pollutants. A.R.S. Title 49,
Chapters 1 and 2.
(5) An installation permit is required before any pollution-causing
equipment may be installed. Before the equipment can commence operation
an operating permit is required. The permits are not automatically
transferable. It is a misdemeanor to violate any air pollution permit,
ordinance or statute, and criminal intent is not an element of proof.
A.R.S. Title 49.
(6) The Department of Health Services has the responsibility for
issuing water pollutant discharge permits. A.R.S. Title 49, Chapter 2.
(7) It is unlawful to discharge wastes or drainage into State
waters or reduce water quality below water quality standards or
discharge pollutants into waters without a permit from the Department
of Health Services, A.R.S. Title 45.
(8) The Department of State Lands has the responsibility for
issuing mineral prospecting permits for State lands. A.R.S. Section 37-
231.
(9) The waters from all sources belong to the State and are subject
to appropriation and beneficial use. In order to appropriate water or
make a beneficial use of water, a permit is required from the Director
of the Department of Water Resources. The approval of the Director is
required before such a permit may be transferred. A secondary permit
from the Director is required before use may be made of reservoir
waters. A.R.S. Title 45.
Comment is invited concerning the accuracy of this list, and is
also invited concerning any other Arizona laws requiring coordination
under Section 903.773 which may not be included in this proposed rule,
or which may have been revised or adopted since 1982.
In addition to the requirements under the permanent program rules,
OSM proposes adding other provisions for permit review. More detail is
necessary when OSM is the regulatory authority in order to provide
direction to the permit applicant. Section 903.773(d) would establish
specific permit application review procedures. This is necessary to
dispose of grossly deficient applications early in processing, to
provide a procedure for obtaining additional information, and to
indicate the procedure for determinations of completeness. The proposed
rule at Sec. 903.773(e) would allow OSM to require an applicant to
submit supplemental information to ensure compliance with applicable
Federal laws and regulations other than SMCRA and its implementing
regulations. The proposed rule at Sec. 903.773(f) would establish,
pursuant to 30 CFR 773.15(a)(1), a time period of 60 days from the
close of the comment period for the regulatory authority to issue a
written decision unless additional time is necessary due to the number
of, or complexity of the issues. The proposed rule at Sec. 903.773(g)
would establish a procedure for ensuring confidentiality of qualified
permit application information. Such information would have to be
labeled confidential and submitted separately to be reviewed by OSM for
withholding from disclosure. In addition, Sec. 903.773(g)(1) would
require the public notice required by Sec. 903.773(d)(3) to identify
the type of information considered to be confidential. Finally,
Sec. 903.773(g)(2) would require OSM to rule on the confidentiality of
labeled application information within ten days of the last publication
of the notice required under Sec. 903.773(d)(3).
The proposed rule at Sec. 903.774(b) would provide that a revision
of the permit that may have the potential to adversely impact the
potential for the achievement of reclamation and the post-mining land
use shall be considered significant. In addition, the rule provides
that WSC shall consider the following factors as well as other relevant
factors in determining the significance of a proposed revision: (1)
Changes in production or recoverability of the coal resource; (2) The
environmental effects; (3) The public interest in the operation, or
likely interest in the proposed revision; and (4) Possible adverse
impacts from the proposed revision on fish or wildlife, endangered
species, bald or golden eagles, or cultural resources.
A significant revision would require public notice and would be
subject to a formal hearing if one is requested.
The proposed rule at Sec. 903.774(c) would require that OSM approve
or disapprove non-significant permit revisions within a reasonable
amount of time. The proposed rule at Sec. 903.774(d) would allow 30
days for any person having an interest that is or may be adversely
affected by a decision on the transfer, assignment, or sale of permit
rights to submit written comments after publication of the notice
required by 30 CFR 774.17(b)(2). The proposed rule at Sec. 903.774(e)
would allow interested persons and public entities 30 days from the
last publication of the notice to submit written comments of objections
on an application for significant revision or permit renewal.
The permanent program regulations at 30 CFR 779.19(a) give the
regulatory authority discretion to require a map that delineates
vegetation types in the proposed permit area. The proposed rule at
Sec. 903.779(b) requires the applicant for a surface mining permit to
submit such a map. Similarly, the proposed rule at Sec. 903.783(b)
requires a vegetation map for underground mining permits.
Small Operator Assistance
Section 903.795 would establish the same standards for the small
operator assistance program (SOAP) as are found in Part 795 of the
permanent program rules. OSM expects during its administration of the
SOAP in Arizona that Federal funds will be sufficient to provide for
authorized services, and does not expect to exercise its option at 30
CFR 795.11(b). That option allows OSM to establish a formula for
allocating limited funds to provide the service pursuant to Part 795.
OSM will award SOAP contracts to qualified laboratories utilizing a
streamlined procurement system that complies with the Federal
Acquisition Regulations. Prior to issuing a Request for Proposals, OSM
will announce its intention through publication in the Commerce
Business Daily. OSM will qualify labs as part of its contracting
process.
Bonding
Section 903.800 establishes the same provisions, where applicable,
as 30 CFR Chapter VII, Subchapter J, Bond and Insurance Requirements
for Surface Coal Mining and Reclamation Operations. The proposed rule
at Sec. 903.800(b) would require the operator to file an application
for release of performance bond no later than 30 days prior to the end
of the growing season. In addition, OSM is requesting information
pertaining to any bonding requirements which may have been placed on
existing surface coal mining operations in Arizona.
Performance Standards
Section 903.815 through 903.828 would establish the same
provisions, where applicable, as 30 CFR Chapter VII, Subchapter K. The
following changes would be made:
Proposed Sec. 903.816(b) would require: (1) That the standards for
Revegetation success for surface mining activities shall be those
specified at 30 CFR 816.116(a)(2), and (2) that the statistically valid
sampling techniques for measuring success shall be included in the
mining and reclamation plan.
Proposed Sec. 903.817(b) would require: (1) That the standards for
revegetation success for underground mining activities shall be those
specified in 30 CFR 817.116(a)(2); and (2) that the statistically valid
sampling techniques for measuring success shall be included in the
mining and reclamation plan.
Inspection and Enforcement Procedures
Sections 903.842, 903.843, 903.845, and 903.846 establish the same
provisions as 30 CFR Chapter VII, Subchapter L, Permanent Program
Inspection and Enforcement Procedures. No changes to the inspection and
enforcement provisions of the permanent program regulations are
proposed for the Arizona Federal program. The proposed rules at
Secs. 903.842(b) and 903.843(b) would require OSM to furnish to a
designated Arizona State agency with jurisdiction over mining, on
request, copies of inspection reports and enforcement actions,
respectively.
Blaster Training and Certification
Section 903.955 cross-references 30 CFR Part 955 of the permanent
program regulations.
IV. Procedural Matters
Federal Paperwork Reduction Act
This rule does not contain collections of information which require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
Executive Order 12866
This rule is not subject to Office of Management and Budget review
under Executive Order 12866.
Regulatory Flexibility Act
The Department of the Interior has determined pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that this proposed
rule will not have a significant economic impact on a substantial
number of small entities because no small entities are expected to
apply for permits under the Arizona Federal Program and the total
number of permits applied for under the program is expected to be very
small.
National Environmental Policy Act
Section 702(d) of SMCRA provides that promulgation of a Federal
program shall not constitute a major Federal action under the National
Environmental Policy Act, 42 U.S.C. 433. Thus, no environmental
assessment or environmental impact statement is required for this
rulemaking.
Executive Order 12778 (Civil Justice Reform)
This proposed rule has been reviewed under the applicable standards
of section 2(b)(2) of Executive Order 12778, ``Civil Justice Reform''
(56 FR 55195). In general, the requirements of section 2(b)(2) are
covered by the preamble discussion of this rule. Individual elements of
the order are addressed below:
A. What would be the preemptive effect, if any, to be given to the
regulation?
As provided for under SMCRA, the proposed regulatory program would
have a preemptive effect with respect to State laws and regulations
less stringent than SMCRA, as provided for under SMCRA (see above under
Discussion of Proposed Rule).
B. What would be the effect of the regulation on existing Federal
law or regulation, if any, including all provisions repealed or
modified?
The proposed regulation would implement SMCRA in the State of
Arizona, as described herein, and is not intended to modify the
implementation of any other Federal statute. The preceding discussion
of the proposed action specifies the Federal regulatory provisions that
are affected by the proposed revision.
C. Would the regulation provide a clear and certain legal standard
for affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of SMCRA.
D. What would be the retroactive effect, if any, to be given to the
regulation?
There would be no retroactive effect to the proposed regulation.
E. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings would be required before parties may
file suit in court challenging the provisions of the proposed revision.
Prior to any judicial challenge of the application of the rule,
however, administrative procedures must be exhausted. Applicable
administrative procedures may be found at 43 CFR Part 4.
F. Would the proposed action define key terms, either explicitly or
by reference to other regulations or statutes that explicitly define
those items?
Terms which are important to the understanding of the proposed
action are set forth in 30 CFR 700.5 and 740.5.
G. Would the regulation address other important issues affecting
clarity and general draftsmanship of regulations set forth by the
Attorney General, with the concurrence of the Director of the Office of
Management and Budget, that are determined to be in accordance with the
purposes of the Executive Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
Author
The principal author of these proposed regulations is James B.
Smith, Regulatory Programs Branch, Albuquerque Field Office, 500
Marquette Ave. NW., Suite 1200, Albuquerque, NM 87110.
List of Subjects in 30 CFR Part 903
Coal mining, Intergovernmental relations, Surface mining,
Underground mining, Reporting and recordkeeping requirements.
Dated: July 18, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
Accordingly, OSM proposes to amend 30 CFR Chapter VII, Subchapter T
as set forth below:
30 CFR Chapter VII, Subchapter T
1. Part 903 is added to read as follows:
PART 903--ARIZONA
Sec.
903.700 Arizona Federal Program.
903.701 General.
903.702 Exemption for coal extraction incidental to the extraction
of other minerals.
903.707 Exemption for coal extraction incident to government-
financed highway or other construction.
903.736 Permit fees.
903.761 Areas designated unsuitable for surface coal mining by act
of Congress.
903.762 Criteria for designating areas as unsuitable for surface
coal mining operations.
903.764 Process for designating areas unsuitable for surface coal
mining operations.
903.772 Requirements for coal exploration.
903.773 Requirements for permits and permit processing.
903.774 Revision; renewal; and transfer, assignment, or sale of
permit rights.
903.775 Administrative and judicial review of decisions.
903.777 General content requirements for permit applications.
903.778 Permit applications--Minimum requirements for legal,
financial, compliance, and related information.
903.779 Surface mining permit applications--Minimum requirements
for information on environmental resources.
903.780 Surface mining permit applications--Minimum requirements
for reclamation and operation plan.
903.783 Underground mining permit applications--Minimum
requirements for information on environmental resources.
903.784 Underground mining permit applications--Minimum
requirements for reclamation and operation plan.
903.785 Requirements for permits for special categories of mining.
903.795 Small operator assistance program.
903.800 Bond and insurance requirements for surface coal mining and
reclamation operations under regulatory programs.
903.815 Performance standards--Coal exploration.
903.816 Performance standards--Surface mining activities.
903.817 Performance standards--Underground mining activities.
903.819 Special performance standards--Auger mining.
903.822 Special performance standards--Operations in alluvial
valley floors.
903.823 Special performance standards--Operations on prime
farmland.
903.824 Special performance standards--Mountaintop removal.
903.827 Special performance standards--Coal preparation plants not
located within the permit area of a mine.
903.828 Special performance standards--In situ processing.
903.842 Federal inspections.
903.843 Federal enforcement.
903.845 Civil penalties.
903.846 Individual civil penalties.
903.955 Certification of blasters.
Authority: 30 U.S.C. 1201 et seq., as amended.
Sec. 903.700 Arizona Federal Program.
(a) This part contains all rules that are applicable to surface
coal mining and reclamation operations in Arizona which have been
adopted under the Surface Mining Control and Reclamation Act of 1977.
(b) Certain of the rules in this part cross-reference pertinent
parts of the permanent program rules in this chapter. The full text of
a cross-referenced rule is in the permanent program rule cited under
the relevant section of the Arizona Federal Program.
(c) This part applies to all coal exploration and surface coal
mining and reclamation operations in Arizona conducted on non-Federal
and non-Indian lands. To the extent required by 30 CFR Part 740, this
part also applies to operations on Federal lands in Arizona.
(d) The information collection requirements contained in this part
have been approved by the Office of Management and Budget under 44
U.S.C. 3507 in its approval of the information collection requirements
contained in the permanent regulatory program.
(e) The following provisions of Arizona law generally provide for
more stringent environmental control and regulation of some aspects of
surface coal mining and reclamation operations than do the provisions
of the Surface Mining Control and Reclamation Act of 1977, and the
regulations in this chapter. Therefore, pursuant to section 505(b) of
the Act, they shall not generally be construed to be inconsistent with
the Act, unless in a particular instance the rules in this chapter are
found by OSM to establish more stringent environmental or land use
controls:
(1) The Arizona Commission of Agriculture and Horticulture has
authority to abate public nuisances including noxious weeds and noxious
weed seeds. A.R.S. Sections 3-231 to 3-242. Violation of this statute
is a misdemeanor.
(2) It is unlawful to injure any bird or harass any bird upon its
nest or remove the nests or eggs of any bird without prior
authorization of the Arizona Game and Fish Commission. A.R.S. Section
17-236.
(3) A bridge, dam, dike or causeway may not be constructed over or
in a navigable river or other navigable water without the authorization
of the Governor. A.R.S. Section 18-301.
(4) The Department of Mineral Resources has jurisdiction over the
mining of minerals, and oil and gas under Title 27 of the Arizona
Revised Statutes. One of the functions of that Department is the
prevention and elimination of hazardous dust conditions. A.R.S. Section
27-128. Violation of orders of state mine inspectors respecting dust
prevention and control is a misdemeanor.
(5) Roads leading into waste dump areas and tailing areas from
inhabited or public areas are required to be blocked off and warning
signs posted on the perimeter of such areas. A.R.S. Section 27-317.
(6) The primary responsibility for the control and abatement of air
pollution rests with the Arizona Department of Environmental Quality
and its Hearing Board. The Department is responsible for the
establishment and enforcement of air pollution emission standards and
ambient air quality standards as a part of a comprehensive air quality
plan for Arizona. A.R.S. Title 49.
(7) The Arizona Department of Water Resources has jurisdiction over
State water, including ``surface waters.'' ``Surface waters'' means
``the waters of all sources, flowing in streams, canyons, ravines or
other natural channels, or in definite underground channels, whether
perennial or intermittent, flood, waste or surplus water, and of lakes,
ponds and springs on the surface. For the purposes of administering
this title, surface water is deemed to include Central Arizona Project
water.'' A.R.S. Section 45-101. It is a misdemeanor to knowingly use
the water of another, or divert water from a stream, waste water or
obstruct water flowing into a water work. A.R.S. Section 45-112.
Possession of water lawfully denied to the possessor is prima facie
evidence of one's guilt. A.R.S. Section 45-112. If water is to be used
for mining purposes the water rights may be severed from the land
rights and transferred separately. The separation and transference of
water rights is subject to numerous limitations, A.R.S. Section 45-172.
(8) Dams are defined as ``any artificial barrier, including
appurtenant works for the impounding or diversion of water except those
barriers for the purpose of controlling liquid borne material, twenty-
five feet or more in height or the storage capacity of which will be
more than fifty acre feet, but does not include any such barrier which
is or will be less than six feet in height, regardless of storage
capacity, or which has or will have a storage capacity not in excess of
fifteen acre feet, regardless of height.'' A.R.S. Section 45-701. The
construction, operation, repair or alteration of any dam without the
prior approval of the Director of Water Resources is a misdemeanor.
A.R.S. Section 45-702 to Section 45-716..
(f) The following are the Arizona laws and regulations that
generally interfere with the achievement of the purposes and
requirements of the Act and are, in accordance with section 504(g) of
the Act, preempted and superseded. Other Arizona laws may in an
individual situation interfere with the purposes and achievements of
the Act and may be preempted and superseded with respect to the
performance standards of Secs. 903.815 through 903.828 as they affect a
particular coal exploration or surface mining operation by publication
of a notice to that effect in the Federal Register.
(1) Arizona Open Pits Mining Statute, A.R.S. Section 27-421 to
Section 27-425.
(2) Arizona Administrative Code Rules 11-1-1301 through 11-1-1315.
Sec. 903.701 General.
(a) Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and Part
701 of this chapter shall apply to coal exploration and surface coal
mining and reclamation operations in Arizona.
(b) Beginning on the effective date of this program, each surface
coal mining and reclamation operation in Arizona shall comply with
Subchapter B of this chapter until issuance of a permanent program
permit under the provisions of Subchapter C of this chapter.
(c) Records required by Sec. 700.14 of this chapter to be made
available locally to the public shall be made available in the OSM
Albuquerque Field Office.
Sec. 903.702 Exemption for coal extraction incidental to the
extraction of other minerals.
Part 702 of this chapter, Exemption for Coal Extraction Incidental
to the Extraction of Other Minerals, shall apply to any person who
conducts coal extraction incidental to the extraction of other minerals
for purposes of commercial use or sale.
Sec. 903.707 Exemption for coal extraction incident to government-
financed highway or other construction.
Part 707 of this chapter, Exemption for Coal Extraction Incident to
Government-Financed Highway or Other Construction, shall apply to
surface coal mining and reclamation operations.
Sec. 903.736 Permit fees.
Section 736.25 of this chapter, Permit fees, shall apply to any
person who makes application for a permit to conduct surface coal
mining and reclamation operations in Arizona.
Sec. 903.761 Areas designated unsuitable for surface coal mining by
act of Congress.
Part 761 of this chapter, Areas Designated by Act of Congress,
shall apply to surface coal mining operations.
Sec. 903.762 Criteria for designating areas as unsuitable for surface
coal mining operations.
Part 762 of this chapter, Criteria for Designating Areas Unsuitable
for Surface Coal Mining Operations, shall apply to surface coal mining
operations.
Sec. 903.764 Process for designating areas unsuitable for surface coal
mining operations.
Part 764 of this chapter, State Processes for Designating Areas
Unsuitable for Surface Coal Mining Operations, pertaining to petitions,
initial processing, hearing requirements, decisions, data base and
inventory systems, public information, and regulatory responsibilities,
shall apply to surface coal mining operations beginning one year after
the effective date of this program.
Sec. 903.772 Requirements for coal exploration.
(a) Part 772 of this chapter, Requirements for Coal Exploration,
shall apply to any person who conducts coal exploration. For those
applications where Sec. 772.12 applies, the requirements of paragraphs
(b) through (d) shall apply in place of Sec. 772.12(c) (1) and (3) and
Sec. 772.12(d)(1).
(b) The applicant upon receipt of notification from the regulatory
authority of the submission of an administratively complete application
for an exploration permit, shall publish one public notice of the
filing in a newspaper of general circulation in the county of the
proposed exploration area, and provide proof of this publication to the
regulatory authority within one week after the newspaper notice is
published.
(c) Any person having an interest that is or may be adversely
affected shall have the right to file written comments within thirty
(30) days after the advertisement appears in the newspaper.
(d) The regulatory authority shall act upon an administratively
complete application for a coal exploration permit and any written
comments within 15 days from the close of the comment period unless
additional time is necessary due to the number of, or complexity of,
the issues. The approval of a coal exploration permit shall be based
only on a complete and accurate application.
Sec. 903.773 Requirements for permits and permit processing.
(a) Part 773 of this chapter, Requirements for Permits and Permit
Processing, shall apply to any person who applies for a permit for
surface coal mining and reclamation operations.
(b) The Secretary shall coordinate, to the extent practicable, his/
her responsibilities under the following Federal laws with the relevant
Arizona laws to avoid duplication:
------------------------------------------------------------------------
Federal law State law
------------------------------------------------------------------------
(1) Clean Water Act, as amended, 33 A.R.S. Title 49, Art. 2, Sec 221-
U.S.C. 1251 et seq. 225; A.R.S. Title 49, Art. 3, Sec
241-251; A.R.S. Title 49, Art. 10,
Sec 361-363; A.R.S. Title 49, Art.
11, Sec 371-381.
(2) Clean Air Act, as amended, 42 A.R.S. Title 49.
U.S.C. 7401 et seq.
(3) Resource Conservation and ...................................
Recovery Act, 42 U.S.C. 3251 et
seq.
(4) National Environmental Policy ...................................
Act, 42 U.S.C. 4321 et seq.
(5) Archeological and Historic Arizona Antiquities Act--A.R.S.
Preservation Act, 16 U.S.C. 470 et Title 41, secs. 821, 841-846, 861,
seq. 862, 865, 1352.
(6) National Historic Preservation A.R.S. Title 13 Secs. 3702, 3702.1;
Act, 16 U.S.C. 470 et seq. Title 41 secs. 511, 511.04, 821,
861, 862, 1352; Title 44 sec. 123.
(7) Coastal Zone Management Act, 16 ...................................
U.S.C. 1451, 1453-1464.
(8) Section 208 of the Clean Water A.R.S. Sections 49-101, 201 and
Act, as amended, 33 U.S.C. 1251 et 371.
seq.
(9) Endangered Species Act, 16 A.R.S. Title 17 Section 231A.2.
U.S.C. 1531 et seq. Arizona Admin. Code Title 18
Chapter 10, Article 1.
(10) Fish and Wildlife Coordination ...................................
Act, 16 U.S.C. 661-667.
(11) Noise Control Act, 42 U.S.C. ...................................
4903.
(12) Bald Eagle Protection Act, 16 A.R.S. Title 17 Section 235.
U.S.C. 668-668(d).
------------------------------------------------------------------------
(c) Where applicable, no person shall conduct coal exploration
operations which result in the removal of more than 250 tons in one
location or surface coal mining and reclamation operations without a
permit issued by the Secretary pursuant to 30 CFR parts 772 an 773 and
permits, leases, and/or certificates required by the State of Arizona,
including compliance with the following:
(1) Municipal planning statues (A.R.S. Section 9-461 to 9-462.01);
(2) County planning and zoning statutes (A.R.S. Section 11-322 et
seq.;
(3) A.R.S. Section 11-808, 11-821;
(4) Statutes governing perfection and recordation of mining claims
(A.R.S. Section 27-201 to 27-210);
(5) Statutes requiring mineral exploration permits (A.R.S. Section
27-251 to 27-256);
(6) Solid waste and air pollution discharge permits, installation
and operation permits required for equipment causing air pollution and
water pollution discharge permits (A.R.S. Title 49, Chapters 1 and 2);
(7) Mineral prospecting permits for State lands (A.R.S. Section 37-
231); and
(8) Permits for use of State waters and permits for secondary use
of reservoir waters (A.R.S. Title 45).
(d) In addition to the requirements of Part 773, the following
permit application review procedures shall apply:
(1) Any person applying for a permit shall submit, at a minimum,
five copies of the application to OSM's Western Support Center (WSC) in
Denver, Colorado.
(2) WSC shall review an application for administrative completeness
and acceptability for further review, and shall notify the applicant in
writing of the findings. WSC may:
(i) Reject a flagrantly deficient application, notifying the
applicant of the findings;
(ii) Request additional information required for completeness,
stating specifically what information must be supplied; or
(iii) Judge the application administratively complete and
acceptable for further review.
(3) When the application is judged administratively complete, the
applicant shall be advised by WSC to file the public notice required by
Sec. 773.13 of this chapter.
(4) A representative of WSC may visit the proposed permit area if
necessary to determine whether the operation and reclamation plans are
consistent with actual site conditions. The applicant will be notified
of the time of the visit in advance.
(5) Adequacy of information to allow WSC to comply with the
National Environmental Policy Act, 42 U.S.C. 4322, shall be considered
in the determination of a complete application. WSC may require
specific additional information from the applicant as any environmental
review progresses when such specific information is needed.
(e) In addition to the information required by subchapter G of this
chapter, WSC may require an applicant to submit supplemental
information to ensure compliance with applicable Federal laws and
regulations other than the Act and 30 CFR Title VII.
(f) The regulatory authority shall review the application for a
permit, any written comments and objections submitted; and all of the
records of any informal conference or hearing held on the application.
Where there is no Environmental Impact Statement (EIS), the regulatory
authority shall issue a written decision within 60 days from the close
of the comment period or, if an informal conference is held under
Sec. 773.13(c), 60 days from the conclusion of the informal conference
unless additional time is necessary due to the number of, or complexity
of the issues. Where an EIS has been prepared for the application, no
decision on the proposed action shall be issued until at least 30 days
after the Environmental Protection Agency's (EPA) publication of the
notice of availability of the final EIS in the Federal Register.
(g) Only application information that is labeled confidential by
the applicant and submitted separately from the remainder of the
application will be reviewed by OSM for withholding from disclosure
under Sec. 773.13(d).
(1) If the application contains information identified as
confidential by the applicant, the public notice required by
Sec. 903.773(d)(3) must identify the type of information considered to
be confidential.
(2) OSM shall determine the qualification of any application
information labeled confidential within 10 days of the last publication
of the notice required under Sec. 903.773(d)(3) of this chapter, unless
additional time is necessary to obtain public comment or in the event
of unforeseen circumstances.
Sec. 903.774 Revision; renewal; and transfer, assignment, or sale of
permit rights.
(a) Part 774 of this chapter, Revision; Renewal; and Transfer,
Assignment, or Sale of Permit Rights, shall apply to any such actions
involving surface coal mining and reclamation operations permits,
except as specified below.
(b) Any revision to the approved mining or reclamation plan shall
be subject to review and approval by WSC. WSC consider the following
factors as well as other relevant factors in determining the
significance of a proposed revision:
(1) Changes in production or recover ability of the coal resource;
(2) The environmental effects;
(3) The public interest in the operation, or likely interest in the
proposed revision; and
(4) Possible adverse impacts from the proposed revision on fish or
wildlife, endangered species, bald or golden eagles, or cultural
resources.
(c) Any significant revision to the approved mining or reclamation
plan shall be subject to the public notice and hearing provisions of
Secs. 903.703(b)(3) and 773.13 (b) and (c) prior to approval and
implementation.
(d) Any revision to the approved reclamation plan that may have the
potential to adversely impact the potential for the achievement of
reclamation and the post-mining land use shall be considered a
significant permit revision.
(e) The regulatory authority will approve or disapprove non-
significant permit revisions within a reasonable amount of time from
the receipt of a complete and accurate revision application.
Significant revision and renewals will be approved or disapproved under
the provisions of Sec. 903.773(f).
(f) In addition to the requirements of Part 774 of this chapter,
any person having an interest which is or may be adversely affected by
a decision on the transfer, assignment, or sale of permit rights,
including an official of any Federal, State, or local government
agency, may submit written comments on the application to the Office
within 30 days of the publication of the newspaper advertisement
required by Sec. 774.17(b)(2) of this chapter, or receipt of an
administratively complete application, whichever is later.
(g) Within 30 days from the last publication of the newspaper
notice, written comments or objections to an application for
significant revision or renewal of a permit under Sec. 774.15 may be
submitted to the regulatory authority by: (1) any person having an
interest that is or may be adversely affected by the decision on the
application; or (2) public entities notified under Sec. 773.13(a)(3) of
this chapter with respect to the effects of the proposed mining
operations on the environment within their areas of responsibility.
Sec. 903.775 Administrative and judicial review of decisions.
Part 775 of this chapter, Administrative and Judicial Review of
Decisions, shall apply to all decisions on permits.
Sec. 903.777 General content requirements for permit applications.
(a) Part 777 of this chapter, General Content Requirements for
Permit Applications, shall apply to any person who makes application
for a permit to conduct surface coal mining and reclamation operations.
(b) Any person who wishes to conduct surface coal mining and
reclamation operations shall file a complete application as early as
possible before the date when a permit is desired and shall pay to OSM
a permit fee in accordance with Sec. 903.736.
(c) Any person who wishes to revise a permit shall submit a
complete application as early as possible before the date that approval
of the permit revision is desired and shall pay a permit fee in
accordance with 30 CFR 777.17.
Sec. 903.778 Permit applications--Minimum requirements for legal,
financial, compliance, and related information.
Part 778 of this chapter, Permit Applications--Minimum Requirements
for Legal, Financial, Compliance, and Related Information, shall apply
to any person who makes application for a permit to conduct surface
coal mining and reclamation operations.
Sec. 903.779 Surface mining permit applications--Minimum requirements
for information on environmental resources.
(a) Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, shall
apply to any person who makes application to conduct surface coal
mining and reclamation operations.
(b) In addition to the requirements of Part 779, the permit
application shall contain a map that delineates existing vegetative
types and a description of the plant communities within the proposed
permit area and within any proposed reference area.
Sec. 903.780 Surface mining permit applications--Minimum requirements
for reclamation and operation plan.
Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to
any person who makes application to conduct surface coal mining and
reclamation operations.
Sec. 903.783 Underground mining permit applications--Minimum
requirements for information on environmental resources.
(a) Part 783 of this chapter, Underground Mining Permit
Applications--Minimum Requirements for Information on Environmental
Resources, shall apply to any person who makes application to conduct
underground coal mining operations.
(b) In addition to the requirements of Part 783, the permit
application shall contain a map that delineates existing vegetative
types and a description of the plant communities within the proposed
permit area and within any proposed reference area.
Sec. 903.784 Underground mining permit applications--Minimum
requirements for reclamation and operation plan.
Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, shall apply to
any person who makes application for a permit to conduct underground
coal mining operations.
Sec. 903.785 Requirements for permits for special categories of
mining.
Part 785 of this chapter, Requirements for permits for Special
Categories of Mining, shall apply to any person who makes application
for a permit to conduct certain categories of surface coal mining and
reclamation operations as specified therein.
Sec. 903.795 Small operator assistance program.
Part 795 of this chapter, Small Operator Assistance Program, shall
apply to any person making application for assistance under the small
operator assistance program.
Sec. 903.800 Bond and insurance requirements for surface coal mining
and reclamation operations under regulatory programs.
(a) Part 800 of this chapter, Bond and Insurance Requirements for
Surface Coal Mining and Reclamation Operations Under Regulatory
Programs, shall apply to all surface coal mining and reclamation
operations, except for Sec. 800.40(a)(1) regarding the bond release
application, for which paragraph (b) of this section substitutes.
(b) The permittee may file an application with the regulatory
authority for the release of all or part of a performance bond.
Applications shall be filed no later than 30 days prior to the end of
the vegetation growing season in order to properly evaluate the
completed reclamation operations. The appropriate times or seasons for
the evaluation of certain types of reclamation shall be identified in
the mining and reclamation plan required in Subchapter G of this
Chapter and approved by the regulatory authority.
Sec. 903.815 Performance standards--Coal exploration.
Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, shall apply to any person who conducts coal
exploration.
Sec. 903.816 Performance standards--Surface mining activities.
(a) Part 816 of this chapter, Permanent Program Performance
Standards--Surface Mining Activities, shall apply to any person who
conducts surface mining activities, except Sec. 816.116(a)(1) regarding
revegetation success standards, for which paragraph (b) of this section
substitutes.
(b) Standards for success shall be those identified in
Sec. 816.116(a)(2). Statistically valid sampling techniques for
measuring success shall be included in the mining and reclamation plan,
and approved by the regulatory authority.
Sec. 903.817 Performance standards--Underground mining activities.
(a) Part 817 of this chapter, Permanent Program Performance
Standards--Underground Mining Activities, shall apply to any person who
conducts underground mining activities, except Sec. 817.116(a)(1)
regarding revegetation success standards, for which paragraph (b) of
this section substitutes.
(b) Standards for success shall be those identified in
Sec. 817.116(a)(2). Statistically valid sampling techniques for
measuring success shall be included in the mining and reclamation plan,
and approved by the regulatory authority.
Sec. 903.819 Special performance standards--Auger mining.
Part 819 of this chapter, Special Permanent Program Performance
Standards--Auger Mining, shall apply to any person who conducts surface
coal mining operations which include auger mining.
Sec. 903.822 Special performance standards--Operations in alluvial
valley floors.
Part 822 of this chapter, Special Permanent Program Performance
Standards--Operations in Alluvial Valley Floors, shall apply to any
person who conducts surface coal mining and reclamation operations on
alluvial valley floors.
Sec. 903.823 Special performance standards--Operations on prime
farmland.
Part 823 of this chapter, Special Permanent Program Performance
Standards--Operations on Prime Farmland, shall apply to any person who
conducts surface coal mining and reclamation operations on prime
farmland.
Sec. 903.824 Special performance standards--Mountaintop removal.
Part 824 of this chapter, Special Permanent Program Performance
Standards--Mountaintop Removal, shall apply to any person who conducts
surface coal mining and reclamation operations constituting mountaintop
removal mining.
Sec. 903.827 Special performance standards--Coal preparation plants
not located within the permit area of a mine.
Part 827 of this chapter, Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine,
shall apply to any person who conducts surface coal mining and
reclamation operations which include the operation of a coal
preparation plant not located within the permit area of a mine.
Sec. 903.828 Special performance standards--In situ processing.
Part 828 of this chapter, Special Permanent Program Performance
Standards--In Situ Processing, shall apply to any person who conducts
surface coal mining and reclamation operations which include the in
situ processing of coal.
Sec. 903.842 Federal inspections.
(a) Part 842 of this chapter, Federal Inspections, shall apply to
all coal exploration and surface coal mining and reclamation
operations.
(b) In addition to the requirements of Part 842, copies of
inspection reports will be furnished, upon request, to a designated
Arizona State agency with jurisdiction over mining.
Sec. 903.843 Federal enforcement.
(a) Part 843 of this chapter, Federal Enforcement, shall apply
regarding enforcement action on coal exploration and surface coal
mining and reclamation operations.
(b) In addition to the requirements of Part 843, copies of
enforcement actions and orders to show cause will be furnished, upon
request, to a designated Arizona State agency with jurisdiction over
mining.
Sec. 903.845 Civil penalties.
Part 845 of this chapter, Civil Penalties, shall apply to the
assessment of civil penalties for violations on coal exploration and
surface coal mining and reclamation operations.
Sec. 905.846 Individual civil penalties.
Part 846 of this chapter, Individual Civil Penalties, shall apply
to the assessment of individual civil penalties under section 518(f) of
the Act.
Sec. 903.955 Certification of blasters.
Part 955 of this chapter, Certification of Blasters in Federal
Program States and on Indian Lands, shall apply to the training,
examination and certification of blasters for surface coal mining and
reclamation operations.
[FR Doc. 94-19526 Filed 8-9-94; 8:45 am]
BILLING CODE 4310-05-M
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