# Utah Regulatory Program

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URL: https://www.frixlaw.com/law-library/documents/fr%3A94-23823

## Record

- **Collection:** Federal Register
- **Document type:** Uncategorized Document
- **Published:** September 27, 1994

## Text

DEPARTMENT OF THE INTERIOR
30 CFR Part 944

Utah Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Utah regulatory
program (hereinafter referred to as the ``Utah program'') under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA). Utah
proposed revisions to the Utah Coal Mining Rules pertaining to coal
exploration subject to provisions of 43 CFR 3480 through 3487,
responsibilities of the Division of Oil, Gas and Mining (Division)
regarding coal exploration, requirements for coal exploration approval,
notices of intention to conduct minor coal exploration, coal
exploration compliance and required documents to be available in the
exploration area, and performance standards for coal exploration
operations that substantially disturb the natural land surface. Utah
proposed the amendment with the intent of streamlining the Utah
regulatory program and making the exploration process more responsive
to field needs for coal seam information.

EFFECTIVE DATE: September 27, 1994.

FOR FURTHER INFORMATION CONTACT:
Thomas E. Ehmett, telephone: (505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

On January 21, 1981, the Secretary of the Interior conditionally
approved the Utah program for the regulation of coal exploration and
coal mining and reclamation operations on non-Federal and non-Indian
lands. General background information on the Utah program, including
the Secretary's findings, the disposition of comments, and the
conditions of approval of the Utah program can be found in the January
21, 1981, Rederal Register (46 FR 5899). Subsequent actions concerning
Utah's program and program amendments can be found at 30 CFR 944.15,
944.16, and 944.30.

II. Proposed Amendment

By letter dated January 27, 1994, Utah submitted a proposed
amendment to its program pursuant to SMCRA (administrative record No.
UT-888). Utah submitted the proposed amendment at its own initiative.
The provisions of the Utah Coal Mining Rules that Utah proposed to
revise pertain to its coal exploration rules at Utah Administrative
Rule (Utah Admin. R.) 645-200-100, scope of rules for coal exploration;
Utah Admin. R. 645-200-200, responsibilities of the Division; Utah
Admin. R. 645-201-100, requirements for coal exploration approval; Utah
Admin. R. 645-201-200, notices of intention to conduct minor coal
exploration; and Utah Admin. R. 645-202-100, required documents.
OSM announced receipt of the proposed amendment in the February 25,
1994, Federal Register (59 FR 9153), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. UT-897).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on March 28, 1994.
During its review of the amendment, OSM (1) identified concerns
relating to the provisions of the Utah Coal Mining Rules at Utah Admin.
R. 645-202-232, roads and other transportation facilities, and Utah
Admin. R. 645-202-235, disturbance of the hydrologic balance, and (2)
provided editorial comments. OSM notified Utah of the concerns by
letter dated April 15, 1994 (administrative record No. UT-915).
Utah responded in a letter dated May 10, 1994, by submitting a
revised amendment (administrative record No. UT-921). Utah proposed
revisions to Utah Admin. R. 645-200-200, responsibilities; Utah Admin.
R. 645-201-100, responsibilities for coal exploration plan review; Utah
Admin. R. 645-201-200, notices of intention to conduct minor coal
exploration; Utah Admin. R. 645-201-300, major coal exploration
permits; Utah Admin. R. 645-202-100, required documents; and Utah
Admin. R. 645-202-200, performance standards.
OSM announced receipt of the proposed revised amendment in the May
24, 1994, Federal Register (59 FR 26767) and reopened and extended the
public comment period (administrative record No. UT-932). The public
comment period ended on June 8, 1994.
During its review of the revised amendment, OSM identified
additional concerns relating to (1) Utah Admin. R. 645-200-122, 645-
200-123, and 645-201-210, lands designated as unsuitable for surface
coal mining, and (2) Utah Admin. R. 645-202-235, disturbance of the
hydrologic balance. OSM notified Utah of the concerns by letter dated
July 7, 1994 (administrative record No. UT-943).
Utah responded in a letter dated July 11, 1994, by submitting a
revised amendment (administrative record No. UT-950). Utah proposed
revisions to Utah Admin. R. 645-200-100, scope of rules for coal
exploration; Utah Admin. R. 645-201-200, notices of intention to
conduct minor coal exploration; and Utah Admin. R. 645-202-200,
performance standards.
Based upon the additional revisions to the proposed program
amendment submitted by Utah, OSM reopened the public comment period in
the July 29, 1994, Federal Register (59 FR 38578, administrative record
No. UT-956). The public comment period ended on August 15, 1994.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds that the proposed program amendment
submitted by Utah on January 27, 1994, and as revised by it on May 10
and July 11, 1994, is no less effective than the corresponding Federal
regulations.
Accordingly, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to Utah's Coal Mining Rules

Utah proposed revisions to the following previously approved rules
that are nonsubstantive in nature and consist of minor editorial or
grammatical changes (the corresponding Federal regulation provisions
are listed in parentheses):

Utah Admin. R. 645-201-323.100 (30 CFR 772.12(b)(8)(iv)), narrative
description of the proposed exploration area, and
Utah Admin. R. 645-201-342.200 (30 CFR 772.12(d)(2)(ii)), approval or
disapproval of an application for a major coal exploration permit.

Because the proposed revisions to these previously approved rules
are nonsubstantive in nature, the Director finds that the proposed Utah
rules are no less effective than the corresponding Federal regulations.
The Director approves these proposed rules.

2. Substantive Revisions to Utah's Coal Mining Rules That Are
Substantially Identical to the Corresponding Provisions of the Federal
Regulations

Utah proposed revisions to the following rules that are substantive
in nature and contain language that is substantially identical to the
requirements of the corresponding Federal regulation provisions (listed
in parentheses):

Utah Admin. R. 645-200-121 (30 CFR 772.1), coal exploration which is
subject to 43 CFR parts 3480 through 3487,
Utah Admin. R. 645-201-200 through 220 (30 CFR 772.11), notices of
intention to conduct minor coal exploration,
Utah Admin. R. 645-202-100 (30 CFR 815.13), required documents,
Utah Admin. R. 645-202-232 (30 CFR 815.15(b)), performance standards
for roads or other transportation facilities used for coal exploration,
and
Utah Admin. R. 645-202-235 (30 CFR 815.15(i), performance standards
which minimize disturbance of the hydrologic balance.

Because these proposed Utah rules are substantially identical to
the corresponding provisons of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations. The
Director approves these proposed rules.

3. Utah Admin. R. 645-200-122, R. 645-200-123, 645-201-223, and 645-
201-310, Coal Exploration in Relation to an Approved Permit Area

Utah proposed that its rules at Utah Admin. R. 645-200-122, 645-
200-123, 645-201-223, and 645-201-310 setting forth the scope of Utah's
coal exploration rules, would apply to ``coal exploration'' instead of
coal exploration that occurs ``outside an approved permit area'' or
coal exploration that occurs'' ``in relation to an approved permit
area.''
The corresponding Federal regulations at 30 CFR 772.11, for coal
exploration operations removing 250 tons or less of coal, and at 30 CFR
772.12, for coal exploration operations removing more than 250 tons of
coal, apply to coal exploration conducted ``outside a permit area.'' In
promulgating this language, OSM explained in the preamble for these
Federal regulations that a coal exploration permit is not appropriate
for coal exploration on lands covered by a surface coal mining permit
because exploration within the permit area should have been planned as
an integral part of the surface coal mining and reclamation operations
(44 FR 14901, 15017-8; March 13, 1979). The effect of these Federal
regulations is that, for proposed coal exploration within the permit
area, the State regulatory authority would review and approve, as
appropriate, the proposed coal exploration in conjunction with the
review and approval of a permit application, and for coal exploration
outside the permit area, would review and approve the proposed coal
exploration pursuant to the appropriate rules for coal exploration.
Utah's proposed deletions of the phrases concerning approved permit
areas are consistent with OSM's regulations and the rationale for them
in the preamble to the Federal regulations. Therefore, the Director
finds that Utah's proposed revisions to Utah Amin. R. 645-200-122, 645-
200-123, 645-201-223, and 645-201-310 are no less effective than the
corresponding Federal regulations at 30 CFR 772.11 and 772.12. The
Director approves these proposed rules.

4. Utah Admin. R. 645-200-220, 645-200-230, and 645-201-100 through
645-201-130, Responsibilities of the Division and Coal Exploration Plan
Review

Utah proposed revisions to its rules at (1) Utah Admin. R. 645-200-
220 to provide that it is the Division's responsibility to review and
enforce the terms of each notice of intention to conduct coal
exploration; (2) Utah Amin. R. 645-200-230 to provide that it is the
Division's responsibility to review and approve or disapprove major
coal exploration applications and issue, condition, suspend, revoke,
and enforce major coal exploration permits and coordinate with other
government agencies; and (3) Utah Admin. R. 645-201-100 through 645-
201-130 to provide that it is the Division's responsibility to review
coal exploration plans on lands which are not subject to the
requirements of 43 CFR 3480 through 3487, and to provide that, on lands
[Federal lands] where the requirements of 43 CFR 3480 through 3487
apply, the review of coal exploration plans will be guided by the
appropriate part of 43 CFR.
The Federal regulations at 30 CFR part 772 establish the
requirements and procedures applicable to coal exploration operations
on all lands except for Federal lands subject to the requirements of 43
CFR parts 3480 through 3487. The Federal regulations at 43 CFR 3480
through 3487 pertain to operations for the exploration, development,
and production of Federal coal under Federal coal leases, licenses, and
permits, regardless of surface ownership, pursuant to the Mineral
Leasing Act of February 25, 1920, as amended (30 U.S.C. 181, et seq.).
The responsibility for administration of the Mineral Leasing Act is
vested with the Bureau of Land Management.
Utah's proposed revision at Utah Admin. R. 645-201-110 and 645-201-
120 to provide that only coal exploration operations on lands which are
not subject to 43 CFR parts 3480-3487 will be regulated by the Division
is thus an appropriate limitation on the Division's regulatory
authority and is consistent with the corresponding limitation in the
Federal regulations.
In addition, although the specific responsibilities of a State
regulatory authority in administering the coal exploration program
within a State are not addressed in the Federal regulations at 30 CFR
Part 772 for coal exploration, the Federal regulation at 30 CFR
731.14(c)(1) requires each State to have enacted and promulgated laws
and regulations which will allow the State to implement, administer,
and enforce its program, and to regulate coal exploration and surface
coal mining and reclamation operations in accordance with SMCRA. Utah's
proposed regulations at Utah Admin. R. 645-200-220 and 645-200-230,
specifying the regulatory responsibilities of the Division, are thus
consistent with the requirements of 30 CFR 731.14(c)(1).
Therefore, based on the foregoing discussion, the Director finds
that Utah Admin. R. 645-200-220, 645-200-230, and 645-201-100 through
645-201-130 are not inconsistent with the Federal regulations at 30 CFR
Part 772. The Director approves these proposed rules.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's response to
them.

1. Public Comments

OSM invited public comments on the proposed amendment
(administrative record No. UT-891), but none were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Utah program.
In separate telephone conversations on February 11, June 1, and
July 29, 1994, the Bureau of Mines stated it had no comments on the
proposed amendment (administrative record Nos. UT-893, UT-933, and UT-
965).
The U.S. Fish and Wildlife Service responded by letter dated March
7, 1994, that it found nothing of significant concern to the agency and
again, by letters dated June 8 and August 9, 1994, that it had reviewed
the proposed changes and had no comment on them (administrative record
Nos. UT-901, UT-937, and UT-960).
By letters dated March 23 and August 29, 1994, the Mine Safety and
Health Administration (MSHA) stated that it had reviewed the amendment
and that there appeared to be no conflict with the requirements of 30
CFR (administrative record No. UT-904).
The U.S. Army Corps of Engineers responded by letters dated June 6
and August 10, 1994, that it found the changes to be satisfactory
(administrative record Nos. UT-934 and UT-962).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that Utah proposed to make in its amendment
pertained to air or water quality standards. Therefore, OSM did not
request EPA's concurrence with the proposed amendment. However,
pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. UT-891). EPA
responded by letters dated February 15 and June 8, 1994 (administrative
record Nos. UT-894 and UT-936), that it had no comments on the proposed
amendment and that it did not believe there would be any impacts to
water quality standards promulgated under authority of the Clean Water
Act, as amended (33 U.S.C. 1251 et seq.).

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

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No.
UT-891). By letter dated August 4, 1994, the SHPO indicated, after
review of Utah Admin. R. 645-202-300, that it concurred with the
content of the rule and OSM's determination of no effect with respect
to the consultation requirements of 36 CFR Part 800 (administrative
record No. UT-959). The ACHP did not respond to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves Utah's proposed
amendment as submitted on January 27, 1994, and revised on May 10 and
July 11, 1994. The Director approves, as discussed in: Finding No. 1,
Utah Admin. R. 645-201-323.100, concerning the narrative description of
the proposed exploration area, and Utah Admin. R. 645-201-342.200,
concerning approval or disapproval of an application for a major coal
exploration permit; finding No. 2, Utah Admin. R. 645-200-121,
concerning coal exploration which is subject to 43 CFR Parts 3480
through 3487, Utah Admin. R. 645-201-200 through 220, concerning,
notices of intention to conduct minor coal exploration, Utah Admin. R.
645-202-100, concerning required documents, Utah Admin. R. 645-202-232,
concerning performance standards for roads or other transportation
facilities used for coal exploration, and Utah Admin. R. 645-202-235,
concerning performance standards which minimize disturbance of the
hydrologic balance; finding No. 3, Utah Admin. R. 645-200-122, 645-200-
123, 645-201-223, and 645-201-310, concerning coal exploration in
relation to an approved permit area; and finding No. 4, Utah Admin. R.
645-200-220, 645-200-230, and 645-201-100 through 645-201-130,
concerning the Division's responsibilities and coal exploration plan
review.
The Federal regulations at 30 CFR Part 944, codifying decisions
concerning the Utah program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12886 (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 State 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 which is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. 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.

VII. List of Subjects in 30 CFR 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 19, 1994.
Russell F. Price,
Acting Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T of the Code of Federal Regulations is amended as set forth
below:

PART 944--UTAH

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

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

2. Section 944.15 is amended by adding paragraph (aa) to read as
follows:

Sec. 944.15 Approval of amendments to State regulatory program.

* * * * *
(aa) Revisions to the following Utah Coal Mining Rules, as
submitted to OSM on January 27, 1994, and as revised on May 10 and July
11, 1994, are approved effective September 27, 1994:

645-200-121, 122, and 123, Coal Exploration Categories.
645-200-220, and 230, Division Responsibilities.
645-201-100 through 130, Responsibilities for Coal Exploration Plan
Review.
645-201-200 through 220 and 223, Notices of Intention to Conduct
Minor Coal Exploration.
645-201-310, Major Coal Exploration Permits.
645-201-323.100, Narrative Description of the Proposed Exploration
Area.
645-201-342.200, Approval or Disapproval of an Application for a
Major Coal Exploration Permit.
645-202-100, Required Documents.
645-202-232, Performance Standards for Roads or Other Transportation
Facilities Used for Coal Exploration.
645-202-235, Performance Standards which Minimize Disturbance of the
Hydrologic Balance.

[FR Doc. 94-23823 Filed 9-26-94; 8:45 am]
BILLING CODE 4310-05-M

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A94-23823. Public record. Not legal advice.