Utah Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

Utah Permanent Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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SUMMARY: OSM is announcing the receipt of revisions pertaining to a

previously proposed amendment to the Utah permanent regulatory program

(hereinafter, the ``Utah program'') under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). The revisions for Utah's proposed

rules pertain to general backfilling and grading requirements;

previously and continuously mined areas; and approximate original

contour (AOC). The amendment is intended to revise the Utah program to

be consistent with the corresponding Federal regulations, clarify

ambiguities, and improve operational efficiency.

DATES: Written comments must be received by 4:00 p.m., m.s.t. December

19, 1994.

ADDRESSES: Written comments should be mailed or hand delivered to

Thomas E. Ehmett at the address listed below.

Copies of the Utah program, the proposed amendment, and all written

comments received in response to this notice will be available for

public review at the addresses listed below during normal business

hours, Monday through Friday, excluding holidays. Each requester may

receive one free copy of the proposed amendment by contacting OSM's

Albuquerque Field Office.

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

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

Suite 1200, Albuquerque, NM 87102, Telephone: (505) 766-1486

Utah Coal Regulatory Program, Division of Oil, Gas and Mining, 355 West

North Temple, 3 Triad Center, Suite 350, Salt Lake City, UT 84180-1203,

Telephone: (801) 538-5340.

FOR FURTHER INFORMATION CONTACT: Thomas E. Ehmett, Telephone: 505) 766-

1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

On January 21, 1981, the Secretary of the Interior conditionally

approved the Utah program. 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, Federal 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 November 12, 1993, Utah submitted a proposed

amendment to its program pursuant to SMCRA (administrative record No.

UT-875). Utah submitted the proposed amendment in response to the

required program amendments at 30 CFR 944.16 (a), (b), (c), and (d) and

at its own initiative.

The provisions of the Utah Administrative Rules (Utah Admin. R.)

that Utah proposed to revise and add were: Utah Admin. R. 645-301-553.

200, spoil and waste; Utah Admin. R. 645-301-553.252, refuse piles;

Utah Admin. R. 645-301-553.500 to read, previously mined areas; Utah

Admin. R. 645-301-553.520, continuously mined areas; Utah Admin. R.

645-301-553.523, applying the stability criteria of proposed Utah

Admin. R. 645-301-553.523 to the AOC criteria at Utah Admin. R. 645-

301-553.650; Utah Admin. R. 654-301-553.600 and .620, AOC variances for

incomplete elimination of highwalls in previously mined areas or

continuously mined areas; Utah Admin. R. 654-301-553.650 applying the

stability requirements of Utah Admin. R. 645-301-553.523 and the AOC

criteria of Utah Admin. R. 645-301-553.651 through .655 to retained

highwalls; Utah Admin. R. 645-301-651, height restrictions for retained

highwalls; Utah Admin. R. 645-301-553.652, the applicability date of

Utah's AOC standards at Utah Admin. R. 645-301-553.651 through .655;

Utah Admin. R. 645-301-553.653, the restoration of retained highwalls

to cliff-type habitats required by the flora and fauna existing prior

to mining; and Utah Admin. R. 645-301-553.654, compatibility of

retained highwalls with both the approved postmining land use and the

visual attributes of the area.

OSM announced receipt of the proposed amendment in the December 8,

1993, Federal Register (58 FR 64529), provided an opportunity for a

public hearing of meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. UT-879).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on January 7, 1994.

During its review of the amendment, OSM identified concerns

relating to the provisions of Utah Admin. R. 645-301-553.110,

backfilling and grading of disturbed areas; Utah Admin. R. 645-301-

553.500 and .600, the organization of Utah's rules pertaining to

retained highwalls; Utah Admin. R. 645-301-553.510 and .522, general

backfilling and grading requirements; Utah Admin. R. 645-301-553.522,

slope stability and drainage; Utah Admin. R. 645-301-553.500 and .523,

stability criteria for retained highwalls; Utah Admin. R. 645-301-

553.620, AOC variances; Utah Admin. R. 645-301-553.650, AOC and

stability requirements of highwall retention; Utah Admin. R. 645-301-

553.651, height and length of retained highwalls; Utah Admin. R. 645-

301-553.652, the applicability date of Utah's AOC alternative; and

various editorial comments concerning Utah Admin. R. 645-301-553.120,

.631, .650, and .655. OSM notified Utah of the concerns by letter dated

March 31, 1994 (administrative record No. UT-908).

Utah responded in a letter dated April 18, 1994, by requesting a

meeting between the Utah Division of Oil, Gas and Mining (Division) and

OSM for the purpose of addressing the issues set forth by OSM in the

March 31, 1994, letter (administrative record No. UT-918). On May 12,

1994, an executive session between the Division and OSM was held at the

Western Support Center in Denver, Colorado to discuss Utah's revised

program amendment regarding highwall retention. Notice of the executive

session was posted in the Western Support Center (administrative record

No. UT-925). A summary of the executive session was recorded by OSM and

entered into the administrative record (administrative record UT-942).

Utah responded to the concerns identified in OSM's March 31, 1994,

letter and the issues discussed at the May 12, 1994, meeting by

submitting a revised amendment dated June 28, 1994 (administrative

record No. UT-941).

OSM announced receipt of the proposed revised amendment in the July

14, 1994, Federal Register (39 FR 35871) and reopened and extended the

public comment period (administrative record No. UT-951). The public

comment period ended on July 29, 1994.

During its review of the revised amendment, OSM identified

additional concerns relating to the provisions of Utah Admin. R. 645-

100-200, the definition of ``continuously mined areas;'' Utah Admin. R.

645-301-553, general provisions on highwalls and backfilling and

grading; Utah Admin. R. 645-301-553.110, backfilling and grading of

disturbed areas; Utah Admin. R. 645-301-553.120, backfilling and

grading of spoil and waste; Utah Admin. R. 645-301-553.130, slope

stability requirements; Utah Admin. R. 645-301-553.510, remining

operations on previously mined areas, continuously mined areas and

areas with remaining highwalls subject to AOC provisions; Utah Admin.

R. 645-301-553.550, .551, and .552, AOC exceptions; Utah Admin. R. 645-

301-553.650, highwall management under the AOC provisions; Utah Admin.

R. 645-301-553.651, non-mountaintop removal mining on steep slopes; and

Utah Admin. R. 645-301-553.653, the applicability date. OSM notified

Utah of the concerns by letter dated August 24, 1994 (administrative

record No. UT-967).

Utah responded by telephone conversation and requested a meeting

between the Division and OSM for the purpose of addressing the

applicability date issue set forth by OSM in the August 24, 1994,

letter. On September 7, 1994, an executive session between the Division

and OSM was held at the Western Support Center in Denver, Colorado to

discuss the applicability date issue. Notice of the executive session

was posted in the Western Support Center (administrative record No. UT-

969). A summary of the executive session was recorded by OSM and

entered into the administrative record (administrative record No. UT-

970).

By letter dated November 3, 1994, Utah responded to the concerns

identified in OSM's August 24, 1994, letter by submitting the revised

amendment that is the subject of this notice (administrative record No.

UT-990). The provisions of Utah Admin. R. that Utah proposes to revise

and add are: Utah Admin. R. 645-100-200, concerning continuously mined

areas; Utah Admin. R. 645-301-553 and 553.110 through 553.130,

concerning general backfilling and grading requirements; Utah Admin. R.

645-301-553.510, 553.550, 553.552, 553.611 and 553.612, concerning

previously and continuously mined areas; Utah Admin. R. 645-301-553.650

and 553.651, concerning Utah's AOC provisions; and Utah Admin. R. 645-

301-553-663 concerning the applicability date of Utah's AOC provisions.

Specifically, Utah proposes to revise Utah Admin. R. 645-100-200 by

limiting its definition of the term ``continuously mined areas'' to

underground mining operations.

Utah proposes to revise Utah Admin. R. 645-301-553 by deleting a

paragraph that was intended to be a general provision regarding the

exceptions approved in the Utah program for complete highwall

elimination.

Utah proposes to revise Utah Admin. R. 645-301-553.110, concerning

the approved exceptions to the requirements that disturbed areas be

backfilled and graded to achieve AOC, by adding cross-referenced

provisions regarding non-mountaintop removal mining operations on steep

slopes, mountaintop removal mining operations, and mining operations on

areas with thin and thick overburden.

Utah proposes to revise Utah Admin. R. 645-301-553.120, concerning

the requirement for highwall elimination, by cross-referencing

provisions containing requirements that apply to previously and

continuously mined areas and areas subject to AOC provisions.

Utah proposes to revise Utah Admin. R. 645-301-553.130, concerning

the requirement that disturbed areas achieve an allowable postmining

slope, be deleting the phrase following a cross-reference to Utah

Admin. R. 645-301-553.530 that reads ``which addresses alternative

criteria for stability and the protection of the environment and the

public health and safety.''

Utah proposes to revise Utah Admin. R. 645-301-553.510, by

requiring that, in addition to remaining operations on continuously

mined and previously mined areas, remining operations on areas with

remaining highwalls subject to the AOC provisions also comply with

other cross-referenced program requirements.

Utah proposes to delete existing Utah Admin. R. 645-301-553.550,

553.551, and 553.552, concerning references to mountaintop removal

mining operations, and thin and thick overburden standards, by

inserting the cross-references at Utah Admin. R. 645-301-553.110.

Utah proposes to revise Utah Admin. R. 645-301-553.611 and 553.612

by referring to the phrase ``continuously mined areas'' as ``CMA.''

Utah proposes to revise Utah Admin. R. 645-301-553.650, concerning

highwall management under the AOC provisions, by deleting introductory

language that reads ``coal mining and reclamation operations which are

not located on PMA's or CMA's and are located on areas which are

subject to the approximate original contour provisions which include.''

Utah proposes to delete existing Utah Admin. R. 645-301-553.651,

concerning highwall management under the Utah AOC provisions, by

inserting the cross-reference to non-mountaintop removal mining

operations on steep slopes at Utah Admin. R. 645-301-553.110.

Utah proposes to create new Utah Admin. R. 645-301-553.651,

regarding the applicability date of Utah's AOC provisions, by requiring

that where final backfilling and grading was completed and the phase I

bond was released prior to June 2, 1992, no redisturbance of a

reclaimed highwall will be required. Highwalls which were approved

under R645-301-553.652, the rule commonly referred to as the ``AOC

alternative,'' after December 13, 1982, are subject to the retroactive

application of current rule R645-301-552.650, providing the subject

highwall has not been reclaimed and phase I bond was not released prior

to June 2, 1992.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Utah program

amendment to provide the public an opportunity to reconsider the

adequacy of the proposed amendment in light of the additional materials

submitted. In accordance with the provisions of 30 CFR 732.17(h) OSM is

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If the amendment

is deemed adequate, it will become part of the Utah program.

Written Comments

Written comments should be specific, pertain only to the issues

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

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Albuquerque Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget under Executive Order 12866 (Regulatory Planning and Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

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

determined that, to the extent allowed by law, 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 1255) and 30

CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR Parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

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

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by the Office of Management and Budget under the

Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have

significant economic effect upon a substantial number of small

entities. Hence, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

V. List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 22, 1994.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

[FR Doc. 94-29646 Filed 12-1-94; 8:45 am]

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