Utah Regulatory Program and Abandoned Mine Land Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

Utah Regulatory Program and Abandoned Mine Land Plan

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

on proposed amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing receipt of revisions and additional

explanatory information pertaining to a previously proposed amendment

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

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

Control and Reclamation Act of 1977 (SMCRA). The revisions and

additional explanatory information for Utah's proposed rules and

statutes pertain to the applicability of Utah Mined Land Reclamation

Act to Utah's coal program; administrative procedures; appeals to

district court and further review; formal hearings; and cessation

orders, abatement notices, and show cause orders. The amendment is

intended to revise Utah's program and plan to be consistent with SMCRA

and the Utah Administrative Procedures Act, and to improve operational

efficiency.

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

30, 1994.

ADDRESSES: Written comments should be mailed or hand delivered to

Thomas E. Ehmett at the address listed below.

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

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

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Albuquerque Field Office.

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

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

Suite 1200, Albuquerque, New Mexico 87102;

Utah Coal Regulatory and Abandoned Mine Reclamation Programs, Division

of Oil, Gas and Mining, 355 West North Temple, 3 Triad Center, Suite

350, Salt Lake City, Utah 84180-1203, Telephone: (801) 538-5340.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Ehmett, Telephone: (505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

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

Interior conditionally approved the Utah program and approved the Utah

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

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

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

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

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

Subsequent actions concerning Utah's program and program amendments can

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

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

II. Proposed Amendment

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

to its program pursuant to SMCRA (administrative record No. UT-917).

Utah submitted the proposed amendment in part to make its program and

plan consistent with SMCRA and in part at its own initiative to make

its program and plan consistent with the Utah Administrative Procedures

Act, thereby improving operational efficiency.

The program provisions of the Utah Coal Reclamation Act of 1979

that Utah proposed to revise were: Utah Code Annotated (UCA) 40-10-2,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

determination of unsuitability of lands for surface coal mining; and

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

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

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

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

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

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

are repealed effective September 30, 2004.

The plan provisions of the Utah Coal Mining and Reclamation Act

that Utah proposed to revise were: (1) UCA 40-10-25, lands and water

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

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

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

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

land.

OSM announced receipt of the proposed amendment in the May 12,

1994, Federal Register (59 FR 24675), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. UT-926).

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

The public comment period ended on June 13, 1994.

During its review of the amendment, OSM identified concerns

relating to the provisions of the Utah Coal Reclamation Act of 1979 at

UCA 40-10-3(1), definition of ``adjudicative proceeding;'' UCA 40-10-4,

applicability of provisions of UCA 40-8; UCA 40-10-6.7 and Utah

Administrative Rule (Utah Admin. R.) 641-100-100, administrative

procedures; UCA 40-10-11(3) schedule of applicant's mining law

violations; UCA 40-10-11(5), remining operation violations resulting

from unanticipated events or conditions; UCA 40-1013(2)(b), location of

informal conferences; UCA 40-1014(6)(c), appeal to district court and

further review; UCA 40-10-16(e), informal conference or formal hearings

concerning performance bond release decisions; UCA 40-10-18(4), damage

resulting from underground coal mining subsidence; UCA 40-10-20(2)(e),

contest of a violation or amount of a civil penalty; UCA 40-10-

22(2)(b), cessation order, abatement notice or show cause order; UCA

40-10-22(3)(e), costs assessed against the permittee or any person

having an interest that is or may be adversely affected by the notice

or order of the Board of Oil, Gas and Mining (Board); and UCA 40-10-

28(1)(b) and (2)(b), recovery of reclamation costs and liens against

reclaimed land. OSM notified Utah of the concerns by letter dated

October 24, 1994 (administrative record No. UT-980). Utah responded in

a letter dated December 7, 1994, by submitting a revised amendment and

additional explanatory information (administrative record No. UT-997).

Utah proposes additional explanatory information for (1) UCA 40-10-

4, for the purpose of explaining its intention in repealing UCA 40-10-

4, which allowed the Utah Mined Land Reclamation Act and its

implementing rules at Utah Admin. R. Part 647 to be applied to the

Utah's coal mining program, (2) UCA 40-10-16(6), for the purpose of

affirming that the provisions of Utah Admin. R. Part 641, Rules of

Practice and Procedure of the Board, apply to hearings held for the

purposes of bond release and to verify that when an informal hearing is

converted to a formal hearing, the requirements of a formal proceeding

apply, and (3) UCA 40-10-22(2)(b), for the purpose of explaining that

this provision allows for the Utah Supreme Court to be the authority

for modifying or setting aside a Board order or decision, and that, to

the extent that any judicial body can reconsider its own order or

decision, the district court can perform a review and act in a manner

consistent with the Federal counterpart provisions for granting a stay

of enforcement or other relief. Utah also proposes revisions to (1)

Utah Admin. R. 641-100-100, to provide that ``[t]he rules for informal

adjudicative proceedings are in ``the Coal Program Rules,'' the Oil and

Gas Conservation Rules and the Mineral Rules and (2) UCA 40-10-14(6),

to provide that any applicant or person with an interest which is or

may be adversely affected who has participated in the proceedings as an

objector, and who is aggrieved by the decision of the Board, ``may

appeal the decision of the Board directly to the Utah Supreme Court;''

to allow in those instances where the Board fails to act that ``the

applicant or any person with an interest which is or may be adversely

affected, who has requested a hearing in accordance with Subsection

(3), to bring an action in'' the district court, and to delete the

provision allowing for review of the adjudication of the district court

by the Utah Supreme Court; to provide that ``[a]ny party to the action

in district court may appeal from the final judgment, order, or decree

of the district court;'' and to require that the ``[t]ime frame for

appeals under Subsection (6) (a) through (c) shall be consistent with

applicable provisions in Section 63-46b-14, Administrative Procedures

Act.''

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Utah program

and plan 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) and 884.15(a), OSM is seeking comments on whether the

proposed amendment satisfies the applicable program and plan approval

criteria of 30 CFR 732.15 and 884.14. If the amendment is deemed

adequate, it will become part of the Utah program and plan.

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 (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

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

determined that this rule meets the applicable standards of subsections

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

applicable to the actual language of State regulatory programs,

abandoned mine land reclamation (AMLR) plans, program amendments, and

plan revisions since such program or plan 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), 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. Decisions on proposed

state AMLR plans and revisions thereof submitted by a State are based

on a determination of whether the submittal meets the requirements of

Title IF of SMCRA (30 U.S.C. 1231-1243) and the applicable Federal

regulations at 30 CFR Parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 1292 1291(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)) while state AMLR plans and revisions thereof are

categorically excluded from compliance with the National Environmental

Policy Act (42 U.S.C. 4332) by the Manual of the Department of the

Interior (516 DM6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

established by SMCRA or 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 in the analysis for the

corresponding Federal regulations.

List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: December 9, 1994.

Peter A. Rutledge,

Acting Assistant Director, Western Support Center.

[FR Doc. 94-30831 Filed 12-14-94; 8:45 am]

BILLING CODE 4310-05-M