Utah Regulatory Program
Federal RegisterMay 30, 1995
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
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, with an exception and additional
requirements, 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 and additions of rules pertaining to retention of
highwalls in the postmining landscape. Utah submitted the amendment
with the intent of revising its program to be consistent with the
corresponding Federal regulations, clarifying ambiguities, and
improving operational efficiency.
EFFECTIVE DATE: May 30, 1995.
FOR FURTHER INFORMATION CONTACT:
Arthur W. Abbs, Acting Director, Albuquerque Field Office, 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 at its own initiative
and in response to the required State program amendments codified at 30
CFR 944.16 (a), (b), (c), and (d). The provisions of the Utah
Administrative Rules (Utah Admin. R.) that Utah proposed to revise
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,
previously mined areas (PMA's), continuously mined areas (CMA's), and
areas subject to the approximate original contour (AOC) requirements;
Utah Admin. R. 645-301-553.520, exception from complete highwall
elimination for CMA's; Utah Admin. R. 645-301-553.523, stability
criteria for highwall remnants and retained highwalls; Utah Admin. R.
654-301-553.600 and .620, AOC variances for incomplete elimination of
highwalls in PMA's or CMA's; Utah Admin. R. 654-301-553.631,
mountaintop removal operations; Utah Admin. R. 654-301-553.650,
required showing by the operator and required findings by the
regulatory authority necessary for approval of a retained highwall;
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 [[Page 28041]] 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 or 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 for 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. By letter dated March 31, 1994, OSM notified Utah
of the concerns (administrative record No. UT-908).
By letter dated April 18, 1994, Utah requested 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, the
Division and OSM held an executive session at the Western Support
Center in Denver, Colorado. OSM posted a notice of the executive
session in the Western Support Center (administrative record No. UT-
925). OSM summarized the session and entered the summary into the
administrative record (administrative record UT-942).
By letter dated June 29, 1994, Utah submitted a revised amendment
in response to OSM's March 31, 1994, letter as clarified at the May 12,
1994, session (administrative record No. UT-941). In this submittal,
Utah, at its own initiative, also proposed to (1) create a definition
of the term ``continuously mined areas'' and (2) not use the terms
``highwall remnant'' and ``retained highwall.''
OSM announced receipt of the proposed revised amendment in the July
14, 1994, Federal Register (59 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, definition of the term ``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 PMA's, CMA's, 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, nonmountaintop
removal mining on steep slopes; Utah Admin. R. 645-301-553.652,
remaining highwalls under the AOC provisions; and Utah Admin. R. 645-
301-553.653, applicability date. By letter dated August 24, 1994, OSM
notified Utah of the concerns (administrative record No. UT-967).
By telephone conversation on August 30, 1994, Utah requested a
meeting between the Division and OSM for the purpose of addressing the
date of applicability of Utah's rules that allow the replacement of
preexisting cliffs or similar natural premining features with retained
highwalls (administrative record No. UT-1010). On September 7, 1994,
the Division and OSM held an executive session at the Western Support
Center in Denver, Colorado. OSM posted a notice of the executive
session in the Western Support Center (administrative record No. UT-
969). OSM summarized the session and entered the summary into the
administrative record (administrative record UT-970).
By letter dated November 3, 1994, Utah submitted a revised
amendment in response to OSM's August 24, 1994, letter, as clarified at
the September 7, 1994, session (administrative record No. UT-990).
OSM announced receipt of the proposed revised amendment in the
December 2, 1994, Federal Register (59 FR 61855) and reopened and
extended the comment period (administrative record No. UT-996). The
public comment period ended on December 19, 1994.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds, with an exception and additional
requirements, that the proposed program amendment submitted by Utah on
November 12, 1993, and as revised by it on June 28 and November 3,
1994, is no less stringent than SMCRA and no less effective than the
corresponding Federal regulations. Accordingly, the Director approves,
with one exception, the proposed amendment and requires Utah to revise
its program.
The Director notes that in a December 13, 1982, final rule Federal
Register notice (47 FR 55672, 55673), the Secretary of the Interior
approved as part of the Utah program a provision that the Director in a
subsequent September 17, 1993, final rule Federal Register notice (58
FR 48600) referred to as the Utah ``AOC alternative.'' OSM created the
term ``AOC alternative'' and Utah does not define it in its program. In
this proposed amendment, Utah used the terminology ``areas with
remaining highwalls subject to the AOC provisions,'' which is the Utah
counterpart terminology to what OSM referred to in the past as the
``AOC alternative.'' Accordingly, and throughout the remainder of this
Federal Register notice, the Director refers to what was previously
called the ``AOC alternative'' in the September 17, 1993, final rule
Federal Register notice as ``areas with remaining highwalls subject to
the AOC provisions.''
Also, in the September 17, 1993, final rule Federal Register notice
(58 FR 48600), the Director placed upon the Utah program four required
State program amendments at 30 CFR 944.16 (a), (b), (c), and (d)
(administrative record No. UT-872). Specifically, the Federal Register
notice revised 30 CFR 944.16 to read as follows:
Section 944.16 Required Program Amendments
* * * * *
(a) By November 16, 1993, Utah shall submit a proposed amendment
for highwall retention and approximate original contour (AOC) at
Utah Admin. R. 645-301-553.650 to require that, prior to obtaining
Utah's approval for highwalls to be retained, the operator must
establish and Utah must find in writing that any proposed highwall
will comply with the approximate original contour criteria at Utah
Admin. R. 645-301-553.651 through 655 and the stability requirement
at Utah Admin. R. 645-301-553.523.
(b) By November 16, 1993, Utah shall submit a proposed amendment
for highwall [[Page 28042]] retention and approximate original
contour at Utah Admin. R. 645-301-553.651 restricting the height of
retained highwalls to the height of cliffs or cliff-like escarpments
that were replaced or disturbed by the mining operations.
(c) By November 16, 1993, Utah shall submit a proposed amendment
stating that its requirement at Utah Admin. R. 645-301-553.652 has
an applicability date of December 13, 1982, and applies to any
highwall retained pursuant to the approximate original contour
alternative.
(d) By November 16, 1993, Utah shall submit a proposed amendment
for Utah Admin. R. 645-301-553.523 (1) eliminating the inconsistency
between the title ``previously mined areas'' at Utah Admin. R. 645-
301-553.500 and the content of subsection Utah Admin. R. 645-301-
553.523, and clarifying that the stability criteria of proposed Utah
Admin. R. 645-301-553.523 apply to the AOC alternative at Utah
Admin. R. 645-301-553.650, (2) specifying that a highwall remnant or
retained highwall must not pose a hazard to the environment, and (3)
deleting the phrase ``not to exceed either the angle of repose or
such lesser slope as is necessary to.''
However, in an April 7, 1994, final rule Federal Register notice
(59 FR 16538), OSM inadvertently removed the above required State
program amendments from 30 CFR 944.16 (administrative record No. UT-
913). In addition, and subsequent to this inadvertent removal of the
required State program amendments originally codified at 30 CFR 944.16
(a), (b), (c), (d), OSM published two final rule Federal Register
notices (July 11, 1994, 59 FR 35255; September 27, 1994, 59 FR 49185)
and placed new required State program amendments on the Utah program at
30 CFR 944.15 (a) and (b) respectively (administrative record Nos. UT-
947 and UT-977). Throughout this notice, OSM refers to the required
amendments associated with this proposed amendment and originally
codified as 30 CFR 944.16 (a), (b), (c), and (d) as ``the required
amendments previously codified at 30 CFR 944.16 (a), (b), (c), and (d)
(September 17, 1993, 58 FR 48600).''
1. Nonsubstantive Revisions to Utah's Rules
Utah proposed revisions to the following previously-approved rules
that are nonsubstantive in nature and consist of minor editorial,
grammatical, and recodification changes (corresponding Federal
provisions are listed in parentheses):
Utah Admin. R. 645-301-553 (30 CFR 816.102 and 817.102),
contemporaneous reclamation for backfilling and grading;
Utah Admin. R. 645-301-553.130 (30 CFR 816.102(a)(3)), 1.3 static
safety factor;
Utah Admin. R. 645-301-553.150 (30 CFR 816.102(a)(5) and
817.102(a)(5)), postmining land use;
Utah Admin. R. 645-301-553.200 (30 CFR 816.102(c) and 817.102(c))
backfilling and grading of spoil and waste;
Utah Admin. R. 645-301-553.210 (30 CFR 816.71 and 817.71), general
requirements for disposal of excess spoil;
Utah Admin. R. 645-301-553.220 (30 CFR 816.102(d) and 817.102(d)),
placement of spoil;
Utah Admin. R. 645-301-553.252 (30 CFR 816.83(c)(4) and 817.83(c)(4)),
final grading of refuse piles and coal mine waste;
Utah Admin. R. 645-301-553.300 (30 CFR 816.102(f) and 817.102(f)),
covering of exposed coal seams;
Utah Admin. R. 645-301-553.510 (30 CFR 816.106(a) and 817.106(a)),
remining operations on PMA's, CMA's, and areas with remaining highwalls
subject to AOC provisions;
Utah Admin. R. 645-301-553.540, previously codified as Utah Admin. R.
645-301-553.524 (30 CFR 816.106(b)(4) and 817.106(b)(4)), spoil
placement;
Utah Admin. R. 645-301-553.300, previously codified as Utah Admin. R.
645-301-553.653 (30 CFR Parts 816 and 817 concerning backfilling and
grading requirements for both surface and underground mining operations
and sections 515 (b)(2) and (b)(3) of SMCRA), modifications to retained
highwalls restoring cliff-type habitats required by premining flora and
fauna;
Utah Admin. R. 645-301-553.650.400, previously codified as Utah Admin.
R. 645-301-553.654 (30 CFR 784.15 and sections 515 (b)(2) and (b)(3) of
SMCRA), compatibility of retained highwalls with the approved
postmining land use and visual attributes of the area; and
Utah Admin. R. 645-301-553.650.500, previously codified as Utah Admin.
R. 645-301-553.655, exemption from obtaining a variance from AOC
requirements.
Because the proposed revisions to these previously-approved rules
are nonsubstantive in nature, the Director finds that these proposed
Utah rules are no less effective than the Federal regulations and no
less stringent than SMCRA. The Director approves these proposed rules.
2. Substantive Revisions to Utah's Rules That Are Substantively
Identical to the Corresponding Provisions of the Federal Regulations
and SMCRA
Utah proposed revisions to the following rules that are substantive
in nature and contain language that is substantively identical to the
requirements of the corresponding Federal regulations (listed in
parentheses):
Utah Admin. R. 645-301-553.100 (30 CFR 816.102(a) and 817.102(a)),
section entitled ``disturbed areas;'' and
Utah Admin. R. 645-301-553.230 (30 CFR 816.102(j) and 817.102(j)),
general requirements for backfilling and grading.
Because these proposed Utah rules are substantively identical to
the corresponding provisions of the Federal regulations, the Director
finds that they are no less effective than the Federal regulations. The
Director approves these proposed rule.
3. Utah Admin. R. 645-100-200, Definition of ``Continuously Mined
Areas''
Utah proposed to define ``continuously mined areas'' (CMA's) at
Utah Admin. R. 645-100-200 to mean ``land which was mined for coal by
underground mining operations prior to August 3, 1977, the effective
date of the Federal Act, and where mining continued after that date.''
The ``Federal Act'' is SMCRA.
The Federal backfilling and grading regulations at 30 CFR
817.106(a), (b), and (b)(1) allow an exception from the requirement for
complete highwall elimination for underground mining operations that
remine highwalls in PMA's, which means land affected by surface coal
mining operations prior to August 3, 1977, the effective date of SMCRA,
that have not been reclaimed to the standards of SMCRA (January 8,
1993, 58 FR 3466). These regulations allow for the incomplete
elimination of such highwalls where the volume of all reasonably
available spoil is insufficient to completely backfill the reaffected
or enlarged highwall.
As part of the Utah program, the Director approved, in a September
17, 1993, final rule Federal Register notice (58 FR 48600, 48603), a
limited exception to the requirement to completely eliminate all
highwalls for CMA's. Utah's approved CMA rules differ from the Federal
PMA regulations in that they extend the exception for incomplete
highwall elimination to underground mining operations where the
highwall was created prior to [[Page 28043]] August 3, 1977, but
continued to be used thereafter.
In approving Utah's CMA provisions, the Director reasoned, in part,
that they provide equitable treatment for pre-SMCRA mines that have
operated continuously since before the effective date of SMCRA and
afford the same variance from AOC requirements as is provided in the
PMA regulations at 30 CFR 817.106 for remaining sites where operation
of a pre-SMCRA mine has been interrupted and mining was begun again at
the sites after the effective date of SMCRA.
Utah's proposed definition of ``continuously mined areas'' is
limited in accordance with the Director's approval in the September 17,
1993, final rule Federal Register notice. That is, Utah's newly-
proposed definition at Utah Admin. R. 645-100-200 limits the term to
underground mining operations. In the aforementioned final rule Federal
Register notice, OSM approved Utah's CMA provisions at Utah Admin. R./
645-301-553.510, .520, and .521 ``[i]nsofar as they apply to
underground mining operations that operated prior to August 3, 1977,
and have continuously operated since that time.'' Therefore, Utah's
proposed definition of the term ``continuously mined areas'' is not
inconsistent with the Federal regulations at 30 CFR 817.106(a), (b),
and (b)(1) and is in accordance with Utah's previously approved CMA
provisions. On this basis, the Director approves Utah's proposed rule.
However, with respect to CMA's, the Director wishes to emphasize
that the exception to the requirement to completely eliminate all
highwalls should, like the similar Utah exception for PMA's, be
narrowly construed and should ensure that the highwall is removed to
the maximum extent technically practical (September 16, 1983, 48 FR
41720, 41729). Thus, for example, where an underground mining operation
has been continuously mined since before the effective date of SMCRA
(August 3, 1977) and contains both pre- and post-SMCRA face-up or
portal areas, this exception must be understood as applying only to the
pre-SMCRA face-up areas. Any post-SMCRA portal areas within the same
mining operation must comply with the requirement to completely
eliminate all highwalls. The Director interprets Utah's proposed
definition of the term ``continuously mined areas'' in this limited
fashion.
4. Utah Admin. R. 645-301-553.110, Exceptions to the Requirement That
Disturbed Areas Achieve AOC
Utah proposed to revise existing Utah Admin. R. 645-301-553.110 to
require that disturbed areas achieve AOC except as provided for in the
reorganized and recodified provisions at Utah Admin. R. 645-301-500
through Utah Admin. R. 645-301-540 (PMA's, CMA's, and areas subject to
the AOC provisions), Utah Admin. R. 645-301-553.600 through Utah Admin.
R. 645-301-553.612 (PMA's and CMA's), Utah Admin. R. 645-302-270
(nonmountaintop removal on steep slopes), Utah Admin. R. 645-302-220
(mountaintop removal mining), Utah Admin. R. 645-301-553.700 (thin
overburden), and Utah Admin. R. 645-301-553.800 (thick overburden). In
conjunction with consolidating these exceptions into one provision,
Utah also proposed to delete provisions that formerly existed at Utah
Admin. R. 645-301-553.600 (introductory language), .610 (nonmountaintop
removal on steep slopes), .620 (PMA's), .630 (mountaintop removal
mining), .640 (introductory language), .641 (thin overburden), and .642
(thick overburden).
The Federal regulations at 30 CFR 816.102(k) provide variances from
AOC for (1) steep-slope mining operations, (2) PMA's, (3) mountaintop
removal operations, (4) thin overburden areas, and (5) thick overburden
areas. The provisions at 30 CFR 817.102(k) provide variances from AOC
for (1) steep-slope mining operations and (2) PMA's.
Utah's proposed revisions to Utah Admin. R. 645-301-553.110, which
create a general AOC provision that references all exceptions to the
requirement that disturbed areas must be backfilled and graded to
achieve AOC, are consistent with the corresponding Federal regulations
at 30 CFR 816.102(k) and 817.103(k) and clarify and improve the
organizational nature of Utah's AOC rules. However, the cross-
referenced provisions contain citation errors. Specifically, Utah's
cross-referenced provisions in the phrase ``R645-301-500 through R645-
301-540,'' regarding PMA's, CMA's, and areas subject to the AOC
provisions, should read ``R645-301-553.500 through R645-301-553.540.''
Utah's incorrectly cross-referenced citations create a regulatory
inconsistency within the Utah program.
For the reasons discussed above, the Director approves Utah's
proposed consolidation of all exceptions to the requirement that
disturbed areas must be backfilled and graded to achieve AOC into Utah
Admin. R. 645-301-553.110. In addition, the Director approves Utah's
proposed deletion of existing Utah Admin. R. 645-301-553.600 and those
provisions identified above that formerly existed elsewhere in Utah's
rules prior to the consolidation. However, the Director further
requires Utah to revise the cross-referenced provisions in the phrase
``R645-301-500 through R645-301-540,'' regarding PMA's, CMA's, and
areas subject to the AOC provisions, to read ``R645-301-553.500 through
R645-301-553.540.''
5. Utah Admin. R. 534-301-553.120, Backfilling and Grading of Spoil and
Waste
Utah proposed to revise existing Utah Admin. R. 645-301-553.120 to
require that disturbed areas be backfilled and graded to ``[e]liminate
all highwalls, spoil piles, and depressions, except as provided in
R645-301-552.100 (small depressions); R645-301-553.500 through R645-
301-540 (PMA's, CMA's, and areas subject to approximate original
contour (AOC) provisions; R645-301-553.600 through R645-301-553.612
(PMA's and CMA's); and in R645-301-553.650 through R645-301-553.653
(highwall management under the AOC provisions).''
The Director notes that the exceptions listed at proposed Utah
Admin. R. 645-301-553.120 for PMA's, CMA's, and areas subject to AOC
provisions are exceptions only to the requirement to completely
eliminate all highwalls, and are not exceptions to the separate
requirements to completely eliminate all spoil piles and depressions.
The Federal regulations at 30 CFR 816.102(a)(2) and 817.102(a)(2)
require that disturbed areas be backfilled and graded to eliminate all
highwalls, spoil piles, and depressions except as provided in 30 CFR
816.102(h) (small depressions) and (k)(3)(iii) (previously mined
highwalls).
Utah's proposed revisions to Utah Admin. R. 645-301-553.120, which
create a general provision that cross-references all exceptions to the
requirement that disturbed areas must be backfilled and graded to
eliminate all highwalls, spoil piles, and depressions, are consistent
with the corresponding Federal regulations at 30 CFR 816.102(a)(2) and
817.102(a)(2) and clarify and improve the organizational nature of
Utah's rules. However, the cross-referenced provisions contain citation
inconsistencies. Specifically, Utah's cross-referenced provisions in
the phrase ``R645-301-553.500 through R645-301-540,'' regarding PMA's,
CMA's, and areas subject to the AOC provisions, should read ``R645-301-
553.500 through R645-301-533.540.'' In [[Page 28044]] addition Utah
cross-references provisions in the phrase ``R645-301-553.650 through
R645-301-553.653.'' However, Utah Admin. R. 645-301-553.653 no longer
exists in Utah's reorganized rules and has now been recodified as Utah
Admin. R. 645-301-553.651. Utah's incorrectly cross-referenced
citations create a regulatory inconsistency within the Utah program.
For the reasons discussed above, the Director approves proposed
Utah Admin. R. 645-301-553.120 but further requires Utah to (1) revise
the cross-referenced provisions in the phrase ``R645-301-553.500
through R645-301-540,'' regarding PMA's, CMA's, and areas subject to
the AOC provisions, to read ``R645-301-553.500 through R645-301-
553.540'' and (2) revise the cross-referenced provisions in the phrase
``R645-301-553.650 through R645-301-553.653'' to read ``R645-301-
553.650 through R645-301-553.651.''
6. Utah Admin. R. 634-301-553.500, PMA's, CMA's, and Areas With
Remaining Highwalls Subject to AOC Provisions
In partial response to the required amendment previously codified
at 30 CFR 994.16(d)(1) (September 17, 1993, 58 FR 48600), Utah proposed
to revise the existing title of section Utah Admin. R. 645-301-553.500
to make it consistent with the content of subsections Utah Admin. R.
645-301-553.510 through .540. Specifically, Utah proposed to revise the
title of section Utah Admin. R. 645-301-553.500 from ``Previously Mined
Areas'' to ``Previously mined areas (PMA's), Continuously Mined Areas
(CMA's), and Areas with Remaining Highwalls Subject to the AOC
Provisions.''
Utah proposed this change to eliminate the inconsistency between
the title ``Previously Mined Areas'' at Utah Admin. R. 645-301-553.500
and the content of recodified subsection Utah Admin. R. 645-301-553.530
(previously codified as .523), which addresses highwall stability
criteria (see finding No. 9). The proposed title ``Previously mined
areas (PMA's), Continuously Mined Areas (CMA's), and Areas with
Remaining Highwalls Subject to the AOC Provisions'' for Utah Admin. R.
645-301-553.500 is consistent with the term ``remaining highwalls,''
which Utah uses at Utah Admin. R. 645-301-553.530 in place of the terms
``retained highwall'' and ``highwall remnant.''
The Director finds that Utah's proposed revisions to the title of
section Utah Admin. R. 645-301-553.500 are not inconsistent with the
Federal AOC, PMA, and CMA provisions at 30 CFR 816.102, 817.102,
816.106, and 817.106. The Director also finds that the proposed
revisions satisfy the part of the required amendment previously
codified at 30 CFR 944.16(d)(1) that applied to Utah Admin. R. 645-301-
553.500. For these reasons, the Director approves Utah's proposed
revisions to the title of section Utah Admin. R. 645-301-553.500.
7. Utah Admin. R. 634-301-553.520, Backfilling and Grading of Remaining
Highwalls
Utah proposed to revise existing Utah Admin. R. 645-301-553.520 to
make it consistent with the requirements for remaining operations on
PMA's, operations on CMA's, and operations on areas with remaining
highwalls subject to the AOC provisions. Specifically, Utah proposed to
consolidate a phrase from original Utah Admin. R. 645-301-553.520 with
the text of Utah Admin. R. 645-301-553.522 to create new Utah Admin. R.
645-301-553.520 which states that ``[t]he backfill of all remaining
highwalls will be graded to a slope that is compatible with the
approved postmining land use and which provides adequate drainage and
long-term stability.'' In conjunction with this consolidation, Utah
deleted the citation previously codified at Utah Admin. R. 645-301-
553.522.
The Federal regulations at 30 CFR 816.106(b)(2) and 817.106(b)(2)
require that ``the backfill [from remaining operations on PMA's] shall
be graded to a slope which is compatible with the approved postmining
land use and which provides adequate drainage and long-term
stability.'' The Federal regulations at 30 CFR 816.106(b)(2) and
817.106(b)(2) apply only to remaining operations on PMA's. Utah's
proposed rule differs from the Federal regulations in that Utah
proposes to extend its rules concerning the backfilling and grading
requirements for remaining highwalls to operations on CMA's and
operations on areas with remaining highwalls subject to the AOC
provisions. Although there are no Federal regulations that directly
correspond to Utah's application of its rule to operations on CMA's and
operations on areas with remaining highwalls subject to the AOC
provisions, the Federal regulations at 30 CFR 816.106(b)(2) and
817.106(b)(2), as discussed in the September 17, 1993, final rule
Federal Register notice, are analogous to this Utah provision.
Utah's proposed revisions to Utah Admin. R. 645-301-553.520,
regarding the requirements for remaining operations on PMA's, CMA's,
and areas with remaining highwalls subject to the AOC provisions, are
not inconsistent with the corresponding Federal regulations at 30 CFR
816.106(b)(2) and 817.106(b)(2). For this reason, the Director approves
Utah's proposed revision to Utah Admin. R. 645-301-553.520.
8. Utah Admin. R. 645-301-553.530, Stability Criteria for Backfilling
and Grading
In partial response to the required amendment previously codified
at 30 CFR 944.16(d) (September 17, 1993, 58 FR 48600), Utah proposed to
revise existing Utah Admin. R. 645-301-553.523, regarding highwall
retention stability criteria. Utah proposed recodifying the rule as
Utah Admin. R. 645-301-553.530 and relocating it under the reorganized
section of its rules at Utah Admin. R. 645-301-553.500 entitled
``PMA's, CMA's and Areas with Remaining Highwalls Subject to the AOC
Provisions,'' which was previously entitled ``previously mined areas''
(see finding No. 6). Utah also proposed to delete the phrase ``not to
exceed either the angle of repose or such lessor slope as is necessary
to'' from recodified Utah Admin. R. 645-301-553.530. Lastly, Utah
proposed to revise the rule to require that (1) any remaining highwall
will be stable and not pose a hazard to the public health or safety or
to the environment, and (2) remaining highwalls must achieve a minimum
long-term static safety factor of 1.3 and prevent slides, or meet an
alternative criterion that the operator proposes and demonstrates to
the satisfaction of the Division that the remaining highwall is stable
does not pose a hazard to the public health and safety or to the
environment.
By changing the PMA title of Utah Admin. R. 645-301-553.530 to
include CMA's and areas with remaining highwalls subject to the AOC
provisions, Utah in effect proposed that remaining highwalls on PMA's
and CMA's and areas with remaining highwalls subject of the AOC
provisions comply with the proposed stability criteria of Utah Admin.
R. 645-301-553.530.
The Federal general backfilling and grading regulations at 30 CFR
816.102(a)(3) and 817.102(a)(3) require that disturbed areas be
backfilled and graded to achieve a postmining slope that does not
exceed either the angle of repose or such lesser slope as is necessary
to achieve a minimum long-term static safety factor of 1.3 and to
prevent slides. The Federal regulations at 30 CFR 816.106(b)(3) and
817.106(b)(3) concerning backfilling and grading of PMA's require that
any highwall remnant be stable and not pose a hazard to the public
health and safety [[Page 28045]] or to the environment and that the
operator shall demonstrate, to the satisfaction of the regulatory
authority, that the highwall remnant is stable. The Federal regulations
at 30 CFR 816.106(b)(3) and 817.106(b)(3) apply only to remaining
operations on PMA's. Utah's proposed rule differs from the Federal
regulations in that Utah proposes to extend its rules concerning the
stability criteria for backfilling and grading of remaining highwalls
to operations on CMA's and operations on areas with remaining highwalls
subject to the AOC provisions. Although there are no Federal
regulations that directly correspond to Utah's application of its rule
to operations on CMA's and operations on areas with remaining highwalls
subject to the AOC provisions, the Federal regulations at 30 CFR
816.106(b)(3) and 817.106(b)(3), as discussed in the September 17,
1993, final rule Federal Register notice, are analogous to this Utah
provision.
The Director emphasizes that, in all cases, the Federal regulations
at 30 CFR 816.102(a)(3) and 817.102(a)(3) require the backfill material
at the base or against a highwall to have a minimum long-term static
safety factor of 1.3 and prevent slides. The Director recognizes that a
highwall remnant extending above the backfill material does not have to
achieve the 1.3 minimum long-term static safety factor. However, the
Federal regulations at 30 CFR 816.106(b)(3) and 817.106(b)(3) and
require (1) that any highwall remnant be stable and not pose a hazard
to the public health and safety or to the environment and (2) that an
operator demonstrate to the satisfaction of the regulatory authority
that the highwall remnant is stable.
Utah's proposed revisions to recodified Utah Admin. R. 645-301-
553.530 to require that its stability criteria apply to any remaining
highwall left in accordance with the approved State program, whether in
connection with a PMA, a CMA or an area with remaining highwalls
subject to Utah's AOC provisions is not inconsistent with the Federal
regulations at 30 CFR 816.102(a)(3), 817.102(a)(3), 816.106(b)(3) and
817.106(b)(3).
The portion of Utah's proposed revisions to recodified Utah Admin.
R. 645-301-553.530 deleting the phrase ``not to exceed either the angle
of repose or such lesser slope as is necessary to,'' as previously
required by 30 CFR 944.16(d), is not inconsistent with the Federal
regulations at 30 CFR 816.102(a)(3) and 817.102(a)(3).
The portion of Utah's proposed revisions at Utah Admin. R. 645-301-
553. 530 that allows an operator to provide alternative stability
criterion to establish that a highwall remnant or retained highwall is
stable and does not pose a hazard to the public health and safety or to
the environment is not inconsistent with the Federal regulations at 30
CFR 816.106(b)(3) and 817.106(b)(3).
For the reasons discussed above, the Director approves Utah's
proposed rule revisions to recodified Utah Admin. R. 645-301-553.530.
The Director also finds that the proposed revisions satisfy the part of
the required amendment previously codified at 30 CFR 944.16(d)(1) that
applied to recodified Utah Admin. R. 645-301-553.530 and satisfy in
total the required amendments previously codified at 30 CFR
944.16(d)(2) and (3).
9. Utah Admin. R. 634-301-553.600, PMA's and CMA's
Utah proposed to delete existing Utah Admin. R. 645-301-553.650 and
create new Utah Admin. R. 645-301-553.600, which serves as the section
title and introduction to Utah's reorganized rule requirements at Utah
Admin. R. 645-301-553.610 through .612 for PMA's and CMA's (see finding
Nos. 11 and 12).
The counterpart Federal regulations at 30 CFR 816.106 and 817.106
pertain to backfilling and grading requirements for PMA's. The Federal
regulations at 30 CFR 816.106 and 817.106 apply only to backfilling and
grading requirements for remaining operations PMA's. Utah's proposed
rule differs from the Federal regulations in that Utah proposes to
extend its rules concerning the backfilling and grading requirements
for remaining highwalls to operations on CMA's. Although there are no
Federal regulations that directly correspond to Utah's application of
its rule to CMA's, the Federal regulations at 30 CFR 816.106 and
817.106, as discussed in the September 17, 1993, final rule Federal
Register notice, are analogous to this Utah provision.
Newly-created Utah Admin. R. 645-301-553.600 is consistent with
Utah's proposed rule reorganization and is not inconsistent with the
corresponding Federal regulations at 30 CFR 816.106 and 817.106.
Accordingly, the Director approves Utah's proposed rule revision.
10. Utah Admin. R. 634-301-553.610, Exceptions for PMA's and CMA's From
the Requirement for Complete Highwall Elimination
Utah proposed to revise the text of the existing provision at Utah
Admin. R. 645-301-553.520 and relocate it at new Utah Admin. R. 645-
301-553.610 under the newly-created section of Utah's rules at Utah
Admin. R. 645-301-553.600 addressing PMA's and CMA's (see finding No.
10). Specifically, proposed Utah Admin. R. 645-301-553.610 states that
highwalls on PMA's or CMA's must be eliminated to the maximum extent
technically practical, but are not required to be completely eliminated
where the volume of all reasonably available spoil is demonstrated in
writing to the Division to be insufficient to completely backfill the
reaffected or enlarged highwall.
Newly-created Utah Admin. R. 645-301-553.610, which allows an
exception for PMA's and CMA's to the requirement that highwalls be
completely eliminated, is consistent with the proposed reorganization
of Utah's rules. In addition, because operations on both PMA's and
CMA's must eliminate the highway to the maximum extent technically
practical and make a written demonstration that all reasonably
available spoil was used, proposed Utah Admin. R. 645-301-553.610 is
not inconsistent with the Federal regulations at 30 CFR 816.106(b)(2)
and 817.106(b)(2). For this reason, the Director approves newly-created
Utah Admin. R. 645-301-553.610.
11. Utah Admin. R. 634-301-553.611 and .612, Backfilling and Grading of
Reasonably Available Spoil
Utah proposed to delete existing Utah Admin. R. 645-301-553.521 and
create new provisions at Utah Admin. R. 645-301-553.611 and .612
respectively, which consist of the revised text of former Utah Admin.
R. 645-301-553.521. Newly-created Utah Admin. R. 645-301-553.611
requires that all spoils generated by the remining operation or CMA and
any other reasonably available spoil will be used to backfill the area.
Newly-created Utah Admin. R. 645-301-553.612 requires that reasonably
available spoil in the immediate vicinity of the remining operation or
CMA will be included within the permit area.
The Federal regulations at 30 CFR 816.106(b)(1) and 817.106(b)(1)
require that all spoil generated by the remining operation on PMA's and
any other reasonably available spoil will be used to backfill the area,
and reasonably available spoil in the immediate vicinity of the
remining operation shall be included within the permit area. The
Federal regulations at 30 CFR 816.106(b)(1) and 817.106(b)(1) apply
only to backfilling and grading requirements for remining operations on
PMA's. Utah's proposed rules differ from the Federal regulations in
that Utah proposes to extend its rules concerning the requirements for
backfilling and grading of reasonably [[Page 28046]] available spoil to
operations with remaining highwalls on CMA's. Although there are no
Federal regulations that directly correspond to Utah's application of
its rules to CMA's, the Federal regulations at 30 CFR 816.106(b)(1) and
817.106(b)(1), as discussed in the September 17, 1993, final rule
Federal Register notice, are analogous to these Utah provisions.
Utah's newly-created provisions at proposed Utah Admin. R. 645-301-
553.611 and .612 are in accordance with Utah's proposed rule
reorganization and are not inconsistent with the Federal requirements.
Accordingly, the Director approves Utah's newly-created provisions at
Utah Admin. R. 645-301-553.611 and .612.
12. Utah Admin. R. 645-301-553.650, Highwall Management Under the AOC
Provisions
In response to the required amendment previously codified at 30 CFR
944.16(a) (September 17, 1993, 58 FR 48600), Utah proposed to create
new Utah Admin. R. 645-301-553.650 by proposing a section entitled
``Highwall Management Under the Approximate Original Contour
Provisions.'' Newly-created Utah Admin. R. 645-301-553.650 requires
that for situations where a permittee seeks approval for a remaining
highwall under the AOC provisions, the permittee will establish and the
Division will find in writing that the remaining highwall will achieve
the stability and AOC requirements of certain cited applicable rules.
While there are no Federal regulations that directly correspond to
newly-created Utah Admin. R. 645-301-553.650, the Federal regulations
at 30 CFR 816.102(k)(3)(ii) and 817.102(k)(1) explicitly require
operators to obtain the regulatory authority's approval for
determinations relating to AOC. Because Utah's proposed rule at Utah
Admin. R. 645-301-553.650 does explicitly require that, prior to the
Division approving the retention of a highwall, the permittee will
establish and the Division will find in writing that the remaining
highwall will achieve the applicable stability requirements and will
meet the applicable AOC criteria, it is not inconsistent with the
Federal regulations at 30 CFR 816.102(k)(3)(ii) and 817.102(k)(1).
Accordingly, the Director approves newly-created Utah Admin. R.
645-301-553.650. The Director also finds that the proposed rule
satisfies the required amendment previously codified at 30 CFR
944.16(a).
13. Utah Admin. R. 645-301-553.650.100, Height and Length of Remaining
Highwalls
In response to the required amendment previously codified at 30 CFR
944.16(b) (September 17, 1993, 58 FR 48600), Utah proposed to revise
existing Utah Admin. R. 645-301-553.651 by recodifying it as Utah
Admin. R. 645-301-553.650.100 and revising it to require that a
remaining highwall will not be greater in height or length than the
cliffs and cliff-like escarpments that were replaced or disturbed by
the mining operations.
Beacuse proposed Utah Admin. R. 645-301-553.650.100 restricts the
height and length of remaining highwalls to those cliffs and cliff-like
escarpments that were replaced or disturbed by the mining operations,
it is consistent with the replacement criterion for areas with
remaining highwalls subject to the AOC provisions at Utah Admin. R.
645-301-553.650.200, and is no less stringent than section 515(b)(3) of
SMCRA, which requires mining operations to restore the land to AOC. In
addition, Utah Admin. R. 645-301-553.650.100 is in accordance with
Utah's proposed rule reorganization.
For these reasons, the Director approves proposed Utah Admin. R.
645-301-553.650.100. The Director also finds that the proposed rule
satisfies the required amendment previously codified at 30 CFR
944.16(b).
14. Utah Admin. R. 645-301-553.650.200, Replacement of Preexisting
Cliffs or Similar Natural Premining Features With a Remaining Highwall
Utah proposed to recodify existing Utah Admin. R. 645-301-553.652
as Utah Admin. R. 645-301-553.650.200 and revise it to require that a
highwall may remain only when it replaces a preexisting cliff or
similar natural premining feature and resembles the structure,
composition, and function of the natural cliff it replaces.
As discussed in the September 17, 1993, final rule Federal Register
notice (58 FR 48600, 48604-5), the Secretary of the Interior harmonized
the inherent contradiction that exists when applying section 515(b)(3)
of SMCRA, which requires operators to restore land to AOC with all
highwalls eliminated, to specific areas of Utah involving natural
benches and steep topography by approving a carefully limited exception
in the Utah program to SMCRA's requirement for the complete elimination
of all highwalls. Because proposed Utah Admin. R. 645-301-553.650.200
allows highwalls to remain only when they replace preexisting cliffs or
similar natural premining features and resemble the structure,
composition, and function of the natural cliffs they replace, it is in
accordance with the Secretary's approval of Utah's provisions for areas
with remaining highwalls subject to the AOC provisions and is no less
stringent than section 515(b)(3) of SMCRA, which requires mining
operations to restore the land to AOC. In addition, Utah Admin. R. 645-
301-553.600.200 is consistent with Utah's proposed rule reorganization.
Accordingly, the Director approves Utah's proposed rule.
15. Utah Admin. R. 645-301-553.651, Applicability Date
In response to the required amendment previously codified at 30 CFR
944.16(c) (September 17, 1993, 58 FR 48600), Utah proposed to create
new Utah Admin. R. 645-301-553.651, which states the following.
Applicability. Where final backfilling and grading was completed
and the phase one 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 one bond was not released prior to June 2, 1992.
Utah incorporates by reference the provisions of Utah Admin. R.
645-301-552.650. No such citation exists in Utah's rules. For the
purposes of the following finding, OSM assumes that the proposed
reference is a typographical error and that Utah intended to cite Utah
Admin. R. 645-301-553.650.200, which is pertinent to the proposed
applicability section at Utah Admin. R. 645-301-553.651 and the
required amendment previously codified at 30 CFR 944.16(c).
At Utah Admin. R. 645-301-553.651, Utah proposes that the
requirements of Utah Admin. R. 645-301-553.650.200 (incorrectly cited
by Utah as Utah Admin. R. 645-301-552.650) do not retroactively apply
to highwalls which were retained under existing Utah Admin. R. 645-301-
553.652 and for which final backfilling and grading was completed and
the phase one bond was released prior to June 2, 1992.
Existing Utah Admin. R. 645-301-553.652 provides in part that a
highwall may be retained if it is similar in structural composition to
the preexisting cliffs ``in the surrounding area.'' As discussed in the
September 17, 1993, final rule Federal Register notice (58 FR 48600,
48605; finding No. [[Page 28047]] 3), Utah interpreted the quoted
phrase to allow the retention of highwalls when no similar natural
features existed in the disturbed area prior to mining. By letter dated
January 9, 1991, and sent to Utah in accordance with 30 CFR 732.17, OSM
notified Utah that this interpretation was not consistent with SMCRA
and the Secretary's assumptions in approving the provisions of the Utah
program that allow for the incomplete elimination of highwalls for
areas with remaining highwalls subject to the AOC provisions.
With respect to the June 2, 1992, date that Utah uses in proposed
Utah Admin. R. 645-301-553.651, the Director, as also discussed in the
September 17, 1993, final rule Federal Register notice (58 FR 48600,
48605-6; finding No. 3(C)(3)(b)), found that an applicability date of
December 13, 1982, rather than June 2, 1992, is mandated by SMCRA. In
that discussion, the Director made clear that the replacement
criterion, now codified at Utah Admin. R. 645-301-553.650.200, has an
applicability date of December 13, 1982, and must apply to any highwall
retained pursuant to the AOC provisions of the Utah program at Utah
Admin. R. 645-301-553.650 regardless of the date that the highwall was
created.
For these reasons, the Director finds that proposed Utah Admin. R.
645-301-553.651 is less stringent than section 515 of SMCRA, not in
accordance with the Secretary's assumptions in approving the provisions
of the Utah program that allow for the incomplete elimination of
highwalls for areas with remaining highwalls subject to the AOC
provisions, and not in accordance with the Director's previous finding
in the September 17, 1993, final rule Federal Register notice (58 FR
48600, 48605-6; finding No. 3(C)(3)(b)). Therefore, the Director does
not approve Utah's proposed rule at Utah Admin. R. 645-301-553.651. In
addition, the Director will continue to interpret the replacement
criterion at Utah Admin. R. 645-301-553.650.200 as having an
applicability date of December 13, 1982, and as applying to any
highwall retained pursuant to the AOC provisions of the Utah program at
Utah Admin. R. 645-301-553.650. The Director is not requiring Utah, as
was done previously at 30 CFR 944.16(c), to revise its rules to require
that the replacement criterion provision at Utah Admin. R. 645-301-
553.650.200 has an applicability date of December 13, 1982, and applies
to any highwall retained pursuant to the AOC provisions of the Utah
program. OSM has decided that it is not necessary to require Utah to so
revise its rules because OSM has already made clear, in the September
17, 1993, final rule Federal Register notice (58 FR 48600, 48605-6;
finding No. 3(C)(3)(b)), and again in this finding, that the Director
will interpret the Utah replacement criterion at Utah Admin. R. 645-
301-553.650.200 as having an applicability date of December 13, 1982,
and as applying to any highwall retained pursuant to the AOC provisions
of the Utah program at Utah Admin. R. 645-301-553.650. OSM will utilize
this interpretation of the replacement criterion at Utah Admin. R. 645-
301-553.650.200 in its oversight of the Utah program, regardless of
whether or not Utah's program explicitly addresses the applicability of
the replacement criterion.
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 responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, 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.
The U.S. Army Corps of Engineers responded on December 15, 1993,
and August 1 and December 9, 1994, that the changes to the Utah program
were satisfactory (administrative record Nos. UT-884, UT-958, and UT-
998).
The U.S. Fish and Wildlife Service responded on December 16, 1993,
that it found nothing of significant concern and on August 9, 1994,
that it had no further comments (administrative record Nos. UT-885 and
UT-961).
The U.S. Forest Service (USFS) responded on December 27, 1993, that
``the State of Utah uses a safety factor of 1.3 for long-term stability
of highwalls whereas the Forest Service requires a safety factor of
1.5'' (administrative record No. UT-886).
Utah Admin. R. 645-301-553.130, in pertinent part, requires that
disturbed areas will be backfilled and graded to achieve a postmining
slope that does not exceed either the angle of repose or such lesser
slope as is necessary to achieve a long-term static safety factor of
1.3 and prevent slides. In addition, Utah Admin. R. 645-301-553.530
requires, in pertinent part, that a Utah operator will demonstrate, to
the satisfaction of the Division, that a remaining highwall must
achieve a minimum long-term static safety factor of 1.3 and prevent
slides.
As discussed in finding No. 8, the Federal regulations at 30 CFR
816.102(a)(3) and 817.102(a)(3) require that disturbed areas shall be
backfilled and graded to achieve a postmining slope that does not
exceed either the angle of repose or such lesser slope as is necessary
to achieve a long-term static safety factor of 1.3 and prevent slides.
Therefore, Utah's use of a 1.3 static safety factor for long-term
stability of highwalls is ``in accordance with and no less effective
than'' the Federal backfilling and grading standards set forth in title
30 of the Code of Federal Regulations. Because the Federal regulations
at 30 CFR 730.5(b) only require that a State's laws be ``in accordance
with'' and ``no less effective than'' the Federal regulations in
meeting the requirements of SMCRA, the Director does not have the
authority to require standards in excess of the Federal regulations
that implement SMCRA. One this basis, the Director does not require
Utah to revise its program in response to USFS's comment. However, if
USFS has a 1.5 static safety factor that applies to highwalls on land
under USFS's jurisdiction, this does not preclude USFS from enforcing
this standard on such highwalls.
The Mine Safety and Health Administration responded on June 20,
1994, and January 12, 1995, that the proposed amendment did not appear
to conflict with the requirements of 30 CFR, which includes its safety
regulations (administrative record Nos. UT-940 and UT-1006).
The U.S. Bureau of Mines responded on July 18 and December 6, 1994,
by telephone conversation, that it had no comments on the proposed
amendment (administrative record Nos. UT-948 and UT-995).
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
pertain to air or water quality standards. Therefore, OSM did not
request EPA's concurrence. [[Page 28048]]
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record Nos. UT-876, UT-946,
and UT-993). It responded on December 9, 1993, July 19, 1994, and
December 22, 1994, that it had no comments on the proposed amendment
and did not believe that there would be any impacts to water quality
standards promulgated under the Clean Water Act (administrative record
Nos. UT-880, UT-954, and UT-1000).
4. State Historic Preservation Officer (SHPO)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO (administrative record Nos. UT-876,
UT-946, and UT-993). the SHPO did not respond to OSM's request.
V. Director's Decision
Based on the above findings, the Director approves, with an
exception and additional requirements, Utah's proposed amendment as
submitted on November 12, 1993, and as revised on June 28 and November
3, 1994.
The Director does not approve, as discussed in: finding No. 15,
Utah Admin. R. 645-301-553.651, concerning the applicability date of
Utah's replacement criterion for areas with remaining highwalls subject
to the AOC provisions at Utah Admin. R. 645-301-553.650.200.
The Director approves, as discussed in: finding No. 1, Utah Admin.
R. 645-301-553, concerning contemporaneous reclamation requirements for
backfilling and grading; Utah Admin. R. 645-301-553.130, concerning the
requirements for a 1.3 static safety factor; Utah Admin. R. 645-301-
553.150, concerning the requirements for post mining land use; Utah
Admin. R. 645-301-553.200, concerning the backfilling and grading
requirements for spoil and waste; Utah Admin. R. 645-301-553.210,
concerning the general requirements for disposal of excess spoil; Utah
Admin. R. 645-301-553.220, concerning the requirements for placement of
spoil; Utah Admin. R. 645-301-553.252, concerning the requirements for
final grading of refuse piles and coal mine waste; Utah Admin. R. 645-
301-553.300, concerning the requirements for covering of exposed coal
seams; Utah Admin. R. 645-301-553.510, concerning remaining operations
on PMA's, operations on CMA's, and operations on areas with remaining
highwalls subject to AOC provisions; Utah Admin. R. 645-301-553.540,
concerning the requirements for spoil placement; Utah Admin. R. 645-
301-553.650.300, concerning the requirement for modifications to
retained highwalls restoring cliff-type habitats required by premining
flora and fauna; Utah Admin. R. 645-301-553.650.400, concerning the
requirement for compatibility of retained highwalls with the approved
postmining land use and visual attributes of the area; and Utah Admin.
R. 645-301-553.650.500, concerning the exemption from obtaining a
variance from AOC requirements; finding No. 2, Utah Admin. R. 645-301-
553.100, concerning the section entitled ``disturbed areas,'' and Utah
Admin. R. 645-301-553.230, concerning the general requirements for
backfilling and grading; finding No. 3, Utah Admin. R. 645-100-200,
concerning the definition of ``Continuously Mined Areas;'' finding No.
6, Utah Admin. R. 645-301-553.500, concerning PMA's, CMA's, and areas
with remaining highwalls subject to AOC provisions; finding No. 7, Utah
Admin. R. 634-301-553.520, concerning backfilling and grading of
remaining highwalls; finding No. 8, Utah Admin. R. 645-301-553.530,
concerning stability criteria for backfilling and grading and resulting
in partial removal of the required amendment previously codified at 30
CFR 944.16(d)(1) and total removal of the required amendments
previously codified at 30 CFR 944.16(d) (2) and (3); finding No. 9,
Utah Admin. R. 634-301-553.600, concerning Utah's newly-created section
title for its reorganized rule requirements for PMA's and CMA's;
finding No. 10, Utah Admin. R. 634-301-553.610, concerning exceptions
for PMA's and CMA's from the requirement for complete highwall
elimination; finding No. 11, Utah Admin. R. 634-301-553.611 and .612,
concerning backfilling and grading of reasonably available spoil;
finding No. 12, Utah Admin. R. 645-301-553.650, concerning highwall
management under the AOC provisions and removal of the required
amendment previously codified at 30 CFR 944.16(a); finding No. 13, Utah
Admin. R. 645-301-553.650.100, concerning the height and length of
remaining highwalls and removal of the required amendment previously
codified at 30 CFR 944.16(b); and finding No. 14, Utah Admin. R. 645-
301-553.650.200, concerning the replacement of preexisting cliffs or
similar natural premining features with a remaining highwall.
With the requirement that Utah further revise its rules, the
Director approves, as discussed in: finding No. 4, Utah Admin. R. 645-
301-553.110, concerning exceptions to the requirement that disturbed
areas achieve AOC; and finding No. 5, Utah Admin. R. 534-301-553.120,
concerning backfilling and grading of spoil and waste.
The Director approves, with one exception, the rules as proposed by
Utah with the provision that they be fully promulgated in identical
form to the rules submitted to and reviewed by OSM and the public.
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.
Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of
an approved State program be submitted to OSM for review as a program
amendment. Thus, any changes to the State program are not enforceable
until approved by OSM. The Federal regulations at 30 CFR 732.17(g)
prohibit any unilateral changes to approved State programs. In the
oversight of the Utah program, the Director will recognize only the
statutes, regulations and other materials approved by OSM, together
with any consistent implementing policies, directives and other
materials, and will require the enforcement by Utah of only such
provisions.
VI. 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 had
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 1255) and the Federal regulations at 30 CFR
[[Page 28049]] 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
The 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 with 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: May 23, 1995.
Richard J. Seibel,
Regional Director, Western Regional Coordinating 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 (ee) to read as
follows:
Sec. 944.15 Approval of amendments to the Utah regulatory program.
* * * * *
(ee) With the exception of Utah Admin. R. 645-301-553.651,
concerning the applicability date of Utah's replacement criterion for
areas with remaining highwalls subject to the AOC provisions at Utah
Admin. R. 645-301-553.650.200 (formerly the ``AOC alternative''), the
following rules, as submitted to OSM on November 12, 1993, and as
revised on June 28 and November 3, 1994, are approved effective May 30,
1995.
645-100-200...................... Definition of ``Continuously Mined
Areas'' (CMA's).
645-301-553...................... Contemporaneous Reclamation
Requirements for Backfilling and
Grading.
645-301-553.100.................. Section Entitled ``Disturbed Areas.''
645-301-553.110.................. Exceptions to the Requirement That
Disturbed Areas Achieve Approximate
Original Contour (AOC).
645-301-553.120.................. Backfilling and Grading of Spoil and
Waste.
645-301-553.130.................. Requirements for a 1.3 Static Safety
Factor.
645-301-553.150.................. Requirements for Postmining Land Use.
645-301-553.200.................. Backfilling and Grading Requirements
for Spoil and Waste.
645-301-553.210.................. General Requirements for Disposal of
Excess Spoil.
645-301-553.220.................. Requirements for Placement of Spoil.
645-301-553.230.................. General Requirements for Backfilling
and Grading.
645-301-553.252.................. Final Grading of Refuse Piles and
Coal Mine Waste.
645-301-553.300.................. Covering of Exposed Coal Seams.
645-301-553.500.................. Previously Mined Area's (PMA's),
CMA's, and Areas With Remaining
Highwalls Subject to AOC Provisions.
645-301-553.510.................. Remining Operations on PMA's,
Operations on CMA's, and Operations
on Areas With Remaining Highwalls
Subject to AOC Provisions.
645-301-553.520.................. Backfilling and Grading of Remaining
Highwalls.
645-301-553.530.................. Stability Criteria for Backfilling
and Grading.
645-301-553.540.................. Spoil Placement.
645-301-553.600.................. Newly-Created Section Title for
Utah's Reorganized Rule Requirements
for PMA's and CMA's.
645-301-553.610.................. Exceptions for PMA's and CMA's From
the Requirement for Complete
Highwall Elimination.
645-301-553.611 and .612......... Backfilling and Grading of Reasonably
Available Spoil.
645-301-553.650.................. Highwall Management Under the AOC
Provisions.
645-301-553.650.100.............. Height and Length Requirements of
Remaining Highwalls.
645-301-553.650.200.............. Replacement of Preexisting Cliffs or
Similar Natural Premining Features
With a Remaining Highwall.
645-301-553.650.300.............. Modifications to Retained Highwalls
Restoring Cliff-Type Habitats
Required by Premining Flora and
Fauna.
645-301-553.650.400.............. Compatibility of Retained Highwalls
With the Approved Postmining Land
Use and Visual Attributes of the
Area.
645-301-553.650.500.............. Exemption from Obtaining a Variance
From AOC Requirements.
3. Section 944.16 is amended by adding paragraphs (c) and (d) to
read as follows:
Sec. 944.16 Required program amendments.
* * * * *
(c) By July 31, 1995, Utah shall revise Utah Admin. R. 645-301-
553.110, or otherwise modify its program, by correcting the cross-
referenced provisions in the phrase ``R645-301-500 through R645-301-
540,'' regarding previously mined area's continuously mined area's, and
areas subject to the AOC provisions, to read ``R645-301-553.500 through
R645-301-553.540.''
(d) By July 31, 1995, Utah shall revise Utah Admin. R. 645-301-553-
120, or otherwise modify its program, by correcting the cross-
referenced provisions in the phrase ``R645-301-553.500 through R645-
301-540,'' regarding previously mined area's, continuously mined
area's, and areas [[Page 28050]] subject to the AOC provisions, to read
``R645-301-553.500 through R645-301-553.540'' and correcting the cross-
referenced provisions in the phrase ``R645-301-553.650 through R645-
301-553.653'' to read ``R645-301-553.650 through R645-301-553.651.''
[FR Doc. 95-13156 Filed 5-26-95; 8:45 am]
BILLING CODE 4310-05-M
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