Surface Mining and Reclamation Operations Under a Federal Program for Arizona

Federal RegisterApr 12, 1995

Ask Donna

What actually matters in this document.

Text

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

of the Department of the Interior (DOI) is promulgating a Federal

program to regulate coal exploration and surface coal mining and

reclamation operations on non-Federal and non-Indian lands in the State

of Arizona. This includes surface effects of underground coal mining.

This program is necessary in order to regulate surface coal mining

activities that may be undertaken in Arizona under applicable

provisions of the Surface Mining Control and Reclamation Act of 1977

(SMCRA), and under OSM regulations on standards and procedures relating

to a Federal program for a State in the absence of a State program.

EFFECTIVE DATE: May 12, 1995.

FOR FURTHER INFORMATION CONTACT: Thomas E. Ehmett, Office of

Surface Mining Reclamation and Enforcement, 505 Marquette Avenue

NW, Suite 1200, Albuquerque, New Mexico 87102; Telephone (505) 766-

1486; or Nancy Broderick, Branch of Federal and Indian Programs,

Division of Regulatory Programs, Office of Surface Mining

Reclamation and Enforcement, 1951 Constitution Avenue NW,

Washington, DC 20240; Telephone (202) 208-2564.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Discussion of Final Rule.

III. Response to Public Comments.

IV. Procedural Matters.

I. Background

Under section 504(a) of the Surface Mining Control and Reclamation

Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., the Secretary of the

Interior (the Secretary) is required to promulgate a Federal program

for a State in which there are or may be conducted surface coal mining

operations on non-Federal and non-Indian lands for, among other

reasons, the failure of the State to submit a proposed State program to

the Secretary. Upon promulgation of a Federal regulatory program, the

Secretary becomes the regulatory authority.

Once a decision is made by OSM that a Federal regulatory program is

necessary for a State, the Secretary must make several determinations

before promulgating a program, as outlined below.

Section 504(a) of SMCRA requires that the Secretary take into

consideration the nature of the State's terrain, climate, biological,

chemical, and other relevant physical conditions. This requirement is

also set forth in the regulations for the promulgation of Federal

programs at 30 CFR Part 736.

Section 505(b) of SMCRA and 30 CFR 736.22(a)(1) also provide that

if a State has more stringent land use and environmental protection

laws or regulations than SMCRA, they shall not be construed to be

inconsistent with SMCRA or the Secretary's regulations. If the State's

laws or regulations establish more stringent standards than those of

SMCRA or the Secretary's regulations, or if the State regulates any

aspect of the environment which neither SMCRA nor the Secretary's

regulations protect, the Secretary would then specifically preserve

those State standards in the Federal program. Thus, the Secretary

believes that the requirements of section 505(b) of SMCRA can best be

met by identifying any State laws and regulations which impose

equivalent or more stringent environmental controls and by listing them

in Sec. 903.700(e) of the Federal program.

Also, in promulgating a program for a State, section 504(g) of

SMCRA specifies that any State statutes or regulations which regulate

surface mining and reclamation operations subject to SMCRA will be

superseded and preempted by the Federal program to the extent that they

interfere with the achievement of the purposes and requirements of

SMCRA and the Federal program. This provision is reinforced by section

505(a) of SMCRA, which states that only those State laws and

regulations that are inconsistent with SMCRA and its implementing

regulations shall be superseded by the Federal program.

Thus, those State statutes and rules regulating the same activities

as those covered by the Federal statute and regulations, but which do

not provide as much protection as do the Federal statute and

regulations, are considered to interfere with the achievement of the

purposes of SMCRA and must be identified and preempted by OSM.

Finally, according to section 504(h) of SMCRA, a Federal program

must include a process for coordinating the review and issuance of

surface mining permits with other Federal or State permits applicable

to the proposed operation. The Federal statutes with which compliance

must be coordinated in the issuance of a surface mining permit are set

out at 30 CFR 736.22(c). State statutes for which a permit is required

must be identified in the process of promulgating a Federal program,

and the Federal program must provide for coordination with the permit

review and issuance procedures required by those statutes.

Federal programs are based on the Secretary's permanent program

regulations, 30 CFR Chapter VII, Subchapters A, F, G, H, J, K, L, and

M, which implement five essential aspects of the surface coal mining

regulatory program: permitting, performance standards, designation of

lands as unsuitable for mining, bonding, and inspection and

enforcement. These regulations establish procedures and performance

standards under SMCRA and form the benchmark for State and Federal

regulatory programs.

The permanent program regulations refer to the ``regulatory

authority,'' which is the Secretary under a Federal program. The

Secretary has delegated all of his authority under SMCRA to the

Assistant Secretary--Land and Minerals Management. (Secretarial Order

No. 3013, Nov. 9, 1977, and Order No. 3099, Dec. 22, 1983). With

limited exceptions, the Assistant Secretary has in turn redelegated all

of this authority under SMCRA to the Director, OSM (216 Departmental

Manual 1, November 9, 1977). Thus, the Director of OSM is the official

directly responsible for the implementation of a Federal regulatory

program.

The parts of the permanent regulatory program regulations that must

be included in a Federal program are listed at 30 CFR 736.22(b). They

include general requirements and definitions (Parts 700 and 701), the

exemption for coal extraction incident to government-financed highway

or other construction (Part 707), the designation of lands as

unsuitable for surface mining (Parts 761, 762, and 769), permits and

permit applications (Subchapter G), small operator assistance

(Subchapter H), reclamation bonding (Subchapter J), performance

standards (Subchapter K), inspection and enforcement (Parts 842, 843,

and 845), and blaster training and certification (Subchapter M).

Federal programs are promulgated by means of cross-referencing the

permanent program rules which set the substantive standards. Cross-

referencing avoids duplication of the full text of the permanent

regulatory program rules for each Federal program. The Federal

[[Page 18711]] regulatory program for Arizona is established at 30 CFR

part 903. Sections within Part 903 cross-reference the counterpart

permanent program rules. For example, for general requirements for

permits and permit applications, Sec. 903.773 of the Arizona Federal

regulatory program cross-references 30 CFR part 773 of the permanent

program rules by stating that 30 CFR part 773 shall apply to any person

who makes application for a permit to conduct surface coal mining and

reclamation operations.

For each particular permanent program regulation which needs to be

modified for use in a Federal program, an additional paragraph or

paragraphs has been added under the appropriate section to modify that

particular permanent regulatory program standard to make it applicable

to the Federal program for a particular State or to add additional

requirements or standards.

One effect of cross-referencing in a Federal program is that if a

permanent program rule is revised, the corresponding Federal program

rule would be similarly revised. However, the notice of proposed

rulemaking would invite comments not only on the proposed rule

generally, but also on how it might affect a particular Federal

program. If certain changes were needed for a Federal program, then a

separate provision would be added to the Federal program regulation

that is the counterpart to the permanent program rule.

Several provisions of the permanent program rules are already

applicable to all Federal programs because they were promulgated for

application to all regulatory programs and therefore need not be cross-

referenced here. These provisions are 30 CFR Chapter VII, Subchapter

P--Protection of Employees; Part 706--Restrictions on Financial

Interests of Federal Employees; Part 769--Petition Process for

Designation of Federal Lands Unsuitable for Surface Coal Mining;

Subchapter D--Federal Lands Program, Part 955--Certification of

Blasters in Federal Program States and on Indian lands.

On October 6, 1982, OSM published in the Federal Register a

proposed Federal program to regulate coal exploration and surface coal

mining and reclamation operations on non-Federal and non-Indian lands

in Arizona (47 FR 44194). During the public comment period, OSM was

informed by Arizona officials that all known coal reserves in Arizona

are located on Indian lands. Based on this information, OSM determined

at that time that a Federal program for Arizona for non-Federal and

non-Indian lands was not necessary. Therefore, by notice published in

the Federal Register on January 4, 1983, OSM withdrew its proposal for

a Federal program (48 FR 273).

In November 1993, OSM received a permit application for a surface

coal mining operation in New Mexico, including portions extending into

Arizona which may constitute activities subject to regulation under

SMCRA. Accordingly, OSM determined that a regulatory program in Arizona

is needed to regulate any coal exploration and/or surface coal mining

and reclamation operations on non-Federal and non-Indian lands in

Arizona that may occur in the future.

The State of Arizona has elected not to pursue primacy under a

State program at this time. OSM published a proposed Arizona Federal

program in the Federal Register on August 10, 1994 (59 FR 41208). The

notice announced a 60 day comment period ending on October 11, 1994. In

addition, OSM published a newspaper notice in The Apache County

Observer, St. Johns, Arizona, located in the vicinity of the proposed

mining-related activities in Arizona and provided a 30 day comment

period. Consequently, pursuant to section 504(a) of SMCRA, OSM is now

promulgating a Federal program for Arizona to regulate coal exploration

and surface coal mining and reclamation operations on non-Federal and

non-Indian lands.

II. Discussion of Final Rule

As mentioned above, when promulgating a Federal program for a

State, the Secretary is required by Section 504(a) of SMCRA to take

into consideration the nature of the terrain, climate, biological,

chemical, and other relevant physical conditions of that State. OSM has

reviewed the Arizona laws and regulations to determine whether they

suggest that special provisions may be necessary or appropriate based

on special terrain or other physical conditions in the State.

Review of State Law

OSM has reviewed Arizona State statutes to determine which ones

provide regulatory requirements for coal exploration and surface coal

mining and reclamation operations as defined by SMCRA, and to identify

provisions that might be either more stringent than or inconsistent

with the requirements of SMCRA.

The more stringent requirements, whether State or Federal, are

adopted for this program by listing in this final rule, the Arizona

State statutes that set different controls and for which compliance is

required in the surface coal mining and reclamation operation. Although

OSM has made a comprehensive search of Arizona law, the list in final

Sec. 903.700(c) may not be complete. OSM does not intend an omission to

mean that a permit applicant or a permittee does not have to meet those

obligations under State law. To the contrary, any relevant State law

not superseded by these rules must be complied with by permit

applicants and permittees.

Determining whether the State statutes are more stringent than the

Federal regulations was done on a case-by-case basis. Citation in the

Federal program of State statutes with which compliance is required is

not meant as an adoption of those State statutes and regulations for

purposes of enforcement by OSM. Citation of such statutes is intended

as an aid to persons who must comply with both the Federal program

requirements and State statutes.

In accordance with 30 CFR Part 736, OSM identifies and lists at

final section 903.700(c) of the Federal program for Arizona the

following Arizona statutes which, in certain circumstances, impose

stricter environmental controls than are provided for under SMCRA or

the Federal regulations. These more stringent Arizona statutes are

described and summarized as follows:

(1) The Arizona Department of Agriculture has authority to abate

public nuisances including noxious weed seeds. Arizona Revised Statutes

(A.R.S.) Sections 3-231 to 3-242. Violation of this statute is a

misdemeanor.

(2) It is unlawful to injure any bird or harass any bird upon its

nest to remove the nests or eggs of any bird without prior

authorization of the Arizona Game and Fish Commission. A.R.S. Section

17-236.

(3) A bridge, dam, dike, or causeway may not be constructed over or

in a navigable river or other navigable water without the authorization

of the Governor. A.R.S. Section 18-301.

(4) The Department of Mineral Resources has jurisdiction over the

mining of minerals, and oil and gas under Title 27 of the Arizona

Revised Statutes. One of the functions of that Department is the

prevention and elimination of hazardous dust conditions. A.R.S. Section

27-128. Violation of orders of state mine inspectors respecting dust

prevention and control is a misdemeanor.

(5) Roads leading into waste dump areas and tailing areas from

inhabited or public areas are required to be blocked off and warning

signs posted on the perimeter of such areas. A.R.S. Section 27-

317. [[Page 18712]]

(6) The primary responsibility for the control and abatement of air

pollution rests with the Arizona Department of Environmental Quality

and its Hearing Board. The Department is responsible for the

establishment and enforcement of air pollution emission standards and

ambient air quality standards as a part of a comprehensive air quality

plan for Arizona. A.R.S. Title 49.

(7) The Arizona Department of Water Resources has jurisdiction over

State water, including ``surface waters.'' ``Surface waters'' means

``the waters of all sources, flowing in streams, canyons, ravines or

other natural channels, or in definite underground channels, whether

perennial or intermittent, flood, waste or surplus water, and of lakes,

ponds, and springs on the surface. For the purposes of administering

this title, surface water is deemed to include Central Arizona Project

water.'' A.R.S. Section 45-101. It is a misdemeanor to knowingly use

the water of another, or divert water from a stream, waste water or

obstruct water flowing into a water work. A.R.S. Section 45-112.

Possession of water lawfully denied to the possessor is prima facie

evidence of one's guilt. A.R.S. Section 45-112. If water is to be used

for mining purposes, the water rights may be severed from the land

rights and transferred separately. The separation and transference of

water rights are subject to numerous limitations, A.R.S. Section 45-

172.

(8) Dams are defined as ``any artificial barrier, including

appurtenant works for the impounding or diversion of water except those

barriers for the purpose of controlling liquid borne material, twenty-

five feet or more in height or the storage capacity of which will be

more than fifty acre feet, but does not include any such barrier which

is or will be less than six feet in height, regardless of storage

capacity, or which has or will have a storage capacity not in excess of

fifteen acre feet, regardless of height.'' A.R.S. Section 45-701. The

construction, operation, repair or alteration of any dam without the

prior approval of the Director of Water Resources is a misdemeanor.

A.R.S. Section 45-702 to Section 45-716.

In the proposed rule, OSM identified at Sec. 903.700(f), the

Arizona Open Pits Mining Statute, A.R.S. Section 27-421 to Section 27-

425, and the Arizona Administrative Code Rules 11-1-1301 through 11-1-

1315, as generally interfering with the achievement of the purposes and

requirements of the Act and proposed that they be preempted and

superseded to the extent they interfered with the regulation of coal

exploration or surface coal mining and reclamation operations subject

to regulation under SMCRA in accordance with Sec. 504(g) of the Act.

However, in response to a reviewer's comment OSM, reexamined the above

statute and regulations, and has now concluded that they do not appear

to conflict with or interfere with the application of SMCRA under the

Federal program for Arizona. Therefore, in this final rule OSM is not

preempting any State laws or regulations, at this time. Final

Sec. 903.700(d) provides that, if, in the future, a problem arises in

the application of the Federal program for Arizona due to the

applicability of these or other State laws and regulations, including

any that OSM may not have evaluated due to an omission, OSM will

consider whether such laws or regulations interfere with the

implementation of SMCRA, and if necessary will preempt and supersede

them using the procedures of 30 CFR 730.11(a).

Content and Organization of the Federal Program

The content and organization of the Federal program for Arizona

generally follows the permanent program regulations. However, as

discussed above, instead of the full text appearing, each section

includes only a reference to the pertinent permanent program regulation

section. A separate paragraph is added under each section where there

are deviations from the Federal permanent program regulations for the

Arizona Federal program. These paragraphs will generally be found in a

subsection (b).

The content and organization of the Arizona Federal program is

based on the following provisions of the Federal permanent program

regulations, 30 CFR Chapter VII:

Subchapter A--General

Subchapter F--Areas Unsuitable for Mining

Subchapter G--Surface Coal Mining and Reclamation Operations Permits

and Coal Exploration Systems under Regulatory Programs

Subchapter H--Small Operator Assistance

Subchapter J--Bond and Insurance Requirements for Bonding of Surface

Coal Mining and Reclamation Operations

Subchapter K--Permanent Program Performance Standards

Subchapter L--Permanent Program Inspection and Enforcement Procedures

Part 955--Certification Program for Blasters

Technical literature cited by OSM in the preamables to the

permanent regulatory program (44 FR 14901-15309, March 13, 1979) and in

succeeding rulemaking notices, was relied upon in developing the

Arizona Federal program. The reader is referred to those preambles for

a discussion of the bases and purposes of the permanent program rules

referenced in the Arizona program without substantive change.

The numbering system of the permanent program regulations has been

incorporated into the numbering system for the Arizona Federal program.

Subchapter T of 30 CFR Chapter VII has been established to include

regulatory programs by State in alphabetical order, and each State has

been assigned a part number. As previously indicated, the regulatory

program for Arizona is assigned Part 903. Program elements have been

categorized under headings similar to the subchapter titles of the

permanent program in 30 CFR Chapter VII.

Detailed Discussion of the Arizona Program

General

In this final rule, minor technical and editorial changes were made

to the proposed rule for clarity and conciseness, including deleting

redundant working, and in some places rearranging paragraphs of text in

a more logical order.

Final Secs. 903.700 (a) and (b) contain general statements on the

scope and applicability of the program. Final Sec. 903.700(c), which

was proposed as Sec. 903.700(e), lists Arizona State laws that include

provisions regulating certain aspects of surface coal mining operations

and that, in some instances, are more stringent than SMCRA and the

Secretary's regulations.

Proposed Sec. 903.700(f) identified certain State laws and

regulations that would be preempted and superseded in the Arizona

Federal program. However, as explained above under Review of State Law,

OSM has determined, in response to a reviewer's comment, that

preemption of State laws or regulations is not required at this time.

In this final rule, Sec. 903.700(d), which replaces proposed

Sec. 903.700(f), provides a procedure for the preemption of Arizona

State laws and regulations that interfere with achievement of the

purpose of SMCRA and Federal regulations if such laws and regulations

would be identified at a future date.

Final Secs. 903.701 through 903.707 establish the same provisions,

where applicable, as 30 CFR Chapter VII, subchapter A, General. Final

Sec. 903.701(a) contains all applicable [[Page 18713]] general

requirements, including the definitions in 30 CFR 700.5 and 701.5.

Subsection (b) of Sec. 903.701 states that, beginning on the effective

date of this program and continuing until an operation has a permanent

program permit issued by OSM, compliance with the interim program

standards in 30 CFR Chapter VII, Subchapter B is required. Section

502(c) of SMCRA provides that all surface coal mining operations on

lands on which such operations are regulated by a State shall comply

with the interim program standards until a permanent program permit is

issued.

Final paragraph (c) of Sec. 903.701 provides that records required

by 30 CFR 700.14 to be made available locally to the public shall be

retained at the county recorder's office of the county in which an

operation is located, and at the OSM Albuquerque Field Office. The

provision in the final rule to maintain records at the county

recorder's office was added to the proposed provision to maintain

records only at the OSM Albuquerque Field Office, to make access easier

to the general public.

Section 903.702 establishes the same requirements as Part 702,

Exemption for Coal Extraction Incidental to the Extraction of Other

Minerals. Section 903.707 establishes the same requirements as Part

707, Exemption for Coal Extraction Incident to Government-Financed

Highway or Other Construction.

Permit Fees

Final Sec. 903.736, Permit fees, establishes the same provisions as

30 CFR 736.25.

Areas Designated Unsuitable for Mining

Sections 903.761 through 903.764 establish the same provisions,

where applicable, as 30 CFR Chapter VII, Subchapter F, Areas Unsuitable

for Mining. However, 30 CFR 736.15(b)(1) provides that the procedures

and criteria for designating lands unsuitable shall be implemented one

year after a Federal program is made effective for a State. Therefore,

Sec. 903.764 provides that Part 764 shall apply beginning one year

after the effective date of the Arizona program. No separate section

for Federal lands is included because 30 CFR Part 769 is directly

applicable and need not be made a part of a Federal program for a

State.

Permits and Coal Exploration Approvals

Sections 903.772 through 903.785 establish the same provisions,

where applicable, as 30 CFR Chapter VII, Subchapter G, Surface Coal

Mining and Reclamation Operations Permits and Coal Exploration Systems

Under Regulatory Programs. The following amplifications are added:

For exploration applications where 30 CFR 772.12 applies,

Sec. 903.772(b) requires that, upon receipt of notification from the

regulatory authority of the submission of an administratively complete

application for an exploration permit, the applicant shall publish one

public notice of the filing in a newspaper of general circulation in

the county of the proposed exploration area; and provide proof of this

publication to the regulatory authority within one week after the

newspaper notice is published.

Section 903.772(c) allows 30 days after publication of the public

notice for persons adversely affected to file written comments. Section

903.772(d) requires the regulatory authority to act upon a complete

exploration application and any written comments within 15 days from

the close of the comment period unless additional time is necessary due

to the number or complexity of the issues.

In Sec. 903.773, Requirements for permits and permit processing,

subsection (b), lists Federal laws and corresponding or relevant State

laws for which OSM must provide coordination to prevent or minimize

duplication of effort with Arizona. Although the proposed rule included

The Coastal Zone Management Act in this list, this Federal law does not

appear to be relevant in Arizona. Therefore, it has been omitted in

final Sec. 903.773(b).

Section 903.773(c), as finalized contains the stipulation that no

person may conduct coal exploration or surface coal mining and

reclamation operations without first obtaining all other necessary

permits from the State. This section lists State laws with which the

Secretary will endeavor to coordinate when issuing a permit under this

Federal program. For clarity and conciseness, the listing of these

State laws in final Sec. 903.773(c) has been rearranged to group them

together into related categories, as described below:

(1) Arizona towns and cities are given long-range development and

planning responsibility for their jurisdictions. They are authorized to

issue zoning ordinances and regulate the industrial use of municipal

land and establish special zoning districts (A.R.S. Section 9-461 to

Section 9-462.01). Arizona counties have general permitting authority,

and violation of a county building permit is a petty offense. A.R.S.

11-322 et seq. Each County's Board of Supervisors has responsibility

for promulgating and enforcing the zoning ordinances for the county,

and it is unlawful to use land in violation of a zoning regulation,

ordinance or permit. Violation of such regulation, ordinance or permit

is a misdemeanor. A.R.S. Section 11-808, Section 11-803, and A.R.S.

Section 11-821.

(2) The Arizona law concerning the perfection of mining claims and

the establishment of claims to mineral rights is found at A.R.S.

Section 27-201 to 27-210. Notice of such a claim must be recorded

within 90 days in the appropriate office of the County having

jurisdiction over the recording of land claims. A.R.S. Section 27-203.

(3) A mineral exploration permit is required before prospecting is

allowed on public land. A.R.S. Section 27-251 to Section 27-256.

(4) A permit from the Department of Health Services is required for

the discharge of solid wastes and air pollutants. A.R.S. Title 49.

(5) An installation permit is required before any pollution-causing

equipment may be installed. Before the equipment can commence

operation, an operating permit is required. The permits are not

automatically transferable. It is a misdemeanor to violate any air

pollution permit, ordinance or statute, and criminal intent is not an

element of proof. A.R.S. Title 49.

(6) The Department of Health Services has the responsibility for

issuing water pollutant discharge permits. A.R.S. Title 49, Chapter 2.

(7) It is unlawful to discharge wastes or drainage into State

waters or reduce water quality below water quality standards or

discharge pollutants into waters without a permit from the Department

of Health Services. A.R.S. Title 45.

(8) The Department of State Lands has the responsibility for

issuing mineral prospecting permits for State lands. A.R.S. Section 37-

231.

(9) The waters from all sources belong to the State and are subject

to appropriation and beneficial use. In order to appropriate water or

make a beneficial use of water, a permit is required from the Director

of the Department of Water Resources. The approval of the Director is

required before such a permit may be transferred. A secondary permit

from the Director is required before use may be made of reservoir

waters. A.R.S. Title 45.

Final Sec. 903.773(d) establishes specific permit application

review procedures. This is necessary to dispose of flagrantly deficient

applications early in processing, to provide a procedure for obtaining

additional information, and to indicate the procedure for

determinations of completeness. Final Sec. 903.773(e) allows OSM to

require an [[Page 18714]] applicant to submit supplemental information

to ensure compliance with applicable Federal laws and regulations other

than SMCRA and its implementing regulations. Final Sec. 903.773(f)

establishes, pursuant to 30 CFR 773.15(a)(1), a time period of 60 days

from the close of the comment period for the regulatory authority to

issue a written decision unless additional time is necessary due to the

number or complexity of the issues. The final rule at Sec. 903.773(g)

establishes a procedure for ensuring confidentiality of qualified

permit application information. Such information must be labeled

confidential and submitted separately to be reviewed by OSM for

withholding from disclosure. In addition, Sec. 903.773(g)(1) requires

the public notice required by Sec. 903.773(d)(3) to identify the type

of information considered to be confidential. Finally,

Sec. 903.773(g)(2) requires OSM to rule on the confidentiality of

labeled application information within ten days of the last publication

of the notice required under Sec. 903.773(d)(3).

Proposed Sec. 903.774(b) was described as providing that a permit

revision shall be considered significant if it may have the potential

to adversely impact the potential for the achievement of reclamation

and the post-mining land use. However, this provision was included

under proposed Sec. 903.774(d). Final Sec. 903.774(c) incorporates

proposed Sec. 903.774(d). In addition, final Sec. 903.774(c) provides

that OSM's Western Support Center shall consider the following factors

as well as other relevent factors in determining the significance of a

proposed revision: (1) Changes in production or recoverability of the

coal resource; (2) the environmental effects; (3) the public interest

in the operation, or likely interest in the proposed revision; and (4)

possible adverse impacts from the proposed revision on fish or

wildlife, endangered species, bald or golden eagles, or cultural

resources. Final Sec. 903.774(c) also provides that a significant

revision requires public notice and is subject to a formal hearing if

one is requested.

The remaining subparagraphs of proposed Sec. 903.774 have been

redesignated as follows. Proposed Sec. 903.774(d) has been incorporated

into final Sec. 903.774(c), as discussed above. Proposed

Sec. 903.774(e), which has been redesignated as final Sec. 903.774(d),

provides that OSM approve or disapprove non-significant permit

revisions within a reasonable amount of time. Final Sec. 903.774(e),

which was proposed as Sec. 903.774(f), allows 30 days for any person

having an interest that is or may be adversely affected by a decision

on the transfer, assignment, or sale of permit rights to submit written

comments after publication of the notice required by 30 CFR

774.17(b)(2). Final Sec. 903.774(f), which was proposed as

Sec. 903.774(g), allows interested persons and public entities 30 days

from the last publication of the notice to submit written comments on

or objections to an application for significant revision or permit

renewal.

The permanent program regulations at 30 CFR 779.19(a) give the

regulatory authority discretion to require a map that delineates

vegetation types in the proposed permit area. The final rule at

Sec. 903.779(b) requires the applicant for a surface mining permit to

submit such a map. Similarly, the rule at Sec. 903.783(b) requires a

vegetation map for underground mining permits.

Small Operator Assistance

Section 903.795 establishes the same standards for the small

operator assistance program (SOAP) as are found in Part 795 of the

permanent program rules. OSM expects during its administration of the

SOAP in Arizona that Federal funds will be sufficient to provide for

authorized services, and it does not expect to exercise its option at

30 CFR 795.11(b). That option allows OSM to establish a formula for

allocating limited funds to provide the service pursuant to Part 795.

OSM will award SOAP contracts to qualified laboratories utilizing a

streamlined procurement system that complies with the Federal

Acquisition Regulations. Prior to issuing a Request for Proposals, OSM

will announce its intention through publication in the Commerce

Business Daily or other appropriate publication. OSM will qualify labs

as part of its contracting process.

Bonding

Section 903.800 establishes the same provisions, where applicable,

as 30 CFR Chapter VII, Subchapter J, Bond and Insurance Requirements

for Surface Coal Mining and Reclamation Operations. The final rule at

Sec. 903.800(b) requires the operator to file an application for

release of performance bond no later than 30 days prior to the end of

the growing season.

Performance Standards

Sections 903.815 through 903.828 establish the same provisions,

where applicable, as 30 CFR Chapter VII, Subchapter K, except for the

following changes:

As proposed, Secs. 903.816(b) and 903.817(b) identified

revegetation success standards as those at 30 CFR 816.116(a)(2) and

817.116(a)(2), whereas the actual standards are found at 30 CFR 816.116

(a)(2) and (b) and 817.116 (a)(2) and (b). Therefore, a minor technical

correction has been made in this final rule to cross reference the

appropriate success standards intended to be cited.

Final Sec. 903.816(b) requires: (1) That the standards for

revegetation success for surface mining activities shall be those

specified at 30 CFR 816.116 (a)(2) and (b); and (2) that statistically

valid sampling techniques for measuring success shall be included in

the mining and reclamation plan.

Final Sec. 903.817(b) requires: (1) That the standards for

revegetation success for underground mining activities shall be those

specified in 30 CFR 816.117 (a)(2) and (b); and (2) that statistically

valid sampling techniques for measuring success shall be included in

the mining and reclamation plan.

Inspection and Enforcement Procedures

Sections 903.842, 903.843, 903.845, and 903.846 establish the same

provisions as 30 CFR Chapter VII, Subchapter L, Permanent Program

Inspection and Enforcement Procedures. The final rules at

Secs. 903.842(b) and 903.843(b) require OSM to furnish to a designated

Arizona State agency with jurisdiction over mining, on request, copies

of inspection reports and enforcement actions, respectively.

Blaster Training and Certification

Section 903.955 cross-references 30 CFR Part 955 of the permanent

program regulations.

III. Response to Public Comments

OSM published a proposed Arizona Federal program in the Federal

day comment period ending on October 11, 1994. A public hearing was

scheduled for September 26, 1994, in Phoenix, Arizona, but it was not

held because no one requested to testify at the hearing. On February 2,

1995, OSM also published a newspaper notice in The Apache County

Observer, St. Johns, Arizona, in the vicinity of the proposed coal

mining-related activities in Arizona. This notice stated that OSM would

receive comments on the proposed Arizona Federal program until March 6,

1995 and will include them in the Administrative record for this

rulemaking, which was reopened for that purpose. The newspaper notice

also offered to hold a public hearing during the comment period, but it

was not held because no one requested to testify at the

hearing. [[Page 18715]]

OSM received comments from two commenters on the proposed Arizona

Federal program rule during the comment period of the Federal Register

notice. No comments were received from the publication of the newspaper

notice.

One commenter stated that the preamble to the proposed rules does

not adequately explain why OSM reinitiated the process for adopting a

Federal program for Arizona and that a more complete discussion of that

background should be included in the preamble to minimize the potential

for misinterpretation of the intent and effect of a Federal program for

Arizona, especially with respect to transportation of coal.

OSM reproposed a Federal program for Arizona to enable OSM to

regulate surface coal mining operations that could occur in Arizona in

the future either through mining operations or through other associated

activities resulting from or incident to a surface coal mining

operation, including coal transportation systems. When OSM became aware

of a proposed surface coal mining operation in New Mexico that would

include transportation facilities extending into Arizona, OSM

determined that a Federal program should be in place in the event that

these activities are subject to regulation under SMCRA.

The same commenter stated that OSM should make clear that it has

not purported to determine that the proposed railroad in Arizona would

constitute a ``surface coal mining operation'' subject to SMCRA. The

commenter indicated that the railroad in question has been included in

the permit application for the proposed mining operation to avoid undue

delay while awaiting a final decision regarding the applicability of

SMCRA. The commenter expressed its opinion that the railroad in

question is not subject to SMCRA; however, it supports and urges

adoption of the Arizona Federal program to avoid delays in connection

with the permit process for the proposed mining operation with the

contingency that the program should either automatically terminate or

be reconsidered upon the conclusion of Interior Board of Land Appeals

Case (IBLA) No. 94-366 and OSM's national rulemaking on railroads. The

commenter further stated that OSM should make clear that it does not

intend to apply the Arizona program to any other railroad or other

facilities at this time; and that OSM should provide that the Federal

program and any permit for the Arizona segment of the proposed railroad

will automatically terminate or be reconsidered when the pending

proceedings regarding regulation of railroads have been concluded.

Some railroads are subject to regulation under SMCRA as support

facilities resulting from or incident to surface coal mining

activities. Currently, this determination is made on a case-by-case

basis by the regulatory authority through the permitting process. The

determination is based on an evaluation of factors such as function,

proximity, and economic dependence of the facility on a surface coal

mine. OSM is currently reviewing the adequacy of its regulations and

policies concerning the regulation of railroads as support facilities

under SMCRA and may undertake national rulemaking at some time in the

future to clarify the applicability of OSM's regulations to railroads.

There are also cases pending before the Interior Board of Land

Appeals that, when decided, will bear upon this issue. However, OSM

believes that it is important to separate the issue of the regulation

of specific railroads on a case-by-case basis from the issue of

establishing a Federal program for Arizona to regulate any such

activities that are determined to be surface coal mining operations.

OSM believes that the establishment of a Federal program is not

contingent upon whether any particular activity should or should not be

subject to regulation under SMCRA. A decision whether to regulate the

proposed railroad under the Arizona program will be made separately

from the decision to adopt a Federal program and, if necessary, will be

subject to separate administrative and judicial review proceedings. The

question of which railroads are subject to regulation under SMCRA is a

separate issue and is beyond the scope of this rulemaking.

OSM agrees that any permit for railroad facilities under a Federal

program for Arizona may be considered for revision or termination based

on regulatory or policy changes. OSM will evaluate the effect of

regulatory or policy changes on other existing or proposed support

facilities at the time that such changes may occur. With respect to

termination of the Federal program for Arizona, Federal programs may be

terminated under 30 CFR Sec. 736.16 provided that a State program has

been approved under 30 CFR Part 732. Terminations could possibly also

be accomplished if OSM determines that such a program is not needed.

The commenter stated that OSM should expressly acknowledge that its

action is in no way intended to affect, much less preempt, IBLA Case

No. 94-366 or the national rulemaking proceeding regarding railroads.

OSM agrees with the commenter. OSM is establishing a Federal program in

Arizona to allow for regulation of any surface coal mining operations

that may occur independently of and without any intent to affect or

preempt any pending proceedings on railroad regulatory issues or on any

rulemaking proceeding regarding railroads.

Another commenter provided the following comments which consist of

corrections to State statutes and regulations referenced in the

proposed Arizona Federal program rule:

Reference to the Arizona Department of Agriculture and Horticulture

should be changed to read: ``Arizona Department of Agriculture;''

Reference to the Arizona Department of Health Services should be

changed to read: ``Arizona Department of Environmental Quality;'' Under

item (3) in the table included in Sec. 903.773(b), add the following

State law equivalent to the Resource Conservation and Recovery Act:

``A.R.S. Title 49, Secs, 921-932.''

These suggested corrections/additions have been added to this final

rule.

This commenter also questioned whether, under Sec. 903.700(f), all

cited sections of the Arizona open Pits mining statute (A.R.S. Sections

27-421 to 27-425) are truly less stringent than SMCRA, as indicated in

the proposed rule. As mentioned earlier, OSM has reevaluated the cited

sections of the subject Act and finds that such preemption is not

required at this time.

IV. Procedural Matters

Federal Paperwork Reduction Act

This rule does not contain collections of information which require

approval by the Office of Management and Budget under 44 U.S.C. 3501 et

seq.

Executive Order 12866

This rule has been reviewed under Executive Order 12866.

Regulatory Flexibility Act

The Department of the Interior has determined pursuant to the

Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that this rule will

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

entities because no small entities are expected to apply for permits

under the Arizona Federal Program and the total number of permits

applied for under the program is expected to be very small.

National Environmental Policy Act

Section 702(d) of SMCRA provides that promulgation of a Federal

program shall not constitute a major Federal action under the National

[[Page 18716]] Environmental Policy Act, 42 U.S.C. 433. Thus, no

environmental assessment or environmental impact statement is required

for this rulemaking.

Executive Order 12778 (Civil Justice Reform)

This rule has been reviewed under the applicable standards of

section 2(b)(2) of Executive Order 12778, ``Civil Justice Reform'' (56

FR 55195). In general, the requirements of section 2(b)(2) are covered

by the preamble discussion of this rule. Individual elements of the

order are addressed below:

A. What would be the preemptive effect, if any, to be given to the

regulation?

As provided for under SMCRA, the regulatory program has a

preemptive effect with respect to State laws and regulations less

stringent than SMCRA (see above under Discussion of Final Rule).

B. What would be the effect of the regulation on existing Federal

law or regulation, if any, including all provisions repealed or

modified?

The regulations being adopted implement SMCRA in the State of

Arizona, described herein, and are not intended to modify the

implementation of any other Federal statute. The preceding discussion

of this rule specifies the Federal regulatory provisions that are

affected by this rule.

C. Would the regulation provide a clear and certain legal standard

for affected conduct rather than a general standard, while promoting

simplification and burden reduction?

The standards established by this rule are as clear and certain as

practicable, given the complexity of the topics covered and the

mandates of SMCRA.

D. What would be the retroactive effect, if any, to be given to the

regulations?

There would be no retroactive effect to the final regulation.

E. Are administrative proceedings required before parties may file

suit in court? Which proceedings apply? Is the exhaustion of

administrative remedies required?

No administrative proceedings are required before parties may file

suit in court challenging the provisions of this rule. Prior to any

judicial challenge to the application of the rule, however,

administrative procedures must be exhausted. Applicable administrative

procedures may be found at 43 CFR Part 4.

F. Would the proposed action define key terms, either explicitly or

by reference to other regulations or statutes that explicitly define

those items?

Terms which are important to the understanding of this rule are set

forth at 30 CFR 700.5, 701.5, and 740.5.

G. Would the regulation address other important issues affecting

clarity and general draftsmanship of regulations set forth by the

Attorney General, with the concurrence of the Director of the Office of

Management and Budget, that are determined to be in accordance with the

purposes of the Executive Order?

The Attorney General and the Director of the Office of Management

and Budget have not issued any guidance on this requirement.

Author

The principal authors of these final regulations are James B.

Smith, Regulatory Programs Branch, Albuquerque Field Office, 500

Marquette Ave. NW, Suite 1200, Albuquerque, NM 87110; and Fred Block,

Branch of Federal and Indian Programs, Division of Regulatory Programs,

Office of Surface Mining Reclamation and Enforcement, 1951 Constitution

Avenue NW, Washington, DC 20240.

List of Subjects in 30 CFR Part 903

Coal mining, Intergovernmental relations, Surface mining,

Underground mining, Reporting and recordkeeping requirements.

Dated: April 4, 1995.

Bob Armstrong,

Assistant Secretary--Land and Minerals Management.

Accordingly, OSM is amending 30 CFR Chapter VII, Subchapter T as

set forth below:

1. Part 903 is added to read as follows:

PART 903--ARIZONA

Sec.

903.700 Arizona Federal Program.

903.701 General.

903.702 Exemption for coal extraction incidental to the extraction

of other minerals.

903.707 Exemption for coal extraction incident to government-

financed highway or other construction.

903.736 Permit fees.

903.761 Areas designated unsuitable for surface coal mining by act

of Congress.

903.762 Criteria for designating areas as unsuitable for surface

coal mining operations.

903.764 Process for designating areas unsuitable for surface coal

mining operations.

903.772 Requirements for coal exploration.

903.773 Requirements for permits and permit processing.

903.774 Revision; renewal; and transfer, assignment, or sale of

permit rights.

903.775 Administrative and judicial review of decisions.

903.777 General content requirements for permit applications.

903.778 Permit applications--Minimum requirements for legal,

financial, compliance, and related information.

903.779 Surface mining permit applications--Minimum requirements

for information on environmental resources.

903.780 Surface mining permit applications--Minimum requirements

for reclamation and operation plan.

903.783 Underground mining permit applications--Minimum

requirements for information on environmental resources.

903.784 Underground mining permit applications--Minimum

requirements for reclamation and operation plan.

903.785 Requirements for permits for special categories of mining.

903.795 Small operator assistance program.

903.800 Bond and insurance requirements for surface coal mining and

reclamation operations under regulatory programs.

903.815 Performance standards--Coal exploration.

903.816 Performance standards--Surface mining activities.

903.817 Performance standards--Underground mining activities.

903.819 Special performance standards--Auger mining.

903.822 Special performance standards--Operations in alluvial

valley floors.

903.823 Special performance standards--Operations on prime

farmland.

903.824 Special performance standards--Mountaintop removal.

903.827 Special performance standards--Coal preparation plants not

located within the permit area of a mine.

903.828 Special performance standards--In situ processing.

903.842 Federal inspections.

903.843 Federal enforcement.

903.845 Civil penalties.

903.846 Individual civil penalties.

903.955 Certification of blasters.

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

Sec. 903.700 Arizona Federal Program.

(a) This part establishes a Federal program under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA) and applies to all

coal exploration and surface coal mining and reclamation operations in

Arizona conducted on non-Federal and non-Indian lands. To the extent

required by 30 CFR Part 740, this part also applies to surface coal

mining and reclamation operations on Federal lands in Arizona.

(b) Some rules in this part cross-reference pertinent parts of the

permanent program rules in this chapter. The full text of a cross-

referenced rule is in the permanent program rule cited under the

relevant section of the Arizona Federal program.

more stringent environmental control and regulation of some aspects of

surface [[Page 18717]] coal mining and reclamation operations than do

the provisions of the Surface Mining Control and Reclamation Act of

1977, and the regulations in this chapter. Therefore, pursuant to

section 505(b) of the Act, OSM will not generally construe such laws to

be inconsistent with the Act, unless in a particular instance OSM

determines that the rules in this chapter establish more stringent

environmental or land use controls:

(1) The Arizona Department of Agriculture has authority to abate

public nuisances, including noxious weeds and noxious weed seeds, under

A.R.S. Section 3-231 to 3-242. Violation of this statute is a

misdemeanor.

(2) It is unlawful to injure any bird or harass any bird upon its

nest or remove the nests or eggs of any bird without prior

authorization of the Arizona Game and Fish Commission. A.R.S. Section

17-236.

(3) A bridge, dam, dike or causeway may not be constructed over or

in a navigable river or other navigable water without the authorization

of the Governor. A.R.S. Section 18-301.

(4) The Department of Mineral Resources has jurisdiction over the

mining of minerals, and oil and gas under Title 27 of the Arizona

Revised Statutes. One of the functions of that Department is the

prevention and elimination of hazardous dust conditions. A.R.S. Section

27-128. Violation of orders of State mine inspectors respecting dust

prevention and control is a misdemeanor.

(5) Roads leading into waste dump areas and tailing areas from

inhabited or public areas are required to be blocked off and warning

signs posted on the perimeter of such areas. A.R.S. Section 27-317.

(6) The primary responsibility for the control and abatement of air

pollution rests with the Arizona Department of Environmental Quality

and its Hearing Board. The Department is responsible for the

establishment and enforcement of air pollution emission standards and

ambient air quality standards as a part of a comprehensive air quality

plan for Arizona. A.R.S. Title 49.

(7) The Arizona Department of Water Resources has jurisdiction over

State water, including ``surface waters.'' ``Surface waters'' means

``the waters of all sources, flowing in streams, canyons, ravines or

other natural channels, or in definite underground channels, whether

perennial or intermittent, flood, waste or surplus water, and of lakes,

ponds and springs on the surface. For the purposes of administering

this title, surface water is deemed to include Central Arizona Project

Water.'' A.R.S. Section 45-101. It is a misdemeanor to knowingly use

the water of another, or divert water from a stream, waste water or

obstruct water flowing into a water work. A.R.S. Section 45-112.

Possession of water lawfully denied to the possessor is prima facie

evidence of one's guilt. A.R.S. Section 45-112. If water is to be used

for mining purposes the water rights may be severed from the land

rights and transferred separately. The separation and transference of

water rights is subject to numerous limitations, under A.R.S. Section

45-172.