Utah Regulatory Program and Utah Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

[UT-035-FOR]

Utah Regulatory Program and Utah Abandoned Mine Land Reclamation

Plan

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

ACTION: Final rule; approval of amendment.

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

is approving a proposed amendment to the Utah regulatory program and

Utah abandoned mine land reclamation (AMLR) plan (hereinafter, the

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

Reclamation Act of 1977 (SMCRA). Utah proposed revisions to and

additions of statutes pertaining to the definition for ``adjudicative

proceeding''; schedule of applicant's mining law violations and

remining operation violations resulting from unanticipated events or

conditions; location of informal conferences; performance standards for

all coal mining and reclamation operations and approximate original

contour variances for surface coal mining operations; requirements

regarding surface effects of underground coal mining, repair or

compensation for damage, replacement of water, suspension of

underground mining upon finding of immediate danger to inhabitants at

the surface, and applicability to other chapters; contest of violation

or amount of civil penalty; and lands and waters eligible for

expenditure of AMLR funds. The amendment was intended to revise the

Utah program and plan to be consistent with SMCRA and to improve

operational efficiency.

EFFECTIVE DATE: August 4, 1997.

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Chief, Denver Field Division; telephone: (303) 844-

1424; Internet address: WWW.JFULTONOSMRE.GOV.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program and Plan

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

approved the Utah program; on June 3, 1983, the Secretary approved the

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

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, and June 3, 1983, publications of the Federal

Register (46 FR 5899 and 48 FR 24876). Subsequent actions concerning

Utah's program and program amendments can be found at 30 CFR 944.15,

944.16, and 944.30. Subsequent actions concerning Utah's plan

amendments can be found at 30 CFR 944.25.

II. Proposed Amendment

By letter dated May 27, 1997, Utah submitted a proposed amendment

to its program and plan (administrative record No. UT-1090) pursuant to

SMCRA (30 U.S.C. 1201 et seq.). Utah submitted the proposed amendment

in response to required program amendments at 30 CFR 944.16 (e) through

(i), in response to a June 5, 1996, letter (administrative record No.

UT-1083) that OSM sent to Utah in accordance with 30 CFR 732.17(c), and

at its own initiative. The provisions of the Utah coal mining and

reclamation statute that Utah proposed to revise or add were: Utah Code

Annotated (UCA) 40-10-3(1), definition for ``adjudicative proceeding'';

UCA 40-10-11 (3) and (5), schedule of applicant's mining law violations

and remining operation violations resulting from unanticipated events

or conditions; UCA 40-10-13(2), location of informal conferences; UCA

40-10-17 (2), (3), and (4), performance standards for all coal mining

and reclamation operations and approximate original contour variances

for surface coal mining operations; UCA 40-10-18 (1) through (15),

18.1, and 18.2, requirements regarding surface effects of underground

coal mining, repair or compensation for damage, replacement of water,

suspension of underground mining upon finding of immediate danger to

inhabitants at the surface, and applicability of other chapter

provisions; UCA 40-10-20(2) (2)(e), contest of violation or amount of

civil penalty; and UCA 40-10-25(6), lands and waters eligible for

expenditure of AMLR funds.

OSM announced receipt of the proposed amendment in the June 13,

1997, Federal Register (62 FR 32255), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. UT-1095).

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

The public comment period ended on July 14, 1997.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA, 30 CFR

732.15 and 732.17, and 30 CFR 884.14 and 884.15, finds that the

proposed program and plan amendment submitted by Utah on May 27, 1997,

is no less stringent than SMCRA and consistent with SMCRA. Accordingly,

the Director approves the proposed amendment.

1. Nonsubstantive Revisions to Utah's Statutes

Utah proposed revisions to the following previously-approved

statutes concerning underground mining that are nonsubstantive in

nature and consist of minor editorial, punctuation, grammatical, and

recodification changes (corresponding SMCRA provisions are listed in

parentheses):

UCA 40-10-17 (2) (j)(ii)(B), (p) (ii) and (iii); (3) (a) and (c);

and (4), (4) (a) and (d), performance standards for all coal mining and

reclamation operations, and approximate original contour variances for

surface coal mining operations (sections 515 (b) (10)(B)(ii), (16) (B)

and (C); (c) (2) and (6); and (d), (d) (1) and (4) of SMCRA),

UCA 40-10-18(1), adoption of rules for control of surface effects

of underground coal mining operations (section 516(a) of SMCRA),

UCA 40-10-18(2), requirements for underground coal mining permits

(section 516(b) of SMCRA),

UCA 40-10-18(3) (a), (a) (i) through (iii), and (b), prevention of

subsidence effects (section 516(b)(1) of SMCRA),

UCA 40-10-18(4), filling or sealing of portals, entryways, drifts,

shafts, or other openings (section 516(b)(2) of SMCRA),

UCA 40-10-18(5), sealing of exploratory holes and return of mine

waste to mine workings or excavations (section 516(b)(3) of SMCRA),

UCA 40-10-18(6) (a), (b), and (b) (i) through (iii), surface

disposal of mine waste (section 516(b)(4) of SMCRA),

UCA 40-10-18(7), dams or embankments constructed of coal mine waste

(section 516(b)(5) of SMCRA),

UCA 40-10-18 (8), (8) (a) and (b), revegetation (section 516(b)(6)

of SMCRA),

UCA 40-10-18(9), protection of offsite areas from damage (section

516(b)(7) of SMCRA),

UCA 40-10-18(10), elimination of fire hazards and public health and

safety hazards (section 516(b)(8) of SMCRA),

UCA 40-10-18 (11), (11)(a), and (11)(a) (i) through (iii),

minimization of disturbances of the prevailing hydrologic balance

(section 516(b)(9)(A) of SMCRA),

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UCA 40-10-18(11) (b) and (c), prevention of additional

contributions of suspended solids to streamflow and avoidance of

channel deepening or enlargement (section 516(b)(9)(B) of SMCRA),

UCA 40-10-18(12) (a), (a) (i) through (iii), and (b), applicability

of UCA 40-10-17 for roads, structures, and facilities, and

accommodation in requirements to take into account the distinct

differences between surface and underground coal mining methods

(section 516(b)(10) of SMCRA),

UCA 40-10-18(13), minimization of adverse impacts to fish,

wildlife, and related environmental values (section 516(b)(11) of

SMCRA),

UCA 40-10-18(14), prevention of acid mine drainages (section

516(b)(12) of SMCRA),

UCA 40-10-18(15)(a), requirements for underground coal mining

operations conducted after October 24, 1992 (section 720(a) of SMCRA),

UCA 40-10-18(15)(b) (i) through (iv), repair or compensation for

damage caused by subsidence to occupied residential dwellings, related

structures, and noncommercial buildings (section 720(a)(1) of SMCRA),

UCA 40-10-18(15)(d), nothing to be construed in UCA 40-10-18(15) to

prohibit or interrupt underground coal mining operations (section

720(a)(2) of SMCRA),

UCA 40-10-18(15)(e), adoption of rules within 1 year to implement

UCA 40-10-18(15) (section 720(b) of SMCRA),

UCA 40-10-18.1, suspension of underground coal mining upon finding

of immediate danger to inhabitants at the surface (section 516(c) of

SMCRA), and

UCA 40-10-18.2, applicability of other chapter provisions (section

516(d) of SMCRA).

Because the proposed revisions to these previously-approved Utah

statutes are nonsubstantive in nature, the Director finds that these

proposed Utah statutes are no less stringent than SMCRA. The Director

approves these proposed statutes.

2. Substantive Revisions to Utah's Statute That Are Substantively

Identical to the Corresponding Provisions of SMCRA

Utah proposed revisions to UCA 40-10-25(6)(b), concerning remined

lands eligible for AMLR expenditures, that are substantive in nature

and contain language that is substantively identical to requirements in

section 404 of SMCRA. Because the proposed Utah statute is

substantively identical to the corresponding provision of SMCRA, the

Director finds that it is no less stringent than SMCRA. The Director

approves the proposed revisions to UCA 40-10-25(6)(b).

3. UCA 40-10-3(1), Definition of ``Adjudicative Proceeding''

On July 19, 1995, OSM at 30 CFR 944.16(e) required Utah to revise

its definition of ``adjudicative proceeding'' at UCA 40-10-3(1) to

include judicial review of agency actions (finding No. 3, 60 FR 37002,

37004-37005).

In this amendment, Utah proposed to revise the definition of

``adjudicative proceeding'' at UCA 40-10-3(1) to recodifying existing

UCA 40-10-3(1) as UCA 40-10-3(1)(a) and making minor, nonsubstantive,

editorial revisions to it; and adding a new UCA 40-10-3(1)(b) so that

``adjudicative proceeding'', in part, means ``judicial review of a

division or board ((Division or Board of Oil, Gas and Mining)) action

or proceeding specified in Subsection (a)''.

The Director finds that the proposed definition of ``adjudicative

proceeding'' at UCA 40-10-3(1)(b) is consistent with: the definition of

the same term at UCA 63-46b-2(1)(a), as clarified at UCA 63-46b-1, of

the Utah Administrative Procedures Act (UAPA); the definition of the

same term in the rules at Utah Administrative Rule (Utah Admin. R) 641-

100-200 implementing UAPA; and UCA 40-10-30(1), which provides for the

judicial review of the Division's and Board's adjudicative proceedings.

The Director approves the proposed revisions to the definition of

``adjudicative proceeding'' at UCA 40-10-3 (1), (1) (a) and (b) and

removes the required amendment at 30 CFR 944.16(e).

4. UCA 40-10-11(3), Review of Applicant Violations Prior to Permit

Issuance

In the July 19, 1995, Federal Register (finding No. 7, 60 FR 37002,

37006), OSM placed two required amendments on the Utah program. At 30

CFR 944.16(f), OSM required Utah to revise UCA 40-10-11(3) to require

that (1) the schedule of the applicant's mining law violations required

in connection with a permit application includes violations of SMCRA

and the implementing Federal regulations and (2) the pattern of

violations determination discussed therein includes violations of

SMCRA, the implementing Federal regulations, any State or Federal

programs enacted under SMCRA, and other provisions of the approved Utah

program.

In response to the required amendment at 30 CFR 944.16(f)(1), Utah

proposed to add the phrase ``the Surface Mining Control and Reclamation

Act of 1977 or its implementing regulations'' to the first sentence of

UCA 40-10-11(3). As proposed, the sentence requires permit applicants

to file a schedule listing any and all notices of violation of ``the

Surface Mining Control and Reclamation Act of 1977 or its implementing

regulations'', this chapter (UCA 40-10), any State or Federal program

or law approved under SMCRA, and any law, rule, or regulation of the

United States or Utah pertaining to air or water environmental

protection incurred by the applicant in connection with any surface

coal mining operation during the 3-year period prior to the date of

application. The Director finds that the proposed addition of the

phrase ``the Surface Mining Control and Reclamation Act of 1977 or its

implementing regulations'' makes the first sentence of UCA 40-10-11(3)

no less stringent than the corresponding requirement of section 510(c)

of SMCRA and satisfies the required amendment at 30 CFR 944.16(f)(1).

Therefore, the Director approves this revision to UCA 40-10-11(3) and

removes the required amendment at 30 CFR 944.16(f)(1).

Utah also proposed in the third sentence of UCA 40-10-11(3) to (1)

make a substantive revision by adding the phrase ``and regulation'' and

(2) make a clarifying nonsubstantive revision by referring to ``this

Subsection (3)'' instead of ``this Subsection''. As proposed, the

sentence requires that a permit not be issued if the schedule or other

information available to the Division indicates that any surface coal

mining operation owned or controlled by the applicant is in violation

of this chapter (UCA 40-10) or the laws ``and regulations'' referred to

in ``this Subsection (3)'' (UCA 40-10-11(3)). The substantive revision

is consistent with the first sentence of UCA 40-10-11(3), which not

only requires compliance with this chapter and various laws, but also

various regulations. The corresponding requirement of section 510(c) of

SMCRA is that a permit not be issued if the schedule or other

information available to the regulatory authority indicates that any

surface coal mining operation owned or controlled by the applicant is

in violation of ``this Act'' (SMCRA) or such other laws referred to in

section 510(c) of SMCRA. The reference to ``this Act'' in section

510(c) of SMCRA includes SMCRA, the implementing Federal regulations at

30 CFR Chapter VII, and all State and Federal programs approved under

SMCRA (48 FR 44389, September 28, 1983, and 45 FR 82223, December 15,

1980). With the proposed addition of the phrase ``and regulations'',

the third

[[Page 41847]]

sentence of UCA 40-10-11(3) requires compliance with the same laws and

regulations as the corresponding requirement of section 510(c) of

SMCRA. Therefore, the Director finds that the revised third sentence of

UCA 40-10-11(3) is no less stringent than the corresponding requirement

of section 510(c) of SMCRA. The Director approves the proposed

revisions to UCA 40-10-11(3).

In this amendment, Utah did not, in response to the required

amendment at 30 CFR 944.16(f)(2), propose to revise the second half of

the third sentence of UCA 40-10-11(3) that still requires that no

permit be issued if the applicant or operator controls or has

controlled mining operations with a demonstrated pattern of willful

violations of ``this chapter'' (UCA 40-10). As explained in the July

19, 1995, Federal Register (finding No. 7, 60 FR 37002, 37006), ``this

chapter'' encompasses only violations of the State statute. It does

not, as required by section 510(c) of SMCRA, encompass violations of

SMCRA, the implementing Federal regulations, any State and Federal

programs enacted under SMCRA, or other provisions of the approved Utah

program. Because the second half of the third sentence of UCA 40-10-

11(3) is still less stringent than section 510(c) of SMCRA, the

Director lets stand the required amendment at 30 CFR 944.16(f)(2).

5. UCA 40-10-11(5)(a), Remining Operation Violations Resulting From

Unanticipated Events or Conditions

In the July 19, 1995, Federal Register (finding No. 8, 60 FR 37002,

37006), OSM at 30 CFR 944.16(g) required Utah to revise UCA 40-10-

11(5)(a) to reflect an effective date ``after October 24, 1992''.

In response to the required amendment, Utah proposed in this

amendment at UCA 40-10-11(5)(a) that after October 24, rather than 14,

1992, the prohibition of UCA 40-10-11(3) for issuing permits does not

apply to a permit application, if the violation resulted from an

unanticipated event or condition that occurred at a surface coal mining

operation on lands eligible for remining under a permit held by the

person making the application. The Director finds that the proposed

date change makes UCA 40-10-11(5)(a) substantively identical to section

510(e) of SMCRA and satisfies the required amendment at 30 CFR

944.16(g). Therefore, the Director approves this proposed revision to

UCA 40-10-11(5)(a) and removes the required amendment at 30 CFR

944.16(g).

6. UCA 40-10-13(2)(b), Location of Informal Conferences

In the July 19, 1995, Federal Register (finding No. 9, 60 FR 37002,

37006-37007), OSM at 30 CFR 944.16(h) required Utah to revise UCA 40-

10-13(2)(b) to require that informal conferences for permits and permit

revisions ``shall'', instead of ``may'', be held in the locality of the

coal mining and reclamation operation if requested within a reasonable

time after written objections or the request for an informal conference

are received by the Division.

In response to the required amendment at 30 CFR 944.16(h), Utah

proposed to change ``may'' to ``shall'' in UCA 40-10-13(2)(b). Utah, at

its own initiative, also proposed a nonsubstantive revision to

previously approved language at UCA 40-10-13(2)(b). It proposed that

the informal conference shall be conducted in accordance with the

procedures described in ``this Subsection (b)'', instead of

``Subsection (b)'', irrespective of the requirements of section 63-46b-

5, the Utah Administrative Procedures Act. In making this revision,

Utah clarified that the reference is to UCA 40-10-13(2)(b) itself

rather than another subsection of Utah's statute.

The Director finds that Utah's proposed revisions to USA 40-10-

13(2)(b) are no less stringent than section 513(b) of SMCRA. Therefore,

the Director approves the proposed revision to UCA 40-10-13(2)(b) and

removes the required amendment at 30 CFR 944.16(h).

7. UCA 40-10-18(15)(c), Water Replacement by Operators of Underground

Coal Mines

Utah proposed new UCA 40-10-18(15)(c) as follows:

(c) Subject to the provisions of Section 40-10-29, the permittee

shall promptly replace any state-appropriated water in existence

prior to the application for a surface coal mining and reclamation

permit, which has been affected by contamination, diminution, or

interruption resulting from underground coal mining operations.

For the reasons discussed below, the Director finds that proposed

UCA 40-10-18(15)(c) is no less stringent than sections 720(a)(2) and

717(a) of SMCRA. Therefore, the Director approves the proposed addition

of UCA 40-10-18(15)(c).

a. The Phrase ``Subject to the Provisions of Section 40-10-29''

In UCA 40-10-18(15)(c), Utah proposed water replacement provisions

that are ``Subject to the provisions of Section 40-10-29''. In a

January 29, 1997, letter to OSM (administrative record No. UT-1094),

Utah clarified that the phrase ``Subject to the provisions of Section

UCA 40-10-29'' was intended as a reference to subsection (1) of UCA 40-

10-29.

UCA 40-10-29(1) states that ``[n]othing in this chapter shall be

construed as affecting in any way the right of any person to enforce or

protect, under applicable law, his interest in water resources affected

by a surface coal mining operation.'' This requirement is substantively

identical to section 717(a) of SMCRA.

Utah explained that the phrase ``Subject to the provisions of

Section 40-10-29'' was included in UCA 40-10-18(15)(c) expressly at the

request of Utah water users because they wanted to make it clear that

the water replacement provisions of UCA 40-10-18 supplement, rather

than replace, any common law or other statutory remedies otherwise

available to them (administrative record No. UT-1094). Utah also stated

that its own interpretation is that the underground mine water

replacement requirements of proposed UCA 40-10-18(15)(c) are intended

to supplement, not replace, any other remedies that may be available to

water users.

On the basis of this rationale, the Director finds that the phrase

``Subject to the provisions of Section 40-10-29'' in proposed UCA 40-

10-18(15)(c) is consistent with the requirements of sections 720(a)(2)

and 717(a) of SMCRA.

b. Replacement of State-Appropriated Water

In UCA 40-10-18(15)(c), Utah proposed that ``the permittee shall

promptly replace any state-appropriated water in existence prior to the

application for a surface coal mining and reclamation permit, which has

been affected by contamination, diminution, or interruption resulting

from underground coal mining operations'' (emphasis added). This

proposed provision is the same as the counterpart provision at section

720(a)(2) of SMCRA, except that the SMCRA provision protects ``any

drinking, domestic, or residential water supply from a well or spring''

instead of ``any state-appropriated water''.

Utah explained that, under Utah water law, ``a person or entity

cannot be a `legitimate' water user if he/she/it is using water that

not has been appropriated by the State''. Utah then went on to explain

that ``[t]he deliberately broad phrase `any state-appropriated water'

covers the universe of legal Utah water users * * * '' (administrative

record No. UT-1094).

[[Page 41848]]

OSM interprets sections 720(a)(2) and 717(a) of SMCRA to mean that

the water replacement requirements of section 720(a)(2) do not

supersede the deference provided by section 717 to State water law on

matters of allocation and use. (See March 31, 1995, 60 FR 16722,

16733.) Utah's proposed phrase ``any state-appropriated water''

incorporates this concept of deferral to State water law provisions

concerning allocation and use, as set forth in section 717(a) of SMCRA,

while protecting drinking, domestic, or residential water supplies from

wells or springs, as required by section 720(a)(2) of SMCRA.

Furthermore, the proposed term ``any state-appropriated water''

protects more types of water supplies than drinking, domestic, or

residential water supplies from wells or springs. For instance, it

protects agricultural, commercial, and industrial water supplies that

are not used for direct human consumption, human sanitation, or

domestic use. In this respect, proposed USA 40-10-18(15)(c) is more

stringent than section 720(a)(2) of SMCRA.

For these reasons, the Director finds that the proposed

requirements in UCA 40-10-18(15)(c) that ``the permittee shall promptly

replace any state-appropriated water in existence prior to the

application for a surface coal mining and reclamation permit, which has

been affected by contamination, diminution, or interruption resulting

from underground coal mining operations'' are no less stringent than

the requirements of sections 720(a)(2) and 717(a) of SMCRA.

8. UCA 40-10-20(2)(e)(ii), Contest of Violation or Amount of Civil

Penalty

In the September 27, 1994, Federal Register, the Director deferred

decision on a proposed revision to UCA 40-10-20(2) (finding No. 5, 59

FR 49185, 49187). Subsequently, in the July 19, 1995, Federal Register

(finding No. 13, 60 FR 37002, 37008), OSM placed a required amendment

on the revised version of the same section of the Utah program. At 30

CFR 944.16(i), OSM required Utah to revise UCA 40-10-20(2)(e)(ii) to

provide for a waiver of the operator's right to contest the amount of

the civil penalty when the operator fails to forward the amount of the

penalty to the regulatory authority within 30 days of the operator's

receipt of the results of the informal conference.

In response to the Director's decision deferral and the required

amendment at 30 CFR 944.16(i), Utah proposed to add the phrases ``fact

of the'' and ``amount of the civil penalty assessed for the'' to UCA

40-10-20(2)(e)(ii). The proposed provision requires that if the

operator fails to forward the amount of the civil penalty to the

Division within 30 days of receipt of the results of the informal

conference, the operator waives any opportunity for further review of

the ``fact of the'' violation or to contest the ``amount of the civil

penalty assessment for the'' violation.

The Director finds that the proposed addition of the phrases ``fact

of the'' and ``amount of the civil penalty assessed for the'' make UCA

40-10-20(2)(e)(ii) no less stringent than the counterpart requirements

of section 518(c) of SMCRA.

Utah's proposed revisions to the civil penalty procedures at UCA

40-10-20-(2)(e)(ii) address the issues raised in the Director's

September 27, 1994, decision deferral and satisfy the required

amendment at 30 CFR 944.16(i). Therefore, the Director approves the

proposed revisions to UCA 40-10-20(2)(e)(ii) and removes the required

amendment at 30 CFR 944.16(i).

IV. Summary and Disposition of Comments

Following are summaries of all written comments on the proposed

amendment that were received by OSM, and OSM's responses to them.

1. Public Comments

In response to OSM's invitation for public comments, the Utah

Mining Association responded on June 25, 1997, that it supported the

proposed amendment and encouraged OSM to approve it (administrative

record No. UT-1096). It stated that it was heavily involved in the

drafting the two pieces of legislation that comprise the amendment. The

mining association indicated that it had worked closely with water

users on the legislation language and had worked with the State

Engineer to ensure that the legislation adequately protected water

rights.

2. Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), 884,15(a), and 884.14(a)(2),

OSM solicited comments on the proposed amendment from various Federal

agencies with an actual or potential interest in the Utah program and

plan.

The U.S. Fish and Wildlife Service, Utah Field Office, responded on

July 7, 1997, that it had received the proposed amendment but had no

comments on it (administrative record No. UT-1097).

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 amendments 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 Ct (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.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. UT-1091). It did

not respond to OSM's request.

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

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

UT-1091). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approved Utah's proposed

amendment as submitted on May 27, 1997.

The Director approves, as discussed in:

Finding No. 1, revisions to UCA 40-10-17 (2) (j)(ii)(B), (p) (ii)

and (iii), (3) (a) and (c), and (4), (4) (a) and (d), performance

standards for all coal mining and reclamation operations, and

approximate original contour variances for surface coal mining

operations; UCA 40-10-18(1), adoption of rules for control of surface

effects of underground coal mining operations; UCA 40-10-18(2),

requirements for underground coal mining permits; UCA 40-10-18(3) (a),

(a) (i) through (iii), and (b), prevention of subsidence effects; UCA

40-10-18(4), sealing of portals, entryways, drifts, shafts, or other

openings; UCA 40-10-18(5), filling or sealing of exploratory holes and

return of mine waste to mine workings or excavations; UCA 40-10-18(6)

(a), (b), and (b) (i) through (iii), surface disposal of mine waste;

UCA 40-10-18(7), dams or embankments constructed of coal mine waste;

UCA 40-10-18 (8), (8) (a) and (b), revegetation; UCA 40-10-18(9),

protection of offsite areas from damage; UCA 40-10-18(10), elimination

of fire hazards and public health and safety hazards; UCA 40-10-18

(11), (11)(a), and (11)(a) (i) through (iii), minimization of

disturbances of the prevailing hydrologic balance; UCA 40-10-18(11) (b)

and (c), prevention of additional contributions of suspended solids to

streamflow and avoidance of channel deepening or enlargement; UCA

[[Page 41849]]

40-10-18(12) (a), (a) (i) through (iii), and (b), applicability of UCA

40-10-17 for roads, structures, and facilities, and accommodation in

requirements to take into account the distinct differences between

surface and underground coal mining methods; UCA 40-10-18(13),

minimization of adverse impacts to fish, wildlife, and related

environmental values; UCA 40-10-18(14), prevention of acid mine

drainages; UCA 40-10-18(15)(a), requirements for underground coal

mining operations conducted after October 24, 1992; UCA 40-10-18(15)(b)

(i) through (iv), repair or compensation for damage caused by

subsidence to occupied residential dwellings, related structures, and

noncommercial buildings; UCA 40-10-18(15)(d), nothing to be construed

in UCA 40-10-18(15) to prohibit or interrupt underground coal mining

operations; UCA 40-10-18(15)(e), adoption of rules within 1 year to

implement UCA 40-10-18(15); UCA 40-10-18.1, suspension of underground

coal mining upon finding of immediate danger to inhabitants at the

surface; and UCA 40-10-18.2, applicability of other chapter provisions;

Finding No. 2, revisions to UCA 40-10-25(6)(b), remined lands

eligible for AMLR expenditures;

Finding No. 3, revisions to UCA 40-10-3 (1), (1) (a) and (b),

definition of ``adjudicative proceeding'';

Finding No. 4, revisions to UCA 40-10-11(3), review of applicant

violations prior to permit issuance;

Finding No. 5, revisions to UCA 40-10-11(5)(a), remining operation

violations resulting from unanticipated events or conditions;

Finding No. 6, revisions to UCA 40-10-13(2)(b), location of

informal conferences;

Finding No. 7, revisions to UCA 40-10-18(15)(c), water replacement

by operators of underground coal mines; and

Finding No. 8, revisions to UCA 40-10-20(2)(e)(ii), contest of

violation or amount of civil penalty.

The Federal regulations at 30 CFR Part 944, codifying decisions

concerning the Utah program and plan, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State program and plan amendment process and to encourage

States to bring their programs and plans into conformity with the

Federal standards without undue delay. Consistency of State and Federal

standards is required by SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

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

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

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

applicable to the actual language of State regulatory programs, State

AMLR plans, and program and plan amendments since each such program,

plan, and amendment 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 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 submittals are consistent with SMCRA and

its implementing Federal regulations and whether the other requirements

of 30 CFR parts 730, 731, and 732 have been met. Under Title IV SMCRA

(30 U.S.C. 1231-1243), decisions on proposed State AMLR plans and plan

amendments must be based on a determination of whether the submittals

meet the requirements of the implementing Federal regulations at 30 CFR

parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 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)).

No environmental impact statement is required for this rule since

agency decisions on proposed State AMLR plans and revisions thereof are

categorically excluded from compliance with the National Environmental

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

Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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.

6. Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface mining, Underground mining,

Abandoned mine reclamation programs.

Dated: July 23, 1997.

Peter A. Rutledge,

Acting 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 in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 944.15 Approval of Utah regulatory program amendments.

* * * * *

[[Page 41850]]

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

Original amendment submission date Date of final publication Citation/description

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

* * * * * *

*

May 27, 1997.............................. August 4, 1997............................ Definition of

``adjudicative

proceeding'' at UCA 40-

10-3(1), (a), (b); 40-

10-11 (3), (5)(a); 40-

10-13(2)(b); 40-10-17

(2) (j) (ii) (B), (p)

(ii), (iii), (3) (a),

(c), (4), (a), (d); 40-

10-18 (1), (2), (3)(a),

(i) through (iii), (b),

(4), (5), (6) (a), (b),

(i) through (iii), (7),

(8), (a), (b), (9),

(10), (11), (a), (i)

through (iii), (b),

(c), (12)(a), (i)

through (iii), (b),

(13), (14), (15)(a),

(b) (i) through (iv),

(c), (d), (e); 40-10-

18.1, .2, 40-10-

20(2)(e)(ii).

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

3. Section 944.16 is amended by removing and reserving paragraphs

(e) and (f)(1) and removing paragraphs (g), (h), and (i).

4. Section 944.25 is amended in the table by adding a new entry in

chronological order by ``Date of Final Publication'' to read as

follows:

Sec. 944.25 Approval of Utah abandoned mine land reclamation plan.

* * * * *

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

Original amendment submission date Date of final publication Citation/description

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

* * * * * *

*

May 27, 1997.............................. August 4, 1997............................ UCA 40-10-25(6)(b).

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

[FR Doc. 97-20401 Filed 8-1-97; 8:45 am]

BILLING CODE 4310-05-M