Utah Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944

[SPATS No. UT-039-FOR]

Utah Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public

hearing on proposed amendment.

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

is announcing receipt of a proposed amendment to the Utah regulatory

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

Reclamation Act of 1977 (SMCRA). Utah's amendment proposes changes in

requirements for coal mine permit application approval in section 40-

10-11 of the Utah Code Annotated (UCA) (hereafter, also the ``Utah

Code''). The State proposes the changes to update language used to

describe the approval process and information documented during that

process. In addition, Utah proposes a change to subsection (f) of UCA

40-10-11(2) to clarify limitations on authority of the Division and to

the Board of Oil, Gas and Mining with respect to property right

disputes. Utah also proposes to revise provisions applicable to a

permit applicant's list of violations of air and water protection at

subsection (3) of section 40-10-11 in response to an amendment required

by OSM and described at 30 CFR 944.16(f)(2).

The amendment is intended to revise the Utah program to be

consistent with the Surface Mining Control and Reclamation Act of 1977

(SMCRA) regulations and to improve operational efficiency.

DATES: Written comments must be received by 4:00 p.m., m.d.t. August 7,

1998. If requested, a public hearing on the proposed amendment will be

held on August 2, 1998. Requests to present oral testimony at the

hearing must be received by 4:00 p.m., m.d.t. on July 23, 1998.

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ADDRESSES: Written comments should be mailed or hand delivered to James

F. Fulton at the address listed below.

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

comments received in response to this document will be available for

public review at the addresses listed below during normal business

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

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

Denver Field Division.

James F. Fulton, Chief, Denver Field Division, Office of Surface Mining

Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver,

Colorado 80202-5733, Telephone: (303) 844-1424.

Lowell P. Braxton, Acting Director, Division of Oil, Gas and Mining,

1594 West North Temple, Suite 1210, P.O. Box 145801, Salt Lake City,

Utah 84114-5801, Telephone: (801) 538-5340.

FOR FURTHER INFORMATION CONTACT:

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

1424.

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 June 8, 1998, (administrative record No. UT-1117)

Utah submitted a proposed amendment (SPATS No. UT-039-FOR,

administrative record No. 1117) to its program pursuant to SMCRA (30

U.S.C. 1201 et seq.). Utah submitted the proposed amendment at its own

initiative and in response to a requirement imposed by the Director

resulting from OSM's review of a previous amendment to the Utah Code.

The proposed amendment consists of revisions to UCA 40-10-11. This

section of the Utah Code pertains to actions by the Division of Oil,

Gas and Mining (the Division) to approve or deny coal mine permit

applications. It also includes provisions for considering, in the

permit approval/denial process, an applicant's violations of air and

water protection provisions and whether an area proposed for mining

includes prime farmlands.

Most of Utah's proposed changes reword existing provisions of UCA

40-10-11 in current writing style and break-up existing provisions into

subsections. In that context, specific changes Utah proposes include:

Revising existing UCA 40-10-11(1) to include new subsections (1)(a)(i)

and (ii), (1)(b), (1)(c), and (1)(c)(i) and (ii); revising UCA 40-10-

11(2)(d) to include new subsections 2(d)(i) and 2(d)(ii); adding new

subsections (e)(i)(A) and (B) to UCA 40-10-11(2)(e)(i); revising UCA

40-10-11(2)(f)(i) to include (f)(i)(A) and (B); changing UCA 40-10-

11(3) to include new subsections (3)(a)(i), (ii) and (3)(b) and (c);

and breaking-up existing UCA 40-10-11(4)(a)(i) and (ii). Utah also

proposes to update language under several parts of UCA 40-10-11(1),

(2), (3), (4) and (5).

In two cases, the State's proposed changes add new provisions to

the Utah Code. At UCA 40-10-11((2)(f)(i)(B), Utah proposes to add a

statement to the effect that nothing in UCA 40-10-11(2) shall be

construed ``* * * to authorize the board or division to adjudicate

property right disputes * * *'' in cases where permit applications

involve lands on which the mineral estate has been severed from the

private surface estate. Second, in new subsection (c) of UCA 40-10-

11(3), Utah proposes to preclude permit issuance in cases in which the

Board finds that an applicant or operator controls or has controlled

mining operations with a demonstrated pattern of willful violations of

SMCRA, the implementing regulations, or of any state or federal

programs enacted under SMCRA or under other provisions of the approved

Utah program, in addition to violations of the Utah Code. The State

proposes this new provision in response to the requirement described at

30 CFR 944.16(f)(2) that the Utah Code's provision for denying permits

on the basis of patterns of violations be no less stringent than the

Federal counterpart provision at section 510(c) of SMCRA. The required

amendment resulted from OSM's review of a previous amendment to the

Utah Code (UT-024-FOR; 60 FR 37002, July 19, 1995; administrative

record No. UT-1066). OSM later reiterated the need for Utah to amend

UCA 40-10-11(3) in its review of Code amendment UT-035-FOR (62 FR

41845, August 4, 1997; administrative record No. UT-1098).

III. Public Comment Procedures

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

seeking comments on whether the proposed amendment satisfies the

applicable program approval criteria of 30 CFR 732.15. If OSM finds the

amendment adequate, it will become part of the Utah program.

1. Written Comments

Written comments should be specific, pertain only to the issues

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

commenter's recommendations. OSM will not necessarily consider comments

in the final rulemaking that it receives after the time indicated under

``DATES'' or that it receives at locations other than the Denver Field

Division. OSM will not necessarily include such comments in the

admininstrative record, either.

2. Public Hearing

Persons wishing to testify at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

m.d.t. on July 23, 1998. Any disabled individual who has need for a

special accommodation to attend a public hearing should contact the

individual listed under FOR FURTHER INFORMATION CONTACT. OSM will

arrange the location and time of the hearing with those persons

requesting the hearing. OSM will not hold a public hearing if no one

requests an opportunity to testify at a hearing.

OSM requests that commenters file a written statement at the time

of the hearing because doing so will greatly assist the transcriber. If

commenters submit written statements in advance of the hearing, OSM

will be able to prepare adequate responses and appropriate questions.

The public hearing will continue on the specified date until all

persons scheduled to testify have been heard. Persons in the audience

who have not been scheduled to testify, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to testify and persons present in the

audience who wish to testify have been heard.

3. Public Meeting

OSM may hold a public meeting if only one person requests an

opportunity to testify at a public hearing. Persons wishing to meet

with OSM representatives to discuss the proposed amendment may request

a meeting by contacting the person listed under FOR FURTHER INFORMATION

CONTACT. All such meetings will be open to the public and, if possible

OSM will post notices of meetings at the locations listed under

ADDRESSES. OSM will make a written

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summary of each meeting part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

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

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

Review).

2. Executive Order 12988

The Department of the Interior conducted the reviews required by

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

determined that his 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 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 implementating Federal regulations and whether the other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

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

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

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

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior 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. 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.

Dated: June 29, 1998.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 98-18096 Filed 7-7-98; 8:45 am]

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