Utah Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of the 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: 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 (the

``Utah program'') under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). Utah proposed changes in its requirements for coal

mine permit application approval at section 40-10-11 of the Utah Code

Annotated (UCA, or the ``Utah Code''). The State proposed the changes

to update language used to describe the approval process and

information that needs to be documented during that process. In

addition, Utah proposed to change paragraph (f) of UCA 40-10-11(2) to

clarify limitations on the authority of the Division of Oil, Gas and

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

right disputes. Utah also proposed to revise provisions concerning a

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

provisions at subsection (3) of UCA 40-10-11 in response to an

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

amendment revised the Utah program to be consistent with the Surface

Mining Control and Reclamation Act of 1977 (SMCRA) regulations and to

improve operational efficiency.

EFFECTIVE DATE: November 16, 1998.

FOR FURTHER INFORMATION CONTACT:

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

1424; e-mail address: [email protected].

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

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.) by letter dated June 8, 1998. The State submitted

the proposed amendment at its own initiative and in response to a

requirement at 30 CFR 944.16(f)(2) imposed by the Director resulting

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

The proposed amendment consisted 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. UCA 40-10-11 also includes provisions for considering,

during the permit approval/denial process, an applicant's violations of

air and water protection provisions, whether an area proposed for

mining includes prime farmlands, and information related to land

ownership and the probable impacts of mining on the hydrologic balance.

Most of the changes Utah proposed reword existing provisions of UCA

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

subsections. In that context, specific changes included: Recodifying

existing provisions of UCA 40-10-11(1) as subsections (1)(a)(i) and

(ii), (1)(b), (1)(c), and (1)(c)(i) and (ii); recodifying existing

provisions of UCA 40-10-11(2)(d) to include subsections 1(d)(i) and

2(d)(ii); recodifying existing provisions of UCA 40-10-11(2)(e)(i) to

include subsections (e)(i)(A) and (B); recodifying, in part, existing

provisions of UCA 40-10-11(2)(f)(i) to include subsection (2)(f)(i)(A),

and adding new subsection (2)(f)(i)(B); recodifying existing provisions

of UCA 40-10-11(3) as subsections (3)(a)(i), (ii), and (3)(b) and (c);

and recodifying existing provisions of UCA 40-10-11(4)(a) as (4)(a)(i)

and (ii). Utah proposed to reword several parts of UCA 40-10-11(1),

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

In two cases, the State either expanded existing provisions of the

Utah Code or added a new provision. At UCA 40-10-11(2)(f)(i)(B), Utah

added a new statement to the effect that nothing in UCA 40-10-11(2)

shall be construed ``* * * to authorize the board or divisions to

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

applications involve lands on which the private mineral estate has been

severed from the private surface estate. Second, at recodified UCA 40-

10-11(3)(c), Utah proposed 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. Such a pattern includes 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 proposed this new

provision in response to the required amendment described at 30 CFR

944.16(f)(2). That section requires the Utah Code's provision for

denying permits on the basis of patterns of violations to 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).

OSM announced receipt of this proposed amendment in the July 8,

1998, Federal Register (63 FR 36868; administrative record No. UT-

1120). That announcement provided an opportunity for anyone to request

a public hearing or meeting on the amendment's substantive adequacy. It

also invited public comment on its

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adequacy. No one requested a public hearing or meeting, so OSM did not

hold either one. The public comment period ended on August 7, 1998.

III. Director's Findings

In accordance with SMCRA and 30 CFR 731.15 and 732.17, and as

discussed below, the Director finds that the proposed program amendment

submitted by Utah on June 8, 1998, is no less stringent than SMCRA.

Accordingly, the Director approves Utah's amendment.

1. Nonsubstantive Revisions to the Utah Code

Utah proposed revisions to the following previously approved

provisions of the Utah Code that are nonsubstantive in nature. These

proposed revisions consist of recodification changes. They also include

wording and punctuation changes made to reflect contemporary writing

style and to make the State's provisions clearer or more specific.

Corresponding SMCRA provisions are listed in parentheses.

UCA 40-10-11(1)(a)(i), (a)(ii), (1)(b), (1)(c), (c)(i), and

(c)(ii), decision to approve, deny, or require modification of a permit

application after receipt of a complete application and reclamation

plan (section 510(a) of SMCRA);

UCA 40-10-11(2), (2)(a), (2)(b), and (2)(c), required finding that

the permit application is complete and all requirements of UCA 40-10

have been complied with; required demonstration in the application and

finding by the Division as a prerequisite to Division approval that

reclamation requirements under UCA 40-10 can be accomplished; and

finding that an assessment has been made of mining's cumulative impacts

on the hydrologic balance and that the operation is designed to prevent

material damage to the hydrologic balance outside the permit area

(sections 510(b), (b)(1), (b)(2), and (b)(3) of SMCRA);

UCA 40-10-11(2)(d), (d)(i), and (d)(ii), demonstration in the

application and finding by the Division that the proposed mining area

is not in an area designated as unsuitable for mining or under study

for that designation (section 510(b)(4) of SMCRA);

UCA 40-10-11(2)(e), (2)(e)(i), (e)(i)(A), and (e)(i)(B),

demonstration in the application and finding by the Division that the

proposed mining will not adversely affect farming on alluvial valley

floors in certain cases (sections 510(b)(5) and (b)(5)(A) of SMCRA);

UCA 40-10-11(2)(e)(ii), demonstration in the application and

finding by the Division that the proposed mining will not materially

damage surface and ground water systems that supply alluvial valley

floors, with certain exceptions (section 510(b)(5)(B) of SMCRA);

UCA 40-10-11(2)(f), (2)(f)(i), and (f)(i)(A), requirement for the

surface owner's written consent to surface mining where the private

mineral estate has been severed from the private surface estate, with

the provision that UCA 40-10-11(2)(f) shall not be construed to change

any property right established under State law (section 510(b)(6) and

(b)(6)(A) of SMCRA, with no SMCRA counterpart to recodified UCA 40-10-

11(2)(f)(i)(A));

UCA 40-10-11(2)(f)(iii), requirement for an application to include

documentation, consistent with state law, that establishes the status

of the surface-subsurface legal relationship as an alternative to

including a conveyance expressly granting or reserving the right to

extract coal by surface mining in cases where the private surface

estate has been severed from the private mineral estate (section

510(b)(6)(C) of SMCRA);

UCA 40-10-11(3)(a)(i), (a)(ii), and (3)(b), requirement for an

applicant to submit a list of violations with the permit application

and for the Division to consider such violations in deciding to approve

or deny a permit (section 510(c) of SMCRA);

UCA 40-10-11(4)(a)(i), (a)(ii), and (4)(b), permit findings

required in some cases if the area proposed to be mined contains prime

farmland (section 510(d)(1) and (2) of SMCRA); and

UCA 40-10-11(5)(a), provision that the prohibition against permit

issuance at UCA 40-10-11(3) shall not apply to a permit application if

the violation resulted from an unanticipated situation that occurred at

a surface mine on lands eligible for remining under a permit held by

the person applying for a mining permit (section 510(e) of SMCRA).

Because the proposed revisions to these previously-approved

statutory provisions are nonsubstantive in nature, the Director finds

these proposed statutory provisions are no less stringent that SMCRA.

The Director approves these proposed changes to the Utah Code.

2. UCA 40-10-11(2)(f)(i)(B), Limitation on Division and Board Authority

in Property Rights Disputes

Utah proposed to add UCA 40-10-11(2)(f)(i)(B) to provide that

nothing in subsection (2) of UCA 40-10-11 shall be construed to

authorize the Board or Division to adjudicate property right disputes.

The counterpart provision in SMCRA is at section 510(b)(6)(C). The

State's proposed provision is very similar to the SMCRA provision

except for its reference to the ``Division'' and the ``Board'' not

having the power to adjudicate disputes, while SMCRA refers to the

``regulatory authority''. The Division is the regulatory authority in

Utah and the Board oversees the Division's activities, is the

rulemaking body, and hears appeals of actions taken by the Division.

UCA 40-10-6 describes the duties, functions, and powers of the Division

and Board but does not specifically describe their authority with

respect to property rights disputes, particularly those that might

arise when permit applications involve lands on which the private

surface estate is severed from the private mineral estate. Utah's

proposed addition of UCA 40-10-11(2)(f)(i)(B) provides the necessary

clarification of Division and Board authority in such cases and is

consistent with SMCRA in that respect.

For the reasons explained above, the Director finds Utah's proposed

addition of UCA 40-10-11(2)(f)(i)(B) to be consistent with, and no less

stringent than, the counterpart provision at section 510(b)(6)(C) of

SMCRA. Accordingly, the Director approves the proposed revision to the

Utah Code.

3. UCA 40-10-11(3)(c), List of Violations in Permit Applications

Utah proposed to revise UCA 40-10-11(3) in response to the required

amendment described at 30 CFR 944.16(f)(2). During its review of a

previous amendment to the Utah Code, OSM noted that the part of UCA 40-

10-11(3) dealing with patterns of violations only addressed violations

of the State statute. OSM explained that Utah's provision needed to

require consideration of other violations as well and cited previous

rulemaking in support of that explanation. Specifically, in finding No.

7 of the final rule announcing its approval of amendment UT-024-FOR (60

FR 37002, 37006, July 19, 1995; administrative record No. UT-1066), OSM

concluded that UCA 40-10-11(3) was less stringent than SMCRA. As a

result, OSM imposed a required amendment at 30 CFR 944.16(f)(2). That

subsection specifically required Utah to revise UCA 40-10-11(3) to

provide that the pattern of violations determination include violations

of SMCRA, the implementing Federal regulations, any State or Federal

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

program.

With this amendment, Utah's proposed change addresses the required

amendment at 30 CFR 944.16(f)(2) by

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revising UCA 40-10-11(3) to add a provision at new subsection (3)(c).

That provision requires including violations of SMCRA, the implementing

Federal regulations, any State or Federal programs enacted under SMCRA,

or other provisions of the approved Utah program in findings of

patterns of violations. As proposed, UCA 40-10-11(3)(c) is no less

stringent than the counterpart provision at section 510(c) of SMCRA and

satisfies the requirement described at 30 CFR 944.16(f)(2). The

Director approves Utah's revision at UCA 40-10-11(3)(c) and removes the

required amendment at 30 CFR 944.16(f)(2).

IV. Summary and Disposition of Comments

Following are summaries of all written comments OSM received on the

proposed amendment.

1. Public Comments

The Utah Mining Association responded in June 30, 1998, letter by

expressing its support for the proposed amendment and urging OSM to

approve it (administrative record No. UT-1121). The Mining Association

said it worked closely with the Division to develop the amendment and

was involved in its consideration and passage in the 1998 session of

the Utah Legislature. Also, the Mining Association stated that, in its

opinion, changes proposed in this amendment are consistent with SMCRA

and are supported by the Utah coal industry.

2. Federal Agency Comments

OSM solicited comments on the proposed amendment from various

Federal agencies with an actual or potential interest in the Utah

program, as required by 30 CFR 732.17(h)(11)(i).

The Utah Field Office of U.S. Department of the Interior, Fish and

Wildlife Service (FWS) responded in a letter dated July 20, 1998

(administrative record No. UT-1123). FWS offered no comments on the

proposed amendment.

3. Environmental Protection Agency (EPA) Concurrence and Comments

OSM is required by 30 CFR 732.17(h)(11)(ii) to solicit EPA's

written concurrence on provisions of the proposed amendment relating to

air and water quality standards promulgated under the authority of the

Clean Air Act (42 U.S.C. 7401 et seq.) or the Clean Water Act (33

U.S.C. 1251 et seq.). None of the changes Utah proposed in amendment

UT-039-FOR pertain to air or water quality standards. As a result, OSM

did not request EPA's concurrence.

Nevertheless, OSM solicited EPA's comments on the proposed

amendment as required by 30 CFR 732.17(h)(11)(i) (administrative record

No. UT-1118). OSM did not receive any comments from EPA.

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

on Historic Preservation (ACHP)

OSM solicited comments on the proposed amendment from the Utah SHPO

and the ACHP as required by 30 CFR 732.17(h)(4) (administrative record

No. UT-1118). OSM did not receive any comments from the SHPO or ACHP.

V. Director's Decision

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

amendment as submitted on June 8, 1998.

The Director approves, as discussed in: Finding No. 1, UCA 40-10-

11(1) through (1)(c)(ii), recodification and rewording of provisions

pertaining to the decision to approve, deny, or require modification of

a permit application after receipt of a complete application and

reclamation plan; UCA 40-10-11(2)(a), (b), and (c), reworded

requirement for a finding of permit application completeness and

compliance with UCA 40-10, for demonstration in the application and

finding by the Division that reclamation requirements under UCA 40-10

can be accomplished, and for a finding that an assessment has been made

of mining's cumulative impacts on the hydrologic balance and that the

operation is designed to prevent material damage to the hydrologic

balance outside the permit area; UCA 40-10-11(2)(d), (d)(i), and

(d)(ii), recodified and reworded requirement for a demonstration in the

application and finding by the Division that the proposed mining area

is not in an area designated as unsuitable for mining or under study

for that designation; UCA 40-10-11(2)(e), (e)(i), (e)(i)(A), (e)(i)(B),

recodified and reworded requirement for a demonstration in the

application and finding by the Division that the proposed mining will

not adversely affect farming on alluvial valley floors in certain

cases; UCA 40-10-11(2)(e)(ii), reworded requirement for a demonstration

in the application and finding by the Division that the proposed mining

will not materially damage surface and ground water systems that supply

alluvial valley floors, with certain exceptions; UCA 40-10-11(2)(f),

(f)(i), and (f)(i)(A), recodified and reworded requirement for the

surface owner's written consent to surface mining where the private

mineral estate has been severed from the private surface estate, with

the provision that UCA 40-10-11(2)(f) shall not be construed to change

any property right established under State law; UCA 40-10-

11(2)(f)(iii), reworded requirement for documentation in an application

establishing the status of the surface-subsurface legal relationship as

an alternative to a conveyance expressly granting or reserving the

right to extract coal by surface mining where the private surface

estate has been severed from the private mineral estate; UCA 40-10-

11(3)(a)(i), (a)(ii), and (3)(b), recodified and reworded requirement

for an applicant to submit a list of violations with the permit

application and for the Division to consider such violations in

deciding to approve or deny a permit; UCA 40-10-11(4)(a)(i), (a)(ii),

and (4)(b), recodified and reworded provision requiring permit findings

in some cases prime farmland to be mined; and UCA 40-10-11(5)(a),

reworded provision that the prohibition against permit issuance at UCA

40-10-11(3) shall not apply to a permit application if the violation

resulted from an unanticipated situation that occurred at a surface

mine on lands eligible for remining under a permit held by the person

applying for a mining permit; Finding No. 2, UCA 40-10-11(2)(f)(i)(B),

provision that nothing in subsection (2) of UCA 40-10-11 shall be

construed to authorize the Board or Division to adjudicate property

right disputes; and Finding No. 3, UCA 40-10-11(3)(c), requirement that

the pattern of violations determination include violations of SMCRA,

the implementing Federal regulations, any State or Federal programs

enacted under SMCRA, and other provisions of the approved Utah program.

To implement this decision, OSM is amending the Federal regulations

at 30 CFR Part 944, which codify decisions concerning the Utah program.

By making this final rule effective immediately, OSM is expediting the

State program amendment process. OSM encourages States to make their

programs conform to the Federal standards without undue delay.

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).

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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 this rule meets the applicable standards of subsections

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

applicable to the actual language of State regulatory programs and

program amendments because each program is drafted and promulgated by a

specific State, not by OSM. 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) describe how OSM must make decisions on proposed

State regulatory programs and program amendments. As required by those

provisions, OSM must base its decision on a State amendment solely on a

determination of whether the amendment is consistent with SMCRA and its

implementing Federal regulations and whether the other requirements of

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

3. National Environmental Policy Act

Under section 702(d) of SMCRA (30 U.S.C. 1292(d)), agency decisions

on proposed State regulatory program provisions are not major Federal

actions within the meaning of section 102(2)(C) of the National

Environmental Policy Act (42 U.S.C. 4332(2)(C)). Consequently, an

environmental impact statement is not required for this rule.

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 amendment that is the subject of this rule is based on

counterpart Federal regulations. An economic analysis of those Federal

regulations was prepared and certification made that they 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. The

Department relied upon the data and assumptions for the counterpart

Federal regulations in making the determination as to whether this rule

would have a significant economic impact.

6. Unfunded Mandates

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

governmental entity or the private sector in any given year.

List of Subjects in 30 CFR Part 944

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 14, 1998.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

For the reasons set forth in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as follows:

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.

* * * * *

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Original amendment submission date Date of final publication Citation/description

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* * * * * *

*

June 8, 1998............................ November 16, 1998....................... UCA 40-10-11(1)(a)(i),

(a)(ii), (1)(b), (1)(c),

(c)(i), and (c)(ii); (2),

(2)(a), (2)(b), (2)(c),

(2)(d), (2)(d)(i), (d)(ii),

(2)(e), (2)(e)(i),

(e)(i)(A), (e)(i)(B),

(e)(ii), (2)(f), (2)(f)(i),

(f)(i)(A), (f)(i(B), and

(f)(iii); (3)(a)(i),

(a)(ii), (3)(b), and

(3)(c); (4)(a)(i), (a)(ii),

and (4)(b); and (5)(a).

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Sec. 944.16 [Amended]

3. Section 944.16 is amended by removing and preserving paragraph

(f) in its entirety.

[FR Doc. 98-30547 Filed 11-13-98; 8:45 am]

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