[Federal Register Volume 60, Number 70 (Wednesday, April 12, 1995)]
[Rules and Regulations]
[Pages 18710-18721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8910]
[[Page 18709]]
_______________________________________________________________________
Part VI
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 903
Surface Mining and Reclamation Operations Under a Federal Program for
Arizona; Final Rule
Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 /
Rules and Regulations
[[Page 18710]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 903
RIN 1029-AB81
Surface Mining and Reclamation Operations Under a Federal Program
for Arizona
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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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
Register on August 10, 1994 (59 FR 41208). The notice announced a 60
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.
(c) The following provisions of Arizona law generally provide for
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.
(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.
(d) Any Arizona law or regulation which may be found to interfere
with the purposes and achievements of the Act, shall be preempted and
superseded to the extent that the State law or regulation is
inconsistent with, or precludes implementation of, requirements of the
Act or this chapter under the Federal program for Arizona. The Director
shall publish a notice to that effect in the Federal Register following
the procedures set forth in Sec. 730.11(a) of this chapter.
(e) The information collection requirements contained in this part
have been approved by the Office of Management and Budget under 44
U.S.C. 3501 in its approval of the information collection requirements
contained in the permanent regulatory program.
Sec. 903.701 General.
(a) Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and Part
701 of this chapter apply to coal exploration and surface coal mining
and reclamation operations in Arizona.
(b) Beginning on May 12, 1995, each surface coal mining and
reclamation operation in Arizona must comply with Subchapter B of this
chapter until issuance of a permanent program permit under the
provisions of Subchapter C of this chapter.
(c) Records required by Sec. 700.14 of this chapter to be made
available locally to the public shall be made available in the county
recorder's office of the county in which an operation is located, and
at the OSM Albuquerque Field Office.
Sec. 903.702 Exemption for coal extraction incidental to the
extraction of other minerals.
Part 702 of this chapter, Exemption for Coal Extraction Incidental
to the Extraction of Other Minerals, applies to any person who conducts
coal extraction incidental to the extraction of other minerals for
purposes of commercial use or sale.
Sec. 903.707 Exemption for coal extraction incident to government-
financed highway or other construction.
Part 707 of this chapter, Exemption for Coal Extraction Incident to
Government-Financed Highway or Other Construction, applies to surface
coal mining and reclamation operations.
Sec. 903.736 Permit fees.
Section 736.25 of this chapter, Permit fees applies to any person
who makes application for a permit to conduct surface coal mining and
reclamation operations in Arizona.
Sec. 903.761 Areas designated unsuitable for surface coal mining by
act of Congress.
Part 761 of this chapter, Areas Designated by Act of Congress,
applies to surface coal mining operations.
Sec. 903.762 Criteria for designating areas as unsuitable for surface
coal mining operations.
Part 762 of this chapter, Criteria for Designating Areas Unsuitable
for Surface Coal Mining Operations, applies to surface coal mining
operations.
Sec. 903.764 Process for designating areas unsuitable for surface coal
mining operations.
Part 764 of this chapter, State Processes for Designating Areas
Unsuitable for Surface Coal Mining Operations, pertaining to petitions,
initial processing, hearing requirements, decisions, data base and
inventory systems, public information, and regulatory responsibilities,
applies to surface coal mining operations beginning June 24, 1996, one
year after the effective date of this program.
Sec. 903.772 Requirements for coal exploration.
(a) Part 772 of this chapter, Requirements for Coal Exploration,
applies to any person who conducts coal exploration. For those
applications where Sec. 772.12 of this chapter applies,
[[Page 18718]] the requirements of paragraphs (b) through (d) of this
section shall apply in place of Sec. 772.12(c) (1) and (3) and
Sec. 772.12(d)(1) of this chapter.
(b) The applicant, upon receipt of notification from the regulatory
authority of the submission of an administratively complete application
for an exploration permit, must:
(1) Publish one public notice of the filing in a newspaper of
general circulation in the county of the proposed exploration area; and
(2) Provide proof of this publication to the regulatory authority
within one week of publication.
(c) Any person having an interest which is or may be adversely
affected, shall have the right to file written comments within 30 days
after the notice is published.
(d) The regulatory authority shall act upon an administratively
complete application for a coal exploration permit 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. The regulatory authority may approve a coal exploration permit
only if based upon a complete and accurate application.
Sec. 903.773 Requirements for permits and permit processing.
(a) Part 773 of this chapter, Requirements for Permits and Permit
Processing, applies to any person who applies for a permit for surface
coal mining and reclamation operations.
(b) The Secretary will coordinate, to the extent practicable, his/
her responsibilities under the following Federal laws with the relevant
Arizona laws to avoid duplication:
------------------------------------------------------------------------
Federal law State law
------------------------------------------------------------------------
(1) Clean Water Act, as amended, 33 A.R.S Title 49, Art. 2, Sec 221-
U.S.C. 1251 et seq. 225; A.R.S Title 49, Art. 3, Sec
241-251; A.R.S Title 49, Art. 10,
Sec 361-363; A.R.S Title 49, Art.
11, Sec 371-381.
(2) Clean Air Act, as amended, 42 A.R.S. Title 49.
U.S.C. 7401 et seq.
(3) Resource Conservation and A.R.S. Title 49, sections 921-932.
Recovery Act, 42 U.S.C. 3251, et
seq.
(4) National Environmental Policy A.R.S. Title 49, section 104.
Act, 42 U.S.C. 4321 et seq.
(5) Archeological and Historic Arizona Antiquities Act--A.R.S.
Preservation Act, 16 U.S.C. 469 et Title 41 secs. 821, 841-846, 861,
seq. 862, 865, 1352.
(6) National Historic Preservation A.R.S. Title 13 Secs. 3702, 3702.1;
Act, 16 U.S.C. 470 et seq. Title 41 secs. 511, 511.04, 821,
861, 862, 1352; Title 44 sec. 123.
(7) Section 208 of the Clean Water A.R.S. Sections 49-101, 201 and
Act, as amended, 33 U.S.C. 1251 et 371.
seq.
(8) Endangered Species Act, 16 A.R.S. Title 17 Section 231A.2
U.S.C. 1531 et seq. Arizona Admin. Code Title 18
Chapter 10, Article 1.
(9) Fish and Wildlife Coordination
Act, 16 U.S.C. 661-667.
(10) Noise Control Act, 42 U.S.C.
4903.
(11) Bald Eagle Protection Act, 16 A.R.S. Title 17 Section 235.
U.S.C. 668-668(d).
------------------------------------------------------------------------
(c) No person may conduct coal exploration operations that result
in removal of more than 250 tons of coal in one location or surface
coal mining and reclamation operations:
(1) Without a permit issued by the Secretary as required under 30
CFR part 772 or 773; and
(2) Without permits, leases and/or certificates required by the
State of Arizona, including, but not limited to the following:
(i) Municipal planning statutes (A.R.S. Section 9-461 to 9-462.01);
County planning and zoning statutes (A.R.S. Sections 11-322 et seq.,
11-803, 11-808, 11-821);
(ii) Statutes governing perfection and recordation of mining claims
(A.R.S. Section 27-201 to 27-210);
(iii) Statutes requiring mineral exploration permits (A.R.S.
Section 27-251 to 27-256);
(iv) Solid waste and air pollution discharge permits, installation
and operation permits required for equipment causing air pollution and
water pollution discharge permits (A.R.S. Title 49);
(v) Mineral prospecting permits for State lands (A.R.S. Section 37-
231);
(vi) Permits for discharge into or use of State waters and permits
for secondary use of reservoir waters (A.R.S. Title 45).
(d) In addition to the requirements of part 773 of this chapter,
the following permit application review procedures apply:
(1) Any person applying for a permit must submit at least five
copies of the application to OSM's Western Support Center (WSC) in
Denver, Colorado.
(2) WSC shall review an application for administrative completeness
and acceptability for further review, and notify the applicant in
writing of the findings. WSC may:
(i) Reject a flagrantly deficient application, notifying the
applicant of the findings;
(ii) Request additional information required for completeness,
stating specifically what information must be supplied; or
(iii) Determine the application administratively complete and
acceptable for further review.
(3) When WSC determines the application to be administratively
complete, it will notify the applicant. Upon such notification, the
applicant must publish the public notice required by Sec. 773.13(a)(1)
of this chapter.
(4) A representative of WSC may visit the proposed permit area if
necessary to determine whether the operation and reclamation plans are
consistent with actual site conditions. WSC will provide the applicant
advance notice of the time of the visit.
(5) In determining the completeness of an application, WSC will
consider whether the information provided in the application is
adequate for OSM to comply with the National Environmental Policy Act,
42 U.S.C. 4322. If necessary, WSC may require specific additional
information from the applicant as any environmental review progresses.
(e) In addition to the information required by subchapter G of this
chapter, WSC may require an applicant to submit supplemental
information to ensure compliance with applicable Federal laws and
regulations other than the Act and 30 CFR chapter VII.
(f) In making a decision on an application, the regulatory
authority shall review any written comments or objections it has
received and the records of any informal conference or hearing it has
held on the application. The regulatory authority shall issue a written
decision in accordance with the timeframes in the following table:
[[Page 18719]]
------------------------------------------------------------------------
Then a written decision
If * * * And * * * shall be issued * * *
------------------------------------------------------------------------
OSM has not prepared An informal Within 60 days of the
an EIS. conference has not close of the comment
been held. period.
OSM has not prepared An informal Within 60 days of the
an EIS. conference has been conclusion of the
held. informal conference
(unless additional time
is needed because of the
number or complexity of
the issues).
OSM has prepared an ..................... No earlier than 30 days
EIS. after the Environmental
Protection Agency
publishes the notice of
availability of the final
EIS in the Federal
Register.
------------------------------------------------------------------------
(g) OSM will consider withholding information from public
disclosure under Sec. 773.13(d) of this chapter if the applicant labels
the information confidential and submits it separately from the rest of
the application.
(1) If the applicant submits information identified as
confidential, the notice required by Sec. 773.13(a)(1) of this chapter
shall state this and identify the type of information that the
applicant has submitted.
(2) OSM shall determine the qualification of any application
information labeled confidential within 10 days of the last publication
of the notice required under Sec. 773.13(a)(1) of this chapter, unless
additional time is necessary to obtain public comment or in the event
of unforeseen circumstances.
Sec. 903.774 Revision; renewal; and transfer, assignment, or sale of
permit rights.
(a) Part 774 of this chapter, Revision; Renewal; and Transfer,
Assignment, or Sale of Permit Rights, applies to any such actions
involving surface coal mining and reclamation operations permits,
except as specified in this section.
(b) No revision to an approved mining or reclamation plan shall be
effective until reviewed and approved by WSC.
(c) Any significant revision to the approved mining or reclamation
plan shall be subject to the public notice and hearing provisions of
Secs. 903.773(d)(3) and 773.13 (b) and (c) of this chapter before it is
approved and implemented. Any revision to an approved reclamation plan
that may have the potential to adversely affect the achievement of
reclamation and the post-mining land use is a significant permit
revision. In addition, WSC will consider the following factors, as well
as other relevant factors, in determining the significance of a
proposed revision:
(1) Changes in production or recoverability of the coal resource;
(2) Environmental effects;
(3) 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.
(d) The regulatory authority will approve or disapprove non-
significant permit revisions within a reasonable time after receiving a
complete and accurate revision application. Significant revisions and
renewals shall be approved or disapproved under the provisions of
Sec. 903.773(f).
(e) Any person having an interest that is or may be adversely
affected by a decision on the transfer, assignment, or sale of permit
rights, may submit written comments on the application to WSC. Comments
may be submitted within 30 days of either the publication of the
newspaper notice required by Sec. 774.17(b)(2) of this chapter, or
receipt of an administratively complete application, whichever is
later. For purposes of this paragraph, a person includes, but is not
limited to an official of any Federal, State, or local government
agency.
(f) Within 30 days from the last publication of the newspaper
notice, written comments or objections to an application for
significant revision or renewal of a permit may be submitted to the
regulatory authority by:
(1) Any person having an interest that is or may be adversely
affected by the decision on the application; or
(2) Public entities notified under Sec. 773.13(a)(3) of this
chapter of the proposed mining operations on the environment within
their areas of responsibility.
Sec. 903.775 Administrative and judicial review of decisions.
Part 775 of this chapter, Administrative and Judicial Review of
Decisions, applies to all decisions on permits.
Sec. 903.777 General content requirements for permit applications.
(a) Part 777 of this chapter, General Content Requirements for
Permit Applications, applies to any person who makes application for a
permit to conduct surface coal mining and reclamation operations.
(b) Any person who wishes to conduct surface coal mining and
reclamation operations must file a complete application as early as
possible before the date the permit is desired and pay to OSM a permit
fee in accordance with Sec. 903.736.
(c) Any person who wishes to revise a permit shall submit a
complete application as early as possible before the desired approval
date of the permit revision and shall pay a permit fee in accordance
with 30 CFR 777.17.
Sec. 903.778 Permit applications--minimum requirements for legal,
financial, compliance, and related information.
Part 778 of this chapter, Permit Applications--Minimum Requirements
for Legal, Financial, Compliance, and Related Information, applies to
any person who submits an application for a permit to conduct surface
coal mining and reclamation operations.
Sec. 903.779 Surface mining permit applications--Minimum requirements
for information on environmental resources.
(a) Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources,
applies to any person who submits an application to conduct surface
coal mining and reclamation operations.
(b) Each permit application must include a map that delineates
existing vegetative types and a description of the plant communities
within the proposed permit area and within any proposed reference area.
Sec. 903.780 Surface mining permit applications--Minimum requirements
for reclamation and operation plan.
Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, applies to any
person who submits an application to conduct surface coal mining and
reclamation operations.
Sec. 903.783 Underground mining permit applications--Minimum
requirements for information on environmental resources.
(a) Part 783 of this chapter, Underground Mining Permit
Applications--Minimum Requirements for Information on Environmental
Resources, applies to any person who [[Page 18720]] submits an
application to conduct underground coal mining operations.
(b) Each permit application must include a map that delineates
existing vegetative types and a description of the plant communities
within the proposed permit area and within any proposed reference area.
Sec. 903.784 Underground mining permit applications--Minimum
requirements for reclamation and operation plan.
Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, applies to any
person who submits an application to conduct underground coal mining
operations.
Sec. 903.785 Requirements for permits for special categories of
mining.
Part 785 of this chapter, Requirements for permits for Special
Categories of Mining, applies to any person who submits an application
for a permit to conduct certain categories of surface coal mining and
reclamation operations as specified therein.
Sec. 903.795 Small operator assistance program.
Part 795 of this chapter, Small Operator Assistance Program,
applies to any person who submits an application for assistance under
the small operator assistance program.
Sec. 903.800 Bond and insurance requirements for surface coal mining
and reclamation operations under regulatory programs.
(a) Part 800 of this chapter, Bond and Insurance Requirements for
Surface Coal Mining and Reclamation Operations Under Regulatory
Programs, applies to all surface coal mining and reclamation
operations, except for Sec. 800.40(a)(1) of this chapter regarding the
bond release application, for which paragraph (b) of this section
substitutes.
(b) The permittee may file an application with the regulatory
authority for the release of all or part of a performance bond. The
application must be filed no later than 30 days before the end of the
vegetation growing season in order to allow time for the regulatory
authority to properly evaluate the completed reclamation operations.
The appropriate times or seasons for the evaluation of certain types of
reclamation shall be identified in the mining and reclamation plan
required in subchapter G of this chapter and approved by the regulatory
authority.
Sec. 903.815 Performance standards--Coal exploration.
Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, applies to any person who conducts coal exploration.
Sec. 903.816 Performance standards--Surface mining activities.
(a) Part 816 of this chapter, Permanent Program Performance
Standards--Surface Mining Activities, applies to any person who
conducts surface mining activities, except Sec. 816.116(a)(1) of this
chapter regarding revegetation success standards, for which paragraph
(b) of this section substitutes.
(b) Standards for success shall be those identified at
Sec. 816.116(a)(2) and (b) of this chapter. Statistically valid
sampling techniques for measuring success shall be included in the
mining and reclamation plan and approved by the regulatory authority.
Sec. 903.817 Performance standards--Underground mining activities.
(a) Part 817 of this chapter, Permanent Program Performance
Standards--Underground Mining Activities, applies to any person who
conducts underground mining activities, except Sec. 817.116(a)(1) of
this chapter regarding revegetation success standards, for which
paragraph (b) of this section substitutes.
(b) Standards for success shall be those identified at
Sec. 817.116(a)(2) and (b) of this chapter. Statistically valid
sampling techniques for measuring success shall be included in the
mining and reclamation plan and approved by the regulatory authority.
Sec. 903.819 Special performance standards--Auger mining.
Part 819 of this chapter, Special Permanent Program Performance
Standards--Auger Mining, applies to any person who conducts surface
coal mining operations that include auger mining.
Sec. 903.822 Special performance standards--Operations in alluvial
valley floors.
Part 822 of this chapter, Special Permanent Program Performance
Standards--Operations in Alluvial Valley Floors, applies to any person
who conducts surface coal mining and reclamation operations on alluvial
valley floors.
Sec. 903.823 Special performance standards--Operations on prime
farmland.
Part 823 of this chapter, Special Permanent Program Performance
Standards--Operations on Prime Farmland, applies to any person who
conducts surface coal mining and reclamation operations on prime
farmland.
Sec. 903.824 Special performance standards--Mountaintop removal.
Part 824 of this chapter, Special Permanent Program Performance
Standards--Mountaintop Removal, applies to any person who conducts
surface coal mining and reclamation operations constituting mountaintop
removal mining.
Sec. 903.827 Special performance standards--Coal preparation plants
not located within the permit area of a mine.
Part 827 of this chapter, Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine,
applies to any person who conducts surface coal mining and reclamation
operations which include the operation of a coal preparation plant not
located within the permit area of a mine.
Sec. 903.828 Special performance standards--In situ processing.
Part 828 of this chapter, Special Permanent Program Performance
Standards--In Situ Processing, applies to any person who conducts
surface coal mining and reclamation operations that include the in situ
processing of coal.
Sec. 903.842 Federal inspections.
(a) Part 842 of this chapter, Federal Inspections, applies to all
coal exploration and surface coal mining and reclamation operations.
(b) In addition to the requirements of Part 842 of this chapter,
OSM will furnish copies of inspection reports when requested by a
designated Arizona State agency with jurisdiction over mining.
Sec. 903.843 Federal enforcement.
(a) Part 843 of this chapter, Federal Enforcement, applies
regarding enforcement action on coal exploration and surface coal
mining and reclamation operations.
(b) In addition to the requirements of Part 843 of this chapter,
OSM will furnish copies of enforcement actions and orders to show
cause, upon request, to a designated Arizona State agency with
jurisdiction over mining.
Sec. 903.845 Civil penalties.
Part 845 of this chapter, Civil Penalties, applies to the
assessment of civil penalties for violations on coal exploration and
surface coal mining and reclamation operations.
Sec. 905.846 Individual civil penalties.
Part 846 of this chapter, Individual Civil Penalties, applies to
the assessment of individual civil penalties under section 518(f) of
the Act. [[Page 18721]]
Sec. 903.955 Certification of blasters.
Part 955 of this chapter, Certification of Blasters in Federal
Program States and on Indian Lands, applies to the training,
examination and certification of blasters for surface coal mining and
reclamation operations.
[FR Doc. 95-8910 Filed 4-11-95; 8:45 am]
BILLING CODE 4310-05-M
