01-4113. Utah Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; reopening and extension of public comment period on proposed amendment.

SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is announcing receipt of revisions and additional explanations pertaining to a previously proposed amendment to the Utah regulatory program (hereinafter, the “Utah program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Utah proposes to revise its amendment to change proposed rules concerning pre-subsidence surveys and the contents of subsidence control plans. The State also provided additional explanation of the term “State-appropriated water,” the proposed definitions of “State-appropriated water supply” and “replacement of water supply,” and of the proposed scope of water replacement. Utah intends to revise its program to be consistent with the corresponding Federal regulations and SMCRA.

DATES:

We will accept written comments on this amendment until 4 p.m., mountain standard time, March 7, 2001.

ADDRESSES:

You should mail, hand deliver or e-mail your written comments to James F. Fulton, Denver Field Division Chief, at the address listed below.

You may review copies of the Utah program, this amendment, and all written comments received in response to this document at the addresses listed below during normal business hours, Monday through Friday, excluding holidays. You may receive one free copy of the amendment by contacting OSM's Denver Field Division.

James F. Fulton, Denver Field Division Chief, Office of Surface Mining, Western Regional Coordinating Center, 1999 Broadway, Suite 3320, Denver, Colorado 80202-5733, telephone [phone], extension 1424.

Lowell P. Braxton, Director, Division of Oil, Gas and Mining, 1594 West North Temple, Suite 1210, P.O. Box 145801, Salt Lake City, Utah 84114-5801, telephone [phone].

FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Denver Field Division Chief, telephone [phone], extension 1424; e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

 

I. Background on the Utah Program

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Utah Program

On January 21, 1981, the Secretary of the Interior conditionally approved the Utah program. You can find background information on the Utah program, including the Secretary's findings, the disposition of comments, and the conditions of approval of the Utah program in the January 21, 1981, Federal Register (46 FR 5899). You can also find later actions concerning Utah's program and program amendments at 30 CFR 944.15 and 944.30.

II. Description of the Proposed Amendment

By letter dated March 20, 1998 (administrative record No. 1103), Utah sent to us a proposed amendment (UT-037-FOR) to its program under SMCRA (30 U.S.C. 1201 et seq.). It sent the proposed amendment in response to a June 5, 1996, letter (administrative record No. UT-1083) that we sent to the State under 30 CFR 732.17(c) and at its own initiative.

Changes to the Utah Administrative Rules (Utah Admin. R.) that the State originally proposed included: Adding definitions for “material damage,” “non-commercial building,” “occupied residential dwelling and structures related thereto,” “replacement of water supply,” and “State-appropriated water supply” at Utah Admin. R. 645-100-200; adding requirements at Utah Admin. R. 645-301-525.100 through -525.130 for pre-subsidence surveys; removing existing requirements for subsidence control plans at Utah Admin. R. 645-301-525 through -525.170; recodifying rules at Utah Admin. R. 645-301-525.200 through -525.240 pertaining to protected areas; removing existing requirements for subsidence control at Utah Admin. R. 645-301-525.200 through -525.232; adding requirements at Utah Admin. R. 645-301-525.300 through -525.490 for subsidence control and subsidence control plans; adding requirements for subsidence damage repair at Utah Admin. R. 645-301-525.500 through -525.530; adding a rebuttable presumption of causation by subsidence at Utah Admin. R. 645-301-525.540 through -525.545; adding provisions at Utah Admin. R. 645-301-525.550 for adjusting bond amounts for subsidence damage; recodifying rules at Utah Admin. R. 645-301-525.600 and 645-301-525.700 that require compliance with approved subsidence control plans and public notice of proposed mining, respectively; removing existing provisions for surveys of renewable resource lands at Utah Admin. R. 645-301-724.600; adding a provision at Utah Admin. R. 645-301-728.350 for finding whether underground coal mining and reclamation activities might contaminate, diminish or interrupt State-appropriated water; and adding a requirement at Utah Admin. R. 645-301-731.530 for replacing State-appropriated water supplies that are contaminated, diminished, or interrupted by underground coal mining activities.

We announced receipt of the proposed amendment in the April 8, 1998, Federal Register (63 FR 17138; administrative record No. UT-1108), provided an opportunity for a public hearing or meeting, and invited public comment on its adequacy. We did not hold a public hearing or meeting because nobody requested either one. The public comment period ended on May 8, 1998.

During our review of the amendment, we identified concerns relating to the provisions for pre-subsidence surveys at Utah Admin. R. 645-301-525.130 and for the content of subsistence control plans at Utah Admin. R. 645-301-525.490. We also asked Utah to provide additional clarification on: The scope of the terms “State-appropriated water” and the proposed definition of “State-appropriated water supply” as used in the amendment; the scope of water replacement with respect to “developed” water supplies; and clarification of Utah's proposed definition of the term “replacement of water supply.” We notified Utah of our concerns and the need for additional clarification by letter dated October 1, 1998 (administrative record No. UT-1125). Utah responded in a letter dated October 31, 2000 (administrative record No. 1145).

Utah now proposes two specific changes in its amendment. First, it proposes to change Utah Admin. R. 645-301-525.130 to cross-reference Utah Admin. R. R645-301-525.543. That referenced rule specifically states that there will be no presumption that subsidence caused damage to structures if the owners deny applicants access to perform pre-subsidence surveys. Second, at Utah Admin. R. 645-301-525.490, the State proposes to add references to Utah Admin. R. 645-301-525.200, -525.500, and -525.600. Those rules cover the range of information Utah requires to be included in subsidence control plans to demonstrate that an operation will be conducted in accordance with all applicable provisions for subsidence control.

Utah's response also provided additional explanation of the scope of the term “State-appropriated water” and the definition of “State-appropriated water supply,” the scope of water replacement under its proposed rules with respect to “developed” water supplies, and its proposed definition of the term “replacement of water supply.”

III. Public Comment Procedures

Written Comments

Send your written comments to OSM at the address given above. Your written comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. In the final rulemaking, we will not necessarily consider or include in the administrative record any comments received after the time indicated under Dates or at locations other than the Denver Field Division.

Electronic Comments

Please submit Internet comments as an ASCII file and do not use special characters or any form of encryption. Please also include “Attn: SPATS No. UT-037-FOR” and your name and return address in your Internet message. If you do not receive a confirmation that we have received your Internet message, contact the Denver Field Division at telephone number [phone], extension 1424.

Availability of Comments

We will make comments, including names and addresses of respondents, available for public review during normal business hours. We will not consider anonymous comments. If individual respondents request confidentiality, we will honor their request to the extent allowable by law. Individual respondents who wish to withhold their name or address from public review, except for the city or town, must state this prominently at the beginning of their comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public review in their entirety.

IV. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

Executive Order 12866—Regulatory Planning and Review

This rule is exempted from review by the Office of Management and Budget (OMB) under Executive Order 12866.

Executive Order 12988—Civil Justice Reform

The Department of the Interior conducted the reviews required by section 3 of Executive Order 12988 and determined that, to the extent allowable by law, 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 since each such program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met.

Executive Order 13132—Federalism

This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA. Section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

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.).

Regulatory Flexibility Act

The Department of the Interior has determined that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The State submittal that is the subject of this rule is based on counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect on a substantial number of small entities. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. In making the determination as to where this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule: (a) Does not have an annual effect on the economy of $100 million; (b) will not cause a major increase in costs or prices for consumers, individual industries, geographic regions, or Federal, State or local governmental agencies; and (c) does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises. This determination is based on the fact that the State submittal which is the subject of this rule is based on counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 944

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: January 12, 2001.

Brent Wahlquist,

Regional Director, Western Regional Coordinating Center.