[Federal Register Volume 59, Number 91 (Thursday, May 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-11531]
[[Page Unknown]]
[Federal Register: May 12, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 944
Utah Regulatory Program and Abandoned Mine Plan
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: OSM is announcing receipt of a proposed amendment to the Utah
regulatory program and abandoned mine plan (hereinafter, the ``Utah
program'' and ``Utah plan'') under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA). The amendment consists of proposed
revisions to the Utah Coal Mining and Reclamation Act of 1979. The Utah
program revisions pertain to purpose; definitions of new terms;
rulemaking authority and procedure; administrative procedures;
financial interests; permit applications; informal conferences; appeals
and further review; performance bonds; revegetation standards on lands
eligible for remining; operator requirements for underground coal
mining; information provided by permittees; contest of violation or
amount of penalty; civil actions to compel compliance with Utah's
program; violations of Utah's program or permit conditions; lands
unsuitable determination; judicial review of rules and orders; repeal
of specific sections of the Utah Code Annotated 1953 (UCA); and a
repeal date of certain provisions. The Utah plan revisions pertain to
lands and water eligible for reclamation, recovery of reclamation
costs, and liens. The amendment is intended to revise Utah's program
and plan to be consistent with SMCRA and the Utah Administrative
Procedures Act, and to improve operational efficiency.
DATES: Written comments must be received by 4 p.m., m.d.t. on June 13,
1994. If requested, a public hearing on the proposed amendment will be
held on June 6, 1994. Requests to present oral testimony at the hearing
must be received by 4 p.m., m.d.t. on May 27, 1994. Any disabled
individual who has a need for a special accommodation to attend a
public hearing should contact the individual listed under FOR FURTHER
INFORMATION CONTACT.
ADDRESSES: Written comments should be mailed or hand delivered to
Thomas E. Ehmett at the address listed below.
Copies of the Utah program and Utah plan, the proposed amendment,
and all written comments received in response to this document will be
available for public review at the addresses listed below during normal
business hours, Monday through Friday, excluding holidays. Each
requester may receive one free copy of the proposed amendment by
contacting OSM's Albuquerque Field Office.
Thomas E. Ehmett, Acting Director, Albuquerque Field Office, Office of
Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW.,
suite 1200, Albuquerque, New Mexico 87102.
Utah Coal Regulatory Program, Division of Oil, Gas and Mining, 3 Triad
Center, suite 350, 355 West North Temple, Salt Lake City, Utah 84180-
1203, Telephone: (801) 538-5340.
FOR FURTHER INFORMATION CONTACT: Thomas E. Ehmett, Telephone: (505)
766-1486.
SUPPLEMENTARY INFORMATION:
I. Background on the Utah Program and Utah Plan
On January 21, 1981, and June 3, 1983, the Secretary of the
Interior conditionally approved the Utah program and approved the Utah
plan. General background information on the Utah program and Utah plan,
including the Secretary's findings, the disposition of comments, the
conditions of approval of the Utah program, and approval of the Utah
plan, can be found in the January 21, 1981, and June 3, 1983,
publications of the Federal Register (46 FR 5899 and 48 FR 24876).
Subsequent actions concerning Utah's program and program amendments can
be found at 30 CFR 944.15, 944.16, and 944.30. Subsequent actions
concerning Utah's plan amendments can be found at 30 CFR 944.25.
II. Proposed Amendment
By letter dated April 14, 1994, Utah submitted a proposed amendment
to its program and plan pursuant to SMCRA (administrative record No.
UT-917). The proposed amendment consists of revisions to the Utah Coal
Mining and Reclamation Act of 1979. Utah submitted the proposed
amendment with the intent of making its program and plan consistent
with SMCRA and the Utah Administrative Procedures Act, and improving
operational efficiency.
The program provisions of the Utah Coal Mining and Reclamation Act
that Utah proposes to revise are (1) Utah Code Annotated (UCA) 40-10-2,
purpose [of Chapter 10]; (2) UCA 40-10-3, definitions of new terms
``adjudicative proceeding,'' ``lands eligible for remining,'' and
``unanticipated event or condition;'' (3) UCA 40-10-6.5, rulemaking
authority and procedure; (4) UCA 40-10-6.7, administrative procedures;
(5) UCA 40-10-7, prohibition of financial interest in any coal mining
operation; (6) UCA 40-10-8, coal exploration rules issued by the
Division of Oil, Gas and Mining (Division) and penalty for violation;
(7) UCA 40-10-10, permit applications; (8) UCA 40-10-11, Division
action on the permit application; (9) UCA 40-10-12, revision or
modification of permit provisions; (10) UCA 40-10-13, informal
conferences; (11) UCA 40-10-14, permit approval or disapproval,
appeals, and further review; (12) UCA 40-10-15, performance bonds; (13)
UCA 40-10-16, release of performance bond, surety, or deposit; (14) UCA
40-10-17, revegetation standards on lands eligible for remining; (15)
UCA 40-10-18, operator requirements for underground coal mining; (16)
UCA 40-10-19, information provided by the permittee to the Division and
right of entry; (17) UCA 40-10-20, contest of violation or amount of
penalty; (18) UCA 40-10-21, civil action to compel compliance with
Utah's program and other rights not affected; (19) UCA 40-10-22,
violations of Utah's program or permit conditions; (20) UCA 40-10-24,
determination of unsuitability of lands for surface coal mining; and
(21) UCA 40-10-30, judicial review of rules or orders. Utah also
proposes to repeal UCA 40-10-4, ``Mined land reclamation provisions
applied,'' and UCA 40-10-31, ``Chapter's procedures supersede Title 63,
Chapter 46b,'' and add the requirement that UCA 40-10-11(5),
modification of permit issuance prohibition, and UCA 40-10-
17(2)(t)(ii), revegetation standards on lands eligible for remining,
are repealed effective September 30, 2004.
The plan provisions of the Utah Coal Mining and Reclamation Act
that Utah proposes to revise are (1) UCA 40-10-25, lands and water
eligible for reclamation; (2) UCA 40-10-27, entry upon land adversely
affected by past coal mining practices, State acquisition of land and
public sale, and water pollution control and treatment plants; and (3)
UCA 40-10-28, recovery of reclamation costs and liens against reclaimed
land.
Following are more specific descriptions of the revisions that Utah
proposes to make to the above-listed sections of its statute. These
descriptions do not address several editorial revisions including
changes in punctuation and capitalization; recodification; replacement
of the word ``regulations'' and the term ``rules and regulations'' with
the synonymous word ``rules;'' the joining with the conjunction ``and''
of the last two provisions in a series of three or more provisions
joined by semicolons; the use of Arabic numbers instead of spelling out
the numbers; and the deletion of the word ``this'' prior to the word
``Subsection'' when it is followed by a specific statute citation.
Utah proposes the following revisions to its program provisions.
Utah proposes to add new definitions for the terms (1)
``adjudicative proceeding'' at UCA 40-10-3(1) to mean ``a division or
board action or proceeding that determines the legal rights, duties,
privileges, immunities, or other legal interests of one or more
identifiable persons, including all actions to grant, deny, revoke,
suspend, modify, annul, withdraw, or amend an authority, right, permit,
or license;'' (2) ``lands eligible for remining'' at UCA 40-10-3(8) to
mean ``those lands that would otherwise be eligible for expenditures
under Section 40-10-25 or 40-10-25.1;'' and (3) ``unanticipated event
or condition'' at UCA 40-10-3(21) to mean ``an event or condition
encountered in a remining operation that was not contemplated by the
applicable surface coal mining and reclamation permit.''
Utah proposes to revise its rulemaking authority and procedure
provisions at UCA 40-10-6.5 by adding new language at UCA 40-10-6.5(1)
to require the Board of Oil, Gas and Mining (Board) to promulgate rules
in accordance with Title 63, Chapter 46a of the Utah Administrative
Rulemaking Act and deleting the provisions of UCA 40-10-6.5(3), which
set forth the requirements for conducting hearings under Chapter 10.
Utah proposes to add new language at UCA 40-10-6.7, administrative
procedures, to require that the Division shall conduct informal
adjudicative proceedings, which are referred to as conferences or
informal conferences. Utah also proposes to require that the Board or
Division shall conduct formal adjudicative proceedings, which are
referred to as hearings or public hearings. The conduct of these
conferences and hearings will be governed by rules adopted by the Board
which are in accordance with Title 63, Chapter 46b of the Utah
Administrative Procedures Act (UAPA). In addition, Utah proposes that
such hearings, will be conducted in a manner which guarantees the
parties' due process rights, includes provisions to ensure this
protection, and requires a verbatim record of each public hearing
required by Chapter 10 will be made and a transcript will be available
on the motion of any party or by order of the Board.
Utah proposes an editorial revision at UCA 40-10-10, permit
applications, by changing the word ``implementing'' to ``the'' before
the word ``rules.''
Utah proposes to revise UCA 40-10-11 by requiring that the schedule
listing any and all notices of violations submitted as part of the
permit application include violations of any State or Federal program
or law approved under SMCRA. Utah also proposes to add new UCA 40-10-
11(5) to require that (1) the prohibition of UCA 40-10-11(3),
concerning issuance of a permit to persons with outstanding violations
or with a history of willful violations, does not apply after October
14, 1992, if the violation resulted from an unanticipated event or
condition that occurred on lands eligible for remaining, (2) the term
``violation'' as used here as the same meaning as the term
``violation'' under UCA 40-10-11(3) prohibiting permit issuance, and
(3) UCA 40-10-11(5) is repealed effective September 30, 2004.
Utah proposes to add new langauge to its provisions pertaining to
informal conferences at UCA 40-10-13(2)(b) to specify that, if written
objections to a proposed initial or revised application for a surface
coal mining and reclamation operations permit are filed, the Division
will hold an informal conference and conduct it in accordance with
subsection (b) irrespective of the requirements of section 63-46b-5 of
UAPA and that such conference may be held in the locality of the coal
mining and reclamation operation if requested within a reasonable time
after written objections or a request for an informal conference are
received by the Division.
Utah proposes to revise its provisions at UCA 40-10-14, pertaining
to permit approval or disapproval, appeals, and further review, by
adding new language at subsection (6) to provide that an applicant or
aggrieved person may appeal the Board's decision granting or denying
the permit in whole or in part directly to the Utah Supreme Court, that
if the Board fails to act, the applicant or aggrieved person may bring
an action in the appropriate district court, and that time frames for
appeals under this subsection shall be consistent with UAPA.
Utah proposes to revise its statutory provisions at UCA 40-10-16(6)
for release of performance bonds, sureties, or deposits by deleting the
requirements that provide for advertisement of a public hearing, govern
the manner in which hearings are conducted, and allow the Division to
establish an informal conference to resolve written objections. Utah
also proposes new language there requiring that:
If written objections are filed and a conference is requested,
the division shall inform all interested parties of the time and
place of the conference and hold an informal conference within 30
days after the request is filed with the division. The conference
officer may convert the conference to a formal proceeding under the
standards set forth in section 63-46b-4 [of the UAPA]. The matter
shall be scheduled for hearing before the board and a hearing shall
be held in accordance with the rules of practice and procedure of
the board. A decision from the informal conference may be appealed
to the board. The board shall hold a hearing pursuant to the rules
of practice and procedure of the board.
Utah proposes to revise its performance standards provisions at UCA
40-10-17(2) by adding new subsection (t)(ii) to require that on lands
eligible for remining, the operations shall assume the responsibility
for successful revegetation for a period of 2 full years after the last
year of augmented seeding, fertilizing, irrigation, or other work in
order to assure compliance with performance standards. Utah also
proposes to add new UCA 40-10-17(6) to specify that UCA 40-10-
17(2)(t)(ii) is repealed effective September 30, 2004.
Utah proposes to revise UCA 40-10-18, operator requirements for
underground coal mining, by adding new subsection (4) to require the
permittee of an underground coal mining operation after October 24,
1992, to promptly repair or compensate for material damage resulting
from subsidence to occupied residential dwellings and related
structures or noncommercial buildings. Utah further proposes that
repair of damage includes rehabilitation, restoration, or replacement
of such damaged dwellings, structures, or buildings; and compensation
is to be in the full amount of the diminution in value resulting from
the subsidence. Lastly, Utah proposes that the requirement to repair or
compensate for material damage resulting from subsidence will not
prohibit or interrupt underground coal mining operations, and the Board
will adopt final rules to implement these provisions within 1 year
after enactment of UCA 40-10-18(4).
Utah proposes to revise UCA 40-10-20, contest of violation or
amount of penalty, by adding new subsection (2)(e)(ii) to provide that
if the operator fails to submit the amount of the civil penalty within
30 days of receipt of the results of an informal conference, the
operator waives any opportunity for further review of the violation or
to contest the violation.
Utah proposes to revise UCA 40-10-22 pertaining to violations of
Utah's program or permit conditions by (1) requiring at subsection
(1)(d) that, where a determination is made that a pattern of violations
exists has existed and the violations were caused by the permittee's
unwarranted failure to comply with Utah's program or the conditions of
the permit, the Division will request the Board to issue an order to
the permittee to show cause as to why the permit should not be
suspended or revoked and provide an opportunity for a public hearing;
if the permittee requests a hearing, the Board will give notice in
accordance with its rules of practice and procedure; and if the
permittee fails to show cause as to why the permit should not be
suspended or revoked, the Board will immediately enter an order to
suspend or revoke the permit; (2) adding the word ``district'' before
``court'' at subsection (2)(a) and clarifying that any relief granted
by the district court will continue in effect unless the Utah Supreme
Court on review grants a stay of enforcement or sets aside or modifies
the Board's order which is being appealed; (3) providing at subsection
(3)(a) that a permittee or aggrieved person may initiate Board action
by requesting a hearing and requiring at subsections (3)(b) and (d)
that the Board will act in accordance with its rules of practice and
procedure; (4) changing terms at subsection (3)(e) from ``issued'' to
``entered'' when describing the outcome of the Board's order and from
``administrative'' to ``adjudicative'' when describing ``proceeding;''
and (5) at subsection (3)(f), providing that the Board's action is
subject to judicial review by the Utah Supreme Court as prescribed in
subsection 78-2-2(3)(e)(iv), rather than by the appropriate district
court.
Utah proposes to add new language to its judicial review of rules
and orders provisions at UCA 40-10-30 by adding new language to require
that (1) judicial review of adjudicative proceedings is governed by
Title 63, Chapter 46b, of UAPA and provisions of Chapter 10 consistent
with UAPA and (2) judicial review of the Board's rulemaking procedures
and rules adopted under Chapter 10 is governed by Title 63, Chapter
46a, Utah Administrative Rulemaking Act. Utah also proposes to revise
recodified subsection (3) to require that an appeal from the Board's
order will be directly to the Utah Supreme Court and to revise
recodified subsection (4) to require that an action or appeal involving
the Board's order will be determined as expeditiously as feasible by
the Utah Supreme Court in accordance with subsection 78-2-2(3)(e)(iv).
Finally, Utah proposes to delete existing subsection (3) pertaining to
review of the adjudication of the district court and add new language
at subsection (5) to specify that, if the Board fails to perform any
act or duty that is not discretionary, the aggrieved person may bring
an action in the appropriate district court.
Utah proposes to repeal UCA 40-10-4, ``Mined land reclamation
provisions applied,'' Utah Code Annotated 1953, as enacted by Chapter
145, Laws of Utah 1979. Utah also proposes to repeal UCA 40-10-31,
``Chapter's procedures supersede Title 63, Chapter 46b,'' Utah Code
Annotated 1953, as enacted by Chapter 161, Laws of Utah 1987.
Utah proposes to add new language requiring that UCA 40-10-11(5)
and UCA 40-10-17(2)(t)(ii) are repealed effective September 30, 2004.
Utah proposes the following revisions to its plan provisions.
Utah proposes to revise UCA 40-10-25 pertaining to lands and water
eligible for reclamation by deleting, as a priority for the expenditure
of AMLR funds, existing subsection (2)(d), which pertains to research
and demonstration projects relating to the development of surface
mining reclamation and water quality control program methods and
techniques, and adding new requirements for eligible lands and water to
include lands and water left in an inadequate reclamation status and
which meet the criteria of subsection (4) (a) or (b). Utah proposes to
allow AMLR funds to be used for reclamation or drainage abatement at
sites (1) where operations occurred during the period beginning August
4, 1977, and ending before January 21, 1981, and where funds pursuant
to a loan or other form of financial guarantee or from any other source
are not sufficient to provide for adequate reclamation or abatement at
the site and (2) where operations occurred during the period beginning
on August 4,1977, and ending on or before November 5, 1990, and where
the surety of the mining operator became insolvent during that period,
and as of November 5,1990, funds immediately available from proceedings
relating to the insolvency, or from any financial guarantee or other
source, are not sufficient to provide for adequate reclamation or
abatement at the site. Utah proposes to require that, in determining
which sites to reclaim, priority be given to those sites in the
immediate vicinity of a residential area or which have an adverse
economic impact upon a local community. Finally, Utah proposes to
provide that (1) surface coal mining operations on lands eligible for
remining do not affect eligibility for reclamation and restoration
after the release of the bond or deposit for the operation, (2) when
the bond or deposit for a coal surface mining operation on lands
eligible for remining is forfeited and the amount of the bond or
deposit is not sufficient to provide for adequate reclamation or
abatement, AMLR funds may be used for reclamation, and (3) regardless
of the provisions above that pertain to operations on lands eligible
for remining, the Director of the Division can expend monies from the
abandoned mine reclamation trust fund for any emergency requiring
immediate reclamation.
Utah proposes to revise UCA 40-10-28, recovery of reclamation costs
and liens against reclaimed land, by adding new language at subsection
(1)(a)(ii) to require that the sale price for land reclaimed using
reclamation funds that is sold to a State or local government for
public purposes, may not be less than the actual cost of purchase of
the property by the State plus the costs of reclamation. At subsection
(2)(a), Utah proposes that a lien shall not be placed against reclaimed
land where the surface owner owned the land prior to May 2, 1977, and
neither consented to nor participated in nor exercised control over the
mining operation that necessitated the reclamation work.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h) and
884.15(a), OSM is seeking comments on whether the proposed amendment
satisfies the applicable program and plan approval criteria of 30 CFR
732.15 and 884.14. If the amendment is deemed adequate, it will become
part of the Utah program and plan.
1. Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under DATES or at locations other than the Albuquerque Field Office
will not necessarily be considered in the final rulemaking or included
in the administrative record.
2. Public Hearing
Persons wishing to testify at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.d.t.
on May 27, 1994. The location and time of the hearing will be arranged
with those persons requesting the hearing. If no one requests an
opportunity to testify at the public hearing, the hearing will not be
held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to testify have been heard. Persons in the audience
who have not been scheduled to testify, and who wish to do so, will be
heard following those who have been scheduled. The hearing will end
after all persons scheduled to testify and persons present in the
audience who wish to testify have been heard.
3. Public Meeting
If only one person requests an opportunity to testify at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listing under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meetings will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the administrative record.
IV. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs 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 12550) 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.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal Actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
V. List of Subjects in 30 CFR Part 944
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 6, 1994.
Russell F. Price,
Acting Assistant Director, Western Support Center.
[FR Doc. 94-11531 Filed 5-11-94; 8:45 am]
BILLING CODE 4310-05-M
