[Federal Register Volume 59, Number 67 (Thursday, April 7, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-8320]
[[Page Unknown]]
[Federal Register: April 7, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 944
Utah Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of proposed amendment.
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SUMMARY: OSM is announcing its decision to approve an amendment to the
approved Utah permanent regulatory program (the Utah program) under the
Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.
1201-1328. The amendment consists of changes to provisions of the Utah
Coal Mining Rules pertaining to the definitions of ``affected area,''
``road,'' and ``public road.'' The amendment revises the Utah program
to be consistent with the corresponding Federal regulations.
EFFECTIVE DATE: April 7, 1994.
FOR FURTHER INFORMATION CONTACT: Robert H. Hagen, Telephone (505) 766-
1486.
SUPPLEMENTARY INFORMATION:
I. Background on the Utah Program
II. Submission of Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background on the Utah Program
On January 21, 1981, the Secretary of the Interior conditionally
approved the Utah program for the regulation of coal exploration and
coal mining and reclamation operations on non-Federal and non-Indian
lands. General background information on the Utah program, including
the Secretary's findings, the disposition of comments, and an
explanation of the conditions of approval, appears in the January 21,
1981, Federal Register (46 FR 5899). Actions taken subsequent to
approval of the Utah program are codified at 30 CFR 944.15, 944.16, and
944.30.
II. Submission of Proposed Amendment
By letter dated September 17, 1992 (administrative record No. UT-
782), Utah submitted to OSM, under SMCRA and the Federal regulations
implementing SMCRA at 30 CFR chapter VII (the Federal regulations), a
proposed amendment to the Utah program. Utah submitted the proposed
amendment in response to a September 4, 1992, agreement (administrative
record No. UT-778) between Utah and OSM concerning the regulation of
coal mine access and haul roads (mine roads) in Utah and as required by
OSM at 30 CFR 944.16 (n) and (o). The proposed amendment consists of
revised definitions of the terms ``affected area,'' ``road,'' and
``public road'' at Utah Administrative Rule (Utah Admin. R.) 645-100-
200.
OSM announced receipt of the proposed amendment in the November 16,
1992, Federal Register (57 FR 54032), and, in the same notice, opened
the public comment period and offered to hold a hearing on the
substantive adequacy of the proposed amendment (administrative record
No. UT-800). The public comment period closed on December 16, 1992.
Following the close of the comment period and during its review of
the proposed amendment, OSM identified certain concerns regarding
whether the proposed amendment was, as required by 30 CFR 732.15(a), in
accordance with SMCRA and consistent with the Federal regulations. OSM
notified Utah of these concerns by letter dated January 21, 1993
(administrative record No. UT-817).
By letter dated February 16, 1993, Utah submitted to OSM additional
material, including a revision to the proposed amendment
(administrative record No. UT-824). However, OSM identified certain
concerns with this revision and notified Utah of these concerns by
telephone on March 4, 1993 (administrative record No. UT-825).
By letter dated March 24, 1993, Utah submitted to OSM additional
revisions to the proposed amendment (administrative record No. UT-827).
OSM announced receipt of the March 24, 1993, revisions to the
proposed amendment in the April 8, 1993, Federal Register (58 FR
18187), and, in the same notice, reopened the public comment period on
the revised proposed amendment (administrative record No. UT-830). The
comment period ended on April 23, 1993.
By letter to Utah dated May 19, 1993 (administrative record No. UT-
842), OSM found that provision II.1 of the September 4, 1992, agreement
was not valid. In addition, OSM qualified the applicability of
provision II.2 of the same agreement.
By letter dated June 22, 1993 (administrative record No. UT-847),
Utah responded to OSM's May 19, 1993, letter and stated its
interpretation of and intentions with respect to the September 4, 1992,
agreement.
By letter dated July 1, 1993 (administrative record No. UT-845),
the Joint National Coal Association/American Mining Congress Committee
on Surface Mining Regulations requested that OSM reopen the comment
period for Utah's proposed amendment to allow additional public comment
on the effect of OSM's May 19, 1993, letter on the September 4, 1992,
agreement and the proposed amendment.
OSM published a notice in the July 29, 1993, Federal Register (58
FR 40608) reopening and extending the public comment period to allow
the public the opportunity to comment on the effect that the invalid
part of the September 4, 1992, agreement would have on Utah's proposed
amendment (administrative record No. UT-850). The extended public
comment period ended on August 13, 1993. The proposed amendment, as
revised on March 24, 1993, is the subject of this notice.
III. Director's Findings
After a thorough review, pursuant to SMCRA and the Federal
regulations at 30 CFR 732.15 and 732.17, the Director finds that Utah's
proposed amendment to its definitions of ``affected area,'' ``road,''
and ``public road,'' as submitted by Utah on September 17, 1992, and as
revised by it on March 24, 1993, is no less stringent than SMCRA and no
less effective than the Federal regulations.
A. Background on Proposed Amendment
On February 25, 1991, Utah adopted certain revisions to its
definitions of ``road'' and ``public road'' at Utah Admin. R. 645-100-
200, along with a supplemental policy statement. On March 1, 1991,
Utah, as required by 30 CFR 732.17, submitted those revisions and the
supplemental policy statement to OSM for approval (administrative
record No. UT-610).
OSM did not approve in part the March 1, 1991, submittal in a final
rule published in the Federal Register (56 FR 58846, November 22, 1991)
(the final roads rule). In the final roads rule, OSM found that the
definition of ``surface coal mining operations'' at section 701(28) of
SMCRA, 30 U.S.C. 1291(28), and its counterpart in the Utah program
require the regulation of certain public roads (56 FR 58846, 68847-49,
November 22, 1991). OSM also found that, when determining whether a
road is subject to regulation under SMCRA and the Utah program, the
regulatory authority must consider the extent and effect of the mining-
related use of the road (56 FR 58846, 58847-49, 58851-52, 58854-55,
November 22, 1991). Based on these findings, OSM did not approve Utah's
revision to its definition of ``road'' and its supplemental policy
statement because, when considered together, they would have exempted
all public roads from regulation, regardless of their mining-related
use (56 FR 58846, 58847-49, November 22, 1991). OSM approved Utah's
revision to its definition of ``public road,'' but only in the limited
context of the rules in the Utah program for designating lands
unsuitable for mining (56 FR 58846, 58849-50, November 22, 1991). OSM
also required Utah to make certain amendments to its regulatory
definitions of ``road'' and ``public road'' and to withdraw its
supplemental policy statement (56 FR 58846, 58857-58, November 22,
1992.) These required program amendments are codified at 30 CFR 944.16
(n) and (o).
On January 17, 1992, Utah brought an action in the U.S. District
Court for the District of Utah, pursuant to section 526 of SMCRA, for
judicial review of the final roads rule (Utah v. Lujan, No. 92-C-063-G
(D. Utah)). On September 4, 1992, OSM and Utah resolved Utah v. Lujan
by entering into an agreement (the September 4, 1992, agreement). Under
the September 4, 1992, agreement, Utah agreed, among other things, to
withdraw its claims in Utah v. Lujan, confirm the withdrawal, effective
December 5, 1991, from the Utah program of its supplemental policy
statement, and to submit to OSM a proposed amendment to the Utah
program that would revise the definitions of ``affected area,''
``road,'' and ``public road'' at Utah Admin. R. 645-100-200 to read the
same as the corresponding definitions in the Federal regulations at 30
CFR 701.5 and 761.5. For its part, OSM agreed to a blanket exemption of
certain Utah mine roads from regulation under SMCRA and the Utah
program.
Pursuant to the September 4, 1992, agreement, Utah filed a motion
with the district court to dismiss Utah v. Lujan. However, Utah did not
submit the agreement to the court for review or approval. On September
24, 1992, the court granted Utah's motion and dismissed the case with
prejudice. Also pursuant to the agreement, Utah submitted to OSM the
proposed amendment that is the subject of this notice. Subsequently,
OSM sent to Utah a letter dated May 19, 1993, invalidating the
September 4, 1992, agreement to the extent that it exempted certain
mine roads existing on September 4, 1992, from regulation under SMCRA
(administrative record No. UT-842).
B. Description of Proposed Amendment
As noted above, Utah proposed to revise its definitions of
``affected area,'' ``road,'' and ``public road'' at Utah Admin. R. 645-
100-200. Specifically, Utah proposed to revise its definition of
``affected area'' as follows, with the italicized language to be added:
``Affected area'' means any land or water surface area which is
used to facilitate, or is physically altered by, coal mining and
reclamation operations. The affected area includes the disturbed
area; any area upon which coal mining and reclamation operations are
conducted; any adjacent lands the use of which is incidental to coal
mining and reclamation operations; all areas covered by new or
existing roads used to gain access to, or for hauling coal to or
from, coal mining and reclamation operations, except as provided in
this definition; any area covered by surface excavations, workings,
impoundments, dams, ventilation shafts, entryways, refuse banks,
dumps, stockpiles, overburden piles, spoil banks, culm banks,
tailings, holes or depressions, repair areas, storage areas,
shipping areas; any areas upon which are sited structures,
facilities, or other property material on the surface resulting
from, or incident to, coal mining and reclamation operations; and
the area located above underground workings. The affected area shall
include every road used for purposes of access to, or for hauling
coal to or from, coal mining and reclamation operations, unless the
road (a) was designated as a public road pursuant to the laws of the
jurisdiction in which it is located; (b) is maintained with public
funds and constructed in a manner similar to other public roads of
the same classification within the jurisdiction; and (c) there is
substantial (more than incidental) public use. Editorial Note: The
definition of Affected area, insofar as it excludes roads which are
included in the definition of Surface coal mining operations, was
suspended at 51 FR 41960, Nov. 20, 1986. Accordingly, Utah suspends
the definition of Affected Area insofar as it excludes roads which
are included in the definition of ``coal mining and reclamation
operations.''
Utah proposed to revise its definition of ``road'' as follows, with
the capitalized language in brackets to be removed and the italicized
language to be added:
``Road'' means a surface right-of-way for purposes of travel by
land vehicles used in [COAL EXPLORATION OR] coal mining and
reclamation operations or coal exploration. A road consists of the
entire area within the right-of-way, including the roadbed,
shoulders, parking and side areas, approaches, structures, ditches,
and surface. The term includes access and haulroads constructed,
used, reconstructed, improved, or maintained for use in [COAL
EXPLORATION, OR WITHIN THE AFFECTED AREA OF] coal mining and
reclamation operations or coal exploration, including use by coal
hauling vehicles [LEADING] to and from transfer, processing, or
storage areas. The term does not include [ROADS] ramps and routes of
travel within the immediate mining [PIT] area or within spoil or
coal mine waste disposal areas.
Finally, Utah proposed to revise its definition of ``public road''
as follows, with the capitalized language in brackets to be removed and
the italicized language to be added:
``Public road'', for the purposes of part R645-103-200, R645-
301-521.123, and R645-301-521.133 means a road (a) which has been
designated as a public road pursuant to the laws of the jurisdiction
in which it is located [,]; (b) which is maintained with public
funds in a manner similar to other public roads of the same
classification within the jurisdiction [, AND]; (c) for which there
is substantial (more than incidental) public use; and (d) which
meets road classification standards for other public roads of the
same classification in the local jurisdiction.
C. Specific Findings
For the following reasons, OSM finds that Utah's proposed amendment
to its definitions of ``affected area,'' ``road,'' and ``public road''
at Utah Admin. R. 645-100-200 is in accordance with SMCRA and
consistent with the Federal regulations. OSM finds that, except for
some differences in wording, Utah's proposed amendment to its
definitions of ``affected area,'' ``road,'' and ``public road'' at Utah
Admin. R. 645-100-200 is substantively identical to the corresponding
Federal definitions of ``affected area'' and ``road'' at 30 CFR 701.5
and ``public road'' at 30 CFR 761.5. As discussed below, these
differences in wording are necessary to maintain consistency throughout
Utah's regulations and make the proposed amendment conform to the Utah
program.
1. Definition of ``Affected Area''
As noted above, Utah's proposed amendment to its definition of
``affected area'' at Utah Admin. R. 645-100-200 states, in part, as
follows:
Editorial Note: The definition of Affected area, insofar as it
excludes roads which are included in the definition of Surface coal
mining operations, was suspended at 51 FR 41960, Nov. 20, 1986.
Accordingly, Utah suspends the definition of Affected Area insofar
as it excludes roads which are included in the definition of ``coal
mining and reclamation operations.''
In this note, Utah suspended its definition of ``affected area''
insofar as it excluded roads that were included in the definition of
``coal mining and reclamation operations'' at Utah Admin. R. 645-100-
200. This is consistent with the November 20, 1986, partial suspension
of the Federal definition of ``affected area'' (51 FR 41960).
A difference between Utah's proposed definition of ``affected
area'' and its Federal regulatory counterpart is that Utah's proposed
definition of ``affected area'' uses the term ``coal mining and
reclamation operations, '' while the Federal definition of ``affected
area'' uses the term ``surface coal mining and reclamation
operations.'' This difference, however, is not substantive. The Utah
regulatory term ``coal mining and reclamation operations,'' as defined
at Utah Admin. R. 645-100-200, is substantively identical to the
Federal regulatory term ``surface coal mining operations,'' as defined
at 30 CFR 700.5. In addition, the Utah regulatory term ``coal mining
and reclamation operations'' specifically incorporates the term
``surface coal mining and reclamation operations,'' which is defined at
Utah Code Annotated (U.C.A.) 40-10-3(17). The Utah statutory definition
of ``surface coal mining and reclamation operations'' is substantively
identical to the corresponding Federal statutory definition of
``surface coal mining and reclamation operations'' at section 701(27)
of SMCRA and the Federal regulatory definition of that term at 30 CFR
700.5. Furthermore, the term ``coal mining and reclamation operations''
is used throughout Utah's regulations at Utah Admin. R. 645, which
implement the provisions of the Utah Coal Mining and Reclamation Act
(the State Act) at Title 40, Chapter 10, of the U.C.A. Thus, the use of
the term ``coal mining and reclamation operations'' in Utah's proposed
definition of ``affected area'' is both consistent with Utah's
regulations at Utah Admin. R. 645 and is consistent with and no less
effective than the term ``surface coal mining and reclamation
operations,'' as used in the Federal definition of ``affected area.''
For the reasons stated above, the Director approves Utah's proposed
amendment to the term ``affected area'' at Utah Admin. R. 645-100-200.
2. Definition of ``Road''
The only difference between Utah's proposed definition of ``road''
at Utah Admin. R. 645-100-200 and the Federal definition of ``road'' at
30 CFR 701.5 is that Utah uses the term ``coal mining and reclamation
operations'' in its definition, while the Federal definition of
``road'' uses the term ``surface coal mining and reclamation
operations.'' As discussed in finding No. III.C.1. above, this
difference is not substantive. Thus, Utah's use of the term ``coal
mining and reclamation operations'' in its proposed definition of
``road'' is consistent with and no less effective than the Federal
definition of ``road.'' In addition, as was discussed in item No.
III.A. above, Utah agreed, as part of the September 4, 1992, agreement
(provision I.2.a.), to conform the withdrawal of its supplemental
policy statement. By letter dated June 10, 1992, Utah notified OSM that
the Board of Oil, Gas and Mining did, in fact, withdraw the
supplemental policy statement, effective December 5, 1991
(administrative record No. UT-771). Accordingly, the Director approves
Utah's proposed amendment to the term ``road'' at Utah Admin. R. 645-
100-200, accepts Utah's withdrawal of the supplemental policy
statement, and removes the required amendments codified at 30 CFR
944.16(n)(1) and (2).
3. Definition of ``Public Road''
Utah's proposed definition of ``public road'' at Utah Admin. R.
645-100-200, among other things, adds language that limits the use of
this term to the purposes of parts Utah Admin. R. 645-103-200, 645-301-
521.123, and 645-301-521.133. These parts of the Utah program contain
rules for designating lands unsuitable for coal mining and reclamation
operations. Thus, Utah's proposed definition of ``public road'' is
applicable only to the Utah rules for designating lands unsuitable for
such mining. This limitation is consistent with the Federal definition
of ``public road'' at 30 CFR 761.5, which applies only in the limited
context of areas designated by Act of Congress as being unsuitable for
surface coal mining operations (56 FR 58846, 58849, November 22, 1991).
Thus, Utah's proposed addition of the above-referenced language to its
definition of ``public road'' at Utah Admin. R. 645-100-200 is
consistent with and no less effective than the Federal definition of
``public road'' at 30 CFR 761.5. The Director approves Utah's proposed
amendment to the term ``public road'' and removes the required
amendment at 30 CFR 944.16(o).
IV. Summary and Disposition of Comments
A. Public Comments
1. Support for Utah's Proposed Amendment: Processing of Amendments
Two commenters said they supported the proposed amendments and
encouraged their approval as quickly as possible. The commenters
further noted that approval of these definitions, which are identical
to the Federal definitions, will remove any ambiguity recognized with
respect to Utah's responsibilities to permit roads used primarily for
coal mining purposes. In addition, the commenters stated that,
according to OSM regulations at 30 CFR 732.17(h)(7), approval of the
proposed amendments was required by January 15, 1993, 30 days after the
close of the comment period (December 16, 1992), and that in doing so,
OSM must, as required by 30 CFR 732.17(h)(10), apply the criteria set
forth in 30 CFR 732.15 when determining whether to approve such
amendment. Finally, the commenters said that because the proposed
amendments are identical to the existing Federal regulations, there
should be no question that the amendments should be approved within the
mandatory 30-day time period.
OSM concurs with the commenter's interpretation regarding the
above-cited Federal regulations. However, OSM also believes it
necessary to provide clarification regarding the applicability of
amendment processing procedures and the comment that approval of the
proposed amendments was required by January 15, 1993, 30 days after the
close of the comment period following publication of the proposed rule
notice in the Federal Register.
Each State program amendment raises different legal and technical
issues that require differing levels of analysis. Therefore, unless a
proposed amendment is a verbatim copy of the comparable Federal
regulation, it may require extensive review and analysis by Federal
authorities in consultation with their State counterparts. The process
involves review of widely varying amendments that must comport with
Federal and State laws and court cases. Rather than simply disapprove a
deficient proposal, OSM attempts to work with the State to bring the
proposal up to a level where it is comparable to and no less effective
than the Federal regulations. This process can be time consuming. Thus,
the potential for delays in the process is a constant.
With respect to Utah's September 17, 1992, proposed amendment, OSM
identified deficiencies regarding Utah's definitions of ``affected
area,'' ``road,'' and ``public road.'' Accordingly, OSM notified Utah
of the deficiencies by an issue letter dated January 21, 1993. The
issue letter provided Utah with an opportunity to correct the specified
deficiencies. Utah responded to the issue letter in a revised amendment
dated March 24, 1993. OSM then announced receipt of the revised
proposed amendment in the April 8, 1993, Federal Register (58 FR
18187), and, in the same notice, reopened and extended the public
comment period for 15 days. The extended comment period closed on April
23, 1993. Therefore, according to OSM regulations at 30 CFR
732.17(h)(7), approval or disapproval of Utah's proposed amendment was
required by May 24, 1993, the first work day 30 days after the close of
the extended comment period.
However, with respect to timely processing of amendments, the
general rule is that a statutory or regulatory time period for agency
action is not mandatory unless it specifies a consequence for the
agency's failure to meet the prescribed deadline. Where no such
consequence is specified, the time period is regarded as directory
only, intended to guide agency procedures but not to set inflexible
requirements. (See, Brock v. Pierce County, 476 U.S. 253, 259, 106 S.
Ct. 1834, 1838, 90 L. Ed. 248, 255 (1986); In re Barr Laboratories,
Inc., 930 F.2d 72, 74 (D.C. Cir. 1991); and, 1A N. Singer, Sutherland
Statutory Construction Sec. 25.03 (5th ed. 1991)).
In the case of the State program amendment process, the regulation
at 30 CFR 732.17(h)(7), which requires OSM to approve or disapprove the
proposed amendment within 30 days of the close of the comment period,
and the regulation at 30 CFR 732.17(h)(13), which establishes the 6-
month period for the completion of action on State program amendments,
do not impose any consequence in the event OSM fails to meet the
deadlines. Thus, these deadlines are directory, rather than mandatory.
2. Additional Support for Utah's Proposed Amendment
One commenter, who resides in a rural county in Utah that contains
extensive coal reserves, responded with support of Utah's proposed
amendment. The commenter further noted that (1) because of the small
population base and large geographic parameters of the county, which
contains mostly Federal lands, it is important to have Utah's proposed
definitions in place in order to develop the local economy and (2) the
coal mining industry is a large part of the local economy providing
employment for the citizens of the area. OSM acknowledges these
comments.
3. Terms of the September 4, 1992, Agreement
Several commenters expressed concerns about the September 4, 1992,
agreement. That agreement provides in pertinent part as follows:
I. The [Utah] Division [of Oil, Gas and Mining] agrees to:
* * * * *
2. In recognition of the direction of the Director of OSM as set
forth in OSM's final rule published on November 22, 1991, 56 FR
58846 (the final rule):
* * * * *
b. Submit a program amendment of the Division's definition of
the term ``Road'', to read the same as the corresponding federal
definition at 30 CFR 701.5;
c. Submit a program amendment of the Division's definition of
the term ``Public Road'', to read the same as the corresponding
federal definition at 30 CFR 761.5 and, in addition, provide that
the definition applies only in the context of Utah Admin. R645-103-
100, et seq., Areas unsuitable for Coal Mining and Reclamation
Operations; and
d. Submit a program amendment of the Division's definition of
the term ``Affected Area'' to read the same as the corresponding
federal definition at 30 CFR 701.5.
II. OSM and the Division agree that:
1. If a road in Utah has not previously been determined to be
part of an existing surface coal mining operation, the road will not
be required to be included within a permit, based on current federal
statute and regulations and the current Utah statute and rules; and
2. With respect to any application for a permit to conduct
surface coal mining and reclamation operations under the Utah Coal
Regulatory Program, including any application pending at the time of
this agreement, the state will apply the Utah statute and rules
existing on the date of permit approval.
One commenter asserted that the Federal regulatory definitions of
``road,'' ``public road,'' and ``affected area,'' and Utah's proposed
amendment to its regulatory definitions of those terms, do not clearly
define OSM's and Utah's jurisdiction over public roads. The commenter
stated that until OSM and Utah clarify their jurisdiction over public
roads, they must only impose on operators regulations that conform to
the specific terms of the September 4, 1992, agreement. The commenter
noted that this agreement requires Utah to submit to OSM a program
amendment to Utah's regulatory definitions of ``road,'' ``public
road,'' and ``affected area'' that ``reads the same as'' the
corresponding Federal regulatory definitions of those terms. In line
with this position, the commenter stated that Utah's proposed amendment
must be changed because the proposed definitions of ``road,'' ``public
road,'' and ``affected area'' use terms, such as ``coal mining and
reclamation operations,'' that are not contained in the corresponding
Federal regulatory definitions of ``road,'' ``public road,'' and
``affected area.'' Alternatively, the commenter stated that OSM may
approve Utah's proposed amendment, but only after OSM formally changes
its own regulatory definitions of ``road,'' ``public road,'' and
``affected area'' to use such terms as ``coal mining and reclamation
operations.'' Also, the facilitate this position, the commenter stated
that OSM's and Utah's regulations must be modified to include the
specific terms of the September 4, 1992, agreement. Two additional
commenters stated that, in accordance with the September 4, 1992,
agreement, all Utah mine roads existing as of that date were
``grandfathered,'' i.e., exempted from regulation. The commenters
further said that under that agreement, if a road had not been included
within a permitted surface coal mining operation prior to September 4,
1992, it will not be incorporated into a permit. The commenters then
requested that the Utah program be amended to specifically incorporate
this grandfather provision.
OSM agrees with the comment that the Federal regulatory definitions
of ``road,'' ``public road,'' and ``affected area,'' and Utah's
proposed amendment to its regulatory definitions of those terms, do
not, respectively, clearly define OSM's and Utah's jurisdiction over
public roads. Those definitions, however, do not purport, in and of
themselves, to define jurisdiction over public roads. In the preamble
to the final roads rule, OSM said that it currently relies on the
applicable language of the Federal definitions of ``surface coal mining
operations'' at section 710(28) of SMCRA and the Federal regulations at
30 CFR 700.5, and that Utah must, among other things, also rely on its
statutory definition of that term at U.C.A. 40-10-3(18) in determining
jurisdiction over public roads (56 FR 58846, 58848-49, November 22,
1991). Also, in the final roads rule, as discussed under part III.A. of
this notice, OSM found that, when determining whether a public road is
subject to regulation under SMCRA and the Utah program, the regulatory
authority must consider the extent and effect of the mining-related use
of the road (56 FR 58846, 58847-49, 58851-52, 58854-55, November 22,
1991). Thus, OSM's and Utah's jurisdiction over public roads is
determined, respectively, under the Federal and Utah definitions of
``surface coal mining operations'' and other guidance such as the
preamble to the final roads rule.
OSM disagrees with the comment that the Federal and Utah regulatory
definitions of ``road,'' ``public road,'' and ``affected area'' must
literally ``read the same.'' Pursuant to 30 CFR 732.15(a), OSM may
approve a proposed amendment to a State program if, among other things,
the proposed amendment is in accordance with SMCRA and consistent with
the Federal regulations implementing SMCRA. OSM interprets paragraphs
I.2.b., c., and d. of the September 4, 1992, agreement to only require
Utah to submit to OSM a proposed amendment meeting those requirements.
For the reasons discussed above under part III of this notice, OSM
finds that Utah's proposed amendment meets, upon the stated conditions,
the requirements of 30 CFR 732.15(a) and provisions I.2.b., c., and d.
of the September 4, 1992, agreement.
OSM disagrees with the comment that the Federal and Utah
regulations must be modified to include the specific terms of the
September 4, 1992, agreement. Nothing in SMCRA, the Federal
regulations, the Utah program, or the September 4, 1992, agreement
requires Utah or OSM to modify their respective regulations to include
specific terms of that agreement.
In addition, OSM notified Utah, by letter dated May 19, 1993, of
its determination that paragraph II.1. of the September 4, 1992,
agreement, which would have exempted certain Utah mine roads from
regulation under SMCRA and the Utah program, is contrary to law and
thus is not binding on OSM. The September 4, 1992, agreement was not
reviewed, approved, or adopted by the court in Utah v. Lujan. Thus, it
is nothing more than a contract between OSM and Utah. Under general
contract law, a Federal agency cannot contract with a body it regulates
in a manner contrary to its statutory authority or in a manner that
does not give full effect to the intent of the Congress (Board of
Directors and Officers, Forbes Federal Credit Union v. National Credit
Union Admin., 477 F.2d 777, 784 (10th Cir. 1973)). Contracts entered in
violation of statutory or regulatory law are unenforceable if
enforcement would ``offend the essential purpose of the enactment''
(United States v. Mississippi Valley Co., 364 U.S. 520, 563 (1961). See
also Quinn v. Gulf Western Corp., 644 F.2d 89, 93-94 (2d Cir. 1981);
D.M. Yates, 74 IBLA 159, 161 (1983). See generally E. Farnsworth,
Contracts sections 5.5-5.6 (2d ed. 1982); 15 S. Williston, Contracts
section 1763 (3d ed. 1972)). In other words, OSM is free to enter into
contracts or agreements with other parties, but when a provision of a
contract or agreement conflicts with OSM's statutory responsibilities
under SMCRA such that its enforcement would offend an essential purpose
of SMCRA, that provision is unenforceable.
Under paragraph II.1. of the September 4, 1992, agreement, Utah and
OSM agreed to a blanket exemption from regulation under SMCRA and the
Utah program of all unpermitted mine roads existing prior to September
4, 1992. SMCRA jurisdiction over mine roads derives from the statutory
definition of the term ``surface coal mining operations'' at section
701(28). SMCRA defines this term, in pertinent part, to mean:
(A) Activities conducted on the surface of lands in connection
with a surface coal mine * * *; and
(B) the areas upon which such activities occur or where such
activities disturb the natural land surface. Such areas shall also
include * * * all lands affected by the construction of new roads to
gain access to the site of those activities and for haulage * * *
(emphasis added). This definition of ``surface coal mining operations''
is substantively identical to the Federal regulatory definition of that
term at 30 CFR 700.5 and Utah's statutory definition of that term at
U.C.A. 40-10-3(18).
Under those definitions, OSM and Utah are required to regulate
certain mine roads, based, in part, on the extent and effect of mining-
related use of the road (see 56 FR at 58847-49 (1991); 55 FR 13773,
13775 (1990); 53 FR 54190, 54192 (1988)). Nothing in SMCRA or the Utah
program provides for a blanket exemption of mine roads from regulation.
To the contrary, jurisdiction over mine roads must be made on a case-
by-case basis (see 56 FR at 58848 (1991); 55 FR 13773, 13775 (1990); 53
FR 54190, 54193 (1988)).
By granting a blanket exemption to existing, unpermitted mine roads
without any consideration given to the amount of their mining-related
use, paragraph II.1. of the September 4, 1992, agreement would have
exempted roads which, under SMCRA and the Utah program, OSM and Utah
are required to regulate. Thus, paragraph II.1. is contrary to SMCRA
and the Utah program.
Moreover, the enforcement of paragraph II.1. of the September 4,
1992, agreement offends an essential purpose of SMCRA and the Utah
program (See Mississippi Valley, 364 U.S. at 563). One of SMCRA's
essential purposes is ``to protect the environment and ensure the
reclamation of mined areas'' (Daniel Brothers Coal Co., 2 IBSMA 45, 49
(1980); see also section 102(a) of SMCRA). Also, as U.C.A. 40-10-2(3)
indicates, one of the purposes of the Utah program is to ``[a]ssure
that surface coal mining operations are conducted so as to protect the
environment.'' Given the significant environmental harm that can result
from unregulated mine access and haul roads, these statutory purposes
cannot be fully met by an agreement, such as paragraph II.1., to grant
an unauthorized regulatory exemption.
For the reasons given above, paragraph II.1. of the September 4,
1992, agreement is contrary to SMCRA and the Utah program, and because
its enforcement would offend an essential purpose of these laws it is
unenforceable. Accordingly, paragraph II.1. must not be applied by OSM
or Utah to any permitting or enforcement decisions in Utah.
Under paragraph II.2. of the September 4, 1992, agreement, Utah
agreed to ``apply the Utah statute and rules existing on the date of
permit approval'' to any permit applications pending on September 4,
1992, and to any future permit applications. In the aforementioned
letter to Utah dated May 19, 1993, OSM stated that this provision is
valid as long as (1) the phrase ``Utah statutes and rules'' is
interpreted to mean the approved Utah State program; (2) any
application of the Utah statute and rules to a permitting decision is
consistent with the Department of the Interior's actions in approving
or not approving such statutes and rules (see, e.g., 56 FR 58846,
November 22, 1991); and (3) the provision is not interpreted to prevent
Utah or OSM from taking action subsequent to permit approval, where
appropriate under the approved program (e.g., requiring a permit
revision to reflect changes in applicable law).
For these reasons, the Federal regulations and the Utah program
must not be modified to include the specific terms of paragraphs II.1.
and II.2. of the September 4, 1992, agreement.
4. Basis for Submission of Utah's Proposed Amendment and the Effect of
OSM's Invalidation of Provision II.1. of the September 4, 1992,
Agreement on Utah's Proposed Amendment
One commenter stated that OSM's May 19, 1993, letter, which
notified Utah that a portion of the September 4, 1993, agreement
between Utah and OSM was contrary to law and therefore not binding on
OSM, constitutes an abrupt reversal of position and abdication of the
agreement that forms the basis for the amendment addressed in this
notice. Notwithstanding OSM's action on the agreement, the commenter
requested that OSM approve the amendment.
OSM disagrees with the commenter's inference that the agreement was
the sole reason that Utah submitted the amendment to OSM. When OSM and
Utah drafted the agreement, they ensured that the required amendments
of the Director's decision in the November 22, 1991, Federal Register
would be satisfied by Utah complying with provisions I.2. b., c., and
d. of the agreement. Therefore, when Utah submitted proposed
definitions of ``road,'' ``public road,'' and ``affected area,'' it did
so not only in accordance with provisions I.2. b., c., and d. of the
agreement, but also in response to required program amendments at 30
CFR 944.16 (n) and (o) that OSM placed on the Utah program in the
November 22, 1991, notice. Had OSM and Utah not entered into the
agreement, Utah still would have had to submit proposed definitions to
satisfy the required amendments at 30 CFR 944.16 (n) and (o).
OSM also disagrees with the commenter's assertion that OSM's
approval of the amendment would be inconsistent with OSM's notification
to Utah that a part of the agreement was contrary to law and not
binding on OSM. The agreement consisted of two parts. The first part
(provision I) addressed actions by Utah (1) to withdraw with prejudice
its lawsuit on certain roads violations that OSM issued in Utah
(provision I.1.) and (2) to withdraw a policy statement and revise its
definitions of ``road,'' ``public road,'' and ``affected area'' in a
manner consistent with the corresponding Federal definitions at 30 CFR
701.5 and 761.5 (provisions I.2. a., b., c., and d.). The second part
(provision II.) addressed the implementation of the Federal and State
statutes and regulations with respect to (1) existing roads that were
not, as of September 4, 1992, previously determined to be part of an
existing surface coal mining operation and required to be permitted
(provision II.1.) and (2) permit applications pending Utah's approval
or disapproval as of September 4, 1992 (provision II.2.). While OSM by
its May 19, 1993, letter notified Utah that provision II.1. of the
September 4, 1993, agreement between Utah and OSM was not binding on
OSM, provisions I.1., I.2. a., b., c., and d., and II.2. remained in
effect. Therefore, contrary to the commenter's statement, OSM could
approve the amendment as long as Utah's proposed definitions of
``road,'' ``public road,'' and ``affected area,'' which are the subject
of provisions I.2. a., b., c., and d., of the agreement, were not
inconsistent with the corresponding Federal definitions at 30 CFR 701.5
and 761.5.
In addition, the commenter raised several arguments concerning the
legal validity of the reasons OSM set forth in its May 19, 1993,
notification to Utah that provision II.1. of the September 4, 1993,
agreement between Utah and OSM was contrary to law and therefore not
binding on OSM. The Director notes these arguments but does not respond
to them because they are outside the scope of this rulemaking to the
extent that Utah did not submit in this amendment proposed rules
incorporating provision II.1. of the agreement.
5. Jurisdiction
Two commenters expressed concerns that Utah's proposed definitions
of ``road,'' ``public road,'' and ``affected area,'' would
inappropriately broaden the State's jurisdiction under the State Act to
regulate ``public roads'' that service coal mining operations, coal
exploration activities, and most haulage. The commenters noted that the
term ``public road'' would no longer be applied in determining areas
that should be permitted under the State Act since that term, as
proposed, would be limited to defining areas unsuitable for mining. The
commenters stated that, accordingly, the definition of ``public road,''
which includes criterion (d) indicating that a public road must meet
construction standards for other public roads of the same
classification in the local jurisdiction, will no longer be applied in
determining whether or not a road should be permitted under the State
Act.
OSM disagrees with the comment that Utah's proposed definitions
will inappropriately broaden the State's jurisdiction under the State
Act to regulate ``public roads.'' As discussed above under part III.A.
of this notice, on February 25, 1991, Utah adopted certain revisions to
its definitions of ``road'' and ``public road'' at Utah Admin. R. 645-
100-200, along with a supplemental policy statement that, considered
together, would exempt all public roads from regulation under the Utah
program. That adoption by Utah, however, did not take effect because it
was never approved by OSM, as required by 30 CFR 732.17(g). Thus, the
term ``public road,'' as adopted by Utah on February 25, 1991, was
never effective as a matter of law. Consequently, Utah's proposed
amendment does not serve to broaden its jurisdiction to regulate a
``public road.'' In addition, and more importantly, even if Utah's
proposed definition of ``public road'' is mistakenly interpreted as
broadening jurisdiction, it is not inappropriate since it is no less
effective than the corresponding Federal definition of ``public road.''
6. Public Roads and the Phrase ``Substantial (More Than Incidental)''
Public Use
Two commenters stated that Utah's proposed definition of the term
``affected area'' appears to exclude public roads and requested that
Utah further defined the phrase ``substantial (more than incidental)''
public use, as used in the definition of ``affected area.'' In
addition, one of the commenters said the definition of ``affected
area'' should be clarified to state a percentage of vehicle traffic
other than mining that would constitute public use.
OSM acknowledges the comment that Utah's proposed definition of
``affected area'' appears to exclude public roads. However, as
discussed above under part III.C.1. of this notice, the editorial note
in Utah's proposed definition of ``affected area'' has the effect of
including in the ``affected area'' all roads that are included in the
definition of ``coal mining and reclamation operations.''
OSM disagrees with the comments that Utah further define the phrase
``substantial (more than incidental)'' public use and that Utah provide
a percentage of vehicle traffic other than mining that would constitute
public use. In the preamble to a final rule establishing performance
standards for roads associated with surface coal mining operations, OSM
said that:
State laws vary widely in their road classification systems.
OSMRE [OSM] is concerned that roads constructed to serve mining
operations not avoid compliance with the performance standards by
being deeded to public entities. However, it is not OSMRE's
intention automatically to extend jurisdiction over roads into the
existing public road network. Jurisdiction under the Act [SMCRA] and
applicability of the performance standards are best determined on a
case-by-case basis by the regulatory authority.
(53 FR 45190, 45193, November 8, 1988). Thus, a case-by-case approach
is necessary in determining the applicability of the Utah program to
public roads. Utah's proposed amendment, as discussed under part
IV.A.3. of this notice, provides guidance that is no less effective
than that specified in the Federal definition of ``surface coal mining
operations'' at 30 CFR 700.5 regarding which public roads are subject
to Utah's jurisdiction.
Another commenter suggested that the Utah term ``public road''
additionally include roads to which the public has access. As indicated
in finding No. III.C.3., Utah adds language that limits the use of this
term to parts R645-103-200, R645-301-521.123, and R645-301-521.133 of
Utah's rules, which pertain only to designating lands unsuitable for
coal mining and reclamation operations. While OSM appreciates the
commenter's suggestion, it cannot require Utah to amend its definition
further because the proposed definition has been determined to be no
less effective than the corresponding Federal definition.
7. Definition of ``Road''
Two commenters stated that Utah's proposed definition of the term
``road'' is so broad that it includes almost any road that carries coal
in intrastate and interstate commerce, and should be amended to clarify
that the term ``road'' does not include ``public roads'' or roads
excluded under the term ``affected area.''
OSM disagrees with these comments. Utah's proposed definition of
the term ``road'' is substantively identical to the Federal regulatory
definition of that term at 30 CFR 701.5. Both of those definitions of
``road'' are clear on their respective terms as to which roads are to
be regulated as surface coal mining operations. The determination as to
whether a particular road will be regulated as part of a surface coal
mining operation must be made on a case-by-case basis by the regulatory
authority, and must be based upon the mining-related use of the road
(53 FR 45190, 45192, November 8, 1988; 56 FR 58846, 58848-9, November
22, 1991).
8. Application of Mining-Related Use of Roads as Criteria To Determine
Whether a Road Is Subject to SMCRA Permitting Requirements
A commenter stated that OSM's application of the extent and effect
of the mining-related use of roads as criteria in determining whether a
road is subject to SMCRA permitting requirements is contrary to OSM's
announced deference to State decision making, whereby States with
primacy should be allowed to determine, on a case-by-case basis, which
roads must be included within the permit area. Specifically the
commenter asserted that nothing in SMCRA or the Federal regulations
grants OSM the authority to make case-by-case determinations in primacy
States of which roads must be included within a permit area. The
commenter next stated that OSM has no standards in place that define
the point at which mining-related use requires the inclusion of a road
within a permit area. The commenter further stated that there are no
Federal standards defining what constitutes a de minimus use of a road.
Instead, OSM has allowed States to determine the point at which
jurisdiction begins and ends through individual State permitting
decisions. Thus, the commenter concluded that the Federal regulatory
definition of ``affected area'' no longer provides relevant guidance in
light of OSM's deference to State decision making.
With respect to the first comment that OSM relies on the extent and
effect of the mining-related use of roads as criteria in determining
whether a road is subject to SMCRA permitting requirements, OSM wishes
to emphasize that the regulation of public roads as part of a surface
coal mining operation is not solely dependent upon the use of a road.
Factors such as the purpose and time of its construction, the extent to
which the road is directly part of a surface coal minng operation, the
degree to which the road is altered to accommodate mining operations,
and the impact of mining operations on the road and its surrounding
environment may be major considerations in determining whether a road
is subject to regulation under SMCRA. In addition, under the Federal
definition of ``surface coal mining operations'' at 30 CFR 700.5, a
road may be subject to regulation under SMCRA notwithstanding the lack
of demonstrable impacts associated with its mining-related
construction, maintenance, and use. Therefore, even in the absence of
such evidence, it may be appropriate to regulate a road in order to
ensure, through the SMCRA permitting, inspection, and enforcement
processes, that the purposes of SMCRA are achieved (56 FR 58846, 58852,
November 22, 1991).
With respect to the comments regarding the lack of Federal
standards for determining when mining-related use requires the
inclusion of a road within the permit area, the definitions of
``affected area'' and ``surface coal mining and reclamation
operations'' provide guidance in these instances.
OSM has modified its regulations in accordance with court decisions
to provide guidance to States and other interested parties for
determining when roads will be regulated as part of a surface coal
mining operation. OSM, pursuant to court order in In re Permanent
Surface Mining Regulation Litigation (In re Permanent), 620 F. Supp.
1519, 1581-82 (D.D.C. 1985), modified sub. nom., National Wildlife
Federation v. Hodel, 839 F.2d 694 (DC Cir. 1988), modified its
interpretation of the extent to which SMCRA applied to public roads.
Specifically, OSM suspended the Federal regulatory definition of
``affected area'' to the extent that it excluded public roads that are
included in the Federal regulatory definition of ``surface coal mining
operations'' (51 FR 41952, November 20, 1986). OSM stated that ``[t]he
suspension will have the effect of including in the `affected area' all
lands affected by the construction of new roads or the improvement or
use of existing roads to gain access to the site of the regulated
activities or for haulage'' (51 FR 41952, 41953, emphasis added).
In determining which mining-related roads are subject to
regulation, OSM currently relies on the applicable language of the
Federal definitions of ``surface coal mining operations'' at section
701(28) of SMCRA and 30 CFR 700.5. This may require, in appropriate
circumstances, that OSM and State regulatory authorities issue, and
surface coal mine operators obtain, permits for certain public roads
(56 FR 58846, 58848, November 22,1991).
With respect to the comment on the scope of OSM's oversight
authority in primacy States to review the States' case-by-case
determinations on roads, OSM will not respond here. This issue is
pertinent to Utah's implementation of its statute and rules and OSM's
oversight of Utah's actions in accordance with section 201 of SMCRA,
but is not pertinent to this State program amendment.
9. Proper Interpretation of ``Affected Area''
A commenter asserted that OSM has failed to consider the extent to
which a broad interpretation of the term ``affected area'' may conflict
with other regulations that define which public roads are entitled to
environmental protection. As an example, the commenter cited section
522(e)(4) of SMCRA, which states that no surface coal mining operations
shall be permitted within 100 feet of the outside right-of-way line of
any public road, and the definition of ``public road'' at 30 CFR 761.5,
which implements section 522(e)(4) of SMCRA and lists the following
criteria a road must meet in order to qualify as a public road: the
road has been designated as a public road by the State or local law, it
is maintained with public funds, there is substantial, or more than
incidental, public use, and the road meets applicable road construction
standards. The commenter continued that OSM should not apply one
definition of ``public road'' for the purpose of implementing the SMCRA
section 522(e) prohibitions and another definition for determining
whether a road falls within the scope of ``surface coal mining
operations'' subject to permitting requirements. The commenter
concluded that OSM should avoid construing the definition of ``affected
area'' in a manner that would conflict with other statutory and
regulatory requirements.
OSM does not agree with these comments. As discussed below, OSM is
constrained by the court's decision in In re Permanent in how it
regulates roads.
The Federal definition of ``affected area'' once included a
``substantial (more than incidental) public use'' criterion, as the
current definition of ``public roads'' also does. However, paragraph
(c) of the Federal definition of ``affected area'' at 30 CFR 701.5, in
which OSM previously interpreted the term ``affected area'' as not
applying to roads for which `'there is substantial (more than
incidental) public use,'' was successfully challenged in In re
Permanent. As a result, and as stated above in response to comment
IV.A.8., OSM modified its interpretation of the extent to which SMCRA
applied to public roads and suspended the definition of ``affected
area'' ``to the extent that it excludes public roads that are included
in the definition of ``surface coal mining operations'' (51 FR 41952,
41953, November 20, 1986). The Federal definition of ``public road'' at
30 CFR 761.5 was not challenged and the ``substantial (more than
incidental) public use'' criterion in that definition remains in force
in the context of lands unsuitable for mining.
The commenter addressed the editorial note that Utah proposes for
the definition of ``affected area.'' This note indicates that a portion
of the definition is suspended insofar as it excludes roads that are
included in the definition of ``coal mining and reclamation
operations'' at Utah Admin. R. 645-100-200. The commenter stated that
this clarification is not necessary because the State's proposed
definition of ``affected area'' clearly delineates the regulatory
authority's jurisdiction.
OSM disagrees with this comment. As finding No. III.C.1. indicates,
Utah's proposed definition of ``affected area'' and accompanying
editorial note are, with only a few nonsubstantive differences,
verbatim copies of the Federal definition of ``affected area'' and
accompanying editorial note. As discussed above, the editorial note
accompanying the Federal definition is necessary to bring the
definition into compliance with the court decision In re Permanent. The
same is also the case with the State definition. Without the editorial
note or other equivalent revision to Utah's rules, the Utah program
would not be consistent with the Federal regulations that were revised
in response to the court decision.
B. Agency Comments
Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on
Utah's proposed amendment from the Administrator of the U.S.
Environmental Protection Agency (EPA), the Secretary of the U.S.
Department of Agriculture, and the heads of other Federal agencies with
an actual or potential interest in the Utah program.
By letter dated January 21, 1993, the U.S. Forest Service (USFS)
commented that forest development roads (FDR'S) are not public roads
(23 U.S.C. 101(a)) in the same sense as roads that are under the
jurisdiction of public agencies, such as States or counties
(administrative record No. UT-821) and are not intended to meet the
transportation needs of the public at large. Instead, they are
authorized only for the administration and utilization of National
Forest System lands. Although FDR's are generally open and available
for public use, that use is at the discretion of the Secretary of
Agriculture. Through authorities delegated by the Secretary, USFS may
restrict or control use to meet specific management direction.
Commercial users, permittees, or contractors also may be required to
share in the cost of developing, improving, and maintaining FDR's.
USFS also stated that it may regulate use and restrict public
travel on FDR's regardless of whether there is substantial or
incidental use. The USFS added that sometimes there are FDR's with
seasonal adjusted daily traffic of less than 10 vehicles per day ``open
to public travel'' when these roads serve large blocks of Forest lands,
serve important resources, or are the only access routes within the
block of land.
USFS recommended that because it has the legal right to control or
regulate FDR's, Utah Admin. R. 645-301-200 (defining ``public road'')
should be modified to (1) include FDR's with those roads that have been
designated public roads pursuant to the jurisdiction in which it is
located and (2) exclude FDR's from the use restriction that there be
substantial (more than incidental) public use of a road in order for it
to qualify as a public road. USFS stated that with these recommended
changes, it could concur with the formal amendment.
By a second letter dated September 9, 1993 (administrative record
No. UT-870), USFS restated its concern regarding rules that attempt to
dictate standards of development or maintenance relating to roads under
the jurisdiction of public road agencies or Federal agencies providing
public access to lands of the United States. USFS further stated that
SMCRA regulations must be limited to restrictions on coal
hauling activities rather than orders to reclaim or otherwise modify
the transportation facility. The proposed amendment does not clarify
this issue sufficiently to present [sic] unilateral decisions by OSM
and DOGM [(the Division)] on roads managed for public access.
OSM appreciates USFS's concerns as stated in its January 21, 19923,
and September 9, 1993, letters. OSM cannot, however, require the State
to adopt the recommended changes to the proposed definition of ``public
road'' at Utah Admin, R. 645-301-200 because the proposed definition is
substantively identical to the Federal definition at 30 CFR 761.5 and
is, therefore, no less effective than the corresponding Federal
definition.
Further, as explained below, the existing Federal definition and
proposed State definition of ``public road,'' will not interfere with
USFS jurisdiction over FDR's and will protect FDR's from the adverse
effects of surface mining to the extent allowed under SMCRA and the
State Act.
The term ``public road'' is defined at 30 CFR 761.5 and at proposed
Utah Admin. R. 645-301-200 so that it may be used in determining when a
surface coal mining operation may be conducted within 100 feet of a
road:
[No surface coal mining operations shall be conducted] within
100 feet, measured horizontally, of the outside right-of-way line of
any public road * * *
(30 CFR 761.11(d) and Utah Admin. R. 645-103-234, emphasis added).
In order to be considered a ``public road,'' a road must be one
(a) Which has been designated as a public road pursuant to the
laws of the jurisdiction in which it is located;
(b) Which is maintained with public funds in a manner similar to
other public roads of the same classification within the
jurisdiction;
(c) For which there is substantial (more than incidental) public
use; and
(d) Which meets road construction standards for other public
roads of the same classification in the local jurisdiction.
(30 CFR 761.5 and proposed Utah Admin. R. 645-301-200).
In its comments, USFS implies that, although FDR's may not meet, in
certain instances, the requirements of ``public designation'' and
``substantial public use'' in subsections (a) and (c) above, FDR's
should be treated as ``public roads'' for purposes of determining when
a surface coal mining operation may be conducted within 100 feet of a
road. As explained below, when appropriate, FDR's will constitute
``public roads'' under the existing Federal and proposed State
language. Changes to specifically add FDR's to these regulations are
thus unnecessary.
The phrase, ``which has been designated as a public road pursuant
to the laws of the jurisdiction in which it is located,'' under
subsection (a) of the definition of ``public road,'' is interpreted by
OSM to include USFS jurisdiction over FDR's. Therefore, FDR's that USFS
designates as ``public'' meet the ``designation'' requirement of the
definition. There is no need to add specific language concerning FDR's
to this requirement of the definition.
As for the ``public use'' requirement of the definition, if an FDR,
like any other road, receives substantial public use, the FDR will
satisfy this requirement of the definition.
USFS, from its comments of September 9, 1993, also appears
concerned that OSM's and Utah's definitions of ``public road'' will
improperly allow OSM's and Utah's regulatory authority to extend to the
``development'' and ``maintenance'' of FDR's. USFS further asserts that
``SMCRA regulations must be limited to restrictions on coal hauling
activities rather than orders to reclaim or otherwise modify the
transportation facility.'' Again, these concerns are addressed by the
existing Federal and proposed State regulations.
With respect the USFS's first concern, except for a road that is
part of a surface coal mining operation, neither OSM nor Utah has the
authority to regulate the ``development'' or ``maintenance'' of a road
located on USFS lands. Moreover, the Federal and State ``public road''
definition, rather than providing such authority, actually provides
FDR's with protection from the adverse effects of surface coal mining
operations by prohibiting surface coal mining operations from being
conducted within 100 feet of any FDR that constitutes of ``public
road.'' Finally, it should be noted that surface coal mining operations
may be conducted on USFS lands only if the operation in question meets
the stringent land conservation requirements of 30 CFR 761.11(b), which
include the power of the Secretary of Agriculture, in certain
circumstances, to prohibit such mining.
With respect to USFS's second concern, even if OSM desired to limit
its regulatory power to only coal hauling activities, rather than to
the transportation facility itself, it could not do so. OSM is required
by section 515(b)(17) of SMCRA (30 U.S.C. 1265(b)(17)) to regulate the
construction, maintenance, and reclamation of roads used in connection
with a surface coal mining operation. Such regulation, should it extend
to FDR's, is not a usurping of USFS's authority to control roads under
its jurisdiction, but it rather OSM fulfilling its mandate, under
SMCRA, to ensure that lands disturbed by surface coal mining operations
are not permanently damaged.
Therefore, on the basis of the above discussion, OSM does not
required Utah to amend its program in response to USFS's comments.
By letters dated October 29, 1992, and August 16, 1993, the Army
Corps of Engineers responded that the proposed changes to the Utah
program were satisfactory to that agency (administrative record Nos.
UT-796 and UT-859).
By letter dated November 2, 1992, the Bureau of Land Management
said that it had no concerns regarding the proposed amendment
(administrative record No. UT-797).
By letter dated October 22, 1992, the U.S. Bureau of Mines (BOM)
said that it had no comments in response to the proposed amendment
(administrative record No. UT-793). By additional letters dated April
12 and August 10, 1993, BOM responded that because the revised
definitions of the terms ``affected area,'' ``road,'' and ``public
road'' do not affect the production of mineral resources other than
coal, it had no comment (administrative record Nos. UT-831 and UT-854).
By letters dated October 23, 1992, and May 3 and August 12, 1993,
the U.S. Fish and Wildlife Service (USFWS) said that it found nothing
of significant concern and had no comments on the proposed amendment
(administrative record Nos. UT-795, 838, and 856).
By letters dated January 14, May 12, and August 18, 1993, the Mine
Safety and Health Administration (MSHA) stated that the proposed
amendment did not conflict with current MSHA regulations
(administrative record Nos. UT-818, UT-841, and UT-860).
By letters dated June 10 and August 11, 1993, the Environmental
Protection Agency (EPA) responded that it had no comments on the
proposed amendment (administrative record Nos. UT-844 and UT-855).
By letter dated April 14, 1993, the Soil Conservation Service (SCS)
commented that, with respect to Utah's proposed definition of the term
``road,'' ``hydrologic and erosion control measures'' need to be
included as part of the road as described in the second sentence of the
definition. SCS further stated that this addition is needed because
such measures may be needed to mitigate the effects of drainage areas
and watersheds of road construction and use (administrative record No.
UT-832).
In response, OSM has found in finding No. III.C.2. that Utah's
proposed definition of the term ``road'' is substantively identical to
the Federal regulatory definition of ``road'' at 30 CFR 701.5. In
addition, Utah's rules at Utah Admin. R. 645-301-752.200, .210, .220,
and .250 set performance standards for primary and ancillary roads that
include hydrologic measures that are no less effective than the
corresponding Federal regulations at 30 CFR 816.150(b)(1), (3), and (5)
and 817.150(b)(1), (3), and (5). These State rules read as follows:
752.200. Road Drainage. Roads will be located, designed,
constructed, reconstructed, used, maintained, and reclaimed in
according to R645-301-732.400, R645-301-742-400 and R645-301-762 and
to achieve the following:
R645-301-752.210. Control or prevent erosion, siltation, and the
air pollution attendant to erosion by vegetating or otherwise
stabilizing all exposed surfaces in accordance with current, prudent
engineering practices;
R645-301-752.220. Control or prevent additional contributions of
suspended solids to stream flow or runoff outside the permit area;
* * * * *
R645-301-752.250. Refrain from significantly altering the normal
flow of water in streambeds or drainage channels.
Therefore, although Utah's proposed definition of ``road'' at Utah
Admin. R. 645-100-200 does not include SCS's recommended term
``hydrologic and erosion control measures,'' the aforementioned State
rules do include performance standards that mitigate the effects on
drainage areas and watersheds of road construction and use them in a
manner no less effective than the corresponding Federal regulations. On
this basis, OSM cannot require Utah to revise its program in response
to SCS's comment.
C. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit
comments from the SHPO and ACHP for all amendments that may have an
effect on historic properties. By letters dated October 16, 1992, and
March 31, 1993, OSM solicited comments from these offices
(administrative record Nos. UT-791 and UT-828). Neither the SHPO nor
the ACHP commented on the proposed amendment.
D. U.S. Environmental Protection Agency (EPA) Concurrence
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the
written concurrence of the Administrator of EPA with respect to those
aspects of a State program amendment that relate to air or water
quality standards promulgated under the authority of the Clean Water
Act (33 U.S.C. 1251 et seq.) and the Clean Air Act, as amended, (42
U.S.C. 7401 et seq.). EPA gave its written concurrence with the
proposed amendment by letter dated February 17, 1993 (administrative
record No. UT-826).
V. Director's Decision
Based on the above findings, the Director approves Utah's proposed
amendment as submitted on September 17, 1992, and revised on March 24,
1993. As discussed in finding No. III.C.1., the Director approves
Utah's proposed amendment to the term ``affected area.'' As discussed
in finding No. III.C.2., the Director approves Utah's proposed
amendment to the term ``road,'' accepts Utah's withdrawal of the
supplemental policy statement, and removes the required program
amendments codified at 30 CFR 944.16(n) (1) and (2). As discussed in
finding No. III.C.3., the Director approves Utah's proposed amendment
to the term ``public road'' and removes the required program amendment
at 30 CFR 944.16(o). The Director is approving these proposed rules
with the provision that they be fully promulgated in identical form to
the rules submitted to and reviewed by OSM and the public.
In accordance with 30 CFR 732.17(f)(1), the Director is also taking
this opportunity to clarify in the required amendment section at 30 CFR
944.16 that, within 60 days of the publishing of this notice, Utah
would have to either submit a proposed written amendment, or a
description of an amendment to be proposed that meets the requirements
of SMCRA and 30 CFR chapter VII and a timetable for enactment that is
consistent with Utah's established administrative or legislative
procedures.
The Federal regulations at 30 CFR part 944, which codify decisions
concerning the Utah program, are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
A. Executive Order 12866
This final rule is exempted from review by the Office of Management
and Budget under Executive Order 12866 (Regulatory Planning and
Review).
B. 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.
C. 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 of 1969 (42 U.S.C.
4332(2)(C)).
D. 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.).
E. 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.
List of Subjects in 30 CFR 944
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 31, 1994.
Raymond L. Lowrie,
Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T, of the Code of Federal Regulations is amended as set
forth below.
PART 944--UTAH
1. The authority citation for part 944 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 944.15 is amended by adding paragraph (x) to read as
follows:
Sec. 944.15 Approval of amendments to State regulatory program.
* * * * *
(x) Revisions to Utah's definitions of ``affected area,'' ``road,''
and ``public road'' at Utah Admin. R. 645-100-200, as submitted to OSM
on September 17, 1992, and as subsequently revised on March 24, 1993,
as well as Utah's December 5, 1991, withdrawal of its supplemental
policy statement, are approved effective April 7, 1994.
3. Section 944.16 is revised to read as follows:
Sec. 944.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Utah is required to submit to OSM
by the specified date the following written, proposed program
amendment, or a description of an amendment to be proposed that meets
the requirements of SMCRA and 30 CFR chapter VII and a timetable for
enactment that is consistent with Utah's established administrative or
legislative procedures.
(a) [Reserved]
(b) [Reserved]
[FR Doc. 94-8320 Filed 4-6-94; 8:45 am]
BILLING CODE 4310-05-M