Title 30—Mineral Resources--Volume 1
PART 736—FEDERAL PROGRAM FOR A STATE
§ 736.1   Scope.
This part establishes standards and procedures for the promulgation, implementation, maintenance, administration, revision and termination of a Federal program for a State for coal exploration and surface coal mining and reclamation operations on non-Federal and non-Indian lands within that State.
§ 736.11   General procedural requirements.
(a) Promulgation. (1) The Director shall promulgate and, subject to the provisions of this part, implement a Federal program for a State if the Director reasonably expects coal exploration or surface coal mining and reclamation operations to exist on non-Federal and non-Indian lands within the State at any time before June 1985, and the State fails to—
(i) Submit a State program for regulation of coal exploration and surface coal mining and reclamation operations on non-Federal and non-Indian lands within that State to the Director as provided in 30 CFR 731.12; or
(ii) Resubmit an acceptable State program within 60 days of a notice of disapproval of a State program pursuant to § 732.13(f). The Director shall not promulgate a Federal program before the expiration of the initial period allowed for submission of a State program, as provided in § 731.12.
(2) The Director shall promulgate a complete Federal program for a State upon the withdrawal of approval of an entire State program under 30 CFR 733.13.
(3) The Director shall promulgate a partial Federal program for a State upon the withdrawal of approval of part of a State program under 30 CFR part 733.
(b) Revision. The Director may revise a Federal program for a State, if necessary to further the purposes of the Act and the regulations adopted under the Act.
(c) Termination. The Director shall terminate appropriate portions of a Federal program for a State, upon approval of a State program under 30 CFR parts 731 and 732 that replaces a complete or partial Federal program for that State.
§ 736.12   Notice, comment and hearing procedures.
Prior to the promulgation or revision of a Federal program for a State, OSMRE shall:
(a) Federal Register notice. Publish in the Federal Register a notice which:
(1) Includes the basis, purpose and substance of the proposed Federal program or revision;
(2) Offers any person an opportunity to submit written comments on the proposed Federal program or revision for a period to end no less than 30 days after the date of the notice;
(3) Offers to hold a public hearing on the proposed Federal program or revision in the affected State during the comment period if requested by any person;
(4) Gives the address of an appropriate place where any person, during normal business hours, may inspect and copy a copy of the administrative record for the proposed Federal program or revision;
(5) For an indirect revision of a Federal program, states that the affected provision of the permanent program is cross-referenced by the Federal program, and thus that the proposed permanent program revision also would revise the Federal program;
(b) Newspaper notice. For the initial promulgation of a Federal program for a State, publish in a newspaper of general circulation in the coal mining area of the affected State a notice concerning the proposed rulemaking which includes the information required by paragraph (a) of this section, except that for the substance of the proposed Federal program or revision OSMRE may substitute a brief description; and
(c) Federal agency comment. As appropriate, solicit comments from the Administrator of the Environmental Protection Agency, the Secretary of Agriculture, and the heads of other Federal agencies concerned with or having special expertise relevant to the proposed Federal program or revision.
§ 736.13   [Reserved]
§ 736.14   Director's decision.
(a) After considering all relevant information received under § 736.12 of this part, the Director shall decide whether to promulgate or revise a Federal program for the State.
(b) The Director shall publish the decision in the Federal Register, including a statement of the basis and purpose for the decision, the regulations of the Federal program for the State or revision thereof, and the effective date of the program or revision.
§ 736.15   Implementation, enforcement, and maintenance of a Federal program.
(a) The Director shall implement, administer, enforce, and maintain a Federal program or any revision thereto not later than 30 days after a Federal program is promulgated or revised.
(b)(1) Except as provided in paragraph (b)(2) of this section, the Director shall implement the procedures and criteria of a Federal program for a State for designating lands unsuitable for all or certain types of surface coal mining one year after a Federal program is made effective for a State.
(2) When a complete or partial Federal program is promulgated because of a State's failure to implement, maintain, or enforce adequately all or a part of its State program, all applicable portions of the Federal program for the State under this part shall be effective immediately upon implementation of the Federal program.
§ 736.16   Federal program termination procedures.
Termination of a Federal program shall be accomplished at the same time and through the procedures for approval of a State program under 30 CFR part 732. No Federal program shall be considered terminated until a State program has been approved by the Secretary in accordance with 30 CFR part 732.
§ 736.17   Consolidation of procedures.
The Director may consolidate public notices, hearings, opportunity for public comment and decisions on the promulgation, revision or termination of a Federal program for a State under this part, with public notices, opportunity for public comment and hearings on the approval, disapproval or withdrawal of a State program under 30 CFR parts 732 through 733.
§ 736.21   General requirements of a Federal program.
(a) Any complete Federal program promulgated or revised by the Director shall include the contents identified in 30 CFR 736.22.
(b) Any partial Federal program shall include all of the contents identified in 30 CFR 736.22 to the extent that those aspects of coal exploration and surface coal mining and reclamation operations within the State are to be regulated by the Director under the partial program and are not to be regulated under the remainder of the State program that continues in effect.
§ 736.22   Contents of a Federal program.
(a) In promulgating or revising any Federal program for a State, the Director shall—
(1) Consider the nature of that State's soils, topography, climate, and biological, chemical, geological, hydrological, agronomic, and other relevant physical conditions;
(2) Include any provisions that are necessary to implement the requirements of the Endangered Species Act of 1973, as amended (16 U.S.C. 531 et seq. ), the Fish and Wildlife Coordination Act, as amended (16 U.S.C. 661-666c), the National Historic and Preservation Act of 1966 (16 U.S.C. 470), the Archaeological and Historic Preservation Act of 1974 (16 U.S.C. 469a), and other relevant Federal laws imposing duties upon the Secretary; and
(3) Include, if required pursuant to 30 CFR 736.23, any performance standards for the regulation of coal exploration and surface coal mining and reclamation operations more stringent than those otherwise provided for by this chapter and the Act.
(b)(1) Any Federal program for a State, including appropriate portions of a partial Federal program which is promulgated or revised by the Director, shall provide for Federal regulation of coal exploration and surface coal mining and reclamation operations on non-Federal and non-Indian lands within the State in accordance with the requirements of the Act and this Chapter, including, at a minimum, the following provisions: Parts 700, 701, 707, 761, 762, 764, 842, 843, 845, subchapters G, J, K, and M.
(2) An exception to these requirements may be made where there is exploration but no mining in the State. In such a case, the Federal program which is promulgated must regulate coal exploration, but not mining, and shall include, at a minimum, the applicable sections of the following provisions: Parts 700, 701, 761, 762, 764, 772, 773, 775, 815, 842, 843 and 845.
(c) For the purpose of avoiding duplication, the Federal program shall include a process for coordinating the review and issuance of permits for surface coal mining and reclamation operations under the Federal program with any other Federal, State, or local planning or permit process applicable to the operations in the jurisdiction involved, including, but not limited to—
(1) The Clean Air Act, as amended (42 U.S.C. 7401 et seq. ); Clean Water Act, as amended (30 U.S.C. 1251 et seq. ); Resource Conservation and Recovery Act (42 U.S.C. 3251 et seq. ); and
(2) Plans approved by the Administrator of the U.S. Environmental Protection Agency under sections 208 or 303(c) of the Clean Water Act, as amended (33 U.S.C. 1288, 1313(c)).
§ 736.23   Federal program effect on State law or regulations.
(a) Whenever a Federal program is promulgated or revised for a State, any statutes or regulations of the State regulating coal exploration or surface coal mining and reclamation operations subject to the Act shall be preempted and superseded by the Federal program insofar as they are inconsistent with the requirements of the Act and the Federal program. In promulgating or revising a Federal program for a State, the Director shall set forth in the Federal Register any State statute or regulation which is preempted and superseded by the Federal program.
(b) The provision of any State statute or regulation which provides for more stringent land use and environmental control and regulation of coal exploration or surface coal mining and reclamation operations than do the provisions of the Act or any regulation issued under the Act shall not be preempted and superseded by the Director and shall be incorporated into the Federal program for the State.
§ 736.24   Federal program effect on State funding.
(a) After the withdrawal of a State program and the promulgation and implementation of a complete Federal program for a State and extending until approval of a new State program, the Director shall not—
(1) Approve, fund or continue to fund a State abandoned mine reclamation program, under section 405(c) of the Act and 30 CFR 884.14, 884.15, 884.16 and 886.18; or,
(2) Make any grants to assist the State in administering and enforcing State programs under the Act and 30 CFR 735.11 and 735.12.
(b) After the withdrawal of a State program in part and the promulgation and implementation of a partial Federal program for a State and extending until the approval of a complete State program the Director shall not—
(1) Approve, fund or continue to fund a State abandoned mine reclamation program, under section 405(c) of the Act and 30 CFR 884.14, 884.15, 884.16 and 886.18, unless the Director finds, in writing, that discontinuation of funding would not be consistent with achieving the purposes of the Act, and
(2) Make any grants to assist the State in administering and enforcing State programs under the Act and 30 CFR 735.12, unless the Director finds in writing that discontinuation of funding would not be consistent with achieving the purposes of the Act.
§ 736.25   Permit fees.
(a) Applicability. An applicant for a new permit to conduct surface coal mining operations under a Federal program shall submit to OSM fees in the amounts set out in paragraph (d) of this section. For applications submitted prior to the effective date of this rule, fees shall apply only for stages of OSM review begun on or after the effective date. The applicant shall either submit all applicable fees with the permit application, or by stage of review as follows:
(1) Administrative completeness review. An applicant who pays by stage of review shall submit the administrative completeness review fee with the permit application.
(2) Technical review. Following receipt from OSM of a notice of administrative completeness, an applicant who pays by stage of review shall submit the technical review basic fee, plus the per-acre fee for each acre of disturbed area or fraction thereof to be included in the permit area.
(3) Permit issuance. Following receipt from OSM of a notice of technical adequacy, an applicant who pays by stage of review shall submit the decision document fee.
(b) Refund of fees. (1) Upon receipt of a written request from an applicant, OSM will refund any permit fees paid under this section for a permit application when OSM denies the permit:
(i) On the basis of information concerning endangered or threatened species or their critical habitats or information. concerning cultural or historical resources, where such information was not available prior to submission of the permit application;
(ii) Because subsequent to submittal of a permit application, the lands contained in the permit application are declared unsuitable for mining under subchapter F of this chapter; or
(iii) Because subsequent to submittal of a permit application, the applicant is denied valid existing rights to mine under part 761 of this chapter where such rights are required for surface coal mining operations on the lands contained in the permit application.
(2) An applicant may file a written request for withdrawal of a permit application and a refund of fees in accordance with paragraph (b)(3) of this section.
(3) OSM will, upon receipt of written request for withdrawal of a permit application, cease processing of that application. If requested, OSM will refund fees paid by the applicant for the withdrawn application as follows:
(i) Any fees for a stage of OSM review not yet begun will be refunded;
(ii) Where technical review has begun, partial refund will be made of any technical review fee amounts remaining after deduction of actual OSM costs incurred for that technical review. Costs to process the withdrawal may also be deducted.
(4) No interest will be paid on refunded fees.
(c) Form of payment. All fees due under this section shall be submitted to OSM by the applicant in the form of a certified check, bank draft or money order, payable to Office of Surface Mining.
(d) Fee schedule for a new permit.