[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Rules and Regulations]
[Pages 28040-28050]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13156]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 944


Utah Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with an exception and additional 
requirements, a proposed amendment to the Utah regulatory program 
(hereinafter referred to as the ``Utah program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). Utah proposed 
revisions to and additions of rules pertaining to retention of 
highwalls in the postmining landscape. Utah submitted the amendment 
with the intent of revising its program to be consistent with the 
corresponding Federal regulations, clarifying ambiguities, and 
improving operational efficiency.

EFFECTIVE DATE: May 30, 1995.

FOR FURTHER INFORMATION CONTACT:
Arthur W. Abbs, Acting Director, Albuquerque Field Office, Telephone: 
(505) 766-1486.

SUPPLEMENTARY INFORMATION:

I. Background on the Utah Program

    On January 21, 1981, the Secretary of the Interior conditionally 
approved the Utah program. General background information on the Utah 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval of the Utah program can be 
found in the January 21, 1981, Federal Register (46 FR 5899). 
Subsequent actions concerning Utah's program and program amendments can 
be found at 30 CFR 944.15, 944.16, and 944.30.

II. Proposed Amendment

    By letter dated November 12, 1993, Utah submitted a proposed 
amendment to its program pursuant to SMCRA (administrative record No. 
UT-875). Utah submitted the proposed amendment at its own initiative 
and in response to the required State program amendments codified at 30 
CFR 944.16 (a), (b), (c), and (d). The provisions of the Utah 
Administrative Rules (Utah Admin. R.) that Utah proposed to revise 
were: Utah Admin. R. 645-301-553.200, spoil and waste; Utah Admin. R. 
645-301-553.252, refuse piles; Utah Admin. R. 645-301-553.500, 
previously mined areas (PMA's), continuously mined areas (CMA's), and 
areas subject to the approximate original contour (AOC) requirements; 
Utah Admin. R. 645-301-553.520, exception from complete highwall 
elimination for CMA's; Utah Admin. R. 645-301-553.523, stability 
criteria for highwall remnants and retained highwalls; Utah Admin. R. 
654-301-553.600 and .620, AOC variances for incomplete elimination of 
highwalls in PMA's or CMA's; Utah Admin. R. 654-301-553.631, 
mountaintop removal operations; Utah Admin. R. 654-301-553.650, 
required showing by the operator and required findings by the 
regulatory authority necessary for approval of a retained highwall; 
Utah Admin. R. 645-301-651, height restrictions for retained highwalls; 
Utah Admin. R. 645-301-553.652, the applicability date of Utah's AOC 
standards at Utah Admin. R. 645-301.553.651 through .655; Utah Admin. 
R. 645-301-553.653, the restoration of retained highwalls to cliff-type 
habitats required by the flora and fauna existing prior to mining; and 
Utah Admin. R. 645-301-553.654, compatibility of retained highwalls 
with both the [[Page 28041]] approved postmining land use and the 
visual attributes of the area.
    OSM announced receipt of the proposed amendment in the December 8, 
1993, Federal Register (58 FR 64529), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. UT-879). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on January 7, 1994.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of Utah Admin. R. 645.-301-553.110, 
backfilling and grading of disturbed areas; Utah Admin. R. 645-301-
553.500 and .600, the organization of Utah's rules pertaining to 
retained highwalls; Utah Admin. R. 645-301-553.510 and .522, general 
backfilling and grading requirements; Utah Admin. R. 645-301-553.522, 
slope stability and drainage; Utah Admin. R. 645-301-553.500 and .523, 
stability criteria for retained highwalls; Utah Admin. R. 645-301-
553.620, AOC variances; Utah Admin. R. 645-301-553.650, AOC and 
stability requirements for highwall retention; Utah Admin. R. 645-301-
553.651, height and length of retained highwalls; Utah Admin. R. 645-
301-553.652, the applicability date of Utah's AOC alternative; and 
various editorial comments concerning Utah Admin. R. 645-301-553.120, 
.631, .650, and .655. By letter dated March 31, 1994, OSM notified Utah 
of the concerns (administrative record No. UT-908).
    By letter dated April 18, 1994, Utah requested a meeting between 
the Utah Division of Oil, Gas and Mining (Division) and OSM for the 
purpose of addressing the issues set forth by OSM in the March 31, 
1994, letter (administrative record No. UT-918). On May 12, 1994, the 
Division and OSM held an executive session at the Western Support 
Center in Denver, Colorado. OSM posted a notice of the executive 
session in the Western Support Center (administrative record No. UT-
925). OSM summarized the session and entered the summary into the 
administrative record (administrative record UT-942).
    By letter dated June 29, 1994, Utah submitted a revised amendment 
in response to OSM's March 31, 1994, letter as clarified at the May 12, 
1994, session (administrative record No. UT-941). In this submittal, 
Utah, at its own initiative, also proposed to (1) create a definition 
of the term ``continuously mined areas'' and (2) not use the terms 
``highwall remnant'' and ``retained highwall.''
    OSM announced receipt of the proposed revised amendment in the July 
14, 1994, Federal Register (59 FR 35871) and reopened and extended the 
public comment period (administrative record No. UT-951). The public 
comment period ended on July 29, 1994.
    During its review of the revised amendment, OSM identified 
additional concerns relating to the provisions of Utah Admin. R. 645-
100-200, definition of the term ``continuously mined areas;'' Utah 
Admin. R. 645-301-553, general provisions on highwalls and backfilling 
and grading; Utah Admin. R. 645-301-553.110, backfilling and grading of 
disturbed areas; Utah Admin. R. 645-301-553.120, backfilling and 
grading of spoil and waste; Utah Admin. R. 645-301-553.130, slope 
stability requirements; Utah Admin. R. 645-301-553.510, remining 
operations on PMA's, CMA's, and areas with remaining highwalls subject 
to AOC provisions; Utah Admin. R. 645-301-553.550, .551, and .552, AOC 
exceptions; Utah Admin. R. 645-301-553.650, highwall management under 
the AOC provisions; Utah Admin. R. 645-301-553.651, nonmountaintop 
removal mining on steep slopes; Utah Admin. R. 645-301-553.652, 
remaining highwalls under the AOC provisions; and Utah Admin. R. 645-
301-553.653, applicability date. By letter dated August 24, 1994, OSM 
notified Utah of the concerns (administrative record No. UT-967).
    By telephone conversation on August 30, 1994, Utah requested a 
meeting between the Division and OSM for the purpose of addressing the 
date of applicability of Utah's rules that allow the replacement of 
preexisting cliffs or similar natural premining features with retained 
highwalls (administrative record No. UT-1010). On September 7, 1994, 
the Division and OSM held an executive session at the Western Support 
Center in Denver, Colorado. OSM posted a notice of the executive 
session in the Western Support Center (administrative record No. UT-
969). OSM summarized the session and entered the summary into the 
administrative record (administrative record UT-970).
    By letter dated November 3, 1994, Utah submitted a revised 
amendment in response to OSM's August 24, 1994, letter, as clarified at 
the September 7, 1994, session (administrative record No. UT-990).
    OSM announced receipt of the proposed revised amendment in the 
December 2, 1994, Federal Register (59 FR 61855) and reopened and 
extended the comment period (administrative record No. UT-996). The 
public comment period ended on December 19, 1994.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds, with an exception and additional 
requirements, that the proposed program amendment submitted by Utah on 
November 12, 1993, and as revised by it on June 28 and November 3, 
1994, is no less stringent than SMCRA and no less effective than the 
corresponding Federal regulations. Accordingly, the Director approves, 
with one exception, the proposed amendment and requires Utah to revise 
its program.
    The Director notes that in a December 13, 1982, final rule Federal 
Register notice (47 FR 55672, 55673), the Secretary of the Interior 
approved as part of the Utah program a provision that the Director in a 
subsequent September 17, 1993, final rule Federal Register notice (58 
FR 48600) referred to as the Utah ``AOC alternative.'' OSM created the 
term ``AOC alternative'' and Utah does not define it in its program. In 
this proposed amendment, Utah used the terminology ``areas with 
remaining highwalls subject to the AOC provisions,'' which is the Utah 
counterpart terminology to what OSM referred to in the past as the 
``AOC alternative.'' Accordingly, and throughout the remainder of this 
Federal Register notice, the Director refers to what was previously 
called the ``AOC alternative'' in the September 17, 1993, final rule 
Federal Register notice as ``areas with remaining highwalls subject to 
the AOC provisions.''
    Also, in the September 17, 1993, final rule Federal Register notice 
(58 FR 48600), the Director placed upon the Utah program four required 
State program amendments at 30 CFR 944.16 (a), (b), (c), and (d) 
(administrative record No. UT-872). Specifically, the Federal Register 
notice revised 30 CFR 944.16 to read as follows:

Section 944.16  Required Program Amendments

* * * * *
    (a) By November 16, 1993, Utah shall submit a proposed amendment 
for highwall retention and approximate original contour (AOC) at 
Utah Admin. R. 645-301-553.650 to require that, prior to obtaining 
Utah's approval for highwalls to be retained, the operator must 
establish and Utah must find in writing that any proposed highwall 
will comply with the approximate original contour criteria at Utah 
Admin. R. 645-301-553.651 through 655 and the stability requirement 
at Utah Admin. R. 645-301-553.523.
    (b) By November 16, 1993, Utah shall submit a proposed amendment 
for highwall [[Page 28042]] retention and approximate original 
contour at Utah Admin. R. 645-301-553.651 restricting the height of 
retained highwalls to the height of cliffs or cliff-like escarpments 
that were replaced or disturbed by the mining operations.
    (c) By November 16, 1993, Utah shall submit a proposed amendment 
stating that its requirement at Utah Admin. R. 645-301-553.652 has 
an applicability date of December 13, 1982, and applies to any 
highwall retained pursuant to the approximate original contour 
alternative.
    (d) By November 16, 1993, Utah shall submit a proposed amendment 
for Utah Admin. R. 645-301-553.523 (1) eliminating the inconsistency 
between the title ``previously mined areas'' at Utah Admin. R. 645-
301-553.500 and the content of subsection Utah Admin. R. 645-301-
553.523, and clarifying that the stability criteria of proposed Utah 
Admin. R. 645-301-553.523 apply to the AOC alternative at Utah 
Admin. R. 645-301-553.650, (2) specifying that a highwall remnant or 
retained highwall must not pose a hazard to the environment, and (3) 
deleting the phrase ``not to exceed either the angle of repose or 
such lesser slope as is necessary to.''

    However, in an April 7, 1994, final rule Federal Register notice 
(59 FR 16538), OSM inadvertently removed the above required State 
program amendments from 30 CFR 944.16 (administrative record No. UT-
913). In addition, and subsequent to this inadvertent removal of the 
required State program amendments originally codified at 30 CFR 944.16 
(a), (b), (c), (d), OSM published two final rule Federal Register 
notices (July 11, 1994, 59 FR 35255; September 27, 1994, 59 FR 49185) 
and placed new required State program amendments on the Utah program at 
30 CFR 944.15 (a) and (b) respectively (administrative record Nos. UT-
947 and UT-977). Throughout this notice, OSM refers to the required 
amendments associated with this proposed amendment and originally 
codified as 30 CFR 944.16 (a), (b), (c), and (d) as ``the required 
amendments previously codified at 30 CFR 944.16 (a), (b), (c), and (d) 
(September 17, 1993, 58 FR 48600).''

1. Nonsubstantive Revisions to Utah's Rules

    Utah proposed revisions to the following previously-approved rules 
that are nonsubstantive in nature and consist of minor editorial, 
grammatical, and recodification changes (corresponding Federal 
provisions are listed in parentheses):

Utah Admin. R. 645-301-553 (30 CFR 816.102 and 817.102), 
contemporaneous reclamation for backfilling and grading;
Utah Admin. R. 645-301-553.130 (30 CFR 816.102(a)(3)), 1.3 static 
safety factor;
Utah Admin. R. 645-301-553.150 (30 CFR 816.102(a)(5) and 
817.102(a)(5)), postmining land use;
Utah Admin. R. 645-301-553.200 (30 CFR 816.102(c) and 817.102(c)) 
backfilling and grading of spoil and waste;
Utah Admin. R. 645-301-553.210 (30 CFR 816.71 and 817.71), general 
requirements for disposal of excess spoil;
Utah Admin. R. 645-301-553.220 (30 CFR 816.102(d) and 817.102(d)), 
placement of spoil;
Utah Admin. R. 645-301-553.252 (30 CFR 816.83(c)(4) and 817.83(c)(4)), 
final grading of refuse piles and coal mine waste;
Utah Admin. R. 645-301-553.300 (30 CFR 816.102(f) and 817.102(f)), 
covering of exposed coal seams;
Utah Admin. R. 645-301-553.510 (30 CFR 816.106(a) and 817.106(a)), 
remining operations on PMA's, CMA's, and areas with remaining highwalls 
subject to AOC provisions;
Utah Admin. R. 645-301-553.540, previously codified as Utah Admin. R. 
645-301-553.524 (30 CFR 816.106(b)(4) and 817.106(b)(4)), spoil 
placement;
Utah Admin. R. 645-301-553.300, previously codified as Utah Admin. R. 
645-301-553.653 (30 CFR Parts 816 and 817 concerning backfilling and 
grading requirements for both surface and underground mining operations 
and sections 515 (b)(2) and (b)(3) of SMCRA), modifications to retained 
highwalls restoring cliff-type habitats required by premining flora and 
fauna;
Utah Admin. R. 645-301-553.650.400, previously codified as Utah Admin. 
R. 645-301-553.654 (30 CFR 784.15 and sections 515 (b)(2) and (b)(3) of 
SMCRA), compatibility of retained highwalls with the approved 
postmining land use and visual attributes of the area; and
Utah Admin. R. 645-301-553.650.500, previously codified as Utah Admin. 
R. 645-301-553.655, exemption from obtaining a variance from AOC 
requirements.

    Because the proposed revisions to these previously-approved rules 
are nonsubstantive in nature, the Director finds that these proposed 
Utah rules are no less effective than the Federal regulations and no 
less stringent than SMCRA. The Director approves these proposed rules.

2. Substantive Revisions to Utah's Rules That Are Substantively 
Identical to the Corresponding Provisions of the Federal Regulations 
and SMCRA

    Utah proposed revisions to the following rules that are substantive 
in nature and contain language that is substantively identical to the 
requirements of the corresponding Federal regulations (listed in 
parentheses):

Utah Admin. R. 645-301-553.100 (30 CFR 816.102(a) and 817.102(a)), 
section entitled ``disturbed areas;'' and
Utah Admin. R. 645-301-553.230 (30 CFR 816.102(j) and 817.102(j)), 
general requirements for backfilling and grading.

    Because these proposed Utah rules are substantively identical to 
the corresponding provisions of the Federal regulations, the Director 
finds that they are no less effective than the Federal regulations. The 
Director approves these proposed rule.
3. Utah Admin. R. 645-100-200, Definition of ``Continuously Mined 
Areas''

    Utah proposed to define ``continuously mined areas'' (CMA's) at 
Utah Admin. R. 645-100-200 to mean ``land which was mined for coal by 
underground mining operations prior to August 3, 1977, the effective 
date of the Federal Act, and where mining continued after that date.'' 
The ``Federal Act'' is SMCRA.
    The Federal backfilling and grading regulations at 30 CFR 
817.106(a), (b), and (b)(1) allow an exception from the requirement for 
complete highwall elimination for underground mining operations that 
remine highwalls in PMA's, which means land affected by surface coal 
mining operations prior to August 3, 1977, the effective date of SMCRA, 
that have not been reclaimed to the standards of SMCRA (January 8, 
1993, 58 FR 3466). These regulations allow for the incomplete 
elimination of such highwalls where the volume of all reasonably 
available spoil is insufficient to completely backfill the reaffected 
or enlarged highwall.
    As part of the Utah program, the Director approved, in a September 
17, 1993, final rule Federal Register notice (58 FR 48600, 48603), a 
limited exception to the requirement to completely eliminate all 
highwalls for CMA's. Utah's approved CMA rules differ from the Federal 
PMA regulations in that they extend the exception for incomplete 
highwall elimination to underground mining operations where the 
highwall was created prior to [[Page 28043]] August 3, 1977, but 
continued to be used thereafter.
    In approving Utah's CMA provisions, the Director reasoned, in part, 
that they provide equitable treatment for pre-SMCRA mines that have 
operated continuously since before the effective date of SMCRA and 
afford the same variance from AOC requirements as is provided in the 
PMA regulations at 30 CFR 817.106 for remaining sites where operation 
of a pre-SMCRA mine has been interrupted and mining was begun again at 
the sites after the effective date of SMCRA.
    Utah's proposed definition of ``continuously mined areas'' is 
limited in accordance with the Director's approval in the September 17, 
1993, final rule Federal Register notice. That is, Utah's newly-
proposed definition at Utah Admin. R. 645-100-200 limits the term to 
underground mining operations. In the aforementioned final rule Federal 
Register notice, OSM approved Utah's CMA provisions at Utah Admin. R./ 
645-301-553.510, .520, and .521 ``[i]nsofar as they apply to 
underground mining operations that operated prior to August 3, 1977, 
and have continuously operated since that time.'' Therefore, Utah's 
proposed definition of the term ``continuously mined areas'' is not 
inconsistent with the Federal regulations at 30 CFR 817.106(a), (b), 
and (b)(1) and is in accordance with Utah's previously approved CMA 
provisions. On this basis, the Director approves Utah's proposed rule.
    However, with respect to CMA's, the Director wishes to emphasize 
that the exception to the requirement to completely eliminate all 
highwalls should, like the similar Utah exception for PMA's, be 
narrowly construed and should ensure that the highwall is removed to 
the maximum extent technically practical (September 16, 1983, 48 FR 
41720, 41729). Thus, for example, where an underground mining operation 
has been continuously mined since before the effective date of SMCRA 
(August 3, 1977) and contains both pre- and post-SMCRA face-up or 
portal areas, this exception must be understood as applying only to the 
pre-SMCRA face-up areas. Any post-SMCRA portal areas within the same 
mining operation must comply with the requirement to completely 
eliminate all highwalls. The Director interprets Utah's proposed 
definition of the term ``continuously mined areas'' in this limited 
fashion.

4. Utah Admin. R. 645-301-553.110, Exceptions to the Requirement That 
Disturbed Areas Achieve AOC

    Utah proposed to revise existing Utah Admin. R. 645-301-553.110 to 
require that disturbed areas achieve AOC except as provided for in the 
reorganized and recodified provisions at Utah Admin. R. 645-301-500 
through Utah Admin. R. 645-301-540 (PMA's, CMA's, and areas subject to 
the AOC provisions), Utah Admin. R. 645-301-553.600 through Utah Admin. 
R. 645-301-553.612 (PMA's and CMA's), Utah Admin. R. 645-302-270 
(nonmountaintop removal on steep slopes), Utah Admin. R. 645-302-220 
(mountaintop removal mining), Utah Admin. R. 645-301-553.700 (thin 
overburden), and Utah Admin. R. 645-301-553.800 (thick overburden). In 
conjunction with consolidating these exceptions into one provision, 
Utah also proposed to delete provisions that formerly existed at Utah 
Admin. R. 645-301-553.600 (introductory language), .610 (nonmountaintop 
removal on steep slopes), .620 (PMA's), .630 (mountaintop removal 
mining), .640 (introductory language), .641 (thin overburden), and .642 
(thick overburden).
    The Federal regulations at 30 CFR 816.102(k) provide variances from 
AOC for (1) steep-slope mining operations, (2) PMA's, (3) mountaintop 
removal operations, (4) thin overburden areas, and (5) thick overburden 
areas. The provisions at 30 CFR 817.102(k) provide variances from AOC 
for (1) steep-slope mining operations and (2) PMA's.
    Utah's proposed revisions to Utah Admin. R. 645-301-553.110, which 
create a general AOC provision that references all exceptions to the 
requirement that disturbed areas must be backfilled and graded to 
achieve AOC, are consistent with the corresponding Federal regulations 
at 30 CFR 816.102(k) and 817.103(k) and clarify and improve the 
organizational nature of Utah's AOC rules. However, the cross-
referenced provisions contain citation errors. Specifically, Utah's 
cross-referenced provisions in the phrase ``R645-301-500 through R645-
301-540,'' regarding PMA's, CMA's, and areas subject to the AOC 
provisions, should read ``R645-301-553.500 through R645-301-553.540.'' 
Utah's incorrectly cross-referenced citations create a regulatory 
inconsistency within the Utah program.
    For the reasons discussed above, the Director approves Utah's 
proposed consolidation of all exceptions to the requirement that 
disturbed areas must be backfilled and graded to achieve AOC into Utah 
Admin. R. 645-301-553.110. In addition, the Director approves Utah's 
proposed deletion of existing Utah Admin. R. 645-301-553.600 and those 
provisions identified above that formerly existed elsewhere in Utah's 
rules prior to the consolidation. However, the Director further 
requires Utah to revise the cross-referenced provisions in the phrase 
``R645-301-500 through R645-301-540,'' regarding PMA's, CMA's, and 
areas subject to the AOC provisions, to read ``R645-301-553.500 through 
R645-301-553.540.''
5. Utah Admin. R. 534-301-553.120, Backfilling and Grading of Spoil and 
Waste

    Utah proposed to revise existing Utah Admin. R. 645-301-553.120 to 
require that disturbed areas be backfilled and graded to ``[e]liminate 
all highwalls, spoil piles, and depressions, except as provided in 
R645-301-552.100 (small depressions); R645-301-553.500 through R645-
301-540 (PMA's, CMA's, and areas subject to approximate original 
contour (AOC) provisions; R645-301-553.600 through R645-301-553.612 
(PMA's and CMA's); and in R645-301-553.650 through R645-301-553.653 
(highwall management under the AOC provisions).''
    The Director notes that the exceptions listed at proposed Utah 
Admin. R. 645-301-553.120 for PMA's, CMA's, and areas subject to AOC 
provisions are exceptions only to the requirement to completely 
eliminate all highwalls, and are not exceptions to the separate 
requirements to completely eliminate all spoil piles and depressions.
    The Federal regulations at 30 CFR 816.102(a)(2) and 817.102(a)(2) 
require that disturbed areas be backfilled and graded to eliminate all 
highwalls, spoil piles, and depressions except as provided in 30 CFR 
816.102(h) (small depressions) and (k)(3)(iii) (previously mined 
highwalls).
    Utah's proposed revisions to Utah Admin. R. 645-301-553.120, which 
create a general provision that cross-references all exceptions to the 
requirement that disturbed areas must be backfilled and graded to 
eliminate all highwalls, spoil piles, and depressions, are consistent 
with the corresponding Federal regulations at 30 CFR 816.102(a)(2) and 
817.102(a)(2) and clarify and improve the organizational nature of 
Utah's rules. However, the cross-referenced provisions contain citation 
inconsistencies. Specifically, Utah's cross-referenced provisions in 
the phrase ``R645-301-553.500 through R645-301-540,'' regarding PMA's, 
CMA's, and areas subject to the AOC provisions, should read ``R645-301-
553.500 through R645-301-533.540.'' In [[Page 28044]] addition Utah 
cross-references provisions in the phrase ``R645-301-553.650 through 
R645-301-553.653.'' However, Utah Admin. R. 645-301-553.653 no longer 
exists in Utah's reorganized rules and has now been recodified as Utah 
Admin. R. 645-301-553.651. Utah's incorrectly cross-referenced 
citations create a regulatory inconsistency within the Utah program.
    For the reasons discussed above, the Director approves proposed 
Utah Admin. R. 645-301-553.120 but further requires Utah to (1) revise 
the cross-referenced provisions in the phrase ``R645-301-553.500 
through R645-301-540,'' regarding PMA's, CMA's, and areas subject to 
the AOC provisions, to read ``R645-301-553.500 through R645-301-
553.540'' and (2) revise the cross-referenced provisions in the phrase 
``R645-301-553.650 through R645-301-553.653'' to read ``R645-301-
553.650 through R645-301-553.651.''

6. Utah Admin. R. 634-301-553.500, PMA's, CMA's, and Areas With 
Remaining Highwalls Subject to AOC Provisions

    In partial response to the required amendment previously codified 
at 30 CFR 994.16(d)(1) (September 17, 1993, 58 FR 48600), Utah proposed 
to revise the existing title of section Utah Admin. R. 645-301-553.500 
to make it consistent with the content of subsections Utah Admin. R. 
645-301-553.510 through .540. Specifically, Utah proposed to revise the 
title of section Utah Admin. R. 645-301-553.500 from ``Previously Mined 
Areas'' to ``Previously mined areas (PMA's), Continuously Mined Areas 
(CMA's), and Areas with Remaining Highwalls Subject to the AOC 
Provisions.''
    Utah proposed this change to eliminate the inconsistency between 
the title ``Previously Mined Areas'' at Utah Admin. R. 645-301-553.500 
and the content of recodified subsection Utah Admin. R. 645-301-553.530 
(previously codified as .523), which addresses highwall stability 
criteria (see finding No. 9). The proposed title ``Previously mined 
areas (PMA's), Continuously Mined Areas (CMA's), and Areas with 
Remaining Highwalls Subject to the AOC Provisions'' for Utah Admin. R. 
645-301-553.500 is consistent with the term ``remaining highwalls,'' 
which Utah uses at Utah Admin. R. 645-301-553.530 in place of the terms 
``retained highwall'' and ``highwall remnant.''
    The Director finds that Utah's proposed revisions to the title of 
section Utah Admin. R. 645-301-553.500 are not inconsistent with the 
Federal AOC, PMA, and CMA provisions at 30 CFR 816.102, 817.102, 
816.106, and 817.106. The Director also finds that the proposed 
revisions satisfy the part of the required amendment previously 
codified at 30 CFR 944.16(d)(1) that applied to Utah Admin. R. 645-301-
553.500. For these reasons, the Director approves Utah's proposed 
revisions to the title of section Utah Admin. R. 645-301-553.500.

7. Utah Admin. R. 634-301-553.520, Backfilling and Grading of Remaining 
Highwalls

    Utah proposed to revise existing Utah Admin. R. 645-301-553.520 to 
make it consistent with the requirements for remaining operations on 
PMA's, operations on CMA's, and operations on areas with remaining 
highwalls subject to the AOC provisions. Specifically, Utah proposed to 
consolidate a phrase from original Utah Admin. R. 645-301-553.520 with 
the text of Utah Admin. R. 645-301-553.522 to create new Utah Admin. R. 
645-301-553.520 which states that ``[t]he backfill of all remaining 
highwalls will be graded to a slope that is compatible with the 
approved postmining land use and which provides adequate drainage and 
long-term stability.'' In conjunction with this consolidation, Utah 
deleted the citation previously codified at Utah Admin. R. 645-301-
553.522.
    The Federal regulations at 30 CFR 816.106(b)(2) and 817.106(b)(2) 
require that ``the backfill [from remaining operations on PMA's] shall 
be graded to a slope which is compatible with the approved postmining 
land use and which provides adequate drainage and long-term 
stability.'' The Federal regulations at 30 CFR 816.106(b)(2) and 
817.106(b)(2) apply only to remaining operations on PMA's. Utah's 
proposed rule differs from the Federal regulations in that Utah 
proposes to extend its rules concerning the backfilling and grading 
requirements for remaining highwalls to operations on CMA's and 
operations on areas with remaining highwalls subject to the AOC 
provisions. Although there are no Federal regulations that directly 
correspond to Utah's application of its rule to operations on CMA's and 
operations on areas with remaining highwalls subject to the AOC 
provisions, the Federal regulations at 30 CFR 816.106(b)(2) and 
817.106(b)(2), as discussed in the September 17, 1993, final rule 
Federal Register notice, are analogous to this Utah provision.
    Utah's proposed revisions to Utah Admin. R. 645-301-553.520, 
regarding the requirements for remaining operations on PMA's, CMA's, 
and areas with remaining highwalls subject to the AOC provisions, are 
not inconsistent with the corresponding Federal regulations at 30 CFR 
816.106(b)(2) and 817.106(b)(2). For this reason, the Director approves 
Utah's proposed revision to Utah Admin. R. 645-301-553.520.
8. Utah Admin. R. 645-301-553.530, Stability Criteria for Backfilling 
and Grading

    In partial response to the required amendment previously codified 
at 30 CFR 944.16(d) (September 17, 1993, 58 FR 48600), Utah proposed to 
revise existing Utah Admin. R. 645-301-553.523, regarding highwall 
retention stability criteria. Utah proposed recodifying the rule as 
Utah Admin. R. 645-301-553.530 and relocating it under the reorganized 
section of its rules at Utah Admin. R. 645-301-553.500 entitled 
``PMA's, CMA's and Areas with Remaining Highwalls Subject to the AOC 
Provisions,'' which was previously entitled ``previously mined areas'' 
(see finding No. 6). Utah also proposed to delete the phrase ``not to 
exceed either the angle of repose or such lessor slope as is necessary 
to'' from recodified Utah Admin. R. 645-301-553.530. Lastly, Utah 
proposed to revise the rule to require that (1) any remaining highwall 
will be stable and not pose a hazard to the public health or safety or 
to the environment, and (2) remaining highwalls must achieve a minimum 
long-term static safety factor of 1.3 and prevent slides, or meet an 
alternative criterion that the operator proposes and demonstrates to 
the satisfaction of the Division that the remaining highwall is stable 
does not pose a hazard to the public health and safety or to the 
environment.
    By changing the PMA title of Utah Admin. R. 645-301-553.530 to 
include CMA's and areas with remaining highwalls subject to the AOC 
provisions, Utah in effect proposed that remaining highwalls on PMA's 
and CMA's and areas with remaining highwalls subject of the AOC 
provisions comply with the proposed stability criteria of Utah Admin. 
R. 645-301-553.530.
    The Federal general backfilling and grading regulations at 30 CFR 
816.102(a)(3) and 817.102(a)(3) require that disturbed areas be 
backfilled and graded to achieve a postmining slope that does not 
exceed either the angle of repose or such lesser slope as is necessary 
to achieve a minimum long-term static safety factor of 1.3 and to 
prevent slides. The Federal regulations at 30 CFR 816.106(b)(3) and 
817.106(b)(3) concerning backfilling and grading of PMA's require that 
any highwall remnant be stable and not pose a hazard to the public 
health and safety [[Page 28045]] or to the environment and that the 
operator shall demonstrate, to the satisfaction of the regulatory 
authority, that the highwall remnant is stable. The Federal regulations 
at 30 CFR 816.106(b)(3) and 817.106(b)(3) apply only to remaining 
operations on PMA's. Utah's proposed rule differs from the Federal 
regulations in that Utah proposes to extend its rules concerning the 
stability criteria for backfilling and grading of remaining highwalls 
to operations on CMA's and operations on areas with remaining highwalls 
subject to the AOC provisions. Although there are no Federal 
regulations that directly correspond to Utah's application of its rule 
to operations on CMA's and operations on areas with remaining highwalls 
subject to the AOC provisions, the Federal regulations at 30 CFR 
816.106(b)(3) and 817.106(b)(3), as discussed in the September 17, 
1993, final rule Federal Register notice, are analogous to this Utah 
provision.
    The Director emphasizes that, in all cases, the Federal regulations 
at 30 CFR 816.102(a)(3) and 817.102(a)(3) require the backfill material 
at the base or against a highwall to have a minimum long-term static 
safety factor of 1.3 and prevent slides. The Director recognizes that a 
highwall remnant extending above the backfill material does not have to 
achieve the 1.3 minimum long-term static safety factor. However, the 
Federal regulations at 30 CFR 816.106(b)(3) and 817.106(b)(3) and 
require (1) that any highwall remnant be stable and not pose a hazard 
to the public health and safety or to the environment and (2) that an 
operator demonstrate to the satisfaction of the regulatory authority 
that the highwall remnant is stable.
    Utah's proposed revisions to recodified Utah Admin. R. 645-301-
553.530 to require that its stability criteria apply to any remaining 
highwall left in accordance with the approved State program, whether in 
connection with a PMA, a CMA or an area with remaining highwalls 
subject to Utah's AOC provisions is not inconsistent with the Federal 
regulations at 30 CFR 816.102(a)(3), 817.102(a)(3), 816.106(b)(3) and 
817.106(b)(3).
    The portion of Utah's proposed revisions to recodified Utah Admin. 
R. 645-301-553.530 deleting the phrase ``not to exceed either the angle 
of repose or such lesser slope as is necessary to,'' as previously 
required by 30 CFR 944.16(d), is not inconsistent with the Federal 
regulations at 30 CFR 816.102(a)(3) and 817.102(a)(3).
    The portion of Utah's proposed revisions at Utah Admin. R. 645-301-
553. 530 that allows an operator to provide alternative stability 
criterion to establish that a highwall remnant or retained highwall is 
stable and does not pose a hazard to the public health and safety or to 
the environment is not inconsistent with the Federal regulations at 30 
CFR 816.106(b)(3) and 817.106(b)(3).
    For the reasons discussed above, the Director approves Utah's 
proposed rule revisions to recodified Utah Admin. R. 645-301-553.530. 
The Director also finds that the proposed revisions satisfy the part of 
the required amendment previously codified at 30 CFR 944.16(d)(1) that 
applied to recodified Utah Admin. R. 645-301-553.530 and satisfy in 
total the required amendments previously codified at 30 CFR 
944.16(d)(2) and (3).

9. Utah Admin. R. 634-301-553.600, PMA's and CMA's

    Utah proposed to delete existing Utah Admin. R. 645-301-553.650 and 
create new Utah Admin. R. 645-301-553.600, which serves as the section 
title and introduction to Utah's reorganized rule requirements at Utah 
Admin. R. 645-301-553.610 through .612 for PMA's and CMA's (see finding 
Nos. 11 and 12).
    The counterpart Federal regulations at 30 CFR 816.106 and 817.106 
pertain to backfilling and grading requirements for PMA's. The Federal 
regulations at 30 CFR 816.106 and 817.106 apply only to backfilling and 
grading requirements for remaining operations PMA's. Utah's proposed 
rule differs from the Federal regulations in that Utah proposes to 
extend its rules concerning the backfilling and grading requirements 
for remaining highwalls to operations on CMA's. Although there are no 
Federal regulations that directly correspond to Utah's application of 
its rule to CMA's, the Federal regulations at 30 CFR 816.106 and 
817.106, as discussed in the September 17, 1993, final rule Federal 
Register notice, are analogous to this Utah provision.
    Newly-created Utah Admin. R. 645-301-553.600 is consistent with 
Utah's proposed rule reorganization and is not inconsistent with the 
corresponding Federal regulations at 30 CFR 816.106 and 817.106. 
Accordingly, the Director approves Utah's proposed rule revision.

10. Utah Admin. R. 634-301-553.610, Exceptions for PMA's and CMA's From 
the Requirement for Complete Highwall Elimination

    Utah proposed to revise the text of the existing provision at Utah 
Admin. R. 645-301-553.520 and relocate it at new Utah Admin. R. 645-
301-553.610 under the newly-created section of Utah's rules at Utah 
Admin. R. 645-301-553.600 addressing PMA's and CMA's (see finding No. 
10). Specifically, proposed Utah Admin. R. 645-301-553.610 states that 
highwalls on PMA's or CMA's must be eliminated to the maximum extent 
technically practical, but are not required to be completely eliminated 
where the volume of all reasonably available spoil is demonstrated in 
writing to the Division to be insufficient to completely backfill the 
reaffected or enlarged highwall.
    Newly-created Utah Admin. R. 645-301-553.610, which allows an 
exception for PMA's and CMA's to the requirement that highwalls be 
completely eliminated, is consistent with the proposed reorganization 
of Utah's rules. In addition, because operations on both PMA's and 
CMA's must eliminate the highway to the maximum extent technically 
practical and make a written demonstration that all reasonably 
available spoil was used, proposed Utah Admin. R. 645-301-553.610 is 
not inconsistent with the Federal regulations at 30 CFR 816.106(b)(2) 
and 817.106(b)(2). For this reason, the Director approves newly-created 
Utah Admin. R. 645-301-553.610.

11. Utah Admin. R. 634-301-553.611 and .612, Backfilling and Grading of 
Reasonably Available Spoil
    Utah proposed to delete existing Utah Admin. R. 645-301-553.521 and 
create new provisions at Utah Admin. R. 645-301-553.611 and .612 
respectively, which consist of the revised text of former Utah Admin. 
R. 645-301-553.521. Newly-created Utah Admin. R. 645-301-553.611 
requires that all spoils generated by the remining operation or CMA and 
any other reasonably available spoil will be used to backfill the area. 
Newly-created Utah Admin. R. 645-301-553.612 requires that reasonably 
available spoil in the immediate vicinity of the remining operation or 
CMA will be included within the permit area.
    The Federal regulations at 30 CFR 816.106(b)(1) and 817.106(b)(1) 
require that all spoil generated by the remining operation on PMA's and 
any other reasonably available spoil will be used to backfill the area, 
and reasonably available spoil in the immediate vicinity of the 
remining operation shall be included within the permit area. The 
Federal regulations at 30 CFR 816.106(b)(1) and 817.106(b)(1) apply 
only to backfilling and grading requirements for remining operations on 
PMA's. Utah's proposed rules differ from the Federal regulations in 
that Utah proposes to extend its rules concerning the requirements for 
backfilling and grading of reasonably [[Page 28046]] available spoil to 
operations with remaining highwalls on CMA's. Although there are no 
Federal regulations that directly correspond to Utah's application of 
its rules to CMA's, the Federal regulations at 30 CFR 816.106(b)(1) and 
817.106(b)(1), as discussed in the September 17, 1993, final rule 
Federal Register notice, are analogous to these Utah provisions.
    Utah's newly-created provisions at proposed Utah Admin. R. 645-301-
553.611 and .612 are in accordance with Utah's proposed rule 
reorganization and are not inconsistent with the Federal requirements. 
Accordingly, the Director approves Utah's newly-created provisions at 
Utah Admin. R. 645-301-553.611 and .612.

12. Utah Admin. R. 645-301-553.650, Highwall Management Under the AOC 
Provisions

    In response to the required amendment previously codified at 30 CFR 
944.16(a) (September 17, 1993, 58 FR 48600), Utah proposed to create 
new Utah Admin. R. 645-301-553.650 by proposing a section entitled 
``Highwall Management Under the Approximate Original Contour 
Provisions.'' Newly-created Utah Admin. R. 645-301-553.650 requires 
that for situations where a permittee seeks approval for a remaining 
highwall under the AOC provisions, the permittee will establish and the 
Division will find in writing that the remaining highwall will achieve 
the stability and AOC requirements of certain cited applicable rules.
    While there are no Federal regulations that directly correspond to 
newly-created Utah Admin. R. 645-301-553.650, the Federal regulations 
at 30 CFR 816.102(k)(3)(ii) and 817.102(k)(1) explicitly require 
operators to obtain the regulatory authority's approval for 
determinations relating to AOC. Because Utah's proposed rule at Utah 
Admin. R. 645-301-553.650 does explicitly require that, prior to the 
Division approving the retention of a highwall, the permittee will 
establish and the Division will find in writing that the remaining 
highwall will achieve the applicable stability requirements and will 
meet the applicable AOC criteria, it is not inconsistent with the 
Federal regulations at 30 CFR 816.102(k)(3)(ii) and 817.102(k)(1).
    Accordingly, the Director approves newly-created Utah Admin. R. 
645-301-553.650. The Director also finds that the proposed rule 
satisfies the required amendment previously codified at 30 CFR 
944.16(a).

13. Utah Admin. R. 645-301-553.650.100, Height and Length of Remaining 
Highwalls

    In response to the required amendment previously codified at 30 CFR 
944.16(b) (September 17, 1993, 58 FR 48600), Utah proposed to revise 
existing Utah Admin. R. 645-301-553.651 by recodifying it as Utah 
Admin. R. 645-301-553.650.100 and revising it to require that a 
remaining highwall will not be greater in height or length than the 
cliffs and cliff-like escarpments that were replaced or disturbed by 
the mining operations.
    Beacuse proposed Utah Admin. R. 645-301-553.650.100 restricts the 
height and length of remaining highwalls to those cliffs and cliff-like 
escarpments that were replaced or disturbed by the mining operations, 
it is consistent with the replacement criterion for areas with 
remaining highwalls subject to the AOC provisions at Utah Admin. R. 
645-301-553.650.200, and is no less stringent than section 515(b)(3) of 
SMCRA, which requires mining operations to restore the land to AOC. In 
addition, Utah Admin. R. 645-301-553.650.100 is in accordance with 
Utah's proposed rule reorganization.
    For these reasons, the Director approves proposed Utah Admin. R. 
645-301-553.650.100. The Director also finds that the proposed rule 
satisfies the required amendment previously codified at 30 CFR 
944.16(b).

14. Utah Admin. R. 645-301-553.650.200, Replacement of Preexisting 
Cliffs or Similar Natural Premining Features With a Remaining Highwall
    Utah proposed to recodify existing Utah Admin. R. 645-301-553.652 
as Utah Admin. R. 645-301-553.650.200 and revise it to require that a 
highwall may remain only when it replaces a preexisting cliff or 
similar natural premining feature and resembles the structure, 
composition, and function of the natural cliff it replaces.
    As discussed in the September 17, 1993, final rule Federal Register 
notice (58 FR 48600, 48604-5), the Secretary of the Interior harmonized 
the inherent contradiction that exists when applying section 515(b)(3) 
of SMCRA, which requires operators to restore land to AOC with all 
highwalls eliminated, to specific areas of Utah involving natural 
benches and steep topography by approving a carefully limited exception 
in the Utah program to SMCRA's requirement for the complete elimination 
of all highwalls. Because proposed Utah Admin. R. 645-301-553.650.200 
allows highwalls to remain only when they replace preexisting cliffs or 
similar natural premining features and resemble the structure, 
composition, and function of the natural cliffs they replace, it is in 
accordance with the Secretary's approval of Utah's provisions for areas 
with remaining highwalls subject to the AOC provisions and is no less 
stringent than section 515(b)(3) of SMCRA, which requires mining 
operations to restore the land to AOC. In addition, Utah Admin. R. 645-
301-553.600.200 is consistent with Utah's proposed rule reorganization. 
Accordingly, the Director approves Utah's proposed rule.

15. Utah Admin. R. 645-301-553.651, Applicability Date

    In response to the required amendment previously codified at 30 CFR 
944.16(c) (September 17, 1993, 58 FR 48600), Utah proposed to create 
new Utah Admin. R. 645-301-553.651, which states the following.

    Applicability. Where final backfilling and grading was completed 
and the phase one bond was released prior to June 2, 1992, no 
redisturbance of a reclaimed highwall will be required. Highwalls 
which were approved under R645-301-553.652, the rule commonly 
referred to as the ``AOC alternative,'' after December 13, 1982 are 
subject to the retroactive application of current rule R645-301-
552.650, providing the subject highwall has not been reclaimed and 
phase one bond was not released prior to June 2, 1992.

    Utah incorporates by reference the provisions of Utah Admin. R. 
645-301-552.650. No such citation exists in Utah's rules. For the 
purposes of the following finding, OSM assumes that the proposed 
reference is a typographical error and that Utah intended to cite Utah 
Admin. R. 645-301-553.650.200, which is pertinent to the proposed 
applicability section at Utah Admin. R. 645-301-553.651 and the 
required amendment previously codified at 30 CFR 944.16(c).
    At Utah Admin. R. 645-301-553.651, Utah proposes that the 
requirements of Utah Admin. R. 645-301-553.650.200 (incorrectly cited 
by Utah as Utah Admin. R. 645-301-552.650) do not retroactively apply 
to highwalls which were retained under existing Utah Admin. R. 645-301-
553.652 and for which final backfilling and grading was completed and 
the phase one bond was released prior to June 2, 1992.
    Existing Utah Admin. R. 645-301-553.652 provides in part that a 
highwall may be retained if it is similar in structural composition to 
the preexisting cliffs ``in the surrounding area.'' As discussed in the 
September 17, 1993, final rule Federal Register notice (58 FR 48600, 
48605; finding No. [[Page 28047]] 3), Utah interpreted the quoted 
phrase to allow the retention of highwalls when no similar natural 
features existed in the disturbed area prior to mining. By letter dated 
January 9, 1991, and sent to Utah in accordance with 30 CFR 732.17, OSM 
notified Utah that this interpretation was not consistent with SMCRA 
and the Secretary's assumptions in approving the provisions of the Utah 
program that allow for the incomplete elimination of highwalls for 
areas with remaining highwalls subject to the AOC provisions.
    With respect to the June 2, 1992, date that Utah uses in proposed 
Utah Admin. R. 645-301-553.651, the Director, as also discussed in the 
September 17, 1993, final rule Federal Register notice (58 FR 48600, 
48605-6; finding No. 3(C)(3)(b)), found that an applicability date of 
December 13, 1982, rather than June 2, 1992, is mandated by SMCRA. In 
that discussion, the Director made clear that the replacement 
criterion, now codified at Utah Admin. R. 645-301-553.650.200, has an 
applicability date of December 13, 1982, and must apply to any highwall 
retained pursuant to the AOC provisions of the Utah program at Utah 
Admin. R. 645-301-553.650 regardless of the date that the highwall was 
created.
    For these reasons, the Director finds that proposed Utah Admin. R. 
645-301-553.651 is less stringent than section 515 of SMCRA, not in 
accordance with the Secretary's assumptions in approving the provisions 
of the Utah program that allow for the incomplete elimination of 
highwalls for areas with remaining highwalls subject to the AOC 
provisions, and not in accordance with the Director's previous finding 
in the September 17, 1993, final rule Federal Register notice (58 FR 
48600, 48605-6; finding No. 3(C)(3)(b)). Therefore, the Director does 
not approve Utah's proposed rule at Utah Admin. R. 645-301-553.651. In 
addition, the Director will continue to interpret the replacement 
criterion at Utah Admin. R. 645-301-553.650.200 as having an 
applicability date of December 13, 1982, and as applying to any 
highwall retained pursuant to the AOC provisions of the Utah program at 
Utah Admin. R. 645-301-553.650. The Director is not requiring Utah, as 
was done previously at 30 CFR 944.16(c), to revise its rules to require 
that the replacement criterion provision at Utah Admin. R. 645-301-
553.650.200 has an applicability date of December 13, 1982, and applies 
to any highwall retained pursuant to the AOC provisions of the Utah 
program. OSM has decided that it is not necessary to require Utah to so 
revise its rules because OSM has already made clear, in the September 
17, 1993, final rule Federal Register notice (58 FR 48600, 48605-6; 
finding No. 3(C)(3)(b)), and again in this finding, that the Director 
will interpret the Utah replacement criterion at Utah Admin. R. 645-
301-553.650.200 as having an applicability date of December 13, 1982, 
and as applying to any highwall retained pursuant to the AOC provisions 
of the Utah program at Utah Admin. R. 645-301-553.650. OSM will utilize 
this interpretation of the replacement criterion at Utah Admin. R. 645-
301-553.650.200 in its oversight of the Utah program, regardless of 
whether or not Utah's program explicitly addresses the applicability of 
the replacement criterion.
IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Utah program.
    The U.S. Army Corps of Engineers responded on December 15, 1993, 
and August 1 and December 9, 1994, that the changes to the Utah program 
were satisfactory (administrative record Nos. UT-884, UT-958, and UT-
998).
    The U.S. Fish and Wildlife Service responded on December 16, 1993, 
that it found nothing of significant concern and on August 9, 1994, 
that it had no further comments (administrative record Nos. UT-885 and 
UT-961).
    The U.S. Forest Service (USFS) responded on December 27, 1993, that 
``the State of Utah uses a safety factor of 1.3 for long-term stability 
of highwalls whereas the Forest Service requires a safety factor of 
1.5'' (administrative record No. UT-886).
    Utah Admin. R. 645-301-553.130, in pertinent part, requires that 
disturbed areas will be backfilled and graded to achieve a postmining 
slope that does not exceed either the angle of repose or such lesser 
slope as is necessary to achieve a long-term static safety factor of 
1.3 and prevent slides. In addition, Utah Admin. R. 645-301-553.530 
requires, in pertinent part, that a Utah operator will demonstrate, to 
the satisfaction of the Division, that a remaining highwall must 
achieve a minimum long-term static safety factor of 1.3 and prevent 
slides.
    As discussed in finding No. 8, the Federal regulations at 30 CFR 
816.102(a)(3) and 817.102(a)(3) require that disturbed areas shall be 
backfilled and graded to achieve a postmining slope that does not 
exceed either the angle of repose or such lesser slope as is necessary 
to achieve a long-term static safety factor of 1.3 and prevent slides. 
Therefore, Utah's use of a 1.3 static safety factor for long-term 
stability of highwalls is ``in accordance with and no less effective 
than'' the Federal backfilling and grading standards set forth in title 
30 of the Code of Federal Regulations. Because the Federal regulations 
at 30 CFR 730.5(b) only require that a State's laws be ``in accordance 
with'' and ``no less effective than'' the Federal regulations in 
meeting the requirements of SMCRA, the Director does not have the 
authority to require standards in excess of the Federal regulations 
that implement SMCRA. One this basis, the Director does not require 
Utah to revise its program in response to USFS's comment. However, if 
USFS has a 1.5 static safety factor that applies to highwalls on land 
under USFS's jurisdiction, this does not preclude USFS from enforcing 
this standard on such highwalls.
    The Mine Safety and Health Administration responded on June 20, 
1994, and January 12, 1995, that the proposed amendment did not appear 
to conflict with the requirements of 30 CFR, which includes its safety 
regulations (administrative record Nos. UT-940 and UT-1006).
    The U.S. Bureau of Mines responded on July 18 and December 6, 1994, 
by telephone conversation, that it had no comments on the proposed 
amendment (administrative record Nos. UT-948 and UT-995).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to those provisions of the 
proposed 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.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that Utah proposed to make in its amendment 
pertain to air or water quality standards. Therefore, OSM did not 
request EPA's concurrence. [[Page 28048]] 
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record Nos. UT-876, UT-946, 
and UT-993). It responded on December 9, 1993, July 19, 1994, and 
December 22, 1994, that it had no comments on the proposed amendment 
and did not believe that there would be any impacts to water quality 
standards promulgated under the Clean Water Act (administrative record 
Nos. UT-880, UT-954, and UT-1000).

4. State Historic Preservation Officer (SHPO)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO (administrative record Nos. UT-876, 
UT-946, and UT-993). the SHPO did not respond to OSM's request.
V. Director's Decision

    Based on the above findings, the Director approves, with an 
exception and additional requirements, Utah's proposed amendment as 
submitted on November 12, 1993, and as revised on June 28 and November 
3, 1994.
    The Director does not approve, as discussed in: finding No. 15, 
Utah Admin. R. 645-301-553.651, concerning the applicability date of 
Utah's replacement criterion for areas with remaining highwalls subject 
to the AOC provisions at Utah Admin. R. 645-301-553.650.200.
    The Director approves, as discussed in: finding No. 1, Utah Admin. 
R. 645-301-553, concerning contemporaneous reclamation requirements for 
backfilling and grading; Utah Admin. R. 645-301-553.130, concerning the 
requirements for a 1.3 static safety factor; Utah Admin. R. 645-301-
553.150, concerning the requirements for post mining land use; Utah 
Admin. R. 645-301-553.200, concerning the backfilling and grading 
requirements for spoil and waste; Utah Admin. R. 645-301-553.210, 
concerning the general requirements for disposal of excess spoil; Utah 
Admin. R. 645-301-553.220, concerning the requirements for placement of 
spoil; Utah Admin. R. 645-301-553.252, concerning the requirements for 
final grading of refuse piles and coal mine waste; Utah Admin. R. 645-
301-553.300, concerning the requirements for covering of exposed coal 
seams; Utah Admin. R. 645-301-553.510, concerning remaining operations 
on PMA's, operations on CMA's, and operations on areas with remaining 
highwalls subject to AOC provisions; Utah Admin. R. 645-301-553.540, 
concerning the requirements for spoil placement; Utah Admin. R. 645-
301-553.650.300, concerning the requirement for modifications to 
retained highwalls restoring cliff-type habitats required by premining 
flora and fauna; Utah Admin. R. 645-301-553.650.400, concerning the 
requirement for compatibility of retained highwalls with the approved 
postmining land use and visual attributes of the area; and Utah Admin. 
R. 645-301-553.650.500, concerning the exemption from obtaining a 
variance from AOC requirements; finding No. 2, Utah Admin. R. 645-301-
553.100, concerning the section entitled ``disturbed areas,'' and Utah 
Admin. R. 645-301-553.230, concerning the general requirements for 
backfilling and grading; finding No. 3, Utah Admin. R. 645-100-200, 
concerning the definition of ``Continuously Mined Areas;'' finding No. 
6, Utah Admin. R. 645-301-553.500, concerning PMA's, CMA's, and areas 
with remaining highwalls subject to AOC provisions; finding No. 7, Utah 
Admin. R. 634-301-553.520, concerning backfilling and grading of 
remaining highwalls; finding No. 8, Utah Admin. R. 645-301-553.530, 
concerning stability criteria for backfilling and grading and resulting 
in partial removal of the required amendment previously codified at 30 
CFR 944.16(d)(1) and total removal of the required amendments 
previously codified at 30 CFR 944.16(d) (2) and (3); finding No. 9, 
Utah Admin. R. 634-301-553.600, concerning Utah's newly-created section 
title for its reorganized rule requirements for PMA's and CMA's; 
finding No. 10, Utah Admin. R. 634-301-553.610, concerning exceptions 
for PMA's and CMA's from the requirement for complete highwall 
elimination; finding No. 11, Utah Admin. R. 634-301-553.611 and .612, 
concerning backfilling and grading of reasonably available spoil; 
finding No. 12, Utah Admin. R. 645-301-553.650, concerning highwall 
management under the AOC provisions and removal of the required 
amendment previously codified at 30 CFR 944.16(a); finding No. 13, Utah 
Admin. R. 645-301-553.650.100, concerning the height and length of 
remaining highwalls and removal of the required amendment previously 
codified at 30 CFR 944.16(b); and finding No. 14, Utah Admin. R. 645-
301-553.650.200, concerning the replacement of preexisting cliffs or 
similar natural premining features with a remaining highwall.
    With the requirement that Utah further revise its rules, the 
Director approves, as discussed in: finding No. 4, Utah Admin. R. 645-
301-553.110, concerning exceptions to the requirement that disturbed 
areas achieve AOC; and finding No. 5, Utah Admin. R. 534-301-553.120, 
concerning backfilling and grading of spoil and waste.
    The Director approves, with one exception, the rules as proposed by 
Utah with the provision that they be fully promulgated in identical 
form to the rules submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 944, codifying 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.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Utah program, the Director will recognize only the 
statutes, regulations and other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by Utah of only such 
provisions.

VI. 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 had 
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 1255) and the Federal regulations at 30 CFR 
[[Page 28049]] 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

    The 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 with 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.

VII. List of Subjects in 30 CFR 944

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 23, 1995.
Richard J. Seibel,
Regional Director, Western Regional Coordinating 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 (ee) to read as 
follows:


Sec. 944.15  Approval of amendments to the Utah regulatory program.

 * * * * *
    (ee) With the exception of Utah Admin. R. 645-301-553.651, 
concerning the applicability date of Utah's replacement criterion for 
areas with remaining highwalls subject to the AOC provisions at Utah 
Admin. R. 645-301-553.650.200 (formerly the ``AOC alternative''), the 
following rules, as submitted to OSM on November 12, 1993, and as 
revised on June 28 and November 3, 1994, are approved effective May 30, 
1995.

645-100-200......................  Definition of ``Continuously Mined   
                                    Areas'' (CMA's).                    
645-301-553......................  Contemporaneous Reclamation          
                                    Requirements for Backfilling and    
                                    Grading.                            
645-301-553.100..................  Section Entitled ``Disturbed Areas.''
645-301-553.110..................  Exceptions to the Requirement That   
                                    Disturbed Areas Achieve Approximate 
                                    Original Contour (AOC).             
645-301-553.120..................  Backfilling and Grading of Spoil and 
                                    Waste.                              
645-301-553.130..................  Requirements for a 1.3 Static Safety 
                                    Factor.                             
645-301-553.150..................  Requirements for Postmining Land Use.
645-301-553.200..................  Backfilling and Grading Requirements 
                                    for Spoil and Waste.                
645-301-553.210..................  General Requirements for Disposal of 
                                    Excess Spoil.                       
645-301-553.220..................  Requirements for Placement of Spoil. 
645-301-553.230..................  General Requirements for Backfilling 
                                    and Grading.                        
645-301-553.252..................  Final Grading of Refuse Piles and    
                                    Coal Mine Waste.                    
645-301-553.300..................  Covering of Exposed Coal Seams.      
645-301-553.500..................  Previously Mined Area's (PMA's),     
                                    CMA's, and Areas With Remaining     
                                    Highwalls Subject to AOC Provisions.
645-301-553.510..................  Remining Operations on PMA's,        
                                    Operations on CMA's, and Operations 
                                    on Areas With Remaining Highwalls   
                                    Subject to AOC Provisions.          
645-301-553.520..................  Backfilling and Grading of Remaining 
                                    Highwalls.                          
645-301-553.530..................  Stability Criteria for Backfilling   
                                    and Grading.                        
645-301-553.540..................  Spoil Placement.                     
645-301-553.600..................  Newly-Created Section Title for      
                                    Utah's Reorganized Rule Requirements
                                    for PMA's and CMA's.                
645-301-553.610..................  Exceptions for PMA's and CMA's From  
                                    the Requirement for Complete        
                                    Highwall Elimination.               
645-301-553.611 and .612.........  Backfilling and Grading of Reasonably
                                    Available Spoil.                    
645-301-553.650..................  Highwall Management Under the AOC    
                                    Provisions.                         
645-301-553.650.100..............  Height and Length Requirements of    
                                    Remaining Highwalls.                
645-301-553.650.200..............  Replacement of Preexisting Cliffs or 
                                    Similar Natural Premining Features  
                                    With a Remaining Highwall.          
645-301-553.650.300..............  Modifications to Retained Highwalls  
                                    Restoring Cliff-Type Habitats       
                                    Required by Premining Flora and     
                                    Fauna.                              
645-301-553.650.400..............  Compatibility of Retained Highwalls  
                                    With the Approved Postmining Land   
                                    Use and Visual Attributes of the    
                                    Area.                               
645-301-553.650.500..............  Exemption from Obtaining a Variance  
                                    From AOC Requirements.              
                                                                        

    3. Section 944.16 is amended by adding paragraphs (c) and (d) to 
read as follows:


Sec. 944.16  Required program amendments.

 * * * * *
    (c) By July 31, 1995, Utah shall revise Utah Admin. R. 645-301-
553.110, or otherwise modify its program, by correcting the cross-
referenced provisions in the phrase ``R645-301-500 through R645-301-
540,'' regarding previously mined area's continuously mined area's, and 
areas subject to the AOC provisions, to read ``R645-301-553.500 through 
R645-301-553.540.''
    (d) By July 31, 1995, Utah shall revise Utah Admin. R. 645-301-553-
120, or otherwise modify its program, by correcting the cross-
referenced provisions in the phrase ``R645-301-553.500 through R645-
301-540,'' regarding previously mined area's, continuously mined 
area's, and areas [[Page 28050]] subject to the AOC provisions, to read 
``R645-301-553.500 through R645-301-553.540'' and correcting the cross-
referenced provisions in the phrase ``R645-301-553.650 through R645-
301-553.653'' to read ``R645-301-553.650 through R645-301-553.651.''

[FR Doc. 95-13156 Filed 5-26-95; 8:45 am]
BILLING CODE 4310-05-M