[Federal Register Volume 60, Number 70 (Wednesday, April 12, 1995)]
[Rules and Regulations]
[Pages 18710-18721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8910]




[[Page 18709]]

_______________________________________________________________________

Part VI





Department of the Interior





_______________________________________________________________________



Office of Surface Mining Reclamation and Enforcement



_______________________________________________________________________



30 CFR Part 903



Surface Mining and Reclamation Operations Under a Federal Program for 
Arizona; Final Rule

Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / 
Rules and Regulations 
[[Page 18710]]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 903

RIN 1029-AB81


Surface Mining and Reclamation Operations Under a Federal Program 
for Arizona

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
of the Department of the Interior (DOI) is promulgating a Federal 
program to regulate coal exploration and surface coal mining and 
reclamation operations on non-Federal and non-Indian lands in the State 
of Arizona. This includes surface effects of underground coal mining. 
This program is necessary in order to regulate surface coal mining 
activities that may be undertaken in Arizona under applicable 
provisions of the Surface Mining Control and Reclamation Act of 1977 
(SMCRA), and under OSM regulations on standards and procedures relating 
to a Federal program for a State in the absence of a State program.

EFFECTIVE DATE: May 12, 1995.

FOR FURTHER INFORMATION CONTACT: Thomas E. Ehmett, Office of 
Surface Mining Reclamation and Enforcement, 505 Marquette Avenue 
NW, Suite 1200, Albuquerque, New Mexico 87102; Telephone (505) 766-
1486; or Nancy Broderick, Branch of Federal and Indian Programs, 
Division of Regulatory Programs, Office of Surface Mining 
Reclamation and Enforcement, 1951 Constitution Avenue NW, 
Washington, DC 20240; Telephone (202) 208-2564.

SUPPLEMENTARY INFORMATION:

I. Background.
II. Discussion of Final Rule.
III. Response to Public Comments.
IV. Procedural Matters.

I. Background

    Under section 504(a) of the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA), 30 U.S.C. 1201 et seq., the Secretary of the 
Interior (the Secretary) is required to promulgate a Federal program 
for a State in which there are or may be conducted surface coal mining 
operations on non-Federal and non-Indian lands for, among other 
reasons, the failure of the State to submit a proposed State program to 
the Secretary. Upon promulgation of a Federal regulatory program, the 
Secretary becomes the regulatory authority.
    Once a decision is made by OSM that a Federal regulatory program is 
necessary for a State, the Secretary must make several determinations 
before promulgating a program, as outlined below.
    Section 504(a) of SMCRA requires that the Secretary take into 
consideration the nature of the State's terrain, climate, biological, 
chemical, and other relevant physical conditions. This requirement is 
also set forth in the regulations for the promulgation of Federal 
programs at 30 CFR Part 736.
    Section 505(b) of SMCRA and 30 CFR 736.22(a)(1) also provide that 
if a State has more stringent land use and environmental protection 
laws or regulations than SMCRA, they shall not be construed to be 
inconsistent with SMCRA or the Secretary's regulations. If the State's 
laws or regulations establish more stringent standards than those of 
SMCRA or the Secretary's regulations, or if the State regulates any 
aspect of the environment which neither SMCRA nor the Secretary's 
regulations protect, the Secretary would then specifically preserve 
those State standards in the Federal program. Thus, the Secretary 
believes that the requirements of section 505(b) of SMCRA can best be 
met by identifying any State laws and regulations which impose 
equivalent or more stringent environmental controls and by listing them 
in Sec. 903.700(e) of the Federal program.
    Also, in promulgating a program for a State, section 504(g) of 
SMCRA specifies that any State statutes or regulations which regulate 
surface mining and reclamation operations subject to SMCRA will be 
superseded and preempted by the Federal program to the extent that they 
interfere with the achievement of the purposes and requirements of 
SMCRA and the Federal program. This provision is reinforced by section 
505(a) of SMCRA, which states that only those State laws and 
regulations that are inconsistent with SMCRA and its implementing 
regulations shall be superseded by the Federal program.
    Thus, those State statutes and rules regulating the same activities 
as those covered by the Federal statute and regulations, but which do 
not provide as much protection as do the Federal statute and 
regulations, are considered to interfere with the achievement of the 
purposes of SMCRA and must be identified and preempted by OSM.
    Finally, according to section 504(h) of SMCRA, a Federal program 
must include a process for coordinating the review and issuance of 
surface mining permits with other Federal or State permits applicable 
to the proposed operation. The Federal statutes with which compliance 
must be coordinated in the issuance of a surface mining permit are set 
out at 30 CFR 736.22(c). State statutes for which a permit is required 
must be identified in the process of promulgating a Federal program, 
and the Federal program must provide for coordination with the permit 
review and issuance procedures required by those statutes.
    Federal programs are based on the Secretary's permanent program 
regulations, 30 CFR Chapter VII, Subchapters A, F, G, H, J, K, L, and 
M, which implement five essential aspects of the surface coal mining 
regulatory program: permitting, performance standards, designation of 
lands as unsuitable for mining, bonding, and inspection and 
enforcement. These regulations establish procedures and performance 
standards under SMCRA and form the benchmark for State and Federal 
regulatory programs.
    The permanent program regulations refer to the ``regulatory 
authority,'' which is the Secretary under a Federal program. The 
Secretary has delegated all of his authority under SMCRA to the 
Assistant Secretary--Land and Minerals Management. (Secretarial Order 
No. 3013, Nov. 9, 1977, and Order No. 3099, Dec. 22, 1983). With 
limited exceptions, the Assistant Secretary has in turn redelegated all 
of this authority under SMCRA to the Director, OSM (216 Departmental 
Manual 1, November 9, 1977). Thus, the Director of OSM is the official 
directly responsible for the implementation of a Federal regulatory 
program.
    The parts of the permanent regulatory program regulations that must 
be included in a Federal program are listed at 30 CFR 736.22(b). They 
include general requirements and definitions (Parts 700 and 701), the 
exemption for coal extraction incident to government-financed highway 
or other construction (Part 707), the designation of lands as 
unsuitable for surface mining (Parts 761, 762, and 769), permits and 
permit applications (Subchapter G), small operator assistance 
(Subchapter H), reclamation bonding (Subchapter J), performance 
standards (Subchapter K), inspection and enforcement (Parts 842, 843, 
and 845), and blaster training and certification (Subchapter M).
    Federal programs are promulgated by means of cross-referencing the 
permanent program rules which set the substantive standards. Cross-
referencing avoids duplication of the full text of the permanent 
regulatory program rules for each Federal program. The Federal 
[[Page 18711]] regulatory program for Arizona is established at 30 CFR 
part 903. Sections within Part 903 cross-reference the counterpart 
permanent program rules. For example, for general requirements for 
permits and permit applications, Sec. 903.773 of the Arizona Federal 
regulatory program cross-references 30 CFR part 773 of the permanent 
program rules by stating that 30 CFR part 773 shall apply to any person 
who makes application for a permit to conduct surface coal mining and 
reclamation operations.
    For each particular permanent program regulation which needs to be 
modified for use in a Federal program, an additional paragraph or 
paragraphs has been added under the appropriate section to modify that 
particular permanent regulatory program standard to make it applicable 
to the Federal program for a particular State or to add additional 
requirements or standards.
    One effect of cross-referencing in a Federal program is that if a 
permanent program rule is revised, the corresponding Federal program 
rule would be similarly revised. However, the notice of proposed 
rulemaking would invite comments not only on the proposed rule 
generally, but also on how it might affect a particular Federal 
program. If certain changes were needed for a Federal program, then a 
separate provision would be added to the Federal program regulation 
that is the counterpart to the permanent program rule.
    Several provisions of the permanent program rules are already 
applicable to all Federal programs because they were promulgated for 
application to all regulatory programs and therefore need not be cross-
referenced here. These provisions are 30 CFR Chapter VII, Subchapter 
P--Protection of Employees; Part 706--Restrictions on Financial 
Interests of Federal Employees; Part 769--Petition Process for 
Designation of Federal Lands Unsuitable for Surface Coal Mining; 
Subchapter D--Federal Lands Program, Part 955--Certification of 
Blasters in Federal Program States and on Indian lands.
    On October 6, 1982, OSM published in the Federal Register a 
proposed Federal program to regulate coal exploration and surface coal 
mining and reclamation operations on non-Federal and non-Indian lands 
in Arizona (47 FR 44194). During the public comment period, OSM was 
informed by Arizona officials that all known coal reserves in Arizona 
are located on Indian lands. Based on this information, OSM determined 
at that time that a Federal program for Arizona for non-Federal and 
non-Indian lands was not necessary. Therefore, by notice published in 
the Federal Register on January 4, 1983, OSM withdrew its proposal for 
a Federal program (48 FR 273).
    In November 1993, OSM received a permit application for a surface 
coal mining operation in New Mexico, including portions extending into 
Arizona which may constitute activities subject to regulation under 
SMCRA. Accordingly, OSM determined that a regulatory program in Arizona 
is needed to regulate any coal exploration and/or surface coal mining 
and reclamation operations on non-Federal and non-Indian lands in 
Arizona that may occur in the future.
    The State of Arizona has elected not to pursue primacy under a 
State program at this time. OSM published a proposed Arizona Federal 
program in the Federal Register on August 10, 1994 (59 FR 41208). The 
notice announced a 60 day comment period ending on October 11, 1994. In 
addition, OSM published a newspaper notice in The Apache County 
Observer, St. Johns, Arizona, located in the vicinity of the proposed 
mining-related activities in Arizona and provided a 30 day comment 
period. Consequently, pursuant to section 504(a) of SMCRA, OSM is now 
promulgating a Federal program for Arizona to regulate coal exploration 
and surface coal mining and reclamation operations on non-Federal and 
non-Indian lands.

II. Discussion of Final Rule

    As mentioned above, when promulgating a Federal program for a 
State, the Secretary is required by Section 504(a) of SMCRA to take 
into consideration the nature of the terrain, climate, biological, 
chemical, and other relevant physical conditions of that State. OSM has 
reviewed the Arizona laws and regulations to determine whether they 
suggest that special provisions may be necessary or appropriate based 
on special terrain or other physical conditions in the State.

Review of State Law

    OSM has reviewed Arizona State statutes to determine which ones 
provide regulatory requirements for coal exploration and surface coal 
mining and reclamation operations as defined by SMCRA, and to identify 
provisions that might be either more stringent than or inconsistent 
with the requirements of SMCRA.
    The more stringent requirements, whether State or Federal, are 
adopted for this program by listing in this final rule, the Arizona 
State statutes that set different controls and for which compliance is 
required in the surface coal mining and reclamation operation. Although 
OSM has made a comprehensive search of Arizona law, the list in final 
Sec. 903.700(c) may not be complete. OSM does not intend an omission to 
mean that a permit applicant or a permittee does not have to meet those 
obligations under State law. To the contrary, any relevant State law 
not superseded by these rules must be complied with by permit 
applicants and permittees.
    Determining whether the State statutes are more stringent than the 
Federal regulations was done on a case-by-case basis. Citation in the 
Federal program of State statutes with which compliance is required is 
not meant as an adoption of those State statutes and regulations for 
purposes of enforcement by OSM. Citation of such statutes is intended 
as an aid to persons who must comply with both the Federal program 
requirements and State statutes.
    In accordance with 30 CFR Part 736, OSM identifies and lists at 
final section 903.700(c) of the Federal program for Arizona the 
following Arizona statutes which, in certain circumstances, impose 
stricter environmental controls than are provided for under SMCRA or 
the Federal regulations. These more stringent Arizona statutes are 
described and summarized as follows:
    (1) The Arizona Department of Agriculture has authority to abate 
public nuisances including noxious weed seeds. Arizona Revised Statutes 
(A.R.S.) Sections 3-231 to 3-242. Violation of this statute is a 
misdemeanor.
    (2) It is unlawful to injure any bird or harass any bird upon its 
nest to remove the nests or eggs of any bird without prior 
authorization of the Arizona Game and Fish Commission. A.R.S. Section 
17-236.
    (3) A bridge, dam, dike, or causeway may not be constructed over or 
in a navigable river or other navigable water without the authorization 
of the Governor. A.R.S. Section 18-301.
    (4) The Department of Mineral Resources has jurisdiction over the 
mining of minerals, and oil and gas under Title 27 of the Arizona 
Revised Statutes. One of the functions of that Department is the 
prevention and elimination of hazardous dust conditions. A.R.S. Section 
27-128. Violation of orders of state mine inspectors respecting dust 
prevention and control is a misdemeanor.
    (5) Roads leading into waste dump areas and tailing areas from 
inhabited or public areas are required to be blocked off and warning 
signs posted on the perimeter of such areas. A.R.S. Section 27-
317. [[Page 18712]] 
    (6) The primary responsibility for the control and abatement of air 
pollution rests with the Arizona Department of Environmental Quality 
and its Hearing Board. The Department is responsible for the 
establishment and enforcement of air pollution emission standards and 
ambient air quality standards as a part of a comprehensive air quality 
plan for Arizona. A.R.S. Title 49.
    (7) The Arizona Department of Water Resources has jurisdiction over 
State water, including ``surface waters.'' ``Surface waters'' means 
``the waters of all sources, flowing in streams, canyons, ravines or 
other natural channels, or in definite underground channels, whether 
perennial or intermittent, flood, waste or surplus water, and of lakes, 
ponds, and springs on the surface. For the purposes of administering 
this title, surface water is deemed to include Central Arizona Project 
water.'' A.R.S. Section 45-101. It is a misdemeanor to knowingly use 
the water of another, or divert water from a stream, waste water or 
obstruct water flowing into a water work. A.R.S. Section 45-112. 
Possession of water lawfully denied to the possessor is prima facie 
evidence of one's guilt. A.R.S. Section 45-112. If water is to be used 
for mining purposes, the water rights may be severed from the land 
rights and transferred separately. The separation and transference of 
water rights are subject to numerous limitations, A.R.S. Section 45-
172.
    (8) Dams are defined as ``any artificial barrier, including 
appurtenant works for the impounding or diversion of water except those 
barriers for the purpose of controlling liquid borne material, twenty-
five feet or more in height or the storage capacity of which will be 
more than fifty acre feet, but does not include any such barrier which 
is or will be less than six feet in height, regardless of storage 
capacity, or which has or will have a storage capacity not in excess of 
fifteen acre feet, regardless of height.'' A.R.S. Section 45-701. The 
construction, operation, repair or alteration of any dam without the 
prior approval of the Director of Water Resources is a misdemeanor. 
A.R.S. Section 45-702 to Section 45-716.
    In the proposed rule, OSM identified at Sec. 903.700(f), the 
Arizona Open Pits Mining Statute, A.R.S. Section 27-421 to Section 27-
425, and the Arizona Administrative Code Rules 11-1-1301 through 11-1-
1315, as generally interfering with the achievement of the purposes and 
requirements of the Act and proposed that they be preempted and 
superseded to the extent they interfered with the regulation of coal 
exploration or surface coal mining and reclamation operations subject 
to regulation under SMCRA in accordance with Sec. 504(g) of the Act. 
However, in response to a reviewer's comment OSM, reexamined the above 
statute and regulations, and has now concluded that they do not appear 
to conflict with or interfere with the application of SMCRA under the 
Federal program for Arizona. Therefore, in this final rule OSM is not 
preempting any State laws or regulations, at this time. Final 
Sec. 903.700(d) provides that, if, in the future, a problem arises in 
the application of the Federal program for Arizona due to the 
applicability of these or other State laws and regulations, including 
any that OSM may not have evaluated due to an omission, OSM will 
consider whether such laws or regulations interfere with the 
implementation of SMCRA, and if necessary will preempt and supersede 
them using the procedures of 30 CFR 730.11(a).

Content and Organization of the Federal Program

    The content and organization of the Federal program for Arizona 
generally follows the permanent program regulations. However, as 
discussed above, instead of the full text appearing, each section 
includes only a reference to the pertinent permanent program regulation 
section. A separate paragraph is added under each section where there 
are deviations from the Federal permanent program regulations for the 
Arizona Federal program. These paragraphs will generally be found in a 
subsection (b).
    The content and organization of the Arizona Federal program is 
based on the following provisions of the Federal permanent program 
regulations, 30 CFR Chapter VII:

Subchapter A--General
Subchapter F--Areas Unsuitable for Mining
Subchapter G--Surface Coal Mining and Reclamation Operations Permits 
and Coal Exploration Systems under Regulatory Programs
Subchapter H--Small Operator Assistance
Subchapter J--Bond and Insurance Requirements for Bonding of Surface 
Coal Mining and Reclamation Operations
Subchapter K--Permanent Program Performance Standards
Subchapter L--Permanent Program Inspection and Enforcement Procedures
Part 955--Certification Program for Blasters

    Technical literature cited by OSM in the preamables to the 
permanent regulatory program (44 FR 14901-15309, March 13, 1979) and in 
succeeding rulemaking notices, was relied upon in developing the 
Arizona Federal program. The reader is referred to those preambles for 
a discussion of the bases and purposes of the permanent program rules 
referenced in the Arizona program without substantive change.
    The numbering system of the permanent program regulations has been 
incorporated into the numbering system for the Arizona Federal program. 
Subchapter T of 30 CFR Chapter VII has been established to include 
regulatory programs by State in alphabetical order, and each State has 
been assigned a part number. As previously indicated, the regulatory 
program for Arizona is assigned Part 903. Program elements have been 
categorized under headings similar to the subchapter titles of the 
permanent program in 30 CFR Chapter VII.

Detailed Discussion of the Arizona Program

General
    In this final rule, minor technical and editorial changes were made 
to the proposed rule for clarity and conciseness, including deleting 
redundant working, and in some places rearranging paragraphs of text in 
a more logical order.
    Final Secs. 903.700 (a) and (b) contain general statements on the 
scope and applicability of the program. Final Sec. 903.700(c), which 
was proposed as Sec. 903.700(e), lists Arizona State laws that include 
provisions regulating certain aspects of surface coal mining operations 
and that, in some instances, are more stringent than SMCRA and the 
Secretary's regulations.
    Proposed Sec. 903.700(f) identified certain State laws and 
regulations that would be preempted and superseded in the Arizona 
Federal program. However, as explained above under Review of State Law, 
OSM has determined, in response to a reviewer's comment, that 
preemption of State laws or regulations is not required at this time. 
In this final rule, Sec. 903.700(d), which replaces proposed 
Sec. 903.700(f), provides a procedure for the preemption of Arizona 
State laws and regulations that interfere with achievement of the 
purpose of SMCRA and Federal regulations if such laws and regulations 
would be identified at a future date.
    Final Secs. 903.701 through 903.707 establish the same provisions, 
where applicable, as 30 CFR Chapter VII, subchapter A, General. Final 
Sec. 903.701(a) contains all applicable [[Page 18713]] general 
requirements, including the definitions in 30 CFR 700.5 and 701.5. 
Subsection (b) of Sec. 903.701 states that, beginning on the effective 
date of this program and continuing until an operation has a permanent 
program permit issued by OSM, compliance with the interim program 
standards in 30 CFR Chapter VII, Subchapter B is required. Section 
502(c) of SMCRA provides that all surface coal mining operations on 
lands on which such operations are regulated by a State shall comply 
with the interim program standards until a permanent program permit is 
issued.
    Final paragraph (c) of Sec. 903.701 provides that records required 
by 30 CFR 700.14 to be made available locally to the public shall be 
retained at the county recorder's office of the county in which an 
operation is located, and at the OSM Albuquerque Field Office. The 
provision in the final rule to maintain records at the county 
recorder's office was added to the proposed provision to maintain 
records only at the OSM Albuquerque Field Office, to make access easier 
to the general public.
    Section 903.702 establishes the same requirements as Part 702, 
Exemption for Coal Extraction Incidental to the Extraction of Other 
Minerals. Section 903.707 establishes the same requirements as Part 
707, Exemption for Coal Extraction Incident to Government-Financed 
Highway or Other Construction.
Permit Fees
    Final Sec. 903.736, Permit fees, establishes the same provisions as 
30 CFR 736.25.
Areas Designated Unsuitable for Mining
    Sections 903.761 through 903.764 establish the same provisions, 
where applicable, as 30 CFR Chapter VII, Subchapter F, Areas Unsuitable 
for Mining. However, 30 CFR 736.15(b)(1) provides that the procedures 
and criteria for designating lands unsuitable shall be implemented one 
year after a Federal program is made effective for a State. Therefore, 
Sec. 903.764 provides that Part 764 shall apply beginning one year 
after the effective date of the Arizona program. No separate section 
for Federal lands is included because 30 CFR Part 769 is directly 
applicable and need not be made a part of a Federal program for a 
State.
Permits and Coal Exploration Approvals
    Sections 903.772 through 903.785 establish the same provisions, 
where applicable, as 30 CFR Chapter VII, Subchapter G, Surface Coal 
Mining and Reclamation Operations Permits and Coal Exploration Systems 
Under Regulatory Programs. The following amplifications are added:
    For exploration applications where 30 CFR 772.12 applies, 
Sec. 903.772(b) requires that, upon receipt of notification from the 
regulatory authority of the submission of an administratively complete 
application for an exploration permit, the applicant shall publish one 
public notice of the filing in a newspaper of general circulation in 
the county of the proposed exploration area; and provide proof of this 
publication to the regulatory authority within one week after the 
newspaper notice is published.
    Section 903.772(c) allows 30 days after publication of the public 
notice for persons adversely affected to file written comments. Section 
903.772(d) requires the regulatory authority to act upon a complete 
exploration application and any written comments within 15 days from 
the close of the comment period unless additional time is necessary due 
to the number or complexity of the issues.
    In Sec. 903.773, Requirements for permits and permit processing, 
subsection (b), lists Federal laws and corresponding or relevant State 
laws for which OSM must provide coordination to prevent or minimize 
duplication of effort with Arizona. Although the proposed rule included 
The Coastal Zone Management Act in this list, this Federal law does not 
appear to be relevant in Arizona. Therefore, it has been omitted in 
final Sec. 903.773(b).
    Section 903.773(c), as finalized contains the stipulation that no 
person may conduct coal exploration or surface coal mining and 
reclamation operations without first obtaining all other necessary 
permits from the State. This section lists State laws with which the 
Secretary will endeavor to coordinate when issuing a permit under this 
Federal program. For clarity and conciseness, the listing of these 
State laws in final Sec. 903.773(c) has been rearranged to group them 
together into related categories, as described below:
    (1) Arizona towns and cities are given long-range development and 
planning responsibility for their jurisdictions. They are authorized to 
issue zoning ordinances and regulate the industrial use of municipal 
land and establish special zoning districts (A.R.S. Section 9-461 to 
Section 9-462.01). Arizona counties have general permitting authority, 
and violation of a county building permit is a petty offense. A.R.S. 
11-322 et seq. Each County's Board of Supervisors has responsibility 
for promulgating and enforcing the zoning ordinances for the county, 
and it is unlawful to use land in violation of a zoning regulation, 
ordinance or permit. Violation of such regulation, ordinance or permit 
is a misdemeanor. A.R.S. Section 11-808, Section 11-803, and A.R.S. 
Section 11-821.
    (2) The Arizona law concerning the perfection of mining claims and 
the establishment of claims to mineral rights is found at A.R.S. 
Section 27-201 to 27-210. Notice of such a claim must be recorded 
within 90 days in the appropriate office of the County having 
jurisdiction over the recording of land claims. A.R.S. Section 27-203.
    (3) A mineral exploration permit is required before prospecting is 
allowed on public land. A.R.S. Section 27-251 to Section 27-256.
    (4) A permit from the Department of Health Services is required for 
the discharge of solid wastes and air pollutants. A.R.S. Title 49.
    (5) An installation permit is required before any pollution-causing 
equipment may be installed. Before the equipment can commence 
operation, an operating permit is required. The permits are not 
automatically transferable. It is a misdemeanor to violate any air 
pollution permit, ordinance or statute, and criminal intent is not an 
element of proof. A.R.S. Title 49.
    (6) The Department of Health Services has the responsibility for 
issuing water pollutant discharge permits. A.R.S. Title 49, Chapter 2.
    (7) It is unlawful to discharge wastes or drainage into State 
waters or reduce water quality below water quality standards or 
discharge pollutants into waters without a permit from the Department 
of Health Services. A.R.S. Title 45.
    (8) The Department of State Lands has the responsibility for 
issuing mineral prospecting permits for State lands. A.R.S. Section 37-
231.
    (9) The waters from all sources belong to the State and are subject 
to appropriation and beneficial use. In order to appropriate water or 
make a beneficial use of water, a permit is required from the Director 
of the Department of Water Resources. The approval of the Director is 
required before such a permit may be transferred. A secondary permit 
from the Director is required before use may be made of reservoir 
waters. A.R.S. Title 45.
    Final Sec. 903.773(d) establishes specific permit application 
review procedures. This is necessary to dispose of flagrantly deficient 
applications early in processing, to provide a procedure for obtaining 
additional information, and to indicate the procedure for 
determinations of completeness. Final Sec. 903.773(e) allows OSM to 
require an [[Page 18714]] applicant to submit supplemental information 
to ensure compliance with applicable Federal laws and regulations other 
than SMCRA and its implementing regulations. Final Sec. 903.773(f) 
establishes, pursuant to 30 CFR 773.15(a)(1), a time period of 60 days 
from the close of the comment period for the regulatory authority to 
issue a written decision unless additional time is necessary due to the 
number or complexity of the issues. The final rule at Sec. 903.773(g) 
establishes a procedure for ensuring confidentiality of qualified 
permit application information. Such information must be labeled 
confidential and submitted separately to be reviewed by OSM for 
withholding from disclosure. In addition, Sec. 903.773(g)(1) requires 
the public notice required by Sec. 903.773(d)(3) to identify the type 
of information considered to be confidential. Finally, 
Sec. 903.773(g)(2) requires OSM to rule on the confidentiality of 
labeled application information within ten days of the last publication 
of the notice required under Sec. 903.773(d)(3).
    Proposed Sec. 903.774(b) was described as providing that a permit 
revision shall be considered significant if it may have the potential 
to adversely impact the potential for the achievement of reclamation 
and the post-mining land use. However, this provision was included 
under proposed Sec. 903.774(d). Final Sec. 903.774(c) incorporates 
proposed Sec. 903.774(d). In addition, final Sec. 903.774(c) provides 
that OSM's Western Support Center shall consider the following factors 
as well as other relevent factors in determining the significance of a 
proposed revision: (1) Changes in production or recoverability of the 
coal resource; (2) the environmental effects; (3) the public interest 
in the operation, or likely interest in the proposed revision; and (4) 
possible adverse impacts from the proposed revision on fish or 
wildlife, endangered species, bald or golden eagles, or cultural 
resources. Final Sec. 903.774(c) also provides that a significant 
revision requires public notice and is subject to a formal hearing if 
one is requested.
    The remaining subparagraphs of proposed Sec. 903.774 have been 
redesignated as follows. Proposed Sec. 903.774(d) has been incorporated 
into final Sec. 903.774(c), as discussed above. Proposed 
Sec. 903.774(e), which has been redesignated as final Sec. 903.774(d), 
provides that OSM approve or disapprove non-significant permit 
revisions within a reasonable amount of time. Final Sec. 903.774(e), 
which was proposed as Sec. 903.774(f), allows 30 days for any person 
having an interest that is or may be adversely affected by a decision 
on the transfer, assignment, or sale of permit rights to submit written 
comments after publication of the notice required by 30 CFR 
774.17(b)(2). Final Sec. 903.774(f), which was proposed as 
Sec. 903.774(g), allows interested persons and public entities 30 days 
from the last publication of the notice to submit written comments on 
or objections to an application for significant revision or permit 
renewal.
    The permanent program regulations at 30 CFR 779.19(a) give the 
regulatory authority discretion to require a map that delineates 
vegetation types in the proposed permit area. The final rule at 
Sec. 903.779(b) requires the applicant for a surface mining permit to 
submit such a map. Similarly, the rule at Sec. 903.783(b) requires a 
vegetation map for underground mining permits.
Small Operator Assistance
    Section 903.795 establishes the same standards for the small 
operator assistance program (SOAP) as are found in Part 795 of the 
permanent program rules. OSM expects during its administration of the 
SOAP in Arizona that Federal funds will be sufficient to provide for 
authorized services, and it does not expect to exercise its option at 
30 CFR 795.11(b). That option allows OSM to establish a formula for 
allocating limited funds to provide the service pursuant to Part 795. 
OSM will award SOAP contracts to qualified laboratories utilizing a 
streamlined procurement system that complies with the Federal 
Acquisition Regulations. Prior to issuing a Request for Proposals, OSM 
will announce its intention through publication in the Commerce 
Business Daily or other appropriate publication. OSM will qualify labs 
as part of its contracting process.
Bonding
    Section 903.800 establishes the same provisions, where applicable, 
as 30 CFR Chapter VII, Subchapter J, Bond and Insurance Requirements 
for Surface Coal Mining and Reclamation Operations. The final rule at 
Sec. 903.800(b) requires the operator to file an application for 
release of performance bond no later than 30 days prior to the end of 
the growing season.
Performance Standards
    Sections 903.815 through 903.828 establish the same provisions, 
where applicable, as 30 CFR Chapter VII, Subchapter K, except for the 
following changes:
    As proposed, Secs. 903.816(b) and 903.817(b) identified 
revegetation success standards as those at 30 CFR 816.116(a)(2) and 
817.116(a)(2), whereas the actual standards are found at 30 CFR 816.116 
(a)(2) and (b) and 817.116 (a)(2) and (b). Therefore, a minor technical 
correction has been made in this final rule to cross reference the 
appropriate success standards intended to be cited.
    Final Sec. 903.816(b) requires: (1) That the standards for 
revegetation success for surface mining activities shall be those 
specified at 30 CFR 816.116 (a)(2) and (b); and (2) that statistically 
valid sampling techniques for measuring success shall be included in 
the mining and reclamation plan.
    Final Sec. 903.817(b) requires: (1) That the standards for 
revegetation success for underground mining activities shall be those 
specified in 30 CFR 816.117 (a)(2) and (b); and (2) that statistically 
valid sampling techniques for measuring success shall be included in 
the mining and reclamation plan.
Inspection and Enforcement Procedures
    Sections 903.842, 903.843, 903.845, and 903.846 establish the same 
provisions as 30 CFR Chapter VII, Subchapter L, Permanent Program 
Inspection and Enforcement Procedures. The final rules at 
Secs. 903.842(b) and 903.843(b) require OSM to furnish to a designated 
Arizona State agency with jurisdiction over mining, on request, copies 
of inspection reports and enforcement actions, respectively.
Blaster Training and Certification
    Section 903.955 cross-references 30 CFR Part 955 of the permanent 
program regulations.

III. Response to Public Comments

    OSM published a proposed Arizona Federal program in the Federal 
Register on August 10, 1994 (59 FR 41208). The notice announced a 60 
day comment period ending on October 11, 1994. A public hearing was 
scheduled for September 26, 1994, in Phoenix, Arizona, but it was not 
held because no one requested to testify at the hearing. On February 2, 
1995, OSM also published a newspaper notice in The Apache County 
Observer, St. Johns, Arizona, in the vicinity of the proposed coal 
mining-related activities in Arizona. This notice stated that OSM would 
receive comments on the proposed Arizona Federal program until March 6, 
1995 and will include them in the Administrative record for this 
rulemaking, which was reopened for that purpose. The newspaper notice 
also offered to hold a public hearing during the comment period, but it 
was not held because no one requested to testify at the 
hearing. [[Page 18715]] 
    OSM received comments from two commenters on the proposed Arizona 
Federal program rule during the comment period of the Federal Register 
notice. No comments were received from the publication of the newspaper 
notice.
    One commenter stated that the preamble to the proposed rules does 
not adequately explain why OSM reinitiated the process for adopting a 
Federal program for Arizona and that a more complete discussion of that 
background should be included in the preamble to minimize the potential 
for misinterpretation of the intent and effect of a Federal program for 
Arizona, especially with respect to transportation of coal.
    OSM reproposed a Federal program for Arizona to enable OSM to 
regulate surface coal mining operations that could occur in Arizona in 
the future either through mining operations or through other associated 
activities resulting from or incident to a surface coal mining 
operation, including coal transportation systems. When OSM became aware 
of a proposed surface coal mining operation in New Mexico that would 
include transportation facilities extending into Arizona, OSM 
determined that a Federal program should be in place in the event that 
these activities are subject to regulation under SMCRA.
    The same commenter stated that OSM should make clear that it has 
not purported to determine that the proposed railroad in Arizona would 
constitute a ``surface coal mining operation'' subject to SMCRA. The 
commenter indicated that the railroad in question has been included in 
the permit application for the proposed mining operation to avoid undue 
delay while awaiting a final decision regarding the applicability of 
SMCRA. The commenter expressed its opinion that the railroad in 
question is not subject to SMCRA; however, it supports and urges 
adoption of the Arizona Federal program to avoid delays in connection 
with the permit process for the proposed mining operation with the 
contingency that the program should either automatically terminate or 
be reconsidered upon the conclusion of Interior Board of Land Appeals 
Case (IBLA) No. 94-366 and OSM's national rulemaking on railroads. The 
commenter further stated that OSM should make clear that it does not 
intend to apply the Arizona program to any other railroad or other 
facilities at this time; and that OSM should provide that the Federal 
program and any permit for the Arizona segment of the proposed railroad 
will automatically terminate or be reconsidered when the pending 
proceedings regarding regulation of railroads have been concluded.
    Some railroads are subject to regulation under SMCRA as support 
facilities resulting from or incident to surface coal mining 
activities. Currently, this determination is made on a case-by-case 
basis by the regulatory authority through the permitting process. The 
determination is based on an evaluation of factors such as function, 
proximity, and economic dependence of the facility on a surface coal 
mine. OSM is currently reviewing the adequacy of its regulations and 
policies concerning the regulation of railroads as support facilities 
under SMCRA and may undertake national rulemaking at some time in the 
future to clarify the applicability of OSM's regulations to railroads.
    There are also cases pending before the Interior Board of Land 
Appeals that, when decided, will bear upon this issue. However, OSM 
believes that it is important to separate the issue of the regulation 
of specific railroads on a case-by-case basis from the issue of 
establishing a Federal program for Arizona to regulate any such 
activities that are determined to be surface coal mining operations. 
OSM believes that the establishment of a Federal program is not 
contingent upon whether any particular activity should or should not be 
subject to regulation under SMCRA. A decision whether to regulate the 
proposed railroad under the Arizona program will be made separately 
from the decision to adopt a Federal program and, if necessary, will be 
subject to separate administrative and judicial review proceedings. The 
question of which railroads are subject to regulation under SMCRA is a 
separate issue and is beyond the scope of this rulemaking.
    OSM agrees that any permit for railroad facilities under a Federal 
program for Arizona may be considered for revision or termination based 
on regulatory or policy changes. OSM will evaluate the effect of 
regulatory or policy changes on other existing or proposed support 
facilities at the time that such changes may occur. With respect to 
termination of the Federal program for Arizona, Federal programs may be 
terminated under 30 CFR Sec. 736.16 provided that a State program has 
been approved under 30 CFR Part 732. Terminations could possibly also 
be accomplished if OSM determines that such a program is not needed.
    The commenter stated that OSM should expressly acknowledge that its 
action is in no way intended to affect, much less preempt, IBLA Case 
No. 94-366 or the national rulemaking proceeding regarding railroads. 
OSM agrees with the commenter. OSM is establishing a Federal program in 
Arizona to allow for regulation of any surface coal mining operations 
that may occur independently of and without any intent to affect or 
preempt any pending proceedings on railroad regulatory issues or on any 
rulemaking proceeding regarding railroads.
    Another commenter provided the following comments which consist of 
corrections to State statutes and regulations referenced in the 
proposed Arizona Federal program rule:
    Reference to the Arizona Department of Agriculture and Horticulture 
should be changed to read: ``Arizona Department of Agriculture;'' 
Reference to the Arizona Department of Health Services should be 
changed to read: ``Arizona Department of Environmental Quality;'' Under 
item (3) in the table included in Sec. 903.773(b), add the following 
State law equivalent to the Resource Conservation and Recovery Act: 
``A.R.S. Title 49, Secs, 921-932.''
    These suggested corrections/additions have been added to this final 
rule.
    This commenter also questioned whether, under Sec. 903.700(f), all 
cited sections of the Arizona open Pits mining statute (A.R.S. Sections 
27-421 to 27-425) are truly less stringent than SMCRA, as indicated in 
the proposed rule. As mentioned earlier, OSM has reevaluated the cited 
sections of the subject Act and finds that such preemption is not 
required at this time.

IV. Procedural Matters

Federal Paperwork Reduction Act

    This rule does not contain collections of information which require 
approval by the Office of Management and Budget under 44 U.S.C. 3501 et 
seq.

Executive Order 12866

    This rule has been reviewed under Executive Order 12866.

Regulatory Flexibility Act

    The Department of the Interior has determined pursuant to the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that this rule will 
not have a significant economic impact on a substantial number of small 
entities because no small entities are expected to apply for permits 
under the Arizona Federal Program and the total number of permits 
applied for under the program is expected to be very small.

National Environmental Policy Act

    Section 702(d) of SMCRA provides that promulgation of a Federal 
program shall not constitute a major Federal action under the National 
[[Page 18716]] Environmental Policy Act, 42 U.S.C. 433. Thus, no 
environmental assessment or environmental impact statement is required 
for this rulemaking.

Executive Order 12778 (Civil Justice Reform)

    This rule has been reviewed under the applicable standards of 
section 2(b)(2) of Executive Order 12778, ``Civil Justice Reform'' (56 
FR 55195). In general, the requirements of section 2(b)(2) are covered 
by the preamble discussion of this rule. Individual elements of the 
order are addressed below:
    A. What would be the preemptive effect, if any, to be given to the 
regulation?
    As provided for under SMCRA, the regulatory program has a 
preemptive effect with respect to State laws and regulations less 
stringent than SMCRA (see above under Discussion of Final Rule).
    B. What would be the effect of the regulation on existing Federal 
law or regulation, if any, including all provisions repealed or 
modified?
    The regulations being adopted implement SMCRA in the State of 
Arizona, described herein, and are not intended to modify the 
implementation of any other Federal statute. The preceding discussion 
of this rule specifies the Federal regulatory provisions that are 
affected by this rule.
    C. Would the regulation provide a clear and certain legal standard 
for affected conduct rather than a general standard, while promoting 
simplification and burden reduction?
    The standards established by this rule are as clear and certain as 
practicable, given the complexity of the topics covered and the 
mandates of SMCRA.
    D. What would be the retroactive effect, if any, to be given to the 
regulations?
    There would be no retroactive effect to the final regulation.
    E. Are administrative proceedings required before parties may file 
suit in court? Which proceedings apply? Is the exhaustion of 
administrative remedies required?
    No administrative proceedings are required before parties may file 
suit in court challenging the provisions of this rule. Prior to any 
judicial challenge to the application of the rule, however, 
administrative procedures must be exhausted. Applicable administrative 
procedures may be found at 43 CFR Part 4.
    F. Would the proposed action define key terms, either explicitly or 
by reference to other regulations or statutes that explicitly define 
those items?
    Terms which are important to the understanding of this rule are set 
forth at 30 CFR 700.5, 701.5, and 740.5.
    G. Would the regulation address other important issues affecting 
clarity and general draftsmanship of regulations set forth by the 
Attorney General, with the concurrence of the Director of the Office of 
Management and Budget, that are determined to be in accordance with the 
purposes of the Executive Order?
    The Attorney General and the Director of the Office of Management 
and Budget have not issued any guidance on this requirement.

Author

    The principal authors of these final regulations are James B. 
Smith, Regulatory Programs Branch, Albuquerque Field Office, 500 
Marquette Ave. NW, Suite 1200, Albuquerque, NM 87110; and Fred Block, 
Branch of Federal and Indian Programs, Division of Regulatory Programs, 
Office of Surface Mining Reclamation and Enforcement, 1951 Constitution 
Avenue NW, Washington, DC 20240.

List of Subjects in 30 CFR Part 903

    Coal mining, Intergovernmental relations, Surface mining, 
Underground mining, Reporting and recordkeeping requirements.

    Dated: April 4, 1995.
Bob Armstrong,
Assistant Secretary--Land and Minerals Management.

    Accordingly, OSM is amending 30 CFR Chapter VII, Subchapter T as 
set forth below:
    1. Part 903 is added to read as follows:

PART 903--ARIZONA

Sec.
903.700  Arizona Federal Program.
903.701  General.
903.702  Exemption for coal extraction incidental to the extraction 
of other minerals.
903.707  Exemption for coal extraction incident to government-
financed highway or other construction.
903.736  Permit fees.
903.761  Areas designated unsuitable for surface coal mining by act 
of Congress.
903.762  Criteria for designating areas as unsuitable for surface 
coal mining operations.
903.764  Process for designating areas unsuitable for surface coal 
mining operations.
903.772  Requirements for coal exploration.
903.773  Requirements for permits and permit processing.
903.774  Revision; renewal; and transfer, assignment, or sale of 
permit rights.
903.775  Administrative and judicial review of decisions.
903.777  General content requirements for permit applications.
903.778  Permit applications--Minimum requirements for legal, 
financial, compliance, and related information.
903.779  Surface mining permit applications--Minimum requirements 
for information on environmental resources.
903.780  Surface mining permit applications--Minimum requirements 
for reclamation and operation plan.
903.783  Underground mining permit applications--Minimum 
requirements for information on environmental resources.
903.784  Underground mining permit applications--Minimum 
requirements for reclamation and operation plan.
903.785  Requirements for permits for special categories of mining.
903.795  Small operator assistance program.
903.800  Bond and insurance requirements for surface coal mining and 
reclamation operations under regulatory programs.
903.815  Performance standards--Coal exploration.
903.816  Performance standards--Surface mining activities.
903.817  Performance standards--Underground mining activities.
903.819  Special performance standards--Auger mining.
903.822  Special performance standards--Operations in alluvial 
valley floors.
903.823  Special performance standards--Operations on prime 
farmland.
903.824  Special performance standards--Mountaintop removal.
903.827  Special performance standards--Coal preparation plants not 
located within the permit area of a mine.
903.828  Special performance standards--In situ processing.
903.842  Federal inspections.
903.843  Federal enforcement.
903.845  Civil penalties.
903.846  Individual civil penalties.
903.955  Certification of blasters.

    Authority: 30 U.S.C. 1201 et seq.


Sec. 903.700  Arizona Federal Program.

    (a) This part establishes a Federal program under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA) and applies to all 
coal exploration and surface coal mining and reclamation operations in 
Arizona conducted on non-Federal and non-Indian lands. To the extent 
required by 30 CFR Part 740, this part also applies to surface coal 
mining and reclamation operations on Federal lands in Arizona.
    (b) Some rules in this part cross-reference pertinent parts of the 
permanent program rules in this chapter. The full text of a cross-
referenced rule is in the permanent program rule cited under the 
relevant section of the Arizona Federal program.
    (c) The following provisions of Arizona law generally provide for 
more stringent environmental control and regulation of some aspects of 
surface [[Page 18717]] coal mining and reclamation operations than do 
the provisions of the Surface Mining Control and Reclamation Act of 
1977, and the regulations in this chapter. Therefore, pursuant to 
section 505(b) of the Act, OSM will not generally construe such laws to 
be inconsistent with the Act, unless in a particular instance OSM 
determines that the rules in this chapter establish more stringent 
environmental or land use controls:
    (1) The Arizona Department of Agriculture has authority to abate 
public nuisances, including noxious weeds and noxious weed seeds, under 
A.R.S. Section 3-231 to 3-242. Violation of this statute is a 
misdemeanor.
    (2) It is unlawful to injure any bird or harass any bird upon its 
nest or remove the nests or eggs of any bird without prior 
authorization of the Arizona Game and Fish Commission. A.R.S. Section 
17-236.
    (3) A bridge, dam, dike or causeway may not be constructed over or 
in a navigable river or other navigable water without the authorization 
of the Governor. A.R.S. Section 18-301.
    (4) The Department of Mineral Resources has jurisdiction over the 
mining of minerals, and oil and gas under Title 27 of the Arizona 
Revised Statutes. One of the functions of that Department is the 
prevention and elimination of hazardous dust conditions. A.R.S. Section 
27-128. Violation of orders of State mine inspectors respecting dust 
prevention and control is a misdemeanor.
    (5) Roads leading into waste dump areas and tailing areas from 
inhabited or public areas are required to be blocked off and warning 
signs posted on the perimeter of such areas. A.R.S. Section 27-317.
    (6) The primary responsibility for the control and abatement of air 
pollution rests with the Arizona Department of Environmental Quality 
and its Hearing Board. The Department is responsible for the 
establishment and enforcement of air pollution emission standards and 
ambient air quality standards as a part of a comprehensive air quality 
plan for Arizona. A.R.S. Title 49.
    (7) The Arizona Department of Water Resources has jurisdiction over 
State water, including ``surface waters.'' ``Surface waters'' means 
``the waters of all sources, flowing in streams, canyons, ravines or 
other natural channels, or in definite underground channels, whether 
perennial or intermittent, flood, waste or surplus water, and of lakes, 
ponds and springs on the surface. For the purposes of administering 
this title, surface water is deemed to include Central Arizona Project 
Water.'' A.R.S. Section 45-101. It is a misdemeanor to knowingly use 
the water of another, or divert water from a stream, waste water or 
obstruct water flowing into a water work. A.R.S. Section 45-112. 
Possession of water lawfully denied to the possessor is prima facie 
evidence of one's guilt. A.R.S. Section 45-112. If water is to be used 
for mining purposes the water rights may be severed from the land 
rights and transferred separately. The separation and transference of 
water rights is subject to numerous limitations, under A.R.S. Section 
45-172.
    (8) Dams are defined as ``any artificial barrier, including 
appurtenant works for the impounding or diversion of water except those 
barriers for the purpose of controlling liquid borne material, twenty-
five feet or more in height or the storage capacity of which will be 
more than fifty acre feet, but does not include any such barrier which 
is or will be less than six feet in height, regardless of storage 
capacity, or which has or will have a storage capacity not in excess of 
fifteen acre feet, regardless of height.'' A.R.S. Section 45-701. The 
construction, operation, repair or alteration of any dam without the 
prior approval of the Director of Water Resources is a misdemeanor. 
A.R.S. Section 45-702 to Section 45-716.
    (d) Any Arizona law or regulation which may be found to interfere 
with the purposes and achievements of the Act, shall be preempted and 
superseded to the extent that the State law or regulation is 
inconsistent with, or precludes implementation of, requirements of the 
Act or this chapter under the Federal program for Arizona. The Director 
shall publish a notice to that effect in the Federal Register following 
the procedures set forth in Sec. 730.11(a) of this chapter.
    (e) The information collection requirements contained in this part 
have been approved by the Office of Management and Budget under 44 
U.S.C. 3501 in its approval of the information collection requirements 
contained in the permanent regulatory program.


Sec. 903.701  General.

    (a) Sections 700.5, 700.11, 700.12, 700.13, 700.14, 700.15 and Part 
701 of this chapter apply to coal exploration and surface coal mining 
and reclamation operations in Arizona.
    (b) Beginning on May 12, 1995, each surface coal mining and 
reclamation operation in Arizona must comply with Subchapter B of this 
chapter until issuance of a permanent program permit under the 
provisions of Subchapter C of this chapter.
    (c) Records required by Sec. 700.14 of this chapter to be made 
available locally to the public shall be made available in the county 
recorder's office of the county in which an operation is located, and 
at the OSM Albuquerque Field Office.


Sec. 903.702  Exemption for coal extraction incidental to the 
extraction of other minerals.

    Part 702 of this chapter, Exemption for Coal Extraction Incidental 
to the Extraction of Other Minerals, applies to any person who conducts 
coal extraction incidental to the extraction of other minerals for 
purposes of commercial use or sale.


Sec. 903.707  Exemption for coal extraction incident to government-
financed highway or other construction.

    Part 707 of this chapter, Exemption for Coal Extraction Incident to 
Government-Financed Highway or Other Construction, applies to surface 
coal mining and reclamation operations.


Sec. 903.736  Permit fees.

    Section 736.25 of this chapter, Permit fees applies to any person 
who makes application for a permit to conduct surface coal mining and 
reclamation operations in Arizona.


Sec. 903.761  Areas designated unsuitable for surface coal mining by 
act of Congress.

    Part 761 of this chapter, Areas Designated by Act of Congress, 
applies to surface coal mining operations.


Sec. 903.762  Criteria for designating areas as unsuitable for surface 
coal mining operations.

    Part 762 of this chapter, Criteria for Designating Areas Unsuitable 
for Surface Coal Mining Operations, applies to surface coal mining 
operations.


Sec. 903.764  Process for designating areas unsuitable for surface coal 
mining operations.

    Part 764 of this chapter, State Processes for Designating Areas 
Unsuitable for Surface Coal Mining Operations, pertaining to petitions, 
initial processing, hearing requirements, decisions, data base and 
inventory systems, public information, and regulatory responsibilities, 
applies to surface coal mining operations beginning June 24, 1996, one 
year after the effective date of this program.


Sec. 903.772  Requirements for coal exploration.

    (a) Part 772 of this chapter, Requirements for Coal Exploration, 
applies to any person who conducts coal exploration. For those 
applications where Sec. 772.12 of this chapter applies, 
[[Page 18718]] the requirements of paragraphs (b) through (d) of this 
section shall apply in place of Sec. 772.12(c) (1) and (3) and 
Sec. 772.12(d)(1) of this chapter.
    (b) The applicant, upon receipt of notification from the regulatory 
authority of the submission of an administratively complete application 
for an exploration permit, must:
    (1) Publish one public notice of the filing in a newspaper of 
general circulation in the county of the proposed exploration area; and
    (2) Provide proof of this publication to the regulatory authority 
within one week of publication.
    (c) Any person having an interest which is or may be adversely 
affected, shall have the right to file written comments within 30 days 
after the notice is published.
    (d) The regulatory authority shall act upon an administratively 
complete application for a coal exploration permit and any written 
comments within 15 days from the close of the comment period unless 
additional time is necessary due to the number or complexity of the 
issues. The regulatory authority may approve a coal exploration permit 
only if based upon a complete and accurate application.


Sec. 903.773  Requirements for permits and permit processing.

    (a) Part 773 of this chapter, Requirements for Permits and Permit 
Processing, applies to any person who applies for a permit for surface 
coal mining and reclamation operations.
    (b) The Secretary will coordinate, to the extent practicable, his/
her responsibilities under the following Federal laws with the relevant 
Arizona laws to avoid duplication:

------------------------------------------------------------------------
            Federal law                           State law             
------------------------------------------------------------------------
(1) Clean Water Act, as amended, 33  A.R.S Title 49, Art. 2, Sec 221-   
 U.S.C. 1251 et seq.                  225; A.R.S Title 49, Art. 3, Sec  
                                      241-251; A.R.S Title 49, Art. 10, 
                                      Sec 361-363; A.R.S Title 49, Art. 
                                      11, Sec 371-381.                  
(2) Clean Air Act, as amended, 42    A.R.S. Title 49.                   
 U.S.C. 7401 et seq.                                                    
(3) Resource Conservation and        A.R.S. Title 49, sections 921-932. 
 Recovery Act, 42 U.S.C. 3251, et                                       
 seq.                                                                   
(4) National Environmental Policy    A.R.S. Title 49, section 104.      
 Act, 42 U.S.C. 4321 et seq.                                            
(5) Archeological and Historic       Arizona Antiquities Act--A.R.S.    
 Preservation Act, 16 U.S.C. 469 et   Title 41 secs. 821, 841-846, 861, 
 seq.                                 862, 865, 1352.                   
(6) National Historic Preservation   A.R.S. Title 13 Secs. 3702, 3702.1;
 Act, 16 U.S.C. 470 et seq.           Title 41 secs. 511, 511.04, 821,  
                                      861, 862, 1352; Title 44 sec. 123.
(7) Section 208 of the Clean Water   A.R.S. Sections 49-101, 201 and    
 Act, as amended, 33 U.S.C. 1251 et   371.                              
 seq.                                                                   
(8) Endangered Species Act, 16       A.R.S. Title 17 Section 231A.2     
 U.S.C. 1531 et seq.                  Arizona Admin. Code Title 18      
                                      Chapter 10, Article 1.            
(9) Fish and Wildlife Coordination                                      
 Act, 16 U.S.C. 661-667.                                                
(10) Noise Control Act, 42 U.S.C.                                       
 4903.                                                                  
(11) Bald Eagle Protection Act, 16   A.R.S. Title 17 Section 235.       
 U.S.C. 668-668(d).                                                     
------------------------------------------------------------------------

    (c) No person may conduct coal exploration operations that result 
in removal of more than 250 tons of coal in one location or surface 
coal mining and reclamation operations:
    (1) Without a permit issued by the Secretary as required under 30 
CFR part 772 or 773; and
    (2) Without permits, leases and/or certificates required by the 
State of Arizona, including, but not limited to the following:
    (i) Municipal planning statutes (A.R.S. Section 9-461 to 9-462.01); 
County planning and zoning statutes (A.R.S. Sections 11-322 et seq., 
11-803, 11-808, 11-821);
    (ii) Statutes governing perfection and recordation of mining claims 
(A.R.S. Section 27-201 to 27-210);
    (iii) Statutes requiring mineral exploration permits (A.R.S. 
Section 27-251 to 27-256);
    (iv) Solid waste and air pollution discharge permits, installation 
and operation permits required for equipment causing air pollution and 
water pollution discharge permits (A.R.S. Title 49);
    (v) Mineral prospecting permits for State lands (A.R.S. Section 37-
231);
    (vi) Permits for discharge into or use of State waters and permits 
for secondary use of reservoir waters (A.R.S. Title 45).
    (d) In addition to the requirements of part 773 of this chapter, 
the following permit application review procedures apply:
    (1) Any person applying for a permit must submit at least five 
copies of the application to OSM's Western Support Center (WSC) in 
Denver, Colorado.
    (2) WSC shall review an application for administrative completeness 
and acceptability for further review, and notify the applicant in 
writing of the findings. WSC may:
    (i) Reject a flagrantly deficient application, notifying the 
applicant of the findings;
    (ii) Request additional information required for completeness, 
stating specifically what information must be supplied; or
    (iii) Determine the application administratively complete and 
acceptable for further review.
    (3) When WSC determines the application to be administratively 
complete, it will notify the applicant. Upon such notification, the 
applicant must publish the public notice required by Sec. 773.13(a)(1) 
of this chapter.
    (4) A representative of WSC may visit the proposed permit area if 
necessary to determine whether the operation and reclamation plans are 
consistent with actual site conditions. WSC will provide the applicant 
advance notice of the time of the visit.
    (5) In determining the completeness of an application, WSC will 
consider whether the information provided in the application is 
adequate for OSM to comply with the National Environmental Policy Act, 
42 U.S.C. 4322. If necessary, WSC may require specific additional 
information from the applicant as any environmental review progresses.
    (e) In addition to the information required by subchapter G of this 
chapter, WSC may require an applicant to submit supplemental 
information to ensure compliance with applicable Federal laws and 
regulations other than the Act and 30 CFR chapter VII.
    (f) In making a decision on an application, the regulatory 
authority shall review any written comments or objections it has 
received and the records of any informal conference or hearing it has 
held on the application. The regulatory authority shall issue a written 
decision in accordance with the timeframes in the following table:

                                                                        
[[Page 18719]]                                                          
------------------------------------------------------------------------
                                                Then a written decision 
       If * * *              And * * *           shall be issued * * *  
------------------------------------------------------------------------
OSM has not prepared   An informal            Within 60 days of the     
 an EIS.                conference has not     close of the comment     
                        been held.             period.                  
OSM has not prepared   An informal            Within 60 days of the     
 an EIS.                conference has been    conclusion of the        
                        held.                  informal conference      
                                               (unless additional time  
                                               is needed because of the 
                                               number or complexity of  
                                               the issues).             
OSM has prepared an    .....................  No earlier than 30 days   
 EIS.                                          after the Environmental  
                                               Protection Agency        
                                               publishes the notice of  
                                               availability of the final
                                               EIS in the Federal       
                                               Register.                
------------------------------------------------------------------------

    (g) OSM will consider withholding information from public 
disclosure under Sec. 773.13(d) of this chapter if the applicant labels 
the information confidential and submits it separately from the rest of 
the application.
    (1) If the applicant submits information identified as 
confidential, the notice required by Sec. 773.13(a)(1) of this chapter 
shall state this and identify the type of information that the 
applicant has submitted.
    (2) OSM shall determine the qualification of any application 
information labeled confidential within 10 days of the last publication 
of the notice required under Sec. 773.13(a)(1) of this chapter, unless 
additional time is necessary to obtain public comment or in the event 
of unforeseen circumstances.


Sec. 903.774  Revision; renewal; and transfer, assignment, or sale of 
permit rights.

    (a) Part 774 of this chapter, Revision; Renewal; and Transfer, 
Assignment, or Sale of Permit Rights, applies to any such actions 
involving surface coal mining and reclamation operations permits, 
except as specified in this section.
    (b) No revision to an approved mining or reclamation plan shall be 
effective until reviewed and approved by WSC.
    (c) Any significant revision to the approved mining or reclamation 
plan shall be subject to the public notice and hearing provisions of 
Secs. 903.773(d)(3) and 773.13 (b) and (c) of this chapter before it is 
approved and implemented. Any revision to an approved reclamation plan 
that may have the potential to adversely affect the achievement of 
reclamation and the post-mining land use is a significant permit 
revision. In addition, WSC will consider the following factors, as well 
as other relevant factors, in determining the significance of a 
proposed revision:
    (1) Changes in production or recoverability of the coal resource;
    (2) Environmental effects;
    (3) Public interest in the operation, or likely interest in the 
proposed revision; and
    (4) Possible adverse impacts from the proposed revision on fish or 
wildlife, endangered species, bald or golden eagles, or cultural 
resources.
    (d) The regulatory authority will approve or disapprove non-
significant permit revisions within a reasonable time after receiving a 
complete and accurate revision application. Significant revisions and 
renewals shall be approved or disapproved under the provisions of 
Sec. 903.773(f).
    (e) Any person having an interest that is or may be adversely 
affected by a decision on the transfer, assignment, or sale of permit 
rights, may submit written comments on the application to WSC. Comments 
may be submitted within 30 days of either the publication of the 
newspaper notice required by Sec. 774.17(b)(2) of this chapter, or 
receipt of an administratively complete application, whichever is 
later. For purposes of this paragraph, a person includes, but is not 
limited to an official of any Federal, State, or local government 
agency.
    (f) Within 30 days from the last publication of the newspaper 
notice, written comments or objections to an application for 
significant revision or renewal of a permit may be submitted to the 
regulatory authority by:
    (1) Any person having an interest that is or may be adversely 
affected by the decision on the application; or
    (2) Public entities notified under Sec. 773.13(a)(3) of this 
chapter of the proposed mining operations on the environment within 
their areas of responsibility.


Sec. 903.775  Administrative and judicial review of decisions.

    Part 775 of this chapter, Administrative and Judicial Review of 
Decisions, applies to all decisions on permits.


Sec. 903.777  General content requirements for permit applications.

    (a) Part 777 of this chapter, General Content Requirements for 
Permit Applications, applies to any person who makes application for a 
permit to conduct surface coal mining and reclamation operations.
    (b) Any person who wishes to conduct surface coal mining and 
reclamation operations must file a complete application as early as 
possible before the date the permit is desired and pay to OSM a permit 
fee in accordance with Sec. 903.736.
    (c) Any person who wishes to revise a permit shall submit a 
complete application as early as possible before the desired approval 
date of the permit revision and shall pay a permit fee in accordance 
with 30 CFR 777.17.


Sec. 903.778  Permit applications--minimum requirements for legal, 
financial, compliance, and related information.

    Part 778 of this chapter, Permit Applications--Minimum Requirements 
for Legal, Financial, Compliance, and Related Information, applies to 
any person who submits an application for a permit to conduct surface 
coal mining and reclamation operations.


Sec. 903.779  Surface mining permit applications--Minimum requirements 
for information on environmental resources.

    (a) Part 779 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Information on Environmental Resources, 
applies to any person who submits an application to conduct surface 
coal mining and reclamation operations.
    (b) Each permit application must include a map that delineates 
existing vegetative types and a description of the plant communities 
within the proposed permit area and within any proposed reference area.


Sec. 903.780  Surface mining permit applications--Minimum requirements 
for reclamation and operation plan.

    Part 780 of this chapter, Surface Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, applies to any 
person who submits an application to conduct surface coal mining and 
reclamation operations.


Sec. 903.783  Underground mining permit applications--Minimum 
requirements for information on environmental resources.

    (a) Part 783 of this chapter, Underground Mining Permit 
Applications--Minimum Requirements for Information on Environmental 
Resources, applies to any person who [[Page 18720]] submits an 
application to conduct underground coal mining operations.
    (b) Each permit application must include a map that delineates 
existing vegetative types and a description of the plant communities 
within the proposed permit area and within any proposed reference area.


Sec. 903.784  Underground mining permit applications--Minimum 
requirements for reclamation and operation plan.

    Part 784 of this chapter, Underground Mining Permit Applications--
Minimum Requirements for Reclamation and Operation Plan, applies to any 
person who submits an application to conduct underground coal mining 
operations.


Sec. 903.785  Requirements for permits for special categories of 
mining.

    Part 785 of this chapter, Requirements for permits for Special 
Categories of Mining, applies to any person who submits an application 
for a permit to conduct certain categories of surface coal mining and 
reclamation operations as specified therein.


Sec. 903.795  Small operator assistance program.

    Part 795 of this chapter, Small Operator Assistance Program, 
applies to any person who submits an application for assistance under 
the small operator assistance program.


Sec. 903.800  Bond and insurance requirements for surface coal mining 
and reclamation operations under regulatory programs.

    (a) Part 800 of this chapter, Bond and Insurance Requirements for 
Surface Coal Mining and Reclamation Operations Under Regulatory 
Programs, applies to all surface coal mining and reclamation 
operations, except for Sec. 800.40(a)(1) of this chapter regarding the 
bond release application, for which paragraph (b) of this section 
substitutes.
    (b) The permittee may file an application with the regulatory 
authority for the release of all or part of a performance bond. The 
application must be filed no later than 30 days before the end of the 
vegetation growing season in order to allow time for the regulatory 
authority to properly evaluate the completed reclamation operations. 
The appropriate times or seasons for the evaluation of certain types of 
reclamation shall be identified in the mining and reclamation plan 
required in subchapter G of this chapter and approved by the regulatory 
authority.


Sec. 903.815  Performance standards--Coal exploration.

    Part 815 of this chapter, Permanent Program Performance Standards--
Coal Exploration, applies to any person who conducts coal exploration.


Sec. 903.816  Performance standards--Surface mining activities.

    (a) Part 816 of this chapter, Permanent Program Performance 
Standards--Surface Mining Activities, applies to any person who 
conducts surface mining activities, except Sec. 816.116(a)(1) of this 
chapter regarding revegetation success standards, for which paragraph 
(b) of this section substitutes.
    (b) Standards for success shall be those identified at 
Sec. 816.116(a)(2) and (b) of this chapter. Statistically valid 
sampling techniques for measuring success shall be included in the 
mining and reclamation plan and approved by the regulatory authority.


Sec. 903.817  Performance standards--Underground mining activities.

    (a) Part 817 of this chapter, Permanent Program Performance 
Standards--Underground Mining Activities, applies to any person who 
conducts underground mining activities, except Sec. 817.116(a)(1) of 
this chapter regarding revegetation success standards, for which 
paragraph (b) of this section substitutes.
    (b) Standards for success shall be those identified at 
Sec. 817.116(a)(2) and (b) of this chapter. Statistically valid 
sampling techniques for measuring success shall be included in the 
mining and reclamation plan and approved by the regulatory authority.


Sec. 903.819  Special performance standards--Auger mining.

    Part 819 of this chapter, Special Permanent Program Performance 
Standards--Auger Mining, applies to any person who conducts surface 
coal mining operations that include auger mining.


Sec. 903.822  Special performance standards--Operations in alluvial 
valley floors.

    Part 822 of this chapter, Special Permanent Program Performance 
Standards--Operations in Alluvial Valley Floors, applies to any person 
who conducts surface coal mining and reclamation operations on alluvial 
valley floors.


Sec. 903.823  Special performance standards--Operations on prime 
farmland.

    Part 823 of this chapter, Special Permanent Program Performance 
Standards--Operations on Prime Farmland, applies to any person who 
conducts surface coal mining and reclamation operations on prime 
farmland.


Sec. 903.824  Special performance standards--Mountaintop removal.

    Part 824 of this chapter, Special Permanent Program Performance 
Standards--Mountaintop Removal, applies to any person who conducts 
surface coal mining and reclamation operations constituting mountaintop 
removal mining.


Sec. 903.827  Special performance standards--Coal preparation plants 
not located within the permit area of a mine.

    Part 827 of this chapter, Permanent Program Performance Standards--
Coal Preparation Plants Not Located Within the Permit Area of a Mine, 
applies to any person who conducts surface coal mining and reclamation 
operations which include the operation of a coal preparation plant not 
located within the permit area of a mine.


Sec. 903.828  Special performance standards--In situ processing.

    Part 828 of this chapter, Special Permanent Program Performance 
Standards--In Situ Processing, applies to any person who conducts 
surface coal mining and reclamation operations that include the in situ 
processing of coal.


Sec. 903.842  Federal inspections.

    (a) Part 842 of this chapter, Federal Inspections, applies to all 
coal exploration and surface coal mining and reclamation operations.
    (b) In addition to the requirements of Part 842 of this chapter, 
OSM will furnish copies of inspection reports when requested by a 
designated Arizona State agency with jurisdiction over mining.


Sec. 903.843  Federal enforcement.

    (a) Part 843 of this chapter, Federal Enforcement, applies 
regarding enforcement action on coal exploration and surface coal 
mining and reclamation operations.
    (b) In addition to the requirements of Part 843 of this chapter, 
OSM will furnish copies of enforcement actions and orders to show 
cause, upon request, to a designated Arizona State agency with 
jurisdiction over mining.


Sec. 903.845  Civil penalties.

    Part 845 of this chapter, Civil Penalties, applies to the 
assessment of civil penalties for violations on coal exploration and 
surface coal mining and reclamation operations.


Sec. 905.846  Individual civil penalties.

    Part 846 of this chapter, Individual Civil Penalties, applies to 
the assessment of individual civil penalties under section 518(f) of 
the Act. [[Page 18721]] 


Sec. 903.955  Certification of blasters.

    Part 955 of this chapter, Certification of Blasters in Federal 
Program States and on Indian Lands, applies to the training, 
examination and certification of blasters for surface coal mining and 
reclamation operations.

[FR Doc. 95-8910 Filed 4-11-95; 8:45 am]
BILLING CODE 4310-05-M