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

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 § 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 governmentfinanced 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
Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations 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,

§ 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 nonIndian 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 § 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 caseby-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.
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(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 § 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 § 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

§ 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 §§ 903.700 (a) and (b) contain

general statements on the scope and

applicability of the program. Final

§ 903.700(c), which was proposed as

§ 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 § 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, § 903.700(d), which replaces

proposed § 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 §§ 903.701 through 903.707

establish the same provisions, where

applicable, as 30 CFR Chapter VII,

subchapter A, General. Final

§ 903.701(a) contains all applicable
Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations 18713

general requirements, including the

definitions in 30 CFR 700.5 and 701.5.

Subsection (b) of § 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 § 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 GovernmentFinanced Highway or Other

Construction.

Permit Fees

Final § 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, § 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, § 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 § 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 § 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 § 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 § 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

§ 903.773(e) allows OSM to require an
18714 Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations

applicant to submit supplemental

information to ensure compliance with

applicable Federal laws and regulations

other than SMCRA and its

implementing regulations. Final

§ 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 § 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, § 903.773(g)(1) requires the

public notice required by

§ 903.773(d)(3) to identify the type of

information considered to be

confidential. Finally, § 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

§ 903.773(d)(3).

Proposed § 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 § 903.774(d).

Final § 903.774(c) incorporates

proposed § 903.774(d). In addition, final

§ 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

§ 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 § 903.774 have been

redesignated as follows. Proposed

§ 903.774(d) has been incorporated into

final § 903.774(c), as discussed above.

Proposed § 903.774(e), which has been

redesignated as final § 903.774(d),

provides that OSM approve or

disapprove non-significant permit

revisions within a reasonable amount of

time. Final § 903.774(e), which was

proposed as § 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

§ 903.774(f), which was proposed as

§ 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

§ 903.779(b) requires the applicant for a

surface mining permit to submit such a

map. Similarly, the rule at § 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

§ 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, §§ 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 § 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 § 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 §§ 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.
Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations 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-bycase 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

§ 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 § 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 § 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
18716 Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations

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.

§ 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 nonIndian 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 crossreference pertinent parts of the

permanent program rules in this

chapter. The full text of a crossreferenced 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
Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations 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

§ 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.

§ 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 § 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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 § 772.12 of this chapter applies,
18718 Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations

the requirements of paragraphs (b)

through (d) of this section shall apply in

place of § 772.12(c) (1) and (3) and

§ 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.

§ 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 U.S.C. 1251 et seq ..................... A.R.S Title 49, Art. 2, Sec 221–225; 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 U.S.C. 7401 et seq .......................... A.R.S. Title 49.

(3) Resource Conservation and Recovery Act, 42 U.S.C. 3251, et seq . A.R.S. Title 49, sections 921–932.

(4) National Environmental Policy Act, 42 U.S.C. 4321 et seq ............... A.R.S. Title 49, section 104.

(5) Archeological and Historic Preservation Act, 16 U.S.C. 469 et seq .. Arizona Antiquities Act—A.R.S. Title 41 secs. 821, 841–846, 861, 862,

865, 1352.

(6) National Historic Preservation Act, 16 U.S.C. 470 et seq ................. A.R.S. Title 13 Secs. 3702, 3702.1; Title 41 secs. 511, 511.04, 821,

861, 862, 1352; Title 44 sec. 123.

(7) Section 208 of the Clean Water Act, as amended, 33 U.S.C. 1251

et seq.

A.R.S. Sections 49–101, 201 and 371.

(8) Endangered Species Act, 16 U.S.C. 1531 et seq .............................. A.R.S. Title 17 Section 231A.2 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 U.S.C. 668–668(d) ........................... A.R.S. Title 17 Section 235.

(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 § 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:
Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations 18719

If * * * And * * * Then a written decision shall be issued * * *

OSM has not prepared an EIS ....... An informal conference has not

been held.

Within 60 days of the close of the comment period.

OSM has not prepared an EIS ....... An informal conference has been

held.

Within 60 days of the conclusion of the informal conference (unless

additional time is needed because of the number or complexity of

the issues).

OSM has prepared an EIS ............. ........................................................ No earlier than 30 days 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 § 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 § 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 § 773.13(a)(1) of

this chapter, unless additional time is

necessary to obtain public comment or

in the event of unforeseen

circumstances.

§ 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 §§ 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 § 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

§ 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

§ 773.13(a)(3) of this chapter of the

proposed mining operations on the

environment within their areas of

responsibility.

§ 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.

§ 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 § 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.

§ 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.

§ 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.

§ 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.

§ 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
18720 Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations

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.

§ 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.

§ 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.

§ 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.

§ 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

§ 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.

§ 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.

§ 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 § 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 § 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.

§ 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

§ 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 § 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.

§ 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.
Federal Register / Vol. 60, No. 70 / Wednesday, April 12, 1994 / Rules and Regulations 18721

§ 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