9.37—Plan of operations approval.
(1)
Until the operator shows that the operations will be conducted in a manner which utilizes technologically feasible methods least damaging to the federally-owned or controlled lands, waters and resources of the unit while assuring the protection of public health and safety.
(2)
For operations at a site the surface estate of which is not owned by the Federal government, where operations would constitute a nuisance to Federal lands or waters in the vicinity of the operations, would significantly injure federally-owned or controlled lands and waters; or
(3)
For operations at a site the surface estate of which is owned or controlled by the Federal government, where operations would substantially interfere with management of the unit to ensure the preservation of its natural and ecological integrity in perpetuity, or would significantly injure the federally-owned or controlled lands or waters; Provided, however, That if the application of this standard would, under applicable law, constitute a taking of a property interest rather than an appropriate exercise of regulatory authority, the plan of operations may be approved if the operations would be conducted in accordance with paragraph (a)(1) of this section, unless a decision is made to acquire the mineral interest.
(4)
Where the plan of operations does not satisfy each of the requirements of § 9.36 applicable to the operations proposed.
(b)
Within sixty (60) days of the receipt of a plan of operations, the Regional Director shall make an environmental analysis of such plan, and:
(1)
Notify the operator that the plan of operations has been approved or rejected, and, if rejected, the reasons for the rejection; or
(2)
Notify the operator that the plan of operations has been conditionally approved, subject to the operator's acceptance of specific provisions and stipulations; or
(3)
Notify the operator of any modification of the plan of operations which is necessary before such plan will be approved or of additional information needed to effectively analyze the effects that the operations will have on the preservation, management and use of the unit, and to make a decision regarding approval or disapproval of the plan of operations and the amount of the performance bond to be posted; or
(4)
Notify the operator that the plan of operations is being reviewed, but that more time, not to exceed an additional thirty days, is necessary to complete such review, and setting forth the reasons why additional time is required. Provided, however, That days during which the area of operations is inaccessible for such reasons as inclement weather, natural catastrophe, acts of God, etc., for inspection shall not be included when computing either this time period, or that in subsection (b) above; or
(5)
Notify the operator that the plan of operations has been reviewed, but cannot be considered for approval until forty-five (45) days after a final environmental statement has been prepared and filed with the Environmental Protection Agency; or
(6)
Notify the operator that the plan of operations is being reviewed, but that more time to provide opportunities for public participation in the plan of operations review and to provide sufficient time to analyze public comments received is necessary. Within thirty (30) days after closure of the public comment period specified by the Regional Director, he shall comply with § 9.37(b) (1) through (5).
(c)
The Regional Director shall act as expeditiously as possible upon a proposed plan of operations consistent with the nature and scope of the operations proposed. Failure to act within the time limits specified in this section shall constitute a rejection of the plan of operations from which the operator shall have a right to appeal under § 9.49.
(5)
A determination regarding the impact of this operation and cumulative impacts of all proposed and existing operations on the management of the unit; and
(6)
A determination whether implementation by the operator of an approved plan of operations would be a major Federal action significantly affecting the quality of the human environment or would be sufficiently controversial to warrant preparation of an environmental statement pursuant to section 102(2 )(c) of the National Environmental Policy Act of 1969.
(e)
Prior to approval of a plan of operations, the Regional Director shall determine whether any properties included in, or eligible for inclusion in the National Register of Historic Places or National Registry of Natural Landmarks may be affected by the proposed operations. This determination will require the acquistion of adequate information, such as that resulting from field surveys, in order to properly determine the presence and significance of cultural resources within the areas to be affected by operations. Whenever National Register properties or properties eligible for inclusion in the National Register would be affected by operations, the Regional Director shall comply with section 106 of the Historic Preservations Act of 1966 as implemented by 36 CFR part 800.
(f)
Approval of each plan of operations is expressly conditioned upon the Superintendent having such reasonable access to the site as is necessary to properly monitor and insure compliance with the plan of operations.