[Federal Register Volume 60, Number 144 (Thursday, July 27, 1995)]
[Rules and Regulations]
[Pages 38491-38496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18441]
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DEPARTMENT OF THE INTERIOR
30 CFR Parts 906, 931, and 944
Colorado, New Mexico, and Utah Regulatory Programs
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Notice of decision.
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SUMMARY: OSM is announcing its decision on initial enforcement of
underground coal mine subsidence control and water replacement
requirements in Colorado, New Mexico, and Utah. Amendments to the
Surface Mining Control and Reclamation Act of 1977 (SMCRA) and the
implementing Federal regulations require that underground coal mining
operations conducted after October 24, 1992, promptly repair or
compensate for subsidence-caused material damage to noncommercial
buildings and to occupied dwellings and related structures and promptly
replace drinking, domestic, and residential water supplies that have
been adversely affected by underground coal mining. After consultation
with Colorado, New Mexico, and Utah and consideration of public
comments, OSM has decided that initial enforcement will be accomplished
in Colorado through State enforcement, in New Mexico through the State
program amendment process, and in Utah through State enforcement and,
if necessary, direct Federal enforcement of Federal provisions
protecting water supplies.
EFFECTIVE DATE: July 27, 1995.
FOR FURTHER INFORMATION CONTACT:
Arthur W. Abbs, Acting Director, Albuquerque Field Office, Telephone:
(505) 766-1486.
SUPPLEMENTARY INFORMATION:
A. The Energy Policy Act
Section 2504 of the Energy Policy Act of 1992, Pub. L. 102-486, 106
Stat. 2776 (1992) added new section 720 to SMCRA. Section 720(a)(1)
requires that all underground coal mining operations promptly repair or
compensate for subsidence-caused material damage to noncommercial
buildings and to occupied residential dwellings and related structures.
Repair of damage includes rehabilitation, restoration, or replacement
of the structures identified in section 720(a)(1), and compensation
must be provided to the owner in the full amount of the reduction in
value of the damaged structures as a result of subsidence. Section
720(a)(2) requires prompt replacement of certain identified water
supplies if those supplies have been adversely affected by underground
coal mining operations.
These provisions requiring prompt repair or compensation for damage
to structures, and prompt replacement of water supplies, went into
effect upon passage of the Energy Policy Act on October 24, 1992. As a
result, underground coal mine permittees in States with OSM-approved
regulatory programs are required to comply with these provisions for
operations conducted after October 24, 1992.
B. The Federal Regulations Implementing the Energy Policy Act
On March 31, 1995, OSM promulgated regulations at 30 CFR Part 817
(60 FR 16722) to implement the performance standards of sections
720(a)(1) and (2) of SMCRA.
30 CFR 817.121(c)(2) requires in part that:
The permittee must promptly repair, or compensate the owner for,
material damage resulting from subsidence caused to any non-
commercial building or occupied residential dwelling or structure
related thereto that existed at the time of mining. * * * The
requirements of this paragraph apply only to subsidence-related
damage caused by underground mining activities conducted after
October 24, 1992.
30 CFR 817.41(j) requires in part that:
The permittee must promptly replace any drinking, domestic or
residential water supply that is contaminated, diminished or
interrupted by underground mining activities conducted after October
24, 1992, if the affected well or spring was in existence before the
date the regulatory authority received the permit application for
the activities causing the loss, contamination or interruption.
Alternative OSM enforcement decisions. 30 CFR 843.25 provides that
by July 31, 1995, OSM will decide, after consultation with each State
regulatory authority with an approved program, how enforcement of the
new requirements will be accomplished. As discussed in the April 6,
1995, Federal Register (60 FR 17501) announcing the public comment
period and opportunity for public hearing and as reiterated below,
enforcement could be accomplished by State, OSM, or joint State and OSM
enforcement of the requirements, or by a State after it has amended its
program.
(1) State program amendment process. If the State's promulgation of
regulatory provisions that are counterpart to 30 CFR 817.41(j) and
817.121(c)(2) is imminent, the number and extent of underground mines
that have operated in the State since October 24, 1992, is low, the
number of complaints in the State concerning section 720 of SMCRA is
low, or the State's investigation of subsidence-related complaints has
been thorough and complete so as to assure prompt remedial action, then
OSM could decide not to directly enforce the Federal provisions in the
State. In this situation, the State would enforce its State statutory
and regulatory provisions once it has amended its program to be in
accordance with the revised SMCRA and to be consistent with the revised
Federal regulations. This program revision process, which is addressed
in the Federal regulations at 30 CFR Part 732, is commonly referred to
as the State program amendment process.
(2) State enforcement. If the State has statutory or regulatory
provisions in place that correspond to all of the requirements of the
above-described Federal regulations at 30 CFR 817.41(j) and
817.121(c)(2) and the State has authority to implement its statutory
and regulatory provisions for all underground mining activities
conducted after October 24, 1992, then the State would enforce its
provisions for these operations.
(3) Interim direct OSM enforcement. If the State does not have any
statutory or regulatory provisions in place that correspond to the
requirements of the Federal regulations at 30 CFR 817.41(j) and
817.121(c)(2), then OSM would enforce in their entirety 30 CFR
817.41(j) and 817.121(c)(2) for all underground mining activities
conducted in the State after October 24, 1992.
(4) State and OSM enforcement. If the State has statutory or
regulatory provisions in place that correspond to some but not all of
the requirements of
[[Page 38492]]
the Federal regulations at 30 CFR 817.41(j) and 817.121(c)(2) and the
State has authority to implement its provisions for all underground
mining activities conducted after October 24, 1992, then the State
would enforce its provisions for these operations. OSM would then
enforce those provisions of 30 CFR 817.41(j) and 817.121(c)(2) that are
not covered by the State provisions for these operations.
If the State has statutory or regulatory provisions in place that
correspond to some but not all of the requirements of the Federal
regulations at 30 CFR 817.41(j) and 817.121(c)(2) and if the State's
authority to enforce its provisions applies to operations conducted on
or after some date later than October 24, 1992, the State would enforce
its provisions for these operations on and after the provisions'
effective date. OSM would then enforce 30 CFR 817.41(j) and
817.121(c)(2) to the extent the State statutory and regulatory
provisions do not include corresponding provisions applicable to all
underground mining activities conducted after October 24, 1992; and OSM
would enforce those provisions of 30 CFR 817.41(j) and 817.121(c)(2)
that are included in the State program but are not enforceable back to
October 24, 1992, for the time period from October 24, 1992, until the
effective date of the State's rules.
As described in items (3) and (4) above, OSM could directly enforce
in total or in part the applicable Federal regulatory provisions until
the State adopts and OSM approves under 30 CFR Part 732, the State's
counterparts to the required provisions. However, as discussed in item
(1) above, OSM could decide not to initiate direct Federal enforcement
but rather to rely instead on the 30 CFR Part 732 State program
amendment process.
In those situations where OSM determined that direct Federal
enforcement was necessary, the ten-day notice provisions of 30 CFR
843.12(a)(2) would not apply. That is, when on the basis of a Federal
inspection OSM determined that a violation of 30 CFR 817.41(j) or
817.121(c)(2) existed, OSM would issue a notice of violation or
cessation order without first sending a ten-day notice to the State.
Also under direct Federal enforcement, the provisions of 30 CFR
817.121(c)(4) would apply. This regulation states that if damage to any
noncommercial building or occupied residential dwelling or structure
related thereto occurs as a result of earth movement within an area
determined by projecting a specified angle of draw from the outermost
boundary of any underground mine workings to the surface of the land
(normally a 30 degree angle of draw), a rebuttable presumption exists
that the permittee caused the damage.
Lastly, under direct Federal enforcement, OSM would also implement
the new definition at 30 CFR 701.5 of ``drinking, domestic or
residential water supply,'' ``material damage,'' ``non-commercial
building,'' ``occupied dwelling and structures related thereto,'' and
``replacement of water supply'' that were adopted with the new
underground mining performance standards.
OSM would enforce 30 CFR 817.41(j), 817.121(c) (2) and (4), and
implement the definitions at 30 CFR 701.5 for operations conducted
after October 24, 1992.
C. Enforcement in Colorado
Colorado Program Activity, Requirements, and Enforcement
By letter to Colorado dated December 14, 1994, OSM requested
information that would help OSM decide which approach to take in
Colorado to implement the requirements of section 720(a) of SMCRA, the
implementing Federal regulations, and/or the counterpart Colorado
program provisions (Administrative Record No. CO-652). By letter dated
February 24, 1995, Colorado responded to OSM's request (Administrative
Record No. CO-661).
Colorado stated that, of the 25 underground coal mines that had
permits as of October 24, 1992, 11 actually mined coal after that date.
Colorado indicated that prior to June 1, 1992, Colorado had in
place surface owner protection performance standards at 2 Code of
Colorado Regulations 407-2, rules 4.20.3(1) and 4.20.3(2) that
encompassed the requirements of section 720(a)(1) of SMCRA. Rule
4.20.3(2), which contained requirements regarding an operator's
obligation to repair or compensate for material damage or reduction in
value or reasonably foreseeable use caused by subsidence to surface
structures, features, or values, expired on June 1, 1992, under
Colorado's ``Sunset Law.'' The rule expired because Colorado's Office
of Legislative Legal Services found during November 1991 it was not
supported by statute. Colorado subsequently developed language for a
bill to amend the Colorado Surface Coal Mining and Reclamation Act (the
Colorado Act) and introduced the bill during the 1995 legislative
session. The intent of the bill was to amend Colorado Revised Statute
(C.R.S.) 34-33-121(2)(a) to provide specific statutory support for Rule
4.20.3(2).
Colorado explained that, although the specific language of Rule
4.20.3(2) expired during June 1992, the Division of Minerals and
Geology has continued since that time to interpret its rules to require
that mine operators are responsible for repairing or compensating
surface owners for subsidence-caused material damage to structures.
Colorado based its authority for doing so on the general provisions of
Rule 4.20.3(1) and the subsidence control plan mitigation requirements
of Rule 2.05.6(6)(iv).
Colorado indicated that there may be a conflict between the
provisions of section 720(a)(2) of SMCRA, which requires prompt
replacement of drinking, domestic, or residential water supplies
adversely impacted by underground mining operations, and Colorado water
law. Consequently, Colorado has requested an opinion from the Colorado
Assistant Attorney General in this regard. Existing Colorado Rule
4.05.15 requires operators to ``* * * replace the water supply of any
owner of a vested water right which is proximately injured as a result
of the mining activities in a manner consistent with applicable State
law'' (emphasis added).
For underground mining operations conducted after October 24, 1992,
Colorado has received one complaint alleging subsidence-related
structural damage and two complaints alleging water supply loss or
contamination. Colorado investigated all three complaints. Colorado
determined the complaint alleging subsidence-caused structural damage
to be without basis. One of the complaints alleging water supply loss
or contamination was withdrawn, and the second was under investigation
by Colorado.
On May 4 and 31, 1995, OSM confirmed with Colorado that 11 of its
25 underground coal mines produced coal after October 24, 1992
(Administrative Record No. CO-668). At that time, OSM also discussed
with Colorado the status of the State's revision of its program to
include counterparts to SMCRA and the implementing Federal regulations.
Effective July 1, 1995, the Colorado legislature amended the
Colorado Surface Coal Mining Reclamation Act, C.R.S. 34-33-101, et
seq., (Administrative Record No. CO-664) to serve as a statutory basis
for a subsidence material damage rule to replace Rule 4.20.3(2), which,
as discussed above, expired under Colorado's Sunset Law. On May 24,
1995, the Colorado Mined Land
[[Page 38493]]
Reclamation Board commenced rulemaking to replace this rule. Upon the
completion of these actions, Colorado believes that it will have fully
implemented counterparts to the subsidence material damage provisions
of the Federal regulations at 30 CFR 817.121(c)(2).
Colorado stated that C.R.S. 34-33-111(1)(m) and Rule 2.05.6(3),
which address protection of the hydrologic balance, give it the
necessary authority to require replacement of drinking, domestic, or
residential water supplies in a manner no less effective than 30 CFR
817.41(j) (Administrative Record No. CO-664). However, Colorado has not
yet received an opinion from the Colorado Assistant Attorney General as
to whether related Rule 4.05.15 limits the replacement of water
supplies to those with ``vested water rights.''
Colorado received no additional complaints. The investigation of
the water supply complaint is ongoing. With respect to the structural
damage complaint that Colorado initially determined was without basis,
Colorado and OSM are reviewing information supplied by the complainant
with the intent of resolving the complainant's concerns.
Comments. On April 6, 1995, OSM published in the Federal Register
(60 FR 17501) notice of opportunity for a public hearing and a request
for public comment to assist OSM in making its decision on how the
underground coal mine subsidence control and water replacement
requirements should be implemented in Colorado (Administrative Record
No. CO-662). The comment period closed on May 8, 1995. Because OSM did
not receive a request for a public hearing, OSM did not hold a public
hearing. OSM received comments from two parties in response to its
notice.
One party stated that the enforcement alternatives incorporating
total or partial direct interim Federal enforcement (items (3) and (4)
in section B. above) have no statutory basis in SMCRA and are not
consistent with Congress' intent in creating section 720 of SMCRA
(Administrative Record No. CO-666). The party also commented that the
waiving of ten-day notice procedures in implementing direct Federal
enforcement is not consistent with Federal case law. OSM does not agree
with the commenter's assertions, and it addressed similar comments in
the March 31, 1995, Federal Register (60 FR 16722, 16742-16745) and
also responds to these comments below in the ``Comments'' subsection of
following Utah section E. These concerns about direct Federal
enforcement are moot issues for Colorado because the Regional Director
has decided, as set forth below, not to implement an enforcement
alternative including direct Federal enforcement.
Another party commented on the national Federal regulations
(Administrative Record No. CO-665) after OSM published them as a final
rule on March 31, 1995 (60 FR 16722). These comments are not germane to
OSM's April 6, 1995, Federal Register request for public comment to
assist OSM in making its decision on how the underground coal mine
subsidence control and water replacement requirements should be
implemented in Colorado.
Regional Director's decision. Prior to the Regional Director making
this decision on which enforcement alternative should be implemented in
Colorado, the Albuquerque Field Office on May 4 and 31, 1995, consulted
with Colorado in accordance with 30 CFR 843.25(a)(4) (Administrative
Record No. CO-668). Because the number of mines in Colorado that are
subject to section 720(a) of SMCRA is low, Colorado has made
significant progress in promulgating the necessary statutory and rule
provisions, and Colorado has shown a commitment to investigating
citizen complaints regarding subsidence and water supply impacts, the
Field Office and Colorado agreed that Colorado should be the primary
enforcer of its State program provisions for subsidence-caused material
damage to noncommercial buildings and to occupied dwellings and related
structures and for drinking, domestic, and residential water supplies
adversely affected by underground coal mining. Only, if a situation
arises in which Colorado's enforcement role as primary enforcer does
not appear to fully meet the requirements of section 720(a) of SMCRA,
would OSM through Federal oversight issue ten-day notices.
On this basis and the disposition of the comments received, the
Regional Director decides that initial enforcement of the underground
coal mine subsidence control and water replacement requirements in
Colorado will occur through State enforcement.
If circumstances within Colorado change significantly, the Regional
Director may reassess this decision. Formal reassessment of this
decision would be addressed by Federal Register notice.
D. Enforcement in New Mexico
New Mexico Program Activity, Requirements, and Enforcement
By letter to New Mexico dated December 14, 1994, OSM requested
information that would help OSM decide which approach to take in New
Mexico to implement the requirements of section 720(a) of SMCRA, to
implementing Federal regulations, and/or the counterpart New Mexico
program provisions (Administrative Record No. NM-725). By letter dated
December 22, 1994, New Mexico responded to OSM's request
(Administrative Record No. NM-726).
New Mexico stated that two underground coal mines were active in
New Mexico after October 24, 1992. New Mexico stated that it intended
to revise its subsidence information and control plan provisions at
Coal Surface Mining Commission (CSMC) Rule 80-1-20-124 to be no less
stringent than section 720 of SMCRA.
New Mexico did not indicate whether it had authority within its
program to investigate citizen complaints of structural damage or water
supply loss or contamination caused by underground mining operations
conducted after October 24, 1992. New Mexico had not received any
citizen complaints alleging subsidence-related structural damage or
water supply loss or contamination as a result of underground mining
operations conducted after October 24, 1992. New Mexico indicated that
both of the underground mines that operated after October 24, 1992, are
located several miles from structures subject to the Federal
requirements for subsidence-related material damage.
On May 13, 1995, New Mexico proposed an amendment to OSM for its
permit application requirements at CSMC Rule 80-1-9-39 (Administrative
Record No. NM-739). Specifically, New Mexico proposed to revise its
subsidence information and control plan requirements at this rule with
the intent of making it consistent with section 720 of SMCRA. OSM is
currently reviewing the effectiveness of this proposed rule.
On May 3 and June 5, 1995, OSM confirmed with New Mexico that tow
underground coal mines were active after October 24, 1992
(Administrative Record No. NM-746). New Mexico stated that it had
received no subsidence material damage or water supply complaints for
these operations, and that neither operation has noncommercial
buildings or occupied dwellings and related structures, or developed
water sources, within the
[[Page 38494]]
projected subsidence angles of draw. New Mexico indicated that, if it
were necessary to apply the provisions of 30 CFR 817.41(j) and
817.12(c)(2) before it had revised its program to be no less effective
than these Federal regulations, it would pursue enforcement utilizing
general provisions contained in the State regulations.
Comments. On April 6, 1995, OSM published in the Federal Register
(60 FR 17501) notice of opportunity for a public hearing and a request
for public comment to assist OSM in making its decision on how the
underground coal mine subsidence control and water replacement
requirements should be implemented in New Mexico (Administrative Record
No. NM-737). The comment period closed on May 8, 1995. Because OSM did
not receive a request for a public hearing, OSM did not hold one. OSM
received from one of the parties that commented on the Colorado program
the same comments regarding total or partial direct interim Federal
enforcement and ten-day notice procedures (Administrative Record No.
NM-749). OSM does not agree with the commenter's assertions. It
addressed similar comments in the March 31, 1995, Federal Register (60
FR 16722, 16742-16745) and also responds to these comments below in the
``Comments'' subsection of following Utah section E. These concerns
about direct Federal enforcement are moot issues for New Mexico because
the Regional Director has decided, as set forth below, not to implement
an enforcement alternative including direct Federal enforcement.
Regional Director's decision. Prior to the Regional Director making
this decision on which enforcement alternative should be implemented in
New Mexico, the Albuquerque Field Office on May 3 and June 5, 1995,
consulted with New Mexico in accordance with 30 CFR 843.25(a)(4)
(Administrative Record No. NM-746). Because there has been little
underground mining activity since October 24, 1992; there is little
likelihood for subsidence damage to noncommercial buildings and to
occupied dwellings and related structures, or adverse effects to
drinking, domestic, and residential water supplies by underground coal
mining; and New Mexico has already proposed to OSM revisions to part of
its regulatory program, the Field Office and New Mexico agreed that it
is unlikely that any State or Federal enforcement would be necessary in
the State during the interim period between October 24, 1992, and the
date by which New Mexico entirely revises its program in accordance
with SMCRA and the Federal regulations.
On this basis and the disposition of the comments received, the
Regional Director decides that initial enforcement of the underground
coal mine subsidence control and water replacement requirements in New
Mexico is not reasonably likely to be required and that implementation
will be accomplished through the State program amendment process. On
June 22, 1995, OSM notified New Mexico of the specific revisions that
it must make to its regulatory program to be no less stringent than
SMCRA and no less effective than the implementing Federal regulations
(Administrative Record No. NM-747).
If circumstances within New Mexico change significantly, the
Regional Director may reassess this decision. Formal reassessment of
this decision would be addressed by Federal Register notice.
E. Enforcement in Utah
Utah Program Activity, Requirements, and Enforcement
By letter to Utah dated December 14, 1994, OSM requested
information that would help OSM decide which approach to take in Utah
to implement the requirements of section 720(a) of SMCRA, the
implementing Federal regulations, and/or the counterpart Utah program
provisions (Administrative Record No. UT-1001). By letter dated January
20, 1995, Utah responded to OSM's request (Administrative Record No.
UT-1015).
Utah stated that the number of underground coal mines in operation
after October 24, 1992, may be found in the past and current grant
applications filed annually with OSM. From review of these grant
applications, OSM determined that there are approximately 21
underground mines that operated after October 24, 1992.
As submitted to OSM on April 14, 1994, and subsequently revised on
December 14, 1995 (Administrative Record Nos. UT-917 and UT-997), Utah
proposed subsidence material damage provisions at Utah Code Annotated
(UCA) 40-10-18(4) that were intended to be counterparts to the
provisions of section 720(a)(1) of SMCRA. OSM has not yet published, in
accordance with 30 CFR Part 732.17, a final rule Federal Register
notice detailing its decision on the proposed provisions.
In its January 20, 1995, letter, Utah indicated that it intends to
promulgate by March 1996 water replacement statutory provisions that
are counterparts to the provisions of section 720(a)(2) of SMCRA.
Utah did not state whether it has authority to investigate citizen
complaints of structural damage or water loss caused by underground
mining operations conducted after October 24, 1992. Utah indicated that
it did receive, investigate, and resolve one citizen complaint after
October 24, 1992, but is also indicated that the complaint was judged
not to be one that the Energy Policy Act of 1992 revisions to section
720 of SMCRA could remedy.
On May 1 and 31, and June 5, 1995, OSM discussed with Utah its
regulatory program as it relates to section 720 of SMCRA
(Administrative Record No. UT-1058).
After further review, OSM has determined that 16 underground mines
conducted mining operations after October 24, 1992. Utah has not
received for these operations any complaints relating to subsidence
damage to noncommercial buildings and to occupied dwellings and related
structures, or adverse effects to drinking domestic, and residential
water supplies.
Utah stated that it still intends to introduce a water replacement
counterpart section 720(a)(2) of SMCRA to its legislature during the
1996 session and that it intends to undertake rulemaking by the summer
of 1996. Utah stated that, although there is potential for conflicts
with State water law regarding replacement of ``junior'' water
allocation, it is committed to developing water replacement regulations
that meet both the requirements of section 720(a)(2) of SMCRA and 30
CFR 817.41(j) and water rights doctrine. Notwithstanding these future
program revisions, Utah indicated that it has the authority under
existing enactments and rules to adequately address water replacement
issues as they arise. It stated that it is committed to the
investigation and resolution of citizens' concerns regarding water
sources.
Comments. On April 6, 1995, OSM published in the Federal Register
(60 FR 17501) notice of opportunity for a public hearing and a request
for public comment to assist OSM in making its decision on how the
underground coal mine subsidence control and water replacement
requirements should be implemented in Utah (Administrative Record No.
UT-1039). The comment period closed on May 8, 1995. In response to a
request, OSM held a public hearing on May 1, 1995, in Salt Lake City,
Utah. OSM entered into the administrative record a verbatim transcript
of the hearing testimony
[[Page 38495]]
(Administrative Record No. UT-1050). Following are summaries of all
substantive comments that OSM received, and OSM's responses to them.
Two commenters indicated that there are 13 active underground mines
in Utah (Administrative Record Nos. UT-1045, 1049, and 1050). By OSM's
count, there are 16 mines that operated after October 24, 1992, and
that are subject to the provisions of the Energy Policy Act.
One party stated that the enforcement alternatives incorporating
total or partial direct interim Federal enforcement (items (3) and (4)
in section B. above) have no statutory basis in SMCRA and are not
consistent with Congress' intent in creating section 720 of SMCRA
(Administrative Record No. UT-1060). Specifically, the party commented
that SMCRA contains various statutory procedures for the amendment,
preemption, and substitution of Federal enforcement of State programs
(sections 503, 505, and 521(b)) that should be used in lieu of direct
interim Federal enforcement.
In response to this comment, OSM's position remains as was stated
in the March 31, 1995, preamble for the Federal regulations at 30 CFR
843.25, which in part implement section 720 of SMCRA:
OSM has concluded that it is not clear from the legislation or
legislative history, how Congress intended that section 720 was to
be implemented, in light of existing SMCRA provisions for State
primacy. Thus, OSM has a certain amount of flexibility in
implementing section 720. After weighing these considerations, OSM
intends to implement section 720 promptly, but will pursue federal
enforcement without undermining State primacy under SMCRA.
(60 FR 16722, 16743). Using this rationale, OSM concludes that there is
no inconsistency in its implementation of section 720 of SMCRA with
sections 503, 505, and 521(b) of SMCRA.
Further the party commented that Congress' intent was that
agreements between coal mine operators and landowners would be used to
ensure that the protective standards of section 720 of SMCRA would
occur rather than enforcement by State regulatory authorities and OSM.
The party did not supply any legislative history to support this
conclusion, and the plain language of section 720 of SMCRA does not
support this conclusion.
Lastly, the party commented that the waiving of ten-day notice
procedures in implementing direct Federal enforcement is not consistent
with Federal case law. OSM does not agree with the commenter's
assertion. The following response to a similar comment in the March 31,
1995, Federal Register (60 FR 16722, 16742-16745) also applies to this
comment.
[The commenter stated that] the proposal to provide for direct
Federal enforcement ignores Federal case law which indicates that,
as a general proposition, the State program, not SMCRA, is the law
within the State. OSM recognizes that, under existing rules
implementing SMCRA, States with approved regulatory programs have
primary responsibility for implementing SMCRA, based on the approved
program. However, in this rule OSM has carved out a limited
exception to the general proposition to the extent necessary to give
reasonable force and effect to section 720, while maintaining so far
as possible State primacy procedures. OSM believes that the process
adopted in this final rule is consistent with and authorized by
Congress under the Energy Policy Act, and that case law interpreting
other provisions of SMCRA is not necessarily dispositive.
Two commenters recommended that Utah take over the immediate
enforcement of Energy Policy Act provisions and 30 CFR 817.41(j) and
817.121(c)(2) because (1) There is a relatively low number of active
underground coal mines in Utah, (2) there have been a relatively low
number of citizen complaints dealing with subsidence material damage or
water supply damage. (3) Utah has promptly taken remedial action of all
citizen complaints received, (4) Utah is Keenly aware of State water
law, (5) Utah has qualified personnel to enforce the requirements of
the Energy Policy Act (Administrative Record Nos. 1045, 1049, and
1050). OSM acknowledges these recommendations and took them into
consideration in making a decision on enforcement in Utah.
One commenter stated that the water supply protections afforded by
March 31, 1995, Federal regulations are currently in place under the
Utah Water Code and that, without further amendment of Utah law,
enforcement of these regulations may be accomplished through a
memorandum of understanding (MOU) between the Utah Division of Oil, Gas
and Mining (Division) and the Utah State Engineer (Engineer,
Administrative Record No.UT-1046). Another commenter submitted a
suggested MOU addressing water replacement that could be entered into
the Division and the Engineer (Administrative Record No. UT-1050). In
response to a commenter's perception that a regulatory gap exists
between what the Division is willing to enforce and what the Utah State
Engineer is willing to enforce (Administrative Record No. UT-1050), the
Division endorsed the concept of an MOU with the Engineer as a means to
bring together in a complete regulatory framework the Division's
determinations on mining's impact on water and the Engineer's
determinations of adjudications on water rights. OSM's response to
these comments and submission is that, although this is one approach
that Utah may decide to pursue, this MOU is not in place and as such is
not a consideration in the Regional Director's decision on whether to
institute direct Federal enforcement in Utah. If Utah decides to modify
its approved regulatory program through such an MOU, it would have to
submit it as a State program amendment for OSM approval in accordance
with 30 CFR 732.17.
The Utah Division of Oil, Gas and Mining stated that direct Federal
enforcement in the State would amount to institution of a separate
Federal program to address only subsidence damage and water replacement
issues (Administrative Record No. UT-1050). In its opinion, this would
be an inefficient and wasteful use of scarce budgetary resources
because (1) It has adequate authority to implement the subsidence
damage and water replacement provisions required by the Energy Policy
Act and the implementing regulations, (2) there exists significant
legal and administrative impediments to creation of a successful
separate federal program, and (3) it can have new regulatory provisions
in place, if necessary, by March 1996. In making the decision that is
set forth below, OSM has given thoughtful consideration to Utah's
concerns. OSM does not consider that any direct Federal enforcement in
Utah would be inefficient and wasteful because OSM also has a
responsibility under section 720(a) of SMCRA to ensure that the
protective provisions to remedy subsidence material damage and
adversely affected water supplies are promptly applied.
The Division indicated its intent to actively seek the input of the
Utah Division of Water Rights when it develops water supply regulations
so that these regulations are consistent with existing water rights
doctrine. The Division and several other commenters made statements
about what State water law and the Utah State Engineer require or do
not require with respect to water rights and allocations. Some of these
comments related directly or indirectly to the implementation of
section 720(a) and 30 CFR 817.41(j). OSM responds to these comments by
reiterating its position on water rights that was included in the
preamble to the March 31, 1995, Federal regulations.
Section 717(a) requires deference to State water law on
questions of water allocation
[[Page 38496]]
and use. OSM interprets section 720 and the implementing rules as not
requiring the replacement of water supplies to the extent
underground mining activities consume or legitimately use the water
supply under a senior water right determined under applicable State
law. See In re Permanent Surface Mining Regulation Litigation II,
Round III, 620 F. Supp. 1519, 1525 (D.C.D.C. 1985). However, OSM
believes that section 717(a) concerns rights under State water law
to consumption or use of water, and was not intended to address
destruction or damage of the source of water, or contamination of
water supply. Thus, OSM anticipates that underground mining
activities which cause destruction or damage of a water supply
source, or contamination of a water supply, would be subject to the
replacement requirements of section 720 even if the permittee
possessed senior water rights.
(60 FR 16722, 16733).
Two commenters indicated that, in a proceeding before the Board on
Oil, Gas and Mining concerning alleged diminution and contamination by
a Utah mining operation of a water source, the Division was unwilling
to enforce the water replacement requirements of section 720(a) of
SMCRA (Administrative Record Nos. UT-1047, 1048, and 1050). These
commenters, and one other person (Administrative Record No. UT-1050),
stated that the Division had not fully enforced the water protection
provisions of the Utah program. One of the commenters recommended a
number of changes in the implementation of the Utah program and
indicated that, until these changes were made, OSM should conduct
oversight Utah's implementation of the ground-water protection
provisions of the Utah program and, if necessary, directly enforce
water resources protection provisions in Utah. The other commenter
recommended, at a minimum, joint Division and OSM enforcement of the
Energy Policy Act requirements, or direct Federal enforcement. OSM
acknowledges these comments and took them into consideration in making
the decision set forth below.
One commenter stated that, to the best of his knowledge, Utah does
not conduct any monitoring of the hydrological consequences of a mine
after it has been permitted to determine whether the mine is affecting
the hydrologic balance as predicted in the permit (Administrative
Record No. UT-1050). In response to this statement, the Division
indicated that, during the operation of a mine, it does reevaluate the
hydrologic impact conclusions made at the permitting stage in light of
monitoring data collected during the mine's operation (Administrative
Record No. UT-1050).
Regional Director's decision. Prior to the Regional Director making
this decision on which enforcement alternative should be implemented in
Utah, the Albuquerque Field Office, on May 1 and 31, and June 5, 1995,
consulted with Utah in accordance with 30 CFR 843.25(a)(4)
(Administrative Record No. UT-1058).
The majority of Utah mines have operated after October 24, 1992,
and are subject to the provisions of section 720(a) of SMCRA and the
implementing Federal regulations. Although Utah has implemented its
regulatory program provisions concerning hydrologic information and
hydrologic balance and is committed to the investigation and resolution
of citizens' concerns regarding water sources, there are, as is
documented in the written record of the public hearing, current
concerns and potential for additional complaints regarding the loss,
contamination, or diminution of water sources that serve large
populations in the coal producing counties in Utah. The mid-1996
projection for promulgating statutory and regulatory State program
provisions for water replacement is in keeping with usual timeframes
for enactment of legislation and revision of regulations.
The Field Office and Utah agreed that Utah should be the primary
enforcer of its State program provisions for subsidence-caused material
damage to noncommercial buildings and to occupied dwellings and related
structures and for drinking, domestic, and residential water supplies
adversely affected by underground coal mining. However, the Field
Office found that it is unclear that the water supply protections of
section 720(a)(2) of SMCRA and 30 CFR 817.41(j) can be implemented by
Utah in all cases. Therefore, the Field Office concluded that, if a
situation arises in which Utah's enforcement role as primary enforcer
does not appear to fully meet the water replacement requirements of
section 720(a)(2) of SMCRA, OSM must take direct Federal enforcement.
On this basis and the disposition of the comments received, the
Regional Director decides that initial enforcement of the underground
coal mine subsidence control and water replacement requirements in Utah
will occur through State enforcement and, if necessary, direct Federal
enforcement of the water replacement requirements of section 720(a)(2)
of SMCRA and 30 CFR 817.41(j).
If circumstances within Utah change significantly, the Regional
Director may reassess this decision. Formal reassessment of this
decision would be addressed by Federal Register notice.
Dated: July 19, 1995.
Russell F. Price,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 95-18441 Filed 7-26-95; 8:45 am]
BILLING CODE 4310-05-M
