Colorado, New Mexico, and Utah Regulatory Programs

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