[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