Natural Resources, Oil, Gas and Mining; Coal

Section R645-103-200

Areas Designated by Act of Congress

Notice of Proposed Rule

(Amendment)

DAR File No.: 33670
Filed: 05/26/2010 12:58:03 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

This rule establishes procedures to determine whether proposed coal mining can be authorized in consideration of prohibitions in federal and state statutes. The rule is being changed at the request of the Office of Surface Mining to be as effective as federal regulation, in order to retain state primacy.

Summary of the rule or change:

This rule amendment provides clarifying text on when coal mining may not be conducted or may with the exceptions such as valid existing rights and existing operations, and clarifies the procedures for such determinations. These amendments are in accordance with Office of Surface Mining regulations.

State statutory or constitutional authorization for this rule:

• Section 40-10-6
• Subsection 40-10-24(4)

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget. While the amendment clarifies procedures for valid existing rights determinations, no measurable impact is expected to the state cost in such determinations.

local governments:

No local government costs or savings are anticipated. Local government is not impacted by this rule change.

small businesses:

There are no anticipated costs or savings to small businesses because coal mining in Utah normally is not conducted by a small business.

persons other than small businesses, businesses, or local governmental entities:

Persons other than small businesses, businesses, or local government entities are not anticipated to incur costs or savings. These regulations impact the Division and coal mining companies in Utah.

Compliance costs for affected persons:

Coal mine operators within Utah are regulated via the Title R645 rules. While the amendment clarifies procedures of the Division and the applicant for valid existing rights determinations, no measurable impact on compliance costs is expected for coal mine operators.

Comments by the department head on the fiscal impact the rule may have on businesses:

No measurable fiscal impact upon businesses is expected from this rule change.

Michael Styler, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Natural Resources
Oil, Gas and Mining; Coal
1594 W NORTH TEMPLE
SALT LAKE CITY, UT 84116-3154

Direct questions regarding this rule to:

• Steve Schneider at the above address, by phone at 801-538-5328, by FAX at 801-359-3940, or by Internet E-mail at [email protected]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

07/15/2010

Interested persons may attend a public hearing regarding this rule:

• 06/23/2010 09:00 AM, DNR, 1594 W North Temple, #1040, Salt Lake City, UT

This rule may become effective on:

07/28/2010

Authorized by:

John Baza, Director

R645. Natural Resources; Oil, Gas and Mining; Coal.

R645-103. Areas Unsuitable for Coal Mining and Reclamation Operations.

R645-103-200. Areas Designated by Act of Congress.

210. Scope. The rules in R645-103-200 establish the procedures to be used by the Division to determine whether a proposed coal mining and reclamation operation can be authorized in light of the mandatory prohibitions set forth in the Act and Federal Act.

220. Federal Lands. The authority to make determinations of unsuitability on federal lands is reserved to the Secretary pursuant to Section 523(a) of the Federal Act.

221. Valid [and] Existing Rights (VER). VER determinations on federal lands will be performed in a manner consistent with the terms of a cooperative agreement between the Secretary and Utah pursuant to section 523(c) of the Federal Act.

222. VER determinations on nonfederal lands which affect adjacent federal lands will be performed in a manner consistent with the terms of the cooperative agreement referenced in R645-103-221.

223. On federal lands within the boundaries of a national forest the Division will be responsible for coordination with the Secretaries of Interior and Agriculture, as appropriate, to ensure that mining is permissible under 30 CFR 761.11(b) and Section 522(e)(2) of the Federal Act.

224. Coal mining and reclamation operations may not be conducted on the following lands unless there are VER, as determined under R645-103-231.100, or qualify for the exception for existing operations under R645-103-225:

224.100. Any lands within the boundaries of the National Park System; the National Wildlife Refuge System; the National System of Trails; the National Wilderness Preservation System; the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act, 16 U.S.C. 1276(a), or study rivers or study river corridors established in any guidelines issued under that Act; or National Recreation Areas designated by Act of Congress;

224.200. Any Federal lands within a national forest. This prohibition does not apply if the Secretary finds that there are no significant recreational, timber, economic, or other values that may be incompatible with surface coal mining operations, and:

224.210. Any surface operations and impacts will be incident to an underground coal mine; or

224.220. With respect to lands that do not have significant forest cover within national forests west of the 100th meridian, the Secretary of Agriculture has determined that surface mining is in compliance with the Federal Act, the Multiple-Use Sustained Yield Act of 1960, 16 U.S.C. 528-531; the Federal Coal Leasing Amendments Act of 1975, 30 U.S.C. 181 et seq.; and the National Forest Management Act of 1976, 16 U.S.C. 1600 et seq;

224.300. Any lands where the operation would adversely affect any publicly owned park or any place in the National Register of Historic Places. This prohibition does not apply if, as provided in R645-103-236, the Division and the Federal, State, or local agency with jurisdiction over the park or place jointly approve the operation;

224.400. Within 100 feet, measured horizontally, of the outside right-of-way line of any public road. This prohibition does not apply:

224.410. Where a mine access or haul road joins a public road, or

224.420. When, as provided in R645-103-234, the Division (or the appropriate public road authority designated by the Division) allows the public road to be relocated or closed, or the area within the protected zone to be affected by the coal mining and reclamation operation, after:

224.421. Providing public notice and opportunity for a public hearing; and

224.422. Finding in writing that the interests of the affected public and landowners will be protected;

224.500. Within 300 feet, measured horizontally, of any occupied dwelling. This prohibition does not apply when:

224.510. The owner of the dwelling has provided a written waiver consenting to coal mining and reclamation operations within the protected zone, as provided in R645-103-235; or

224.520. The part of the operation to be located closer than 300 feet to the dwelling is an access or haul road that connects with an existing public road on the side of the public road opposite the dwelling;

224.600. Within 300 feet, measured horizontally, of any public building, school, church, community or institutional building, or public park; or

224.700. Within 100 feet, measured horizontally, of a cemetery. This prohibition does not apply if the cemetery is relocated in accordance with all applicable laws and regulations.

225. VER determinations for land are not required where an existing operation meets the requirements of 30 CFR 761.12.

230. Procedures.

231. Upon receipt of a n administratively complete application for a permit to conduct coal mining and reclamation operations, or an administratively complete application for a revision of the boundaries of a permit to conduct coal mining and reclamation operations, the Division will review the application to determine whether the proposed coal mining and reclamation [operations are limited or prohibited under 40-10-24(4) of the Act or 30 CFR 761.11(a) and (b) on the lands which would be disturbed by the proposed operations]operation would be located on any lands protected under R645-103-224.

231.100. The Division will follow 30 CFR 761.16 for determining state/federal responsibility for determinations, establishing application requirements, evaluation procedures and decision-making criteria for VER determinations, providing for public participation and notification of affected parties, and establishing requirements for the availability of records.

232. [Where the proposed operations would be located on any lands listed in Section 40-10-24(4)(a) and (d) or 30 CFR 761.11, the]The Division will reject [the application if the applicant has no valid existing rights for the area, or if the activity did not exist on August 3, 1977.]any portion of the application that would locate coal mining and reclamation operations on land protected under R645-103-224 unless:

232.100. The site qualifies for the exception for existing operations under R645-103-225;

232.200. A person has VER for the land, as determined under R645-103-231-100;

232.300. The applicant obtains a waiver or exception from the prohibitions of R645-103-224 in accordance with R645-103-237, R645-103-234, and R645-103-235; or

232.400. For lands protected by R645-103-224.300, both the Division and the agency with jurisdiction over the park or place jointly approve the proposed operation in accordance with R645-103-236.

233. If the Division is unable to determine whether the proposed activities are located within the boundaries of any of the lands listed in [40-10-24(4)(a) or 30 CFR 761.11(a) and (b)]R645-103-224.100 or [closer than the limits provided in 40-10-24(4)(d) of the Act, the]within the specified distance from a structure or feature listed in R645-103-224.600 or R645-103-224.700, the Division must request that the federal, Utah, or local governmental agency with jurisdiction over the protected land, structure, or feature verify the location. The Division will transmit a copy of the relevant portions of the permit application to the appropriate federal, Utah, or local government agency for a determination or clarification of the relevant boundaries or distances, with a notice to the appropriate agency that it has 30 days from receipt of the request in which to respond. [The National Park Service or the U.S. Fish and Wildlife Service will be notified of any request for a determination of valid existing rights pertaining to areas within the boundaries of areas under their jurisdiction and will have 30 days from receipt of the notification in which to respond.] The Division, upon request by the appropriate agency, will grant an extension to the 30-day period of an additional 30 days. However, the Division's request for location verification must specify that the Division will not necessarily consider a response received after the 30-day period or the extended period granted. If no response is received within the 30-day period, or within the extended period granted, the Division may make the necessary determination based on the information it has available.

234. [Where the coal mining and reclamation operation is proposed to be conducted within 100 feet, measured horizontally, of the outside right-of-way line of any public road (except as provided in 40-10-24(4)(c), or where the applicant proposes to relocate or close any public road, the Division or public road authority designated by the Division will:

234.100. Require the applicant to obtain necessary approvals from the authority with the jurisdiction over the public road;

234.200. Provide an opportunity for a public hearing in the locality of the proposed coal mining and reclamation operation for the purpose of determining whether the interests of the public and affected landowners will be protected;

234.300. If a public hearing is requested, provide appropriate advance notice of the public hearing, to be published in a newspaper of general circulation in the affected locale at least two weeks prior to the hearing; and

234.400. Make a written finding based upon information received at the public hearing within 30 days after completion of the hearing, or after any public comment period ends if no hearing is held, as to whether the interests of the public and affected landowners will be protected from the proposed coal mining and reclamation operation. No mining will be allowed within 100 feet of the outside right-of-way line of a road, nor may a road be relocated or closed, unless the Division or public road authority determines that the interests of the public and affected landowners will be protected.]Procedures for relocating or closing a public road or waiving the prohibition on coal mining and reclamation operations within the buffer zone of a public road.

234.100. This section does not apply to:

234.110. Lands for which a person has VER, as determined under R645-103-231.100;

234.120. Lands within the scope of the exception for existing operations in R645-103-225; or

234.130 Access or haul roads that join a public road, as described in R645-103-224.410.

234.200 The applicant must obtain any necessary approvals from the authority with jurisdiction over the road if the applicant proposes to:

234.210. Relocate a public road;

234.220. Close a public road; or

234.230. Conduct coal mining and reclamation operations within 100 feet, measured horizontally, of the outside right-of-way line of a public road.

234.300. Before approving an action proposed under R645-103-234.200, the Division, or a public road authority that it designates, must determine that the interests of the public and affected landowners will be protected. Before making this determination, the Division must:

234.310. Provide a public comment period and opportunity to request a public hearing in the locality of the proposed operation;

234.320. If a public hearing is requested, publish appropriate advance notice at least two weeks before the hearing in a newspaper of general circulation in the affected locality; and

234.330. Based upon information received from the public, make a written finding as to whether the interests of the public and affected landowners will be protected. If a hearing was held, the Division must make this finding within 30 days after the hearing. If no hearing was held, the Division must make this finding within 30 days after the end of the public comment period.

235. Procedures for waiving the prohibition on coal mining and reclamation operations within the buffer zone of an occupied dwelling.

235.100. This section does not apply to:

235.110. Lands for which a person has VER, as determined under R645-103-231.100;

235.120. Lands within the scope of the exception for existing operations in R645-103-225; or

235.130. Access or haul roads that connect with an existing public road on the side of the public road opposite the dwelling, as provided in R645-103-224.520.

235.200. Where the proposed coal mining and reclamation operations would be conducted within 300 feet, measured horizontally, of any occupied dwelling, the permit applicant will submit with the application a written waiver by lease, deed, or other conveyance from the owner of the dwelling, clarifying that the owner and signatory had the legal right to deny mining and knowingly waived that right. The waiver will act as consent to [such activities]coal mining and reclamation operations within a closer distance of the dwelling as specified.

235.[100]300. Where the applicant for a permit has obtained a valid waiver prior to August 3, 1977, from the owner of an occupied dwelling to [mine]conduct operations within 300 feet of such dwelling, a new waiver will not be required.

235.[200]400. Where the applicant for a permit had obtained a valid waiver from the owner of an occupied dwelling, that waiver will remain effective against subsequent purchasers who had actual or constructive knowledge of the existing waiver at the time of purchase.

235.[300]500. A subsequent purchaser will be deemed to have constructive knowledge if the waiver has been properly filed in public property records pursuant to Utah laws, or if [the] coal mining and reclamation operation s [has proceeded to within]have entered the 300-foot [limit prior to]zone before the date of purchase.

236. Where the Division determines that the proposed coal mining and reclamation operation will adversely affect any publicly owned park or any place included in the National Register of Historic Places, the Division will transmit to the federal, Utah, or local agency with jurisdiction over the publicly owned park or National Register place, a copy of applicable parts of the permit application, together with a request for that agency's approval or disapproval of the activity, and a notice to that agency that it has 30 days from receipt of the request within which to respond and that failure to interpose a timely objection will constitute approval. The Division, upon request by the appropriate agency, may grant an extension to the 30-day period of an additional 30 days. Failure to interpose an objection within 30 days, or the extended period granted, will constitute an approval of the proposed permit. A permit for the coal mining and reclamation operation will not be issued unless jointly approved by all agencies. The procedures for joint approval will not apply to lands for which a person has VER as determined under R645-103-231.100 and lands within the scope of the exception for existing operations in R645-103-225.

237. If the applicant intends to rely upon the exception provided in R645-103-224.200 to conduct coal mining and reclamation operations on federal lands within a national forest, the applicant must request that the Division obtain the Secretarial findings required by R645-103-224.200. The applicant may submit a request to the Division before preparing and submitting an application for a permit or boundary revision on Federal lands in national forests. The applicant must explain how the proposed operation would not damage the values listed in the definition of "significant recreational, timber, economic, or other values incompatible with surface coal mining operations" in 30 CFR 761.5. The applicant must include a map and sufficient information about the nature of the proposed operation for the Secretary to make adequately documented findings. The Division may request that the permit applicant provide additional information that the Division determines is necessary in order to make the required findings. When a proposed coal mining and reclamation operation or proposed boundary revision for an existing coal mining and reclamation operation includes federal lands within a national forest, the Division may not issue the permit or approve the boundary revision before the Secretary makes the findings required by R645-103-224.200.

[237]238. If the Division determines that the proposed coal mining and reclamation operation is not prohibited under Section 40-10-24 of the Act and R645-103-200, it may nevertheless, pursuant to appropriate petitions, designate such lands as unsuitable for all or certain types of coal mining and reclamation operations pursuant to R645-103-300 and R645-103-400.

[238]239. A determination by the Division that a person holds or does not hold valid existing rights [or that coal mining and reclamation operations did or did not exist on the date of enactment] will be subject to administrative and judicial review under R645-300-200.

240. Interpretative Rule. As set forth in the interpretative rule found at 30 CFR 761.200, subsidence due to underground coal mining is not included in the definition of surface coal mining operations under Section 701(28) of the Federal Act and Subsection 40-10-3(20) of the Act and therefore is not prohibited in areas protected under Section 522(e) of the Federal Act.

 

KEY: reclamation, coal mines

Date of Enactment or Last Substantive Amendment: [ 1994 ] 2010

Notice of Continuation: March 7, 2007

Authorizing, and Implemented or Interpreted Law: 40-10-1 et seq.