File No. 33670
This rule was published in the June 15, 2010, issue (Vol. 2010, No. 12) of the Utah State Bulletin.
Natural Resources, Oil, Gas and Mining; Coal
Areas Designated by Act of Congress
Notice of Proposed Rule
DAR File No.: 33670
Filed: 05/26/2010 12:58:03 PM
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.
No local government costs or savings are anticipated. Local government is not impacted by this rule change.
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@example.com
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:
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:
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 the Federal Act.
231. Upon receipt of a
complete application for a permit to
conduct coal mining and reclamation operations,
the Division will review the application to
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].
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] 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,
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)] or [ closer than the limits provided in 40-10-24(4)(d) of the
Act, 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.
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
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
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.]
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] within a closer
distance of the dwelling as specified.
100]. 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] within 300 feet of such dwelling, a new
waiver will not be required.
200]. 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
300]. 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
[ has proceeded to within] the 300-foot [ limit prior to] 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.
237]. 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]. 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.
KEY: reclamation, coal mines
Date of Enactment or Last Substantive Amendment: [
Notice of Continuation: March 7, 2007
Authorizing, and Implemented or Interpreted Law: 40-10-1 et seq.
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For questions regarding the content or application of this rule, please contact Steve Schneider at the above address, by phone at 801-538-5328, by FAX at 801-359-3940, or by Internet E-mail at firstname.lastname@example.org.