Utah Regulatory Program

<RULE> DEPARTMENT OF THE INTERIOR <SUBAGY>Office of Surface Mining Reclamation and Enforcement</SUBAGY> <CFR>30 CFR Part 944</CFR> <DEPDOC>[SATS No. UT-048-FOR; Docket ID No. OSM-2012-0011; S1D1S SS08011000 SX064A000 245S180110; S2D2S SS08011000 SX064A000 24XS501520]</DEPDOC> <SUBJECT>Utah Regulatory Program</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> Office of Surface Mining Reclamation and Enforcement, Interior. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are not approving the State of Utah's proposed amendment to the Utah regulatory program (“the Utah program”) under the Surface Mining Control and Reclamation Act of 1977 (“SMCRA” or “the Act”). In May of 2011, an environmental advocacy group notified OSMRE that the Utah legislature modified its Judicial Code of the Utah Code Annotated by adding a new section that requires plaintiffs who seek an administrative stay or preliminary injunction in an environmental action to first post a surety bond or cash equivalent. After determining that the legislative change would affect the implementation of the Utah program, OSMRE notified the Utah Division of Oil, Gas and Mining (“DOGM” or “the Division”) that the changes to the State law must be submitted as a proposed Utah program amendment. DOGM subsequently submitted this amendment proposing to incorporate legislative changes made to the Utah program. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective September 16, 2024. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Howard E. Strand, Manager, Denver Field Branch, Office of Surface Mining Reclamation and Enforcement, One Denver Federal Center Building 41, Lakewood, Colorado 80225-0065. Telephone: (303) 236-2931. Email: <E T="03">hstrand@osmre.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <EXTRACT> <FP SOURCE="FP-2">I. Background on the Utah Program</FP> <FP SOURCE="FP-2">II. Submission of the Amendment</FP> <FP SOURCE="FP-2">III. OSMRE's Findings</FP> <FP SOURCE="FP-2">IV. Summary and Disposition of Comments</FP> <FP SOURCE="FP-2">V. OSMRE's Decision</FP> <FP SOURCE="FP-2">VI. Statutory and Executive Order Reviews</FP> </EXTRACT> <HD SOURCE="HD1">I. Background on the Utah Program</HD> Subject to OSMRE's oversight, sec. 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Utah program on January 21, 1981. You can find background information on the Utah program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Utah program in the January 21, 1981, <E T="04">Federal Register</E> (46 FR 5899). You can also find later actions concerning Utah's program and program amendments at 30 CFR 944.15, 944.16, and 944.30. <HD SOURCE="HD1">II. Submission of the Amendment</HD> The Governor of Utah signed H.B. 399 into law on March 21, 2011. On May 16, 2011, OSMRE received a letter from an environmental advocacy group notifying the agency of Utah's legislative changes under H.B. 399 (Administrative Record No. OSM-2012-0011-0010). That letter asserted that H.B. 399 resulted in changes to Utah law that required OSMRE's review and approval through the State program amendment process under 30 CFR part 732 before such legislative changes could become an effective part of Utah's program. In response to the citizen letter, OSMRE, in a letter dated August 8, 2011, requested that DOGM clarify whether the enactment of H.B. 399 resulted in a change to the Utah program (Administrative Record No. OSM-2012-0011-0005). On October 31, 2011, DOGM provided a response to OSMRE's request. In its response, DOGM explained that H.B. 399 modified title 78 of the Utah Judicial Code (Administrative Record No. OSM-2012-0011-0006). DOGM's letter also stated its uncertainty as to whether the enactment of H.B. 399 represented a change in State law approved as part of the Utah program, modified the rights of any party for judicial review in a manner that would conflict with the requirements of 30 CFR 732.15, or was inconsistent with the Federal law (Administrative Record No. OSM-2012-0011-0006). In a letter dated February 24, 2012, OSMRE determined that a change of condition had occurred under 30 CFR 732.17(e)(2); therefore, OSMRE required DOGM to submit the legislative changes as a proposed program amendment pursuant to 30 CFR 732.17(f) (Administrative Record No. OSM-2012-0011-0007). DOGM submitted the language of H.B. 399 as a State program amendment on April 18, 2012 (Administrative Record No. OSM-2012-0011-0003). We announced receipt of the proposed amendment in the June 12, 2012, <E T="04">Federal Register</E> (77 FR 34892). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the amendment (Administrative Record No. OSM-2012-0011-0001). We did not hold a public hearing or meeting because one was not requested. The public comment period ended on July 12, 2012. We received three public comments and one comment from a Federal agency. <HD SOURCE="HD1">III. OSMRE's Findings</HD> The following are the findings we made concerning the proposed amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. As described below, we are not approving the amendment. DOGM's proposed amendment seeks approval to apply the terms of H.B. 399 under Utah's Program. H.B. 399 modified, and was codified under, title 78 of the Utah Judicial Code, Utah Code Ann. sec. 78B-5-828, and applies to environmental actions. “Environmental action” is defined as a cause of action filed on or after May 10, 2011, that seeks judicial review of a final agency action to issue a permit. Utah Code Ann. sec. 78B-5-828(b). This provision specifically applies to permits issued by the Department of Transportation, the School and Institutional Trust Lands Administration, or the Department of Natural Resources (“DNR”), which includes DOGM's coal permitting actions issued pursuant to Utah's program. Utah Code Ann. sec. 78B-5-828(b)(ii)(A)-(C). Under the proposed amendment incorporating the terms of H.B. 399, a court or agency may not grant a plaintiff's request for temporary relief (administrative stay or preliminary injunction) related to a challenged State environmental permitting decision until the plaintiff posts a surety bond or cash equivalent (herein referred to as a bond or environmental litigation bond). Utah Code Ann. sec. 78B-5-828(3). This bond would be imposed in an amount that either the reviewing agency or court deems sufficient to compensate for damages the defendant may sustain as a result of a stay or injunction later found to have been unwarranted. Utah Code Ann. sec. 78B-5-828(3)(a). The bond is required to be written by a surety licensed to do business within the State and must be made payable to each defendant in the event the plaintiff does not prevail on the merits of the environmental action. Utah Code Ann. sec. 78B-5-828(3)(b)-(c) and (5). A reviewing agency or court decision refusing to require the posting of a bond is immediately appealable. Utah Code Ann. sec. 78B-5-828(6). While the changes outlined in H.B. 399 (Utah Code Ann. sec. 78B-5-828) apply to multiple State agencies, this final rule pertains only to the application of Utah Code Ann. sec. 78B-5-828 to DOGM's coal permitting actions issued pursuant to the approved Utah program under SMCRA. Utah's program consists of the Utah Coal Mining and Reclamation Act, Utah Code Ann. sec. 40-10-1 through 40-10-31, and the Utah Administrative Code rules, R645-100 through -403. While DOGM's submission does not amend the text of the already approved Utah program, application of Utah Code Ann. sec. 78B-5-828 would markedly alter implementation of the Utah program and render the program inconsistent with, and less stringent and effective than, SMCRA and Federal regulations. Both DOGM, which is responsible for administering the Utah coal program under SMCRA, and the Board of Oil, Gas and Mining (“the Board”), which is an administrative body with rulemaking and adjudicatory responsibilities under Utah's coal program, are entities within DNR and, therefore, are subject to the environmental litigation bond requirement. SMCRA sec. 503 provides that a State may assume primary responsibility to regulate coal mining and reclamation operations within its State borders. To obtain and maintain primacy under 30 CFR 730.5 and 732.15(a), a State regulatory authority must submit a State program, or proposed amendments thereto, that contain requirements that are consistent with, and no less stringent and effective than, SMCRA and Federal regulations. As the proposed language from H.B. 399 applies to administrative stays issued by a State agency and preliminary injunctions granted by a court, SMCRA requires that Utah's program must provide, at minimum, the same opportunities for judicial review and citizen participation that are available under SMCRA and the Federal regulations. The approved Utah program is similar to SMCRA and the Federal regulations regarding the available opportunities to seek temporary relief during an administrative hearing or proceeding. After a permit is issued, the Utah program, at Utah Code Ann. sec. 40-10-14(4) and R645-300-212, provides that the Board may grant temporary relief it deems appropriate pending fi ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 32k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━