February 28, 1997

Ms. Kathrine L. Henry
Acting Director
Office of Surface Mining
Department of the Interior
Washington, D.C. 20240

RE: Comments on Draft Ten-Day Notice Directive

Dear Ms. Henry:

The Reclamation Committee of the Western Interstate Energy Board believes that the draft Ten-Day Notice directive is a necessary step forward in the effective administration of the Surface Mining Control and Reclamation Act. However, as drafted it still allows for a greater degree of potential federal intervention than is necessary or perhaps even statutorily authorized. Mature state programs are in place and operating effectively as contemplated by Congress. Given this, our recognition of true state primacy should be reflected in the TDN directive similar to the language in previous drafts concerning permit defects and the handling of citizen complaints. We offer two suggestions to strengthen the draft.

(1) Include the alternate language suggested in the January 31, 1997 letter to Dennis Hunter (OSM) from Susan McCannon (CO) (copy attached); and

(2) Adopt the language governing citizen complaints proposed under 6(d)(2) through (4) of the September 12, 1995 draft of INE-35.

The citizen complaint language in the September 12 draft provided that:

6(d)(2) Upon receipt of a citizen complaint filed with OSM that does not allege an imminent danger or harm, the Field Office shall promptly contact the citizen and SRA [State Regulatory Authority] to obtain any additional details and to arrange for the possibility of a joint inspection.

6(d)(3) If the complaint has not been previously investigated by the SRA, the SRA will be given the option of conducting a joint inspection with the Field Office and the complainant or addressing the complaint through a TDN.

6(d)(4) If the complaint has previously been investigated by the SRA, the Field Office will conduct an immediate inspection with the complainant providing the SRA the opportunity to attend. If as a result of this inspection the Field Office has reason to believe a violation of the State program exists, the Field Office will issue a TDN."

A workable Ten-Day Notice directive is critical if we are to effectively sort out the respective responsibilities of state regulatory authorities and OSM under current law. As mentioned above this draft is a step forward, however, more work should be done. The western states stand ready to work with your office through any appropriate forum to improve both state and federal programs and further the goals of SMCRA.

Sincerely,

Michael Long, Chairman
Reclamation Committee

cc: Dennis Hunter (OSM)
Rich Chancellor (WY DEQ)
Jim Carter (UT DNR)
Kathy Garland (NM EMNRD)
Steve Welch (MT DEQ)