[Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
[Proposed Rules]
[Pages 18046-18049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8753]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 938 and 920
Pennsylvania and Maryland Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Announcement of public comment period and opportunity for
public hearing.
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SUMMARY: OSM is requesting public comment that would be considered in
deciding how to implement in Pennsylvania and Maryland, underground
coal mine subsidence control and water replacement provisions of the
Surface Mining Control and Reclamation Act of 1977 (SMCRA), the
implementing Federal regulations, and/or the counterpart State
provisions. Recent amendments to 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. These provisions also require such
operations to promptly replace drinking, domestic, and residential
water supplies that have been adversely affected by underground coal
mining.
OSM must decide if the Pennsylvania and the Maryland regulatory
programs (hereinafter referred to as the ``Pennsylvania Program'' and
the ``Maryland Program'') currently have adequate counterpart
provisions in place to promptly implement the recent amendments to
SMCRA and the Federal regulations. After consultation with
[[Page 18047]] Pennsylvania and Maryland and consideration of public
comments, OSM will decide whether initial enforcement in Pennsylvania
and Maryland will be accomplished through the State program amendment
process or by State enforcement, by interim direct OSM enforcement, or
by joint State and OSM enforcement.
DATES: Written comments must be received by 4:00 p.m., E.D.T. on May
10, 1995. If requested, OSM will hold a public hearing on May 5, 1995
concerning how the underground coal mine subsidence control and water
replacement provisions of SMCRA and the implementing Federal
regulations, or the counterpart State provisions, should be implemented
in Pennsylvania and Maryland. Requests to speak at the hearing must be
received by 4:00 p.m., E.D.T. on April 25, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand-delivered to Robert J. Biggi, Director, Harrisburg
Field Office at the address listed below.
Copies of the applicable parts of the Pennsylvania and Maryland
State programs, SMCRA, the implementing Federal regulations,
information provided by Pennsylvania and Maryland concerning their
authority to implement State counterparts to SMCRA and the implementing
Federal regulations, a listing of any scheduled public hearings, and
all written comments received in response to this document will be
available for public review at the address listed below during normal
business hours, Monday through Friday, excluding holidays. Robert J.
Biggi, Director, Harrisburg Field Office, Office of Surface Mining
Reclamation and Enforcement, Harrisburg Transportation Center, Third
Floor, Suite 3C, 4th and Market Streets, Harrisburg, Pennsylvania
17101, Telephone: (717) 782-4036.
FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Harrisburg
Field Office, Telephone: (717) 782-4036.
SUPPLEMENTARY INFORMATION:
I. Background
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
to implement the performance standards of sections 720(a) (1) and (2)
of SMCRA (60 FR 16722-16751).
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.
30 CFR 843.25 provides that by July 31, 1995, OSM will decide, in
consultation with each State regulatory authority with an approved
program, how enforcement of the new requirements will be accomplished.
As discussed below, enforcement may be accomplished through the 30 CFR
Part 732 State program amendment process, or by State, OSM, or joint
State and OSM enforcement of the requirements. OSM will decide which of
the following enforcement approaches to pursue.
(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 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 [[Page 18048]] 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 item numbers (3) and (4) above, OSM would directly
enforce in total or in part its Federal statutory or 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 number (1) above, OSM could decide not to initiate
direct Federal enforcement and 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 enforce
the new definitions 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 30
CFR 701.5 for operations conducted after October 24, 1992.
C. Enforcement in Pennsylvania
By letter to Pennsylvania dated December 13, 1994, OSM requested
information from Pennsylvania that would help OSM decide which approach
to take in Pennsylvania to implement the new requirements of section
720(a) of SMCRA and the implementing Federal regulations
(Administrative Record No. PA 835.00). By letter dated January 24,
1995, Pennsylvania responded to this OSM request (Administrative record
No. PA 835.01).
Pennsylvania stated that 120 bituminous underground coal mines are
permitted and that 60 of those are currently producing coal. In the
anthracite field, there are approximately 115 permitted underground
mining operations of which 50 to 75 operations are currently producing
coal. Pennsylvania stated that Act 54, amending the Pennsylvania
Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) became
effective on August 21, 1994. This amendment to BMSLCA does address
water supply replacement and subsidence damage repair or compensation,
but certain provisions do not mirror the Federal Energy Policy Act of
1992 portions establishing Section 720 of SMCRA.
Specifically, Pennsylvania stated in the January 24, 1995, response
that BMSLCA does not include water replacement and repair or subsidence
damage in the following situations.
Water Supply Replacement
* Cases where water supplies were impacted between October 24,
1992, and August 21, 1994.
* Cases where affected water supplies are located in the anthracite
coal fields.
* Cases where landowners entered voluntary agreements allowing
their supplies to be impacted.
* Cases where impacts occurred more than three years after
completion of coal extraction.
* Cases where affected water sources are used to supply
agricultural irrigation systems constructed after August 20, 1994.
* Cases where the property owner failed to report the water supply
problem within two years of its occurrence.
* Cases where the mine operator was denied access to conduct a pre-
mining of post-mining survey of the water supply and no pre-mining
quality and quantity information is available.
* Cases where a mine operator purchased the property or compensated
the property owner rather than replace the supply.
Repair or Compensate for Subsidence Damage
* Cases where dwellings were constructed after April 27, 1966, and
damaged prior to August 21, 1994.
* Cases where dwellings constructed after August 21, 1994, are
damaged prior to the time when coverage commences under BMSLCA
(dwellings which are built after August 21, 1994, and between
permitting actions are not covered by repair/compensation requirements
until the next permit renewal).
* Cases where the mine operator was denied access to conduct a pre-
mining or post-mining survey of the damaged structure.
* Cases involving noncommercial buildings where the damaged
buildings were not used by the public, accessible to the public or used
for certain agriculture purposes.
The Pennsylvania Department of Environmental Resources (PADER)
states that it has authority to investigate complaints of structure
damage and water loss caused by underground mining operations conducted
after October 24, 1994. Limitations, as discussed above, provide
authority to provide repair or compensation for subsidence related
structural damage and water supply replacement for bituminous coal
field residents after August 21, 1994. Pennsylvania does not have the
authority to fully implement section 720(a), in the anthracite coal
field or for bituminous coal field for time period October 24, 1992
through August 21, 1994. Pennsylvania will require at least one year to
make the necessary statutory changes.
Pennsylvania has investigated 91 citizen complaints alleging
subsidence-related structure damage or water supply loss or
contamination as a result of underground mining operations conducted
after October 24, 1992. To date, Pennsylvania has completed review and
made final determination on 87 with 4 pending further study. PADER has
determined that 2 complaints regarding structural damage were unrelated
to underground mining and the remaining 19 were the result of
subsidence due to mining conducted after October 24, 1992. PADER
reports that investigations of 70 water supply complaints resulted in
finding that 60 were unrelated to underground mining conducted after
October 24, 1992 and 6 water supplies were determined to have been
affected by mining. Four water supply complaints are currently under
[[Page 18049]] review with no determination as to impacts from
underground mining.
D. Enforcement in Maryland
By letter to Maryland dated December 13, 1994, OSM requested
information from Maryland that would help OSM decide which approach to
take in Maryland to implement the new requirements of section 720(a) of
SMCRA and the implementing Federal regulations (Administrative Record
No. MD 570.0). By letter dated March 29, 1995, Maryland responded to
this OSM request (Administrative Record No. MD 570.1).
Maryland stated that four underground coal mines were active in
Maryland after October 24, 1992. Maryland indicated that existing State
program provisions at Maryland Natural Resources Article 7, Subtitle
5A, Sec. 7-5A-05.1, Sec. 7-5A-05.2 and COMAR 08.20.13.09B, 08.20.13.09C
are adequate State counterparts to section 720(a) of SMCRA and the
implementing Federal regulations. Maryland explained that it will
enforce these State program provisions in accordance with Maryland
Natural Resources Article 7 effective October 24, 1992. Maryland has
investigated eight citizen complaints alleging subsidence-caused
structural damage or water supply loss or contamination as a result of
underground mining operations conducted after October 24, 1992. To
date, Maryland has made determinations that the single structural
damage complaint was unrelated to subsidence and that two water supply
complaints were not impacted by the mining operations. In the five
other water supply complaints Maryland determined the water supplies
were impacted by underground mining and the mining company
satisfactorily replaced these supplies.
II. Public Comment Procedures
OSM is requesting public comment to assist OHM in making its
decision on which approach to use in Pennsylvania and Maryland to
implement the underground coal mine performance standards of section
720(a) of SMCRA, the implementing Federal regulations, and any
counterpart State provisions.
A. Written Comments
Written comments should be specific, pertain only to the issues
addressed in this notice, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under ``DATES'' or at locations other than the Harrisburg Field Office
will not necessarily be considered in OSM's final decision or included
in the Administrative Record.
B. Public Hearing
Persons wishing to speak at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
E.D.T. on April 25, 1995. The location and time of the hearing will be
arranged with those persons requesting the hearing. If no one requests
an opportunity to testify at the public hearing, the hearing will not
be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to speak have been heard. Persons in the audience who
have not been scheduled to speak, and who wish to do so, will be heard
following those who have been scheduled. The hearing will end after all
persons scheduled to speak and persons present in the audience who wish
to speak have been heard.
Any disabled individual who has need for a special accommodation to
attend a public hearing should contact the individual listed under FOR
FURTHER INFORMATION CONTACT.
C. Public Meeting.
If only a few persons request an opportunity to speak at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss recommendations on
how OSM and Pennsylvania and Maryland should implement the provisions
of section 720(a) of SMCRA, the implementing Federal regulations, and/
or the counterpart State provisions, may request a meeting by
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All
such meetings will be open to the public and, if possible, notices of
meetings will be posted at the locations listed under ADDRESSES. A
written summary of each meeting will be made a part of the
Administrative Record.
Dated: April 4, 1995.
David G. Simpson,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 95-8753 Filed 4-7-95; 8:45 am]
BILLING CODE 4310-05-M
