[Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
[Proposed Rules]
[Pages 18044-18046]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8754]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 901 and 924
Alabama and Mississippi Regulatory Programs
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Announcement of public comment period and opportunity for
public hearing.
-----------------------------------------------------------------------
SUMMARY: OSM is requesting public comment that would be considered in
deciding how to implement in Alabama and Mississippi 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 Alabama and Mississippi's regulatory
programs (hereinafter referred to as the ``Alabama program'' and
``Mississippi program'') currently have adequate counterpart provisions
in place to promptly implement the recent amendments to SMCRA and the
Federal regulations. After consultation with Alabama and Mississippi
and consideration of public comments, OSM will decide whether initial
enforcement in Alabama and Mississippi 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., C.S.T. on April
30, 1995. If requested, OSM will hold a public hearing on April 25,
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 Alabama and Mississippi. Requests to speak at the hearing must be
received by 4:00 p.m., C.S.T. on April 15, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand-delivered to Jesse Jackson, Jr., Director, Birmingham
Field Office at the address listed below. Office of Surface Mining, 135
Gemini Circle, Suite 215, Birmingham, Alabama 35209.
Copies of the applicable parts of the Alabama and Mississippi
programs, SMCRA, the implementing Federal regulations, information
provided by Alabama and Mississippi 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. Jesse
Jackson, Jr., Director, Birmingham Field Office, Office of Surface
Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215,
Birmingham, Alabama 35209, Telephone: (205) 290-7282.
FOR FURTHER INFORMATION CONTACT:
Jesse Jackson, Jr., Director, Birmingham Field Office, Telephone: (205)
290-7282.
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 [[Page 18045]] 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).
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 29, 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 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) and
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 [[Page 18046]] for operations conducted after October 24,
1992.
C. Enforcement in Alabama
By letter to Alabama dated December 14, 1994, OSM requested
information from Alabama that would help OSM decide which approach to
take in Alabama to implement the new requirements of section 720(a) of
SMCRA and the implementing Federal regulations (Administrative Record
No. AL-520). By letter dated January 1, 1995, Alabama responded to this
OSM request (Administrative Record No. AL-521).
Alabama stated that ten underground coal mines were active in
Alabama after October 24, 1992. Alabama stated that the Alabama program
does not fully authorize enforcement of the requirements of section
720(a) of SMCRA and the implementing Federal regulations. Alabama's
regulations are silent on the issue of replacement of water supplies
damaged by subsidence but do contain a ``to the extent required by
State law'' limitation on repair of material damage to structures.
Alabama has not determined whether a change to the State Act is
necessary to implement regulation change which would be required under
the Energy Policy Act (EPACT). Further analysis will be necessary by
the State legal staff before a determination can be made of the need
for statutory revisions.
Alabama has assumed since the passage of EPACT that the retroactive
enforcement of its provisions by Alabama would be possible until
regulatory changes can be made due to the proposal to supersede State
program provisions. Alabama has in fact adopted the position that since
the effective date of EPACT they have had enforcement authority of its
provisions.
Since October 24, 1992, Alabama has had only one citizen complaint
where alleged damage to structures from subsidence has existed. This
complaint covered a church and several houses. No complaints have been
received alleging damage to water supplies due to subsidence.
D. Enforcement in Mississippi
By letter to Mississippi dated December 14 1994, OSM requested
information from Mississippi that would help OSM decide which approach
to take in Mississippi to implement the new requirements of section
720(a) of SMCRA and the implementing Federal regulations
(Administration Record No. MS-328). Mississippi has not responded to
the December 14, 1994, letter requesting information on underground
coal mines.
Mississippi has had no surface nor underground coal mining
operations since October 24, 1992. At the present time, Mississippi is
in the process of completely revising its approved regulatory program.
II. Public Comment Procedures
OSM is requesting public comment to assist OSM in making its
decision on which approach to use in Alabama and Mississippi 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 Birmingham 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 p.m., C.S.T.
on April 15, 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 Alabama and Mississippi 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. 95-8754 Filed 4-7-95; 8:45 am]
BILLING CODE 4310-05-M
