[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Proposed Rules]
[Pages 17495-17498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8467]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 902, 926, 934, and 950
Alaska, Montana, North Dakota, and Wyoming Regulatory Programs
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 Alaska, Montana, North Dakota, and Wyoming
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 Alaska, Montana, North Dakota, and Wyoming
regulatory programs (hereinafter referred to as the ``Alaska, Montana,
North Dakota, and Wyoming programs'') currently have adequate
counterpart provisions in place to promptly implement the recent
amendments to SMCRA and the Federal regulations. After consultation
with Alaska, Montana, North Dakota, and Wyoming and consideration of
public comments, [[Page 17496]] OSM will decide whether initial
enforcement in Alaska, Montana, North Dakota, and Wyoming 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., m.d.t. on May 8,
1995. If requested, OSM will hold a public hearing on May 1, 1995,
concerning how the underground coal mine subsistence control and water
replacement provisions of SMCRA and the implementing Federal
regulations, or the counterpart State provisions, should be implemented
in Alaska, Montana, North Dakota, and Wyoming. Requests to speak at the
hearing must be received by 4:00 p.m., m.d.t. on April 21, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand-delivered to Guy Padgett, Director, Casper Field
Office at the address listed below.
Copies of the applicable parts of the Alaska, Montana, North
Dakota, and Wyoming programs, SMCRA, the implementing Federal
regulations, information provided by Alaska, Montana, North Dakota, and
Wyoming 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.
Guy Padgett, Director, Office of Surface Mining Reclamation and
Enforcement, Casper Field Office, 100 E ``B'' Street, Room 2128,
Casper, Wyoming 82601, Telephone: (307) 261-5776.
FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Director, Casper Field Office, Telephone: (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Energy Policy Act
Section 2504 of the Energy Policy Act of 1992, Public Law 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 than October 24, 1992, the State would
[[Page 17497]] 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 Alaska
By letter to Alaska dated December 15, 1994, OSM requested
information from Alaska that would help OSM decide which approach to
take in Alaska to implement the requirements of section 720(a) of
SMCRA, the implementing Federal regulations, and/or the counterpart
Alaska program provisions (Administrative Record No. AK-F-01). By
letter dated January 27, 1995, Alaska responded to OSM's request
(Administrative Record No. AK-F-02).
Alaska stated that no underground coal mines were operating in
Alaska after October 24, 1992.
Alaska stated that its program does not contain or authorize
enforcement of the structural damage repair and water supply
replacement requirements of section 720(a) of SMCRA. To be no less
stringent than SMCRA, Alaska indicated that it would have to amend
section 27.21.220 of the Alaska Surface Coal Mining Control and
Reclamation Act to add subsection (c) to require prompt repair or
compensation for material damage resulting subsidence, and prompt
replacement of water supplies affected by underground coal mining
operations. It indicated that it realistically believed that this
statutory change could be made in the spring of 1996.
Alaska concluded that it did not believe that it has the statutory
authority to investigate complaints of structural damage or water loss
caused by under coal mining operations after October 24, 1992.
D. Enforcement in Montana
By letter to Montana dated December 15, 1994, OSM requested
information from Montana that would help OSM decide which approach to
take in Montana to implement the requirements of section 720(a) of
SMCRA, the implementing Federal regulations, and/or the counterpart
Montana program provisions (Administrative Record No. MT-13-01). By
letter dated March 6, 1995, Montana responded to OSM's request
(Administrative Record No. MT-13-02).
Montana stated that one underground coal mines was active in
Montana after October 24, 1992. Montana stated that its program does
not fully authorize enforcement of the structural repair and water
replacement requirements of section 720(a) of SMCRA and the
implementing Federal regulations.
Specifically, Montana indicated that (1) Administrative Rules of
Montana 26.4.911(5), which address compensation for structural damage
resulting from subsidence, are not clearly authorized by the subsidence
prevention provisions of section 82-4-231(10)(f) of the Montana Strip
and Underground Mine Reclamation Act (MSUMRA); (2) section 82-4-253(2)
of MSUMRA excepts water derived from ``a subterranean stream having a
permanent, distinct, and known channel'' from the requirement for
underground coal miners to promptly replace drinking, domestic, or
residential water supplies affected underground coal mining, and (3)
the procedural requirements of section 82-4-253(2) of MSUMRA would not,
in Montana's opinion, result in ``prompt'' replacement of water
supplies adversely affected by underground coal mining.
Montana has stated that statutory changes to address these issues
will need to be sought in the next legislative session in January 1997,
and subsequent rule changes would follow adoption of statute changes.
OSM has determined that Montana has not received or investigated any
citizen complaints alleging subsidence-related structural damage or
water supply loss or contamination as a result of underground mining
operations conducted after October 24, 1992.
E. Enforcement in North Dakota
By letter to North Dakota dated December 15, 1994, OSM requested
information from North Dakota that would help OSM decide which approach
to take in North Dakota to implement the requirements of section 720(a)
of SMCRA, the implementing Federal regulations, and/or the counterpart
North Dakota program provisions (Administrative Record No. ND-W-01). By
letter dated December 21, 1994, North Dakota responded to OSM's request
(Administrative Record No. ND-W-02).
North Dakota stated that no underground coal mines were operating
in North Dakota after October 24, 1992. North Dakota's regulatory
program does not allow underground mining at the present time. In the
event that North Dakota received an application for underground mining,
North Dakota would have to revise its program to incorporate
counterpart provisions to section 720(a) of SMCRA and the implementing
Federal regulations.
F. Enforcement in Wyoming
By letter to Wyoming dated December 15, 1994, OSM requested
information from Wyoming that would help OSM decide which approach to
take in Wyoming to implement the requirements of section 720(a) of
SMCRA, the implementing Federal [[Page 17498]] regulations, and/or the
counterpart Wyoming program provisions (Administrative Record No. WY-
29-01). By letter dated January 19, 1995, Wyoming responded to OSM's
request (Administrative Record No. WY-29-02).
Wyoming stated that three underground coal mines were active in
Wyoming after October 24, 1992. Wyoming indicated that existing State
program provision at Wyoming Statutes 35-11-102 (policy and purpose);
35-11-406 (permit applications); 35-11-416 (surface owner protection);
and 35-11-428 (in situ mining permit applications); and Wyoming Coal
Rules and Regulations at chapter VI, section 2 (general environmental
performance standards); chapter VII, sections 1 through 4 (underground
mining permit applications, environmental protection performance
standards, public notice, and surface owner protection); and chapter
XVIII, section 3 (in situ mining permit applications) are adequate
State counterparts to section 720(a) of SMCRA and the implementing
Federal regulations.
Wyoming explained that it will enforce these State program
provisions in accordance with the enforcement provisions that were in
effect October 24, 1992. Wyoming has investigated one citizen complaint
alleging subsidence-caused structural damage or water supply loss or
contamination as a result of underground mining operations conducted
after October 24, 1992. This complaint concerned subsidence damage to a
reclaimed reservoir. This is a unique situation in that the alleged
damage occurred within the permit area of an adjacent surface coal
mine. The two mine operators have mutually agreed upon corrective
measures and have not requested the State of Wyoming to intervene.
II. Public Comment Procedures
OSM is requesting public comment to assist OSM in making its
decision on which approach to use in Alaska, Montana, North Dakota, and
Wyoming 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 Casper 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.,
m.d.t. on April 21, 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 Alaska, Montana, North Dakota, and Wyoming 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: March 31, 1995.
Russell F. Price,
Acting Assistant Director, Western Support Center.
[FR Doc. 95-8467 Filed 4-5-95; 8:45 am]
BILLING CODE 4310-05-M
