[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Proposed Rules]
[Pages 17736-17739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8635]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 914
Indiana 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 Indiana 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 Indiana regulatory program (hereinafter
referred to as the ``Indiana program'') currently has adequate
counterpart provisions in place to promptly implement the recent
amendments to SMCRA and the Federal regulations. After consultation
with Indiana and consideration of public comments, OSM will decide
whether initial enforcement in Indiana 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.S.T. on May 8,
1995. If requested, OSM will hold a public hearing on 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 Indiana.
Requests to speak at the hearing must be received by 4:00 p.m., E.S.T.
on April 24, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand-delivered to Roger W. Calhoun, Director, Indianapolis
Field Office at the address listed below.
Copies of the applicable parts of the Indiana program, SMCRA, the
implementing Federal regulations, information provided by Indiana
concerning its 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: Roger W. Calhoun, Director, Indianapolis Field Office, Office
of Surface Mining Reclamation and Enforcement, Minton-Capehart Federal
Building, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-
6166.
FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director,
Indianapolis Field Office, Telephone: (317) 226-6166.
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 [[Page 17737]] 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,
materials 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 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) and 817.121(c) (2) and (4), and
30 CFR 701.5 for operations conducted after October 24, 1992.
[[Page 17738]]
C. Enforcement in Indiana
By letter to Indiana dated December 13, 1994, OSM requested
information from Indiana that would help OSM decide which approach to
take in Indiana to implement the new requirements of section 720(a) of
SMCRA and the implementing Federal regulations (Administrative Record
No. IND-1428). By letter dated February [sic] 20, 1995, Indiana
responded to this OSM request (Administrative Record No. IND-1429) (the
letter was misdated; the correct date is January 20, 1995).
Indiana stated that six underground coal mines were active in
Indiana between October 24, 1992, and July 1, 1994. Indiana also stated
that Indiana statute IC 13-4.1-9-2.5 incorporates the substantive
language of section 720 of SMCRA. Indiana noted that IC 13-4.1-9-2.5's
requirements are expressly limited to operations conducted after June
30, 1994. Therefore, the Indiana Division of Reclamation (DOR) may not
require structural repair (or compensation) or water replacement under
the authority of IC 13-4.1-9-2.5 with respect to surface coal mining
operations conducted on or before June 30, 1994. However, Indiana
stated that pre-existing Indiana program provisions provide the DR with
sufficient authority to impose the Energy Policy Act of 1992
requirements with respect to underground mining operations conducted on
or before June 30, 1994.
With respect to structural damage caused by underground mine
subsidence, Indiana cited the following provisions of Indiana's
approved program as requiring the substantive equivalent of the Energy
Policy Act of 1992 provisions:
IC 13-4.1-9-1 concerning the surface effect of underground coal
mining operations. Based upon this broad grant of rulemaking authority,
Indiana stated, Indiana adopted 310 IAC 12-3-87 and 12-5-130 through
133, each of which pertain to the control of underground mine
subsidence and the protection of surface owners from the harms caused
therefrom.
310 IAC 12-3-87 concerning underground mining permit applications--
reclamation plan--subsidence control plan. This provision provides that
if the [operator's premining] survey shows structures or renewable
resource lands exist, or that subsidence could cause material damage to
or foreseeable use of the land, or if the director determines that this
damage could occur, the application shall include a subsidence control
plan which contains the following information:
A detailed description of the measures to be taken to mitigate the
effects of any material damage to foreseeable use of lands which may
occur, including one or more of the following as required by 310 IAC
12-5-132:
Restoration or rehabilitation of structures and features, including
approximate land-surface contours, to premining condition.
Replacement of structures destroyed by subsidence.
Purchase of structures prior to mining * * *
Purchase of noncancellable insurance policies payable to the
surface owner in the full amount of the possible material damage or
other comparable measures.
310 IAC 12-5-132 concerning underground mining--subsidence
control--surface owner protection. 310 IAC 12-5-132 provides that:
Each person who conducts underground mining activities shall use
all measures approved by the commission under 310 IAC 12-3-87 to * * *
mitigate the effect of any damage or reduction [in value] which may
occur.
Each person who conducts underground mining activities will
complete the following:
Compensate the owner of any surface structure in the full amount of
the diminution in value resulting from subsidence by purchase prior to
mining of a noncancellable premium prepaid insurance policy or other
means approved by the commission as assurance before mining begins that
payment will occur.
Indemnify every person with an interest in the surface for all
damages suffered as a result of the subsidence.
To the extent technologically feasible, fully restore the land to a
condition capable of maintaining reasonably foreseeable uses which it
could support before subsidence.
These provisions, Indiana stated, have been in operation in their
present form since June of 1990, and provide coverage for the period
between October 24, 1992, and June 30, 1994. Indiana concluded that
Indiana SMCRA is no less effective than the Federal SMCRA with respect
to structural repair and/or compensation caused by underground mine
subsidence.
With respect to water replacement, Indiana stated, such obligations
are set forth under 310 IAC 12-5-94 concerning underground mining--
hydrologic balance--water rights and replacement. The question of water
rights and water replacement obligations under 310 IAC 12-5-29
(hydrologic balance--water rights and replacement) was addressed by the
Indiana Supreme Court in Nat. Res. Comm'n v. AMAX (1994), Ind. 638
N.E.2d 418. The Indiana Supreme Court held that the DOR was authorized
under Indiana-SMCRA to mandate the replacement of water supplies
adversely affected by surface coal mining operations. Indiana also
stated that because the requirements of 310 IAC 12-5-94 are
substantively identical to the provision affirmed by the Indiana
Supreme Court, the result is identical: the DOR may require replacement
of water supplies adversely affected by underground coal mining
operations.
Indiana has received five citizen complaints alleging subsidence-
caused structural damage as a result of underground mining operations
conducted between October 24, 1992, and July 1, 1994. Indiana stated
that three of the five complaints were not formal complaints. Of the
two formal complaints, one involved no structural damage or water well
complaint and the DOR issued a notice of violation for not mining
according to plan. With the other formal complaint, the resolution
process followed by the coal company is being monitored by the DOR to
assure that appropriate mitigation measures are taken.
Indiana explained its enforcement procedures as follows:
Upon notification of subsidence related damages to structures and/
or water supply alleged as a result of underground mining operations,
an inspection of the area is conducted by the assigned reclamation
specialist. Notifications of such damage may come from affected
landowners, mine operators, industries in the area, or other sources.
If imminent danger is found to inhabitants of the area, the Director
shall suspend underground operations as required by 310 IAC 12-5-
133(e). The mine plan as required by 310 IAC 12-5-133(f) is then
examined by the operator and the Division specialists to determine
compliance with the approved plan. Specific complaints with respect to
the subsidence event are investigated on a case-by-case basis as
received. In the event that problems arise with respect to water
supplies as a result of the underground mining activities, the operator
must act to replace such supply as required by 310 IAC 12-5-94. In
addition, as required by 310 IAC 12-5-132, the operator is required to
``correct or compensate'' for damages which result from such
subsidence.
After consulting with the affected parties in the area, and the
operator, if the requirements of these sections are being met, the DOR
acts as a mediator [[Page 17739]] between the affected parties and
operator with respect to any problem which may arise. Enforcement
action may be taken in the event that certain of these regulations are
not followed.
II. Public Comment Procedures
OSM is requesting public comment to assist OSM in making its
decision on which approach to use in Indiana 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 Indianapolis 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.S.T. on April 24, 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 Indiana 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.
Richard J. Seibel,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 95-8635 Filed 4-6-95; 8:45 am]
BILLING CODE 4310-05-M
