[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Proposed Rules]
[Pages 17741-17743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8636]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 935
Ohio 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 Ohio 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 Ohio regulatory program (hereinafter
referred to as the ``Ohio program'') currently has adequate counterpart
provisions in place to promptly implement the recent amendments to
SMCRA and the Federal regulations. After consultation with Ohio and
consideration of public comments, OSM will decide whether initial
enforcement in Ohio 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. May 8,
1995. If requested, OSM will hold a public hearing on May 2, 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 Ohio. Requests to speak at the hearing must be
[[Page 17742]] received by 4:00 p.m., E.D.T. on April 24, 1995.
ADDRESSES: Written comments and requests to speak at the hearing should
be mailed or hand-delivered to Robert H. Mooney, Acting Director,
Columbus Field Office at the address listed below.
Copies of the applicable parts of the Ohio program SMCRA, the
implementing Federal regulations, information provided by Ohio
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: Robert H. Mooney, Acting Director, Columbus Field Office,
Office of Surface Mining Reclamation and Enforcement, Eastland
Professional Plaza, 4480 Refugee Road, 2nd Floor, Columbus, Ohio 43232,
Telephone: 614-866-0578
FOR FURTHER INFORMATION CONTACT: Robert H. Mooney, Acting Director,
Columbus Field Office, Telephone: 614-866-0578
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 damage structures as a result of subsidence. Section
702(a)(2) requires prompt replacement of certain identified water
supplies if those supplies have been adversely affected by underground
coal mining operations.
These provisions require prompt repair or compensation for damage
to structure, 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 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 (b) above, OSM would directly
enforce [[Page 17743]] 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 under ground 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 Ohio
By letter to Ohio dated December 15, 1994, OSM requested
information from Ohio that would help OSM decide which approach to take
in Ohio to implement the new requirements of section 720(a) of SMCRA
and the implementing Federal regulations (Administrative Record No. OH-
2073). By letter dated January 18, 1995, Ohio responded to his OSM
request (Administrative Record No. OH-2085).
Ohio provided a list of permitted underground coal mining
operations. There are currently eight underground coal mines that are
producing coal. The number of coal producing underground coal mines in
Ohio has been less than fifteen at any given time since October 24,
1992. Ohio indicated that existing State program provisions at the Ohio
Revised Code section 1513.152 and the Ohio Administrative Code sections
1501:13-1-02(S); 1501:13-9-04(P); and 1501:13-12-03(C), (D), (E), (F),
(H), (I) are adequate State counterparts to section 720 of SMCRA and
the implementing Federal regulations. Ohio explained that it has
enforced these State program provisions requiring replacement of water
supplies impacted by underground mining operations since 1977 and
enforced State program provisions requiring repair or compensation for
subsidence related structural damage since 1988. Ohio has investigated
26 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, Ohio has made a
determination on six of the complaints that water loss was not mining
related and on six of the complaints that water loss was mining
related. Fourteen complaints are still being investigated. Twelve of
the 14 are related to water supplies associated with one underground
coal mining operation and are not subsidence related.
II. Public Comment Procedures
OSM is requesting public comment to assist OSM in making its
decision on which approach to use in Ohio 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 Columbia 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.,
[Eastern Time zone] 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 hearing, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss recommendations on
how OSM and Ohio 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. 95-8636 Filed 4-6-95; 8:45 am]
BILLING CODE 4310-05-M
