[Federal Register Volume 60, Number 144 (Thursday, July 27, 1995)]
[Rules and Regulations]
[Pages 38500-38502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18438]
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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: Notice of decision.
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SUMMARY: OSM is announcing its decision on initial enforcement of
underground coal mine subsidence control and water replacement
requirements in Ohio. Amendments to the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) and the implementing Federal
regulations require that underground coal mining conducted after
October 24, 1992: promptly repair or compensate for subsidence-caused
material damage to noncommercial buildings and to occupied residential
dwellings and related structures and promptly replace drinking,
domestic, and residential water supplies that have been adversely
affected by underground coal mining. After consultation with Ohio and
consideration of public comments, OSM has decided that initial
enforcement in Ohio will be accomplished through State enforcement.
EFFECTIVE DATE: July 27, 1995.
FOR FURTHER INFORMATION CONTACT:
Beverly C. Brock, 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.
SUPPLEMENTARY INFORMATION:
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).
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 to 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.
Alternative OSM Enforcement Decisions
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 in the April 7, 1995, Federal Register (60 FR 17741) and
as reiterated below, enforcement could 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.
(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
[[Page 38501]]
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 items (3) and (4) above, OSM could directly enforce
in total or in part the applicable Federal 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
(1) above, OSM could decide not to initiate direct Federal enforcement
but rather to 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 Ohio
Ohio Program Activity, Requirements, and Enforcement
By letter to Ohio dated December 15, 1994, OSM requested
information that would be useful in determining how to implement
section 720(a) of SMCRA and the implementing Federal regulations in
Ohio (Administrative Record No. OH-2073). By letter dated January 18,
1995, Ohio responded to this request (Administrative Record No. OH-
2085).
Ohio provided a list of permitted underground coal mining
operations. There are eighteen active underground coal mines in Ohio.
The term ``active underground coal mines'' includes coal mines that are
currently producing coal. The term also includes coal mines that are
not currently producing coal but are being inspected by Ohio at the
same rate as those mines that are producing coal. Thus, the number of
mines actually producing coal varies and is usually much lower than
eighteen. (Administrative Record Number OH-2090). Ohio indicated that
existing program provisions at Ohio Revised Code sections 1513.162 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), and (I) are the State's
authority for enforcement of water replacement and subsidence related
structural damage. 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 distributed Division Policy
Procedures addressing subsidence related water replacement at PPD
Underground 93-2, subsidence related damages to structures at PPD
Underground 90-2 and 90-3.
By letter dated February 1, 1995 (Administrative Record Number OH-
2090), Ohio provided information concerning complaints related to
underground mining operations in Ohio. Ohio has investigated 26 citizen
complaints alleging 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. Ohio also stated that there is only one pending complaint
related to structure damage from subsidence.
On June 2, 1995, OSM met with the Ohio Division of Reclamation to
discuss the enforcement scheme to be followed in Ohio. Ohio stated that
counterparts to 30 CFR 817.41(j) and 817.121(c)(2) are fully provided
for in the Ohio program and that the appropriate enforcement scheme for
Ohio is State enforcement of the approved Ohio program (Administrative
Record Number OH-2131).
Comments. On April 7, 1995, OSM published in the Federal Register
(60 FR 17741) an opportunity for a public hearing and a request for
public comment to assist OSM in making its decision on how the
underground coal mine subsidence control and water replacement
requirements should be implemented in Ohio. The comment period closed
on May 8, 1995. Because OSM did not receive a request for one, OSM did
not hold a public hearing. OSM received comments from one party in
response to its notice (Administrative Record Number OH-2141).
The party commented that the enforcement alternatives incorporating
total or partial direct interim Federal enforcement (items (3) and (4)
in section I.B. above) have no statutory basis in SMCRA and are not
consistent with Congress' intent in creating section 720 of SMCRA. The
party also commented that the waiving of ten-day notice procedures
under direct Federal enforcement is not consistent with Federal case
law. OSM does not agree with the commenter's assertions, and it
addressed similar comments in the March 31, 1995, Federal Register (60
FR 16722, 16742-16745). These concerns about direct Federal enforcement
are moot issues in Ohio because the Regional Director has decided, as
set forth below, not to implement an enforcement alternative including
direct Federal enforcement.
Director's Decision. Based on the information discussed above, the
Director has decided that enforcement of the underground coal mine
subsidence control and water replacement requirements in Ohio will be
accomplished by State enforcement of the Ohio program. The Director has
made this decision after soliciting public comment (one comment was
received) and providing opportunity for public hearing (no requests for
a hearing were received), and considering information provided by Ohio
by letters dated January 18, 1995, and February 1, 1995, and in
discussions held with Ohio on June 2, 1995. The Director would like
[[Page 38502]]
to clarify the meaning of subsection (E) of OAC 1501:13-12-03. This
subsection states that any agreement between the operator and the
structure owner takes precedence over 1501:13-12-03. This section
appears to conflict with the requirements of section 720(a)(1) of
SMCRA, which requires repair or compensation of damaged structures
without regard to private agreements (see 60 FR 16722, 16735; March 31,
1995). When OSM approved this subsection in 1991, OSM asked for
clarification from Ohio about this subsection. Ohio clarified this
subsection to mean that the agreement must at a minimum require repair
or compensation for subsidence damage of a protected structure and that
anything less than this would be considered no agreement between the
parties (56 FR 52469, 52470-71; October 21, 1991). Therefore, this
subsection is in accordance with section 720(a)(1) of SMCRA. The
Director has concluded that Ohio law at ORC 1513.162 and rules at OAC
1501:13-1-02(S); 1501:13-9-04(P); and 1501:13-12-03 (C); (D); (E) as
clarified in 56 FR 52469 (October 21, 1991); (F); (H); and (I)
authorize enforcement of provisions of the Energy Policy Act of 1992 in
Ohio from October 24, 1992.
If circumstances within Ohio change significantly, the Director may
reassess this decision. Formal reassessment of this decision would be
addressed by Federal Register notice.
Dated: July 20, 1995.
David G. Simpson,
Acting Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-18438 Filed 7-26-95; 8:45 am]
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