[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38682-38685]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18581]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 917
Kentucky 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 Kentucky. Amendments to the Surface Mining Control and
Reclamation Act of 1977 (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, and promptly replace drinking,
domestic, and residential water supplies that have been adversely
affected by underground coal mining. After consultation with Kentucky
and consideration of public comments, OSM has decided that initial
enforcement in Kentucky will be accomplished through State and OSM
enforcement.
EFFECTIVE DATE: July 28, 1995.
FOR FURTHER INFORMATION CONTACT:
William J. Kovacic, Director, Lexington Field Office, OSM, 2675 Regency
Road, Lexington, Kentucky 40503, Telephone (606) 233-2894.
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 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 17739) 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
[[Page 38683]]
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 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 Kentucky
Kentucky program activity, requirements, and enforcement. By letter
to Kentucky dated December 14, 1994, OSM requested information that
would be useful in determining how to implement section 720(a) of SMCRA
and the implementing Federal regulations in Kentucky (Administrative
Record No. KY-1336). By letter dated January 31, 1995, Kentucky
responded to this request (Administrative Record No. KY-1337).
Kentucky stated that 410 underground coal mines were active in
Kentucky after October 24, 1992. Kentucky indicated that existing State
program provisions at 405 Kentucky Administrative Regulations (KAR)
18:210 section 3 are adequate State counterparts to section 720(a)(1)
of SMCRA and the implementing Federal regulations. Section 720(a)(1) of
SMCRA requires prompt repair or compensation to the owner for
subsidence-related material damage to non-commercial buildings or
occupied dwellings and related structures. Kentucky explained that it
will enforce this State program provision in accordance with 405 KAR
18:210 section 3.
Kentucky stated that the Kentucky program does not fully authorize
enforcement of the new water replacement requirements of section
720(a)(2) of SMCRA and the implementing Federal regulations. Kentucky
submitted a program amendment to OSM dated April 29, 1994,
(Administrative Record No. KY-1279) which will modify language at
Kentucky Revised Statutes (KRS) 350.421. KRS 350.421, as modified, will
require replacement of water loss caused by underground mining
operations. OSM approved the amendment on June 27, 1995 (60 FR 33110)
with two exceptions. The Director required that Kentucky amend its
program to provide for the ``prompt'' replacement of water. He deferred
a decision on the enforcement of the provisions of SMCRA section 720
during the period from October 24, 1992 (the effective date of SMCRA
section 720) to July 16, 1994 (the effective date of Kentucky's House
Bill 338 which provides for water replacement). Kentucky has stated
that the effective date of the program amendment, when approved, will
be July 16, 1994. Kentucky also stated that it does not have authority
to issue enforcement actions for water loss caused by underground
mining operations conducted after October 24, 1992, and before July 16,
1994.
Kentucky has investigated 115 citizen complaints alleging water
supply loss or contaminations as a result of underground mining
operations conducted after October 14, 1992, and before July 16, 1994.
Of the 115 citizens' complaints, 30 are pending resolution of currently
outstanding ten-day notices; 29 have been satisfactorily resolved; and
47 will require further investigation.
By letter dated June 2, 1995, Kentucky submitted additional
clarifying information (Administrative Record No. KY-1358). Kentucky
stated, in part:
KRS 350.421 was revised effective July 16, 1994, to place upon
underground mining
[[Page 38684]]
operations the same obligation to replace affected water supplies that
previously applied only to surface mining operations. The Kentucky
provisions apply to water supplies for domestic, agricultural,
industrial or other legitimate use from an underground or surface
source, and thus are at least as broadly encompassing as the Federal
requirements with regard to the types of supplies that must be
replaced when affected by mining operations. For underground mining,
the Kentucky after July 16, 1994, the effective date of the
legislation. With regard to the level of replacement, we believe the
affected party must be made whole, and that depends upon the factual
circumstances of each case and, to some appropriated degree, the
preferences of the affected party.
We recognize that it will be necessary to amend the approved
Kentucky program by amending the cabinet's administrative
regulations to be consistent with and as effective as the OSM
regulations revised March 31, 1995. While it is difficult to
establish a rigid timetable for adoption of amended administrative
regulations, we believe the following target dates may be the
earliest feasible dates for these actions, considering the length of
Kentucky's promulgation process and considering that we also must
continue development and promulgation of amendments to our
regulations for impoundments and roads.
1. By August 15, 1995, submit to the Kentucky Legislative
Research commission (LRC), a Notice of Intent to promulgate
administrative regulations on water supply replacement and
subsidence consistent with the March 31, 1995, OSM rules.
2. By December 15, 1995, file with LRC proposed amendments to
administrative regulations.
On June 14, 1995, representatives from OSM's Lexington Field Office
(LFO) and Kentucky's Department for Surface Mining Reclamation and
Enforcement (DSMRE) met to discuss and finalize the implementation of
the Energy Policy Act in Kentucky. A written record of the issues
discussed was made (Administrative Record No. KY-1359). The following
decisions were made. For repair or compensation of material damage,
Kentucky's program has the equivalent provisions and enforcement
authority. Therefore, DSMRE would enforce the State counterparts to 30
CFR 817.121(c)(2) while OSM would conduct normal oversight using the
ten-day notice process if necessary. This enforcement approach was
agreed to by the participants.
For water replacement, LFO as a result of the consultation with
DSMRE, is recommending State and OSM Federal enforcement of 30 CFR
817.41(j). For the period October 24, 1992, through July 15, 1994, LFO
will enforce EPACT water replacement provisions at 30 CFR 817.41(j) in
Kentucky. After July 16, 1994, DSMRE has established both the authority
to enforce and equivalent State provisions for water replacement
resulting from damage caused by underground mining.
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 Kentucky. The comment period
closed on May 8, 1995. Because OSM did not receive a request for one,
OSM did not hold a public hearing. Following are summaries of all
substantive comments that OSM received and OSM's responses to them
A mining association responded on May 12, 1995 (Administrative
Record No. KY-1356). 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. Specifically, the party commented that SMCRA
contains various statutory procedures for the amendment, preemption,
and substitution of Federal enforcement of State programs (sections
503, 505, and 521(b) that should be used in lieu of direct interim
Federal enforcement.
In response to this comment, OSM's position remains as was stated
in the March 31, 1995, preamble for the Federal regulations at 30 CFR
843.25, which in part implement section 720 of SMCRA:
OSM has concluded that it is not clear from the legislation or
legislative history, how Congress intended that section 720 was to
be implemented, in light of existing SMCRA provisions for State
primacy. Thus, OSM has a certain amount of flexibility in
implementing section 720. After weighing these considerations, OSM
intends to implement section 720 promptly, but will pursue Federal
enforcement without undermining State primacy under SMCRA.
(60 FR 16722, 16743). Using this rationale, OSM concludes that
there is not inconsistency in its implementation of section 720 of
SMCRA with sections 503, 505, and 521(b) of SMCRA.
Further, the party commented that Congress' intent was that
agreements between coal mine operators and landowners would be used to
ensure that the protection standards of section 720 of SMCRA would
occur rather than enforcement by State regulatory authorities and OSM.
The party did not supply any legislative history to support this
conclusion, and the plain language of section 720 of SMCRA does not
support this conclusion.
Lastly, the party commented that the waiving of ten-day notice
procedures in implementing direct Federal enforcement is not consistent
with Federal case law. OSM does not agree with the commenter's
assertion. The following response to a similar comment in the March 31,
1995, Federal Register (60 FR 16722, 16742-16745) also applies to this
comment.
[The commenter stated that] the proposal to provide for direct
Federal enforcement ignores Federal case law which indicates that,
as a general proposition, the State program, not SMCRA, is the law
within the State. OSM recognizes that, under existing rules
implementing SMCRA, States with approved regulatory programs have
primary responsibility for implementing SMCRA, based on the approved
program. However, in this rule, OSM has carved out a limited
exception to the general proposition, to the extent necessary to
give reasonable force and effect to section 720, while maintaining
so far as possible State primacy procedures. OSM believes that the
process adopted in this final rule is consistent with and authorized
by Congress under the Energy Policy Act, and that case law
interpreting other provisions of SMCRA is not necessarily
dispositive.
A non-profit organization responded on May 8, 1995 (Administrative
Record No. KY-1354), with several comments. Because of Kentucky's lack
of statutory authority to mandate replacement of water supplies damaged
by underground mining prior to July 16, 1994, the party feels OSM
should initiate direct enforcement. The Director agrees. As discussed
in the Director's Decision below, the Director has decided that OSM
will enforce the provisions of 30 CFR 817.41(j) for the period from
October 24, 1992, to July 16, 1994.
The party commented that Kentucky should be placed on an expedited
schedule for submission of a State program amendment which incorporates
emergency regulations for immediate implementation of the permitting
requirements for water replacement and subsidence protection. The
Director recognizes that Kentucky needs to amend its administrative
regulations and accepts Kentucky's proposed schedule for the
development and promulgation of amendments. As discussed in section
I.C. above, by letter dated June 2, 1995, Kentucky proposes to amend
its regulations to be consistent with the revised Federal regulations.
By August 15, 1995, it plans to begin the promulgation process by
submitting to its LRC a Notice of Intent to promulgate regulations on
water supply replacement and subsidence.
[[Page 38685]]
The party also recommends that the implementation of the subsidence
and water replacement rules should be an oversight topic (special
study) for at least the first two years of implementation. The Director
notes that OSM will continue to consider special studies of interest to
its stakeholders as required by OSM's Directive REG-8 which establishes
the procedures for conducting oversight. The State will be required to
enforce the provisions of its approved program while OSM will conduct
normal oversight using the ten-day notice process if necessary.
The party recommends that all citizen complaints relating to the
water loss or subsidence provisions that are the subject of this notice
be logged and tracked by OSM to assure proper implementation of the
Energy Policy Act. The Director notes that the LFO has compiled a list
of all water loss complaints received after October 24, 1992, and each
complaint will be evaluated. Since Kentucky has equivalent provisions
to the Federal subsidence regulations, the Director notes that State
will enforce those provisions while OSM will conduct normal oversight
using the ten-day notice process, if necessary.
The party feels that in those cases when the State has previously
investigated a complaint, the ten-day notice process should not be used
prior to Federal investigation and enforcement. The Director does not
agree and reiterates his response to the comment above. For all
subsidence-related complaints and for those water replacement-related
complaints where damage occurred after July 16, 1994, OSM will conduct
normal oversight using the ten-day notice process, if necessary.
The party's last comment concerned the permitting process. It
recommends that pending submission of the State program amendment, if
Kentucky does not modify the permitting process immediately through the
use of existing language in the State program to require additional
groundwater and subsidence information, OSM should demand that each
permittee be required, prior to permit issuance, to develop groundwater
and subsidence information for OSM's approval prior to permit issuance.
Failing this, individual enforcement actions should be taken. The
Director does not agree. Kentucky has jurisdiction over the regulation
of its surface coal mining operations. Through the 30 CFR 732.17
process, the Director will notify Kentucky of required changes to its
program.
Director's decision. Based on the information provided by Kentucky,
discussions held with the State on June 14, 1995, and the comments
discussed above, the Director has decided that the enforcement of the
underground coal mine subsidence control and water replacement
requirements in Kentucky will be accomplished by State and OSM
enforcement--Option #4. Kentucky will enforce its provisions that
correspond to the Federal regulations at 30 CFR 817.41(c)(2) pertaining
to the repair or compensation of material damage resulting from
subsidence. Kentucky has statutory provisions in place that correspond
to the Federal regulations and has the authority to implement its
provisions for all underground activities conducted after October 24,
1992. Kentucky will also enforce its provisions that correspond to the
Federal regulations at 30 CFR 817.41(j) pertaining to water replacement
for the period after July 16, 1994. It has statutory provisions in
place that correspond to the Federal regulations and has the authority
to implement its provisions for all underground mining activities
conducted after July 16, 1994--the effective date of Kentucky's
statutory provisions for water replacement. For those underground
mining activities conducted after October 24, 1992, and before July 16,
1994, OSM will enforce the provisions of 30 CFR 817.41(j) because
Kentucky does not have the statutory authority to retroactively apply
water replacement requirements to water losses prior to the effective
date of its statute.
If circumstances within Kentucky change significantly, the Director
may reassess this decision. Formal reassessment of this decision would
be addressed by Federal Register notice.
Dated: July 24, 1995.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-18581 Filed 7-27-95; 8:45 am]
BILLING CODE 4310-05-M
