[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38685-38689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18582]
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DEPARTMENT OF THE INTERIOR
30 CFR Parts 920 and 938
Maryland and Pennsylvania Regulatory Programs
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 Maryland and Pennsylvania. 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
Maryland and Pennsylvania and consideration of public comments, OSM has
decided that initial enforcement in Maryland will be accomplished
through the State enforcement and in Pennsylvania through State and OSM
enforcement.
EFFECTIVE DATE: July 28, 1995.
FOR FURTHER INFORMATION CONTACT: George Rieger, Acting Director,
Harrisburg Field Office, OSM, Harrisburg Transportation Center, Third
Floor, Suite 3C, 4th and Market Streets, Harrisburg, Pennsylvania
17101, Telephone: (717) 782-4036.
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
[[Page 38686]]
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 10,
1995, Federal Register (60 FR 18046) 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 of 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 817.4(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 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 Maryland
Maryland program activity, requirements, and enforcement. By letter
to Maryland dated December 13, 1994, OSM requested information that
would be useful in determining how to implement section 720(a) of SMCRA
and the implementing Federal regulations in Maryland (Administrative
Record No. MD-570.0). By letter dated March 29, 1995, Maryland
responded to this request (Administrative Record No. MD-570.1).
Maryland stated that four underground coal mines were active in
Maryland after October 24, 1992. Maryland indicated that existing State
program provisions at Maryland Natural Resources Article 7, Subtitle
5A, Sec. 7-5A-05.1, Sec. 7-5a-05.2 and COMAR 08.20.13.09B, 08.20.13.09C
are adequate State counterparts to section 720(a) of SMCRA and the
implementing Federal regulations. Maryland explained that it will
enforce these State program provisions in accordance with Maryland
Natural Resources Article 7 effective October 24, 1992. Maryland has
investigated eight 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, Maryland has made determinations that the single structural
damage complaint was unrelated to subsidence and that two water supply
complaints were not impacted by the mining operations. In the five
other water supply complaints Maryland determined the water supplies
were impacted by underground mining and the mining company
satisfactorily replaced these supplies.
[[Page 38687]]
Comments. On April 10, 1995, OSM published in the Federal Register
(60 FR 18046) 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 Maryland. The comment period
closed on May 10, 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. MD-571.01). The party stated 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 Maryland because
the Regional Director has decided, as set forth below, not to implement
an enforcement alternative including direct Federal enforcement.
A mine operator responded on May 8, 1995 (Administrative Record No.
MD-571.03). The party commented that the water replacement and
subsidence repair provisions that are the subject of this notice are
already in effect in Maryland. The Director agrees.
Director's Decision. Based on the information provided by Maryland
and the comments discussed above, the Director has decided that
enforcement of the underground coal mine subsidence control and water
replacement requirements in Maryland will be accomplished by State
enforcement--option #2. Maryland has provisions at sections 7-5A-05.1
and 7-5A-05.2 of its statutes and sections 08.20.13.09 B and C of its
regulations in place that correspond to all of the requirements of the
Federal regulations at 30 CFR 817.41(j) and 817.121(c)(2). Maryland
also has the authority to implement its provisions for all underground
mining activities conducted after October 24, 1992.
If circumstances within Maryland change significantly, the Director
may reassess this decision. Formal reassessment of this decision would
be addressed by Federal Register notice.
D. Enforcement in Pennsylvania
Pennsylvania program activity, requirements, and enforcement. By
letter to Pennsylvania dated December 13, 1994, OSM requested
information that would be useful in determining how to implement
section 720(a) of SMCRA and the implementing Federal regulations in
Pennsylvania (Administrative Record No. PA-835.00). By letter dated
January 24, 1995, Pennsylvania responded to this request
(Administrative Record No. PA-835.01).
Pennsylvania stated that 120 bituminous underground coal mines are
permitted and that 60 of these are currently producing coal. In the
anthracite field, there are approximately 115 permitted underground
mining operations of which 50 to 75 operations are currently producing
coal. Pennsylvania stated that Act 54, amending the Pennsylvania
Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) became
effective on August 21, 1994. This amendment to BMSLCA does address
water supply replacement and subsidence damage repair or compensation,
but certain provisions do not mirror the Federal Energy Policy Act of
1992 portions establishing section 720 of SMCRA.
Specifically, Pennsylvania stated in the January 24, 1995, response
that BMSLCA does not include water replacement and repair of subsidence
damage in the following situations.
Water Supply Replacement
Cases where water supplies were impacted between October
24, 1992, and August 21, 1994.
Cases where affected water supplies are located in the
anthracite coalfields.
Cases where landowners entered voluntary agreements
allowing their supplies to be impacted.
Cases where impacts occurred more than three years after
completion of coal extraction.
Cases where affected water sources are used to supply
agricultural irrigation systems constructed after August 20, 1994.
Cases where the property owner failed to report the water
supply problem within two years of its occurrence.
Cases where the mine operator was denied access to conduct
a pre-mining or post-mining survey of the water supply and no pre-
mining quality and quantity information is available.
Cases where a mine operator purchased the property or
compensated the property owner rather than replace the supply.
Repair or Compensate for Subsidence Damage
Cases where dwellings were constructed after April 27,
1966, and damaged prior to August 21, 1994.
Cases where dwellings constructed after August 21, 1994,
are damaged prior to the time when coverage commences under BMSLCA
(dwellings which are built after August 21, 1994, and between
permitting actions are not covered by repair compensation requirements
until the next permit renewal).
Cases where the mine operator was denied access to conduct
a pre-mining or post-mining survey of the damaged structure.
Cases involving noncommercial buildings where the damaged
buildings were not used by the public, accessible to the public, or
used for certain agriculture purposes.
The Pennsylvania Department of Environmental Resources (PADER)
states that it has authority to investigate complaints of structural
damage and water loss caused by underground mining operations conducted
after October 24, 1992. Pennsylvania, as discussed above, has authority
to provide repair or compensation for subsidence related structural
damage and water supply replacement for bituminous coalfield residents
after August 21, 1994. Pennsylvania does not have the authority to
fully implement section 720(a), in the anthracite coalfield or for
bituminous coalfield for the time period October 24, 1992, through
August 21, 1994. Pennsylvania will require at least one year to make
the necessary statutory changes.
Pennsylvania has investigated 91 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. To date, Pennsylvania has completed review and
made a final determination on 87 with 4 pending further study.
PADER has determined that 2 complaints regarding structural damage
were unrelated to underground mining and the remaining 19 were the
result of subsidence due to mining conducted after October 24, 1992.
PADER reports that investigations of 70 water supply complaints
resulted in finding that 60 were unrelated to underground mining
conducted after October 24, 1992 and 6 water supplies were determined
to have been affected by mining. Four water supply complaints are
currently under review with no determination as to impacts from
underground mining.
[[Page 38688]]
By letter dated May 4, 1995 (Administrative Record No. PA-835.11),
Pennsylvania expressed its intention to implement as much of the
Federal regulations as possible, to the extent of its law. It agreed to
investigate all subsidence-related complaints and take remedial action
and will defer to OSM in those situations where the Federal rules
provide greater relief for the complainant. Program changes will be
made, as necessary, through the program amendment process.
Comments. On April 10, 1995, OSM published in the Federal Register
(60 FR 18046) 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 Pennsylvania. The comment period
closed on May 10, 1995. Because Pennsylvania 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. Although 12 commenters responded, only 4 specifically addressed
the implementation options as requested in the Federal Register Notice.
The others addressed general provisions of Pennsylvania's regulatory
program or Pennsylvania Act 54 implementation or wrote to endorse the
position of the industry organization who responded on May 5, 1995.
A mining organization responded on May 12, 1995 (Administrative
Record No. PA-835.16). The party stated 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 no 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 protective 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 regularly 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 second industry organization responded on May 5, 1995
(Administrative Record No. PA-835.13). The party recommended that OSM
pursue enforcement through the State program amendment process. The
Director does not agree for the following reasons: (a) although
Pennsylvania's regulatory program provides similar protections to those
afforded by 30 CFR 817.41(j) and 817.121(c)(2), it does not have
comparable provisions to all of the Federal requirements and
Pennsylvania will require one year or more to make the necessary
changes through the amendment process, (b) the number of underground
coal operations is not low, and (c) the number of complaints pertaining
to section 720 of SMCRA is now low. The Director also notes that the
party states that ``for all practical purposes, the Pennsylvania
program is already as effective as section 720 and OSM's implementing
regulations.'' However, Pennsylvania has itself acknowledged that it
Act 54 lacks water replacement and subsidence provisions contained in
SMCRA and the accompanying Federal regulations (60 FR 18048). The party
also contends that complaints or reports of violations do not indicate
a chronic or pervasive problem requiring direct Federal enforcement or
interim enforcement and concludes that the State program amendment
process is the best enforcement option for Pennsylvania. The Director
notes that although the State performed initial investigations of 32
water supply and structural damage complaints, the absence of
additional program provisions prevented additional State action to
ensure compliance with all provisions of the Federal regulations. For
the reasons specified in the Director's Decision below, the Director
has decided that enforcement in Pennsylvania will be best accomplished
through joint OSM and State enforcement. As noted above, however, the
State will investigate all subsidence related complaints and take
remedial action. The State will only refer to OSM in those situations
where the Federal provisions provide greater relief for the
complainant.
A citizens' group responded on May 8, 1995 (Administrative Record
No. PA-835.03). The party's comments were divided into two sections:
(1) changes it believes are necessary to make the Pennsylvania program
as effective as the Federal rules, and (2) interim enforcement. The
Director notes that the comments presented in the first section pertain
to alleged deficiencies in Pennsylvania Act 54. The majority of the
comments in section two pertains more directly to the implementation
options presented in the Federal Register Notice. The party states that
Pennsylvania cannot qualify for options one or two. It believes OSM has
a responsibility to see that all complaints in the ``gap'' period are
investigated. The party also commented that full compensation be made
to homeowners by the permittee regardless of any prior agreements
between homeowners and operators. The party recommended that when OSM
begins direct enforcement, it should handle all cases of water loss and
subsidence damage dealing with occupied dwellings and structures.
Pennsylvania should handle those provisions not addressed by the
Federal
[[Page 38689]]
regulations. The Director agrees, in part, with the comments presented
above. As explained in the Director's Decision below, the Director
notes that OSM will directly enforce those provisions of the Federal
regulations at 30 CFR 817.41(j) and 817.121(c)(2) for which the State
does not have comparable provisions and/or the authority to enforce.
Specifically, for those underground mining activities conducted between
October 24, 1992, and August 21, 1994. The State will enforce its
provisions for which it has authority. Specifically, for those
underground mining activities conducted after August 21, 1994.
A citizens' group responded on May 10, 1995 (Administrative Record
No. PA-835.04). The party commented that a strict timeframe should be
established for submission of a State program amendment which
incorporates all the provisions of the Energy Policy Act. The Director
recognizes that Pennsylvania may need to amend its program. As
discussed above, by letter dated May 4,1 995, Pennsylvania intends to
utilize the State program amendment process to make its program no less
effective than the Federal regulations. The Director finds the 732
State program amendment process adequate to address potential
deficiencies in the State program. The Director also notes that OSM
will support the State's program by enforcing the provisions of the
Energy Policy Act of 1992 for which the Pennsylvania program lacks
counterparts. The party also recommends that the implementation of the
subsidence and water replacement rules be an oversight (special fund)
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 Director 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
oversight using the ten-day notice process, if necessary.
The party recommends that all citizen complaints relating to water
loss or subsidence that are the subject of this notice be logged and
tracked by OSM to assure proper implementation of the Energy Policy
Act. For those complaints previously investigated by the State, the
party feels the ten-day notice procedure should not be used. The
Director notes the OSM's Harrisburg Field Office has compiled a list of
all complaints received after October 24, 1992, and each will be
evaluated. For those complaints where damage occurred after August 21,
1994, OSM will conduct normal oversight using the ten-day notice
process, if necessary.
The party's last comment concerns the permitting process. It
recommends that pending submission of a State program amendment, if
Pennsylvania 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. Pennsylvania has jurisdiction over the
regulation of its surface coal mining operations. Through the 30 CFR
732.17 program amendment process, the Director will notify Pennsylvania
of required changes to its program.
Director's Decision. Based on the information provided by
Pennsylvania, the comments discussed above, and two informal meetings
with the State, the Director has decided that enforcement of the
underground coal mine subsidence control and water replacement
requirements in Pennsylvania will be accomplished through joint State
and OSM enforcement--option #4. Pennsylvania has statutory and
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). The State's authority to enforce its provisions applies
to operations conducted after August 21, 1994, and it would enforce its
provisions for these operations. 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.
If circumstances within Pennsylvania 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. 95-18582 Filed 7-27-95; 8:45 am]
BILLING CODE 4310-05-M
