[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38689-38691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18583]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 946
Virginia 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 Virginia. 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 Virginia
and consideration of public comments, OSM has decided that initial
enforcement in Virginia will be accomplished through State enforcement.
EFFECTIVE DATE: July 28, 1995.
FOR FURTHER INFORMATION CONTACT: Douglas E. Stone, Acting Director, Big
Stone Gap Field Office, Office of Surface Mining Reclamation and
Enforcement, P.O. Drawer 1217, Big Stone Gap, Virginia 24219,
Telephone: (703) 523-4303.
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 placement 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.
[[Page 38690]]
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 817.112(c)(2) required in part that:
The permittee must promptly repair, or compensate the owner for,
material damage resulting from subsidence caused to any
noncommercial 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 promotly 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 of 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 17743) 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. 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 strong 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 through and complete so as to assure prompt remedial
action, then OSM will provide any 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 is 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 under 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 Virginia
Virginia program activity, requirements, and enforcement. By letter
to Virginia 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 Virginia (Administrative
Record No. VA-850). By letter dated January 13, 1995, Virginia
responded to this request (Administrative Record No. VA-851).
Virginia indicated that existing State program provisions at
Sections 45.1-243 and 45.1-258 of the Code of Virginia are adequate
State counterparts to section 720(a) of SMCRA. Virginia explained that
it will enforce these State program provisions effective October 24,
1992. Virginia also provided a copy of DMLR memorandum 6-93 concerning
intermediate guidelines for implementing the Virginia law until
implementing Virginia regulations are approved. Section 480-03-
19.817.121(c)(2) of the Virginia Coal Surface Mining Reclamation
Regulations concerning subsidence control has been used by Virginia
since December 26, 1990.
OSM records show that approximately 325 underground coal mines have
been classified as active in Virginia since October 24, 1992. Between
October 24, 1992, and January 13, 1995, Virginia investigated 262
citizen complaints alleging subsidence-caused structural damage or
water supply loss or contamination as a result
[[Page 38691]]
of underground mining operations. As of January 13, 1995, Virginia
found that a violation of the Act existed on 35 of the complaints, no
violation of the Act existed on 202 of the complaints, and technical
reports and a final decision were pending on 25 complaints.
On May 10, 1995 (Administrative Record Number VA-856), OSM met with
the Virginia Division of Mined Land Reclamation (DMLR) to discuss
implementation issues relative to the Energy Policy Act of 1992. At
that meeting, OSM agreed with DMLR concerning the following
interpretation of the Virginia program:
Virginia has full statutory authority at section 43.1-258.
of the Code of Virginia to require the replacement of drinking,
domestic or residential water supplies contaminated, diminished or
interrupted by underground mining activities conducted after October
24, 1992.
Virginia has full authority at section 480-03-
19.817.121(C)(2) of the Virginia Coal Surface Mining Reclamation
Regulations to require the repair or compensation for damage to non-
commercial buildings and dwellings and related structures resulting
from subsidence caused by underground mining activities conducted after
October 24, 1992.
Comments. On April 7, 1995, OSM published in the Federal Register
(60 FR 17743) 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 Virginia. 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.
One commenter (Administrative Record Numbers VA-862) asserted 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. A second commenter
adopted these comments by reference. 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 for Virginia because
the Regional Director has decided, as set forth below, not to implement
an enforcement alternative including direct Federal enforcement.
Another commenter stated that the Virginia program currently has
adequate counterpart provisions in place and has proper authority to
implement the requirements of the Energy Policy Act of 1992 in Virginia
(Administrative Record Number VA-860). The party also stated that
Virginia's investigations of subsidence related complaints has been
designed to ensure prompt remedial action. These investigations, the
commenter asserted, have been deemed fair by both the mining industry
and the affected public. The commenter concluded that initial
enforcement of the requirements of the Energy Policy Act of 1992 in
Virginia is already being accomplished by the Virginia program.
One commenter requested ``interim direct OSM enforcement''
(Administrative Record Number VA-857). The commenter asserted that even
though Virginia has statutory and regulatory provisions in place that
are counterparts to the Energy Policy Act of 1992, Virginia provides
inadequate protection for citizens residing in the coalfields. The
commenter asserted that Virginia fails to attribute subsidence and
water loss damages of any extent to underground coal mining operations.
The commenter asserted that subsidence damages to the hydrologic regime
and personal property (homes, ponds, outbuildings, etc.) are each
looked at by the State as an isolated event rather than tied together
to show the wide expanse of subsidence damage in Virginia. On March 10,
1995 this same commenter requested that OSM conduct a review of the
Virginia program to verify similar allegations. That review is
currently being conducted by OSM and it will address the commenter's
allegations concerning the Virginia program.
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 Virginia will
be accomplished through State enforcement. The Director has made this
decision after soliciting public comment and providing opportunity for
public hearing (no requests for a hearing were received), and
considering information provided by Virginia by letters dated January
13, 1995, and May 26, 1995, and in discussions held with Virginia on
May 4, 1995. The Director has concluded that under the Code of Virginia
section 41.1-258, the State has full authority to require the
replacement of drinking, domestic or residential water supplies
contaminated, diminished or interrupted by underground mining
activities conducted after October 24, 1992. In addition, Virginia has
full authority at section 480-03-19.817.121(c)(2) of the Virginia Coal
Surface Mining Reclamation Regulations to require the repair or
compensation for damage to non-commercial buildings and dwellings and
related structures resulting from subsidence caused by underground
mining activities conducted after October 24, 1992.
If circumstances within Virginia 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. 95-18583 Filed 7-27-95; 8:45 am]
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