[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38691-38694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18584]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 948
West 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 West 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 West
Virginia and consideration of public comments, OSM has decided that
initial enforcement in West Virginia will be accomplished through State
enforcement.
EFFECTIVE DATE: July 28, 1995.
FOR FURTHER INFORMATION CONTACT: James C. Blankenship, Jr., Director,
Charleston Field Office, Office of Surface Mining Reclamation and
Enforcement, 1027 Virginia Street East, Charleston, West Virginia
25301-2816, Telephone: (304) 347-7158.
[[Page 38692]]
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
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 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 11,
1995, Federal Register (60 FR 18381) 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 provision's 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 that 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
buildings,'' ``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 West Virginia
West Virginia program activity, requirements, and enforcement. By
letter to West Virginia dated December
[[Page 38693]]
16, 1994, OSM requested information that would be useful in determining
how to implement section 720(a) of SMCRA and the implementing Federal
regulations in West Virginia (Administrative Record No. WV 965). By
letter dated January 11, 1995, West Virginia to this request
(Administrative Record No. WV 966).
The West Virginia Division of Environmental Protection (WVDEP)
notified OSM that there were approximately 650 active underground coal
mines operating in West Virginia at the time. West Virginia stated that
it believed the existing State program provisions are adequate to fully
implement the letter and intent of section 720 of SMCRA. WVDEP further
explained that its continued enforcement of its State program
provisions at sections 22A-3-14(b)(1) and 22A-3-24(b) of the West
Virginia Code and/or West Virginia Code of State Regulations (CSR)
sections 38-2-14.5(h) and 38-2-16.2 would ensure compliance with
section 720 of SMCRA.
West Virginia noted that section 22A-3-24(b) of the West Virginia
Code allows for a waiver of water replacement rights by current
landowners. According to WVDEP, this is part of a program amendment
that is under review by OSM.
West Virginia also acknowledges that since WVDEP revised its rules
on June 1, 1991, it has been requiring operators to either correct
material damage resulting from subsidence caused to any structures or
facilities by repairing the damage or compensate the owners of such
structures or facilities in the full amount of the dimunition in value
resulting from subsidence. In addition, West Virginia issued a policy
directive on March 23, 1993, which provides that permits issued before
June 1, 1991, and which have a waiver to subside without liability are
exempt from the new requirements. Permits issued prior to June 1, 1991,
without waivers and all permits issued after that date are required to
comply with the revised regulations.
OSM estimates that West Virginia has investigated approximately 190
citizen complaints between June 1, 1991, and October 24, 1992, and
approximately 330 citizen complaints after October 24, 1992, that
allege subsidence-caused structural damage and/or water supply loss or
contamination as a result of underground mining operations. To date,
West Virginia has investigated these complaints and determined that the
problems: (1) Were not caused by mining; (2) were caused by mining with
resultant enforcement action/or corrective measures taken; or (3) are
problems under continuing investigation to determine whether caused by
mining.
Upon initial review of the West Virginia program, OSM was concerned
that the State did not have adequate authority to fully enforce the
provisions of the Energy Policy Act of 1992. Specifically, the State's
March 31, 1993, policy, which provides that permits issued prior to
June 1, 1991, that have waivers to subside without liability do not
have to repair or compensate owners for material damage caused by
subsidence, is inconsistent with the Energy Policy Act which requires
repair or compensation for subsidence damage which occurs after October
24, 1992. In addition, West Virginia Code section 22A-3-24(b) and State
regulations at CSR 38-2-14.5(h) authorize the waiver of water supply
replacement.
On June 30, 1995 (Administrative Record Number WV-996), West
Virginia revised its subsidence policy procedures to address these
concerns. The revised procedures took effect on July 10, 1995. The
revised policy requires owners of permits with waivers issued prior to
June 1, 1991, to repair or compensate owners of residential dwellings
for subsidence related damage. The new policy is retroactive, and makes
all permits, regardless of issuance date, liable for subsidence damage
caused by underground mining that occurred after October 24, 1992.
The West Virginia program currently contains the requirements of 30
CFR 817.41(j), pertaining to replacement of drinking, domestic or
residential water supplies. However, in those cases where the owner has
waived replacement of a water supply West Virginia's program does not
require the permit applicant to demonstrate that an alternate water
source is available which is equivalent in quality and quantity to the
premining water supply, that the affected water supply was not needed
for the land use in existence at the time the supply was affected, or
that the affected water supply is not essential to achievement of the
approved postmining land use. These demonstrations are all required as
prerequisites to waiver of water replacement pursuant to the new
Federal definition of ``replacement of water supply'' at 30 CFR 701.5.
West Virginia has stated that its new policy with regard to water
replacement and subsidence repair, effective July 10, 1995, is intended
to address the requirements of the Energy Policy Act of 1992 and the
accompanying Federal regulations, published on March 31, 1995. 60 FR
16722. With the exception of the water replacement waiver criteria, the
West Virginia program and accompanying policy document do contain the
necessary counterparts to 30 CFR 817.41(j) to allow for state
enforcement of that provision. Further, the Director believes that the
discrepancy between the Federal regulations and West Virginia's program
with regard to water replacement waivers is of insufficient magnitude
to warrant direct Federal enforcement of the water replacement
requirement. The Director reaches his conclusion because he believes
that few or no situations are likely to arise involving underground
mining and waiver of water supply replacement where the approved
postmining land use is residential. Therefore, the Director finds that
state enforcement is the most reasonable option for West Virginia.
Comments. On April 11, 1995, OSM published in the Federal Register
(60 FR 18381) an opportunity for a public hearing and 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 West Virginia. The comment period
closed on May 11, 1995. OSM received one request to conduct a hearing.
Although the party that requested the hearing subsequently withdrew
that request, a public meeting was held on May 8, 1995, at the OSM Area
Office, Logan, West Virginia (Administrative Record Number WV-977). No
person attended to speak or discuss recommendations with OSM. One
individual attended only as an observer to the activities. A summary of
the meeting was entered into the administrative record (Administrative
Record Number WV-977). OSM received three comments in response to its
notice. Following are summaries of all the substantive comments that
OSM received, and OSM's responses to them.
One party commented that the enforcement alternatives incorporating
total or partial direct interim Federal enforcement (items (3) and (4)
in section B. above) have no statutory basis in SMCRA and are not
consistent with Congress' intent in creating section 720 of SMCRA
(Administrative Record Number WV-994). 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 West
Virginia because the Regional Director has decided, as set forth below,
not to implement an
[[Page 38694]]
enforcement alternative including direct Federal enforcement.
Another organization commented that West Virginia has immediate
authority to implement the provisions of the Energy Policy Act of 1992
to protect water and homes from damage from underground mining
(Administrative Record Number WV-978). To get prompt, strict
enforcement of the provisions of the Energy Policy Act the commenter
recommended that OSM log and track all water loss and subsidence
complaints and independently assess the State's conclusions. The State
and OMS have agreed to set up a joint team to review all the complaints
relating to subsidence and water loss filed between October 24, 1992,
through July 10, 1995, the date of the new State subsidence procedures
discussed above. However, since West Virginia has equivalent provisions
to the Federal subsidence regulations (with the subsidence procedures
policy of July 10, 1995) it is the State's responsibility to enforce
those provisions. OSM will conduct normal oversight of the West
Virginia program for the period following July 10, 1995, using the ten-
day notice process if necessary.
The commenter also made additional recommendations. The Regional
Director notes, however, the subject of the comments (baseline
groundwater well sampling, presubsidence survey requirements at 30 CFR
784.20, and timeframes for submitting State amendments to fully address
such other requirements) are outside the scope of this notice.
A third organization commented that although West Virginia has
statutory and regulatory provisions in place that correspond in some
ways to the requirements of the Federal law, OSM should select joint
State and OSM initial enforcement of the provisions of the Energy
Policy Act of 1992 that the State has not yet fully addressed
(Administrative Record Number WV-981). The commenter specifically noted
that the West Virginia program currently allows the waiver of water
replacement rights by current landowners, and that it is unclear
whether the State means to apply the requirements of the Energy Policy
Act only to ``permits'' issued on or after October 24, 1992, or to all
portions of operations conducted after October 24, 1992. The Regional
Director notes, and as discussed above, the State has implemented on
July 10, 1995, new subsidence policy procedures that address the
commenter's concerns. According to the new State subsidence procedures,
all permits, regardless of issuance date, are liable for subsidence
damage caused by underground mining that occurred after October 24,
1992. As for the waiver language at West Virginia Code section 22A-3-
24(b) and the State regulations at CSR 38-2-14.5(h) concerning the
waiver of water supply replacement, the Regional Director notes that
the West Virginia program contains the requirements of 30 CFR 817.41(j)
concerning drinking, domestic or residential water supply. The Regional
Director notes that the State and OSM will jointly review all the
complaints that were filed between October 24, 1992, and July 10, 1995,
to ensure that the State's past enforcement actions complied with the
requirements of the Energy Policy Act of 1992. If a complaint was filed
that meets the criteria of the Energy Policy Act of 1992. If a
complaint was filed that meets the criteria discussed above, State
officials will take enforcement action to require the company to comply
with the new policy.
The commenter also provided comments regarding proof of damage
through presubsidence surveys and baseline monitoring and delays in
program implementation. Those concerns are outside the scope of this
document, but will be addressed at a later date.
Director's decision. Based on the information provided by West
Virginia, discussions held with the State on July 13, 1995, and the
comments discussed above, the Regional Director has decided that
enforcement of the underground coal mine subsidence control and water
replacement requirements in West Virginia will be accomplished through
State enforcement.
OSM's initial concern that the West Virginia program does not have
adequate authority to enforce the provisions of the Energy Policy Act
of 1992 has been addressed by the State. On July 10, 1995, West
Virginia implemented new State subsidence policy procedures that
require repair or compensation for subsidence damage after October 24,
1992, consistent with 30 CFR 817.121(c)(2), and the approved program
requires replacement of water supplies consistent with 30 CFR
817.41(j). In addition, OSM and the State will jointly review all the
complaints filed between October 24, 1992, through July 10, 1995, to
ensure that the State's past actions with regard to these complaints
are consistent with the Energy Policy Act of 1992.
If circumstances within West Virginia change significantly, the
Regional Director may reassess this decision. Formal reassessment of
this decision would be addressed by notice in the Federal Register.
Dated: July 24, 1995.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-18584 Filed 7-27-95; 8:45 am]
BILLING CODE 4310-05-M
