[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38680-38682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18611]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 914
Indiana 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 Indiana. 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 Indiana
and consideration of public comments, OSM has decided that initial
enforcement in Indiana will be accomplished through joint Indiana and
OSM enforcement.
effective date: July 28, 1995.
for further information contact: Roger W. Calhoun, Director,
Indianapolis Field Office, Office of Surface Mining Reclamation and
Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania
Street, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-
6166.
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 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 17736) and as reiterated below,
enforcement could be accomplished through the 30 CFR part 732 State
program amendment process, or by State, OSM, or joint State and OSM
enforcement of the requirements.
(1) State program amendment process. If the State's promulgation
of regulatory provisions that are counterpart to 30 CFR 817.41(j)
and 817.121(c)(2) is imminent, the number and extent of underground
mines that have operated in the State since October 24, 1992, is
low, the number of complaints in the State concerning section 720 of
SMCRA is low, or the State's investigation of subsidence-related
complaints has been thorough and complete so as to assure prompt
remedial action, then OSM could decide not to directly enforce the
Federal provisions in the State. In this situation, the State would
enforce its State statutory and regulatory provisions once it has
amended its program to be in accordance with the revised SMCRA and
to be consistent with the revised Federal regulations. This program
revision process, which is addressed in the Federal regulations at
30 CFR part 732, is commonly referred to as the State program
amendment process.
(2) State enforcement. If the State has statutory or regulatory
provisions in place that correspond to all of the requirements of
the above-described Federal regulations at 30 CFR 817.41(j) and
817.121(c)(2) and the State has authority to implement its statutory
and regulatory provisions for all underground mining activities
conducted after October 24, 1992, then the State would enforce its
provisions for these operations.
(3) Interim direct OSM enforcement. If the State does not have
any statutory or regulatory provisions in place that correspond to
the requirements of the Federal regulations at 30 CFR 817.41(j) and
817.121(c)(2), then OSM would enforce in their entirety 30 CFR
817.41(j) and 817.121(c)(2) for all underground mining activities
conducted in the State after October 24, 1992.
(4) State and OSM enforcement. If the State has statutory or
regulatory provisions in place that correspond to some but not all
of the requirements of the Federal regulations at 30 CFR 817.41(j)
and 817.121(c)(2) and the State has authority to implement its
provisions for all underground mining activities conducted after
October 24, 1992, then the State would enforce its provisions for
these operations. OSM would then enforce those provisions of 30 CFR
817.41(j) and 817.121(c)(2) that are not covered by the State
provisions for these operations.
If the State has statutory or regulatory provisions in place
that correspond to some but not all of the requirements of the
Federal regulations at 30 CFR 817.41(j) and 817.121(c)(2) and if the
State's authority to enforce its provisions applies to operations
conducted on or after some date later than October 24, 1992, the
State would enforce its provisions for these operations on and after
the provisions' effective date. OSM would then enforce 30 CFR
817.41(j) and 817.121(c)(2) to the extent the State statutory and
regulatory provisions do not include
[[Page 38681]]
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 under-
ground 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 Indiana
Indiana program activity, requirements, and enforcement. By letter
to Indiana 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 Indiana (Administrative
Record No. IND-1438). By letter dated February (sic) 20, 1995, Indiana
responded to this request (Administrative Record No. IND-1429) (the
letter was misdated; the correct date is January 20, 1995.)
Indiana stated that six underground coal mines were active in
Indiana between October 24, 1992, and July 1, 1994. Indiana also stated
that Indiana statute IC 13-4.1-9-2.5 incorporates the substantive
language of section 720 of SMCRA. Indiana noted that IC 13-4.1-9-2.5's
requirements are expressly limited to operations conducted after June
30, 1994. Therefore, the Indiana Division of Reclamation (DOR) may not
require structural repair (or compensation) or water replacement under
the authority of IC 13-4.1-9-2.5 with respect to surface coal mining
operations conducted on or before June 30, 1994. However, Indiana
stated that preexisting Indiana program provisions provide the DOR with
sufficient authority to impose the Energy Policy Act of 1992
requirements with respect to underground mining operations conducted on
or before June 30, 1994.
On June 28, 1995 (Administrative Record Number IND-1493), OSM met
with Indiana to discuss enforcement of the underground coal mine
subsidence control and water replacement requirements in Indiana. As
detailed above in its initial response to OSM concerning enforcement,
Indiana stated that Indiana law at IC 13-4.1-9-2.5 incorporates the
substantive language of section 720 of SMCRA and applies to underground
mining operations conducted after June 30, 1994. For underground mining
operations conducted in Indiana in the interim period between October
24, 1992 (the effective date of the Energy Policy Act of 1992) and June
30, 1994 (the effective date of Indiana law counterpart to the Energy
Policy Act of 1992), the State concluded that the existing Indiana
program provisions provide the Indiana Division of Reclamation (IDOR)
with sufficient authority to impose the requirements of the Energy
Policy Act of 1992 with respect to underground mining operations
conducted in Indiana during the interim period. The State concluded,
however, that although it believes that the IDOR has sufficient
authority to impose the requirements of the Energy Policy Act of 1992
during the interim period, joint State and OSM enforcement in Indiana
should be the chosen enforcement scheme in Indiana, as it would assure
protection for the citizens of Indiana during the interim period
Administrative Record Number IND-1494. Under this scheme, the IDOR
would enforce the requirements of the Energy Policy Act of 1992 in
Indiana from June 30, 1994, and during the interim period to the extent
permissible under Indiana law. OSM would enforce the requirements of
the Energy Policy Act of 1992 in the interim period only if a situation
arose where the State could not so enforce. Indiana does not anticipate
any situations where the IDOR would not be able to enforce the
provisions of the Energy Policy Act of 1992 during the interim period.
Comments. On April 7, 1995, OSM published in the Federal Register
(60 FR 17736) 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 Indiana. The comment period
closed on May 8, 1995. Because OSM did not receive a request for one,
OSM did not hold a public hearing. OSM received comments from one party
in response to its notice (Administrative Record Number IND-1476).
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
[[Page 38682]]
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 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.
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 Indiana will
be accomplished through joint State and OSM enforcement. The Director
has made this decision after soliciting public comment (one comment was
received) and providing opportunity for public hearing (no requests for
a hearing were received), and considering information provided by
Indiana by letter dated February (sic) 20, 1995, and in discussions
held with Indiana on June 28, 1995. The Director has concluded that
Indiana law at IC 13-4.1-9-2.5 authorizes enforcement of provisions of
the Energy Policy Act of 1992 in Indiana from June 30, 1994. As for
enforcement during the interim period (October 24, 1992, through June
30, 1994), Indiana will enforce the provisions of the Energy Policy Act
of 1992 to the extent authorized by existing Indiana law. OSM will
enforce the provisions of the Energy Policy Act of 1992 during the
interim period in any circumstances where the State cannot so enforce.
Neither the IDOR nor OSM anticipates any cases where the IDOR would not
be able to enforce the provisions of the Energy Policy Act of 1992
during the interim period.
If circumstances within Indiana change significantly, the Director
may reassess this decision. Formal reassessment of this decision would
be addressed by Federal Register notice.
Dated: July 24, 1995.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-18611 Filed 7-27-95; 8:45 am]
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