[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Proposed Rules]
[Pages 17504-17507]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8466]



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DEPARTMENT OF THE INTERIOR
30 CFR Parts 915, 916, and 925


Iowa, Kansas, and Missouri Regulatory Programs

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Announcement of public comment period and opportunity for 
public hearing.

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SUMMARY: OSM is requesting public comment that would be considered in 
deciding how to implement in Iowa, Kansas, and Missouri underground 
coal mine subsidence control and water replacement provisions of the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA), the 
implementing Federal regulations, and/or the counterpart State 
provisions. Recent amendments to 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. These provisions also require such 
operations to promptly replace drinking, domestic, and residential 
water supplies that have been adversely affected by underground coal 
mining.
    OSM must decide if Iowa's, Kansas', and Missouri's regulatory 
programs (hereinafter referred to as the ``Iowa, Kansas, and Missouri 
programs'') currently have adequate counterpart provisions in place to 
promptly implement the recent amendments to SMCRA and the Federal 
regulations. After consultation with Iowa, Kansas, and Missouri and 
consideration of public comments, OSM will decide whether initial 
enforcement in Iowa, Kansas, and Missouri will be accomplished through 
the State Program amendment process or by State enforcement, by interim 
direct OSM enforcement, or by joint State and OSM enforcement.

DATES: Written comments must be received by 4:00 p.m., c.d.t. on May 8, 
1995. If requested, OSM will hold a public hearing on May 1, 1995, 
concerning how the underground coal mine subsidence control and water 
replacement provisions of SMCRA and the implementing Federal 
regulations, or the counterpart State provisions, should be implemented 
in Iowa, Kansas, and Missouri. Requests to speak at the hearing must be 
received by 4:00 p.m., c.d.t. on April 21, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand-delivered to Michael C. Wolfrom, Acting Director, 
Kansas City Field Office at the address listed below.
    Copies of the applicable parts of the Iowa, Kansas, and Missouri 
programs, SMCRA, the implementing Federal regulations, information 
provided by Iowa, Kansas, and Missouri concerning their authority to 
implement State counterparts to SMCRA and the implementing Federal 
regulations, a listing of any scheduled public hearings, and all 
written comments received in response to this document will be 
available for public review at the address listed below during normal 
business hours, Monday through Friday, excluding holidays.
    Michael C. Wolfrom, Acting Director, Kansas City Field Office, 
Office of Surface Mining Reclamation and Enforcement, 934 Wyandotte, 
Room 500, Kansas City, MO 64105, Telephone: (816) 374-6405.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Acting Director, 
Kansas City Field Office, Telephone: (816) 374-6405.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Energy Policy Act

    Section 2504 of the Energy Policy Act of 1992, Public Law 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(a0(2) requires [[Page 17505]] 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 16722-16751).
    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.

    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 below, enforcement may 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. OSM will decide which of 
the following enforcement approaches to pursue.
    (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 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 thee 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)(20 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 item numbers (3) and (4) above, OSM would directly 
enforce in total or in part its Federal statutory or 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 number (1) above, OSM could decide not to initiate 
direct Federal enforcement and 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 Iowa

    By letter to Iowa dated December 14, 1994, OSM requested 
information from Iowa that would help OSM decide which approach to take 
in Iowa to implement the requirements of section 720(a) of SMCRA, the 
implementing Federal regulations, and/or the counterpart Iowa program 
requirements (Administrative Record No. IA-413). As of March 21, 1995, 
Iowa had not responded to OSM's request.
    OSM has determined that no underground coal mines were operating in 
Iowa after October 24, 1992.
    OSM's review of Iowa's program indicates that Iowa has not revised 
its [[Page 17506]] statute to incorporate counterparts to the 
requirements of section 720 of SMCRA. Also OSM's review indicates that 
(1) at Iowa Administrative Code (IAC) 27-40.64(207), Iowa incorporated 
30 CFR 817.41 as it existed on July 1, 1992, and (2) at IAC 27-
40.64(6), Iowa incorporated 30 CFR 817.121(c)(2) as it existed on July 
1, 1992, except the phrase ``To the extent required under applicable 
provisions of State law.''

D. Enforcement in Kansas

    By letter to Kansas dated December 14, 1994, OSM requested 
information from Kansas that would help OSM decide which approach to 
take in Kansas to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Kansas program requirements (Administrative Record No. KS-594). By 
letter dated February 3, 1995, Kansas responded to OSM's request 
(Administrative Record No. KS-595).
    Kansas stated that no underground coal mines were operating in 
Kansas after October 24, 1992.
    Kansas indicated that at Kansas Administrative Regulations (KAR) 
47-9-1(d)(40), it adopted 30 CFR 817.121 as it existed on July 1, 1990, 
and is in the process of promulgating regulations adopting 30 CFR 
817.121 as it was written on July 1, 1992. Kansas stated that this 
revised regulation will authorize the repair of structural damage 
caused by subsidence in accordance with section 720(a)(1) of SMCRA as 
it existed on December 31, 1993.
    Kansas further indicated that it has the authority to investigate 
complaints concerning water loss through the material damage criteria 
of KAR 47-9-1(d)(40, which adopts by reference 30 CFR 817.121(a), and 
through its hydrologic balance regulations at KAR 47-9-1(d)(7), which 
adopts by reference 30 CFR 817.41. It further stated that any drinking 
domestic, or residential water supply, or other beneficial use as 
defined by the Kansas Water Appropriations Act, which is impaired by 
diversion or is otherwise impaired, would have to be replaced according 
to Kansas Statutes Annotated (KSA) 82a-706b. Lastly, Kansas stated that 
any waters of the state whose quality is adversely impacted will have 
to be cleaned up at the owner's expense as provided for in KSA 65-171 
et seq.
    Kansas concluded that the above-discussed regulations and statutes 
adequately encompass the requirements of section 720(a) of SMCRA.

E. Enforcement in Missouri

    By letter to Missouri dated December 14, 1994, OSM requested 
information from Missouri that would help OSM decide which approach to 
take in Missouri to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Missouri program provisions (Administrative Record No. MO-619. By 
letter dated February 16, 1995, Missouri responded to OSM's request 
(Administrative Record No. MO-620).
    OSM determined that no underground coal mines were operating in 
Missouri after October 24, 1992.
    Missouri stated that the subsidence plan permitting requirements at 
10 Missouri Code of State Regulations (CSR) 40-6.120(11) and the 
performance standards for subsidence control at 10 CSR 40-3.280 
generally correspond to the requirements of section 720(a)(1) of SMCRA. 
In these regulations, Missouri requires the permit applicant to submit 
a plan detailing steps to prevent subsidence damage or mitigate effects 
of that damage to ``structure or renewable resource lands.'' Missouri 
interprets ``structures to broadly mean any building, whether occupied 
or unoccupied, and it defines ``renewable resource lands'' as 
``aquifers and areas for the recharge of aquifers and other underground 
waters, areas for agricultural or silviculture production for food and 
fiber, and grazing lands.''
    Missouri also stated that the underground mining permit 
requirements for alternate water supply at 10 CSR 40-6.110(8) and 
protection of hydrologic balance requirements at 10 CSR 40-
6.120(5)(b)3., together with the performance requirements for water 
rights replacement at 10 CSR 40-3.200(14), generally correspond to 
section 720(a)(2) of SMCRA.
    Missouri indicated that all of the above-discussed regulations have 
effective dates preceding October 24, 1992, and appear to provide 
Missouri authority to enforce the provisions of section 720 of SMCRA.

II. Public Comment Procedures

    OSM is requesting public comment to assist OSM in making its 
decision on which approach to use in Iowa, Kansas, and Missouri to 
implement the underground coal mine performance standards of section 
720(a) of SMCRA, the implementing Federal regulations, and any 
counterpart State provisions.

A. Written Comments

    Written comments should be specific, pertain only to the issues 
addressed in this notice, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Kansas City Field Office 
will not necessarily be considered in OSM's final decision or included 
in the Administrative Record.

B. Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
c.d.t. on April 21, 1995. The location and time of the hearing will be 
arranged with those persons requesting the hearing. If no one requests 
an opportunity to testify at the public hearing, the hearing will not 
be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. Persons in the audience who 
have not been scheduled to speak, and who wish to do so, will be heard 
following those who have been scheduled. The hearing will end after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.

C. Public Meeting

    If only a few persons request an opportunity to speak at a hearing, 
a public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss recommendations on 
how OSM and Iowa, Kansas, and Missouri should implement the provisions 
of section 720(a) of SMCRA, the implementing Federal regulations, and/
or the counterpart State provisions, may request a meeting by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All 
such meetings will be open to the public and, if possible, notices of 
meetings will be posted at the locations listed under ADDRESSES. A 
written summary of each meeting will be made a part of the 
Administrative Record.

    [[Page 17507]] Dated: March 31, 1995.
Russell F. Price,
Acting Assistant Director, Western Support Center.
[FR Doc. 95-8466 Filed 4-5-95; 8:45 am]
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