[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Proposed Rules]
[Pages 17495-17498]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8467]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 902, 926, 934, and 950


Alaska, Montana, North Dakota, and Wyoming 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 Alaska, Montana, North Dakota, and Wyoming 
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 the Alaska, Montana, North Dakota, and Wyoming 
regulatory programs (hereinafter referred to as the ``Alaska, Montana, 
North Dakota, and Wyoming programs'') currently have adequate 
counterpart provisions in place to promptly implement the recent 
amendments to SMCRA and the Federal regulations. After consultation 
with Alaska, Montana, North Dakota, and Wyoming and consideration of 
public comments, [[Page 17496]] OSM will decide whether initial 
enforcement in Alaska, Montana, North Dakota, and Wyoming 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., m.d.t. on May 8, 
1995. If requested, OSM will hold a public hearing on May 1, 1995, 
concerning how the underground coal mine subsistence control and water 
replacement provisions of SMCRA and the implementing Federal 
regulations, or the counterpart State provisions, should be implemented 
in Alaska, Montana, North Dakota, and Wyoming. Requests to speak at the 
hearing must be received by 4:00 p.m., m.d.t. on April 21, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand-delivered to Guy Padgett, Director, Casper Field 
Office at the address listed below.
    Copies of the applicable parts of the Alaska, Montana, North 
Dakota, and Wyoming programs, SMCRA, the implementing Federal 
regulations, information provided by Alaska, Montana, North Dakota, and 
Wyoming 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.
    Guy Padgett, Director, Office of Surface Mining Reclamation and 
Enforcement, Casper Field Office, 100 E ``B'' Street, Room 2128, 
Casper, Wyoming 82601, Telephone: (307) 261-5776.

FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Director, Casper Field Office, Telephone: (307) 261-5776.

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(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 16722-16751).
    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 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 
[[Page 17497]] 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 Alaska

    By letter to Alaska dated December 15, 1994, OSM requested 
information from Alaska that would help OSM decide which approach to 
take in Alaska to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Alaska program provisions (Administrative Record No. AK-F-01). By 
letter dated January 27, 1995, Alaska responded to OSM's request 
(Administrative Record No. AK-F-02).
    Alaska stated that no underground coal mines were operating in 
Alaska after October 24, 1992.
    Alaska stated that its program does not contain or authorize 
enforcement of the structural damage repair and water supply 
replacement requirements of section 720(a) of SMCRA. To be no less 
stringent than SMCRA, Alaska indicated that it would have to amend 
section 27.21.220 of the Alaska Surface Coal Mining Control and 
Reclamation Act to add subsection (c) to require prompt repair or 
compensation for material damage resulting subsidence, and prompt 
replacement of water supplies affected by underground coal mining 
operations. It indicated that it realistically believed that this 
statutory change could be made in the spring of 1996.
    Alaska concluded that it did not believe that it has the statutory 
authority to investigate complaints of structural damage or water loss 
caused by under coal mining operations after October 24, 1992.

D. Enforcement in Montana

    By letter to Montana dated December 15, 1994, OSM requested 
information from Montana that would help OSM decide which approach to 
take in Montana to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Montana program provisions (Administrative Record No. MT-13-01). By 
letter dated March 6, 1995, Montana responded to OSM's request 
(Administrative Record No. MT-13-02).
    Montana stated that one underground coal mines was active in 
Montana after October 24, 1992. Montana stated that its program does 
not fully authorize enforcement of the structural repair and water 
replacement requirements of section 720(a) of SMCRA and the 
implementing Federal regulations.
    Specifically, Montana indicated that (1) Administrative Rules of 
Montana 26.4.911(5), which address compensation for structural damage 
resulting from subsidence, are not clearly authorized by the subsidence 
prevention provisions of section 82-4-231(10)(f) of the Montana Strip 
and Underground Mine Reclamation Act (MSUMRA); (2) section 82-4-253(2) 
of MSUMRA excepts water derived from ``a subterranean stream having a 
permanent, distinct, and known channel'' from the requirement for 
underground coal miners to promptly replace drinking, domestic, or 
residential water supplies affected underground coal mining, and (3) 
the procedural requirements of section 82-4-253(2) of MSUMRA would not, 
in Montana's opinion, result in ``prompt'' replacement of water 
supplies adversely affected by underground coal mining.
    Montana has stated that statutory changes to address these issues 
will need to be sought in the next legislative session in January 1997, 
and subsequent rule changes would follow adoption of statute changes. 
OSM has determined that Montana has not received or investigated any 
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.

E. Enforcement in North Dakota

    By letter to North Dakota dated December 15, 1994, OSM requested 
information from North Dakota that would help OSM decide which approach 
to take in North Dakota to implement the requirements of section 720(a) 
of SMCRA, the implementing Federal regulations, and/or the counterpart 
North Dakota program provisions (Administrative Record No. ND-W-01). By 
letter dated December 21, 1994, North Dakota responded to OSM's request 
(Administrative Record No. ND-W-02).
    North Dakota stated that no underground coal mines were operating 
in North Dakota after October 24, 1992. North Dakota's regulatory 
program does not allow underground mining at the present time. In the 
event that North Dakota received an application for underground mining, 
North Dakota would have to revise its program to incorporate 
counterpart provisions to section 720(a) of SMCRA and the implementing 
Federal regulations.

F. Enforcement in Wyoming

    By letter to Wyoming dated December 15, 1994, OSM requested 
information from Wyoming that would help OSM decide which approach to 
take in Wyoming to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal [[Page 17498]] regulations, and/or the 
counterpart Wyoming program provisions (Administrative Record No. WY-
29-01). By letter dated January 19, 1995, Wyoming responded to OSM's 
request (Administrative Record No. WY-29-02).
    Wyoming stated that three underground coal mines were active in 
Wyoming after October 24, 1992. Wyoming indicated that existing State 
program provision at Wyoming Statutes 35-11-102 (policy and purpose); 
35-11-406 (permit applications); 35-11-416 (surface owner protection); 
and 35-11-428 (in situ mining permit applications); and Wyoming Coal 
Rules and Regulations at chapter VI, section 2 (general environmental 
performance standards); chapter VII, sections 1 through 4 (underground 
mining permit applications, environmental protection performance 
standards, public notice, and surface owner protection); and chapter 
XVIII, section 3 (in situ mining permit applications) are adequate 
State counterparts to section 720(a) of SMCRA and the implementing 
Federal regulations.
    Wyoming explained that it will enforce these State program 
provisions in accordance with the enforcement provisions that were in 
effect October 24, 1992. Wyoming has investigated one citizen complaint 
alleging subsidence-caused structural damage or water supply loss or 
contamination as a result of underground mining operations conducted 
after October 24, 1992. This complaint concerned subsidence damage to a 
reclaimed reservoir. This is a unique situation in that the alleged 
damage occurred within the permit area of an adjacent surface coal 
mine. The two mine operators have mutually agreed upon corrective 
measures and have not requested the State of Wyoming to intervene.

II. Public Comment Procedures

    OSM is requesting public comment to assist OSM in making its 
decision on which approach to use in Alaska, Montana, North Dakota, and 
Wyoming 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 Casper 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., 
m.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 Alaska, Montana, North Dakota, and Wyoming 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.

    Dated: March 31, 1995.
Russell F. Price,
Acting Assistant Director, Western Support Center.
[FR Doc. 95-8467 Filed 4-5-95; 8:45 am]
BILLING CODE 4310-05-M