[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Proposed Rules]
[Pages 17741-17743]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8636]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 935


Ohio Regulatory Program

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 Ohio 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 Ohio regulatory program (hereinafter 
referred to as the ``Ohio program'') currently has adequate counterpart 
provisions in place to promptly implement the recent amendments to 
SMCRA and the Federal regulations. After consultation with Ohio and 
consideration of public comments, OSM will decide whether initial 
enforcement in Ohio 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., E.D.T. May 8, 
1995. If requested, OSM will hold a public hearing on May 2, 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 Ohio. Requests to speak at the hearing must be 
[[Page 17742]] received by 4:00 p.m., E.D.T. on April 24, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand-delivered to Robert H. Mooney, Acting Director, 
Columbus Field Office at the address listed below.
    Copies of the applicable parts of the Ohio program SMCRA, the 
implementing Federal regulations, information provided by Ohio 
concerning its 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: Robert H. Mooney, Acting Director, Columbus Field Office, 
Office of Surface Mining Reclamation and Enforcement, Eastland 
Professional Plaza, 4480 Refugee Road, 2nd Floor, Columbus, Ohio 43232, 
Telephone: 614-866-0578

FOR FURTHER INFORMATION CONTACT: Robert H. Mooney, Acting Director, 
Columbus Field Office, Telephone: 614-866-0578

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 damage structures as a result of subsidence. Section 
702(a)(2) requires prompt replacement of certain identified water 
supplies if those supplies have been adversely affected by underground 
coal mining operations.
    These provisions require prompt repair or compensation for damage 
to structure, 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 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 (b) above, OSM would directly 
enforce [[Page 17743]] 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 under ground 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 Ohio

    By letter to Ohio dated December 15, 1994, OSM requested 
information from Ohio that would help OSM decide which approach to take 
in Ohio to implement the new requirements of section 720(a) of SMCRA 
and the implementing Federal regulations (Administrative Record No. OH-
2073). By letter dated January 18, 1995, Ohio responded to his OSM 
request (Administrative Record No. OH-2085).
    Ohio provided a list of permitted underground coal mining 
operations. There are currently eight underground coal mines that are 
producing coal. The number of coal producing underground coal mines in 
Ohio has been less than fifteen at any given time since October 24, 
1992. Ohio indicated that existing State program provisions at the Ohio 
Revised Code section 1513.152 and the Ohio Administrative Code sections 
1501:13-1-02(S); 1501:13-9-04(P); and 1501:13-12-03(C), (D), (E), (F), 
(H), (I) are adequate State counterparts to section 720 of SMCRA and 
the implementing Federal regulations. Ohio explained that it has 
enforced these State program provisions requiring replacement of water 
supplies impacted by underground mining operations since 1977 and 
enforced State program provisions requiring repair or compensation for 
subsidence related structural damage since 1988. Ohio has investigated 
26 citizen complaints alleging subsidence-caused structural damage or 
water supply loss or contamination as a result of underground mining 
operations conducted after October 24, 1992. To date, Ohio has made a 
determination on six of the complaints that water loss was not mining 
related and on six of the complaints that water loss was mining 
related. Fourteen complaints are still being investigated. Twelve of 
the 14 are related to water supplies associated with one underground 
coal mining operation and are not subsidence related.

II. Public Comment Procedures

    OSM is requesting public comment to assist OSM in making its 
decision on which approach to use in Ohio 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 Columbia 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., 
[Eastern Time zone] on April 15, 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 hearing, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss recommendations on 
how OSM and Ohio 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.
Richard J. Seibel,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 95-8636 Filed 4-6-95; 8:45 am]
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