[Federal Register Volume 60, Number 69 (Tuesday, April 11, 1995)]
[Proposed Rules]
[Pages 18381-18384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8889]



-----------------------------------------------------------------------


DEPARTMENT OF THE INTERIOR
30 CFR Part 948


West Virginia Regulatory Program

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

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

-----------------------------------------------------------------------

SUMMARY: OSM is requesting public comment that would considered in 
deciding how to implement in West Virginia, 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 [[Page 18382]] 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 West Virginia regulatory program 
(hereinafter referred to as the ``West Virginia program'') currently 
has adequate counterpart provisions in place to promptly implement the 
recent amendments to SMCRA and the Federal regulators. After 
consultation with West Virginia and consideration of public comments, 
OSM will decide whether initial enforcement in West Virginia 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. on May 
11, 1995. If requested, OSM will hold a public hearing on May 8, 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 West Virginia. Requests to speak at the hearing must be received by 
4:00 p.m., E.D.T. on April 26, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand-delivered to James C. Blankenship, Jr., Director, 
Charleston Field Office at the address listed below.
    Copies of the applicable parts of the West Virginia program, SMCRA, 
the implementing Federal regulations, information provided by West 
Virginia 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.

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

    In addition, copies of the applicable portions of the approved 
State program and information provided by West Virginia concerning its 
authority to implement the State counterparts to section 720 of SMCRA 
and its implementing regulations are available for review during 
regular business hours at the following locations:

Office of Surface Mining Reclamation and Enforcement, Morgantown Area 
Office, 75 High Street, Room 229, P.O. Box 886, Morgantown, West 
Virginia 26506, Telephone: (304) 291-4004
Office of Surface Mining Reclamation and Enforcement, Beckley Area 
Office, 323 Harper Park Drive, Suite 3, Beckley, West Virginia 25801, 
Telephone: (304) 255-5265.
Office of Surface Mining Reclamation and Enforcement, Logan Area 
Office, 313 Hudgins Street, 2nd Floor, P.O. Box 506, Logan, West 
Virginia 25601, Telephone: (304) 752-2851

FOR FURTHER INFORMATION CONTACT:James C. Blankenship, Jr., Director, 
Charleston Field Office, Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION: 

I. Background

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 the owner 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.
    The 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. [[Page 18383]] 
    (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 those 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 resumption 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 701.5, 817.41(j), and 817.121(c)(2) and 
(4) for operations conducted after October 24, 1992.

 C. Enforcement in West Virginia

    By letter to West Virginia dated December 16, 1994, OSM requested 
information from West Virginia that would help OSM decide which 
approach to take in West Virginia to implement the new requirements of 
section 720(a) of SMCRA and the implementing Federal regulations 
(Administrative Record No. WV 965). By letter dated January 11, 1995, 
West Virginia responded to this OSM request (Administrative Record No. 
WV 966).
    On January 11, 1995, 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 Secs. 22A-3-14(b)(1) and 
22A-3-24(b) of the West Virginia Code and/or West Virginia Code of 
State Regulations (CSR) Secs. 38-2-14.5(h) and 38-2-16.2 would ensure 
compliance with section 720 of SMCRA.
    West Virginia noted that Sec. 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 acknowledged 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 diminution 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 and/or corrective measures taken, or (3) are 
problems under continuing investigation to determine whether caused by 
mining.

II. Public Comment Procedures

    OSM is requesting public comment to assist OSM in making its 
decision on which approach to use in West Virginia 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 
[[Page 18384]] support of the commenter's recommendations. Comments 
received after the time indicated under DATES or at locations other 
than the Charleston Field Office will not necessarily be considered in 
OSM's final decision or included in the Administrative Record.

B. Public Hearings

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
E.D.T. on April 26, 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 West Virginia 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: April 5, 1995.
Richard J. Seibel,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 95-8889 Filed 4-10-95; 8:45 am]
BILLING CODE 4310-05-M