[Federal Register Volume 60, Number 144 (Thursday, July 27, 1995)]
[Rules and Regulations]
[Pages 38482-38487]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18439]



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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: 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 Alaska, Montana, North Dakota, and Wyoming. 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 residential 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 Alaska, Montana, North Dakota, and Wyoming and 
consideration of public comments, OSM has decided that initial 
enforcement in Alaska and North Dakota will be accomplished through the 
State program amendment process; in Montana through State enforcement 
and, if necessary, direct Federal enforcement; and in Wyoming through 
State enforcement and the State program amendment process.

EFFECTIVE DATE: July 27, 1995.

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

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 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 
(60 FR 16722) to implement the performance standards of sections 
720(a)(1) and (2) of SMCRA.

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.


[[Page 38483]]

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, 
after consultation with each State regulatory authority with an 
approved program, how enforcement of the new requirements will be 
accomplished. As discussed in the April 6, 1995, Federal Register (60 
FR 17459) and as reiterated below, enforcement could be accomplished by 
State, OSM, or joint State and OSM enforcement of the requirements, or 
by a State after it has amended its program.
    (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 into 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 here 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 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 implement 
the new definitions at 30 CFR 701.5 of ``drinking, domestic or 
residential water supply,'' ``material damage,'' ``non-commercial 
building,'' ``occupied residential 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 
implement the definitions at 30 CFR 701.5 for operations conducted 
after October 24, 1992.

C. Enforcement in Alaska
    Alaska program activity, requirements, and enforcement. 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.

[[Page 38484]]

    Alaska concluded that it did not believe that it has the statutory 
authority to investigate complaints of structural damage or water loss 
caused by underground coal mining operations after October 24, 1992.
    On May 18, 1995, OSM confirmed with Alaska that no underground 
mines were active after October 24, 1992 (Administrative Record No. AK-
F-07). However, there is an underground coal mine exploration site that 
would likely be permitted within 6 months. Alaska has indicated that it 
would address the requirements of section 720(a) of SMCRA in its 
permitting process for this mine. Due to the remote location of this 
operation, it is highly unlikely that material damage to noncommercial 
buildings and to occupied residential dwellings and related structures 
and that damage to drinking, domestic, and residential water supplies 
would occur.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17495) notice of 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 Alaska (Administrative Record No. 
AK-F-04). The comment period closed on May 8, 1995. Because OSM did not 
receive a request for a public hearing, OSM did not hold one. OSM 
received comments from one party in response to its notice.
    The party stated that the enforcement alternatives incorporating 
total or partial direct interim Federal enforcement (items (3) and (4) 
in section B. above) have no statutory basis in SMCRA and are not 
consistent with Congress' intent in creating section 720 of SMCRA 
(Administrative Record No. AK-F-08). The party also 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 assertions, and it addressed similar comments in 
the March 31, 1995, Federal Register (60 FR 16722, 16742-16745) and 
also responds to these comments below in the ``Comments'' subsection of 
following Montana section D. These concerns about direct Federal 
enforcement are moot issues for Alaska because the Regional Director 
has decided, as set forth below, not to implement an enforcement 
alternative including direct Federal enforcement.
    Regional Director's decision. Prior to the Regional Director making 
this decision on which enforcement alternative should be implemented in 
Alaska, the Casper Field Office on May 18, 1995, consulted with Alaska 
in accordance with 30 CFR 843.25(a)(4) (Administrative Record No. AK-F-
07). Because there has been no underground mining activity since 
October 24, 1992; there is little likelihood for subsidence damage to 
noncommercial buildings and to occupied residential dwellings and 
related structures, or adverse effects to drinking, domestic, and 
residential water supplies by a proposed underground coal mining 
operation; and Alaska has indicated it would address the requirements 
of section 720(a) of SMRCA in the permit for the proposed mine, the 
Field Office and Alaska agreed that it is unlikely that any enforcement 
would be necessary in the State during the interim period between 
October 24, 1992, and the date by which Alaska revises its program in 
accordance with SMCRA and the Federal regulations.
    On this basis and the disposition of the comments received, the 
Regional Director decides the initial enforcement of the underground 
coal mine subsidence control and water replacement requirements in 
Alaska is not reasonably likely to be required and that implementation 
will be accomplished through the State program amendment process.
    If circumstances within Alaska change significantly, the Regional 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

D. Enforcement in Montana
Montana Program Activity, Requirements, and Enforcement

    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 mine 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.
    On May 3, 1995, Montana indicated its preferred enforcement 
alternative for the State (Administrative Record No. MT-13-05). Because 
it would enforce its currently approved program to the fullest extent 
and introduce in the 1997 legislative session program amendments to 
address the issues in its March 6, 1995, letter, Montana recommended 
that OSM only initiate direct Federal enforcement in the interim period 
(between October 24, 1992, and the effective date of Montana's revision 
of its program to be no less stringent than SMCRA and no less effective 
than the Federal regulations) when enforcement is needed and the 
Montana program falls short of the Federal standards.
    OSM has determined that only the one underground coal mine has 
operated after October 24, 1992, and that Montana has not received any 
complaints alleging subsidence-related structural damage or water 
supply loss or contamination as a result of this underground mine's 
operations conducted after October 24, 1992.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17495) notice of 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 Montana (Administrative Record 
No. MT-13-04). 

[[Page 38485]]
The comment period closed on May 8, 1995. Because OSM did not receive a 
request for a public hearing, OSM did not hold one. OSM received from 
the party that commented on the Alaska program the same comments for 
the Montana program (Administrative Record No. MT-13-12).
    The party stated that the enforcement alternatives incorporating 
total or partial direct interim Federal enforcement (items (3) and (4) 
in section 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 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.

Regional Director's Decision

    Prior to the Regional Director making this decision on which 
enforcement alternative should be implemented in Montana, the Casper 
Field Office on April 25, 1995, consulted with Montana in accordance 
with 30 CFR 843.25(a)(4) (Administrative Record No. MT-13-05).
    Only one Montana mine has operated after October 24, 1992, and is 
subject to the provisions of section 720(a) of SMCRA and the 
implementing Federal regulations. Neither Montana nor OSM have received 
any complaints alleging subsidence-related structural damage or water 
supply loss or contamination as a result of this underground mine's 
operations conducted after October 24, 1992. The 1997 projection for 
promulgating counterpart State statutory provisions is consistent with 
the State legislature schedule for meeting in regular session every 
other year. Montana would not promulgate rules to implement these 
statutory provisions until after the legislature's action.
    OSM agrees with Montana that the State should be the primary 
enforcer of its program provisions for subsidence-caused material 
damage to noncommercial buildings and to occupied residential dwellings 
and related structures and for drinking, domestic, and residential 
water supplies adversely affected by underground coal mining. It also 
agrees that if, during the interim period prior to Montana revising its 
program, Montana needs to, but is unable to, fully implement 
counterparts to the requirements of section 720(a) of SMCRA or the 
implementing regulations, OSM should initiate direct Federal 
enforcement.
    On this basis and the disposition of the comments received, the 
Regional Director decides that initial enforcement of the underground 
coal mine subsidence control and water replacement requirements in 
Montana will occur through State enforcement and, if necessary, direct 
Federal enforcement of sections 720(a) (1) and (2) of SMCRA and 30 CFR 
817.121 and 817.41(j).
    If circumstances within Montana change significantly, the Regional 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

E. Enforcement in North Dakota

North Dakota Program Activity, Requirements, and Enforcement

    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 indicated that its 
regulatory program does not include provisions for underground coal 
mining and that no underground coal mines have operated in North Dakota 
after October 24, 1992.
    On April 11, 1995, OSM confirmed with North Dakota that no 
underground coal mines have operated in North Dakota after October 24, 
1992, and that there is no underground mining activity proposed in the 
State (Administrative Record No. ND-W-07). Prior to the issuance of any 
permit allowing underground mining, North Dakota is aware that it would 
have to revise its program to incorporate underground mining provisions 
no less stringent than SMCRA and no less effective than the Federal 
regulations. Such provisions would include counterpart provisions to 
section 720(a) of SMCRA and the implementing Federal regulations.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17495) notice of 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 North Dakota (Administrative 
Record No. ND-W-08). The comment period closed on May 8, 1995. Because 
OSM did not receive a request for a public hearing, OSM did not hold 
one. The comments discussed above for the Alaska program, and OSM's 
responses to it, also apply to the North Dakota program (Administrative 
Record No. ND-W-09).

[[Page 38486]]


Regional Director's Decision

    Prior to the Regional Director making this decision on which 
enforcement alternative should be implemented in North Dakota, the 
Casper Field Office on May 30, 1995, consulted with North Dakota in 
accordance with 30 CFR 843.25(a)(4) (Administrative Record No. ND-W-
07).
    The North Dakota program does not currently allow underground coal 
mining. Prior to issuing a permit allowing underground mining, North 
Dakota would have to, through the State program amendment process, 
revise its program to incorporate underground mining provisions no less 
stringent than SMCRA and no less effective than the Federal 
regulations. These State provisions would include counterparts to 
section 720(a) of SMCRA and its implementing Federal regulations. Any 
underground mining permit that North Dakota would issue under the 
underground mining provisions it promulgated would have to address 
State counterparts to section 720(a) of SMCRA and its implementing 
Federal regulations. No underground mining activities could commence 
prior to the issuance of a permit.
    On this basis and the disposition of the comment received, the 
Regional Director decides that no State or Federal enforcement of 
underground coal mine subsidence control and water replacement 
provisions would be needed in the interim period between October 24, 
1992, and the date of issuance of any North Dakota underground mining 
permit.
    If circumstances within North Dakota change significantly, the 
Regional Director may reassess this decision. Formal reassessment of 
this decision would be addressed by Federal Register notice.

F. Enforcement in Wyoming

Wyoming Program Activity, Requirements, and Enforcement

    By letter of 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 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 provisions 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.
    On May 11, 1995, OSM corresponded with Wyoming and reiterated the 
available alternative enforcement decisions in the State 
(Administrative Record No. WY-29-09).
    On July 13, 1995, Wyoming sent to OSM a letter in which it stated 
that it preferred the State enforcement alternative (Administrative 
Record No. WY-29-12). Wyoming also stated that it interpreted its 
program and the Federal water replacement requirements (at section 
720(a)(2) of SMCRA and 30 CFR 817.41(j)) to apply only to valid water 
rights as determined by the Wyoming State Engineer. That is, Wyoming 
would not require an underground mine operator to replace a drinking, 
domestic, or residential water supply that was being used illegally in 
contradiction of water rights as determined by the State Engineer.
    OSM has determined that three underground coal mines have operated 
after October 24, 1992. For these mines, Wyoming has received the one 
complaint alleging subsidence-related damage to a water reservoir.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17495) notice of 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 Wyoming (Administrative Record 
No. WY-29-04). The comment period closed on May 8, 1995. Because OSM 
did not receive a request for a public hearing, OSM did not hold one. 
OSM received comments from three parties in response to its notice.
    The comments discussed above for the Alaska program, and OSM's 
responses to it, also apply to the Wyoming program (Administrative 
Record No. WY-29-11).
    A party supported the selection of the State enforcement 
alternative (Administrative Record No. WY-29-07). The Regional Director 
acknowledges this comment and took it into consideration before making 
the enforcement decision set forth below.
    A party commented that several of Wyoming's statutory provisions 
are less stringent than the Federal counterparts at section 720(a) of 
SMCRA and less effective than the implementing Federal regulations at 
30 CFR 817.121(c) and 817.41(j) (Administrative Record No. WY-29-08). 
Because of this, the party stated that OSM is required to provide 
direct Federal enforcement as set forth in item (3) of section B. of 
the April 6, 1995, Federal Register notice soliciting comment on the 
enforcement alternative that should be implemented in the State.
    In the near future, OSM intends to send a letter to Wyoming in 
accordance with 30 CFR 732.17(d) notifying Wyoming of revisions that 
need to be made to its program. OSM does not agree with the commenter's 
conclusion that OSM is required to institute Federal enforcement in the 
interim period because Wyoming's program is less stringent than SMCRA 
and less effective than the implementing Federal regulations. As set 
forth in item (1) of section B. of the April 6, 1995, Federal Register 
notice, OSM could decide not to directly enforce the Federal SMCRA and 
regulation provisions in the interim period in Wyoming if it found that 
the number and extent underground mines that have operated since 
October 24, 1992, is low, the number of complaints concerning section 
720 of SMCRA is low, the State's investigation of subsidence-related or 
water supply loss and contamination complaints has been thorough and 
complete so as to assure prompt remedial action, or the State's 
promulgation of counterparts to 30 CFR 817.41(j) and 817.121(c)(2) is 
imminent. Also, OSM could decide not to directly 

[[Page 38487]]
enforce the Federal SMCRA and regulation provisions if some other 
similar extenuating circumstances exist. Even though OSM does not agree 
with this comment supporting direct Federal enforcement, the Regional 
Director acknowledges it and took it into consideration before making 
the enforcement decision set forth below.

Regional Director's Decision

    Prior to the Regional Director making this decision on which 
enforcement alternative should be implemented in Wyoming, the Casper 
Field Office on May 11 and July 13, 1995, consulted with Wyoming in 
accordance with 30 CFR 843.25(a)(4) (Administrative Record Nos. WY-29-
09 and WY-29-12).
    Three Wyoming mines have operated after October 24, 1992, and are 
subject to the provisions of section 720(a) of SMCRA and the 
implementing Federal regulations. For one of these mines, Wyoming 
investigated a complaint relating to potential subsidence damage to a 
water reservoir.
    The Regional Director acknowledges Wyoming's determination that its 
program would not require an underground mine operator to replace a 
drinking, domestic, or residential water supply that was being used 
illegally in contradiction of water rights as determined by the State 
Engineer. OSM believes this position is not inconsistent with section 
720(a) of SMCRA regarding water supply replacement and section 717 of 
SMCRA regarding water rights. However, before OSM finally determines 
that Wyoming's program on this complicated issue is no less stringent 
than SMCRA, OSM will further review Wyoming's water right statutes, 
rules, policies, and procedures.
    OSM agrees with Wyoming that the State should be the enforcer of 
its program provisions for subsidence-caused material damage to 
noncommercial buildings and to occupied residential dwellings and 
related structures and for drinking, domestic, and residential water 
supplies adversely affected by underground coal mining. Based upon the 
number and location of the underground mines, the potential is low for 
material damage to noncommercial buildings, occupied residential 
dwellings, and related structures and for damage to drinking, domestic, 
or residential water supplies. Given these circumstances, it is 
unlikely that any enforcement would be necessary in the State during 
the interim period between October 24, 1992, and the date by which 
Wyoming revises its program in accordance with SMCRA and the Federal 
regulations.
    On this basis and the disposition of the comments received, the 
Regional Director decides that initial enforcement of the underground 
coal mine subsidence control and water replacement requirements in 
Wyoming will occur through State enforcement and the State program 
amendment process.
    If circumstances within Wyoming change significantly, the Regional 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

    Dated: July 19, 1995.
Russell F. Price,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 95-18439 Filed 7-26-95; 8:45 am]
BILLING CODE 4310-05-M