[Federal Register Volume 60, Number 144 (Thursday, July 27, 1995)]
[Rules and Regulations]
[Pages 38487-38491]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18440]



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DEPARTMENT OF THE INTERIOR
30 CFR Parts 904,918, 936, and 943


Arkansas, Louisiana, Oklahoma, and Texas 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 Arkansas, Louisiana, Oklahoma, and Texas. 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 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 Arkansas, Louisiana, Oklahoma, and Texas and consideration of 
public comments, OSM has decided that initial enforcement is not 
reasonably likely to be required and that implementation in these 
States will be accomplished through the State program amendment 
process.

EFFECTIVE DATE: July 27, 1995.

FOR FURTHER INFORMATION CONTACT:
Tim L. Dieringer, Acting Director, Tulsa Field Office, Telephone: (918) 
581-6430.

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.

    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 

[[Page 38488]]
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 17498) 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 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 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 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 implement 
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 
implement the definitions at 30 CFR 701.5 for operations conducted 
after October 24, 1992.

C. Enforcement in Arkansas

Arkansas Program Activity, Requirements, and Enforcement

    By letter to Arkansas dated December 15, 1994, OSM requested 
information from Arkansas that would help OSM decide which approach to 
take in Arkansas to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Arkansas program provisions (Administrative Record No. AR-542). By 
letter dated January 30, 1995, Arkansas respond to OSM's request 
(Administrative Record No. AR-543).
    Arkansas stated that one underground coal mine was active in 
Arkansas after October 24, 1992. Arkansas indicated that its existing 
State law and its regulations at Arkansas Surface Coal Mining and 
Reclamation Code (ASCMRC) Sections 779.17, 780.21(e), 783.17, 784.14, 
784.20(c), 816.54, and 816.124-U(b) and (c) are adequate State 
counterparts to section 720(a) of SMCRA and the implementing Federal 
regulations. Arkansas did not indicate when the existing State 
counterpart provisions went into effect. However, Arkansas did indicate 
that it had not received any 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.
    On May 31, 1995, OSM confirmed with Arkansas that one underground 
coal mine was active after October 24, 1992, and that no citizen 
complaints alleging subsidence-caused material damage or water supply 
loss or contamination as a result of this operation had been received 
by Arkansas (Administrative Record No. AR-553). Arkansas stated its 
intention to actively pursue and promulgate regulations conforming to 
the Federal regulations once it receives a 30 CFR Part 732 notification 
from OSM.

[[Page 38489]]

    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17498) 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 Arkansas (Administrative Record 
No. AR-552). 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 
(Administrative Record No. AR-554). These comments apply not only to 
the Arkansas program but also to the Louisiana, Oklahoma, and Texas 
programs (Administrative Record Nos. LA-356, OK-971, and TX-592) that 
are addressed below.
    The party commented 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. The 
party also commented that the waiving of ten-day notice procedures 
under 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). These concerns about direct Federal enforcement 
are moot issues for these States 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 
Arkansas, the Tulsa Field Office on May 31, 1995, consulted with 
Arkansas in accordance with 30 CFR 843.25(a)(4) (Administrative Record 
No. AR-553). Based upon the location of the existing and projected 
underground mining, 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 thee circumstances, the Tulsa Field Office and Arkansas 
agreed that it is unlikely that any State or Federal enforcement would 
be necessary in the State during the interim period between October 24, 
1992, and the date by which Arkansas 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 
Arkansas is not reasonably likely to be required and that 
implementation will be accomplished through the State program amendment 
process. In the near future, and in accordance with 30 CFR 732.17(d), 
OSM intends to notify Arkansas of the specific revisions that it must 
make to its regulatory program to be no less stringent than SMCRA and 
no less effective than the implementing Federal regulations.
    If circumstances within Arkansas change significantly, the Regional 
Director may repasses this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

D. Enforcement in Louisiana

Louisiana Program Activity, Requirements, and Enforcement

    By letter of Louisiana dated January 23, 1995, OSM requested 
information from Louisiana that would help OSM decide which approach to 
take in Louisiana to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Louisiana program provisions (Administrative Record No. LA-352). By 
letter dated February 7, 1995, Louisiana responded to OSM's request 
(Administrative Record No. LA-353). Louisiana indicated that its 
regulatory program does not include provisions for underground coal 
mining and that no underground coal mines have operated in Louisiana 
after October 24, 1992.
    On May 30, 1995, OSM confirmed with Louisiana that no underground 
coal mines have operated in Louisiana after October 24, 1992, and that 
there is no underground mining activity proposed in the State 
(Administrative Record No. LA-355). Prior to the issuance of any permit 
allowing underground mining, Louisiana 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 17498) 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 Louisiana (Administrative Record 
No. LA-354). 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 Arkansas program, and OSM's responses 
to them, also apply to the Louisiana program.
    Regional Director's decision. Prior to the Regional Director making 
this decision on which enforcement alternative should be implemented in 
Louisiana, the Tulsa Field Office on May 30, 1995, consulted with 
Louisiana in accordance with 30 CFR 843.25(a)(4) (Administrative Record 
No. LA-355).
    The Louisiana program does not currently allow underground coal 
mining. Prior to issuing a permit allowing underground mining, 
Louisiana 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 Louisiana 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 comments 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 Louisiana underground mining 
permit.
    If circumstances within Louisiana change significantly, the 
Regional Director may reassess this decision. Formal reassessment of 
this decision would be addressed by Federal Register notice.

E. Enforcement in Oklahoma

Oklahoma Program Activity, Requirements, and Enforcement

    By letter to Oklahoma dated January 23, 1995, OSM requested 
information from Oklahoma that would help OSM decide which approach to 
take in Oklahoma to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal 

[[Page 38490]]
regulations, and/or counterpart Oklahoma program provisions 
(Administrative Record No. OK-965). By letter dated February 8, 1995, 
Oklahoma responded to OSM's request (Administrative Record No. OK-966).
    Oklahoma stated that one underground coal mine was active after 
October 24, 1992, and one underground mine was constructing surface 
facilities as of February 8, 1995.
    Oklahoma indicated that the State regulation at OAC 460:20-45-47(c) 
(previously codified as section 817.121(c)) addresses repair or 
compensation of subsidence-related material damage to structures and 
replacement of water supplies contaminated or diminished due to 
subsidence. However, Oklahoma indicated that this regulation ``is not 
as clearly written'' as the new Federal regulations and that it 
includes ``vague statements * * * regarding structures, facilities, and 
any drinking, domestic or residential water supplies'' that will be 
clarified once the regulation is revised in accordance with the new 
Federal regulations.
    Oklahoma did not indicate when the State counterpart provisions 
went into effect. However, Oklahoma stated that it had investigated one 
citizen complaint alleging subsidence-related damage for underground 
mining operations conducted after October 24, 1992, and it issued a 
violation notice as a result of the complaint. OSM has determined that 
the citizen complaint did not involve structural damage or water supply 
loss or contamination.
    On May 23, 1995, OSM confirmed with Oklahoma that one underground 
coal mine was active after October 24, 1992 (Administrative Record No. 
OK-970). This mine is no longer producing coal, and the underground 
mine workings are not extensive. The other permitted underground mine 
was continuing development work and had not produced coal by 
underground mining methods. Oklahoma stated its intention to actively 
pursue and promulgate regulations conforming to the Federal regulations 
once it receives a 30 CFR Part 732 notification from OSM 
(Administrative Record No. OK-969). It stated that it believed this 
process would take approximately 12 months to implement.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17498) 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 Oklahoma (Administrative Record 
No. OK-968). 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 Arkansas program, and OSM's responses 
to them, also apply to the Oklahoma program.
    Regional Director's decision. Prior to the Regional Director making 
this decision on which enforcement alternative should be implemented in 
Oklahoma, the Tulsa Field Office on May 23, 1995, consulted with 
Oklahoma in accordance with 30 CFR 843.25(a)(4) (Administrative Record 
No. OK-970). Based upon the location of the existing and projected 
underground mining, 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, the Tulsa Field Office and 
Oklahoma agreed that it is unlikely that any State or Federal 
enforcement would be necessary in the State during the interim period 
between October 24, 1992, and the date by which Oklahoma 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 
Oklahoma is not reasonably likely to be required and that 
implementation will be accomplished through the State program amendment 
process. In the near future, and in accordance with 30 CFR 732.17(d), 
OSM intends to notify Oklahoma of the specific revisions that it must 
make to its regulatory program to be no less stringent than SMCRA and 
no less effective than the implementing Federal regulations.
    If circumstances within Oklahoma change significantly, the Regional 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

F. Enforcement in Texas

Texas Program Activity, Requirements, and Enforcement

    By letter to Texas dated January 23, 1995, OSM requested 
information from Texas that would help OSM decide which approach to 
take in Texas to implement the requirements of section 720(a) of SMCRA, 
the implementing Federal regulations, and/or the counterpart Texas 
program provisions (Administrative Record No. TX-587). By letter dated 
January 26, 1995, Texas responded to OSM's request (Administrative 
Record No. TX-588).
    Texas stated that no underground coal mines were operating in Texas 
after October 24, 1992.
    Texas stated that the Texas Surface Coal Mining and Reclamation Act 
currently has no counterpart to section 720 of SMCRA, and its 
regulations at section 817.564, regarding repair and compensation for 
damages occurring to buildings and other structures, and at section 
817.521, regarding replacement of water supplies, have no direct 
counterparts to OSM's proposed regulations at 30 CFR 817.121(c) and 
817.41(k).
    On May 30, 1995, OSM confirmed with Texas that no underground coal 
mines have operated in Texas after October 24, 1992, and that there is 
no underground mining activity proposed in the State (Administrative 
Record No. TX-591). Texas stated its intention to actively pursue and 
promulgate regulations conforming to the Federal regulations once it 
receives a 30 CFR Part 732 notification from OSM.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17498) 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 Texas (Administrative Record No. 
TX-590). 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 Arkansas program, and OSM's responses 
to them, also apply to the Texas program.
    Regional Director's decision. Prior to the Regional Director making 
this decision on which enforcement alternative should be implemented in 
Texas, the Tulsa Field Office on May 30, 1995, consulted with Texas in 
accordance with 30 CFR 843.25(a)(4) (Administrative Record No. TX-591). 
Because there has been no underground mining activity since October 24, 
1992, and there is no underground mining activity proposed in the 
State, the Tulsa Field Office and Texas agreed that it is unlikely that 
any State or Federal enforcement would be necessary in the State during 
the interim period between October 24, 1992, and the date by which 
Texas 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 

[[Page 38491]]
of the underground coal mine subsidence control and water replacement 
requirements in Texas is not reasonably likely to be required and that 
implementation will be accomplished through the State program amendment 
process. In the near future, and in accordance with 30 CFR 732.17(d), 
OSM intends to notify Texas of the specific revisions that it must make 
to its regulatory program to be no less stringent than SMCRA and no 
less effective than the implementing Federal regulations.
    If circumstances within Texas 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. 95-18440 Filed 7-26-95; 8:45 am]
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