[Federal Register Volume 60, Number 144 (Thursday, July 27, 1995)]
[Rules and Regulations]
[Pages 38496-38500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18442]



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DEPARTMENT OF THE INTERIOR
30 CFR Parts 915, 916, and 925


Iowa, Kansas, and Missouri 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 Iowa, Kansas, and Missouri. 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 
Iowa, Kansas, and Missouri 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:
Michael C. Wolfrom, Acting Director, Kansas City Field Office, 
Telephone: (816) 374-6405.

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 

[[Page 38497]]
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 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 17504) 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 or 
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 he 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.

[[Page 38498]]


C. Enforcement in Iowa

Iowa Program Activity, Requirements, and Enforcement

    By letter to Iowa dated December 14, 1994, OSM requested 
information from Iowa that would help OSM decide which approach to take 
in Iowa to implement the requirements of section 720(a) of SMCRA, the 
implementing Federal regulations, and/or the counterpart Iowa program 
requirements (Administrative Record No. IA-413). Iowa did not respond 
to this request.
    OSM determined that Iowa has not revised its statute to incorporate 
counterparts to the requirements of section 720 of SMCRA.
    On May 9, 1995, OSM confirmed with Iowa that no underground coal 
mines have operated in Iowa after October 24, 1992, and that there is 
no underground mining activity proposed in the State (Administrative 
Record No. IA-418). At that time, OSM also discussed whether the State 
has counterparts to the implementing Federal regulations.
    Iowa has not revised its regulations to incorporate counterparts to 
the Federal regulations implementing the SMCRA provisions. OSM's review 
of Iowa's regulations indicates that (1) at Iowa Administrative Code 
(IAC) 27-40.64(207), Iowa incorporated 30 CFR 817.41 as it existed on 
July 1, 1992, and (2) at IAC 27-40.64(6), Iowa incorporated 30 CFR 
817.121(c)(2) as it existed on July 1, 1992, except the phrase ``To the 
extent required under applicable provisions of State law.''
    Iowa has not proposed a schedule to OSM for when it will revise its 
program to be no less stringent than SMCRA and no less effective than 
the Federal regulations.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17504) 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 Iowa (Administrative Record No. 
IA-415). 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. IA-419). These comments apply not only to 
the Iowa program but also to the Kansas and Missouri programs that are 
addressed below (Administrative Record Nos. KS-598 and MO-632).
    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 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). 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 
Iowa, the Kansas City Field Office on May 9, 1995, consulted with Iowa 
in accordance with 30 CFR 843.25(a)(4) (Administrative Record No. IA-
418). Because there has been no underground mining activity since 
October 24, 1992, and there is no underground mining activity proposed 
in the State, the Field Office and Iowa 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 Iowa 
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 Iowa 
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 
Iowa 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 Iowa change significantly, the Regional 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

D. Enforcement in Kansas

Kansas Program Activity, Requirements, and Enforcement

    By letter to Kansas dated December 14, 1994, OSM requested 
information from Kansas that would help OSM decide which approach to 
take in Kansas to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Kansas program requirements (Administrative Record No. KS-594). By 
letter dated February 3, 1995, Kansas responded to OSM's request 
(Administrative Record No. KS-595).
    Kansas stated that no underground coal mines were operating in 
Kansas after October 24, 1992, and that there is no underground mining 
activity proposed in the State.
    OSM has determined that Kansas has not revised its statute to 
incorporate counterparts to the requirements of section 720(a) of 
SMCRA. Although not specifically stated, Kansas' letter implies that 
the provisions can be implemented in the State program through the 
promulgation of regulations.
    Kansas indicated that at Kansas Administrative Regulations (KAR) 
47-9-1(d)(40), it adopted 30 CFR 817.121 as it existed on July 1, 1990, 
and was in the process of promulgating regulations adopting 30 CFR 
817.121 as it was written on July 1, 1992. Kansas stated that this 
revised regulation will authorize the repair of structural damage 
caused by subsidence in accordance with section 720(a)(1) of SMCRA as 
it existed on December 31, 1993.
    Kansas further indicated that it has the authority to investigate 
complaints concerning water loss through the material damage criteria 
of KAR 47-9-1(d)(40), which adopts by reference 30 CFR 817.121(a), and 
through its hydrologic balance regulations at KAR 47-9-1(d)(7), which 
adopts by reference 30 CFR 817.41. It further stated that any drinking, 
domestic, or residential water supply, or other beneficial use as 
defined by the Kansas Water Appropriations Act, which is impaired by 
diversion or is otherwise impaired, would have to be replaced according 
to Kansas Statutes Annotated (KSA) 82a-706b. Lastly, Kansas stated that 
any waters of the state whose quality is adversely impacted will have 
to be cleaned up at the owner's expense as provided for in KSA 65-171 
et seq.
    Kansas concluded that the above-discussed regulations and statutes 
adequately encompass the requirements of section 720(a) of SMCRA.
    Kansas made these statements about the effectiveness of its 
regulations on February 3, 1995, prior to the publication of the 
Federal regulations on March 31, 1995. On May 5, 1995, after Kansas had 
an opportunity to review the new Federal regulations, OSM discussed 
with Kansas the Federal 

[[Page 38499]]
requirements and whether Kansas still believed that its regulations 
contained the necessary counterparts to the Federal regulations 
(Administrative Record No. KS-597). At that time, it concluded that it 
did not.
    Kansas indicated that it is under a moratorium for promulgating new 
regulations under its State rulemaking process, but that it will 
propose new regulations that are counterparts to the Federal 
regulations at the first opportunity to do so. Such new regulations 
could not be expected to be promulgated until 1997 or 1998.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17504) 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 Kansas (Administrative Record No. 
KS-596). 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 Iowa program, and OSM's responses to 
them, also apply to the Kansas program.
    Regional Director's decision. Prior to the Regional Director making 
this decision on which enforcement alternative should be implemented in 
Kansas, the Kansas City Field Office on May 5, 1995, consulted with 
Kansas in accordance with 30 CFR 843.25(a)(4) (Administrative Record 
No. KS-597). Because there has been no underground mining activity 
since October 24, 1992, and there is no underground mining activity 
proposed in the State, the Field Office and Kansas 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 Kansas 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 
Kansas 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 Kansas 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 Kansas change significantly, the Regional 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

E. Enforcement in Missouri

Missouri Program Activity, Requirements, and Enforcement

    By letter to Missouri dated December 14, 1994, OSM requested 
information from Missouri that would help OSM decide which approach to 
take in Missouri to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Missouri program provisions (Administrative Record No. MO-619). By 
letter dated February 16, 1995, Missouri responded to OSM's request 
(Administrative Record No. MO-620).
    Missouri stated that the subsidence plan permitting requirements at 
10 Missouri Code of State Regulations (CSR) 40-6.120(11) and the 
performance standards for subsidence control at 10 CSR 40-3.280 
generally correspond to the requirements of section 720(a)(1) of SMCRA. 
In these regulations, Missouri requires the permit applicant to submit 
a plan detailing steps to prevent subsidence damage or mitigate effects 
of that damage to ``structures or renewable resource lands.'' Missouri 
interprets ``structures'' to broadly mean any building, whether 
commercial or noncommercial and whether occupied or unoccupied, and it 
defines ``renewable resource lands'' as ``aquifers and areas for the 
recharge of aquifers and other underground waters, areas for 
agricultural or silviculture production for food and fiber, and grazing 
lands.''
    Missouri also stated that the underground mining permit 
requirements for alternate water supply at 10 CSR 40-6.110(8) and 
protection of hydrologic balance requirements at 10 CSR 40-
6.120(5)(B)3., together with the performance requirements for water 
rights replacement at 10 CSR 40-3.200(14), generally correspond to 
section 720(a)(2) of SMCRA.
    Missouri indicated that all of the above-discussed regulations have 
effective dates preceding October 24, 1992, and appear to provide 
Missouri authority to enforce the provisions of section 720 of SMCRA.
    On May 10, 1995, OSM confirmed with Missouri that no underground 
coal mines have operated in Missouri after October 24, 1992, and there 
is no underground mining activity proposed in the State (Administrative 
Record No. MO-631).
    Missouri indicated that it would propose regulation revisions that 
are intended to be no less effective than the Federal regulations in 
the next amendment that it submits to OSM.
    Comments. On April 6, 1995, OSM published in the Federal Register 
(60 FR 17504) 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 Missouri (Administrative Record 
No. MO-628). 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 Iowa program, and OSM's response to 
them, also apply to the Missouri program.
    Regional Director's decision. Prior to the Regional Director making 
this decision on which enforcement alternative should be implemented in 
Missouri, the Kansas City Field Office on May 10, 1995, consulted with 
Missouri in accordance with 30 CFR 843.25(a)(4) (Administrative Record 
No. MO-631). Because there has been no underground mining activity 
since October 24, 1992, and there is no underground mining activity 
proposed in the State, the Field Office and Missouri agree that it is 
unlikely that any Federal or State enforcement would be necessary in 
the State during the interim period between October 24, 1992, and the 
date by which Missouri 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 
Missouri 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 Missouri 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 Missouri change significantly, the Regional 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.


[[Page 38500]]

    Dated: July 19, 1995.
Russell F. Price,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 95-18442 Filed 7-26-95; 8:45 am]
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