[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38691-38694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18584]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 948


West Virginia Regulatory Program

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 West Virginia. 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 West 
Virginia and consideration of public comments, OSM has decided that 
initial enforcement in West Virginia will be accomplished through State 
enforcement.

EFFECTIVE DATE: July 28, 1995.

FOR FURTHER INFORMATION CONTACT:  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.

[[Page 38692]]


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

    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 
noncommercial 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, in consultation with each State 
regulatory authority with an approved program, how enforcement of the 
new requirements will be accomplished. As discussed in the April 11, 
1995, Federal Register (60 FR 18381) and as reiterated below, 
enforcement could 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.

    (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 provision's 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 that 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 enforce 
the new definitions at 30 CFR 701.5 of ``drinking, domestic or 
residential water supply,'' ``material damage,'' ``non-commercial 
buildings,'' ``occupied dwelling and structures related thereto,'' and 
``replacement of water supply'' that were adopted with the new 
underground mining performance standards.
    OSM would enforce 30 CFR 817.41(j), 817.121(c)(2) and (4), and 30 
CFR 701.5 for operations conducted after October 24, 1992.

C. Enforcement in West Virginia

    West Virginia program activity, requirements, and enforcement. By 
letter to West Virginia dated December 

[[Page 38693]]
16, 1994, OSM requested information that would be useful in determining 
how to implement section 720(a) of SMCRA and the implementing Federal 
regulations in West Virginia (Administrative Record No. WV 965). By 
letter dated January 11, 1995, West Virginia to this request 
(Administrative Record No. WV 966).
    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 sections 22A-3-14(b)(1) and 22A-3-24(b) of the West 
Virginia Code and/or West Virginia Code of State Regulations (CSR) 
sections 38-2-14.5(h) and 38-2-16.2 would ensure compliance with 
section 720 of SMCRA.
    West Virginia noted that section 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 acknowledges 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 dimunition 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 action/or corrective measures taken; or (3) are 
problems under continuing investigation to determine whether caused by 
mining.
    Upon initial review of the West Virginia program, OSM was concerned 
that the State did not have adequate authority to fully enforce the 
provisions of the Energy Policy Act of 1992. Specifically, the State's 
March 31, 1993, policy, which provides that permits issued prior to 
June 1, 1991, that have waivers to subside without liability do not 
have to repair or compensate owners for material damage caused by 
subsidence, is inconsistent with the Energy Policy Act which requires 
repair or compensation for subsidence damage which occurs after October 
24, 1992. In addition, West Virginia Code section 22A-3-24(b) and State 
regulations at CSR 38-2-14.5(h) authorize the waiver of water supply 
replacement.
    On June 30, 1995 (Administrative Record Number WV-996), West 
Virginia revised its subsidence policy procedures to address these 
concerns. The revised procedures took effect on July 10, 1995. The 
revised policy requires owners of permits with waivers issued prior to 
June 1, 1991, to repair or compensate owners of residential dwellings 
for subsidence related damage. The new policy is retroactive, and makes 
all permits, regardless of issuance date, liable for subsidence damage 
caused by underground mining that occurred after October 24, 1992.
    The West Virginia program currently contains the requirements of 30 
CFR 817.41(j), pertaining to replacement of drinking, domestic or 
residential water supplies. However, in those cases where the owner has 
waived replacement of a water supply West Virginia's program does not 
require the permit applicant to demonstrate that an alternate water 
source is available which is equivalent in quality and quantity to the 
premining water supply, that the affected water supply was not needed 
for the land use in existence at the time the supply was affected, or 
that the affected water supply is not essential to achievement of the 
approved postmining land use. These demonstrations are all required as 
prerequisites to waiver of water replacement pursuant to the new 
Federal definition of ``replacement of water supply'' at 30 CFR 701.5. 
West Virginia has stated that its new policy with regard to water 
replacement and subsidence repair, effective July 10, 1995, is intended 
to address the requirements of the Energy Policy Act of 1992 and the 
accompanying Federal regulations, published on March 31, 1995. 60 FR 
16722. With the exception of the water replacement waiver criteria, the 
West Virginia program and accompanying policy document do contain the 
necessary counterparts to 30 CFR 817.41(j) to allow for state 
enforcement of that provision. Further, the Director believes that the 
discrepancy between the Federal regulations and West Virginia's program 
with regard to water replacement waivers is of insufficient magnitude 
to warrant direct Federal enforcement of the water replacement 
requirement. The Director reaches his conclusion because he believes 
that few or no situations are likely to arise involving underground 
mining and waiver of water supply replacement where the approved 
postmining land use is residential. Therefore, the Director finds that 
state enforcement is the most reasonable option for West Virginia.
    Comments. On April 11, 1995, OSM published in the Federal Register 
(60 FR 18381) an opportunity for a public hearing and 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 West Virginia. The comment period 
closed on May 11, 1995. OSM received one request to conduct a hearing. 
Although the party that requested the hearing subsequently withdrew 
that request, a public meeting was held on May 8, 1995, at the OSM Area 
Office, Logan, West Virginia (Administrative Record Number WV-977). No 
person attended to speak or discuss recommendations with OSM. One 
individual attended only as an observer to the activities. A summary of 
the meeting was entered into the administrative record (Administrative 
Record Number WV-977). OSM received three comments in response to its 
notice. Following are summaries of all the substantive comments that 
OSM received, and OSM's responses to them.
    One 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 
(Administrative Record Number WV-994). 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 in West 
Virginia because the Regional Director has decided, as set forth below, 
not to implement an 

[[Page 38694]]
enforcement alternative including direct Federal enforcement.
    Another organization commented that West Virginia has immediate 
authority to implement the provisions of the Energy Policy Act of 1992 
to protect water and homes from damage from underground mining 
(Administrative Record Number WV-978). To get prompt, strict 
enforcement of the provisions of the Energy Policy Act the commenter 
recommended that OSM log and track all water loss and subsidence 
complaints and independently assess the State's conclusions. The State 
and OMS have agreed to set up a joint team to review all the complaints 
relating to subsidence and water loss filed between October 24, 1992, 
through July 10, 1995, the date of the new State subsidence procedures 
discussed above. However, since West Virginia has equivalent provisions 
to the Federal subsidence regulations (with the subsidence procedures 
policy of July 10, 1995) it is the State's responsibility to enforce 
those provisions. OSM will conduct normal oversight of the West 
Virginia program for the period following July 10, 1995, using the ten-
day notice process if necessary.
    The commenter also made additional recommendations. The Regional 
Director notes, however, the subject of the comments (baseline 
groundwater well sampling, presubsidence survey requirements at 30 CFR 
784.20, and timeframes for submitting State amendments to fully address 
such other requirements) are outside the scope of this notice.
    A third organization commented that although West Virginia has 
statutory and regulatory provisions in place that correspond in some 
ways to the requirements of the Federal law, OSM should select joint 
State and OSM initial enforcement of the provisions of the Energy 
Policy Act of 1992 that the State has not yet fully addressed 
(Administrative Record Number WV-981). The commenter specifically noted 
that the West Virginia program currently allows the waiver of water 
replacement rights by current landowners, and that it is unclear 
whether the State means to apply the requirements of the Energy Policy 
Act only to ``permits'' issued on or after October 24, 1992, or to all 
portions of operations conducted after October 24, 1992. The Regional 
Director notes, and as discussed above, the State has implemented on 
July 10, 1995, new subsidence policy procedures that address the 
commenter's concerns. According to the new State subsidence procedures, 
all permits, regardless of issuance date, are liable for subsidence 
damage caused by underground mining that occurred after October 24, 
1992. As for the waiver language at West Virginia Code section 22A-3-
24(b) and the State regulations at CSR 38-2-14.5(h) concerning the 
waiver of water supply replacement, the Regional Director notes that 
the West Virginia program contains the requirements of 30 CFR 817.41(j) 
concerning drinking, domestic or residential water supply. The Regional 
Director notes that the State and OSM will jointly review all the 
complaints that were filed between October 24, 1992, and July 10, 1995, 
to ensure that the State's past enforcement actions complied with the 
requirements of the Energy Policy Act of 1992. If a complaint was filed 
that meets the criteria of the Energy Policy Act of 1992. If a 
complaint was filed that meets the criteria discussed above, State 
officials will take enforcement action to require the company to comply 
with the new policy.
    The commenter also provided comments regarding proof of damage 
through presubsidence surveys and baseline monitoring and delays in 
program implementation. Those concerns are outside the scope of this 
document, but will be addressed at a later date.
    Director's decision. Based on the information provided by West 
Virginia, discussions held with the State on July 13, 1995, and the 
comments discussed above, the Regional Director has decided that 
enforcement of the underground coal mine subsidence control and water 
replacement requirements in West Virginia will be accomplished through 
State enforcement.
    OSM's initial concern that the West Virginia program does not have 
adequate authority to enforce the provisions of the Energy Policy Act 
of 1992 has been addressed by the State. On July 10, 1995, West 
Virginia implemented new State subsidence policy procedures that 
require repair or compensation for subsidence damage after October 24, 
1992, consistent with 30 CFR 817.121(c)(2), and the approved program 
requires replacement of water supplies consistent with 30 CFR 
817.41(j). In addition, OSM and the State will jointly review all the 
complaints filed between October 24, 1992, through July 10, 1995, to 
ensure that the State's past actions with regard to these complaints 
are consistent with the Energy Policy Act of 1992.
    If circumstances within West Virginia change significantly, the 
Regional Director may reassess this decision. Formal reassessment of 
this decision would be addressed by notice in the Federal Register.

    Dated: July 24, 1995.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
[FR Doc. 95-18584 Filed 7-27-95; 8:45 am]
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