[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38675-38677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18609]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 901 and 924


Alabama and Mississippi 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 Alabama and Mississippi. 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 damaged 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 
Alabama and Mississippi and consideration of public comments, OSM has 
decided that initial enforcement in Alabama will be accomplished 
through State and OSM enforcement and that initial enforcement is not 
reasonably likely to be required in Mississippi and therefore 
implementation in that State will be accomplished through the State 
program amendment process.

EFFECTIVE DATE: July 28, 1995.

FOR FURTHER INFORMATION CONTACT: Jesse Jackson, Jr., Field Office 
Director, Birmingham Field Office, OSM, 135 Gemini Circle, Suite 215, 
Birmingham, Alabama, 35209, Telephone: (205) 290-7287.

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 section 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 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, 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 10, 
1995, Federal Register (60 FR 18044) 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, than 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

[[Page 38676]]

State program but are not enforceable back to 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 
843.129a)(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 30 
CFR 701.5 for operations conducted after October 24, 1992.
C. Enforcement in Alabama
    Alabama program activity, requirements, and enforcement. By letter 
to Alabama dated December 14, 1994, OSM requested information that 
would be useful in determining how to implement section 720(a) of SMCRA 
and the implementing Federal regulations in Alabama (Administrative 
Record No. A1-520). By letter dated January 12, 1995, Alabama responded 
to this request (Administrative Record No. AL-521).
    Alabama stated that ten underground coal mines were active in 
Alabama after October 24, 1992. Alabama stated that the Alabama program 
does not fully authorize enforcement of the repair or compensation of 
material damage requirements of Section 720(a) of SMCRA and the 
implementing Federal regulations. Alabama's regulations are silent on 
the issue of replacement of water supplies damaged by subsidence but do 
contain a ``to the extent required by State law'' limitation on repair 
of material damage to structures. Alabama has not determined whether a 
change to the State Act is necessary to implement regulation change 
which would be required under the Energy Policy Act (EPACT). Further 
analysis would be necessary by the State legal staff before a 
determination can be made of the need for statutory revisions.
    Alabama has assumed since the passage of EPACT that the retroactive 
enforcement of its provisions by Alabama would be possible until 
regulatory changes can be made. Alabama has in fact adopted the 
position that since the effective date of EPACT they have had 
enforcement authority of its provisions.
    Since October 24, 1992, Alabama has had only one citizen complaint 
where alleged damage to structures from subsidence has existed. This 
complaint covered a church and several houses. No complaints have been 
received alleging damage to water supplies due to subsidence.
    Representatives from OSM's Birmingham Field Office met with Alabama 
on May 2, 1995. Alabama confirmed it has the authority to enforce the 
water replacement provisions of 30 CFR 817.41(j) for underground mining 
activities conducted after October 24, 1992. The State will not, 
however, be able to fully enforce the repair or compensation of 
material damage resulting from subsidence provisions of 30 CFR 
817.121(c)(2) because of certain limitations placed on compensation in 
the current State status.
    Comments. On April 10, 1995, OSM published in the Federal Register 
(60 FR 18044) an 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 Alabama. The comment period 
closed on April 20, 1995. The comment period was subsequently extended 
to May 10, 1995 (60 FR 20193, April 25, 1995). Because OSM did not 
receive a request for one, OSM did not hold a public hearing. OSM 
received one comment in response to its notice. Following is OSM's 
response to it.
    OSM received comments from one party in response to its notice 
(Administrative Record Number AL-546). The party stated that the 
enforcement alternatives incorporating total or partial direct interim 
Federal enforcement (items (3) and (4) in section I.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 procedure 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 was 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 protection 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 waiver 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

[[Page 38677]]

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.

    Director's Decision. Based on the information provided by Alabama, 
discussions held with Alabama on May 2, 1995, and the comment discussed 
above, the Director has decided that enforcement of the underground 
coal mine subsidence control and water replacement requirements in 
Alabama will be accomplished through joint State and OSM enforcement. 
Alabama will enforce its provisions for the replacement of water 
supplies affected by underground mining activities conducted after 
October 24, 1992. OSM will enforce those provisions of 30 CFR 
817.121(c)(2) pertaining to the repair of material damage resulting 
from subsidence that are not covered or are limited by the State 
provisions of underground mining activities conducted after October 24, 
1992.
    If circumstances within Alabama change significantly, the Director 
may reassess this decision. Formal reassessment of this decision would 
be addressed by Federal Register notice.

D. Enforcement in Mississippi
    Mississippi program activity, requirements, and enforcement. By 
letter to Mississippi dated December 14, 1994, OSM requested 
information that would be useful in determining how to implement 
section 720(a) of SMCRA and the implementing Federal regulations in 
Mississippi (Administrative Record No. MS-328). Mississippi did not 
respond to this request in writing. On May 10, 1995, representatives 
from OSM's Birmingham Field Office and the State met to discuss how the 
provisions of the Energy Policy Act would be implemented. Mississippi 
has had no surface or underground coal mining operations for several 
decades. At present, Mississippi is in the process of completely 
revising its approved regulatory program. It was agreed that the 
program revision process addressed in the Federal regulations at 30 CFR 
Part 732 would be implemented.
    Comments. On April 10, 1995, OSM published in the Federal Register 
(60 FR 18045) an 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 Mississippi. The comment period 
closed on April 30, 1995. The comment period was subsequently extended 
to May 10, 1995 (60 FR 21093, April 25, 1995). Because OSM did not 
receive a request for one, OSM did not hold a public hearing. OSM 
received one comment in response to its notice. Following is OSM's 
response to it.
    A mining association responded on May 12, 1995 (Administrative 
Record Number MS-331). The party stated that the enforcement 
alternatives incorporating total or partial direct interim Federal 
enforcement (items (3) and (4) in section I.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 in Mississippi because 
the Regional Director has decided, as set forth below, not to implement 
an enforcement alternative including direct Federal enforcement.
    Director's Decision. Based on discussions held with the State on 
May 10, 1995, and the comment discussed above, the Director has decided 
that initial enforcement of the underground coal mine subsidence 
control and water replacement requirements in Mississippi is not 
reasonably likely to be required and that implementation will be 
accomplished through the State program amendment process. There have 
been no underground mines in Mississippi for decades. Mississippi is in 
the process of amending its entire regulatory program and would enforce 
its statutory and regulatory provisions when its program is determined 
to be in accordance with the revised SMCRA and consistent with the 
revised Federal regulations.
    If circumstances within Mississippi change significantly, the 
Director may reassess this decision. Formal reassessment of this 
decision would be addressed by Federal Register notice.

    Dated: July 24, 1995.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 95-18609 Filed 7-27-95; 8:45 am]
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