[Federal Register Volume 60, Number 145 (Friday, July 28, 1995)]
[Rules and Regulations]
[Pages 38680-38682]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18611]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 914


Indiana 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 Indiana. 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 Indiana 
and consideration of public comments, OSM has decided that initial 
enforcement in Indiana will be accomplished through joint Indiana and 
OSM enforcement.

effective date: July 28, 1995.

for further information contact: Roger W. Calhoun, Director, 
Indianapolis Field Office, Office of Surface Mining Reclamation and 
Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania 
Street, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-
6166.

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 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 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 7, 
1995, Federal Register (60 FR 17736) 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 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 

[[Page 38681]]
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 enforce 
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 under-
ground 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 Indiana

    Indiana program activity, requirements, and enforcement. By letter 
to Indiana dated December 13, 1994, OSM requested information that 
would be useful in determining how to implement section 720(a) of SMCRA 
and the implementing Federal regulations in Indiana (Administrative 
Record No. IND-1438). By letter dated February (sic) 20, 1995, Indiana 
responded to this request (Administrative Record No. IND-1429) (the 
letter was misdated; the correct date is January 20, 1995.)
    Indiana stated that six underground coal mines were active in 
Indiana between October 24, 1992, and July 1, 1994. Indiana also stated 
that Indiana statute IC 13-4.1-9-2.5 incorporates the substantive 
language of section 720 of SMCRA. Indiana noted that IC 13-4.1-9-2.5's 
requirements are expressly limited to operations conducted after June 
30, 1994. Therefore, the Indiana Division of Reclamation (DOR) may not 
require structural repair (or compensation) or water replacement under 
the authority of IC 13-4.1-9-2.5 with respect to surface coal mining 
operations conducted on or before June 30, 1994. However, Indiana 
stated that preexisting Indiana program provisions provide the DOR with 
sufficient authority to impose the Energy Policy Act of 1992 
requirements with respect to underground mining operations conducted on 
or before June 30, 1994.
    On June 28, 1995 (Administrative Record Number IND-1493), OSM met 
with Indiana to discuss enforcement of the underground coal mine 
subsidence control and water replacement requirements in Indiana. As 
detailed above in its initial response to OSM concerning enforcement, 
Indiana stated that Indiana law at IC 13-4.1-9-2.5 incorporates the 
substantive language of section 720 of SMCRA and applies to underground 
mining operations conducted after June 30, 1994. For underground mining 
operations conducted in Indiana in the interim period between October 
24, 1992 (the effective date of the Energy Policy Act of 1992) and June 
30, 1994 (the effective date of Indiana law counterpart to the Energy 
Policy Act of 1992), the State concluded that the existing Indiana 
program provisions provide the Indiana Division of Reclamation (IDOR) 
with sufficient authority to impose the requirements of the Energy 
Policy Act of 1992 with respect to underground mining operations 
conducted in Indiana during the interim period. The State concluded, 
however, that although it believes that the IDOR has sufficient 
authority to impose the requirements of the Energy Policy Act of 1992 
during the interim period, joint State and OSM enforcement in Indiana 
should be the chosen enforcement scheme in Indiana, as it would assure 
protection for the citizens of Indiana during the interim period 
Administrative Record Number IND-1494. Under this scheme, the IDOR 
would enforce the requirements of the Energy Policy Act of 1992 in 
Indiana from June 30, 1994, and during the interim period to the extent 
permissible under Indiana law. OSM would enforce the requirements of 
the Energy Policy Act of 1992 in the interim period only if a situation 
arose where the State could not so enforce. Indiana does not anticipate 
any situations where the IDOR would not be able to enforce the 
provisions of the Energy Policy Act of 1992 during the interim period.
    Comments. On April 7, 1995, OSM published in the Federal Register 
(60 FR 17736) 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 Indiana. The comment period 
closed on May 8, 1995. Because OSM did not receive a request for one, 
OSM did not hold a public hearing. OSM received comments from one party 
in response to its notice (Administrative Record Number IND-1476).
    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 
procedures for the amendment, preemption, and substitution of Federal 
enforcement of State programs (sections 503, 505, and 521(b)) that 
should be used in lieu of direct interim Federal enforcement.
    In response to this comment, OSM's position remains as was stated 
in the March 31, 1995, preamble for the Federal regulations at 30 CFR 
843.25, which in part implement section 720 of SMCRA:

    OSM has concluded that it is not clear from the legislation or 
legislative history, how Congress intended that section 720 was to 
be implemented, in light of existing SMCRA provisions for State 
primacy. Thus, OSM has a certain amount of flexibility in 
implementing section 720. After weighing these considerations, OSM 
intends to implement section 720 promptly, but will pursue federal 
enforcement without undermining State primacy under SMCRA.

    (60 FR 16722, 16743). Using this rationale, OSM concludes that 
there is no inconsistency in its implementation of section 720 of SMCRA 
with sections 503, 505, and 521(b) of SMCRA.
    Further the party commented that Congress' intent was that 
agreements between coal mine operators and 

[[Page 38682]]
landowners would be used to ensure that the protective standards of 
section 720 of SMCRA would occur rather than enforcement by State 
regulatory authorities and OSM. The party did not supply any 
legislative history to support this conclusion, and the plain language 
of section 720 of SMCRA does not support this conclusion.
    Lastly, the party commented that the waiving of ten-day notice 
procedures in implementing direct Federal enforcement is not consistent 
with Federal case law. OSM does not agree with the commenter's 
assertion. The following response to a similar comment in the March 31, 
1995, Federal Register (60 FR 16722, 16742-16745) also applies to this 
comment.

    [The commenter stated that] the proposal to provide for direct 
Federal enforcement ignores Federal case law which indicates that, 
as a general proposition, the State program, not SMCRA, is the law 
within the State. OSM recognizes that, under existing rules 
implementing SMCRA, States with approved regulatory programs have 
primary responsibility for implementing SMCRA, based on the approved 
program. However, in this rule OSM has carved out a limited 
exception to the general proposition, to the extent necessary to 
give reasonable force and effect to section 720, while maintaining 
so far as possible State primacy procedures. OSM believes that the 
process adopted in this final rule is consistent with and authorized 
by Congress under the Energy Policy Act, and that case law 
interpreting other provisions of SMCRA is not necessarily 
dispositive.

    Director's decision. Based on the information discussed above, the 
Director has decided that enforcement of the underground coal mine 
subsidence control and water replacement requirements in Indiana will 
be accomplished through joint State and OSM enforcement. The Director 
has made this decision after soliciting public comment (one comment was 
received) and providing opportunity for public hearing (no requests for 
a hearing were received), and considering information provided by 
Indiana by letter dated February (sic) 20, 1995, and in discussions 
held with Indiana on June 28, 1995. The Director has concluded that 
Indiana law at IC 13-4.1-9-2.5 authorizes enforcement of provisions of 
the Energy Policy Act of 1992 in Indiana from June 30, 1994. As for 
enforcement during the interim period (October 24, 1992, through June 
30, 1994), Indiana will enforce the provisions of the Energy Policy Act 
of 1992 to the extent authorized by existing Indiana law. OSM will 
enforce the provisions of the Energy Policy Act of 1992 during the 
interim period in any circumstances where the State cannot so enforce. 
Neither the IDOR nor OSM anticipates any cases where the IDOR would not 
be able to enforce the provisions of the Energy Policy Act of 1992 
during the interim period.
    If circumstances within Indiana 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. 95-18611 Filed 7-27-95; 8:45 am]
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