[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Proposed Rules]
[Pages 17736-17739]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8635]



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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: Announcement of public comment period and opportunity for 
public hearing.

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SUMMARY: OSM is requesting public comment that would be considered in 
deciding how to implement in Indiana underground coal mine subsidence 
control and water replacement provisions of the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA), the implementing Federal 
regulations, and/or the counterpart State provisions. Recent amendments 
to 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. These provisions also require such operations to promptly 
replace drinking, domestic, and residential water supplies that have 
been adversely affected by underground coal mining.
    OSM must decide if the Indiana regulatory program (hereinafter 
referred to as the ``Indiana program'') currently has adequate 
counterpart provisions in place to promptly implement the recent 
amendments to SMCRA and the Federal regulations. After consultation 
with Indiana and consideration of public comments, OSM will decide 
whether initial enforcement in Indiana will be accomplished through the 
State program amendment process or by State enforcement, by interim 
direct OSM enforcement, or by joint State and OSM enforcement.

DATES: Written comments must be received by 4:00 p.m., E.S.T. on May 8, 
1995. If requested, OSM will hold a public hearing on concerning how 
the underground coal mine subsidence control and water replacement 
provisions of SMCRA and the implementing Federal regulations, or the 
counterpart State provisions, should be implemented in Indiana. 
Requests to speak at the hearing must be received by 4:00 p.m., E.S.T. 
on April 24, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand-delivered to Roger W. Calhoun, Director, Indianapolis 
Field Office at the address listed below.
    Copies of the applicable parts of the Indiana program, SMCRA, the 
implementing Federal regulations, information provided by Indiana 
concerning its authority to implement State counterparts to SMCRA and 
the implementing Federal regulations, a listing of any scheduled public 
hearings, and all written comments received in response to this 
document will be available for public review at the address listed 
below during normal business hours, Monday through Friday, excluding 
holidays: Roger W. Calhoun, Director, Indianapolis Field Office, Office 
of Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-
6166.

FOR FURTHER INFORMATION CONTACT: Roger W. Calhoun, Director, 
Indianapolis Field Office, Telephone: (317) 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background

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 [[Page 17737]] 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 16722-16751).
    30 CFR 817.121(c)(2) requires in part that:

    The permittee must promptly repair, or compensate the owner for, 
materials 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.

    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 below, enforcement may 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. OSM will decide which of 
the following enforcement approaches to pursue.
    (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 item numbers (3) and (4) above, OSM would directly 
enforce in total or in part its Federal statutory or 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 number (1) above, OSM could decide not to initiate 
direct Federal enforcement and 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) and 
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 
underground mining performance standards.
    OSM would enforce 30 CFR 817.41(j) and 817.121(c) (2) and (4), and 
30 CFR 701.5 for operations conducted after October 24, 1992.

[[Page 17738]]

C. Enforcement in Indiana

    By letter to Indiana dated December 13, 1994, OSM requested 
information from Indiana that would help OSM decide which approach to 
take in Indiana to implement the new requirements of section 720(a) of 
SMCRA and the implementing Federal regulations (Administrative Record 
No. IND-1428). By letter dated February [sic] 20, 1995, Indiana 
responded to this OSM 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 pre-existing Indiana program provisions provide the DR 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.
    With respect to structural damage caused by underground mine 
subsidence, Indiana cited the following provisions of Indiana's 
approved program as requiring the substantive equivalent of the Energy 
Policy Act of 1992 provisions:
    IC 13-4.1-9-1 concerning the surface effect of underground coal 
mining operations. Based upon this broad grant of rulemaking authority, 
Indiana stated, Indiana adopted 310 IAC 12-3-87 and 12-5-130 through 
133, each of which pertain to the control of underground mine 
subsidence and the protection of surface owners from the harms caused 
therefrom.
    310 IAC 12-3-87 concerning underground mining permit applications--
reclamation plan--subsidence control plan. This provision provides that 
if the [operator's premining] survey shows structures or renewable 
resource lands exist, or that subsidence could cause material damage to 
or foreseeable use of the land, or if the director determines that this 
damage could occur, the application shall include a subsidence control 
plan which contains the following information:
    A detailed description of the measures to be taken to mitigate the 
effects of any material damage to foreseeable use of lands which may 
occur, including one or more of the following as required by 310 IAC 
12-5-132:
    Restoration or rehabilitation of structures and features, including 
approximate land-surface contours, to premining condition.
    Replacement of structures destroyed by subsidence.
    Purchase of structures prior to mining * * *
    Purchase of noncancellable insurance policies payable to the 
surface owner in the full amount of the possible material damage or 
other comparable measures.
    310 IAC 12-5-132 concerning underground mining--subsidence 
control--surface owner protection. 310 IAC 12-5-132 provides that:
    Each person who conducts underground mining activities shall use 
all measures approved by the commission under 310 IAC 12-3-87 to * * * 
mitigate the effect of any damage or reduction [in value] which may 
occur.
    Each person who conducts underground mining activities will 
complete the following:
    Compensate the owner of any surface structure in the full amount of 
the diminution in value resulting from subsidence by purchase prior to 
mining of a noncancellable premium prepaid insurance policy or other 
means approved by the commission as assurance before mining begins that 
payment will occur.
    Indemnify every person with an interest in the surface for all 
damages suffered as a result of the subsidence.
    To the extent technologically feasible, fully restore the land to a 
condition capable of maintaining reasonably foreseeable uses which it 
could support before subsidence.
    These provisions, Indiana stated, have been in operation in their 
present form since June of 1990, and provide coverage for the period 
between October 24, 1992, and June 30, 1994. Indiana concluded that 
Indiana SMCRA is no less effective than the Federal SMCRA with respect 
to structural repair and/or compensation caused by underground mine 
subsidence.
    With respect to water replacement, Indiana stated, such obligations 
are set forth under 310 IAC 12-5-94 concerning underground mining--
hydrologic balance--water rights and replacement. The question of water 
rights and water replacement obligations under 310 IAC 12-5-29 
(hydrologic balance--water rights and replacement) was addressed by the 
Indiana Supreme Court in Nat. Res. Comm'n v. AMAX (1994), Ind. 638 
N.E.2d 418. The Indiana Supreme Court held that the DOR was authorized 
under Indiana-SMCRA to mandate the replacement of water supplies 
adversely affected by surface coal mining operations. Indiana also 
stated that because the requirements of 310 IAC 12-5-94 are 
substantively identical to the provision affirmed by the Indiana 
Supreme Court, the result is identical: the DOR may require replacement 
of water supplies adversely affected by underground coal mining 
operations.
    Indiana has received five citizen complaints alleging subsidence-
caused structural damage as a result of underground mining operations 
conducted between October 24, 1992, and July 1, 1994. Indiana stated 
that three of the five complaints were not formal complaints. Of the 
two formal complaints, one involved no structural damage or water well 
complaint and the DOR issued a notice of violation for not mining 
according to plan. With the other formal complaint, the resolution 
process followed by the coal company is being monitored by the DOR to 
assure that appropriate mitigation measures are taken.
    Indiana explained its enforcement procedures as follows:
    Upon notification of subsidence related damages to structures and/
or water supply alleged as a result of underground mining operations, 
an inspection of the area is conducted by the assigned reclamation 
specialist. Notifications of such damage may come from affected 
landowners, mine operators, industries in the area, or other sources. 
If imminent danger is found to inhabitants of the area, the Director 
shall suspend underground operations as required by 310 IAC 12-5-
133(e). The mine plan as required by 310 IAC 12-5-133(f) is then 
examined by the operator and the Division specialists to determine 
compliance with the approved plan. Specific complaints with respect to 
the subsidence event are investigated on a case-by-case basis as 
received. In the event that problems arise with respect to water 
supplies as a result of the underground mining activities, the operator 
must act to replace such supply as required by 310 IAC 12-5-94. In 
addition, as required by 310 IAC 12-5-132, the operator is required to 
``correct or compensate'' for damages which result from such 
subsidence.
    After consulting with the affected parties in the area, and the 
operator, if the requirements of these sections are being met, the DOR 
acts as a mediator [[Page 17739]] between the affected parties and 
operator with respect to any problem which may arise. Enforcement 
action may be taken in the event that certain of these regulations are 
not followed.

II. Public Comment Procedures

    OSM is requesting public comment to assist OSM in making its 
decision on which approach to use in Indiana to implement the 
underground coal mine performance standards of section 720(a) of SMCRA, 
the implementing Federal regulations, and any counterpart State 
provisions.
A. Written Comments

    Written comments should be specific, pertain only to the issues 
addressed in this notice, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Indianapolis Field Office 
will not necessarily be considered in OSM's final decision or included 
in the Administrative Record.

B. Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
E.S.T. on April 24, 1995. The location and time of the hearing will be 
arranged with those persons requesting the hearing. If no one requests 
an opportunity to testify at the public hearing, the hearing will not 
be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. Persons in the audience who 
have not been scheduled to speak, and who wish to do so, will be heard 
following those who have been scheduled. The hearing will end after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.
    Any disabled individual who has need for a special accommodation to 
attend a public hearing should contact the individual listed under FOR 
FURTHER INFORMATION CONTACT.

C. Public Meeting

    If only a few persons request an opportunity to speak at a hearing, 
a public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss recommendations on 
how OSM and Indiana should implement the provisions of section 720(a) 
of SMCRA, the implementing Federal regulations, and/or the counterpart 
State provisions, may request a meeting by contacting the person listed 
under FOR FURTHER INFORMATION CONTACT. All such meetings will be open 
to the public and, if possible, notices of meetings will be posted at 
the locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the Administrative Record.

    Dated; March 31, 1995.
Richard J. Seibel,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 95-8635 Filed 4-6-95; 8:45 am]
BILLING CODE 4310-05-M