[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Proposed Rules]
[Pages 17498-17501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8469]



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DEPARTMENT OF THE INTERIOR
30 CFR Parts 904, 918, 936, and 943


Arkansas, Louisiana, Oklahoma, and Texas Regulatory Programs

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 Arkansas, Louisiana, Oklahoma, and Texas 
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 Arkansas, Louisiana, Oklahoma, and Texas 
regulatory programs (hereinafter referred to as the ``States 
programs'') currently have adequate counterpart provisions in place to 
promptly implement the recent amendments to SMCRA and the Federal 
regulations. After consultation with Arkansas, Louisiana, Oklahoma, and 
Texas and consideration of public comments, OSM will decide whether 
initial enforcement in Arkansas, Louisiana, Oklahoma, and Texas 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 p.m., c.d.t. on May 8, 
1995. If requested, OSM will hold a public hearing on May 1, 1995, 
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 Arkansas, Louisiana, Oklahoma, and Texas. Requests to speak at the 
hearing must be received by 4 p.m., c.d.t. on April 21, 1995.

[[Page 17499]] ADDRESSES: Written comments and requests to speak at the 
hearing should be mailed or hand-delivered to James H. Moncrief, 
Director, Tulsa Field Office at the address listed below.
    Copies of the applicable parts of the State programs, SMCRA, the 
implementing Federal regulations, information provided by Arkansas, 
Louisiana, Oklahoma, and Texas concerning their 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.
    James H. Moncrief, Director, Tulsa Field Office, Office of Surface 
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, 
Tulsa, OK 74135-6547, Telephone: (918) 581-5430.

FOR FURTHER INFORMATION CONTACT: James H. Moncrief, Director, Tulsa 
Field Office, Telephone: (918) 581-6430.

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 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, 
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.

    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 [[Page 17500]] 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) 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 
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 Arkansas

    By letter to Arkansas dated December 15, 1994, OSM requested 
information from Arkansas that would help OSM decide which approach to 
take in Arkansas to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Arkansas program provisions (Administrative Record No. AR-542). By 
letter dated January 30, 1995, Arkansas responded to OSM's request 
(Administrative Record No. AR-453).
    Arkansas stated that one underground coal mine was active in 
Arkansas after October 24, 1992. Arkansas indicated that its existing 
State law and its regulations at Arkansas Surface Coal Mining and 
Reclamation Code (ASCMRC) Sections 779.17, 780.21(e), 783.17, 784.14, 
784.20(c) 816.54, and 816.124-U(b) and (c) are adequate State 
counterparts to section 720(a) of SMCRA and the implementing Federal 
regulations. Arkansas did not indicate when the existing State 
counterpart provisions went into effect. However, Arkansas did indicate 
that it had not received any citizen complaints alleging subsidence-
caused structural damage or water supply loss or contamination as a 
result of underground mining operations conducted after October 24, 
1992.

D. Enforcement in Louisiana

    By letter to Louisiana dated January 23, 1995, OSM requested 
information from Louisiana that would help OSM decide which approach to 
take in Louisiana to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or the counterpart 
Louisiana program provisions (Administrative Record No. LA-352). By 
letter dated February 7, 1995, Louisiana responded to OSM's request 
(Administrative Record No. LA-353).
    Louisiana stated that no underground coal mines were operating in 
Louisiana after October 24, 1992. Louisiana's regulatory program does 
not allow underground mining at the present time. In the event that 
Louisiana received an application for underground mining, Louisiana 
would have to revise its program to incorporate counterpart provisions 
to section 720(a) of SMCRA and the implementing Federal regulations.

E. Enforcement in Oklahoma

    By letter to Oklahoma dated January 23, 1995, OSM requested 
information from Oklahoma that would help OSM decide which approach to 
take in Oklahoma to implement the requirements of section 720(a) of 
SMCRA, the implementing Federal regulations, and/or counterpart 
Oklahoma program provisions (Administrative Record No. OK-965). By 
letter dated February 8, 1995, Oklahoma responded to OSM's request 
(Administrative Record No. OK-966).
    Oklahoma stated that one underground coal mine was active after 
October 24, 1992, and one underground mine was constructing surface 
facilities as of February 8, 1995.
    Oklahoma indicated that the State regulation at OAC 460:20-45-47(c) 
(previously codified as section 817.121(c)) addresses repair or 
compensation of subsidence-related material damage to structures and 
replacement of water supplies contaminated or diminished due to 
subsidence.
    However, Oklahoma indicated that this regulation ``is not as 
clearly written'' as the new Federal regulations and that it includes 
``vague statements * * * regarding structures, facilities, and any 
drinking, domestic or residential water supplies'' that will be 
clarified once the regulation is revised in accordance with the new 
Federal regulations.
    Oklahoma did not indicate when the State counterpart provisions 
went into effect. However, Oklahoma stated that it had investigated one 
citizen complaint alleging subsidence-related damage for underground 
mining operations conducted after October 24, 1992, and it issued a 
violation notice as a result of the complaint. OSM has determined that 
the citizen complaint did not involve structural damage or water supply 
loss or contamination.

F. Enforcement in Texas

    By letter to Texas dated January 23, 1995, OSM requested 
information from Texas that would help OSM decide which approach to 
take in Texas to implement the requirements of section 720(a) of SMCRA, 
the implementing Federal regulations, and/or the counterpart Texas 
program provisions (Administrative Record No. TX-587). By letter dated 
January 26, 1995, Texas responded to OSM's request (Administrative 
Record No. TX-588).
    Texas stated that no underground coal mines were operating in Texas 
after October 24, 1992.
    Texas stated that the Texas Surface Coal Mining and Reclamation Act 
currently has no counterpart to section 720 of SMCRA, and its 
regulations at section 817.564, regarding repair and compensation for 
damages occurring to buildings and other structures, and at section 
817.521, regarding replacement of water supplies, have no direct 
counterparts to OSM's proposed regulations at 30 CFR 817.121(c) and 
817.41(k).

II. Public Comment Procedures

    OSM is requesting public comment to assist OSM in making its 
decision on which approach to use in Arkansas, Louisiana, Oklahoma, and 
Texas 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 
[[Page 17501]] support of the commenter's recommendations. Comments 
received after the time indicated under DATES or at locations other 
than the Tulsa 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 p.m., c.d.t. 
on April 21, 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 Arkansas, Louisiana, Oklahoma, and Texas 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.
Russell F. Price,
Acting Assistant Director, Western Support Center.
[FR Doc. 95-8469 Filed 4-5-95; 8:45 am]
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