17736 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules

62 Ill. Adm. Code 1817.121(c)(3), an

inventory of all drinking, domestic and

residential water supplies in place at the

time of permitting will be necessary to

fully implement section 720(a)(2) of

SMCRA. Based on this information,

Illinois may require pre- and postmining monitoring of certain planned

subsidence operations. This will be

determined on a case by case basis.

II. Public Comment Procedures

OSM is requesting public comment to

assist OSM in making its decision on

which approach to use in Illinois 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 Springfield

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.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 Illinois 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. 95–8639 Filed 4–6–95; 8:45 am]

BILLING CODE 4310–05–M

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.

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
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules 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 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.

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 subsidencerelated 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,’’ ‘‘noncommercial 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.
17738 Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules

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
Federal Register / Vol. 60, No. 67 / Friday, April 7, 1995 / Proposed Rules 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

30 CFR Part 917

Kentucky Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Announcement of public

comment period and opportunity for

public hearing.

SUMMARY: OSM is requesting public

comment that would be considered in

deciding how to implement in Kentucky

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 Kentucky

regulatory program (hereinafter referred

to as the ‘‘Kentucky program’’) currently

has adequate counterpart provisions in

place to promptly implement the recent

amendments to SMCRA and the Federal

regulations. After consultation with

Kentucky and consideration of public

comments, OSM will decide whether

initial enforcement in Kentucky 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., e.s.t. on May 8,

1955. If requested, OSM will hold a

public hearing on May 2, 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 Kentucky.

Requests to speak at the hearing must be

received by 4 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 William

J. Kovacic, Director, Lexington Field

Office at the address listed below.

Copies of the applicable parts of the

Kentucky program, SMCRA, the

implementing Federal regulations,

information provided by Kentucky

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: William J. Kovacic,

Field Office Director, Lexington Field

Office, Office of Surface Mining

Reclamation and Enforcement, 2675

Regency Road, Telephone: (606) 233–

2894.

FOR FURTHER INFORMATION CONTACT:

William J. Kovacic, Director, Lexington,

Field Office, Telephone: (606) 233–

2894.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Energy Policy Act

Section 2504 of the Energy Policy Act

of 1992, Public Law 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

include 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