Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Proposed Rules 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]

BILLING CODE 4310–05–M

30 CFR Parts 906, 931, and 944

Colorado, New Mexico, and Utah

Regulatory Programs

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Annoucement 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 Colorado,

New Mexico, and Utah 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 of 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 Colorado,

New Mexico, and Utah regulatory

programs (herein after referred to as the

‘‘State programs’’ currently have

adequate counterpart provisions in

place to promptly implement the recent

amendments to SMCRA and the Federal

regulations. After consultation with

Colorado, New Mexico, and Utah and

consideration of public comments, OSM

will decide whether initial enforcement

in each of these States 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., m.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 Colorado,

New Mexico, and Utah. Requests to

speak at the hearing must be received by

4:00 p.m., m.d.t. on April 21, 1995.

ADDRESSES: Written comments and

requests to speak at the hearing should

be mailed or hand-delivered to Thomas

E. Ehmett, Acting Director, Albuquerque

Field Office at the address listed below.

Copies of the applicable parts of the

Colorado, New Mexico, and Utah

programs, SMCRA, the implementing

Federal regulations, information

provided by Colorado, New Mexico, and

Utah 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.

Thomas E. Ehmett, Acting Director,

Albuquerque Field Office, Office of

Surface Mining Reclamation and

Enforcement, 505 Marquette NW., Suite

1200, Telephone: (505) 766–1486.

FOR FURTHER INFORMATION CONTACT:

Thomas E. Ehmett, Acting Director,

Albuquerque Field Office, Telephone:

(505) 766–1486.

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

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
17502 Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Proposed Rules

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)

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 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 OSDM 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) 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,’’ ‘‘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),

817.121(c) (2) and (4), and 30 CFR 701.5

for operations conducted after October

24, 1992.

C. Enforcement in Colorado

By letter to Colorado dated December

14, 1994, OSM requested information

that would help OSM decide which

approach to take in Colorado to

implement the requirements of section

720(a) of SMCRA, the implementing

Federal regulations, and/or the

counterpart Colorado program

provisions (Administrative Record No.

CO–652). By letter dated February 23,

1995, Colorado responded to OSM’s

request (Administrative Record No. CO–

661).

Colorado stated that permits were

issued for 25 underground coal mines

after October 24, 1992, and 11 of those
Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Proposed Rules 17503

mines actually mined coal after October

24, 1992.

Colorado indicated that prior to June

1, 1992, Colorado had in place surface

owner protection performance standards

at 2 Code of Colorado Regulations 407–

2, Rules 4.20.3(1) and 4.20.3(2) that

encompassed the requirements of

section 720(a)(1) of SMCRA. Rule

4.20.3(2), which contained requirements

regarding an operator’s obligation to

repair or compensate for material

damage or reduction in value or

reasonably foreseeable use caused by

subsidence to surface structures,

features, or values, expired on June 1,

1992, under Colorado’s ‘‘Sunset Law.’’

The rule expired because Colorado’s

Office of Legislative Legal Services

found during November 1991 it was not

supported by statute. Colorado

subsequently developed language for a

bill to amend the Colorado Surface Coal

Mining and Reclamation Act (the

Colorado Act) and introduced the bill

during the 1995 legislative session. The

intent of the bill is to amend section 34–

33–121(2)(a) to provide specific

statutory support for Rule 4.20.3(2).

Colorado has not yet formally submitted

this amendment to OSM for review

under 30 CFR 732.17.

Colorado explained that, although the

specific language of Rule 4.20.3(2)

expired during June 1992, the Division

of Minerals and Geology has continued

since that time to interpret its rules to

require that mine operators are

responsible for repairing or

compensating surface owners for

subsidence-caused material damage to

structures. Colorado based its authority

for doing so on the general provisions of

Rule 4.20.3(1) and the subsidence

control plan mitigation requirements of

Rule 2.05.6(6)(iv).

Colorado indicated that there may be

a conflict between the provisions of

section 720(a)(2) of SMCRA, which

requires prompt replacement of

drinking, domestic, or residential water

supplies adversely impacted by

underground mining operations, and

Colorado water law. Consequently,

Colorado has requested an opinion from

the Colorado Assistant Attorney General

in this regard. Existing Colorado Rule

4.05.15 requires operators to ‘‘* * *

replace the water supply of any owner

of a vested water right which is

proximately injured as a result of the

mining activities in a manner consistent

with applicable State law’’ (emphasis

added).

For underground mining operations

conducted after October 24, 1992,

Colorado has received one complaint

alleging subsidence-related structural

damage and two complaints alleging

subsidence-related water supply loss or

contamination. Colorado investigated all

three complaints. Colorado determined

the complaint alleging subsidencecaused structural damage to be without

basis. One of the complaints alleging

subsidence-related water supply loss or

contamination was withdrawn, and the

second is currently under investigation

by Colorado.

D. Enforcement in New Mexico

By letter to New Mexico dated

December 14, 1994, OSM requested

information that would help OSM

decide which approach to take in New

Mexico to implement the requirements

of section 720(a) of SMCRA, the

implementing Federal regulations, and/

or the counterpart New Mexico program

provisions (Administrative Record No.

NM–725). By letter dated December 22,

1994, New Mexico responded to OSM’s

request (Administrative Record No.

NM–726).

New Mexico stated that two

underground coal mines were active in

New Mexico after October 24, 1992.

New Mexico stated that, because its

existing provision at Coal Surface

Mining Commission (CSMC) Rule 80–1–

20–124 does not include requirements

no less stringent than section 720 of

SMCRA, it intended to revise this rule

to read as follows:

Each person who conducts underground

mining which results in subsidence shall:

(a) Promptly repair, or compensate for,

material damage resulting subsidence caused

to any occupied residential dwelling and

structures related thereto, or non-commercial

building due to underground coal mining

operations. Repair of damage shall include

rehabilitation, restoration, or replacement of

the damaged structures.

Compensation shall be provided to the

owner and shall be in the full amount of the

diminution in value resulting from the

subsidence. Compensation may be

accomplished by the purchase, prior to

underground mining which results in

damage of the structures, of a noncancellable

premium-prepaid insurance policy.

(b) Promptly replace any drinking,

domestic, or residential water supply from a

well or spring in existence prior to the

application for a coal mining and reclamation

permit, which has been affected by

contamination, diminution, or interruption

resulting from underground mining

operations. Nothing in this section shall be

construed to prohibit or interrupt

underground coal mining operations.

New Mexico did not indicate whether

it currently has the authority within its

program to investigate citizen

complaints of structural damage or

water supply loss or contamination

caused by underground mining

operations conducted after October 24,

1992. New Mexico has not received any

citizen complaints alleging subsidencerelated structural damage or water

supply loss or contamination as a result

of underground mining operations

conducted after October 24, 1992. New

Mexico indicated that both of the

underground mines that operated after

October 24, 1992, are located several

miles from structures subject to the

Federal requirements for subsidencerelated material damage.

E. Enforcement in Utah

By letter to Utah dated December 14,

1994, OSM requested information that

would help OSM decide which

approach to take in Utah to implement

the requirements of section 720(a) of

SMCRA, the implementing Federal

regulations, and/or the counterpart Utah

program provisions (Administrative

Record No. UT–1001). By letter dated

January 20, 1995, Utah responded to

OSM’s request (Administrative Record

No. UT–1015).

Utah stated that the number of

underground coal mines in operation

after October 24, 1992, may be found in

the past and current grant applications

filed annually with OSM. From review

of these grant applications, OSM

determined that there are approximately

21 underground mines that operated

after October 24, 1992.

As submitted to OSM on April 14,

1994, and subsequently revised on

December 14, 1994 (Administrative

Record Nos. UT–917 and UT–997), Utah

proposed subsidence material damage

provisions at Utah Code Annotated 40–

10–18(4) that were intended to be

counterparts to the provisions to the

provisions of section 720(a)(1) of

SMCRA. OSM has not yet published, in

accordance with 30 CFR Part 732.17, a

final rule Federal Register notice

detailing its decision on the proposed

provisions.

In its January 20, 1995, letter, Utah

indicated that it intends to promulgate

by March 1996 water replacement

statutory provisions that are

counterparts to the provisions of section

720(a)(2) of SMCRA.

Utah did not state whether it has

authority to investigate citizen

complaints of structural damage or

water loss caused by underground

mining operations conducted after

October 24, 1992. Utah indicated that it

did receive, investigate, and resolve one

citizen complaint after October 24,

1992, but it also indicated that the

complaint was judged not to be one that

the Energy Policy Act of 1992 revisions

to section 720 of SMCRA could remedy.
17504 Federal Register / Vol. 60, No. 66 / Thursday, April 6, 1995 / Proposed Rules

II. Public Comment Procedures

OSM is requesting public comment to

assist OSM in making its decision on

which approach to use in Colorado,

New Mexico, and Utah 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 Albuquerque

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., mst 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 Colorado, New Mexico, or Utah

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. 95–8468 Filed 4–5–95; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Parts 915, 916, and 925

Iowa, Kansas, and Missouri Regulatory

Programs

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 Iowa,

Kansas, and Missouri 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 Iowa’s, Kansas’,

and Missouri’s regulatory programs

(hereinafter referred to as the ‘‘Iowa,

Kansas, and Missouri programs’’)

currently have adequate counterpart

provisions in place to promptly

implement the recent amendments to

SMCRA and the Federal regulations.

After consultation with Iowa, Kansas,

and Missouri and consideration of

public comments, OSM will decide

whether initial enforcement in Iowa,

Kansas, and Missouri 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., 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 Iowa, Kansas,

and Missouri. Requests to speak at the

hearing must be received by 4:00 p.m.,

c.d.t. on April 21, 1995.

ADDRESSES: Written comments and

requests to speak at the hearing should

be mailed or hand-delivered to Michael

C. Wolfrom, Acting Director, Kansas

City Field Office at the address listed

below.

Copies of the applicable parts of the

Iowa, Kansas, and Missouri programs,

SMCRA, the implementing Federal

regulations, information provided by

Iowa, Kansas, and Missouri 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.

Michael C. Wolfrom, Acting Director,

Kansas City Field Office, Office of

Surface Mining Reclamation and

Enforcement, 934 Wyandotte, Room

500, Kansas City, MO 64105, Telephone:

(816) 374–6405.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Acting Director,

Kansas City Field Office, Telephone:

(816) 374–6405.

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

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(a0(2) requires