[Federal Register Volume 60, Number 68 (Monday, April 10, 1995)]
[Proposed Rules]
[Pages 18046-18049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8753]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 938 and 920


Pennsylvania and Maryland 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 Pennsylvania and Maryland, 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 Pennsylvania and the Maryland regulatory 
programs (hereinafter referred to as the ``Pennsylvania Program'' and 
the ``Maryland Program'') currently have adequate counterpart 
provisions in place to promptly implement the recent amendments to 
SMCRA and the Federal regulations. After consultation with 
[[Page 18047]] Pennsylvania and Maryland and consideration of public 
comments, OSM will decide whether initial enforcement in Pennsylvania 
and Maryland 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.D.T. on May 
10, 1995. If requested, OSM will hold a public hearing on May 5, 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 Pennsylvania and Maryland. Requests to speak at the hearing must be 
received by 4:00 p.m., E.D.T. on April 25, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand-delivered to Robert J. Biggi, Director, Harrisburg 
Field Office at the address listed below.
    Copies of the applicable parts of the Pennsylvania and Maryland 
State programs, SMCRA, the implementing Federal regulations, 
information provided by Pennsylvania and Maryland 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. Robert J. 
Biggi, Director, Harrisburg Field Office, Office of Surface Mining 
Reclamation and Enforcement, Harrisburg Transportation Center, Third 
Floor, Suite 3C, 4th and Market Streets, Harrisburg, Pennsylvania 
17101, Telephone: (717) 782-4036.

FOR FURTHER INFORMATION CONTACT: Robert J. Biggi, Director, Harrisburg 
Field Office, Telephone: (717) 782-4036.

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 [[Page 18048]] 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,'' ``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 Pennsylvania

    By letter to Pennsylvania dated December 13, 1994, OSM requested 
information from Pennsylvania that would help OSM decide which approach 
to take in Pennsylvania to implement the new requirements of section 
720(a) of SMCRA and the implementing Federal regulations 
(Administrative Record No. PA 835.00). By letter dated January 24, 
1995, Pennsylvania responded to this OSM request (Administrative record 
No. PA 835.01).
    Pennsylvania stated that 120 bituminous underground coal mines are 
permitted and that 60 of those are currently producing coal. In the 
anthracite field, there are approximately 115 permitted underground 
mining operations of which 50 to 75 operations are currently producing 
coal. Pennsylvania stated that Act 54, amending the Pennsylvania 
Bituminous Mine Subsidence and Land Conservation Act (BMSLCA) became 
effective on August 21, 1994. This amendment to BMSLCA does address 
water supply replacement and subsidence damage repair or compensation, 
but certain provisions do not mirror the Federal Energy Policy Act of 
1992 portions establishing Section 720 of SMCRA.
    Specifically, Pennsylvania stated in the January 24, 1995, response 
that BMSLCA does not include water replacement and repair or subsidence 
damage in the following situations.
Water Supply Replacement
    * Cases where water supplies were impacted between October 24, 
1992, and August 21, 1994.
    * Cases where affected water supplies are located in the anthracite 
coal fields.
    * Cases where landowners entered voluntary agreements allowing 
their supplies to be impacted.
    * Cases where impacts occurred more than three years after 
completion of coal extraction.
    * Cases where affected water sources are used to supply 
agricultural irrigation systems constructed after August 20, 1994.
    * Cases where the property owner failed to report the water supply 
problem within two years of its occurrence.
    * Cases where the mine operator was denied access to conduct a pre-
mining of post-mining survey of the water supply and no pre-mining 
quality and quantity information is available.
    * Cases where a mine operator purchased the property or compensated 
the property owner rather than replace the supply.
Repair or Compensate for Subsidence Damage
    * Cases where dwellings were constructed after April 27, 1966, and 
damaged prior to August 21, 1994.
    * Cases where dwellings constructed after August 21, 1994, are 
damaged prior to the time when coverage commences under BMSLCA 
(dwellings which are built after August 21, 1994, and between 
permitting actions are not covered by repair/compensation requirements 
until the next permit renewal).
    * Cases where the mine operator was denied access to conduct a pre-
mining or post-mining survey of the damaged structure.
    * Cases involving noncommercial buildings where the damaged 
buildings were not used by the public, accessible to the public or used 
for certain agriculture purposes.
    The Pennsylvania Department of Environmental Resources (PADER) 
states that it has authority to investigate complaints of structure 
damage and water loss caused by underground mining operations conducted 
after October 24, 1994. Limitations, as discussed above, provide 
authority to provide repair or compensation for subsidence related 
structural damage and water supply replacement for bituminous coal 
field residents after August 21, 1994. Pennsylvania does not have the 
authority to fully implement section 720(a), in the anthracite coal 
field or for bituminous coal field for time period October 24, 1992 
through August 21, 1994. Pennsylvania will require at least one year to 
make the necessary statutory changes.
    Pennsylvania has investigated 91 citizen complaints alleging 
subsidence-related structure damage or water supply loss or 
contamination as a result of underground mining operations conducted 
after October 24, 1992. To date, Pennsylvania has completed review and 
made final determination on 87 with 4 pending further study. PADER has 
determined that 2 complaints regarding structural damage were unrelated 
to underground mining and the remaining 19 were the result of 
subsidence due to mining conducted after October 24, 1992. PADER 
reports that investigations of 70 water supply complaints resulted in 
finding that 60 were unrelated to underground mining conducted after 
October 24, 1992 and 6 water supplies were determined to have been 
affected by mining. Four water supply complaints are currently under 
[[Page 18049]] review with no determination as to impacts from 
underground mining.

D. Enforcement in Maryland

    By letter to Maryland dated December 13, 1994, OSM requested 
information from Maryland that would help OSM decide which approach to 
take in Maryland to implement the new requirements of section 720(a) of 
SMCRA and the implementing Federal regulations (Administrative Record 
No. MD 570.0). By letter dated March 29, 1995, Maryland responded to 
this OSM request (Administrative Record No. MD 570.1).
    Maryland stated that four underground coal mines were active in 
Maryland after October 24, 1992. Maryland indicated that existing State 
program provisions at Maryland Natural Resources Article 7, Subtitle 
5A, Sec. 7-5A-05.1, Sec. 7-5A-05.2 and COMAR 08.20.13.09B, 08.20.13.09C 
are adequate State counterparts to section 720(a) of SMCRA and the 
implementing Federal regulations. Maryland explained that it will 
enforce these State program provisions in accordance with Maryland 
Natural Resources Article 7 effective October 24, 1992. Maryland has 
investigated eight 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. To 
date, Maryland has made determinations that the single structural 
damage complaint was unrelated to subsidence and that two water supply 
complaints were not impacted by the mining operations. In the five 
other water supply complaints Maryland determined the water supplies 
were impacted by underground mining and the mining company 
satisfactorily replaced these supplies.

II. Public Comment Procedures

    OSM is requesting public comment to assist OHM in making its 
decision on which approach to use in Pennsylvania and Maryland 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 Harrisburg 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.D.T. on April 25, 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 Pennsylvania and Maryland 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: April 4, 1995.
David G. Simpson,
Acting Assistant Director, Eastern Support Center.
[FR Doc. 95-8753 Filed 4-7-95; 8:45 am]
BILLING CODE 4310-05-M