[Federal Register Volume 60, Number 66 (Thursday, April 6, 1995)]
[Proposed Rules]
[Pages 17501-17504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8468]



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DEPARTMENT OF THE INTERIOR
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.

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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 [[Page 17502]] 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 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 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,'' ``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 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 [[Page 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 subsidence-
caused 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 subsidence-related 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 subsidence-related 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. [[Page 17504]] 

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