[Federal Register Volume 60, Number 67 (Friday, April 7, 1995)]
[Proposed Rules]
[Pages 17739-17741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-8638]



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DEPARTMENT OF THE INTERIOR
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.

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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 [[Page 17740]] 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:

    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 or subsidence-related complaints has 
been thorough and complete so as to assure prompt remedial action, then 
OSM could decide not to directly enforce the Federal provisions in the 
State. In this situation, the State would enforce its State statutory 
and regulatory provisions once it has amended its program to be in 
accordance with the revised SMCRA and to be consistent with the revised 
Federal regulations. This program revision process, which is addressed 
in the Federal regulations at 30 CFR part 732, is commonly referred to 
as the State program amendment process.
    (2) State enforcement. If the State has statutory or regulatory 
provisions in place that correspond to all of the requirements of the 
above-described Federal regulations at 30 CFR 817.41(j) and 
817.121(c)(2) and the State has authority to implement its statutory 
and regulatory provisions for all underground mining activities 
conducted after October 24, 1992, then the State would enforce its 
provisions for these operations.
    (3) Interim direct OSM enforcement. If the State does not have any 
statutory or regulatory provisions in place that correspond to the 
requirements of the Federal regulations at 30 CFR 817.41(j) and 
817.121(c)(2), then OSM would enforce in their entirety 30 CFR 
817.41(j) and 817.121(c)(2) for all underground mining activities 
conducted in the State after October 24, 1992.
    (4) State and OSM enforcement. If the State has statutory or 
regulatory provisions in place that correspond to some but not all of 
the requirements of the Federal regulations at 30 CFR 817.41(j) and 
817.121(c)(2) and the State has authority to implement its provisions 
for all underground mining activities conducted after October 24, 1992, 
then the State would enforce its provisions for these operations. OSM 
would then enforce those provisions of 30 CFR 817.41(j) and 
817.121(c)(2) that are not covered by the State provisions for these 
operations.
    If the State has statutory or regulatory provisions in place that 
correspond to some but not all of the requirements of the Federal 
regulations at 30 CFR 817.41(j) and 817.121(c)(2) and if the State's 
authority to enforce its provisions applies to operations conducted on 
or after some date later than October 24, 1992, the State would enforce 
its provisions for these operations on and after the provisions' 
effective date. OSM would then enforce 30 CFR 817.41(j) and 
817.121(c)(2) to the extent the State statutory and regulatory 
provisions do not include corresponding provisions applicable to all 
underground mining activities conducted after October 24, 1992; and OSM 
would enforce those provisions of 30 CFR 817.41(j) and 817.121(c)(2) 
that are included in the State program but are not enforceable back to 
October 24, 1992, for the time period from October 24, 1992, until the 
effective date of the State's rules.
    As described in item numbers (3) and (4) above, OSM would directly 
enforce in total or in part its Federal statutory or regulatory 
provisions until the State adopts and OSM approves, under 30 CFR part 
732, the State's counterparts to 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 structure 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 Kentucky

    By letter to Kentucky dated December 14, 1994, OSM requested 
information from Kentucky that would help OSM decide which approach to 
take in Kentucky to implement the new requirements of section 720(a) of 
[[Page 17741]] SMCRA and the implementing Federal regulations 
(Administrative Record No. KY-1336. By letter dated January 31, 1995, 
Kentucky responded to this OSM request (Administrative Record No. KY-
1337).
    Kentucky stated that 410 underground coal mines were active in 
Kentucky after October 24, 1992. Kentucky indicated that existing State 
program provisions at 405 Kentucky Administrative Regulations (KAR) 
18:210 section 3 are adequate State counterparts to section 720(a)(1) 
of SMCRA and the implementing Federal regulations. Section 720(a)(1) of 
SMCRA requires prompt repair or compensation to the owner for 
subsidence-related material damage to non-commercial buildings or 
occupied dwellings and related structures. Kentucky explained that it 
will enforce this State program provision in accordance with 405 KAR 
18:210 section 3.
    Kentucky stated that the Kentucky program does not fully authorize 
enforcement of the new water replacement requirements of section 
720(a)(2) of SMCRA and the implementing Federal regulations. Kentucky 
submitted a program amendment to OSM dated April 29, 1994, 
(Administrative Record No. KY-1279) which will modify language at 
Kentucky Revised Statutes (KRS) 350.421. KRS 350.421, as modified, will 
require replacement of water loss caused by underground mining 
operations. OSM is currently reviewing the Kentucky program amendment. 
Kentucky has stated that the effective date of the program amendment, 
when approved, will be July 16, 1994. Kentucky also stated that it does 
not have authority to issue enforcement actions for water loss caused 
by underground mining operations conducted after October 24, 1992, and 
before July 16, 1994.
    Kentucky has investigated 115 citizen complaints alleging water 
supply loss or contaminations as a result of underground mining 
operations conducted after October 14, 1992, and before July 16, 1994. 
Of the 115 citizens complaints, 30 are pending resolution of currently 
outstanding ten-day notices; 29 have been satisfactorily resolved; and 
47 will require further investigation.

II. Public Comment Procedures

    OSM is requesting public comment to assist OSM in making its 
decision on which approach to use in Kentucky 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 
commentor's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Lexington 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 Kentucky 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. 95-8638 Filed 4-6-95; 8:45 am]
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