Virginia Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Announcement of reopening of public comment period and

opportunity for public hearing.

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SUMMARY: OSM is reopening a public comment period until May 26, 1995,

and is requesting public comment that would be considered in deciding

how to implement in Virginia 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 Virginia regulatory program (hereinafter

referred to as the ``Virginia program'') currently has adequate

counterpart provisions in place to promptly implement the recent

amendments to SMCRA and the Federal regulations. After consultation

with Virginia and consideration of public comments, OSM will decide

whether initial enforcement in Virginia 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

26, 1995. If requested, OSM will hold a public hearing on May 22, 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 Virginia. Requests to speak at the hearing must be received by 4:00

p.m., E.D.T. on May 18, 1995.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand-delivered to Robert A. Penn, Director, Big Stone Gap

Field Office at the address listed below.

Copies of the applicable parts of the Virginia program, SMCRA, the

implementing Federal regulations, information provided by Virginia

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: Robert A. Penn, Director, Big Stone Gap Field Office, Office

of Surface Mining Reclamation and Enforcement, P.O. Drawer 1217, Big

Stone Gap, Virginia 24219, Telephone: (703) 523-4303.

FOR FURTHER INFORMATION CONTACT: Robert A. Penn, Director, Big Stone

Gap Field Office, Telephone: (703) 523-4303.

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 [[Page 25186]] 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 subsistence-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 subsistence-related complaints has

been thorough and complete so as to assure prompt remedial action, the

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), the 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 were 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 items 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 provision 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 specific 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 premittee 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 Virginia

By letter to Virginia dated December 14, 1994, OSM requested

information from Virginia that would help OSM decide which approach to

take in Virginia to implement the new requirements of section 720(a) of

SMCRA and the implementing Federal regulations (Administrative Record

No. VA-850. By letter dated January 13, 1995, Virginia responded to

this OSM request (Administrative Record No. VA-851).

Virginia indicated that existing State program provisions at

Sections 45.1-243 and 45.1-258 of the Code of Virginia are adequate

State counterparts to section 720(a) of SMCRA. Virginia explained that

it will enforce these State program provisions effective October 24,

1992. Section 480-03-19.817.121(c)(2) of the Virginia Coal Surface

Mining Reclamation Regulations concerning subsidence control has been

used by Virginia since December 26, 1990. OSM [[Page 25187]] records

show that approximately 325 underground coal mines have been classified

as active in Virginia since October 24, 1992. Between October 24, 1992,

and January 13, 1995, Virginia investigated 262 citizen complaints

alleging subsidence-caused structural damage or water supply loss or

contamination as a result of underground mining operations. As of

January 13, 1995, Virginia had found that no violation of the Act

existed on 202 of the complaints, violations existed on 35 of the

complaints, and technical reports and a final decision were pending on

25 complaints.

By letter dated April 30, 1995, a person requested that the comment

period be reopened because previous commitments prevented a timely

reply to OSM's request for public comment. In response to this request,

OSM is reopening the public comment period until May 26, 1995.

II. Public Comment Procedures

OSM is requesting public comment to assist OSM in making its

decision on which approach to use in Virginia 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 Big Stone Gap 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 May 18, 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 that 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 Virginia 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: May 4, 1995.

Allen D. Klein,

Regional Director, Appalachian Regional Coordinating Center.

[FR Doc. 95-11647 Filed 5-10-95; 8:45 am]

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