Iowa, Kansas, and Missouri Regulatory Programs

DEPARTMENT OF THE INTERIOR

30 CFR Parts 915, 916, and 925

Iowa, Kansas, and Missouri Regulatory Programs

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

Interior.

ACTION: Notice of decision.

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SUMMARY: OSM is announcing its decision on initial enforcement of

underground coal mine subsidence control and water replacement

requirements in Iowa, Kansas, and Missouri. Amendments to the Surface

Mining Control and Reclamation Act of 1977 (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 and promptly replace

drinking, domestic, and residential water supplies that have been

adversely affected by underground coal mining. After consultation with

Iowa, Kansas, and Missouri and consideration of public comments, OSM

has decided that initial enforcement is not reasonably likely to be

required and that implementation in these States will be accomplished

through the State program amendment process.

EFFECTIVE DATE: July 27, 1995.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Acting Director, Kansas City Field Office,

Telephone: (816) 374-6405.

SUPPLEMENTARY INFORMATION:

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

[[Page 38497]]

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

(60 FR 16722) to implement the performance standards of sections 720(a)

(1) and (2) of SMCRA.

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.

Alternative OSM enforcement decisions. 30 CFR 843.25 provides that

by July 31, 1995, OSM will decide, after consultation with each State

regulatory authority with an approved program, how enforcement of the

new requirements will be accomplished. As discussed in the April 6,

1995, Federal Register (60 FR 17504) and as reiterated below,

enforcement could be accomplished by State, OSM, or joint State and OSM

enforcement of the requirements, or by a State after it has amended its

program.

(1) State program amendment process. If the State's promulgation or

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 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 (3) and (4) above, OSM could directly enforce

in total or in part the applicable Federal 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

(1) above, OSM could decide not to initiate direct Federal enforcement

but rather to 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 he 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 implement

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

implement the definitions at 30 CFR 701.5 for operations conducted

after October 24, 1992.

[[Page 38498]]

C. Enforcement in Iowa

Iowa Program Activity, Requirements, and Enforcement

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

information from Iowa that would help OSM decide which approach to take

in Iowa to implement the requirements of section 720(a) of SMCRA, the

implementing Federal regulations, and/or the counterpart Iowa program

requirements (Administrative Record No. IA-413). Iowa did not respond

to this request.

OSM determined that Iowa has not revised its statute to incorporate

counterparts to the requirements of section 720 of SMCRA.

On May 9, 1995, OSM confirmed with Iowa that no underground coal

mines have operated in Iowa after October 24, 1992, and that there is

no underground mining activity proposed in the State (Administrative

Record No. IA-418). At that time, OSM also discussed whether the State

has counterparts to the implementing Federal regulations.

Iowa has not revised its regulations to incorporate counterparts to

the Federal regulations implementing the SMCRA provisions. OSM's review

of Iowa's regulations indicates that (1) at Iowa Administrative Code

(IAC) 27-40.64(207), Iowa incorporated 30 CFR 817.41 as it existed on

July 1, 1992, and (2) at IAC 27-40.64(6), Iowa incorporated 30 CFR

817.121(c)(2) as it existed on July 1, 1992, except the phrase ``To the

extent required under applicable provisions of State law.''

Iowa has not proposed a schedule to OSM for when it will revise its

program to be no less stringent than SMCRA and no less effective than

the Federal regulations.

Comments. On April 6, 1995, OSM published in the Federal Register

(60 FR 17504) notice of opportunity for a public hearing and a request

for public comment to assist OSM in making its decision on how the

underground coal mine subsidence control and water replacement

requirements should be implemented in Iowa (Administrative Record No.

IA-415). The comment period closed on May 8, 1995. Because OSM did not

receive a request for a public hearing, OSM did not hold one. OSM

received comments from one party in response to its notice

(Administrative Record No. IA-419). These comments apply not only to

the Iowa program but also to the Kansas and Missouri programs that are

addressed below (Administrative Record Nos. KS-598 and MO-632).

The party commented that the enforcement alternatives incorporating

total or partial direct interim Federal enforcement (items (3) and (4)

in section B. above) have no statutory basis in SMCRA and are not

consistent with Congress' intent in creating section 720 of SMCRA. The

party also commented that the waiving of ten-day notice procedures in

implementing direct Federal enforcement is not consistent with Federal

case law. OSM does not agree with the commenter's assertions, and it

addressed similar comments in the March 31, 1995, Federal Register (60

FR 16722, 16742-16745). These concerns about direct Federal enforcement

are moot issues for these States because the Regional Director has

decided, as set forth below, not to implement an enforcement

alternative including direct Federal enforcement.

Regional Director's decision. Prior to the Regional Director making

this decision on which enforcement alternative should be implemented in

Iowa, the Kansas City Field Office on May 9, 1995, consulted with Iowa

in accordance with 30 CFR 843.25(a)(4) (Administrative Record No. IA-

418). Because there has been no underground mining activity since

October 24, 1992, and there is no underground mining activity proposed

in the State, the Field Office and Iowa agreed that it is unlikely that

any State or Federal enforcement would be necessary in the State during

the interim period between October 24, 1992, and the date by which Iowa

revises its program in accordance with SMCRA and the Federal

regulations.

On this basis and the disposition of the comments received, the

Regional Director decides that initial enforcement of the underground

coal mine subsidence control and water replacement requirements in Iowa

is not reasonably likely to be required and that implementation will be

accomplished through the State program amendment process. In the near

future, and in accordance with 30 CFR 732.17(d), OSM intends to notify

Iowa of the specific revisions that it must make to its regulatory

program to be no less stringent than SMCRA and no less effective than

the implementing Federal regulations.

If circumstances within Iowa change significantly, the Regional

Director may reassess this decision. Formal reassessment of this

decision would be addressed by Federal Register notice.

D. Enforcement in Kansas

Kansas Program Activity, Requirements, and Enforcement

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

information from Kansas that would help OSM decide which approach to

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

SMCRA, the implementing Federal regulations, and/or the counterpart

Kansas program requirements (Administrative Record No. KS-594). By

letter dated February 3, 1995, Kansas responded to OSM's request

(Administrative Record No. KS-595).

Kansas stated that no underground coal mines were operating in

Kansas after October 24, 1992, and that there is no underground mining

activity proposed in the State.

OSM has determined that Kansas has not revised its statute to

incorporate counterparts to the requirements of section 720(a) of

SMCRA. Although not specifically stated, Kansas' letter implies that

the provisions can be implemented in the State program through the

promulgation of regulations.

Kansas indicated that at Kansas Administrative Regulations (KAR)

47-9-1(d)(40), it adopted 30 CFR 817.121 as it existed on July 1, 1990,

and was in the process of promulgating regulations adopting 30 CFR

817.121 as it was written on July 1, 1992. Kansas stated that this

revised regulation will authorize the repair of structural damage

caused by subsidence in accordance with section 720(a)(1) of SMCRA as

it existed on December 31, 1993.

Kansas further indicated that it has the authority to investigate

complaints concerning water loss through the material damage criteria

of KAR 47-9-1(d)(40), which adopts by reference 30 CFR 817.121(a), and

through its hydrologic balance regulations at KAR 47-9-1(d)(7), which

adopts by reference 30 CFR 817.41. It further stated that any drinking,

domestic, or residential water supply, or other beneficial use as

defined by the Kansas Water Appropriations Act, which is impaired by

diversion or is otherwise impaired, would have to be replaced according

to Kansas Statutes Annotated (KSA) 82a-706b. Lastly, Kansas stated that

any waters of the state whose quality is adversely impacted will have

to be cleaned up at the owner's expense as provided for in KSA 65-171

et seq.

Kansas concluded that the above-discussed regulations and statutes

adequately encompass the requirements of section 720(a) of SMCRA.

Kansas made these statements about the effectiveness of its

regulations on February 3, 1995, prior to the publication of the

Federal regulations on March 31, 1995. On May 5, 1995, after Kansas had

an opportunity to review the new Federal regulations, OSM discussed

with Kansas the Federal

[[Page 38499]]

requirements and whether Kansas still believed that its regulations

contained the necessary counterparts to the Federal regulations

(Administrative Record No. KS-597). At that time, it concluded that it

did not.

Kansas indicated that it is under a moratorium for promulgating new

regulations under its State rulemaking process, but that it will

propose new regulations that are counterparts to the Federal

regulations at the first opportunity to do so. Such new regulations

could not be expected to be promulgated until 1997 or 1998.

Comments. On April 6, 1995, OSM published in the Federal Register

(60 FR 17504) notice of opportunity for a public hearing and a request

for public comment to assist OSM in making its decision on how the

underground coal mine subsidence control and water replacement

requirements should be implemented in Kansas (Administrative Record No.

KS-596). The comment period closed on May 8, 1995. Because OSM did not

receive a request for a public hearing, OSM did not hold one. The

comments discussed above for the Iowa program, and OSM's responses to

them, also apply to the Kansas program.

Regional Director's decision. Prior to the Regional Director making

this decision on which enforcement alternative should be implemented in

Kansas, the Kansas City Field Office on May 5, 1995, consulted with

Kansas in accordance with 30 CFR 843.25(a)(4) (Administrative Record

No. KS-597). Because there has been no underground mining activity

since October 24, 1992, and there is no underground mining activity

proposed in the State, the Field Office and Kansas agreed that it is

unlikely that any State or Federal enforcement would be necessary in

the State during the interim period between October 24, 1992, and the

date by which Kansas revises its program in accordance with SMCRA and

the Federal regulations.

On this basis and the disposition of the comments received, the

Regional Director decides that initial enforcement of the underground

coal mine subsidence control and water replacement requirements in

Kansas is not reasonably likely to be required and that implementation

will be accomplished through the State program amendment process. In

the near future, and in accordance with 30 CFR 732.17(d), OSM intends

to notify Kansas of the specific revisions that it must make to its

regulatory program to be no less stringent than SMCRA and no less

effective than the implementing Federal regulations.

If circumstances within Kansas change significantly, the Regional

Director may reassess this decision. Formal reassessment of this

decision would be addressed by Federal Register notice.

E. Enforcement in Missouri

Missouri Program Activity, Requirements, and Enforcement

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

information from Missouri that would help OSM decide which approach to

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

SMCRA, the implementing Federal regulations, and/or the counterpart

Missouri program provisions (Administrative Record No. MO-619). By

letter dated February 16, 1995, Missouri responded to OSM's request

(Administrative Record No. MO-620).

Missouri stated that the subsidence plan permitting requirements at

10 Missouri Code of State Regulations (CSR) 40-6.120(11) and the

performance standards for subsidence control at 10 CSR 40-3.280

generally correspond to the requirements of section 720(a)(1) of SMCRA.

In these regulations, Missouri requires the permit applicant to submit

a plan detailing steps to prevent subsidence damage or mitigate effects

of that damage to ``structures or renewable resource lands.'' Missouri

interprets ``structures'' to broadly mean any building, whether

commercial or noncommercial and whether occupied or unoccupied, and it

defines ``renewable resource lands'' as ``aquifers and areas for the

recharge of aquifers and other underground waters, areas for

agricultural or silviculture production for food and fiber, and grazing

lands.''

Missouri also stated that the underground mining permit

requirements for alternate water supply at 10 CSR 40-6.110(8) and

protection of hydrologic balance requirements at 10 CSR 40-

6.120(5)(B)3., together with the performance requirements for water

rights replacement at 10 CSR 40-3.200(14), generally correspond to

section 720(a)(2) of SMCRA.

Missouri indicated that all of the above-discussed regulations have

effective dates preceding October 24, 1992, and appear to provide

Missouri authority to enforce the provisions of section 720 of SMCRA.

On May 10, 1995, OSM confirmed with Missouri that no underground

coal mines have operated in Missouri after October 24, 1992, and there

is no underground mining activity proposed in the State (Administrative

Record No. MO-631).

Missouri indicated that it would propose regulation revisions that

are intended to be no less effective than the Federal regulations in

the next amendment that it submits to OSM.

Comments. On April 6, 1995, OSM published in the Federal Register

(60 FR 17504) notice of opportunity for a public hearing and a request

for public comment to assist OSM in making its decision on how the

underground coal mine subsidence control and water replacement

requirements should be implemented in Missouri (Administrative Record

No. MO-628). The comment period closed on May 8, 1995. Because OSM did

not receive a request for a public hearing, OSM did not hold one. The

comments discussed above for the Iowa program, and OSM's response to

them, also apply to the Missouri program.

Regional Director's decision. Prior to the Regional Director making

this decision on which enforcement alternative should be implemented in

Missouri, the Kansas City Field Office on May 10, 1995, consulted with

Missouri in accordance with 30 CFR 843.25(a)(4) (Administrative Record

No. MO-631). Because there has been no underground mining activity

since October 24, 1992, and there is no underground mining activity

proposed in the State, the Field Office and Missouri agree that it is

unlikely that any Federal or State enforcement would be necessary in

the State during the interim period between October 24, 1992, and the

date by which Missouri revises its program in accordance with SMCRA and

the Federal regulations.

On this basis and the disposition of the comments received, the

Regional Director decides that initial enforcement of the underground

coal mine subsidence control and water replacement requirements in

Missouri is not reasonably likely to be required and that

implementation will be accomplished through the State program amendment

process. In the near future, and in accordance with 30 CFR 732.17(d),

OSM intends to notify Missouri of the specific revisions that it must

make to its regulatory program to be no less stringent than SMCRA and

no less effective than the implementing Federal regulations.

If circumstances within Missouri change significantly, the Regional

Director may reassess this decision. Formal reassessment of this

decision would be addressed by Federal Register notice.

[[Page 38500]]

Dated: July 19, 1995.

Russell F. Price,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 95-18442 Filed 7-26-95; 8:45 am]

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