Alabama and Mississippi Regulatory Programs

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 901 and 924

Alabama and Mississippi Regulatory Programs

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

Interior.

ACTION: Notice of decision.

-----------------------------------------------------------------------

SUMMARY: OSM is announcing its decision on initial enforcement of

underground coal mine subsidence control and water replacement

requirements in Alabama and Mississippi. 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 damaged 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

Alabama and Mississippi and consideration of public comments, OSM has

decided that initial enforcement in Alabama will be accomplished

through State and OSM enforcement and that initial enforcement is not

reasonably likely to be required in Mississippi and therefore

implementation in that State will be accomplished through the State

program amendment process.

EFFECTIVE DATE: July 28, 1995.

FOR FURTHER INFORMATION CONTACT: Jesse Jackson, Jr., Field Office

Director, Birmingham Field Office, OSM, 135 Gemini Circle, Suite 215,

Birmingham, Alabama, 35209, Telephone: (205) 290-7287.

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

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 section 720(a) (1) and (2) of

SMCRA (60 FR 16722).

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, in consultation with each State

regulatory authority with an approved program, how enforcement of the

new requirements will be accomplished. As discussed in the April 10,

1995, Federal Register (60 FR 18044) 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

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, than 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

[[Page 38676]]

State program but are not enforceable back to 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

843.129a)(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 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 30

CFR 701.5 for operations conducted after October 24, 1992.

C. Enforcement in Alabama

Alabama program activity, requirements, and enforcement. By letter

to Alabama dated December 14, 1994, OSM requested information that

would be useful in determining how to implement section 720(a) of SMCRA

and the implementing Federal regulations in Alabama (Administrative

Record No. A1-520). By letter dated January 12, 1995, Alabama responded

to this request (Administrative Record No. AL-521).

Alabama stated that ten underground coal mines were active in

Alabama after October 24, 1992. Alabama stated that the Alabama program

does not fully authorize enforcement of the repair or compensation of

material damage requirements of Section 720(a) of SMCRA and the

implementing Federal regulations. Alabama's regulations are silent on

the issue of replacement of water supplies damaged by subsidence but do

contain a ``to the extent required by State law'' limitation on repair

of material damage to structures. Alabama has not determined whether a

change to the State Act is necessary to implement regulation change

which would be required under the Energy Policy Act (EPACT). Further

analysis would be necessary by the State legal staff before a

determination can be made of the need for statutory revisions.

Alabama has assumed since the passage of EPACT that the retroactive

enforcement of its provisions by Alabama would be possible until

regulatory changes can be made. Alabama has in fact adopted the

position that since the effective date of EPACT they have had

enforcement authority of its provisions.

Since October 24, 1992, Alabama has had only one citizen complaint

where alleged damage to structures from subsidence has existed. This

complaint covered a church and several houses. No complaints have been

received alleging damage to water supplies due to subsidence.

Representatives from OSM's Birmingham Field Office met with Alabama

on May 2, 1995. Alabama confirmed it has the authority to enforce the

water replacement provisions of 30 CFR 817.41(j) for underground mining

activities conducted after October 24, 1992. The State will not,

however, be able to fully enforce the repair or compensation of

material damage resulting from subsidence provisions of 30 CFR

817.121(c)(2) because of certain limitations placed on compensation in

the current State status.

Comments. On April 10, 1995, OSM published in the Federal Register

(60 FR 18044) an 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 Alabama. The comment period

closed on April 20, 1995. The comment period was subsequently extended

to May 10, 1995 (60 FR 20193, April 25, 1995). Because OSM did not

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

received one comment in response to its notice. Following is OSM's

response to it.

OSM received comments from one party in response to its notice

(Administrative Record Number AL-546). The party stated that the

enforcement alternatives incorporating total or partial direct interim

Federal enforcement (items (3) and (4) in section I.B. above) have no

statutory basis in SMCRA and are not consistent with Congress' intent

in creating section 720 of SMCRA. Specifically, the party commented

that SMCRA contains various statutory procedure for the amendment,

preemption, and substitution of Federal enforcement of State programs

(sections 503, 505, and 521(b)) that should be used in lieu of direct

interim Federal enforcement.

In response to this comment, OSM's position remains as was stated

in the March 31, 1995, preamble for the Federal regulations at 30 CFR

843.25, which in part implement section 720 of SMCRA:

OSM has concluded that it is not clear from the legislation or

legislative history, how Congress intended that section 720 was to

be implemented, in light of existing SMCRA provisions for State

primacy. Thus, OSM has a certain amount of flexibility in

implementing section 720. After weighing these considerations, OSM

intends to implement section 720 promptly, but was pursue Federal

enforcement without undermining State primacy under SMCRA.

(60 FR 16722, 16743). Using this rationale, OSM concludes that

there is no inconsistency in its implementation of section 720 of SMCRA

with sections 503, 505, and 521(b) of SMCRA.

Further, the party commented that Congress' intent was that

agreements between coal mine operators and landowners would be used to

ensure that the protection standards of section 720 of SMCRA would

occur rather than enforcement by State regulatory authorities and OSM.

The party did not supply any legislative history to support this

conclusion, and the plain language of section 720 of SMCRA does not

support this conclusion.

Lastly, the party commented that the waiver 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

assertion. The Following response to a similar comment in the March 31,

1995, Federal Register (60 FR 16722, 16742-16745) also applies to this

comment.

[The commenter stated that] the proposal to provide for direct

Federal enforcement ignores Federal case law which indicates that,

as a general proposition, the State

[[Page 38677]]

program, not SMCRA, is the law within the State. OSM recognizes

that, under existing rules implementing SMCRA, States with approved

regulatory programs have primary responsibility for implementing

SMCRA, based on the approved program. However, in this rule, OSM has

carved out a limited exception to the general proposition, to the

extent necessary to give reasonable force and effect to section 720,

while maintaining so far as possible State primacy procedures. OSM

believes that the process adopted in this final rule is consistent

with and authorized by Congress under the Energy Policy Act, and

that case law interpreting other provisions of SMCRA is not

necessarily dispositive.

Director's Decision. Based on the information provided by Alabama,

discussions held with Alabama on May 2, 1995, and the comment discussed

above, the Director has decided that enforcement of the underground

coal mine subsidence control and water replacement requirements in

Alabama will be accomplished through joint State and OSM enforcement.

Alabama will enforce its provisions for the replacement of water

supplies affected by underground mining activities conducted after

October 24, 1992. OSM will enforce those provisions of 30 CFR

817.121(c)(2) pertaining to the repair of material damage resulting

from subsidence that are not covered or are limited by the State

provisions of underground mining activities conducted after October 24,

1992.

If circumstances within Alabama change significantly, the Director

may reassess this decision. Formal reassessment of this decision would

be addressed by Federal Register notice.

D. Enforcement in Mississippi

Mississippi program activity, requirements, and enforcement. By

letter to Mississippi dated December 14, 1994, OSM requested

information that would be useful in determining how to implement

section 720(a) of SMCRA and the implementing Federal regulations in

Mississippi (Administrative Record No. MS-328). Mississippi did not

respond to this request in writing. On May 10, 1995, representatives

from OSM's Birmingham Field Office and the State met to discuss how the

provisions of the Energy Policy Act would be implemented. Mississippi

has had no surface or underground coal mining operations for several

decades. At present, Mississippi is in the process of completely

revising its approved regulatory program. It was agreed that the

program revision process addressed in the Federal regulations at 30 CFR

Part 732 would be implemented.

Comments. On April 10, 1995, OSM published in the Federal Register

(60 FR 18045) an 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 Mississippi. The comment period

closed on April 30, 1995. The comment period was subsequently extended

to May 10, 1995 (60 FR 21093, April 25, 1995). Because OSM did not

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

received one comment in response to its notice. Following is OSM's

response to it.

A mining association responded on May 12, 1995 (Administrative

Record Number MS-331). The party stated that the enforcement

alternatives incorporating total or partial direct interim Federal

enforcement (items (3) and (4) in section I.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 under 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 in Mississippi because

the Regional Director has decided, as set forth below, not to implement

an enforcement alternative including direct Federal enforcement.

Director's Decision. Based on discussions held with the State on

May 10, 1995, and the comment discussed above, the Director has decided

that initial enforcement of the underground coal mine subsidence

control and water replacement requirements in Mississippi is not

reasonably likely to be required and that implementation will be

accomplished through the State program amendment process. There have

been no underground mines in Mississippi for decades. Mississippi is in

the process of amending its entire regulatory program and would enforce

its statutory and regulatory provisions when its program is determined

to be in accordance with the revised SMCRA and consistent with the

revised Federal regulations.

If circumstances within Mississippi change significantly, the

Director may reassess this decision. Formal reassessment of this

decision would be addressed by Federal Register notice.

Dated: July 24, 1995.

Charles E. Sandberg,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 95-18609 Filed 7-27-95; 8:45 am]

BILLING CODE 4310-05-M