Indiana Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 914

Indiana Regulatory Program

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 Indiana. 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 Indiana

and consideration of public comments, OSM has decided that initial

enforcement in Indiana will be accomplished through joint Indiana and

OSM enforcement.

effective date: July 28, 1995.

for further information contact: Roger W. Calhoun, Director,

Indianapolis Field Office, Office of Surface Mining Reclamation and

Enforcement, Minton-Capehart Federal Building, 575 North Pennsylvania

Street, Room 301, Indianapolis, Indiana 46204, Telephone: (317) 226-

6166.

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 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 sections 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 7,

1995, Federal Register (60 FR 17736) and as reiterated below,

enforcement could 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.

(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 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

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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 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 under-

ground 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 Indiana

Indiana program activity, requirements, and enforcement. By letter

to Indiana dated December 13, 1994, OSM requested information that

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

and the implementing Federal regulations in Indiana (Administrative

Record No. IND-1438). By letter dated February (sic) 20, 1995, Indiana

responded to this request (Administrative Record No. IND-1429) (the

letter was misdated; the correct date is January 20, 1995.)

Indiana stated that six underground coal mines were active in

Indiana between October 24, 1992, and July 1, 1994. Indiana also stated

that Indiana statute IC 13-4.1-9-2.5 incorporates the substantive

language of section 720 of SMCRA. Indiana noted that IC 13-4.1-9-2.5's

requirements are expressly limited to operations conducted after June

30, 1994. Therefore, the Indiana Division of Reclamation (DOR) may not

require structural repair (or compensation) or water replacement under

the authority of IC 13-4.1-9-2.5 with respect to surface coal mining

operations conducted on or before June 30, 1994. However, Indiana

stated that preexisting Indiana program provisions provide the DOR with

sufficient authority to impose the Energy Policy Act of 1992

requirements with respect to underground mining operations conducted on

or before June 30, 1994.

On June 28, 1995 (Administrative Record Number IND-1493), OSM met

with Indiana to discuss enforcement of the underground coal mine

subsidence control and water replacement requirements in Indiana. As

detailed above in its initial response to OSM concerning enforcement,

Indiana stated that Indiana law at IC 13-4.1-9-2.5 incorporates the

substantive language of section 720 of SMCRA and applies to underground

mining operations conducted after June 30, 1994. For underground mining

operations conducted in Indiana in the interim period between October

24, 1992 (the effective date of the Energy Policy Act of 1992) and June

30, 1994 (the effective date of Indiana law counterpart to the Energy

Policy Act of 1992), the State concluded that the existing Indiana

program provisions provide the Indiana Division of Reclamation (IDOR)

with sufficient authority to impose the requirements of the Energy

Policy Act of 1992 with respect to underground mining operations

conducted in Indiana during the interim period. The State concluded,

however, that although it believes that the IDOR has sufficient

authority to impose the requirements of the Energy Policy Act of 1992

during the interim period, joint State and OSM enforcement in Indiana

should be the chosen enforcement scheme in Indiana, as it would assure

protection for the citizens of Indiana during the interim period

Administrative Record Number IND-1494. Under this scheme, the IDOR

would enforce the requirements of the Energy Policy Act of 1992 in

Indiana from June 30, 1994, and during the interim period to the extent

permissible under Indiana law. OSM would enforce the requirements of

the Energy Policy Act of 1992 in the interim period only if a situation

arose where the State could not so enforce. Indiana does not anticipate

any situations where the IDOR would not be able to enforce the

provisions of the Energy Policy Act of 1992 during the interim period.

Comments. On April 7, 1995, OSM published in the Federal Register

(60 FR 17736) 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 Indiana. The comment period

closed on May 8, 1995. Because OSM did not receive a request for one,

OSM did not hold a public hearing. OSM received comments from one party

in response to its notice (Administrative Record Number IND-1476).

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

procedures 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 will 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

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landowners would be used to ensure that the protective 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 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

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 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 discussed above, the

Director has decided that enforcement of the underground coal mine

subsidence control and water replacement requirements in Indiana will

be accomplished through joint State and OSM enforcement. The Director

has made this decision after soliciting public comment (one comment was

received) and providing opportunity for public hearing (no requests for

a hearing were received), and considering information provided by

Indiana by letter dated February (sic) 20, 1995, and in discussions

held with Indiana on June 28, 1995. The Director has concluded that

Indiana law at IC 13-4.1-9-2.5 authorizes enforcement of provisions of

the Energy Policy Act of 1992 in Indiana from June 30, 1994. As for

enforcement during the interim period (October 24, 1992, through June

30, 1994), Indiana will enforce the provisions of the Energy Policy Act

of 1992 to the extent authorized by existing Indiana law. OSM will

enforce the provisions of the Energy Policy Act of 1992 during the

interim period in any circumstances where the State cannot so enforce.

Neither the IDOR nor OSM anticipates any cases where the IDOR would not

be able to enforce the provisions of the Energy Policy Act of 1992

during the interim period.

If circumstances within Indiana 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. 95-18611 Filed 7-27-95; 8:45 am]

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