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: 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 Iowa, Kansas, and Missouri 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 Iowa's, Kansas', and Missouri's regulatory

programs (hereinafter referred to as the ``Iowa, Kansas, and Missouri

programs'') currently have adequate counterpart provisions in place to

promptly implement the recent amendments to SMCRA and the Federal

regulations. After consultation with Iowa, Kansas, and Missouri and

consideration of public comments, OSM will decide whether initial

enforcement in Iowa, Kansas, and Missouri 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., c.d.t. on May 8,

1995. If requested, OSM will hold a public hearing on May 1, 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 Iowa, Kansas, and Missouri. Requests to speak at the hearing must be

received by 4:00 p.m., c.d.t. on April 21, 1995.

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

be mailed or hand-delivered to Michael C. Wolfrom, Acting Director,

Kansas City Field Office at the address listed below.

Copies of the applicable parts of the Iowa, Kansas, and Missouri

programs, SMCRA, the implementing Federal regulations, information

provided by Iowa, Kansas, and Missouri concerning their 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.

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

Office of Surface Mining Reclamation and Enforcement, 934 Wyandotte,

Room 500, Kansas City, MO 64105, Telephone: (816) 374-6405.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Acting Director,

Kansas City Field Office, Telephone: (816) 374-6405.

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 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(a0(2) requires [[Page 17505]] 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 16722-16751).

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 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 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 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 thee 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)(20 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 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 Iowa

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). As of March 21, 1995,

Iowa had not responded to OSM's request.

OSM has determined that no underground coal mines were operating in

Iowa after October 24, 1992.

OSM's review of Iowa's program indicates that Iowa has not revised

its [[Page 17506]] statute to incorporate counterparts to the

requirements of section 720 of SMCRA. Also OSM's review 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.''

D. Enforcement in Kansas

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.

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 is 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.

E. Enforcement in Missouri

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).

OSM determined that no underground coal mines were operating in

Missouri after October 24, 1992.

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 ``structure or renewable resource lands.'' Missouri

interprets ``structures to broadly mean any building, 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.

II. Public Comment Procedures

OSM is requesting public comment to assist OSM in making its

decision on which approach to use in Iowa, Kansas, and Missouri 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 Kansas City 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.,

c.d.t. on April 21, 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 Iowa, Kansas, and Missouri 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.

[[Page 17507]] Dated: March 31, 1995.

Russell F. Price,

Acting Assistant Director, Western Support Center.

[FR Doc. 95-8466 Filed 4-5-95; 8:45 am]

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