Alabama and Mississippi Regulatory Programs

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 901 and 924

Alabama and Mississippi 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 Alabama and Mississippi 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 Alabama and Mississippi's regulatory

programs (hereinafter referred to as the ``Alabama program'' and

``Mississippi program'') currently have adequate counterpart provisions

in place to promptly implement the recent amendments to SMCRA and the

Federal regulations. After consultation with Alabama and Mississippi

and consideration of public comments, OSM will decide whether initial

enforcement in Alabama and Mississippi 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.S.T. on April

30, 1995. If requested, OSM will hold a public hearing on April 25,

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 Alabama and Mississippi. Requests to speak at the hearing must be

received by 4:00 p.m., C.S.T. on April 15, 1995.

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

be mailed or hand-delivered to Jesse Jackson, Jr., Director, Birmingham

Field Office at the address listed below. Office of Surface Mining, 135

Gemini Circle, Suite 215, Birmingham, Alabama 35209.

Copies of the applicable parts of the Alabama and Mississippi

programs, SMCRA, the implementing Federal regulations, information

provided by Alabama and Mississippi 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. Jesse

Jackson, Jr., Director, Birmingham Field Office, Office of Surface

Mining Reclamation and Enforcement, 135 Gemini Circle, Suite 215,

Birmingham, Alabama 35209, Telephone: (205) 290-7282.

FOR FURTHER INFORMATION CONTACT:

Jesse Jackson, Jr., Director, Birmingham Field Office, Telephone: (205)

290-7282.

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 [[Page 18045]] 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.

30 CFR 843.25 provides that by July 29, 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 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 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) 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 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 [[Page 18046]] for operations conducted after October 24,

1992.

C. Enforcement in Alabama

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

information from Alabama that would help OSM decide which approach to

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

SMCRA and the implementing Federal regulations (Administrative Record

No. AL-520). By letter dated January 1, 1995, Alabama responded to this

OSM 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 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 will 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 due to the proposal to supersede State

program provisions. 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.

D. Enforcement in Mississippi

By letter to Mississippi dated December 14 1994, OSM requested

information from Mississippi that would help OSM decide which approach

to take in Mississippi to implement the new requirements of section

720(a) of SMCRA and the implementing Federal regulations

(Administration Record No. MS-328). Mississippi has not responded to

the December 14, 1994, letter requesting information on underground

coal mines.

Mississippi has had no surface nor underground coal mining

operations since October 24, 1992. At the present time, Mississippi is

in the process of completely revising its approved regulatory program.

II. Public Comment Procedures

OSM is requesting public comment to assist OSM in making its

decision on which approach to use in Alabama and Mississippi 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 Birmingham 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 p.m., C.S.T.

on April 15, 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 Alabama and Mississippi 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: April 4, 1995.

David G. Simpson,

Acting Assistant Director, Eastern Support Center.

[FR Doc. 95-8754 Filed 4-7-95; 8:45 am]

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