[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70838-70866]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30893]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 761
RIN 1029-AB82
Interpretative Rule Related to Subsidence Due to Underground Coal
Mining
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule and record of decision.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement
interprets sections 522(e) and 701(28) of the Surface Mining Control
and Reclamation Act of 1977 and implementing rules to provide that
subsidence due to underground mining is not a surface coal mining
operation. Subsidence therefore is not prohibited in areas protected
under the Act . Neither subsurface activities that may result in
subsidence, nor actual subsidence, are prohibited on lands protected by
section 522(e). Subsidence is subject to regulation under other
applicable provisions of the Surface Mining Control and Reclamation Act
of 1977, primarily sections 516 and 720.
EFFECTIVE DATE: January 18, 2000.
FOR FURTHER INFORMATION CONTACT: Nancy R. Broderick, Office of Surface
Mining Reclamation and Enforcement, Room 210, South Interior Building,
1951 Constitution Avenue, NW, Washington, DC 20240. Telephone: (202)
208-2700. E-mail address: nbroderi@osmre.gov. Additional information
concerning OSM, this rule, and related documents may be found on OSM's
home page at http://www.osmre.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background.
A. Why is OSM doing this rulemaking?
B. What process did OSM use to develop the final rule?
C. How is this rule related to the valid existing rights rulemaking?
D. What statutory language is OSM interpreting?
1. Prohibition on surface coal mining operations--section
522(e).
2. Definition of surface coal mining operations--section
701(28).
E. What other SMCRA provisions are relevant?
1. Surface effects of underground coal mining operations--
section 516.
2. Subsidence--section 720.
F. What existing regulations are relevant?
1. Provisions implementing SMCRA sections 522(e) and 701(28).
Part 740
2. Provisions implementing SMCRA sections 516 and 720. Sections
784.20 and 817.121
II. Discussion of Final Rule.
A. Do the prohibitions of section 522(e) apply to subsidence from
underground mining?
B. What is the rationale for the final rule?
1. Statutory language.
2. Legislative history.
3. Policy considerations.
a. This rule resolves questions about our interpretation of
statutory provisions.
b. This rule balances economic and environmental considerations.
c. This rule avoids a regulatory gap.
d. This rule balances the interests of surface owners and
industry.
e. This rule maintains stability in SMCRA implementation.
f. This rule promotes safety.
g. This rule acknowledges existing property rights.
III. Response to Comments.
A. SMCRA definition of surface coal mining operations.
B. Congressional intent.
C. History of interpretation as to applicability of section 522(e)
prohibitions to subsidence.
D. Regulatory gap--Adequacy of SMCRA protection of 522(e) features
from subsidence damage.
E. Impacts on underground mining if prohibitions do apply to
subsidence.
F. Codification of the final rule.
IV. Procedural Matters.
A. Executive Order 12866: Regulatory Planning and Review.
B. Regulatory Flexibility Act.
C. Small Business Regulatory Enforcement Fairness Act.
D. Unfunded Mandates Reform Act of 1995.
E. Executive Order 12630: Takings.
F. Executive Order 13132: Federalism.
G. Executive Order 12988: Civil Justice Reform.
H. Paperwork Reduction Act.
I. National Environmental Policy Act of 1969 and Record of Decision.
Background
A. Why Is OSM Doing This Rulemaking?
The Surface Mining Control and Reclamation Act of 1977 (Public Law
95-87, 30 U.S.C. 1201 et seq.) (SMCRA or the Act) prohibits surface
coal mining operations on all lands designated in section 522(e),
subject to valid existing rights and except for those operations which
existed on August 3, 1977. Lands designated in section 522(e)(1)-(5)
include:
--Any lands within the boundaries of units of the National Park System;
--Federal lands within National Forests; publicly owned parks;
--Properties listed on the National Register of Historic Places;
--Buffer zones around public roads, homes, public buildings, schools,
[[Page 70839]]
churches, community and institutional buildings; and
--Cemeteries.
Section 701(28) Defines ``Surface Coal Mining Operations.''
This interpretive rulemaking is in part the result of litigation
concerning the applicability of:
--The section 522(e)(4) prohibition to underground mining within 100
feet of any public road; and
--The (e)(5) prohibition to underground mining within 300 feet from any
occupied dwelling, unless waived by the owner, or within 300 feet of
public buildings or public parks, or within 100 feet of a cemetery.
In that litigation, environmental and citizen plaintiffs contended
that our regulations implementing SMCRA section 522(e), at 30 CFR
761.11(d) through (g), did not explicitly prohibit subsidence from
underground mining in 522(e)(4) and (5) areas. Citizen Plaintiffs' Mem.
Round III of In Re: Permanent Surface Mining Regulation Litigation, No.
79-1144, (D.D.C. 1985) [hereafter, In Re: Permanent (II)] at 56. There
is still disagreement over whether and to what extent subsidence and
underground mining which causes or is expected to cause subsidence, are
prohibited. Environmental and citizen groups believe all subsidence is
prohibited. Industry groups believe subsidence is not covered by the
prohibitions. In its decision on the issue, the court affirmed our
regulations, stating that they track the statutory language, while
noting that the Secretary had committed to further rulemaking on the
applicability of sections 522(e)(4) and (5) to underground mining. In
Re: Permanent (II), Mem. Op. at 70 (July 15, 1985).
In 1988, we issued a proposed rule to address the issue. See 53 FR
52374, Dec. 27, 1988. In 1989, we withdrew the proposed rule for
further study due to the comments we received and our analysis
indicating that this was fundamentally a legal issue. 54 FR 30557, July
21, 1989. We then decided to seek a formal opinion on this matter from
the Department of the Interior's Office of the Solicitor. The Solicitor
completed his review of this issue in July 1991, and concluded that the
best interpretation of SMCRA is that subsidence is not a surface coal
mining operation subject to the prohibitions of Sec. 522(e). Memorandum
Opinion of the Solicitor, Department of the Interior, M-36971,
Applicability of Section 522(e) of the Surface Mining Control and
Reclamation Act to Subsidence (100 I.D. 85 (1993)) [hereafter, the ``M-
Op',].
The M-Op is based on an extensive analysis of the statute, the
legislative history, relevant case authority and our regulatory actions
with respect to the applicability of section 522(e) to subsidence from
underground mining. The M-Op:
--Concluded that Congress did not intend for the prohibitions of
section 522(e) to apply to subsidence from underground mining and
--Noted that OSM may regulate subsidence solely under section 516 of
SMCRA and not under section 522(e).
The M-Op recognizes that regulation under section 516 may not have
the same effect as regulation under section 522(e). At the same time,
the analysis of the statute and legislative history supports the
conclusion that regulation under section 516 will achieve full
protection of the environmental values which Congress sought to protect
from subsidence under the Act while encouraging longwall mining.
On July 18, 1991, we published a Notice of Inquiry (NOI) which
stated that no further rulemaking action was necessary in regard to the
applicability of section 522(e) prohibitions to underground mining. The
NOI stated that we based this conclusion upon our review of the Act and
the legislative history, the comments received on the December 27,
1988, proposal, and the M-Op. We concluded that the regulations, at 30
CFR 761.11(d), (e), (f) and (g), adequately addressed underground
mining and appropriately applied the statutorily-established buffer
zones in a horizontal dimension only. 56 FR 33170.
On September 6, 1991, the National Wildlife Federation (NWF) filed
suit against the Secretary challenging the July 18 NOI and the July 10
M-Op, on the applicability of 522(e) of SMCRA to subsidence. National
Wildlife Fed'n (NWF) v. Babbitt, 835 F. Supp. 654 (D.D.C. September 21,
1993). The NWF contended that both the M-Op and the NOI violated the
requirements of the Administrative Procedure Act (APA), the National
Environmental Policy Act (NEPA), and SMCRA. NWF requested, among other
things, that the court order OSM to undertake rulemaking to determine
the applicability of section 522(e) to subsidence, and vacate the M-Op
and the NOI. In addition, the Interstate Mining Compact Commission
(IMCC) and a number of industry groups, including the National Coal
Association (NCA) and American Mining Congress (AMC), filed a motion to
intervene as defendants in this action. The court granted that motion .
The district court vacated the NOI on September 21, 1993, on
procedural grounds, and remanded the case to the Secretary for
rulemaking on the applicability of section 522(e) to subsidence, in
accordance with the notice and comment procedures of the APA, 5 U.S.C.
section 551 et seq. National Wildlife Fed'n (NWF) v. Babbitt, 835 F.
Supp. 654 (D.D.C. September 21, 1993).
B. What Process Did OSM Use To Develop the Final Rule?
This final rule is based upon a proposed rule published for public
review and comment on January 31, 1997 (62 FR 4864). We also posted the
proposed rule and associated documents on the OSM home page on the
Internet. In response to requests from the public, we held public
hearings on the proposed rule in Athens, Ohio; Billings, Montana;
Washington, Pennsylvania; and Whitesburg, Kentucky. The comment period
was originally scheduled to close June 2, 1997, but, in response to
several requests, we extended the deadline until August 1, 1997. 62 FR
29314, May 30, 1997.
In addition to the testimony offered at the four hearings, we
received approximately 491 written comments on the proposed rule (430
from private citizens, 40 from companies and associations affiliated
with the mining industry, 9 from environmental organizations, and 12
from Federal, State, and local governmental entities and associations).
We considered all comments and hearing transcripts in developing the
final rule. With the exception of comments that did not address the
substance or merits of the proposed rule, the preamble summarizes the
major types of comments received and their disposition.
In addition to the changes made in response to comments, we have
written this document in plain language, using better organization,
more concise sentences, and pronouns.
C. How Is This Rule Related to the Valid Existing Rights Rulemaking?
Under section 522(e), surface coal mining operations are prohibited
in specified areas unless a person can demonstrate a valid existing
right to mine the coal resources, or can meet one of the other
statutory exceptions to the prohibitions. SMCRA does not define the
term ``valid existing rights'' (VER) . In a separate rulemaking,
published in this issue of the Federal Register, we define valid
existing rights, establish standards for VER, tell how to submit a
[[Page 70840]]
VER claim, and explain how we will process claims.
That separate rulemaking establishes a ``good faith all permits''
primary standard for VER, which provides that a person has VER if,
before the land came under the protection of section 522(e), the person
had obtained, or made a good faith effort to obtain, all necessary
permits. In general, access to coal resources within western National
Forests, and within protected historic sites, road buffers, and
occupied dwellings buffers is largely gained by processes other than
VER (compatibility findings, waivers, and avoidance). In addition, even
though access to coal under churches, schools, public buildings, and
cemeteries is generally dependent upon establishing VER, these
protected areas are encountered at a frequency that generally allows
mining operations to readily avoid them.
The EIS accompanying this rulemaking concludes that, overall, the
areas most likely to be impacted through successful VER determinations
appear to be:
--Section 522(e)(1) lands;
--State and local parks; and
--Some areas contained in eastern National Forests.
The ``good faith all permits'' standard is likely to have the least
environmental impact and allow surface owners and resource management
agencies the greatest control to decide whether to authorize adverse
effects to protected areas. Under this standard, it appears that few,
if any, areas protected by section 522(e) would be mined under VER
determinations. See Final Environmental Impact Statement: Proposed
Revisions to the Permanent Program Regulations Implementing Section
522(e) of the Surface Mining Control and Reclamation Act of 1977 and
Proposed Rulemaking Clarifying the Applicability of Section 522(e) to
Subsidence from Underground Mining, OSM-EIS-29 (July, 1999).
[hereafter, ``Final EIS, 1999'']. We don't expect the ``good faith all
permits'' VER standard to significantly limit underground mining access
to coal in areas protected under section 522(e) This is in part
because, under this rulemaking, subsidence is not prohibited under
section 522(e).
We analyzed the relative impacts of the various combinations of
alternatives for the two rules in an Environmental Impact Statement
(EIS) and an Economic Analysis (EA) that addressed the two rulemakings.
The National Environmental Policy Act requires an EIS when a rulemaking
will have a significant effect on the quality of the human environment.
An EA is required when a rule is considered significant regulatory
action under the criteria of Executive Order 12866. In 1994, we
published a notice in the Federal Register (59 FR 21996) of our intent
to prepare an EIS and EA on these two issues. The scoping process for
the support documents identified several impact issues regarding the
proposed rulemakings.
Simultaneously with the two proposed rulemakings published in
January 1997, we published for review and comment a draft EIS (U.S.
Department of the Interior. Office of Surface Mining Reclamation and
Enforcement. Draft Environmental Impact Statement Valid Existing
Rights, Proposed Revisions to the Permanent Program Regulations
Implementing Section 522(e) of the Surface Mining Control and
Reclamation Act of 1977 and Proposed Rulemaking Clarifying the
Applicability of Section 522(e) to Subsidence from Underground Mining,
OSM-EIS-29, September 1995).
We also made available for review and comment a draft EA (U.S.
Department of the Interior. U.S. Geological Survey and Office of
Surface Mining Reclamation and Enforcement. Draft Economic Analysis
Valid Existing Rights, Proposed Revisions to the Permanent Program
Regulations Implementing Section 522(e) of the Surface Mining Control
and Reclamation Act of 1977 and Proposed Rulemaking Clarifying the
Applicability of Section 522(e) to Subsidence from Underground Mining,
March 1996).
The final EIS and EA provide detailed responses to comments on the
draft support documents. See, Final EIS, 1999; Final Economic Analysis,
Rulemaking Alternatives for a Standard for Valid Existing Rights and
for the Rulemaking Alternatives for Application of 522(e) Prohibitions
to Underground Mining, prepared by U.S. Geological Survey and U.S.
Office of Surface Mining, (July, 1999). (Hereafter ``Final EA ,
1999'').
D. What Statutory Language Is OSM Interpreting?
1. Prohibition on Surface Coal Mining Operations--Section 522(e)
SMCRA prohibits surface coal mining operations on all lands
designated in section 522(e), subject to valid existing rights and
except for those operations which existed on August 3, 1977. Congress
determined that the nature and purpose of section 522(e) areas and land
uses were incompatible with surface coal mining operations. See S. Rep.
No. 128, 95th Cong. 1st Sess. 55 (1977). Under section 522(e), if a
person who proposes to conduct a surface coal mining operation on
protected lands does not qualify for one of the statutory exceptions,
then the person cannot conduct the intended operation on such lands,
and the permit area cannot include those lands. See 30 CFR
Sec. 773.15(c)(3)(ii). Section 522(e), subject to specified exceptions,
states that no surface coal mining operations shall be permitted on
lands designated in subsections (e)(1) through (5). Section 522(e) does
not specifically mention subsidence.
Section 522(e) provides, in relevant part, as follows:
After the enactment of this Act and subject to valid existing
rights no surface coal mining operations except those which exist on
the date of enactment of the Act shall be permitted--
(1) On any lands within the boundaries of units of the National
Park System, the National Wildlife Refuge Systems, the National System
of Trails, the National Wilderness Preservation System, the Wild and
Scenic Rivers System, including study rivers designated under section
5(a) of the Wild and Scenic Rivers Act and National Recreation Areas
designated by Act of Congress;
(2) On any Federal lands within the boundaries of any national
forest: Provided, however, That surface coal mining operations may be
permitted on such lands if the Secretary finds that there are no
significant recreational, timber, economic, or other values which may
be incompatible with such surface mining operations and --
(A) Surface operations and impacts are incident to an underground
coal mine; or
(B) where the Secretary of Agriculture determines, with respect to
lands which do not have significant forest cover within those national
forests west of the 100th meridian, that surface mining is in
compliance with the Multiple-Use Sustained-Yield Act of 1960, the
Federal Coal Leasing Amendments Act of 1975, the National Forest
Management Act of 1976, and the provisions of this Act: And provided
further, That no surface coal mining operations may be permitted within
the boundaries of the Custer National Forest;
(3) Which will adversely affect any publicly owned park or places
included in the National Register of Historic Sites unless approved
jointly by the regulatory authority and the Federal, State, or local
agency with jurisdiction over the park or the historic site;
(4) Within one hundred feet of the outside right-of-way line of any
public road, except where mine access roads or
[[Page 70841]]
haulage roads join such right-of-way line and except that the
regulatory authority may permit such roads to be relocated or the area
affected to lie within one hundred feet of such road, if after public
notice and opportunity for public hearing in the locality a written
finding is made that the interests of the public and the landowners
affected thereby will be protected; or
(5) Within three hundred feet from any occupied dwelling, unless
waived by the owner thereof, nor within three hundred feet of any
public building, school, church, community, or institutional building,
public park, or within one hundred feet of a cemetery.
30 U.S.C. 1272(e) (emphasis added).
2. Definition of Surface Coal Mining Operations--Section 701(28)
The prohibitions of section 522(e) of SMCRA apply to ``surface coal
mining operations.'' Thus, determining the scope of the prohibitions
requires an understanding of the definition of the term ``surface coal
mining operations'' in section 701(28). As defined in section 701(28),
``surface coal mining operations'' specifically includes certain
aspects of underground coal mining. However, the definition does not
specifically mention subsidence.
Section 701(28) provides in full as follows: ``surface coal mining
operations'' means--
(A) Activities conducted on the surface of lands in connection with
a surface coal mine or subject to the requirements of section 1266 of
this title surface operations and surface impacts incident to an
underground coal mine, the products of which enter commerce or the
operations of which directly or indirectly affect interstate commerce.
Such activities include excavation for the purpose of obtaining coal
including such common methods as contour, strip, auger, mountaintop
removal, box cut, open pit, and area mining, the uses of explosives and
blasting, and in situ distillation or retorting, leaching or other
chemical or physical processing, and the cleaning, concentrating, or
other processing or preparation, loading of coal for interstate
commerce at or near the mine site: Provided, however, That such
activities do not include the extraction of coal incidental to the
extraction of other minerals where coal does not exceed 16 \2/3\ per
centum of the tonnage of minerals removed for purposes of commercial
use or sale or coal explorations subject to section 512 of this Act;
and
(B) The areas upon which such activities occur or where such
activities disturb the natural land surface. Such areas shall also
include any adjacent land the use of which is incidental to any such
activities, all lands affected by the construction of new roads or the
improvement or use of existing roads to gain access to the site of such
activities and for haulage, and excavations, workings, impoundments,
dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles,
overburden piles, spoil banks, culm banks, tailings, holes or
depressions, repair areas, storage areas, processing areas, shipping
areas and other areas upon which are sited structures, facilities, or
other property or materials on the surface, resulting from or incident
to such activities.
30 U.S.C. 1291(28).
E. What Other SMCRA Provisions Are Relevant?
1. Surface Effects of Underground Coal Mining Operations--Section 516
Section 516 establishes the regulatory requirements for the surface
effects of underground coal mining, including provisions for the
control of subsidence from underground coal mining. SMCRA section 516
provides in relevant part:
(a) The Secretary shall promulgate rules and regulations directed
toward the surface effects of underground coal mining operations,
embodying the following requirements and in accordance with the
procedures established under section 501 of this Act: Provided however,
That in adopting any rules and regulations the Secretary shall consider
the distinct difference between surface coal mining and underground
coal mining * * * .
* * * * *
(b) Each permit issued under any approved State or Federal program
pursuant to this Act and relating to underground coal mining shall
require the operator to--
(1) Adopt measures consistent with known technology in order to
prevent subsidence causing material damage to the extent
technologically and economically feasible, maximize mine stability, and
maintain the value and reasonably foreseeable use of such surface
lands, except in those instances where the mining technology used
requires planned subsidence in a predictable and controlled manner:
Provided, That nothing in this subsection shall be construed to
prohibit the standard method of room-and-pillar mining;
* * * * *
(8) Eliminate fire hazards and otherwise eliminate conditions which
constitute a hazard to health and safety of the public;
* * * * *
(11) To the extent possible using the best technology currently
available, minimize disturbances and adverse impacts of the operation
on fish, wildlife, and related environmental values, and achieve
enhancement of such resources where practicable * * *.
* * * * *
(c) In order to protect the stability of the land, the regulatory
authority shall suspend underground coal mining under urbanized areas,
cities, towns, and communities and adjacent to industrial or commercial
buildings, major impoundments, or permanent streams if he finds
imminent danger to inhabitants of the urbanized areas, cities, towns,
and communities.
(d) The provisions of this subchapter relating to State and Federal
programs, permits, bonds, inspections and enforcement, public review,
and administrative and judicial review shall be applicable to surface
operations and surface impacts incident to an underground coal mine
with such modifications to the permit application requirements, permit
approval or denial procedures, and bond requirements as are necessary
to accommodate the distinct difference between surface and underground
coal mining * * * .
30 U.S.C. 1266.
2. Subsidence--Section 720
Section 720 of SMCRA was added by the Energy Policy Act of 1992,
Pub. L. 102-486, 106 Stat. 2776 (1992). (Hereafter ``EPAct''). The
statute was enacted on October 24, 1992. Section 720 provides, in
relevant part:
(a) Underground coal mining operations conducted after Oct. 24,
1992 shall comply with each of the following requirements:
(1) Promptly repair, or compensate for, material damage resulting
from subsidence caused to any occupied residential dwelling and
structures related thereto, or non-commercial building due to
underground coal mining operations. Repair of damage shall include
rehabilitation, restoration, or replacement of the damaged occupied
residential dwelling and structures related thereto, or non-commercial
building. Compensation shall be provided to the owner of the damaged
occupied residential dwelling and structures related thereto or non-
commercial building and shall be in the full amount of the diminution
in value resulting from the subsidence* * *.
(2) Promptly replace any drinking, domestic, or residential water
supply from a well or spring in existence prior to the application for
a surface coal
[[Page 70842]]
mining and reclamation permit, which has been affected by
contamination, diminution, or interruption resulting from underground
coal mining operations.
Nothing in this section shall be construed to prohibit or interrupt
underground coal mining operations.
30 U.S.C. 1319a.
F. What Existing Regulations Are Relevant?
1. Provisions Implementing SMCRA Sections 522(e) and 701(28)
Section 522(e) is implemented in large part at 30 CFR Part 761,
which sets forth the procedures and standards to be followed in
determining whether a proposed surface coal mining and reclamation
operation is excepted from the prohibitions and limitations of section
522(e). Part 761 reiterates the areas on which section 522(e) prohibits
surface coal mining operations. Part 761 also reiterates the exceptions
to the statutory prohibitions, and the procedures to be followed in
determining whether an operation qualifies for an exception to the
prohibitions. Part 761 is the subject of the rulemaking which
accompanies this final rule in the Federal Register.
As noted previously, if a proposed operation includes Federal lands
within the boundaries of any areas specified under section 522(e)(1) or
(2), a determination of valid existing rights for surface coal mining
and reclamation operations must be made. Part 740 describes the
responsibilities of the Secretary, various Federal agencies and the
States for regulating surface coal mining and reclamation operations on
Federal lands under SMCRA, the Mineral leasing Act and other applicable
Federal laws, regulations and executive orders. Section 740.4(a)
provides that the Secretary is responsible for determining valid
existing rights for surface coal mining and reclamation operations on
Federal lands within 522(e)(1) or (2) areas. Valid existing rights
determinations on such areas are of such national importance that the
Secretary retains this responsibility to carry out the congressional
mandate to protect these areas and to ensure that there will be no
prohibited surface coal mining operations on Federal lands in national
parks and national forests. See 48 FR 6917, Feb. 16, 1983.
The regulatory definition of surface coal mining operations adopted
in the permanent program regulations tracks the statutory definition
very closely, except that the regulations specifically include
extraction of coal from coal refuse piles. See 44 FR 14914, Mar. 13,
1979. In keeping with SMCRA section 701(28)(A), the definition of
surface coal mining operations under section 700.5 provides:
(a) Activities conducted on the surface of lands in connection with
a surface coal mine or, subject to the requirements of section 516 of
the Act, surface operations and surface impacts incident to an
underground coal mine, the products of which enter commerce or the
operations of which directly or indirectly affect interstate commerce.
Such activities include excavation for the purpose of obtaining coals,
including such common methods as contour, strip, auger, mountaintop
removal, box cut, open pit, and area mining; the use of explosives and
blasting; and in situ distillation or retorting; leaching or other
chemical or physical processing; and the cleaning, concentrating, or
other processing or preparation of coal. Such activities also include
the loading of coal for interstate commerce at or near the mine site.
Provided, these activities do not include the extraction of coal
incidental to the extraction of other minerals, where coal does not
exceed 16\2/3\ percent of the tonnage of minerals removed for purposes
of commercial use or sale, or coal exploration subject to section 512
of the Act; and, Provided further, that excavation for the purpose of
obtaining coal includes extraction of coal from coal refuse piles; and
(b) The areas upon which the activities described in paragraph (a)
of this definition occur or where such activities disturb the natural
land surface. These areas shall also include any adjacent land the use
of which is incidental to any such activities, all lands affected by
the construction of new roads or the improvement or use of existing
roads to gain access to the site of those activities and for haulage
and excavation, workings, impoundments, dams, ventilation shafts,
entryways, refuse banks, dumps, stockpiles, overburden piles, spoil
banks, culm banks, tailings, holes or depressions, repair areas,
storage areas, processing areas, shipping areas and other areas upon
which are sited structures, facilities, or other property or material
on the surface, resulting from or incident to those activities.
2. Provisions Implementing SMCRA Sections 516 and 720
Sections 516 and 720 are implemented in large part at 30 CFR Parts
784 and 817, which set forth, respectively, permitting requirements and
performance standards for underground mining activities.
Part 784 includes Sec. 784.20, which sets out requirements for a
subsidence control plan, including a pre-subsidence survey. The pre-
subsidence survey must include a map that shows the type and location
within the proposed permit area or adjacent area, of structures and
renewable resource lands that subsidence may materially damage, or for
which the reasonably foreseeable use may diminished by subsidence. The
maps must also show the type and location within the proposed permit
area or adjacent area, of drinking, domestic, and residential water
supplies that could be contaminated, diminished, or interrupted by
subsidence. In addition, a narrative is required that must indicate
whether subsidence, if it occurred, could cause material damage to, or
diminish the value or reasonably foreseeable use of the structures and
renewable resource lands. The narrative is also required to indicate
whether subsidence, if it occurred, could contaminate, diminish, or
interrupt the drinking, domestic, or residential water supplies.
Section 784.20(a)(3) sets out requirements for a presubsidence
structural condition survey. On April 27, 1999, the U.S. Court of
Appeals for the District of Columbia vacated:
--Our rebuttable presumption that, when subsidence damage occurs within
the ``angle of draw'' damage was caused by the related underground mine
(30 CFR 817.121(c)(4)). National Mining Ass'n v. Babbitt, 172 F.3d 906
(D.C. Cir 1999) (hereafter, ``NMA'').
--Our regulation at Sec. 784.20(a)(3) requiring a pre-subsidence
structural condition survey, insofar as that regulation is
interconnected with the angle of draw regulation. (The court held that
we have the authority to require such a survey, but vacated the
regulation because it defines the area in which the survey is required
by reference to the angle of draw. Id.)
Under Sec. 784.20 the pre-subsidence survey must identify the
quantity and quality of all drinking, domestic, and residential water
supplies within the proposed permit area and adjacent area that could
be contaminated, diminished, or interrupted by subsidence. The
applicant must provide copies of the survey and any technical
assessments or engineering evaluations to the property owner and
regulatory authority.
Section 784.20(b) requires a subsidence control plan if the initial
survey, required under Sec. 784.20(a), shows that subsidence could
cause material damage to identified structures or renewable resource
lands. The
[[Page 70843]]
subsidence control plan must include a map and physical description of
the proposed underground operation and type of mining, a description of
the monitoring, and details of the subsidence control monitoring
measures. Longwall operations must either (1) describe the methods to
be used to minimize damage to structures identified in the Energy
Policy Act or (2) demonstrate that the costs of minimizing damage
exceed the anticipated costs of repair. In addition, the operator must
submit a description of the measures to replace adversely affected
protected water supplies or to mitigate subsidence-related material
damage to land and protected structures.
Other regulations in Part 784 ensure that each permit application
contains the information necessary to determine that the operation will
protect water supplies and reclaim the land after mining is completed.
For example, these regulations require the application to include
information on ground water and surface water quality and quantity
sufficient to demonstrate seasonal variation and water usage. In
addition, an analysis of both suspended and dissolved constituents
helps determine the presence of heavy metals in the water supply. In
particular, requirements ensure that, prior to mining, the permittee
demonstrate whether the proposed operation may result in contamination,
diminution, or interruption of a well or spring within a proposed
permit area or adjacent area which is used for domestic, drinking or
residential purposes. Moreover, throughout the application process, the
regulatory authority may require additional information necessary to
assure that the proposed operation will protect the hydrologic balance
and to understand the potential impacts of the operation.
The provisions concerning subsidence control in Part 817 include
performance standards which require the prevention of material damage
and maintaining the value and reasonably foreseeable use of surface
lands, or using mine technology for planned subsidence in a predictable
and controlled manner; compliance with the subsidence control plan;
repair of material damage; and a detailed plan of underground workings.
See 30 CFR 817.121.
Specifically, Sec. 817.121(a)(1) requires that the operator must
either adopt measures consistent with known technology which prevent
subsidence causing material damage to the extent technologically and
economically feasible, maximize mine stability, and maintain the value
and reasonably foreseeable use of surface lands; or adopt mining
technology which provides for planned subsidence in a predictable and
controlled manner.
Under Sec. 817.121(a)(2), the operator of a mine using a planned
subsidence technology must minimize damage to non-commercial buildings
and occupied residential dwellings and related structures. The operator
is obliged to take minimization measures that are technologically and
economically feasible.
Section 817.121(c)(1) requires repair of material damage from
subsidence to surface lands, to the extent technologically and
economically feasible. The operator must restore the land to a
condition capable of maintaining the value and reasonably foreseeable
uses that it was capable of supporting before subsidence. Section
817.121(c)(2) requires that an operator promptly repair or compensate
for material damage from subsidence to non-commercial buildings or
occupied residential dwellings or related structures. These
requirements apply to subsidence-related damage caused by underground
mining activities conducted after October 24, 1992.
As noted above, on April 27, 1999, the U.S. Court of Appeals for
the District of Columbia vacated the rebuttable presumption in
Sec. 817.121(c)(4). (NMA, supra.) That rule provided that if damage to
non-commercial buildings or occupied residential dwellings and related
structures occurs as a result of earth movement within the area
determined by projecting a specified angle of draw from underground
mine workings to the surface, a rebuttable presumption exists that an
operator caused the damage.
Additional regulations detailed in Part 817 ensure that underground
mining is conducted so as to protect the health and safety of the
public, minimize damage to the environment, and protect the rights of
landowners. These regulations require that all underground mining
activities are conducted in a manner which preserves and enhances
environmental and other values in accordance with SMCRA. Included are
additional protections from subsidence-related damage from underground
mining activities. For example, Sec. 817.41(j) requires the prompt
replacement of any drinking, domestic or residential water supply, in
existence before the date of the permit application, that is
contaminated, diminished or interrupted by underground mining
activities conducted after October 24, 1992.
II. Discussion of Final Rule
A. Do the Prohibitions of Section 522(e) Apply to Subsidence From
Underground Mining?
We interpret section 522(e) as not applying to subsidence from
underground mining activities, or to the underground activities that
may lead to subsidence.
B. What Is the Rationale for the Final Rule?
For the reasons set forth below, we interpret section 522(e) in
light of the statutory definition of ``surface coal mining operations''
in section 701(28), as not applying to subsidence from underground
mining. We've based the final rule on extensive analysis of the
statute, the legislative history, relevant case authority, our
regulatory actions with respect to the applicability of section 522(e)
to subsidence from underground mining, and consideration of all
relevant comments. We conclude that the best reading of section 701(28)
is that ``surface coal mining operations'' does not include subsidence,
and that therefore the prohibitions of section 522(e) do not apply to
subsidence from underground mining. We believe that this is consistent
with legislative intent, and that subsidence is properly regulated
under sections 516 and 720 and related regulatory provisions of SMCRA
and not under section 522(e). While we recognize that regulation under
sections 516 and 720 may not have precisely the same effect as
regulation under section 522(e), based on our analysis we conclude that
regulation under sections 516 and 720 will achieve full protection of
the environmental values which Congress sought to protect from
subsidence under the Act while encouraging longwall mining. We believe
that this interpretation will promote the general statutory scheme of
SMCRA and fully protect the environment and the public interest. We
also believe this interpretation best balances all relevant policy
considerations.
1. Statutory Language
Section 522(e) prohibits ``surface coal mining operations.''
However, the definition of ``surface coal mining operations'' in SMCRA
section 701(28) is not a model of clarity. We believe a careful reading
of the Act indicates Congress' intent that the SMCRA definition of
``surface coal mining operation'' does not include subsidence.
Therefore, we conclude that the best reading of the law is that section
522(e) does not apply to subsidence. We base this conclusion on:
[[Page 70844]]
(1) A rigorous reading of section 701(28);
(2) Analysis of the language of sections 516, 522(e) and 701(28) of
SMCRA; and
(3) A consideration of other relevant statutory provisions,
including the congressional findings and purposes in sections 101(b)
and 102(k).
We believe that paragraph (A) of section 701(28), and the analogous
provision in the existing rules at 30 CFR 700.5, apply to ``activities
conducted on the surface of lands.'' Thus, subsidence is not included
in paragraph (A) of the definition because it is not an activity
conducted on the surface of the land. This interpretation is consistent
with the fact that there is no mention in paragraph (A) of subsidence,
underground activities, or surface impacts of underground activities,
which might clearly establish that section 701(28) did include
subsidence. By contrast, paragraph (A) does specifically mention
numerous activities that occur on the surface of lands.
Therefore, we interpret the definition of ``surface coal mining
operations'' at SMCRA section 701(28)(A) and in the analogous portion
of the existing rules at 30 CFR 700.5, not to include subsidence, and
to include only:
(1) Activities on the surface of lands in connection with a surface
coal mine; and
(2) Activities subject to section 516, conducted on the surface of
lands in connection with surface operations and surface impacts
incident to an underground coal mine, the products of which enter
commerce or the operations of which directly or indirectly affect
interstate commerce.
The second part of this definition, at SMCRA section 701(28)(B),
supports our interpretation that paragraph (A) refers to ``activities
conducted on the surface of lands in connection with [1] a surface coal
mine or * * * [2] ``surface operations and surface impacts incident to
an underground coal mine.'' Paragraph (B) refers to ``the areas upon
which such activities occur or where such activities disturb the
natural land surface'' and to holes or depressions ``resulting from or
incident to such activities * * *'' (emphases added). The only
``activities'' to which paragraph (B) could refer are those described
in paragraph (A), namely those conducted on the surface of lands. Thus,
these surface activities define the applicability of paragraph (B) to
underground mining.
We construe SMCRA section 701(28)(B) (and the rules at 30 CFR
700.5) to include only:
(1) The areas upon which such surface activities occur;
(2) The areas where such surface activities disturb the natural
land surface; adjacent lands the use of which is incidental to such
surface activities;
(3) Lands affected by construction of new roads or improvement or
use of existing roads to gain access to the site of such surface
activities and for haulage; and
(4) Areas on which are sited structures, facilities, or other
property or materials on the surface resulting from or incident to such
surface activities.
Paragraph (B) includes a lengthy list of specific surface features
resulting from or incident to surface activities, which are included in
this last category. Those surface features include excavations,
workings, holes or depressions, repair areas, etc. All of these areas
and features included under paragraph B are referred to hereafter in
this preamble as ``surface features affected by'' surface activities.
Surface activities in connection with surface operations incident
to an underground coal mine, and surface activities in connection with
surface impacts incident to an underground coal mine are included in
the definition. Likewise, as provided in paragraph (B), surface
features affected by such surface activities are included.
However, subsidence is not included within the term ``surface coal
mining operations'' because it is not an activity conducted on the
surface of lands, and it is not a surface feature affected by surface
activities. In short, while subsidence is clearly a surface impact
incident to underground mining, it is not included in the SMCRA
definition of surface coal mining operations.
This reading of subsection 701(28) does not exempt subsidence from
regulation under the Act, since Congress specifically provided for
performance standards for subsidence under section 516, and
subsequently section 720, of SMCRA. Most risks related to material
damage caused by subsidence are addressed under the requirements of
sections 516 and 720, such as the requirements for adopting measures
consistent with known technology in order to prevent subsidence causing
material damage, to the extent technologically and economically
feasible, and maintaining the value and reasonably foreseeable use of
surface lands, except in those instances where the mining technology
used requires planned subsidence in a predictable and controlled
manner. However, if an unforeseen subsidence danger arises, section
516(c) contains procedures to prohibit underground operations as
necessary, providing a second level of protection for public health and
safety. For example, section 516 requires:
(1) Sealing of all shafts, entryways, and exploratory holes between
the surface and underground mine working when no longer needed;
(2) Elimination of fire hazards and any other conditions that
constitute a hazard to health and safety of the public; and
(3) Suspension of underground coal mining under urbanized areas,
cities, towns, and communities if mining poses an imminent danger.
Thus, we believe Congress addressed in section 516 those subsidence
control measures necessary to protect public health and safety and the
public interest in subsidence protection. Therefore, prohibition of
subsidence in all section 522(e) areas is unnecessary.
Our interpretation is consistent with SMCRA's explicit intent to
``encourage the full utilization of coal resources through the
development and application of underground extraction technologies,''
SMCRA section 102(k), 30 U.S.C. section 1202(k). Similarly, SMCRA
states that:
* * * the overwhelming percentage of the Nation's coal reserves can
only be extracted by underground mining methods, and it is,
therefore, essential to the national interest to insure the
existence of an expanding and economically healthy underground coal
mining industry.
SMCRA section 101(b), 30 U.S.C section 1201(b).
These passages make clear that Congress intended to encourage and
support an economically healthy and efficient underground coal mining
industry. We believe that our interpretation best assures that these
congressional intentions are met.
2. Legislative History
The legislative history on section 701(28) supports our
interpretation, set out above, that the definition of ``surface coal
mining operations'' includes only surface activities and, as set out in
section 701(28)(B), surface features affected by surface activities.
Our interpretation is consistent with the description of the effect of
section 701(28) in the Senate Report on the adopted version:
Surface [coal] mining operations'' * * * includes all areas upon
which occur surface mining activities and surface activities
incident to underground mining. It also includes all roads,
facilities, structures, property, and materials on the surface
resulting from or incident to such activities
S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphasis added).
[[Page 70845]]
The Senate Report on the 1977 Senate bill discusses the
significance of the definition in that Senate bill:
`Surface mining operations' is so defined to include not only
traditionally regarded coal surface mining activities but also
surface operations incident to coal underground mining, and
exploration activities. The effect of this definition is that coal
surface mining and surface impacts of underground coal mining are
subject to regulation under the Act. * * *
S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphases added).'
The references in the above paragraph to surface ``operations''
incident to underground mining and to surface ``impacts'' of
underground mining, and the assertions that exploration activities are
included in the definition (although coal exploration is specifically
excluded from the Act's definition) are inconsistent with the terms of
the statute. Therefore, we conclude that the language of this passage
is imprecise, and that it is not clear whether any weight should be
attached to this discussion of the Senate bill (as opposed to the later
Conference Committee Report's discussion of the Act).
Our interpretation that paragraph (A) of the definition of
``surface coal mining operations'' embodies only surface activities is
consistent with the legislative history of section 522(e). This
conclusion is supported by the discussion in the 1977 Senate report on
section 522(e) which notes that ``surface coal mining'' is prohibited
within the specified distances of public roads, occupied buildings, and
active underground mines, ``for reasons of public health and safety.''
S. Rep. No. 128 at 55. Thus, one of Congress' purposes in sections
522(e)(4)-(5) was to protect public health and safety. However,
prohibition of subsidence in section 522(e) areas would be unnecessary,
since an underground mine must meet the requirements of sections 516
(and subsequently 720), and those requirements should prevent almost
all risks to public health and safety. If an unforeseen subsidence
danger were to arise, section 516(c) sets forth procedures to prohibit
underground mining as Congress found necessary, providing a second
level of protection for public health and safety. Therefore, we believe
Congress sufficiently addressed in sections 516 (and 720) the measures
necessary to address public health and safety from subsidence.
Congressional discussion of the prohibitions on mining in section
522(e) is devoid of any mention of subsidence or underground activities
of coal mining. H. Rep. No. 218, 95th Cong. 1st Sess. 95 (1977); S.
Rep. No. 128, 95th Cong. 1st Sess. 55 (1977). Instead, the legislative
history of section 522(e) does mention terms that do not include any
aspects of subsidence or underground operations, such as:'strip
mines,'' ``surface coal mines,'' and ``surface coal mining.'' See
National Wildlife Fed'n v. Hodel, 839 F.2d 694 at 753-754 (D.C. Cir.
1988), interpreting ``surface coal mine'' and ``surface coal mine
operation'' as not including underground mines for purposes of SMCRA
section 717(b)).
The legislative history of SMCRA indicates that Congress was only
concerned with subsidence insofar as it causes environmental or safety
problems, disrupts land uses, or diminishes land values. Congress has
repeatedly recognized that there is little concern about subsidence
that causes no significant damage to a surface use or facility or
danger to human life or safety. See H.R. Rep. No. 218, 95th Cong., 1st
Sess. 126 (1977); H.R. Rep. No. 1445, 94th Cong., 2d Sess. 71-72
(1976); H.R. Rep. No. 896, 94th Cong., 2d Sess. 73-74 (1976); H.R. Rep.
No. 45, 94th Cong. 1st Sess. 115-116 (1975); H.R. Rep. No. 1072, 93d
Cong., 2d Sess. 108-109 (1974); H.R. Rep. No. 776, 102d Cong., 2d Sess.
102-474 (1992).
Analysis of the structure of Title V and the Act as a whole
confirms that Congress set out related but separate regulatory schemes
for surface and underground mining. Congress received ample testimony
prior to the passage of the Act regarding the differences in both the
nature and consequences of the two types of coal mining. The
legislative history emphasizes that the differences in the nature and
consequences of the two types of mining require significant differences
in regulatory approach. For example, SMCRA section 516(a) requires
that:
The Secretary shall promulgate rules and regulations directed
toward the surface effects of underground coal mining operations * *
*: Provided, however, That in adopting any rules and regulations the
Secretary shall consider the distinct difference between surface
coal mining and underground mining.
30 U.S.C. section 1266(a); See also SMCRA sections 516(b)(10) and (d),
30 U.S.C. Secs. 1266(b)(10) and (d). See, e.g., H.R. Rep. No. 218, 95th
Cong., 1st Sess. 59 (1977); S. Rep. No. 128, 95th Cong., 2d Sess. 50
(1977); H.R. Rep. No. 1445, 94th Cong., 2d Sess. 19 (1976); S. Rep. No.
402, 93d Cong., 2d Sess. 83 (1973); H.R. Rep. No. 1072, 93d Cong., 2d
Sess. 57, 108 (1974); H.R. Rep. No. 1462, 92d Cong., 2d Sess. 32
(1972); 123 Cong. Rec. 8083, 8154 (1977); 123 Cong. Rec. 7996 (1977);
123 Cong. Rec. 3726 (1977).
For instance, Congress was aware that environmental risks
associated with underground mining are, for the most part,
significantly different from those associated with surface mining.
Environmental impacts associated with (pre-SMCRA) unregulated or
unreclaimed underground mines include subsidence and hydrological
problems that are hidden deep underground and not observable at the
surface for an unpredictably long time. Such surface consequences could
be severe and long-lasting. The problems in some cases remain
fundamentally inaccessible or unchangeable because of adverse
technological, geological, and hydrological conditions. By contrast,
most of the impacts of unregulated pre-SMCRA surface mining result from
surface activities that are more immediate and more readily observable,
and the resulting conditions are relatively accessible for reclamation.
See H.R. Rep. No. 1445, 94th Cong., 2d Sess. 20-22 (1976).
It is reasonable to conclude that Congress addressed specifically,
in section 516(c), the limited types of surface features that might be
so significantly affected by subsidence from underground mining that
subsidence should be precluded where appropriate. This interpretation
that preclusion of subsidence is provided for solely under 516(c) is
buttressed by the discussion in the 1977 House report that subsidence
has no appreciable impact on agricultural land and similar types of
land. H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977). We believe
Congress did not intend to impose the prohibitions of section 522(e) on
subsidence, because those prohibitions would be unnecessary, since
Congress had insured that the surface features that might need such
protection are covered by section 516(c).
Further, the legislative history of SMCRA suggests that Congress
may have wished to encourage longwall mining in particular:
Underground mining is to be conducted in such a way as to assure
appropriate permanent support to prevent surface subsidence of land
and the value and use of surface lands, except in those instances
where the mining technology approved by the regulatory authority at
the outset results in planned subsidence. Thus, operators may use
underground mining techniques, such as long-wall mining, which
completely extract the coal and which result in predictable and
controllable subsidence.
S. Rep. No. 128, 95th Cong., 1st Sess. 84 (1977). See also S. Rep. No.
28, 94th Cong., 1st Sess. 215 (1975).
[[Page 70846]]
Congressman Udall, the bill's principal sponsor, also commented on
this issue:
The House Bill contemplates rules to ``prevent subsidence to the
extent technologically and economically feasible.'' The word
``prevent'' led to fears expressed by Secretary of the Interior
Morton, that the effect would be to outlaw longwall mining, with its
obvious subsidence * * *. In fact, the bill's sponsors consider
longwall mining ecologically preferable and it and other methods of
controlled subsidence are explicitly endorsed.
120 Cong. Rec. 22731 (1974).
Thus, our interpretation is consistent with Congress' intent to
encourage planned, predictable, and controlled underground mining and
full coal resource recovery. Because subsidence is likely from room-
and-pillar mining and is virtually inevitable with longwall mining,
prohibiting subsidence below homes, roads, and other features specified
in section 522(e) could make it substantially less feasible to mine.
This would frustrate Congressional intent to encourage longwall mining,
which provides planned, predictable, and controlled subsidence.
Prohibiting subsidence would also substantially reduce the level of
coal recovery in areas where the features specified in section 522(e)
are common on the surface.
After examining the SMCRA legislative history, we believe that
including subsidence in the definition of ``surface coal mining
operations'' at section 701(28), and applying the section 522(e)
prohibitions to subsidence would not accommodate Congress' intent to
encourage underground mining and longwall mining in particular.
Applying the prohibitions in section 522(e) to subsidence could
substantially impede longwall and other full-extraction mining methods.
As discussed above, SMCRA demonstrates that Congress intended to
encourage underground mining and especially full-extraction methods
such as longwall mining. Congress intended that longwall and other
mining techniques that completely remove the coal be used as subsidence
control measures. See H.R. Rep. No. 218, supra. These techniques
involve planned subsidence.
The legislative history of section 516 contains ample references to
Congress' focus on controlling rather than prohibiting subsidence. The
following is pertinent House report language:
Surface subsidence has a different effect on different land
uses. Generally, no appreciable impact is realized on agricultural
land and similar types of land and productivity is not affected. On
the other hand when subsidence occurs under developed land such as
that in an urbanized area, substantial damage results to surface
improvements be they private homes, commercial buildings or public
roads and schools. One characteristic of subsidence which disrupts
surface land uses is its unpredictable occurrence in terms of both
time and location. Subsidence occurs, seemingly on a random basis,
at least up to 60 years after mining and even in those areas it is
still occurring. It is the intent of this section to provide the
Secretary with the authority to require the design and conduct of
underground mining methods to control subsidence to the extent
technologically and economically feasible in order to protect the
value and use of surface lands.
H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977) (emphasis added).
See also H.R. Rep. No. 1445, 94th Cong., 2d Sess. 71-72 (1976); H.R.
Rep. No. 896, 94th Cong., 2d Sess. 73-74 (1976); H.R. Rep. No. 45, 94th
Cong. 1st Sess. 115-116 (1975); H.R. Rep. No. 1072, 93d Cong., 2d Sess.
108-109 (1974).
In those extreme cases in which Congress felt that precluding
subsidence could be necessary, it provided broad authority under
section 516(c):
In order to prevent the creation of additional subsidence
hazards from underground mining in developing areas, subsection (c)
provides permissive authority to the regulatory agency to prohibit
underground coal mining in urbanized areas, cities, towns and
communities, and under or adjacent to industrial buildings, major
impoundments or permanent streams.
S. Rep. No. 128 at 84-85.
In 1992, Congress enacted EPAct which amended SMCRA and added
additional subsidence protection in a new SMCRA section 720, described
above. 30 U.S.C. 1309(a), Energy Policy Act of 1992, section 2504, Pub.
L. No. 102-486, 106 Stat. 3104. Although it is not germane to Congress'
intent in enacting SMCRA, because it does postdate SMCRA's enactment,
the EPAct provides evidence of continuing congressional support for
recovering coal resources through underground mining techniques.
Congress notes specifically that, ``Nothing in this section shall be
construed to prohibit or interrupt underground coal mining
operations.'' SMCRA section 720, 30 U.S.C. section 1309a.
We believe, based on its interpretation of the language of section
516 and of the legislative history, that Congress intended section
516(c), in combination with other provisions of SMCRA, to offer
sufficient prevention and mitigation of damage to features vulnerable
to significant impairment from subsidence. The existence of such a
comprehensive subsidence regulatory scheme addressing subsidence makes
it unlikely that Congress also intended to prohibit subsidence under
section 522(e).
3. Policy Considerations
a. This Rule Resolves Questions About Our Interpretation of Statutory
Provisions
This rulemaking establishes that subsidence is not a surface coal
mining operation under SMCRA section 701(28), and therefore is not
prohibited under SMCRA section 522(e). In the past, we have taken
varying positions on section 522(e)'s applicability to subsidence. In
some instances, our position could be interpreted to mean section
522(e) does apply to subsidence from underground mining. However, we
believe that in the majority of cases, we have interpreted section
522(e) as not applying to subsidence.
In the 1979 rulemaking which first established permanent program
rules under SMCRA, we addressed this issue in two provisions. We
rejected a commenter's suggestion that the definition at 30 CFR 761.5
of ``surface operations and impacts incident to an underground coal
mine'' should be limited to subsidence. We stated that the definition
was intended to provide comprehensive language that related to the
definition of surface coal mining operations in section 701(28). We
then went on to say that because the definition in section 701(28) (B)
relates to disturbances of the natural land surface, and because SMCRA
sections 516(b)(9) and (11) also relate to surface disturbances other
than subsidence, the final definition should cover all surface
disturbances. 44 FR 14990, Mar. 13, 1979. It appears that we were
indicating that all surface disturbances, including subsidence, are
covered under the definition in section 701(28) of ``surface coal
mining operations'' and consequently are prohibited by section 522(e).
The preamble to the 1979 permanent program regulations also
includes a discussion of 30 CFR 761.11(d), which concerns the SMCRA
section 522(e)(4) prohibition on mining within 100 feet of the outside
right-of-way of a public road. We accepted a comment that the 100 feet
should be measured horizontally ``so that underground mining below a
public road is not prohibited''. We stated that mining under a road
should not be prohibited ``where it would be safe to do so''. 44 FR
14994, Mar. 13, 1979. One interpretation of this statement is that
mining under a public road should be prohibited where it would be
unsafe to do so. However, the preamble does not discuss whether the
statutory authority
[[Page 70847]]
for this prohibition would come from section 516 or from section
522(e).
Similarly, in a 1981 letter to the U.S. Forest Service concerning
Otter Creek Coal Company v. United States, we stated that ``subsidence
from mining activities under wilderness areas is acceptable as long as
it does not significantly affect surface features. These effects can be
predicted and mitigated if necessary''. Letter of Patrick Boggs, Office
of Surface Mining, to Ralph Albright, Jr., regarding Otter Creek Coal
Company v. United States, at 2 (January 19, 1981). This document
appears to conclude that only subsidence causing material damage is
prohibited under section 522(e). However, in our later decision on the
valid existing rights request of the Otter Creek Coal Company, we
concluded that all subsidence from underground mining is a prohibited
surface impact under section 522(e). 49 FR 31233, Aug. 3, 1984.
The Secretary took a different position in the supplemental M-Op
filed with the District Court for the District of Columbia in 1985, in
litigation challenging the validity of the 1983 rulemaking on VER.
Federal Defendant's Supplemental Memorandum on the Relationship Between
Section 522(e) and the Surface Impacts of Underground Coal Mining at 8,
In re Permanent Surface Mining Regulation Litigation II, No. 79-1144
(D.D.C. 1985). In that case, the National Wildlife Federation (NWF), in
its reply brief, raised for the first time the question of whether, in
areas protected under sections 522(e)(4) and (5), all subsidence is
prohibited. The supplemental memorandum stated that the Secretary had
previously interpreted section 522(e)(5) as prohibiting subsidence
causing material damage to protected features, and that 30 CFR 761.11
requires operators to prevent subsidence causing material damage within
the areas protected under 522(e).
On several other matters, our actions are consistent with the
position that subsidence is not a surface coal mining operation. In our
most recent rulemaking defining ``permit area,'' we indicated that we
do not consider subsidence to be a ``surface coal mining and
reclamation operation''. Our rules do not require including the ``area
overlying underground workings'' (where subsidence may occur) within
the definition of ``permit area.'' In the preamble, we explained that
the permit area should only include the ``areas upon which surface coal
mining and reclamation operations'' are conducted, not areas where
potential subsidence may occur. 48 FR 14820 (Apr. 5, 1983). Thus, no
permit is required for these areas where there are no surface
activities.
In the absence of a Federal regulation specifically addressing this
issue, we have accepted the policy of the majority of States with
active underground coal mining operations, which do not currently apply
the prohibitions of section 522(e) to subsidence impacts of underground
coal mining. Rather, the States apply existing subsidence control
requirements, which require the operator to identify and mitigate
potential subsidence damage to structures and renewable resource lands.
The States regulate subsidence effects on surface features in State
counterparts to the Federal regulations implementing sections 516 and
720 of SMCRA.
We have also accepted the policy of other States to apply the
prohibitions only to subsidence causing material damage. Only four
States with underground coal reserves, Colorado, Illinois, Indiana, and
Montana, arguably prohibit (or may prohibit) subsidence in 522(e)
areas, in some way. See Final EIS, 1999, Table II-1 at pages II-2-3.
Montana has no defined policy regarding the regulation of subsidence,
due in part to the fact that the State has no active underground mine.
Colorado prohibits material damage to any structures through State
regulations under, in part, section 516 of SMCRA. In Illinois, under
state property law, the mineral owner must possess the right to subside
through applicable waiver or VER. Indiana prohibits material damage
from subsidence to certain structures and lands, but has not developed
specific policies related to the approval of planned subsidence. Our
interpretation that section 522(e) prohibitions do not apply to
subsidence is consistent with what most states are currently doing.
b. This Rule Balances Economic and Environmental Considerations
We believe this final rule best balances the competing
environmental and economic considerations involved in this rulemaking.
The language of SMCRA demonstrates that Congress intended to encourage
underground mining, especially full-extraction methods such as longwall
mining. The statute and legislative history express Congress' intent to
``encourage the full utilization of coal resources through the
development and application of underground extraction technologies,''
SMCRA section 102(k), 30 U.S.C. 1202(k). Similarly, SMCRA states that,
``* * * the overwhelming percentage of the Nation's coal reserves can
only be extracted by underground mining methods, and it is, therefore,
essential to the national interest to insure the existence of an
expanding and economically healthy underground coal mining industry.''
SMCRA section 101(b), 30 U.S.C section 1201(b). Congress intended that
longwall and other mining techniques that completely remove the coal be
used as subsidence control measures. See H.R. Rep. No 218, 95th Cong.,
1st Sess. 126 (1977). However, applying the prohibitions of section
522(e) to subsidence could substantially impede longwall and other
full-extraction mining methods. Clearly, if subsidence is likely to
occur from room-and-pillar underground mining and is a virtually
inevitable consequence of longwall mining, then prohibiting all
subsidence below homes, roads, and other features specified in section
522(e) could make it substantially less feasible to mine and could
substantially reduce coal recovery in areas where these features are
common. We therefore believe that including subsidence in the
definition of ``surface coal mining operations'' at section 701(28),
and applying the section 522(e) prohibitions to subsidence, would fail
to accommodate congressional recognition of the importance of
underground mining and longwall mining in particular.
The viability of underground coal mining continues to be important
to the nation's economy. The Nation's Demonstrated Reserve Base for
underground mining (32.9 billion tons) is almost twice that for surface
mineable reserves 16.7 billion tons. In almost one third of the coal
producing states, underground reserves are 4 to 5 times greater than
surface mineable reserves. See Department of Energy, Energy Information
Administration (DOE/EIA), ``U.S. Coal Reserves: A Review and Update'',
pp. 10-12, (Aug. 1996).
Overall, coal continues to be the principal energy source for
electric power generation in the United States. The electric power
industry is the dominant coal consumer with about 90 percent of U.S.
coal consumption issued for electricity generation. (DOE/EIA, Annual
Energy Outlook, pp. 3-5, 1998). Total U.S. energy consumption is
projected to continue growing between 1996 and 2020, and electricity
consumption is expected to parallel that growth by 1.4 percent per year
through 2020. Forecasts predict both increased demand for electricity
and decline in nuclear power. With lower coal prices, lower capital
costs for coal-fired generating technologies, and higher electricity
demand, coal-fired generation is projected to increase. However, the
share of coal generation is expected to
[[Page 70848]]
decline by 2020, because of anticipated restructuring of the
electricity industry favoring less capital-intensive gas technologies
for new capacity additions. Although coal-fired generation is
anticipated to lose market share by 2020, it continues to account for
more than one-half of electricity generation.
The continued rise in coal power generation accounts for the record
high coal production in 1997. The electric power industry, the dominant
coal consumer, used a record 922 million short tons in 1997, an
estimated 2.8 percent increase over 1996, and record high production.
The productivity gains that occurred in both underground and surface
mines during the 1980's continued into the 1990's.
The three main underground mining methods used to extract coal are
room-and-pillar, room-and-pillar with secondary mining, and longwall
mining. Room-and-pillar is the predominant underground mining method in
the United States, although longwall mining has increased in use since
1960. And longwall mining continues to gain wide acceptance in the U.S.
mining industry, having nearly doubled its share of total coal
production since 1980.
Room and Pillar Mining Method
The room and pillar method consists of driving entries, rooms, and
cross-cuts into the coal seam to extract coal. Pillars of coal are left
to support the mine roof, or for haulage and ventilation. This is
called ``development'' mining. Movements of the ground surface during
development mining are nearly always imperceptible. During the
development mining phase, 30 to 50 percent of the coal may be extracted
from the panel. To prevent subsidence, the remainder of the coal may be
left in a mine panel, to permanently support the overburden.
To increase coal extraction where conditions allow, development
mining is followed by ``pillar recovery,'' which is called secondary or
retreat mining. During secondary mining, some or all of the coal
pillars left to support the mine roof are extracted to obtain maximum
recovery of the coal. As the pillars are extracted, controlled
subsidence occurs, because the overburden sags into the mined-out area.
Secondary mining can increase coal recovery to 85 percent.
Longwall Mining Method
Longwall mining is a high-extraction mining method that maximizes
coal recovery. Developing longwall mine main airways and sub-mains
(underground ventilation channels needed for access and ventilation of
the longwall panels) is essentially identical to developing room and
pillar mining. However, longwall mining differs from room-and-pillar
mining in that the panel is fully extracted by an automated shearer or
plow. A longwall mining operation can extract as much as 90 percent of
the coal in each panel. Retreat mining of a longwall panel can extract
100 percent of the coal.
The longwall mining method works as follows:
1. Groups of three or four parallel entries are driven
perpendicular to the main entry on either side of the proposed panel.
The width of the panel varies from 500 to 1,200 feet, and the length of
a panel varies from 4,000 to 15,000 feet.
2. Longwall mining removes the coal in one operation from a long
working face or wall that advances, or retreats, in a continuous line.
The coal is cut by a shearer or coal plough which travels up and down
along the face and makes cuts from 27 to 39 inches deep. The broken
coal falls on to an armored flexible conveyor (AFC) which transfers the
coal to the stage loader.
3. The coal is then conveyed to the surface through several belt
conveyors. Mechanical steel supports known as shields or chocks are
used to support the mine roof along the entire longwall face.
4. After each cutting cycle of the shearer/plough, the steel
supports and AFC are hydraulically advanced. The mine roof immediately
behind the AFC is allowed to cave. The space from which the coal has
been removed is either allowed to collapse or is completely or
partially filled with stone and debris. The roof rock that falls into
the mined out area is referred to as the ``gob.''
5. As the overburden continues to collapse, effects of subsidence
progress upwards toward the surface. However, some solid coal barriers
and pillars are left in the mine for haulage, ventilation, and other
purposes. Ninety percent of the surface subsidence caused by longwall
mining occurs within 4 to 6 weeks of mining.
In the past two decades, the longwall mining method has become the
safest, most productive and most economic underground mining method. We
expect longwall mining to continue to be an important and expanding
type of mining. In 1993, longwall mining accounted for 38 percent of
the coal extracted by underground mining methods. The Economic Analysis
estimates that longwall mining will account for 48 percent of
production by 2015. Final EA, 1999.
Longwall mining requires only approximately one-third of the
personnel required by room-and-pillar mining at the face. The high
capital costs of longwall mining are generally offset by lower
operating costs due primarily to higher productivity. The average
operating costs for a coal mine operation include the operating cost
per ton and the return on the capital cost allocated per ton. The
operating costs for longwall mining range from $0.50 to $2.00 per ton,
while operating costs for room-and-pillar range from $2.00 to $7.00 per
ton. Room-and-pillar mining operating costs average $3.25 per ton more
than longwall mining. The difference in costs is attributable to higher
labor and material costs for room-and-pillar mining, and to economies
of scale for longwall mining.
Effects on the Coal Mining Industry and on the Economy if 522(e)
Prohibitions Were Applied to Subsidence
Under SMCRA, when coal is mined, the mine operator must meet all
existing subsidence control requirements, as outlined above. If section
522(e) were deemed to apply to subsidence from underground mining, the
operator could not mine in any part of the underground workings where
mining would cause subsidence affecting a protected surface feature.
The surface area affected by subsidence is usually considerably larger
than the area actually mined underground. Because subsidence typically
occurs in a funnel shape radiating upward and outward from the
underground mine cave-in, any surface impacts may extend well beyond
the area directly above the mine. Thus, to ensure that subsidence would
not take place within a surface area specified in section 522(e),
underground mine operations would be required to leave coal in place
around each protected feature for a horizontal distance much larger
than the protected area. In many cases, the amount of coal left in
place to support dwellings would result in a pattern of irregular mined
areas that would eliminate the contiguous coal reserves needed to make
longwall operations economical. Consequently, few new longwall mines
would be opened. In the Economic Analysis, we estimate that blocking
longwall production would increase coal-mining and coal-delivery costs
and would shift production patterns. The additional coal-mining and
coal-delivery costs to the economy would be approximately $2.65 billion
(discounted) over a 20-year period. Final EA, 1999.
However, if the section 522(e) prohibitions were applied to
subsidence, subsidence could be allowed nonetheless on some lands
protected by 522(e)(2), (3), and (4), and some (e)(5) areas. Before
this could
[[Page 70849]]
happen, an operator would have to get a waiver or approval for
subsidence on the protected lands. The area for which an operator would
have to obtain a waiver would include the area directly under the
protected feature, and the area within any specified buffer zone around
the protected feature (either 300 feet or 100 feet). In the absence of
that waiver, the operator would have to leave the coal in those areas,
and in an additional buffer area based on the predicted angle of draw
and the depth of the coal seam. Because of the potentially large amount
of coal that would have to be left in the ground in the absence of a
waiver, we estimated that if 10 percent or more of homeowners withheld
waivers, a longwall mining operation would not be economically viable.
See Final EIS, 1999; Final EA, 1999.
In Summary:
1. Longwall mining is an important and expanding type of mining. It
accounted for 38 percent of the underground mining in 1993, and is
forecast to increase its share to 48 percent by 2015.
2. Longwall mining is a low-cost underground mining method, and in
some instances, may be the only economically feasible underground
mining method when the coal seam is deep or the roof is extremely
fragile.
3. The key to the competitive advantage of longwall mining is
access to large blocks of uninterrupted coal.
4. If the prohibitions of 522(e) were to apply to subsidence,
longwall mining would no longer be economically feasible if as few as
10 percent of the owners of occupied dwellings denied waivers for
mining.
A more detailed discussion of the impacts is provided in the Final
EA, 1999.
Alternatives Considered
We also evaluated potential environmental impacts of identified
rulemaking alternatives concerning the applicability of section 522(e)
prohibitions to subsidence. In the EIS prepared for the rulemaking, we
concluded that subsidence-related impacts to section 522(e) lands have
occurred in the past and are likely to continue to occur irrespective
of whether or not the prohibitions apply. This conclusion was based on
information showing that subsidence on National Forest lands, historic
sites listed on the National Register of Historic Places, and roads is
typically allowed through either compatibility findings or waivers
granted by surface owners and land managers.
The EIS concludes that the interpretation in the final rulemaking
would have the greatest level of environmental impact and afford the
lowest level of protection to the areas listed in section 522(e)(1).
However, for the reasons stated in the EIS, we predict relatively
limited potential impacts over a 20-year period from the final
rulemaking. On lands protected by section 522(e)(1), totaling nearly
200 million acres, approximately 5.2 million acres are underlain by
coal, but only about 175,000 acres are underground mineable. Under the
final rule, less than 2 percent (approximately 3,500 acres) of section
522(e)(1) lands is predicted to be underground mined over the next 20
years. Those areas most likely to be impacted are lands within the
National Parks System and National Recreation Areas.
The EIS identified approximately 12,600 acres of State park lands
that could be affected by subsidence-related impacts over the next 20
years if the prohibitions of section 522(e) do not apply to subsidence.
However, the EIS predicted that impacts to State and local parks could
be reduced by as much as 45 percent under the ``good faith all
permits'' VER definition. This reduction could be caused if mineral
owners are unable to demonstrate VER needed for surface support
facilities such as roads, ventilation, and face-up areas for access to
underground coal within the protected area.
The greatest level of impact is predicted for occupied dwellings in
section 522(e)(5) areas. The EIS estimated that approximately 29,600
would be affected over a 20-year period under the interpretation that
section 522(e) prohibitions do not apply to subsidence. These impacts
generally would span an extended period of time, and could result in
reduced property value, loss of income, and disruption to many aspects
of daily life. Homeowners could suffer financial burdens from the
repair of damaged land and structures. And while these impacts
represent a significant amount of disruption to the dwelling owners,
they are mitigated through the performance standards for underground
coal mining. Those standards require that underground mining operations
repair adversely affected dwellings, or compensate for diminution in
value.
However, in evaluating these predicted environmental impacts, we
noted that they are virtually identical to the impacts of taking no
final rulemaking action, because the final rule is virtually the same
as maintaining the status quo--the No Action Alternative. Final EIS,
1999.
c. This Rule Avoids a Regulatory Gap
As noted above, we have concluded that no regulatory gap occurs as
a result of section 522(e) not applying to subsidence. This is so
because sections 516 and 720 and related SMCRA provisions provide ample
authority to regulate surface effects of underground mining under
existing regulations. The detailed description of the existing relevant
regulations in part I demonstrates that our regulations implementing
sections 516 and 720 provide broad subsidence protection, and that a
prohibition of subsidence within the buffer zones around dwellings,
roads, and other surface features listed in section 522(e) would be
superfluous, and that no regulatory gap results from our
interpretation. And, if there are any environmental values or public
interests that warrant additional protection beyond what is currently
provided, we have full authority under sections 516 and 720 and other
SMCRA provisions, to develop additional regulations to protect such
values or interests, without the disruption in the longwall mining
industry that would result from applying section 522(e) prohibitions to
subsidence.
d. This Rule Balances the Interests of Surface Owners and Industry
Our interpretation recognizes that in most cases, the mineral owner
purchased the property right to undermine and probably to subside, upon
acquiring the mineral rights. This property right has already been made
subject to regulatory requirements under SMCRA that protect the surface
owner's interests to the extent Congress has established specific
requirements. Thus, our interpretation best balances both the surface
and owner's interests, because it ensures that the surface owner's
property rights are protected, and allows the mineral owner to use its
mineral rights consistent with existing SMCRA subsidence control
requirements. And most importantly, we believe that the public interest
in protecting 522(e) surface features from subsidence damage will be
fully protected by SMCRA's subsidence control requirements.
e. This Rule Maintains Stability in SMCRA Implementation
We believe that the final rule will cause minimal disruption to
existing State regulatory programs and expectations associated with
them. Those programs reflect existing SMCRA regulatory provisions. We
believe the existing provisions adequately protect 522(e) features and
therefore do not
[[Page 70850]]
require change. Because this rule reflects current and longstanding
practice and policy in state administration of regulatory programs, it
avoids unnecessary change in state administration of regulatory
programs.
Equally as important, the final rule enables the states to retain
flexibility in regulating coal mining operations and protecting the
environment. A goal of the SMCRA regulatory system is to create and
maintain an effective balance between state and federal government.
SMCRA sections 101(e), (g), and (k). To achieve this balance, Congress
established state primacy under SMCRA. See SMCRA sections 101(f),
102(g). State primacy allows States to develop and implement regulatory
programs that meet SMCRA requirements and also address the specific
conditions and concerns of individual states. This allows states to
address differences in terrain, geology, and other conditions when
regulating subsidence.
Applying the section 522(e) prohibition to subsidence could require
a major overhaul of State regulatory programs without a commensurate
benefit to the citizens, the environment, the economy, or the State. We
believe that existing subsidence controls under State and Federal
programs properly implement SMCRA. Without a clearly demonstrated need,
a requirement to impose new administrative burdens and costs would
waste State and Federal resources.
f. This Rule Promotes Safety
Although capital-intensive, longwall mining has become the safest
and most productive and economic underground mining method. The result
of this mining technique is almost immediate subsidence that is highly
predictable as to how much surface lands will subside. Hydraulic
shields provide for temporary support for the miners and equipment at
the longwall face, and as the mining progresses along the longwall
face, the roof in the mined-out section collapses. The roof collapse
progresses to the surface via fracturing and/or the flexing of strata,
and manifests itself as surface subsidence.
Almost all surface displacement occurs within days of the
underlying roof failure. The amount of surface displacement is fairly
predictable and depends upon the thickness of the coal seam and the
makeup and arrangement of the overlying strata. Since the amount and
timing of the subsidence is both highly predictable and controlled it
is referred to as ``planned subsidence.'' However, this planned
subsidence can cause damage to surface structures, since no supporting
coal pillars are left within the mine to support the surface. And,
while the probability of subsidence from longwall mining is relatively
predictable, the nature and extent of subsidence damage to surface
features and water resources is less predictable. However, because the
subsidence occurs within a relatively short period, usually during the
permit period, it is usually easier to verify the cause and to ensure
mitigation or compensation for any structural damage and replacement of
water supply.
In terms of worker safety, the longwall system also offers a number
of advantages over room-and-pillar mining:
1. It concentrates miners and equipment in fewer working sections,
making the mine easier to manage;
2. It improves safety through better roof control and reduction in
the use of moving equipment;
3. It eliminates roof bolting at the working face to support the
mine roof, and it minimizes the need for dusting mine passages with
inert material to prevent coal dust explosions;
4. It involves no blasting and attendant dangers;
5. It also recovers more coal from deeper coalbeds than does room-
and-pillar mining;
6. The coal haulage system is simpler, ventilation is better
controlled, and subsidence of the surface is more predictable; and
7. It offers the best opportunity for automation.
Thus, if longwall mining is not precluded, it will continue to
provide greater safety and faster, more controlled, and more quickly
mitigated subsidence damage. As discussed above and in the EIS and EA,
prohibiting subsidence in 522(e) areas could make longwall mining
infeasible in substantial parts of the coal fields, and thus could
preclude the safest, most economical and productive and most readily
mitigated method of underground mining. See Final EIS, 1999; Final EA,
1999.
g. This Rule Acknowledges Existing Property Rights
The final rule recognizes existing property rights and avoids
certain potential compensable takings of property interests. In most
cases of severed coal rights, the severance also conveys the property
right to undermine the surface, and may include the right to subside;
and any such rights would still limit or burden the surface property
rights. See, e.g. R. Roth, J. Randolph, C. Zipper, Coal Mining
Subsidence Regulation in Six Appalachian States, 10 Va. Envtl. L.J. 311
(1991); C. Fox, Jr., Private Mining Law in the 1980's, 92 W.Va. L. Rev.
795 (1990); T. Gresham, M. Jamison, Do Waivers of Support and Damage
Authorize Full Extraction Mining, 92 W.Va. L. Rev. 911 (1990). We
believe failure to allow exercise of these conveyed rights would be
inequitable and could risk compensable takings. The final rule allows
the holder of such mining and subsidence rights to continue to exercise
them, subject to existing SMCRA regulation.
III. Response to Comments
Several commenters dispute the need for any rulemaking, arguing
that our longstanding interpretation provides an efficient system
consistent with the intent of SMCRA. However, several commenters
disagree, expressing general support for the clarity and additional
specificity that the rule provides. We believe that the clarity,
specificity, and relative stability provided by a rulemaking support
adoption of a final rule. Furthermore, as noted above the district
court has ordered the Secretary to do a rulemaking on the applicability
of section 522(e) to subsidence in accordance with the notice and
comment procedures outlined in the Administrative Procedure Act. 5
U.S.C., section 551 et seq. National Wildlife Fed'n v. Babbitt, 835 F.
Supp. 654 (D.D.C. September 21, 1993).
Many of the comments from private citizens expressed general
opposition to the proposed rule and argued that mining should be
prohibited entirely in the 522(e) areas. Similarly, some commenters
argued that the question should not be framed in terms of whether
protection against subsidence is required or not, but rather should
address protection of the use of surface lands from all adverse effects
of underground mining. Commenters noted that subsidence has both direct
and indirect effects. Thus, uneven settlement from mining can cause
dewatering of aquifers and other indirect effects on land stability,
even though it may not directly impair use of the land surface through
surface slumping and other surface land deformation. Additionally, when
underground works intercept bedding planes and fracture zones, they can
cause dewatering without subsidence. Commenters asserted that properly
applying section 522 would require that underground mining be
prohibited where any surface impacts (direct or indirect) could result
from the underground mining activity.
SMCRA prohibits surface coal mining operations in section 522(e)
areas, but
[[Page 70851]]
also specifies exceptions to those prohibitions. Therefore, the
proposed rule did not include absolute prohibition as an option, and we
are not adopting such a prohibition. Further, SMCRA does not prohibit
underground mining per se in section 522(e) areas, or all surface
impacts of underground mining, and for the reasons given above we are
not adopting such a prohibition.
A. SMCRA Definition of Surface Coal Mining Operations
Some commenters support our interpretation that the definition of
``surface coal mining operations'' embodies only surface activities.
Those commenters note that our interpretation is consistent with the
description of the effect of section 701(28) in the Senate Report on
the version of the definition that was adopted:
``Surface [coal] mining operations'' * * * includes all areas
upon which occur surface mining activities and surface activities
incident to underground mining. It also includes all roads,
facilities, structures, property, and materials on the surface
resulting from or incident to such activities.
S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphasis added).
These commenters agree with us that the legislative history of
section 701 can reasonably be read to support the interpretation that
the definition of ``surface coal mining operations'' embodies only
surface activities. Commenters refer to the discussion in the 1977
House Report of the definition of ``surface coal mining operations':
(A) Activities conducted on the surface of lands in connection
with a surface coal mine or surface operations and surface impacts
incident to an underground coal mine * * *
H.R. Rep. No. 218 at 43.
Commenters also agree that paragraph (B) of section 701(28)
supports our interpretation. While paragraph (A) applies to
``activities conducted on the surface of lands in connection with a
surface coal mine or * * * ``surface operations and surface impacts
incident to an underground coal mine * * *,'' paragraph (B) applies to
``the areas upon which such activities occur or where such activities
disturb the natural land surface'' and to holes or depressions
``resulting from or incident to such activities * * *'' (emphases
added). The commenters agree that the only ``activities'' to which
paragraph (B) could refer are those described in paragraph (A), namely
those conducted on the surface of lands in connection with a surface
coal mine or in connection with the surface operations and impacts
incident to an underground coal mine. Thus, commenters agree that, if
our reading of paragraph (A) were not adopted, paragraph (B) would not
apply to any aspects of underground mining--an untenable result.
Commenters affirm that our reading of subsection 701(28) would not
mean that subsidence would be exempt from regulation under the Act,
since Congress specifically provided for regulation of subsidence under
section 516 of SMCRA.
In contrast, other commenters argue that the plain meaning of the
Act establishes that subsidence is included in the definition of
``surface coal mining operations'' and is therefore prohibited in
section 522(e) areas. These commenters assert that the language of
section 701(28)(A) encompasses two elements:
(1) ``Activities conducted on the surface of lands in connection
with a surface coal mine;'' and
(2) ``Surface operations and surface impacts incident to an
underground mine.''
These commenters argue that, in addition to activities and
operations incident to underground mining, impacts incident to
underground mining also clearly constitute ``surface coal mining
operations''. Commenters assert that the D.C. Circuit stated that
``The most natural reading of the statute as a whole, and the
definition in section 701(28) in particular, * * * suggests that
`surface coal mining operations' encompasses both surface coal mines
and the surface impacts [sic. The decision said ``effects.''] of
`underground coal mines.' National Wildlife Fed'n v. Hodel, 839 F.2d
694, 753 (D.C. Cir. 1988).''
We do not agree with commenter's interpretation of the significance
of this passage in the court's 1988 decision. The issue before the
court was whether the requirement of SMCRA section 717(b), for
replacement of water supplies by the operator of ``a surface coal
mine,'' also requires water supply replacement by underground mine
operators. Thus, the interpretation of section 701(28) as it applies to
522(e) was not before the court, and the passage quoted by the
commenters is dictum.
Commenters also assert that, applying ``the definition of `surface
mining' contained in the Act, i.e., ``surface impacts incident to an
underground mine,' `` the Sixth Circuit concluded that under section
522(e), ``no coal mining which disturbs the surface `shall be permitted
* * * on any federal lands within the boundaries of any national
forest.'' Ramex Mining Corp. v. Watt, 753 F.2d 521, 522, and 523 (6th
Cir. 1985) quoting sections 701(28) and 522(e).
We conclude that the quoted language from the Ramex decision is
best read as dictum, since the issue before the court was not the
interpretation of section 701(28), but rather whether national forest
lands on which a mineral holder proposed to mine severed coal rights,
were ``federal lands'' for purposes of SMCRA section 522(e)(2). We note
in passing that the court used a different term (``surface mining'')
than the term used in section 701(28) (``surface coal mining
operations'') and that the two terms are not properly interchangeable.
We also note that the court did not quote and may not have considered
the full and correct language of the definition of ``surface coal
mining operations'', at section 701(28).
We considered these comments and the quoted comments of the courts.
We believe these interpretations would require an alternative parsing
of the definition of ``surface coal mining operations'' in section
701(28) in which the phrase ``surface impacts incident to an
underground coal mine'' would be read as independent of the words
``activities conducted on the surface of the lands.'' Therefore, for
the reasons set out below, we do not agree with these interpretations.
There are at least three problems with this parsing of section
701(28)(A). First, it would render the phrase ``on the surface of
lands'' superfluous, since all ``[activities conducted * * * in
connection with a surface coal mine'' necessarily occur on the surface
of lands. The phrase has meaning only if it also modifies ``[activities
conducted * * * in connection with * * * an underground coal mine.''
Second, the remainder of paragraph (A) and all of paragraph (B) of
this definition would not apply to underground coal mines, since those
provisions refer back to the surface activities covered in the first
portion of paragraph (A). We do not believe Congress could have
intended such a result.
Third, this construction would require the reader to conclude that
the phrase ``in connection with'' was not intended to apply to surface
operations and surface impacts incident to an underground coal mine.
This result would conflict with our position since the inception of the
program that the term ``surface coal mining operations'' includes
surface facilities operated in connection with an underground coal
mine. The latter is a position which we regard as consistent with the
Act and with legislative intent, and which we reaffirmed in a
rulemaking concerning surface facilities in connection with an
underground coal mine. 53 FR 47384
[[Page 70852]]
(Nov. 22, 1988). Consequently, we believe the alternative parsing is
not a sound interpretation of the definition. Since these problems with
the alternative parsing were not considered by the court in the quoted
1988 decision. We believe the courts did not have the opportunity to
address these problems, and we expect that court would not have applied
the quoted rationale if the court had considered these matters.
Commenters claim the 1991 Solicitor's opinion offered contradictory
rationales for the conclusion that ``subsidence from underground mining
is properly regulated solely under SMCRA section 516 and not under
section 522(e).'' In their opinion, the Solicitor states that the
statutory definition of ``surface coal mining operations'' is, on the
one hand, clear on its face and excludes subsidence and, on the other
hand, ambiguous enough to allow the Secretary [sic] discretion to
exempt subsidence from its scope. (citing the M-Op at 2, 13 [100 I.D.
85 at 87, 93, and 99-100]). We do not agree that the M-Op contains
contradictory statements. Rather the M-Op concludes that Congress has
spoken to the issue, and gives the best reading of the statutory
language. The M-Op then indicates that, even if this reading were not
required by the terms of the statute and the legislative history, we
would have ample authority to adopt the interpretation. The M-Op also
notes that, to the extent there is confusion as to the meaning of the
term ``surface coal mining operations'', an agency's interpretation of
a statute it administers is entitled to great deference. Id.
Our proposed rule would interpret 701(28) to include ``activities
conducted on the surface of lands * * * in connection with * * *
surface operations and surface impacts incident to an underground
mine.'' Commenters refer to the M-Op and argue that if the
Secretary's[sic] juxtaposition were accepted, it would lead to the
absurd conclusion that causing subsidence in section 522(e) areas is
permissible (because it does not involve ``activities'' on the surface)
but that correcting subsidence is prohibited (because reclamation
activities would constitute ``activities conducted on the surface of
lands in connection with * * * surface impacts incident to an
underground coal mine'').
By contrast, several commenters agree with our position that the
reclamation of off-permit subsidence does not require a permit. In a
1983 rulemaking, we established that the ``permit area'' for an
underground coal mine does not include the area overlying underground
mining where subsidence may occur. 48 FR 14820 (Apr. 5, 1983). Areas
overlying underground mining are included in the definition of
``adjacent area''. SMCRA section 510(b)(4) requires a determination
that ``the areas proposed to be mined are not included within an area
designated unsuitable for surface coal mining pursuant to section 522
of the Act * * *''. This statutory provision is implementing the
requirement for a permit finding in section 773.15(c)(3). Some
commenters further point out that the mere potential for subsidence is
not a surface coal mining operation with attendant reclamation
obligation. (citing Government Brief before the U.S. District Court in
National Wildlife Fed'n v. Hodel at 99-109). (839 F. 2d 694 (D.C. Cir.
1988). These commenters note that if subsidence impacts occur, the
regulations impose a reclamation responsibility upon an operator even
if such impacts are outside the permit area. The commenters also note
that whether the impacts are inside or outside the permit area, the
performance standards of 30 CFR Part 817 provide applicable reclamation
requirements. However, for other offsite ``impacts'' regulated under
SMCRA, the commenters observe that no permit is required to conduct
reclamation. These commenters add that throughout the years of program
implementation, the Department's position has been clear and
consistent: the area overlying underground workings does not need to be
included in the ``permit area'' for a mine and is not subject to
section 522(e).
We agree. We believe our interpretation is consistent with the 1983
rulemaking in which we defined ``adjacent area'' as ``the area outside
the permit area where a resource or resources * * * are or reasonably
could be expected to be adversely impacted by proposed mining
operations, including probable impacts from underground workings.'' 30
CFR 701.5. We stated in the April 5, 1983, rulemaking that the
``requirements of section 522(e) do not apply to adjacent areas.'',
i.e., potential off-site impacts. 48 FR 14816, Apr. 5, 1983. In that
rulemaking, we defined ``adjacent area'' as ``the area outside the
permit area where a resource or resources * * * are or reasonably could
be expected to be adversely impacted by proposed mining operations,
including probable impacts from underground workings.'' 30 CFR 701.5.
Thus, since 1983, our interpretation has been that areas where
subsidence may occur are not required to be included in the permit
area, and that section 522(e) does not apply to the adjacent areas
(where subsidence may occur).
One commenter alleges that the proposed rule assumes that
underground mining could be authorized within a section 522(e) area
merely through a redefinition of ``surface impacts'' as it relates to
subsidence. This commenter also alleges that this assumption fails to
account for the other surface impacts intended to be avoid[ed] in
section 522(e) areas: dewatering of aquifers, alteration of the
prevailing hydrologic balance of the area, placement of mine support
structures, entryways, ventilation shafts, and access or haulage roads.
The commenter mischaracterizes our position. We agree that some of the
things listed by the commenter would be ``surface impacts.'' Other
things listed, including placement, construction, maintenance, or use
of structures or features on the surface, would be surface activities
and the areas affected by them, and thus would be included in the
definition of surface coal mining operations.
Commenters assert that the Secretary's reading is contrived and
also fails to give effect to the portion of section 701(28)(A) that
cross-references section 516. The commenters also assert that the
``Secretary concedes the ``subject to'' language is merely a cross-
reference indicating which activities conducted on the surface in
connection with an underground coal mine are surface coal mining
operations, namely, those that are subject to regulation under section
516 SMCRA''. Commenters argue that subsidence is equally subject to
regulation under section 516, and therefore, under the Secretary's own
theory, must be included within the scope of section 701(28)(A). They
further suggest that the Secretary's [sic] reading is contrary to the
plain meaning of section 701(28)(A), and rests on a contorted and
nonsensical reading of the statutory language. We are not persuaded by
commenters' assertions. We believe that our interpretation outlined
above is reasonable, and that only surface activities are properly
included under section 701(28)(A). For the reasons set out in the
rationale section, we have concluded subsidence is not included in
paragraph (A) of the definition because it is not an activity conducted
on the surface of the land. This interpretation is consistent with the
fact that there is no mention in paragraph (A) of subsidence,
underground activities, or surface impacts of underground activities,
which might clearly establish that section 701(28) did include
subsidence. By contrast, paragraph (A)
[[Page 70853]]
does specifically mention numerous activities that occur on the surface
of lands.
Commenters allege that even if section 701(28)(A) were limited to
surface ``activities,'' subsidence in section 522(e) areas would still
be prohibited by section 701(28)(B) because the paragraph expressly
states that ``holes or depressions * * * resulting from or incident to
such activities'' constitute ``surface coal mining operations.'' They
further point out that in the 1998 Draft Environmental Impact Statement
the Secretary [sic] concedes that subsidence constitutes holes or
depressions:
Two types of topographic features caused by mine subsidence are
sinkholes and troughs. A sinkhole is a circular depression in the
ground surface that occurs when the overburden collapses into a
typically shallow mine void. A trough is a depression in the ground
surface, often rectangular in shape with rounded corners, that is
formed by sagging of the overburden into a mined-out area.
We agree that subsidence may include holes or depressions. However,
for the reasons explained above, our position is that only surface
features affected by surface activities would be surface coal mining
operations under section 701(28)(B).
Commenters argue that subsidence not only constitutes ``holes or
depressions;'' it also is ``resulting from or incident to such
activities'' within the meaning of the last phrase of section
701(28)(B). In their opinion, the initial excavation on the earth's
surface through which miners and material are conveyed underground
would constitute ``activities'' within the Secretary's reading of
section 701(28)(A). We agree that the process of surface excavation
would be a surface activity. However, commenters go on to incorrectly
assert that any subsidence that occurs is necessarily ``resulting from
or incident to'' these surface activities. Commenters believe that
subsidence is functionally related to these surface activities and
could not occur without them, i.e. subsidence is linked to these
surface activities in a but-for chain of causation. Commenters refer to
NWF v. Hodel, 839 F.2d at 742-45 (affirming DOI rule that applied the
``resulting from or incident to'' test to include even processing and
support facilities that are entirely off-site). We do not agree with
this assertion. Subsidence results from underground activities, not
surface activities. If there were no underground activities, there
would be no subsidence from underground mining.
Commenters charge that the applicability of section 522(e) to
subsidence is confirmed by subsection 522(e)(2)(A) which prohibits
``surface coal mining operations'' within national forests, but allows
a limited exception where ``surface operations and impacts are
incidental to an underground coal mine''. Commenters argue that, if
``impacts'' were generally outside the scope of section 522(e), such an
exemption would not have been necessary. We do not agree. We interpret
the referenced language in 522(e)(2)(A) to refer to surface operations
and impacts from underground mining which are included in the
definition of surface coal mining operations at SMCRA section
701(28)(B) under our interpretation.
Commenters allege that the term ``activities'', which the Secretary
considers to be the operative term for the entire definition of surface
coal mining operations, is conspicuous by its absence from section
522(e)(2)(A). They suggest that if Congress had really intended the
tangled parsing of section 701(28)(A) proposed by the Secretary, it
would have drafted section 522(e)(2)(a) to apply where ``activities on
the surface of lands are incident to an underground coal mine''. In
their opinion, Congress did not do so, however, and they recommend that
the Secretary respect Congress' decision to address ``impacts''.
We disagree with the commenters' characterization. Congress defined
what ``surface coal mining operations'' means in section 701(28), and
then used that term in section 522(e). The definition at 701(28) refers
to ``surface activities'', and then refers repeatedly in 701(28) to
``such activities''; but activities are not the only thing included in
the definition. Section 701(28) also specifies certain surface features
affected by surface activities. Section 701(28) includes all of the
listed categories of surface activities and surface features. Thus,
neither section 701(28) nor section 522(e) refers only to surface
activities. We are not required to speculate about other ways Congress
might have drafted this provision, if we have provided a reasonable
interpretation of what Congress actually did say. For the reasons set
out in this preamble, we believe our interpretation is reasonable.
Commenters suggest that the Secretary [sic] acknowledged the import
of section 522(e)(2) in his discussion of the 1979 rulemaking:
Concerning the definitions at 30 CFR section 761.5, we rejected
a comment that ``surface operations and impacts incident to an
underground mine'' should be limited to subsidence. 44 FR 14990
(Mar. 13, 1979). The negative implication would appear to be that
such operations and impacts (including subsidence) are otherwise
prohibited by section 522(e). (citing the M-Op at 11 n. 17 [100 I.D.
85 at 92, fn. 17]).
The commenters further assert that the Secretary [sic] failed to
offer any justification for ignoring this ``negative implication''.
This comment refers to a passage in the Solicitor's M-Op In that
passage, the Solicitor did not ignore the implication but rather
recognized it as one of numerous arguably inconsistent actions by OSM
over the history of implementing 522(e). Similarly, in the proposed
rule, we did not ignore the negative implication, but rather considered
it as well as all other relevant factors. This rulemaking is the first
time we specifically address the issue with this level of detailed
analysis. And in this final rule, for the reasons stated above in the
rationale section, we are not adopting the interpretation urged by
these commenters.
Commenters claim that the 1979 rulemaking explicitly defines the
section 522(e)(2)(A) phrase ``surface operations and impacts incident
to an underground coal mine'' to include activities that are not
conducted on the surface of the lands:
[A]ll activities involved in or related to underground coal
mining which are either conducted on the surface of the land,
produce changes in the land surface or disturb the surface, air or
water resources of the area, including all activities listed in
section 701(28) of the Act and the definition of surface coal mining
operations appearing in section 700.5 of this chapter.
30 CFR. 761.5.
Commenters urge that because subsidence both ``produce[s] changes
in the land surface'' and ``disturb[s] the surface, air, and water
resources,'' it is included within the second and third disjunctive
clauses of the definition. We agree that subsidence is a surface impact
incident to an underground coal mine. However, for the reasons outlined
above in section II. B., we do not agree that subsidence is a surface
coal mining operation subject to the prohibitions of section 522(e).
That is, we interpret section 701(28)(A) to apply only to surface
activities of the types listed in that section (and not to surface
operations and impacts per se); and we interpret section 701(28)(B) to
apply only to the areas and features listed; and therefore section
701(28) does not include subsidence.
Other commenters agree with us , and argued that attempting to
glean the term subsidence from the language of
[[Page 70854]]
subsection (B) is unavailing. The two words ``holes or depressions,''
for instance, do not constitute Congress' vernacular for subsidence. We
disagree in part with this comment. Subsidence may result in a hole or
depression, but subsidence would be included under section 701(28) only
if it is a surface feature affected by surface activities, as provided
in section 701(28)(B).
B. Congressional Intent
As discussed below, various commenters point to language in the
Congressional reports that appears to be imprecise and inconsistent
with other report language and with the terms of the statute. We
believe that in any case, the language of the Act prevails.
A group of commenters allege that the legislative history of SMCRA
establishes that Congress intended that subsidence due to underground
mining be considered a surface coal mining operation, and that
subsidence therefore is prohibited in areas protected under SMCRA
section 522(e). These commenters argue that committee reports from both
houses of Congress compel a conclusion that subsidence constitutes
``surface coal mining operations'' and is therefore subject to section
522(e). Commenters note that the Senate Report includes a statement
that the hazards from the surface effects of underground coal mining
include the dumping of coal waste piles, subsidence and mine fires. The
commenters refer to three statements in the Senate Report on SMCRA, to
support their claim:
(1) The Act was addressed to ``surface coal mining operations--
including exploration activities and the surface effects of
underground mining.
(2) Initial regulatory requirements extend to ``[a]ll surface
coal mining operations, which include, by definition surface impacts
incident to underground coal mines'';
(3) The Senate Report characterizes ``Surface coal mining
operations'' as including not only traditionally regarded coal
surface mining activities but also surface operations incident to
underground coal mining, and exploration activities. The effect of
this definition is that coal surface mining and surface impacts of
underground coal mining are subject to regulation under the Act.''
S. Rep. No. 128, 95th Cong., 1st Sess. 49, 50, 71, 98 (1977).
We have considered the materials cited by the commenters. We are
not persuaded by the commenters' arguments and interpretations. We
agree that Congress considered subsidence to be a surface impact and a
surface effect incident to underground mining. However, for the reasons
given above, we do not agree that Congress intended to include
subsidence in the definition of a surface coal mining operation. We
recognize that the Act addresses subsidence as a surface effect of
underground mining, but we believe the Act addressed those effects in
sections 516, and subsequently 720, and not as surface coal mining
operations under sections 701(28) and 522(e).
Regarding the first quoted passage from the 1977 Senate Report, we
believe the report's statement that coal exploration is included in
``surface coal mining operations'', is inconsistent with the statutory
definition in section 701(28). The definition in section 701(28)
explicitly excludes coal exploration. It is not clear whether the
passage's reference to ``surface effects'' is a vague reference to the
surface effects of surface activities or is another inconsistency with
the statutory language. In the alternative, this might be an
anachronism, a reference to an earlier version, that should have been
deleted from the final bill. It is also possible that this report
statement reflects inconsistencies in Congress' interpretation of
701(28). In any case, if there is a conflict between report language
and statutory language, the statutory language must prevail.
Regarding the second quoted passage from the Senate Report, which
refers to initial program requirements, we are unsure what Congress
intended by this statement. While this passage might be read to provide
that subsidence is included in ``surface coal mining operations'', we
have never interpreted the SMCRA initial program requirements to apply
to subsidence. And that issue is not within the scope of this
rulemaking.
Regarding the third quoted passage from the Senate Report,
commenters believe this passage is especially significant in light of
narrower language in previous Senate reports. For example, one earlier
report said, ``The effect of this definition is that only coal surface
mining is subject to regulation under the Act.'' S. Rep. No. 28, 94th
Cong., 1st Sess. 224 (1975); S. Rep. No. 402, 93d Cong., 1st Sess. 74
(1973). Commenters believe the very different language in the 1977
Senate Report was no mere accident, but rather a deliberate choice of
more expansive words. We are not sure what significance to attribute to
the third quoted passage. That language may be interpreted to confirm
our interpretation, because the passage says the definition of
``surface coal mining operation'' includes surface operations incident
to underground mines, and concludes that the effect is to regulate
surface impacts. We believe that by referring to surface operations
incident to underground coal mining, the passage may be referring to
surface activities incident to underground coal mining. Thus, this may
be an imprecise reference to the statutory language. This latter
hypothesis is supported by the fact that the passage asserts that the
term ``surface coal mining operation'' applies to exploration. However,
the enacted definition specifically excludes exploration, and we have
always interpreted the definition to exclude exploration. For the
reasons outlined above, we believe the reading urged by these
commenters inconsistent with a careful parsing of the language of
section 701(28) (A) and (B), because it would not apply section
701(28)(B) to underground mining.
In summary, the quoted passages from the Senate Report, read alone,
do raise some questions about Congress' intent, and are not the most
precise guidance. However, we believe our interpretation of the
language of section 701.28 itself is reasonable. We have found no other
interpretation which gives meaning to all parts of the definition.
Commenters also believe that Congress intended to encompass more
than merely subsidence effects in including underground mining within
the ambit of the term ``surface coal mining operations.'' They charge
that acid mine drainage, waste disposal, fire hazards, disturbances to
the hydrologic balance, surface operations and structures, impacts on
fish and wildlife and related environmental values were impacts of
underground mining to be regulated through the application of the
performance standards. S. Rep. No. 95-128, 95th Cong., 1st Sess. 98
(1977). We do not take the position that the term ``surface operations
and surface impacts'' of underground mining addresses only subsidence.
This rulemaking, however, addresses only the question of whether the
prohibitions of section 522(e) apply to subsidence.
Commenters allege that the statutory framework of SMCRA clearly
applies the prohibitions of section 522(e) to subsidence, and
commenters assert that the House Report supports their allegations.
They point to the statement in the report that ``environmental problems
associated with underground mining for coal which are directly
manifested on the land surface are addressed in section 212 [i.e.,
section 516] and such other sections which may have application. These
problems include surface subsidence[.]'' H.R. Rep. No. 218, 95th Cong.,
1st Sess. 125-126 (1977) (emphasis added).
We do not agree that this portion of the House Report on section
516 supports commenter's contention. Commenters apparently assume that
the
[[Page 70855]]
emphasized language means that section 701(28) includes subsidence and
that therefore, the prohibitions of section 522(e) must apply to
subsidence. However, nowhere does the quoted language say this.
Commenters cite no basis for such a conclusion; and we know of no basis
for that conclusion. We believe the underlined House Report language
would include any other SMCRA sections that apply to surface
environmental problems associated with underground mining but for the
reasons outlined above, we do not agree that sections 701(28) and
522(e) apply to subsidence.
Another commenter points to the Secretary's statement that
subsidence effects constitute ``surface impacts'' incident to an
underground mine. Commenters assert that if Congress had wished to
cover only surface activities as the Secretary suggests, it would not
have included the additional word ``impacts'; and that the Secretary's
theory renders this additional word surplusage. We disagree. As
discussed above, we interpret 701(28)(A) to apply to surface activities
``in connection with (1) surface operations and (2) surface impacts
incident to an underground coal mine''. Thus, if surface impacts are
incident to an underground mine, then surface activities in connection
with them constitute surface coal mining operations.
Commenters further argue that the Secretary's reading makes no
sense. Commenters assert that the reading given by the Secretary [sic]
would have the second component of 701(28)(A) include ``activities
conducted on the surface of lands in connection with * * * subject to
the requirements of section 516 surface operations and surface impacts
incident to an underground coal mine.'' Citing M-Op pp. 2, 13 [100 I.D.
85 at 87, 93 (July 10, 1991)]. Commenters claim there would be no
reason for Congress to refer to ``activities conducted on the surface
of lands in connection with * * * surface operations'' * * *'' Once
Congress had swept ``activities'' within the scope of the definition,
nothing additional would be accomplished by adding the word
``operations.'' Commenters also suggest that there would be no reason
for Congress to refer to ``activities conducted on the surface of lands
in connection with * * * surface impacts''.
We disagree. All of the words of the definition are given meaning
under our interpretation. Contrary to commenter's assertion, neither
``surface operations'' nor ``surface activities'' is surplusage or
unnecessary under our interpretation. These terms help to delineate
what is included and what is excluded. For example, there can be onsite
activities that have no connection with the surface operations of the
mine. The statutory language excludes such activities from the
definition. Further, there may be activities that are not conducted on
the surface but are in connection with surface operations. The statute
also excludes these activities from the definition. We also believe
there can be surface activities that are not in connection with surface
operations or surface impacts of an underground mine, and there can be
surface activities in connection with underground impacts rather than
surface impacts. We believe Congress intended to exclude all of these
types of activities, and that the words of the definition are needed to
make this clear.
Commenters assert that the Secretary's statement that ``section
701(28) does not specifically mention subsidence'' (62 FR 4868) offers
no basis for retreating from the plain meaning of SMCRA. As discussed
above, we do not agree with commenter's assumption as to what is
SMCRA's plain meaning on this issue. Further, this statement refers to
only one of a number of factors we considered in reaching its
interpretation. Commenters also argue that acceptance of this statement
would require rejection of the Secretary's [sic] own interpretation.
These commenters allege that under the Secretary's [sic]
interpretation, ``face-up or mine portal areas'' associated with
underground mines are banned in section 522(e) areas. Citing M-Op at
13, n.19 [100 I.D. 85 at 87 fn. 19]. Commenters note that, however,
neither section 701(28) nor section 522(e) mentions either of these two
items. We do not accept commenter's comparison. Our analysis makes
clear that ``face-up or mine portal areas'' would come within the terms
of 701(28), because they are areas where surface activities disturb the
surface in connection with surface operations of an underground coal
mine. Commenters also note the Secretary's assertion that section
516(c) applies to subsidence (citing 62 FR 4869), even though the word
``subsidence'' never appears there. We have consistently taken the
position that subsidence could pose an ``imminent danger'', and thus is
within the terms of section 516(c). We note that interpretation of
516(c) is outside the scope of this rulemaking.
Commenters feel the Secretary's assertion that subsidence is
regulated only under section 516 is contrary to the House report's
reference to ``such other sections which may have application'' to
``subsidence.'' They argue that since subsidence is explicitly
mentioned only in section 516, the only way it can be regulated by
``other sections'' is if it constitutes ``surface coal mining
operations'', and therefore, it is banned in section 522(e) areas.
Commenters' conclusion is flawed. For example, other SMCRA sections
that may be applicable to subsidence or subsidence related impacts may
include: Sections 508 (reclamation plan requirements), 510 (permit
approval), 515 (portions concerning prime farmlands) and 720
(subsidence).
According to commenters, because we are unable to explain away
these clear expressions of legislative intent, we are reduced to
suggesting in effect that, because the Senate Report once refers to
``surface activities incident to underground mining,'' any reviewing
Court should overlook the word ``impacts'' in sections 701(28)(A) and
522(e)(2)(A), and should ignore the three references to ``impacts'' and
``effects'' elsewhere in the Senate Report. Commenters are wrong. As
explained above, we are not overlooking, nor do we advocate
overlooking, the use of the term ``impacts'' in section 701(28) or
522(e). Rather, our interpretation gives full and reasonable meaning to
all terms in those sections. In contrast, commenter's interpretation
would render the second half of the definition, at 701(28)(B),
inapplicable to underground mining. That interpretation is untenable.
Furthermore, we have not ignored the referenced passages in the
legislative history. To the extent the passages of legislative history
quoted by commenters cannot be explained or reconciled with the
language of section 701(28), we believe the language of the Act must
prevail.
Commenters also argue that our position is not supported by
legislative history allegedly showing that underground and surface
mining ``require significant differences in regulatory approach.''
Citing 62 FR 4865. In support of their argument, they point out that
(1) differences in regulatory approach to the two kinds of mining in
areas where they are permitted in no way conflicts with an evenhanded
prohibition of both surface mining and the surface impacts of
underground mining in the special areas enumerated in section 522(e),
and (2) where Congress wanted to allow the Secretary [sic] to
accommodate differences between the two kinds of mining, it said so.
Commenters mischaracterize our position. We believe that not applying
522(e) to subsidence is one of the differences in regulatory approach
countenanced by Congress in Title V of SMCRA.
[[Page 70856]]
Likewise without merit, commenters charge, is the Secretary's
citation of legislative history allegedly showing that ``most of the
impacts of unregulated pre-SMCRA surface mining resulted from surface
activities that were more immediate and more readily observable, and
the resulting conditions were relatively accessible for reclamation.''
Citing 62 FR 4866. Furthermore, they contend that the Secretary does
not explain how this distinction supports exempting subsidence from
section 522(e), and they submit that it does not. Commenters assert
that, if anything, the greater difficulty of reclaiming subsidence-
impacted surface features makes the preventive approach of section
522(e) more necessary, not less. Commenters have offered no basis for
these assertions, and we believe neither the record nor our experience
support commenters' characterizations. For the reasons given above, we
find these comments unpersuasive.
Commenters allege the legislative history of section 720 further
confirms that subsidence is covered by the term ``surface coal mining
operations.'' In support of their position, they submit two points.
First, that the final bill enacted by Congress rejected a proposed
amendment included in the House committee bill:
Notwithstanding the reference to surface impacts incident to an
underground coal mine in paragraph (28)(A), for the purpose of
section 522(e), the term ``surface coal mining operations'' shall
not include subsidence caused by an underground coal mine.
(Section 2805(b) of the committee bill, proposing to add section
701(35)(D) to SMCRA), H.R. Rep. No. 102-474, pt. 8 at 133 (1992).
The authors of this amendment stated that it ``clearly exempts land
surface subsidence from the prohibitions of section 522(e) of the
Act.'' Id. pt. 8 at 133. Commenters believe that the House committee's
attempt to ``exempt'' subsidence from section 522(e) necessarily
reflects the committee's understanding that, absent such an exemption,
subsidence was covered by section 522(e). This statement is not
necessarily true. It is just as likely that the proposed amendment was
rejected because Congress was aware of the language of the Act and its
interpretation, including the M-Op, and agreed that section 701(28) is
properly interpreted as not including subsidence; so that no further
amendment of the Act was required in order to exclude subsidence.
Second, commenters submit that Congress's ultimate rejection of
another House committee amendment to SMCRA may raise issues with
respect to the interpretation of section 717(b), but does not raise an
issue concerning the committee's understanding that provisions in
section 701(28) cover surface impacts, not merely surface activities.
The House committee proposed an amendment to SMCRA section 717, stating
that:
Section 2805(a)(1) would amend section 717(b) of the Surface
Mining Control and Reclamation Act of 1977 to clarify the
terminology used under that subsection. Recent litigation has called
into question whether Congress, in using the term ``surface coal
mine operation'' in section 717(b), intended to require underground
coal mine operators to replace water supplies * * *.
The Committee, in formulating legislation that was enacted as the
Surface Mining Control and Reclamation Act of 1977, did not intend to
exclude the impacts of underground mining from the scope of section
717(b). However, in light of the litigation, section 2805(a)(1) amends
section 717(b) of the Act with the terminology defined under section
701(28) of the Act so that a clear reading of the law expressly
includes the surface impacts incident to an underground coal mine under
the scope of section 717(b). H.R. Rep. No. 102-474, pt. 8 at 132 (1992)
(emphasis added). However, this proposed amendment was not accepted by
Congress. In any case, we believe that Congress' action on this
proposed amendment to SMCRA section 717 is irrelevant to the issues in
this rulemaking because this action postdated passage of SMCRA and did
not concern section 522(e) or section 701(28).
We also received other comments that agree with our analysis of the
legislative history. These commenters also argue that a compelling
indication of Congressional intent can be found on pages 94-95 of House
Report 95-218 (Apr. 22, 1977). The commenters assert that the focus of
Congress relative to section 522 in general, and 522(e) specifically,
was on surface mining impacts. Commenters argue that the report, under
the title of ``Land Use Considerations'', addresses the lands
unsuitable for mining provision of section 522. The report states:
The committee wishes to emphasize that this section does not
require the designation of areas as unsuitable for surface mining
other than where it is demonstrated that reclamation of an area is
not physically or economically feasible under the standards of the
act * * *.
Although the designation process will serve to limit mining
where such activity is inconsistent with rational planning in the
opinion of the committee, the decision to bar surface mining in
certain circumstances is better made by Congress itself. Thus
section 522(e) provides that, subject to valid existing rights, no
surface coal mining operation, except those in existence on the date
of enactment, shall be permitted * * *.
As subsection 522(e) prohibits surface coal mining on lands
within the boundaries of national forests, subject to valid existing
rights, it is not the intent, nor is the effect of this provision to
preclude surface coal mining on private inholdings within the
national forests. The language ``subject to valid existing rights''
in section 522(e) is intended, however, to make clear that the
prohibition of strip mining on the national forests is subject to
previous court interpretations of valid existing rights * * *.
(Emphasis added)
H.R. Rep. No. 95-218 at 94, 95.
The commenters argue that the second paragraph goes directly to the
Congressional intent to address ``surface mining'' in creating 522(e)
buffer zones. The commenters also argue that frequent use of the term
``surface mining'' while addressing the ``reclamation'' related goals
in the Act; the discussion about ``strip mining'' (which has the same
limited meaning as surface mining and surface coal mining) in the
national forests; and the absence of any subsidence reference anywhere
in this discussion, seem clearly to direct section 522 to surface
mining and to exclude subsidence from the realm of consideration.
We agree in part with these comments. While the House Report
language quoted by the commenters does refer to the effect of section
522(e) on surface mining, we do not believe that SMCRA section 522(e)
addresses only surface mining. As discussed above, we believe the
language of section 701(28) also encompasses surface activities in
connection with underground mining, as well as other surface features
affected by surface activities. Paragraph (B) includes a lengthy list
of specific surface features included in this last category.
C. History of Interpretation as to Applicability of Section 522(e)
Prohibitions to Subsidence
As previously discussed in other sections of this rule, we
recognize that there appears to have been inconsistency in our past
interpretations. However, we conclude that the majority of past OSM
rulemaking and regulatory practices have not considered subsidence to
be a surface coal mining operation, have not applied section 522(e)
prohibitions to subsidence, and have not required regulatory
authorities to do so. Comments on this aspect of this rulemaking fall
into two camps. Numerous comments allege that we have consistently
taken the position that
[[Page 70857]]
subsidence is not subject to the prohibitions of 522(e). Other comments
assert that we have properly taken the position that subsidence is
subject to the prohibitions of 522(e). Both sets of commenters have
cited numerous instances to support their positions. Neither position
is entirely correct. As discussed above, we acknowledge that our past
actions have not been consistent on this issue.
Several commenters argue that in the administrative history of the
implementation of SMCRA, we have never interpreted the statute to apply
section 522(e) to subsidence. Furthermore, these commenters argue that
there exists a longstanding interpretation of SMCRA that section 516
provides the exclusive provision to control subsidence effects.
Commenters disagree with our statement in the proposed rule that in the
past we have not taken a definitive position on the issue of the
applicability of section 522(e) to subsidence. The commenters believe
the administrative history shows from the outset the agency never
interpreted the statute to apply section 522(e) to subsidence. These
commenters referred to the examples we mentioned in the proposed rule
to illustrate that the agency has not taken a consistent and definitive
position. The commenters describe these examples as aberrational and
pale in comparison to the overwhelming evidence demonstrating that
section 522(e) has not been applied in the federal rules or state
programs to subsidence. The commenters emphasize that the examples were
used by us to describe what the agency calls ``negative implications'',
but these commenters feel that the agency has misconstrued the
implication properly drawn from these examples. For the reasons
discussed above in Part II. B, we do not agree with commenter's
assertions that OSM' interpretation has consistently been that 522(e)
does not apply to subsidence. The proposed rule and this preamble
acknowledge numerous past explicit or apparent inconsistencies.
In contrast, other commenters allege that our proposed
interpretation is an abrupt substantive change of agency policy,
particularly from the 1979 regulations and actions taken by the agency
in 1984 and 1985. The commenters assert that in the 1979 rulemaking
that established the permanent regulatory program regulations, the
agency indicated plainly that the jurisdictional term ``surface
operations and surface impacts incident to an underground coal mine''
included more than merely surface impacts attendant to the surface
operations, but instead included subsidence and other impacts attendant
to the underground coal removal itself. As discussed above, we continue
to acknowledge that subsidence can be a surface impact incident to an
underground coal mine. However, we do not regard this as inconsistent
with the final rule's interpretation of section 701(28). And to the
extent that our interpretation in this final rule may be a change from
any past interpretations, we gave notice in the proposed rule of the
proposed interpretation and rationale and acknowledged various past
inconsistencies, so that commenters have had full notice and
opportunity to comment.
Commenters further assert that the agency acknowledged in the 1979
rulemaking that the concept of VER applied to underground mining as
well as surface mining; an applicability that would be unnecessary if,
as the agency now posits, the prohibitions of section 522(e) did not
apply to underground mining in the first instance. Citing 44 FR 14993,
Mar. 13, 1979. We do not agree. As explained above, we continue to
interpret section 522(e) as applying to those aspects of underground
mining that are surface activities, and the areas and features affected
by, incident to, or resulting from surface activities, as set out in
more detail in SMCRA section 701(28)(B). Thus, we take the position
that 522(e) continues to apply to those aspects of underground mining
that constitute a surface coal mining operation. However, those aspects
do not include subsidence. Further, as discussed elsewhere in this
preamble, this interpretation is consistent with other rules
implementing SMCRA, including for example, our rules concerning bonding
and permitting, and our definition of ``adjacent area.''
Commenters believe that in the 1979 rules, when we addressed the
measurement of the 300-foot buffer zone, we tacitly determined section
522(e) did not apply to underground mining. They allege that our
subsequent actions contradict this strained analysis. They point out
that in 1981 we published our findings on Greenwood Land and Mining
Company's request for a determination of valid existing rights to
conduct underground coal mining operations in the Daniel Boone National
Forest in Pulaski and McCreary Counties, Kentucky. 46 FR 36758, July
15, 1981. These commenters assert that the discussion of the finding of
valid existing rights in that instance makes clear that:
(1) Valid existing rights was considered by OSM to be applicable to
underground mining activities under section 522(e) lands;
(2) The application of section 522(e) was not limited to face-up
areas and those surface areas on which were sited support facilities,
but also included the surface overlying underground workings; and
(3) The determination of VER was unrelated to potential subsidence
effects but rather attached to the geographic extent of underground
mine workings beneath protected lands. 46 FR 36759, July 15, 1981; 47
FR 56192-3, Dec. 15, 1982.
We do not agree with this characterization of our interpretation in
the Greenwood VER decision. In the July 15, 1981 FR notice laying out
the VER findings in Greenwood, we noted that VER was requested for
three mines, one of which would have five face-ups directed at the same
seam of coal. Our VER notice stated:
OSM is in the process of obtaining additional information in
order to determine the physical extent of the valid existing rights
claimed by Greenwood. OSM is considering basically two alternatives
in delineating the exact extent of the VER: (1) have VER over the
surface area affected by the face-up and support activities incident
to the underground mining; or (2) have VER over those areas
(including surface overlying underground workings) contemplated to
be affected under the operating plans submitted to the Forest
Service prior to August 3, 1977.
* * * OSM considers that Greenwood's valid existing rights
should have the same geographical extent as the mining Greenwood
contemplated and was committed to on August 3, 1977 * * *.
Because the geographical limits of VER will depend on the
evidence available, OSM has decided to reserve the right to use
either or both of these alternatives in defining the extent of
Greenwood's VER * * *. While the second alternative is preferable
and precise geographical limits will be determined wherever
possible, there may be cases where such a determination is
impossible. In those cases, the first alternative would have to be
used.
46 FR 36759, July 15, 1981.
Having concluded that the VER requester had established that it met
the ``all permits'' VER test, the 1981 determination addressed the
extent of the geographical area to which VER would apply. If available
documentation delineated for some mines or face-ups only the surface
area to be affected by face-up and support activities, VER would be
found for only that surface area. The areas over underground workings
were not to be delineated on the basis of whether subsidence would
occur, but rather solely on the basis of the documentation in mining
plans, of the area which Greenwood had committed to mine. If
documentation for a particular mine or face-up did not show that, as of
1977, the requester was
[[Page 70858]]
committed to a specific location and extent for associated underground
workings, then VER would extend only to the areas that documentation as
of 1977 showed would be affected by surface face-ups and support
activities. Thus, in this 1981 VER determination, we considered VER to
attach to those areas for which documentation demonstrated that the
mineral owner had committed to mine, as of August 3, 1977.
We note that we issued a similar VER determination approximately
one year earlier. That determination, concerning a VER request from
Mower Lumber Company, used a similar rationale for a VER determination
concerning a similar fact pattern. The requester proposed multiple
mines on National Forest lands, but the Forest Service required only
that the company show the planned extent of mining for six-month
intervals. Because there was evidentiary difficulty in determining
geographical limits for VER, we had proposed two options for
determining the geographical extent of VER. 45 FR 52468, Aug. 7, 1980.
Under the first alternative, the VER for the actual surface
disturbance, face-up, haul roads, etc., would be precisely defined,
but the company would be free to deep mine as much coal from the
permitted seam(s) as could be reasonably reached by current mining
methods using the precisely limited surface disturbances. Under the
second alternative, precise geographical limits would be set for
both the surface and underground workings. [Emphasis added.]
Notice of the final Mower VER determination was published on
September 17, 1980 (45 FR 61798). In that decision, we affirmed that
Mower had VER at the five mines in question, but reserved decision on
the exact extent of VER at all of the mines. We stated that
* * * [A]s a result of limited State and Federal regulation
prior to the passage of the Act, there is a limited amount of
information relevant to a precise definition of the extent of VER.
While the second alternative is preferable and precise geographical
limits will be determined wherever possible, there may be cases
where such determination is impossible. In those cases, the first
alternative would have to be used.
Id.
Although the language of the two decisions is quite similar, it is
not clear whether we were assuming in the later Greenwood case that the
same consequences specified in Mower would follow when documentation as
of 1977 showed only areas affected by surface activities. That is, if
documentation showed only areas to be disturbed by surface activities,
the operator would have VER only for those disturbed surface areas, but
could mine all areas reasonably reached using the surface disturbances.
And we reach no conclusion as to whether either alternative for VER
determination should be read to say that subsidence is prohibited under
522(e), since the decisions did not specifically address whether
subsidence was prohibited in the absence of VER. We are not aware of
any previous or subsequent VER determinations that utilized the
rationale of Greenwood or Mower. However, to the extent that either
decision may be read to be inconsistent with this final rule, this
final rule supersedes those earlier decisions.
Commenters believe that the Secretary [sic] reaffirmed the
prohibition on subsidence within section 522(e) areas in the decision
regarding privately held mining claims within the Otter Creek
Wilderness in West Virginia. The commenter notes the Secretary [sic]
stated that ``certain surface impacts to the wilderness could not be
avoided, namely subsidence and hydrologic effects. Thus, even the 22
percent accessible from outside the wilderness could not be recovered
without causing prohibited surface impacts inside the wilderness
area.'' 49 FR 31228, 31233, Aug. 3, 1984. To further support this point
of view, these commenters also point to a decision by OSM to require
two mining companies about to conduct underground mining operations
which would disturb the surface of federal lands to obtain permits
under SMCRA and subject them to the provisions of section 522(e)(2).
Ramex Mining Corp. v. Watt, 753 F.2d 521, 523 (6th Cir. 1985). As noted
above, in Part II.B.3. of this preamble, we agree that the Otter Creek
decision did conclude that subsidence from underground mining is a
prohibited surface impact under section 522(e). However, in part for
the reasons set out in Part III. A. of this preamble, we do not agree
that Ramex clearly supports the commenter's point. It is not clear from
the decision whether the Ramex operation would have included surface
activities on the national forest lands in question, and to conduct
such activities would require VER under any interpretation.
Commenters also allege that the proposed interpretation is an
abrupt substantive change from the 1988 proposed rule which proposed
two options: banning all subsidence, or banning subsidence causing
material damage; but did not seriously contemplate denying the
applicability of the prohibitions to any surface impacts associated
with underground mining. These commenters also assert that the preamble
to that proposed rule stated that ``The definition of `surface
operations and * * * impacts incident to an underground coal mine,' was
promulgated specifically to apply to 30 CFR 761.11(b), the rule which
implements the section 522(e)(2) prohibition against mining on Federal
lands in National forests.'' We indicated in our 1978-79 rulemaking
that, at a minimum, subsidence causing material damage was prohibited
in section 522(e)(2) areas[.]'' Citing 53 FR 52381, Dec. 27, 1988.
In December 1988, we proposed two alternative policies on the
applicability of section 522(e) to subsidence. One proposal was that
all subsidence would be subject to the prohibitions of section 522(e).
The other proposal was that subsidence causing material damage would be
subject to section 522(e). 53 FR 52374, Dec. 27, 1988. We withdrew the
1988 proposed rule. That withdrawal was not challenged , and no policy
was established by the 1988 proposal. Therefore, we are not required to
justify any changes from that withdrawn proposed rule. Nonetheless, we
did discuss in the 1997 proposed rule our reasons for departing from
the alternatives considered in the 1988 proposed rule. Those reasons,
which continue to apply, can be summarized as follows:
One alternative proposed in 1988 was based on the argument that
subsidence is a surface impact of underground mining, that surface
impacts of underground mining are surface coal mining operations under
section 701(28), and thus that all subsidence is a surface coal mining
operation prohibited under section 522(e). One problem with this
interpretation is that subsidence may or may not cause surface damage.
We believe that Congress did not intend to prevent subsidence that
causes no surface damage. All of the congressional concern about
subsidence from underground mining is expressed in discussions of the
damage caused by subsidence, and Congress repeatedly recognized that
there was little concern about subsidence that caused no significant
damage to surface features or uses or to human life or safety. See H.R.
Rep. No. 218, 95th Cong., 1st Sess. 126 (1977); H.R. Rep. No. 1445,
94th Cong., 2d Sess. 71-72 (1976); H.R. Rep. No.896, 94th Cong., 2d
Sess. 7374 (1976); H.R. Rep. No. 45, 94th Cong. 1st Sess. 115-116
(1976); H.R. Rep. No. 1072, 93d Cong., 2d Sess. 108-109 (1974). Indeed,
there is little reason to regulate or prohibit subsidence that does not
impair surface features and uses and does not endanger human life or
safety.
[[Page 70859]]
Thus, we conclude that application of the section 522(e)
prohibition to all subsidence would be unnecessarily restrictive, in
light of Congress' recognition that subsidence would typically cause no
significant damage to agriculture and similar uses. Many of the types
of features listed in section 522(e) are low-intensity uses that are
similar to agricultural land uses in that they have relatively low
vulnerability to significant damage from subsidence.
This 1988 proposed alternative was also based in part on the
argument that, given the serious congressional concern about
subsidence, it would be illogical to conclude that Congress did not
intend to include subsidence within the definition of ``surface coal
mining operations'' or that Congress would have allowed subsidence
within the areas protected by section 522(e). For two reasons, we do
not now find this argument persuasive.
First, under SMCRA, certain impacts of coal mining are subject to
regulation even if they are not included in the definition of a surface
coal mining operation and are therefore not subject to the prohibitions
of section 522(e). For example, offsite water supply diminution and air
and water pollution attendant to erosion are also specifically
regulated under SMCRA, even though they are not surface coal mining
operations per se. SMCRA sections 515(b)(4) and 717. 30 U.S.C.
1265(b)(4) and 1307. The same is true for subsidence. Therefore, it is
not necessary to include subsidence within the definition of a surface
coal mining operation in order to regulate subsidence under sections
516 and 720.
Second, as noted above, there are no significant lapses in
regulatory coverage under our proposed reading of SMCRA, since
subsidence is fully and specifically regulated under sections 516 and
720. The requirements of the existing regulatory scheme for subsidence
apply equally in areas covered by section 522(e) and in those not so
covered.
The other alternative that we proposed in 1988 was that subsidence
causing material damage is a surface coal mining operation subject to
section 522(e). Proponents of this alternative contend that Congress
intended that only subsidence that causes material damage be precluded.
Prohibition of material damage would not preclude underground mining of
all section 522(e)(4) and (e)(5) areas, because an operator could
either negotiate a waiver of the prohibition or purchase the protected
features.
We did not find the arguments for a material damage standard
persuasive for several reasons. First, as outlined above, a material
damage standard does not comport with the parsing of the definition at
SMCRA section 701(28)(A),which we believe best gives meaning to all of
the words of the statutory provision and therefore is the best and most
reasonable interpretation of the language of section 701(28).
Second, as outlined above, we believe the best interpretation is
that Congress intended to regulate subsidence under sections 516 [and
subsequently 720], rather than under section 522(e), as indicated by
both the provisions of the Act and the legislative history.
Third, application of a material damage test might result in
significant costs and impairment of underground mining. This is because
section 516(b)(1) requires prevention of material damage only ``to the
extent technologically and economically feasible,'' while a material
damage threshold for applying section 522(e) would require prevention
of all material damage.
We believe that, if subsidence causing material damage were
prohibited, an operator would be precluded from causing subsidence
except to the extent the operator could demonstrate that:
(1) Although subsidence might occur under the protected features,
no material damage would occur from the subsidence;
(2) The operation would avoid mining within the area from which
subsidence could damage the protected features; or
(3) Under the exceptions in section 522(e), the operator had, for
example, obtained waivers from homeowners or permission from the
regulatory authority concerning subsidence under public roads.
To the extent that these requirements would significantly increase
the costs of mining, or significantly decrease the amount of coal
available for mining, the material damage standard also would frustrate
Congress' expressed intent to encourage full utilization of coal, to
ensure an expanding underground mining industry and to encourage
longwall mining. For example, as we determined in the EIS concerning
this rulemaking, withholding of 10 percent of waivers for 522(e)(5)
homes could make longwall mining economically infeasible. See Final
EIS, 1999.
It is true that section 522(e) and section 561(c) would not be
coextensive in their coverage, assuming section 522(e) applied to
subsidence. Nevertheless, there would be a substantial overlap between
the two provisions. Moreover, as discussed above, we conclude that
subsidence was not intended to be addressed in section 522(e), and to
apply the prohibitions of section 522(e) to material damage from
subsidence would frustrate congressional aims in a way that is not
mandated by the terms of the Act or supported by its legislative
history.
Commenters also note that the coal states that already apply the
prohibitions of section 522(e) to subsidence must have concluded that
the prohibitions are fully consistent with a healthy coal industry. We
do not agree. As discussed above, with the exception of Colorado,
Illinois, Indiana, and Montana, states with active underground coal
mining do not prohibit subsidence in areas protected under section
522(e). Rather, states regulate the effects of subsidence pursuant to
sections 516 and 720 of SMCRA. Those regulations provide for the
mitigation, repair, and compensation for subsidence and material damage
to certain structures and to lands. As discussed, Montana has no
defined policy regarding the regulation of subsidence. This is due in
part to the fact that the State has only one underground mine, which
has not begun production. Montana did not submit comments on the
proposed rule. No states have commented that requiring states to apply
the 522(e) prohibitions to subsidence is appropriate. In fact, states
commented that the proposed rule would clarify, once and for all, that
certain prohibitions on surface mining near occupied dwellings, public
roads, and on federal lands within national forests, do not apply to
subsidence from underground mining.
State commenters unanimously support continuation of the status
quo; that is, the prohibitions of section 522(e) do not apply to
subsidence. State commenters agree with our analysis that adequate
means of control are available to the states and the federal government
through existing statutory provisions to insure that the effects of
subsidence are mitigated. The State commenters welcome clarification of
the statutory requirements and assert that the interpretation enables
the States to retain the flexibility that regulatory authorities need
to effectively regulate coal mining operations and protect the
environment.
The State of Colorado concurs with our interpretation, and
indicates that the State has ``always concurred with this
interpretation by practice.'' Colorado commented that the State
prohibits material damage to any structure through State regulations
pursuant, in part, to section 516 of SMCRA. Further, the State noted
that, although it does not invoke the prohibitions of section 522(e)
[[Page 70860]]
in addressing subsidence impacts of proposed underground coal mining,
the State consistently requires subsidence inventories and control
plans to identify and mitigate any potential ``material damage'' due to
subsidence of structures or renewable resource lands. Colorado
confirmed that it does not allow material damage to structures even
with landowner waivers or VER.
Illinois also supports our interpretation inasmuch as Illinois
prohibits planned subsidence in section 522(e) areas. Illinois
indicates that they have ``historically applied the prohibitions of
section 761.11 ``indirectly'''. An internal State policy was intended
to provide protective procedures when planned, predictable and
controlled subsidence was proposed under dwellings and roads. Under the
State program, planned subsidence operations are required to establish
VER via a ``takings test'' prior to subsiding the protected lands and
features. However, absent VER, Illinois would allow subsidence within
the established buffer zones if:
(1) The right to subside within the buffer zone was established,
and
(2) The protected land or feature in question would not be
materially damaged or adversely impacted by the adjacent subsidence
operations.
In their comments, Illinois agrees with our analysis that existing
regulations and the Federal subsidence regulations (60 FR 16722, Mar.
31, 1995) provide adequate safeguards to protect the public without
applying the prohibitions enumerated under section 761.11. Illinois
also points out that if VER were to apply, the good faith all permits
standard would effectively eliminate longwall mining under most
protected features. Illinois believes the ability to permit planned
subsidence that would either not impact a protected feature, or could
be effectively mitigated would be arbitrarily lost as few operators
could pass the good faith all permits standard.
Indiana also supports our interpretation that the prohibitions of
section 522(e) do not apply to subsidence because it best fits
Congressional intent to encourage underground mining in SMCRA. Indiana
applies the 522(e) prohibitions unless a waiver or other form of
``subsidence right'' is obtained. Indiana requires proof of acquisition
of the right to subjacent support, or a waiver, to conduct planned
subsidence mine operations. Indiana indicates that adoption of the
proposed interpretation will not change Indiana's regulatory program
because either one of these two conditions is necessary regardless of
the existence of 522(e) buffer zones. Indiana notes that our
interpretation protects both Indiana homeowners and the development of
Indiana's valuable natural energy resources as required by Congress.
Indiana believes that:
(1) A change from the proposed rule would require a major overhaul
of its regulatory program without a commensurate benefit to the
citizens, the environment, the economy or the State; (2) without a
demonstrated need, a requirement to overhaul the state subsidence
programs would waste state and federal resources provided by the
taxpayers;
(3) The regulations, and in some cases Indiana's SMCRA, would need
to be rewritten which would take several years;
(4) The rules would have to be written to require the entire shadow
area to be included in the permit area, and therefore bonding for the
shadow area would be required; and
(5) Rules would be needed to address bond release for revegetation
and structural restoration requirements.
D. Regulatory Gap--Adequacy of SMCRA Protection of 522(e) Features From
Subsidence Damage
Some commenters disagree with our statement in the proposed rule
preamble (62 FR 4868-69, 4871, Jan. 31, 1997) that sections 516 and 720
adequately address subsidence. Commenters believe the mandatory duty,
imposed by the first clause of section 516(b)(1), to prevent subsidence
damage is softened by (1) limiting its scope to cover only ``material''
subsidence damage and (2) including a feasibility standard ``to the
extent economically and technologically feasible''. We do not agree.
Other commenters believe that the ``material damage'' standard for
regulating subsidence from underground mines is a flexible enough
concept to provide heightened scrutiny of any permit application for
mining beneath (e)(1) areas. We believe that subsidence protections
under section 516 and 720 are adequate. We believe the legislative
history demonstrates that these sections address the subsidence impacts
Congress was concerned about, and we believe it is clear Congress
intended to impose these limitations.
Some commenters assert that section 522(e) reflects Congress's
determination that certain special areas require more protection than
section 516(b)(1) can offer. Furthermore, in these limited areas,
commenters believe Congress imposed on operators a mandatory duty not
only to prevent subsidence from causing material damage to the extent
feasible, but to prevent it altogether. They also note that the
Secretary advanced, and the D.C. Circuit upheld, an interpretation
providing that section 516(b)(1) does not mandate the restoration of
structures damaged by subsidence. [This interpretation predated
enactment of SMCRA section 720.] National Wildlife Fed'n v. Lujan, 928
F.2d 453 at 456-60 (D.C. Cir. 1991). These commenters allege that, if
the Secretary [sic] believes Congress intended this interpretation of
section 516(b)(1), it is all the less likely Congress intended
dwellings and the other important structures listed in section 522(e)
to be left without the benefit of section 522(e)'s preventive mandate.
We do not agree. We believe that in section 522(e) areas, Congress did
not intend to prohibit subsidence, but rather to prohibit those surface
activities and those areas and features resulting from, incident to, or
affected by surface activities, that are surface coal mining operations
within the terms of 701(28).
Commenters point to a discussion of the 1988 proposed rule in the
M-Op: ``[M]any of the types of features listed in section 522(e) are
low-intensity uses that are similar to agricultural land uses in that
they have low vulnerability to significant damage from subsidence.''
These commenters believe Congress included national parks, wilderness
areas, and other key recreational lands in section 522(e), but excluded
agricultural land, and that the Secretary [sic] ignored this fact. The
commenters further conclude that Congress did not consider farmland
``similar'' for purposes of section 522(e). Moreover, referring to a
draft EIS that accompanied an earlier VER proposed rule, the commenters
submit that the Secretary conceded that the impacts of subsidence on
such ``low-intensity'' land uses as national parks and wilderness areas
are quite serious indeed.
We disagree with these commenters' conclusions. We continue to
believe many features protected under section 522(e) have low intensity
uses that are not particularly vulnerable to subsidence damage, similar
to certain low-intensity uses viewed by Congress as having low
vulnerability. The fact that Congress did not address agricultural
lands in section 522(e) is not particularly relevant to this point.
We believe the EIS accompanying this rulemaking best evaluates the
relative impacts of the alternatives considered for this rulemaking. An
extensive discussion of this issue can be found in Chapter IV of the
EIS accompanying this rulemaking. See Final EIS, 1999.
[[Page 70861]]
Section 522(e) areas with low-intensity uses that are not
particularly vulnerable to significant damage from subsidence may
include many (e)(1), (2), (3), and (4) areas, as well as many (e)(5)
public parks. But in any case, we do not argue that subsidence will
never have impacts on the surface of 522(e) lands. And, as discussed
above, we believe Congress was concerned with subsidence only insofar
as it causes significant damage or danger, and was focused on control
rather than prohibition of subsidence.
Another group of commenters argue that nothing in sections 516 and
720 purports to modify either section 522(e) or the definition of
``surface coal mining operations'' in section 701(28). The commenters
go on to note that Congress has clearly provided in sections 516 and
720 that subsidence is (subject to exceptions) prohibited in section
522(e) areas and that it is not the Secretary's [sic]'s prerogative to
substitute the Department's views of public policy for Congress's.
We agree that neither section 516 nor section 720 modifies section
522(e) or section 701(28). However, we disagree with these commenters'
other conclusions. Based on a plain reading of the language of the
relevant provisions we also believe that neither section 516 nor
section 720 includes provisions that specifically interpret 522(e) and
its applicability to subsidence. We believe that Congress intended
section 516(c) [and subsequently 720], in combination with other
regulatory provisions of SMCRA, to offer sufficient regulation of
subsidence damage to those features that Congress considered vulnerable
to significant impairment from subsidence. We believe that the
existence of this comprehensive regulatory scheme in section 516 [and
subsequently 720] makes it unlikely that Congress also intended to
prohibit subsidence under section 522(e).
Another group of commenters argue that our interpretation of the
language at section 516(d), as well as the language itself, confirms
that subsidence is a ``surface impact [ ] incident to an underground
coal mine'' within the meaning of sections 701(28) and 522(e). These
commenters further note that section 516(d) applies to ``surface
operations and surface impacts incident to an underground coal mine'',
and that this is essentially the same language used in sections
701(28)(A) and 522(e)(2)(A).
Commenters also argue that our rulemaking invoking section 516(d)
as authority for a regulation requiring bonds for subsidence
demonstrates that we have in the past deemed subsidence to fall within
the scope of this key phrase. We agree that subsidence can be a surface
impact incident to an underground coal mine. However, as outlined
above, we do not agree that a surface coal mining operation includes
surface impacts per se; rather this term includes surface activities
(under section 701(28)(A)) and the surface features affected by those
activities (under section 701(28)(B)).
One group of commenters argues that our reasoning that subsidence
must be regulated only by sections 516 and 720 is nullified since
sections 516 and 720 do not contain all the requirements which apply to
underground activities. Commenters argue that subsidence is also
regulated under other sections. As noted above, we agree that other
SMCRA provisions may apply to subsidence and subsidence-related
impacts. However, performance standards for subsidence are set out
primarily in sections 516 and 720. And, we believe that no regulatory
gap results when section 522(e) does not apply to subsidence because
sections 516 and 720 provide ample authority to regulate surface
effects of underground mining under existing regulations. The detailed
description of the existing relevant regulations in Part I of this
preamble demonstrates that our permanent program regulations
implementing sections 516 and 720 provide broad subsidence protection;
that a prohibition of subsidence within the buffer zones around
dwellings, roads, and other surface features listed in section 522(e)
would be superfluous; and that no regulatory gap results from our
interpretation. We have full authority under sections 516 and 720 and
other SMCRA provisions, to develop additional regulations to protect
any environmental values or public interests that warrant additional
protection beyond that currently provided.
Some commenters assert that section 720 does not provide complete
protection against mining impacts, and certainly does not give the same
protection to the interests of surface landowners that section 522(e)
would give if applied to subsidence under homes. Furthermore,
commenters believe that while the law requires water supply replacement
and subsidence compensation or repair, implementation of that law is
problematic in the best of circumstances. Commenters argue that even in
cases where subsidence is the causation, it is difficult to prove that
the water loss is mine-related. Commenters also note that there can be
a cost to the homeowner for hiring counsel or private consultants to
develop evidence; and that it can take months or years to get water
replacement. Commenters further argue that such replacement is rarely
of comparable quality, and certain state laws, such as Pennsylvania
law, do not extend the full protections intended by section 720.
Further, commenters believe that some losses and impacts, even where
mine-related, are not addressed by provisions other than section
522(e). Commenters note that unremediated impacts may include: the loss
of use or habitability of a structure due to water loss, cost of
temporary housing during such water loss; the ruined pumps, stained
clothing and fixtures; and destroyed washers, dryers and other
appliances. We agree that the impacts of subsidence on property owners
are very real. These impacts can include, for example, emotional stress
from the process of being subject to subsidence, lost productivity,
potentially depressed property values, and other economic impacts.
However, we believe that SMCRA addresses these impacts under sections
516 and 720, and related regulatory provisions, to the extent that
Congress intended to address them in SMCRA.
Commenters allege that the subsidence regulations published in
March 1995, as mandated by EPAct, are very limited and inadequate to
protect section 522(e) resources from subsidence. Furthermore,
commenters believe the EPAct is limited to subsidence damage ``to any
occupied residential dwelling and structures related thereto, or non-
commercial building'' and damage to ``any drinking, domestic, or
residential water supply from a well or spring in existence prior to
the application for a surface coal mining and reclamation permit''.
Commenters assert that many section 522(e) structures are among the
areas that lack EPAct protection. During the preparation of the final
regulation implementing EPAct, timely comments concerning the merits of
the rulemaking were considered; and further comments on the adequacy of
the protection established by Congress in EPAct's provisions on
subsidence protection, or on the rules implementing those provisions,
are outside the scope of this rulemaking.
Commenters point to a lawsuit that was subsequently filed against
the Department of the Interior, alleging that our 1995 subsidence
regulations, (62 FR 16722, Mar. 31, 1995) went beyond the intent of the
Energy Policy Act. Commenters argue that even if the EPAct regulations
are upheld, every provision will likely be the subject of prolonged
disputes, appeals and
[[Page 70862]]
litigation by coal operators who are reluctant to minimize damage, pay
compensation or make repairs. Commenters assert that the existence of
any real or imagined basis for dispute will be exploited by coal
operators who will delay resolution for years until courts provide
absolute answers and that these disputes will cause major delays and
lack of repair and compensation. We disagree with the commenters'
assumption regarding anticipated problems in implementation. We expect
the rules will be implemented in good faith, and that any disputes as
to proper implementation are appropriately handled through existing
administrative and judicial procedures on a case-by-case basis.
Further, these comments address anticipated concerns about
implementation of a separate rulemaking and are outside the scope of
this rulemaking.
Commenters express concerns that the Secretary's [sic]
interpretation will place an additional economic burden on homeowners
and will threaten the recreational value of national parks and other
protected lands. These commenters point to statements in the M-Op that:
We have seen no firm or final conclusion as to the extent to
which costs and impairment would occur. Review of a preliminary
draft Environment [sic] Impact Statement indicates that OSM has
initially determined that there would be no significant decrease in
coal production from application of a material damage standard.
Citing M-Op at 21, n.27 [100 I.D. 85 at 99, fn 27].
Commenters then point to another statement in the M-Op:
[If] that is true, interpreting section 522(e) as prohibiting
subsidence causing material damage would add nothing to the
protections already afforded by section 516(b)(1).'' Id.
Commenters argue that application of section 522(e) to subsidence,
while not adversely affecting coal supply or price, will provide key
benefits by shifting subsidence-prone underground mining outside of the
important areas protected by section 522(e).
These commenters are addressing statements that are not included or
relied on in either the proposed or final rule. The referenced
statements were made by the Solicitor in a footnote in the 1991 M-Op
before preparation of the Draft EIS or Final EIS for this rulemaking.
As quoted by the commenters, the Solicitor noted that at the time of
preparing the M-Op he had seen no firm or final conclusion as to the
extent to which costs and impairment would occur. Thus, the Solicitor
acknowledged that his tentative evaluation in the 1991 footnote had no
basis in current and firm analysis by OSM. We believe the Final EIS and
EA that accompany this rulemaking best evaluate the relative impacts of
the alternatives considered in this rulemaking. See Final EIS, 1999;
Final E A, 1999.
Those documents indicate that the application of section 522(e)
prohibitions to subsidence would have relatively small impact on the
overall extent of mineable coal reserves. However, we do not agree that
there would be little impact on coal costs for the nation. The Economic
Analysis, which was prepared under guidelines issued by the Office of
Management and Budget (OMB), demonstrates that, if waiver withholding
rates were to exceed 10% a substantial part of the longwall mining
industry could be shut down. Mining would shift to alternative coal
reserves but at an additional cost to the nation estimated to be
upwards of $2.65 billion over the next 20 years. The commenter is
referred to Chapter V of the Final EA for additional details. We
considered both costs and benefits in analyzing alternative rules
concerning the application of 522(e) prohibitions to subsidence. In our
EIS and EA, we attempted to analyze sufficient cost and benefit
information (both quantitative and qualitative) to determine the
relative magnitude of net costs and benefits for the entire country
from alternative subsidence rules.
Commenters also charge that the SMCRA post-subsidence bonding
regulations are inadequate to protect the homeowner, particularly if
subsidence does not occur for several years. The commenters allege that
when the bond is needed to cover subsidence-related damage, the company
that caused the subsidence may have been dissolved, gone bankrupt or
lack sufficient resources to ensure an adequate bond. These comments
address anticipated concerns about implementation of a separate
rulemaking addressing subsidence issues (60 FR 16722, Mar. 31, 1995),
and therefore the comments are outside the scope of this rulemaking. We
expect that any disputes as to proper implementation are appropriately
handled through existing administrative and judicial procedures.
One commenter referenced a local (Alabama) study that concluded
that, after eight years the subsidence over a longwall panel is still
measurable. The commenter believes this study supports his assertion
that subsidence is not a short term effect. The commenter believes that
subsidence precludes the area above longwall mining from use for any
significant residential or other structures. He further notes that in
addition to the protracted changes that subsidence brings, all affected
insurance companies studied have terminated casualty homeowner's
insurance in the vicinity of longwall mining. The commenter provided no
documentation of this allegation, but we agree this may be a serious
concern. However, it appears that this concern is primarily the result
of local insurance practices, and outside the scope of this rulemaking.
We did not receive any other comments to this effect.
E. Impacts on Underground Mining if Prohibitions Do Apply to Subsidence
As discussed in this preamble, after considering the comments on
this matter, we continue to believe that subsidence is possible from
room-and-pillar underground mining and other underground technologies,
and is a virtually inevitable consequence of longwall mining.
Therefore, prohibiting subsidence below homes, roads, and other
features specified in section 522(e) could make mining substantially
less feasible and could substantially reduce coal recovery in areas
where these features are common .
As discussed previously in this preamble, if the section 522(e)
prohibitions applied to subsidence from underground mining, mining
would be precluded in all portions of the underground workings where
mining would cause subsidence affecting a protected surface feature.
Thus, to ensure that subsidence would not take place within a surface
area specified in section 522(e), underground mine operations would be
required to leave coal in place around each protected feature for a
horizontal distance much larger than the protected area. In many cases,
the amount of coal left in place to support dwellings would result in a
pattern of irregular mined areas that would eliminate the contiguous
coal reserves needed to make longwall operations economic.
Consequently, few new longwall mines would be opened. As discussed in
the Economic Analysis, if waiver withholding rates were to exceed 10% a
substantial part of the longwall mining industry could be shut down.
Mining would shift to alternative coal reserves but at an additional
cost to the nation estimated to be upwards of $2.65 billion over the
next 20 years.
F. Codification of the final rule
In the proposed rule (62 FR 4871, Jan. 31, 1997) , we solicited
comments on the need to amend 30 CFR Chapter VII to codify our
interpretation that section 522(e) does not apply to subsidence from
underground coal mining
[[Page 70863]]
activities, or the underground activities that may lead to subsidence.
A group of commenters suggested that we should codify this
interpretation. We agree and have codified the interpretation at 30 CFR
761.200. Codification will allow interested persons to ascertain our
policy from the regulations at 30 CFR part 761, without having to
locate and refer to the Federal Register preamble for this rulemaking.
IV. Procedural Matters
A. Executive Order 12866: Regulatory Planning and Review
This document is a significant rule and has been reviewed by the
Office of Management and Budget under Executive Order 12866.
(a) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. This determination is based on a cost benefit analysis
which was prepared for the final rule. The cost benefit analysis
indicated that the cost increase resulting from the rule will be
negligible. A copy of the analysis is available for inspection at the
Office of Surface Mining, Administrative Record--Room 101, 1951
Constitution Avenue, NW, Washington, D.C. 20240. A single copy may be
obtained by writing OSM or calling 202-208-2847. You may also request a
copy via the Internet at: osmrules@osmre.gov.
(b) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. The rule
will not significantly change costs to industry or to the Federal,
State, or local governments. Furthermore, the rule will have no adverse
effects on competition, employment, investment, productivity,
innovation, or the ability of United States enterprises to compete with
foreign-based enterprises in domestic or export markets.
(c) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients because the rule does not effect such items.
(d) This rule does raise novel legal and policy issues as discussed
in the preamble.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
the Department of the Interior certifies that this rule will not have a
significant economic impact on a substantial number of small entities.
This certification is based on the findings that the rule will not
significantly change costs to industry or to the Federal, State, or
local governments. Furthermore, the rule will have no adverse effects
on competition, employment, investment, productivity, innovation, or
the ability of United States enterprises to compete with foreign-based
enterprises in domestic or export markets.
C. Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act, because it will not:
--Have an annual effect on the economy of $100 million or more.
--Cause a major increase in costs or prices for consumers; individual
industries; Federal, State, or local government agencies; or geographic
regions because the rule does not impose any substantial new
requirements on the coal mining industry, consumers, or State and local
governments. It essentially codifies current policy.
--Have significant adverse effects on competition, employment,
investment, productivity, innovation, or the ability of U.S.--based
enterprises to compete with foreign-based enterprises for the reasons
stated above.
D. Unfunded Mandates Reform Act of 1995
This rule does not impose an unfunded mandate on State, local, or
Tribal governments or the private sector of more than $100 million per
year. The rule does not have a significant or unique effect on State,
local or Tribal governments or the private sector. Therefore, a
statement containing the information required by the Unfunded Mandates
Reform Act (1 U.S.C. 1531, et seq.) is not required.
E. Executive Order 12630: Takings
In accordance with Executive Order 12630, this rule does not have
significant takings implications. The rule is an interpretative rule
which does not alter existing regulatory requirements.
F. Executive Order 13132: Federalism
In accordance with Executive Order 13132, this rule does not have
Federalism implications. The rule does not impose any new regulatory
requirements. The rule:
(a) Does not substantially and directly affect the relationship
between the Federal and State governments;
(b) Does not impose substantial direct compliance costs on States
or localities; and
(c) Does not preempt State law.
G. Executive Order 12988: Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rule (1) does not unduly burden the
judicial system and (2) meets the requirements of sections 3(a) and
3(b)(2) of the order.
H. Paperwork Reduction Act
This rule does not contain collections of information which require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
I. National Environmental Policy Act of 1969 and Record of Decision
This rule, issued in conjunction with the rule defining Valid
Existing Rights (RIN 1029-AB42), constitutes a major Federal action
significantly affecting the quality of the human environment under the
National Environmental Policy Act of 1969 (NEPA). Therefore, we have
prepared a final environmental impact statement (EIS) pursuant to
section 102(2)(C) of NEPA, 42 U.S.C. 4332(2)(C). A separate notice of
the availability of the EIS was published by the Environmental
Protection Agency in this edition of the Federal Register. A copy of
the final EIS, Proposed Revisions to the Permanent Program Regulations
Implementing Section 522(e) of the Surface Mining Control and
Reclamation Act of 1977 and Proposed Rulemaking Clarifying the
Applicability of Section 522(e) to Subsidence from Underground Mining,
OSM-EIS-29 (July, 1999) is available for inspection at the Office of
Surface Mining, Administrative Record--Room 101, 1951 Constitution
Avenue, NW, Washington, D.C. 20240. A single copy may be obtained by
writing OSM or calling 202-208-2847. You may also request a copy via
the Internet at: osmrules@osmre.gov.
This preamble serves as the Record of Decision under NEPA. Because
of the length of the preamble, the following is offered as a concise
summary. The EIS that was prepared addressed the general setting of the
proposal, its purpose and need, the alternatives considered, existing
environmental protection measures, the affected environment, the
environmental consequences, and overall consultation and coordination
activities. In addition, the EIS discussed the regulatory protections
of SMCRA.
We used a generic mine impact analysis on a hypothetical site-
specific basis to describe impacts to certain
[[Page 70864]]
resources when surface and underground mining operations are conducted
within, and adjacent to, section 522(e) areas (see Chapter IV of the
EIS). In addition, we estimated the coal resources within the areas
defined by section 522(e) and subjected them to various tests and
assumptions to provide an estimate of the number of acres over a 20
year period (1995 to 2015) that could be affected. Using the generic
mine impact analysis and the potentially affected acreage of section
522(e) areas, we was able to provide a measure of the relative degree
of potential impacts under each alternative. Finally, we evaluated the
combined effects of the VER and the Prohibitions alternatives to
describe the impacts of underground mining.
Alternatives Considered
We identified five alternatives for determining the applicability
of the section 522(e) prohibitions to subsidence resulting from
underground coal mining. None of the alternatives authorizes mining. A
person must submit a permit application that complies with all
applicable permitting requirements in order to obtain a permit to mine.
All Federal permitting decisions require site-specific NEPA compliance
in addition to this EIS. The alternatives considered are No Action,
Prohibitions Apply, Prohibitions Apply If There Is Material Damage,
Prohibitions Apply If There Is Subsidence, and Prohibitions Do Not
Apply (preferred prohibitions alternative).
No Action (NA) Alternative: Under the NA alternative, we would not
promulgate rules and we would be guided by the Solicitor's Memorandum
Opinion (M-36971) of July 10, 1991, which advised that subsidence from
underground mining is properly regulated solely under SMCRA section 516
and not under section 522(e). Under this alternative, States would
continue to regulate subsidence as provided in their approved
regulatory programs.
Prohibitions Do Not Apply (PDNA) Alternative: This was the
preferred alternative. Under this alternative we would determine
through rulemaking that subsidence is not a surface coal mining
operation subject to the prohibitions of section 522(e). This
rulemaking would conclude, consistent with the Solicitor's opinion,
that the SMCRA definition of surface coal mining operations, set out in
SMCRA Section 701(28), includes only surface activities and the
facilities and areas affected by or incidental to these surface
activities, and that subsidence from underground mining would not be
deemed a surface coal mining operation. The performance standards in
sections 516 and 720 of SMCRA and the implementing regulations in 30
CFR Parts 783, 784, and 817 would still apply. Surface activities and
surface features affected by surface activities in connection with
underground coal mining would be subject to the prohibitions of section
522(e).
Prohibitions Apply If There Is Material Damage (PAMD) Alternative:
Under this alternative we would determine through rulemaking that
subsidence causing material damage would be a surface coal mining
operation subject to the prohibitions of section 522(e). Unless an
operator could demonstrate that underground mining would not reasonably
be expected to result in subsidence that causes material damage,
underground mining would be prohibited in section 522(e) areas.
Prohibitions Apply If There Is Subsidence (PAS) Alternative: Under
this alternative we would determine through rulemaking that subsidence
would be considered a surface mining activity subject to the
prohibitions of section 522(e). Mining operations that would cause
subsidence within section 522(e) areas in the reasonably foreseeable
future would be prohibited unless the applicant could demonstrate to
the regulatory authority that no subsidence would occur in the
foreseeable future.
Prohibitions Apply (PA) Alternative: Under this alternative we
would determine through rulemaking that any potential subsidence would
be considered a surface coal mining operation subject to the
prohibitions of section 522(e). Depending on the angle of draw, depth,
and overburden and seam characteristics, some coal extraction
activities located outside the protected area would also be prohibited
if it would cause subsidence within the protected area.
Decision
For the reasons set forth in this preamble, OSM interprets section
522(e) as not applying to subsidence from underground mining. This
decision is based on an extensive analysis of the statute, the
legislative history, relevant case authority, public comments, and our
regulatory actions with respect to the applicability of section 522(e)
to subsidence from underground mining. With certain exceptions, section
522(e) prohibits ``surface coal mining operations'' on certain
congressionally designated areas. The best reading of section 701(28)
is that ``surface coal mining operations'' does not include subsidence,
and that therefore the prohibitions of section 522(e) do not apply to
subsidence from underground mining. This is consistent with legislative
intent. Subsidence is properly regulated under sections 516 and 720 and
related provisions of SMCRA and not under section 522(e). Although
regulation under sections 516 and 720 and related provisions may not
have precisely the same effect as regulation under section 522(e),
regulation under sections 516 and 720 will achieve full protection of
the environmental values which Congress sought to protect from
subsidence under SMCRA while encouraging longwall mining. This
interpretation will promote the general statutory scheme of SMCRA and
fully protect the environment and the public interest. We also believe
this interpretation best balances all relevant policy considerations,
including the competing environmental and economic considerations
involved in this rulemaking.
The language of SMCRA demonstrates that Congress intended to
encourage underground mining, especially full-extraction methods such
as longwall mining, and application of the prohibitions of section
522(e) to subsidence could substantially impede longwall and other
full-extraction mining methods. Therefore, including subsidence in the
definition of ``surface coal mining operations'' at section 701(28),
and application of the section 522(e) prohibitions to subsidence, would
fail to accommodate congressional recognition of the importance of
underground mining and longwall mining in particular.
The final decision balances the interests of surface owners and
industry, maintains stability in SMCRA implementation, promotes safety,
acknowledges existing property rights, and results in no regulatory
gap. The following points discuss the findings with respect to these
considerations.
(a) Balances the interests of surface owners and industry: Our
interpretation recognizes that in most cases the mineral owner
purchased the property right to undermine, and probably to subside,
upon acquisition. Thus, our interpretation best balances both the
surface and mineral owner's interests, because our interpretation
ensures that both the public interest and the property rights of the
surface owner are protected under SMCRA's subsidence control
requirements while allowing the mineral owner to make the safest and
most efficient use of their mineral rights consistent with those
subsidence control requirements.
[[Page 70865]]
(b) Maintains stability in SMCRA implementation: The final rule
will cause minimal disruption to existing and longstanding State and
Federal regulatory programs and the expectations associated with them.
The existing provisions adequately protect section 522(e) features and
therefore do not require change. Thus, this rule avoids unnecessary
change in state administration of regulatory programs, enables the
states to retain flexibility in regulating coal mining operations and
protecting the environment, and allows states to address differences in
terrain, geology, and other conditions when regulating subsidence.
Finally, application of the section 522(e) prohibition to
subsidence could require a major overhaul of State regulatory programs
without a commensurate benefit to the citizens, the environment, the
economy or the State. Existing subsidence controls pursuant to State
and Federal programs properly implement SMCRA. Without a clearly
demonstrated need, a requirement to impose new administrative burdens
and costs would waste State and Federal resources.
(c) Promotes safety: Longwall mining has become the safest and most
productive and economic underground mining method. The result of this
mining technique is almost immediate subsidence that is highly
predictable as to how much the surface will subside. In terms of worker
safety, the longwall system also offers a number of advantages over
room-and-pillar mining. It improves safety through better roof control
and reduction in the use of moving equipment. It eliminates roof
bolting at the working face to support the mine roof, and it minimizes
the need for dusting mine passages with inert material to prevent coal
dust explosions. It involves no blasting and attendant dangers. It also
recovers more coal from deeper coalbeds than does room-and-pillar
mining. Thus, if longwall mining is not precluded, it will continue to
provide greater safety and faster, more controlled, and more quickly
mitigated subsidence damage.
(d) Acknowledges existing property rights: The final rule
recognizes existing property rights and avoids certain potential
compensable takings of property interests. In most cases of severed
coal rights, the severance also conveys the property right to undermine
the surface, and may include the right to subside; and any such rights
would still limit or burden the surface property rights. We believe
failure to allow exercise of these conveyed rights would be inequitable
and could risk compensable takings. The final rule allows the holder of
such mining and subsidence rights to continue to exercise them, subject
to existing SMCRA regulation.
(e) No regulatory gap: Under the final rule, no regulatory gap
occurs as a result of section 522(e) not applying to subsidence,
because sections 516 and 720 and related SMCRA provisions provide ample
authority to regulate surface effects of underground mining under
existing regulations. Our regulations implementing sections 516 and 720
provide broad subsidence protection. A prohibition of subsidence within
the buffer zones around dwellings, roads, and other surface features
listed in section 522(e) would be superfluous. In addition, if there
are any environmental values or public interests that warrant
additional protection beyond what is currently provided, we have full
authority under sections 516 and 720 and other SMCRA provisions, to
develop additional regulations to protect such values or interests,
without the disruption in the longwall mining industry that would
result from applying section 522(e) prohibitions to subsidence.
Environmental Effects of the Alternatives
With the exception of section 522(e)(2) National Forest lands and
(e)(3) historic sites, impacts to the protected areas under the
prohibitions alternatives would be influenced by the choice of the VER
standard. In general, the less restrictive VER alternatives (Ownership
and Authority (O&A), Bifurcated (BF), and in some cases Good Faith All
Permits or Takings (GFAP/T)) would allow mining that might otherwise be
restricted under the PA, PAS, and PAMD prohibitions alternatives. If a
more restrictive VER definition were applied (Good Faith All Permits
(GFAP), and in some cases GFAP/T), the protections that are generally
envisioned under the PA, PAS, and PAMD prohibitions alternatives would
continue to apply to the 522(e) areas.
PDNA Alternative: Under the PDNA Alternative, disturbances from
subsidence to protected resources, other than the (e)(5) public parks,
are predicted to be consistent under all VER alternatives. For (e)(5)
public parks, the GFAP VER alternative restricts the mining of coal
resources because operations are unable to install surface facilities
(ventilation shafts, roads, mine face-ups, and coal handling areas)
within the protected areas. Such a restriction was predicted to result
in as much as 45% less acreage disturbed than under the other PDNA
alternative combinations. Under the PDNA Alternative, it appears that
approximately 3,560 acres of section 522(e)(1) areas would be affected
by subsidence over the next 20 years. The current DOI buy-out policy is
not triggered by underground activities causing subsidence, under the
PDNA Alternative.
The greatest level of impact from this alternative is predicted for
522(e)(5) occupied dwellings. The model predicts that approximately
158,161 acres (29,600 dwellings) would be affected over a 20 year (1995
to 2015) period. While this predicted impact would be partially
mitigated through regulatory subsidence control requirements, it does
represent a significant amount of disruption to the dwelling owners,
families, and communities. It is the same level of impact that is
predicted if OSM merely maintained the status quo by choosing the No
Action Alternative.
No Action Alternative: The impacts that would result from selection
of the No Action Alternative would be essentially the same as the PDNA
alternative in combination with the GFAP VER Alternative.
PA, PAS, and PAMD Alternatives: The impacts predicted for these
alternatives are influenced by the VER definition in place. If any of
these prohibitions alternatives were combined with the O&A and BF VER
definitions, the acres impacted would be essentially the same as under
the PDNA Alternative. Applying a more restrictive VER definition would
decrease the level of subsidence impact on the protected resources.
Under the GFAP/T VER definition, section 522(e)(1) and (e)(5) public
parks would still be predicted to be impacted because the model
predicts that VER would be granted in many cases. Potential impacts on
the 522(e)(1) lands and (e)(5) public parks would be substantially
reduced if the GFAP VER definition were applied. Use of the GFAP
alternative would also eliminate much of the projected DOI buy-out
cost.
The PA, PAS, and PAMD Alternatives, in combination with either the
GFAP or GFAP/T VER alternative, would allow occupied dwelling owners to
withhold waivers when projected subsidence impacts reached the
threshold level. In the absence of a waiver under these alternatives,
the prohibition would preclude subsidence impacts on dwellings. It
appears that the acres affected under the PA, PAS, and PAMD
alternatives would be 7.0%, 5.7%, and 5.4% less (respectively) than
those disturbed under alternatives where the prohibitions were not
applicable.
[[Page 70866]]
In terms of economic effect, the PA, PAS, and PAMD alternatives in
combination with the GFAP or GFAP/T alternatives would prevent new
eastern longwall mining operations. This effect would begin to occur
where dwelling waiver denial rates approached 10%. In summary, if the
PA, PAS, or PAMD alternative were selected by the agency and the waiver
denial rate were between 2% to 8%, the effect on the economy would
likely be a savings of $5 to $7.7 million dollars with little or no
increase in the cost of coal production. If the waiver denial rate is
10% or greater, the savings to the economy in reduced house and road
repair would range from $15.2 to $62.4 million over a 20 year period.
This savings, however, would be offset for the national economy by at
least an additional $2.6 billion dollars in coal production and
transportation costs.
Based upon potential impacts to Section 522(e) acres, the PA
standard is the environmentally preferable alternative. The PA standard
would minimize impacts to important environmental resources and would
give surface owners a greater degree of control over subsidence impacts
to the land. However, based upon the statutory, economic, technical,
environmental, and other policy considerations discussed in this
preamble, OSM has selected the PDNA alternative.
Mitigation, Monitoring and Enforcement
We have adopted all practicable means to avoid or minimize
environmental harm from the alternatives selected. Under SMCRA
performance standards, impacts to important resources are avoided or
mitigated. The performance standards address: topsoils and subsoils,
hydrologic balance, explosives, excess spoil, coal mine waste disposal,
fish and wildlife, backfilling and grading, revegetation, subsidence,
postmining land use, public safety, and exploration.
The primary purposes of SMCRA include: establishing a nationwide
program to protect society and the environment from the adverse effects
of surface coal mining operations; assuring that the rights of surface
landowners and other persons with a legal interest in the land are
fully protected from such operations; assuring that surface coal mining
operations are not conducted where reclamation required by SMCRA is not
feasible; and assuring that surface coal mining operations are
conducted so as to protect the environment.
The regulatory structure establishes five levels of protection.
These five levels are SMCRA Performance Standards, SMCRA Permitting
Process, Bonding, Inspection and Enforcement, and Lands Unsuitable for
Mining. These five levels of environmental protection provided by SMCRA
are integral parts of all approved regulatory programs and all have
been determined to be no less effective than the Federal regulations.
During the operation of a mine, violations would be identified through
the inspection and enforcement programs. These routine inspections
assure that the operations are in compliance with the conditions of the
permit and the performance standards. Should an operator be found out
of compliance, a notice of violation would be issued and the operator
would be required to abate the violation in a timely manner
commensurate with the seriousness of the problem.
SMCRA and the implementing regulations include a variety of
subsidence control requirements, which are summarized in this preamble.
As amended, SMCRA also requires repair and/or compensation for
subsidence damage to occupied dwellings and non-commercial structures
and replacement of domestic water supplies that have been adversely
affected by underground mining.
This completes the Record of Decision for the proposed revisions to
the permanent program regulations implementing section 522(e) of the
Surface Mining Control and Reclamation Act of 1977 and proposed
rulemaking clarifying the applicability of section 522(e) to subsidence
from underground mining.
Timing of Agency Action
The regulations of the Council on Environmental Quality at 40 CFR
1506.10(b)(2) allow an agency engaged in rulemaking under the
Administrative Procedure Act to publish a decision on the final rule
simultaneous with the publication of the notice of availability of the
final EIS. Under section 526(a) of SMCRA, 30 U.S.C. 1276(a), those
wishing to challenge the agency's decision may do so by filing suit in
the United States District Court for the District of Columbia within 60
days of the date the final rule is published in the Federal Register.
Author
The principal author of this rule is Nancy R. Broderick, Office of
Surface Mining Reclamation and Enforcement, Room 210, South Interior
Building, 1951 Constitution Avenue, N.W., Washington, DC 20240.
Telephone: (202) 208-2700. E-mail address: nbroderi@osmre.gov.
List of Subjects in 30 CFR Part 761
Historic preservation, National forests, National parks, National
trails system, National wild and scenic rivers system, Surface mining,
Underground mining, Wilderness areas, Wildlife refuges.
Dated: September 3, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons given in the preamble, OSM is amending part 761 as
set forth below.
PART 761--AREAS DESIGNATED BY ACT OF CONGRESS
1. The authority citation for Part 761 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq..
2. Section 761.200 is added to read as follows:
Sec. 761.200 Interpretative rule related to subsistence due to
underground coal mining in areas designated by Act of Congress.
OSM has adopted the following interpretation of rules promulgated
in part 761.
(a) Interpretation of Sec. 761.11--Areas where mining is prohibited
or limited. Subsidence due to underground coal mining is not included
in the definition of surface coal mining operations under section
701(28) of the Act and Sec. 700.5 of this chapter and therefore is not
prohibited in areas protected under section 522(e) of the Act.
(b) [Reserved]
[FR Doc. 99-30893 Filed 12-16-99; 8:45 am]
BILLING CODE 4310-05-P
