[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71652-71653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32738]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 784 and 817
RIN 1029-AB69
Surface Coal Mining and Reclamation Operations; Permanent
Regulatory Program; Compliance with Court Order
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule: suspension.
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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are suspending certain portions of our permanent program
regulations dealing with subsidence from underground coal mining. We
are taking this action to make our rules consistent with a recent
decision by the U.S. Court of Appeals for the District of Columbia
Circuit.
EFFECTIVE DATE: December 22, 1999.
FOR FURTHER INFORMATION CONTACT: Vermell Davis, Technology Development
Staff, Division of Technical Support, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the Interior, 1951
Constitution Ave., N.W., Washington, D.C. 20240 (202) 208-2802.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. What Is The Background Of The Rules We Are Suspending?
II. Why Are We Publishing This Notice?
III. What Is The Effect On Approved State Regulatory Programs?
IV. Which Regulatory Provisions Are We Suspending?
V. Procedural Matters.
I. What Is the Background Of The Rules We Are Suspending?
The Energy Policy Act was enacted October 24, 1992, Pub. L. 102-
486, 106 Stat. 2776 (1992) (hereinafter, ``The Energy Policy Act or
EPAct). Section 2504 of that Act, 106 Stat. 2776, 3104, amends the
Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C.
1201 et seq.
Section 2504 of EPAct added a new section 720 to SMCRA. Section
720(a)(1) requires that all underground coal mining operations
conducted after October 24, 1992, promptly repair or compensate for
material damage to non-commercial buildings and occupied residential
dwellings and related structures as a result of subsidence due to
underground coal mining operations. Repair of damage includes
rehabilitation, restoration, or replacement of the structures
identified by section 720(a)(1), and compensation must be provided to
the owners in the full amount of the diminution in value resulting from
the subsidence. Section 720(a)(2) requires prompt replacement of
certain identified water supplies which have been adversely affected by
underground coal mining operations. Under section 720(b), the Secretary
of the Interior was required to promulgate final regulations to
implement the provisions of section 720(a).
On September 24, 1993 (58 FR 50174), OSM published a proposed rule
to amend the regulations applicable to underground coal mining and
control of subsidence-caused damage to lands and structures through the
adoption of a number of permitting requirements and performance
standards. We adopted final regulations on March 31, 1995 (60 FR
16722).
II. Why Are We Suspending These Rules?
The rules were challenged by the National Mining Association in the
District Court for the District of Columbia and in the U.S. Court of
Appeals for the District of Columbia Circuit. On April 27, 1999, the
U.S. Court of Appeals issued a decision vacating certain portions of
the regulatory provisions of the subsidence regulations. See National
Mining Association v. Babbitt, 173 F.3d 906 (1999). We are suspending
those regulatory provisions that are inconsistent with the rationale
provided in the U.S. Court of Appeals' decision.
III. What Effect Will This Suspension Have on Existing State
Regulatory Programs?
States that have not yet revised their approved regulatory programs
(see Subchapter T of 30 CFR Chapter VII) in response to our March 31,
1995 rule changes need not amend those programs to include counterparts
to the provisions that we are suspending in this rulemaking.
States that have already revised their regulatory programs to
include counterparts to the provisions that we are suspending in this
rulemaking may remove or modify those counterparts in accordance with
30 CFR Part 732. However, under section 505(b) of SMCRA, these States
also may elect to retain their existing regulations, unless otherwise
provided by State law.
IV. Which Regulatory Provisions Are We Suspending?
1. 30 CFR 817.121(c)(4)(i)-(iv)
This regulation provided that if damage to any non-commercial
building or occupied residential dwelling or structures related thereto
occurred as a result of earth movement within an area determined by
projecting a specific angle of draw from the outer-most boundary of any
underground mine workings to the surface of the land, a rebuttable
presumption would exist that the permittee caused the damage. The
presumption typically would have applied to a 30-degree angle of draw.
Once the presumption was triggered, the burden of going forward shifted
to the mine operator to offer evidence that the damage was attributable
to another cause. The purpose of this regulatory provision was to set
out a procedure under which damage occurring within a specific area
would be subject to a rebuttable presumption that subsidence from
underground mining was the cause of any surface damage to non-
commercial buildings or occupied residential dwellings and related
structures.
The Court of Appeals vacated, in its entirety, this rule that
established an angle of draw and that created a rebuttable presumption
that damage to EPAct protected structures within an area defined by an
``angle of draw'' was in fact caused by the underground mining
operation. 173 F.3d at 913.
In reviewing the regulation, the Court rejected the Secretary's
contention that the angle of draw concept was reasonably based on
technical and scientific assessments and that it logically connected
the surface area that could be damaged from earth movement to the
underground mining operation. The angle of draw provided the basis for
establishing the surface area within which the rebuttable presumption
would apply. The Secretary had explained that the rebuttable
presumption merely shifted the burden of document production to the
operator in evaluating whether the damage was actually caused by the
underground mining operation within the surface area defined by the
angle of draw. The Court nevertheless held that the angle of draw was
irrationally broad and that the scientific facts presented did not
support the logical inference that damage to the surface area would be
caused by earth movement from underground mining within the area.
[[Page 71653]]
Based on the conclusion that there was no scientific or technical
basis provided for establishing a rational connection between the angle
of draw and surface area damage, the Court further concluded that the
rebuttable presumption failed. In reviewing the rebuttable presumption
requirement, the Court held ``an evidentiary presumption is `only
permissible if there is sound and rational connection between the
proved and inferred facts, and when proof of one fact renders the
existence of another fact so probable that it is sensible and
timesaving to assume the truth of [the inferred] fact * * * until the
adversary disproves it.' '' That is to say, for the presumption to be
permissible, the facts would have to demonstrate that the earth
movement from the underground mining operation ``more likely than not''
caused the damage at the surface. See National Mining Association, 173
F.3d at 906-910.
In compliance with the Court of Appeals' decision of April 27,
1999, we are suspending 30 CFR 817.121(c)(4)(i) through (iv).
Paragraph (v) within this section applies generally to the types of
information that must be considered in determining the cause of damage
to an EPAct protected structure and is not limited to or expanded by
the area defined by the angle of draw. Therefore, paragraph (v) will
remain in force.
2. Section 784.20(a)(3)
This regulatory provision required, unless the applicant was denied
access for such purposes by the owner, a survey which identified
certain features. First, the survey had to identify the condition of
all non-commercial buildings or occupied residential dwellings and
related structures which were within the area encompassed by the
applicable angle of draw and which might sustain material damage, or
whose reasonably foreseeable use might be diminished, as a result of
mine subsidence. Second, the survey had to 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. In addition,
the applicant was required to notify the owner in writing that denial
of access would remove the rebuttable presumption that subsidence from
the operation caused any postmining damage to protected structures that
occurred within the surface area that corresponded to the angle of draw
for the operation. (See discussion of angle of draw above).
This regulatory provision was challenged insofar as it required a
specific structural condition survey of all EPAct protected structures.
The Court of Appeals vacated the specific structural condition survey
regulatory requirement in its decision on April 27, 1999. In reviewing
the Secretary's requirement, the Court clearly upheld the Secretary's
authority to require a pre-subsidence structural condition survey of
all EPAct protected structures. The Court accepted the Secretary's
explanation that this specific structural condition survey was
necessary, among other requirements, in order to determine whether a
subsidence control plan would be required for the mining operation.
However, because of the Court's ruling on the ``angle of draw''
regulation discussed above, it vacated the requirement for a specific
structural condition survey because it was tied directly to the area
defined by the ``angle of draw''.
In compliance with the Court of Appeals' decision, we are
suspending that portion of 30 CFR 784.20(a)(3) which required a
specific structural condition survey of all EPAct protected structures.
The remainder of this section continues in force to the extent that it
applies to the EPAct protected water supplies survey and any technical
assessments or engineering evaluations necessarily related thereto.
V. Procedural Matters
1. National Environmental Policy Act
This notice suspends those sections of the March 31, 1995, final
rule invalidated by the U.S. Court of Appeals for the District of
Columbia Circuit. The action is categorically excluded from the
requirement to prepare an environmental document under the National
Environmental Policy Act of 1969, as amended 42 U.S.C. 4332 et seq.
This determination is made in accordance with the Departmental Manual
(516 DM 2, Appendix 1.10).
2. Author
The author of this suspension notice is Vermell Davis, Office of
Surface Mining Reclamation and Enforcement, U.S. Department of the
Interior, 1951 Constitution Avenue, NW., Washington, D.C. 20240.
List of Subjects
30 CFR Part 784
Reporting and recordkeeping requirements, Underground mining.
30 CFR Part 817
Environmental Protection, Reporting and recordkeeping requirements,
Underground mining.
Dated: December 7, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
For the reasons given in the preamble, we are suspending portions
of 30 CFR Parts 784 and 817 as set forth below:
PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN
1. The authority citation for Part 784 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq, as amended; and 16 U.S.C. 470
et seq.
2. In Sec. 784.20, paragraph (a)(3) is amended by adding a sentence
at the end, reading as follows:
Sec. 784.20 Subsidence control plan.
(a) * * *
(3) * * * However, the requirements to perform a survey of the
condition of all noncommercial buildings or occupied residential
dwellings and structures related thereto, that may be materially
damaged or for which the reasonably foreseeable use may be diminished
by subsidence, within the areas encompassed by the applicable angle of
draw is suspended per court order.
* * * * *
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
3. The authority citation for Part 817 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended.
Sec. 817.121--[Suspended in part]
4. In Sec. 817.121, paragraphs (c)(4)(i) through (iv) are
suspended.
[FR Doc. 99-32738 Filed 12-21-99; 8:45 am]
BILLING CODE 4310-05-M
