[Federal Register Volume 60, Number 62 (Friday, March 31, 1995)]
[Rules and Regulations]
[Pages 16722-16751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-7954]
[[Page 16721]]
_______________________________________________________________________
Part IV
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Parts 701, 784, 817, and 843
Permanent Regulatory Program; Underground Mining Permit Application
Requirements and Performance Standards; Final Rule
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules
and Regulations
[[Page 16722]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 701, 784, 817, and 843
RIN 1029-AB69
Permanent Regulatory Program; Underground Mining Permit
Application Requirements; Underground Mining Performance Standards
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
of the U.S. Department of the Interior (DOI) is amending the
regulations applicable to underground coal mining and control of
subsidence-caused damage to lands and structures and certain water
supplies, through the adoption of permitting requirements, performance
standards, and implementation procedures. The regulations will require
all underground coal mining operations conducted after October 24,
1992, to 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, and to replace drinking, domestic, and residential water
supplies which have been adversely affected by underground coal mining
operations. The rule will require repair of damage to include
rehabilitation, restoration, or replacement of the identified
structures, or compensation to the owners in the full amount of the
diminution in value resulting from the subsidence. A pre-subsidence
survey will be required to document the condition of non-commercial
buildings and occupied residential dwellings and related structures
subject to subsidence-related damage caused by underground mining
activities. The survey will also be required to document the quantity
and quality of all drinking and domestic water supplies that could be
contaminated, diminished, or interrupted by subsidence. In addition, a
permittee will be required to provide, when necessary, an additional
performance bond to cover subsidence-related damage that has occurred
to protected structures or water supplies.
Within 120 days from the publication of the rule, OSM will, in
consultation with the State Regulatory authority, determine for each
State with an approved State regulatory program, the enforcement
procedures to ensure prompt compliance with section 720(a) of the
Surface Mining Control and Reclamation Act (SMCRA) and the implementing
regulations. The performance standards implementing section 720(a) are
set forth in 30 CFR Secs. 817.41(j) and 817.121(c)(2) and (c)(4). OSM
will determine for each such State whether to apply (1) direct interim
Federal enforcement of the Energy Policy Act and implementing
performance standards, for some or all surface coal mining operations;
or (2) the oversight procedures of Secs. 843.11 and 843.12(a)(2); or
(3) a combination of direct Federal enforcement and State enforcement.
As part of the determination process, OSM will consult with each
affected State and provide opportunity for public comment. For each
State, OSM will publish its determination in the Federal Register.
EFFECTIVE DATE: May 1, 1995.
FOR FURTHER INFORMATION CONTACT: Nancy R. Broderick, Branch of Federal
and Indian Programs, Office of Surface Mining Reclamation and
Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue,
NW., Washington, DC 20240; telephone (202) 208-2564.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Discussion of Rule and Response to Public Comments.
III. Procedural Matters.
I. Background
Energy Policy Act
The Energy Policy Act of 1992, Pub.L. 102-486, 106 Stat. 2776
(1992) (hereinafter, ``the Energy Policy Act'') was enacted October 24,
1992. 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. As noted in the legislative history describing a
predecessor to section 2504, the section ``provides for greater
stability in the surface mining act program by settling controversies
over subsidence protection.'' H.R. Rep. No. 474, 102d Cong., 2d Sess.
pt. 8 at 86 (1992). The report also states that ``at present, OSM's
regulations do not protect coalfield citizens from the types of damages
that can occur from land subsidence caused by underground coal mining,
either in the form of compensation for, or repair of, damages to homes
and other structures as well as replacement of adversely affected water
supplies.'' Id.
Section 2504 of the Energy Policy Act 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 is required to promulgate final regulations to
implement the provisions of section 720(a) by October 24, 1993.
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. The regulatory and litigation history of relevant subsidence
control issues addressed in this final rule was contained in the
preamble to the proposed rulemaking. 58 FR 50175, 50177 (September 24,
1993). In addition to the provisions intended to implement new SMCRA
section 720, the proposed rule included other subsidence-related
provisions. These additional provisions were developed to address
issues raised by commenters' responses to a July 18, 1991 Notice of
Inquiry soliciting public comment on existing subsidence regulations.
OSM indicated in the proposed rule that it contemplated that the rules
implementing SMCRA section 720 would immediately supersede inconsistent
state performance standards, and would take effect immediately,
applicable to underground mining that occurred after October 24, 1992.
OSM anticipated that all other provisions would become effective in the
same way as other revisions to the permanent program regulations; i.e.,
30 days following of promulgation for Federal program States and on
Indian lands, and upon the adoption of counterpart State regulatory
program provisions in primacy States.
OSM held public hearings on the proposed subsidence rule in
Harrisburg, Pennsylvania, November 8, 1993; Columbus, Ohio, November 9,
1993; Whitesburg, Kentucky, November 16, 1993; Salt Lake City, Utah,
November [[Page 16723]] 17, 1993; Washington, DC, November 19, 1993;
and Washington, Pennsylvania, November 22, 1993. The comment period for
the proposed rule closed on January 24, 1994 (as extended on November
22, 1993, 58 FR 61638). Over 275 commenters submitted comments on the
proposed rule.
One commenter initially submitted a petition for rulemaking that
requested the Secretary to finalize the rules proposed on September 24,
1993 regarding the regulation of water loss and property damage caused
by underground coal mining operations, and until such regulations are
promulgated, to impose a moratorium on the issuance of new underground
mining permits if such operations would present a high risk of
subsidence-related damage. In a subsequent letter, the commenter
stipulated that they did not intend the petition to be considered a
petition for rule-making as provided in SMCRA section 201(g)(1) et seq.
In the course of analyzing the comments received on the proposed
rule, OSM discussed subsidence-related issues with coal operators and
citizens during an on-site tour of coal fields. As a result, OSM
reopened the comment period to allow interested persons time to review
additional material which consisted of meeting notes from these
discussions and handouts and a video tape received during the field
tour. 59 FR 37952-37953 (July 26, 1994). This information was added to
the Administrative Record and was also available for review at the OSM
offices in Pittsburgh, PA; Denver, CO; Harrisburg, PA; Columbus, OH;
Knoxville, TN; and Lexington, KY.
In the Federal Register notice to reopen the comment period, OSM
took the opportunity to respond to comments received during the initial
comment period on the proposed rule, and to requests by States and OSM
field offices to clarify the requirement for replacement of water
supplies. OSM requested specific comment on an alternative provision to
clarify the requirement under sections 717(b) and 720(a)(2) of SMCRA
that an operator replace certain types of water supplies. Under the
alternative, when the owner confirms in writing that the owner does not
desire replacement of the water delivery system, and no such system is
needed for either the existing or approved postmining land uses, the
permittee may provide replacement of the water supply by demonstrating
that an equivalent water source exists that can be developed if desired
by future owners. OSM received 26 comments during the comment period
which closed on August 25, 1994.
The requirements to repair or compensate for damage to structures,
and replace water supplies, were effective upon passage of the Energy
Policy Act. Permittees in both primacy States and Federal program
States, as well as on Indian lands, are required to comply with these
provisions of the Energy Policy Act for their operations conducted
after October 24, 1992. In the proposed rulemaking, each regulatory
authority was encouraged, pending direct enforcement in a State, to
conduct investigations of any complaints alleging violations of the
nature covered under new section 720(a). This was intended to ensure
that circumstances at a site of alleged violations were observed and
documented contemporaneously, and that the documentation would be
available for later enforcement action if necessary. OSM conducted
investigations of complaints reported to OSM if the State regulatory
authority chose not to conduct an investigation. OSM and most State
regulatory authorities ensured that complaints were documented and a
record of alleged violations was maintained.
Promulgation of final Federal regulations is necessary to enforce
the Energy Policy Act requirements to repair or compensate for damages,
and replace an adversely affected water supply, due to underground coal
operations that occurred after October 24, 1992.
II. Discussion of Final Rule and Response to Public Comments
Section 701.5--Definitions
The following definitions of terms are adopted in the final
rulemaking: ``drinking, domestic or residential water supply,''
``material damage,'' ``non-commercial building,'' ``occupied
residential dwelling and structures related thereto,'' and
``replacement of water supply.'' The proposed definition of the term
``structures or facilities'' is not being adopted.
Definition of Drinking, Domestic or Residential Water Supply
The definition for drinking, domestic or residential water supply
is being adopted with changes. ``Drinking, domestic or residential
water supply'' would mean water received from a well or spring and any
appurtenant delivery system that provides water for direct human
consumption or household use. Wells and springs that serve only
agricultural, commercial or industrial enterprises are not included
except to the extent they also supply water for drinking, sanitation or
other domestic use, for such enterprises.
Several commenters agree with OSM that the definition is needed to
implement SMCRA Section 720(a)(2), which requires prompt replacement of
certain identified water supplies which have been adversely affected by
underground coal mining operations. Commenters also concur with the
proposed definition to the extent it excludes water from wells or
springs that serve only commercial agricultural or other commercial or
industrial enterprises and do not supply drinking water. In response to
a recommendation by commenters, OSM recognizes that water pooled in
abandoned underground workings could be used as a water supply for
drinking, domestic or residential uses, and that it is not uncommon in
certain areas for individual residents or communities to obtain their
water supply by withdrawing water from such underground workings. In
such cases, the underground workings reasonably may be described as
equivalent to a well or spring.
A number of commenters argue that inclusion of the appurtenant
delivery system in the definition goes beyond the mandate of the Energy
Policy Act. OSM concludes that inclusion of the delivery system as part
of the water supply is imperative to fulfilling Congressional intent to
protect drinking, domestic and residential water supplies. OSM believes
that to provide otherwise would fail to ensure meaningful replacement
of water to the user, because delivery is essential to provide a water
supply at the point of use or consumption. OSM believes inclusion of
the delivery system is therefore necessary to make whole the user of a
protected water supply. OSM believes this is what Congress intended.
A significant number of commenters recommend that agricultural
water supplies, including water used to keep stock animals, should be
protected. OSM believes that the Energy Policy Act mandates protection
of water supplies used for drinking, domestic and residential purposes.
In implementing this mandate, OSM believes it is reasonable to
distinguish commercial agricultural and horticultural uses of water
from domestic uses such as non-commercial farming, gardening and other
horticultural activities. OSM concludes that the terms ``domestic'' and
``residential'' are intended to have broader meaning than merely
drinking water for human consumption. Rather, these terms reasonably
should be understood to include a full range of domestic uses,
including irrigation of [[Page 16724]] non-commercial gardens and
agricultural fields, and use of well and spring water for household
purposes other than human consumption. OSM believes it is reasonable to
interpret the language of the Energy Policy Act to distinguish private
homeowners from commercial and other non-domestic water supply users.
Many rural homeowners conduct extensive non-commercial domestic
agricultural and horticultural activities, as an integral and even
essential part of a homestead. Failure to require replacement of the
water supply needed for such domestic agricultural and horticultural
uses would fail to make the residential user whole. Therefore, OSM
believes this protection reasonably implements the Energy Policy Act.
Definition of Material Damage
The definition of material damage is being adopted as proposed. The
term material damage, in the context of Secs. 784.20 and 817.121 of
this chapter, means any functional impairment of surface lands,
features, structures or facilities. The material damage threshold
includes any physical change that has a significant adverse impact on
the affected land's capability to support any current or reasonably
foreseeable uses, or that causes significant loss in production or
income, or any significant change in the condition, appearance or
utility of any structure or facility from its pre-subsidence condition.
It would also include any situation in which an imminent danger to a
person would be created.
A number of commenters opposed the definition of material damage as
being too broad and subjective. The commenters added that extending the
definition to include impairment of surface lands or physical change
that adversely impacts the land's capability, goes beyond the
requirements of the Energy Policy Act. The commenters claim that the
Energy Policy Act does not necessitate that OSM adopt a national
definition for material damage especially since there currently is no
national definition of this term as it is used in SMCRA. The commenters
rely on the history of the term material damage to assert that the
reasons that OSM has not defined the term in the past are applicable to
implementing the Energy Policy Act. The commenters go on to state that
a national definition would lead to needless litigation as the term is
applied to a wide variety of circumstances, and the task of defining
the term is better left to the individual regulatory authorities, who
could define the term in a manner appropriate for their respective
jurisdictions. The commenters argue that the problem with a national
definition is further exacerbated by the vague terms used to define
material damage. The commenters add that the terms ``functional
impairment'' and ``significant adverse impact'' do not provide much
guidance when applying the definition of material damage to a wide
variety of situations and circumstances.
Another group of commenters identify two perceived problems with
the proposed definition of material damage. First, the definition fails
to explicitly include the loss of value to the land or structures as
being material damage. The commenters allege that the Energy Policy Act
language supports a ``loss of value'' component to the definition by
providing for repair or compensation ``in the full amount of the
diminution in value from the subsidence''. The commenters note that
under the proposed definition, subsidence damage that did not impair
the function of a structure but did result in damage that caused the
fair market value of the structure to decline, even to the point where
the structure could not be sold on the market, would not be considered
material damage.
These commenters point out a second perceived problem with the
proposed definition. They consider that the use of the qualifier
``significantly'' in the definition creates too high a threshold of
``materiality'' and charged that the result is a definition that is
contrary to the remedial purposes of SMCRA and the Energy Policy Act.
They add that the proposed high threshold of materiality would not
allow all of the injured property owners the ability to benefit from
the full protection intended by Congress. The commenters also maintain
that the rules fail to establish the context in which significant would
be defined. The commenters recommend that the term ``significantly'' be
dropped from the definition, and that the definition be clarified to
include the loss of value to the land or structures as material damage,
and modified to reflect their belief that Congress intended a low
threshold for material damage.
OSM has considered these comments, but is not adopting these
changes. OSM believes that the final definition of material damage is
supported by both SMCRA and the Energy Policy Act. It is both necessary
and appropriate to provide an overall policy framework at the national
level, within which the state regulatory authorities may continue to
make individual determinations of ``material damage.'' It is OSM's
conclusion, based on its experience and its observation and evaluation
of regulatory program implementation, that such a national policy
framework is needed to confer an appropriate minimum degree of
consistency in the determinations made by the regulatory authorities
and to ensure a level playing field. The definition of ``material
damage'' covers damage to the surface and to surface features, such as
wetlands, streams, and bodies of water, and to structures or
facilities. OSM believes the final rule language will still allow each
regulatory authority to clarify or more specifically define the term,
if appropriate, and to use it in a manner appropriate for subsidence
problems in the individual jurisdiction. OSM believes the use of the
term ``significant'' is consistent with the commonly understood meaning
of the term ``material,'' as ``substantial; noticeable;'' or ``of
importance.'' See American Heritage Dictionary, Second College Edition.
OSM believes this meaning is also consistent with the context in which
the term ``material damage'' is used, both in the Energy Policy Act and
in other provisions of SMCRA. OSM believes that if an impact is
insignificant, then the regulatory authority could reasonably conclude
that the damage is not material. OSM intends that the determination as
to the significance of impact should be made on a case-by-case basis,
depending on the individual circumstances. Moreover, OSM intends that
any damage that causes the value of a structure to decline materially
would be covered by the definition, including damage to the condition,
appearance, or utility of the structure.
OSM believes this definition strikes a balance that will, on the
one hand, provide some additional guidance, while on the other hand
ensuring enough flexibility to support OSM's position that
determinations as to material damage should be made on a case-by-case
basis. Thus, OSM wishes to emphasize that it is the responsibility of
the regulatory authority to make specific determinations on a case-by-
case basis as to what would constitute material damage under its
regulatory program, consistent with the final definition in paragraph
701.5. This will ensure that the term is applied appropriately to the
subsidence problems in each jurisdiction.
Definition of Non-Commercial Building
The definition of the term ``non-commercial building'' is being
adopted as proposed with minor changes. A non-commercial building would
mean any building, other than an occupied residential dwelling, that,
at the time [[Page 16725]] the subsidence occurs, is used on a regular
or temporary basis as a public building or community or institutional
building as those terms are defined in Sec. 761.5 of this chapter.
Buildings used only for commercial agricultural, industrial, retail or
other commercial enterprises are excluded.
A number of commenters agree that the definitions for ``non-
commercial buildings'' and ``occupied residential dwelling and
structures related thereto'' are needed to implement section 2504 of
the Energy Policy Act, which requires all underground coal mining
operations to promptly repair or compensate for material damage to non-
commercial buildings and occupied residential dwellings or related
structures as a result of subsidence due to underground mining
operations.
In response to a commenter, OSM has revised the proposal to clarify
that ``commercial'' agricultural enterprises are excluded. The
definition specifically provides that buildings used only for
commercial agricultural and other commercial use are not covered in the
definition of ``non-commercial'' building. Further, the definition
requires that the non-commercial use of a building exist on a regular
or temporary basis at the time subsidence damage occurs.
Definition of Occupied Residential Dwelling and Related Structures
This provision as proposed defined the term ``occupied residential
dwelling and related structures'' as any building or other structure
that, at the time subsidence occurs, is used for human habitation. This
definition in the final rule is revised by adding the phrase
``temporarily, occasionally, seasonally, or permanently'' used for
human habitation.
OSM agrees with the commenters that the definition of an ``occupied
residential dwelling and structures related thereto'' should be revised
to protect dwellings that are not occupied on a daily basis but are
occupied at some time. This change is intended to recognize that
dwellings such as rental homes, seasonal homes, and camping cabins are
entitled to protection. This term also would include any building,
structure, or facility installed on, above, or below, or a combination
thereof, the land surface if that building, structure, or facility is
adjunct to or used in connection with the occupied dwelling, including
non-commercial agricultural and horticultural activities. Examples of
such structures include, but are not limited to, garages; storage sheds
and barns; greenhouses and related buildings; utilities and cables
serving the dwelling; fences and other enclosures; retaining walls;
paved or improved patios, walks and driveways; septic sewage treatment
facilities; and lot drainage and lawn and garden irrigation systems.
Any structure used only for commercial agricultural, industrial,
retail, or other commercial purposes would be excluded.
OSM recognizes that a similar term ``occupied dwelling'' is
currently defined in 30 CFR 761.5 as ``any building that is currently
being used on a regular or temporary basis for human habitation.'' This
term is so defined for purposes of Part 761, which implements SMCRA
Sec. 522(e)(5), and which, with certain exceptions, does not allow
surface coal mining operations to be conducted within 300 feet of any
``occupied dwelling.'' OSM has adopted a somewhat different definition
for the term ``occupied residential dwelling'' for purposes of
implementing the Energy Policy Act provisions concerning subsidence
control, because of the different purposes served by the definitions
and the different language of the Energy Policy Act.
A group of commenters suggest that the definition is overly broad
and should be limited to the intentions of Congress found in the Energy
Policy Act which were meant to protect only residences and their water
supplies. OSM disagrees with the commenters' characterization of
congressional intent. OSM maintains that the definition for ``occupied
residential dwelling and structures related thereto'' is needed to
implement Section 2504 of the Energy Policy Act of 1992, which requires
all underground coal mining operations to 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 mining operations.
Definition of Structures or Facilities
In the proposed rule, OSM defined structures and facilities as any
building, constructed object or improvement whether installed on,
above, or below the land surface, including, but not limited to, park
facilities; roads; cemeteries; utilities; fences and other enclosures;
retaining walls; and septic sewage treatment, irrigation and drainage
systems.
Commenters argue that the Energy Policy Act does not specifically
address commercial and certain other non-commercial structures. In
addition, the commenters note that there is no need for the expanded
definition because current regulations already provide for adequate
protection of buildings and structures from underground mining.
One commenter noted that a broad definition of the term
``structures or facilities'' is supported by the House Committee Report
accompanying the House revisions to the Energy Policy Act:
It is the Committee's intent that the terms ``structure or
facility'' be construed to extend to any improvement on or in the land,
such as houses; buildings; gas, water, sewage or other pipelines;
telephone, electric and other cables; and water impoundments.
H.R. Rep. No. 474, 102d Cong. 1st Sess., pt. 8, at 133 (1992).
However, this report accompanied a previous version of the Energy
Policy Act, which was not passed. And that earlier version, unlike the
Energy Policy Act, did not require that OSM prepare a study to evaluate
existing subsidence protections of pipelines, before any decision on
rulemakings to make changes in protection of pipelines. Therefore, OSM
believes that the quoted language is not dispositive as to Congress'
intent on interpretation of the term.
OSM considered all comments on the proposed definition, and
reevaluated its position on this provision. OSM agrees with those
commenters who argue that section 2504 of the Energy Policy Act did not
mandate protection of structures and facilities beyond those
specifically noted in section 2504 of the Energy Policy Act, and OSM
has concluded that the record does not clearly establish that a nation-
wide problem exists requiring further subsidence protection of
structures and facilities not specifically mentioned in section 2504.
Therefore, OSM has decided to address in this rulemaking only those
structures addressed in the Energy Policy Act. Therefore OSM is
withdrawing the proposed definition and performance standards
concerning the term ``structures and facilities.''
A number of commenters urge that OSM take various steps in this
rulemaking to clarify or change existing subsidence control
requirements concerning protection of natural gas and petroleum
pipelines. Other commenters request that OSM confirm in this rulemaking
the applicability of existing rules to such pipelines. However, OSM has
concluded that any actions in this rulemaking to clarify, change or
otherwise evaluate existing subsidence control requirements for
protection of such pipelines would be premature and contrary to
Congressional intent as expressed in the Energy Policy Act of 1992.
That act provided, in section 2504(a)(2), that: [[Page 16726]]
(A) The Secretary of the Interior shall review existing
requirements related to underground coal mine subsidence and natural
gas and petroleum pipeline safety. Such review shall consider the
following with respect to subsidence: notification; mitigation;
coordination; * * * and the status of Federal, State and local laws, as
well as common law, with respect to prevention or mitigation of damage
from subsidence.
(B) The review shall also include a survey of the status of
Federal, State, and local laws, with respect to the responsibilities of
the relevant parties for costs resulting from damage due to subsidence
or from mitigation efforts undertaken to prevent damage from
subsidence.
(C) In conducting the review, the Secretary * * * shall consult
with * * * the Attorney General of the United States, appropriate
officials of relevant States, and owners and representatives of natural
gas and petroleum pipeline companies and coal companies.
Subsection (2)(D) requires the Secretary to submit a report
detailing the results of the review to specified Congressional
committees. Subsection (2)(D) also provides that:
Where appropriate, the Secretary of the Interior shall commence a
rulemaking to address any deficiencies in existing law determined in
the review under subparagraph (A) regarding notification, coordination
and mitigation.
Thus, Congress directed that OSM review and report on the status of
existing Federal law and consult with the Attorney General in that
review, and, where appropriate, commence a rulemaking to address any
deficiencies identified in the review. OSM believes it would be
premature to summarize the status of existing law or clarify or revise
existing law, before the mandated review and report are finished. OSM
is currently in the process of completing the report. Therefore, in
this rulemaking OSM will not address the status of existing law
protecting natural gas and petroleum pipelines from subsidence.
Similarly, OSM will not clarify or change existing law, except that, as
discussed elsewhere in this rulemaking, OSM is interpreting section 720
to require that individual pipeline connectors attached to structures
otherwise protected under section 720 are subject to the protections of
section 720. OSM has concluded that this limited protection is
necessary to ensure that owners of otherwise protected structures are
made whole when material damage occurs. Any action appropriate to
clarify or revise the application of subsidence performance standards
to natural gas and petroleum pipelines will be taken after completion
and distribution of the review and report.
Definition of Replacement of Water Supply
The definition of the term ``replacement of water supply'' is being
adopted as proposed with additional changes. In the final rule,
``replacement of water supply'' means, with respect to protected water
supplies contaminated, diminished, or interrupted by coal mining
operations, the provision of a water supply on both a temporary and
permanent basis, which is equivalent to the premining quantity and
quality. Replacement includes provision of an equivalent water delivery
system and payment of operation and maintenance costs in excess of
customary and reasonable delivery costs for the premining water supply.
The definition is applicable to both underground coal mining operations
and surface mining operations that affect water supplies. The final
rule is intended to apply to replacement of water supply under both
sections 717(b) and 720(a)(2) of SMCRA.
Several commenters assert that the proposed requirement that the
permittee pay for the operation and maintenance costs of the
replacement water supply goes beyond the statutory requirements of the
Energy Policy Act which only requires the ``replacement'' of the water
supply. OSM does not agree. OSM maintains that payment of replacement
water supply operation and maintenance costs in excess of premining
costs is a logical aspect of the requirement to replace the water
supply. This provision would ensure that the owner or user of the water
supply is made whole, and that no additional costs are passed on to the
water supply user after the replacement water supply is installed,
beyond those that are customary and reasonable for the premining
supply. The definition contemplates that the permittee will pay the
capital costs of installing the replacement water supply. For example,
if the use of well water can continue, the permittee would pay the cost
of designing, drilling, and completing a new or deeper well; purchasing
and installing a pump; and/or purchasing and installing a treatment
system, as necessary. If the replacement water supply involves a hook-
up to a public or private water supply system, the permittee would pay
the hook-up costs, including fees, purchase of equipment and supplies,
and construction. If a temporary water supply is necessary before the
permanent replacement water supply is provided, the permittee would pay
the cost of providing the temporary water supply.
A number of commenters support the requirement for the payment of
operation and maintenance costs in excess of the customary and
reasonable costs for the delivery of the premining water supply.
However, the commenters suggested OSM consider a lump sum payment as an
alternative to annual payments for operation and maintenance costs for
a permanent water supply. OSM has considered the commenters' views and
has decided to adopt most of these suggestions. If agreed to by the
water supply owner, a one-time payment based on the present worth of
the increased annual operating costs for a period of time agreed upon
by the water supply owner and the permittee would be considered an
acceptable method to fulfill the obligation to pay for the operation
and maintenance costs of a permanent water supply in excess of
customary and reasonable premining costs. A lump sum payment may be
preferable to annual or other periodic payments because only one
transaction is needed. Annual payment is not assured if the permittee
encounters financial difficulties or goes out of business. Periodic
payments could involve complex calculations and excessive and
unproductive paperwork and record-keeping. Provision for a lump sum
payment should reflect the predicted useful life of a water supply
delivery system. For example, 20 years could be a reasonable amount of
time to hold a permittee responsible for costs when the delivery system
from a spring or well would likely have required repairs within the 20-
year period even if the spring or well had not been affected by mining.
Commenters argue that the definition should state that the
replacement water supply need only provide the quantity and quality
required for actual use. In addition, the commenters recommend that the
phrase ``provision of an equivalent water delivery system'' be deleted
because the proposed definition appears to limit replacement to water
delivery systems. Under this condition the permittee would not be able
to replace the water supply by any means other than a ``water delivery
system.'' OSM maintains that the provision of water quality and
quantity equivalent to that of premining supplies is plainly required
by the term ``replacement.'' Replacement of the delivery system is a
reasonable aspect of replacement. The requirement of replacement of
water supply includes replacement at no significant cost to the water
supply [[Page 16727]] owner above that which was being paid by the
owner for water supply prior to the damage. The obligation of the
Energy Policy Act is to replace the supply, as noted in the legislative
history. OSM believes that to require that the water supply owner be
made whole without imposing significant additional costs will most
reasonably implement the Energy Policy Act.
A commenter recommends that the definition of ``replacement''
address time limits for providing both interim replacement and
permanent replacement. The commenter recommends a 48-hour time period
to provide a temporary replacement and 1-2 years to provide permanent
replacement. OSM agrees that some guidance on the issue of timing of
water supply replacement would aid in consistent implementation of
replacement requirements. If a temporary water supply is needed before
the permanent replacement water supply is provided, it is reasonable to
expect that the permittee will provide replacement within a reasonable
amount of time. OSM believes that prompt replacement should typically
provide: emergency replacement, temporary replacement, and permanent
replacement of a water supply. Upon notification that a user's water
supply was adversely impacted by mining, the permittee should
reasonably provide drinking water to the user within 48 hours of such
notification. Within two weeks of notification, the permittee should
have the user hooked up to a temporary water supply. The temporary
water supply should be connected to the existing plumbing, if any, and
allow the user to conduct all normal domestic usage such as drinking,
cooking, bathing, and washing. Within two years of notification, the
permittee should connect the user to a satisfactory permanent water
supply. This guidance is intended to assist regulatory authorities in
deciding if water supplies have been ``promptly'' replaced.
A commenter expresses concern that adoption of the provision to
require both underground mining operations and surface mining
operations to replace water supplies would violate the Administrative
Procedure Act (APA). The commenter charges that surface mine operators
were not given adequate notice and opportunity to comment on the
proposed provision. OSM disagrees. The proposed definition was
explicitly applicable to surface mining (See 58 FR 50178, September
24, 1993), and the proposed rule invited all interested parties to
submit comments on the provision.
A commenter notes that the definition does not address the doctrine
of prior appropriation and state law regarding the replacement of water
rights and requested that the definition include a reference to state
law. OSM has concluded that no such discussion is required in this
definition. As discussed in more detail below in the preamble
discussion of section 817.42(j), neither this definition nor the
requirement to replace drinking, domestic, and residential water
supplies are intended to affect rights to consume or legitimately use a
water supply under a senior water right pursuant to State law.
Commenters argue that it would be inappropriate to require
replacement of a water supply that is not needed for the approved
postmining land use. In addition, OSM received requests from States and
OSM field offices to clarify the requirement for replacement of water
supplies. In response to these comments, OSM considered an alternative
provision for replacement of water supplies. In the July 26, 1994,
notice reopening the public comment period on the proposed rule to
provide for review and comment on additional information added to the
Administrative Record, OSM requested comments on the proposed
alternative provision for water supply replacement (59 FR 37953). This
provision provides that when the property owner confirms in writing
that the owner does not desire replacement of the delivery system, and
no such system is in use at the time of loss, contamination, or
interruption, and no such system is needed for the approved postmining
land uses, then the permittee may provide replacement of the water
supply by demonstrating that an equivalent water source exists that can
be developed if desired by future owners. Under this provision an owner
could forgo replacement of the water delivery system if the system is
not needed for maintenance of the existing land use or attainment of
the postmining land use. The permittee would still be required to
demonstrate the availability of a water source equivalent to premining
quantity and quality, so that the current owner or his or her successor
could utilize the water if desired in the future. Where the spring or
well also serves other purposes, the quantity of the replacement supply
only needs to be equivalent to the premining water supply for drinking,
domestic, or residential use.
The majority of commenters support OSM's effort to reduce
unnecessary, useless, and burdensome expenses for water replacement.
Other commenters characterize the proposed provision as inconsistent
with the Energy Policy Act requirement to replace the affected water
supply, and assert that there is no authority to waive water
replacement, in the absence of explicit statutory authorization of
waiver. These commenters allege that the permittee is obliged to
replace the water supply, including the delivery system, at no
additional cost to the owner. The commenters alleged that the proposed
provision would extinguish the replacement rights of tenants, fails to
protect the reasonably foreseeable uses and values of property, and
fails to ensure implementation of hydrological protection provisions of
SMCRA.
OSM does not agree that this provision would fail to ensure
implementation of the hydrologic protection requirements of sections
816.41 and 817.41. Existing requirements remain in place, and the
permittee must comply with them. OSM expects that any water rights of
tenants vis-a-vis a landlord may properly be protected under the terms
of the applicable lease for the property. OSM also does not agree that
this provision will fail to protect the reasonably foreseeable uses and
values of the property, since any decision to forego construction of a
delivery system must be consistent with the postmining land use, and
the permittee is still required to ensure that a water source
equivalent to premining quality and quantity is available.
OSM has decided to adopt the provision outlined in the Federal
Register notice reopening the comment period on the proposed rule.
Thus, the owner would have the option of foregoing installation of a
delivery system, in those circumstances in which the system would be
neither wanted or needed, and would not be used if installed. This
provision would ensure that all coal mining operations must be
conducted so that water resources remain to support the existing and
proposed use of the land. The only feature that may be waived is a
water delivery system that would not be used for the postmining land
use, and was not needed for the land use that existed before mining.
Also, the permittee must demonstrate the availability of a water source
equivalent to premining quality and quantity. Therefore, OSM believes
that the final rule ensures compliance with the Energy Policy Act and
section 717 of SMCRA in all essential respects, while avoiding unneeded
expense.
Section 784.10--Information Collection
OSM is revising Section 784.10 which contains the information
collection requirements for Part 784 and the Office [[Page 16728]] of
Management and Budget (OMB) clearance number. The revision updates the
data contained in the section by including the estimated reporting
burden per respondent for complying with the information collection
requirements.
The collections of information contained in Part 784 have been
approved by Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0039. The information will be
used to meet the requirements of 30 U.S.C. 1211(b), 1251, 1257, 1258,
1266, and 1309a. The obligation to respond is required to obtain a
benefit.
Several commenters asserted that the public reporting burden for
the requirements proposed for Part 784 is far greater than that
estimated by OSM. They believe that OSM has miscalculated the
differences between existing regulations and the proposed regulations,
and underestimated the burden on industry to complete the hydrologic
information, the pre-subsidence survey and the subsidence control plan.
Based on the comments received, OSM has recalculated the estimated
burden hours required to comply with the new requirements.
Specifically, commenters claimed that the new requirements of section
784.14 would increase the hydrologic monitoring burden placed on
industry. Accordingly, OSM has modified the burden estimate to include
the new requirements for section 784.14.
Several commenters also disagreed with OSM's burden estimates to
complete the requirements of section 784.20. The expanded requirements
include preparation of a pre-subsidence survey which entails preparing
a map, a narrative, and a survey, and a subsidence control plan.
Only three commenters submitted comments which contained data on
burden hours or the number of structures involved in a pre-subsidence
survey. One commenter, a coal company, provided a per structure burden
hour, ranging from 3.33-4 hours per structure. The same commenter
stated that a recent permit revision submittal for a 5,000 acre permit
in a rural area contained 300 structures which, if the new requirements
were in place, would have required a pre-subsidence survey taking
approximately 1,000+ hours to conduct. One commenter, a major trade
association for the coal industry, stated that in the Appalachian
region where over 90 percent of all producing underground coal mines
are located, between 6 to 12 structures per permit would require a pre-
subsidence survey. Another commenter stated that a recent pre-mining
survey in Appalachia had required a total of 300 man-hours; however,
the commenter did not provide data on the number of structures
involved.
Using the data supplied by commenters, OSM has recalculated the
estimated average burden hours for a pre-subsidence survey at 163.20
hours per permit (12 structures x 4 hours x 90%+300 structures x 4
hours x 10%=163.20 hours). This includes the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. OSM considers this to be a very conservative
estimate. OSM is required under the Paperwork Reduction Act to renew
its information collection clearance every three years. As part of that
process, OSM publishes a notice in the Federal Register requesting
comments on the estimated burden hours. At the first renewal of the
clearance, OSM will be able to refine this estimate for pre-subsidence
surveys, based on factual information concerning coal industry
compliance with the new requirement. The total information collection
burden for Part 784, the burden for the pre-subsidence survey and all
other requirements, is estimated at 513 hours. This is the time
required for a respondent to comply with all of the reporting
requirements in Part 784.
Section 784.14(e)(3)(iv)--Hydrologic Information
This provision was proposed as 784.14(e)(3)(v), and has been
adopted with some modification in the final rule. Under the final rule,
the permit applicant will be required to identify whether the
underground mining activities conducted after October 24, 1992, may
result in contamination, diminution or interruption of a well or spring
which is in existence at the time the permit application is submitted
and which is used for domestic, drinking, or residential use within the
proposed permit or adjacent areas. Authority for the new requirement
may be found in SMCRA sections 201(b)(2), 507(b)(11), 508(a)(13), and
720(b). These sections authorize the imposition of requirements to
submit information needed to implement the performance standard in
paragraph 817.41(j).
Several commenters object to the proposed requirement that an
assessment of probable hydrologic consequences be done for agricultural
and industrial water supplies in permit or adjacent areas, noting that
SMCRA does not authorize the replacement of water supplies for these
uses. Consequently, these commenters believe that a requirement that
the PHC determination include any assessment of the potential effect of
mining on these supplies is inappropriate. OSM has decided to require
replacement only of those types of water supplies specified in the
Energy Policy Act, and has decided to withdraw the provision which was
published as proposed paragraph 784.14(e)(3)(iv), and which would have
established a broader information requirement for water supplies than
is required to implement the Energy Policy Act.
Several commenters assert that the probable hydrologic consequences
regulations duplicate much of the existing requirements for hydrologic
impact assessments as currently required in SMCRA. In addition, the
commenters noted that State regulatory agencies already have authority
in paragraph 784.14(e)(3) that allows State agencies to require any
information they deem necessary to ensure enforcement of the
regulations and effective implementation of SMCRA. The commenters
maintained that the proposed rules would generate significant
inconsistencies which will result in total confusion for both the State
regulatory agency and the coal mining community.
The requirement at 784.14(e)(3)(iv) does not duplicate the existing
authority in paragraph 784.14; rather, the requirement in paragraph
(e)(3)(iv) adds certain wells and springs to the existing list under
784.14(e)(3) of features to be covered in a determination of probable
hydrologic consequences. This requirement implements the parallel
performance standards at 817.41. Paragraph (e)(3)(iv) ensures that the
requirements of 784.14(e)(3) apply to certain wells and springs within
the proposed permit area or adjacent area. The requirement would 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.
A commenter alleged that the background data to determine the flow
of water, either from a well or a spring, should be normalized for
historic parameters to account for extended drought conditions. The
commenter went on to note that replacing water at levels measured
during dry conditions results in replacement at diminished levels.
[[Page 16729]]
OSM understands that certain wells and springs may pose problems
for sampling to determine water replacement levels. However, OSM
believes that the current regulations implementing those requirements,
at 784.14(b) (1) and (2), are adequate to determine the level of a
water supply equivalent to the premining water supply and to determine
the presence of heavy metals in the water. 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, the requirement to include an analysis of
both suspended and dissolved constituents provides adequate information
to determine the presence of heavy metals in the water supply.
Moreover, throughout the application process, the regulatory authority
may require additional information necessary to assure that the
proposed operation will protect the hydrologic balance, or otherwise
necessary to understand the potential impacts of the operation.
One commenter characterized the requirement for baseline
information for the permit and adjacent areas as flawed because many
States do not consider lands overlying underground workings to be
within either the permit area or the adjacent area. Therefore, many
wells above or close to underground workings would not be surveyed and
there would not exist any baseline against which to measure future
damage and build an enforceable case for replacement of water rights.
OSM does not agree with this characterization. The term ``adjacent
area,'' as defined in 30 CFR 701.5, specifically includes all areas
outside the permit area where resources, including wells or springs,
could reasonably be expected to be adversely impacted by the proposed
mining operation, including probable impacts from underground workings.
The 1979 version of this definition similarly included all lands
containing potentially affected protected resources outside the permit
area. All State programs must contain provisions no less effective than
the Federal regulations. OSM is not aware of any State that has a
deficient definition of ``adjacent area'' or its equivalent. Nor is OSM
aware of any State that is interpreting its program in the manner
alleged by the commenter. Therefore, OSM finds no basis for the
commenter's concern.
A commenter expressed concerns as to how an existing operation
could demonstrate that it has not adversely impacted a well or spring
that serves a water supply, when drought, rather than underground
mining, is the primary factor affecting a water supply. The commenter
noted that an existing operation would not have prepared a
presubsidence survey to establish baseline water conditions. OSM
believes such questions are evidentiary issues that must be addressed
reasonably on the facts of the individual case, just as such issues are
now addressed for replacement of water supplies affected by surface
mining. As noted elsewhere in this preamble, a permittee may also
voluntarily provide a presubsidence survey.
Section 784.20(a)--Pre-subsidence Survey
This section as proposed would add a paragraph to Sec. 784.20(a),
entitled ``Pre-subsidence Survey.'' In response to comments and
requests for clarification concerning the scope of the rulemaking and
of this paragraph, the proposed requirement is being adopted with
modifications in this final rule. The rule language has been revised to
provide that each application include a map of the proposed permit area
and adjacent area at a scale of 1:12,000 or a larger scale if
determined necessary by the regulatory authority. The map would show
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 would also be required to 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.
A narrative is required that must indicate whether subsidence, if
it occurred, could cause material damage or diminish the reasonably
foreseeable use of the identified structures and renewable resource
lands. The narrative is also required to indicate whether subsidence,
if it occurred, could contaminate, diminish, or interrupt the
identified drinking, domestic, or residential water supplies. In
addition to the conventional text format, videos or photographs can be
submitted as supplements to the narrative.
Unless the applicant was denied access for such purposes by the
owner, the rule also requires a survey which identifies certain
features. First, the survey must identify the condition of all non-
commercial buildings or occupied residential dwellings and related
structures that may be diminished by subsidence within the area
encompassed by the applicable angle of draw. Second, the 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. In addition, the applicant would be 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 corresponds to the angle of draw for the operation. (See
discussion of angle of draw in discussion of paragraph 817.121(c)(4),
infra.) Any technical assessment or engineering evaluations used in
determining the pre-mining condition or value of such structures or in
determining the premining quantity and quality of protected water
supplies would be conducted at the permit applicant's expense. Copies
of the survey and any technical assessments or engineering evaluations
must be provided by the applicant to the property owner and regulatory
authority.
Commenters claim that OSM failed to justify the need for a second
map, in addition to the map required by paragraph 783.24(c). The map
requirements of paragraph 784.20(a)(1) could be met by the same map
submitted to comply with paragraph 783.24(c), so long as it meets the
requirements of this paragraph. OSM believes that an explicit
requirement to establish and document the location and pre-mining
condition of protected structures and lands, and the location and pre-
mining quantity and quality of protected water supplies, is essential
to establish a sufficient baseline against which the effects of
subsidence may be measured and to ensure full implementation of SMCRA
sections 516 and 720.
The commenters argue that OSM provided no justification for a
standard, nationwide map scale and suggest that the determination of
the map's scale be left to the individual states, based on mining
conditions in each state. Commenters claim that OSM gave no reason why
the map scale should be 1:4,800. A commenter pointed out that a map of
the mine operation and the affected area at a scale of 1:4,800, as
proposed, could be on the order of 7' x 10'. OSM agrees that a map of
this size would be difficult to review and store. OSM has revised the
proposed rule to allow for a map on a scale of 1:12,000, or 1''=1000'.
If the regulatory [[Page 16730]] authority determines that more detail
is needed, for example to show where protected structures or water
supplies are located, the regulatory authority may request a larger-
scale map. The final map scale requirement will provide both the
regulatory authority and permittee with greater flexibility in meeting
the requirement.
Commenters state that the requirement that maps must include a
narrative description of the hydrologic information is redundant.
Commenters allege that a narrative description would not provide any
additional information that is useful, since paragraph 784.20 already
requires both a map and narrative description. OSM agrees and has
modified the rule. The map and narrative required under final sections
784.20(a)(1) and (2) are not intended to expand on the existing
responsibility to identify renewable resource lands and identify
whether they may be impacted by subsidence. The changes in this
provision concerning map and narrative requirements for water supplies
protected under section 817.41(j) are intended to provide the
information necessary to ensure full implementation of the requirements
of SMCRA section 720, concerning protection of water supplies. The
changes reflect revisions made to paragraphs 784.20(b), 817.41(j), and
817.121(c). OSM anticipates that the regulatory authority may allow the
applicant to utilize (or reference) relevant portions or all of the
narrative prepared for the survey, in the subsidence control plan if
the later narrative would be redundant.
Several commenters assert that the requirements in the proposed
rule governing pre-subsidence surveys would pose a costly burden on
permittees if the requirements are interpreted to require
identification and cataloguing of the entire land surface and
everything on it for the presubsidence survey. Commenters allege this
burden is especially likely, considering the broad definition of
structures and facilities, and commenters strongly disagree with OSM's
assertion in the proposed rule preamble, that the additional survey
would impose ``little'' additional burden on the industry. They also
argue that such surveys have a diminishing usefulness as mining plans
proceed, since the permit applications in which the survey is to be
included are often done years in advance of any actual mining.
Commenters also consider the proposed requirement redundant because of
the existing survey requirements.
OSM has considered these comments and has modified the final rule.
OSM continues to believe that additional requirements are necessary to
effectively implement the requirements of the Energy Policy Act and is
limiting the final requirement to non-commercial buildings, occupied
residential dwellings and related structures, and drinking, domestic,
or residential water supplies. As noted above, OSM has also made
conforming changes to the requirements in paragraph (a) for a
presubsidence map and narrative covering protected features. The
regulatory authority, the permittee, and the surface owner will be
provided with a better record of the status of these protected features
prior to mining. That record will better form the basis of enforcement
in the event of subsidence; but it will also better protect the
permittee against any claim of damage for which the permittee is not
responsible.
Further, OSM believes that these proposed changes will impose no
unreasonable burden on the industry. In providing information on these
features, the survey should incorporate the baseline water quality and
quantity information on existing water supplies required under existing
rules at 30 CFR 784.14 and 784.22. This information is also referenced
in the final rule provision concerning water supply replacement
requirements for underground mining, section 817.41(j). While the
commenters may have pointed out a limitation on the long-term
usefulness of the information, based on OSM's experience OSM believes
that the proposed format for the survey information is the minimum
needed to adequately assess the need for a subsidence control plan. OSM
notes that the regulatory authority may ask for an update of this
information as part of the mid-term permit review process, which would
mitigate any problems with outdated information. If a subsidence
control plan is needed, information in the presubsidence survey may be
incorporated in the subsidence control plan.
Some commenters have noted that the decision as to whether to
impose a pre-subsidence survey has been held by the courts to be a
matter within the sound discretion of the Secretary, NWF v. Lujan,
supra, 733 F.Supp. 419 at 429; and is essential to effectuate the
protections intended to be afforded by amended Sections 720(a)(1) and
(b) of the Act. OSM agrees.
Other commenters characterize this case as rejecting a requirement
that an additional survey be done before mining is commenced. OSM does
not agree with this characterization. The cited case found that the Act
does not speak to the issue of presubsidence surveys, so the matter is
within the Secretary's discretion. The court upheld a decision by the
Secretary not to adopt certain requirements for a presubsidence survey.
Paragraph 784.20(b)--Subsidence Control Plan
This final rule is modified from the proposal to correspond with
the final revisions to paragraphs 817.41(j) and 817.121(a)(2).
Otherwise, the requirements under paragraph 784.20(b) in the final rule
are the same as proposed. Under the final rule, no further information
need be provided in the application under this section if the results
of the pre-subsidence survey meet the following criteria:
(1) no structures, facilities, or renewable resource lands exist,
or
(2) no material damage or diminution in value or foreseeable use
could occur, as a result of mine subsidence, and
(3) the regulatory authority agrees with such conclusion.
A subsidence control plan is required if the survey identifies
structures, facilities, or renewable resource lands and shows that
subsidence could cause material damage or diminution in value or
reasonably foreseeable use, or if the regulatory authority determines
that such damage or diminution could occur.
Under the final rule, paragraph 784.20(b), would require each
subsidence control plan to contain the following information: (1) a
description of the method of coal removal, such as longwall mining,
room-and-pillar removal or hydraulic mining, or other extraction
methods, including the size, sequence and timing for the development of
underground workings; (2) a map of the proposed underground workings
that describes the location and extent of the areas in which planned-
subsidence mining methods will be used and that identifies all areas
where the measures described in paragraphs (b)(4), (b)(5), and (b)(7)
of this section will be taken to prevent or minimize subsidence and
subsidence-related damage; and when applicable, to correct subsidence-
related material damage; (3) a description of the physical conditions,
such as depth of cover, seam thickness, and lithology of the overlaying
strata, which affect the likelihood or extent of subsidence and
subsidence-related damage; (4) a description of the monitoring, if any,
needed to determine the commencement and degree of subsidence so that,
when appropriate, other measures can be taken to prevent, reduce, or
correct material damage in accordance with paragraph 817.121 of this
chapter; (5) except for those areas [[Page 16731]] where planned
subsidence is projected to be used, a detailed description of the
subsidence control measures that will be taken to prevent or minimize
subsidence and subsidence-related damage, such as, but not limited to:
backstowing or backfilling of voids; leaving support pillars of coal;
leaving areas in which no coal is removed, including a description of
the overlying area to be protected by leaving coal in place; and taking
measures on the surface to prevent or minimize material damage or
diminution in value of the surface; (6) a description of the
anticipated effects of planned subsidence, if any; (7) for those areas
where planned subsidence is projected to be used, a description of
methods to be employed to minimize damage from planned subsidence to
non-commercial buildings and occupied residential dwellings and related
structures; or the written consent of the owner of the structure or
facility that minimization measures not be taken; or, unless the
anticipated damage would constitute a threat to health or safety, a
demonstration that the costs of minimizing damage exceed the
anticipated costs of repair; (8) a description of the measures to be
taken in accordance with Secs. 817.41(j) and 817.121(c) of this chapter
to replace adversely affected protected water supplies or to mitigate
or remedy any subsidence-related material damage to the land and
protected structures; and (9) other information specified by the
regulatory authority as necessary to demonstrate that the operation
will be conducted in accordance with Sec. 817.121 of this chapter.
In this preamble OSM will use ``longwall mining'' to refer to the
longwall mining and pillar recovery technologies which provide for
``planned subsidence in a predictable and controlled manner,'' as
referenced in SMCRA section 516(b)(1). The text of the regulations as
adopted continues to use the terms ``mining technology which provides
for planned subsidence in a predictable and controlled manner'' or
``planned-subsidence mining methods.''
Several commenters support the proposal to require permittees to
submit subsidence control plans. These commenters recommend that the
subsidence control plan require the permittee to document the full
range of steps that can be taken to prevent and mitigate subsidence
impacts, including mine design changes and precautionary and preventive
measures taken above ground to minimize damage to surface features and
structures.
However, some commenters argue that amending paragraph 784.20(b)(5)
to require longwall mining to minimize material damage illegally
reverses the current regulations of SMCRA, since the Energy Policy Act
does not require the change and OSM has not shown a compelling need for
such a change. These commenters find no reason to support OSM's
decision to reverse the regulatory provisions governing longwall
mining. They argue that there are sound policy and technical reasons
for supporting the current regulatory scheme and that the proposed rule
would incur additional costs on those permittees who utilize the
longwall mining technique. OSM believes these requirements are fully
authorized under SMCRA sections 201 and 516 and are consistent with and
supportive of the requirements of SMCRA section 720. OSM does not agree
that this provision is inconsistent with SMCRA or the Energy Policy
Act. As discussed infra, in response to comments concerning the scope
of the requirement, OSM has revised this provision somewhat, to require
that, with certain limitations, minimization measures must be taken to
protect the same structures for which, in section 720 of SMCRA,
Congress has imposed a requirement to repair or compensate for damage.
This will ensure that permittees take reasonable steps to minimize
subsidence damage to protected structures before it occurs, without
incurring unreasonable costs. While OSM recognizes that there will be
some additional costs associated with minimization measures, OSM
believes it is sound public policy to limit damage to protected
structures before it occurs, where reasonable, and that such
requirements are fully consistent with SMCRA, as amended. OSM also
expects that the limitations on the obligation to minimize, discussed
infra, will ensure that the expense of minimization will be neither
prohibitive nor disproportionate.
One commenter submitted that the proposed regulations would impose
an absolute requirement for a subsidence control plan because no one
conducting longwall operations on federal lands would ever be able to
demonstrate that there would be no ``diminution in value.'' OSM
believes that the extent to which longwall operations must prepare pre-
subsidence surveys can only be determined on a site-specific basis,
because of the number of variables that may affect both the nature and
extent of subsidence as well as the damage to any protected structures.
The commenter noted that the permittee could not meet the requirement
for the subsidence control plan under the existing regulatory framework
imposed by the Bureau of Land Management, which requires maximum
economic recovery. OSM believes that any requirement to extract
minerals for maximum economic recovery by definition must be applied to
mean maximum economic recovery consistent with applicable regulatory
requirements.
Under the final rule, OSM is retaining the language under existing
paragraph 784.20(b)(5) that provides an exception to the requirement to
submit a detailed description of the measures to be taken on the
surface to prevent or minimize material damage or diminution in value
of the surface for those areas where planned subsidence is projected to
be used.
However, OSM has added paragraph 784.20(b)(7) that requires
permittees conducting longwall mining operations that result in planned
and controlled subsidence to describe the subsidence control measures
they will use to minimize subsidence and subsidence-related material
damage to non-commercial buildings and occupied residential dwellings
and related structures, or to demonstrate that the costs of minimizing
damage to these structures exceed the anticipated cost of repair and
are not needed to prevent a threat to health or safety. The proposed
rule would have required a description of such measures under paragraph
784.20(b)(5)(iv). The subsidence control measures that a longwall
permittee can employ to minimize subsidence and subsidence-related
material damage include measures taken on the surface, such as
trenching, bracing, and jacking structures. OSM does not intend to
require anything other than surface measures to minimize material
damage from longwall mining where conventional underground measures may
not be practicable. The final rule requires that a permittee using
longwall mining technology take necessary measures consistent with the
mining method to minimize material damage to surface lands, structures,
or facilities, with certain limitations. However, OSM recognizes that
underground measures are not normally associated with longwall mining,
because they are not normally consistent with longwall technology. For
example, changes in the design of an ongoing mining operation would not
be required, because OSM has concluded, after considering all comments
and available literature, that the expense of such underground measures
to minimize material damage from longwall mining would be prohibitive,
and therefore inconsistent with congressional intent. [[Page 16732]]
In responding to the proposal to require longwall permittees to use
surface measures to minimize material damage, commenters allege that
surface measures to minimize damage are neither technically nor
economically practicable. These commenters allege that in some cases
use of such measures has not prevented damage; that surface measures
are not always appropriate; that many such measures remain
experimental, unproven in effectiveness, and uncertain as to structural
response; and that they are economically impractical. OSM finds these
arguments unavailing, because they are all countered by the terms of
paragraph 817.121(a)(2). That provision requires ``necessary and
prudent'' measures, ``consistent with the mining method employed,''
``to the extent technologically and economically feasible.'' Thus, if a
measure is unnecessary or imprudent, inconsistent with longwall mining,
or not technologically or economically feasible (or if it will not
minimize material damage to protected features), it will not be
required.
One commenter alleged that the term ``subsidence control'' does not
include measures taken on the surface as suggested in the proposed rule
to protect surface features from damage. The commenter noted that the
use of the term subsidence control in SMCRA and the mining industry
refers to the mine design including the sizing of openings and pillars
which affect ground pressures within the underground mining
environment; and in connection with other factors, affect the amount
and type of ground movement that could result in surface deformation.
To the extent this may have been true in the past, OSM regards this as
irrelevant to the merits of this rulemaking, which establishes separate
subsidence control requirements for those operations using planned
subsidence and for those using conventional mining operations.
OSM is revising paragraph 784.20(b)(5) as an adjunct to the
revisions to paragraph 817.121(a). The substance of these revisions is
discussed infra under the heading for section 817.121(a).
OSM is also revising section 784.20(b)(8) as an adjunct to the
revisions to section 784.20(a) and to reflect the requirements of
section 817.41(j).
Section 817.10--Information Collection
OSM is revising Section 817.10 which contains the information
collection requirements for Part 817 and the OMB clearance number.
One commenter stated that the burden required to establish a
monitoring program under new paragraph 817.121 (c)(4) to determine
surface damage based on a specified angle of draw could require 1,000
hours to perform. Consultations were held with OSM mine engineers who
estimated the burden at approximately 250 hours. Therefore, OSM
estimates the public reporting burden for the new information
collection requirements for Sec. 817.121(c)(4) to vary from 250 to
1,000 hours per response.
The collections of information contained in Part 817 have been
approved by Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0048. The information will be
used to meet the requirements of 30 U.S.C. 1211, 1251, 1266, and
1309(a) which provide, among other things, that permittees conducting
underground coal mining operations shall meet the applicable
performance standards of the Act. This information will be used by the
regulatory authority in monitoring and inspecting underground mining
activities. The obligation to respond is required to obtain a benefit.
Section 817.41(j)--Hydrologic Balance Protection
The proposed rule included two provisions concerning performance
standards for underground mining activities, for water supply
replacement: paragraphs 817.41(j), concerning replacement of water
supply used for agricultural, industrial, or other legitimate use; and
817.41(k), concerning replacement of water supplies used for drinking,
domestic, or residential use.
Proposed paragraph 817.41(j) provided that a person who conducts
underground mining activities shall replace the water supply of an
owner of an interest in real property who obtains water for
agricultural, industrial, or other legitimate use from an underground
or surface source, where the water supply has been adversely impacted
by contamination, diminution, or interruption proximately resulting
from the underground mining activities. Several commenters objected to
this requirement.
Commenters claim that OSM provides no justification for changing
its longstanding policy of not requiring water replacement for such
users. The commenters maintain that the change in policy would
contradict section 717(a) of SMCRA, which requires OSM to respect state
water and property rights law. The commenters went on to state that
this provision of the proposed rule went beyond the requirements of the
Energy Policy Act and preempts state water law, thus removing the
protections that SMCRA affords to state water laws. The commenters also
pointed to the unique physical characteristics of western states that
necessitate respect for the individual state water laws. After
consideration of all comments on this issue, and after review of all
available documentation of the need for the performance standards set
out in proposed paragraph 817.41(j), OSM has concluded that the
existing record does not clearly support the need for this provision.
Therefore, OSM has decided not to exercise its discretionary authority
under SMCRA, to require such protection. OSM will not require
replacement of water supplies not mandated by the Energy Policy Act.
Therefore, OSM is not adopting proposed 817.41(j) that would have
required replacement of water supplies used for agricultural and
industrial uses.
In proposed 817.41(k), OSM proposed to require a permittee to
promptly replace a drinking, domestic or residential water supply that
is contaminated, diminished or interrupted by underground mining
activities conducted after October 24, 1992, if the affected well or
spring was in existence prior to the date the regulatory authority
received the permit application for the underground mining activities.
Baseline hydrologic information required in sections 784.14 and 784.22
would be used to determine the impact of underground mining activities
on the well or spring.
The final rule provision concerning replacement of drinking,
domestic or residential water supply is renumbered and appears at
paragraph 817.41(j). Under the final rule, the permittee is required to
promptly replace any drinking, domestic or residential water supply
that is contaminated, diminished or interrupted by underground mining
activities conducted after October 24, 1992, if the affected well or
spring was in existence prior to the date the regulatory authority
received the permit application for the activities causing the loss,
contamination or interruption. The baseline hydrologic information
required in Sec. 784.14 of this chapter and the geologic information
concerning baseline hydrologic conditions required in Sec. 784.22 of
this chapter shall be used to determine the impact of underground
mining activities upon the well or spring. This information is not
intended to be the exclusive basis for determining such impacts, and
other relevant information could also be considered. Permittees both in
primacy States and in Federal program States, as well as on
[[Page 16733]] Indian lands, are required to comply with these
provisions for operations conducted after October 24, 1992.
The majority of commenters agreed that the provision to require the
permittee to promptly replace any drinking, domestic, or residential
water supplies that have been adversely affected by underground
activities is necessary to implement the provision of new SMCRA section
720(a)(2).
While commenters support the adoption of the proposed rule, they
maintain that it is not necessary to monitor each water well in order
to establish that subsidence has impacted a water supply well. OSM
agrees that in many instances it may not be necessary to monitor each
well. The location and frequency of well monitoring will be addressed
on a case-by-case basis pursuant to existing paragraphs 784.14(h)(1)
and 817.41(c).
A commenter asked for clarification that this provision would not
in any way affect property rights under existing state water laws
consistent with paragraph 717(a). Another commenter further recommended
that OSM amend the provision to require that water rights regarding the
affected well or spring be approved by the State Engineer or otherwise
be recognized under State law. OSM points out that nothing in this
requirement is intended to create an exception to section 717(a) of
SMCRA. Section 717(a) requires deference to State water law on
questions of water allocation and use. OSM interprets section 720 and
the implementing rules as not requiring the replacement of water
supplies to the extent underground mining activities consume or
legitimately use the water supply under a senior water right determined
under applicable State law. See In re Permanent Surface Mining
Regulation Litigation II, Round III, 620 F. Supp. 1519, 1525 (D.C.D.C.
1985). However, OSM believes that section 717(a) concerns rights under
State water law to consumption or use of water, and was not intended to
address destruction or damage of the source of water, or contamination
of the water supply. Thus, OSM anticipates that underground mining
activities which cause destruction or damage of a water supply source,
or contamination of a water supply, would be subject to the replacement
requirements of section 720 even if the permittee possessed senior
water rights.
A commenter recommended that compensation be available as an option
for those limited circumstances where an impacted supply can't be
restored. The commenter went on to note that Congress, in enacting the
Energy Policy Act, clearly noted that these provisions were not to
``prohibit, or interrupt underground coal mining operations.'' Without
the compensation option, the commenter asserted that operations would
be forced to cease operating if they couldn't replace the water
supplies. OSM does not agree. The terms of the Energy Policy Act
unequivocally require replacement. Further, OSM does not anticipate
that underground mining operations will be unable to comply with this
statutory mandate. For example, if the permittee is unable to restore a
spring or aquifer, the permittee should still be able to provide water
from an alternative source, such as a public water supply, or by
pipeline from another location.
Section 817.121(a)--Subsidence Control
OSM is adopting paragraph 817.121(a)(1) as proposed. The
requirement provides that the permittee 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.
This language is not intended to be a change from the rules
promulgated in 1983, (See 48 FR 24652, June 1, 1983), and relies on the
basis and purpose stated in 1983. This rulemaking makes minor editing
changes intended to more clearly reflect the meaning of the existing
rule. Thus, under this provision, as an alternative to adopting
measures consistent with known technology which prevents subsidence
causing material damage to the extent technologically and economically
feasible, an permittee may adopt mining technology which provides for
planned subsidence in a predictable and controlled manner.
OSM is adopting paragraph 817.121(a)(2) with modification from the
proposed rule. Under the proposed rule, if a permittee employed mining
technology which provides for planned subsidence in a predictable and
controlled manner, the permittee would have been required to take
necessary and prudent measures, consistent with the mining method
employed, to minimize material damage to surface lands, structures or
facilities to the extent technologically and economically feasible.
Under the final rule, the responsibility to minimize damage is limited
to structures listed in the Energy Policy Act, namely noncommercial
buildings and occupied residential dwellings and related structures.
However, unless the anticipated damage would constitute a threat to
health or safety, the permittee would not have to take minimization
measures if the permittee demonstrates that the cost of minimization
would exceed the cost of repair, and would not constitute a threat to
health and safety. The permittee is obliged to take minimization
measures that are technologically and economically feasible. Upon
written consent of the owners of such structures or facilities, no
minimization measures would be required.
Section 2504(a)(2)(D) of the Energy Policy Act provides that any
rulemaking regarding protection of natural gas or petroleum pipelines
from subsidence damage is to be done after the study which OSM is
mandated to perform pursuant to paragraph 2504(a)(2)(A) of the Energy
Policy Act. Some commenters express concern that proposed paragraph
817.121(a)(2) prejudged this issue, while others support the rule
because they believe it does impose additional subsidence damage
protection for pipelines. Since OSM has not yet completed the study
mandated by the Energy Policy Act, OSM does not intend this rulemaking
to affect, interpret, or clarify the status quo regarding subsidence
control requirements for natural gas or petroleum transmission
pipelines, branch and gathering lines, or distribution mains. For these
and other reasons discussed below, OSM has decided to limit
817.121(a)(2) to those structures protected under the Energy Policy
Act, namely noncommercial buildings and occupied residential dwellings
and related structures.
Commenters claim that the proposed provision that required
permittees to minimize damage from planned subsidence operations was
vague and unworkable since little guidance was provided as to what
minimizing damage would entail. Commenters argue that OSM's contention
that the new rule would clarify an unresolved issue over the meaning of
paragraph 817.121(a) was misguided, since the proposed rule did little
to clarify the issue and would likely result in even more litigation.
Commenters also allege that, rather than clarify the obligation of
planned subsidence operations concerning subsidence damage, the
proposed rule would effectively remove the exception granted in SMCRA
for planned subsidence. These commenters questioned the effect of OSM's
proposed provision on the planned subsidence exception at section
516(b)(1) of SMCRA if an operator using planned subsidence must adopt
and deploy the same [[Page 16734]] subsidence control measures as an
operation not using planned subsidence.
OSM has considered these comments as well as the existing
regulatory scheme of SMCRA and has concluded that, given the lack of
clarity of section 516 on this issue, the most reasonable regulatory
scheme and the regulatory scheme most consistent with SMCRA as amended
by the Energy Policy Act, is to provide longwall subsidence damage
minimization requirements that track the protections offered by the
Energy Policy Act concerning subsidence from other forms of underground
mining. Although the Energy Policy Act does not specifically address a
minimization standard for longwall mining, it demonstrates Congress'
intent to specifically require subsidence damage repair or compensation
only for the structures listed in section 720. Therefore, the final
rule limits the requirement to take measures to minimize material
damage resulting from longwall subsidence to those structures protected
in the Energy Policy Act. This is not a prevention standard, so a
planned subsidence operation will not be required to meet the same
subsidence control standard that applies to an operation not using
planned subsidence. The addition of a limited requirement that longwall
mine operators ``minimize'' damage in certain circumstances is not
inconsistent with the SMCRA provision at section 516(b)(1) which
exempts longwall mining from the requirement to prevent material
damage. Authority for the minimization standard derives from both
section 516(b)(1) and section 720 of SMCRA. OSM recognizes that
Congress expressly stated in the Energy Policy Act that nothing in the
statute regarding surface owner protections shall be construed to
prohibit or interrupt underground coal mining operations. OSM believes
that the final rule which contains a limited requirement for longwall
operations to minimize subsidence damage in certain circumstances is
consistent with Congress' guidance contained in the Energy Policy Act.
OSM believes that, by requiring only surface measures to minimize
subsidence damage to non-commercial buildings and occupied residential
dwellings and related structures, and only when it is technologically
and economically feasible, the final rule establishes reasonable
subsidence control measures that are also consistent with Congress'
intent to support and encourage the use of planned and controlled
subsidence. Further, by also providing that the requirement does not
apply if the permittee demonstrates that minimization would cost more
than repair, OSM believes it has mitigated any potential for
unreasonably expensive minimization measures. OSM recognizes that some
material damage to protected structures from planned subsidence is
possible and in some cases will not be prevented under this rule.
However, under paragraph 817.121(c), such damage has to be repaired.
The requirement is not intended to discourage the use of planned and
controlled subsidence or to require underground activities not normally
associated with such operations. OSM does intend, however, that this
rule will require reasonable measures to be taken on the surface to
protect occupied residential dwellings and related structures and non-
commercial buildings from material damage. OSM believes that the
subsidence control policy outlined in the Consolidation Coal Company
video, presented to OSM during an on-site tour of coal fields, and
available in the administrative record for this rulemaking, illustrates
the kinds of measures that would adequately meet the needs of the
homeowner and the permittee in deciding when and what types of measures
should be taken on the surface to minimize damage. Further, this
videotape demonstrates the reasonableness of using such minimization
techniques.
The commenters also question the provision that the proposed
performance standards are mandatory unless the landowner consents.
Commenters state that requiring measures to be taken to protect
structures and facilities unless the owner consents, raises a number of
issues with regard to exactly when and for what purposes a permittee is
required to obtain the owner's consent. For example, if the permittee
finds that certain measures are not prudent or economically or
technologically feasible, must the permittee still obtain the owner's
written consent? Also, if an owner were to steadfastly refuse to
consent to an otherwise flawless planned subsidence operation,
commenters opined that the requirement to obtain the owner's consent
could be considered an uncompensated taking of the permittee's property
right.
The obligation to take necessary and prudent measures on the
surface consistent with the mining method employed, to minimize
material damage to occupied residential dwellings and related
structures and non-commercial buildings to the extent technologically
and economically feasible, except when minimization costs would exceed
repair costs, is mandatory. However, neither the regulatory authority
nor the permittee is required to obtain the landowner's concurrence in
order to satisfy that test. Instead, the minimization measures would be
explained in the subsidence control plan, which the landowner has a
right to review and object to, and which requires the approval of the
regulatory authority. The consent provision allows the permittee to
negotiate an arrangement with an owner of a structure or facility to
waive the protection otherwise afforded by paragraph 817.121(a)(2).
Such a written waiver would have to waive expressly the regulatory
protection provided by the proposed rule and therefore could not be a
document which predates adoption of the final rule. OSM notes that such
a waiver would not be effective to waive any requirement pursuant to
paragraph 817.121(c) to repair damage from subsidence. In addition to
the waiver provision, the final rule includes a provision that a
permittee will not be required to take measures to minimize subsidence
damage upon a demonstration that the costs of such measures would
exceed the repair costs for the damage. In both cases, the permittee
could allow the damage to occur, and repair it pursuant to paragraph
817.121(c).
One commenter alleges that damage minimization measures for
longwall mining cannot be limited to surface measures, because the
SMCRA legislative history indicates that Congress contemplated
underground preventive measures such as backstowing, provided such
measures are technologically and economically feasible. The commenter
cites H.R. Rep. No. 218, 95th Congress, First Session (1977) at 125-
126. OSM does not agree with this characterization of the cited House
Report. OSM believes the cited House Report materials discuss damage
prevention and minimization measures appropriate for conventional room-
and-pillar mining; there is no specific reference to longwall mining.
For example, the referenced portion of the report states that:
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.
H. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977). Such problems
are not characteristic of longwall mining. Therefore, it is unlikely
Congress had longwall mining in mind when it discussed appropriate
prevention [[Page 16735]] measures in this passage. OSM concludes the
report does not show congressional intent to require use in longwall
mining of the measures discussed in this passage.
Section 817.121(c)--Subsidence Control
817.121(c)(1)
In the proposed rule, paragraph 817.121(c)(1) would be modified to
substitute ``subsidence related material damage'' for ``any material
damage resulting from subsidence; ``permittee'' for ``operator;'' and
``its pre-subsidence value and supporting reasonably foreseeable uses
it was capable of supporting * * *'' for ``the value and reasonably
foreseeable uses which it was capable of supporting * * *.'' The
changes were editing changes not intended to have a substantive effect
on the rule. However, commenters express concern over the changes in
the language of paragraph (c)(1) because the preamble did not contain
an explanation for the proposed changes. In the final rule, OSM is not
amending the text of this provision but is adding a heading for the
paragraph to assist in reading and application of the provision.
817.121(c)(2)
Paragraph 817.121(c)(2) is being adopted as proposed. The final
rule requires that a permittee either promptly repair material damage
caused by subsidence to any non-commercial building or occupied
residential dwelling or related structure, or compensate for material
damage caused by subsidence to those structures. If the repair option
is selected, the permittee must fully rehabilitate, restore or replace
the damaged structure. If the compensation option is selected, the
permittee must compensate the owner of the damaged structure in the
full amount of the diminution of value resulting from the subsidence-
related damage. Compensation may be accomplished by the purchase, prior
to mining, of a non-cancelable premium-prepaid insurance policy. The
requirements of this paragraph apply to all subsidence-related damage
caused by underground mining activities conducted after October 24,
1992.
Paragraph 817.121(c)(2) implements new SMCRA section 720 (a)(1),
which requires that all underground coal mining operations promptly
repair or compensate for material damage to non-commercial buildings
and occupied residential dwellings or related structures as a result of
subsidence due to underground coal mining operations. Permittees in
both primacy States and Federal program States, as well as on Indian
lands, are required to comply with this provision for operations
conducted after October 24, 1992. Possible interim direct enforcement
of this provision by OSM in some primacy States prior to amendment of
State programs is addressed below in revisions to Part 843.
A group of commenters recommended that the rule recognize that pre-
subsidence agreements and post-subsidence agreements between the
property owner and the permittee would satisfy the requirements under
paragraph 817.121(c)(2), and that nothing in this paragraph should be
construed to prohibit or interrupt underground coal mining operations.
The use of pre- and post-subsidence agreements would be an
acceptable means of fulfilling the requirement so long as the terms met
the requirement under paragraph 817.121(c)(2) that the permittee repair
or compensate any subsidence-related material damage to any non-
commercial building or occupied residential dwelling or related
structure. Any permittee/owner agreements cannot negate the requirement
of the Energy Policy Act to repair or compensate for subsidence-related
material damage to occupied residential dwellings and related
structures as well as non-commercial buildings. OSM anticipates that
repair pursuant to paragraph 817.121(c)(2) will restore the protected
structure or facility to its premining capacity, features, value, and
utility. OSM reiterates that the requirements in this paragraph are not
intended to prohibit or interrupt underground coal mining operations.
Commenters allege that the permittee is not under obligation to
repair subsidence-related damage to any building constructed after
mining has occurred. OSM agrees with this comment. If the protected
structure was damaged from subsidence from underground mining, and that
mining occurred after the date set forth in the Energy Policy Act, then
the Energy Policy Act requires that the permittee repair or compensate
for the material damage. However, Congress does not discuss whether
there should be any different treatment for structures that did not
exist when the mining took place. For such structures, there would be
no opportunity for the permittee to mitigate or prevent subsidence
damage, and thus avoid the requirement to repair or compensate. Nor
would it be possible for a permittee to anticipate what structures
might be built above the mine after mining occurs and thus plan for
anticipated costs to determine if mining would be economically
feasible. On the other hand, surface owners can know the extent to
which land they plan to build on has been undermined by previous mining
operations. Therefore, OSM believes that it is reasonable to conclude
that the requirement should not apply to structures which did not exist
at the time of mining. OSM is adopting this interpretation in the final
rule, and has revised paragraph 817.121(c)(2) accordingly.
Commenters also allege that the obligation to repair subsidence-
related damage does not apply to buildings acquired after the mining
occurred. OSM does not agree. SMCRA section 720 provides that
underground coal mining operations conducted after the date of
enactment of the Energy Policy Act shall promptly repair or compensate
for material damage resulting from subsidence caused to any occupied
residential dwelling and structures related thereto, or non-commercial
building. Section 720 does not distinguish among such structures based
on whether they were acquired before or after the date of mining.
Rather, all such structures are subject to the requirement to promptly
repair or compensate. OSM believes the language of the statute is
clear, and the interpretation urged by commenters is inconsistent with
the terms of the statute.
A commenter notes that the proposed rules lack provisions
establishing requirements for notification of the permittee or
regulatory authority, or for estimate, repair, replacement, or
compensation time frames. OSM believes that existing citizen complaint
procedures are adequate and appropriate to address surface owner
complaints of subsidence damage under these rules.
OSM believes preparation or approval of estimates is properly
addressed under existing procedures, by case-by-case negotiations with
the surface owner, and regulatory authority review of reclamation
measures. Similarly, OSM believes timely repair or compensation of
protected structures is adequately addressed by the use of the
statutory term ``prompt,'' which is commonly understood to mean
``expeditious'' or ``immediate.'' OSM notes that several commenters
give examples of situations which may involve substantial variation in
the time required before the full extent of subsidence damage can be
confirmed, or before repairs properly may be commenced. OSM concludes
that what is reasonably prompt for repair or compensation is properly
determined on a case-by-case basis.
Commenters request changes in the existing rules providing for
notice to property owners in advance of [[Page 16736]] underground
mining, because the rules require notice at least six months before
mining, and this does not allow the surface owner to determine when
mining actually takes place under his property. OSM did not propose to
amend existing rules concerning advance notice of underground mining to
surface owners, and the record does not justify a new rulemaking on
this issue at this time.
A commenter requests that OSM clarify that the permittee is not
required to restore or compensate for deterioration to a structure
beyond what was caused by subsidence from underground mining. OSM
believes the language of proposed paragraph 817.121(c)(2) is clear to
this effect and that no rule changes are required to achieve this
result.
One commenter asked that OSM make clear that any and all subsidence
damage is subject to the requirement to repair and compensate
indefinitely into the future, even if the permittee has previously
repaired or settled with the affected property owner or pipeline
operator; and that OSM clarify that the obligation to repair is not
dependent on active mining or an active permit or upon termination of
jurisdiction by OSM. OSM agrees that once damage occurs, an underground
mining operation has a statutory obligation to repair, which may not be
negated by a prior agreement.
817.121(c)(3)
The purpose of proposed paragraph 817.121(c)(3) was to ensure
repair or correction of material damage caused by subsidence to those
structures and facilities not covered by new SMCRA section 720 (a)(1)
and paragraph (c)(2) of proposed section 817.121. The proposed
amendments to paragraph (c)(3) would have required repair or correction
irrespective of limitations otherwise applicable under State law. The
proposed rule would have required a permittee to either correct
subsidence-related material damage to any structures or facilities not
protected by paragraph (c)(2) by repairing the damage, or compensate
the owner of such structures or facilities in the full amount of the
diminution in value resulting from the subsidence. Repair of damage
would have included rehabilitation, restoration or replacement of
damaged structures or facilities. Compensation by the permittee could
have been accomplished by the purchase, prior to mining, of a non-
cancelable premium-prepaid insurance policy.
A number of commenters support the proposed rule and the need for
the proposed rule, and discuss various respects in which the existing
rule and state laws fail to adequately protect structures and
facilities from subsidence damage. One commenter recommended that OSM
draft a regulation stipulating that any and all subsidence damage is
subject to the regulations to repair and compensate even if the
permittee has previously repaired or settled with the affected property
owner.
The majority of commenters noted that in the Energy Policy Act
Congress expressly limited relief for damage arising from subsidence to
``occupied residential dwellings and structures related thereto, or
non-commercial buildings'' and water supplies. The commenters argued
that for more than a decade OSM has required permittees to correct
material damage ``to the extent required by state law'' and they state
that no compelling need has been demonstrated that would require OSM to
change its policy and preempt state law and property rights. Therefore,
commenters claim that the proposed rule has no basis under the Energy
Policy Act and that OSM's cursory explanation of the reasons behind the
new rule demands that the proposed rule not be adopted.
Commenters also claim that the existing state law remedies are
adequate and that court decisions support their proposition that SMCRA
does not specifically ``require the Secretary to impose a duty to
restore structures damaged by subsidence.'' National Wildlife Fed'n v.
Lujan, 928 F.2d 453, 458 (D.C. Cir. 1991). These commenters argue that,
without ample evidence that state law remedies for such damage are
inadequate, there is no compelling reason for OSM to disregard the
clear congressional intent behind SMCRA that ``state laws govern the
resolution of any disputes about property right which might arise from
such separations, and this Act does not attempt to tamper with such
state laws.'' S. Rep. No. 95, 95th Cong. 1st Sess. at 56 (1977).
Commenters also point out that currently the states conducting 99
percent of the nation's coal mining provide statutory regulatory relief
for damage caused by subsidence. Some commenters allege that the
proposed rule would significantly affect private property rights and
raise numerous issues regarding the Fifth Amendment's takings clause.
Those commenters state that there is simply no compelling evidence for
OSM to preempt state property law and that the proposed rule violates
the express terms of the Energy Policy Act.
Numerous commenters interpret this provision as providing for
subsidence protection of natural gas and petroleum pipelines. Some
commenters assert that the proposed rule directly contradicts the
congressional requirement that the Secretary complete a study on the
pipeline issue before any rules on the issue are promulgated.
Commenters also comment extensively on the impact the rule would have
on the property rights of both coal and pipeline companies. Some
commenters argued that even more extensive protection of pipelines is
appropriate or necessary. OSM has reviewed these comments, but
reiterates that, with the very limited exception noted above for
connector lines attached to specific occupied residential dwellings or
non-commercial buildings, Congress intended no change in the subsidence
control regulations regarding natural gas and petroleum pipelines, and
that no rulemaking on this issue is contemplated pending completion of
the study on this subject pursuant to section 2504 of the Energy Policy
Act. OSM is not addressing this issue in this rulemaking. If, after
completion of the subsidence pipeline study, OSM determines that
further rulemaking may be appropriate on this subject, OSM will invite
interested persons to review and comment on any further rulemaking.
OSM has considered all comments and has decided not to adopt the
proposed changes to paragraph 817.121(c)(3). Instead OSM will retain
the State law limitation set out in the existing regulations. The basis
and purpose for the State law limitation was upheld by the D. C.
Circuit Court of Appeals. National Wildlife Fed'n v. Lujan, 928 F.2d
453, 458 (D.C. Cir. 1991). OSM believes that circumstances have not
changed significantly since OSM's adoption of the State law limitation;
and OSM concludes that the record developed in this rulemaking is
insufficient to justify eliminating the State law limitation except as
provided in the Energy Policy Act. Under the final rule, the permittee
is required, to the extent required under applicable provisions of
State law, to either correct material damage resulting from subsidence
caused to any structures or facilities not protected by paragraph
(c)(2) of this paragraph by repairing the damage, or compensate the
owner of such structures or facilities in the full amount of the
diminution in value resulting from the subsidence. Repair of damage
shall include rehabilitation, restoration or replacement of damaged
structures or facilities. Compensation may be accomplished by the
purchase, prior to mining, of a non-cancelable premium-prepaid
insurance policy. [[Page 16737]]
817.121(c)(4)
OSM proposed paragraph 817.121(c)(4), which would have established
a rebuttable presumption of a causal link between the operation of an
underground mine and subsidence damage occurring within a specified
zone over the area of coal extraction. Specifically, the proposed rule
provided that, if damage to lands, structures or facilities occurs as a
result of earth movement within an area determined by projecting a 35
degree angle of draw from the outermost boundary of any underground
mine workings to the surface of the land, a rebuttable presumption
would exist that the permittee caused the damage. The regulatory
authority could also have approved a different angle of draw on a case-
by-case basis if the permittee demonstrated that the proposed angle of
draw is based on a site-specific geotechnical analysis of the potential
surface impacts of the mining operation. If the permittee was denied
access to the land or property for the purpose of conducting the pre-
subsidence survey in accordance with Sec. 784.20(a) of this chapter, no
rebuttable presumption would have existed. These requirements would
have applied only to subsidence-related damage caused by underground
mining activities conducted after October 24, 1992.
After reviewing the comments and based on OSM technical analysis,
OSM has modified the final rule from that which was proposed. In the
final rule, paragraph 817.121(c)(4) has been divided into five
subparagraphs for clarification and readability. Final paragraph
817.121(c)(4)(i), provides 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 the permittee caused the damage.
Thus, the final rule is limited to structures protected under section
720(a) of SMCRA. Also, instead of 35 degrees, as proposed, the final
rule provides that the presumption applies to a 30 degree angle of
draw. However, a State regulatory authority may amend its regulatory
program to apply the presumption to a different angle of draw upon
demonstrating in writing that the angle is more reasonable than the 30
degree angle of draw, based on geotechnical analysis of the factors
affecting potential surface impacts of underground coal mining
operations in the State. OSM recognizes that the ``more reasonable''
standard is a different standard than would otherwise apply under SMCRA
section 503(a) and 30 C.F.R. section 732.15(a) to OSM review of a State
regulatory program amendment. However, OSM believes that this is the
appropriate standard to apply to approval of a different State-wide
angle of draw, because it will allow a State to adopt either a greater
or lesser angle of draw, so long as the State angle of draw is better
supported by geotechnical analysis than is the 30 degree angle of draw.
OSM believes this standard for review will best assure that the area
within which the presumption will apply can reasonably be expected to
include almost all damage caused by subsidence, without unreasonably
expanding the permit applicant's burden of surveying to areas where
damage would likely not be attributable to subsidence.
Under final paragraph 817.121(c)(4)(ii), a person may request and
the regulatory authority may approve application of the presumption to
a different site-specific angle of draw based on a site-specific
analysis submitted by the permit applicant. To establish a site-
specific angle of draw, a permit applicant must demonstrate and the
regulatory authority must determine in writing that the proposed angle
of draw has a more reasonable basis than the applicable standard, based
on a site-specific geotechnical analysis of the potential surface
impacts of the mining operation. Like the standard for approval of a
different State-wide angle of draw, this standard for approval of a
site-specific angle of draw is intended to assure that the area within
which the presumption will apply can reasonably be expected to include
almost all damage caused by subsidence, without unreasonably requiring
the permit applicant to survey the area where damage would likely not
be attributable to subsidence.
Under final paragraph 817.121(c)(4)(iii), if the permittee was
denied access to the property to conduct the presubsidence survey in
accordance with Sec. 784.20(a), no rebuttable presumption exists.
Final paragraph 817.121(c)(4)(iv) sets forth examples of evidence
which would rebut the presumption, including evidence that establishes
that the damage predated the mining; that the damage was proximately
caused by some other factor and not by subsidence; and that the damage
occurred outside the surface area where subsidence was caused by the
underground mining.
Paragraph 817.121(c)(4)(v) requires that all relevant and
reasonably available information must be considered in any
determination as to whether subsidence damage to protected structures
subject to paragraph 817.121(c)(2) was caused by subsidence from
underground mining.
The purpose of paragraph 817.121(c)(4) is to set out a procedure
under which a specified area would be subject to a rebuttable
presumption that subsidence from underground mining caused surface
damage to non-commercial buildings or occupied residential dwellings
and related structures. This evidentiary standard would simplify
establishing causation of subsidence damage in many cases, by relieving
the regulatory authority of the initial burden of providing evidence
that damage was caused by the mine operation. The presumption would be
established only after it is determined that damage caused by earth
movement did in fact occur within the specified angle of draw. The
burden of rebutting the presumption will be appropriately on the mine
operator, who will have the best information as to the nature, timing,
and sequence of mining activities, geological conditions, etc.; i.e.,
the types of facts directly related to causation of the damage.
Permittees may provide information to rebut the presumption either
before an enforcement action is taken, when the regulatory authority or
OSM is determining whether a violation exists because of a failure to
repair or compensate for damage; or after enforcement action occurs.
OSM believes that the establishment of a specific angle for the
presumption is important and has a number of effects or ramifications.
In any enforcement proceedings concerning allegations of subsidence
damage to protected structures, it will affect the initial burdens of
going forward with the evidence for both the regulatory authority and
the permittee. It will also affect operator permitting costs to some
extent, because under the amendments to paragraph 784.20(a)(3) in this
rulemaking, once the angle for the presumption is established, permit
applicants will be required to comply with all presubsidence survey
requirements covering at least the area within the angle to which the
presumption applies. OSM has concluded that application of the
presumption to the area within a specified angle provides needed
protection of surface interests, while providing a clear limitation on
the permit expenses that could be incurred in the absence of defined
limits to a presumption. As a result, OSM believes applying the
presumption to a specified angle will balance the various purposes
[[Page 16738]] of SMCRA, including both environmental protection and
the SMCRA section 102(k) purpose of encouraging the full utilization of
coal resources through the application of underground extraction
technologies.
Since a presumption is important in all cases, OSM has decided to
adopt a nationwide angle of draw for that presumption. Among issues
noted by various commenters was concern over using the ``angle of
draw'' and the appropriateness of the angle proposed. Depending on
factors such as the location and size of the mine, the percent of
extraction, and the local geology, the angle of draw or the area where
damage may occur can vary considerably both regionally and locally.
Yet, there is a need for a nationwide presumption standard so long as
it can be modified on a state-wide or site-specific basis.
Many studies have been conducted to measure the extent of surface
displacement and damage resulting from subsidence. OSM has considered
such studies including:
Montz, H.W., and Norris, R.U., 1930, ``Subsidence from Anthracite
Mining, with an Introduction on Surface Report,'' Transactions AIME,
Vol. 88, pp. 98-134.
Newhall, F.N., and Plein, L.N., 1936, ``Subsidence at the Merrittstown
Air Shaft Near Brownsville, Pennsylvania,'' Transactions AIME, Vol.
119, pp. 58-94.
Cortis, S.E., 1969, ``Coal Mining and Protection of Surface Structures
are Compatible,'' Mining Congress Journal, Vol. 55, No. 6, Jun., pp 84-
88.
Bauer, R.A., and Hunt, S.R., 1981, ``Profile, Strain, and Time
Characteristics of Subsidence from Coal Mining in Illinois,''
Proceedings 1st Workshop on Surface Subsidence Due to Underground
Mining, S.S.Peng, ed., West Virginia University, Morgantown, WV, pp.
207-219.
Conroy, P.J., 1979, ``Rock Mechanic Studies, Longwall Demonstration at
Old Ben # 24, Benton, Ill.,'' Phase I and II Reports submitted to USBM,
57 pp.
Peng, S.S., and Chayan, C.T., 1981, ``Surface Subsidence, Surface
Structural Damages and Subsidence Prediction Modelling in the
Appalachian Coalfields,'' Proceedings Workshop on Surface Subsidence
Due to Underground Mining, S.S.Peng, ed., West Virginia University,
Morgantown, WV, pp. 73-87.
Adamek, V., and Jeran, P.W., 1981, ``Evaluation of Existing Predictive
Methods for Mine Subsidence in the US,'' Proceedings 1st Annual
Conference on Ground Control in Longwall Mining and Mining Subsidence,
SME-AIME, New York, pp. 183-187.
Wade, L.V., and Conroy, P.J., 1977, ``Rock Mechanic Study of a Longwall
Panel,'' Preprint No. 77-I-391, SME Fall Meeting, St. Louis, MO.
Conroy, P.J., 1979, Rock Mechanics Studies, Longwall Demonstration at
Old Ben #24, Benton, IL, Phase I and II Report, Submitted to US Bureau
of Mines, 57 pp.
Bauer, R.A., and Hunt, S.R., 1981, ``Profile, Strain, and Time
Characteristics of Subsidence from Coalmining in Illinois,''
Proceedings, Workshop on Surface Subsidence Due to Underground Mining,
S.S.Peng and M.Harthill, eds., West Virginia University, Morgantown,
WV, pp. 207-217.
Hood, M., Ewy, R.T., and Riddle, L.R., 1981, ``Empirical Methods of
Subsidence Predicting--A Case Study,'' Proceedings Workshop on Surface
Subsidence Due to Underground Mining, S.S.Peng, ed., West Virginia
University, Morgantown, WV, pp. 100-123.
Gentry, D.W., Able, J.F., 1978, ``Rock Mass Response to Mining Longwall
Panel 4N York Canyon Mine,'' Presentation at AIME Annual Meeting,
Atlanta, GA, 33 pp.
Allgaier, F.K., 1988, ``Surface Subsidence over Longwall Panels in the
Western US--Final Results at the Deer Creek Mine, Utah,'' Information
Circular 9194, US Bureau of Mines, 17 pp.
Durand, C.R., 1984, ``Coal Mine Subsidence Western United States,''
Man-Induced Land Subsidence, Reviews in Engineering Geology, Vol. VI,
T.L.Holzer, ed., pp. 151-194.
Peng, S.S., and Chiang, H.S., 1984, Longwall Mining, Wiley, New York,
708 pp.
Peng, S.S., 1986, Coal Mine Ground Control, 2nd ed., Wiley, New York,
491 pp.
Hasenfus, G.J., 1984, ``The Prediction of Surface Subsidence Due to
Room and Pillar Mining in the Appalachian Coalfield,'' MS Thesis, VPI &
SU, 326 pp.
For the following reasons, OSM has concluded that the angle of draw
is a reasonable way of delineating the area within which it will be
presumed that damage was caused by subsidence. The ``angle of draw'' is
the angle of inclination between the vertical at the edge of the
underground mine workings and the point of zero vertical displacement
at the edge of a subsidence trough. Thus, the angle of draw is one way
to define the outer boundary of subsidence displacement that may occur
at the surface. This angle encompasses the area within which both
dynamic and static strains, as well as phenomena such as curvature and
tilt, would occur from subsidence. As the subsidence trough is
developing, soils and rocks within the trough undergo dynamic strains.
Dynamic strains change as to intensity and location, as subsidence
progresses. After subsidence is completed, the soils and rocks could be
in a condition of static strain. Different types and degrees of static
strains occur in different locations of the subsidence trough.
OSM has considered defining the area in which a presumption would
apply using another type of angle, such as the ``angle of critical
deformation'' (also known as the ``angle of break'' or ``angle of
fracture''). This term refers to the inclination from the vertical of
the line connecting the edge of the mined area with the surface point
exhibiting the maximum tensile strain (or stretching). The angle of
critical deformation occurs in the area between the boundary of the
subsidence trough and the projected vertical from the edge of
underground workings. The angle of critical deformation is always
smaller than the angle of draw.
However, OSM has concluded that, while the angle of critical
deformation describes where the maximum tensile strains (stretching)
will occur once subsidence has occurred, the angle is not useful in
describing where subsidence damage to structures may occur for two
reasons. First, as subsidence is occurring, dynamic strains, both
stretching and compressing, vary in location and may occur in places
other than where those strains will exist once subsidence is complete.
Thus, because the angle of critical deformation does not necessarily
reflect where dynamic strains would occur, it may not account for the
area where damage may be caused while subsidence is still occurring.
Second, because the sensitivity of structures to subsidence damage
varies, structural damage may be caused by strains far less than the
maximum tensile strain; thus damage may occur to structures that are
not subject to maximum tensile strain and that are located outside the
angle of critical deformation. Moreover, structures may be more
sensitive to damage from other subsidence-related phenomena such as
curvature, tilt, and compressive strains that may occur
[[Page 16739]] within the angle of draw, but outside the angle of
critical deformation.
While recognizing regional and site-specific variability in the
angle of draw, OSM has decided to establish a national standard of 30
degrees. This is consistent with the outer limits determined for earth
movement in most subsidence studies across the United States,
particularly later studies addressing long wall mining. Also, the
Subsidence Deformation Prediction Model developed for OSM by Virginia
Polytechnical Institute, predicts an angle of draw ranging from 27
degrees to 31 degrees for 90 percent extraction where the percentage of
hard rock in the overburden varies from 70 percent to 30 percent
respectively. OSM has placed the results of this computer-based
analysis in the administrative record for this rulemaking. This
nationwide standard is conservative and offers reasonable protection to
surface owners under anticipated subsidence scenarios. However States,
coal companies, and/or citizens have a mechanism to adopt state or
site-specific values based on regional or site-specific data. These
variations could be incorporated into State programs or calculated on a
permit-specific basis. Thus, the nationwide angle of draw can be
replaced by the State, either by a State-wide standard, or on a site-
specific basis, to the extent that a different angle of draw is
demonstrated to be more reasonable.
Although the final rule provides that the presumption shall apply
to a 30- degree angle of draw, it allows the States to establish a
different angle of draw, based on geotechnical analysis of the factors
affecting potential surface impacts of underground operations. This
angle of draw should be the angle within which vertical displacement of
the surface is reasonably expected. Further, as discussed above, the
rule ensures that the regulatory authority also has the flexibility to
establish a different angle of draw on a site-specific basis, where
such variation is justified by appropriate geotechnical analysis. OSM
anticipates that implementation of this rule will be facilitated
through the use of computer-aided-design technology for subsidence
prediction. Computer program packages for predicting surface movement
and deformation caused by underground coal extraction should be very
helpful to States and permittees in this regard. OSM has designed a
national computer system, the Technical Information Processing System
(TIPS), in close cooperation with the States, which includes the
subsidence prediction model previously mentioned (which is also
commercially available), for site-specific application. Thus the rule
properly provides a national standard, but also provides for variations
based on state-of-the-art technology where appropriate because of
differences among States or within States.
If Federal enforcement of paragraph 817.121(c)(2) occurs under 30
CFR 843.25 described infra, with respect to subsidence-related damage
to protected structures caused by underground operations conducted
after October 24, 1992, the presumption of causation will attach to the
30-degree angle of draw for all existing permitted operations whether
or not a presubsidence survey has been conducted pursuant to the new
survey requirements of this rule. The presumption will apply in the
period before a State's amended permitting regulations are effective,
because the new requirements to survey the condition of surface
features will not apply, so there will also be no provision for surface
owner denial of permission--and therefore that ground for negating the
presumption will not apply. However, during that time, if a permittee
elects to conduct a survey of the presubsidence condition of protected
structures and access is denied, the decisionmaker may consider those
circumstances in deciding whether the presumption has been established.
Immediately after the State amends its program, permittees could
proceed to request designation of a different angle of draw or utilize
the one contained in the state program if different than 30 degrees.
A number of commenters support the proposed provision that would
have established a presumption that subsidence caused damage to lands,
structures or features within a specified angle of draw of the mining.
One commenter further notes that section 784.20 of the proposed rules
requires the applicant to show and to survey all structures and
facilities which may be materially damaged by mine subsidence, and
states that if the identified structures are in fact damaged, then it
is logical to assert that the mine caused the damage to those
structures and a rebuttable presumption process is reasonable.
Some commenters suggest that the area in which the presumption
would apply should be broadened to a 45-degree angle of draw. The
commenters allege that this greater area of presumption is supported by
the fact that subsidence impacts vary in both scope and range depending
on many different factors including the area's geography and the type
of mining being conducted. These same commenters add that because of
this uncertainty the angle of draw must be large enough to include the
wide variety of subsidence impacts.
Other commenters assert that the proposed rule references no sound
technical or scientific basis to support the presumption, and that OSM
does not have the authority to promulgate the rule. These commenters
claim that it is well documented that damage caused by subsidence
depends on many different factors which vary throughout the United
States; and that a presumption that mining caused the damage within a
pre-set nationwide angle of draw fails to take any of the important
regional factors into account. Also, commenters argue that the
appropriate angle of draw depends on the geology of the region and type
of underground mining that is being conducted. It is argued that these
regional differences in the effects of underground mining are the very
reason that Congress intended for the States to be the primary enforces
of SMCRA. The commenters also claim that the ``Hasenfus'' thesis cited
by OSM in the preamble does not support the proposed rule's 35-degree
angle of draw because the thesis is based on data collected from room
and pillar mines that were mined before the implementation of SMCRA's
subsidence control requirements.
The commenters also allege that the rule on presumption has no
basis in SMCRA and that the rule violates the allocation of burdens and
standards of proof set out in Section 7(c) of the APA, citing Director,
OWCP v. Greenwich Collieries, 114 S. Ct. 2251 (1994) (hereafter,
``Collieries''). Commenters argue that nothing in SMCRA provides
authority for OSM to establish the standard or burden of proof in a
civil action seeking to enforce the repair and compensation
requirements of section 720 of SMCRA. Commenters also argue that the
allocation of the burdens of production and proof must be determined by
the applicable law in the forum where the cause is brought. In
addition, commenters allege that the proposed rule violates section
7(c) of the APA. Section 7(c) of the APA states that, except as
otherwise provided by statute, the proponent of a rule or order has the
burden of proof. Thus, these commenters interpret the APA to not
provide for an agency to relieve a party of its initial burden of
production to make out a prima facie case. Under commenters' analysis,
presumptions can only be created when a party has first introduced
substantial evidence supporting the presumption. Further, the
commenters speculate that relieving a party of their duty to establish
a prima [[Page 16740]] facie case based on a preponderance of the
evidence might not survive a challenge based on procedural due process
grounds.
OSM recognizes the concerns expressed by the commenters concerning
variations in subsidence angle of draw, and the angle wherein damage is
expected. As discussed above, OSM has designed the rule to address the
possible range of appropriate angles within which it would be
reasonable to presume that damage is subsidence related. OSM does not
agree with commenters' arguments concerning lack of authority under
SMCRA or the APA. OSM believes the rule is fully authorized by, and
appropriate for implementation of section 720(a) which requires prompt
permittee repair or compensation for damage to protected structures;
section 720(b), which requires the Secretary to adopt implementing
rules; section 516, which authorizes the Secretary to ``promulgate
rules and regulations directed toward the surface effects of
underground coal mining operations'' and to consider the distinct
difference between surface coal mining and underground coal mining;
section 501(b), which requires the Secretary to adopt implementing
procedures and requirements; and section 201(c), which requires the
Secretary to ``publish and promulgate such rules and regulations as may
be necessary to carry out the purposes and provisions of this Act.''
The Secretary is using his rulemaking authority to adopt provisions
reasonable and necessary to guide and facilitate implementation of
these sections.
Further, commenters have mischaracterized the effect of the
presumption established under this provision. The presumption does not
change the ultimate burden of proof in a determination. The ultimate
burden of persuasion still lies with the regulatory authority or OSM.
OSM believes that inferences and presumptions are an essential aspect
of the adversary process. A trier of fact must often determine the
existence of an element of a violation from the existence of one or
more evidentiary facts. From its experience in implementing SMCRA, OSM
believes that there is sufficient nexus and probability of causation
between the facts that are deemed to give rise to the rebuttable
presumption under this paragraph, and the resulting presumption. As
indicated above, OSM believes this presumption is particularly
appropriate in light of the fact that the permittee will have the best
access to the facts that will be key to any ultimate conclusions on the
issue. Such a presumption is consistent with the traditional approach
that the burden of going forward with evidence normally falls on the
party with knowledge of the facts involved. See, e.g., EDF, Inc. v.
EPA, 548 F.2d 998 at 1004 (D.C. Cir. 1976) as modified and supplemental
opinion on denial of rehearing.
In most cases, OSM does not expect section 7(c) of the APA to
apply, as most enforcement cases are properly disposed of without the
requirement for a formal hearing subject to such provisions of the APA.
Rather, the presumption in this rule establishes a standard pursuant to
which a regulatory authority shall evaluate permittee compliance with a
SMCRA performance standard, for purposes of regulatory authority
enforcement of SMCRA. Further, the presumption helps to ascertain the
scope of the obligation to repair.
The presumption will not relieve any party of the initial burden of
production, but rather defines what that burden will be, and when it
may shift, in enforcement actions under this paragraph. That is, in
enforcement actions by the State regulatory authority or OSM, if the
evidence establishes that damage has occurred to protected structures
as a result of earth movement within the applicable angle of draw, then
this evidence satisfies the initial burden of production, and then
gives rise to a rebuttable presumption of causation by subsidence. At
that point the regulatory authority or OSM would have satisfied its
obligation to make a prima facie case on the issue of causation. The
permittee then has the burden of production to rebut the presumption or
to negate other relevant evidence, by providing information that
relates to the effect of the underground mining, such as information on
the nature and timing of the underground mining operation, geological
conditions in the area mined, and the premining condition of the
surface feature. The presumption can be rebutted with technical support
either prior to an enforcement action being taken by the regulatory
authority, or in response to such an action during the review or appeal
process. The proof needed to rebut the presumption will be determined
on a case-by-case basis. Because the ultimate burden of persuasion
still lies with the regulatory authority or OSM, in any cases in which
a formal hearing is required to be held, the rebuttable presumption is
fully consistent with section 7(c) of the APA, and with the holding in
the Collieries case cited by commenters (114 S. Ct. 2251). That case
interpreted the section 7(c) burden of proof provision, which provides
that, ``[e]xcept as otherwise provided by statute, the proponent of a
rule or order has the burden of proof.'' The court held that, under
that APA provision, the proponent of an order has the burden of
persuasion, not just the burden of production (or the burden of going
forward with the evidence). (114 S. Ct. at 2251). In any case, a
determination as to causation must be based on consideration of all
relevant and reasonably available information.
OSM does not agree that it is precluded from establishing such a
rebuttable presumption based on the commenters' assertion that
allocation of burdens of production and proof must be determined by the
applicable law of the forum. Underlying State law does not preclude OSM
from adopting reasonable rules implementing SMCRA; rather, inconsistent
State law must be changed to be consistent with SMCRA and implementing
regulations. Therefore, OSM anticipates that an implementing revision
to the State regulatory program will be appropriate in most States.
Contrary to commenters' expressed concern, OSM does not intend to
require a court to apply the presumption to citizen suits seeking civil
remedy under the performance standards of section 720 of SMCRA; OSM
anticipates that the court in question will establish the standard or
burden of proof to be applied in any civil action before it, consistent
with SMCRA.
A commenter has indicated concerns that this presumption will be
unfair to existing operations, because they will not have done a
presubsidence survey and so will be unable to document premining
conditions. OSM does not agree. Permittees have had notice of the
amendment establishing the requirements for repair, replacement, and
compensation since enactment of the Energy Policy Act in 1992.
Therefore, permittees have had ample opportunity to conduct a premining
survey to document premining conditions, if they wished to establish
baseline information. Further, nothing in existing rules or in the
rules being adopted by OSM precludes a permittee from updating
information as to premining surface conditions during the course of the
mining operation. Therefore, a permittee could reasonably provide a
presubsidence survey and then provide an update of conditions a
reasonable time before mining is to begin in a particular area. And
since permittees are in the best position to establish both what
changes have occurred and what actions and geological factors are
associated with those changes, they are not disadvantaged by a
presumption that recognizes their advantage in
[[Page 16741]] documenting and evaluating the consequences of their
mining. Also, OSM assumes that if a permittee of an existing operation
has made reasonable efforts to conduct a presubsidence survey which
documents the presubsidence condition of protected structures, and
permission has been refused by a property owner, then in any
enforcement proceeding OSM or the regulatory authority may take these
circumstances into account in determining what weight, if any, to give
to the rebuttable presumption of causation.
OSM believes that commenters' concerns about fairness and about due
process with regard to the presumption, are also misplaced. Due process
concerns, at bottom, relate to the fundamental fairness of a procedure.
OSM believes that the rebuttable presumption will provide a fair
process, for several reasons, including the following: first, in
adopting a State program amendment, the State may specify a different
standard for the angle where appropriate for conditions in the State;
second, after amendment of the State program, the permittee may
demonstrate that the presumption should apply to a different angle of
draw on the particular site; third, in every case the regulatory
authority must establish that the structures are within the angle of
draw to which the presumption applies, that damage has occurred to the
protected structure and that it was caused by earth movement; fourth,
the permittee is in the best position to provide baseline information
and information as to whether subsidence caused the damage, once damage
is established; fifth, the decisionmaker must consider all relevant and
reasonably available information; sixth, the presumption does not apply
where access for a presubsidence survey pursuant to these rules was
denied (and if access for a voluntary survey of presubsidence
conditions is denied for an existing operation, the decisionmaker may
consider those circumstances in deciding whether the presumption has
been established); seventh, the presumption does not change the
ultimate burden of proof in a determination; and eighth, administrative
and judicial appeals procedures are available to all aggrieved parties.
Some commenters urge that OSM adopt a presumption of subsidence
causation for damage to water supplies, similar to that proposed for
damage to lands, structures, and features at 817.121(c)(4). Commenters
stated that such a presumption should apply to damage to water
resources within the greater of a 60-degree angle of draw or 300 feet
of the outer boundary of the underground coal mining operation.
However, OSM did not propose such a presumption, and believes that
water supply damage causation does not lend itself to such a
presumption. OSM bases this conclusion in part on its belief that
causation of damage to water supply from springs and wells can be far
more complex than causation of damage to surface lands and structures,
and can involve a potentially greater variety of geological and
hydrological formations and dynamics including depth, lateral extent,
and recharge of the affected supply. Therefore, OSM has not established
such a presumption in this rulemaking.
However, OSM has concluded that the absence of a presumption of
causation for replacement of affected water supplies will not inhibit
the water supply owner's ability to receive water supply replacement.
If the water supply has been contaminated, diminished, or interrupted
by the underground mining operation, the permittee is required to
promptly replace the affected supply. In the event that the permittee
does not replace the water supply, and the water supply owner contacts
the regulatory authority regarding water loss, the regulatory authority
must investigate to determine if there is sufficient evidence to
believe that the domestic, drinking, or residential water supply was
adversely affected by subsidence from the underground mining operation
and subsequently not promptly replaced by the permittee. If the
regulatory authority determines that sufficient evidence exists that a
protected water supply has been contaminated, diminished, or
interrupted by the underground mining operation, then the regulatory
authority will initiate appropriate enforcement action. In any such
enforcement action, the burden of proving that the water supply was
damaged by subsidence from the underground mining operation is not on
the water supply owner, who may not have knowledge of geological
conditions and the nature and timing of the mining activities. Rather
the initial burden is on the regulatory authority to establish a prima
facie case that the water supply was affected by the underground
mining. Then the burden of going forward with evidence to rebut the
prima facie case would shift to the permittee. The ultimate burden of
proof is on the regulatory authority.
817.121(c)(5)
This section as proposed would have provided that, if material
damage from subsidence occurs to land, structures, or facilities
protected under paragraphs (c)(1) through (c)(3) of this section, the
regulatory authority would require the permittee to obtain additional
performance bond in the amount of the estimated cost to repair the
material damage from subsidence to the protected land, structures, or
facilities. The permittee would have been required to obtain the
additional bond within 90 days of the occurrence of damage unless
repair or compensation is completed within that time frame, in which
case no additional bond would be required. In response to comments,
these proposed requirements are being modified in the final rule. The
final rule ensures that replacement of water supplies protected under
paragraph 817.41(j) is also addressed. Further, the final rule provides
that if the permittee intends to repair the damage, the required
additional bond would amount to the estimated cost of the repairs. If
the permittee intends to compensate the owner, the additional bond
would amount to the diminution in value of the protected land or
structures. If the permittee will replace a protected water supply, the
required additional bond would amount to the estimated costs to replace
the protected water supply. Also, in response to comments, the final
rule provides that, on a case-by-case basis, the 90-day period for
posting bond can be extended for up to one year under certain
circumstances. This can occur when the permittee demonstrates and the
regulatory authority finds in writing that subsidence is not complete,
that not all probable subsidence-related damage has occurred to lands
or protected structures or that not all reasonably anticipated changes
have occurred affecting the protected water supply. In such cases, it
would be unreasonable to complete within 90 days the repair of
subsidence damage or the replacement of protected water supplies.
Commenters assert that the proposal is not adequately explained and
that the requirements would be difficult for some permittees to meet.
Also, the rule fails to mention any procedure for the bond's release.
Further the commenters argue that surety companies would be reluctant
to post bonds for operations subject to the broad scope of the new
rules. Without surety companies providing the bonds the permittees
would be forced to finance the bonds themselves. This would place a
severe financial burden on the permittee which would make it even more
difficult for them to prevent or repair subsidence related damage.
OSM disagrees with the commenters that surety companies would be
[[Page 16742]] reluctant to post the bonds provided for in this
paragraph, and that the requirement to obtain additional bonding on a
temporary basis would impose such a severe financial burden on the
permittee so as to impede their ability to repair subsidence related
damage. The current rules at 30 CFR Part 800 already require the
permittee to adjust the amount of the bond when the costs of future
reclamation increase or when a reclamation obligation is established;
for example, when material damage from subsidence occurs. The final
rule is intended to avoid incomplete reclamation by clarifying the
application to actual subsidence damage of the requirement in 30 CFR
800.15(a) that the regulatory authority specify a period of time or a
set schedule to increase the amount of bond when the cost of
reclamation changes. Thus, this provision assures that funds are
available in a timely fashion to cover the cost of repairs in case of
default by the permittee and to encourage prompt repair through the use
of a grace period. The final rule does not establish a time limit for
repair but rather allows the permittee a 90-day grace period to perform
repairs, during which time no additional bond need be posted. The
obligation to post increased bond only applies 90 days after damage has
occurred. It should be noted that under paragraph 800.14(c), if the
liability insurance policy required under section 800.60 would provide
coverage sufficient to fund the reclamation of subsidence damage, that
insurance may be substituted for increased bond. Procedures for bond
release are set forth in sections 800.17 and 800.40.
Commenters charge that the legislative intent behind the Energy
Policy Act shows that although the idea of additional bonding for
subsidence damage and water replacement was included in the House
version of the Energy Policy Act, the provision was deleted in the
final conference committee version and the proposed rule requiring
additional bonding would be contrary to the legislative intent of
Energy Policy Act.
The commenters also rely on case law that has found that bonding
for subsidence would be a ``highly speculative endeavor'' and that a
change to such an approach would require ``significant new evidence.''
The commenters reference the decision of the court of appeals in
National Wildlife Fed'n v. Hodel, 839 F.2d 694 (D.C.Cir. 1988). This
decision affirmed the Secretary's explanation that because it is
difficult to predict with reliability when and how severely subsidence
damage to the surface will occur, it is reasonable to issue a permit
for underground mining without requiring the posted bond amount to
reflect any bond amount for potential subsidence damage, provided that
the bond amount could be adjusted upward after the damage began
occurring. The court of appeals found that one of the distinct
differences between surface and underground mining is the difficulty in
accurately estimating the cost of repairing subsidence related material
damage.
OSM does not agree with the commenters' interpretation of the
legislative history of the Energy Policy Act or the cited case on this
issue. As noted above, OSM believes the rule primarily clarifies the
application of existing bonding requirements which require adjustment
of the bond amount; thus, Congress may have deleted further language on
this subject because it was not clearly needed. OSM concludes that the
proposed rule is consistent with the case cited by commenters, because
the proposed rule provides that the bond amount will be increased to
cover required repair work after damage occurs, and only if the repair
work is not to be completed within 90 days. At that point it is not a
``highly speculative endeavor,'' since the damage will have occurred
and estimates of repair costs can be reasonably established. Also, the
permittee has control over the timing of repairs and can avoid the bond
by repairing or compensating promptly. Thus, while OSM concurs in the
rationale of the cited decision, as it concerns pre-subsidence bonding
for anticipated subsidence damage, the decision is not applicable to
the circumstances addressed in this rule. The proposed rule also
provides substantial flexibility to the permittee, because it allows
liability insurance proceeds to be applied to the repair effort. OSM
believes this rule is consistent with SMCRA and is not inconsistent
with any provisions of the Energy Policy Act.
Commenters allege that permanent repair of subsidence damage to
structures and lands is seldom completed within 90 days. Potential
damage to structures from tertiary settlement and from adjacent mining
could delay repair for more than a year. Similarly, to minimize
disruption to sowing or harvesting of crops, repair of drainage
patterns in agricultural fields should be delayed until the entire
field is subsided, and this is rarely possible within 90 days. The
commenters argue that to impose additional bonding in such cases when
repair cannot be completed within 90 days, accomplishes nothing but
additional financial burden on the permittee and encourages premature
and substandard restoration of protected features. OSM has considered
these arguments and has made some adjustment to the final rule. OSM
believes that if delays in repair are likely, then normally bond
amounts should be adjusted to ensure that funds will be available later
to pay for the repairs, since delays increase the risk that permittee
funds may not be available. However, OSM does not intend that the rule
encourage inappropriate or premature restoration measures when
subsidence related damage is not yet complete, so that subsequently the
permittee would have to redo the repairs. Therefore, under the final
rule the regulatory authority can extend the 90-day timeframe up to one
year under limited circumstances as previously described.
Section 843.25--Direct Federal Enforcement for Repair of Subsidence
Damage.
In response to comments asking for clarification as to how
immediate enforcement of the Energy Policy Act meshes with the primacy
scheme established by SMCRA, OSM is adding a new section 843.25, to
provide procedures for initiating and terminating direct Federal
enforcement as appropriate, for section 720 of SMCRA concerning
subsidence damage caused by underground mining that occurred after
October 24, 1992. Section 720(a) of SMCRA requires that ``Underground
coal mining operations conducted after the date of enactment of this
section shall comply with each of the following requirements: * * *.''
In section 720(b), the Secretary is directed, within one year after the
date of enactment of the Energy Policy Act, and after notice and
opportunity for comment, to promulgate final regulations to implement
subsection 720(a). Thus, the requirements of subsection 720(a) to
promptly repair, replace, or compensate were made effective immediately
upon enactment of the provision, but the Secretary was directed to
adopt implementing regulations during the following year.
843.25(a)
Under paragraph (a) of the final rule, within 120 days from the
publication of the rules, OSM will determine for each State with an
approved State regulatory program, what enforcement procedures will
apply for purposes of implementing SMCRA section 720(a) and
implementing regulations. The specific performance standards
implementing section 720(a) are set forth in paragraphs 817.41(j) and
817.121(c)(2). OSM will [[Page 16743]] determine for each such State
whether (1) there will be direct interim Federal enforcement of the
Energy Policy Act and implementing performance standards, for some or
all surface coal mining operations; or (2) State enforcement will
occur, backed up by OSM using the oversight procedures of paragraphs
843.11 and 843.12(a)(2); or (3) a combination of direct Federal
enforcement and State enforcement will occur. As part of the
determination process, (4) OSM will consult with each affected State
and provide opportunity for public comment. OSM will publish its
determination in the Federal Register.
In the preamble to the proposed rules (58 FR 50182) OSM ``concluded
that Congress intended new section 720(a) to immediately supersede
inconsistent State program performance standards, by operation of law,
as of the effective date of the final Federal rules.'' OSM also stated
in the preamble to the proposed rule, ``OSM believes it is essential to
provide as orderly a transition as possible for implementing the Energy
Policy Act.'' Id. OSM believes it is also essential to give the fullest
possible effect to the State primacy scheme of SMCRA, in implementing
the provisions of section 720, including the effective date. Upon
further reflection, OSM has concluded that it is not clear from the
legislation or legislative history, how Congress intended that section
720 was to be implemented, in light of existing SMCRA provisions for
State primacy. Thus, OSM has a certain amount of flexibility in
implementing section 720.
After weighing these considerations, OSM intends to implement
section 720 promptly, but will pursue federal enforcement without
undermining State primacy under SMCRA. This decision reflects OSM's
general policy of developing a shared commitment with the States in
enforcing the Act. To achieve this balance, OSM intends that the
consultation and comment process provided for in paragraph 843.25(a)
will allow OSM to evaluate affected States' enforcement authority and
State plans for implementing section 720, to determine to what extent
OSM can rely on state primacy, and ensure prompt compliance with
section 720, while complying with the requirement for implementing
rules. Once OSM has consulted with the States as to implementation of
section 720, OSM will have the information necessary to determine the
appropriate enforcement approach for each State. OSM anticipates that
some States may have no underground mining, and that some states may
have no complaints of damage from underground mining that would be
subject to section 720. Some States are already in the process of
adopting provisions like section 720, and may promulgate such
provisions on or shortly after the effective date of these regulations.
Providing for direct Federal enforcement in such States may be
unnecessary. Providing for direct Federal enforcement could be
unnecessary in any States that adopt provisions covering mining after
October 24, 1992, if the State provisions are effective on or will be
shortly after the effective date of these regulations. However, some
States may take two or three years under Part 732 to adopt State
program amendments. For States that do take such an extended time to
adopt implementing regulatory program provisions, OSM may well
determine it necessary to provide direct Federal enforcement for any
damage caused by underground mining that occurs after October 24, 1992,
until damage caused by underground mining is covered by such a State
provision. OSM also anticipates that a number of States may not
authorize enforcement of provisions analogous to section 720, as of
October 24, 1992. Kentucky has already informally advised OSM that it
does not anticipate providing for enforcement covering mining that
occurred before July, 1994. In those States, to ensure compliance with
section 720(a) OSM will provide direct Federal enforcement for any
claims of damage caused by underground mining which occurs after
October 24, 1992, and predates State program amendment. Such Federal
enforcement should cause no surprise to permittees, who have been aware
of their obligations since passage of the Energy Policy Act in 1992.
One commenter opined that direct enforcement was unnecessary, and
that existing procedures for State program amendments would be
sufficient to ensure appropriate enforcement. OSM does not agree. As
set out above, OSM believes that direct Federal enforcement could be
necessary in some States, in order to ensure that prompt compliance is
provided with minimum disruption of existing procedures for State
primacy. The procedures established in paragraph 843.25(a) will allow
for State-by-State determination after appropriate input from affected
persons concerning the necessity for direct Federal enforcement.
843.25(b)
Paragraph (b) clarifies how direct Federal enforcement procedures
will apply, to the extent they are initiated, and how direct Federal
enforcement will be phased out, once State programs are amended to
address section 720 and the implementing Federal regulations.
Under paragraph (b)(1) of the final rule, upon a determination by
OSM under paragraph (a) that direct Federal enforcement is necessary,
paragraph 817.121(c)(2) will apply directly to surface coal mining
operations in States with an approved State regulatory program.
Paragraph 817.121(c)(2) will apply directly to failure to repair or
compensate for subsidence-related material damage to occupied
residential dwellings and related structures and non-commercial
buildings, and paragraph 817.41(j) will apply directly to failure to
replace a contaminated, diminished, or interrupted drinking, domestic,
or residential water supply. Both paragraphs apply directly to damage
caused by underground mining activities that occurred after October 24,
1992.
Under paragraph (b)(2), upon a determination by OSM under paragraph
(a) that direct Federal enforcement is necessary, the provisions of
paragraph 843.12(a)(2) will not apply to direct Federal enforcement
implementing paragraphs 817.41(j) or 817.121(c)(2). When, on the basis
of a Federal inspection pursuant to paragraph (b), an authorized
representative determines a violation exists of paragraph 817.41(j) or
817.121(c)(2), the authorized representative will issue a notice of
violation or cessation order, as appropriate. Paragraph 843.12(a)(2)
provides for a ten-day notice (TDN) to a State, and opportunity for the
State to take appropriate action or show good cause for failure to act,
before an authorized representative would issue a notice of violation
or cessation order.
Under paragraph (b)(3), paragraph (b) providing for direct Federal
enforcement will remain effective in a State with an approved State
regulatory program until approval, pursuant to Part 732, of provisions
adopted by the State consistent with paragraphs 817.41(j) and
817.121(c)(2). Upon approval of those provision, paragraph (b) will
remain effective only for violations of paragraphs 817.41(j) and
817.121(c)(2) that are not regulated by the State.
Some commenters request clarification as to how existing procedures
for ensuring State primacy in regulatory program implementation will
apply under the proposed rule. These commenters allege that OSM has no
authority to ignore existing TDN and State program amendment procedures
which ensure State primacy in enforcement of SMCRA and ensure that the
approved State regulatory program will apply to mining operations in
the State until established procedures are [[Page 16744]] followed to
require State program changes. Other commenters allege that direct
Federal enforcement would be inconsistent with SMCRA. OSM does not
agree. OSM believes that the limited direct enforcement procedures it
is adopting are authorized by both section 720 and section 201(c) of
SMCRA. Congress provided no specific statement as to how OSM was to
ensure prompt compliance by underground coal mining operations, for
damage caused by any underground mining after October 24, 1992.
Congress did recognize that to develop such a regulatory scheme would
require rulemaking, and provided for such rulemaking in section 720.
Enforcement of section 720 will be required to apply to mining that
occurs after October 24, 1992. OSM expects that some number of States
will not provide implementation of section 720 for mining that has
occurred after October 24, 1992, but before State program amendment,
and that such States may prefer OSM to carry that enforcement burden.
Based on past experience, OSM also expects that the normal process for
State regulatory program amendment and OSM approval of State program
amendments could take as much as two or three years, after this rule is
finalized. Thus, if only State program amendment procedures were
followed, it could be as long as five years after enactment of section
720 before some States actually enforced the section. OSM has concluded
that following the routine procedures for State program amendment and
for TDN's in implementing these rules, would frustrate the requirement
for prompt repair, replacement, or compensation for all damage caused
by underground mining occurring after October 24, 1992. In reaching
this conclusion, OSM considered preliminary information as to
complaints already filed with State regulatory authorities alleging
violations of section 720. OSM requested such information from several
States in which a substantial number of underground coal mining
operations are permitted. The States of Virginia, Pennsylvania, West
Virginia, and Kentucky have already received a total of over 300
complaints of violations of section 720. Therefore, OSM has concluded
that direct Federal enforcement as outlined above, is consistent with,
and essential to a reasonable implementation of section 720. However,
in response to comments expressing concern about disruption of existing
procedures, OSM has sought to provide a more limited direct enforcement
process which will cause less disruption of existing procedures in each
State.
OSM believes that SMCRA section 201(c)(2) also authorizes this
approach. Section 201(c)(2) provides that the Secretary, acting through
OSM, will ``publish and promulgate such rules and regulations as may be
necessary to carry out the purposes and provisions of this Act.'' Since
Congress did not address the issue of how OSM was to meet the mandate
for prompt compliance as of October 24, 1992, the Secretary is using
his rulemaking authority to provide for direct Federal enforcement
where reasonably necessary to implement Congress' mandate for prompt
compliance. OSM has concluded that the existing program amendment and
enforcement process may not be sufficient to ensure prompt compliance
with the statute, and has decided to adopt rules providing for direct
Federal enforcement as necessary to ensure prompt compliance with
section 720(a).
Commenters argue that the proposal to provide for direct Federal
enforcement ignores Federal case law which indicates that, as a general
proposition, the State program, not SMCRA, is the law within the State.
OSM recognizes that, under existing rules implementing SMCRA, States
with approved regulatory programs have primary responsibility for
implementing SMCRA, based on the approved program. However, in this
rule OSM has carved out a limited exception to the general proposition,
to the extent necessary to give reasonable force and effect to section
720, while maintaining so far as possible State primacy procedures. OSM
believes that the process adopted in this final rule is consistent with
and authorized by Congress under the Energy Policy Act, and that case
law interpreting other provisions of SMCRA is not necessarily
dispositive.
One commenter alleges that OSM had not provided sufficient
information about enforcement procedures to enable commenters to
understand or comment on the procedures for direct enforcement. OSM
does not agree. OSM provided sufficient information in the proposed
rule to indicate that, in the interests of ensuring prompt compliance,
the regulations would be made immediately and directly enforceable. OSM
thereby informed all interested persons that OSM did not expect to
postpone enforcement pending State program amendment. And OSM believes
that neither industry nor State regulatory authorities will be
prejudiced by such immediate enforcement, since all interested persons
were put on notice by the statute, as well as the proposed rule, that
prompt compliance would be required as of October 24, 1992. If there
are concerns about opportunity to understand and comment on specific
procedures for immediate enforcement, OSM believes that any such
concerns will be adequately addressed by the process for consultation
and opportunity to comment on appropriate measures for each State.
Other commenters allege that OSM has failed to provide timely
rulemaking implementing section 720, and that OSM must promulgate an
interim final rule which makes effective for all Federal and State
programs, including the Indian lands program, the requirements of
section 720, effective October 24, 1992. These commenters further argue
that all permits should be modified to include the requirements of
section 720 as permit conditions, and that all permitting authorities
should be required to require collection and analysis of the data
necessary to implement section 720. OSM does not agree. OSM had earlier
decided that such an interim final rule was not appropriate, because of
OSM's desire to avoid any unnecessary impairment of State primacy. OSM
believes that reasonably prompt compliance will be assured in States
with approved State regulatory programs under the procedures OSM is
adopting, which will provide expeditious direct Federal enforcement
where determined necessary. And an interim final rule will not be
necessary for Federal program lands or Indian lands because, as
discussed below, these final rules are incorporated by reference in the
regulatory programs for such lands, and will apply upon the effective
date of these rules. Further, OSM is following its normal rulemaking
procedures, consistent with the APA. OSM believes that in section
720(b) Congress contemplated notice-and-comment rulemaking as an
appropriate mechanism for implementing section 720(a). Given the
difficult and controversial issues in this rulemaking, OSM believes it
is important to assure full and fair opportunity for all interested
persons to comment, and opportunity for OSM to consider all comments
before OSM adopts implementing rules. OSM also believes the procedures
set out in these rules will assure reasonably timely compliance with
section 720 with less uncertainty and less disruption of the existing
process than would be caused by the actions advocated by these
commenters.
OSM concludes that there will be no prejudice to the interests of
[[Page 16745]] underground coal mine operations to the extent direct
Federal enforcement will occur. The industry was on notice that section
720 does specifically require that underground mine operations promptly
repair, replace, or compensate for subsidence damage to protected
features. The obligation was not changed by this rulemaking. The only
question was the mechanism by which the requirement for prompt action
would be enforced. And, since Federal enforcement can occur without
delay for State program amendments, OSM believes the direct Federal
enforcement process will work to the advantage of all interested
persons. In cases where direct Federal enforcement is instituted, any
evidentiary issues in enforcement should be more readily resolved,
because facts will be fresher and more readily recalled than they would
be after the delay required for amendment of a State program. In such
cases the question whether damage was caused by subsidence from an
underground mining operation may be easier to resolve under direct
Federal enforcement, than it would be later after the delays required
to implement an amended State program.
Effect in Federal Program States and on Indian Lands
The rules adopted today will be applicable through cross-
referencing in those States with Federal programs and on Indian lands.
The States with Federal programs are California, Georgia, Idaho,
Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South
Dakota, Tennessee, and Washington. The Federal programs for these
States appear at 30 CFR Parts 905, 910, 912, 921, 922, 933, 937, 939,
941, 942, and 947, respectively. The Indian lands program appears at 30
CFR Part 750. In accordance with 30 CFR 774.11, with respect to
existing operations, OSM will notify permittees of the need to revise
their permits to conform with the changes to 30 CFR 817.41(j) and
817.121(c).
Effect on State Programs
The performance standards set forth in 30 CFR 817.41(j) and
817.121(c)(2) are required to implement new SMCRA sections 720(a)(1)
and (2). New SMCRA section 720(a) requires that operations conducted
after October 24, 1992 comply with these provisions.
In the interim pending direct enforcement by a State, enforcement
of paragraphs 817.121(c)(2), 817.121(c)(4), and 817.41(j) of this rule
will be provided as set forth in section 843.25 of this rulemaking. For
purposes of such interim enforcement, the definitions adopted in this
rulemaking at section 701.5 and the presumption at paragraph
817.121(c)(4) will be effective and enforced on the same date as the
provisions of paragraphs 817.41(j) and 817.121(c)(2).
For all other provisions in the final rule, OSM will follow
established procedures for notice of required changes in State
regulatory programs. The additional provisions will become effective
upon the adoption of counterpart State regulatory program provisions in
primacy States. OSM will evaluate permanent State regulatory programs
approved under Sec. 503 of the Act to determine whether any changes in
these programs will be necessary. If the Director determines that
certain State program provisions should be amended in order to be made
no less effective than the revised Federal rules, the individual States
will be notified in accordance with the provisions of 30 CFR 732.17.
III. Procedural Matters
Federal Paperwork Reduction Act
The collections of information contained in this rule have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance numbers 1029-0039 and 1029-0048.
Executive Order 12866
This rule has been reviewed under Executive Order 12866.
Benefits
While the cost of the rulemaking can be estimated, the benefits are
not readily or completely quantifiable. Water loss and structural
damage caused by subsidence from underground coal mining can have very
disruptive personal and financial impacts, particularly to middle class
and rural landowners. The benefit of avoiding the personal
consequences, including those associated with health and safety, is
difficult to assess. However, one of the clear benefits of the rule is
that the responsibility to repair property damage and replace lost
water supplies is shifted from property owners suffering the damage to
the mining operations that cause the damage.
OSM's regulations would require replacement of the landowner's
domestic water supply in a timely manner. The surface landowner would
have water replacement, as necessary, without assuming any additional
costs.
Under the regulations, landowners are afforded additional
protections for their homes and domestic water supplies. The process
for establishing causation between mining and damage to homes and land
is simplified. Also, the rule provides that subsidence damage within a
specified area associated with a coal mining operation will be presumed
to have been caused by that operation, and that the operator will have
the burden of refuting such a presumption. This shifts the burden of
providing evidence from the property owner to the operator who would
have better information as to the nature and timing of the mining
activities.
The rule also provides the property owner with an option to receive
compensation in a lump sum payment as an alternative to annual payments
for operation and maintenance costs for a permanent water supply. If
agreed to by the landowner, a one-time payment based on the present
worth of the increased annual operating costs for a period of time
agreed upon by the landowner and the coal mine operator would fulfill
the operator's obligation. Such a payment plan, rather than annual or
other periodic payments, would be preferable to the property owner in
those cases where the operator might encounter financial difficulties
or simply go out of business.
Property owners and coal mine operators would benefit from the
requirement to conduct a pre-mine survey. The survey must inventory and
document the pre-mining condition of the potentially affected
structures and renewable resource lands. Under this requirement, both
the surface owner and the mine operator are provided with a more
accurate record of the status of the homes and land prior to mining.
Hence, the record would be a fairer basis for enforcement in the event
of subsidence.
Estimated Costs
The final rule requires all underground coal mining operations
promptly to repair or compensate for any material damage to non-
commercial buildings and occupied residential dwellings or related
structures as a result of subsidence due to underground coal mining
operations. Permittees in both primacy States and Federal program
States, as well as on Indian lands, are required to comply with this
provision for operations conducted after October 24, 1992. This
provision is necessary to implement new SMCRA section 720(a)(1) of the
Energy Policy Act of 1992.
The estimated cost to coal operators to meet this requirement of
the Energy Policy Act is $12.6 million. Most states adopted provisions
to implement this requirement following passage of the 1992 Act. These
states account for $11.7 million of the $12.6 million estimated
[[Page 16746]] cost. Other states will need to promulgate implementing
provisions on or shortly after the effective date of these regulations.
OSM estimates that the cost to coal operators to meet this requirement
in those additional states will be $900,000.
The final rule also requires the permittee to promptly replace any
drinking, domestic or residential water supply that is contaminated,
diminished or interrupted by underground mining activities conducted
after October 24, 1992, if the affected well or spring was in existence
prior to the date the regulatory authority received the permit
application for the activities causing the loss, contamination or
interruption. This requirement that the permittee promptly replace any
drinking, domestic, or residential water supplies that have been
adversely affected by underground activities is necessary to implement
the provision of new SMCRA section 720(a)(2) of the Energy Policy Act
of 1992.
Under the regulations, the operator would pay the capital costs of
installing the replacement water supply. For example, if the use of
well water can continue, the operator would pay the cost of designing,
drilling, and completing a new or deeper well; purchasing and
installing a pump; and/or purchasing and installing a treatment system,
as necessary. If the replacement water supply involves a hook-up to a
public or private water supply system, the operator would pay the hook-
up costs, including fees, purchase of equipment and supplies, and
construction. If a temporary water supply is necessary before the
permanent replacement water supply is provided, the operator would pay
the cost of providing the temporary water supply.
The estimated cost to coal operators to meet this requirement of
the Energy Policy Act is $11.2 million. Most states adopted provisions
to implement this requirement since passage of the 1992 Act. These
states account for $9.5 million of the $11.2 million estimated cost.
Other states will need to promulgate implementing provisions on or
shortly after the effective date of these regulations. OSM estimates
that the cost to coal operators to meet this requirement in those
additional states will be $1.7.
In addition to the above requirements, OSM believes that the
following provisions with an estimated cost to coal operators of $2.7
million were essential to implement the requirements of the Energy
Policy Act.
Pre-Mine Survey: an explicit requirement to establish and
document the location and pre-mining condition of protected structures
and lands, and the location and pre-mining quantity and quality of
protected water supplies, is essential to establish a sufficient
baseline against which the effects of subsidence may be measured and to
ensure full implementation of SMCRA sections 516 and 720. Estimated
cost to coal operators is $1.6 million.
Pre-subsidence Survey and Subsidence Control Plan:
majority of applicants provide the survey, including map, and the
subsidence control plan under the existing regulations; cost
corresponds to those operators not currently providing the information.
Estimated cost to coal operators for both requirements is $65,000.
Presumption of Causation: presumes that damage was caused
by underground coal mining operations; the operator must bear the cost
of rebutting the presumption. Estimated cost to coal operators is
$420,000.
Additional Bonding: requirement to increase bond coverage
within 90 days of the occurrence of any damage that is not repaired.
Estimated cost to coal operators is $620,000.
The total estimated cost to coal operators to meet the subsidence
control provisions in the Energy Policy Act of 1992 is $26.5 million.
However, because many states have already implemented provisions of the
Act accounting for an estimated cost of $21.2 million, the cost that
will be incurred by coal operators resulting from promulgation of this
final rule is estimated to be $5.3 million.
There are a number of provisions discussed in the proposed rule
that have not been adopted in the final rule. A significant change is
the decision by OSM not to adopt the proposed requirement to replace
agricultural, commercial and industrial water supplies. OSM agreed with
commenters that these provisions of the proposed rule went beyond the
requirements of the Energy Policy Act. OSM estimates that these
provisions not included in the final rule would have cost coal
operators more than $7 million. Another proposed requirement that all
facilities be covered was not adopted in the final rule. However, this
change does not appreciably alter the cost to coal operators of meeting
the requirements in this rule.
Regulatory Flexibility Act
The DOI certifies that this rule would not have a significant
economic effect on a substantial number of small entities under the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. This determination is
based on the fact that the revisions will have the greatest effect on
underground mining operations, and only a small number of small
entities mine coal by underground methods. For the purposes of this
determination, a small entity is considered anyone whose total annual
production at all locations does not exceed 300,000 tons.
National Environmental Policy Act
OSM has prepared a final environmental assessment (EA), and has
made a finding that the rule will not significantly affect the quality
of the human environment under section 102(2)(C) of the National
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C). A
finding of no significant impact (FONSI) has been approved in
accordance with OSM procedures under NEPA. The EA and FONSI are on file
in the OSM Administrative Record, Room 660, 800 North Capitol Street,
Washington, DC.
Executive Order 12778 on Civil Justice Reform
This rule has been reviewed under the applicable standards of
section 2(b)(2) of Executive Order 12778, ``Civil Justice Reform'' (56
FR 55195). In general, the requirements of section 2(b)(2) are covered
by the preamble discussion of this rule. Individual elements of the
order are addressed below:
A. What would be the preemptive effect, if any, to be given to the
regulation?
Section 843.25 sets out a procedure by which OSM may determine on a
State-by-State basis that direct Federal enforcement is required in
States with approved regulatory programs, in the interim before those
programs are amended to implement section 720, to ensure prompt
compliance with section 720 of SMCRA, 30 U.S.C. 1309a, and implementing
Federal regulations. Any such action would be instituted only upon a
determination that in a particular State the action was necessary on an
interim basis, to ensure the congressionally mandated prompt compliance
with SMCRA section 720, for underground operations conducted after
October 24, 1992. This procedure is discussed in the preamble
discussion of section 843.25. The other provisions in this rulemaking
would have the same preemptive effect as other standards adopted
pursuant to SMCRA. To retain primacy, States have to adopt and apply
standards for their regulatory programs that are no less effective than
those set forth in OSM's regulations. Any State law that is
inconsistent with or that would preclude implementation of the
regulation would be subject to preemption under SMCRA section 505 and
implementing regulations at 30 CFR [[Page 16747]] 730.11. To the extent
that the regulation would result in preemption of State law, the
provisions of SMCRA are intended to preclude inconsistent State laws
and regulations. This approach is established in SMCRA, and has been
judicially affirmed. See Hodel v. Virginia Surface Mining and
Reclamation Ass'n, 452 U.S. 264 (1981).
B. What would be the effect of the regulation on existing Federal
law or regulation, if any, including all provisions repealed or
modified?
The regulation would modify the implementation of SMCRA as
described herein, and is not intended to modify the implementation of
any other Federal statute. The preceding discussion of the action
specifies the Federal regulatory provisions that are affected by the
revision.
C. Would the regulation provide a clear and certain legal standard
for affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of SMCRA.
D. What would be the retroactive effect, if any, to be given to the
regulation?
The Energy Policy Act amended SMCRA by adding a new section 720, 30
U.S.C. 1309a, requiring that underground coal mine operations promptly
replace certain adversely affected water supplies and repair or
compensate for subsidence damage to specified structures. The
requirements are effective October 24, 1992, and apply to underground
coal mining operations after that date. Section 720 also required OSM
to adopt implementing regulations thereafter. This rulemaking includes
provisions to implement those requirements. Thus, those provisions do
not create any new retroactive requirements to replace, repair, or
compensate; but rather implement the effective date established for
these requirements by the Energy Policy Act. Implementing provisions
were previously discussed in the preamble.
E. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings would be required before parties may
file suit in court challenging the provisions of the revision under
section 526(a) of SMCRA, 30 U.S.C. 1276(a). Prior to any judicial
challenge to the application of the rule, however, administrative
procedures must be exhausted. Applicable administrative procedures may
be found at 43 CFR Part 4.
F. Would the action define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items?
Terms which are important to the understanding of the action are
set forth in 30 CFR 701.5.
G. Would the regulation address other important issues affecting
clarity and general draftsmanship of regulations set forth by the
Attorney General, with the concurrence of the Director of the Office of
Management and Budget, that are determined to be in accordance with the
purposes of the Executive Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
Agency Concurrence
Section 516(a) of the Act requires that, with regard to rules
directed toward the surface effects of underground mining, OSM must
obtain written concurrence from the head of the department which
administers the Federal Mine Safety and Health Act of 1977, the
successor to the Federal Coal Mine Health and Safety Act of 1969. OSM
has obtained the written concurrence of the Assistant Secretary for
Mine Safety and Health, U.S. Department of Labor.
Author
The principal author of this regulation is Nancy R. Broderick,
Branch of Federal and Indian Programs, Office of Surface Mining
Reclamation and Enforcement, 1951 Constitution Avenue, N.W.,
Washington, D.C. 20240; telephone (202) 208-2564.
List of Subjects
30 CFR Part 701
Law enforcement, Surface mining, Underground mining.
30 CFR Part 784
Reporting and recordkeeping requirements, Underground mining.
30 CFR Part 817
Environmental protection, Reporting and recordkeeping requirements,
Underground mining.
30 CFR Part 843
Administrative practice and procedure, Direct federal enforcement
for repair of subsidence damage, Law enforcement, Reporting and
recordkeeping requirements, Surface mining, Underground mining.
Dated: January 5, 1995.
Bob Armstrong,
Assistant Secretary--Land and Minerals Management.
Accordingly, 30 CFR Parts 701, 784, 817, and 843 are amended as set
forth below.
SUBCHAPTER A--GENERAL
PART 701--PERMANENT REGULATORY PROGRAM
1. The authority citation for Part 701 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended.
2. Section 701.5 is amended by adding alphabetically definitions of
``drinking, domestic or residential water supply,'' ``material
damage,'' ``non-commercial building,'' ``occupied residential dwelling
and structures related thereto,'' and ``replacement of water supply''
to read as follows:
Sec. 701.5 Definitions.
* * * * *
Drinking, domestic or residential water supply means water received
from a well or spring and any appurtenant delivery system that provides
water for direct human consumption or household use. Wells and springs
that serve only agricultural, commercial or industrial enterprises are
not included except to the extent the water supply is for direct human
consumption or human sanitation, or domestic use.
* * * * *
Material damage, in the context of Secs. 784.20 and 817.121 of this
chapter, means:
(a) Any functional impairment of surface lands, features,
structures or facilities;
(b) Any physical change that has a significant adverse impact on
the affected land's capability to support any current or reasonably
foreseeable uses or causes significant loss in production or income; or
(c) Any significant change in the condition, appearance or utility
of any structure or facility from its pre-subsidence condition.
* * * * *
Non-commercial building means any building, other than an occupied
residential dwelling, that, at the time the subsidence occurs, is used
on a regular or temporary basis as a public building or community or
institutional building as those terms are defined in Sec. 761.5 of this
chapter. Any building used only for commercial agricultural,
industrial, retail or other commercial enterprises is excluded.
* * * * * [[Page 16748]]
Occupied residential dwelling and structures related thereto means,
for purposes of Secs. 784.20 and 817.121, any building or other
structure that, at the time the subsidence occurs, is used either
temporarily, occasionally, seasonally, or permanently for human
habitation. This term also includes any building, structure or facility
installed on, above or below, or a combination thereof, the land
surface if that building, structure or facility is adjunct to or used
in connection with an occupied residential dwelling. Examples of such
structures include, but are not limited to, garages; storage sheds and
barns; greenhouses and related buildings; utilities and cables; fences
and other enclosures; retaining walls; paved or improved patios, walks
and driveways; septic sewage treatment facilities; and lot drainage and
lawn and garden irrigation systems. Any structure used only for
commercial agricultural, industrial, retail or other commercial
purposes is excluded.
* * * * *
Replacement of water supply means, with respect to protected water
supplies contaminated, diminished, or interrupted by coal mining
operations, provision of water supply on both a temporary and permanent
basis equivalent to premining quantity and quality. Replacement
includes provision of an equivalent water delivery system and payment
of operation and maintenance costs in excess of customary and
reasonable delivery costs for premining water supplies.
(a) Upon agreement by the permittee and the water supply owner, the
obligation to pay such operation and maintenance costs may be satisfied
by a one-time payment in an amount which covers the present worth of
the increased annual operation and maintenance costs for a period
agreed to by the permittee and the water supply owner.
(b) If the affected water supply was not needed for the land use in
existence at the time of loss, contamination, or diminution, and if the
supply is not needed to achieve the postmining land use, replacement
requirements may be satisfied by demonstrating that a suitable
alternative water source is available and could feasibly be developed.
If the latter approach is selected, written concurrence must be
obtained from the water supply owner.
* * * * *
SUBCHAPTER G--SURFACE COAL MINING AND RECLAMATION OPERATIONS PERMITS
AND COAL EXPLORATION SYSTEMS UNDER REGULATORY PROGRAMS
PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN
3. The authority citation for Part 784 is revised to read as
follows:
Authority: 16 U.S.C. 470 et seq., 30 U.S.C. 1201 et seq. as
amended.
4. Section 784.10 is revised as follows:
Sec. 784.10 Information collection.
(a) The collections of information contained in Part 784 have been
approved by Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0039. The information will be
used to meet the requirements of 30 U.S.C. 1211(b), 1251, 1257, 1258,
1266, and 1309a. The obligation to respond is required to obtain a
benefit.
(b) Public reporting burden for this information is estimated to
average 513 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
5. In Section 784.14 paragraph (e)(3)(ii) is amended by removing
the word ``and''; (e)(3)(iii)(E) is amended by removing the period and
adding a semicolon in its place; and paragraph (e)(3)(iv) is added as
follows:
Sec. 784.14 Hydrologic information.
* * * * *
(e) * * *
* * * * *
(3) * * *
(iv) Whether the underground mining activities conducted after
October 24, 1992 may result in contamination, diminution or
interruption of a well or spring in existence at the time the permit
application is submitted and used for domestic, drinking, or
residential purposes within the permit or adjacent areas.
* * * * *
6. Section 784.20 is revised to read as follows:
Sec. 784.20 Subsidence control plan.
(a) Pre-subsidence survey. Each application must include:
(1) A map of the permit and adjacent areas at a scale of 1:12,000,
or larger if determined necessary by the regulatory authority, showing
the location and type of structures and renewable resource lands that
subsidence may materially damage or for which the value or reasonably
foreseeable use may be diminished by subsidence, and showing the
location and type of drinking, domestic, and residential water supplies
that could be contaminated, diminished, or interrupted by subsidence.
(2) A narrative indicating whether subsidence, if it occurred,
could cause material damage to or diminish the value or reasonably
foreseeable use of such structures or renewable resource lands or could
contaminate, diminish, or interrupt drinking, domestic, or residential
water supplies.
(3) A survey of the condition of all non-commercial 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 area encompassed by the
applicable angle of draw; as well as a survey of the quantity and
quality of all drinking, domestic, and residential water supplies
within the permit area and adjacent area that could be contaminated,
diminished, or interrupted by subsidence. If the applicant cannot make
this survey because the owner will not allow access to the site, the
applicant will notify the owner, in writing, of the effect that denial
of access will have as described in Sec. 817.121(c)(4) of this chapter.
The applicant must pay for any technical assessment or engineering
evaluation used to determine the pre-mining condition or value of such
non-commercial buildings or occupied residential dwellings and
structures related thereto and the quantity and quality of drinking,
domestic, or residential water supplies. The applicant must provide
copies of the survey and any technical assessment or engineering
evaluation to the property owner and regulatory authority.
(b) Subsidence control plan. If the survey conducted under
paragraph (a) of this section shows that no structures, or drinking,
domestic, or residential water supplies, or renewable resource lands
exist, or that no material damage or diminution in value or reasonably
foreseeable use of such structures or lands, and no contamination,
diminution, or interruption of such water supplies would occur as a
result of mine subsidence, and if the regulatory authority agrees with
this conclusion, no further information need be provided under this
section. If the survey shows that structures, renewable resource lands,
or water supplies exist and that subsidence could cause material damage
or diminution in value [[Page 16749]] or reasonably foreseeable use, or
contamination, diminution, or interruption of protected water supplies,
or if the regulatory authority determines that damage, diminution in
value or foreseeable use, or contamination, diminution, or interruption
could occur, the application must include a subsidence control plan
that contains the following information:
(1) A description of the method of coal removal, such as longwall
mining, room-and-pillar removal or hydraulic mining, including the
size, sequence and timing of the development of underground workings;
(2) A map of the underground workings that describes the location
and extent of the areas in which planned-subsidence mining methods will
be used and that identifies all areas where the measures described in
paragraphs (b)(4), (b)(5), and (b)(7) of this section will be taken to
prevent or minimize subsidence and subsidence-related damage; and, when
applicable, to correct subsidence-related material damage;
(3) A description of the physical conditions, such as depth of
cover, seam thickness and lithology of overlaying strata, that affect
the likelihood or extent of subsidence and subsidence-related damage;
(4) A description of the monitoring, if any, needed to determine
the commencement and degree of subsidence so that, when appropriate,
other measures can be taken to prevent, reduce or correct material
damage in accordance with Sec. 817.121(c) of this chapter;
(5) Except for those areas where planned subsidence is projected to
be used, a detailed description of the subsidence control measures that
will be taken to prevent or minimize subsidence and subsidence-related
damage, such as, but not limited to:
(i) Backstowing or backfilling of voids;
(ii) Leaving support pillars of coal;
(iii) Leaving areas in which no coal is removed, including a
description of the overlying area to be protected by leaving coal in
place; and
(iv) Taking measures on the surface to prevent or minimize material
damage or diminution in value of the surface;
(6) A description of the anticipated effects of planned subsidence,
if any;
(7) For those areas where planned subsidence is projected to be
used, a description of methods to be employed to minimize damage from
planned subsidence to non-commercial buildings and occupied residential
dwellings and structures related thereto; or the written consent of the
owner of the structure or facility that minimization measures not be
taken; or, unless the anticipated damage would constitute a threat to
health or safety, a demonstration that the costs of minimizing damage
exceed the anticipated costs of repair;
(8) A description of the measures to be taken in accordance with
Secs. 817.41(j) and 817.121(c) of this chapter to replace adversely
affected protected water supplies or to mitigate or remedy any
subsidence-related material damage to the land and protected
structures; and
(9) Other information specified by the regulatory authority as
necessary to demonstrate that the operation will be conducted in
accordance with Sec. 817.121 of this chapter.
SUBCHAPTER K--PERMANENT PROGRAM PERFORMANCE STANDARDS
PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND
MINING ACTIVITIES
7. The authority citation for Part 817 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended.
8. Section 817.10 is revised as follows:
Sec. 817.10 Information collection.
(a) The collections of information contained in Part 817 have been
approved by Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned clearance number 1029-0048. The information will be
used to meet the requirements of 30 U.S.C. 1211, 1251, 1266, and 1309a
which provide, among other things, that permittees conducting
underground coal mining operations will meet the applicable performance
standards of the Act. This information will be used by the regulatory
authority in monitoring and inspecting underground mining activities.
The obligation to respond is required to obtain a benefit.
(b) Public reporting burden for this information is estimated to
average 4 hours per response, including the time for reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information.
9. In Sec. 817.41, paragraph (j) is added to read as follows:
Sec. 817.41 Hydrologic balance protection.
* * * * *
(j) Drinking, domestic or residential water supply. The permittee
must promptly replace any drinking, domestic or residential water
supply that is contaminated, diminished or interrupted by underground
mining activities conducted after October 24, 1992, if the affected
well or spring was in existence before the date the regulatory
authority received the permit application for the activities causing
the loss, contamination or interruption. The baseline hydrologic
information required in Secs. 780.21 and 784.14 of this chapter and the
geologic information concerning baseline hydrologic conditions required
in Secs. 780.21 and 784.22 of this chapter will be used to determine
the impact of mining activities upon the water supply.
10. In Sec. 817.121, paragraphs (a) and (c) are revised to read as
follows:
Sec. 817.121 Subsidence control.
(a) Measures to prevent or minimize damage. (1) The permittee must
either adopt measures consistent with known technology that prevent
subsidence from 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 that provides for planned subsidence in a predictable and
controlled manner.
(2) If a permittee employs mining technology that provides for
planned subsidence in a predictable and controlled manner, the
permittee must take necessary and prudent measures, consistent with the
mining method employed, to minimize material damage to the extent
technologically and economically feasible to non-commercial buildings
and occupied residential dwellings and structures related thereto
except that measures required to minimize material damage to such
structures are not required if:
(i) The permittee has the written consent of their owners or
(ii) Unless the anticipated damage would constitute a threat to
health or safety, the costs of such measures exceed the anticipated
costs of repair.
(3) Nothing in this part prohibits the standard method of room-and-
pillar mining.
* * * * *
(c) Repair of damage.
(1) Repair of damage to surface lands. The permittee must correct
any material damage resulting from subsidence caused to surface lands,
to the extent technologically and economically feasible, by restoring
the land to a condition capable of maintaining the value and reasonably
foreseeable uses that it was capable of supporting before subsidence
damage.
(2) Repair or compensation for damage to non-commercial buildings
and dwellings and related structures. The permittee must promptly
repair, or [[Page 16750]] compensate the owner for, material damage
resulting from subsidence caused to any non-commercial building or
occupied residential dwelling or structure related thereto that existed
at the time of mining. If repair option is selected, the permittee must
fully rehabilitate, restore or replace the damaged structure. If
compensation is selected, the permittee must compensate the owner of
the damaged structure for the full amount of the decrease in value
resulting from the subsidence-related damage. The permittee may provide
compensation by the purchase, before mining, of a non-cancelable
premium-prepaid insurance policy. The requirements of this paragraph
apply only to subsidence-related damage caused by underground mining
activities conducted after October 24, 1992.
(3) Repair or compensation for damage to other structures. The
permittee must, to the extent required under applicable provisions of
State law, either correct material damage resulting from subsidence
caused to any structures or facilities not protected by paragraph
(c)(2) of this section by repairing the damage or compensate the owner
of the structures or facilities for the full amount of the decrease in
value resulting from the subsidence. Repair of damage includes
rehabilitation, restoration, or replacement of damaged structures or
facilities. Compensation may be accomplished by the purchase before
mining of a non-cancelable premium-prepaid insurance policy.
(4) Rebuttable presumption of causation by subsidence.--(i)
Rebuttable presumption of causation for damage within angle of draw. If
damage to any non-commercial building or occupied residential dwelling
or structure related thereto occurs as a result of earth movement
within an area determined by projecting a specified angle of draw from
the outermost boundary of any underground mine workings to the surface
of the land, a rebuttable presumption exists that the permittee caused
the damage. The presumption will normally apply to a 30-degree angle of
draw. A State regulatory authority may amend its program to apply the
presumption to a different angle of draw if the regulatory authority
shows in writing that the angle has a more reasonable basis than the
30-degree angle of draw, based on geotechnical analysis of the factors
affecting potential surface impacts of underground coal mining
operations in the State.
(ii) Approval of site-specific angle of draw. A permittee or permit
applicant may request that the presumption apply to an angle of draw
different from that established in the regulatory program. The
regulatory authority may approve application of the presumption to a
site-specific angle of draw different than that contained in the State
or Federal program based on a site-specific analysis submitted by an
applicant. To establish a site-specific angle of draw, an applicant
must demonstrate and the regulatory authority must determine in writing
that the proposed angle of draw has a more reasonable basis than the
standard set forth in the State or Federal program, based on a site-
specific geotechnical analysis of the potential surface impacts of the
mining operation.
(iii) No presumption where access for pre-subsidence survey is
denied. If the permittee was denied access to the land or property for
the purpose of conducting the pre-subsidence survey in accordance with
Sec. 784.20(a) of this chapter, no rebuttable presumption will exist.
(iv) Rebuttal of presumption. The presumption will be rebutted if,
for example, the evidence establishes that: The damage predated the
mining in question; the damage was proximately caused by some other
factor or factors and was not proximately caused by subsidence; or the
damage occurred outside the surface area within which subsidence was
actually caused by the mining in question.
(v) Information to be considered in determination of causation. In
any determination whether damage to protected structures was caused by
subsidence from underground mining, all relevant and reasonably
available information will be considered by the regulatory authority.
(5) Adjustment of bond amount for subsidence damage. When
subsidence-related material damage to land, structures or facilities
protected under paragraphs (c)(1) through (c)(3) of this section
occurs, or when contamination, diminution, or interruption to a water
supply protected under Sec. 817.41 (j) occurs, the regulatory authority
must require the permittee to obtain additional performance bond in the
amount of the estimated cost of the repairs if the permittee will be
repairing, or in the amount of the decrease in value if the permittee
will be compensating the owner, or in the amount of the estimated cost
to replace the protected water supply if the permittee will be
replacing the water supply, until the repair, compensation, or
replacement is completed. If repair, compensation, or replacement is
completed within 90 days of the occurrence of damage, no additional
bond is required. The regulatory authority may extend the 90-day time
frame, but not to exceed one year, if the permittee demonstrates and
the regulatory authority finds in writing that subsidence is not
complete, that not all probable subsidence-related material damage has
occurred to lands or protected structures, or that not all reasonably
anticipated changes have occurred affecting the protected water supply,
and that therefore it would be unreasonable to complete within 90 days
the repair of the subsidence-related material damage to lands or
protected structures, or the replacement of protected water supply.
* * * * *
PART 843--FEDERAL ENFORCEMENT
11. The authority citation for Part 843 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended:
12. Section 843.25 is added to read as follows:
Sec. 843.25 Energy Policy Act enforcement in States with approved
State programs.
(a) State-by-State determinations. By July 31, 1995, OSM will
determine for each State with an approved State regulatory program
whether:
(1) Direct Federal enforcement of the Energy Policy Act and
implementing Federal regulations will occur under paragraph (b) of this
section with respect to some or all surface coal mining operations in
each State, or
(2) The procedures of Secs. 843.11 and 843.12(a)(2) will apply to
State enforcement of the Energy Policy Act, or
(3) A combination of direct Federal enforcement and State
enforcement will occur.
(4) Before making this determination, OSM will consult with each
affected State and provide an opportunity for public comment. OSM will
publish its determination in the Federal Register.
(b) Interim Federal enforcement. (1) If OSM determines under
paragraph (a) that direct Federal enforcement is necessary,
Secs. 817.41(j), 817.121(c)(2), and 817.121(c)(4) of this chapter will
apply to each underground mining operation subject to that
determination that is conducted in a State with an approved State
regulatory program.
(2) If OSM determines under paragraph (a) of this section that
direct Federal enforcement is necessary, the provisions of
Sec. 843.12(a)(2) will not apply to direct Federal enforcement actions
under this paragraph (b). When, on the basis of any Federal inspection
under this paragraph, an authorized representative determines that a
violation of Sec. 817.41(j) or Sec. 817.121(c)(2) exists, the
authorized representative [[Page 16751]] must issue a notice of
violation or cessation order, as appropriate.
(3) This paragraph (b) will remain effective in a State with an
approved State regulatory program until the State adopts, and OSM
approves, under Part 732 of this chapter, provisions consistent with
Secs. 817.41(j) and 817.121(c)(2) of this chapter. After these
provisions are approved, this paragraph will remain effective only for
violations of Secs. 817.41(j) and 817.121(c)(2) that are not regulated
by the State regulatory authority.
[FR Doc. 95-7954 Filed 3-30-95; 8:45 am]
BILLING CODE 4310-05-P
