Permanent Regulatory Program; Underground Mining Permit Application Requirements; Underground Mining Performance Standards

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 affe

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