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

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URL: https://www.frixlaw.com/law-library/documents/fr%3A95-7954

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** March 31, 1995
- **Citation:** 60 FR 16722

## Text

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., a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A95-7954. Public record. Not legal advice.