Interpretative Rule Related to Subsidence Due to Underground Coal Mining

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 761

RIN 1029-AB82

Interpretative Rule Related to Subsidence Due to Underground Coal

Mining

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule and record of decision.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement

interprets sections 522(e) and 701(28) of the Surface Mining Control

and Reclamation Act of 1977 and implementing rules to provide that

subsidence due to underground mining is not a surface coal mining

operation. Subsidence therefore is not prohibited in areas protected

under the Act . Neither subsurface activities that may result in

subsidence, nor actual subsidence, are prohibited on lands protected by

section 522(e). Subsidence is subject to regulation under other

applicable provisions of the Surface Mining Control and Reclamation Act

of 1977, primarily sections 516 and 720.

EFFECTIVE DATE: January 18, 2000.

FOR FURTHER INFORMATION CONTACT: Nancy R. Broderick, Office of Surface

Mining Reclamation and Enforcement, Room 210, South Interior Building,

1951 Constitution Avenue, NW, Washington, DC 20240. Telephone: (202)

208-2700. E-mail address: [email protected]. Additional information

concerning OSM, this rule, and related documents may be found on OSM's

home page at http://www.osmre.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background.

A. Why is OSM doing this rulemaking?

B. What process did OSM use to develop the final rule?

C. How is this rule related to the valid existing rights rulemaking?

D. What statutory language is OSM interpreting?

1. Prohibition on surface coal mining operations--section

522(e).

2. Definition of surface coal mining operations--section

701(28).

E. What other SMCRA provisions are relevant?

1. Surface effects of underground coal mining operations--

section 516.

2. Subsidence--section 720.

F. What existing regulations are relevant?

1. Provisions implementing SMCRA sections 522(e) and 701(28).

Part 740

2. Provisions implementing SMCRA sections 516 and 720. Sections

784.20 and 817.121

II. Discussion of Final Rule.

A. Do the prohibitions of section 522(e) apply to subsidence from

underground mining?

B. What is the rationale for the final rule?

1. Statutory language.

2. Legislative history.

3. Policy considerations.

a. This rule resolves questions about our interpretation of

statutory provisions.

b. This rule balances economic and environmental considerations.

c. This rule avoids a regulatory gap.

d. This rule balances the interests of surface owners and

industry.

e. This rule maintains stability in SMCRA implementation.

f. This rule promotes safety.

g. This rule acknowledges existing property rights.

III. Response to Comments.

A. SMCRA definition of surface coal mining operations.

B. Congressional intent.

C. History of interpretation as to applicability of section 522(e)

prohibitions to subsidence.

D. Regulatory gap--Adequacy of SMCRA protection of 522(e) features

from subsidence damage.

E. Impacts on underground mining if prohibitions do apply to

subsidence.

F. Codification of the final rule.

IV. Procedural Matters.

A. Executive Order 12866: Regulatory Planning and Review.

B. Regulatory Flexibility Act.

C. Small Business Regulatory Enforcement Fairness Act.

D. Unfunded Mandates Reform Act of 1995.

E. Executive Order 12630: Takings.

F. Executive Order 13132: Federalism.

G. Executive Order 12988: Civil Justice Reform.

H. Paperwork Reduction Act.

I. National Environmental Policy Act of 1969 and Record of Decision.

Background

A. Why Is OSM Doing This Rulemaking?

The Surface Mining Control and Reclamation Act of 1977 (Public Law

95-87, 30 U.S.C. 1201 et seq.) (SMCRA or the Act) prohibits surface

coal mining operations on all lands designated in section 522(e),

subject to valid existing rights and except for those operations which

existed on August 3, 1977. Lands designated in section 522(e)(1)-(5)

include:

--Any lands within the boundaries of units of the National Park System;

--Federal lands within National Forests; publicly owned parks;

--Properties listed on the National Register of Historic Places;

--Buffer zones around public roads, homes, public buildings, schools,

[[Page 70839]]

churches, community and institutional buildings; and

--Cemeteries.

Section 701(28) Defines ``Surface Coal Mining Operations.''

This interpretive rulemaking is in part the result of litigation

concerning the applicability of:

--The section 522(e)(4) prohibition to underground mining within 100

feet of any public road; and

--The (e)(5) prohibition to underground mining within 300 feet from any

occupied dwelling, unless waived by the owner, or within 300 feet of

public buildings or public parks, or within 100 feet of a cemetery.

In that litigation, environmental and citizen plaintiffs contended

that our regulations implementing SMCRA section 522(e), at 30 CFR

761.11(d) through (g), did not explicitly prohibit subsidence from

underground mining in 522(e)(4) and (5) areas. Citizen Plaintiffs' Mem.

Round III of In Re: Permanent Surface Mining Regulation Litigation, No.

79-1144, (D.D.C. 1985) [hereafter, In Re: Permanent (II)] at 56. There

is still disagreement over whether and to what extent subsidence and

underground mining which causes or is expected to cause subsidence, are

prohibited. Environmental and citizen groups believe all subsidence is

prohibited. Industry groups believe subsidence is not covered by the

prohibitions. In its decision on the issue, the court affirmed our

regulations, stating that they track the statutory language, while

noting that the Secretary had committed to further rulemaking on the

applicability of sections 522(e)(4) and (5) to underground mining. In

Re: Permanent (II), Mem. Op. at 70 (July 15, 1985).

In 1988, we issued a proposed rule to address the issue. See 53 FR

52374, Dec. 27, 1988. In 1989, we withdrew the proposed rule for

further study due to the comments we received and our analysis

indicating that this was fundamentally a legal issue. 54 FR 30557, July

21, 1989. We then decided to seek a formal opinion on this matter from

the Department of the Interior's Office of the Solicitor. The Solicitor

completed his review of this issue in July 1991, and concluded that the

best interpretation of SMCRA is that subsidence is not a surface coal

mining operation subject to the prohibitions of Sec. 522(e). Memorandum

Opinion of the Solicitor, Department of the Interior, M-36971,

Applicability of Section 522(e) of the Surface Mining Control and

Reclamation Act to Subsidence (100 I.D. 85 (1993)) [hereafter, the ``M-

Op',].

The M-Op is based on an extensive analysis of the statute, the

legislative history, relevant case authority and our regulatory actions

with respect to the applicability of section 522(e) to subsidence from

underground mining. The M-Op:

--Concluded that Congress did not intend for the prohibitions of

section 522(e) to apply to subsidence from underground mining and

--Noted that OSM may regulate subsidence solely under section 516 of

SMCRA and not under section 522(e).

The M-Op recognizes that regulation under section 516 may not have

the same effect as regulation under section 522(e). At the same time,

the analysis of the statute and legislative history supports the

conclusion that regulation under section 516 will achieve full

protection of the environmental values which Congress sought to protect

from subsidence under the Act while encouraging longwall mining.

On July 18, 1991, we published a Notice of Inquiry (NOI) which

stated that no further rulemaking action was necessary in regard to the

applicability of section 522(e) prohibitions to underground mining. The

NOI stated that we based this conclusion upon our review of the Act and

the legislative history, the comments received on the December 27,

1988, proposal, and the M-Op. We concluded that the regulations, at 30

CFR 761.11(d), (e), (f) and (g), adequately addressed underground

mining and appropriately applied the statutorily-established buffer

zones in a horizontal dimension only. 56 FR 33170.

On September 6, 1991, the National Wildlife Federation (NWF) filed

suit against the Secretary challenging the July 18 NOI and the July 10

M-Op, on the applicability of 522(e) of SMCRA to subsidence. National

Wildlife Fed'n (NWF) v. Babbitt, 835 F. Supp. 654 (D.D.C. September 21,

1993). The NWF contended that both the M-Op and the NOI violated the

requirements of the Administrative Procedure Act (APA), the National

Environmental Policy Act (NEPA), and SMCRA. NWF requested, among other

things, that the court order OSM to undertake rulemaking to determine

the applicability of section 522(e) to subsidence, and vacate the M-Op

and the NOI. In addition, the Interstate Mining Compact Commission

(IMCC) and a number of industry groups, including the National Coal

Association (NCA) and American Mining Congress (AMC), filed a motion to

intervene as defendants in this action. The court granted that motion .

The district court vacated the NOI on September 21, 1993, on

procedural grounds, and remanded the case to the Secretary for

rulemaking on the applicability of section 522(e) to subsidence, in

accordance with the notice and comment procedures of the APA, 5 U.S.C.

section 551 et seq. National Wildlife Fed'n (NWF) v. Babbitt, 835 F.

Supp. 654 (D.D.C. September 21, 1993).

B. What Process Did OSM Use To Develop the Final Rule?

This final rule is based upon a proposed rule published for public

review and comment on January 31, 1997 (62 FR 4864). We also posted the

proposed rule and associated documents on the OSM home page on the

Internet. In response to requests from the public, we held public

hearings on the proposed rule in Athens, Ohio; Billings, Montana;

Washington, Pennsylvania; and Whitesburg, Kentucky. The comment period

was originally scheduled to close June 2, 1997, but, in response to

several requests, we extended the deadline until August 1, 1997. 62 FR

29314, May 30, 1997.

In addition to the testimony offered at the four hearings, we

received approximately 491 written comments on the proposed rule (430

from private citizens, 40 from companies and associations affiliated

with the mining industry, 9 from environmental organizations, and 12

from Federal, State, and local governmental entities and associations).

We considered all comments and hearing transcripts in developing the

final rule. With the exception of comments that did not address the

substance or merits of the proposed rule, the preamble summarizes the

major types of comments received and their disposition.

In addition to the changes made in response to comments, we have

written this document in plain language, using better organization,

more concise sentences, and pronouns.

C. How Is This Rule Related to the Valid Existing Rights Rulemaking?

Under section 522(e), surface coal mining operations are prohibited

in specified areas unless a person can demonstrate a valid existing

right to mine the coal resources, or can meet one of the other

statutory exceptions to the prohibitions. SMCRA does not define the

term ``valid existing rights'' (VER) . In a separate rulemaking,

published in this issue of the Federal Register, we define valid

existing rights, establish standards for VER, tell how to submit a

[[Page 70840]]

VER claim, and explain how we will process claims.

That separate rulemaking establishes a ``good faith all permits''

primary standard for VER, which provides that a person has VER if,

before the land came under the protection of section 522(e), the person

had obtained, or made a good faith effort to obtain, all necessary

permits. In general, access to coal resources within western National

Forests, and within protected historic sites, road buffers, and

occupied dwellings buffers is largely gained by processes other than

VER (compatibility findings, waivers, and avoidance). In addition, even

though access to coal under churches, schools, public buildings, and

cemeteries is generally dependent upon establishing VER, these

protected areas are encountered at a frequency that generally allows

mining operations to readily avoid them.

The EIS accompanying this rulemaking concludes that, overall, the

areas most likely to be impacted through successful VER determinations

appear to be:

--Section 522(e)(1) lands;

--State and local parks; and

--Some areas contained in eastern National Forests.

The ``good faith all permits'' standard is likely to have the least

environmental impact and allow surface owners and resource management

agencies the greatest control to decide whether to authorize adverse

effects to protected areas. Under this standard, it appears that few,

if any, areas protected by section 522(e) would be mined under VER

determinations. See Final Environmental Impact Statement: Proposed

Revisions to the Permanent Program Regulations Implementing Section

522(e) of the Surface Mining Control and Reclamation Act of 1977 and

Proposed Rulemaking Clarifying the Applicability of Section 522(e) to

Subsidence from Underground Mining, OSM-EIS-29 (July, 1999).

[hereafter, ``Final EIS, 1999'']. We don't expect the ``good faith all

permits'' VER standard to significantly limit underground mining access

to coal in areas protected under section 522(e) This is in part

because, under this rulemaking, subsidence is not prohibited under

section 522(e).

We analyzed the relative impacts of the various combinations of

alternatives for the two rules in an Environmental Impact Statement

(EIS) and an Economic Analysis (EA) that addressed the two rulemakings.

The National Environmental Policy Act requires an EIS when a rulemaking

will have a significant effect on the quality of the human environment.

An EA is required when a rule is considered significant regulatory

action under the criteria of Executive Order 12866. In 1994, we

published a notice in the Federal Register (59 FR 21996) of our intent

to prepare an EIS and EA on these two issues. The scoping process for

the support documents identified several impact issues regarding the

proposed rulemakings.

Simultaneously with the two proposed rulemakings published in

January 1997, we published for review and comment a draft EIS (U.S.

Department of the Interior. Office of Surface Mining Reclamation and

Enforcement. Draft Environmental Impact Statement Valid Existing

Rights, Proposed Revisions to the Permanent Program Regulations

Implementing Section 522(e) of the Surface Mining Control and

Reclamation Act of 1977 and Proposed Rulemaking Clarifying the

Applicability of Section 522(e) to Subsidence from Underground Mining,

OSM-EIS-29, September 1995).

We also made available for review and comment a draft EA (U.S.

Department of the Interior. U.S. Geological Survey and Office of

Surface Mining Reclamation and Enforcement. Draft Economic Analysis

Valid Existing Rights, Proposed Revisions to the Permanent Program

Regulations Implementing Section 522(e) of the Surface Mining Control

and Reclamation Act of 1977 and Proposed Rulemaking Clarifying the

Applicability of Section 522(e) to Subsidence from Underground Mining,

March 1996).

The final EIS and EA provide detailed responses to comments on the

draft support documents. See, Final EIS, 1999; Final Economic Analysis,

Rulemaking Alternatives for a Standard for Valid Existing Rights and

for the Rulemaking Alternatives for Application of 522(e) Prohibitions

to Underground Mining, prepared by U.S. Geological Survey and U.S.

Office of Surface Mining, (July, 1999). (Hereafter ``Final EA ,

1999'').

D. What Statutory Language Is OSM Interpreting?

1. Prohibition on Surface Coal Mining Operations--Section 522(e)

SMCRA prohibits surface coal mining operations on all lands

designated in section 522(e), subject to valid existing rights and

except for those operations which existed on August 3, 1977. Congress

determined that the nature and purpose of section 522(e) areas and land

uses were incompatible with surface coal mining operations. See S. Rep.

No. 128, 95th Cong. 1st Sess. 55 (1977). Under section 522(e), if a

person who proposes to conduct a surface coal mining operation on

protected lands does not qualify for one of the statutory exceptions,

then the person cannot conduct the intended operation on such lands,

and the permit area cannot include those lands. See 30 CFR

Sec. 773.15(c)(3)(ii). Section 522(e), subject to specified exceptions,

states that no surface coal mining operations shall be permitted on

lands designated in subsections (e)(1) through (5). Section 522(e) does

not specifically mention subsidence.

Section 522(e) provides, in relevant part, as follows:

After the enactment of this Act and subject to valid existing

rights no surface coal mining operations except those which exist on

the date of enactment of the Act shall be permitted--

(1) On any lands within the boundaries of units of the National

Park System, the National Wildlife Refuge Systems, the National System

of Trails, the National Wilderness Preservation System, the Wild and

Scenic Rivers System, including study rivers designated under section

5(a) of the Wild and Scenic Rivers Act and National Recreation Areas

designated by Act of Congress;

(2) On any Federal lands within the boundaries of any national

forest: Provided, however, That surface coal mining operations may be

permitted on such lands if the Secretary finds that there are no

significant recreational, timber, economic, or other values which may

be incompatible with such surface mining operations and --

(A) Surface operations and impacts are incident to an underground

coal mine; or

(B) where the Secretary of Agriculture determines, with respect to

lands which do not have significant forest cover within those national

forests west of the 100th meridian, that surface mining is in

compliance with the Multiple-Use Sustained-Yield Act of 1960, the

Federal Coal Leasing Amendments Act of 1975, the National Forest

Management Act of 1976, and the provisions of this Act: And provided

further, That no surface coal mining operations may be permitted within

the boundaries of the Custer National Forest;

(3) Which will adversely affect any publicly owned park or places

included in the National Register of Historic Sites unless approved

jointly by the regulatory authority and the Federal, State, or local

agency with jurisdiction over the park or the historic site;

(4) Within one hundred feet of the outside right-of-way line of any

public road, except where mine access roads or

[[Page 70841]]

haulage roads join such right-of-way line and except that the

regulatory authority may permit such roads to be relocated or the area

affected to lie within one hundred feet of such road, if after public

notice and opportunity for public hearing in the locality a written

finding is made that the interests of the public and the landowners

affected thereby will be protected; or

(5) Within three hundred feet from any occupied dwelling, unless

waived by the owner thereof, nor within three hundred feet of any

public building, school, church, community, or institutional building,

public park, or within one hundred feet of a cemetery.

30 U.S.C. 1272(e) (emphasis added).

2. Definition of Surface Coal Mining Operations--Section 701(28)

The prohibitions of section 522(e) of SMCRA apply to ``surface coal

mining operations.'' Thus, determining the scope of the prohibitions

requires an understanding of the definition of the term ``surface coal

mining operations'' in section 701(28). As defined in section 701(28),

``surface coal mining operations'' specifically includes certain

aspects of underground coal mining. However, the definition does not

specifically mention subsidence.

Section 701(28) provides in full as follows: ``surface coal mining

operations'' means--

(A) Activities conducted on the surface of lands in connection with

a surface coal mine or subject to the requirements of section 1266 of

this title surface operations and surface impacts incident to an

underground coal mine, the products of which enter commerce or the

operations of which directly or indirectly affect interstate commerce.

Such activities include excavation for the purpose of obtaining coal

including such common methods as contour, strip, auger, mountaintop

removal, box cut, open pit, and area mining, the uses of explosives and

blasting, and in situ distillation or retorting, leaching or other

chemical or physical processing, and the cleaning, concentrating, or

other processing or preparation, loading of coal for interstate

commerce at or near the mine site: Provided, however, That such

activities do not include the extraction of coal incidental to the

extraction of other minerals where coal does not exceed 16 \2/3\ per

centum of the tonnage of minerals removed for purposes of commercial

use or sale or coal explorations subject to section 512 of this Act;

and

(B) The areas upon which such activities occur or where such

activities disturb the natural land surface. Such areas shall also

include any adjacent land the use of which is incidental to any such

activities, all lands affected by the construction of new roads or the

improvement or use of existing roads to gain access to the site of such

activities and for haulage, and excavations, workings, impoundments,

dams, ventilation shafts, entryways, refuse banks, dumps, stockpiles,

overburden piles, spoil banks, culm banks, tailings, holes or

depressions, repair areas, storage areas, processing areas, shipping

areas and other areas upon which are sited structures, facilities, or

other property or materials on the surface, resulting from or incident

to such activities.

30 U.S.C. 1291(28).

E. What Other SMCRA Provisions Are Relevant?

1. Surface Effects of Underground Coal Mining Operations--Section 516

Section 516 establishes the regulatory requirements for the surface

effects of underground coal mining, including provisions for the

control of subsidence from underground coal mining. SMCRA section 516

provides in relevant part:

(a) The Secretary shall promulgate rules and regulations directed

toward the surface effects of underground coal mining operations,

embodying the following requirements and in accordance with the

procedures established under section 501 of this Act: Provided however,

That in adopting any rules and regulations the Secretary shall consider

the distinct difference between surface coal mining and underground

coal mining * * * .

* * * * *

(b) Each permit issued under any approved State or Federal program

pursuant to this Act and relating to underground coal mining shall

require the operator to--

(1) Adopt measures consistent with known technology in order to

prevent subsidence causing material damage to the extent

technologically and economically feasible, maximize mine stability, and

maintain the value and reasonably foreseeable use of such surface

lands, except in those instances where the mining technology used

requires planned subsidence in a predictable and controlled manner:

Provided, That nothing in this subsection shall be construed to

prohibit the standard method of room-and-pillar mining;

* * * * *

(8) Eliminate fire hazards and otherwise eliminate conditions which

constitute a hazard to health and safety of the public;

* * * * *

(11) To the extent possible using the best technology currently

available, minimize disturbances and adverse impacts of the operation

on fish, wildlife, and related environmental values, and achieve

enhancement of such resources where practicable * * *.

* * * * *

(c) In order to protect the stability of the land, the regulatory

authority shall suspend underground coal mining under urbanized areas,

cities, towns, and communities and adjacent to industrial or commercial

buildings, major impoundments, or permanent streams if he finds

imminent danger to inhabitants of the urbanized areas, cities, towns,

and communities.

(d) The provisions of this subchapter relating to State and Federal

programs, permits, bonds, inspections and enforcement, public review,

and administrative and judicial review shall be applicable to surface

operations and surface impacts incident to an underground coal mine

with such modifications to the permit application requirements, permit

approval or denial procedures, and bond requirements as are necessary

to accommodate the distinct difference between surface and underground

coal mining * * * .

30 U.S.C. 1266.

2. Subsidence--Section 720

Section 720 of SMCRA was added by the Energy Policy Act of 1992,

Pub. L. 102-486, 106 Stat. 2776 (1992). (Hereafter ``EPAct''). The

statute was enacted on October 24, 1992. Section 720 provides, in

relevant part:

(a) Underground coal mining operations conducted after Oct. 24,

1992 shall comply with each of the following requirements:

(1) Promptly repair, or compensate for, material damage resulting

from subsidence caused to any occupied residential dwelling and

structures related thereto, or non-commercial building due to

underground coal mining operations. Repair of damage shall include

rehabilitation, restoration, or replacement of the damaged occupied

residential dwelling and structures related thereto, or non-commercial

building. Compensation shall be provided to the owner of the damaged

occupied residential dwelling and structures related thereto or non-

commercial building and shall be in the full amount of the diminution

in value resulting from the subsidence* * *.

(2) Promptly replace any drinking, domestic, or residential water

supply from a well or spring in existence prior to the application for

a surface coal

[[Page 70842]]

mining and reclamation permit, which has been affected by

contamination, diminution, or interruption resulting from underground

coal mining operations.

Nothing in this section shall be construed to prohibit or interrupt

underground coal mining operations.

30 U.S.C. 1319a.

F. What Existing Regulations Are Relevant?

1. Provisions Implementing SMCRA Sections 522(e) and 701(28)

Section 522(e) is implemented in large part at 30 CFR Part 761,

which sets forth the procedures and standards to be followed in

determining whether a proposed surface coal mining and reclamation

operation is excepted from the prohibitions and limitations of section

522(e). Part 761 reiterates the areas on which section 522(e) prohibits

surface coal mining operations. Part 761 also reiterates the exceptions

to the statutory prohibitions, and the procedures to be followed in

determining whether an operation qualifies for an exception to the

prohibitions. Part 761 is the subject of the rulemaking which

accompanies this final rule in the Federal Register.

As noted previously, if a proposed operation includes Federal lands

within the boundaries of any areas specified under section 522(e)(1) or

(2), a determination of valid existing rights for surface coal mining

and reclamation operations must be made. Part 740 describes the

responsibilities of the Secretary, various Federal agencies and the

States for regulating surface coal mining and reclamation operations on

Federal lands under SMCRA, the Mineral leasing Act and other applicable

Federal laws, regulations and executive orders. Section 740.4(a)

provides that the Secretary is responsible for determining valid

existing rights for surface coal mining and reclamation operations on

Federal lands within 522(e)(1) or (2) areas. Valid existing rights

determinations on such areas are of such national importance that the

Secretary retains this responsibility to carry out the congressional

mandate to protect these areas and to ensure that there will be no

prohibited surface coal mining operations on Federal lands in national

parks and national forests. See 48 FR 6917, Feb. 16, 1983.

The regulatory definition of surface coal mining operations adopted

in the permanent program regulations tracks the statutory definition

very closely, except that the regulations specifically include

extraction of coal from coal refuse piles. See 44 FR 14914, Mar. 13,

1979. In keeping with SMCRA section 701(28)(A), the definition of

surface coal mining operations under section 700.5 provides:

(a) Activities conducted on the surface of lands in connection with

a surface coal mine or, subject to the requirements of section 516 of

the Act, surface operations and surface impacts incident to an

underground coal mine, the products of which enter commerce or the

operations of which directly or indirectly affect interstate commerce.

Such activities include excavation for the purpose of obtaining coals,

including such common methods as contour, strip, auger, mountaintop

removal, box cut, open pit, and area mining; the use of explosives and

blasting; and in situ distillation or retorting; leaching or other

chemical or physical processing; and the cleaning, concentrating, or

other processing or preparation of coal. Such activities also include

the loading of coal for interstate commerce at or near the mine site.

Provided, these activities do not include the extraction of coal

incidental to the extraction of other minerals, where coal does not

exceed 16\2/3\ percent of the tonnage of minerals removed for purposes

of commercial use or sale, or coal exploration subject to section 512

of the Act; and, Provided further, that excavation for the purpose of

obtaining coal includes extraction of coal from coal refuse piles; and

(b) The areas upon which the activities described in paragraph (a)

of this definition occur or where such activities disturb the natural

land surface. These areas shall also include any adjacent land the use

of which is incidental to any such activities, all lands affected by

the construction of new roads or the improvement or use of existing

roads to gain access to the site of those activities and for haulage

and excavation, workings, impoundments, dams, ventilation shafts,

entryways, refuse banks, dumps, stockpiles, overburden piles, spoil

banks, culm banks, tailings, holes or depressions, repair areas,

storage areas, processing areas, shipping areas and other areas upon

which are sited structures, facilities, or other property or material

on the surface, resulting from or incident to those activities.

2. Provisions Implementing SMCRA Sections 516 and 720

Sections 516 and 720 are implemented in large part at 30 CFR Parts

784 and 817, which set forth, respectively, permitting requirements and

performance standards for underground mining activities.

Part 784 includes Sec. 784.20, which sets out requirements for a

subsidence control plan, including a pre-subsidence survey. The pre-

subsidence survey must include a map that shows the type and location

within the proposed permit area or adjacent area, of structures and

renewable resource lands that subsidence may materially damage, or for

which the reasonably foreseeable use may diminished by subsidence. The

maps must also show the type and location within the proposed permit

area or adjacent area, of drinking, domestic, and residential water

supplies that could be contaminated, diminished, or interrupted by

subsidence. In addition, a narrative is required that must indicate

whether subsidence, if it occurred, could cause material damage to, or

diminish the value or reasonably foreseeable use of the structures and

renewable resource lands. The narrative is also required to indicate

whether subsidence, if it occurred, could contaminate, diminish, or

interrupt the drinking, domestic, or residential water supplies.

Section 784.20(a)(3) sets out requirements for a presubsidence

structural condition survey. On April 27, 1999, the U.S. Court of

Appeals for the District of Columbia vacated:

--Our rebuttable presumption that, when subsidence damage occurs within

the ``angle of draw'' damage was caused by the related underground mine

(30 CFR 817.121(c)(4)). National Mining Ass'n v. Babbitt, 172 F.3d 906

(D.C. Cir 1999) (hereafter, ``NMA'').

--Our regulation at Sec. 784.20(a)(3) requiring a pre-subsidence

structural condition survey, insofar as that regulation is

interconnected with the angle of draw regulation. (The court held that

we have the authority to require such a survey, but vacated the

regulation because it defines the area in which the survey is required

by reference to the angle of draw. Id.)

Under Sec. 784.20 the pre-subsidence survey must identify the

quantity and quality of all drinking, domestic, and residential water

supplies within the proposed permit area and adjacent area that could

be contaminated, diminished, or interrupted by subsidence. The

applicant must provide copies of the survey and any technical

assessments or engineering evaluations to the property owner and

regulatory authority.

Section 784.20(b) requires a subsidence control plan if the initial

survey, required under Sec. 784.20(a), shows that subsidence could

cause material damage to identified structures or renewable resource

lands. The

[[Page 70843]]

subsidence control plan must include a map and physical description of

the proposed underground operation and type of mining, a description of

the monitoring, and details of the subsidence control monitoring

measures. Longwall operations must either (1) describe the methods to

be used to minimize damage to structures identified in the Energy

Policy Act or (2) demonstrate that the costs of minimizing damage

exceed the anticipated costs of repair. In addition, the operator must

submit a description of the measures to replace adversely affected

protected water supplies or to mitigate subsidence-related material

damage to land and protected structures.

Other regulations in Part 784 ensure that each permit application

contains the information necessary to determine that the operation will

protect water supplies and reclaim the land after mining is completed.

For example, these regulations require the application to include

information on ground water and surface water quality and quantity

sufficient to demonstrate seasonal variation and water usage. In

addition, an analysis of both suspended and dissolved constituents

helps determine the presence of heavy metals in the water supply. In

particular, requirements ensure that, prior to mining, the permittee

demonstrate whether the proposed operation may result in contamination,

diminution, or interruption of a well or spring within a proposed

permit area or adjacent area which is used for domestic, drinking or

residential purposes. Moreover, throughout the application process, the

regulatory authority may require additional information necessary to

assure that the proposed operation will protect the hydrologic balance

and to understand the potential impacts of the operation.

The provisions concerning subsidence control in Part 817 include

performance standards which require the prevention of material damage

and maintaining the value and reasonably foreseeable use of surface

lands, or using mine technology for planned subsidence in a predictable

and controlled manner; compliance with the subsidence control plan;

repair of material damage; and a detailed plan of underground workings.

See 30 CFR 817.121.

Specifically, Sec. 817.121(a)(1) requires that the operator must

either adopt measures consistent with known technology which prevent

subsidence causing material damage to the extent technologically and

economically feasible, maximize mine stability, and maintain the value

and reasonably foreseeable use of surface lands; or adopt mining

technology which provides for planned subsidence in a predictable and

controlled manner.

Under Sec. 817.121(a)(2), the operator of a mine using a planned

subsidence technology must minimize damage to non-commercial buildings

and occupied residential dwellings and related structures. The operator

is obliged to take minimization measures that are technologically and

economically feasible.

Section 817.121(c)(1) requires repair of material damage from

subsidence to surface lands, to the extent technologically and

economically feasible. The operator must restore the land to a

condition capable of maintaining the value and reasonably foreseeable

uses that it was capable of supporting before subsidence. Section

817.121(c)(2) requires that an operator promptly repair or compensate

for material damage from subsidence to non-commercial buildings or

occupied residential dwellings or related structures. These

requirements apply to subsidence-related damage caused by underground

mining activities conducted after October 24, 1992.

As noted above, on April 27, 1999, the U.S. Court of Appeals for

the District of Columbia vacated the rebuttable presumption in

Sec. 817.121(c)(4). (NMA, supra.) That rule provided that if damage to

non-commercial buildings or occupied residential dwellings and related

structures occurs as a result of earth movement within the area

determined by projecting a specified angle of draw from underground

mine workings to the surface, a rebuttable presumption exists that an

operator caused the damage.

Additional regulations detailed in Part 817 ensure that underground

mining is conducted so as to protect the health and safety of the

public, minimize damage to the environment, and protect the rights of

landowners. These regulations require that all underground mining

activities are conducted in a manner which preserves and enhances

environmental and other values in accordance with SMCRA. Included are

additional protections from subsidence-related damage from underground

mining activities. For example, Sec. 817.41(j) requires the prompt

replacement of any drinking, domestic or residential water supply, in

existence before the date of the permit application, that is

contaminated, diminished or interrupted by underground mining

activities conducted after October 24, 1992.

II. Discussion of Final Rule

A. Do the Prohibitions of Section 522(e) Apply to Subsidence From

Underground Mining?

We interpret section 522(e) as not applying to subsidence from

underground mining activities, or to the underground activities that

may lead to subsidence.

B. What Is the Rationale for the Final Rule?

For the reasons set forth below, we interpret section 522(e) in

light of the statutory definition of ``surface coal mining operations''

in section 701(28), as not applying to subsidence from underground

mining. We've based the final rule on extensive analysis of the

statute, the legislative history, relevant case authority, our

regulatory actions with respect to the applicability of section 522(e)

to subsidence from underground mining, and consideration of all

relevant comments. We conclude that the best reading of section 701(28)

is that ``surface coal mining operations'' does not include subsidence,

and that therefore the prohibitions of section 522(e) do not apply to

subsidence from underground mining. We believe that this is consistent

with legislative intent, and that subsidence is properly regulated

under sections 516 and 720 and related regulatory provisions of SMCRA

and not under section 522(e). While we recognize that regulation under

sections 516 and 720 may not have precisely the same effect as

regulation under section 522(e), based on our analysis we conclude that

regulation under sections 516 and 720 will achieve full protection of

the environmental values which Congress sought to protect from

subsidence under the Act while encouraging longwall mining. We believe

that this interpretation will promote the general statutory scheme of

SMCRA and fully protect the environment and the public interest. We

also believe this interpretation best balances all relevant policy

considerations.

1. Statutory Language

Section 522(e) prohibits ``surface coal mining operations.''

However, the definition of ``surface coal mining operations'' in SMCRA

section 701(28) is not a model of clarity. We believe a careful reading

of the Act indicates Congress' intent that the SMCRA definition of

``surface coal mining operation'' does not include subsidence.

Therefore, we conclude that the best reading of the law is that section

522(e) does not apply to subsidence. We base this conclusion on:

[[Page 70844]]

(1) A rigorous reading of section 701(28);

(2) Analysis of the language of sections 516, 522(e) and 701(28) of

SMCRA; and

(3) A consideration of other relevant statutory provisions,

including the congressional findings and purposes in sections 101(b)

and 102(k).

We believe that paragraph (A) of section 701(28), and the analogous

provision in the existing rules at 30 CFR 700.5, apply to ``activities

conducted on the surface of lands.'' Thus, subsidence is not included

in paragraph (A) of the definition because it is not an activity

conducted on the surface of the land. This interpretation is consistent

with the fact that there is no mention in paragraph (A) of subsidence,

underground activities, or surface impacts of underground activities,

which might clearly establish that section 701(28) did include

subsidence. By contrast, paragraph (A) does specifically mention

numerous activities that occur on the surface of lands.

Therefore, we interpret the definition of ``surface coal mining

operations'' at SMCRA section 701(28)(A) and in the analogous portion

of the existing rules at 30 CFR 700.5, not to include subsidence, and

to include only:

(1) Activities on the surface of lands in connection with a surface

coal mine; and

(2) Activities subject to section 516, conducted on the surface of

lands in connection with surface operations and surface impacts

incident to an underground coal mine, the products of which enter

commerce or the operations of which directly or indirectly affect

interstate commerce.

The second part of this definition, at SMCRA section 701(28)(B),

supports our interpretation that paragraph (A) refers to ``activities

conducted on the surface of lands in connection with [1] a surface coal

mine or * * * [2] ``surface operations and surface impacts incident to

an underground coal mine.'' Paragraph (B) refers to ``the areas upon

which such activities occur or where such activities disturb the

natural land surface'' and to holes or depressions ``resulting from or

incident to such activities * * *'' (emphases added). The only

``activities'' to which paragraph (B) could refer are those described

in paragraph (A), namely those conducted on the surface of lands. Thus,

these surface activities define the applicability of paragraph (B) to

underground mining.

We construe SMCRA section 701(28)(B) (and the rules at 30 CFR

700.5) to include only:

(1) The areas upon which such surface activities occur;

(2) The areas where such surface activities disturb the natural

land surface; adjacent lands the use of which is incidental to such

surface activities;

(3) Lands affected by construction of new roads or improvement or

use of existing roads to gain access to the site of such surface

activities and for haulage; and

(4) Areas on which are sited structures, facilities, or other

property or materials on the surface resulting from or incident to such

surface activities.

Paragraph (B) includes a lengthy list of specific surface features

resulting from or incident to surface activities, which are included in

this last category. Those surface features include excavations,

workings, holes or depressions, repair areas, etc. All of these areas

and features included under paragraph B are referred to hereafter in

this preamble as ``surface features affected by'' surface activities.

Surface activities in connection with surface operations incident

to an underground coal mine, and surface activities in connection with

surface impacts incident to an underground coal mine are included in

the definition. Likewise, as provided in paragraph (B), surface

features affected by such surface activities are included.

However, subsidence is not included within the term ``surface coal

mining operations'' because it is not an activity conducted on the

surface of lands, and it is not a surface feature affected by surface

activities. In short, while subsidence is clearly a surface impact

incident to underground mining, it is not included in the SMCRA

definition of surface coal mining operations.

This reading of subsection 701(28) does not exempt subsidence from

regulation under the Act, since Congress specifically provided for

performance standards for subsidence under section 516, and

subsequently section 720, of SMCRA. Most risks related to material

damage caused by subsidence are addressed under the requirements of

sections 516 and 720, such as the requirements for adopting measures

consistent with known technology in order to prevent subsidence causing

material damage, to the extent technologically and economically

feasible, and maintaining the value and reasonably foreseeable use of

surface lands, except in those instances where the mining technology

used requires planned subsidence in a predictable and controlled

manner. However, if an unforeseen subsidence danger arises, section

516(c) contains procedures to prohibit underground operations as

necessary, providing a second level of protection for public health and

safety. For example, section 516 requires:

(1) Sealing of all shafts, entryways, and exploratory holes between

the surface and underground mine working when no longer needed;

(2) Elimination of fire hazards and any other conditions that

constitute a hazard to health and safety of the public; and

(3) Suspension of underground coal mining under urbanized areas,

cities, towns, and communities if mining poses an imminent danger.

Thus, we believe Congress addressed in section 516 those subsidence

control measures necessary to protect public health and safety and the

public interest in subsidence protection. Therefore, prohibition of

subsidence in all section 522(e) areas is unnecessary.

Our interpretation is consistent with SMCRA's explicit intent to

``encourage the full utilization of coal resources through the

development and application of underground extraction technologies,''

SMCRA section 102(k), 30 U.S.C. section 1202(k). Similarly, SMCRA

states that:

* * * the overwhelming percentage of the Nation's coal reserves can

only be extracted by underground mining methods, and it is,

therefore, essential to the national interest to insure the

existence of an expanding and economically healthy underground coal

mining industry.

SMCRA section 101(b), 30 U.S.C section 1201(b).

These passages make clear that Congress intended to encourage and

support an economically healthy and efficient underground coal mining

industry. We believe that our interpretation best assures that these

congressional intentions are met.

2. Legislative History

The legislative history on section 701(28) supports our

interpretation, set out above, that the definition of ``surface coal

mining operations'' includes only surface activities and, as set out in

section 701(28)(B), surface features affected by surface activities.

Our interpretation is consistent with the description of the effect of

section 701(28) in the Senate Report on the adopted version:

Surface [coal] mining operations'' * * * includes all areas upon

which occur surface mining activities and surface activities

incident to underground mining. It also includes all roads,

facilities, structures, property, and materials on the surface

resulting from or incident to such activities

S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphasis added).

[[Page 70845]]

The Senate Report on the 1977 Senate bill discusses the

significance of the definition in that Senate bill:

`Surface mining operations' is so defined to include not only

traditionally regarded coal surface mining activities but also

surface operations incident to coal underground mining, and

exploration activities. The effect of this definition is that coal

surface mining and surface impacts of underground coal mining are

subject to regulation under the Act. * * *

S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphases added).'

The references in the above paragraph to surface ``operations''

incident to underground mining and to surface ``impacts'' of

underground mining, and the assertions that exploration activities are

included in the definition (although coal exploration is specifically

excluded from the Act's definition) are inconsistent with the terms of

the statute. Therefore, we conclude that the language of this passage

is imprecise, and that it is not clear whether any weight should be

attached to this discussion of the Senate bill (as opposed to the later

Conference Committee Report's discussion of the Act).

Our interpretation that paragraph (A) of the definition of

``surface coal mining operations'' embodies only surface activities is

consistent with the legislative history of section 522(e). This

conclusion is supported by the discussion in the 1977 Senate report on

section 522(e) which notes that ``surface coal mining'' is prohibited

within the specified distances of public roads, occupied buildings, and

active underground mines, ``for reasons of public health and safety.''

S. Rep. No. 128 at 55. Thus, one of Congress' purposes in sections

522(e)(4)-(5) was to protect public health and safety. However,

prohibition of subsidence in section 522(e) areas would be unnecessary,

since an underground mine must meet the requirements of sections 516

(and subsequently 720), and those requirements should prevent almost

all risks to public health and safety. If an unforeseen subsidence

danger were to arise, section 516(c) sets forth procedures to prohibit

underground mining as Congress found necessary, providing a second

level of protection for public health and safety. Therefore, we believe

Congress sufficiently addressed in sections 516 (and 720) the measures

necessary to address public health and safety from subsidence.

Congressional discussion of the prohibitions on mining in section

522(e) is devoid of any mention of subsidence or underground activities

of coal mining. H. Rep. No. 218, 95th Cong. 1st Sess. 95 (1977); S.

Rep. No. 128, 95th Cong. 1st Sess. 55 (1977). Instead, the legislative

history of section 522(e) does mention terms that do not include any

aspects of subsidence or underground operations, such as:'strip

mines,'' ``surface coal mines,'' and ``surface coal mining.'' See

National Wildlife Fed'n v. Hodel, 839 F.2d 694 at 753-754 (D.C. Cir.

1988), interpreting ``surface coal mine'' and ``surface coal mine

operation'' as not including underground mines for purposes of SMCRA

section 717(b)).

The legislative history of SMCRA indicates that Congress was only

concerned with subsidence insofar as it causes environmental or safety

problems, disrupts land uses, or diminishes land values. Congress has

repeatedly recognized that there is little concern about subsidence

that causes no significant damage to a surface use or facility or

danger to human life or safety. See H.R. Rep. No. 218, 95th Cong., 1st

Sess. 126 (1977); H.R. Rep. No. 1445, 94th Cong., 2d Sess. 71-72

(1976); H.R. Rep. No. 896, 94th Cong., 2d Sess. 73-74 (1976); H.R. Rep.

No. 45, 94th Cong. 1st Sess. 115-116 (1975); H.R. Rep. No. 1072, 93d

Cong., 2d Sess. 108-109 (1974); H.R. Rep. No. 776, 102d Cong., 2d Sess.

102-474 (1992).

Analysis of the structure of Title V and the Act as a whole

confirms that Congress set out related but separate regulatory schemes

for surface and underground mining. Congress received ample testimony

prior to the passage of the Act regarding the differences in both the

nature and consequences of the two types of coal mining. The

legislative history emphasizes that the differences in the nature and

consequences of the two types of mining require significant differences

in regulatory approach. For example, SMCRA section 516(a) requires

that:

The Secretary shall promulgate rules and regulations directed

toward the surface effects of underground coal mining operations * *

*: Provided, however, That in adopting any rules and regulations the

Secretary shall consider the distinct difference between surface

coal mining and underground mining.

30 U.S.C. section 1266(a); See also SMCRA sections 516(b)(10) and (d),

30 U.S.C. Secs. 1266(b)(10) and (d). See, e.g., H.R. Rep. No. 218, 95th

Cong., 1st Sess. 59 (1977); S. Rep. No. 128, 95th Cong., 2d Sess. 50

(1977); H.R. Rep. No. 1445, 94th Cong., 2d Sess. 19 (1976); S. Rep. No.

402, 93d Cong., 2d Sess. 83 (1973); H.R. Rep. No. 1072, 93d Cong., 2d

Sess. 57, 108 (1974); H.R. Rep. No. 1462, 92d Cong., 2d Sess. 32

(1972); 123 Cong. Rec. 8083, 8154 (1977); 123 Cong. Rec. 7996 (1977);

123 Cong. Rec. 3726 (1977).

For instance, Congress was aware that environmental risks

associated with underground mining are, for the most part,

significantly different from those associated with surface mining.

Environmental impacts associated with (pre-SMCRA) unregulated or

unreclaimed underground mines include subsidence and hydrological

problems that are hidden deep underground and not observable at the

surface for an unpredictably long time. Such surface consequences could

be severe and long-lasting. The problems in some cases remain

fundamentally inaccessible or unchangeable because of adverse

technological, geological, and hydrological conditions. By contrast,

most of the impacts of unregulated pre-SMCRA surface mining result from

surface activities that are more immediate and more readily observable,

and the resulting conditions are relatively accessible for reclamation.

See H.R. Rep. No. 1445, 94th Cong., 2d Sess. 20-22 (1976).

It is reasonable to conclude that Congress addressed specifically,

in section 516(c), the limited types of surface features that might be

so significantly affected by subsidence from underground mining that

subsidence should be precluded where appropriate. This interpretation

that preclusion of subsidence is provided for solely under 516(c) is

buttressed by the discussion in the 1977 House report that subsidence

has no appreciable impact on agricultural land and similar types of

land. H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977). We believe

Congress did not intend to impose the prohibitions of section 522(e) on

subsidence, because those prohibitions would be unnecessary, since

Congress had insured that the surface features that might need such

protection are covered by section 516(c).

Further, the legislative history of SMCRA suggests that Congress

may have wished to encourage longwall mining in particular:

Underground mining is to be conducted in such a way as to assure

appropriate permanent support to prevent surface subsidence of land

and the value and use of surface lands, except in those instances

where the mining technology approved by the regulatory authority at

the outset results in planned subsidence. Thus, operators may use

underground mining techniques, such as long-wall mining, which

completely extract the coal and which result in predictable and

controllable subsidence.

S. Rep. No. 128, 95th Cong., 1st Sess. 84 (1977). See also S. Rep. No.

28, 94th Cong., 1st Sess. 215 (1975).

[[Page 70846]]

Congressman Udall, the bill's principal sponsor, also commented on

this issue:

The House Bill contemplates rules to ``prevent subsidence to the

extent technologically and economically feasible.'' The word

``prevent'' led to fears expressed by Secretary of the Interior

Morton, that the effect would be to outlaw longwall mining, with its

obvious subsidence * * *. In fact, the bill's sponsors consider

longwall mining ecologically preferable and it and other methods of

controlled subsidence are explicitly endorsed.

120 Cong. Rec. 22731 (1974).

Thus, our interpretation is consistent with Congress' intent to

encourage planned, predictable, and controlled underground mining and

full coal resource recovery. Because subsidence is likely from room-

and-pillar mining and is virtually inevitable with longwall mining,

prohibiting subsidence below homes, roads, and other features specified

in section 522(e) could make it substantially less feasible to mine.

This would frustrate Congressional intent to encourage longwall mining,

which provides planned, predictable, and controlled subsidence.

Prohibiting subsidence would also substantially reduce the level of

coal recovery in areas where the features specified in section 522(e)

are common on the surface.

After examining the SMCRA legislative history, we believe that

including subsidence in the definition of ``surface coal mining

operations'' at section 701(28), and applying the section 522(e)

prohibitions to subsidence would not accommodate Congress' intent to

encourage underground mining and longwall mining in particular.

Applying the prohibitions in section 522(e) to subsidence could

substantially impede longwall and other full-extraction mining methods.

As discussed above, SMCRA demonstrates that Congress intended to

encourage underground mining and especially full-extraction methods

such as longwall mining. Congress intended that longwall and other

mining techniques that completely remove the coal be used as subsidence

control measures. See H.R. Rep. No. 218, supra. These techniques

involve planned subsidence.

The legislative history of section 516 contains ample references to

Congress' focus on controlling rather than prohibiting subsidence. The

following is pertinent House report language:

Surface subsidence has a different effect on different land

uses. Generally, no appreciable impact is realized on agricultural

land and similar types of land and productivity is not affected. On

the other hand when subsidence occurs under developed land such as

that in an urbanized area, substantial damage results to surface

improvements be they private homes, commercial buildings or public

roads and schools. One characteristic of subsidence which disrupts

surface land uses is its unpredictable occurrence in terms of both

time and location. Subsidence occurs, seemingly on a random basis,

at least up to 60 years after mining and even in those areas it is

still occurring. It is the intent of this section to provide the

Secretary with the authority to require the design and conduct of

underground mining methods to control subsidence to the extent

technologically and economically feasible in order to protect the

value and use of surface lands.

H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977) (emphasis added).

See also H.R. Rep. No. 1445, 94th Cong., 2d Sess. 71-72 (1976); H.R.

Rep. No. 896, 94th Cong., 2d Sess. 73-74 (1976); H.R. Rep. No. 45, 94th

Cong. 1st Sess. 115-116 (1975); H.R. Rep. No. 1072, 93d Cong., 2d Sess.

108-109 (1974).

In those extreme cases in which Congress felt that precluding

subsidence could be necessary, it provided broad authority under

section 516(c):

In order to prevent the creation of additional subsidence

hazards from underground mining in developing areas, subsection (c)

provides permissive authority to the regulatory agency to prohibit

underground coal mining in urbanized areas, cities, towns and

communities, and under or adjacent to industrial buildings, major

impoundments or permanent streams.

S. Rep. No. 128 at 84-85.

In 1992, Congress enacted EPAct which amended SMCRA and added

additional subsidence protection in a new SMCRA section 720, described

above. 30 U.S.C. 1309(a), Energy Policy Act of 1992, section 2504, Pub.

L. No. 102-486, 106 Stat. 3104. Although it is not germane to Congress'

intent in enacting SMCRA, because it does postdate SMCRA's enactment,

the EPAct provides evidence of continuing congressional support for

recovering coal resources through underground mining techniques.

Congress notes specifically that, ``Nothing in this section shall be

construed to prohibit or interrupt underground coal mining

operations.'' SMCRA section 720, 30 U.S.C. section 1309a.

We believe, based on its interpretation of the language of section

516 and of the legislative history, that Congress intended section

516(c), in combination with other provisions of SMCRA, to offer

sufficient prevention and mitigation of damage to features vulnerable

to significant impairment from subsidence. The existence of such a

comprehensive subsidence regulatory scheme addressing subsidence makes

it unlikely that Congress also intended to prohibit subsidence under

section 522(e).

3. Policy Considerations

a. This Rule Resolves Questions About Our Interpretation of Statutory

Provisions

This rulemaking establishes that subsidence is not a surface coal

mining operation under SMCRA section 701(28), and therefore is not

prohibited under SMCRA section 522(e). In the past, we have taken

varying positions on section 522(e)'s applicability to subsidence. In

some instances, our position could be interpreted to mean section

522(e) does apply to subsidence from underground mining. However, we

believe that in the majority of cases, we have interpreted section

522(e) as not applying to subsidence.

In the 1979 rulemaking which first established permanent program

rules under SMCRA, we addressed this issue in two provisions. We

rejected a commenter's suggestion that the definition at 30 CFR 761.5

of ``surface operations and impacts incident to an underground coal

mine'' should be limited to subsidence. We stated that the definition

was intended to provide comprehensive language that related to the

definition of surface coal mining operations in section 701(28). We

then went on to say that because the definition in section 701(28) (B)

relates to disturbances of the natural land surface, and because SMCRA

sections 516(b)(9) and (11) also relate to surface disturbances other

than subsidence, the final definition should cover all surface

disturbances. 44 FR 14990, Mar. 13, 1979. It appears that we were

indicating that all surface disturbances, including subsidence, are

covered under the definition in section 701(28) of ``surface coal

mining operations'' and consequently are prohibited by section 522(e).

The preamble to the 1979 permanent program regulations also

includes a discussion of 30 CFR 761.11(d), which concerns the SMCRA

section 522(e)(4) prohibition on mining within 100 feet of the outside

right-of-way of a public road. We accepted a comment that the 100 feet

should be measured horizontally ``so that underground mining below a

public road is not prohibited''. We stated that mining under a road

should not be prohibited ``where it would be safe to do so''. 44 FR

14994, Mar. 13, 1979. One interpretation of this statement is that

mining under a public road should be prohibited where it would be

unsafe to do so. However, the preamble does not discuss whether the

statutory authority

[[Page 70847]]

for this prohibition would come from section 516 or from section

522(e).

Similarly, in a 1981 letter to the U.S. Forest Service concerning

Otter Creek Coal Company v. United States, we stated that ``subsidence

from mining activities under wilderness areas is acceptable as long as

it does not significantly affect surface features. These effects can be

predicted and mitigated if necessary''. Letter of Patrick Boggs, Office

of Surface Mining, to Ralph Albright, Jr., regarding Otter Creek Coal

Company v. United States, at 2 (January 19, 1981). This document

appears to conclude that only subsidence causing material damage is

prohibited under section 522(e). However, in our later decision on the

valid existing rights request of the Otter Creek Coal Company, we

concluded that all subsidence from underground mining is a prohibited

surface impact under section 522(e). 49 FR 31233, Aug. 3, 1984.

The Secretary took a different position in the supplemental M-Op

filed with the District Court for the District of Columbia in 1985, in

litigation challenging the validity of the 1983 rulemaking on VER.

Federal Defendant's Supplemental Memorandum on the Relationship Between

Section 522(e) and the Surface Impacts of Underground Coal Mining at 8,

In re Permanent Surface Mining Regulation Litigation II, No. 79-1144

(D.D.C. 1985). In that case, the National Wildlife Federation (NWF), in

its reply brief, raised for the first time the question of whether, in

areas protected under sections 522(e)(4) and (5), all subsidence is

prohibited. The supplemental memorandum stated that the Secretary had

previously interpreted section 522(e)(5) as prohibiting subsidence

causing material damage to protected features, and that 30 CFR 761.11

requires operators to prevent subsidence causing material damage within

the areas protected under 522(e).

On several other matters, our actions are consistent with the

position that subsidence is not a surface coal mining operation. In our

most recent rulemaking defining ``permit area,'' we indicated that we

do not consider subsidence to be a ``surface coal mining and

reclamation operation''. Our rules do not require including the ``area

overlying underground workings'' (where subsidence may occur) within

the definition of ``permit area.'' In the preamble, we explained that

the permit area should only include the ``areas upon which surface coal

mining and reclamation operations'' are conducted, not areas where

potential subsidence may occur. 48 FR 14820 (Apr. 5, 1983). Thus, no

permit is required for these areas where there are no surface

activities.

In the absence of a Federal regulation specifically addressing this

issue, we have accepted the policy of the majority of States with

active underground coal mining operations, which do not currently apply

the prohibitions of section 522(e) to subsidence impacts of underground

coal mining. Rather, the States apply existing subsidence control

requirements, which require the operator to identify and mitigate

potential subsidence damage to structures and renewable resource lands.

The States regulate subsidence effects on surface features in State

counterparts to the Federal regulations implementing sections 516 and

720 of SMCRA.

We have also accepted the policy of other States to apply the

prohibitions only to subsidence causing material damage. Only four

States with underground coal reserves, Colorado, Illinois, Indiana, and

Montana, arguably prohibit (or may prohibit) subsidence in 522(e)

areas, in some way. See Final EIS, 1999, Table II-1 at pages II-2-3.

Montana has no defined policy regarding the regulation of subsidence,

due in part to the fact that the State has no active underground mine.

Colorado prohibits material damage to any structures through State

regulations under, in part, section 516 of SMCRA. In Illinois, under

state property law, the mineral owner must possess the right to subside

through applicable waiver or VER. Indiana prohibits material damage

from subsidence to certain structures and lands, but has not developed

specific policies related to the approval of planned subsidence. Our

interpretation that section 522(e) prohibitions do not apply to

subsidence is consistent with what most states are currently doing.

b. This Rule Balances Economic and Environmental Considerations

We believe this final rule best balances the competing

environmental and economic considerations involved in this rulemaking.

The language of SMCRA demonstrates that Congress intended to encourage

underground mining, especially full-extraction methods such as longwall

mining. The statute and legislative history express Congress' intent to

``encourage the full utilization of coal resources through the

development and application of underground extraction technologies,''

SMCRA section 102(k), 30 U.S.C. 1202(k). Similarly, SMCRA states that,

``* * * the overwhelming percentage of the Nation's coal reserves can

only be extracted by underground mining methods, and it is, therefore,

essential to the national interest to insure the existence of an

expanding and economically healthy underground coal mining industry.''

SMCRA section 101(b), 30 U.S.C section 1201(b). Congress intended that

longwall and other mining techniques that completely remove the coal be

used as subsidence control measures. See H.R. Rep. No 218, 95th Cong.,

1st Sess. 126 (1977). However, applying the prohibitions of section

522(e) to subsidence could substantially impede longwall and other

full-extraction mining methods. Clearly, if subsidence is likely to

occur from room-and-pillar underground mining and is a virtually

inevitable consequence of longwall mining, then prohibiting all

subsidence below homes, roads, and other features specified in section

522(e) could make it substantially less feasible to mine and could

substantially reduce coal recovery in areas where these features are

common. We therefore believe that including subsidence in the

definition of ``surface coal mining operations'' at section 701(28),

and applying the section 522(e) prohibitions to subsidence, would fail

to accommodate congressional recognition of the importance of

underground mining and longwall mining in particular.

The viability of underground coal mining continues to be important

to the nation's economy. The Nation's Demonstrated Reserve Base for

underground mining (32.9 billion tons) is almost twice that for surface

mineable reserves 16.7 billion tons. In almost one third of the coal

producing states, underground reserves are 4 to 5 times greater than

surface mineable reserves. See Department of Energy, Energy Information

Administration (DOE/EIA), ``U.S. Coal Reserves: A Review and Update'',

pp. 10-12, (Aug. 1996).

Overall, coal continues to be the principal energy source for

electric power generation in the United States. The electric power

industry is the dominant coal consumer with about 90 percent of U.S.

coal consumption issued for electricity generation. (DOE/EIA, Annual

Energy Outlook, pp. 3-5, 1998). Total U.S. energy consumption is

projected to continue growing between 1996 and 2020, and electricity

consumption is expected to parallel that growth by 1.4 percent per year

through 2020. Forecasts predict both increased demand for electricity

and decline in nuclear power. With lower coal prices, lower capital

costs for coal-fired generating technologies, and higher electricity

demand, coal-fired generation is projected to increase. However, the

share of coal generation is expected to

[[Page 70848]]

decline by 2020, because of anticipated restructuring of the

electricity industry favoring less capital-intensive gas technologies

for new capacity additions. Although coal-fired generation is

anticipated to lose market share by 2020, it continues to account for

more than one-half of electricity generation.

The continued rise in coal power generation accounts for the record

high coal production in 1997. The electric power industry, the dominant

coal consumer, used a record 922 million short tons in 1997, an

estimated 2.8 percent increase over 1996, and record high production.

The productivity gains that occurred in both underground and surface

mines during the 1980's continued into the 1990's.

The three main underground mining methods used to extract coal are

room-and-pillar, room-and-pillar with secondary mining, and longwall

mining. Room-and-pillar is the predominant underground mining method in

the United States, although longwall mining has increased in use since

1960. And longwall mining continues to gain wide acceptance in the U.S.

mining industry, having nearly doubled its share of total coal

production since 1980.

Room and Pillar Mining Method

The room and pillar method consists of driving entries, rooms, and

cross-cuts into the coal seam to extract coal. Pillars of coal are left

to support the mine roof, or for haulage and ventilation. This is

called ``development'' mining. Movements of the ground surface during

development mining are nearly always imperceptible. During the

development mining phase, 30 to 50 percent of the coal may be extracted

from the panel. To prevent subsidence, the remainder of the coal may be

left in a mine panel, to permanently support the overburden.

To increase coal extraction where conditions allow, development

mining is followed by ``pillar recovery,'' which is called secondary or

retreat mining. During secondary mining, some or all of the coal

pillars left to support the mine roof are extracted to obtain maximum

recovery of the coal. As the pillars are extracted, controlled

subsidence occurs, because the overburden sags into the mined-out area.

Secondary mining can increase coal recovery to 85 percent.

Longwall Mining Method

Longwall mining is a high-extraction mining method that maximizes

coal recovery. Developing longwall mine main airways and sub-mains

(underground ventilation channels needed for access and ventilation of

the longwall panels) is essentially identical to developing room and

pillar mining. However, longwall mining differs from room-and-pillar

mining in that the panel is fully extracted by an automated shearer or

plow. A longwall mining operation can extract as much as 90 percent of

the coal in each panel. Retreat mining of a longwall panel can extract

100 percent of the coal.

The longwall mining method works as follows:

1. Groups of three or four parallel entries are driven

perpendicular to the main entry on either side of the proposed panel.

The width of the panel varies from 500 to 1,200 feet, and the length of

a panel varies from 4,000 to 15,000 feet.

2. Longwall mining removes the coal in one operation from a long

working face or wall that advances, or retreats, in a continuous line.

The coal is cut by a shearer or coal plough which travels up and down

along the face and makes cuts from 27 to 39 inches deep. The broken

coal falls on to an armored flexible conveyor (AFC) which transfers the

coal to the stage loader.

3. The coal is then conveyed to the surface through several belt

conveyors. Mechanical steel supports known as shields or chocks are

used to support the mine roof along the entire longwall face.

4. After each cutting cycle of the shearer/plough, the steel

supports and AFC are hydraulically advanced. The mine roof immediately

behind the AFC is allowed to cave. The space from which the coal has

been removed is either allowed to collapse or is completely or

partially filled with stone and debris. The roof rock that falls into

the mined out area is referred to as the ``gob.''

5. As the overburden continues to collapse, effects of subsidence

progress upwards toward the surface. However, some solid coal barriers

and pillars are left in the mine for haulage, ventilation, and other

purposes. Ninety percent of the surface subsidence caused by longwall

mining occurs within 4 to 6 weeks of mining.

In the past two decades, the longwall mining method has become the

safest, most productive and most economic underground mining method. We

expect longwall mining to continue to be an important and expanding

type of mining. In 1993, longwall mining accounted for 38 percent of

the coal extracted by underground mining methods. The Economic Analysis

estimates that longwall mining will account for 48 percent of

production by 2015. Final EA, 1999.

Longwall mining requires only approximately one-third of the

personnel required by room-and-pillar mining at the face. The high

capital costs of longwall mining are generally offset by lower

operating costs due primarily to higher productivity. The average

operating costs for a coal mine operation include the operating cost

per ton and the return on the capital cost allocated per ton. The

operating costs for longwall mining range from $0.50 to $2.00 per ton,

while operating costs for room-and-pillar range from $2.00 to $7.00 per

ton. Room-and-pillar mining operating costs average $3.25 per ton more

than longwall mining. The difference in costs is attributable to higher

labor and material costs for room-and-pillar mining, and to economies

of scale for longwall mining.

Effects on the Coal Mining Industry and on the Economy if 522(e)

Prohibitions Were Applied to Subsidence

Under SMCRA, when coal is mined, the mine operator must meet all

existing subsidence control requirements, as outlined above. If section

522(e) were deemed to apply to subsidence from underground mining, the

operator could not mine in any part of the underground workings where

mining would cause subsidence affecting a protected surface feature.

The surface area affected by subsidence is usually considerably larger

than the area actually mined underground. Because subsidence typically

occurs in a funnel shape radiating upward and outward from the

underground mine cave-in, any surface impacts may extend well beyond

the area directly above the mine. Thus, to ensure that subsidence would

not take place within a surface area specified in section 522(e),

underground mine operations would be required to leave coal in place

around each protected feature for a horizontal distance much larger

than the protected area. In many cases, the amount of coal left in

place to support dwellings would result in a pattern of irregular mined

areas that would eliminate the contiguous coal reserves needed to make

longwall operations economical. Consequently, few new longwall mines

would be opened. In the Economic Analysis, we estimate that blocking

longwall production would increase coal-mining and coal-delivery costs

and would shift production patterns. The additional coal-mining and

coal-delivery costs to the economy would be approximately $2.65 billion

(discounted) over a 20-year period. Final EA, 1999.

However, if the section 522(e) prohibitions were applied to

subsidence, subsidence could be allowed nonetheless on some lands

protected by 522(e)(2), (3), and (4), and some (e)(5) areas. Before

this could

[[Page 70849]]

happen, an operator would have to get a waiver or approval for

subsidence on the protected lands. The area for which an operator would

have to obtain a waiver would include the area directly under the

protected feature, and the area within any specified buffer zone around

the protected feature (either 300 feet or 100 feet). In the absence of

that waiver, the operator would have to leave the coal in those areas,

and in an additional buffer area based on the predicted angle of draw

and the depth of the coal seam. Because of the potentially large amount

of coal that would have to be left in the ground in the absence of a

waiver, we estimated that if 10 percent or more of homeowners withheld

waivers, a longwall mining operation would not be economically viable.

See Final EIS, 1999; Final EA, 1999.

In Summary:

1. Longwall mining is an important and expanding type of mining. It

accounted for 38 percent of the underground mining in 1993, and is

forecast to increase its share to 48 percent by 2015.

2. Longwall mining is a low-cost underground mining method, and in

some instances, may be the only economically feasible underground

mining method when the coal seam is deep or the roof is extremely

fragile.

3. The key to the competitive advantage of longwall mining is

access to large blocks of uninterrupted coal.

4. If the prohibitions of 522(e) were to apply to subsidence,

longwall mining would no longer be economically feasible if as few as

10 percent of the owners of occupied dwellings denied waivers for

mining.

A more detailed discussion of the impacts is provided in the Final

EA, 1999.

Alternatives Considered

We also evaluated potential environmental impacts of identified

rulemaking alternatives concerning the applicability of section 522(e)

prohibitions to subsidence. In the EIS prepared for the rulemaking, we

concluded that subsidence-related impacts to section 522(e) lands have

occurred in the past and are likely to continue to occur irrespective

of whether or not the prohibitions apply. This conclusion was based on

information showing that subsidence on National Forest lands, historic

sites listed on the National Register of Historic Places, and roads is

typically allowed through either compatibility findings or waivers

granted by surface owners and land managers.

The EIS concludes that the interpretation in the final rulemaking

would have the greatest level of environmental impact and afford the

lowest level of protection to the areas listed in section 522(e)(1).

However, for the reasons stated in the EIS, we predict relatively

limited potential impacts over a 20-year period from the final

rulemaking. On lands protected by section 522(e)(1), totaling nearly

200 million acres, approximately 5.2 million acres are underlain by

coal, but only about 175,000 acres are underground mineable. Under the

final rule, less than 2 percent (approximately 3,500 acres) of section

522(e)(1) lands is predicted to be underground mined over the next 20

years. Those areas most likely to be impacted are lands within the

National Parks System and National Recreation Areas.

The EIS identified approximately 12,600 acres of State park lands

that could be affected by subsidence-related impacts over the next 20

years if the prohibitions of section 522(e) do not apply to subsidence.

However, the EIS predicted that impacts to State and local parks could

be reduced by as much as 45 percent under the ``good faith all

permits'' VER definition. This reduction could be caused if mineral

owners are unable to demonstrate VER needed for surface support

facilities such as roads, ventilation, and face-up areas for access to

underground coal within the protected area.

The greatest level of impact is predicted for occupied dwellings in

section 522(e)(5) areas. The EIS estimated that approximately 29,600

would be affected over a 20-year period under the interpretation that

section 522(e) prohibitions do not apply to subsidence. These impacts

generally would span an extended period of time, and could result in

reduced property value, loss of income, and disruption to many aspects

of daily life. Homeowners could suffer financial burdens from the

repair of damaged land and structures. And while these impacts

represent a significant amount of disruption to the dwelling owners,

they are mitigated through the performance standards for underground

coal mining. Those standards require that underground mining operations

repair adversely affected dwellings, or compensate for diminution in

value.

However, in evaluating these predicted environmental impacts, we

noted that they are virtually identical to the impacts of taking no

final rulemaking action, because the final rule is virtually the same

as maintaining the status quo--the No Action Alternative. Final EIS,

1999.

c. This Rule Avoids a Regulatory Gap

As noted above, we have concluded that no regulatory gap occurs as

a result of section 522(e) not applying to subsidence. This is so

because sections 516 and 720 and related SMCRA provisions provide ample

authority to regulate surface effects of underground mining under

existing regulations. The detailed description of the existing relevant

regulations in part I demonstrates that our regulations implementing

sections 516 and 720 provide broad subsidence protection, and that a

prohibition of subsidence within the buffer zones around dwellings,

roads, and other surface features listed in section 522(e) would be

superfluous, and that no regulatory gap results from our

interpretation. And, if there are any environmental values or public

interests that warrant additional protection beyond what is currently

provided, we have full authority under sections 516 and 720 and other

SMCRA provisions, to develop additional regulations to protect such

values or interests, without the disruption in the longwall mining

industry that would result from applying section 522(e) prohibitions to

subsidence.

d. This Rule Balances the Interests of Surface Owners and Industry

Our interpretation recognizes that in most cases, the mineral owner

purchased the property right to undermine and probably to subside, upon

acquiring the mineral rights. This property right has already been made

subject to regulatory requirements under SMCRA that protect the surface

owner's interests to the extent Congress has established specific

requirements. Thus, our interpretation best balances both the surface

and owner's interests, because it ensures that the surface owner's

property rights are protected, and allows the mineral owner to use its

mineral rights consistent with existing SMCRA subsidence control

requirements. And most importantly, we believe that the public interest

in protecting 522(e) surface features from subsidence damage will be

fully protected by SMCRA's subsidence control requirements.

e. This Rule Maintains Stability in SMCRA Implementation

We believe that the final rule will cause minimal disruption to

existing State regulatory programs and expectations associated with

them. Those programs reflect existing SMCRA regulatory provisions. We

believe the existing provisions adequately protect 522(e) features and

therefore do not

[[Page 70850]]

require change. Because this rule reflects current and longstanding

practice and policy in state administration of regulatory programs, it

avoids unnecessary change in state administration of regulatory

programs.

Equally as important, the final rule enables the states to retain

flexibility in regulating coal mining operations and protecting the

environment. A goal of the SMCRA regulatory system is to create and

maintain an effective balance between state and federal government.

SMCRA sections 101(e), (g), and (k). To achieve this balance, Congress

established state primacy under SMCRA. See SMCRA sections 101(f),

102(g). State primacy allows States to develop and implement regulatory

programs that meet SMCRA requirements and also address the specific

conditions and concerns of individual states. This allows states to

address differences in terrain, geology, and other conditions when

regulating subsidence.

Applying the section 522(e) prohibition to subsidence could require

a major overhaul of State regulatory programs without a commensurate

benefit to the citizens, the environment, the economy, or the State. We

believe that existing subsidence controls under State and Federal

programs properly implement SMCRA. Without a clearly demonstrated need,

a requirement to impose new administrative burdens and costs would

waste State and Federal resources.

f. This Rule Promotes Safety

Although capital-intensive, longwall mining has become the safest

and most productive and economic underground mining method. The result

of this mining technique is almost immediate subsidence that is highly

predictable as to how much surface lands will subside. Hydraulic

shields provide for temporary support for the miners and equipment at

the longwall face, and as the mining progresses along the longwall

face, the roof in the mined-out section collapses. The roof collapse

progresses to the surface via fracturing and/or the flexing of strata,

and manifests itself as surface subsidence.

Almost all surface displacement occurs within days of the

underlying roof failure. The amount of surface displacement is fairly

predictable and depends upon the thickness of the coal seam and the

makeup and arrangement of the overlying strata. Since the amount and

timing of the subsidence is both highly predictable and controlled it

is referred to as ``planned subsidence.'' However, this planned

subsidence can cause damage to surface structures, since no supporting

coal pillars are left within the mine to support the surface. And,

while the probability of subsidence from longwall mining is relatively

predictable, the nature and extent of subsidence damage to surface

features and water resources is less predictable. However, because the

subsidence occurs within a relatively short period, usually during the

permit period, it is usually easier to verify the cause and to ensure

mitigation or compensation for any structural damage and replacement of

water supply.

In terms of worker safety, the longwall system also offers a number

of advantages over room-and-pillar mining:

1. It concentrates miners and equipment in fewer working sections,

making the mine easier to manage;

2. It improves safety through better roof control and reduction in

the use of moving equipment;

3. It eliminates roof bolting at the working face to support the

mine roof, and it minimizes the need for dusting mine passages with

inert material to prevent coal dust explosions;

4. It involves no blasting and attendant dangers;

5. It also recovers more coal from deeper coalbeds than does room-

and-pillar mining;

6. The coal haulage system is simpler, ventilation is better

controlled, and subsidence of the surface is more predictable; and

7. It offers the best opportunity for automation.

Thus, if longwall mining is not precluded, it will continue to

provide greater safety and faster, more controlled, and more quickly

mitigated subsidence damage. As discussed above and in the EIS and EA,

prohibiting subsidence in 522(e) areas could make longwall mining

infeasible in substantial parts of the coal fields, and thus could

preclude the safest, most economical and productive and most readily

mitigated method of underground mining. See Final EIS, 1999; Final EA,

1999.

g. This Rule Acknowledges Existing Property Rights

The final rule recognizes existing property rights and avoids

certain potential compensable takings of property interests. In most

cases of severed coal rights, the severance also conveys the property

right to undermine the surface, and may include the right to subside;

and any such rights would still limit or burden the surface property

rights. See, e.g. R. Roth, J. Randolph, C. Zipper, Coal Mining

Subsidence Regulation in Six Appalachian States, 10 Va. Envtl. L.J. 311

(1991); C. Fox, Jr., Private Mining Law in the 1980's, 92 W.Va. L. Rev.

795 (1990); T. Gresham, M. Jamison, Do Waivers of Support and Damage

Authorize Full Extraction Mining, 92 W.Va. L. Rev. 911 (1990). We

believe failure to allow exercise of these conveyed rights would be

inequitable and could risk compensable takings. The final rule allows

the holder of such mining and subsidence rights to continue to exercise

them, subject to existing SMCRA regulation.

III. Response to Comments

Several commenters dispute the need for any rulemaking, arguing

that our longstanding interpretation provides an efficient system

consistent with the intent of SMCRA. However, several commenters

disagree, expressing general support for the clarity and additional

specificity that the rule provides. We believe that the clarity,

specificity, and relative stability provided by a rulemaking support

adoption of a final rule. Furthermore, as noted above the district

court has ordered the Secretary to do a rulemaking on the applicability

of section 522(e) to subsidence in accordance with the notice and

comment procedures outlined in the Administrative Procedure Act. 5

U.S.C., section 551 et seq. National Wildlife Fed'n v. Babbitt, 835 F.

Supp. 654 (D.D.C. September 21, 1993).

Many of the comments from private citizens expressed general

opposition to the proposed rule and argued that mining should be

prohibited entirely in the 522(e) areas. Similarly, some commenters

argued that the question should not be framed in terms of whether

protection against subsidence is required or not, but rather should

address protection of the use of surface lands from all adverse effects

of underground mining. Commenters noted that subsidence has both direct

and indirect effects. Thus, uneven settlement from mining can cause

dewatering of aquifers and other indirect effects on land stability,

even though it may not directly impair use of the land surface through

surface slumping and other surface land deformation. Additionally, when

underground works intercept bedding planes and fracture zones, they can

cause dewatering without subsidence. Commenters asserted that properly

applying section 522 would require that underground mining be

prohibited where any surface impacts (direct or indirect) could result

from the underground mining activity.

SMCRA prohibits surface coal mining operations in section 522(e)

areas, but

[[Page 70851]]

also specifies exceptions to those prohibitions. Therefore, the

proposed rule did not include absolute prohibition as an option, and we

are not adopting such a prohibition. Further, SMCRA does not prohibit

underground mining per se in section 522(e) areas, or all surface

impacts of underground mining, and for the reasons given above we are

not adopting such a prohibition.

A. SMCRA Definition of Surface Coal Mining Operations

Some commenters support our interpretation that the definition of

``surface coal mining operations'' embodies only surface activities.

Those commenters note that our interpretation is consistent with the

description of the effect of section 701(28) in the Senate Report on

the version of the definition that was adopted:

``Surface [coal] mining operations'' * * * includes all areas

upon which occur surface mining activities and surface activities

incident to underground mining. It also includes all roads,

facilities, structures, property, and materials on the surface

resulting from or incident to such activities.

S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphasis added).

These commenters agree with us that the legislative history of

section 701 can reasonably be read to support the interpretation that

the definition of ``surface coal mining operations'' embodies only

surface activities. Commenters refer to the discussion in the 1977

House Report of the definition of ``surface coal mining operations':

(A) Activities conducted on the surface of lands in connection

with a surface coal mine or surface operations and surface impacts

incident to an underground coal mine * * *

H.R. Rep. No. 218 at 43.

Commenters also agree that paragraph (B) of section 701(28)

supports our interpretation. While paragraph (A) applies to

``activities conducted on the surface of lands in connection with a

surface coal mine or * * * ``surface operations and surface impacts

incident to an underground coal mine * * *,'' paragraph (B) applies to

``the areas upon which such activities occur or where such activities

disturb the natural land surface'' and to holes or depressions

``resulting from or incident to such activities * * *'' (emphases

added). The commenters agree that the only ``activities'' to which

paragraph (B) could refer are those described in paragraph (A), namely

those conducted on the surface of lands in connection with a surface

coal mine or in connection with the surface operations and impacts

incident to an underground coal mine. Thus, commenters agree that, if

our reading of paragraph (A) were not adopted, paragraph (B) would not

apply to any aspects of underground mining--an untenable result.

Commenters affirm that our reading of subsection 701(28) would not

mean that subsidence would be exempt from regulation under the Act,

since Congress specifically provided for regulation of subsidence under

section 516 of SMCRA.

In contrast, other commenters argue that the plain meaning of the

Act establishes that subsidence is included in the definition of

``surface coal mining operations'' and is therefore prohibited in

section 522(e) areas. These commenters assert that the language of

section 701(28)(A) encompasses two elements:

(1) ``Activities conducted on the surface of lands in connection

with a surface coal mine;'' and

(2) ``Surface operations and surface impacts incident to an

underground mine.''

These commenters argue that, in addition to activities and

operations incident to underground mining, impacts incident to

underground mining also clearly constitute ``surface coal mining

operations''. Commenters assert that the D.C. Circuit stated that

``The most natural reading of the statute as a whole, and the

definition in section 701(28) in particular, * * * suggests that

`surface coal mining operations' encompasses both surface coal mines

and the surface impacts [sic. The decision said ``effects.''] of

`underground coal mines.' National Wildlife Fed'n v. Hodel, 839 F.2d

694, 753 (D.C. Cir. 1988).''

We do not agree with commenter's interpretation of the significance

of this passage in the court's 1988 decision. The issue before the

court was whether the requirement of SMCRA section 717(b), for

replacement of water supplies by the operator of ``a surface coal

mine,'' also requires water supply replacement by underground mine

operators. Thus, the interpretation of section 701(28) as it applies to

522(e) was not before the court, and the passage quoted by the

commenters is dictum.

Commenters also assert that, applying ``the definition of `surface

mining' contained in the Act, i.e., ``surface impacts incident to an

underground mine,' `` the Sixth Circuit concluded that under section

522(e), ``no coal mining which disturbs the surface `shall be permitted

* * * on any federal lands within the boundaries of any national

forest.'' Ramex Mining Corp. v. Watt, 753 F.2d 521, 522, and 523 (6th

Cir. 1985) quoting sections 701(28) and 522(e).

We conclude that the quoted language from the Ramex decision is

best read as dictum, since the issue before the court was not the

interpretation of section 701(28), but rather whether national forest

lands on which a mineral holder proposed to mine severed coal rights,

were ``federal lands'' for purposes of SMCRA section 522(e)(2). We note

in passing that the court used a different term (``surface mining'')

than the term used in section 701(28) (``surface coal mining

operations'') and that the two terms are not properly interchangeable.

We also note that the court did not quote and may not have considered

the full and correct language of the definition of ``surface coal

mining operations'', at section 701(28).

We considered these comments and the quoted comments of the courts.

We believe these interpretations would require an alternative parsing

of the definition of ``surface coal mining operations'' in section

701(28) in which the phrase ``surface impacts incident to an

underground coal mine'' would be read as independent of the words

``activities conducted on the surface of the lands.'' Therefore, for

the reasons set out below, we do not agree with these interpretations.

There are at least three problems with this parsing of section

701(28)(A). First, it would render the phrase ``on the surface of

lands'' superfluous, since all ``[activities conducted * * * in

connection with a surface coal mine'' necessarily occur on the surface

of lands. The phrase has meaning only if it also modifies ``[activities

conducted * * * in connection with * * * an underground coal mine.''

Second, the remainder of paragraph (A) and all of paragraph (B) of

this definition would not apply to underground coal mines, since those

provisions refer back to the surface activities covered in the first

portion of paragraph (A). We do not believe Congress could have

intended such a result.

Third, this construction would require the reader to conclude that

the phrase ``in connection with'' was not intended to apply to surface

operations and surface impacts incident to an underground coal mine.

This result would conflict with our position since the inception of the

program that the term ``surface coal mining operations'' includes

surface facilities operated in connection with an underground coal

mine. The latter is a position which we regard as consistent with the

Act and with legislative intent, and which we reaffirmed in a

rulemaking concerning surface facilities in connection with an

underground coal mine. 53 FR 47384

[[Page 70852]]

(Nov. 22, 1988). Consequently, we believe the alternative parsing is

not a sound interpretation of the definition. Since these problems with

the alternative parsing were not considered by the court in the quoted

1988 decision. We believe the courts did not have the opportunity to

address these problems, and we expect that court would not have applied

the quoted rationale if the court had considered these matters.

Commenters claim the 1991 Solicitor's opinion offered contradictory

rationales for the conclusion that ``subsidence from underground mining

is properly regulated solely under SMCRA section 516 and not under

section 522(e).'' In their opinion, the Solicitor states that the

statutory definition of ``surface coal mining operations'' is, on the

one hand, clear on its face and excludes subsidence and, on the other

hand, ambiguous enough to allow the Secretary [sic] discretion to

exempt subsidence from its scope. (citing the M-Op at 2, 13 [100 I.D.

85 at 87, 93, and 99-100]). We do not agree that the M-Op contains

contradictory statements. Rather the M-Op concludes that Congress has

spoken to the issue, and gives the best reading of the statutory

language. The M-Op then indicates that, even if this reading were not

required by the terms of the statute and the legislative history, we

would have ample authority to adopt the interpretation. The M-Op also

notes that, to the extent there is confusion as to the meaning of the

term ``surface coal mining operations'', an agency's interpretation of

a statute it administers is entitled to great deference. Id.

Our proposed rule would interpret 701(28) to include ``activities

conducted on the surface of lands * * * in connection with * * *

surface operations and surface impacts incident to an underground

mine.'' Commenters refer to the M-Op and argue that if the

Secretary's[sic] juxtaposition were accepted, it would lead to the

absurd conclusion that causing subsidence in section 522(e) areas is

permissible (because it does not involve ``activities'' on the surface)

but that correcting subsidence is prohibited (because reclamation

activities would constitute ``activities conducted on the surface of

lands in connection with * * * surface impacts incident to an

underground coal mine'').

By contrast, several commenters agree with our position that the

reclamation of off-permit subsidence does not require a permit. In a

1983 rulemaking, we established that the ``permit area'' for an

underground coal mine does not include the area overlying underground

mining where subsidence may occur. 48 FR 14820 (Apr. 5, 1983). Areas

overlying underground mining are included in the definition of

``adjacent area''. SMCRA section 510(b)(4) requires a determination

that ``the areas proposed to be mined are not included within an area

designated unsuitable for surface coal mining pursuant to section 522

of the Act * * *''. This statutory provision is implementing the

requirement for a permit finding in section 773.15(c)(3). Some

commenters further point out that the mere potential for subsidence is

not a surface coal mining operation with attendant reclamation

obligation. (citing Government Brief before the U.S. District Court in

National Wildlife Fed'n v. Hodel at 99-109). (839 F. 2d 694 (D.C. Cir.

1988). These commenters note that if subsidence impacts occur, the

regulations impose a reclamation responsibility upon an operator even

if such impacts are outside the permit area. The commenters also note

that whether the impacts are inside or outside the permit area, the

performance standards of 30 CFR Part 817 provide applicable reclamation

requirements. However, for other offsite ``impacts'' regulated under

SMCRA, the commenters observe that no permit is required to conduct

reclamation. These commenters add that throughout the years of program

implementation, the Department's position has been clear and

consistent: the area overlying underground workings does not need to be

included in the ``permit area'' for a mine and is not subject to

section 522(e).

We agree. We believe our interpretation is consistent with the 1983

rulemaking in which we defined ``adjacent area'' as ``the area outside

the permit area where a resource or resources * * * are or reasonably

could be expected to be adversely impacted by proposed mining

operations, including probable impacts from underground workings.'' 30

CFR 701.5. We stated in the April 5, 1983, rulemaking that the

``requirements of section 522(e) do not apply to adjacent areas.'',

i.e., potential off-site impacts. 48 FR 14816, Apr. 5, 1983. In that

rulemaking, we defined ``adjacent area'' as ``the area outside the

permit area where a resource or resources * * * are or reasonably could

be expected to be adversely impacted by proposed mining operations,

including probable impacts from underground workings.'' 30 CFR 701.5.

Thus, since 1983, our interpretation has been that areas where

subsidence may occur are not required to be included in the permit

area, and that section 522(e) does not apply to the adjacent areas

(where subsidence may occur).

One commenter alleges that the proposed rule assumes that

underground mining could be authorized within a section 522(e) area

merely through a redefinition of ``surface impacts'' as it relates to

subsidence. This commenter also alleges that this assumption fails to

account for the other surface impacts intended to be avoid[ed] in

section 522(e) areas: dewatering of aquifers, alteration of the

prevailing hydrologic balance of the area, placement of mine support

structures, entryways, ventilation shafts, and access or haulage roads.

The commenter mischaracterizes our position. We agree that some of the

things listed by the commenter would be ``surface impacts.'' Other

things listed, including placement, construction, maintenance, or use

of structures or features on the surface, would be surface activities

and the areas affected by them, and thus would be included in the

definition of surface coal mining operations.

Commenters assert that the Secretary's reading is contrived and

also fails to give effect to the portion of section 701(28)(A) that

cross-references section 516. The commenters also assert that the

``Secretary concedes the ``subject to'' language is merely a cross-

reference indicating which activities conducted on the surface in

connection with an underground coal mine are surface coal mining

operations, namely, those that are subject to regulation under section

516 SMCRA''. Commenters argue that subsidence is equally subject to

regulation under section 516, and therefore, under the Secretary's own

theory, must be included within the scope of section 701(28)(A). They

further suggest that the Secretary's [sic] reading is contrary to the

plain meaning of section 701(28)(A), and rests on a contorted and

nonsensical reading of the statutory language. We are not persuaded by

commenters' assertions. We believe that our interpretation outlined

above is reasonable, and that only surface activities are properly

included under section 701(28)(A). For the reasons set out in the

rationale section, we have concluded subsidence is not included in

paragraph (A) of the definition because it is not an activity conducted

on the surface of the land. This interpretation is consistent with the

fact that there is no mention in paragraph (A) of subsidence,

underground activities, or surface impacts of underground activities,

which might clearly establish that section 701(28) did include

subsidence. By contrast, paragraph (A)

[[Page 70853]]

does specifically mention numerous activities that occur on the surface

of lands.

Commenters allege that even if section 701(28)(A) were limited to

surface ``activities,'' subsidence in section 522(e) areas would still

be prohibited by section 701(28)(B) because the paragraph expressly

states that ``holes or depressions * * * resulting from or incident to

such activities'' constitute ``surface coal mining operations.'' They

further point out that in the 1998 Draft Environmental Impact Statement

the Secretary [sic] concedes that subsidence constitutes holes or

depressions:

Two types of topographic features caused by mine subsidence are

sinkholes and troughs. A sinkhole is a circular depression in the

ground surface that occurs when the overburden collapses into a

typically shallow mine void. A trough is a depression in the ground

surface, often rectangular in shape with rounded corners, that is

formed by sagging of the overburden into a mined-out area.

We agree that subsidence may include holes or depressions. However,

for the reasons explained above, our position is that only surface

features affected by surface activities would be surface coal mining

operations under section 701(28)(B).

Commenters argue that subsidence not only constitutes ``holes or

depressions;'' it also is ``resulting from or incident to such

activities'' within the meaning of the last phrase of section

701(28)(B). In their opinion, the initial excavation on the earth's

surface through which miners and material are conveyed underground

would constitute ``activities'' within the Secretary's reading of

section 701(28)(A). We agree that the process of surface excavation

would be a surface activity. However, commenters go on to incorrectly

assert that any subsidence that occurs is necessarily ``resulting from

or incident to'' these surface activities. Commenters believe that

subsidence is functionally related to these surface activities and

could not occur without them, i.e. subsidence is linked to these

surface activities in a but-for chain of causation. Commenters refer to

NWF v. Hodel, 839 F.2d at 742-45 (affirming DOI rule that applied the

``resulting from or incident to'' test to include even processing and

support facilities that are entirely off-site). We do not agree with

this assertion. Subsidence results from underground activities, not

surface activities. If there were no underground activities, there

would be no subsidence from underground mining.

Commenters charge that the applicability of section 522(e) to

subsidence is confirmed by subsection 522(e)(2)(A) which prohibits

``surface coal mining operations'' within national forests, but allows

a limited exception where ``surface operations and impacts are

incidental to an underground coal mine''. Commenters argue that, if

``impacts'' were generally outside the scope of section 522(e), such an

exemption would not have been necessary. We do not agree. We interpret

the referenced language in 522(e)(2)(A) to refer to surface operations

and impacts from underground mining which are included in the

definition of surface coal mining operations at SMCRA section

701(28)(B) under our interpretation.

Commenters allege that the term ``activities'', which the Secretary

considers to be the operative term for the entire definition of surface

coal mining operations, is conspicuous by its absence from section

522(e)(2)(A). They suggest that if Congress had really intended the

tangled parsing of section 701(28)(A) proposed by the Secretary, it

would have drafted section 522(e)(2)(a) to apply where ``activities on

the surface of lands are incident to an underground coal mine''. In

their opinion, Congress did not do so, however, and they recommend that

the Secretary respect Congress' decision to address ``impacts''.

We disagree with the commenters' characterization. Congress defined

what ``surface coal mining operations'' means in section 701(28), and

then used that term in section 522(e). The definition at 701(28) refers

to ``surface activities'', and then refers repeatedly in 701(28) to

``such activities''; but activities are not the only thing included in

the definition. Section 701(28) also specifies certain surface features

affected by surface activities. Section 701(28) includes all of the

listed categories of surface activities and surface features. Thus,

neither section 701(28) nor section 522(e) refers only to surface

activities. We are not required to speculate about other ways Congress

might have drafted this provision, if we have provided a reasonable

interpretation of what Congress actually did say. For the reasons set

out in this preamble, we believe our interpretation is reasonable.

Commenters suggest that the Secretary [sic] acknowledged the import

of section 522(e)(2) in his discussion of the 1979 rulemaking:

Concerning the definitions at 30 CFR section 761.5, we rejected

a comment that ``surface operations and impacts incident to an

underground mine'' should be limited to subsidence. 44 FR 14990

(Mar. 13, 1979). The negative implication would appear to be that

such operations and impacts (including subsidence) are otherwise

prohibited by section 522(e). (citing the M-Op at 11 n. 17 [100 I.D.

85 at 92, fn. 17]).

The commenters further assert that the Secretary [sic] failed to

offer any justification for ignoring this ``negative implication''.

This comment refers to a passage in the Solicitor's M-Op In that

passage, the Solicitor did not ignore the implication but rather

recognized it as one of numerous arguably inconsistent actions by OSM

over the history of implementing 522(e). Similarly, in the proposed

rule, we did not ignore the negative implication, but rather considered

it as well as all other relevant factors. This rulemaking is the first

time we specifically address the issue with this level of detailed

analysis. And in this final rule, for the reasons stated above in the

rationale section, we are not adopting the interpretation urged by

these commenters.

Commenters claim that the 1979 rulemaking explicitly defines the

section 522(e)(2)(A) phrase ``surface operations and impacts incident

to an underground coal mine'' to include activities that are not

conducted on the surface of the lands:

[A]ll activities involved in or related to underground coal

mining which are either conducted on the surface of the land,

produce changes in the land surface or disturb the surface, air or

water resources of the area, including all activities listed in

section 701(28) of the Act and the definition of surface coal mining

operations appearing in section 700.5 of this chapter.

30 CFR. 761.5.

Commenters urge that because subsidence both ``produce[s] changes

in the land surface'' and ``disturb[s] the surface, air, and water

resources,'' it is included within the second and third disjunctive

clauses of the definition. We agree that subsidence is a surface impact

incident to an underground coal mine. However, for the reasons outlined

above in section II. B., we do not agree that subsidence is a surface

coal mining operation subject to the prohibitions of section 522(e).

That is, we interpret section 701(28)(A) to apply only to surface

activities of the types listed in that section (and not to surface

operations and impacts per se); and we interpret section 701(28)(B) to

apply only to the areas and features listed; and therefore section

701(28) does not include subsidence.

Other commenters agree with us , and argued that attempting to

glean the term subsidence from the language of

[[Page 70854]]

subsection (B) is unavailing. The two words ``holes or depressions,''

for instance, do not constitute Congress' vernacular for subsidence. We

disagree in part with this comment. Subsidence may result in a hole or

depression, but subsidence would be included under section 701(28) only

if it is a surface feature affected by surface activities, as provided

in section 701(28)(B).

B. Congressional Intent

As discussed below, various commenters point to language in the

Congressional reports that appears to be imprecise and inconsistent

with other report language and with the terms of the statute. We

believe that in any case, the language of the Act prevails.

A group of commenters allege that the legislative history of SMCRA

establishes that Congress intended that subsidence due to underground

mining be considered a surface coal mining operation, and that

subsidence therefore is prohibited in areas protected under SMCRA

section 522(e). These commenters argue that committee reports from both

houses of Congress compel a conclusion that subsidence constitutes

``surface coal mining operations'' and is therefore subject to section

522(e). Commenters note that the Senate Report includes a statement

that the hazards from the surface effects of underground coal mining

include the dumping of coal waste piles, subsidence and mine fires. The

commenters refer to three statements in the Senate Report on SMCRA, to

support their claim:

(1) The Act was addressed to ``surface coal mining operations--

including exploration activities and the surface effects of

underground mining.

(2) Initial regulatory requirements extend to ``[a]ll surface

coal mining operations, which include, by definition surface impacts

incident to underground coal mines'';

(3) The Senate Report characterizes ``Surface coal mining

operations'' as including not only traditionally regarded coal

surface mining activities but also surface operations incident to

underground coal mining, and exploration activities. The effect of

this definition is that coal surface mining and surface impacts of

underground coal mining are subject to regulation under the Act.''

S. Rep. No. 128, 95th Cong., 1st Sess. 49, 50, 71, 98 (1977).

We have considered the materials cited by the commenters. We are

not persuaded by the commenters' arguments and interpretations. We

agree that Congress considered subsidence to be a surface impact and a

surface effect incident to underground mining. However, for the reasons

given above, we do not agree that Congress intended to include

subsidence in the definition of a surface coal mining operation. We

recognize that the Act addresses subsidence as a surface effect of

underground mining, but we believe the Act addressed those effects in

sections 516, and subsequently 720, and not as surface coal mining

operations under sections 701(28) and 522(e).

Regarding the first quoted passage from the 1977 Senate Report, we

believe the report's statement that coal exploration is included in

``surface coal mining operations'', is inconsistent with the statutory

definition in section 701(28). The definition in section 701(28)

explicitly excludes coal exploration. It is not clear whether the

passage's reference to ``surface effects'' is a vague reference to the

surface effects of surface activities or is another inconsistency with

the statutory language. In the alternative, this might be an

anachronism, a reference to an earlier version, that should have been

deleted from the final bill. It is also possible that this report

statement reflects inconsistencies in Congress' interpretation of

701(28). In any case, if there is a conflict between report language

and statutory language, the statutory language must prevail.

Regarding the second quoted passage from the Senate Report, which

refers to initial program requirements, we are unsure what Congress

intended by this statement. While this passage might be read to provide

that subsidence is included in ``surface coal mining operations'', we

have never interpreted the SMCRA initial program requirements to apply

to subsidence. And that issue is not within the scope of this

rulemaking.

Regarding the third quoted passage from the Senate Report,

commenters believe this passage is especially significant in light of

narrower language in previous Senate reports. For example, one earlier

report said, ``The effect of this definition is that only coal surface

mining is subject to regulation under the Act.'' S. Rep. No. 28, 94th

Cong., 1st Sess. 224 (1975); S. Rep. No. 402, 93d Cong., 1st Sess. 74

(1973). Commenters believe the very different language in the 1977

Senate Report was no mere accident, but rather a deliberate choice of

more expansive words. We are not sure what significance to attribute to

the third quoted passage. That language may be interpreted to confirm

our interpretation, because the passage says the definition of

``surface coal mining operation'' includes surface operations incident

to underground mines, and concludes that the effect is to regulate

surface impacts. We believe that by referring to surface operations

incident to underground coal mining, the passage may be referring to

surface activities incident to underground coal mining. Thus, this may

be an imprecise reference to the statutory language. This latter

hypothesis is supported by the fact that the passage asserts that the

term ``surface coal mining operation'' applies to exploration. However,

the enacted definition specifically excludes exploration, and we have

always interpreted the definition to exclude exploration. For the

reasons outlined above, we believe the reading urged by these

commenters inconsistent with a careful parsing of the language of

section 701(28) (A) and (B), because it would not apply section

701(28)(B) to underground mining.

In summary, the quoted passages from the Senate Report, read alone,

do raise some questions about Congress' intent, and are not the most

precise guidance. However, we believe our interpretation of the

language of section 701.28 itself is reasonable. We have found no other

interpretation which gives meaning to all parts of the definition.

Commenters also believe that Congress intended to encompass more

than merely subsidence effects in including underground mining within

the ambit of the term ``surface coal mining operations.'' They charge

that acid mine drainage, waste disposal, fire hazards, disturbances to

the hydrologic balance, surface operations and structures, impacts on

fish and wildlife and related environmental values were impacts of

underground mining to be regulated through the application of the

performance standards. S. Rep. No. 95-128, 95th Cong., 1st Sess. 98

(1977). We do not take the position that the term ``surface operations

and surface impacts'' of underground mining addresses only subsidence.

This rulemaking, however, addresses only the question of whether the

prohibitions of section 522(e) apply to subsidence.

Commenters allege that the statutory framework of SMCRA clearly

applies the prohibitions of section 522(e) to subsidence, and

commenters assert that the House Report supports their allegations.

They point to the statement in the report that ``environmental problems

associated with underground mining for coal which are directly

manifested on the land surface are addressed in section 212 [i.e.,

section 516] and such other sections which may have application. These

problems include surface subsidence[.]'' H.R. Rep. No. 218, 95th Cong.,

1st Sess. 125-126 (1977) (emphasis added).

We do not agree that this portion of the House Report on section

516 supports commenter's contention. Commenters apparently assume that

the

[[Page 70855]]

emphasized language means that section 701(28) includes subsidence and

that therefore, the prohibitions of section 522(e) must apply to

subsidence. However, nowhere does the quoted language say this.

Commenters cite no basis for such a conclusion; and we know of no basis

for that conclusion. We believe the underlined House Report language

would include any other SMCRA sections that apply to surface

environmental problems associated with underground mining but for the

reasons outlined above, we do not agree that sections 701(28) and

522(e) apply to subsidence.

Another commenter points to the Secretary's statement that

subsidence effects constitute ``surface impacts'' incident to an

underground mine. Commenters assert that if Congress had wished to

cover only surface activities as the Secretary suggests, it would not

have included the additional word ``impacts'; and that the Secretary's

theory renders this additional word surplusage. We disagree. As

discussed above, we interpret 701(28)(A) to apply to surface activities

``in connection with (1) surface operations and (2) surface impacts

incident to an underground coal mine''. Thus, if surface impacts are

incident to an underground mine, then surface activities in connection

with them constitute surface coal mining operations.

Commenters further argue that the Secretary's reading makes no

sense. Commenters assert that the reading given by the Secretary [sic]

would have the second component of 701(28)(A) include ``activities

conducted on the surface of lands in connection with * * * subject to

the requirements of section 516 surface operations and surface impacts

incident to an underground coal mine.'' Citing M-Op pp. 2, 13 [100 I.D.

85 at 87, 93 (July 10, 1991)]. Commenters claim there would be no

reason for Congress to refer to ``activities conducted on the surface

of lands in connection with * * * surface operations'' * * *'' Once

Congress had swept ``activities'' within the scope of the definition,

nothing additional would be accomplished by adding the word

``operations.'' Commenters also suggest that there would be no reason

for Congress to refer to ``activities conducted on the surface of lands

in connection with * * * surface impacts''.

We disagree. All of the words of the definition are given meaning

under our interpretation. Contrary to commenter's assertion, neither

``surface operations'' nor ``surface activities'' is surplusage or

unnecessary under our interpretation. These terms help to delineate

what is included and what is excluded. For example, there can be onsite

activities that have no connection with the surface operations of the

mine. The statutory language excludes such activities from the

definition. Further, there may be activities that are not conducted on

the surface but are in connection with surface operations. The statute

also excludes these activities from the definition. We also believe

there can be surface activities that are not in connection with surface

operations or surface impacts of an underground mine, and there can be

surface activities in connection with underground impacts rather than

surface impacts. We believe Congress intended to exclude all of these

types of activities, and that the words of the definition are needed to

make this clear.

Commenters assert that the Secretary's statement that ``section

701(28) does not specifically mention subsidence'' (62 FR 4868) offers

no basis for retreating from the plain meaning of SMCRA. As discussed

above, we do not agree with commenter's assumption as to what is

SMCRA's plain meaning on this issue. Further, this statement refers to

only one of a number of factors we considered in reaching its

interpretation. Commenters also argue that acceptance of this statement

would require rejection of the Secretary's [sic] own interpretation.

These commenters allege that under the Secretary's [sic]

interpretation, ``face-up or mine portal areas'' associated with

underground mines are banned in section 522(e) areas. Citing M-Op at

13, n.19 [100 I.D. 85 at 87 fn. 19]. Commenters note that, however,

neither section 701(28) nor section 522(e) mentions either of these two

items. We do not accept commenter's comparison. Our analysis makes

clear that ``face-up or mine portal areas'' would come within the terms

of 701(28), because they are areas where surface activities disturb the

surface in connection with surface operations of an underground coal

mine. Commenters also note the Secretary's assertion that section

516(c) applies to subsidence (citing 62 FR 4869), even though the word

``subsidence'' never appears there. We have consistently taken the

position that subsidence could pose an ``imminent danger'', and thus is

within the terms of section 516(c). We note that interpretation of

516(c) is outside the scope of this rulemaking.

Commenters feel the Secretary's assertion that subsidence is

regulated only under section 516 is contrary to the House report's

reference to ``such other sections which may have application'' to

``subsidence.'' They argue that since subsidence is explicitly

mentioned only in section 516, the only way it can be regulated by

``other sections'' is if it constitutes ``surface coal mining

operations'', and therefore, it is banned in section 522(e) areas.

Commenters' conclusion is flawed. For example, other SMCRA sections

that may be applicable to subsidence or subsidence related impacts may

include: Sections 508 (reclamation plan requirements), 510 (permit

approval), 515 (portions concerning prime farmlands) and 720

(subsidence).

According to commenters, because we are unable to explain away

these clear expressions of legislative intent, we are reduced to

suggesting in effect that, because the Senate Report once refers to

``surface activities incident to underground mining,'' any reviewing

Court should overlook the word ``impacts'' in sections 701(28)(A) and

522(e)(2)(A), and should ignore the three references to ``impacts'' and

``effects'' elsewhere in the Senate Report. Commenters are wrong. As

explained above, we are not overlooking, nor do we advocate

overlooking, the use of the term ``impacts'' in section 701(28) or

522(e). Rather, our interpretation gives full and reasonable meaning to

all terms in those sections. In contrast, commenter's interpretation

would render the second half of the definition, at 701(28)(B),

inapplicable to underground mining. That interpretation is untenable.

Furthermore, we have not ignored the referenced passages in the

legislative history. To the extent the passages of legislative history

quoted by commenters cannot be explained or reconciled with the

language of section 701(28), we believe the language of the Act must

prevail.

Commenters also argue that our position is not supported by

legislative history allegedly showing that underground and surface

mining ``require significant differences in regulatory approach.''

Citing 62 FR 4865. In support of their argument, they point out that

(1) differences in regulatory approach to the two kinds of mining in

areas where they are permitted in no way conflicts with an evenhanded

prohibition of both surface mining and the surface impacts of

underground mining in the special areas enumerated in section 522(e),

and (2) where Congress wanted to allow the Secretary [sic] to

accommodate differences between the two kinds of mining, it said so.

Commenters mischaracterize our position. We believe that not applying

522(e) to subsidence is one of the differences in regulatory approach

countenanced by Congress in Title V of SMCRA.

[[Page 70856]]

Likewise without merit, commenters charge, is the Secretary's

citation of legislative history allegedly showing that ``most of the

impacts of unregulated pre-SMCRA surface mining resulted from surface

activities that were more immediate and more readily observable, and

the resulting conditions were relatively accessible for reclamation.''

Citing 62 FR 4866. Furthermore, they contend that the Secretary does

not explain how this distinction supports exempting subsidence from

section 522(e), and they submit that it does not. Commenters assert

that, if anything, the greater difficulty of reclaiming subsidence-

impacted surface features makes the preventive approach of section

522(e) more necessary, not less. Commenters have offered no basis for

these assertions, and we believe neither the record nor our experience

support commenters' characterizations. For the reasons given above, we

find these comments unpersuasive.

Commenters allege the legislative history of section 720 further

confirms that subsidence is covered by the term ``surface coal mining

operations.'' In support of their position, they submit two points.

First, that the final bill enacted by Congress rejected a proposed

amendment included in the House committee bill:

Notwithstanding the reference to surface impacts incident to an

underground coal mine in paragraph (28)(A), for the purpose of

section 522(e), the term ``surface coal mining operations'' shall

not include subsidence caused by an underground coal mine.

(Section 2805(b) of the committee bill, proposing to add section

701(35)(D) to SMCRA), H.R. Rep. No. 102-474, pt. 8 at 133 (1992).

The authors of this amendment stated that it ``clearly exempts land

surface subsidence from the prohibitions of section 522(e) of the

Act.'' Id. pt. 8 at 133. Commenters believe that the House committee's

attempt to ``exempt'' subsidence from section 522(e) necessarily

reflects the committee's understanding that, absent such an exemption,

subsidence was covered by section 522(e). This statement is not

necessarily true. It is just as likely that the proposed amendment was

rejected because Congress was aware of the language of the Act and its

interpretation, including the M-Op, and agreed that section 701(28) is

properly interpreted as not including subsidence; so that no further

amendment of the Act was required in order to exclude subsidence.

Second, commenters submit that Congress's ultimate rejection of

another House committee amendment to SMCRA may raise issues with

respect to the interpretation of section 717(b), but does not raise an

issue concerning the committee's understanding that provisions in

section 701(28) cover surface impacts, not merely surface activities.

The House committee proposed an amendment to SMCRA section 717, stating

that:

Section 2805(a)(1) would amend section 717(b) of the Surface

Mining Control and Reclamation Act of 1977 to clarify the

terminology used under that subsection. Recent litigation has called

into question whether Congress, in using the term ``surface coal

mine operation'' in section 717(b), intended to require underground

coal mine operators to replace water supplies * * *.

The Committee, in formulating legislation that was enacted as the

Surface Mining Control and Reclamation Act of 1977, did not intend to

exclude the impacts of underground mining from the scope of section

717(b). However, in light of the litigation, section 2805(a)(1) amends

section 717(b) of the Act with the terminology defined under section

701(28) of the Act so that a clear reading of the law expressly

includes the surface impacts incident to an underground coal mine under

the scope of section 717(b). H.R. Rep. No. 102-474, pt. 8 at 132 (1992)

(emphasis added). However, this proposed amendment was not accepted by

Congress. In any case, we believe that Congress' action on this

proposed amendment to SMCRA section 717 is irrelevant to the issues in

this rulemaking because this action postdated passage of SMCRA and did

not concern section 522(e) or section 701(28).

We also received other comments that agree with our analysis of the

legislative history. These commenters also argue that a compelling

indication of Congressional intent can be found on pages 94-95 of House

Report 95-218 (Apr. 22, 1977). The commenters assert that the focus of

Congress relative to section 522 in general, and 522(e) specifically,

was on surface mining impacts. Commenters argue that the report, under

the title of ``Land Use Considerations'', addresses the lands

unsuitable for mining provision of section 522. The report states:

The committee wishes to emphasize that this section does not

require the designation of areas as unsuitable for surface mining

other than where it is demonstrated that reclamation of an area is

not physically or economically feasible under the standards of the

act * * *.

Although the designation process will serve to limit mining

where such activity is inconsistent with rational planning in the

opinion of the committee, the decision to bar surface mining in

certain circumstances is better made by Congress itself. Thus

section 522(e) provides that, subject to valid existing rights, no

surface coal mining operation, except those in existence on the date

of enactment, shall be permitted * * *.

As subsection 522(e) prohibits surface coal mining on lands

within the boundaries of national forests, subject to valid existing

rights, it is not the intent, nor is the effect of this provision to

preclude surface coal mining on private inholdings within the

national forests. The language ``subject to valid existing rights''

in section 522(e) is intended, however, to make clear that the

prohibition of strip mining on the national forests is subject to

previous court interpretations of valid existing rights * * *.

(Emphasis added)

H.R. Rep. No. 95-218 at 94, 95.

The commenters argue that the second paragraph goes directly to the

Congressional intent to address ``surface mining'' in creating 522(e)

buffer zones. The commenters also argue that frequent use of the term

``surface mining'' while addressing the ``reclamation'' related goals

in the Act; the discussion about ``strip mining'' (which has the same

limited meaning as surface mining and surface coal mining) in the

national forests; and the absence of any subsidence reference anywhere

in this discussion, seem clearly to direct section 522 to surface

mining and to exclude subsidence from the realm of consideration.

We agree in part with these comments. While the House Report

language quoted by the commenters does refer to the effect of section

522(e) on surface mining, we do not believe that SMCRA section 522(e)

addresses only surface mining. As discussed above, we believe the

language of section 701(28) also encompasses surface activities in

connection with underground mining, as well as other surface features

affected by surface activities. Paragraph (B) includes a lengthy list

of specific surface features included in this last category.

C. History of Interpretation as to Applicability of Section 522(e)

Prohibitions to Subsidence

As previously discussed in other sections of this rule, we

recognize that there appears to have been inconsistency in our past

interpretations. However, we conclude that the majority of past OSM

rulemaking and regulatory practices have not considered subsidence to

be a surface coal mining operation, have not applied section 522(e)

prohibitions to subsidence, and have not required regulatory

authorities to do so. Comments on this aspect of this rulemaking fall

into two camps. Numerous comments allege that we have consistently

taken the position that

[[Page 70857]]

subsidence is not subject to the prohibitions of 522(e). Other comments

assert that we have properly taken the position that subsidence is

subject to the prohibitions of 522(e). Both sets of commenters have

cited numerous instances to support their positions. Neither position

is entirely correct. As discussed above, we acknowledge that our past

actions have not been consistent on this issue.

Several commenters argue that in the administrative history of the

implementation of SMCRA, we have never interpreted the statute to apply

section 522(e) to subsidence. Furthermore, these commenters argue that

there exists a longstanding interpretation of SMCRA that section 516

provides the exclusive provision to control subsidence effects.

Commenters disagree with our statement in the proposed rule that in the

past we have not taken a definitive position on the issue of the

applicability of section 522(e) to subsidence. The commenters believe

the administrative history shows from the outset the agency never

interpreted the statute to apply section 522(e) to subsidence. These

commenters referred to the examples we mentioned in the proposed rule

to illustrate that the agency has not taken a consistent and definitive

position. The commenters describe these examples as aberrational and

pale in comparison to the overwhelming evidence demonstrating that

section 522(e) has not been applied in the federal rules or state

programs to subsidence. The commenters emphasize that the examples were

used by us to describe what the agency calls ``negative implications'',

but these commenters feel that the agency has misconstrued the

implication properly drawn from these examples. For the reasons

discussed above in Part II. B, we do not agree with commenter's

assertions that OSM' interpretation has consistently been that 522(e)

does not apply to subsidence. The proposed rule and this preamble

acknowledge numerous past explicit or apparent inconsistencies.

In contrast, other commenters allege that our proposed

interpretation is an abrupt substantive change of agency policy,

particularly from the 1979 regulations and actions taken by the agency

in 1984 and 1985. The commenters assert that in the 1979 rulemaking

that established the permanent regulatory program regulations, the

agency indicated plainly that the jurisdictional term ``surface

operations and surface impacts incident to an underground coal mine''

included more than merely surface impacts attendant to the surface

operations, but instead included subsidence and other impacts attendant

to the underground coal removal itself. As discussed above, we continue

to acknowledge that subsidence can be a surface impact incident to an

underground coal mine. However, we do not regard this as inconsistent

with the final rule's interpretation of section 701(28). And to the

extent that our interpretation in this final rule may be a change from

any past interpretations, we gave notice in the proposed rule of the

proposed interpretation and rationale and acknowledged various past

inconsistencies, so that commenters have had full notice and

opportunity to comment.

Commenters further assert that the agency acknowledged in the 1979

rulemaking that the concept of VER applied to underground mining as

well as surface mining; an applicability that would be unnecessary if,

as the agency now posits, the prohibitions of section 522(e) did not

apply to underground mining in the first instance. Citing 44 FR 14993,

Mar. 13, 1979. We do not agree. As explained above, we continue to

interpret section 522(e) as applying to those aspects of underground

mining that are surface activities, and the areas and features affected

by, incident to, or resulting from surface activities, as set out in

more detail in SMCRA section 701(28)(B). Thus, we take the position

that 522(e) continues to apply to those aspects of underground mining

that constitute a surface coal mining operation. However, those aspects

do not include subsidence. Further, as discussed elsewhere in this

preamble, this interpretation is consistent with other rules

implementing SMCRA, including for example, our rules concerning bonding

and permitting, and our definition of ``adjacent area.''

Commenters believe that in the 1979 rules, when we addressed the

measurement of the 300-foot buffer zone, we tacitly determined section

522(e) did not apply to underground mining. They allege that our

subsequent actions contradict this strained analysis. They point out

that in 1981 we published our findings on Greenwood Land and Mining

Company's request for a determination of valid existing rights to

conduct underground coal mining operations in the Daniel Boone National

Forest in Pulaski and McCreary Counties, Kentucky. 46 FR 36758, July

15, 1981. These commenters assert that the discussion of the finding of

valid existing rights in that instance makes clear that:

(1) Valid existing rights was considered by OSM to be applicable to

underground mining activities under section 522(e) lands;

(2) The application of section 522(e) was not limited to face-up

areas and those surface areas on which were sited support facilities,

but also included the surface overlying underground workings; and

(3) The determination of VER was unrelated to potential subsidence

effects but rather attached to the geographic extent of underground

mine workings beneath protected lands. 46 FR 36759, July 15, 1981; 47

FR 56192-3, Dec. 15, 1982.

We do not agree with this characterization of our interpretation in

the Greenwood VER decision. In the July 15, 1981 FR notice laying out

the VER findings in Greenwood, we noted that VER was requested for

three mines, one of which would have five face-ups directed at the same

seam of coal. Our VER notice stated:

OSM is in the process of obtaining additional information in

order to determine the physical extent of the valid existing rights

claimed by Greenwood. OSM is considering basically two alternatives

in delineating the exact extent of the VER: (1) have VER over the

surface area affected by the face-up and support activities incident

to the underground mining; or (2) have VER over those areas

(including surface overlying underground workings) contemplated to

be affected under the operating plans submitted to the Forest

Service prior to August 3, 1977.

* * * OSM considers that Greenwood's valid existing rights

should have the same geographical extent as the mining Greenwood

contemplated and was committed to on August 3, 1977 * * *.

Because the geographical limits of VER will depend on the

evidence available, OSM has decided to reserve the right to use

either or both of these alternatives in defining the extent of

Greenwood's VER * * *. While the second alternative is preferable

and precise geographical limits will be determined wherever

possible, there may be cases where such a determination is

impossible. In those cases, the first alternative would have to be

used.

46 FR 36759, July 15, 1981.

Having concluded that the VER requester had established that it met

the ``all permits'' VER test, the 1981 determination addressed the

extent of the geographical area to which VER would apply. If available

documentation delineated for some mines or face-ups only the surface

area to be affected by face-up and support activities, VER would be

found for only that surface area. The areas over underground workings

were not to be delineated on the basis of whether subsidence would

occur, but rather solely on the basis of the documentation in mining

plans, of the area which Greenwood had committed to mine. If

documentation for a particular mine or face-up did not show that, as of

1977, the requester was

[[Page 70858]]

committed to a specific location and extent for associated underground

workings, then VER would extend only to the areas that documentation as

of 1977 showed would be affected by surface face-ups and support

activities. Thus, in this 1981 VER determination, we considered VER to

attach to those areas for which documentation demonstrated that the

mineral owner had committed to mine, as of August 3, 1977.

We note that we issued a similar VER determination approximately

one year earlier. That determination, concerning a VER request from

Mower Lumber Company, used a similar rationale for a VER determination

concerning a similar fact pattern. The requester proposed multiple

mines on National Forest lands, but the Forest Service required only

that the company show the planned extent of mining for six-month

intervals. Because there was evidentiary difficulty in determining

geographical limits for VER, we had proposed two options for

determining the geographical extent of VER. 45 FR 52468, Aug. 7, 1980.

Under the first alternative, the VER for the actual surface

disturbance, face-up, haul roads, etc., would be precisely defined,

but the company would be free to deep mine as much coal from the

permitted seam(s) as could be reasonably reached by current mining

methods using the precisely limited surface disturbances. Under the

second alternative, precise geographical limits would be set for

both the surface and underground workings. [Emphasis added.]

Notice of the final Mower VER determination was published on

September 17, 1980 (45 FR 61798). In that decision, we affirmed that

Mower had VER at the five mines in question, but reserved decision on

the exact extent of VER at all of the mines. We stated that

* * * [A]s a result of limited State and Federal regulation

prior to the passage of the Act, there is a limited amount of

information relevant to a precise definition of the extent of VER.

While the second alternative is preferable and precise geographical

limits will be determined wherever possible, there may be cases

where such determination is impossible. In those cases, the first

alternative would have to be used.

Id.

Although the language of the two decisions is quite similar, it is

not clear whether we were assuming in the later Greenwood case that the

same consequences specified in Mower would follow when documentation as

of 1977 showed only areas affected by surface activities. That is, if

documentation showed only areas to be disturbed by surface activities,

the operator would have VER only for those disturbed surface areas, but

could mine all areas reasonably reached using the surface disturbances.

And we reach no conclusion as to whether either alternative for VER

determination should be read to say that subsidence is prohibited under

522(e), since the decisions did not specifically address whether

subsidence was prohibited in the absence of VER. We are not aware of

any previous or subsequent VER determinations that utilized the

rationale of Greenwood or Mower. However, to the extent that either

decision may be read to be inconsistent with this final rule, this

final rule supersedes those earlier decisions.

Commenters believe that the Secretary [sic] reaffirmed the

prohibition on subsidence within section 522(e) areas in the decision

regarding privately held mining claims within the Otter Creek

Wilderness in West Virginia. The commenter notes the Secretary [sic]

stated that ``certain surface impacts to the wilderness could not be

avoided, namely subsidence and hydrologic effects. Thus, even the 22

percent accessible from outside the wilderness could not be recovered

without causing prohibited surface impacts inside the wilderness

area.'' 49 FR 31228, 31233, Aug. 3, 1984. To further support this point

of view, these commenters also point to a decision by OSM to require

two mining companies about to conduct underground mining operations

which would disturb the surface of federal lands to obtain permits

under SMCRA and subject them to the provisions of section 522(e)(2).

Ramex Mining Corp. v. Watt, 753 F.2d 521, 523 (6th Cir. 1985). As noted

above, in Part II.B.3. of this preamble, we agree that the Otter Creek

decision did conclude that subsidence from underground mining is a

prohibited surface impact under section 522(e). However, in part for

the reasons set out in Part III. A. of this preamble, we do not agree

that Ramex clearly supports the commenter's point. It is not clear from

the decision whether the Ramex operation would have included surface

activities on the national forest lands in question, and to conduct

such activities would require VER under any interpretation.

Commenters also allege that the proposed interpretation is an

abrupt substantive change from the 1988 proposed rule which proposed

two options: banning all subsidence, or banning subsidence causing

material damage; but did not seriously contemplate denying the

applicability of the prohibitions to any surface impacts associated

with underground mining. These commenters also assert that the preamble

to that proposed rule stated that ``The definition of `surface

operations and * * * impacts incident to an underground coal mine,' was

promulgated specifically to apply to 30 CFR 761.11(b), the rule which

implements the section 522(e)(2) prohibition against mining on Federal

lands in National forests.'' We indicated in our 1978-79 rulemaking

that, at a minimum, subsidence causing material damage was prohibited

in section 522(e)(2) areas[.]'' Citing 53 FR 52381, Dec. 27, 1988.

In December 1988, we proposed two alternative policies on the

applicability of section 522(e) to subsidence. One proposal was that

all subsidence would be subject to the prohibitions of section 522(e).

The other proposal was that subsidence causing material damage would be

subject to section 522(e). 53 FR 52374, Dec. 27, 1988. We withdrew the

1988 proposed rule. That withdrawal was not challenged , and no policy

was established by the 1988 proposal. Therefore, we are not required to

justify any changes from that withdrawn proposed rule. Nonetheless, we

did discuss in the 1997 proposed rule our reasons for departing from

the alternatives considered in the 1988 proposed rule. Those reasons,

which continue to apply, can be summarized as follows:

One alternative proposed in 1988 was based on the argument that

subsidence is a surface impact of underground mining, that surface

impacts of underground mining are surface coal mining operations under

section 701(28), and thus that all subsidence is a surface coal mining

operation prohibited under section 522(e). One problem with this

interpretation is that subsidence may or may not cause surface damage.

We believe that Congress did not intend to prevent subsidence that

causes no surface damage. All of the congressional concern about

subsidence from underground mining is expressed in discussions of the

damage caused by subsidence, and Congress repeatedly recognized that

there was little concern about subsidence that caused no significant

damage to surface features or uses or to human life or safety. See H.R.

Rep. No. 218, 95th Cong., 1st Sess. 126 (1977); H.R. Rep. No. 1445,

94th Cong., 2d Sess. 71-72 (1976); H.R. Rep. No.896, 94th Cong., 2d

Sess. 7374 (1976); H.R. Rep. No. 45, 94th Cong. 1st Sess. 115-116

(1976); H.R. Rep. No. 1072, 93d Cong., 2d Sess. 108-109 (1974). Indeed,

there is little reason to regulate or prohibit subsidence that does not

impair surface features and uses and does not endanger human life or

safety.

[[Page 70859]]

Thus, we conclude that application of the section 522(e)

prohibition to all subsidence would be unnecessarily restrictive, in

light of Congress' recognition that subsidence would typically cause no

significant damage to agriculture and similar uses. Many of the types

of features listed in section 522(e) are low-intensity uses that are

similar to agricultural land uses in that they have relatively low

vulnerability to significant damage from subsidence.

This 1988 proposed alternative was also based in part on the

argument that, given the serious congressional concern about

subsidence, it would be illogical to conclude that Congress did not

intend to include subsidence within the definition of ``surface coal

mining operations'' or that Congress would have allowed subsidence

within the areas protected by section 522(e). For two reasons, we do

not now find this argument persuasive.

First, under SMCRA, certain impacts of coal mining are subject to

regulation even if they are not included in the definition of a surface

coal mining operation and are therefore not subject to the prohibitions

of section 522(e). For example, offsite water supply diminution and air

and water pollution attendant to erosion are also specifically

regulated under SMCRA, even though they are not surface coal mining

operations per se. SMCRA sections 515(b)(4) and 717. 30 U.S.C.

1265(b)(4) and 1307. The same is true for subsidence. Therefore, it is

not necessary to include subsidence within the definition of a surface

coal mining operation in order to regulate subsidence under sections

516 and 720.

Second, as noted above, there are no significant lapses in

regulatory coverage under our proposed reading of SMCRA, since

subsidence is fully and specifically regulated under sections 516 and

720. The requirements of the existing regulatory scheme for subsidence

apply equally in areas covered by section 522(e) and in those not so

covered.

The other alternative that we proposed in 1988 was that subsidence

causing material damage is a surface coal mining operation subject to

section 522(e). Proponents of this alternative contend that Congress

intended that only subsidence that causes material damage be precluded.

Prohibition of material damage would not preclude underground mining of

all section 522(e)(4) and (e)(5) areas, because an operator could

either negotiate a waiver of the prohibition or purchase the protected

features.

We did not find the arguments for a material damage standard

persuasive for several reasons. First, as outlined above, a material

damage standard does not comport with the parsing of the definition at

SMCRA section 701(28)(A),which we believe best gives meaning to all of

the words of the statutory provision and therefore is the best and most

reasonable interpretation of the language of section 701(28).

Second, as outlined above, we believe the best interpretation is

that Congress intended to regulate subsidence under sections 516 [and

subsequently 720], rather than under section 522(e), as indicated by

both the provisions of the Act and the legislative history.

Third, application of a material damage test might result in

significant costs and impairment of underground mining. This is because

section 516(b)(1) requires prevention of material damage only ``to the

extent technologically and economically feasible,'' while a material

damage threshold for applying section 522(e) would require prevention

of all material damage.

We believe that, if subsidence causing material damage were

prohibited, an operator would be precluded from causing subsidence

except to the extent the operator could demonstrate that:

(1) Although subsidence might occur under the protected features,

no material damage would occur from the subsidence;

(2) The operation would avoid mining within the area from which

subsidence could damage the protected features; or

(3) Under the exceptions in section 522(e), the operator had, for

example, obtained waivers from homeowners or permission from the

regulatory authority concerning subsidence under public roads.

To the extent that these requirements would significantly increase

the costs of mining, or significantly decrease the amount of coal

available for mining, the material damage standard also would frustrate

Congress' expressed intent to encourage full utilization of coal, to

ensure an expanding underground mining industry and to encourage

longwall mining. For example, as we determined in the EIS concerning

this rulemaking, withholding of 10 percent of waivers for 522(e)(5)

homes could make longwall mining economically infeasible. See Final

EIS, 1999.

It is true that section 522(e) and section 561(c) would not be

coextensive in their coverage, assuming section 522(e) applied to

subsidence. Nevertheless, there would be a substantial overlap between

the two provisions. Moreover, as discussed above, we conclude that

subsidence was not intended to be addressed in section 522(e), and to

apply the prohibitions of section 522(e) to material damage from

subsidence would frustrate congressional aims in a way that is not

mandated by the terms of the Act or supported by its legislative

history.

Commenters also note that the coal states that already apply the

prohibitions of section 522(e) to subsidence must have concluded that

the prohibitions are fully consistent with a healthy coal industry. We

do not agree. As discussed above, with the exception of Colorado,

Illinois, Indiana, and Montana, states with active underground coal

mining do not prohibit subsidence in areas protected under section

522(e). Rather, states regulate the effects of subsidence pursuant to

sections 516 and 720 of SMCRA. Those regulations provide for the

mitigation, repair, and compensation for subsidence and material damage

to certain structures and to lands. As discussed, Montana has no

defined policy regarding the regulation of subsidence. This is due in

part to

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