FEDERAL REGISTER: 48 FR 24638 (June 1, 1983)

DEPARTMENT OF THE INTERIOR

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Parts 784, 785, 816, 817, and 818

Surface Coal Mining and Reclamation Operations; 

Permanent Regulatory Program: Subsidence Control, 

Concurrent Surface and Underground Mining Operations and Contemporaneous Reclamation

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) is issuing final rules on information 

required for subsidence control plans for underground mining operations and on performance standards for subsidence 

from underground mining operations, concurrent surface and underground mining, and contemporaneous reclamation. 

 A subsidence control plan is required, to furnish the regulatory authority with information on the underground mining 

operation. The subsidence control plan must be submitted and approved as part of the permit application for the 

underground mine. 

 The final performance standards establish a distinction between damage to land and damage to structures or facilities. 

All subsidence-caused material damage to land or diminution of the value and reasonably foreseeable use of land is 

required to be corrected by restoration of the land. Operator responsibility for material damage to structures or facilities 

resulting from subsidence is tied to liability under State law. The final rule for contemporaneous reclamation allows the 

regulatory authority to establish schedules that define contemporaneous reclamation. The final rule also provides 

requirements for obtaining a variance from the requirement of reclamation as contemporaneously as possible for 

concurrent surface and underground mining. The part containing special permanent program performance standards for 

concurrent operations is removed as proposed. 

EFFECTIVE DATE: July 1, 1983. 

FOR FURTHER INFORMATION CONTACT: C.Y. Chen, Division of Engineering Analysis, Office of Surface Mining, 

U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, DC 20240; 202-343-3190. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Response to Comments and Rules Adopted 

III. Procedural Matters 

 

I. BACKGROUND 

 On April 16, 1982, OSM proposed permanent program rules (47 FR 16604) to amend 30 CFR 784.20, 817.121, 

817.122, 817.124, and 817.126 pertaining to subsidence control, in order to eliminate unnecessary or confusing 

requirements in the previous rules. For a discussion of the extent of the problem and the legal basis for those rules under 

the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. 1201 et seq. (the Act), see the Federal Register 

preamble to the proposed rules. The rules adopted today require a subsidence control plan as part of the permit 

application for an underground mining operation. The subsidence control plan must be submitted and approved before 

the permit is issued. The final performance standards recognize a distinction between operations that intend to use 

planned subsidence and those that intend to use available technology to prevent or minimize subsidence. The final rule 

also distinguishes between damage to land and damage to structures or facilities. All material damage to land that results 

in a diminution of its value and reasonably foreseeable use must be corrected by restoration of the land. Operator 

responsibility for damage to structures or facilities is tied to liability under State law. 

 OSM also, on April 16, 1982 (47 FR 16604), proposed to revise 30 CFR 785.18, 816.79, 816.100, and 817.100 and to 

eliminate 30 CFR Part 818. These rules pertain to the variance from the contemporaneous reclamation requirement and 

the minimum distance between surface and underground mines where concurrent surface and underground mining 
operations will be conducted. These rules implement Sections 515 (b)(12) and (b)(16) of the Act and are adopted as final 

with some modifications. 

 A public hearing was initially scheduled for May 13, 1982, but no one requested to testify. The public comment period 

was initially open until May 17, 1982 (47 FR 16604); was reopened on May 13, 1982 (47 FR 20631); was extended until 

August 25, 1982 (47 FR 30266, July 13, 1982); and was later extended until September 10, 1982 (47 FR 39201,

September 7, 1982). During this comment period, OSM received comments from sources representing industry and 

associations, environmental groups, and Federal and State agencies. Comments received concerning each of the proposed 

rules in this rulemaking are addressed below. 

 

II. RESPONSE TO COMMENTS AND RULES ADOPTED 

 

A. SUBSIDENCE CONTROL PLAN REQUIREMENT -- SECTION 784.20 

 Authority for this section is found in Sections 102, 201(c), 501(b), 503(a), 505, 507(b) 508(a), 510(b), 515(b), and 516 

of the Act. 

 Section 784.20 sets out minimum requirements for subsidence control plans in permit applications for underground 

mining activities. The subsidence control plan must be submitted as part of the permit application for the operation. 

 The introductory paragraph of previous Section 784.20 provided for a survey by the operator to be used in determining 

whether a subsidence control plan would have to be submitted and for conditions under which the regulatory authority 

could waive the requirement and for a subsidence control plan. The proposed rule would have deleted this paragraph and 

included the requirements for a survey and a waiver of certain of the subsidence control plan requirements in proposed 

Sections 784.20(a)(1) and (c). Several commenters supported the attempt to eliminate the uncertainty of whether a 

subsidence control plan would be required and to require a plan for every underground mining operation. One State 

commenter recommended that the flexibility and requirements of the previous rule be retained. This commenter also 

suggested that the applicability of the survey to structures and renewable resource lands be retained as in the previous 

rule and not be revised to include surface features, such as topographic features. 

 Numerous commenters expressed confusion concerning the proposed change with respect to the survey requirements 

of proposed Paragraph (a)(1) and the waiver provisions of proposed Paragraph (c). One commenter was concerned that 

the survey requirement would be an expansion of the performance standards and that mining would be prohibited under 

any of the features mentioned in Paragraph (a)(1). This commenter also was concerned that the requirement could be 

used to prohibit room-and-pillar mining. The commenter suggested revising the language to clarify that the regulatory 

authority may not disapprove a subsidence control plan unless it fails to meet the performance standards. Another 

commenter suggested that the survey be eliminated because such a requirement would be inappropriate for a general 

subsidence control plan. A commenter suggested that the language of the proposed rule be modified to clarify whether or 

not consideration of the public health and safety would apply to all the items listed. One commenter asserted that the 

information required in the general plan would not be sufficient to enable the regulatory authority to make the waiver of 

the detailed plan in proposed Section 784.20(c). 

 After review of the comments on proposed Paragraphs (a)(1) and (c), OSM has concluded that the proposal did not 

accomplish the goal of eliminating the uncertainty and ambiguity of the previous rule. In fact, the comments indicate that 

the proposed rule may have been more confusing than the previous rule. For this reason, OSM has decided to accept the 

comments suggesting that the previous provision be retained and not to eliminate the introductory paragraph of previous 

Section 784.20. 

 Thus, proposed Paragraphs (a)(1) and (c) have not been adopted in the final rule. The language of the introductory 

paragraph of previous Section 784.20 has been retained and is repeated in the final rule solely for convenience in 

understanding the other requirements adopted in the final rule. 

 Several commenters raised legal objections to OSM's authority to regulate planned subsidence, stating that planned 

subsidence is exempted by the Act. Other commenters stated that planned subsidence must be allowed, but regulated, and 

that a subsidence control plan should be required for both planned and unplanned subsidence. 
 OSM recognizes that Section 516(b)(1) of the Act allows the use of planned subsidence, but does not believe that 

Congress intended operations that cause subsidence, which could result in material damage or diminution in the value or 

reasonably foreseeable use of the land surface, to be exempt from the Act's environmental protection performance 

requirements. 

 The National Coal Association (NCA) raised the issue of whether a subsidence control plan could be required for 

planned subsidence. In In re: Permanent Surface Mining Regulation Litigation , No. 79-1144, D.D.C. (memorandum 

opinion filed February 26, 1980), the U.S. District Court upheld the requirement. 14 Envir. Rep. Cas. at 1083. The court 

reasoned that an operator intending to use a method which completely removes the coal has to establish that the 

consequent subsidence will occur in a predictable and controlled manner. 14 Envir. Rep. Cas. at 1098. Thus, 

underground mine operators proposing to use a longwall mining method may not be exempted from the permitting 

requirements. 

 In the preamble discussion to the proposed rulemaking (47 FR 16606), OSM stated its interpretation of the exception 

in Section 516(b)(1) of the Act. Whereas Section 516(b)(1) requires an operator to adopt certain measures to prevent 

subsidence from occurring, subsidence from longwall mining or any other full-extraction method cannot be prevented. 

The exception recognizes this and does not require subsidence-prevention measures in such instances. It allows for fullextraction methods to be used which inevitably cause subsidence to occur. OSM's view of the statutory provisions is that 

the exception does not extend to an exemption from the separate responsibilities to submit a subsidence control plan, or 

to comply with the environmental protection performance standards. This is consistent with the legislative history of the 

Act which simply states that the exception "specifically allows for the uses of longwall and other mining techniques which 

completely remove the coal." H.R. Rep. 95-218, 95th Congress, 1st Session at 126 (1977). Because there is no indication

in the legislative history of the exception being as broad as a complete exemption from the other performance standards 

and permitting requirements of the Act, and in light of the underground mining regulatory provisions upheld by the 

district court in the permanent program litigation, which is discussed later in this preamble, OSM sees no reason to 

expand the scope of its regulatory exception. 

 Consequently, the final rule regulates planned subsidence, as well as operations that plan to prevent or minimize 

subsidence. The subsidence control plan includes informational requirements as necessary to ensure compliance with the 

performance standards of Section 817.121. This issue is further discussed below in relation to the application of 

performance standards to operations using planned subsidence. 

 Final Section 784.20 requires a subsidence control plan consisting of seven major elements: (a) a description of the 

method of coal removal; (b) a map of underground workings describing the location and extent of areas in which planned 

subsidence is to be used and including those areas in which measures will be taken to prevent or minimize subsidence or 

subsidence-related damage; (c) a description of the physical conditions that affect the likelihood or extent of subsidence 

and subsidence-related damage; (d) a description of the subsidence control measures proposed to be taken to prevent or 

minimize subsidence or subsidence-related damage, except for those areas where planned subsidence will be used; (e) an 

estimation of the anticipated effects of planned subsidence, if any; (f) a description of measures to be taken to mitigate or 

remedy any subsidence-related material damage or diminution in value or reasonably foreseeable use of (1) the land or (2)

structures or facilities to the extent required under State law; and (g) other information required by the regulatory 

authority as necessary to demonstrate that the operation will be conducted in accordance with the performance standards 

of Section 817.121 for subsidence control. 

 The proposed rule would have separated the subsidence control plan into two parts: a general plan and a detailed plan. 

Several commenters questioned whether there would be sufficient information in the permit application to allow approval 

of the permit if the detailed subsidence control plan were not included, and whether the subsidence control plan could be 

approved until the regulatory authority had received public comment on, and approved, the detailed plan. One 

commenter contended that the requirement that both a general and detailed subsidence control plan be submitted and 

approved is unworkable. Another commenter was concerned that submittal of a separate detailed plan could result in 

mining delays if it was not approved in a timely manner by the regulatory authority. This commenter suggested that the 

review and approval period be clearly stated in the rule. 

 Upon review of the comments, OSM agrees that the proposed two-tiered concept could have been unnecessarily 

complex. For this reason, the final rule retains the format of the previous rule and requires a single subsidence control 

plan that must be approved as part of the permit application before underground workings may proceed into an area. 
 With the inclusion of the specific elements described above, sufficient information will be contained in the permit 

application to allow necessary review and permit approval. Any significant revision of the operation that would extend 

the underground workings into new areas not previously covered by the permit must be approved as part of a permit 

revision and thereby will be subject to all the public participation and procedural requirements for processing permit 

revisions. 

 One commenter complained that OSM's proposed rules were limited to onsite and surface impacts and did not address 

offsite or underground impacts. 

 OSM's final rules are not limited to onsite impacts. OSM recognizes that certain offsite areas could be affected by 

subsidence. The final permitting rules and performance standards apply to all lands that may be affected by subsidence. 

There is no limitation that these rules would only apply to lands within the permit area. 

 OSM continues to believe, however, that the subsidence control plan is properly directed only to the evaluation of the 

surface impacts of underground mines. Section 701(28) of the Act specifically defines underground mining activities 

regulated under the Act to include only the surface impacts incident to an underground coal mine. 

 Two commenters stated that insufficient information was required in the detailed plan to evaluate the hydrologic 

impacts. These comments are rejected. The commenters appear to have misunderstood the purpose of the subsidence 

control plan. Information required to evaluate hydrologic impacts is required under the rules covering hydrologic 

impacts. OSM is aware that underground mining and related fracturing of the geologic structure overlying a mine can 

result in disruption to ground-water resources and that these changes may have a surface impact. However, it is 

unnecessary to extend the subsidence control plan to include general hydrologic impacts. The performance standards of 

Section 516 of the Act and the permitting requirements of Sections 507 and 508 of the Act contain extensive 

requirements relating to protection of the hydrologic balance. These requirements are included in the hydrology rules. 

Among the permitting requirements is a requirement that the applicant provide an analysis of the probable hydrologic 

consequences of mining. This analysis must include potential hydrologic consequences from underground mine workings. 

The subsidence control plan requirements need not be unnecessarily complicated by including provisions that are 

duplicative of other requirements of the rules. As OSM has previously stated, these impacts are more appropriately 

considered in the context of the permitting requirements and performance standards for protection of the hydrologic 

balance (see 47 FR 16605, April 16, 1982). 

 One commenter also expressed concern about the potential impacts of underground mining on property rights in the 

West. OSM has not changed the rule in response to the comment. OSM does not have authority to require protection of 

water rights that may be impacted by underground mining. If an individual's water rights acquired under State law are 

affected by underground mining, the appropriate avenue for relief is through State water laws. Although OSM is 

concerned with protecting the hydrologic balance, OSM does not intend to regulate water rights through the subsidence 

control plan. Adoption of the revised rules in a State regulatory program will not alter the State's water-law regime. 

 One commenter suggested that Subchapter D of 30 CFR Part 211 be referenced in the preamble to ensure public 

awareness of the responsibilities of the Minerals Management Service. OSM accepts the comment. If underground 

mining is to be conducted on Federal lands containing federally leased coal, the operator must also comply with the rules 

in Part 211. 

 OSM received numerous comments with respect to the information that must be contained in the subsidence control 

plan. One commenter suggested that the informational requirements of the previous rule be retained. Several other 

commenters asserted that some of the general information and all of the detailed subsidence control plan information is 

totally unnecessary, particularly when the operator has the right to cause subsidence or is using a mining technique which 

will result in planned subsidence or no subsidence. Two commenters remarked that the rules should recognize that 

different types and levels of information are appropriate for the two kinds of areas: One where subsidence is planned and 

another where it is unplanned. One of the commenters recommended that only the general plan should be required where 

maximum mine stability is to be provided, whereas a detailed plan should be required for areas where planned subsidence 

is used. Other commenters suggested that different levels of information be required for both planned and unplanned 

subsidence and that the survey requirement be included in the detailed plan. Another commenter suggested that detailed 
information should be provided in the subsidence control plan both for areas of planned subsidence and for areas where 

subsidence is not planned, since both could have significant impacts. 

 All of the comments received on the proposed rule have been considered in the development of the subsidence control 

plan requirements of the final rule. As previously indicated, OSM is rejecting those comments that suggested that no 

subsidence control plan be required for areas where planned subsidence will be used. The subsidence control plan 

requirements will apply to all types of underground mining. Section 784.20(d) does, however, recognize that operations 

where planned subsidence is used do not necessarily use subsidence control measures designed to prevent or minimize 

subsidence. Rather, such mining operations are designed to allow subsidence as mining progresses. For this reason, the 

requirement to provide information on subsidence control measures does not apply to areas where planned subsidence is 

to be used. 

 One commenter contended that OSM's preamble discussion in the proposal provided no qualification for not requiring 

information at an equal level of detail for longwall and for room-and-pillar retreat-mining operations. The final rule does 

not distinguish between longwall and room-and-pillar mining. Rather, it makes a distinction between operations which 

will use planned subsidence, and those which will use measures to prevent or minimize subsidence. Both longwall and 

room-and-pillar mining have been given equal consideration during the rulemaking. If a room-and-pillar retreat-mining 

operation will result in planned subsidence, as in the longwall mining method, the information required will be that 

applicable to all operations using planned subsidence. 

 

SECTION 784.20(a) 

 Paragraph (a) of the final rule requires a description of the method of coal removal, such as longwall mining, room-andpillar removal, hydraulic mining, or other extraction methods, including the size, sequence, and timing for the 

development of underground workings. This section includes the requirements of proposed Paragraph (a)(2), with the 

addition of the size, sequence, and timing requirements. This latter information is needed to provide an overall areal and 

temporal perspective on the operation. No comments related to proposed Section 784.20(a)(2) were received. 

 

SECTION 784.20(b) 

 Paragraph (b) of the final rule requires the subsidence control plan to contain a map of the underground workings 

which describes the location and extent of areas in which planned-subsidence mining methods will be used, and which 

include all areas in which measures will be taken to prevent or minimize subsidence or subsidence-related damage. This 

paragraph combines the requirements of proposed Paragraphs (a)(3) and (b)(1) into one provision. It does not distinguish 

between a general and a detailed subsidence control plan. 

 

SECTION 784.20(c) 

 Paragraph (c) of the final rule requires a description of the physical conditions, such as depth of cover, seam thickness, 

and lithology, which affect the likelihood or extent of subsidence and subsidence-related damage. This section includes 

the requirements of proposed Paragraph (b)(2), with minor editorial changes. 

 One commenter remarked that more information, such as calculation of the strength of the floor, roof, and coal seam, 

should be added to the description required by proposed Paragraph (b)(2). This comment is rejected. The state of the art 

in subsidence analysis is imprecise and will vary depending upon site-specific conditions and past mining experience 

under similar circumstances. For this reason, the final rule does not attempt to provide an extensive listing of detailed 

informational requirements to be included in the subsidence control plan. Rather, final Section 784.20(c) requires 

information relating to the basic physical characteristics of the mine which affect the likelihood or extent of subsidence 

and subsidence-related damage. The final rule, however, recognizes that under certain conditions additional information 

may be necessary to enable the regulatory authority to assess the likelihood that the operation will be able to comply with 

the performance standards relating to subsidence. For this reason, a new Paragraph (g) has been added to the final rule to 

enable the regulatory authority to require the submission of additional information as necessary to ensure compliance 

with the performance standards of Section 817.121 for subsidence control. 

 
SECTION 784.20(d) 

 Paragraph (d) of the final rule requires, except for those areas where planned subsidence is projected to be used, a 

detailed description of the subsidence control measures that will be taken to prevent or minimize subsidence or 

subsidence-related damage, including but not limited to: (i) backstowing or backfilling of voids; (ii) leaving support 

pillars of coal; (iii) leaving areas in which no coal removal is planned; (iv) taking measures on the surface to prevent 

material damage or lessening of the value or reasonably foreseeable use of the surface; and (v) monitoring to determine 

the commencement and degree of subsidence so that other appropriate measures can be taken to prevent or reduce 

material damage. For areas where no coal removal is planned, the description must include a description of the overlying 

area to be protected by leaving the coal in place. Areas where the different subsidence control measures will be used must 

be shown on the map required under Paragraph (b) of the final rule. This section includes the requirements of proposed 

paragraph (b)(3) and contains many of the requirements of previous Section 784.20(b). 

 One commenter suggested that the words "subsidence and" be deleted from proposed Section 784.20(b)(3) for the 

reason that the concern should be only to prevent or minimize subsidence damage, not subsidence. This suggestion is 

rejected. The final rule recognizes two types of mining: Mining operations that propose to use planned subsidence, and 

those operations that propose to use mining techniques to prevent or minimize subsidence and subsidence-related 

damage. For those operations that plan to comply with the performance standards by preventing or minimizing 

subsidence, it is important for the regulatory authority to understand what measures will be used to accomplish that goal. 

 One commenter requested that proposed Section 784.20(b)(3) be reworded, relocated, or eliminated. He contended 

that the detailed plan should be limited to planned subsidence and that to require information on mining techniques used 

to prevent or minimize subsidence in a detailed plan is not practical. OSM disagrees with the commenter. An important 

aspect of meeting the performance standards for subsidence control is to use measures consistent with known technology 

in order to prevent subsidence causing material damage to the extent technologically and economically feasible. In order 

for the regulatory authority to ensure compliance with this requirement, it must have knowledge of the measures the 

operator proposes to use to prevent or minimize subsidence and subsidence-related damage. 

 Another commenter remarked that the list of possible measures that might be taken to prevent or minimize subsidencerelated damage which appeared in the previous rule as examples should not be eliminated. Examples of technologies that 

may be used generally are more appropriately addressed in documents such as handbooks rather than in rules. However, 

in this case some additional guidance to the operator and the States may be appropriate and OSM has decided to accept 

the commenter's suggestion. Final Section 784.20(d) includes examples from previous Section 784.20(b)(2) and (3) of 

measures that may be taken to control subsidence or subsidence-related damage. 

 

SECTION 784.20(e) 

 Paragraph (e) of the final rule requires a description of the anticipated effects of planned subsidence, if any. This 

paragraph continues the requirement of previous Section 784.20(b)(1). Proposed paragraph (b)(4), which would have 

required a projection of the vertical and areal extent of subsidence for both planned and unplanned subsidence, has not 

been adopted. 

 Several commenters objected to the provision requiring a prediction of the extent of subsidence where the operator is 

not using planned subsidence. One commenter disagreed with OSM's focus on "expected subsidence" in proposed 

Section 784.20(b)(4) and (5). Some other commenters indicated that no distinction should be made between "expected" 

and "unexpected" subsidence. One commenter suggested that the portion of proposed Section 784.20(b)(4) requiring a 

description of areas in which no subsidence is expected be deleted. 

 In response to these comments, OSM has decided not to adopt proposed Section 784.20(b)(4). Rather, the final rule 

continues to apply the standard of the previous rule which requires a description of the anticipated effects of planned 

subsidence, if any. It does not require a prediction of expected subsidence or subsidence that may result from mining 

methods that do not use planned subsidence. OSM recognizes the speculative nature, based on existing techniques, of 

predicting subsidence in areas where planned subsidence is not used. For such situations the final rule does not require 

such a prediction, but rather returns to the concept of the previous rule, which emphasizes consideration of the measures 

proposed to be taken to prevent or minimize subsidence. 
 One commenter pointed out the difficulty in predicting subsidence and suggested that guidelines for subsidence 

prediction and control be developed and disseminated. Another commenter suggested that the requirement in proposed 

Section 784.20(b)(4) for supporting analyses be amplified with references. Another commenter asserted that the 

proposed rule should be deleted because there are no sound predictive models for subsidence. 

 Literature on subsidence was discussed in the preamble to the previous rule and has not been repeated here. OSM has 

not yet developed a guidance manual for subsidence prediction, but it may conduct or sponsor research on this subject in 

the future. OSM recognizes the limited availability in this country of predictive models for subsidence. However, the state

of the art in subsidence prediction for areas of planned subsidence has reached the stage where it is reasonable to require 

the operator to provide an estimation of the anticipated effects of planned subsidence. 

 Another commenter suggested that the requirements be clarified to indicate that subsidence should be "determined by 

the application of prudent mine engineering principles." OSM believes that no rule change is necessary in response to this 

comment. It is implicit that all areas, whether they are areas of planned subsidence or areas where subsidence is not 

planned, should be evaluated by the application of prudent mine-engineering principles. 

 One commenter asserted that the information required in proposed Section 784.20(b)(6) for room-and-pillar mining 

was excessive and burdensome and, therefore, suggested that this section be eliminated. Another commenter contended 

that the requirement in proposed Section 784.20(b)(6) was improperly located within the detailed plan because if a mine 

operator is planning a room-and-pillar mine without some sort of near total-extraction retreat or secondary-recovery 

plan, planned subsidence will not occur. 

 The final rule does not require the information specified in proposed Section 784.20(b)(6) to be submitted in a 

subsidence control plan. Basic information, such as whether an operator proposes to use support pillars as a subsidence 

control technique, must be specified in the plan, together with a description of the areas where such measures will be 

used. Additional information may be required by the regulatory authority. However, the detailed description of the size, 

configuration, and approximate location of pillars and entries, extraction ratios, and other information applicable to 

room-and-pillar mining may not be known at the time the permit application is submitted. Such information will not be 

completely developed until mining begins. Thus, the final rule requires an operator to submit sufficient information as 

part of the subsidence control plan to allow the regulatory authority and the public to assess whether a permit should be 

issued. As an additional measure of environmental protection, after a permit is issued and before an area is mined, an 

operator will have to submit more detailed information to confirm for the regulatory authority that the operator is 

following the subsidence control plan and is performing the detailed planning necessary to conform with the performance 

standards. Thus, the informational requirements of proposed Section 784.20(b)(6) are set forth in new final Section

817.121(g) rather than in these permitting rules. 

 

SECTION 784.20(f) 

 Paragraph (f) of the final rules requires a description of the measures to be taken, in accordance with Section

817.121(c), to mitigate or remedy any material damage or diminution in value or reasonably foreseeable use of the land 

surface due to subsidence. This paragraph includes the requirements of proposed paragraph (b)(5). One commenter 

recommended the deletion of the phrase "that may occur due to expected subsidence" in the proposed rule. This 

comment has been accepted, and the final rule deletes the language referring to "expected subsidence." Final Section

784.20(f) tracks final Section 817.121(c) and clarifies that the mitigative or remedial measures apply only to material 

damage to (1) the land or (2) structures or facilities to the extent required under State law. 

 One commenter suggested that the examples of mitigative measures that may be used and which are contained in 

previous Section 784.20(c) should be retained. This comment has not been accepted. The mitigative measures that are 

required are in final Section 817.121(c). Therefore, there is no need to repeat that information in Section 784.20. 

 Another commenter recommended that the language of proposed Section 784.20(b)(5) be replaced with "a statement 

by the operator that he will mitigate or remedy any material damage or diminution in value or foreseeable use that may 

occur due to unexpected subsidence" and contended that this will allow the operator to treat surface disturbance on a 

case-by-case basis. 
 OSM has rejected this comment and is requiring the operator to provide a description of the proposed measures in the 

subsidence control plan. However, the performance standards as adopted in final Section 817.121 allow the operator 

ample opportunity to determine the method of treating the surface disturbance on a case-by-case basis. Revision of the 

language, as suggested, is therefore not necessary. 

 

SECTION 784.20(g) 

 Paragraph (g) of the final rule requires other information, specified by the regulatory authority, as necessary to 

demonstrate that the operation will be conducted in accordance with the performance standards of Section 817.121 for 

subsidence control. This section has been included to ensure that the regulatory authority has the flexibility to require the

subsidence control plan to consider site-specific circumstances as necessary to ensure compliance with the applicable 

performance standards. 

 One commenter requested that the requirements of previous Section 784.20(d), which required a description of 

measures to be taken to determine the degree of damage caused by subsidence, be retained. This commenter suggested 

that the requirement should be explicit in the rule so it can be readily understood by operators, regulatory authorities, 

local officials, and concerned public. This comment has not been accepted. It is not necessary to impose this additional 

requirement in the subsidence control plan. It may be to the operator's advantage to conduct presubsidence surveys or 

monitoring to avoid unnecessary liability or complications with the surface owners. However, the Act does not require 

the operator to conduct such surveys or monitoring. Further, to the extent that such measures are applicable to other 

aspects of the subsidence control plan, they can be included as an element of the plan (for example, under paragraph 

(d)(v) of the final rule). 

 One commenter suggested that a provision be added in proposed Section 784.20(b) to ensure that confidential 

information so marked will not be made public. OSM recognizes that certain information submitted by the permit 

applicant may be held confidential. Confidential information is protected under Sections 507(b)(17) and 508(a)(12) of the 

Act which are implemented in other parts of the regulations. It is not necessary to add additional requirements to protect 

the confidentiality of information submitted with the subsidence control plan. 

 One commenter was concerned that the subsidence caused by auger mining was not addressed in the proposed 

subsidence control rule. This issue has been addressed in Part 819, the final rules for auger mining (48 FR 19314, April 

28, 1983). 

 One commenter asserted that OSM still has not addressed the liability associated with an underground mine located 

above another which is mining under a structure where material damage occurs. 

 Material damage caused from multiple-seam underground mining by the same or by different operators at the same or 

different times is a case-specific and complicated matter. The information required under the subsidence control plan in 

the final rule gives the operator an opportunity to describe the mining techniques that will be used and measures that will 

be taken to prevent or minimize subsidence and subsidence-related damage. This information, together with other 

required information, will enable the regulatory authority on a case-by-case basis to be made aware of other active or 

abandoned mines and evaluate the situation before the permit is issued. If subsidence causes material damage to a 

structure or facility, the operator, under final Section 817.121(c), may be liable if liability is imposed under State law. 

Responsibility to restore the land itself depends upon the actual cause of the damage. OSM will not address the matter in 

more specific terms. 

 

B. SUBSIDENCE CONTROL REQUIREMENTS -- SECTIONS 817.121 AND 817.122 

 Section 817.121 provides performance standards for subsidence control. It implements Sections 516(b)(1) and 516(c) 

of the Act and also reflects the provision of Section 516(b)(10) for surface impacts not otherwise specified in Section 

516(b) to apply the requirements of Section 515 with modifications to recognize the distinct differences between surface 

and underground mining. It is also based in part of Section 507(f) of the Act. 

 The provision for surface-owner protection in the proposed rule is changed in final Section 817.121(c). The proposed 

paragraph contained little change from previous Section 817.124. The underground mine operator would have been 

given several options to remedy all material damage caused by subsidence. The final rule establishes a distinction between 
damage to land and damage to structures or facilities. As discussed below, all subsidence-caused material damage to the 

land is required to be repaired. Operator responsibility for material damage caused to structures or facilities is tied to 

liability under State law. If the operator has no liability under State law, the material damage need not be repaired and 

compensation need not be paid. 

 

SECTION 817.121(a) 

 Paragraph (a) implements Section 516(b)(1) of the Act. It requires the underground mine operator to adopt measures 

consistent with known technology to prevent subsidence causing material damage to the extent technologically and 

economically feasible, to maximize mine stability, and to maintain the value and reasonably foreseeable use of surface 

lands. As an alternative, the operator may adopt a mining technology which causes planned subsidence to occur in a 

predictable and controlled manner. The paragraph also provides that nothing in Part 817 is to prohibit the standard 

method of room-and-pillar mining. The rule is being made final as proposed. 

 One commenter believed that the phrase "consistent with known technology" should be removed because the phrase 

"to the extent technologically and economically feasible" adequately covers the technological aspects of what is possible 

in the area of subsidence control. This commenter also contended that OSM has added extra and superfluous 

requirements to the paragraph and therefore the rule has become less flexible. This commenter also questioned the term

"value" as being extremely nebulous so that it could be construed to pertain to almost anything. 

 The paragraph was proposed to be revised to make clear that mining methods resulting in planned subsidence were not 

prohibited. 47 FR 16606, April 16, 1982. The previous rule, although tracking Section 516(b)(1) of the Act, did not 

contain the exception for mining methods using planned subsidence. With the addition of the provision recognizing the 

right to use mining methods resulting in planned subsidence, more flexibility is afforded the operator. 

 The phrase which the commenter suggests deleting is taken from Section 516(b)(1) of the Act. The commenter 

assumes that measures that are consistent with known technology are ones which are necessarily technologically feasible; 

in other words, the phrase adds nothing to the rule. The important point is that the regulatory authority cannot require 

the operator to adopt measures which are beyond the state-of-the-art in subsidence control. The regulatory authority 

cannot, in effect, require the operator to adopt experimental methods to prevent subsidence. The phrase does add a 

limitation, but it may be one which is overshadowed by the "technologically and economically feasible" limitation. Since 

the phrase is taken from the Act, it will not be deleted from the rule. 

 With respect to the comment that the term "value" is nebulous, the commenter does not suggest any alternative. Again, 

the term is found in Section 516(b)(1) of the Act. To define the term in the rules could unreasonably restrict the latitude 

of the regulatory authorities in carrying out their programs. Moreover, Section 101(c) of the Act describes the adverse 

effects which coal mining can cause, and Section 102(d) provides that the Act is to assure that the environment is 

protected. Thus, the surface effects of underground mining are regulated in order to assure the maintenance of the value 

of the land and its reasonably foreseeable uses. For these reasons, no change is made in the paragraph. 

 

SECTION 817.121(b) 

 Paragraph (b) requires the underground mine operator to comply with the subsidence control plan approved by the 

regulatory authority under Section 784.20. This provision continues the requirement of previous Section 817.121(b). The 

paragraph recognizes that the subsidence control plan submitted as part of the permit application will contain the 

standard to which the operator must adhere. 

 One comment was received which asserted that the plan referred to in the proposed paragraph was ambiguous. The 

commenter indicated that, since both general and detailed subsidence control plans were proposed to be added to the 

rules, in Section 784.20 (a) and (b) (47 FR 16608-16609), it was unclear to which subsidence plan reference was made. 

The final rule does not adopt the proposed two-tiered subsidence control plan. For this reason, the possible ambiguity to 

which the commenter referred has been eliminated and no change is deemed necessary. Although approval of the more 

detailed information submitted under Section 817.121(g) is not required prior to an area being mined, that information 

will describe how the plan is being implemented. 

 
SECTION 817.121(c) 

 Paragraph (c) establishes the operator's responsibility for material damage caused by subsidence. The statutory 

authority for its provisions are Sections 516 (b)(1) and (b)(10), 515 (b)(2) and (b)(3), and 507(f) of the Act. 

 A revision to Section 817.121(c) has been made as a result of the comments received and in light of the February 1, 

1983, order of the U.S. Court of Appeals for the District of Columbia Circuit in In re: Permanent Surface Mining 

Regulation Litigation, No. 80-1810. In remanding the case to the U.S. District Court, the Court of Appeals directed the 

Secretary of the Interior to consider the issues and arguments in that appeal as part of the administrative record on the 

proposed rules. The validity of the surface-owner protection provision, Section 817.124 of the previous rules, was an 

issue in that case and must be considered as part of this rulemaking. 

 A basic liability distinction is recognized by the two paragraphs of final Section 817.121(c): (1) Liability for 

subsidence-caused damage to land is provided for under the Act, and therefore the underground mine operator has a duty 

to restore all land which is materially damaged; and (2) liability for damage to surface and subsurface structures and 

facilities under Section 507(f) of the Act is tied to liability under State law. Within these differences, the options open to 

the operator under the previous and proposed rules have been restructured for clarity, but generally are encompassed 

under the final rule. Material damage to land must be remedied and the affected land restored. However, material damage 

to structures and facilities need be remedied or money damages paid only if the operator is liable under State law. The 

applicable remedies will continue to include rehabilitation, restoration, or replacement of damaged structures or facilities.

Compensation may continue to be accomplished by the purchase, prior to mining, of a noncancellable premium-prepaid 

insurance policy. 

 The previous subsidence control rules did not provide for a situation where the operator has purchased a structure 

overlying the underground workings, where the operator has purchased the right to cause subsidence under a structure, 

or, as in the State of Pennsylvania, where State legislation has established subsidence responsibilities for different classes 

of structures. The previous rules did not allow the operator the alternative of not repairing damaged structures where he 

or she had no legal liability under State law. To more closely follow the provisions of Sections 507(f), 515, and 516 of 

the Act, the rule is changed to accommodate situations in which under State law the operator is not liable for subsidence 

damage to structures. However, the duty to restore land materially damaged by subsidence will apply irrespective of the 

operator's liability under State law for damage to structures and facilities. 

 A number of comments addressed general features of proposed Section 817.124(c). One commenter concurred with 

the statement in the preamble of the proposed rule (47 FR 16606-16607) that the operator is required to remedy 

subsidence-caused material damage regardless of whether a subsidence control plan has been submitted and approved. 

Although Section 817.121(b) requires the underground mine operator to comply with the subsidence control plan, 

paragraph (c) establishes responsibilities independent of the submission and approval of a plan. No change in the rule is 

necessary as a result of the comment. 

 Another commenter expressed the concern that the proposed paragraph did not require the correction of material 

damage caused to subsurface features, such as a subsurface drainage or irrigation system. The commenter also advocated 

a change in the requirement that remedial work be undertaken promptly. The commenter's contention was that 

subsidence may occur over an extended period of time. Taking remedial action as soon as subsidence starts may prove 

futile if it continues over a prolonged period. 

 OSM does not agree with the first part of the comment. As previously indicated, Section 701(28) of the Act only 

applies to surface impacts incident to underground mines. Manmade features such as irrigation or drainage systems, 

either surface or subsurface, however, will be subject to the provisions of Section 817.121(c)(2) since they necessarily 

relate directly to a surface activity. 

 OSM has accepted the second part of the comment and removed the provision that required prompt action by the 

operator. If prompt or immediate remedial action is called for, such as jacking up a building or providing additional 

temporary support for the walls or foundation of a structure, the regulatory authority can require the operator to take the 

necessary temporary measures until it is determined that the full extent of damage has occurred. When that determination 

is made, the operator can then either undertake permanent restoration work on the structures or facilities or pay money 

damages to the owner for the diminution in value. No additional language is considered necessary to provide for the 
regulatory authority's discretion to require that permanent remedial measures be deferred until the full extent of the 

subsidence has occurred. 

 Several commenters contended that OSM does not have the authority to require operators to compensate surface 

owners for surface damage and that compensation for surface owners should be governed by State law or, according to 

one commenter, be left to common law. 

 Some commenters stated that under proposed Section 817.121(c) the operator's liability was unknown and openended. One commenter indicated that this rule would constitute an unlawful taking of property. According to several 

other commenters, it would also impair contracts between operators and surface owners. 

 One commenter suggested that the language of this rule be revised to require the operator to restore the land surface to 

the extent technologically and economically feasible and leave the correction of surface-structure damage to applicable 

State laws. One commenter from Pennsylvania suggested that it may even be appropriate to grant Pennsylvania a "State 

window" on subsidence rules, under 30 CFR 731.13. 

 The duty to restore the land arises from sections 515(b)(2), 516(b)(1), and 516(b)(10) of the Act. Under Section 

516(b)(10), the performance standards of Section 515 are made applicable with respect to surface impacts not specified 

in Section 516(b). Section 516(b)(1) deals with the prevention of subsidence causing material damage, not remedial 

measures. The provision does not address the issue of the operator's liability once subsidence has caused material 

damage. Therefore, provisions of Section 515 are made applicable to the extent they pertain to remedial measures. 

Section 515(b)(2) of the Act requires an operator to restore affected land to a condition capable of supporting its 

premining uses, or higher or better uses. Although the proviso to Section 516(b)(10) of the Act directs the Secretary to 

make such modifications as are necessary to accommodate the distinct differences between surface and underground 

mining, there are no such differences which would necessitate not applying the restoration standards to lands materially 

damaged by subsidence. The district court in In re: Permanent Surface Mining Regulation Litigation, memorandum 

opinion filed February 26, 1980, 14 Envir. Rep. Cas. 1083, upheld the surface-owner protection provision and its 

restoration provision in previous Section 817.124, on the grounds that it was supported by Section 515(b)(2) of the Act. 

Section 515(b)(2) only establishes a duty to restore the land which OSM views as extending only to the land in its 

unimproved or natural state. Thus, where both land and structures are materially damaged and where it would be easier 

for the operator to pay money damages to the surface owner, if there is liability under State law, rather than undertake 

any repair to the structure, the operator is nevertheless responsible for restoring the land. To the extent that restoration 

of the land causes further damage to structures and facilities, operator liability for that further damage will be determined 

under Section 507(f) of the Act in accordance with State law. 

 The authority of OSM to require an operator to compensate an owner for material damage to structures or facilities 

resulting from subsidence or to repair of such material damage derives from Section 507(f) of the Act. This authority was 

upheld by the district court in In re: Permanent Surface Mining Regulation Litigation, supra, and was one of the issues 

on appeal that must now be considered. Section 507(f) of the Act requires liability insurance for personal injury and 

property damage in an amount adequate to compensate any persons damaged as a result of surface coal mining and 

reclamation operations who are entitled to compensation under the applicable provisions of State law. Although the 

previous rule did not limit the compensation requirement to situations where liability exists under State law, a more 

precise reading of the Act requires the imposition of such a constraint in this final rule. This rule continues the previous 

provision requiring operator responsibility for material damage to structures or facilities to the extent an owner is entitled 

to compensation under State law. 

 This change in Section 817.121(c) lessens the concern that the contract in which the operator may have obtained the 

right to subside the surface under a structure will be impaired. One commenter pointed out the possible constitutional 

infirmity of State laws, which are a necessary consequence of a State obtaining primary regulatory responsibility, 

impairing the contract entered into between the purchaser or owner of the coal and the surface owner in which the 

surface owner may have waived the right to subjacent support. This issue will be avoided to the extent a waiver of 

surface support is recognized under State law because it will be given effect with respect to structures and facilities under 

Section 817.121(c)(2). To the extent that such a waiver includes damage to the land, it will not be recognized. Section 

817.121(c)(1) requires restoration of the land surface in all instances of material damage. No unconstitutional impairment 

of a contract is worked by the requirement for restoration of the land. The constitutionality of the Act has been upheld, 

although the issue raised in this comment was not involved. Hodel v. Va. Surface Mining and Reclam. Ass'n, 452 U.S. 
264 (1981) and Hodel v. Indiana, 452 U.S. 314 (1981). Because the Act is a valid exercise of the power to regulate 

interstate commerce, the contention is incorrect that a contractual right not to restore materially damaged land would be 

impermissibly impaired. 

 One commenter, representing the bituminous coal mining industry in Pennsylvania, argued that the legislative scheme 

established in that State, the Bituminous Mine Subsidence and Land Conservation Act of 1966 (Purdons), 52 Pa. Stat. 

Ann., Section 1406 et seq., which establishes classes of protected structures, Section 4, should be given deference. The 

change in this paragraph allows the Pennsylvania legislature's choice to protect certain classes of structures to stand. 

Thus, in Pennsylvania an occupied dwelling which is materially damaged either will have to be repaired by the operator or 

the owner will have to be compensated for the diminution in value, as the Bituminous Mine Subsidence Act now 

provides, if the dwelling was in existence when that act was passed into law in 1966. However, in other States which 

have not enacted special subsidence legislation, the uncodified State law will determine whether the operator is liable to a 

surface owner. Generally, the surface owner is entitled to a right of subjacent support. Thus, any damage to the surface 

owner's property would give rise to a claim against the mine operator. Liability of the operator where the owner of the 

surface facility may have conveyed the right to support or may have waived it will also be left to determination under 

State law. 

 One State requested that the rule be republished as a proposed rule if it is to be modified. While the final rule does 

represent a modification of the proposal, all changes are within the scope of the proposal. They have been made as the 

result of comments, in light of the remand order of the Court of Appeals and on the basis of OSM's reading of the Act. 

Therefore, the requested further comment period is rejected. 

 

SECTION 817.121(d) 

 Section 817.121(d) establishes a class of structures and features to which greater protection is owed because of their 

public character or important nature. For these features, it is particularly important that damage be prevented before it 

occurs and not that damage can be corrected afterwards. Specifically, Section 817.121(d) provides for the protection of 

public buildings and facilities; churches, schools, and hospitals; and impoundments with a storage capacity of 20 acre-feet 

or more or bodies of water with a volume of 20 acre-feet or more. It requires the underground mine operator to 

demonstrate to the regulatory authority that mining activities underneath or adjacent to such areas will not cause material 

damage or reduce the reasonably foreseeable use of those features or facilities. If the operator cannot so demonstrate, 

underground mining is prohibited in those areas. It also provides discretion to the regulatory authority to protect such 

features or facilities and any aquifer or body of water that serves as a significant water source for any public water supply

system from material damage by limiting the percentage of coal extracted under or adjacent thereto. 

 Paragraph (d) is founded on the authority in Sections 516(b)(1), (b)(7), (b)(8), (b)(9), and (c) of the Act among others. 

Section 516(b)(1) requires the adoption of measures to prevent subsidence and Section 516(c) recognizes a separate 

class of structures and areas for which greater protection is necessary. The district court in In re: Permanent Surface 

Mining Regulation Litigation, supra, upheld previous Section 817.126, which is similar to final Section 817.121(d). 14 

Envir. Rep. Cas. at 1109. In that case, industry's opposition to the provision was that there was no statutory authority for 

the prohibition feature of the section. However, the court upheld the rule, citing Section 516(b)(1) as general authority 

and Section 516(b)(9) as authority for the inclusion of streams, bodies of water, and aquifers. The validity of previous 

Section 817.126 was appealed and must be considered in this rulemaking in accordance with the previously referenced 

remand order of the U.S. Court of Appeals. 

 It is OSM's view that final Section 817.121(d) has a statutory basis for the reasons cited in OSM's brief to the U.S. 

Court of Appeals in the earlier case. However, on the basis of the comments on the proposed rule, several changes are 

made in the final rule. Section 817.121(d)(1), which provides protection for public buildings and facilities, tracks 

previous Section 817.126(c). Paragraph (d)(2) as proposed would have provided special protection for private facilities 

generally used by the public, such as churches, schools, and hospitals. To reduce uncertainty in application of this 

requirement which could have been interpreted more broadly than was intended, the final rule simply provides special 

protection for all churches, schools, and hospitals. This portion of the rule is broader than its predecessor, Section

817.126(c), which applied only to public buildings. 

 Section 817.121(d) (3) and (4), as proposed, would have required a showing of no material damage for bodies of 

water, including streams, impoundments, and aquifers. This is changed in the final rule to require a showing of no 
material damage only for mining under or adjacent to impoundments with a storage capacity of 20 acre-feet or more or 

bodies of water with a volume of 20 acre-feet or more. The second sentence of the proposed paragraph, which would 

have authorized the regulatory authority to prohibit or limit the amount of coal extracted from under the facilities listed in 

the first sentence, is changed in the final rule to extend the authorization to limit coal extraction to aquifers or bodies of 

water that serve as a significant source for any public water supply system. Thus, the protection afforded aquifers and

bodies of water, except for the specified impoundments or bodies of water, is now found in the second sentence of the 

paragraph. The explicit authority to prohibit mining has been removed because authority to limit the extent of coal 

extraction provides the necessary protection. The showing required for mining under perennial streams in proposed 

paragraph (d)(3) is removed in the final rule. The special protection afforded perennial streams is now limited to the 

power of the regulatory authority to suspend operations under paragraph (f) where an imminent danger is presented. This 

additional protection for streams is also unnecessary in light of the other rules implementing hydrologic-balance 

protection under Sections 510(b)(3) and 516(b)(9) of the Act. 

 Some commenters contended that proposed paragraph (d) cannot be founded on Sections 516(b)(1) and 516(c) of the 

Act and is in conflict with the Act. Several commenters asserted that OSM lacks authority to create areas where mining is

prohibited for the purpose of subsidence control. Also, a number of commenters objected to OSM's attempt to create 

areas where mining may be prohibited for the purpose of subsidence control and contended that the proposed paragraph 

was unreasonable, impossible, and unworkable. One commenter stated that the prohibition of mining in certain areas 

infringes upon the right of private ownership of property and suggested that this paragraph be deleted. 

 OSM disagrees. Section 817.121(d) does have a statutory basis, as noted above. The rule does not prohibit mining, it 

merely requires an advance showing or other measures to ensure that the potential for subsidence will be minimized and 

that material damage will not occur. 

 

SECTION 817.121(e) 

 Proposed paragraph (e) would have required the operator to remedy any subsidence-caused material damage and 

authorized the regulatory authority to suspend operations in order to modify the subsidence control plan when damage 

occurs. It is based on the statutory authority of Sections 516 (b) and (c). 

 The paragraph is modified in the final rule on the basis of the comments received and the intent not to repeat the 

requirements of Section 817.121(c). Rather than directing that remedial measures be undertaken once damage has 

occurred and specifically stating that steps be taken to prevent further damage, the final rule authorizes the regulatory 

authority to suspend mining under or adjacent to the features and facilities protected under paragraph (d) until the 

subsidence control plan is modified to prevent further material damage. Because the operator has to comply with his or 

her subsidence control plan, by implication the necessary steps will be taken. 

 One commenter suggested that "in the area of mining" be added immediately after "If such damage occurs, the 

regulatory authority may suspend further mining." The suggestion was made to clarify that the suspension of mining is 

only for the specific area where subsidence is causing material damage. 

 On the basis of this comment, the phrase "under or adjacent to such features or facilities" is added to the sentence after 

the provision for the suspension of operations. Thus, the regulatory authority may not suspend mining operations unless 

they are under or adjacent to the features and facilities listed in paragraph (d). 

 Another commenter contended that proposed Section 817.121(e) was beyond the statutory authority and is impractical. 

The paragraph is modified to remove the directive to undertake remedial measures once material damage affects the 

features and facilities listed in paragraph (d). The operator's responsibility for remedial measures is found in paragraph (c) 

and need not be repeated. The final rule is now tied to modification of the plan. It imposes the realistic obligation of plan

modification. There is a need to modify the plan because it was based on a determination that mining under or adjacent to 

the specially protected features and facilities would not cause material damage. 

 Several commenters stated that the provisions of this paragraph present several legal and practical problems because 

the operator could be subject to summary suspension of mining until his or her subsidence control plan is modified. 
 A suspension of mining is justified by the need to prevent further material damage to important surface features. The 

approval of a permit, including the subsidence control plan, is premised upon a finding that no material damage will occur 

to the specified features or facilities. If such damage has occurred, then that finding is no longer correct. Modification of

the subsidence control plan is thus necessary for the permit to remain valid. In these situations, the practical problems of 

the operator are outweighed by the need to protect the particular facilities. 

 

SECTION 817.121(f) 

 Paragraph (f) requires the regulatory authority to suspend operations when an imminent danger is presented to 

inhabitants of urbanized areas, cities, towns, and communities and areas adjacent to industrial or commercial buildings, 

major impoundments, or perennial streams. It directly implements Section 516(c) of the Act. 

 No comments on the paragraph were received. It is promulgated as proposed. 

 

SECTION 817.121(g) 

 Proposed Section 817.121(g) would have required the operator to submit a detailed subsidence control plan to provide 

the regulatory authority with information to evaluate the operator's estimate of the extent of expected subsidence and to 

determine whether the operator's plan is in compliance with the performance standards. As indicated above, OSM 

received numerous comments objecting to the detailed subsidence control plan. 

 The final rule deletes the requirement for a detailed subsidence control plan. Rather, it incorporates many of the aspects 

of the detailed plan in the requirement for a single subsidence control plan to be submitted with the permit application. As 

discussed earlier in this preamble, other aspects of the detailed subsidence control plan applicable to the evaluation of 

compliance with the performance standards have been included in the performance standard requirements of final Section

817.121(g). Under this section, an operator is required to demonstrate compliance with the performance standards by 

submission of a detailed plan of the underground workings under a schedule approved by the regulatory authority. The 

detailed plan must include maps and descriptions, as appropriate, of significant features of the underground mine, 

including the size, configuration, and approximate location of pillars and entries, extraction ratios, measures taken to 

prevent or minimize subsidence and related damage, areas of full extraction, and other information required by the 

regulatory authority. 

 The final rule reflects a recognition of the difficulty in inspecting underground workings from the surface. It is 

important that the regulatory authority be provided information on the underground activities by the operator so that 

compliance with the performance standards can be evaluated and documentation provided of compliance with the 

technology-based requirements of the subsidence control plan. This revised requirement also recognizes that the plan for 

underground mining necessarily progresses on the basis of the best information existing at any point as the mining 

proceeds. Information gathered underground on roof- and floor-rock conditions, safety hazards, and other features of the 

underground mine necessarily require a high degree of flexibility in development of the detailed plan for mining 

underground. Typically, this plan is revised on a near-daily basis as mining proceeds. The final rule recognizes this 

situation. 

 On the other hand, the subsidence control plan, submitted with the permit application, provides information on the 

underground areas where specific types of control technologies will be used, but does not require extensive information 

on the details of the underground workings. Submittal of such information can properly be delayed until the details of the 

mining operation are known more precisely. Thus, the final rule requires the submission of such information as a 

performance standard requirement while still providing the regulatory authority with the information necessary to 

evaluate a permit application, to monitor the impacts of mining on the surface, and to ensure compliance with the other 

performance standards. 

 The final rule also clearly provides that, upon request of the operator, information provided with the detailed plan may 

be held as confidential in accordance with the requirements of 30 CFR 773.13(d). The reference to Section 773.13(d) is 

based on the expected revision to that section published in Volume III of OSM's "Final Environmental Impact Statement 

OSM-EIS-1: Supplement." If that provision is not revised, a conforming technical amendment to this rule will be issued. 
 

SECTION 817.122 

 Final Section 817.122 provides for notice to persons who may be affected by subsidence. The statutory authority for 

the provision is found in Sections 513 and 516 of the Act. The proposed rule would have required notification to surface 

owners and occupants above the "area of expected subsidence" at least 6 months prior to mining. Due to comments 

received, the final rule is changed. A provision is added allowing for regulatory authority approval of less than 6 months 

advance notice. The term "area of expected subsidence" is not adopted. The final rule continues to apply the requirement 

of the previous rule that owners and occupants above "underground workings" be provided notice. 

 Some commenters argued that there is no need to inform surface owners of the possibility that subsidence will occur in 

situations where the operator will be adopting measures to prevent subsidence. OSM has not accepted this recommended 

change. The notice informs owners and occupants that subsidence "could" occur, not that it will occur. 

 Many commenters opposed the use of the term "area of expected subsidence" because the technology used to predict 

subsidence is not sufficiently developed for reasonable reliance. One commenter questioned if the phrase "area of 

expected subsidence" is used, then what would be the requirement for public notice for the area of unexpected 

subsidence. One commenter expressed concern about the term "expected subsidence" for fear that it would be subject to 

different interpretation and suggested that the term "planned subsidence" be used instead. This commenter also 

contended that this section should not apply to mine operators who plan to use methods approved by the regulatory 

authority to support the surface. 

 The phrase "area of expected subsidence" is not being adopted in this final rule and also is not being adopted in the final 

definition of "affected area" as was proposed. The notice requirement adopted will enable the operator to determine with 

certainty those persons who must receive notice, yet will be broad enough to inform potentially affected persons. The 

notice is to enable surface owners to take steps to protect their property. 

 Some commenters questioned OSM's authority on this section, and many commenters contended that public notice is 

unnecessary, burdensome and, in some circumstances, impossible. Some of these commenters advocated that the permit 

approval process would provide the public with sufficient information and notice. Also, they asserted that the operator's 

common-law duty to obtain subsidence rights or not to cause subsidence will assume that all surface owners are either 

notified or protected. 

 The notice requirement has been retained as a performance standard in the rules. Notice is considered appropriate 

because of the material damage that subsidence can cause. As mentioned above, the permit approval process is 

recognized as affording a degree of notice, but because of the seriousness of the damage that subsidence can cause, a 

direct notice is considered necessary to actually inform surface owners. 

 One commenter believed that all occupants above the underground workings should be notified. Another commenter 

indicated that this section would not apply to his State (Montana) because the mining activity would not be permitted 

until all owners of property over the area to be mined have signed over control of the property to the operator. 

 Previous Section 817.122 required notice to all persons residing on or owning property above the underground 

workings and adjacent areas. The final rule limits the notice requirement to the area above the underground workings. 

The term "adjacent areas" is not included because surface owners in potentially affected areas will be aware of mining 

when surface protection measures are taken in the vicinity. 

 One commenter suggested that the public notice should be a two-tiered approach, with notice to all the owners above 

the underground workings and related offsite areas. The first notice would include general information; and the second 

notice, which would be sent 6 months prior to mining, would include the information in the first notice and other more 

detailed information. This commenter also suggested that the reference to the subsidence control plan should include 

both the general and detailed plans. This commenter further expressed the concern that the public notice system does not 

take into account that an operator may change the mining and/or subsidence control plan well after the notice has been 

sent. 
 The rules already provide sufficient notice to surface owners and occupants. The operator must notify the public of the 

filing of a permit application by placing advertisements in local newspapers. Persons who may be affected by the 

operation have the opportunity to review the subsidence control plan and to object at that time. The public notice 

provided for in Section 817.122 is a direct one to individuals and is required to be given in advance of mining. The 

provision for general and detailed subsidence control plans in the proposed rule has not been adopted. Any significant 

revision of the subsidence control plan would constitute a permit revision and thus would be subject to public notice and 

opportunity to comment. 

 

C. CONCURRENT SURFACE AND UNDERGROUND MINING 

 Section 515(b)(12) of the Act sets the minimum interval between surface and underground mines at 500 feet unless a 

lesser interval is approved jointly by the agencies responsible for surface mining regulation and the health and safety of 

underground miners. Section 515(b)(16) of the Act provides for variance procedures to delay contemporaneous 

reclamation when surface and underground operations are to be conducted concurrently or sequentially. In 30 CFR 

Chapter VII, rules implementing these statutory provisions occur in companion sections in the permitting requirements 

under Part 785 and in the performance standards under Parts 816 and 817. Previously, special performance standards 

were included under Part 818, which is removed by this final rule. 

 

SECTION 785.18 

 The final rule maintains most of the provisions and language that were contained in the proposed rule, except that the 

words "or persons" are added after the words "any person" in final Section 785.18(a). This avoids the implication that 

combined surface and underground mining activities are necessarily conducted by the same company. Final Section

785.18 contains permitting provisions for variances for delay in contemporaneous reclamation in combined surface and 

underground mining activities. Proposed Section 785.18 was amended from the previous rule by revising paragraph (a), 

removing paragraph (b), redesignating paragraphs (c), (d), and (e) as paragraphs (b), (c), and (d), respectively, and 

revising the redesignated paragraphs (b)(4), (b)(7), (c)(6), (c)(7), and (c)(9) (ii) and (iii). All of those changes have been 

adopted in final Section 785.18. 

 One commenter remarked that proposed Section 785.18 implied that a variance for delay in contemporaneous 

reclamation for combined surface and underground activities can only be granted at the time of initial application for the 

surface permit. This commenter suggested that the rule should allow for a variance to be granted at any point in the 

mining where the operator may reach a decision to combine surface and underground mining to optimize the recovery of 

the coal resource to the extent that the request is timely and does not unnecessarily delay reclamation prior to approval of 

the underground operation. 

 If the operator reaches a decision after the initial application for the permit is filed to utilize a combination of surface 

and underground mining activities, the operator can file an application for a variance in conjunction with the application 

for permit revision or a separate permit for underground mining activities. A permit revision or new application can be 

filed at any time. Consequently, no change in the proposed rule need be made as the result of this comment. 

 Another commenter suggested that in proposed Section 785.18(a), "(persons)" be added after the word "person" to 

avoid the assumption that combined surface and underground mining are to be used by the same company. OSM agrees, 

and the suggestion has been accepted and is incorporated in final Section 785.18(a). 

SECTION 816.79 

 As authorized by Section 515(b)(12) of the Act, final Section 816.79 requires a 500-foot separation in all directions 

between surface mining activities and underground mine workings. Variances from this distance require special approval. 

One change from the proposed rule has been made to final Section 816.79(b), as described below. 

 One commenter remarked that proposed Section 816.79 caused considerable confusion as to its meaning, because it 

has been the commenter's experience that the Mine Safety and Health Administration (MSHA) does not care to approve 

surface coal mining operations when only an abandoned underground mine is involved. 
 A second commenter requested clarification of the requirement in proposed Section 816.108(e) for approval of auger 

holes in accordance with Section 816.79. Having experienced difficulty in attempting to get MSHA approval for augering 

near an abandoned underground mine, the commenter asserted that MSHA wanted to be involved in the approval process

only where augering near an active underground mine could affect the miners' safety. To eliminate the confusion existing 

in many States, this commenter recommended that Section 816.79 be revised to provide for two distinct approval 

methods, one for active mines including MSHA approval and another for abandoned mines eliminating the need for 

MSHA approval. 

 Another commenter also asserted that it is extremely difficult to obtain the assistance of mine safety agency personnel 

in arriving at joint approval of plans for surface mining near underground workings. The reasons indicated by this 

commenter are that mine safety agencies (1) have limited resources for such "off-budget" activities as those joint 

approvals, (2) are under no legal mandate to perform the joint investigations and approvals, and (3) are reluctant to take 

the extra responsibility that could accrue in the event an incident could lead to court action against the agency. This 

commenter therefore concluded that proposed Section 816.79 imposes an unnecessary hardship upon the operator, who 

has no control over the actions of the mine safety agency or agencies. 

 OSM recognizes that operators may have problems when dealing with joint approval by more than one agency on 

certain operations. Joint approval for combined surface and underground operations, however, is specifically required by 

Section 515(b)(12) of the Act. OSM has, however, reconsidered the requirements of Section 515(b)(12) and has decided 

to revise the final rule in response to the comments. Section 515(b)(12)(A) requires joint approval only for "specific 

underground activities" by the regulatory authority and the agency concerned with the "health and safety of underground 

miners." For abandoned underground mines, there are no "specific underground activities." Therefore, OSM is accepting 

the recommendation to require joint approval only when surface mining within 500 feet of "active" underground mines. 

Approval of the regulatory authority will still be required under this section for both active and abandoned underground 

mines to show that the proposed activities will result in improved resource recovery, abatement of water pollution, or 

elimination of hazards to the health and safety of the public. In addition, if an abandoned underground mine becomes 

active, joint approval will then be required. 

 One commenter remarked that proposed Section 816.79(a) appears to be consistent with the law and difficult to 

criticize. This commenter, however, indicated that the proposed rule may be redundant with MSHA's regulation at 30 

CFR 77.1000 which requires the operator to establish and follow a ground-control plan which must be approved by 

MSHA prior to any mining activities. This commenter consequently concluded that proposed Section 816.79(a) could be 

eliminated with no effect upon existing rules or the health and safety of coal miners and that the requirement of the Act 

would still be met. 

 This suggestion was not accepted. Section 515(b)(12) of the Act specifically requires a joint decision on the close 

proximity of surface and active underground mining operations. 

 One commenter asserted that proposed Section 816.79 does not recognize the fact the District Mining Supervisors of 

the Minerals Management Service also exercises approval authority for any sequence of mining operations conducted on 

Federal lands. 

 Compliance with other Federal, State, and local regulations for mining activities is assumed to be understood by mine 

operators. Proposed and final Section 785.18(c)(3) also address this point. 

 Two commenters opposed the total elimination of previous Part 818. They contended that its elimination would 

remove a number of important standards not found elsewhere in the rules, including (1) several important criteria for 

determining when and where a variance can be granted, (2) the requirement for a 500-foot coal barrier between surface 

and underground mining in a single seam, and (3) the requirement for sufficient vertical distance between surface and 

underground mines. One of the commenters further asserted that the protection provided the public health and safety has 

not been as adequately addressed in proposed Section 816.79 as it was in previous Part 818. 

 In response to the above comments, OSM notes that (1) an application for variances for delay in contemporaneous 

reclamation must identify specific surface areas for which a variance is sought, as required in proposed and final Section

785.18(b)(3); and (2) a permit incorporating a variance may not be issued unless the regulatory authority finds that the 

permit contains a detailed schedule for compliance with applicable provisions, as indicated in proposed and final Section
785.18(c)(9)(iii). Consequently, OSM has, in fact, addressed the criteria for determining where and when a variance can 

be granted. As to the comments on the elimination of the requirement on the 500-foot coal barrier between surface and 

underground mines in a single seam and the requirement of sufficient vertical distance, OSM believes that the language of 

"no closer than 500 feet to any point" as specified in proposed and final Section 816.79 adequately addresses these 

criteria. In the preamble to previous Section 816.79, OSM specified that the measurement must be a 500-foot spherical 

radius; that is, 500 feet in separation in all directions between surface and underground operations. 44 FR 15208-15209,

March 13, 1979. OSM still maintains this interpretation of Section 515(b)(12) of the Act. Finally, it is OSM's belief that 

the health and safety of the public has been adequately covered in proposed and final Section 816.79 and that the health 

and safety of mine workers has been adequately addressed in MSHA's rules, such as 30 CFR 77.1000. On the basis of the 

above discussion, it is concluded that the elimination of previous Part 818 is justified. 

 

SECTIONS 816.100 and 817.100 

 Final Sections 816.100 and 817.100 implement the requirements of the Act, Section 515(b)(16), that all reclamation 

efforts must proceed in an environmentally sound manner and as contemporaneously as practicable with the mining 

operations. The proposed and final rules also make it clear that variances from the contemporaneous reclamation 

requirements are permissible under Section 515(b(16) of the Act and Section 785.18 of the rules. In final Sections

816.100 and 817.100, OSM has added a sentence to allow the regulatory authority to establish timing and distance 

schedules that define contemporaneous reclamation. This is done in response to comments on proposed Section 816.101 

which address backfilling and grading requirements. 

 The proposed backfilling and grading rules removed the timing and distance requirements in previous Section

816.101(a) for rough backfilling and grading of contour, open pit, and area surface mining operations. The change was 

proposed since a detailed timetable for each step in the reclamation plan is required by 30 CFR 780.18(b)(1), and the 

specific design criteria would more properly be included in a technical handbook (47 FR 26762, June 21, 1982). 

 Most State regulatory authorities supported the deletion of the timing and distance requirements for backfilling and 

grading since it grants additional flexibility to them. However, they requested authorization to specify these requirements 

for their State programs. They believed some criteria are necessary to eliminate constant disputes between the regulatory 

authority and the operator on what constitutes contemporaneous reclamation. Another State wanted flexibility to set 

requirements which are needed to maintain contemporaneous and quality reclamation. One State believed that national 

guidance is appropriate with respect to time periods and suggested setting the times based on mining method and 

technology. The suggested time periods for backfilling and grading various types of mining operations would fall within 

the scope of contemporaneous reclamation. They also indicated that any standard should have an "escape" clause. The 

escape clause would allow the regulatory authority to approve different time periods if the mine conditions or other sitespecific conditions made it impossible to meet the established standards. 

 One commenter believed that the rationale given in the preamble to the proposed rules for deleting the time and 

distance requirements was insufficient. He felt that the timetable in the previous rule was well explained and should not 

be changed, because one of the chief purposes of the Act is to establish minimum national standards that all operators 

have to meet. The commenter also stated that specific requirements are necessary as enforcement measures, because 

under the proposed rules the inspector would be unable to detect violations without review of the permit and that 

parameters must be established within which compliance can be measures. 

 Under these final rules, the standards established by the regulatory authority should be as effective as those in the 

previous rules, which allowed the regulatory authority to grant additional time for backfilling and grading when a need 

was demonstrated by the operator. Now the regulatory authority can establish a time table, one which is more in keeping 

with conditions within the State, and can probably reduce the number of waiver requests received from operators. 

 OSM believes that different State time frames for backfilling will not affect interstate competition, as stated by one 

commenter. The cost to backfill an area would likely be the same whether it is accomplished early or late in the mining 

process. 

 
III. PROCEDURAL MATTERS 

 

Executive Order 12291 and the Regulatory Flexibility Act 

 

Executive Order 12291 

 The Department of the Interior (DOI) has examined these rules according to the criteria of Executive Order 12291 

(February 17, 1981). OSM has determined that these are not major rules and do not require a regulatory impact analysis 

because they will impose only minor costs on the coal industry and coal consumers. 

 

Regulatory Flexibility Act 

 The DOI has also determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C 601 et seq., that these rules will not 

have a significant economic impact on a substantial number of small entities. These final rules will allow small coal 

operators increased flexibility in meeting performance standards and should especially ease the regulatory burden on 

small coal operators in Appalachia. 

 

National Environmental Policy Act 

 OSM has analyzed the impact of these final rules in its "Final Environmental Impact Statement OSM-EIS-1: 

Supplement" (FEIS) according to Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA) (42 

U.S.C. 4332(2)(C)). The FEIS is available at OSM's Administrative Record in Room 5315, 1100 L Street, NW., 

Washington, D.C. or by mail request to Mark Boster, Chief, Branch of Environmental Analysis, Room 134, Interior 

South Building, U.S. Department of the Interior, Washington, D.C. 20240. This preamble serves as the record of 

decision under NEPA. These final rules differ from the draft final rules published in Volume III of the FEIS in the 

following respects: 

 (1) Section 784.20 has a number of clarifications and editorial changes, including the removal of a sentence in Section

784.20(d)(5) of the draft final rules requiring inclusion in the map of underground workings of the areas where 

subsidence control measures will be taken. This requirement has been included in final Section 784.24(b). Another such 

change is a slight rewording of Section 784.20(c). These changes do not affect the FEIS analysis. 

 (2) Final Section 784.20(f) differs from the corresponding provision described in Volume III of the FEIS in recognizing 

the distinction in operator responsibility established in Section 817.121(c) between subsidence-related material damage to 

land and such damage caused to structures or facilities. The effect of this change would fall within the discussion of 

Section 817.121(c) in the FEIS. 

 (3) Final Section 817.121(c)(2) differs from the corresponding provision in Volume III of the FEIS by stating 

specifically that repair of damage includes rehabilitation, restoration, and replacement and that compensation may be 

accomplished by the purchase of a prepaid noncancellable insurance policy. These features were contained in previous

Section 817.124. Their retention in final Section 817.121(c) thus lessens the adverse impacts of draft final Section

817.121(c) as discussed in the FEIS. 

 (4) Final Section 817.121(d)(3) applies to impoundments with a storage capacity of 20 acre-feet or more or bodies of 

water with a volume of 20 acre-feet or more, rather than just to dams impounding such bodies of water as described in 

the FEIS. This requirement is similar to the proposed Section 817.121(d) contained in Alternative C of the FEIS and was 

contained in previous Section 817.126(a) encompassed by Alternative B. The removal of the specific proposed reference 

to perennial streams is of minor environmental effect because material damage to the hydrologic balance should be 

considered under Section 817.41. Final Section 817.121(d) broadens the authority of the regulatory authority to prevent 

subsidence causing material damage from that in draft final Section 817.121(d) of the FEIS by extending it to all of the 

features or facilities covered by Section 817.121 (d)(1), (d)(2), and (d)(3), rather than just applying to certain aquifers or 

bodies of water. This final rule will have lesser impacts than the corresponding provision in the FEIS. 

 (5) The word "further" has been added to final Section 817.121(e). This clarifies the intent of the provision, but does 

not change its effect. 

 (6) Final Section 817.122 allows notice to surface owners within 6 months of mining only if approval is obtained from 

the regulatory authority. Draft final Section 817.122 in the FEIS allowed such notice as soon as practicable before 

mining, without regulatory authority approval. This change will have no environmental effect. 
 Thus, to the extent that these final rules differ from the preferred alternative published in Volume III of the FEIS, they 

fall within the impacts and analysis discussed therein. 

 

Federal Paperwork Reduction Act 

 The information collection requirements in final Sections 784.20 and 785.18 have been approved by the Office of 

Management and Budget (OMB) under 44 U.S.C. 3507 and assigned clearance numbers 1029-0039 and 1029-0040. 

OSM has codified the OMB approvals under final Sections 784.10 and 785.10 (47 FR 33683, August 4, 1982). 

 The information required will be used by the regulatory authority in monitoring and inspecting surface and underground

mining activities to insure that they are conducted in a manner which preserves and enhances environmental and other 

values of the Act. This information required by these rules is mandatory. 

 

Agency Approval 

 Section 516(a) of the Act requires that, with regard to rules directed toward the surface effects of underground mining, 

OSM must obtain written concurrence from the head of the department which administers the Federal Mine Safety and 

Health Act of 1977, the successor to the Federal Coal Mine Health and Safety Act of 1969. OSM has obtained the 

written concurrence of the Assistant Secretary for Mine Safety and Health, U.S. Department of Labor. 

 

LIST OF SUBJECTS 

 

30 CFR Part 784 

 Coal mining, Reporting and recordkeeping requirements, Underground mining. 

 

30 CFR Part 785 

 Coal mining, Reporting and recordkeeping requirements, Surface mining, Underground mining. 

30 CFR Part 816 

 Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining. 

 

30 CFR Parts 817 and 818 

 Coal mining, Environmental protection, Reporting requirements, Underground mining. 

 Accordingly, Parts 784, 785, 816, 817, and 818 of Title 30, Chapter VII, Subchapters G and K of the Code of Federal 

Regulations are amended as set forth herein. 

Dated: April 15, 1983. 

William P. Pendley, Acting Assistant Secretary, Energy and Minerals. 

PART 784 -- UNDERGROUND MINING PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR 

RECLAMATION AND OPERATION PLAN 

 1. Section 784.20 is revised to read as follows: 

SECTION 784.20 - SUBSIDENCE CONTROL PLAN. 

 The permit application shall include a survey which shall show whether structures or renewable resource lands exist 

within the proposed permit area and adjacent area and whether subsidence, if it occurred, could cause material damage or 

diminution of reasonably foreseeable use of such structures or renewable resource lands. If the survey shows that no such 

structures or renewable resource lands exist, or no such material damage or diminution could be caused in the event of 

mine subsidence, and if the regulatory authority agrees with such conclusion, no further information need be provided in 

the application under this section. In the event the survey shows that such structures or renewable resource lands exist, or 

that subsidence could cause material damage or diminution of value or foreseeable use of the land, or if the regulatory 

authority determines that such damage or diminution could occur, the application shall include a subsidence control plan 

which shall contain the following information: 
(a) A description of the method of coal removal, such as longwall mining, room-and-pillar removal, hydraulic mining, or 

other extraction methods, including the size, sequence, and timing for the development of underground workings. 

(b) A map of underground workings which describes the location and extent of areas in which planned-subsidence mining 

methods will be used and which includes all areas where the measures described in paragraph (d) of this section will be 

taken to prevent or minimize subsidence and subsidence-related damage. 

(c) A description of the physical conditions, such as depth of cover, seam thickness, and lithology, which affect the 

likelihood or extent of subsidence and subsidence-related damage. 

(d) Except for those areas where planned subsidence is projected to be used, a detailed description of the subsidence 

control measures that will be taken to prevent or minimize subsidence and subsidence-related damage, including, but not 

limited to -- 

(1) Backstowing or backfilling of voids; 

(2) Leaving support pillars of coal; 

(3) Leaving areas in which no coal is removed, including a description of the overlying area to be protected by 

leaving the coal in place; 

(4) Taking measures on the surface to prevent material damage or lessening of the value or reasonably 

foreseeable use of the surface; and 

(5) Monitoring to determine the commencement and degree of subsidence so that other appropriate measures 

can be taken to prevent or reduce material damage. 

(e) A description of the anticipated effects of planned subsidence, if any. 

(f) A description of the measures to be taken in accordance with Section 817.121(c) of this chapter to mitigate or remedy 

any subsidence-related material damage to, or diminution in value or reasonably foreseeable use of -- 

(1) The land, or 

(2) Structures or facilities to the extent required under State law. 

(g) Other information specified by the regulatory authority as necessary to demonstrate that the operation will be 

conducted in accordance with the performance standards of Section 817.121 of this chapter for subsidence control. 

PART 785 -- REQUIREMENTS FOR PERMITS FOR SPECIAL CATEGORIES OF MINING 

 2. Section 785.18 is revised to read as follows: 

SECTION 785.18 - VARIANCES FOR DELAY IN CONTEMPORANEOUS RECLAMATION 

REQUIREMENT IN COMBINED SURFACE AND UNDERGROUND MINING ACTIVITIES. 

(a) Scope. This section shall apply to any person or persons conducting or intending to conduct combined surface and 

underground mining activities where a variance is requested from the contemporaneous reclamation requirements of 

Section 816.100 of this chapter. 

(b) Application contents for variances. Any person desiring a variance under this section shall file with the regulatory 

authority complete applications for both the surface mining activities and underground mining activities which are to be 

combined. The reclamation and operation plans for these permits shall contain appropriate narratives, maps, and plans, 

which -- 

(1) Show why the proposed underground mining activities are necessary or desirable to assure maximum 

practical recovery of the coal; 

(2) Show how multiple future disturbances of surface lands or waters will be avoided; 

(3) Identify the specific surface areas for which a variance is sought and the sections of the Act, this chapter, 

and the regulatory program from which a variance is being sought; 

(4) Show how the activities will comply with Section 816.79 of this chapter and other applicable requirements 

of the regulatory program; 
(5) Show why the variance sought is necessary for the implementation of the proposed underground mining 

activities; 

(6) Provide an assessment of the adverse environmental consequences and damages, if any, that will result if the 

reclamation of surface mining activities is delayed; and 

(7) Show how offsite storage of spoil will be conducted to comply with the requirements of the Act, Sections

816.71-816.74 of this chapter, and the regulatory program. 

(c) Issuance of permit. A permit incorporating a variance under this section may be issued by the regulatory authority if 

it first finds, in writing, upon the basis of a complete application filed in accordance with this section, that -- 

(1) The applicant has presented, as part of the permit application, specific, feasible plans for the proposed 

underground mining activities; 

(2) The proposed underground mining activities are necessary or desirable to assure maximum practical 

recovery of the mineral resource and will avoid multiple future disturbances of surface land or waters; 

(3) The applicant has satisfactorily demonstrated that the applications for the surface mining activities and 

underground mining activities conform to the requirements of the regulatory program and that all other permits necessary 

for the underground mining activities have been issued by the appropriate authority; 

(4) The surface area of surface mining activities proposed for the variance has been shown by the applicant to be 

necessary for implementing the proposed underground mining activities; 

(5) No substantial adverse environmental damage, either onsite or offsite, will result from the delay in 

completion of reclamation otherwise required by Section 515(b)(16) of the Act, Part 816 of this chapter, and the 

regulatory program; 

(6) The operations will, insofar as a variance is authorized, be conducted in compliance with the requirements of 

Section 816.79 of this chapter and the regulatory program; 

(7) Provisions for offsite storage of spoil will comply with the requirements of Section 515(b)(22) of the Act, 

Sections 816.71-816.74 of this chapter, and the regulatory program; 

(8) Liability under the performance bond required to be filed by the applicant with the regulatory authority 

pursuant to Subchapter J of this chapter and the regulatory program will be for the duration of the underground mining 

activities and until all requirements of Subchapter J and the regulatory program have been complied with; and 

(9) The permit for the surface mining activities contains specific conditions -- 

(i) Delineating the particular surface areas for which a variance is authorized; 

(ii) Identifying the applicable provisions of Section 515(b) of the Act, Part 816 of this chapter, and the 

regulatory program; and 

(iii) Providing a detailed schedule for compliance with the provisions of this section. 

(d) Review of permits containing variances. Variances granted by permits issued under this section shall be reviewed by 

the regulatory authority no later than 3 years from the dates of issuance of the permit and any permit renewals. 

PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING 

ACTIVITIES 

 3. Section 816.79 is revised as follows: 

SECTION 816.79 - PROTECTION OF UNDERGROUND MINING. 

 No surface mining activities shall be conducted closer than 500 feet to any point of either an active or abandoned 

underground mine, except to the extent that -- 

(a) The activities result in improved resource recovery, abatement of water pollution, or elimination of hazards to the 

health and safety of the public; and 

(b) The nature, timing, and sequence of the activities that propose to mine closer than 500 feet to an active underground 

mine are jointly approved by the regulatory authority, the Mine Safety and Health Administration, and the State agency, 

if any, responsible for the safety of underground mine workers. 
 4. Section 816.100 is revised to read as follows: 

SECTION 816.100 - CONTEMPORANEOUS RECLAMATION. 

 Reclamation efforts, including but not limited to backfilling, grading, topsoil replacement, and revegetation, on all land 

that is disturbed by surface mining activities shall occur as contemporaneously as practicable with mining operations, 

except when such mining operations are conducted in accordance with a variance for concurrent surface and 

underground mining activities issued under Section 785.18 of this chapter. The regulatory authority may establish 

schedules that define contemporaneous reclamation. 

PART 817 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- UNDERGROUND MINING 

ACTIVITIES 

 5. Section 817.100 is revised to read as follows: 

SECTION 817.100 - CONTEMPORANEOUS RECLAMATION. 

 Reclamation efforts, including but not limited to backfilling, grading, topsoil replacement, and revegetation, on all areas 

affected by surface impacts incident to an underground coal mine shall occur as contemporaneously as practicable with 

mining operations, except when such mining operations are conducted in accordance with a variance for concurrent 

surface and underground mining activities issued under Section 785.18 of this chapter. The regulatory authority may 

establish schedules that define contemporaneous reclamation. 

 6. Section 817.121 is revised to read as follows: 

SECTION 817.121 - SUBSIDENCE CONTROL. 

(a) The operator shall either adopt measures consistent with known technology which prevent subsidence from causing 

material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value 

and reasonably foreseeable use of surface lands; or adopt mining technology which provides for planned subsidence in a 

predictable and controlled manner. Nothing in this part shall be construed to prohibit the standard method of room-andpillar mining. 

(b) The operator shall comply with all provisions of the approved subsidence control plan prepared pursuant to Section

784.20 of this chapter. 

(c) The operator shall -- 

(1) Correct any material damage resulting from subsidence caused to surface lands, to the extent technologically 

and economically feasible, by restoring the land to a condition capable of maintaining the value and reasonably 

foreseeable uses which it was capable of supporting before subsidence; and 

(2) To the extent required under State law, either correct material damage resulting from subsidence caused to 

any structures or facilities by repairing the damage or compensate the owner of such structures or facilities in the full 

amount of the diminution in value resulting from the subsidence. Repair of damage includes rehabilitation, restoration, or 

replacement or damaged structures or facilities. Compensation may be accomplished by the purchase prior to mining of a 

noncancellable premium-prepaid insurance policy. 

(d) Underground mining activities shall not be conducted beneath or adjacent to 

(1) public buildings and facilities; 

(2) churches, schools, and hospitals; or 

(3) impoundments with a storage capacity of 20 acre-feet or more or bodies of water with a volume of 20 acrefeet or more, unless the subsidence control plan demonstrates that subsidence will not cause material damage to, or 

reduce the reasonably foreseeable use of, such features or facilities. If the regulatory authority determines that it is 

necessary in order to minimize the potential for material damage to the features or facilities described above or to any 
aquifer or body of water that serves as a significant water source for any public water supply system, it may limit the 

percentage of coal extracted under or adjacent thereto. 

(e) If subsidence causes material damage to any of the features or facilities covered by paragraph (d) of this section, the 

regulatory authority may suspend mining under or adjacent to such features or facilities until the subsidence control plan 

is modified to ensure prevention of further material damage to such features or facilities. 

(f) The regulatory authority shall suspend underground mining activities under urbanized areas, cities, towns, and 

communities, and adjacent to industrial or commercial buildings, major impoundments, or perennial streams, if imminent 

danger is found to inhabitants of the urbanized areas, cities, towns, or communities. 

(g) Within a schedule approved by the regulatory authority, the operator shall submit a detailed plan of the underground 

workings. The detailed plan shall include maps and descriptions, as appropriate, of significant features of the 

underground mine, including the size, configuration, and approximate location of pillars and entries, extraction ratios, 

measure taken to prevent or minimize subsidence and related damage, areas of full extraction, and other information 

required by the regulatory authority. Upon request of the operator, information submitted with the detailed plan may be 

held as confidential, in accordance with the requirements of Section 773.13(d) of this chapter. 

 7. Section 817.122 is revised to read as follow: 

SECTION 817.122 - SUBSIDENCE CONTROL: PUBLIC NOTICE. 

 At least 6 months prior to mining, or within that period if approved by the regulatory authority, the underground mine 

operator shall mail a notification to all owners and occupants of surface property and structures above the underground 

workings. The notification shall include, at a minimum, identification of specific areas in which mining will take place, 

dates that specific areas will be undermined, and the location or locations where the operator's subsidence control plan 

may be examined. 

SECTIONS 817.124 and 817.126 [Removed] 

 8. Sections 817.124 and 817.126 are removed. 

PART 818 -- SPECIAL PERMANENT PROGRAM PERFORMANCE STANDARDS -- CONCURRENT 

SURFACE AND UNDERGROUND MINING [REMOVED] 

 9. Part 818 is removed. 

Authority: 30 U.S.C. 1201 et seq. 

[FR Doc. 83-14631 Filed 5-31-83; 8:45 am] 

BILLING CODE 4310-05-M