16722 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Parts 701, 784, 817, and 843

RIN 1029–AB69

Permanent Regulatory Program;

Underground Mining Permit

Application Requirements;

Underground Mining Performance

Standards

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) of

the U.S. Department of the Interior

(DOI) is amending the regulations

applicable to underground coal mining

and control of subsidence-caused

damage to lands and structures and

certain water supplies, through the

adoption of permitting requirements,

performance standards, and

implementation procedures. The

regulations will require all underground

coal mining operations conducted after

October 24, 1992, to promptly repair or

compensate for material damage to noncommercial buildings and occupied

residential dwellings and related

structures as a result of subsidence due

to underground coal mining operations,

and to replace drinking, domestic, and

residential water supplies which have

been adversely affected by underground

coal mining operations. The rule will

require repair of damage to include

rehabilitation, restoration, or

replacement of the identified structures,

or compensation to the owners in the

full amount of the diminution in value

resulting from the subsidence. A presubsidence survey will be required to

document the condition of noncommercial buildings and occupied

residential dwellings and related

structures subject to subsidence-related

damage caused by underground mining

activities. The survey will also be

required to document the quantity and

quality of all drinking and domestic

water supplies that could be

contaminated, diminished, or

interrupted by subsidence. In addition,

a permittee will be required to provide,

when necessary, an additional

performance bond to cover subsidencerelated damage that has occurred to

protected structures or water supplies.

Within 120 days from the publication

of the rule, OSM will, in consultation

with the State Regulatory authority,

determine for each State with an

approved State regulatory program, the

enforcement procedures to ensure

prompt compliance with section 720(a)

of the Surface Mining Control and

Reclamation Act (SMCRA) and the

implementing regulations. The

performance standards implementing

section 720(a) are set forth in 30 CFR

§§ 817.41(j) and 817.121(c)(2) and (c)(4).

OSM will determine for each such State

whether to apply (1) direct interim

Federal enforcement of the Energy

Policy Act and implementing

performance standards, for some or all

surface coal mining operations; or (2)

the oversight procedures of §§ 843.11

and 843.12(a)(2); or (3) a combination of

direct Federal enforcement and State

enforcement. As part of the

determination process, OSM will

consult with each affected State and

provide opportunity for public

comment. For each State, OSM will

publish its determination in the Federal

Register.

EFFECTIVE DATE: May 1, 1995.

FOR FURTHER INFORMATION CONTACT:

Nancy R. Broderick, Branch of Federal

and Indian Programs, Office of Surface

Mining Reclamation and Enforcement,

U.S. Department of the Interior, 1951

Constitution Avenue, NW., Washington,

DC 20240; telephone (202) 208–2564.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Discussion of Rule and Response to Public

Comments.

III. Procedural Matters.

I. Background

Energy Policy Act

The Energy Policy Act of 1992, Pub.L.

102–486, 106 Stat. 2776 (1992)

(hereinafter, ‘‘the Energy Policy Act’’)

was enacted October 24, 1992. Section

2504 of that Act, 106 Stat. 2776, 3104,

amends the Surface Mining Control and

Reclamation Act of 1977 (SMCRA), 30

U.S.C. 1201 et seq. As noted in the

legislative history describing a

predecessor to section 2504, the section

‘‘provides for greater stability in the

surface mining act program by settling

controversies over subsidence

protection.’’ H.R. Rep. No. 474, 102d

Cong., 2d Sess. pt. 8 at 86 (1992). The

report also states that ‘‘at present,

OSM’s regulations do not protect

coalfield citizens from the types of

damages that can occur from land

subsidence caused by underground coal

mining, either in the form of

compensation for, or repair of, damages

to homes and other structures as well as

replacement of adversely affected water

supplies.’’ Id.

Section 2504 of the Energy Policy Act

added a new section 720 to SMCRA.

Section 720(a)(1) requires that all

underground coal mining operations

conducted after October 24, 1992,

promptly repair or compensate for

material damage to non-commercial

buildings and occupied residential

dwellings and related structures as a

result of subsidence due to underground

coal mining operations. Repair of

damage includes rehabilitation,

restoration, or replacement of the

structures identified by section

720(a)(1), and compensation must be

provided to the owners in the full

amount of the diminution in value

resulting from the subsidence. Section

720(a)(2) requires prompt replacement

of certain identified water supplies

which have been adversely affected by

underground coal mining operations.

Under section 720(b), the Secretary of

the Interior is required to promulgate

final regulations to implement the

provisions of section 720(a) by October

24, 1993.

On September 24, 1993 (58 FR 50174),

OSM published a proposed rule to

amend the regulations applicable to

underground coal mining and control of

subsidence-caused damage to lands and

structures through the adoption of a

number of permitting requirements and

performance standards. The regulatory

and litigation history of relevant

subsidence control issues addressed in

this final rule was contained in the

preamble to the proposed rulemaking.

58 FR 50175, 50177 (September 24,

1993). In addition to the provisions

intended to implement new SMCRA

section 720, the proposed rule included

other subsidence-related provisions.

These additional provisions were

developed to address issues raised by

commenters’ responses to a July 18,

1991 Notice of Inquiry soliciting public

comment on existing subsidence

regulations. OSM indicated in the

proposed rule that it contemplated that

the rules implementing SMCRA section

720 would immediately supersede

inconsistent state performance

standards, and would take effect

immediately, applicable to underground

mining that occurred after October 24,

1992. OSM anticipated that all other

provisions would become effective in

the same way as other revisions to the

permanent program regulations; i.e., 30

days following of promulgation for

Federal program States and on Indian

lands, and upon the adoption of

counterpart State regulatory program

provisions in primacy States.

OSM held public hearings on the

proposed subsidence rule in Harrisburg,

Pennsylvania, November 8, 1993;

Columbus, Ohio, November 9, 1993;

Whitesburg, Kentucky, November 16,

1993; Salt Lake City, Utah, November
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16723

17, 1993; Washington, DC, November

19, 1993; and Washington,

Pennsylvania, November 22, 1993. The

comment period for the proposed rule

closed on January 24, 1994 (as extended

on November 22, 1993, 58 FR 61638).

Over 275 commenters submitted

comments on the proposed rule.

One commenter initially submitted a

petition for rulemaking that requested

the Secretary to finalize the rules

proposed on September 24, 1993

regarding the regulation of water loss

and property damage caused by

underground coal mining operations,

and until such regulations are

promulgated, to impose a moratorium

on the issuance of new underground

mining permits if such operations

would present a high risk of subsidencerelated damage. In a subsequent letter,

the commenter stipulated that they did

not intend the petition to be considered

a petition for rule-making as provided in

SMCRA section 201(g)(1) et seq.

In the course of analyzing the

comments received on the proposed

rule, OSM discussed subsidence-related

issues with coal operators and citizens

during an on-site tour of coal fields. As

a result, OSM reopened the comment

period to allow interested persons time

to review additional material which

consisted of meeting notes from these

discussions and handouts and a video

tape received during the field tour. 59

FR 37952–37953 (July 26, 1994). This

information was added to the

Administrative Record and was also

available for review at the OSM offices

in Pittsburgh, PA; Denver, CO;

Harrisburg, PA; Columbus, OH;

Knoxville, TN; and Lexington, KY.

In the Federal Register notice to

reopen the comment period, OSM took

the opportunity to respond to comments

received during the initial comment

period on the proposed rule, and to

requests by States and OSM field offices

to clarify the requirement for

replacement of water supplies. OSM

requested specific comment on an

alternative provision to clarify the

requirement under sections 717(b) and

720(a)(2) of SMCRA that an operator

replace certain types of water supplies.

Under the alternative, when the owner

confirms in writing that the owner does

not desire replacement of the water

delivery system, and no such system is

needed for either the existing or

approved postmining land uses, the

permittee may provide replacement of

the water supply by demonstrating that

an equivalent water source exists that

can be developed if desired by future

owners. OSM received 26 comments

during the comment period which

closed on August 25, 1994.

The requirements to repair or

compensate for damage to structures,

and replace water supplies, were

effective upon passage of the Energy

Policy Act. Permittees in both primacy

States and Federal program States, as

well as on Indian lands, are required to

comply with these provisions of the

Energy Policy Act for their operations

conducted after October 24, 1992. In the

proposed rulemaking, each regulatory

authority was encouraged, pending

direct enforcement in a State, to conduct

investigations of any complaints

alleging violations of the nature covered

under new section 720(a). This was

intended to ensure that circumstances at

a site of alleged violations were

observed and documented

contemporaneously, and that the

documentation would be available for

later enforcement action if necessary.

OSM conducted investigations of

complaints reported to OSM if the State

regulatory authority chose not to

conduct an investigation. OSM and

most State regulatory authorities

ensured that complaints were

documented and a record of alleged

violations was maintained.

Promulgation of final Federal

regulations is necessary to enforce the

Energy Policy Act requirements to

repair or compensate for damages, and

replace an adversely affected water

supply, due to underground coal

operations that occurred after October

24, 1992.

II. Discussion of Final Rule and

Response to Public Comments

Section 701.5—Definitions

The following definitions of terms are

adopted in the final rulemaking:

‘‘drinking, domestic or residential water

supply,’’ ‘‘material damage,’’ ‘‘noncommercial building,’’ ‘‘occupied

residential dwelling and structures

related thereto,’’ and ‘‘replacement of

water supply.’’ The proposed definition

of the term ‘‘structures or facilities’’ is

not being adopted.

Definition of Drinking, Domestic or

Residential Water Supply

The definition for drinking, domestic

or residential water supply is being

adopted with changes. ‘‘Drinking,

domestic or residential water supply’’

would mean water received from a well

or spring and any appurtenant delivery

system that provides water for direct

human consumption or household use.

Wells and springs that serve only

agricultural, commercial or industrial

enterprises are not included except to

the extent they also supply water for

drinking, sanitation or other domestic

use, for such enterprises.

Several commenters agree with OSM

that the definition is needed to

implement SMCRA Section 720(a)(2),

which requires prompt replacement of

certain identified water supplies which

have been adversely affected by

underground coal mining operations.

Commenters also concur with the

proposed definition to the extent it

excludes water from wells or springs

that serve only commercial agricultural

or other commercial or industrial

enterprises and do not supply drinking

water. In response to a recommendation

by commenters, OSM recognizes that

water pooled in abandoned

underground workings could be used as

a water supply for drinking, domestic or

residential uses, and that it is not

uncommon in certain areas for

individual residents or communities to

obtain their water supply by

withdrawing water from such

underground workings. In such cases,

the underground workings reasonably

may be described as equivalent to a well

or spring.

A number of commenters argue that

inclusion of the appurtenant delivery

system in the definition goes beyond the

mandate of the Energy Policy Act. OSM

concludes that inclusion of the delivery

system as part of the water supply is

imperative to fulfilling Congressional

intent to protect drinking, domestic and

residential water supplies. OSM

believes that to provide otherwise

would fail to ensure meaningful

replacement of water to the user,

because delivery is essential to provide

a water supply at the point of use or

consumption. OSM believes inclusion

of the delivery system is therefore

necessary to make whole the user of a

protected water supply. OSM believes

this is what Congress intended.

A significant number of commenters

recommend that agricultural water

supplies, including water used to keep

stock animals, should be protected.

OSM believes that the Energy Policy Act

mandates protection of water supplies

used for drinking, domestic and

residential purposes. In implementing

this mandate, OSM believes it is

reasonable to distinguish commercial

agricultural and horticultural uses of

water from domestic uses such as noncommercial farming, gardening and

other horticultural activities. OSM

concludes that the terms ‘‘domestic’’

and ‘‘residential’’ are intended to have

broader meaning than merely drinking

water for human consumption. Rather,

these terms reasonably should be

understood to include a full range of

domestic uses, including irrigation of
16724 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

non-commercial gardens and

agricultural fields, and use of well and

spring water for household purposes

other than human consumption. OSM

believes it is reasonable to interpret the

language of the Energy Policy Act to

distinguish private homeowners from

commercial and other non-domestic

water supply users. Many rural

homeowners conduct extensive noncommercial domestic agricultural and

horticultural activities, as an integral

and even essential part of a homestead.

Failure to require replacement of the

water supply needed for such domestic

agricultural and horticultural uses

would fail to make the residential user

whole. Therefore, OSM believes this

protection reasonably implements the

Energy Policy Act.

Definition of Material Damage

The definition of material damage is

being adopted as proposed. The term

material damage, in the context of

§§ 784.20 and 817.121 of this chapter,

means any functional impairment of

surface lands, features, structures or

facilities. The material damage

threshold includes any physical change

that has a significant adverse impact on

the affected land’s capability to support

any current or reasonably foreseeable

uses, or that causes significant loss in

production or income, or any significant

change in the condition, appearance or

utility of any structure or facility from

its pre-subsidence condition. It would

also include any situation in which an

imminent danger to a person would be

created.

A number of commenters opposed the

definition of material damage as being

too broad and subjective. The

commenters added that extending the

definition to include impairment of

surface lands or physical change that

adversely impacts the land’s capability,

goes beyond the requirements of the

Energy Policy Act. The commenters

claim that the Energy Policy Act does

not necessitate that OSM adopt a

national definition for material damage

especially since there currently is no

national definition of this term as it is

used in SMCRA. The commenters rely

on the history of the term material

damage to assert that the reasons that

OSM has not defined the term in the

past are applicable to implementing the

Energy Policy Act. The commenters go

on to state that a national definition

would lead to needless litigation as the

term is applied to a wide variety of

circumstances, and the task of defining

the term is better left to the individual

regulatory authorities, who could define

the term in a manner appropriate for

their respective jurisdictions. The

commenters argue that the problem with

a national definition is further

exacerbated by the vague terms used to

define material damage. The

commenters add that the terms

‘‘functional impairment’’ and

‘‘significant adverse impact’’ do not

provide much guidance when applying

the definition of material damage to a

wide variety of situations and

circumstances.

Another group of commenters identify

two perceived problems with the

proposed definition of material damage.

First, the definition fails to explicitly

include the loss of value to the land or

structures as being material damage.

The commenters allege that the Energy

Policy Act language supports a ‘‘loss of

value’’ component to the definition by

providing for repair or compensation

‘‘in the full amount of the diminution in

value from the subsidence’’. The

commenters note that under the

proposed definition, subsidence damage

that did not impair the function of a

structure but did result in damage that

caused the fair market value of the

structure to decline, even to the point

where the structure could not be sold on

the market, would not be considered

material damage.

These commenters point out a second

perceived problem with the proposed

definition. They consider that the use of

the qualifier ‘‘significantly’’ in the

definition creates too high a threshold of

‘‘materiality’’ and charged that the result

is a definition that is contrary to the

remedial purposes of SMCRA and the

Energy Policy Act. They add that the

proposed high threshold of materiality

would not allow all of the injured

property owners the ability to benefit

from the full protection intended by

Congress. The commenters also

maintain that the rules fail to establish

the context in which significant would

be defined. The commenters

recommend that the term

‘‘significantly’’ be dropped from the

definition, and that the definition be

clarified to include the loss of value to

the land or structures as material

damage, and modified to reflect their

belief that Congress intended a low

threshold for material damage.

OSM has considered these comments,

but is not adopting these changes. OSM

believes that the final definition of

material damage is supported by both

SMCRA and the Energy Policy Act. It is

both necessary and appropriate to

provide an overall policy framework at

the national level, within which the

state regulatory authorities may

continue to make individual

determinations of ‘‘material damage.’’ It

is OSM’s conclusion, based on its

experience and its observation and

evaluation of regulatory program

implementation, that such a national

policy framework is needed to confer an

appropriate minimum degree of

consistency in the determinations made

by the regulatory authorities and to

ensure a level playing field. The

definition of ‘‘material damage’’ covers

damage to the surface and to surface

features, such as wetlands, streams, and

bodies of water, and to structures or

facilities. OSM believes the final rule

language will still allow each regulatory

authority to clarify or more specifically

define the term, if appropriate, and to

use it in a manner appropriate for

subsidence problems in the individual

jurisdiction. OSM believes the use of the

term ‘‘significant’’ is consistent with the

commonly understood meaning of the

term ‘‘material,’’ as ‘‘substantial;

noticeable;’’ or ‘‘of importance.’’ See

American Heritage Dictionary, Second

College Edition. OSM believes this

meaning is also consistent with the

context in which the term ‘‘material

damage’’ is used, both in the Energy

Policy Act and in other provisions of

SMCRA. OSM believes that if an impact

is insignificant, then the regulatory

authority could reasonably conclude

that the damage is not material. OSM

intends that the determination as to the

significance of impact should be made

on a case-by-case basis, depending on

the individual circumstances. Moreover,

OSM intends that any damage that

causes the value of a structure to decline

materially would be covered by the

definition, including damage to the

condition, appearance, or utility of the

structure.

OSM believes this definition strikes a

balance that will, on the one hand,

provide some additional guidance,

while on the other hand ensuring

enough flexibility to support OSM’s

position that determinations as to

material damage should be made on a

case-by-case basis. Thus, OSM wishes to

emphasize that it is the responsibility of

the regulatory authority to make specific

determinations on a case-by-case basis

as to what would constitute material

damage under its regulatory program,

consistent with the final definition in

paragraph 701.5. This will ensure that

the term is applied appropriately to the

subsidence problems in each

jurisdiction.

Definition of Non-Commercial Building

The definition of the term ‘‘noncommercial building’’ is being adopted

as proposed with minor changes. A noncommercial building would mean any

building, other than an occupied

residential dwelling, that, at the time
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16725

the subsidence occurs, is used on a

regular or temporary basis as a public

building or community or institutional

building as those terms are defined in

§ 761.5 of this chapter. Buildings used

only for commercial agricultural,

industrial, retail or other commercial

enterprises are excluded.

A number of commenters agree that

the definitions for ‘‘non-commercial

buildings’’ and ‘‘occupied residential

dwelling and structures related thereto’’

are needed to implement section 2504 of

the Energy Policy Act, which requires

all underground coal mining operations

to promptly repair or compensate for

material damage to non-commercial

buildings and occupied residential

dwellings or related structures as a

result of subsidence due to underground

mining operations.

In response to a commenter, OSM has

revised the proposal to clarify that

‘‘commercial’’ agricultural enterprises

are excluded. The definition specifically

provides that buildings used only for

commercial agricultural and other

commercial use are not covered in the

definition of ‘‘non-commercial’’

building. Further, the definition

requires that the non-commercial use of

a building exist on a regular or

temporary basis at the time subsidence

damage occurs.

Definition of Occupied Residential

Dwelling and Related Structures

This provision as proposed defined

the term ‘‘occupied residential dwelling

and related structures’’ as any building

or other structure that, at the time

subsidence occurs, is used for human

habitation. This definition in the final

rule is revised by adding the phrase

‘‘temporarily, occasionally, seasonally,

or permanently’’ used for human

habitation.

OSM agrees with the commenters that

the definition of an ‘‘occupied

residential dwelling and structures

related thereto’’ should be revised to

protect dwellings that are not occupied

on a daily basis but are occupied at

some time. This change is intended to

recognize that dwellings such as rental

homes, seasonal homes, and camping

cabins are entitled to protection. This

term also would include any building,

structure, or facility installed on, above,

or below, or a combination thereof, the

land surface if that building, structure,

or facility is adjunct to or used in

connection with the occupied dwelling,

including non-commercial agricultural

and horticultural activities. Examples of

such structures include, but are not

limited to, garages; storage sheds and

barns; greenhouses and related

buildings; utilities and cables serving

the dwelling; fences and other

enclosures; retaining walls; paved or

improved patios, walks and driveways;

septic sewage treatment facilities; and

lot drainage and lawn and garden

irrigation systems. Any structure used

only for commercial agricultural,

industrial, retail, or other commercial

purposes would be excluded.

OSM recognizes that a similar term

‘‘occupied dwelling’’ is currently

defined in 30 CFR 761.5 as ‘‘any

building that is currently being used on

a regular or temporary basis for human

habitation.’’ This term is so defined for

purposes of Part 761, which implements

SMCRA § 522(e)(5), and which, with

certain exceptions, does not allow

surface coal mining operations to be

conducted within 300 feet of any

‘‘occupied dwelling.’’ OSM has adopted

a somewhat different definition for the

term ‘‘occupied residential dwelling’’

for purposes of implementing the

Energy Policy Act provisions

concerning subsidence control, because

of the different purposes served by the

definitions and the different language of

the Energy Policy Act.

A group of commenters suggest that

the definition is overly broad and

should be limited to the intentions of

Congress found in the Energy Policy Act

which were meant to protect only

residences and their water supplies.

OSM disagrees with the commenters’

characterization of congressional intent.

OSM maintains that the definition for

‘‘occupied residential dwelling and

structures related thereto’’ is needed to

implement Section 2504 of the Energy

Policy Act of 1992, which requires all

underground coal mining operations to

promptly repair or compensate for

material damage to non-commercial

buildings and occupied residential

dwellings and related structures as a

result of subsidence due to underground

mining operations.

Definition of Structures or Facilities

In the proposed rule, OSM defined

structures and facilities as any building,

constructed object or improvement

whether installed on, above, or below

the land surface, including, but not

limited to, park facilities; roads;

cemeteries; utilities; fences and other

enclosures; retaining walls; and septic

sewage treatment, irrigation and

drainage systems.

Commenters argue that the Energy

Policy Act does not specifically address

commercial and certain other noncommercial structures. In addition, the

commenters note that there is no need

for the expanded definition because

current regulations already provide for

adequate protection of buildings and

structures from underground mining.

One commenter noted that a broad

definition of the term ‘‘structures or

facilities’’ is supported by the House

Committee Report accompanying the

House revisions to the Energy Policy

Act:

It is the Committee’s intent that the

terms ‘‘structure or facility’’ be

construed to extend to any improvement

on or in the land, such as houses;

buildings; gas, water, sewage or other

pipelines; telephone, electric and other

cables; and water impoundments.

H.R. Rep. No. 474, 102d Cong. 1st Sess.,

pt. 8, at 133 (1992).

However, this report accompanied a

previous version of the Energy Policy

Act, which was not passed. And that

earlier version, unlike the Energy Policy

Act, did not require that OSM prepare

a study to evaluate existing subsidence

protections of pipelines, before any

decision on rulemakings to make

changes in protection of pipelines.

Therefore, OSM believes that the quoted

language is not dispositive as to

Congress’ intent on interpretation of the

term.

OSM considered all comments on the

proposed definition, and reevaluated its

position on this provision. OSM agrees

with those commenters who argue that

section 2504 of the Energy Policy Act

did not mandate protection of structures

and facilities beyond those specifically

noted in section 2504 of the Energy

Policy Act, and OSM has concluded that

the record does not clearly establish that

a nation-wide problem exists requiring

further subsidence protection of

structures and facilities not specifically

mentioned in section 2504. Therefore,

OSM has decided to address in this

rulemaking only those structures

addressed in the Energy Policy Act.

Therefore OSM is withdrawing the

proposed definition and performance

standards concerning the term

‘‘structures and facilities.’’

A number of commenters urge that

OSM take various steps in this

rulemaking to clarify or change existing

subsidence control requirements

concerning protection of natural gas and

petroleum pipelines. Other commenters

request that OSM confirm in this

rulemaking the applicability of existing

rules to such pipelines. However, OSM

has concluded that any actions in this

rulemaking to clarify, change or

otherwise evaluate existing subsidence

control requirements for protection of

such pipelines would be premature and

contrary to Congressional intent as

expressed in the Energy Policy Act of

1992. That act provided, in section

2504(a)(2), that:
16726 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

(A) The Secretary of the Interior shall

review existing requirements related to

underground coal mine subsidence and

natural gas and petroleum pipeline

safety. Such review shall consider the

following with respect to subsidence:

notification; mitigation; coordination;

* * * and the status of Federal, State

and local laws, as well as common law,

with respect to prevention or mitigation

of damage from subsidence.

(B) The review shall also include a

survey of the status of Federal, State,

and local laws, with respect to the

responsibilities of the relevant parties

for costs resulting from damage due to

subsidence or from mitigation efforts

undertaken to prevent damage from

subsidence.

(C) In conducting the review, the

Secretary * * * shall consult with

* * * the Attorney General of the

United States, appropriate officials of

relevant States, and owners and

representatives of natural gas and

petroleum pipeline companies and coal

companies.

Subsection (2)(D) requires the

Secretary to submit a report detailing

the results of the review to specified

Congressional committees. Subsection

(2)(D) also provides that:

Where appropriate, the Secretary of

the Interior shall commence a

rulemaking to address any deficiencies

in existing law determined in the review

under subparagraph (A) regarding

notification, coordination and

mitigation.

Thus, Congress directed that OSM

review and report on the status of

existing Federal law and consult with

the Attorney General in that review,

and, where appropriate, commence a

rulemaking to address any deficiencies

identified in the review. OSM believes

it would be premature to summarize the

status of existing law or clarify or revise

existing law, before the mandated

review and report are finished. OSM is

currently in the process of completing

the report. Therefore, in this rulemaking

OSM will not address the status of

existing law protecting natural gas and

petroleum pipelines from subsidence.

Similarly, OSM will not clarify or

change existing law, except that, as

discussed elsewhere in this rulemaking,

OSM is interpreting section 720 to

require that individual pipeline

connectors attached to structures

otherwise protected under section 720

are subject to the protections of section

720. OSM has concluded that this

limited protection is necessary to ensure

that owners of otherwise protected

structures are made whole when

material damage occurs. Any action

appropriate to clarify or revise the

application of subsidence performance

standards to natural gas and petroleum

pipelines will be taken after completion

and distribution of the review and

report.

Definition of Replacement of Water

Supply

The definition of the term

‘‘replacement of water supply’’ is being

adopted as proposed with additional

changes. In the final rule, ‘‘replacement

of water supply’’ means, with respect to

protected water supplies contaminated,

diminished, or interrupted by coal

mining operations, the provision of a

water supply on both a temporary and

permanent basis, which is equivalent to

the premining quantity and quality.

Replacement includes provision of an

equivalent water delivery system and

payment of operation and maintenance

costs in excess of customary and

reasonable delivery costs for the

premining water supply. The definition

is applicable to both underground coal

mining operations and surface mining

operations that affect water supplies.

The final rule is intended to apply to

replacement of water supply under both

sections 717(b) and 720(a)(2) of SMCRA.

Several commenters assert that the

proposed requirement that the permittee

pay for the operation and maintenance

costs of the replacement water supply

goes beyond the statutory requirements

of the Energy Policy Act which only

requires the ‘‘replacement’’ of the water

supply. OSM does not agree. OSM

maintains that payment of replacement

water supply operation and

maintenance costs in excess of

premining costs is a logical aspect of the

requirement to replace the water supply.

This provision would ensure that the

owner or user of the water supply is

made whole, and that no additional

costs are passed on to the water supply

user after the replacement water supply

is installed, beyond those that are

customary and reasonable for the

premining supply. The definition

contemplates that the permittee will pay

the capital costs of installing the

replacement water supply. For example,

if the use of well water can continue,

the permittee would pay the cost of

designing, drilling, and completing a

new or deeper well; purchasing and

installing a pump; and/or purchasing

and installing a treatment system, as

necessary. If the replacement water

supply involves a hook-up to a public

or private water supply system, the

permittee would pay the hook-up costs,

including fees, purchase of equipment

and supplies, and construction. If a

temporary water supply is necessary

before the permanent replacement water

supply is provided, the permittee would

pay the cost of providing the temporary

water supply.

A number of commenters support the

requirement for the payment of

operation and maintenance costs in

excess of the customary and reasonable

costs for the delivery of the premining

water supply. However, the commenters

suggested OSM consider a lump sum

payment as an alternative to annual

payments for operation and

maintenance costs for a permanent

water supply. OSM has considered the

commenters’ views and has decided to

adopt most of these suggestions. If

agreed to by the water supply owner, a

one-time payment based on the present

worth of the increased annual operating

costs for a period of time agreed upon

by the water supply owner and the

permittee would be considered an

acceptable method to fulfill the

obligation to pay for the operation and

maintenance costs of a permanent water

supply in excess of customary and

reasonable premining costs. A lump

sum payment may be preferable to

annual or other periodic payments

because only one transaction is needed.

Annual payment is not assured if the

permittee encounters financial

difficulties or goes out of business.

Periodic payments could involve

complex calculations and excessive and

unproductive paperwork and recordkeeping. Provision for a lump sum

payment should reflect the predicted

useful life of a water supply delivery

system. For example, 20 years could be

a reasonable amount of time to hold a

permittee responsible for costs when the

delivery system from a spring or well

would likely have required repairs

within the 20-year period even if the

spring or well had not been affected by

mining.

Commenters argue that the definition

should state that the replacement water

supply need only provide the quantity

and quality required for actual use. In

addition, the commenters recommend

that the phrase ‘‘provision of an

equivalent water delivery system’’ be

deleted because the proposed definition

appears to limit replacement to water

delivery systems. Under this condition

the permittee would not be able to

replace the water supply by any means

other than a ‘‘water delivery system.’’

OSM maintains that the provision of

water quality and quantity equivalent to

that of premining supplies is plainly

required by the term ‘‘replacement.’’

Replacement of the delivery system is a

reasonable aspect of replacement. The

requirement of replacement of water

supply includes replacement at no

significant cost to the water supply
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16727

owner above that which was being paid

by the owner for water supply prior to

the damage. The obligation of the

Energy Policy Act is to replace the

supply, as noted in the legislative

history. OSM believes that to require

that the water supply owner be made

whole without imposing significant

additional costs will most reasonably

implement the Energy Policy Act.

A commenter recommends that the

definition of ‘‘replacement’’ address

time limits for providing both interim

replacement and permanent

replacement. The commenter

recommends a 48-hour time period to

provide a temporary replacement and 1–

2 years to provide permanent

replacement. OSM agrees that some

guidance on the issue of timing of water

supply replacement would aid in

consistent implementation of

replacement requirements. If a

temporary water supply is needed

before the permanent replacement water

supply is provided, it is reasonable to

expect that the permittee will provide

replacement within a reasonable

amount of time. OSM believes that

prompt replacement should typically

provide: emergency replacement,

temporary replacement, and permanent

replacement of a water supply. Upon

notification that a user’s water supply

was adversely impacted by mining, the

permittee should reasonably provide

drinking water to the user within 48

hours of such notification. Within two

weeks of notification, the permittee

should have the user hooked up to a

temporary water supply. The temporary

water supply should be connected to the

existing plumbing, if any, and allow the

user to conduct all normal domestic

usage such as drinking, cooking,

bathing, and washing. Within two years

of notification, the permittee should

connect the user to a satisfactory

permanent water supply. This guidance

is intended to assist regulatory

authorities in deciding if water supplies

have been ‘‘promptly’’ replaced.

A commenter expresses concern that

adoption of the provision to require

both underground mining operations

and surface mining operations to

replace water supplies would violate the

Administrative Procedure Act (APA).

The commenter charges that surface

mine operators were not given adequate

notice and opportunity to comment on

the proposed provision. OSM disagrees.

The proposed definition was explicitly

applicable to surface mining (See 58 FR

50178, September 24, 1993), and the

proposed rule invited all interested

parties to submit comments on the

provision.

A commenter notes that the definition

does not address the doctrine of prior

appropriation and state law regarding

the replacement of water rights and

requested that the definition include a

reference to state law. OSM has

concluded that no such discussion is

required in this definition. As discussed

in more detail below in the preamble

discussion of section 817.42(j), neither

this definition nor the requirement to

replace drinking, domestic, and

residential water supplies are intended

to affect rights to consume or

legitimately use a water supply under a

senior water right pursuant to State law.

Commenters argue that it would be

inappropriate to require replacement of

a water supply that is not needed for the

approved postmining land use. In

addition, OSM received requests from

States and OSM field offices to clarify

the requirement for replacement of

water supplies. In response to these

comments, OSM considered an

alternative provision for replacement of

water supplies. In the July 26, 1994,

notice reopening the public comment

period on the proposed rule to provide

for review and comment on additional

information added to the Administrative

Record, OSM requested comments on

the proposed alternative provision for

water supply replacement (59 FR

37953). This provision provides that

when the property owner confirms in

writing that the owner does not desire

replacement of the delivery system, and

no such system is in use at the time of

loss, contamination, or interruption, and

no such system is needed for the

approved postmining land uses, then

the permittee may provide replacement

of the water supply by demonstrating

that an equivalent water source exists

that can be developed if desired by

future owners. Under this provision an

owner could forgo replacement of the

water delivery system if the system is

not needed for maintenance of the

existing land use or attainment of the

postmining land use. The permittee

would still be required to demonstrate

the availability of a water source

equivalent to premining quantity and

quality, so that the current owner or his

or her successor could utilize the water

if desired in the future. Where the

spring or well also serves other

purposes, the quantity of the

replacement supply only needs to be

equivalent to the premining water

supply for drinking, domestic, or

residential use.

The majority of commenters support

OSM’s effort to reduce unnecessary,

useless, and burdensome expenses for

water replacement. Other commenters

characterize the proposed provision as

inconsistent with the Energy Policy Act

requirement to replace the affected

water supply, and assert that there is no

authority to waive water replacement, in

the absence of explicit statutory

authorization of waiver. These

commenters allege that the permittee is

obliged to replace the water supply,

including the delivery system, at no

additional cost to the owner. The

commenters alleged that the proposed

provision would extinguish the

replacement rights of tenants, fails to

protect the reasonably foreseeable uses

and values of property, and fails to

ensure implementation of hydrological

protection provisions of SMCRA.

OSM does not agree that this

provision would fail to ensure

implementation of the hydrologic

protection requirements of sections

816.41 and 817.41. Existing

requirements remain in place, and the

permittee must comply with them. OSM

expects that any water rights of tenants

vis-a-vis a landlord may properly be

protected under the terms of the

applicable lease for the property. OSM

also does not agree that this provision

will fail to protect the reasonably

foreseeable uses and values of the

property, since any decision to forego

construction of a delivery system must

be consistent with the postmining land

use, and the permittee is still required

to ensure that a water source equivalent

to premining quality and quantity is

available.

OSM has decided to adopt the

provision outlined in the Federal

Register notice reopening the comment

period on the proposed rule. Thus, the

owner would have the option of

foregoing installation of a delivery

system, in those circumstances in which

the system would be neither wanted or

needed, and would not be used if

installed. This provision would ensure

that all coal mining operations must be

conducted so that water resources

remain to support the existing and

proposed use of the land. The only

feature that may be waived is a water

delivery system that would not be used

for the postmining land use, and was

not needed for the land use that existed

before mining. Also, the permittee must

demonstrate the availability of a water

source equivalent to premining quality

and quantity. Therefore, OSM believes

that the final rule ensures compliance

with the Energy Policy Act and section

717 of SMCRA in all essential respects,

while avoiding unneeded expense.

Section 784.10—Information Collection

OSM is revising Section 784.10 which

contains the information collection

requirements for Part 784 and the Office
16728 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

of Management and Budget (OMB)

clearance number. The revision updates

the data contained in the section by

including the estimated reporting

burden per respondent for complying

with the information collection

requirements.

The collections of information

contained in Part 784 have been

approved by Office of Management and

Budget under 44 U.S.C. 3501 et seq. and

assigned clearance number 1029–0039.

The information will be used to meet

the requirements of 30 U.S.C. 1211(b),

1251, 1257, 1258, 1266, and 1309a. The

obligation to respond is required to

obtain a benefit.

Several commenters asserted that the

public reporting burden for the

requirements proposed for Part 784 is

far greater than that estimated by OSM.

They believe that OSM has

miscalculated the differences between

existing regulations and the proposed

regulations, and underestimated the

burden on industry to complete the

hydrologic information, the presubsidence survey and the subsidence

control plan.

Based on the comments received,

OSM has recalculated the estimated

burden hours required to comply with

the new requirements. Specifically,

commenters claimed that the new

requirements of section 784.14 would

increase the hydrologic monitoring

burden placed on industry.

Accordingly, OSM has modified the

burden estimate to include the new

requirements for section 784.14.

Several commenters also disagreed

with OSM’s burden estimates to

complete the requirements of section

784.20. The expanded requirements

include preparation of a pre-subsidence

survey which entails preparing a map,

a narrative, and a survey, and a

subsidence control plan.

Only three commenters submitted

comments which contained data on

burden hours or the number of

structures involved in a pre-subsidence

survey. One commenter, a coal

company, provided a per structure

burden hour, ranging from 3.33–4 hours

per structure. The same commenter

stated that a recent permit revision

submittal for a 5,000 acre permit in a

rural area contained 300 structures

which, if the new requirements were in

place, would have required a presubsidence survey taking approximately

1,000+ hours to conduct. One

commenter, a major trade association for

the coal industry, stated that in the

Appalachian region where over 90

percent of all producing underground

coal mines are located, between 6 to 12

structures per permit would require a

pre-subsidence survey. Another

commenter stated that a recent premining survey in Appalachia had

required a total of 300 man-hours;

however, the commenter did not

provide data on the number of

structures involved.

Using the data supplied by

commenters, OSM has recalculated the

estimated average burden hours for a

pre-subsidence survey at 163.20 hours

per permit (12 structures×4

hours×90%+300 structures×4

hours×10%=163.20 hours). This

includes the time for reviewing

instructions, searching existing data

sources, gathering and maintaining the

data needed, and completing and

reviewing the collection of information.

OSM considers this to be a very

conservative estimate. OSM is required

under the Paperwork Reduction Act to

renew its information collection

clearance every three years. As part of

that process, OSM publishes a notice in

the Federal Register requesting

comments on the estimated burden

hours. At the first renewal of the

clearance, OSM will be able to refine

this estimate for pre-subsidence surveys,

based on factual information concerning

coal industry compliance with the new

requirement. The total information

collection burden for Part 784, the

burden for the pre-subsidence survey

and all other requirements, is estimated

at 513 hours. This is the time required

for a respondent to comply with all of

the reporting requirements in Part 784.

Section 784.14(e)(3)(iv)—Hydrologic

Information

This provision was proposed as

784.14(e)(3)(v), and has been adopted

with some modification in the final rule.

Under the final rule, the permit

applicant will be required to identify

whether the underground mining

activities conducted after October 24,

1992, may result in contamination,

diminution or interruption of a well or

spring which is in existence at the time

the permit application is submitted and

which is used for domestic, drinking, or

residential use within the proposed

permit or adjacent areas. Authority for

the new requirement may be found in

SMCRA sections 201(b)(2), 507(b)(11),

508(a)(13), and 720(b). These sections

authorize the imposition of

requirements to submit information

needed to implement the performance

standard in paragraph 817.41(j).

Several commenters object to the

proposed requirement that an

assessment of probable hydrologic

consequences be done for agricultural

and industrial water supplies in permit

or adjacent areas, noting that SMCRA

does not authorize the replacement of

water supplies for these uses.

Consequently, these commenters believe

that a requirement that the PHC

determination include any assessment

of the potential effect of mining on these

supplies is inappropriate. OSM has

decided to require replacement only of

those types of water supplies specified

in the Energy Policy Act, and has

decided to withdraw the provision

which was published as proposed

paragraph 784.14(e)(3)(iv), and which

would have established a broader

information requirement for water

supplies than is required to implement

the Energy Policy Act.

Several commenters assert that the

probable hydrologic consequences

regulations duplicate much of the

existing requirements for hydrologic

impact assessments as currently

required in SMCRA. In addition, the

commenters noted that State regulatory

agencies already have authority in

paragraph 784.14(e)(3) that allows State

agencies to require any information they

deem necessary to ensure enforcement

of the regulations and effective

implementation of SMCRA. The

commenters maintained that the

proposed rules would generate

significant inconsistencies which will

result in total confusion for both the

State regulatory agency and the coal

mining community.

The requirement at 784.14(e)(3)(iv)

does not duplicate the existing authority

in paragraph 784.14; rather, the

requirement in paragraph (e)(3)(iv) adds

certain wells and springs to the existing

list under 784.14(e)(3) of features to be

covered in a determination of probable

hydrologic consequences. This

requirement implements the parallel

performance standards at 817.41.

Paragraph (e)(3)(iv) ensures that the

requirements of 784.14(e)(3) apply to

certain wells and springs within the

proposed permit area or adjacent area.

The requirement would ensure that,

prior to mining, the permittee

demonstrate whether the proposed

operation may result in contamination,

diminution, or interruption of a well or

spring within a proposed permit area or

adjacent area which is used for

domestic, drinking or residential

purposes.

A commenter alleged that the

background data to determine the flow

of water, either from a well or a spring,

should be normalized for historic

parameters to account for extended

drought conditions. The commenter

went on to note that replacing water at

levels measured during dry conditions

results in replacement at diminished

levels.
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16729

OSM understands that certain wells

and springs may pose problems for

sampling to determine water

replacement levels. However, OSM

believes that the current regulations

implementing those requirements, at

784.14(b) (1) and (2), are adequate to

determine the level of a water supply

equivalent to the premining water

supply and to determine the presence of

heavy metals in the water. These

regulations require the application to

include information on ground water

and surface water quality and quantity

sufficient to demonstrate seasonal

variation and water usage. In addition,

the requirement to include an analysis

of both suspended and dissolved

constituents provides adequate

information to determine the presence

of heavy metals in the water supply.

Moreover, throughout the application

process, the regulatory authority may

require additional information

necessary to assure that the proposed

operation will protect the hydrologic

balance, or otherwise necessary to

understand the potential impacts of the

operation.

One commenter characterized the

requirement for baseline information for

the permit and adjacent areas as flawed

because many States do not consider

lands overlying underground workings

to be within either the permit area or the

adjacent area. Therefore, many wells

above or close to underground workings

would not be surveyed and there would

not exist any baseline against which to

measure future damage and build an

enforceable case for replacement of

water rights.

OSM does not agree with this

characterization. The term ‘‘adjacent

area,’’ as defined in 30 CFR 701.5,

specifically includes all areas outside

the permit area where resources,

including wells or springs, could

reasonably be expected to be adversely

impacted by the proposed mining

operation, including probable impacts

from underground workings. The 1979

version of this definition similarly

included all lands containing

potentially affected protected resources

outside the permit area. All State

programs must contain provisions no

less effective than the Federal

regulations. OSM is not aware of any

State that has a deficient definition of

‘‘adjacent area’’ or its equivalent. Nor is

OSM aware of any State that is

interpreting its program in the manner

alleged by the commenter. Therefore,

OSM finds no basis for the commenter’s

concern.

A commenter expressed concerns as

to how an existing operation could

demonstrate that it has not adversely

impacted a well or spring that serves a

water supply, when drought, rather than

underground mining, is the primary

factor affecting a water supply. The

commenter noted that an existing

operation would not have prepared a

presubsidence survey to establish

baseline water conditions. OSM believes

such questions are evidentiary issues

that must be addressed reasonably on

the facts of the individual case, just as

such issues are now addressed for

replacement of water supplies affected

by surface mining. As noted elsewhere

in this preamble, a permittee may also

voluntarily provide a presubsidence

survey.

Section 784.20(a)—Pre-subsidence

Survey

This section as proposed would add

a paragraph to § 784.20(a), entitled ‘‘Presubsidence Survey.’’ In response to

comments and requests for clarification

concerning the scope of the rulemaking

and of this paragraph, the proposed

requirement is being adopted with

modifications in this final rule. The rule

language has been revised to provide

that each application include a map of

the proposed permit area and adjacent

area at a scale of 1:12,000 or a larger

scale if determined necessary by the

regulatory authority. The map would

show the type and location within the

proposed permit area or adjacent area,

of structures and renewable resource

lands that subsidence may materially

damage, or for which the reasonably

foreseeable use may diminished by

subsidence. The maps would also be

required to show the type and location

within the proposed permit area or

adjacent area, of drinking, domestic, and

residential water supplies that could be

contaminated, diminished, or

interrupted by subsidence.

A narrative is required that must

indicate whether subsidence, if it

occurred, could cause material damage

or diminish the reasonably foreseeable

use of the identified structures and

renewable resource lands. The narrative

is also required to indicate whether

subsidence, if it occurred, could

contaminate, diminish, or interrupt the

identified drinking, domestic, or

residential water supplies. In addition

to the conventional text format, videos

or photographs can be submitted as

supplements to the narrative.

Unless the applicant was denied

access for such purposes by the owner,

the rule also requires a survey which

identifies certain features. First, the

survey must identify the condition of all

non-commercial buildings or occupied

residential dwellings and related

structures that may be diminished by

subsidence within the area

encompassed by the applicable angle of

draw. Second, the survey must identify

the quantity and quality of all drinking,

domestic, and residential water supplies

within the proposed permit area and

adjacent area that could be

contaminated, diminished, or

interrupted by subsidence. In addition,

the applicant would be required to

notify the owner in writing that denial

of access would remove the rebuttable

presumption that subsidence from the

operation caused any postmining

damage to protected structures that

occurred within the surface area that

corresponds to the angle of draw for the

operation. (See discussion of angle of

draw in discussion of paragraph

817.121(c)(4), infra.) Any technical

assessment or engineering evaluations

used in determining the pre-mining

condition or value of such structures or

in determining the premining quantity

and quality of protected water supplies

would be conducted at the permit

applicant’s expense. Copies of the

survey and any technical assessments or

engineering evaluations must be

provided by the applicant to the

property owner and regulatory

authority.

Commenters claim that OSM failed to

justify the need for a second map, in

addition to the map required by

paragraph 783.24(c). The map

requirements of paragraph 784.20(a)(1)

could be met by the same map

submitted to comply with paragraph

783.24(c), so long as it meets the

requirements of this paragraph. OSM

believes that an explicit requirement to

establish and document the location and

pre-mining condition of protected

structures and lands, and the location

and pre-mining quantity and quality of

protected water supplies, is essential to

establish a sufficient baseline against

which the effects of subsidence may be

measured and to ensure full

implementation of SMCRA sections 516

and 720.

The commenters argue that OSM

provided no justification for a standard,

nationwide map scale and suggest that

the determination of the map’s scale be

left to the individual states, based on

mining conditions in each state.

Commenters claim that OSM gave no

reason why the map scale should be

1:4,800. A commenter pointed out that

a map of the mine operation and the

affected area at a scale of 1:4,800, as

proposed, could be on the order of

7′×10′. OSM agrees that a map of this

size would be difficult to review and

store. OSM has revised the proposed

rule to allow for a map on a scale of

1:12,000, or 1′′=1000′. If the regulatory
16730 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

authority determines that more detail is

needed, for example to show where

protected structures or water supplies

are located, the regulatory authority may

request a larger-scale map. The final

map scale requirement will provide

both the regulatory authority and

permittee with greater flexibility in

meeting the requirement.

Commenters state that the

requirement that maps must include a

narrative description of the hydrologic

information is redundant. Commenters

allege that a narrative description would

not provide any additional information

that is useful, since paragraph 784.20

already requires both a map and

narrative description. OSM agrees and

has modified the rule. The map and

narrative required under final sections

784.20(a)(1) and (2) are not intended to

expand on the existing responsibility to

identify renewable resource lands and

identify whether they may be impacted

by subsidence. The changes in this

provision concerning map and narrative

requirements for water supplies

protected under section 817.41(j) are

intended to provide the information

necessary to ensure full implementation

of the requirements of SMCRA section

720, concerning protection of water

supplies. The changes reflect revisions

made to paragraphs 784.20(b), 817.41(j),

and 817.121(c). OSM anticipates that

the regulatory authority may allow the

applicant to utilize (or reference)

relevant portions or all of the narrative

prepared for the survey, in the

subsidence control plan if the later

narrative would be redundant.

Several commenters assert that the

requirements in the proposed rule

governing pre-subsidence surveys

would pose a costly burden on

permittees if the requirements are

interpreted to require identification and

cataloguing of the entire land surface

and everything on it for the

presubsidence survey. Commenters

allege this burden is especially likely,

considering the broad definition of

structures and facilities, and

commenters strongly disagree with

OSM’s assertion in the proposed rule

preamble, that the additional survey

would impose ‘‘little’’ additional burden

on the industry. They also argue that

such surveys have a diminishing

usefulness as mining plans proceed,

since the permit applications in which

the survey is to be included are often

done years in advance of any actual

mining. Commenters also consider the

proposed requirement redundant

because of the existing survey

requirements.

OSM has considered these comments

and has modified the final rule. OSM

continues to believe that additional

requirements are necessary to effectively

implement the requirements of the

Energy Policy Act and is limiting the

final requirement to non-commercial

buildings, occupied residential

dwellings and related structures, and

drinking, domestic, or residential water

supplies. As noted above, OSM has also

made conforming changes to the

requirements in paragraph (a) for a

presubsidence map and narrative

covering protected features. The

regulatory authority, the permittee, and

the surface owner will be provided with

a better record of the status of these

protected features prior to mining. That

record will better form the basis of

enforcement in the event of subsidence;

but it will also better protect the

permittee against any claim of damage

for which the permittee is not

responsible.

Further, OSM believes that these

proposed changes will impose no

unreasonable burden on the industry. In

providing information on these features,

the survey should incorporate the

baseline water quality and quantity

information on existing water supplies

required under existing rules at 30 CFR

784.14 and 784.22. This information is

also referenced in the final rule

provision concerning water supply

replacement requirements for

underground mining, section 817.41(j).

While the commenters may have

pointed out a limitation on the longterm usefulness of the information,

based on OSM’s experience OSM

believes that the proposed format for the

survey information is the minimum

needed to adequately assess the need for

a subsidence control plan. OSM notes

that the regulatory authority may ask for

an update of this information as part of

the mid-term permit review process,

which would mitigate any problems

with outdated information. If a

subsidence control plan is needed,

information in the presubsidence survey

may be incorporated in the subsidence

control plan.

Some commenters have noted that the

decision as to whether to impose a presubsidence survey has been held by the

courts to be a matter within the sound

discretion of the Secretary, NWF v.

Lujan, supra, 733 F.Supp. 419 at 429;

and is essential to effectuate the

protections intended to be afforded by

amended Sections 720(a)(1) and (b) of

the Act. OSM agrees.

Other commenters characterize this

case as rejecting a requirement that an

additional survey be done before mining

is commenced. OSM does not agree

with this characterization. The cited

case found that the Act does not speak

to the issue of presubsidence surveys, so

the matter is within the Secretary’s

discretion. The court upheld a decision

by the Secretary not to adopt certain

requirements for a presubsidence

survey.

Paragraph 784.20(b)—Subsidence

Control Plan

This final rule is modified from the

proposal to correspond with the final

revisions to paragraphs 817.41(j) and

817.121(a)(2). Otherwise, the

requirements under paragraph 784.20(b)

in the final rule are the same as

proposed. Under the final rule, no

further information need be provided in

the application under this section if the

results of the pre-subsidence survey

meet the following criteria:

(1) no structures, facilities, or

renewable resource lands exist, or

(2) no material damage or diminution

in value or foreseeable use could occur,

as a result of mine subsidence, and

(3) the regulatory authority agrees

with such conclusion.

A subsidence control plan is required

if the survey identifies structures,

facilities, or renewable resource lands

and shows that subsidence could cause

material damage or diminution in value

or reasonably foreseeable use, or if the

regulatory authority determines that

such damage or diminution could occur.

Under the final rule, paragraph

784.20(b), would require each

subsidence control plan to contain the

following information: (1) a description

of the method of coal removal, such as

longwall mining, room-and-pillar

removal or hydraulic mining, or other

extraction methods, including the size,

sequence and timing for the

development of underground workings;

(2) a map of the proposed underground

workings that describes the location and

extent of the areas in which plannedsubsidence mining methods will be

used and that identifies all areas where

the measures described in paragraphs

(b)(4), (b)(5), and (b)(7) of this section

will be taken to prevent or minimize

subsidence and subsidence-related

damage; and when applicable, to correct

subsidence-related material damage; (3)

a description of the physical conditions,

such as depth of cover, seam thickness,

and lithology of the overlaying strata,

which affect the likelihood or extent of

subsidence and subsidence-related

damage; (4) a description of the

monitoring, if any, needed to determine

the commencement and degree of

subsidence so that, when appropriate,

other measures can be taken to prevent,

reduce, or correct material damage in

accordance with paragraph 817.121 of

this chapter; (5) except for those areas
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16731

where planned subsidence is projected

to be used, a detailed description of the

subsidence control measures that will

be taken to prevent or minimize

subsidence and subsidence-related

damage, such as, but not limited to:

backstowing or backfilling of voids;

leaving support pillars of coal; leaving

areas in which no coal is removed,

including a description of the overlying

area to be protected by leaving coal in

place; and taking measures on the

surface to prevent or minimize material

damage or diminution in value of the

surface; (6) a description of the

anticipated effects of planned

subsidence, if any; (7) for those areas

where planned subsidence is projected

to be used, a description of methods to

be employed to minimize damage from

planned subsidence to non-commercial

buildings and occupied residential

dwellings and related structures; or the

written consent of the owner of the

structure or facility that minimization

measures not be taken; or, unless the

anticipated damage would constitute a

threat to health or safety, a

demonstration that the costs of

minimizing damage exceed the

anticipated costs of repair; (8) a

description of the measures to be taken

in accordance with §§ 817.41(j) and

817.121(c) of this chapter to replace

adversely affected protected water

supplies or to mitigate or remedy any

subsidence-related material damage to

the land and protected structures; and

(9) other information specified by the

regulatory authority as necessary to

demonstrate that the operation will be

conducted in accordance with § 817.121

of this chapter.

In this preamble OSM will use

‘‘longwall mining’’ to refer to the

longwall mining and pillar recovery

technologies which provide for

‘‘planned subsidence in a predictable

and controlled manner,’’ as referenced

in SMCRA section 516(b)(1). The text of

the regulations as adopted continues to

use the terms ‘‘mining technology

which provides for planned subsidence

in a predictable and controlled manner’’

or ‘‘planned-subsidence mining

methods.’’

Several commenters support the

proposal to require permittees to submit

subsidence control plans. These

commenters recommend that the

subsidence control plan require the

permittee to document the full range of

steps that can be taken to prevent and

mitigate subsidence impacts, including

mine design changes and precautionary

and preventive measures taken above

ground to minimize damage to surface

features and structures.

However, some commenters argue

that amending paragraph 784.20(b)(5) to

require longwall mining to minimize

material damage illegally reverses the

current regulations of SMCRA, since the

Energy Policy Act does not require the

change and OSM has not shown a

compelling need for such a change.

These commenters find no reason to

support OSM’s decision to reverse the

regulatory provisions governing

longwall mining. They argue that there

are sound policy and technical reasons

for supporting the current regulatory

scheme and that the proposed rule

would incur additional costs on those

permittees who utilize the longwall

mining technique. OSM believes these

requirements are fully authorized under

SMCRA sections 201 and 516 and are

consistent with and supportive of the

requirements of SMCRA section 720.

OSM does not agree that this provision

is inconsistent with SMCRA or the

Energy Policy Act. As discussed infra,

in response to comments concerning the

scope of the requirement, OSM has

revised this provision somewhat, to

require that, with certain limitations,

minimization measures must be taken to

protect the same structures for which, in

section 720 of SMCRA, Congress has

imposed a requirement to repair or

compensate for damage. This will

ensure that permittees take reasonable

steps to minimize subsidence damage to

protected structures before it occurs,

without incurring unreasonable costs.

While OSM recognizes that there will be

some additional costs associated with

minimization measures, OSM believes it

is sound public policy to limit damage

to protected structures before it occurs,

where reasonable, and that such

requirements are fully consistent with

SMCRA, as amended. OSM also expects

that the limitations on the obligation to

minimize, discussed infra, will ensure

that the expense of minimization will be

neither prohibitive nor

disproportionate.

One commenter submitted that the

proposed regulations would impose an

absolute requirement for a subsidence

control plan because no one conducting

longwall operations on federal lands

would ever be able to demonstrate that

there would be no ‘‘diminution in

value.’’ OSM believes that the extent to

which longwall operations must prepare

pre-subsidence surveys can only be

determined on a site-specific basis,

because of the number of variables that

may affect both the nature and extent of

subsidence as well as the damage to any

protected structures. The commenter

noted that the permittee could not meet

the requirement for the subsidence

control plan under the existing

regulatory framework imposed by the

Bureau of Land Management, which

requires maximum economic recovery.

OSM believes that any requirement to

extract minerals for maximum economic

recovery by definition must be applied

to mean maximum economic recovery

consistent with applicable regulatory

requirements.

Under the final rule, OSM is retaining

the language under existing paragraph

784.20(b)(5) that provides an exception

to the requirement to submit a detailed

description of the measures to be taken

on the surface to prevent or minimize

material damage or diminution in value

of the surface for those areas where

planned subsidence is projected to be

used.

However, OSM has added paragraph

784.20(b)(7) that requires permittees

conducting longwall mining operations

that result in planned and controlled

subsidence to describe the subsidence

control measures they will use to

minimize subsidence and subsidencerelated material damage to noncommercial buildings and occupied

residential dwellings and related

structures, or to demonstrate that the

costs of minimizing damage to these

structures exceed the anticipated cost of

repair and are not needed to prevent a

threat to health or safety. The proposed

rule would have required a description

of such measures under paragraph

784.20(b)(5)(iv). The subsidence control

measures that a longwall permittee can

employ to minimize subsidence and

subsidence-related material damage

include measures taken on the surface,

such as trenching, bracing, and jacking

structures. OSM does not intend to

require anything other than surface

measures to minimize material damage

from longwall mining where

conventional underground measures

may not be practicable. The final rule

requires that a permittee using longwall

mining technology take necessary

measures consistent with the mining

method to minimize material damage to

surface lands, structures, or facilities,

with certain limitations. However, OSM

recognizes that underground measures

are not normally associated with

longwall mining, because they are not

normally consistent with longwall

technology. For example, changes in the

design of an ongoing mining operation

would not be required, because OSM

has concluded, after considering all

comments and available literature, that

the expense of such underground

measures to minimize material damage

from longwall mining would be

prohibitive, and therefore inconsistent

with congressional intent.
16732 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

In responding to the proposal to

require longwall permittees to use

surface measures to minimize material

damage, commenters allege that surface

measures to minimize damage are

neither technically nor economically

practicable. These commenters allege

that in some cases use of such measures

has not prevented damage; that surface

measures are not always appropriate;

that many such measures remain

experimental, unproven in

effectiveness, and uncertain as to

structural response; and that they are

economically impractical. OSM finds

these arguments unavailing, because

they are all countered by the terms of

paragraph 817.121(a)(2). That provision

requires ‘‘necessary and prudent’’

measures, ‘‘consistent with the mining

method employed,’’ ‘‘to the extent

technologically and economically

feasible.’’ Thus, if a measure is

unnecessary or imprudent, inconsistent

with longwall mining, or not

technologically or economically feasible

(or if it will not minimize material

damage to protected features), it will not

be required.

One commenter alleged that the term

‘‘subsidence control’’ does not include

measures taken on the surface as

suggested in the proposed rule to

protect surface features from damage.

The commenter noted that the use of the

term subsidence control in SMCRA and

the mining industry refers to the mine

design including the sizing of openings

and pillars which affect ground

pressures within the underground

mining environment; and in connection

with other factors, affect the amount and

type of ground movement that could

result in surface deformation. To the

extent this may have been true in the

past, OSM regards this as irrelevant to

the merits of this rulemaking, which

establishes separate subsidence control

requirements for those operations using

planned subsidence and for those using

conventional mining operations.

OSM is revising paragraph

784.20(b)(5) as an adjunct to the

revisions to paragraph 817.121(a). The

substance of these revisions is discussed

infra under the heading for section

817.121(a).

OSM is also revising section

784.20(b)(8) as an adjunct to the

revisions to section 784.20(a) and to

reflect the requirements of section

817.41(j).

Section 817.10—Information Collection

OSM is revising Section 817.10 which

contains the information collection

requirements for Part 817 and the OMB

clearance number.

One commenter stated that the burden

required to establish a monitoring

program under new paragraph 817.121

(c)(4) to determine surface damage

based on a specified angle of draw could

require 1,000 hours to perform.

Consultations were held with OSM

mine engineers who estimated the

burden at approximately 250 hours.

Therefore, OSM estimates the public

reporting burden for the new

information collection requirements for

§ 817.121(c)(4) to vary from 250 to 1,000

hours per response.

The collections of information

contained in Part 817 have been

approved by Office of Management and

Budget under 44 U.S.C. 3501 et seq. and

assigned clearance number 1029–0048.

The information will be used to meet

the requirements of 30 U.S.C. 1211,

1251, 1266, and 1309(a) which provide,

among other things, that permittees

conducting underground coal mining

operations shall meet the applicable

performance standards of the Act. This

information will be used by the

regulatory authority in monitoring and

inspecting underground mining

activities. The obligation to respond is

required to obtain a benefit.

Section 817.41(j)—Hydrologic Balance

Protection

The proposed rule included two

provisions concerning performance

standards for underground mining

activities, for water supply replacement:

paragraphs 817.41(j), concerning

replacement of water supply used for

agricultural, industrial, or other

legitimate use; and 817.41(k),

concerning replacement of water

supplies used for drinking, domestic, or

residential use.

Proposed paragraph 817.41(j)

provided that a person who conducts

underground mining activities shall

replace the water supply of an owner of

an interest in real property who obtains

water for agricultural, industrial, or

other legitimate use from an

underground or surface source, where

the water supply has been adversely

impacted by contamination, diminution,

or interruption proximately resulting

from the underground mining activities.

Several commenters objected to this

requirement.

Commenters claim that OSM provides

no justification for changing its

longstanding policy of not requiring

water replacement for such users. The

commenters maintain that the change in

policy would contradict section 717(a)

of SMCRA, which requires OSM to

respect state water and property rights

law. The commenters went on to state

that this provision of the proposed rule

went beyond the requirements of the

Energy Policy Act and preempts state

water law, thus removing the

protections that SMCRA affords to state

water laws. The commenters also

pointed to the unique physical

characteristics of western states that

necessitate respect for the individual

state water laws. After consideration of

all comments on this issue, and after

review of all available documentation of

the need for the performance standards

set out in proposed paragraph 817.41(j),

OSM has concluded that the existing

record does not clearly support the need

for this provision. Therefore, OSM has

decided not to exercise its discretionary

authority under SMCRA, to require such

protection. OSM will not require

replacement of water supplies not

mandated by the Energy Policy Act.

Therefore, OSM is not adopting

proposed 817.41(j) that would have

required replacement of water supplies

used for agricultural and industrial uses.

In proposed 817.41(k), OSM proposed

to require a permittee to promptly

replace a drinking, domestic or

residential water supply that is

contaminated, diminished or

interrupted by underground mining

activities conducted after October 24,

1992, if the affected well or spring was

in existence prior to the date the

regulatory authority received the permit

application for the underground mining

activities. Baseline hydrologic

information required in sections 784.14

and 784.22 would be used to determine

the impact of underground mining

activities on the well or spring.

The final rule provision concerning

replacement of drinking, domestic or

residential water supply is renumbered

and appears at paragraph 817.41(j).

Under the final rule, the permittee is

required to promptly replace any

drinking, domestic or residential water

supply that is contaminated, diminished

or interrupted by underground mining

activities conducted after October 24,

1992, if the affected well or spring was

in existence prior to the date the

regulatory authority received the permit

application for the activities causing the

loss, contamination or interruption. The

baseline hydrologic information

required in § 784.14 of this chapter and

the geologic information concerning

baseline hydrologic conditions required

in § 784.22 of this chapter shall be used

to determine the impact of underground

mining activities upon the well or

spring. This information is not intended

to be the exclusive basis for determining

such impacts, and other relevant

information could also be considered.

Permittees both in primacy States and in

Federal program States, as well as on
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16733

Indian lands, are required to comply

with these provisions for operations

conducted after October 24, 1992.

The majority of commenters agreed

that the provision to require the

permittee to promptly replace any

drinking, domestic, or residential water

supplies that have been adversely

affected by underground activities is

necessary to implement the provision of

new SMCRA section 720(a)(2).

While commenters support the

adoption of the proposed rule, they

maintain that it is not necessary to

monitor each water well in order to

establish that subsidence has impacted

a water supply well. OSM agrees that in

many instances it may not be necessary

to monitor each well. The location and

frequency of well monitoring will be

addressed on a case-by-case basis

pursuant to existing paragraphs

784.14(h)(1) and 817.41(c).

A commenter asked for clarification

that this provision would not in any

way affect property rights under existing

state water laws consistent with

paragraph 717(a). Another commenter

further recommended that OSM amend

the provision to require that water rights

regarding the affected well or spring be

approved by the State Engineer or

otherwise be recognized under State

law. OSM points out that nothing in this

requirement is intended to create an

exception to section 717(a) of SMCRA.

Section 717(a) requires deference to

State water law on questions of water

allocation and use. OSM interprets

section 720 and the implementing rules

as not requiring the replacement of

water supplies to the extent

underground mining activities consume

or legitimately use the water supply

under a senior water right determined

under applicable State law. See In re

Permanent Surface Mining Regulation

Litigation II, Round III, 620 F. Supp.

1519, 1525 (D.C.D.C. 1985). However,

OSM believes that section 717(a)

concerns rights under State water law to

consumption or use of water, and was

not intended to address destruction or

damage of the source of water, or

contamination of the water supply.

Thus, OSM anticipates that

underground mining activities which

cause destruction or damage of a water

supply source, or contamination of a

water supply, would be subject to the

replacement requirements of section 720

even if the permittee possessed senior

water rights.

A commenter recommended that

compensation be available as an option

for those limited circumstances where

an impacted supply can’t be restored.

The commenter went on to note that

Congress, in enacting the Energy Policy

Act, clearly noted that these provisions

were not to ‘‘prohibit, or interrupt

underground coal mining operations.’’

Without the compensation option, the

commenter asserted that operations

would be forced to cease operating if

they couldn’t replace the water

supplies. OSM does not agree. The

terms of the Energy Policy Act

unequivocally require replacement.

Further, OSM does not anticipate that

underground mining operations will be

unable to comply with this statutory

mandate. For example, if the permittee

is unable to restore a spring or aquifer,

the permittee should still be able to

provide water from an alternative

source, such as a public water supply,

or by pipeline from another location.

Section 817.121(a)—Subsidence Control

OSM is adopting paragraph

817.121(a)(1) as proposed. The

requirement provides that the permittee

must either adopt measures consistent

with known technology which prevent

subsidence causing material damage to

the extent technologically and

economically feasible, maximize mine

stability, and maintain the value and

reasonably foreseeable use of surface

lands; or adopt mining technology

which provides for planned subsidence

in a predictable and controlled manner.

This language is not intended to be a

change from the rules promulgated in

1983, (See 48 FR 24652, June 1, 1983),

and relies on the basis and purpose

stated in 1983. This rulemaking makes

minor editing changes intended to more

clearly reflect the meaning of the

existing rule. Thus, under this

provision, as an alternative to adopting

measures consistent with known

technology which prevents subsidence

causing material damage to the extent

technologically and economically

feasible, an permittee may adopt mining

technology which provides for planned

subsidence in a predictable and

controlled manner.

OSM is adopting paragraph

817.121(a)(2) with modification from

the proposed rule. Under the proposed

rule, if a permittee employed mining

technology which provides for planned

subsidence in a predictable and

controlled manner, the permittee would

have been required to take necessary

and prudent measures, consistent with

the mining method employed, to

minimize material damage to surface

lands, structures or facilities to the

extent technologically and economically

feasible. Under the final rule, the

responsibility to minimize damage is

limited to structures listed in the Energy

Policy Act, namely noncommercial

buildings and occupied residential

dwellings and related structures.

However, unless the anticipated damage

would constitute a threat to health or

safety, the permittee would not have to

take minimization measures if the

permittee demonstrates that the cost of

minimization would exceed the cost of

repair, and would not constitute a threat

to health and safety. The permittee is

obliged to take minimization measures

that are technologically and

economically feasible. Upon written

consent of the owners of such structures

or facilities, no minimization measures

would be required.

Section 2504(a)(2)(D) of the Energy

Policy Act provides that any rulemaking

regarding protection of natural gas or

petroleum pipelines from subsidence

damage is to be done after the study

which OSM is mandated to perform

pursuant to paragraph 2504(a)(2)(A) of

the Energy Policy Act. Some

commenters express concern that

proposed paragraph 817.121(a)(2)

prejudged this issue, while others

support the rule because they believe it

does impose additional subsidence

damage protection for pipelines. Since

OSM has not yet completed the study

mandated by the Energy Policy Act,

OSM does not intend this rulemaking to

affect, interpret, or clarify the status quo

regarding subsidence control

requirements for natural gas or

petroleum transmission pipelines,

branch and gathering lines, or

distribution mains. For these and other

reasons discussed below, OSM has

decided to limit 817.121(a)(2) to those

structures protected under the Energy

Policy Act, namely noncommercial

buildings and occupied residential

dwellings and related structures.

Commenters claim that the proposed

provision that required permittees to

minimize damage from planned

subsidence operations was vague and

unworkable since little guidance was

provided as to what minimizing damage

would entail. Commenters argue that

OSM’s contention that the new rule

would clarify an unresolved issue over

the meaning of paragraph 817.121(a)

was misguided, since the proposed rule

did little to clarify the issue and would

likely result in even more litigation.

Commenters also allege that, rather than

clarify the obligation of planned

subsidence operations concerning

subsidence damage, the proposed rule

would effectively remove the exception

granted in SMCRA for planned

subsidence. These commenters

questioned the effect of OSM’s proposed

provision on the planned subsidence

exception at section 516(b)(1) of SMCRA

if an operator using planned subsidence

must adopt and deploy the same
16734 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

subsidence control measures as an

operation not using planned subsidence.

OSM has considered these comments

as well as the existing regulatory

scheme of SMCRA and has concluded

that, given the lack of clarity of section

516 on this issue, the most reasonable

regulatory scheme and the regulatory

scheme most consistent with SMCRA as

amended by the Energy Policy Act, is to

provide longwall subsidence damage

minimization requirements that track

the protections offered by the Energy

Policy Act concerning subsidence from

other forms of underground mining.

Although the Energy Policy Act does

not specifically address a minimization

standard for longwall mining, it

demonstrates Congress’ intent to

specifically require subsidence damage

repair or compensation only for the

structures listed in section 720.

Therefore, the final rule limits the

requirement to take measures to

minimize material damage resulting

from longwall subsidence to those

structures protected in the Energy

Policy Act. This is not a prevention

standard, so a planned subsidence

operation will not be required to meet

the same subsidence control standard

that applies to an operation not using

planned subsidence. The addition of a

limited requirement that longwall mine

operators ‘‘minimize’’ damage in certain

circumstances is not inconsistent with

the SMCRA provision at section

516(b)(1) which exempts longwall

mining from the requirement to prevent

material damage. Authority for the

minimization standard derives from

both section 516(b)(1) and section 720 of

SMCRA. OSM recognizes that Congress

expressly stated in the Energy Policy

Act that nothing in the statute regarding

surface owner protections shall be

construed to prohibit or interrupt

underground coal mining operations.

OSM believes that the final rule which

contains a limited requirement for

longwall operations to minimize

subsidence damage in certain

circumstances is consistent with

Congress’ guidance contained in the

Energy Policy Act.

OSM believes that, by requiring only

surface measures to minimize

subsidence damage to non-commercial

buildings and occupied residential

dwellings and related structures, and

only when it is technologically and

economically feasible, the final rule

establishes reasonable subsidence

control measures that are also consistent

with Congress’ intent to support and

encourage the use of planned and

controlled subsidence. Further, by also

providing that the requirement does not

apply if the permittee demonstrates that

minimization would cost more than

repair, OSM believes it has mitigated

any potential for unreasonably

expensive minimization measures. OSM

recognizes that some material damage to

protected structures from planned

subsidence is possible and in some

cases will not be prevented under this

rule. However, under paragraph

817.121(c), such damage has to be

repaired. The requirement is not

intended to discourage the use of

planned and controlled subsidence or to

require underground activities not

normally associated with such

operations. OSM does intend, however,

that this rule will require reasonable

measures to be taken on the surface to

protect occupied residential dwellings

and related structures and noncommercial buildings from material

damage. OSM believes that the

subsidence control policy outlined in

the Consolidation Coal Company video,

presented to OSM during an on-site tour

of coal fields, and available in the

administrative record for this

rulemaking, illustrates the kinds of

measures that would adequately meet

the needs of the homeowner and the

permittee in deciding when and what

types of measures should be taken on

the surface to minimize damage.

Further, this videotape demonstrates the

reasonableness of using such

minimization techniques.

The commenters also question the

provision that the proposed

performance standards are mandatory

unless the landowner consents.

Commenters state that requiring

measures to be taken to protect

structures and facilities unless the

owner consents, raises a number of

issues with regard to exactly when and

for what purposes a permittee is

required to obtain the owner’s consent.

For example, if the permittee finds that

certain measures are not prudent or

economically or technologically

feasible, must the permittee still obtain

the owner’s written consent? Also, if an

owner were to steadfastly refuse to

consent to an otherwise flawless

planned subsidence operation,

commenters opined that the

requirement to obtain the owner’s

consent could be considered an

uncompensated taking of the permittee’s

property right.

The obligation to take necessary and

prudent measures on the surface

consistent with the mining method

employed, to minimize material damage

to occupied residential dwellings and

related structures and non-commercial

buildings to the extent technologically

and economically feasible, except when

minimization costs would exceed repair

costs, is mandatory. However, neither

the regulatory authority nor the

permittee is required to obtain the

landowner’s concurrence in order to

satisfy that test. Instead, the

minimization measures would be

explained in the subsidence control

plan, which the landowner has a right

to review and object to, and which

requires the approval of the regulatory

authority. The consent provision allows

the permittee to negotiate an

arrangement with an owner of a

structure or facility to waive the

protection otherwise afforded by

paragraph 817.121(a)(2). Such a written

waiver would have to waive expressly

the regulatory protection provided by

the proposed rule and therefore could

not be a document which predates

adoption of the final rule. OSM notes

that such a waiver would not be

effective to waive any requirement

pursuant to paragraph 817.121(c) to

repair damage from subsidence. In

addition to the waiver provision, the

final rule includes a provision that a

permittee will not be required to take

measures to minimize subsidence

damage upon a demonstration that the

costs of such measures would exceed

the repair costs for the damage. In both

cases, the permittee could allow the

damage to occur, and repair it pursuant

to paragraph 817.121(c).

One commenter alleges that damage

minimization measures for longwall

mining cannot be limited to surface

measures, because the SMCRA

legislative history indicates that

Congress contemplated underground

preventive measures such as

backstowing, provided such measures

are technologically and economically

feasible. The commenter cites H.R. Rep.

No. 218, 95th Congress, First Session

(1977) at 125–126. OSM does not agree

with this characterization of the cited

House Report. OSM believes the cited

House Report materials discuss damage

prevention and minimization measures

appropriate for conventional room-andpillar mining; there is no specific

reference to longwall mining. For

example, the referenced portion of the

report states that:

One characteristic of subsidence

which disrupts surface land uses is its

unpredictable occurrence in terms of

both time and location. Subsidence

occurs, seemingly on a random basis, at

least up to 60 years after mining and

even in those areas it is still occurring.

H. Rep. No. 218, 95th Cong., 1st Sess.

126 (1977). Such problems are not

characteristic of longwall mining.

Therefore, it is unlikely Congress had

longwall mining in mind when it

discussed appropriate prevention
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16735

measures in this passage. OSM

concludes the report does not show

congressional intent to require use in

longwall mining of the measures

discussed in this passage.

Section 817.121(c)—Subsidence Control

817.121(c)(1)

In the proposed rule, paragraph

817.121(c)(1) would be modified to

substitute ‘‘subsidence related material

damage’’ for ‘‘any material damage

resulting from subsidence; ‘‘permittee’’

for ‘‘operator;’’ and ‘‘its pre-subsidence

value and supporting reasonably

foreseeable uses it was capable of

supporting * * *’’ for ‘‘the value and

reasonably foreseeable uses which it

was capable of supporting * * *.’’ The

changes were editing changes not

intended to have a substantive effect on

the rule. However, commenters express

concern over the changes in the

language of paragraph (c)(1) because the

preamble did not contain an

explanation for the proposed changes.

In the final rule, OSM is not amending

the text of this provision but is adding

a heading for the paragraph to assist in

reading and application of the

provision.

817.121(c)(2)

Paragraph 817.121(c)(2) is being

adopted as proposed. The final rule

requires that a permittee either

promptly repair material damage caused

by subsidence to any non-commercial

building or occupied residential

dwelling or related structure, or

compensate for material damage caused

by subsidence to those structures. If the

repair option is selected, the permittee

must fully rehabilitate, restore or

replace the damaged structure. If the

compensation option is selected, the

permittee must compensate the owner

of the damaged structure in the full

amount of the diminution of value

resulting from the subsidence-related

damage. Compensation may be

accomplished by the purchase, prior to

mining, of a non-cancelable premiumprepaid insurance policy. The

requirements of this paragraph apply to

all subsidence-related damage caused by

underground mining activities

conducted after October 24, 1992.

Paragraph 817.121(c)(2) implements

new SMCRA section 720 (a)(1), which

requires that all underground coal

mining operations promptly repair or

compensate for material damage to noncommercial buildings and occupied

residential dwellings or related

structures as a result of subsidence due

to underground coal mining operations.

Permittees in both primacy States and

Federal program States, as well as on

Indian lands, are required to comply

with this provision for operations

conducted after October 24, 1992.

Possible interim direct enforcement of

this provision by OSM in some primacy

States prior to amendment of State

programs is addressed below in

revisions to Part 843.

A group of commenters recommended

that the rule recognize that presubsidence agreements and postsubsidence agreements between the

property owner and the permittee

would satisfy the requirements under

paragraph 817.121(c)(2), and that

nothing in this paragraph should be

construed to prohibit or interrupt

underground coal mining operations.

The use of pre- and post-subsidence

agreements would be an acceptable

means of fulfilling the requirement so

long as the terms met the requirement

under paragraph 817.121(c)(2) that the

permittee repair or compensate any

subsidence-related material damage to

any non-commercial building or

occupied residential dwelling or related

structure. Any permittee/owner

agreements cannot negate the

requirement of the Energy Policy Act to

repair or compensate for subsidencerelated material damage to occupied

residential dwellings and related

structures as well as non-commercial

buildings. OSM anticipates that repair

pursuant to paragraph 817.121(c)(2) will

restore the protected structure or facility

to its premining capacity, features,

value, and utility. OSM reiterates that

the requirements in this paragraph are

not intended to prohibit or interrupt

underground coal mining operations.

Commenters allege that the permittee

is not under obligation to repair

subsidence-related damage to any

building constructed after mining has

occurred. OSM agrees with this

comment. If the protected structure was

damaged from subsidence from

underground mining, and that mining

occurred after the date set forth in the

Energy Policy Act, then the Energy

Policy Act requires that the permittee

repair or compensate for the material

damage. However, Congress does not

discuss whether there should be any

different treatment for structures that

did not exist when the mining took

place. For such structures, there would

be no opportunity for the permittee to

mitigate or prevent subsidence damage,

and thus avoid the requirement to repair

or compensate. Nor would it be possible

for a permittee to anticipate what

structures might be built above the mine

after mining occurs and thus plan for

anticipated costs to determine if mining

would be economically feasible. On the

other hand, surface owners can know

the extent to which land they plan to

build on has been undermined by

previous mining operations. Therefore,

OSM believes that it is reasonable to

conclude that the requirement should

not apply to structures which did not

exist at the time of mining. OSM is

adopting this interpretation in the final

rule, and has revised paragraph

817.121(c)(2) accordingly.

Commenters also allege that the

obligation to repair subsidence-related

damage does not apply to buildings

acquired after the mining occurred.

OSM does not agree. SMCRA section

720 provides that underground coal

mining operations conducted after the

date of enactment of the Energy Policy

Act shall promptly repair or compensate

for material damage resulting from

subsidence caused to any occupied

residential dwelling and structures

related thereto, or non-commercial

building. Section 720 does not

distinguish among such structures based

on whether they were acquired before or

after the date of mining. Rather, all such

structures are subject to the requirement

to promptly repair or compensate. OSM

believes the language of the statute is

clear, and the interpretation urged by

commenters is inconsistent with the

terms of the statute.

A commenter notes that the proposed

rules lack provisions establishing

requirements for notification of the

permittee or regulatory authority, or for

estimate, repair, replacement, or

compensation time frames. OSM

believes that existing citizen complaint

procedures are adequate and

appropriate to address surface owner

complaints of subsidence damage under

these rules.

OSM believes preparation or approval

of estimates is properly addressed under

existing procedures, by case-by-case

negotiations with the surface owner,

and regulatory authority review of

reclamation measures. Similarly, OSM

believes timely repair or compensation

of protected structures is adequately

addressed by the use of the statutory

term ‘‘prompt,’’ which is commonly

understood to mean ‘‘expeditious’’ or

‘‘immediate.’’ OSM notes that several

commenters give examples of situations

which may involve substantial variation

in the time required before the full

extent of subsidence damage can be

confirmed, or before repairs properly

may be commenced. OSM concludes

that what is reasonably prompt for

repair or compensation is properly

determined on a case-by-case basis.

Commenters request changes in the

existing rules providing for notice to

property owners in advance of
16736 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

underground mining, because the rules

require notice at least six months before

mining, and this does not allow the

surface owner to determine when

mining actually takes place under his

property. OSM did not propose to

amend existing rules concerning

advance notice of underground mining

to surface owners, and the record does

not justify a new rulemaking on this

issue at this time.

A commenter requests that OSM

clarify that the permittee is not required

to restore or compensate for

deterioration to a structure beyond what

was caused by subsidence from

underground mining. OSM believes the

language of proposed paragraph

817.121(c)(2) is clear to this effect and

that no rule changes are required to

achieve this result.

One commenter asked that OSM make

clear that any and all subsidence

damage is subject to the requirement to

repair and compensate indefinitely into

the future, even if the permittee has

previously repaired or settled with the

affected property owner or pipeline

operator; and that OSM clarify that the

obligation to repair is not dependent on

active mining or an active permit or

upon termination of jurisdiction by

OSM. OSM agrees that once damage

occurs, an underground mining

operation has a statutory obligation to

repair, which may not be negated by a

prior agreement.

817.121(c)(3)

The purpose of proposed paragraph

817.121(c)(3) was to ensure repair or

correction of material damage caused by

subsidence to those structures and

facilities not covered by new SMCRA

section 720 (a)(1) and paragraph (c)(2) of

proposed section 817.121. The proposed

amendments to paragraph (c)(3) would

have required repair or correction

irrespective of limitations otherwise

applicable under State law. The

proposed rule would have required a

permittee to either correct subsidencerelated material damage to any

structures or facilities not protected by

paragraph (c)(2) by repairing the

damage, or compensate the owner of

such structures or facilities in the full

amount of the diminution in value

resulting from the subsidence. Repair of

damage would have included

rehabilitation, restoration or

replacement of damaged structures or

facilities. Compensation by the

permittee could have been

accomplished by the purchase, prior to

mining, of a non-cancelable premiumprepaid insurance policy.

A number of commenters support the

proposed rule and the need for the

proposed rule, and discuss various

respects in which the existing rule and

state laws fail to adequately protect

structures and facilities from subsidence

damage. One commenter recommended

that OSM draft a regulation stipulating

that any and all subsidence damage is

subject to the regulations to repair and

compensate even if the permittee has

previously repaired or settled with the

affected property owner.

The majority of commenters noted

that in the Energy Policy Act Congress

expressly limited relief for damage

arising from subsidence to ‘‘occupied

residential dwellings and structures

related thereto, or non-commercial

buildings’’ and water supplies. The

commenters argued that for more than a

decade OSM has required permittees to

correct material damage ‘‘to the extent

required by state law’’ and they state

that no compelling need has been

demonstrated that would require OSM

to change its policy and preempt state

law and property rights. Therefore,

commenters claim that the proposed

rule has no basis under the Energy

Policy Act and that OSM’s cursory

explanation of the reasons behind the

new rule demands that the proposed

rule not be adopted.

Commenters also claim that the

existing state law remedies are adequate

and that court decisions support their

proposition that SMCRA does not

specifically ‘‘require the Secretary to

impose a duty to restore structures

damaged by subsidence.’’ National

Wildlife Fed’n v. Lujan, 928 F.2d 453,

458 (D.C. Cir. 1991). These commenters

argue that, without ample evidence that

state law remedies for such damage are

inadequate, there is no compelling

reason for OSM to disregard the clear

congressional intent behind SMCRA

that ‘‘state laws govern the resolution of

any disputes about property right which

might arise from such separations, and

this Act does not attempt to tamper with

such state laws.’’ S. Rep. No. 95, 95th

Cong. 1st Sess. at 56 (1977).

Commenters also point out that

currently the states conducting 99

percent of the nation’s coal mining

provide statutory regulatory relief for

damage caused by subsidence. Some

commenters allege that the proposed

rule would significantly affect private

property rights and raise numerous

issues regarding the Fifth Amendment’s

takings clause. Those commenters state

that there is simply no compelling

evidence for OSM to preempt state

property law and that the proposed rule

violates the express terms of the Energy

Policy Act.

Numerous commenters interpret this

provision as providing for subsidence

protection of natural gas and petroleum

pipelines. Some commenters assert that

the proposed rule directly contradicts

the congressional requirement that the

Secretary complete a study on the

pipeline issue before any rules on the

issue are promulgated. Commenters also

comment extensively on the impact the

rule would have on the property rights

of both coal and pipeline companies.

Some commenters argued that even

more extensive protection of pipelines

is appropriate or necessary. OSM has

reviewed these comments, but reiterates

that, with the very limited exception

noted above for connector lines attached

to specific occupied residential

dwellings or non-commercial buildings,

Congress intended no change in the

subsidence control regulations regarding

natural gas and petroleum pipelines,

and that no rulemaking on this issue is

contemplated pending completion of

the study on this subject pursuant to

section 2504 of the Energy Policy Act.

OSM is not addressing this issue in this

rulemaking. If, after completion of the

subsidence pipeline study, OSM

determines that further rulemaking may

be appropriate on this subject, OSM will

invite interested persons to review and

comment on any further rulemaking.

OSM has considered all comments

and has decided not to adopt the

proposed changes to paragraph

817.121(c)(3). Instead OSM will retain

the State law limitation set out in the

existing regulations. The basis and

purpose for the State law limitation was

upheld by the D. C. Circuit Court of

Appeals. National Wildlife Fed’n v.

Lujan, 928 F.2d 453, 458 (D.C. Cir.

1991). OSM believes that circumstances

have not changed significantly since

OSM’s adoption of the State law

limitation; and OSM concludes that the

record developed in this rulemaking is

insufficient to justify eliminating the

State law limitation except as provided

in the Energy Policy Act. Under the

final rule, the permittee is required, to

the extent required under applicable

provisions of State law, to either correct

material damage resulting from

subsidence caused to any structures or

facilities not protected by paragraph

(c)(2) of this paragraph by repairing the

damage, or compensate the owner of

such structures or facilities in the full

amount of the diminution in value

resulting from the subsidence. Repair of

damage shall include rehabilitation,

restoration or replacement of damaged

structures or facilities. Compensation

may be accomplished by the purchase,

prior to mining, of a non-cancelable

premium-prepaid insurance policy.
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16737

817.121(c)(4)

OSM proposed paragraph

817.121(c)(4), which would have

established a rebuttable presumption of

a causal link between the operation of

an underground mine and subsidence

damage occurring within a specified

zone over the area of coal extraction.

Specifically, the proposed rule provided

that, if damage to lands, structures or

facilities occurs as a result of earth

movement within an area determined by

projecting a 35 degree angle of draw

from the outermost boundary of any

underground mine workings to the

surface of the land, a rebuttable

presumption would exist that the

permittee caused the damage. The

regulatory authority could also have

approved a different angle of draw on a

case-by-case basis if the permittee

demonstrated that the proposed angle of

draw is based on a site-specific

geotechnical analysis of the potential

surface impacts of the mining operation.

If the permittee was denied access to the

land or property for the purpose of

conducting the pre-subsidence survey in

accordance with § 784.20(a) of this

chapter, no rebuttable presumption

would have existed. These requirements

would have applied only to subsidencerelated damage caused by underground

mining activities conducted after

October 24, 1992.

After reviewing the comments and

based on OSM technical analysis, OSM

has modified the final rule from that

which was proposed. In the final rule,

paragraph 817.121(c)(4) has been

divided into five subparagraphs for

clarification and readability. Final

paragraph 817.121(c)(4)(i), provides that

if damage to non-commercial buildings

or occupied residential dwellings and

related structures occurs as a result of

earth movement within the area

determined by projecting a specified

angle of draw from underground mine

workings to the surface, a rebuttable

presumption exists that the permittee

caused the damage. Thus, the final rule

is limited to structures protected under

section 720(a) of SMCRA. Also, instead

of 35 degrees, as proposed, the final rule

provides that the presumption applies

to a 30 degree angle of draw. However,

a State regulatory authority may amend

its regulatory program to apply the

presumption to a different angle of draw

upon demonstrating in writing that the

angle is more reasonable than the 30

degree angle of draw, based on

geotechnical analysis of the factors

affecting potential surface impacts of

underground coal mining operations in

the State. OSM recognizes that the

‘‘more reasonable’’ standard is a

different standard than would otherwise

apply under SMCRA section 503(a) and

30 C.F.R. section 732.15(a) to OSM

review of a State regulatory program

amendment. However, OSM believes

that this is the appropriate standard to

apply to approval of a different Statewide angle of draw, because it will

allow a State to adopt either a greater or

lesser angle of draw, so long as the State

angle of draw is better supported by

geotechnical analysis than is the 30

degree angle of draw. OSM believes this

standard for review will best assure that

the area within which the presumption

will apply can reasonably be expected

to include almost all damage caused by

subsidence, without unreasonably

expanding the permit applicant’s

burden of surveying to areas where

damage would likely not be attributable

to subsidence.

Under final paragraph

817.121(c)(4)(ii), a person may request

and the regulatory authority may

approve application of the presumption

to a different site-specific angle of draw

based on a site-specific analysis

submitted by the permit applicant. To

establish a site-specific angle of draw, a

permit applicant must demonstrate and

the regulatory authority must determine

in writing that the proposed angle of

draw has a more reasonable basis than

the applicable standard, based on a sitespecific geotechnical analysis of the

potential surface impacts of the mining

operation. Like the standard for

approval of a different State-wide angle

of draw, this standard for approval of a

site-specific angle of draw is intended to

assure that the area within which the

presumption will apply can reasonably

be expected to include almost all

damage caused by subsidence, without

unreasonably requiring the permit

applicant to survey the area where

damage would likely not be attributable

to subsidence.

Under final paragraph

817.121(c)(4)(iii), if the permittee was

denied access to the property to conduct

the presubsidence survey in accordance

with § 784.20(a), no rebuttable

presumption exists.

Final paragraph 817.121(c)(4)(iv) sets

forth examples of evidence which

would rebut the presumption, including

evidence that establishes that the

damage predated the mining; that the

damage was proximately caused by

some other factor and not by

subsidence; and that the damage

occurred outside the surface area where

subsidence was caused by the

underground mining.

Paragraph 817.121(c)(4)(v) requires

that all relevant and reasonably

available information must be

considered in any determination as to

whether subsidence damage to

protected structures subject to

paragraph 817.121(c)(2) was caused by

subsidence from underground mining.

The purpose of paragraph

817.121(c)(4) is to set out a procedure

under which a specified area would be

subject to a rebuttable presumption that

subsidence from underground mining

caused surface damage to noncommercial buildings or occupied

residential dwellings and related

structures. This evidentiary standard

would simplify establishing causation of

subsidence damage in many cases, by

relieving the regulatory authority of the

initial burden of providing evidence

that damage was caused by the mine

operation. The presumption would be

established only after it is determined

that damage caused by earth movement

did in fact occur within the specified

angle of draw. The burden of rebutting

the presumption will be appropriately

on the mine operator, who will have the

best information as to the nature,

timing, and sequence of mining

activities, geological conditions, etc.;

i.e., the types of facts directly related to

causation of the damage. Permittees may

provide information to rebut the

presumption either before an

enforcement action is taken, when the

regulatory authority or OSM is

determining whether a violation exists

because of a failure to repair or

compensate for damage; or after

enforcement action occurs.

OSM believes that the establishment

of a specific angle for the presumption

is important and has a number of effects

or ramifications. In any enforcement

proceedings concerning allegations of

subsidence damage to protected

structures, it will affect the initial

burdens of going forward with the

evidence for both the regulatory

authority and the permittee. It will also

affect operator permitting costs to some

extent, because under the amendments

to paragraph 784.20(a)(3) in this

rulemaking, once the angle for the

presumption is established, permit

applicants will be required to comply

with all presubsidence survey

requirements covering at least the area

within the angle to which the

presumption applies. OSM has

concluded that application of the

presumption to the area within a

specified angle provides needed

protection of surface interests, while

providing a clear limitation on the

permit expenses that could be incurred

in the absence of defined limits to a

presumption. As a result, OSM believes

applying the presumption to a specified

angle will balance the various purposes
16738 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

of SMCRA, including both

environmental protection and the

SMCRA section 102(k) purpose of

encouraging the full utilization of coal

resources through the application of

underground extraction technologies.

Since a presumption is important in

all cases, OSM has decided to adopt a

nationwide angle of draw for that

presumption. Among issues noted by

various commenters was concern over

using the ‘‘angle of draw’’ and the

appropriateness of the angle proposed.

Depending on factors such as the

location and size of the mine, the

percent of extraction, and the local

geology, the angle of draw or the area

where damage may occur can vary

considerably both regionally and

locally. Yet, there is a need for a

nationwide presumption standard so

long as it can be modified on a statewide or site-specific basis.

Many studies have been conducted to

measure the extent of surface

displacement and damage resulting

from subsidence. OSM has considered

such studies including:

Montz, H.W., and Norris, R.U., 1930,

‘‘Subsidence from Anthracite

Mining, with an Introduction on

Surface Report,’’ Transactions

AIME, Vol. 88, pp. 98–134.

Newhall, F.N., and Plein, L.N., 1936,

‘‘Subsidence at the Merrittstown

Air Shaft Near Brownsville,

Pennsylvania,’’ Transactions AIME,

Vol. 119, pp. 58–94.

Cortis, S.E., 1969, ‘‘Coal Mining and

Protection of Surface Structures are

Compatible,’’ Mining Congress

Journal, Vol. 55, No. 6, Jun., pp 84–

88.

Bauer, R.A., and Hunt, S.R., 1981,

‘‘Profile, Strain, and Time

Characteristics of Subsidence from

Coal Mining in Illinois,’’

Proceedings 1st Workshop on

Surface Subsidence Due to

Underground Mining, S.S.Peng, ed.,

West Virginia University,

Morgantown, WV, pp. 207–219.

Conroy, P.J., 1979, ‘‘Rock Mechanic

Studies, Longwall Demonstration at

Old Ben # 24, Benton, Ill.,’’ Phase

I and II Reports submitted to USBM,

57 pp.

Peng, S.S., and Chayan, C.T., 1981,

‘‘Surface Subsidence, Surface

Structural Damages and Subsidence

Prediction Modelling in the

Appalachian Coalfields,’’

Proceedings Workshop on Surface

Subsidence Due to Underground

Mining, S.S.Peng, ed., West Virginia

University, Morgantown, WV, pp.

73–87.

Adamek, V., and Jeran, P.W., 1981,

‘‘Evaluation of Existing Predictive

Methods for Mine Subsidence in

the US,’’ Proceedings 1st Annual

Conference on Ground Control in

Longwall Mining and Mining

Subsidence, SME–AIME, New York,

pp. 183–187.

Wade, L.V., and Conroy, P.J., 1977,

‘‘Rock Mechanic Study of a

Longwall Panel,’’ Preprint No. 77–

I–391, SME Fall Meeting, St. Louis,

MO.

Conroy, P.J., 1979, Rock Mechanics

Studies, Longwall Demonstration at

Old Ben #24, Benton, IL, Phase I

and II Report, Submitted to US

Bureau of Mines, 57 pp.

Bauer, R.A., and Hunt, S.R., 1981,

‘‘Profile, Strain, and Time

Characteristics of Subsidence from

Coalmining in Illinois,’’

Proceedings, Workshop on Surface

Subsidence Due to Underground

Mining, S.S.Peng and M.Harthill,

eds., West Virginia University,

Morgantown, WV, pp. 207–217.

Hood, M., Ewy, R.T., and Riddle, L.R.,

1981, ‘‘Empirical Methods of

Subsidence Predicting—A Case

Study,’’ Proceedings Workshop on

Surface Subsidence Due to

Underground Mining, S.S.Peng, ed.,

West Virginia University,

Morgantown, WV, pp. 100–123.

Gentry, D.W., Able, J.F., 1978, ‘‘Rock

Mass Response to Mining Longwall

Panel 4N York Canyon Mine,’’

Presentation at AIME Annual

Meeting, Atlanta, GA, 33 pp.

Allgaier, F.K., 1988, ‘‘Surface

Subsidence over Longwall Panels in

the Western US—Final Results at

the Deer Creek Mine, Utah,’’

Information Circular 9194, US

Bureau of Mines, 17 pp.

Durand, C.R., 1984, ‘‘Coal Mine

Subsidence Western United States,’’

Man-Induced Land Subsidence,

Reviews in Engineering Geology,

Vol. VI, T.L.Holzer, ed., pp. 151–

194.

Peng, S.S., and Chiang, H.S., 1984,

Longwall Mining, Wiley, New York,

708 pp.

Peng, S.S., 1986, Coal Mine Ground

Control, 2nd ed., Wiley, New York,

491 pp.

Hasenfus, G.J., 1984, ‘‘The Prediction of

Surface Subsidence Due to Room

and Pillar Mining in the

Appalachian Coalfield,’’ MS Thesis,

VPI & SU, 326 pp.

For the following reasons, OSM has

concluded that the angle of draw is a

reasonable way of delineating the area

within which it will be presumed that

damage was caused by subsidence. The

‘‘angle of draw’’ is the angle of

inclination between the vertical at the

edge of the underground mine workings

and the point of zero vertical

displacement at the edge of a

subsidence trough. Thus, the angle of

draw is one way to define the outer

boundary of subsidence displacement

that may occur at the surface. This angle

encompasses the area within which

both dynamic and static strains, as well

as phenomena such as curvature and

tilt, would occur from subsidence. As

the subsidence trough is developing,

soils and rocks within the trough

undergo dynamic strains. Dynamic

strains change as to intensity and

location, as subsidence progresses. After

subsidence is completed, the soils and

rocks could be in a condition of static

strain. Different types and degrees of

static strains occur in different locations

of the subsidence trough.

OSM has considered defining the area

in which a presumption would apply

using another type of angle, such as the

‘‘angle of critical deformation’’ (also

known as the ‘‘angle of break’’ or ‘‘angle

of fracture’’). This term refers to the

inclination from the vertical of the line

connecting the edge of the mined area

with the surface point exhibiting the

maximum tensile strain (or stretching).

The angle of critical deformation occurs

in the area between the boundary of the

subsidence trough and the projected

vertical from the edge of underground

workings. The angle of critical

deformation is always smaller than the

angle of draw.

However, OSM has concluded that,

while the angle of critical deformation

describes where the maximum tensile

strains (stretching) will occur once

subsidence has occurred, the angle is

not useful in describing where

subsidence damage to structures may

occur for two reasons. First, as

subsidence is occurring, dynamic

strains, both stretching and

compressing, vary in location and may

occur in places other than where those

strains will exist once subsidence is

complete. Thus, because the angle of

critical deformation does not necessarily

reflect where dynamic strains would

occur, it may not account for the area

where damage may be caused while

subsidence is still occurring. Second,

because the sensitivity of structures to

subsidence damage varies, structural

damage may be caused by strains far

less than the maximum tensile strain;

thus damage may occur to structures

that are not subject to maximum tensile

strain and that are located outside the

angle of critical deformation. Moreover,

structures may be more sensitive to

damage from other subsidence-related

phenomena such as curvature, tilt, and

compressive strains that may occur
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16739

within the angle of draw, but outside

the angle of critical deformation.

While recognizing regional and sitespecific variability in the angle of draw,

OSM has decided to establish a national

standard of 30 degrees. This is

consistent with the outer limits

determined for earth movement in most

subsidence studies across the United

States, particularly later studies

addressing long wall mining. Also, the

Subsidence Deformation Prediction

Model developed for OSM by Virginia

Polytechnical Institute, predicts an

angle of draw ranging from 27 degrees

to 31 degrees for 90 percent extraction

where the percentage of hard rock in the

overburden varies from 70 percent to 30

percent respectively. OSM has placed

the results of this computer-based

analysis in the administrative record for

this rulemaking. This nationwide

standard is conservative and offers

reasonable protection to surface owners

under anticipated subsidence scenarios.

However States, coal companies, and/or

citizens have a mechanism to adopt

state or site-specific values based on

regional or site-specific data. These

variations could be incorporated into

State programs or calculated on a

permit-specific basis. Thus, the

nationwide angle of draw can be

replaced by the State, either by a Statewide standard, or on a site-specific

basis, to the extent that a different angle

of draw is demonstrated to be more

reasonable.

Although the final rule provides that

the presumption shall apply to a 30-

degree angle of draw, it allows the

States to establish a different angle of

draw, based on geotechnical analysis of

the factors affecting potential surface

impacts of underground operations.

This angle of draw should be the angle

within which vertical displacement of

the surface is reasonably expected.

Further, as discussed above, the rule

ensures that the regulatory authority

also has the flexibility to establish a

different angle of draw on a site-specific

basis, where such variation is justified

by appropriate geotechnical analysis.

OSM anticipates that implementation of

this rule will be facilitated through the

use of computer-aided-design

technology for subsidence prediction.

Computer program packages for

predicting surface movement and

deformation caused by underground

coal extraction should be very helpful to

States and permittees in this regard.

OSM has designed a national computer

system, the Technical Information

Processing System (TIPS), in close

cooperation with the States, which

includes the subsidence prediction

model previously mentioned (which is

also commercially available), for sitespecific application. Thus the rule

properly provides a national standard,

but also provides for variations based on

state-of-the-art technology where

appropriate because of differences

among States or within States.

If Federal enforcement of paragraph

817.121(c)(2) occurs under 30 CFR

843.25 described infra, with respect to

subsidence-related damage to protected

structures caused by underground

operations conducted after October 24,

1992, the presumption of causation will

attach to the 30-degree angle of draw for

all existing permitted operations

whether or not a presubsidence survey

has been conducted pursuant to the new

survey requirements of this rule. The

presumption will apply in the period

before a State’s amended permitting

regulations are effective, because the

new requirements to survey the

condition of surface features will not

apply, so there will also be no provision

for surface owner denial of

permission—and therefore that ground

for negating the presumption will not

apply. However, during that time, if a

permittee elects to conduct a survey of

the presubsidence condition of

protected structures and access is

denied, the decisionmaker may consider

those circumstances in deciding

whether the presumption has been

established. Immediately after the State

amends its program, permittees could

proceed to request designation of a

different angle of draw or utilize the one

contained in the state program if

different than 30 degrees.

A number of commenters support the

proposed provision that would have

established a presumption that

subsidence caused damage to lands,

structures or features within a specified

angle of draw of the mining. One

commenter further notes that section

784.20 of the proposed rules requires

the applicant to show and to survey all

structures and facilities which may be

materially damaged by mine

subsidence, and states that if the

identified structures are in fact

damaged, then it is logical to assert that

the mine caused the damage to those

structures and a rebuttable presumption

process is reasonable.

Some commenters suggest that the

area in which the presumption would

apply should be broadened to a 45-

degree angle of draw. The commenters

allege that this greater area of

presumption is supported by the fact

that subsidence impacts vary in both

scope and range depending on many

different factors including the area’s

geography and the type of mining being

conducted. These same commenters add

that because of this uncertainty the

angle of draw must be large enough to

include the wide variety of subsidence

impacts.

Other commenters assert that the

proposed rule references no sound

technical or scientific basis to support

the presumption, and that OSM does

not have the authority to promulgate the

rule. These commenters claim that it is

well documented that damage caused by

subsidence depends on many different

factors which vary throughout the

United States; and that a presumption

that mining caused the damage within

a pre-set nationwide angle of draw fails

to take any of the important regional

factors into account. Also, commenters

argue that the appropriate angle of draw

depends on the geology of the region

and type of underground mining that is

being conducted. It is argued that these

regional differences in the effects of

underground mining are the very reason

that Congress intended for the States to

be the primary enforces of SMCRA. The

commenters also claim that the

‘‘Hasenfus’’ thesis cited by OSM in the

preamble does not support the proposed

rule’s 35-degree angle of draw because

the thesis is based on data collected

from room and pillar mines that were

mined before the implementation of

SMCRA’s subsidence control

requirements.

The commenters also allege that the

rule on presumption has no basis in

SMCRA and that the rule violates the

allocation of burdens and standards of

proof set out in Section 7(c) of the APA,

citing Director, OWCP v. Greenwich

Collieries, 114 S. Ct. 2251 (1994)

(hereafter, ‘‘Collieries’’). Commenters

argue that nothing in SMCRA provides

authority for OSM to establish the

standard or burden of proof in a civil

action seeking to enforce the repair and

compensation requirements of section

720 of SMCRA. Commenters also argue

that the allocation of the burdens of

production and proof must be

determined by the applicable law in the

forum where the cause is brought. In

addition, commenters allege that the

proposed rule violates section 7(c) of the

APA. Section 7(c) of the APA states that,

except as otherwise provided by statute,

the proponent of a rule or order has the

burden of proof. Thus, these

commenters interpret the APA to not

provide for an agency to relieve a party

of its initial burden of production to

make out a prima facie case. Under

commenters’ analysis, presumptions can

only be created when a party has first

introduced substantial evidence

supporting the presumption. Further,

the commenters speculate that relieving

a party of their duty to establish a prima
16740 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

facie case based on a preponderance of

the evidence might not survive a

challenge based on procedural due

process grounds.

OSM recognizes the concerns

expressed by the commenters

concerning variations in subsidence

angle of draw, and the angle wherein

damage is expected. As discussed

above, OSM has designed the rule to

address the possible range of

appropriate angles within which it

would be reasonable to presume that

damage is subsidence related. OSM does

not agree with commenters’ arguments

concerning lack of authority under

SMCRA or the APA. OSM believes the

rule is fully authorized by, and

appropriate for implementation of

section 720(a) which requires prompt

permittee repair or compensation for

damage to protected structures; section

720(b), which requires the Secretary to

adopt implementing rules; section 516,

which authorizes the Secretary to

‘‘promulgate rules and regulations

directed toward the surface effects of

underground coal mining operations’’

and to consider the distinct difference

between surface coal mining and

underground coal mining; section

501(b), which requires the Secretary to

adopt implementing procedures and

requirements; and section 201(c), which

requires the Secretary to ‘‘publish and

promulgate such rules and regulations

as may be necessary to carry out the

purposes and provisions of this Act.’’

The Secretary is using his rulemaking

authority to adopt provisions reasonable

and necessary to guide and facilitate

implementation of these sections.

Further, commenters have

mischaracterized the effect of the

presumption established under this

provision. The presumption does not

change the ultimate burden of proof in

a determination. The ultimate burden of

persuasion still lies with the regulatory

authority or OSM. OSM believes that

inferences and presumptions are an

essential aspect of the adversary

process. A trier of fact must often

determine the existence of an element of

a violation from the existence of one or

more evidentiary facts. From its

experience in implementing SMCRA,

OSM believes that there is sufficient

nexus and probability of causation

between the facts that are deemed to

give rise to the rebuttable presumption

under this paragraph, and the resulting

presumption. As indicated above, OSM

believes this presumption is particularly

appropriate in light of the fact that the

permittee will have the best access to

the facts that will be key to any ultimate

conclusions on the issue. Such a

presumption is consistent with the

traditional approach that the burden of

going forward with evidence normally

falls on the party with knowledge of the

facts involved. See, e.g., EDF, Inc. v.

EPA, 548 F.2d 998 at 1004 (D.C. Cir.

1976) as modified and supplemental

opinion on denial of rehearing.

In most cases, OSM does not expect

section 7(c) of the APA to apply, as most

enforcement cases are properly disposed

of without the requirement for a formal

hearing subject to such provisions of the

APA. Rather, the presumption in this

rule establishes a standard pursuant to

which a regulatory authority shall

evaluate permittee compliance with a

SMCRA performance standard, for

purposes of regulatory authority

enforcement of SMCRA. Further, the

presumption helps to ascertain the

scope of the obligation to repair.

The presumption will not relieve any

party of the initial burden of

production, but rather defines what that

burden will be, and when it may shift,

in enforcement actions under this

paragraph. That is, in enforcement

actions by the State regulatory authority

or OSM, if the evidence establishes that

damage has occurred to protected

structures as a result of earth movement

within the applicable angle of draw,

then this evidence satisfies the initial

burden of production, and then gives

rise to a rebuttable presumption of

causation by subsidence. At that point

the regulatory authority or OSM would

have satisfied its obligation to make a

prima facie case on the issue of

causation. The permittee then has the

burden of production to rebut the

presumption or to negate other relevant

evidence, by providing information that

relates to the effect of the underground

mining, such as information on the

nature and timing of the underground

mining operation, geological conditions

in the area mined, and the premining

condition of the surface feature. The

presumption can be rebutted with

technical support either prior to an

enforcement action being taken by the

regulatory authority, or in response to

such an action during the review or

appeal process. The proof needed to

rebut the presumption will be

determined on a case-by-case basis.

Because the ultimate burden of

persuasion still lies with the regulatory

authority or OSM, in any cases in which

a formal hearing is required to be held,

the rebuttable presumption is fully

consistent with section 7(c) of the APA,

and with the holding in the Collieries

case cited by commenters (114 S. Ct.

2251). That case interpreted the section

7(c) burden of proof provision, which

provides that, ‘‘[e]xcept as otherwise

provided by statute, the proponent of a

rule or order has the burden of proof.’’

The court held that, under that APA

provision, the proponent of an order has

the burden of persuasion, not just the

burden of production (or the burden of

going forward with the evidence). (114

S. Ct. at 2251). In any case, a

determination as to causation must be

based on consideration of all relevant

and reasonably available information.

OSM does not agree that it is

precluded from establishing such a

rebuttable presumption based on the

commenters’ assertion that allocation of

burdens of production and proof must

be determined by the applicable law of

the forum. Underlying State law does

not preclude OSM from adopting

reasonable rules implementing SMCRA;

rather, inconsistent State law must be

changed to be consistent with SMCRA

and implementing regulations.

Therefore, OSM anticipates that an

implementing revision to the State

regulatory program will be appropriate

in most States.

Contrary to commenters’ expressed

concern, OSM does not intend to

require a court to apply the presumption

to citizen suits seeking civil remedy

under the performance standards of

section 720 of SMCRA; OSM anticipates

that the court in question will establish

the standard or burden of proof to be

applied in any civil action before it,

consistent with SMCRA.

A commenter has indicated concerns

that this presumption will be unfair to

existing operations, because they will

not have done a presubsidence survey

and so will be unable to document

premining conditions. OSM does not

agree. Permittees have had notice of the

amendment establishing the

requirements for repair, replacement,

and compensation since enactment of

the Energy Policy Act in 1992.

Therefore, permittees have had ample

opportunity to conduct a premining

survey to document premining

conditions, if they wished to establish

baseline information. Further, nothing

in existing rules or in the rules being

adopted by OSM precludes a permittee

from updating information as to

premining surface conditions during the

course of the mining operation.

Therefore, a permittee could reasonably

provide a presubsidence survey and

then provide an update of conditions a

reasonable time before mining is to

begin in a particular area. And since

permittees are in the best position to

establish both what changes have

occurred and what actions and

geological factors are associated with

those changes, they are not

disadvantaged by a presumption that

recognizes their advantage in
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16741

documenting and evaluating the

consequences of their mining. Also,

OSM assumes that if a permittee of an

existing operation has made reasonable

efforts to conduct a presubsidence

survey which documents the

presubsidence condition of protected

structures, and permission has been

refused by a property owner, then in

any enforcement proceeding OSM or the

regulatory authority may take these

circumstances into account in

determining what weight, if any, to give

to the rebuttable presumption of

causation.

OSM believes that commenters’

concerns about fairness and about due

process with regard to the presumption,

are also misplaced. Due process

concerns, at bottom, relate to the

fundamental fairness of a procedure.

OSM believes that the rebuttable

presumption will provide a fair process,

for several reasons, including the

following: first, in adopting a State

program amendment, the State may

specify a different standard for the angle

where appropriate for conditions in the

State; second, after amendment of the

State program, the permittee may

demonstrate that the presumption

should apply to a different angle of

draw on the particular site; third, in

every case the regulatory authority must

establish that the structures are within

the angle of draw to which the

presumption applies, that damage has

occurred to the protected structure and

that it was caused by earth movement;

fourth, the permittee is in the best

position to provide baseline information

and information as to whether

subsidence caused the damage, once

damage is established; fifth, the

decisionmaker must consider all

relevant and reasonably available

information; sixth, the presumption

does not apply where access for a

presubsidence survey pursuant to these

rules was denied (and if access for a

voluntary survey of presubsidence

conditions is denied for an existing

operation, the decisionmaker may

consider those circumstances in

deciding whether the presumption has

been established); seventh, the

presumption does not change the

ultimate burden of proof in a

determination; and eighth,

administrative and judicial appeals

procedures are available to all aggrieved

parties.

Some commenters urge that OSM

adopt a presumption of subsidence

causation for damage to water supplies,

similar to that proposed for damage to

lands, structures, and features at

817.121(c)(4). Commenters stated that

such a presumption should apply to

damage to water resources within the

greater of a 60-degree angle of draw or

300 feet of the outer boundary of the

underground coal mining operation.

However, OSM did not propose such a

presumption, and believes that water

supply damage causation does not lend

itself to such a presumption. OSM bases

this conclusion in part on its belief that

causation of damage to water supply

from springs and wells can be far more

complex than causation of damage to

surface lands and structures, and can

involve a potentially greater variety of

geological and hydrological formations

and dynamics including depth, lateral

extent, and recharge of the affected

supply. Therefore, OSM has not

established such a presumption in this

rulemaking.

However, OSM has concluded that

the absence of a presumption of

causation for replacement of affected

water supplies will not inhibit the water

supply owner’s ability to receive water

supply replacement. If the water supply

has been contaminated, diminished, or

interrupted by the underground mining

operation, the permittee is required to

promptly replace the affected supply. In

the event that the permittee does not

replace the water supply, and the water

supply owner contacts the regulatory

authority regarding water loss, the

regulatory authority must investigate to

determine if there is sufficient evidence

to believe that the domestic, drinking, or

residential water supply was adversely

affected by subsidence from the

underground mining operation and

subsequently not promptly replaced by

the permittee. If the regulatory authority

determines that sufficient evidence

exists that a protected water supply has

been contaminated, diminished, or

interrupted by the underground mining

operation, then the regulatory authority

will initiate appropriate enforcement

action. In any such enforcement action,

the burden of proving that the water

supply was damaged by subsidence

from the underground mining operation

is not on the water supply owner, who

may not have knowledge of geological

conditions and the nature and timing of

the mining activities. Rather the initial

burden is on the regulatory authority to

establish a prima facie case that the

water supply was affected by the

underground mining. Then the burden

of going forward with evidence to rebut

the prima facie case would shift to the

permittee. The ultimate burden of proof

is on the regulatory authority.

817.121(c)(5)

This section as proposed would have

provided that, if material damage from

subsidence occurs to land, structures, or

facilities protected under paragraphs

(c)(1) through (c)(3) of this section, the

regulatory authority would require the

permittee to obtain additional

performance bond in the amount of the

estimated cost to repair the material

damage from subsidence to the

protected land, structures, or facilities.

The permittee would have been

required to obtain the additional bond

within 90 days of the occurrence of

damage unless repair or compensation

is completed within that time frame, in

which case no additional bond would

be required. In response to comments,

these proposed requirements are being

modified in the final rule. The final rule

ensures that replacement of water

supplies protected under paragraph

817.41(j) is also addressed. Further, the

final rule provides that if the permittee

intends to repair the damage, the

required additional bond would amount

to the estimated cost of the repairs. If

the permittee intends to compensate the

owner, the additional bond would

amount to the diminution in value of

the protected land or structures. If the

permittee will replace a protected water

supply, the required additional bond

would amount to the estimated costs to

replace the protected water supply.

Also, in response to comments, the final

rule provides that, on a case-by-case

basis, the 90-day period for posting

bond can be extended for up to one year

under certain circumstances. This can

occur when the permittee demonstrates

and the regulatory authority finds in

writing that subsidence is not complete,

that not all probable subsidence-related

damage has occurred to lands or

protected structures or that not all

reasonably anticipated changes have

occurred affecting the protected water

supply. In such cases, it would be

unreasonable to complete within 90

days the repair of subsidence damage or

the replacement of protected water

supplies.

Commenters assert that the proposal

is not adequately explained and that the

requirements would be difficult for

some permittees to meet. Also, the rule

fails to mention any procedure for the

bond’s release. Further the commenters

argue that surety companies would be

reluctant to post bonds for operations

subject to the broad scope of the new

rules. Without surety companies

providing the bonds the permittees

would be forced to finance the bonds

themselves. This would place a severe

financial burden on the permittee which

would make it even more difficult for

them to prevent or repair subsidence

related damage.

OSM disagrees with the commenters

that surety companies would be
16742 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

reluctant to post the bonds provided for

in this paragraph, and that the

requirement to obtain additional

bonding on a temporary basis would

impose such a severe financial burden

on the permittee so as to impede their

ability to repair subsidence related

damage. The current rules at 30 CFR

Part 800 already require the permittee to

adjust the amount of the bond when the

costs of future reclamation increase or

when a reclamation obligation is

established; for example, when material

damage from subsidence occurs. The

final rule is intended to avoid

incomplete reclamation by clarifying the

application to actual subsidence damage

of the requirement in 30 CFR 800.15(a)

that the regulatory authority specify a

period of time or a set schedule to

increase the amount of bond when the

cost of reclamation changes. Thus, this

provision assures that funds are

available in a timely fashion to cover the

cost of repairs in case of default by the

permittee and to encourage prompt

repair through the use of a grace period.

The final rule does not establish a time

limit for repair but rather allows the

permittee a 90-day grace period to

perform repairs, during which time no

additional bond need be posted. The

obligation to post increased bond only

applies 90 days after damage has

occurred. It should be noted that under

paragraph 800.14(c), if the liability

insurance policy required under section

800.60 would provide coverage

sufficient to fund the reclamation of

subsidence damage, that insurance may

be substituted for increased bond.

Procedures for bond release are set forth

in sections 800.17 and 800.40.

Commenters charge that the

legislative intent behind the Energy

Policy Act shows that although the idea

of additional bonding for subsidence

damage and water replacement was

included in the House version of the

Energy Policy Act, the provision was

deleted in the final conference

committee version and the proposed

rule requiring additional bonding would

be contrary to the legislative intent of

Energy Policy Act.

The commenters also rely on case law

that has found that bonding for

subsidence would be a ‘‘highly

speculative endeavor’’ and that a change

to such an approach would require

‘‘significant new evidence.’’ The

commenters reference the decision of

the court of appeals in National Wildlife

Fed’n v. Hodel, 839 F.2d 694 (D.C.Cir.

1988). This decision affirmed the

Secretary’s explanation that because it is

difficult to predict with reliability when

and how severely subsidence damage to

the surface will occur, it is reasonable

to issue a permit for underground

mining without requiring the posted

bond amount to reflect any bond

amount for potential subsidence

damage, provided that the bond amount

could be adjusted upward after the

damage began occurring. The court of

appeals found that one of the distinct

differences between surface and

underground mining is the difficulty in

accurately estimating the cost of

repairing subsidence related material

damage.

OSM does not agree with the

commenters’ interpretation of the

legislative history of the Energy Policy

Act or the cited case on this issue. As

noted above, OSM believes the rule

primarily clarifies the application of

existing bonding requirements which

require adjustment of the bond amount;

thus, Congress may have deleted further

language on this subject because it was

not clearly needed. OSM concludes that

the proposed rule is consistent with the

case cited by commenters, because the

proposed rule provides that the bond

amount will be increased to cover

required repair work after damage

occurs, and only if the repair work is

not to be completed within 90 days. At

that point it is not a ‘‘highly speculative

endeavor,’’ since the damage will have

occurred and estimates of repair costs

can be reasonably established. Also, the

permittee has control over the timing of

repairs and can avoid the bond by

repairing or compensating promptly.

Thus, while OSM concurs in the

rationale of the cited decision, as it

concerns pre-subsidence bonding for

anticipated subsidence damage, the

decision is not applicable to the

circumstances addressed in this rule.

The proposed rule also provides

substantial flexibility to the permittee,

because it allows liability insurance

proceeds to be applied to the repair

effort. OSM believes this rule is

consistent with SMCRA and is not

inconsistent with any provisions of the

Energy Policy Act.

Commenters allege that permanent

repair of subsidence damage to

structures and lands is seldom

completed within 90 days. Potential

damage to structures from tertiary

settlement and from adjacent mining

could delay repair for more than a year.

Similarly, to minimize disruption to

sowing or harvesting of crops, repair of

drainage patterns in agricultural fields

should be delayed until the entire field

is subsided, and this is rarely possible

within 90 days. The commenters argue

that to impose additional bonding in

such cases when repair cannot be

completed within 90 days,

accomplishes nothing but additional

financial burden on the permittee and

encourages premature and substandard

restoration of protected features. OSM

has considered these arguments and has

made some adjustment to the final rule.

OSM believes that if delays in repair are

likely, then normally bond amounts

should be adjusted to ensure that funds

will be available later to pay for the

repairs, since delays increase the risk

that permittee funds may not be

available. However, OSM does not

intend that the rule encourage

inappropriate or premature restoration

measures when subsidence related

damage is not yet complete, so that

subsequently the permittee would have

to redo the repairs. Therefore, under the

final rule the regulatory authority can

extend the 90-day timeframe up to one

year under limited circumstances as

previously described.

Section 843.25—Direct Federal

Enforcement for Repair of Subsidence

Damage.

In response to comments asking for

clarification as to how immediate

enforcement of the Energy Policy Act

meshes with the primacy scheme

established by SMCRA, OSM is adding

a new section 843.25, to provide

procedures for initiating and

terminating direct Federal enforcement

as appropriate, for section 720 of

SMCRA concerning subsidence damage

caused by underground mining that

occurred after October 24, 1992. Section

720(a) of SMCRA requires that

‘‘Underground coal mining operations

conducted after the date of enactment of

this section shall comply with each of

the following requirements: * * *.’’ In

section 720(b), the Secretary is directed,

within one year after the date of

enactment of the Energy Policy Act, and

after notice and opportunity for

comment, to promulgate final

regulations to implement subsection

720(a). Thus, the requirements of

subsection 720(a) to promptly repair,

replace, or compensate were made

effective immediately upon enactment

of the provision, but the Secretary was

directed to adopt implementing

regulations during the following year.

843.25(a)

Under paragraph (a) of the final rule,

within 120 days from the publication of

the rules, OSM will determine for each

State with an approved State regulatory

program, what enforcement procedures

will apply for purposes of implementing

SMCRA section 720(a) and

implementing regulations. The specific

performance standards implementing

section 720(a) are set forth in paragraphs

817.41(j) and 817.121(c)(2). OSM will
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16743

determine for each such State whether

(1) there will be direct interim Federal

enforcement of the Energy Policy Act

and implementing performance

standards, for some or all surface coal

mining operations; or (2) State

enforcement will occur, backed up by

OSM using the oversight procedures of

paragraphs 843.11 and 843.12(a)(2); or

(3) a combination of direct Federal

enforcement and State enforcement will

occur. As part of the determination

process, (4) OSM will consult with each

affected State and provide opportunity

for public comment. OSM will publish

its determination in the Federal

Register.

In the preamble to the proposed rules

(58 FR 50182) OSM ‘‘concluded that

Congress intended new section 720(a) to

immediately supersede inconsistent

State program performance standards,

by operation of law, as of the effective

date of the final Federal rules.’’ OSM

also stated in the preamble to the

proposed rule, ‘‘OSM believes it is

essential to provide as orderly a

transition as possible for implementing

the Energy Policy Act.’’ Id. OSM

believes it is also essential to give the

fullest possible effect to the State

primacy scheme of SMCRA, in

implementing the provisions of section

720, including the effective date. Upon

further reflection, OSM has concluded

that it is not clear from the legislation

or legislative history, how Congress

intended that section 720 was to be

implemented, in light of existing

SMCRA provisions for State primacy.

Thus, OSM has a certain amount of

flexibility in implementing section 720.

After weighing these considerations,

OSM intends to implement section 720

promptly, but will pursue federal

enforcement without undermining State

primacy under SMCRA. This decision

reflects OSM’s general policy of

developing a shared commitment with

the States in enforcing the Act. To

achieve this balance, OSM intends that

the consultation and comment process

provided for in paragraph 843.25(a) will

allow OSM to evaluate affected States’

enforcement authority and State plans

for implementing section 720, to

determine to what extent OSM can rely

on state primacy, and ensure prompt

compliance with section 720, while

complying with the requirement for

implementing rules. Once OSM has

consulted with the States as to

implementation of section 720, OSM

will have the information necessary to

determine the appropriate enforcement

approach for each State. OSM

anticipates that some States may have

no underground mining, and that some

states may have no complaints of

damage from underground mining that

would be subject to section 720. Some

States are already in the process of

adopting provisions like section 720,

and may promulgate such provisions on

or shortly after the effective date of

these regulations. Providing for direct

Federal enforcement in such States may

be unnecessary. Providing for direct

Federal enforcement could be

unnecessary in any States that adopt

provisions covering mining after

October 24, 1992, if the State provisions

are effective on or will be shortly after

the effective date of these regulations.

However, some States may take two or

three years under Part 732 to adopt State

program amendments. For States that do

take such an extended time to adopt

implementing regulatory program

provisions, OSM may well determine it

necessary to provide direct Federal

enforcement for any damage caused by

underground mining that occurs after

October 24, 1992, until damage caused

by underground mining is covered by

such a State provision. OSM also

anticipates that a number of States may

not authorize enforcement of provisions

analogous to section 720, as of October

24, 1992. Kentucky has already

informally advised OSM that it does not

anticipate providing for enforcement

covering mining that occurred before

July, 1994. In those States, to ensure

compliance with section 720(a) OSM

will provide direct Federal enforcement

for any claims of damage caused by

underground mining which occurs after

October 24, 1992, and predates State

program amendment. Such Federal

enforcement should cause no surprise to

permittees, who have been aware of

their obligations since passage of the

Energy Policy Act in 1992.

One commenter opined that direct

enforcement was unnecessary, and that

existing procedures for State program

amendments would be sufficient to

ensure appropriate enforcement. OSM

does not agree. As set out above, OSM

believes that direct Federal enforcement

could be necessary in some States, in

order to ensure that prompt compliance

is provided with minimum disruption

of existing procedures for State primacy.

The procedures established in

paragraph 843.25(a) will allow for Stateby-State determination after appropriate

input from affected persons concerning

the necessity for direct Federal

enforcement.

843.25(b)

Paragraph (b) clarifies how direct

Federal enforcement procedures will

apply, to the extent they are initiated,

and how direct Federal enforcement

will be phased out, once State programs

are amended to address section 720 and

the implementing Federal regulations.

Under paragraph (b)(1) of the final

rule, upon a determination by OSM

under paragraph (a) that direct Federal

enforcement is necessary, paragraph

817.121(c)(2) will apply directly to

surface coal mining operations in States

with an approved State regulatory

program. Paragraph 817.121(c)(2) will

apply directly to failure to repair or

compensate for subsidence-related

material damage to occupied residential

dwellings and related structures and

non-commercial buildings, and

paragraph 817.41(j) will apply directly

to failure to replace a contaminated,

diminished, or interrupted drinking,

domestic, or residential water supply.

Both paragraphs apply directly to

damage caused by underground mining

activities that occurred after October 24,

1992.

Under paragraph (b)(2), upon a

determination by OSM under paragraph

(a) that direct Federal enforcement is

necessary, the provisions of paragraph

843.12(a)(2) will not apply to direct

Federal enforcement implementing

paragraphs 817.41(j) or 817.121(c)(2).

When, on the basis of a Federal

inspection pursuant to paragraph (b), an

authorized representative determines a

violation exists of paragraph 817.41(j) or

817.121(c)(2), the authorized

representative will issue a notice of

violation or cessation order, as

appropriate. Paragraph 843.12(a)(2)

provides for a ten-day notice (TDN) to

a State, and opportunity for the State to

take appropriate action or show good

cause for failure to act, before an

authorized representative would issue a

notice of violation or cessation order.

Under paragraph (b)(3), paragraph (b)

providing for direct Federal

enforcement will remain effective in a

State with an approved State regulatory

program until approval, pursuant to Part

732, of provisions adopted by the State

consistent with paragraphs 817.41(j) and

817.121(c)(2). Upon approval of those

provision, paragraph (b) will remain

effective only for violations of

paragraphs 817.41(j) and 817.121(c)(2)

that are not regulated by the State.

Some commenters request

clarification as to how existing

procedures for ensuring State primacy

in regulatory program implementation

will apply under the proposed rule.

These commenters allege that OSM has

no authority to ignore existing TDN and

State program amendment procedures

which ensure State primacy in

enforcement of SMCRA and ensure that

the approved State regulatory program

will apply to mining operations in the

State until established procedures are
16744 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

followed to require State program

changes. Other commenters allege that

direct Federal enforcement would be

inconsistent with SMCRA. OSM does

not agree. OSM believes that the limited

direct enforcement procedures it is

adopting are authorized by both section

720 and section 201(c) of SMCRA.

Congress provided no specific statement

as to how OSM was to ensure prompt

compliance by underground coal

mining operations, for damage caused

by any underground mining after

October 24, 1992. Congress did

recognize that to develop such a

regulatory scheme would require

rulemaking, and provided for such

rulemaking in section 720. Enforcement

of section 720 will be required to apply

to mining that occurs after October 24,

1992. OSM expects that some number of

States will not provide implementation

of section 720 for mining that has

occurred after October 24, 1992, but

before State program amendment, and

that such States may prefer OSM to

carry that enforcement burden. Based on

past experience, OSM also expects that

the normal process for State regulatory

program amendment and OSM approval

of State program amendments could

take as much as two or three years, after

this rule is finalized. Thus, if only State

program amendment procedures were

followed, it could be as long as five

years after enactment of section 720

before some States actually enforced the

section. OSM has concluded that

following the routine procedures for

State program amendment and for

TDN’s in implementing these rules,

would frustrate the requirement for

prompt repair, replacement, or

compensation for all damage caused by

underground mining occurring after

October 24, 1992. In reaching this

conclusion, OSM considered

preliminary information as to

complaints already filed with State

regulatory authorities alleging violations

of section 720. OSM requested such

information from several States in

which a substantial number of

underground coal mining operations are

permitted. The States of Virginia,

Pennsylvania, West Virginia, and

Kentucky have already received a total

of over 300 complaints of violations of

section 720. Therefore, OSM has

concluded that direct Federal

enforcement as outlined above, is

consistent with, and essential to a

reasonable implementation of section

720. However, in response to comments

expressing concern about disruption of

existing procedures, OSM has sought to

provide a more limited direct

enforcement process which will cause

less disruption of existing procedures in

each State.

OSM believes that SMCRA section

201(c)(2) also authorizes this approach.

Section 201(c)(2) provides that the

Secretary, acting through OSM, will

‘‘publish and promulgate such rules and

regulations as may be necessary to carry

out the purposes and provisions of this

Act.’’ Since Congress did not address

the issue of how OSM was to meet the

mandate for prompt compliance as of

October 24, 1992, the Secretary is using

his rulemaking authority to provide for

direct Federal enforcement where

reasonably necessary to implement

Congress’ mandate for prompt

compliance. OSM has concluded that

the existing program amendment and

enforcement process may not be

sufficient to ensure prompt compliance

with the statute, and has decided to

adopt rules providing for direct Federal

enforcement as necessary to ensure

prompt compliance with section 720(a).

Commenters argue that the proposal

to provide for direct Federal

enforcement ignores Federal case law

which indicates that, as a general

proposition, the State program, not

SMCRA, is the law within the State.

OSM recognizes that, under existing

rules implementing SMCRA, States with

approved regulatory programs have

primary responsibility for implementing

SMCRA, based on the approved

program. However, in this rule OSM has

carved out a limited exception to the

general proposition, to the extent

necessary to give reasonable force and

effect to section 720, while maintaining

so far as possible State primacy

procedures. OSM believes that the

process adopted in this final rule is

consistent with and authorized by

Congress under the Energy Policy Act,

and that case law interpreting other

provisions of SMCRA is not necessarily

dispositive.

One commenter alleges that OSM had

not provided sufficient information

about enforcement procedures to enable

commenters to understand or comment

on the procedures for direct

enforcement. OSM does not agree. OSM

provided sufficient information in the

proposed rule to indicate that, in the

interests of ensuring prompt

compliance, the regulations would be

made immediately and directly

enforceable. OSM thereby informed all

interested persons that OSM did not

expect to postpone enforcement

pending State program amendment.

And OSM believes that neither industry

nor State regulatory authorities will be

prejudiced by such immediate

enforcement, since all interested

persons were put on notice by the

statute, as well as the proposed rule,

that prompt compliance would be

required as of October 24, 1992. If there

are concerns about opportunity to

understand and comment on specific

procedures for immediate enforcement,

OSM believes that any such concerns

will be adequately addressed by the

process for consultation and

opportunity to comment on appropriate

measures for each State.

Other commenters allege that OSM

has failed to provide timely rulemaking

implementing section 720, and that

OSM must promulgate an interim final

rule which makes effective for all

Federal and State programs, including

the Indian lands program, the

requirements of section 720, effective

October 24, 1992. These commenters

further argue that all permits should be

modified to include the requirements of

section 720 as permit conditions, and

that all permitting authorities should be

required to require collection and

analysis of the data necessary to

implement section 720. OSM does not

agree. OSM had earlier decided that

such an interim final rule was not

appropriate, because of OSM’s desire to

avoid any unnecessary impairment of

State primacy. OSM believes that

reasonably prompt compliance will be

assured in States with approved State

regulatory programs under the

procedures OSM is adopting, which will

provide expeditious direct Federal

enforcement where determined

necessary. And an interim final rule will

not be necessary for Federal program

lands or Indian lands because, as

discussed below, these final rules are

incorporated by reference in the

regulatory programs for such lands, and

will apply upon the effective date of

these rules. Further, OSM is following

its normal rulemaking procedures,

consistent with the APA. OSM believes

that in section 720(b) Congress

contemplated notice-and-comment

rulemaking as an appropriate

mechanism for implementing section

720(a). Given the difficult and

controversial issues in this rulemaking,

OSM believes it is important to assure

full and fair opportunity for all

interested persons to comment, and

opportunity for OSM to consider all

comments before OSM adopts

implementing rules. OSM also believes

the procedures set out in these rules

will assure reasonably timely

compliance with section 720 with less

uncertainty and less disruption of the

existing process than would be caused

by the actions advocated by these

commenters.

OSM concludes that there will be no

prejudice to the interests of
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16745

underground coal mine operations to

the extent direct Federal enforcement

will occur. The industry was on notice

that section 720 does specifically

require that underground mine

operations promptly repair, replace, or

compensate for subsidence damage to

protected features. The obligation was

not changed by this rulemaking. The

only question was the mechanism by

which the requirement for prompt

action would be enforced. And, since

Federal enforcement can occur without

delay for State program amendments,

OSM believes the direct Federal

enforcement process will work to the

advantage of all interested persons. In

cases where direct Federal enforcement

is instituted, any evidentiary issues in

enforcement should be more readily

resolved, because facts will be fresher

and more readily recalled than they

would be after the delay required for

amendment of a State program. In such

cases the question whether damage was

caused by subsidence from an

underground mining operation may be

easier to resolve under direct Federal

enforcement, than it would be later after

the delays required to implement an

amended State program.

Effect in Federal Program States and on

Indian Lands

The rules adopted today will be

applicable through cross-referencing in

those States with Federal programs and

on Indian lands. The States with Federal

programs are California, Georgia, Idaho,

Massachusetts, Michigan, North

Carolina, Oregon, Rhode Island, South

Dakota, Tennessee, and Washington.

The Federal programs for these States

appear at 30 CFR Parts 905, 910, 912,

921, 922, 933, 937, 939, 941, 942, and

947, respectively. The Indian lands

program appears at 30 CFR Part 750. In

accordance with 30 CFR 774.11, with

respect to existing operations, OSM will

notify permittees of the need to revise

their permits to conform with the

changes to 30 CFR 817.41(j) and

817.121(c).

Effect on State Programs

The performance standards set forth

in 30 CFR 817.41(j) and 817.121(c)(2)

are required to implement new SMCRA

sections 720(a)(1) and (2). New SMCRA

section 720(a) requires that operations

conducted after October 24, 1992

comply with these provisions.

In the interim pending direct

enforcement by a State, enforcement of

paragraphs 817.121(c)(2), 817.121(c)(4),

and 817.41(j) of this rule will be

provided as set forth in section 843.25

of this rulemaking. For purposes of such

interim enforcement, the definitions

adopted in this rulemaking at section

701.5 and the presumption at paragraph

817.121(c)(4) will be effective and

enforced on the same date as the

provisions of paragraphs 817.41(j) and

817.121(c)(2).

For all other provisions in the final

rule, OSM will follow established

procedures for notice of required

changes in State regulatory programs.

The additional provisions will become

effective upon the adoption of

counterpart State regulatory program

provisions in primacy States. OSM will

evaluate permanent State regulatory

programs approved under § 503 of the

Act to determine whether any changes

in these programs will be necessary. If

the Director determines that certain

State program provisions should be

amended in order to be made no less

effective than the revised Federal rules,

the individual States will be notified in

accordance with the provisions of 30

CFR 732.17.

III. Procedural Matters

Federal Paperwork Reduction Act

The collections of information

contained in this rule have been

approved by the Office of Management

and Budget under 44 U.S.C. 3501 et seq.

and assigned clearance numbers 1029–

0039 and 1029–0048.

Executive Order 12866

This rule has been reviewed under

Executive Order 12866.

Benefits

While the cost of the rulemaking can

be estimated, the benefits are not readily

or completely quantifiable. Water loss

and structural damage caused by

subsidence from underground coal

mining can have very disruptive

personal and financial impacts,

particularly to middle class and rural

landowners. The benefit of avoiding the

personal consequences, including those

associated with health and safety, is

difficult to assess. However, one of the

clear benefits of the rule is that the

responsibility to repair property damage

and replace lost water supplies is

shifted from property owners suffering

the damage to the mining operations

that cause the damage.

OSM’s regulations would require

replacement of the landowner’s

domestic water supply in a timely

manner. The surface landowner would

have water replacement, as necessary,

without assuming any additional costs.

Under the regulations, landowners are

afforded additional protections for their

homes and domestic water supplies.

The process for establishing causation

between mining and damage to homes

and land is simplified. Also, the rule

provides that subsidence damage within

a specified area associated with a coal

mining operation will be presumed to

have been caused by that operation, and

that the operator will have the burden

of refuting such a presumption. This

shifts the burden of providing evidence

from the property owner to the operator

who would have better information as to

the nature and timing of the mining

activities.

The rule also provides the property

owner with an option to receive

compensation in a lump sum payment

as an alternative to annual payments for

operation and maintenance costs for a

permanent water supply. If agreed to by

the landowner, a one-time payment

based on the present worth of the

increased annual operating costs for a

period of time agreed upon by the

landowner and the coal mine operator

would fulfill the operator’s obligation.

Such a payment plan, rather than

annual or other periodic payments,

would be preferable to the property

owner in those cases where the operator

might encounter financial difficulties or

simply go out of business.

Property owners and coal mine

operators would benefit from the

requirement to conduct a pre-mine

survey. The survey must inventory and

document the pre-mining condition of

the potentially affected structures and

renewable resource lands. Under this

requirement, both the surface owner and

the mine operator are provided with a

more accurate record of the status of the

homes and land prior to mining. Hence,

the record would be a fairer basis for

enforcement in the event of subsidence.

Estimated Costs

The final rule requires all

underground coal mining operations

promptly to repair or compensate for

any material damage to non-commercial

buildings and occupied residential

dwellings or related structures as a

result of subsidence due to underground

coal mining operations. Permittees in

both primacy States and Federal

program States, as well as on Indian

lands, are required to comply with this

provision for operations conducted after

October 24, 1992. This provision is

necessary to implement new SMCRA

section 720(a)(1) of the Energy Policy

Act of 1992.

The estimated cost to coal operators to

meet this requirement of the Energy

Policy Act is $12.6 million. Most states

adopted provisions to implement this

requirement following passage of the

1992 Act. These states account for $11.7

million of the $12.6 million estimated
16746 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

cost. Other states will need to

promulgate implementing provisions on

or shortly after the effective date of

these regulations. OSM estimates that

the cost to coal operators to meet this

requirement in those additional states

will be $900,000.

The final rule also requires the

permittee to promptly replace any

drinking, domestic or residential water

supply that is contaminated, diminished

or interrupted by underground mining

activities conducted after October 24,

1992, if the affected well or spring was

in existence prior to the date the

regulatory authority received the permit

application for the activities causing the

loss, contamination or interruption.

This requirement that the permittee

promptly replace any drinking,

domestic, or residential water supplies

that have been adversely affected by

underground activities is necessary to

implement the provision of new

SMCRA section 720(a)(2) of the Energy

Policy Act of 1992.

Under the regulations, the operator

would pay the capital costs of installing

the replacement water supply. For

example, if the use of well water can

continue, the operator would pay the

cost of designing, drilling, and

completing a new or deeper well;

purchasing and installing a pump; and/

or purchasing and installing a treatment

system, as necessary. If the replacement

water supply involves a hook-up to a

public or private water supply system,

the operator would pay the hook-up

costs, including fees, purchase of

equipment and supplies, and

construction. If a temporary water

supply is necessary before the

permanent replacement water supply is

provided, the operator would pay the

cost of providing the temporary water

supply.

The estimated cost to coal operators to

meet this requirement of the Energy

Policy Act is $11.2 million. Most states

adopted provisions to implement this

requirement since passage of the 1992

Act. These states account for $9.5

million of the $11.2 million estimated

cost. Other states will need to

promulgate implementing provisions on

or shortly after the effective date of

these regulations. OSM estimates that

the cost to coal operators to meet this

requirement in those additional states

will be $1.7.

In addition to the above requirements,

OSM believes that the following

provisions with an estimated cost to

coal operators of $2.7 million were

essential to implement the requirements

of the Energy Policy Act.

• Pre-Mine Survey: an explicit

requirement to establish and document

the location and pre-mining condition

of protected structures and lands, and

the location and pre-mining quantity

and quality of protected water supplies,

is essential to establish a sufficient

baseline against which the effects of

subsidence may be measured and to

ensure full implementation of SMCRA

sections 516 and 720. Estimated cost to

coal operators is $1.6 million.

• Pre-subsidence Survey and

Subsidence Control Plan: majority of

applicants provide the survey, including

map, and the subsidence control plan

under the existing regulations; cost

corresponds to those operators not

currently providing the information.

Estimated cost to coal operators for both

requirements is $65,000.

• Presumption of Causation:

presumes that damage was caused by

underground coal mining operations;

the operator must bear the cost of

rebutting the presumption. Estimated

cost to coal operators is $420,000.

• Additional Bonding: requirement to

increase bond coverage within 90 days

of the occurrence of any damage that is

not repaired. Estimated cost to coal

operators is $620,000.

The total estimated cost to coal

operators to meet the subsidence control

provisions in the Energy Policy Act of

1992 is $26.5 million. However, because

many states have already implemented

provisions of the Act accounting for an

estimated cost of $21.2 million, the cost

that will be incurred by coal operators

resulting from promulgation of this final

rule is estimated to be $5.3 million.

There are a number of provisions

discussed in the proposed rule that have

not been adopted in the final rule. A

significant change is the decision by

OSM not to adopt the proposed

requirement to replace agricultural,

commercial and industrial water

supplies. OSM agreed with commenters

that these provisions of the proposed

rule went beyond the requirements of

the Energy Policy Act. OSM estimates

that these provisions not included in the

final rule would have cost coal

operators more than $7 million. Another

proposed requirement that all facilities

be covered was not adopted in the final

rule. However, this change does not

appreciably alter the cost to coal

operators of meeting the requirements in

this rule.

Regulatory Flexibility Act

The DOI certifies that this rule would

not have a significant economic effect

on a substantial number of small entities

under the Regulatory Flexibility Act, 5

U.S.C. 601 et seq. This determination is

based on the fact that the revisions will

have the greatest effect on underground

mining operations, and only a small

number of small entities mine coal by

underground methods. For the purposes

of this determination, a small entity is

considered anyone whose total annual

production at all locations does not

exceed 300,000 tons.

National Environmental Policy Act

OSM has prepared a final

environmental assessment (EA), and has

made a finding that the rule will not

significantly affect the quality of the

human environment under section

102(2)(C) of the National Environmental

Policy Act of 1969 (NEPA), 42 U.S.C.

4332(2)(C). A finding of no significant

impact (FONSI) has been approved in

accordance with OSM procedures under

NEPA. The EA and FONSI are on file in

the OSM Administrative Record, Room

660, 800 North Capitol Street,

Washington, DC.

Executive Order 12778 on Civil Justice

Reform

This rule has been reviewed under the

applicable standards of section 2(b)(2) of

Executive Order 12778, ‘‘Civil Justice

Reform’’ (56 FR 55195). In general, the

requirements of section 2(b)(2) are

covered by the preamble discussion of

this rule. Individual elements of the

order are addressed below:

A. What would be the preemptive

effect, if any, to be given to the

regulation?

Section 843.25 sets out a procedure by

which OSM may determine on a Stateby-State basis that direct Federal

enforcement is required in States with

approved regulatory programs, in the

interim before those programs are

amended to implement section 720, to

ensure prompt compliance with section

720 of SMCRA, 30 U.S.C. 1309a, and

implementing Federal regulations. Any

such action would be instituted only

upon a determination that in a

particular State the action was necessary

on an interim basis, to ensure the

congressionally mandated prompt

compliance with SMCRA section 720,

for underground operations conducted

after October 24, 1992. This procedure

is discussed in the preamble discussion

of section 843.25. The other provisions

in this rulemaking would have the same

preemptive effect as other standards

adopted pursuant to SMCRA. To retain

primacy, States have to adopt and apply

standards for their regulatory programs

that are no less effective than those set

forth in OSM’s regulations. Any State

law that is inconsistent with or that

would preclude implementation of the

regulation would be subject to

preemption under SMCRA section 505

and implementing regulations at 30 CFR
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16747

730.11. To the extent that the regulation

would result in preemption of State law,

the provisions of SMCRA are intended

to preclude inconsistent State laws and

regulations. This approach is

established in SMCRA, and has been

judicially affirmed. See Hodel v.

Virginia Surface Mining and

Reclamation Ass’n, 452 U.S. 264 (1981).

B. What would be the effect of the

regulation on existing Federal law or

regulation, if any, including all

provisions repealed or modified?

The regulation would modify the

implementation of SMCRA as described

herein, and is not intended to modify

the implementation of any other Federal

statute. The preceding discussion of the

action specifies the Federal regulatory

provisions that are affected by the

revision.

C. Would the regulation provide a

clear and certain legal standard for

affected conduct rather than a general

standard, while promoting

simplification and burden reduction?

The standards established by this rule

are as clear and certain as practicable,

given the complexity of the topics

covered and the mandates of SMCRA.

D. What would be the retroactive

effect, if any, to be given to the

regulation?

The Energy Policy Act amended

SMCRA by adding a new section 720, 30

U.S.C. 1309a, requiring that

underground coal mine operations

promptly replace certain adversely

affected water supplies and repair or

compensate for subsidence damage to

specified structures. The requirements

are effective October 24, 1992, and

apply to underground coal mining

operations after that date. Section 720

also required OSM to adopt

implementing regulations thereafter.

This rulemaking includes provisions to

implement those requirements. Thus,

those provisions do not create any new

retroactive requirements to replace,

repair, or compensate; but rather

implement the effective date established

for these requirements by the Energy

Policy Act. Implementing provisions

were previously discussed in the

preamble.

E. Are administrative proceedings

required before parties may file suit in

court? Which proceedings apply? Is the

exhaustion of administrative remedies

required?

No administrative proceedings would

be required before parties may file suit

in court challenging the provisions of

the revision under section 526(a) of

SMCRA, 30 U.S.C. 1276(a). Prior to any

judicial challenge to the application of

the rule, however, administrative

procedures must be exhausted.

Applicable administrative procedures

may be found at 43 CFR Part 4.

F. Would the action define key terms,

either explicitly or by reference to other

regulations or statutes that explicitly

define those items?

Terms which are important to the

understanding of the action are set forth

in 30 CFR 701.5.

G. Would the regulation address other

important issues affecting clarity and

general draftsmanship of regulations set

forth by the Attorney General, with the

concurrence of the Director of the Office

of Management and Budget, that are

determined to be in accordance with the

purposes of the Executive Order?

The Attorney General and the Director

of the Office of Management and Budget

have not issued any guidance on this

requirement.

Agency Concurrence

Section 516(a) of the Act requires that,

with regard to rules directed toward the

surface effects of underground mining,

OSM must obtain written concurrence

from the head of the department which

administers the Federal Mine Safety and

Health Act of 1977, the successor to the

Federal Coal Mine Health and Safety

Act of 1969. OSM has obtained the

written concurrence of the Assistant

Secretary for Mine Safety and Health,

U.S. Department of Labor.

Author

The principal author of this regulation

is Nancy R. Broderick, Branch of

Federal and Indian Programs, Office of

Surface Mining Reclamation and

Enforcement, 1951 Constitution

Avenue, N.W., Washington, D.C. 20240;

telephone (202) 208–2564.

List of Subjects

30 CFR Part 701

Law enforcement, Surface mining,

Underground mining.

30 CFR Part 784

Reporting and recordkeeping

requirements, Underground mining.

30 CFR Part 817

Environmental protection, Reporting

and recordkeeping requirements,

Underground mining.

30 CFR Part 843

Administrative practice and

procedure, Direct federal enforcement

for repair of subsidence damage, Law

enforcement, Reporting and

recordkeeping requirements, Surface

mining, Underground mining.

Dated: January 5, 1995.

Bob Armstrong,

Assistant Secretary—Land and Minerals

Management.

Accordingly, 30 CFR Parts 701, 784,

817, and 843 are amended as set forth

below.

SUBCHAPTER A—GENERAL

PART 701—PERMANENT

REGULATORY PROGRAM

1. The authority citation for Part 701

is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq., as

amended.

2. Section 701.5 is amended by

adding alphabetically definitions of

‘‘drinking, domestic or residential water

supply,’’ ‘‘material damage,’’ ‘‘noncommercial building,’’ ‘‘occupied

residential dwelling and structures

related thereto,’’ and ‘‘replacement of

water supply’’ to read as follows:

§ 701.5 Definitions.

* * * * *

Drinking, domestic or residential

water supply means water received from

a well or spring and any appurtenant

delivery system that provides water for

direct human consumption or

household use. Wells and springs that

serve only agricultural, commercial or

industrial enterprises are not included

except to the extent the water supply is

for direct human consumption or

human sanitation, or domestic use.

* * * * *

Material damage, in the context of

§§ 784.20 and 817.121 of this chapter,

means:

(a) Any functional impairment of

surface lands, features, structures or

facilities;

(b) Any physical change that has a

significant adverse impact on the

affected land’s capability to support any

current or reasonably foreseeable uses or

causes significant loss in production or

income; or

(c) Any significant change in the

condition, appearance or utility of any

structure or facility from its presubsidence condition.

* * * * *

Non-commercial building means any

building, other than an occupied

residential dwelling, that, at the time

the subsidence occurs, is used on a

regular or temporary basis as a public

building or community or institutional

building as those terms are defined in

§ 761.5 of this chapter. Any building

used only for commercial agricultural,

industrial, retail or other commercial

enterprises is excluded.

* * * * *
16748 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

Occupied residential dwelling and

structures related thereto means, for

purposes of §§ 784.20 and 817.121, any

building or other structure that, at the

time the subsidence occurs, is used

either temporarily, occasionally,

seasonally, or permanently for human

habitation. This term also includes any

building, structure or facility installed

on, above or below, or a combination

thereof, the land surface if that building,

structure or facility is adjunct to or used

in connection with an occupied

residential dwelling. Examples of such

structures include, but are not limited

to, garages; storage sheds and barns;

greenhouses and related buildings;

utilities and cables; fences and other

enclosures; retaining walls; paved or

improved patios, walks and driveways;

septic sewage treatment facilities; and

lot drainage and lawn and garden

irrigation systems. Any structure used

only for commercial agricultural,

industrial, retail or other commercial

purposes is excluded.

* * * * *

Replacement of water supply means,

with respect to protected water supplies

contaminated, diminished, or

interrupted by coal mining operations,

provision of water supply on both a

temporary and permanent basis

equivalent to premining quantity and

quality. Replacement includes provision

of an equivalent water delivery system

and payment of operation and

maintenance costs in excess of

customary and reasonable delivery costs

for premining water supplies.

(a) Upon agreement by the permittee

and the water supply owner, the

obligation to pay such operation and

maintenance costs may be satisfied by a

one-time payment in an amount which

covers the present worth of the

increased annual operation and

maintenance costs for a period agreed to

by the permittee and the water supply

owner.

(b) If the affected water supply was

not needed for the land use in existence

at the time of loss, contamination, or

diminution, and if the supply is not

needed to achieve the postmining land

use, replacement requirements may be

satisfied by demonstrating that a

suitable alternative water source is

available and could feasibly be

developed. If the latter approach is

selected, written concurrence must be

obtained from the water supply owner.

* * * * *

SUBCHAPTER G—SURFACE COAL MINING

AND RECLAMATION OPERATIONS

PERMITS AND COAL EXPLORATION

SYSTEMS UNDER REGULATORY

PROGRAMS

PART 784—UNDERGROUND MINING

PERMIT APPLICATIONS—MINIMUM

REQUIREMENTS FOR RECLAMATION

AND OPERATION PLAN

3. The authority citation for Part 784

is revised to read as follows:

Authority: 16 U.S.C. 470 et seq., 30 U.S.C.

1201 et seq. as amended.

4. Section 784.10 is revised as

follows:

§ 784.10 Information collection.

(a) The collections of information

contained in Part 784 have been

approved by Office of Management and

Budget under 44 U.S.C. 3501 et seq. and

assigned clearance number 1029–0039.

The information will be used to meet

the requirements of 30 U.S.C. 1211(b),

1251, 1257, 1258, 1266, and 1309a. The

obligation to respond is required to

obtain a benefit.

(b) Public reporting burden for this

information is estimated to average 513

hours per response, including the time

for reviewing instructions, searching

existing data sources, gathering and

maintaining the data needed, and

completing and reviewing the collection

of information.

5. In Section 784.14 paragraph

(e)(3)(ii) is amended by removing the

word ‘‘and’’; (e)(3)(iii)(E) is amended by

removing the period and adding a

semicolon in its place; and paragraph

(e)(3)(iv) is added as follows:

§ 784.14 Hydrologic information.

* * * * *

(e) * * *

* * * * *

(3) * * *

(iv) Whether the underground mining

activities conducted after October 24,

1992 may result in contamination,

diminution or interruption of a well or

spring in existence at the time the

permit application is submitted and

used for domestic, drinking, or

residential purposes within the permit

or adjacent areas.

* * * * *

6. Section 784.20 is revised to read as

follows:

§ 784.20 Subsidence control plan.

(a) Pre-subsidence survey. Each

application must include:

(1) A map of the permit and adjacent

areas at a scale of 1:12,000, or larger if

determined necessary by the regulatory

authority, showing the location and type

of structures and renewable resource

lands that subsidence may materially

damage or for which the value or

reasonably foreseeable use may be

diminished by subsidence, and showing

the location and type of drinking,

domestic, and residential water supplies

that could be contaminated, diminished,

or interrupted by subsidence.

(2) A narrative indicating whether

subsidence, if it occurred, could cause

material damage to or diminish the

value or reasonably foreseeable use of

such structures or renewable resource

lands or could contaminate, diminish,

or interrupt drinking, domestic, or

residential water supplies.

(3) A survey of the condition of all

non-commercial buildings or occupied

residential dwellings and structures

related thereto, that may be materially

damaged or for which the reasonably

foreseeable use may be diminished by

subsidence, within the area

encompassed by the applicable angle of

draw; as well as a survey of the quantity

and quality of all drinking, domestic,

and residential water supplies within

the permit area and adjacent area that

could be contaminated, diminished, or

interrupted by subsidence. If the

applicant cannot make this survey

because the owner will not allow access

to the site, the applicant will notify the

owner, in writing, of the effect that

denial of access will have as described

in § 817.121(c)(4) of this chapter. The

applicant must pay for any technical

assessment or engineering evaluation

used to determine the pre-mining

condition or value of such noncommercial buildings or occupied

residential dwellings and structures

related thereto and the quantity and

quality of drinking, domestic, or

residential water supplies. The

applicant must provide copies of the

survey and any technical assessment or

engineering evaluation to the property

owner and regulatory authority.

(b) Subsidence control plan. If the

survey conducted under paragraph (a) of

this section shows that no structures, or

drinking, domestic, or residential water

supplies, or renewable resource lands

exist, or that no material damage or

diminution in value or reasonably

foreseeable use of such structures or

lands, and no contamination,

diminution, or interruption of such

water supplies would occur as a result

of mine subsidence, and if the

regulatory authority agrees with this

conclusion, no further information need

be provided under this section. If the

survey shows that structures, renewable

resource lands, or water supplies exist

and that subsidence could cause

material damage or diminution in value
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16749

or reasonably foreseeable use, or

contamination, diminution, or

interruption of protected water supplies,

or if the regulatory authority determines

that damage, diminution in value or

foreseeable use, or contamination,

diminution, or interruption could occur,

the application must include a

subsidence control plan that contains

the following information:

(1) A description of the method of

coal removal, such as longwall mining,

room-and-pillar removal or hydraulic

mining, including the size, sequence

and timing of the development of

underground workings;

(2) A map of the underground

workings that describes the location and

extent of the areas in which plannedsubsidence mining methods will be

used and that identifies all areas where

the measures described in paragraphs

(b)(4), (b)(5), and (b)(7) of this section

will be taken to prevent or minimize

subsidence and subsidence-related

damage; and, when applicable, to

correct subsidence-related material

damage;

(3) A description of the physical

conditions, such as depth of cover, seam

thickness and lithology of overlaying

strata, that affect the likelihood or extent

of subsidence and subsidence-related

damage;

(4) A description of the monitoring, if

any, needed to determine the

commencement and degree of

subsidence so that, when appropriate,

other measures can be taken to prevent,

reduce or correct material damage in

accordance with § 817.121(c) of this

chapter;

(5) Except for those areas where

planned subsidence is projected to be

used, a detailed description of the

subsidence control measures that will

be taken to prevent or minimize

subsidence and subsidence-related

damage, such as, but not limited to:

(i) Backstowing or backfilling of

voids;

(ii) Leaving support pillars of coal;

(iii) Leaving areas in which no coal is

removed, including a description of the

overlying area to be protected by leaving

coal in place; and

(iv) Taking measures on the surface to

prevent or minimize material damage or

diminution in value of the surface;

(6) A description of the anticipated

effects of planned subsidence, if any;

(7) For those areas where planned

subsidence is projected to be used, a

description of methods to be employed

to minimize damage from planned

subsidence to non-commercial buildings

and occupied residential dwellings and

structures related thereto; or the written

consent of the owner of the structure or

facility that minimization measures not

be taken; or, unless the anticipated

damage would constitute a threat to

health or safety, a demonstration that

the costs of minimizing damage exceed

the anticipated costs of repair;

(8) A description of the measures to

be taken in accordance with §§ 817.41(j)

and 817.121(c) of this chapter to replace

adversely affected protected water

supplies or to mitigate or remedy any

subsidence-related material damage to

the land and protected structures; and

(9) Other information specified by the

regulatory authority as necessary to

demonstrate that the operation will be

conducted in accordance with § 817.121

of this chapter.

SUBCHAPTER K—PERMANENT PROGRAM

PERFORMANCE STANDARDS

PART 817—PERMANENT PROGRAM

PERFORMANCE STANDARDS—

UNDERGROUND MINING ACTIVITIES

7. The authority citation for Part 817

is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq., as

amended.

8. Section 817.10 is revised as

follows:

§ 817.10 Information collection.

(a) The collections of information

contained in Part 817 have been

approved by Office of Management and

Budget under 44 U.S.C. 3501 et seq. and

assigned clearance number 1029–0048.

The information will be used to meet

the requirements of 30 U.S.C. 1211,

1251, 1266, and 1309a which provide,

among other things, that permittees

conducting underground coal mining

operations will meet the applicable

performance standards of the Act. This

information will be used by the

regulatory authority in monitoring and

inspecting underground mining

activities. The obligation to respond is

required to obtain a benefit.

(b) Public reporting burden for this

information is estimated to average 4

hours per response, including the time

for reviewing instructions, searching

existing data sources, gathering and

maintaining the data needed, and

completing and reviewing the collection

of information.

9. In § 817.41, paragraph (j) is added

to read as follows:

§ 817.41 Hydrologic balance protection.

* * * * *

(j) Drinking, domestic or residential

water supply. The permittee must

promptly replace any drinking,

domestic or residential water supply

that is contaminated, diminished or

interrupted by underground mining

activities conducted after October 24,

1992, if the affected well or spring was

in existence before the date the

regulatory authority received the permit

application for the activities causing the

loss, contamination or interruption. The

baseline hydrologic information

required in §§ 780.21 and 784.14 of this

chapter and the geologic information

concerning baseline hydrologic

conditions required in §§ 780.21 and

784.22 of this chapter will be used to

determine the impact of mining

activities upon the water supply.

10. In § 817.121, paragraphs (a) and

(c) are revised to read as follows:

§ 817.121 Subsidence control.

(a) Measures to prevent or minimize

damage. (1) The permittee must either

adopt measures consistent with known

technology that prevent subsidence

from causing material damage to the

extent technologically and economically

feasible, maximize mine stability, and

maintain the value and reasonably

foreseeable use of surface lands or adopt

mining technology that provides for

planned subsidence in a predictable and

controlled manner.

(2) If a permittee employs mining

technology that provides for planned

subsidence in a predictable and

controlled manner, the permittee must

take necessary and prudent measures,

consistent with the mining method

employed, to minimize material damage

to the extent technologically and

economically feasible to noncommercial buildings and occupied

residential dwellings and structures

related thereto except that measures

required to minimize material damage

to such structures are not required if:

(i) The permittee has the written

consent of their owners or

(ii) Unless the anticipated damage

would constitute a threat to health or

safety, the costs of such measures

exceed the anticipated costs of repair.

(3) Nothing in this part prohibits the

standard method of room-and-pillar

mining.

* * * * *

(c) Repair of damage.

(1) Repair of damage to surface lands.

The permittee must correct any material

damage resulting from subsidence

caused to surface lands, to the extent

technologically and economically

feasible, by restoring the land to a

condition capable of maintaining the

value and reasonably foreseeable uses

that it was capable of supporting before

subsidence damage.

(2) Repair or compensation for

damage to non-commercial buildings

and dwellings and related structures.

The permittee must promptly repair, or
16750 Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations

compensate the owner for, material

damage resulting from subsidence

caused to any non-commercial building

or occupied residential dwelling or

structure related thereto that existed at

the time of mining. If repair option is

selected, the permittee must fully

rehabilitate, restore or replace the

damaged structure. If compensation is

selected, the permittee must compensate

the owner of the damaged structure for

the full amount of the decrease in value

resulting from the subsidence-related

damage. The permittee may provide

compensation by the purchase, before

mining, of a non-cancelable premiumprepaid insurance policy. The

requirements of this paragraph apply

only to subsidence-related damage

caused by underground mining

activities conducted after October 24,

1992.

(3) Repair or compensation for

damage to other structures. The

permittee must, to the extent required

under applicable provisions of State

law, either correct material damage

resulting from subsidence caused to any

structures or facilities not protected by

paragraph (c)(2) of this section by

repairing the damage or compensate the

owner of the structures or facilities for

the full amount of the decrease in value

resulting from the subsidence. Repair of

damage includes rehabilitation,

restoration, or replacement of damaged

structures or facilities. Compensation

may be accomplished by the purchase

before mining of a non-cancelable

premium-prepaid insurance policy.

(4) Rebuttable presumption of

causation by subsidence.—(i) Rebuttable

presumption of causation for damage

within angle of draw. If damage to any

non-commercial building or occupied

residential dwelling or structure related

thereto occurs as a result of earth

movement within an area determined by

projecting a specified angle of draw

from the outermost boundary of any

underground mine workings to the

surface of the land, a rebuttable

presumption exists that the permittee

caused the damage. The presumption

will normally apply to a 30-degree angle

of draw. A State regulatory authority

may amend its program to apply the

presumption to a different angle of draw

if the regulatory authority shows in

writing that the angle has a more

reasonable basis than the 30-degree

angle of draw, based on geotechnical

analysis of the factors affecting potential

surface impacts of underground coal

mining operations in the State.

(ii) Approval of site-specific angle of

draw. A permittee or permit applicant

may request that the presumption apply

to an angle of draw different from that

established in the regulatory program.

The regulatory authority may approve

application of the presumption to a sitespecific angle of draw different than that

contained in the State or Federal

program based on a site-specific

analysis submitted by an applicant. To

establish a site-specific angle of draw,

an applicant must demonstrate and the

regulatory authority must determine in

writing that the proposed angle of draw

has a more reasonable basis than the

standard set forth in the State or Federal

program, based on a site-specific

geotechnical analysis of the potential

surface impacts of the mining operation.

(iii) No presumption where access for

pre-subsidence survey is denied. If the

permittee was denied access to the land

or property for the purpose of

conducting the pre-subsidence survey in

accordance with § 784.20(a) of this

chapter, no rebuttable presumption will

exist.

(iv) Rebuttal of presumption. The

presumption will be rebutted if, for

example, the evidence establishes that:

The damage predated the mining in

question; the damage was proximately

caused by some other factor or factors

and was not proximately caused by

subsidence; or the damage occurred

outside the surface area within which

subsidence was actually caused by the

mining in question.

(v) Information to be considered in

determination of causation. In any

determination whether damage to

protected structures was caused by

subsidence from underground mining,

all relevant and reasonably available

information will be considered by the

regulatory authority.

(5) Adjustment of bond amount for

subsidence damage. When subsidencerelated material damage to land,

structures or facilities protected under

paragraphs (c)(1) through (c)(3) of this

section occurs, or when contamination,

diminution, or interruption to a water

supply protected under § 817.41 (j)

occurs, the regulatory authority must

require the permittee to obtain

additional performance bond in the

amount of the estimated cost of the

repairs if the permittee will be repairing,

or in the amount of the decrease in

value if the permittee will be

compensating the owner, or in the

amount of the estimated cost to replace

the protected water supply if the

permittee will be replacing the water

supply, until the repair, compensation,

or replacement is completed. If repair,

compensation, or replacement is

completed within 90 days of the

occurrence of damage, no additional

bond is required. The regulatory

authority may extend the 90-day time

frame, but not to exceed one year, if the

permittee demonstrates and the

regulatory authority finds in writing that

subsidence is not complete, that not all

probable subsidence-related material

damage has occurred to lands or

protected structures, or that not all

reasonably anticipated changes have

occurred affecting the protected water

supply, and that therefore it would be

unreasonable to complete within 90

days the repair of the subsidence-related

material damage to lands or protected

structures, or the replacement of

protected water supply.

* * * * *

PART 843—FEDERAL ENFORCEMENT

11. The authority citation for Part 843

is revised to read as follows:

Authority: 30 U.S.C. 1201 et seq., as

amended:

12. Section 843.25 is added to read as

follows:

§ 843.25 Energy Policy Act enforcement in

States with approved State programs.

(a) State-by-State determinations. By

July 31, 1995, OSM will determine for

each State with an approved State

regulatory program whether:

(1) Direct Federal enforcement of the

Energy Policy Act and implementing

Federal regulations will occur under

paragraph (b) of this section with

respect to some or all surface coal

mining operations in each State, or

(2) The procedures of §§ 843.11 and

843.12(a)(2) will apply to State

enforcement of the Energy Policy Act, or

(3) A combination of direct Federal

enforcement and State enforcement will

occur.

(4) Before making this determination,

OSM will consult with each affected

State and provide an opportunity for

public comment. OSM will publish its

determination in the Federal Register.

(b) Interim Federal enforcement. (1) If

OSM determines under paragraph (a)

that direct Federal enforcement is

necessary, §§ 817.41(j), 817.121(c)(2),

and 817.121(c)(4) of this chapter will

apply to each underground mining

operation subject to that determination

that is conducted in a State with an

approved State regulatory program.

(2) If OSM determines under

paragraph (a) of this section that direct

Federal enforcement is necessary, the

provisions of § 843.12(a)(2) will not

apply to direct Federal enforcement

actions under this paragraph (b). When,

on the basis of any Federal inspection

under this paragraph, an authorized

representative determines that a

violation of § 817.41(j) or § 817.121(c)(2)

exists, the authorized representative
Federal Register / Vol. 60, No. 62 / Friday, March 31, 1995 / Rules and Regulations 16751

must issue a notice of violation or

cessation order, as appropriate.

(3) This paragraph (b) will remain

effective in a State with an approved

State regulatory program until the State

adopts, and OSM approves, under Part

732 of this chapter, provisions

consistent with §§ 817.41(j) and

817.121(c)(2) of this chapter. After these

provisions are approved, this paragraph

will remain effective only for violations

of §§ 817.41(j) and 817.121(c)(2) that are

not regulated by the State regulatory

authority.

[FR Doc. 95–7954 Filed 3–30–95; 8:45 am]

BILLING CODE 4310–05–P