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16736 Federal Register /Vol. Gi), No. 62 /Friday, March 31, 1995 /Rules and Regulazions
<br />underground r'rYtning, because [he rules 'proposed rule, and discuss various, ' proCettivn of natura4 gas and petroleum _.:.. ;..
<br />'
<br />require notice at least six morttlu befog a '
<br />' .respects in'which the eidsUng,Xulg and
<br />~ .
<br />plpellnos. Some Cauynenters asserc that !
<br />~;Uiis dyq. nor aUuw ll rc
<br />- minLih ar7,ti ~ruleHl .
<br />statn.lnwpdail to calequalcly ` the pr0pO5ed l llht QirOCdy,tUflt[dd1cl5
<br />''~stirfaceowrfertodet0rmine,when... seryieiuresanil.faG~ihties.fr~m¢cx~sidrnce,;thecongresslan~,lrpgltrament'~.[hatithe :'~;:
<br />rnirtsag actually cakes place under his damage One eorpmenterteFgi~ntnended ' ;Secretary, ;complete a'study un the. ,. '
<br />r~SIvT'r~id'nor.prnpncP rr, '.' rhar,(7SMT Cirafr a,.raeuEatlnr+st{piflatinG .:
<br />prol+erty wt „
<br />:. P1P01b??~!a,Gue be~prc;anx }•ulcs on.,We
<br />"
<br />amend exisung rules cbneermng ~:.:: that any andall:su6sidencedarnage is ,
<br />•.: issue ace`promuIgated Corrunenters also _
<br />advance notice ofuniierground minirtg subject to the regtikidoru t0 repair and" cdmmenC extensively on the'impact4he_ .
<br />td surface'owners, and the record.does compensate even-if the permittee has , ~'_'rule would have on the property rights
<br />not justify anew ruletnaking on this ~ ~, ~ previously r•epaired'ar settled with ttte of both coal and~pipeline companies:' .
<br />issue at this time:. - affected propertpowner:. = ~ Some commenters azgued that even
<br />A commenter requests that.OSM
<br />clarify ctiat~ehe permittee i£ not required ~ Tha majority of.commentars noted
<br />~ that in the Energy Policy'AM Congtosa
<br />' more exrervsive protection of pipelines
<br />i9 appropriate OCneteSea[y. USM tins'
<br />
<br />~,.'to rastoreor compensate for ~.~'~~' ~. "
<br />~~ deterioration tq a structure beyond what
<br />for.d25iage ~
<br />expressly 1Smited;reIief
<br />arismg from subsidence to "occupied .
<br />reviewed these comments, but rNltetates
<br />that with the veryllmited exception
<br />was caused by subsidence Pmm. ~
<br />underground minim. OSM b@lieves the residential dwellings and structures
<br />related thereto, or non-commercial nakcd~aoove for cv,u~euor lines attacker]
<br />i
<br />cifi
<br />d
<br />l
<br />d
<br />ld
<br />language of proposed paragraph buildings" and water supplies.The to spe
<br />en
<br />a
<br />c occup
<br />e
<br />tes
<br />dwelllngs ornon-commercial buildings,
<br />817.121(c)(2) rs clear to this effect and
<br />[hat no rule changes stn requlrnd w ~ ~ commenters azgued that For more than a
<br />du~:ade pSM t,as raqulrcal puvilueta u, t'nngress inrenAnd nn change in the
<br />r
<br />
<br />achieve this result. ~
<br />correct material damage'"to the extent
<br />" e ardin
<br />subsidence control lotions
<br />natural as and ' t ~letmt pipelines,.
<br />. s '
<br />8 PQ
<br />One commenter asked that OSM make
<br />clear that any and all subsidence and they state
<br />required by state law
<br />Thar nn compelling need has been .
<br />and that no rulemaliieig on this issue r9
<br />damage is subject to the requirement to demonstrated that would require OSM contemplated pending completion of
<br />repair and compensate indefinitely into ~ to change its policy and preempt state,,, ,
<br />l
<br />'t
<br />f th@ study on this subject pursuant to
<br />'~`~~~
<br />s@Cttdn 250a of Ure Energy Policy Act.'
<br />has
<br />the Future, even if the perrtrittae ore,
<br />tts..
<br />here
<br />law arld.p[opetty rie
<br />~ ,
<br />.
<br />previously repaired or settled with the commenters claim chat the proposed QSM 15 no[ addressing thrs issue rn [his
<br />affected property vwnerorpipeline" -'- rule has no basis under the' Energy l _{ulemaking. lf, after tompletfon of the `.
<br />operator; and that OSM clarify that the Policy_Actagd thaz OSM'sclrrsdry subsidence pipeline study, OSM .
<br />' Obligadon to rCRafe ~ not dependent an
<br />,:~~~ active mining or an active permit or ~ explanation of the reasons behind the
<br />new rule demands~that the proposed deterriitnee: Ik3[ further rulemolting'moy
<br />be appropriate on this subject, OStvl'will ,
<br />
<br />_s
<br />..'. - ~... upon termination ofjurisdictlon by rule not be adopted.. invite interested persons [o review. and _ ;
<br />. ~' OSM. OSM agrees that dote damage . -... ..., Commenters also claim that the comment on any further ruteettaking. ~ ...
<br />occurs, an underground mining existing state law remedies are adequate OSM has considered all comments
<br />" ~ ' -operation has a statutory obligation to ~ and that court dedsioiss support their aced has decided not to adopt the
<br />repair, which may not be negated by a proposition that SMCRA does not proposed changes to paragraph
<br />poor agreement. - - ~ speci[itelIy "require the Secretary [0 817.121(c)(3). Instead OSM willretain
<br />817.121(c~ (3) - _ _ 'impose a duty t0 restore strudureS
<br />dams ed b subsidence.' Nations!
<br />g y
<br />' [h@ Stat@ laW limitation Sat Out in the
<br />
<br />existing regulations. The basis and
<br />The pnrrnw of pmpnsed paragraph
<br />817.121(c) (3) was to nsure repair or n v. Lujan, 928 F,2d 453,
<br />Wi1d11fe Fed
<br />..458 (A.C..Cir. 1991). These commenters
<br />purpose for ene state law limitation was
<br />upheld by the D. C. Circuit Court oP
<br />correcdon of mat damage caused by argue that, without ample evidence that Appeals National WSidlite Ped'n v.
<br />subsidence to those tructures and stale law remedies for such damage are Ly/en, 028 F,2a 953, 958 (q.C, Cir.
<br />facilities not covers by new 5MCRA
<br />secdon 7Z0 (a)(I) and paragraph (c) (2) of Inadequate, there fs no compelling
<br />~reasoa fvrOSM~to disregard the dear ~' 1991).. OSM believes that circumstances
<br />
<br />„ propasedsecdon 817.121.. The Pproposed,
<br />'
<br />oongresslonal intent behind SMCRA
<br />" havanot changed significantly since
<br />O5M'.s.adnptinn n frhe. Atatr.law ,' '
<br />'- amendments to pargraph (t)(3).would stale laws guvcru dra rEwluliun ul
<br />Lila[ ~~on; and OSM eonGudes the[ the -
<br />have ceq»ired repair or correction
<br />irrespective of limitations otherwise ~ any disputes about property right which
<br />might arise from such separations, and recprd developed in~tfds rulemaking is
<br />applicable under State ]aw. The
<br />proposed tole would have required a this Act does not attempt to tamper vrith
<br />such state laws." S. Rep. No. 95, 95th insuffident m justify eliminadng the
<br />State law limitation except as provided
<br />permit[ee to either correct subsidence- Cong. 1st Secs, at 56 (1977). in the Energy Policy Act. Under the
<br />final rule, the permittee is required, to
<br />related material damage tc any
<br />structures or facilites no[ protected by Commenters also point out that
<br />Corr@ntly the states conducting 99 the extent required under applicable
<br />paragraph (c)(2) by repairing the percent of the nation's coal mining
<br />f provisions of State law, to dther correct
<br />material damage resulting from
<br />damage, w compensate the owner of
<br />such sWchura or Facilities in the full provide statutory regulatory relie
<br />for
<br />damage caused by subsidence. Some subsidence caused to any structures or
<br />ameunf.of the diminution in value
<br />resulting from the subsidenc@. Repair or commenters alleggee that die proposed
<br />r'lele would signittrandy affect private facilities not protected by paragraph
<br />(c) (2) of this paragraph by repairing me
<br />damagewnuld have included
<br />rehabilitation, restoratlon or property rights and raise numerous
<br />issues regarding the Fifth Amendment's dame&e. or compensate the owner of
<br />such structures or facilities in the full
<br />replacement of damaged structures or takings clause. Those commenters state ,amount of the diminution in value . .
<br />Compensation by the
<br />facilities that theca is simply no Compelling resulting from the subsidence, Repair of
<br />.
<br />pertnittee could have been evidence far OSM to preempt state damage shall include rehabilitation,
<br />accomplished by th 'purchase, prior to property law and thaz [ha proposed rule restoration or replacement of damaged
<br />mining, of a non-cancelable premium- violates the express terms of the L'nergy structures or Facilities. Compensation
<br />prepaid insurance policy.
<br />A ntunber of commencers support the Policy AcC.
<br />fQumemus commenters interpret [his may be accomplished by me purchase,
<br />prior. to mining, of a non-Cancelable
<br />praposad rule and tl~ need for the provision as providing Por subsidence premium-prepaid insurance policy.
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