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Federal Register /Vol. 60, No. 62 /
<br />March 31, 1995 /Rules and Regulations 16735
<br />measures in this passage. OSM
<br />" Federal program States, as well as on other hand, surface owners can know
<br />concludes the report does not show
<br />~ Indian lands;-aye-requited to comply the extent to which land they plan to ~ ~ -
<br />copgressional intent to require use.in
<br />" with this provision for,operations build on has.been undermined by
<br />to
<br />ngwall miningof the measures'y.,
<br />•. discussed in thrs passage ,~, ~ ~_ j _ ~ cbnducted~after Octobei:24;;1992. ...,.
<br />_ . Possrble mferim dsect-enforcement of- . .-p~eyious mining~operations. Therefore, ~,~_ ,~~.i'-
<br />, OSM~beheves thaf.it is reasonable to -~~ "
<br />:
<br />
<br />=Section 81.7121 c =Subgidence•Control
<br />- (~-:~.
<br />~- this provis;[iriby OSM9n~some primacy,'
<br />States pnor.toamendm'enfoF Stale
<br />- ~
<br />.
<br />conclude tfi'st the requirementshoutd i . ,-:
<br />^nbt~
<br />l
<br />,
<br />817.121(c) (1) ,. ~;'- - ,
<br />programs is~addressed below in ~
<br />~ ~ app
<br />y.to structures:whichdid not--
<br />~ exist at the time of mining. OSM is `~
<br />~
<br />In the proposed rule, paragraph " -re_visxons io~Part843- ~---
<br />A group of commenters recommended adopting this interpretation in the final
<br />l
<br />817.121(c) (1) would be modified to
<br />substitute "subsidence related material
<br />that the tvle.recognize that pre- ru
<br />e, and has revised paragraph
<br />817.121(c) (2) accordingly.
<br />damage" for "any material damage subsidence agreements and post- Commenters also allege that the
<br />resulting from subsidence; "permittee'. subsidence-agreements between the obligation [o repair subsidence-related
<br />for "operator;" and "its pre-subsidence Property owner and the permittee .damage does not apply to buildings
<br />value and supporting reasonably `W'ould sadsfy the requirements under acquired after the mining occurred.
<br />foreseeable uses it was capable of Paragraph 817.121(c) (2), and that OSM does not agree. SMCRA section
<br />supporting * * *~' for "the value and
<br />reasonably foreseeable uses which it nothing in this paragraph should be
<br />construed to prohibit or interrupt 720 provides that underground coal
<br />mining operations conducted after the
<br />was capable of supporting ` * *." The
<br />
<br />changes were editing changes not underground coal mining operations.
<br />The use of pre- and post-subsidence
<br />~ date of enactment of [he Energy Policy
<br />Act shall promptly repair or compensate
<br />
<br />intended to have a~substantive effect on agreements would be an acceptable
<br />f f
<br />lf
<br />ll foc material damage resulting from
<br />
<br />the rule. However; commenters express _ means o
<br />u
<br />i
<br />ing the requirement so
<br />long as the terms met the requirement subsidence caused to an occu ied
<br />residential dwelling and structures
<br />concern over the changes in [he ~
<br />language of paragraph (c) (1) because the under paragraph 817.121(c)(2) that the related thereto, or non-commercial
<br />
<br />preamble did no[ contain an permittee repair or compensate any
<br />subsidence-related material damage [o building. Section 720 does not _
<br />distinguish among such sttvctures based
<br />explanation for [he proposed changes.
<br />In [he final rule, OSM~is not amending- any non-commercial building or
<br />-occupied'residential dwelling or related on whether they were acquired before or
<br />after the date of mining. Rather
<br />all such -
<br />the text of this provision but is adding
<br />a heading for the paragraph to assist in structure.-Any permittee/owner ,
<br />structures are subject to the requirement
<br />
<br />- reading and application of the
<br />i
<br />i agreements cannot negate the
<br />requirement~of the Energy Policy Act to to promptly repair or compensate. OSM
<br />believes the language of the statute is
<br />prov
<br />s
<br />on. repair orcompensate for subsidence- clear, and the interpretation urged by
<br />817.I21(c)(2) _. .- _ _ related material damage [o occupied commenters is inconsistent with the
<br />
<br />Paragraph 817.121 (c) (2) is being residential dwellings and related
<br />structures as well as noncommercial terms of the statute.
<br />A commenter notes that the proposed
<br />adopted as proposed. The final rule
<br />requires that a permi[[ee either ~ buildings. OSM anticipates that repair rules lack provisions establishing
<br />
<br />promptly repair materiaPdamagecaused pursuant toparagraph 817.12I(c)(2) will
<br />restore [he protected sttvcture or facility requirements for notification of the
<br />permit[ee or regulatory authority, or far
<br />by subsidence [o any non-commercial- -
<br />building or occupied residential iti ifs premining capacity, features, estimate, repair, replacement, or
<br />
<br />dwelling or related structure, or value, and utility. OSM reiterates that
<br />[he requirements in this pazagraph are compensation time frames. OSM
<br />believes that existing citizen complaint
<br />compensate for material damage caused
<br />by subsidence to [~tose sttvctures
<br />If the not intended to prohibit or interrupt procedures are adequate and
<br />.
<br />repair option is selected, the permittee underground coal mining operations.
<br />Commenters allege that the permittee appropriate to address surface owner _
<br />complaints of subsidence damage under
<br />must fully rehabilitate, restore or ~ - -is norunder obligation to repair-- these rules.-~ ---- ~ - - -
<br />replace the damaged structure. If the subsidence-related damage to any OSM believes preparation or approval
<br />compensation option~is selected,.the building constructed after mining has of estimates is properly addressed under _
<br />petmittee must compensate the owner
<br />of the damaged structure in the full
<br />~ occurred. OSM agrees with this
<br />comment. If [he protected structure was existing procedures, by case-by-case
<br />negotiations with the surface owner,
<br />amount of the diminution of value damaged from subsidence from and regulatory authority review of
<br />resulting from the subsidence-related underground mining, and that mining reclamation measures. Similarly, OSM
<br />damage. Compensation may be occurted after the date set forth in the believes timely repair. or compensation
<br />accomplished by the purchase, prior to Energy Policy Act, [Ben tfie Energy of protected structures is adequately
<br />mining, of anon-cancelable premium- Policy Act requires that the permittee addressed by the use of the statutory
<br />prepaid insurance policy. The repair or compensate for the material term "prompt," which is commonly
<br />requirements of this paragraph apply to damage. However, Congress does not understood to mean "expeditious" or
<br />alI subsidence-related damage caused by discuss whether there should be any "immediate." OSM notes that several
<br />underground mining activities different treatment for structures that commenters give examples of situations
<br />conducted after October 24, 1992. did not exist when the mining took which may involve substantial variation
<br />Paragraph 817.121(c)(2) implements place. For such structures, there would in [he time required before [he full
<br />new SMCRA section 720 (a)(1), which be no opportunity for the permittee to extent of subsidence damage can be
<br />requires [hat all underground coal mitigate or prevent subsidence damage, confirmed, or before repairs properly
<br />mining operations promptly repair or and thus avoid the requirement to repair maybe commenced. OSM concludes
<br />compensate for material damage to non- or compensate. Nor would it be possible that what is reasonably prompt for
<br />commercial buildings and occupied
<br />residential dwelli~tgs or related for a permittee to anticipate what
<br />structures mi
<br />ht be built above the mine repair or compensation is properly
<br />d
<br /> g etermined on acase-by-case basis.
<br />structures as a result of subsidence due after mining occurs and thus plan for Commenters request changes in the
<br />to underground coal mining operations. anticipated costs to determine if mining existing rules providing for notice to
<br />Permittees in both primacy States and would be economically feasible. On the property owners in advance of
<br />.y
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