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. "1¢736 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 r:: --•~mining actually takes place under his •%property..OSM did~not propose to do-., , :~ `amend existing rules concerning g ' advance notice of underground mining to surface owners, and the record does notjustify 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 ofproposed paragraph 817.121(c) (2) is cleaz to this effect and that no rule changes aze 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 permi[tee 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 ofjudsdiction by OSM. OSM agrees that once damage occurs, an underground mining ~-- operation has a statutory obligation [o repair, which may not be negated by a prior agreement. „_ 817.121(c) (3) The purpose of proposed paragraph 817.121(c) (3) was [o ensure repair or correction of material damage caused by subsidence to those swctures and facilities no[ covered by new SMCRA section 720 (a)(1) and paragraph (c)(2) o proposed section 817.121. The proposed amendments to paragraph (c) (3) would have required repair or correction irrespective of limitations otherwise applicable under Slate law. The proposed rule would have required a permittee to either correct subsidence- related 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 anon-cancelable premium- prepaid 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 recomrnended that OSM draft a regulation stipulating . `that any and'all subsidence damage~is subject to the regulations to repair and compensate even if the petmittee 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 [hat 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 [he 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 [hat, without ample evidence that state law remedies for such damage are inadequate,-[here is no compelling f reason forOSM 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 [o preempt state property law and that the proposed rule violates the express terms of th~ Energy Policy Act. Numerous commenters interpret this provision as providing for subsidence protection of natural gas and pipelines. Some commenters the proposed Wile directly co'. comment extensively on_the_impa[[ the~~ rule would have on the property, rights _ of both coal.and,pipeline companies. - Some commenters'azgued thateven -° more eMensive protectipn 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, aftercompletion of the- - ~- subsidence pipeline study; OSM':~~ determines that further tillemaking 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 Slate 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 [hat 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 tojustify eliminating the Stale law limitation except as provided in the Energy Policy Act. Under the final tole, the permittee is required, [o the extent required under applicable provisions of State law, to either correct material damage resulting from subsidence caused to any structures or facilities no[ protected by paragraph (c) (2) of this paragraph by repairing the damagt;, or compensate the owner of such structures or facilities in the full amount of the diminution in value resulting from [he subsidence. Repair of damage shall include rehabilitation, restoration or replacement of damaged structures or facilities. Compensation may be accomplished by the purchase, prior [o mining, of anon-cancelable premium-prepaid insurance policy.