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Federal Register /Vol. 60, No. 62 /Friday, March 31, 1995 /Rules and Regulations 16733 Indian Lands, are required to comply .Act, clearly noted that these provision , with these provisions.for operations ' ~ '. -were not to "prohibit, or intertupt conducted after October 24; 1992. underground coal mining operations." The majority of commentersagreed ~ s:_Wi[hout;the compensation option, the - that the provision3okequtre.the . , - commencer asserted [hat operations - .peemi[tee to promptly replace ariy,, - ~:; ~i;QUld.6e#orced.to cease operating iC~, drinking; domestic; or residential water . " they couldri t~replace the water supplies thai have tieen adversely:, y supplies. OSM does not agree. The affected by underground activitiesis --` -- terms of the Energy Policy Act ~ necessary to implement the provision of unequivocally require replacement. new SMCRA section 720(a) (2). - ~- - ~ ~ ~-Further, OSM does not anticipate that While commenters support the :. . - underground mining operations will adoption of the proposed rule; [hey' ° -- .' unable to comply with this statutory maintain that it is not necessary nr mandate. For example, if the permitte monitor each water well in order to is unable to restore a spring or aquifer, establish that subsidence has impacted the pernvttee should still be able to a water supply well. OSM agrees that in provide water from an alternative many instances it may not be necessary source, such as a public water supply, to monitor each well. The location and or by pipeline from another location. frequency of well monitoring will be addressed on a case-by-caze basis Section 817.12] (aJ-Subsidence Con pursuant to existing paragraphs OSM is adopting paragraph 784.14 (h) (1) and 817.41(c). 817.121(a) (1) as proposed. The A commenter asked for clarification requirement provides that the permit[ - that this provision would not in any must either adopt measures consistent way affect property rights under existing ~ with known technology which preven state water laws consistent with subsidence causing material damage t -" paragraph 717(a)-Anothercommenter - theextent technologically and 1 further recommended that OSM ~unend economically feasible, maximize mini the provision to require that water rights stability, and maintain the value and regarding the affected well or spring be reasonably foreseeable use of surface approved by the State Engineer or lands; oradopt mining technology otherwise be recognized under State _ which,provides for planned subsiden law. OSM points out that nothing in this in a predictable and controlled manne requirement is intended to create an This language is not intended to be exception to section 717(a) of ShfCRA. change from the [vies promulgated in Section 717(a) requires deference to 1983, (See 48 FR 24652, June 1, 1983). - , .State water law on questions of water. and relies on the basis and purpose allocation and use. OSM interprets stated in 1983. This mlemaking make -. section 720 and the implementing rules minor editing changes intended [o mo as no[ requiring the replacement of clearly reflect the meaning of the water supplCes to [he extent existing rule. Thus, under [his ~. _ underground mining activities consume provision, as an alternative to adoptin or legitimately use the water supply measures consistent with known - - - under a senior water righ[-detennined technology which prevents subsidenc under applicable State law. See In re causing material damage to the extent Permanent Surface Mining Regulation technologically and economically Litigatlon II, Round III, 620 F. Supp. feasible, an petmittee may adopt mini ..1519, 1525 (D.C.D.C. 1985). Hovtever, technology which provides for planne OSM beiteves that section 717(a) subsidence in a predictable and concerns rights under State wab:r law to controlled manner. consumption or use of water, ar.d was OSM is adopting paragraph not intended to address destrue:ion or 817.121(a) (2) with modification from damage of the source of water, or the proposed tole. Under the propose contamination of [he water supply, tole, if a permittee employed mining Thus, OSM anticipates that technology which provides for planne underground mining activities which subsidence in a predictable and cause destruction or damage of a water controlled manner, the permittee wou supply source, or contamination of a have been required to take necessary water supply, would be subject to the and prudent measures, consistent wit replacement requirements of section 720 the mining method employed, to even if the permlttee possessed senior minimize material damage to surface water rights. lands, stmctures or facilities [o the A commenter recommended that extent technologically and economic i compensation be available az an option feasible. Under the final rule, the for those limited circumstances where responsibility to minimize damage is an impacted supply can't be restored. limited to structures listed in the Ener The commenter went on to noon that Policy Act, namely noncommercial J Congress, in enacting the Energy Policy buildings and occupied residential s dwellings and related struc[ures[~. ~ - ' However, unless theanticipated~.damage .:would constitute.a threat to health or ~-safety; the permit,[ee would noEhave to ~-_;.,-_ _ _ take minimization meazureS`ifahe - ;-permittee demonstrates thah'tiie.costbf - - r minimizauoawould exceed~[he'costof = repair, and would not.constitute~a threat ~ - _, - to health and safety. The permittee is obliged to take minimization.measures that are technologically and ' - be economically feasible. Upon written consent of the owners of such swctures e 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 trot 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 ee commenters express concern that proposed paragraph 817.121 (a) (2) t prejudged this issue, while others o 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 rutemaking to ce affect, interpret, or clarify the status quo r. regarding subsidence control a requirements for natural gas or petroleum transmission pipelines, branch and gathering lines, or distribution mains. For these and other s reasons discussed below, OSM has re decided to limit 817.121(a) (2) to those - structuresprotected under the Energy ~ --. Policy Act, namely noncommercial 8 buildings and occupied residential dwellings and related structures. e Commenters claim that the proposed - ,- provision that required permittees to minimize damage frdm planned - - ng subsidence operations was vague and d unworkable since little guidance was provided as to what minimizing damage would entail. Commenters argue that OSM's contention that the new tole would clarify an unresolved issue over d the meaning of paragraph 817.121(a) , was misguided, since the proposed rule d did little to clarify the issue and would likely result in even more litigation. Id Commenters also allege that, rather than clarify the obligation of planned h subsidence operations concerning subsidence damage, the proposed rule would effectively remove the exception granted in SMCRA for planned ally subsidence. These commenters questioned the effect of OSM's proposed I provision on the planned subsidence gy exception at section 516(b)(t) of SMCRA if an operator using planned subsidence must adopt and deploy the same