ENFORCE37451 - Laserfiche WebLink

Home Browse Search

16734 Federal Register /Val. 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 daznage minimization requirements that crack the protections offered by the Energy Policy Act concerning subsidence from other farms of underground mining. Although the Energy Policy Ac[ does not specifically address a minimization standard for longwall mining, it demonstrates Congress' intent to specifically require subsidence carnage repair or compensation only for the structures listed in section 720. Therefore, [he 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 starrdard 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 secdon 516(6)(1) which exempts longwa.il mining from the requirement to orevent material damage. Authority for the minimization standard derives 6~om both section 516(6)(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 interrupR underground coal mining operations. OSM believes [hat 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 i[ is technologically and economically feasible, the final ivle establishes reasonable subsidenr-e control measures that are also consistent with Congress' intent [o support and encourage the use of planned and controlled subsidence. Further, by also providing [hat the requirement does not apply if the permittee demonstrates that minimization would cost more than repair, OSM believes it has mitigated any potential for unreasonabiy expensive minimization measures. OSM ; . recognizes that some material damage to:.: protected structures from planned.. ~ - subsidence ispossible 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 [o discourage the use of planned and controlled subsidence or to require underground activities not normally associated with such operations. OSM does intend, however. tha4this rule will require reasonable measures to be taken on the surface to protect occupied residential dwellings and related structures and non- commercial buildings from material damage. OSM believes that the subsidence control policy outlined in the Consolidation Coal Company video, preserved to OSM during an on-site tour of coal fields, and available in the _. administrative record for this rulemaking, illustrates the Mnds of",~ - - measures that would adequately meet [he 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 [hat 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 owr•er 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 [he 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 rela~ed structures and non-commercial buildings to the eMent technologically and economically feasible, except when minimization costs would exceed repair 3 vever, neither - hor the - ... ~~ plan, which the landowner has a right ~to"review and object to, aril 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 [ha[ such a waiver would not be effective to waive any_ requirement pursuant to pazagraph 817.121(c) to repair damage from subsidence. In addition [o the waiver provision, the final tvle includes a provision that a permittee wlll nd[ 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 paragtaph 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 chazacterizaUon of the cited House Report. OSM believes the cited House Report materials discuss damage prevention and minimization measures appropriate for conventional room-and- pillar 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