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Federal Register /Vol. 60, No. 62 /Friday, March 31, 1995 /Rules and Regulations 16735 measures in this passage. OSM Federal program States; as well as on other hand, surface owners can know concludes the report does not show - - Indian lands;-are requtred to comply the extent to which land they plan to congressional intent to require use:in with this~provisron for~operntions - build on has.been undermined by - _,liingwall mining,of the.measures;' .. ~ conducted; after October 24•;I992: -- ,;,- p(evious mining operations:~.Therefore - -~:=- "di-scussed in this passage - ,'. . -. Poss tble mtenm duect erifoFcement of OSMrbeheves that.it is reasonable to ~~~ _ _ '''~' "- '" ~" ~ - ~ ~" -rSection817121 (c ~Subsrdence'CantroP- )-~~ ..; _ this provrsion,by OSM insoine.primacy.. . - ~ - States pnortoamendmentof State ~' conclude.th'at the requiremenbshould ~ _ .^-" .'- . not~apply. to structures which-did not °~ '' 817.121(c)(1) , progtams~is~`addressed below in ~ ' exist at the time of mining. OSM-is - - - ---' - In the proposed rule, paragraph -revisioris~to~Part~843: -- ~-~ ~ - adopting this interpretation in the final 817.121(cl(1) would be modified to A group of commenters recommended rule, and has revised paragraph substitute 'subsidence related material that the.rule recognize that pre- 817.121(c)(2) accordingly. damage" for "any material damage subsidence agreements and.post- Commenters also allege that the _ resulting from subsidence; "permittee" -subsidence-agreements between the obligation to repair subsidence-related for "operator;" and "its pre-subsidence property owner and the permit[ee ~ ~ damage does not apply to buildings value and supporting reasonably would satisfy the requirements under pazagraph 817.121(c) (2), and that acquired after the mining occurred. OSM does not agree. SMCRA section foreseeable uses i[ was capable of supporting * * *j' for "[he value and nothin m [his am h should be g p ~P - 720 rovides that under ound coal p ~ reasonably foreseeable uses which it construed to prohibit or interrupt mining operations conducted after the was ca able of su ortin * * *: 'The P PP B underground coal mining operations. The use of pre- and post-subsidence date of enactment of the Energy Policy Ac[ shall promptly repau or compensate changes were editing changes not ~ intended to have a~substandve effect on agreements would be an acceptable f f lf lli th i t for material damage resulting from the rule. However; commenters express means o u i ng e requ remen so long as [he teens me[ the requirement subsidence caused to any occupied residential dwelling and structures concern over the changes in the under paragraph 817.121 (c) (2) that [he related thereto, or non-commercial language of paragraph (c) (1) because the permittee repair or compensate any building. Section 720 does not _ preamble did not contain an explanation for the proposed changes. " subsidence-related material damage to any non-commercial building or distinguish among such structures based on whether they were acquired before or In the final rule, OSM is not amending ~-- occupied'residential dwelling or related after the date of mining. Rather, all such the text of this provision but is adding sttvcture.-Any permittee/owner structures are subject to the requirement a heading for the paragraph to assist in agreements cannot negate.the - to promptly repair or compensate. OSM reading and application of the ~ requirement~of the Energy Policy Act to believes the language of the statute is provision. repair orcompensate for subsidence- .clear, and [he interpretation urged by 817.121(c)(2) -- -_ _ related material damage to occupied commenters is inconsistent with the _ Pazagraph 817.121 (c) (2) is being residential dwellings and related struc[uresas well as non-commercial terms of the statute. - A commenter notes that the proposed adopted as proposed. The final rule buildings. OSM anticipates that repair rules lack provisions establishing requires that a permittee either pursuant to~paragraph 817.121(c) (2) will requirements for notification of the promptly repair material~damage caused restore the protected stnrcture or facility permit[ee or regulatory authority, or for by subsidence to any non-commercial- - to its premining capacity, features, _ estimate, repair, replacement, or building or occupied residential value, and utility. OSM reiterates that compensation time frames. OSM dwelling or related structure, or compensate for material damage caused [he requirements in this paragraph are i d d hibi i believes that existing citizen complaint by subsidence to those structures If the not nten e to pro t or nterrupt l d d i i i procedures are adequate and d f . un ergroun m coa n ng operat ons. appropriate to a dress sur ace owner _ repair option Is selected, the permittee must full rehabilitate restore or-- - Commenters allege [hat the permittee -i bli r d ti t i - complaints of subsidence damage under -- ' -- - - ~ - - - y , s no ga ur er o on o repa r these rules. replace the damaged structure. If the subsidence-related damage to any OSM believes preparation or approval compensation option is selected, the building constructed after mining has of estimates is properly addressed under permittee must compensate the owner occurred. OSM agrees with this existing procedures, by case-by-case of the damaged structure in the full ~ comment. If the protected structure was negotiations with the surface owner,. amount of the diminution of value damaged from subsidence from and regulatory authority review of resulting from the subsidence-related underground mining, and that mining reclamation measures. Similarly, OSM damage. Compensation may be occurred after the date set forth in the believes timely repair. or compensation accomplished by the purchase, prior to Energy Policy Act. then the Energy of protected strictures is adequately mining, of anon-cancelable premium- Policy Act requires that the pernit[ee addressed by the use of the statutory prepaid insurance policy. The repair or compensate for the material term "prompt," which is commonly requirements of this paragraph apply to damage. However, Congress does no[ understood to mean "expeditious" or all subsidence-related damage caused by discuss whether there should be any "immediate." OSM notes that several underground mining activities different treatment for structures that commenters give examples of situations conducted after October 24, 1992. did not exist when the mining took which may involve substantial variation Paragraph 817.121(c) (2) implements place. For such structures, there would in the time required before the full new SMCRA section 720 (a) (1), which be no opportunity for the permittee [o extent of subsidence damage can be requires that all underground coal mitigate or prevent subsidence damage, confirmed, or before repairs properly mining operations promptly repair or and thus avoid the requirement to repair may be commenced. OSM concludes compensate for material damage to non- or compensate. Nor would it be possible that what is reasonably prompt for commercial buildings and occupied for a petmittee to anticipate what repair or compensation is properly residential dwelli~tgs or related structures might be built above the mine determined on a case-by-case basis. structures as a result of subsidence due after mining occurs and thus plan for Commenters request changes in the to underground coal mining operations. anticipated costs to determine if mining existing rules providing for notice to Permittees in bott) primacy States and would be economically feasible. On the property owners in advance of y .