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'lfi736 Federal Register /Vol. G0, No. G2 /Friday, Nlarch 31, 1995 /Rules and Regulations underground mining, because the rules require notice at leas[ six months before mining, and this does not allow the __ _ __ surface owner to determine when. .- ~~ ;-~minfng actually takes piace under"lis property.. OSM did not propose to;~~.„ :"'amend existing rules concerning ; - "' ~ ~ ~ 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 [he permittee is not requtred ?;~,c'~ to restore or compensate for " deterioration to a structure beyond what _ was caused by subsidence from "~ underground mining. OSM believes the language of proposed paragraph 817.121(c) (2) is clear to this effect and that no rule changes are 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 permittee has previously repaired or settled with [he - 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 of jurisdiction by _ _ OSM. OSM agrees that once damage occurs, an underground mining .- - operation has a statutory obligation to repair, which may no[ be negated by a prior agreement. , 817.121(c) (3) The purpose of proposed paragraph 817.121(c) (3) was to ensure repair or correction of material damage caused by subsidence to those swctures and facilities not covered by new SMCRA --- - section 720 (a)(1) and paragraph (c)(2) of proposed section 817.121. The proposed amendments to paragraph (c)(3) would have required repair or correction irrespective of limitations otherwise applicable under State law. The proposed rule would have required a permittee to either correct subsidence- related material damage [o any structures or facilities not protected by paragraph (c)(2) by repairing [he 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 petmittee 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, recommended that OSM draft a regulation stipulating . 'that any and alf subsidence damage~is subject to the regulations to repair and compensate even if the permit[ee 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 [he new rule demands that the proposed tole not be adopted. Commenters also claim that the existing state law remedies are adequate and that court decisions support their proposition [ha[ SMCRA does not specifically "require the 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 that, without ample evidence [hat state law remedies for such damage aze inadequate,~there is no compelling 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 signfficandy 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 to preempt state property law and that the proposed tole violates the express terms of th~ Energy Policy Act. Numerous commenters interpret this provision as providing for subs}dente protection of natural gas and peypleum, . . ~::.~ pipelines `Soriie'tommenters asseif~fhat"'~ -}~~~~'~~_~~' the proposed rule,directly conttadtcts , , )jt :~ ,'issue are pcomulgafed',Cbm4neiiter's~alsb~ - comment extensively on_tHe~impact Ihe- rule would have on tfie propei{y, rights - of both coal.and,pipeline companies. Some commenters'argued that even -'~ more extensive-protectipn of pfpelines,- 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 tvlemaking on this issue is contemplated pending completion bf the study on this subjectputsuant to ~ - section 2504 of the Ehergy Policy'Aa. --- OSM is not addressing this issue in this tvlemakingrIf, aftercompletion of the- - subsidence pipeline study; OSM°i determines that further rulemaking may be appropriate-on this subject. OSM will invite interested persons-to review and comment on any further tvlemaking. __,- OSM has consideredall comments and has decided not to adopt the proposed changes toparagraph - 817.121(c)(3).InsteadOSM-will retain the State law-limitationset 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 that circumstances have not changed significantly since OSM's adoption of the Stale law limitation; and OSM concludes that the record developed in this rulemaking is insufficient tojustify eliminating the State law limitation except as provided in the Energy Policy Act. Under the final rule, the permittee is required, to the extent required under applicable provisions of State law, to either correct material damage resulting from subsidence caused to any structures or facilities not protected by paragraph (c)(2) of this paragraph by repairing the damagQ, 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 shall include rehabilitation, restoration or replacement of damaged structures or facilities. Compensation may be accomplished by the purchase, prior to mining, of anon-cancelable premium-prepaid insurance policy. '.F,