Federal Register /Vol. 60, No. 62 /Friday, March 31, 1995 /Rules and Regulations 16733
<br />Indian lands, are required;to comply
<br />with these provisions;for operations
<br />conducted after October 24~. 1992.'-
<br />_ _ ~ -The majority of comniente{s~agreed
<br />. ~ that the provisron~to.requue the- ;
<br />. Act, clearly-noted that these provisions dwellings and related structurest~ '
<br />;=were not to "prohibit, or interrupt `However, unless the~anticipateddamage
<br />.,underground coaLmining operations." -: would consu[ute.athreat to healtll'oc.
<br />r:WithqutYhe compensation option: the. ~ ,: '. safety;_the permittee would no[have to
<br />wcoynimehter asserted that operations _.
<br />~ ~ "take minuntzation measures~ifahe
<br />-..;:would 6e~forcedao cease~operating~if .": ",:permittee demonstrates thatythe.cost of
<br />er_ `.:"they couldn'Yreplace the water ~. -
<br />"
<br />'- ; ~ minimization,w-ouldexceed ~the~cosY of
<br />supplies. OSM does not agree. The
<br />' repair, and would"riot constitute s thtea
<br />affected by undergroundactivities`is -~~
<br />necessary to implement the provision of
<br />newSMCRAsection720(a)(Z).. ,.
<br />While commenters support the . " -_
<br />adoption of the proposed rule; they -~
<br />maintain that it is not necessary to
<br />monitor each water well in order fo
<br />establish that subsidence has impacted
<br />a water supply well. OSM agrees that in
<br />many instances it may not be necessary
<br />to monitor each well. The location and
<br />-terms of the Energy Policy Ac[
<br />unequivocally require replacement.
<br />""-Further, OSM does not anticipate that
<br />underground mining operations will be
<br />`unable to comply with this statutory
<br />mandate. For example, if the permittee
<br />is unable to restore a spring or aquifer,
<br />the permittee should still be able to
<br />provide water from an alternative
<br />source, such as a public water supply,
<br />or by pipeline from another location.
<br />[o health and'safety. The permittee is --
<br />obliged [o take minimizatign,measures
<br />[fiat are technologically and ' ' --
<br />economically feasible. Upon written
<br />consent of the owners of such structures
<br />or facilities, no minimization measures
<br />would be required.
<br />Section 2504(a)(2)(D) of the Energy
<br />Policy Act provides that any rulemaking
<br />regarding protection of natural gas or
<br />petroleum pipelines from subsidence
<br />frequency of well monitoring will be
<br />
<br />addressed on a case-by-case basis
<br />Section 817.121 (a)-Subsidence Control damage is to be done after the study
<br />
<br />which OSM is mandated to perform
<br />pursuant to existing paragraphs .. OSM is adopting paragraph pursuant to paragraph 2504(a)(2)(A) of
<br />784.14(h) (1) and 817.41(c).
<br />~ 817.121(a)(I) as proposed. The the Energy Policy Act. Some
<br />A commenter asked for clarification requirement provides [hat the permittee commenters express concern [hat
<br />_ that this provision would not in any must eitheradopt measures consistent proposed paragraph 817.121 (a) (2)
<br />way affect property rights under existing with known technology which prevent prejudged this issue, while others
<br />state water laws consistent with subsidence causing material damage [o support the rule because they believe it
<br />_-" paragraph 717(a)-Anothercommenter - the-extent technologically and i does impose additional subsidence
<br />further recommended that OSM amend economically feasible, maximize min4 damage protection for pipelines. Since
<br />the provision to require that water rights stability, and maintain the value and OSM has not yet completed the study
<br />regarding the affected well or spring be reasonably foreseeable use of surface mandated by the Ehergy Policy Act,
<br />approved by the State Engineer or lands: oradopt mining technology OSM does not intend [his rvlemaking to
<br />otherwise be recognized under State_ _ _ which.provides for planned subsidence affect, interpret, or clarify the status quo
<br />law. OSM points out that nothing in this in a predictable and controlled manner. regarding subsidence control -
<br />requirement is intended to create~an ~ This language is not intended to be a requirements for natural gas or
<br />exception to section 717(a) of SMCRA. change from the rules promulgated in petroleum transmission pipelines.
<br />Section 717(a) requires deference to 1983, (See 48 FR 24652, June 1, 1983), branch and gathering lines, or
<br />___,_ -State water law on questions of water _ _
<br />~ and relies on the basis and purpose
<br />-
<br />- distrbption mains. For these and other
<br />-
<br />allocation and use. OSM interprets stated in 2983. This rulemaking makes reasons discussed below, OSM has
<br />- section 720 and the implementing toles minor editing changes intended to more decided to limit 817.121(a) (2) to those _ .
<br />..as not requiring the replacement of cleazly reflect the meaning of the structures protected under the Energy- ...
<br />water supplies to the extent existing rule. Thus, under this Policy Ac[, namely noncommercial
<br />_ underground mining activities consume provision,_as an alternative to adopting buildings and occupied residential _'
<br />_ _ _
<br />or legitimately use the water supply measures consistent with known _
<br />dwellings and related structures.
<br />'~-- under a senior water right~determined technology which prevents subsidence Commenters claim that the proposed ~ ~ ,- -
<br />underapplicable State law. See In re causing material damage to the extent provision chat required permittees to
<br />Permanent Surface Mining Regulation technologically and economically ~ minimize damage frdm planned - -
<br />Litigation II, Round III, 620 F. Supp. feasible, an permittee may adopt mining subsidence operations was vague and
<br />..1519..1525 (D.C.D.C. 1985). However, technology which provides for planned unworkable since little guidance was ,
<br />OSM believes [hat section 717(a) subsidence in a predictable and provided as to what minimizing damage
<br />concerns rights under State water law to convolled manner. would entail. Commenters argue that
<br />consumption or use of water, and was OSM is adopting paragraph OSM's contention that the new tole
<br />not intended to address destruction or 817.121 (a)(2) with modification from would clarify an unresolved issue over
<br />~ damage of the source of water, or the proposed rule. Under the proposed the meaning of paragraph 817.121(a) ,
<br />contamination of the water supply. rule, if a permittee employed mining was misguided, since the proposed rule
<br />Thus, OSM anticipates that technology which provides for planned did little [o clarify the issue and would
<br />underground mining activities which subsidence in a predictable and likely result in even more litigation.
<br />cause destruction or damage of a water convolled manner, the permittee would Commenters also allege that, rather than
<br />supply source, or contamination of a have been required to take necessary clarify [he obligation of planned
<br />water supply, would be subject to the and prudent measures, consistent with subsidence operations concerning
<br />replacement requirements of section 720 the mining method employed, [o subsidence damage, the proposed rule
<br />even if the permittee possessed senior minimize material damage to surface would effectively remove the exception
<br />water rights. lands, structures or facilities [o [he granted in SMCRA for planned
<br />A commenter recommended that extent technologically and economically subsidence. These commenters
<br />compensation be available as an option
<br />' feasible. Under the final rule, the questioned the effect of OSM's proposed
<br />I
<br />for those limited circumstances where
<br />responsibility to minimize damage is I
<br />provision on the planned subsidence
<br />an impacted supply can't be restored. limited to structures listed in the Energy exception at section 516(b) (1) of SMCRA
<br />The commenter went on to note that Policy Act, namely noncommercial if an operator using planned subsidence
<br />/ Congress, in enacting the Energy Policy buildings and occupied residential must adopt and deploy the same -
<br />t
<br />
<br />
|