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16734 Federal Register /Vol. 60, No. 62 /Friday, March 31, 1995 /Rules and Regulations
<br />subsidence control measures as an
<br />bperation not using planned subsidence.
<br />OSM has considered these comments
<br />as well as the existing regulatory t
<br />- scheme of SMCRA~and has concluded
<br />_. that, given the lack of clarity~.of section
<br />516 on this issue; the most reasonable
<br />regulatory scheme and the regulatory
<br />scheme most consistent with SMCRA as
<br />amended by the Energy Policy Act, is to
<br />provide longwail subsidence damage
<br />minimization requirements that track
<br />the protections offered by the Energy
<br />Policy Act concerning subsidence from
<br />other forms of underground mining.
<br />Although the Energy Policy Act does
<br />not specifically address a minimization
<br />standard for longwall mining, it
<br />demonstrates Congress' intent to
<br />specifically require subsidence damage
<br />repair or compensation only for the
<br />structures listed in section 720.
<br />Therefore, the final tole limits the
<br />requirement to take measures to
<br />minlmize material damage resulting
<br />from longwall subsidence [o those
<br />sttvctures protected in the Energy
<br />Policy Act. This is not a prevention
<br />standard, so a planned subsidence
<br />operation will not be required to meet
<br />the same subsidence control standard
<br />that applies to an operation not using
<br />planned subsidence. The addition of a
<br />limited requirement that longwall mine
<br />operators"minimize" damage in certain
<br />circumstances is not inconsistent with
<br />the SMCRA provision at section
<br />" _ 516(6)(1) which exempts longwall
<br />mining from [he requirement [o prevent
<br />material damage. Authority for the
<br />minimization standard derives from
<br />both section 516(6)(1) and section 720 of
<br />SMCRA. OSM recognizes [hat Congress
<br />expressly stated in the Energy Policy
<br />Act that nothing in the statute regarding
<br />surface owner protections shall be
<br />construed to prohibit or interrupt
<br />underground coal mining operations.
<br />OSM believes that the final rule which
<br />contains a limited requirement for
<br />longwall operations to minimize
<br />subsidence damage in certain
<br />circumstances is consistent with
<br />Congress' guidance contained in [he
<br />Energy Policy Act.
<br />OSM believes that. by requiring oNy
<br />surface measures [o minimize
<br />subsidence damage to non-commercial
<br />buildings and occupied residential
<br />dwellings and related structures, and
<br />only when it is technologically and
<br />economically feasible, the final rule
<br />establishes reasonable subsidence
<br />control measures that are also consistent
<br />with Congress' intent to support and
<br />encourage the use of planned and
<br />controlled subsidence. Further, by also
<br />providing that the requirement does not
<br />apply if the permittee demonstrates that
<br />minimization would cost more than costs, is mandatory. However, neither ~ -
<br />_ _
<br />repair, OSM believes it has mitigated the'[egulatory authority'nor the ~- ~~>;, " "
<br />any potential for unreasonably permittee is required to obtain the ._ .
<br />expensive minimizadon measures. OSM landdv+iier s cbncurrentean orderto
<br />recognizes that same"material damage, co sahafyPtha[ test: Instead the- '=„~, ~ _ _
<br />protected structures from planned.. '.. ~ , mtidmizznori.ineasures would~tie.,,,,, ~„ -„
<br />subsidence is possible and in some -, -: --'ezplainedii'n the subsidence-codtibl".->
<br />cases will not be prevented under [his ~-.- plan; whi'ch~the landowner has aright
<br />rule. However, under paragraph' __ _- -_---to'r_eview_and object to, and which
<br />S I7.121(c), such damage has to be
<br />repaired. The requirement is not ~- -
<br />intended to discourage the use of -
<br />planned and controlled subsidence orto~
<br />require underground activities not
<br />normally associated with such
<br />operations. OSM does intend, however.
<br />than this rule will require reasonable
<br />measures to be taken on the surface to
<br />protect occupied residential dwellings
<br />and related swctures and non-
<br />commercial buildings from material
<br />damage. OSM believes that the
<br />subsidence control polity outlined in
<br />the Consolidation Coal Company video,
<br />presented to OSM during an on-site tour
<br />of coal fields, and available in the . __
<br />administrative record for this
<br />tvlemaking, illustrates~[he kinds of-; -" -
<br />measures that would adequately meet
<br />the needs of the homeowner and the
<br />permittee in deciding when arid what
<br />types of measures should be taken on
<br />the surface to minimize damage. ._
<br />Further, [his videotape demonstrates the
<br />reasonableness of using such
<br />minimization techniques.
<br />The commenters also question the
<br />provision that the proposed _
<br />performance standards are mandatory
<br />unless the landowner consents.
<br />Commenters state that requiring
<br />measures to be taken to protect
<br />structures and facilities unless the
<br />owc(er consents, raises a number of
<br />issties with regard to exactly when and
<br />for what purposes a permittee is
<br />required to obtain the owner's consent.
<br />For example, if the permittee finds that
<br />certain measures are not ptvdent or
<br />economically or technologically
<br />feasible, must the permittee still obtain
<br />the owner"s written consent? Also, if an
<br />owner were to steadfastly refuse to
<br />consent to an otherwise flawless
<br />planned subsidence operation,
<br />commenters opined that the
<br />requirement [o obtain the owner's
<br />consent could be considered an
<br />uncompensated taking of the permittee's
<br />pro erty right.
<br />The obligation to take necessary and
<br />prudent measures on the surface
<br />consistent with [he mining method
<br />employed, to minimize material damage
<br />to occupied residential dwellings and
<br />rela~ed structures and non-commercial
<br />buildings to the extent technologically
<br />and economically feasible, except when
<br />minimization costs would exceed repair
<br />3
<br />requires the approval of the regulatory
<br />authority. The consent provision allows
<br />the permittee to negotiate an
<br />'arrangement with an owner of a
<br />structure or facility to waive the
<br />protection otherwise afforded by
<br />pazagmph 817.121(a) (2). Such a written
<br />waiver would have to waive expressly
<br />the regu]atory protection provided by
<br />the proposed rule and therefore could
<br />not be a document which predates
<br />adoption of the final rule. OSM notes
<br />that such a waiver would not be
<br />effective to waive any, requirement
<br />pursuant to paragraph 817.121(c) to
<br />repair damage from subsidence. In
<br />addition to the waiver provision, the
<br />final rule includes a provision that a
<br />perrnit[ee will ndt be required to take
<br />measures to minimize subsidence
<br />damage upon a demonstration that the
<br />costs of such measures would exceed
<br />the repair costs for the damage. In both
<br />cases, the permittee could allow the
<br />damage to occur, and repair it pursuant
<br />[o aragraph817:121(c).
<br />One commenter alleges that damage
<br />minimization measures for longwall
<br />mining cannot be limited to surface
<br />measures, because the SMCRA
<br />legislative history indicates that
<br />Congress contemplated underground
<br />preventive measures such as
<br />backstowing,provided such measures
<br />aze technologically and economically
<br />feasible. The commenter cites H.R. Rep.
<br />No. 218, 95th Congress. First Session
<br />(1977) at 125-126.OSM does not agree
<br />with [his characterization of the cited
<br />House Report. OSM believes the cited
<br />House Report materials discuss damage
<br />prevention and minimization measures
<br />appropriate for conventional room-and-
<br />pillar mining; [here is no specific
<br />reference to longwall mining. For
<br />example, [he referenced portion of the
<br />report states that:
<br />One characteristic of subsidence
<br />which disrupts surface land uses is its
<br />unpredictable occurrence in terms of
<br />both time and location: Subsidence
<br />occurs, seemingly on a random basis, at
<br />least up to 60 years after mining and
<br />even in those areas it is still occurring.
<br />H. Rep. No. 218, 95th Cong., 1st Sess.
<br />126 (1977). Such problems are not
<br />characteristic of longwall mining.
<br />Therefore, i[ is unlikely Congress had
<br />longwall mining in mind when it
<br />discussed appropriate prevention
<br />
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