[Federal Register Volume 62, Number 218 (Wednesday, November 12, 1997)]
[Rules and Regulations]
[Pages 60658-60660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29724]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 946

[VA-106-FOR]


Virginia Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; correction.

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SUMMARY: This document corrects and explains an OSM decision on a 
provision of a proposed amendment submitted by the State of Virginia as 
a modification to its permanent regulatory program (hereinafter 
referred to as the Virginia program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). OSM published its decision on the 
provision in a September 17, 1997, final rule Federal Register 
document. The provision concerns an exemption from the requirement to 
conduct mitigation measures to prevent or lessen the impact of 
subsidence damage, when planned subsidence mining methods are used, 
when the structure owners deny the permittee access to implement the 
measures to minimize material damage.

DATES: Effective: November 12, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Robert A. Penn, Director, Big 
Stone Gap Field Office, Office of Surface Mining Reclamation and 
Enforcement, 1941 Neeley Road, Suite 201, Compartment 116, Big Stone 
Gap, Virginia 24219, Telephone: (540) 523-4303.

SUPPLEMENTARY INFORMATION: By letter dated May 21, 1996 (Administrative 
Record No. VA-882), Virginia submitted amendments to the Virginia 
program concerning subsidence damage. The amendments are intended to 
make the Virginia program consistent with the Federal regulations as 
amended on March 31, 1995 (60 FR 16722). Virginia stated that the 
proposed amendments implement the standards of the Federal Energy 
Policy Act of 1992, and sections 45.1-243 and 45.1-258 of the Code of 
Virginia.
    On September 17, 1997, OSM approved, with certain exceptions, the 
amendment submitted by Virginia (62 FR 48758). This document revises 
and explains one of OSM's decisions.

Subsidence Control

    In the September 17, 1997, final rule, Federal Register document, 
OSM stated that it was approving, for longwall mining permittees, 
Virginia's proposed language at 480-03-19.817.121(a)(2)(iii) concerning 
an exemption from the requirement to conduct mitigation measures to 
minimize material damage from subsidence. The exemption would apply 
when the structure owners deny the permittee access to implement the 
measures to minimize material damage. (See Finding No. 5 of the 
September 17, 1997, final rule, 62 FR 48760.
    In that finding, OSM excluded room and pillar retreat mining from 
qualifying for the proposed exemption. Upon further consideration of 
Virginia's proposed provision at 480-03-19.817.121(a)(2)(iii), OSM is 
changing is previous finding and decision. The rational for the revised 
decision is discussed below. The following finding replaces the 
preamble discussion for that part of Finding 5 that concerns amendments 
to subsection (a) of 480-03-19.817.121, in the final rule (62 FR 48758, 
second and third columns on page 48760).

5. Sec. 480-03-13.817.121  Subsidence Control

    Subsection (a) concerning measures to prevent or minimize damage is 
amended by adding new language (at new subsection (a)(2)) to provide 
that planned subsidence must include measures to minimize material 
damage to protected structures, except if the permittee has written 
consent of the structure owners, the costs of such measures exceed the 
anticipated costs of repair (unless the anticipated damage would 
constitute a threat to health or safety), or the structure owners deny 
the permittee access to implement the measures to minimize material 
damage and the permittee provides written evidence of good faith 
efforts to obtain access.
    The proposed language is substantively identical to and no less 
effective than the counterpart Federal language at 30 CFR 817.121(a)(2) 
with one exception. 30 CFR 817.121(a)(2) contains no counterpart to the 
proposed language that provides an exception to the requirement to 
include measures to minimize material damage to protected

[[Page 60659]]

structures if the structure owners deny the permittee access to 
implement the measures to minimize material damage.
    ``Planned subsidence in a predictable and controlled manner'' 
includes longwall mining and pillar retreat mining. Mitigation efforts 
performed on the surface to minimize material damage from planned 
subsidence include trenching, bracing, or jacking of the structures to 
be protected. These mitigation measures remain in place while the 
ground underneath the structures subsides, keeping the structures level 
and, thereby, helping to minimizing damage to the structures.
    It is possible to prevent or minimize damage to the surface and 
surface structures by leaving coal in place (for example, by leaving 
support pillars or reducing the width of a longwall extraction panel). 
Such underground measures are not undertaken, however, if the approved 
mining method involves planned subsidence in a predictable and 
controlled manner as with longwall and pillar retreat mining, ``because 
they are not normally consistent with longwall technology.'' (60 FR at 
16731) As stated in the final rule preamble to 30 CFR 784.20(b), ``OSM 
does not intend to require anything other than surface measures to 
minimize material damage from longwall mining where conventional 
underground measures may not be practicable.'' (60 FR at 16731) Note 
that in the preamble, OSM used the term ``longwall mining'' to refer to 
the ``longwall mining and pillar recovery technologies.'' (60 FR at 
16731)
    Subsidence is a natural and common result of underground mining. 
However, there is a clear distinction between the mining methods that 
produce planned subsidence and those that produce unplanned subsidence. 
The following is a brief explanation of planned and unplanned 
subsidence and the mining methods that produce them.
    Unplanned subsidence. The standard method of room and pillar mining 
produces unplanned subsidence. Standard room and pillar mining is 
accomplished as follows. First, a series of parallel paths are cut 
through the coal. These cuts are called entries. As the entries are 
increased in length, they are connected together by cutting a series of 
cross cuts through the coal from one entry to the next. These cross 
cuts produce a series of coal pillars surrounded by mined-out spaces 
(called rooms). Room and pillar mining produces a pattern much like a 
common checkerboard: on a checkerboard, each black square is surrounded 
by red squares. In a room and pillar underground mine, a pillar of coal 
is surrounded by mined-out coal. In standard room and pillar mining, 
the pillars are left in place to support the rock (roof) above the coal 
layer.
    The size of the pillar that is left to support the roof is 
determined by the strength of the coal, depth of the coal, the 
characteristics of the rock (above the coal) that is being supported, 
and the width of the entry system. The pillars in place support the 
roof of an underground coal mine for an undetermined length of time. It 
is possible that, sometime in the future, roof and/or pillar failure 
may occur and surface subsidence may take place. Normally, the 
extraction of coal from this type of mine development is less than 70 
percent.
    Planned subsidence. Planned subsidence is achieved by both retreat 
mining of the pillars of a room and pillar system, and by longwall 
mining. In retreat mining, the pillars of a room and pillar system are 
reduced in size (robbed) as the miners retreat back out of the room and 
pillar system. In retreat mining, the pillars are reduced in size to 
the point of allowing a controlled failure of the roof (roof fall) to 
occur. Total extraction of coal within the area defined for retreat 
mining is usually greater than 75 percent. It is important to note that 
in pillar retreat mining, it is essential that the roof fall take place 
in order to reduce the forces on the remaining pillars. If the load 
forces on the remaining pillars aren't reduced by roof fall, the mining 
equipment can't properly and safely mine the remaining pillars.
    A longwall mining operation is first developed by using room and 
pillar methods to develop entries, haulageways, paths for ventilation, 
and to define the blocks of coal to be removed by the longwall cutter. 
the blocks of coal to be removed are often quite large (for example, 
500 to 1,000 feet wide by thousands of feet long). Since all the coal 
is removed in these large blocks, the unsupported roof falls shortly 
following passage of the longwall cutter. The amount of surface 
subsidence that is expected to take place is determined from the 
thickness of the coal, width of the block of coal removed, and the 
characteristics and thickness of the overburden.
    The Federal regulations at 30 CFR 817.121(a)(1) provide that a 
permittee must either adopt measures to prevent subsidence from causing 
material damage, or adopt mining technology that provides for planned 
subsidence in a predictable and controlled manner. Room and pillar 
retreat mining and longwall mining are examples of mining technology 
that provides for planned subsidence in a predictable and controlled 
manner. Thus, Virginia's proposal with regard to longwall mining 
operations and room and pillar retreat mining operations is consistent 
with the Federal rule at 30 CFR 817.121(a)(2) which requires measures 
to minimize subsidence damage only when such measures are ``consistent 
with the mining method employed'' and they are ``technologically 
feasible.''
    Section 516(b)(1) of SMCRA provides a special exemption for planned 
subsidence methods of mining from the requirement to adopt measures 
consistent with known technology in order to prevent subsidence from 
causing material damage. Section 720(a)(2) of SMCRA, which concerns 
subsidence related to underground mining operations, provides that 
nothing in section 720(a)(2) ``shall be construed to prohibit or 
interrupt underground coal mining operations.'' Additionally, the 
preamble to 30 CFR 817.121(a)(2) states that the damage minimization 
requirements for planned subsidence operations are based on both 
sections of SMCRA. (60 FR at 16734, 1st column; March 31, 1995)
    OSM was also concerned about whether or not the structure owner 
would be notified by the longwall permittee of the consequences of 
failing to allow access for the placement of mitigation measures. Since 
Virginia's proposal had no direct Federal counterpart, there was no 
direct Federal notice counterpart. The Federal regulations at 30 CFR 
784.20(a)(3) provide a relevant comparison. 30 CFR 784.20(a)(3) 
provides that, if an owner denies access for a pre-mining survey, the 
permittee must provide certain information to the landowner concerning 
the potential negative effect of their actions, but the lack of access 
does not prevent the permittee from mining. Virginia, by a letter dated 
January 3, 1997 (Administrative Record Number VA-902) clarified that 
under 480-03-19.817.121(a)(2)(iii), the permittee must provide a 
written document to the structure owner informing the owner of the 
consequences of denying access. Further, the permittee must provide 
Virginia with evidence documenting such notice.
    The Director finds, therefore, that Virginia's proposal is 
reasonable and not inconsistent with SMCRA, since it would facilitate 
both the use of planned subsidence mining methods and the continuation 
of underground mining in situations in which surface owners refuse to 
allow implementation of surface measures approved by the regulatory 
authority.

[[Page 60660]]

    In addition, the preamble to the Federal regulation at 30 CFR 
817.121(a)(2) does not address the question of what happens when a 
landowner denies access. Therefore, it is reasonable to presume that 
OSM never envisioned this situation, thus creating the regulatory gap 
that Virginia is endeavoring to fill.
    Subsection (c) has been revised by deleting the existing language 
and replacing new language.
* * * * *
    The Federal regulations at 30 CFR part 946 codifying decisions 
concerning the Virginia program are being amended to implement this 
revised finding. Section 946.15 Approval of Virginia regulatory program 
amendments is being amended in the table (third column on page 48765, 
62 FR 48758) to show both the September 17, 1997, final publication of 
this amendment, and the date of the revision discussed in this notice.

    Dated: November 3, 1997.
Tim L. Dieringer,
Acting Regional Director, Appalachian Regional Coordinating Center.

PART 946--VIRGINIA

    1. The authority citation for part 946 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 946.15 is amended in the table by revising the entry 
having the original amendment submission date of May 21, 1996, to read 
as follows:


Sec. 946.15  Approval of Virginia regulatory program amendments.

* * * * *

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     Original amendment           Date of final                         
       submission date             publication      Citation/description
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*                  *                  *                  *              
         *                  *                  *                        
May 21, 1996................  September 17, 1997,   VA Code Secs.  480- 
                               and November 12,      03-19.700.5;       
                               1997.                 784.14, 20; 817.41,
                                                     121.               
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[FR Doc. 97-29724 Filed 11-10-97; 8:45 am]
BILLING CODE 4310-05-M