[Federal Register Volume 64, Number 245 (Wednesday, December 22, 1999)]
[Rules and Regulations]
[Pages 71652-71653]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32738]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 784 and 817

RIN 1029-AB69


Surface Coal Mining and Reclamation Operations; Permanent 
Regulatory Program; Compliance with Court Order

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

ACTION: Final rule: suspension.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are suspending certain portions of our permanent program 
regulations dealing with subsidence from underground coal mining. We 
are taking this action to make our rules consistent with a recent 
decision by the U.S. Court of Appeals for the District of Columbia 
Circuit.

EFFECTIVE DATE: December 22, 1999.

FOR FURTHER INFORMATION CONTACT: Vermell Davis, Technology Development 
Staff, Division of Technical Support, Office of Surface Mining 
Reclamation and Enforcement, U.S. Department of the Interior, 1951 
Constitution Ave., N.W., Washington, D.C. 20240 (202) 208-2802.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What Is The Background Of The Rules We Are Suspending?
II. Why Are We Publishing This Notice?
III. What Is The Effect On Approved State Regulatory Programs?
IV. Which Regulatory Provisions Are We Suspending?
V. Procedural Matters.

I. What Is the Background Of The Rules We Are Suspending?

    The Energy Policy Act was enacted October 24, 1992, Pub. L. 102-
486, 106 Stat. 2776 (1992) (hereinafter, ``The Energy Policy Act or 
EPAct). Section 2504 of that Act, 106 Stat. 2776, 3104, amends the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 
1201 et seq.
    Section 2504 of EPAct added a new section 720 to SMCRA. Section 
720(a)(1) requires that all underground coal mining operations 
conducted after October 24, 1992, promptly repair or compensate for 
material damage to non-commercial buildings and occupied residential 
dwellings and related structures as a result of subsidence due to 
underground coal mining operations. Repair of damage includes 
rehabilitation, restoration, or replacement of the structures 
identified by section 720(a)(1), and compensation must be provided to 
the owners in the full amount of the diminution in value resulting from 
the subsidence. Section 720(a)(2) requires prompt replacement of 
certain identified water supplies which have been adversely affected by 
underground coal mining operations. Under section 720(b), the Secretary 
of the Interior was required to promulgate final regulations to 
implement the provisions of section 720(a).
    On September 24, 1993 (58 FR 50174), OSM published a proposed rule 
to amend the regulations applicable to underground coal mining and 
control of subsidence-caused damage to lands and structures through the 
adoption of a number of permitting requirements and performance 
standards. We adopted final regulations on March 31, 1995 (60 FR 
16722).

II. Why Are We Suspending These Rules?

    The rules were challenged by the National Mining Association in the 
District Court for the District of Columbia and in the U.S. Court of 
Appeals for the District of Columbia Circuit. On April 27, 1999, the 
U.S. Court of Appeals issued a decision vacating certain portions of 
the regulatory provisions of the subsidence regulations. See National 
Mining Association v. Babbitt, 173 F.3d 906 (1999). We are suspending 
those regulatory provisions that are inconsistent with the rationale 
provided in the U.S. Court of Appeals' decision.

III. What Effect Will This Suspension Have on Existing State 
Regulatory Programs?

    States that have not yet revised their approved regulatory programs 
(see Subchapter T of 30 CFR Chapter VII) in response to our March 31, 
1995 rule changes need not amend those programs to include counterparts 
to the provisions that we are suspending in this rulemaking.
    States that have already revised their regulatory programs to 
include counterparts to the provisions that we are suspending in this 
rulemaking may remove or modify those counterparts in accordance with 
30 CFR Part 732. However, under section 505(b) of SMCRA, these States 
also may elect to retain their existing regulations, unless otherwise 
provided by State law.

IV. Which Regulatory Provisions Are We Suspending?

1. 30 CFR 817.121(c)(4)(i)-(iv)

    This regulation provided that if damage to any non-commercial 
building or occupied residential dwelling or structures related thereto 
occurred as a result of earth movement within an area determined by 
projecting a specific angle of draw from the outer-most boundary of any 
underground mine workings to the surface of the land, a rebuttable 
presumption would exist that the permittee caused the damage. The 
presumption typically would have applied to a 30-degree angle of draw. 
Once the presumption was triggered, the burden of going forward shifted 
to the mine operator to offer evidence that the damage was attributable 
to another cause. The purpose of this regulatory provision was to set 
out a procedure under which damage occurring within a specific area 
would be subject to a rebuttable presumption that subsidence from 
underground mining was the cause of any surface damage to non-
commercial buildings or occupied residential dwellings and related 
structures.
    The Court of Appeals vacated, in its entirety, this rule that 
established an angle of draw and that created a rebuttable presumption 
that damage to EPAct protected structures within an area defined by an 
``angle of draw'' was in fact caused by the underground mining 
operation. 173 F.3d at 913.
    In reviewing the regulation, the Court rejected the Secretary's 
contention that the angle of draw concept was reasonably based on 
technical and scientific assessments and that it logically connected 
the surface area that could be damaged from earth movement to the 
underground mining operation. The angle of draw provided the basis for 
establishing the surface area within which the rebuttable presumption 
would apply. The Secretary had explained that the rebuttable 
presumption merely shifted the burden of document production to the 
operator in evaluating whether the damage was actually caused by the 
underground mining operation within the surface area defined by the 
angle of draw. The Court nevertheless held that the angle of draw was 
irrationally broad and that the scientific facts presented did not 
support the logical inference that damage to the surface area would be 
caused by earth movement from underground mining within the area.

[[Page 71653]]

    Based on the conclusion that there was no scientific or technical 
basis provided for establishing a rational connection between the angle 
of draw and surface area damage, the Court further concluded that the 
rebuttable presumption failed. In reviewing the rebuttable presumption 
requirement, the Court held ``an evidentiary presumption is `only 
permissible if there is sound and rational connection between the 
proved and inferred facts, and when proof of one fact renders the 
existence of another fact so probable that it is sensible and 
timesaving to assume the truth of [the inferred] fact * * * until the 
adversary disproves it.' '' That is to say, for the presumption to be 
permissible, the facts would have to demonstrate that the earth 
movement from the underground mining operation ``more likely than not'' 
caused the damage at the surface. See National Mining Association, 173 
F.3d at 906-910.
    In compliance with the Court of Appeals' decision of April 27, 
1999, we are suspending 30 CFR 817.121(c)(4)(i) through (iv).
    Paragraph (v) within this section applies generally to the types of 
information that must be considered in determining the cause of damage 
to an EPAct protected structure and is not limited to or expanded by 
the area defined by the angle of draw. Therefore, paragraph (v) will 
remain in force.

2. Section 784.20(a)(3)

    This regulatory provision required, unless the applicant was denied 
access for such purposes by the owner, a survey which identified 
certain features. First, the survey had to identify the condition of 
all non-commercial buildings or occupied residential dwellings and 
related structures which were within the area encompassed by the 
applicable angle of draw and which might sustain material damage, or 
whose reasonably foreseeable use might be diminished, as a result of 
mine subsidence. Second, the survey had to identify the quantity and 
quality of all drinking, domestic, and residential water supplies 
within the proposed permit area and adjacent area that could be 
contaminated, diminished, or interrupted by subsidence. In addition, 
the applicant was required to notify the owner in writing that denial 
of access would remove the rebuttable presumption that subsidence from 
the operation caused any postmining damage to protected structures that 
occurred within the surface area that corresponded to the angle of draw 
for the operation. (See discussion of angle of draw above).
    This regulatory provision was challenged insofar as it required a 
specific structural condition survey of all EPAct protected structures. 
The Court of Appeals vacated the specific structural condition survey 
regulatory requirement in its decision on April 27, 1999. In reviewing 
the Secretary's requirement, the Court clearly upheld the Secretary's 
authority to require a pre-subsidence structural condition survey of 
all EPAct protected structures. The Court accepted the Secretary's 
explanation that this specific structural condition survey was 
necessary, among other requirements, in order to determine whether a 
subsidence control plan would be required for the mining operation. 
However, because of the Court's ruling on the ``angle of draw'' 
regulation discussed above, it vacated the requirement for a specific 
structural condition survey because it was tied directly to the area 
defined by the ``angle of draw''.
    In compliance with the Court of Appeals' decision, we are 
suspending that portion of 30 CFR 784.20(a)(3) which required a 
specific structural condition survey of all EPAct protected structures. 
The remainder of this section continues in force to the extent that it 
applies to the EPAct protected water supplies survey and any technical 
assessments or engineering evaluations necessarily related thereto.

V. Procedural Matters

1. National Environmental Policy Act

    This notice suspends those sections of the March 31, 1995, final 
rule invalidated by the U.S. Court of Appeals for the District of 
Columbia Circuit. The action is categorically excluded from the 
requirement to prepare an environmental document under the National 
Environmental Policy Act of 1969, as amended 42 U.S.C. 4332 et seq. 
This determination is made in accordance with the Departmental Manual 
(516 DM 2, Appendix 1.10).

2. Author

    The author of this suspension notice is Vermell Davis, Office of 
Surface Mining Reclamation and Enforcement, U.S. Department of the 
Interior, 1951 Constitution Avenue, NW., Washington, D.C. 20240.

List of Subjects

30 CFR Part 784

    Reporting and recordkeeping requirements, Underground mining.

30 CFR Part 817

    Environmental Protection, Reporting and recordkeeping requirements, 
Underground mining.

    Dated: December 7, 1999.
Sylvia V. Baca,
Acting Assistant Secretary, Land and Minerals Management.
    For the reasons given in the preamble, we are suspending portions 
of 30 CFR Parts 784 and 817 as set forth below:

PART 784--UNDERGROUND MINING PERMIT APPLICATIONS--MINIMUM 
REQUIREMENTS FOR RECLAMATION AND OPERATION PLAN

    1. The authority citation for Part 784 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq, as amended; and 16 U.S.C. 470 
et seq.

    2. In Sec. 784.20, paragraph (a)(3) is amended by adding a sentence 
at the end, reading as follows:


Sec. 784.20  Subsidence control plan.

    (a) * * *
    (3) * * * However, the requirements to perform a survey of the 
condition of all noncommercial buildings or occupied residential 
dwellings and structures related thereto, that may be materially 
damaged or for which the reasonably foreseeable use may be diminished 
by subsidence, within the areas encompassed by the applicable angle of 
draw is suspended per court order.
* * * * *

PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND 
MINING ACTIVITIES

    3. The authority citation for Part 817 is revised to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq., as amended.


Sec. 817.121--[Suspended in part]

    4. In Sec. 817.121, paragraphs (c)(4)(i) through (iv) are 
suspended.

[FR Doc. 99-32738 Filed 12-21-99; 8:45 am]
BILLING CODE 4310-05-M