[Federal Register Volume 65, Number 39 (Monday, February 28, 2000)]
[Rules and Regulations]
[Pages 10388-10390]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-4329]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 948

[WV-077-FOR]


West 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 OSM's decision on an amendment 
submitted by the State of West Virginia as a modification to its 
permanent regulatory program under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). OSM published its decision on the 
provision in the February 9, 1999, Federal Register (64 FR 6201). The 
decision being corrected concerns subsidence regulations, and 
specifically concerns certain rules that pertain to an ``angle of 
draw'' determination for subsidence damage. This correction is intended 
to comply with the decision of the United States Court of Appeals for 
the District of Columbia in National Mining Association v. Babbitt, No. 
98-5320 (D.C. Cir., April 27, 1999).

EFFECTIVE DATE: February 28, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, 
Charleston Field Office, 1027 Virginia Street East, Charleston, West 
Virginia 25301. Telephone: (304) 347-7158.

SUPPLEMENTARY INFORMATION:

Background

    In a letter dated May 5, 1999 (Administrative Record Number WV-
1127), the West Virginia Division of Environmental Protection (WVDEP) 
submitted an amendment to the West Virginia program. We subsequently 
reviewed the amendment, and approved it on October 1, 1999 (64 FR 
53200). Also in the May 5, 1999, letter the WVDEP requested that we 
reconsider our previous disapproval of parts of the West Virginia 
regulations at CSR 38-2-3.12 (concerning subsidence control plan) and 
38-2-16.2 (concerning surface owner protection from subsidence damage) 
and remove the corresponding required regulatory program amendments 
specified in the February 9, 1999, Federal Register rule. The WVDEP 
stated the reason for the request is the April 27, 1999, United States 
Court of Appeals decision in National Mining Association v. Babbitt.

Need for Correction

    On April 27, 1999, the United States Court of Appeals for the 
District of Columbia struck down two OSM regulations on coal mine 
subsidence. The regulations struck down were among those issued on 
March 31, 1995, at 60 FR 16722-16751, pursuant to SMCRA and section 
2504 of the Energy Policy Act of 1992 (the EPAct) which added a new 
section 720 to SMCRA. Section 720 requires underground mine operators 
to repair or to compensate for material damage to residential 
structures and noncommercial buildings, and to replace residential 
water supplies adversely affected by underground mining.
    The Court of Appeals struck down the rebuttable presumption that, 
when subsidence damage occurs within the so-called ``angle of draw,'' 
damage has been caused by the related underground mine (30 CFR 
817.121(c)(4)). The Court emphasized that, for a regulatory presumption 
to withstand legal challenge, the circumstances giving rise to the 
presumption must make it more likely than not that the presumed fact 
exists. Slip op. at 6. The Court noted that OSM had characterized the 
angle of draw only as ``one way to define the outer boundary of 
subsidence displacement that may occur at the surface.'' 60 FR at 16738 
(emphasis added by the Court). The Court ruled that OSM could not 
``impose a presumption of causation of damage on a party based merely 
on the possibility that the party caused the damage.'' Slip op. at 10. 
Because it could not be said that subsidence-caused damage to 
structures within the angle of draw is more likely than not to occur, 
the Court struck down the regulation. Id.
    The Court also vacated OSM's regulation requiring coal operators to 
conduct presubsidence structural condition surveys (30 CFR 
784.20(a)(3)), solely because that regulation was interconnected with 
the angle of draw regulation. The Court ruled that, after enactment of 
the Energy Policy Act, OSM possessed the authority to require such 
surveys. Slip op. at 13-14. The Court, however, found it necessary to 
vacate the regulation because the regulation defined the area within 
which the pre-subsidence survey is required by reference to the angle 
of draw. Id. at 14.
    In accordance with the Court's decision, we suspended the following 
regulations on December 22, 1999 (64 FR 71652). We suspended 30 CFR 
817.121(c)(4) (i)-(iv). These provisions set out a procedure under 
which damage occurring within an area defined by an angle of draw would 
be subject to the 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 within the angle of draw. We also suspended that portion of 
30 CFR 784.20(a)(3) which required a specific structural condition 
survey of all EPAct protected structures within an area defined by an 
angle of draw.

The Regulatory Decisions We Are Correcting

    1. CSR 38-2-3.12.a.1. In our February 9, 1999, decision, we did not 
approve the phrase ``within an angle of draw of at least 30 degrees'' 
at CSR 38-2-3.12.a.1. This provision requires the identification (on a 
map) of the lands, structures, and water supplies that could be damaged 
by subsidence. We disapproved the phrase ``within an angle of draw of 
at least 30 degrees'' because it limited the identification of water 
supplies to areas within the angle of draw. This limitation renders the 
provision less effective than the Federal regulations at 30 CFR 
784.20(a)(1) which has no ``angle of draw'' limit for the 
identification of water supplies that may be affected by subsidence. 
Our suspension of the Federal ``angle of draw'' criterion at 30 CFR 
817.121(c)(4) (i)-(iv) does not affect this disapproval

[[Page 10389]]

of the State as it pertains to water supplies. Therefore, our 
disapproval of the phrase ``within an angle of draw of at least 30 
degrees'' at CSR 38-2-3.12.a.1. continues in force.
    In addition we required, at 30 CFR 948.16(zzz), that CSR 38-2-
3.12.a.1 be amended to require that the map identify the type and 
location of all lands, structures, and drinking, domestic and 
residential water supplies within the permit and adjacent areas, and to 
include a narrative indicating whether subsidence, if it occurred, 
could damage or diminish the use of the lands, structures, or water 
supplies. This required amendment is not affected by our suspension of 
the Federal regulations cited above and, therefore, remains in force.
    We also approved CSR 38-2-3.12.a.1 pertaining to an alternative, 
site-specific angle of draw, but only with the understanding that such 
an alternative angle of draw would be justified based on a site-
specific geotechnical analysis of the potential surface impacts of the 
mining operation. This decision is affected by our suspension of the 
``angle of draw'' criterion, and must be corrected. We are correcting 
this decision by changing the qualified approval that CSR 38-2-
3.12.a.1, to a complete approval, because there is now no Federal 
regulatory counterpart to this alternative angle of draw criterion. As 
we stated in the December 22, 1999, suspension notice, under section 
505(b) of SMCRA, a State may elect to retain its existing regulations 
despite the fact that OSM has suspended their counterparts.
    In addition we required, at 30 CFR 948.16(yyy), that CSR 38-2-
3.12.a.1 be amended to clarify that approval of the proposed angle of 
draw has a more reasonable basis than the 30-degree angle of draw based 
on site-specific geotechnical analysis of the potential impacts of the 
proposed mining operation. Because our approval of CSR 38-2-3.12 is now 
unqualified, we are removing the required amendment at 30 CFR 
948.16(yyy).
    2. CSR 38-2-3.12.a.2. We approved CSR 38-2-3.12.a.2. concerning 
presubsidence surveys, except we did not approve the phrase ``within 
the area encompassed by the applicable angle of draw'' as it applies to 
water supply surveys. In addition we required, at 30 CFR 948.16(aaaa), 
that CSR 38-2-3.12.a.2. be amended to require a pre-subsidence survey 
without limitation by an angle of draw, of the quantity and quality of 
all drinking, domestic, and residential water supplies within the 
permit area and adjacent area that could be contaminated, diminished, 
or interrupted by subsidence. The Federal regulations concerning pre-
subsidence surveys of water supplies have never incorporated an ``angle 
of draw'' criterion. CSR 38-2-3.12.a.2. does contain an ``angle of 
draw'' criterion for water supplies, and that criterion renders the 
State provision less effective than 30 CFR 784.20(a)(3) as it pertains 
to water supplies. Therefore, the disapproval and required amendment 
concerning water supplies continue to be in effect, because they are 
not affected by our suspension of the Federal ``angle of draw'' 
provision.
    CSR 38-2-3.12.a.2. also contains a requirement for pre-subsidence 
surveys for non-commercial or residential dwellings and structures that 
incorporates an ``angle of draw'' criterion. Although the counterpart 
Federal requirement contained an ``angle of draw'' criterion and has 
been suspended, the suspension does not render the State provisions 
inconsistent with the Federal regulations. Under section 505(b) of 
SMCRA, a State may elect to retain its existing regulations despite the 
fact that OSM has suspended its counterparts. Therefore, CSR 38-2-
3.12.a.2. concerning pre-subsidence surveys for non-commercial or 
residential dwellings and structures continues to be approved.
    CSR 38-2-3.12.a.2.A. and B. We did not approve CSR 38-2-3.12.a.2.A. 
and B. concerning exemption and postponement of the pre-subsidence 
structural survey. These provisions were disapproved because we found 
them to be less effective than 30 CFR 784.20(a)(3) and 
817.121(c)(4)(ii). Both of these Federal provisions have been 
suspended. Therefore, CSR 38-2-3.12.a.2.A. and B. are no longer less 
effective than the Federal regulations. We are correcting our finding 
to approve CSR 38-2-3.12.a.2.A. and B. concerning exemption and 
postponement of the pre-subsidence structural surveys. As we stated in 
the December 22, 1999, suspension notice, under section 505(b) of 
SMCRA, a State may elect to retain its existing regulations despite the 
fact that OSM has suspended its counterparts.
    We required, at 30 CFR 948.16(bbbb), that CSR 38-2-3.12.a.2. be 
amended to require that the permit applicant pay for any pre-subsidence 
surveys of protected structures and water supplies, and to require the 
applicant to provide copies of the surveys to the property owner and 
the regulatory authority. The Federal requirements at 30 CFR 
784.20(a)(3) concerning pre-subsidence structural surveys have been 
suspended, but the Federal requirements concerning pre-subsidence 
surveys of water supplies have not been suspended. Therefore, we are 
correcting our required amendment at 30 CFR 948.16(bbbb) to remove all 
references to presubsidence surveys of protected structures, since the 
portion of 3.12.a.2. referring to presubsidence surveys no longer has a 
Federal counterpart. Pursuant to section 505(b) of SMCRA, a State may 
elect to retain its existing regulations, despite the fact that OSM has 
suspended its counterparts. As corrected, 30 CFR 948.16(bbbb) will now 
only require that the permit applicant pay for any pre-subsidence 
surveys of protected water supplies, and that the applicant provide 
copies of the surveys to the property owner and the regulatory 
authority.
    We did not approve, at CSR 38-2-3.12.a.2., the definition of ``non-
commercial building.'' In addition, we required, at 30 CFR 
948.16(cccc), that CSR 38-2-3.12.a.2. be amended to clarify that the 
definition of ``non-commercial building'' includes such buildings used 
on a regular or temporary basis. These two decisions are affected by 
our suspension of 30 CFR 784.20(a)(3). The State's definition of ``non-
commercial building'' pertains directly to its pre-subsidence survey 
requirement for structures at CSR 38-2-3.12.a.2. Since the Federal pre-
subsidence survey requirement for structures at 30 CFR 784.20(a)(3) has 
been suspended, the State's definition is applied to a provision for 
which the Federal regulations have no counterpart. Pursuant to SMCRA 
section 505(b), the State's use of the definition of ``non-commercial 
building'' at CSR 38-2-3.12.a.2. is not inconsistent with SMCRA and can 
be approved. Therefore, we are correcting our decision regarding the 
definition of ``non-commercial building'' at CSR 38-2-3.12.a.2. to 
approve the definition. In addition, we are deleting the required 
amendment at 30 CFR 948.16(cccc).
    3. CSR 38-2-16.2.c.3. In our February 9, 1999, decision, we found 
that CSR 38-2-16.2.c.3. was less effective than 30 CFR 817.121(c)(4)(i) 
to the extent that the State's presumption of causation of subsidence 
damage only applies within the area which a pre-subsidence structural 
survey is required. In addition, we required, at 30 CFR 948.16(dddd), 
that CSR 38-2-16.2.c.3. be amended to provide that a rebuttable 
presumption of causation would exist within the applicable angle of 
draw regardless of whether or not a pre-subsidence survey had been 
conducted. These two decisions are no longer valid because of our 
suspension of the Federal regulations at 30 CFR 817.121(c)(4) (i)-(iv). 
The Federal regulations no longer contain a presumption of causation of

[[Page 10390]]

subsidence damage. As we stated in the December 22, 1999, suspension 
notice, under section 505(b) of SMCRA, a State may elect to retain its 
existing regulations despite the fact that OSM has suspended its 
counterparts. Therefore, we are correcting our decision on CSR 38-2-
16.2.c.3. concerning presumption of causation of damage by subsidence, 
to be an approval of this provision. In addition, we are deleting the 
required amendment codified at 30 CFR 948.16(dddd).
    CSR 38-2-16.2.c.3.B. Finally, in our February 9, 1999, decision we 
did not approve the word ``or'' at CSR 38-2-16.2.c.3.B. concerning 
rebuttal of the presumption. In addition, we required, at 30 CFR 
948.16(eeee) that CSR 38-2-16.2.c.3.B. be amended to make it clear that 
the presumption of subsidence causation of damage can be rebutted only 
where the permittee demonstrates that the damage was proximately caused 
by some other factor or factors ``and'' was not proximately caused by 
subsidence. These two decisions are no longer valid because of our 
suspension of the Federal regulations at 30 CFR 817.121(c)(4) (i)-(iv). 
As we stated in the December 22, 1999, suspension notice, under section 
505(b) of SMCRA, a State may elect to retain its existing regulations 
despite the fact that OSM has suspended its counterparts. Therefore, we 
are correcting our previous decision on CSR 38-2-16.2.c.3.B. concerning 
rebuttal of the presumption, and are approving this provision. In 
addition, we are deleting the required amendment codified at 30 CFR 
948.16(eeee).

Administrative Procedure Act

    The Administrative Procedure Act provides exceptions to its notice 
and public comment procedures when an agency finds that there is good 
cause for dispensing with such procedures on the basis that they are 
impracticable, unnecessary, or contrary to the public interest. We have 
determined that, under 5 U.S.C. 553(b)(3)(B), good cause exists for 
dispensing with the notice and public comment procedures in this case. 
Good cause exists because this rule merely makes corrections that are 
indirectly mandated by the decision of the court in National Mining 
Association v. Babbitt, supra. Therefore, notice and opportunity for 
prior comment are unnecessary and we are issuing these corrections as a 
final rule.
    In addition, under 5 U.S.C. 553(d)(3), we find good cause for 
dispensing with the 30-day delay in the effective date of this final 
rule because we are merely making corrections indirectly mandated by 
the court in National Mining Association v. Babbitt, supra.

List of Subjects in 30 CFR Part 948

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 1, 2000.
Allen D. Klein,
Regional Director, Appalachian Regional Coordinating Center.
    For the reasons set out in the preamble, 30 CFR part 948 is amended 
as set forth below:

PART 948--WEST VIRGINIA

    1. The authority citation for part 948 continues to read as 
follows:

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

    2. Section 948.15 is amended in the table by revising the entry 
with the ``Date of Final Publication'' of February 9, 1999, to read as 
follows:


Sec. 948.15  Approval of West Virginia regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
 Original amendment submission
              date                      Date of final publication                  Citation/description
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*                  *                  *                  *                  *                  *
                                                        *
April 28, 1997.................  February 9, 1999.......................  W.Va. Code 22-3 Sections 3(u)(2)(1)
                                                                           (decision deferred), (2)(not
                                                                           approved), (3); 3(x), (y) (partial
                                                                           approval), (z) (partial approval);
                                                                           13(b)(20), (22), (c)(3) (decision
                                                                           deferred); 15(h); 17(b); 18(c), (f);
                                                                           28 (a-c) (not approved), (d), (e)
                                                                           (decision deferred), (f). WV
                                                                           Regulations CSR 38-2 Sections 2.4,
                                                                           2.43 (not approved), 2.95 (not
                                                                           approved), 2.108, 2.120; 3.2.e;
                                                                           3.12.a.1 (partial approval), .2
                                                                           (partial approval); 3.14.b.7 & .8
                                                                           deleted, .12.E, .15.B deleted, .13.B;
                                                                           3.29.a (partial approval); 3.35;
                                                                           5.5.c; 6.5.a; 8.2.e; 9.2.i.2;
                                                                           9.3.h.1, .2; 14.11.e, .f, .g, .h;
                                                                           14.15.b.6.A, .c, .d; 16.2.c (partial
                                                                           approval), .2, .3, .4 (partial
                                                                           approval for .4); 20.1.e
*                  *                  *                  *                  *                  *
                                                        *
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    3. Section 948.16 is amended by removing and reserving paragraphs 
(yyy), (cccc), (dddd), and (eeee), and by revising paragraph (bbbb) to 
read as follows:


Sec. 948.16  Required regulatory program amendments.

* * * * *
    (yyy) [Reserved]
* * * * *
    (bbbb) By April 28, 2000, West Virginia must submit either a 
proposed amendment or a description of an amendment to be proposed, 
together with a timetable for adoption to revise 38-2-3.12.a.2., or 
otherwise amend the West Virginia program to require that the permit 
applicant pay for any technical assessment or engineering evaluation 
used to determine the premining quality and quantity of drinking, 
domestic or residential water supplies, and to require that the 
applicant provide copies of any technical assessment or engineering 
evaluation to the property owner and to the regulatory authority.
    (cccc) [Reserved]
    (dddd) [Reserved]
    (eeee) [Reserved]
* * * * *
[FR Doc. 00-4329 Filed 2-25-00; 8:45 am]
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