[Federal Register Volume 65, Number 111 (Thursday, June 8, 2000)]
[Rules and Regulations]
[Pages 36328-36338]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14359]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 901

[SPATS No. AL-070-FOR]


Alabama Regulatory Program

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

ACTION: Final rule.

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SUMMARY: OSM is approving an amendment to the Alabama regulatory 
program (Alabama program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). Alabama proposed revisions to the 
Alabama Surface Mining Control and Reclamation Act (ASMCRA) concerning 
the repair or compensation for material damage to any occupied 
residential dwelling and related structures or any noncommercial 
building. The proposed revisions also concern the replacement of 
contaminated, diminished, or interrupted drinking, domestic or 
residential water supplies. The damage to the protected structures or 
water supplies has to have been caused by subsidence resulting from 
underground coal mining operations. Alabama proposed to revise its 
program at its own initiative.

EFFECTIVE DATE: June 8, 2000.

FOR FURTHER INFORMATION CONTACT: Arthur W. Abbs, Director, Birmingham 
Field Office, Office of Surface Mining, 135 Gemini Circle, Suite 215, 
Homewood, Alabama 35209. Telephone: (205) 290-7282. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Alabama Program
II. Submission of the Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Alabama Program

    On May 20, 1982, the Secretary of the Interior conditionally 
approved the Alabama program. You can find background information on 
the Alabama program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the May 20, 
1982, Federal Register (47 FR 22062). You can find later actions 
concerning the Alabama program and previous amendments at 30 CFR 
901.15, 901.16, and 901.17.

II. Submission of the Amendment

    By letter dated August 17, 1999 (Administrative Record No. AL-
0589), Alabama submitted an amendment to its approved permanent 
regulatory program according to the Federal regulations at 30 CFR 
732.17(b). Alabama sent the amendment at its own initiative.
    We announced the proposed rulemaking in the September 7, 1999, 
Federal Register (64 FR 48573). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. The public comment period 
closed on October 7, 1999. We held a public hearing in Birmingham, 
Alabama, on October 4, 1999. We reopened the public comment period in 
the October 15, 1999, Federal Register (64 FR 55878) in order to allow 
the

[[Page 36329]]

public additional time to submit comments. The public comment period 
closed on November 1, 1999.
    During our review of the amendment, we identified concerns 
regarding section 9-16-91(f) of ASMCRA, remedies for subsidence damage 
and subsidence damage agreements. We notified Alabama of these concerns 
by letter dated February 3, 2000 (Administrative Record No. AL-0627). 
By letter dated February 15, 2000, and May 3, 2000 (Administrative 
Record Nos. AL-0629 and AL-0634, respectively), Alabama sent us 
additional explanatory information. Because the explanatory information 
did not make any change to Alabama's amendment regarding remedies for 
subsidence damage and subsidence damage agreements, we did not reopen 
the public comment period.

III. Director's Findings

    Below, in accordance with SMCRA and the Federal regulations at 30 
CFR 732.15 and 732.17, are the Director's findings concerning the 
amendment on the Alabama permanent regulatory program. Any revisions 
that we do not discuss below are about minor wording changes, or 
revised cross-references and paragraph notations to reflect 
organizational changes resulting from this amendment.
    A. Alabama proposed to revise section 9-16-91(e)(1) of ASMCRA to 
read as follows:

    (1) Promptly repair or compensate for material damage to any 
occupied residential dwelling and related structures or any 
noncommercial building caused by surface subsidence resulting from 
underground coal mining operations. Repair of damage shall include 
rehabilitation, restoration, or replacement of the damaged occupied 
residential dwelling and related structures or noncommercial 
building. Compensation shall be provided to the owner of the damaged 
occupied residential dwelling and related structures or 
noncommercial building which shall be in the full amount of the 
diminution in value resulting from subsidence caused damage. 
Compensation may be accomplished by the purchase, prior to mining, 
of a non-cancelable premium-prepaid insurance policy.

    The above proposed revision involves minor wording changes to this 
previously approved statute and it does not change its meaning. 
Therefore, we are approving the revision because it is no less 
stringent than the Federal statute at section 720(a)(1) of SMCRA.
    B. Alabama proposed to add new section 9-16-91(e)(3) of ASMCRA to 
read as follows:

    (3) Promptly correct any material damage resulting from 
subsidence caused to surface lands, to the extent technologically 
and economically feasible, by restoring the land to a condition 
capable of maintaining the value and reasonably foreseeable uses 
that it was capable of supporting before subsidence.

    We do not have a counterpart Federal statute in SMCRA for this 
proposed addition. However, the provision is consistent with 
requirements in section 516(b)(1) of SMCRA and is found in the Federal 
regulations at 30 CFR 817.121(c)(1). We are approving the addition of 
this provision to Alabama's statutes because it is consistent with our 
Federal regulations and SMCRA and will not make the Alabama statutes 
less stringent than the Federal statutes.
    C. Alabama proposed to add new section 9-16-91(e)(4) of ASMCRA to 
read as follows:

    (4) The regulatory authority shall issue such notices or orders 
and take such actions as necessary to compel compliance with these 
requirements.

    This provision that Alabama proposed to add to its statutes is not 
found in our Federal statutes. Alabama's intent by adding this 
provision is to make it clear that it has the power to enforce the 
provision of section 9-16-91 of ASMCRA. We are approving this statute 
because it is not inconsistent with our Federal regulations or statutes 
and will not make the Alabama statutes less stringent than the Federal 
statutes.
    D. Alabama proposed to add new section 9-16-91(f) to read as 
follows:

    (f) Notwithstanding any other provision in this chapter to the 
contrary, the remedies prescribed in this section or any rule 
promulgated under authority of this chapter pertaining to repair or 
compensation for subsidence damage and replacement of water shall be 
the sole and exclusive remedies available to the owner for such 
damage and its effects. Neither punitive damages nor, except as 
specifically prescribed in this section or any rule promulgated 
under authority of this chapter pertaining to repair or compensation 
for subsidence damage and replacement of water, compensatory damages 
shall be awarded for subsidence damage caused by longwall mining or 
other mining process employing a planned subsidence method and 
conducted in substantial compliance with a permit issued under 
authority of this chapter. Nothing in this chapter shall prohibit 
agreements between the surface owner and the mineral owner or lessee 
that establish the manner and means by which repair or compensation 
for subsidence damage is to be provided. However, the remedies 
prescribed for subsidence damage shall not be diminished or waived 
by contrary provisions in deeds, leases, or documents (other than 
such subsidence damage agreements) which leave the owner without 
such prescribed remedies. Provided, however, the provisions of this 
subsection do not apply to any actions brought for, and in which the 
trier of the fact finds, intentional, willful, or wanton conduct; 
provided further, that conduct in substantial compliance with 
applicable mining permits may not be deemed to be intentional, 
willful, or wanton.

    The above provision establishes that the remedies outlined in 
section 9-16-91 of ASMCRA are the sole and exclusive remedies available 
to a surface owner for subsidence damages, unless the operator violates 
the conditions or provisions of a permit issued under the authority of 
ASMCRA. It also allows a surface owner and mineral owner or lessee to 
enter into a subsidence damage agreement that establishes the manner 
and means that the mineral owner or lessee will provide repair or 
compensation.
    1. Remedies for Subsidence Damage. Section 720(a) of SMCRA provides 
two remedies to surface landowners for material damage caused by 
subsidence to protected structures and water supplies. First, a coal 
operator must promptly repair or compensate a surface landowner for any 
material damage, caused by subsidence, to any occupied dwelling and 
related structures or non-commercial buildings. Second, a coal operator 
must promptly replace any drinking, domestic, or residential water 
supplies that are damaged as a result of subsidence.
    Sections 9-16-91(e)(1) and (2) of ASMCRA provide the same remedies 
to surface landowners for material damage caused by subsidence to 
protected structures and water supplies that section 720(a) of SMCRA 
provides. Alabama's amendment at 9-16-91(f) establishes that these 
remedies found in 9-16-91 are the sole and exclusive remedies available 
to the surface owner for such damage and its effects as long as the 
operator is conducting longwall mining or other mining process 
employing a planned subsidence method in substantial compliance with a 
permit issued under the authority of ASMCRA. If the operator is found 
to have engaged in intentional, willful, or wanton conduct that is not 
in substantial compliance with a permit, the ability to seek additional 
damages is preserved. We interpret ``substantial compliance with the 
permit'' to be equivalent to ``compliance with all rules, regulations, 
orders, and permits.''
    In a letter dated February 15, 2000 (Administrative Record No. AL-
0629), Alabama confirmed that section 9-16-91(f) of ASMCRA does not 
limit any other remedies available under SMCRA.
    The Alabama program contains all the remedies provided for under 
SMCRA for material damage caused to protected structures and water 
supplies. In addition, Alabama has stated that the provision does not 
limit any other remedies available under SMCRA.

[[Page 36330]]

Therefore, we are approving the above provisions concerning remedies 
for subsidence damage in section 9-16-91(f) of ASMCRA, as clarified by 
the above interpretations, because the remedies are consistent with and 
are no less stringent than the remedies provided by section 720(a) of 
SMCRA. We note that Alabama has established conditions under which a 
surface owner may obtain additional damages. However, comparable 
provisions are not found in SMCRA and they do not conflict with any 
requirements of SMCRA. Therefore, the provisions do not render the 
Alabama program less stringent than SMCRA and we are approving them.
    2. Subsidence Damage Agreements. Section 9-16-91(f) of ASMCRA 
provides for subsidence damage agreements between surface owners and 
mineral owners or lessees, and further contains a sentence that reads 
as follows:

    * * * However, the remedies prescribed for subsidence damage 
shall not be diminished or waived by contrary provisions in deeds, 
leases, or documents (other than such subsidence damage agreements) 
which leave the owner without such prescribed remedies * * *

    The reference to subsidence damage agreements in the above quoted 
sentence would be inconsistent with and less stringent than SMCRA if 
interpreted to allow a surface landowner and mineral owner or lessee to 
enter into subsidence damage agreements that diminish or waive the 
surface landowner's right to the remedies prescribed in section 9-16-91 
of ASMCRA. This is because sections 515(b)(2) and 516(b)(1) of SMCRA, 
as well as the implementing Federal regulations at 30 CFR 
817.121(c)(1), establish that a permittee has a duty under SMCRA to 
maintain the value and reasonably foreseeable use of the surface land 
and to restore all land which is materially damaged by subsidence. 
Also, section 720(a)(1) of SMCRA and the implementing Federal 
regulations at 30 CFR 817.121(c)(2) provide that a permittee has a duty 
to repair or compensate for material damage to non-commercial buildings 
and occupied residential dwellings. Finally, section 720(a)(2) of SMCRA 
and its implementing Federal regulation at 30 CFR 817.41(j) provide 
that a permittee must promptly replace any drinking, domestic or 
residential water supply that is contaminated, diminished or 
interrupted by underground mining activities. Nothing can exempt a 
permittee from any one of these duties.
    We stated in a June 1, 1983, Federal Register (48 FR 24644) final 
rule that ``the duty to restore land materially damaged by subsidence 
will apply irrespective of the operator's liability under State law.'' 
In addition, in a March 31, 1995, Federal Register (62 FR 16735) final 
rule, we stated, ``[a]ny permittee/owner agreements cannot negate the 
requirement of the Energy Policy Act to repair or compensate for 
subsidence-related material damage to occupied residential dwellings 
and related structures as well as non-commercial buildings.''
    Further, in the March 31, 1995, Federal Register (62 FR 16733) 
final rule, we stated that ``the terms of the Energy Policy Act 
unequivocally require replacement'' of water supplies adversely 
affected by underground mining operations. In other words, surface 
landowners and mineral owners or lessees may enter into private 
subsidence damage agreements, but these agreements cannot diminish or 
waive the surface landowner's right to the remedies prescribed in 
section 9-16-91 of ASMCRA. To do so would be inconsistent with and less 
stringent than sections 515(b)(2), 516(b)(1), and 720(a) of SMCRA and 
its implementing Federal regulations at 30 CFR 817.121(c)(1) and (2) 
and 817.41(j).
    In its letter dated February 15, 2000 (Administrative Record No. 
AL-0629), Alabama responded to our concerns about the subsidence damage 
agreements provision in 9-16-91(f) of ASMCRA. The State asserted that 
the United States Court of Appeals for the District of Columbia had 
addressed the validity of subsidence damage agreements in its ruling in 
the case of National Mining Association (NMA) v. Babbit, No. 98-5320, 
decided April 27, 1999. Alabama interpreted the court's decision as 
saying that while a coal operator has an obligation to make full repair 
or compensation, the affected parties may agree among themselves as to 
what constitutes full repair or compensation.
    In ruling on this issue, the court clearly confirmed OSM's 
longstanding policy that waiver agreements between surface landowners 
and underground coal operators cannot diminish or waive the surface 
landowner's right to full compensation for subsidence related damages 
to protected structures and water supplies.
    We agree with Alabama's interpretation of the court's opinion that 
a mineral owner or lessee and a surface landowner may execute a pre-
subsidence damage agreement in which they agree as to what constitutes 
full repair or compensation with the stipulation that such agreements 
do not constitute a waiver of the surface landowner's rights under the 
Energy Policy Act.
    In addition, in a letter dated May 3, 2000 (Administrative Record 
No. AL-0634), Alabama stated that it recognizes that the Energy Policy 
Act mandates full compensation or repair for subsidence damage to 
protected structures and the prompt replacement of water for subsidence 
damage to protected water supplies. Alabama stated that it does not 
interpret section 9-16-91(f) to mean that a subsidence damage agreement 
can negate a surface owner's right to full and fair compensation or 
repair for subsidence damage to protected structures or replacement of 
water for subsidence damage to protected water supplies as provided for 
by the Alabama statutory equivalent to the Energy Policy Act 
requirements. Alabama further stated that it would take appropriate 
enforcement action against an operator who fails to fully repair or 
compensate for subsidence damage to protected structures or who fails 
to fully replace water for subsidence damage to protected water 
supplies.
    Therefore, based on (1) Alabama's interpretation that the 
provisions of section 9-16-91(f) allow subsidence damage agreements 
only insofar as those agreements are consistent with the Energy Policy 
Act and do not purport to diminish or waive the surface landowner's 
right to full compensation for subsidence related damages to protected 
structures and water supplies and (2) Alabama's assurance that it will 
take appropriate action against an operator who fails to fully repair 
or compensate for subsidence damage to protected structures or who 
fails to fully replace water for subsidence damages to protected water 
supplies, we are approving section 9-16-91(f) of ASMCRA because it is 
no less stringent than SMCRA.

IV. Summary and Disposition of Comments

Federal Agency Comments

    On August 25, 1999, we asked for comments from various Federal 
agencies who may have an interest in the Alabama amendment 
(Administrative Record No. AL-0590). We requested comments in 
accordance with section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of 
the Federal regulations. We did not receive any comments.

Environmental Protection Agency (EPA)

    According to 30 CFR 732.17(h)(11)(ii), we are required to get a 
written agreement from the EPA for those provisions of the proposed 
program

[[Page 36331]]

amendment that relate to air or water quality standards put into force 
under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or 
the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that 
Alabama proposed to make in this amendment pertain to air or water 
quality standards. Therefore, we did not ask the EPA to agree on the 
amendment.
    According to 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA in a letter dated August 25, 1999 
(Administrative Record No. AL-0590). The EPA did not respond to our 
request.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    According to 30 CFR 732.17(h)(4), we are required to request 
comments from the SHPO and ACHP on amendments that may have an effect 
on historic properties. On August 25, 1999, we requested comments on 
Alabama's proposed program amendment (Administrative Record No. AL-
0590), but neither responded to our request.

Public Comments

    We received comments on Alabama's proposed amendment from fourteen 
individuals and twelve representatives of various groups. The comments 
consisted of both supporting and opposing statements about the 
amendment in general, as well as supporting and opposing statements 
about the specific provisions of the amendment. Further, several of 
these comments pertained to the impact of SMCRA on Alabama common law. 
Therefore, for ease of discussion, we will first discuss the comments 
pertaining to the impact of SMCRA on Alabama common law. Then, we will 
discuss general comments in favor of Alabama's amendment and general 
comments opposing Alabama's amendment. Finally, we will discuss 
comments on specific provisions of the amendment.
A. Comments Pertaining to the Impact of SMCRA on Alabama Common Law
    We received several comments, both opposing and supporting the 
Alabama amendment, that pertained to the impact of SMCRA on Alabama 
common law. As commenters have informed us, Alabama's common law gives 
a surface owner an absolute right to subjacent support of the surface 
absent an express waiver of that right. See Williams v. Gibson, 4 So. 
350 (Ala.1888), West Pratt Coal Co. v. Dorman, 49 So. 849 (Ala.1909), 
Bibby v. Bunch, 58 So. 916 (Ala.1912), and Alabama Clay Products Co. v. 
Black, 110 So.151 (Ala.1926). The commenters, however, disagree on the 
impact that the enactment of SMCRA, including the Energy Policy Act, 
has on the respective rights of surface owners and the holders of 
mineral interests.
    Citing section 505(a) of SMCRA, supporters of Alabama's amendment 
argue that the enactment of section 516 of SMCRA and the Alabama 
counterpart at section 9-16-91 of ASMCRA have preempted the state law 
pertaining to subjacent support. According to these commenters the 
state property law is inconsistent with SMCRA since it provides for 
land use and environmental controls and regulations that are different 
from those required by SMCRA.
    Opponents, on the other hand, argue that the enactment of SMCRA did 
not impact Alabama's common law. They argue that common law provides 
more stringent land use and environmental controls and regulations than 
do the provisions of SMCRA or its implementing regulations. 
Accordingly, as section 505(b) of SMCRA states, any State law that 
provides for more stringent land use and environmental controls can not 
be construed to be inconsistent with SMCRA.
    Response: We think that the use of section 505 of SMCRA, whether it 
be subsection 505(a) or 505(b), to resolve this debate over whether 
SMCRA preempts the common law of Alabama, however, is inappropriate. 
Section 505 of SMCRA applies to State laws that directly address 
matters covered under SMCRA--such as environmental protection 
standards, reclamation standards, and the like. Section 505(a) was not 
intended to invalidate as ``inconsistent'' with SMCRA State common law 
of property rights which affords protection to surface owners by 
establishing the property right of the subjacent support.
    Generally, preemption analysis is informed by two basic 
presumptions: (1) that historic police powers of the States are not 
superseded by the Federal act unless that was the clear and manifest 
purpose of Congress, and (2) the purpose of Congress is the ultimate 
touchstone in every preemption case. Cipollone v. Liggett Group, Inc., 
505 U.S. 504, 516 (1992). Congress' intent is primarily discerned from 
the statutory text and from a ``fair understanding'' of the statute as 
a whole by looking at the statutory framework, the structure and 
purpose of the statute and the way in which Congress intended the 
statute and its surrounding regulatory scheme to affect business, 
consumers, and the law. Medtronic v. Lohr, 518 U.S. 470, 485 (1996).
    The text and history of SMCRA reveal no ``clear and manifest'' 
congressional intent to modify the State common law pertaining to 
subjacent support. To the contrary, it is an express purpose of SMCRA 
to establish uniform national standards that will ``fully protect the 
rights of the nation's surface landowners.'' 30 U.S.C. 1202 (b). It 
would hardly protect the rights of surface landowners for SMCRA to be 
interpreted as extinguishing their property right of subjacent support 
in exchange for more limited protection under SMCRA. Congress expressly 
indicated, moreover, that the respective property rights of the mineral 
interest holder and the surface owner are matters beyond the scope of 
SMCRA. Two separate sections of SMCRA state that SMCRA does not 
authorize a regulatory authority to resolve property rights disputes. 
Section 507(b)(9) of SMCRA provides in pertinent part:

    Provided, That nothing in this Act shall be construed as vesting 
in the regulatory authority the jurisdiction to adjudicate property 
title disputes;

    30 U.S.C. 1257(b)(9). Section 510(b)(6)(C) of SMCRA contains an 
almost identical proviso:

    Provided, That nothing in this Act shall be construed to 
authorize the regulatory authority to adjudicate property rights 
disputes.

    30 U.S.C. 1260(b)(6)(C). The legislative history of SMCRA indicates 
that the proper forum for resolving property rights disputes is the 
State courts and that it is the State common law that delineates the 
extent and scope of property rights. See H.R. Conf. Rep. No. 95-493, at 
105,106 (1977). Consequently, contrary to the fears of at least one 
commenter, SMCRA does not authorize the regulatory authority to make a 
permitting decision that adjudicates a property rights dispute so as to 
augment the property rights of the mineral interest holder at the 
expense of the surface owner. See Citizens Organized Against 
Longwalling v. Division of Reclamation, 535 N.E.2d 687, 699-700 (Ohio 
App. 1987) where the Ohio court held that a permit obtained by a coal 
mine operator to continue longwall mining would not resolve property 
disputes between the operator and the owners of surface estates, and 
would not immunize the operator from liability for damages caused by 
mining pursuant to the permit. If, under Alabama's common law, a 
particular surface owner in fact possesses the absolute right to 
subjacent support of the surface absent an express waiver, SMCRA does 
not authorize a

[[Page 36332]]

decision by the regulatory authority to extinguish that right.
B. General Comments in Favor of Alabama's Amendment
    We received comments in favor of Alabama's amendment from five 
representatives of various coal companies, the Alabama Coal 
Association, and the State of Alabama Surface Mining Commission (ASMC). 
All the comments assert that we should approve Alabama's amendment 
because it is consistent with, and no less stringent than, SMCRA and 
the existing Alabama program. The comments are discussed below.
    1. Several commenters assert that the proposed amendment reflects 
the Alabama Legislature's intent to modify state law, a power which is 
entirely within their discretion. Because this is a state matter, the 
amendment does not run afoul of any federal regulatory purpose. The 
proposed amendment deals only with a surface owner's right to recover 
punitive damages in state court, and as such, is entirely a State law 
matter.
    Response: We agree that the amendment reflects the Alabama 
Legislature's intent to modify state law. However, we disagree that the 
amendment only deals with a surface owner's right to recover punitive 
damages in state court. The amendment concerns the repair or 
compensation to any occupied residential dwelling and related 
structures or any noncommercial building for material damage caused by 
subsidence resulting from underground coal mining operations. It also 
concerns the replacement of protected water supplies that are adversely 
affected by underground coal mining operations. Both of these issues 
are addressed in section 720(a) of SMCRA. We are approving Alabama's 
amendment because it is either no less stringent than SMCRA or is not 
inconsistent with SMCRA. Please refer to III. Director's Findings.
    2. Commenters also believe that the proposed amendment does not 
give an unfair advantage to Alabama coal mining companies or impose an 
unfair burden on Alabama landowners. They state that the amendment 
``fairly balances the legal interests of surface landowners with 
Alabama's and the Nation's need for coal as an essential source of 
energy.'' This balance, the commenters point out, is exactly what SMCRA 
was designed to provide.
    Response: In order to approve amendments to State program statutes, 
we must ensure that the amendments are consistent with and no less 
stringent than SMCRA or are not inconsistent with it. We believe that 
Alabama's amendment meets these criteria and we are approving it. 
Please refer to III. Director's Findings.
    3. One commenter asserts that if the proposed amendment is not 
approved, the underground mining industry in Alabama will shut down. He 
writes, ``[d]eath of an industry was not the purpose of the carefully 
crafted federal and state programs now in place.''
    Response: We agree that the demise of the underground mining 
industry in Alabama or any other State was not the purpose of the 
federal and state programs. Indeed, section 102(k) of SMCRA encourages 
the full use of coal resources through the development and application 
of underground extraction technologies. Therefore, we carefully review 
state statute amendments in light of SMCRA, including section 102(k), 
to ensure that they are consistent with and are no less stringent than 
SMCRA or are not inconsistent with it.
    4. Several commenters allege that before the enactment of SMCRA and 
Alabama's counterpart to SMCRA, Alabama common law provided that coal 
mine operators could not subside the land unless they had the express 
permission of the surface owners. They state that the enactment of 
section 516 of SMCRA and the Alabama counterpart at section 9-16-91 of 
ASMCRA changed the applicability of Alabama's common law. They contend 
that the Federal and State Acts now allow coal mine operators to 
subside the land without the express consent of the surface owners, and 
provide specific remedies for correcting any damages that might result 
from such subsidence. The existing common law provision, they explain, 
is therefore inconsistent with SMCRA and the Alabama counterpart to 
SMCRA. The commenters further explain that section 505(a) of SMCRA 
states that SMCRA supercedes any state law that is inconsistent with 
its provisions. Therefore, the commenters maintain that Alabama's 
common law is superceded by SMCRA and Alabama's counterpart to SMCRA. 
The current proposed changes to Alabama's program merely ``eliminates 
the application of inconsistent and contrary State law'' which SMCRA 
specifically prohibits in the first place.
    Response: Please refer to our response at IV. Summary and 
Disposition of Comments Public Comments A. Comments Pertaining to the 
Impact of SMCRA on Alabama Common Law.
    5. Some commenters point out that the proposed amendment does not 
seek to lessen the federal requirements. They maintain that it ``does 
not alter in any way a surface owner's right, or a coal company's 
obligation, to `repair or compensation' for damages caused by 
subsidence.''
    Response: We agree that Alabama's proposed revisions and additions 
at section 9-16-91(e) of ASMCRA do not affect a surface owner's right 
or a coal company's obligation to repair or compensation for damages 
caused by subsidence. Please refer to III. Director's Findings A. 
through C. Neither does section 9-16-91(f) of ASMCRA that pertains to 
the remedies for subsidence damage affect a surface owner's right or a 
coal company's obligation to repair or compensation for damages caused 
by subsidence in light of Alabama's statement in its letter dated May 
3, 2000, that it will take appropriate enforcement action against an 
operator who fails to fully repair or compensate for subsidence damage 
to protected structures or who fails to fully replace water for 
subsidence damage to protected water supplies. Please refer to III. 
Director's Findings D.
    6. Finally, many commenters argue that the amendment merely 
clarifies what is implicit in both the state and federal regulatory 
schemes--that the remedies for damages caused by subsidence outlined in 
section 9-16-91 of ASMCRA are the ``only'' remedies available to 
surface owners. One commenter wrote, ``The amendment simply makes clear 
that the `repair or compensation' remedy available to surface owners 
for subsidence related damages is generally exclusive.'' The amendment 
clarifies that a surface owner cannot seek punitive damages in state 
court for subsidence related damage if the mining company is in 
substantial compliance with its mining permit. The remedy for the 
surface owner is the repair or compensation provisions of SMCRA.
    Response: Nothing in SMCRA or the implementing Federal regulations 
explicitly or implicitly limits the remedies available to surface 
landowners for damages to protected structures and water supplies 
caused by subsidence to only those listed at sections 516 and 720 of 
SMCRA and the Federal regulations at 30 CFR 817.121(c). SMCRA provides 
minimum standards for repair and compensation of subsidence related 
damage to protected structures and for replacement of protected water 
supplies. States must, at the very least, adopt these minimum 
standards. Any remedies available under State law which exceed the 
minimum requirements set forth in SMCRA are not changed by SMCRA. 
However, a State may change or limit only those available remedies that 
exceed those found in SMCRA without

[[Page 36333]]

violating SMCRA. As discussed in III. Director's Findings, Alabama's 
program provides these minimum standards.
C. General Comments Opposing Alabama's Amendment
    We received comments from fourteen individuals, two attorneys 
representing surface landowners, and representatives from five 
organizations (the Alabama Farmers Federation, WildLaw, the Alabama 
Environmental Council, Friends of Hurricane Creek, and the Citizen's 
Coal Council). These individuals and groups oppose Alabama's amendment 
and assert that we should disapprove it because it is inconsistent with 
and less stringent than SMCRA and the existing Alabama program. The 
comments are discussed below.
    1. Many commenters contend that the amendment is unconstitutional 
because it: (1) Deprives property owners of their property without due 
process; (2) is an ex post facto law; (3) does not distinguish between 
the two types of surface rights ownership in Alabama: surface rights 
that require surface support and surface rights where mineral release 
is a statement on the deed; (4) gives coal companies the right of 
eminent domain; (5) gives coal companies the private right of 
condemnation; (6) prevents property owners from suing; (7) prevents any 
relief from the violation of their surface rights; (8) is an 
unconstitutional interference with contracts; and (9) is an 
unconstitutional redrafting of the common law.
    Response: We found that we can approve the amendment. Please refer 
to III. Director's Findings. Also, in approving or disapproving any 
amendment, we can only consider whether the amendment satisfies the 
applicable program and amendment approval criteria of 30 CFR 732.15 and 
732.17(h)(10). The constitutionality of changes to State law cannot be 
determined by OSM, but must be addressed by the institutions of the 
State with the authority to determine such issues.
    2. One commenter asserts that if unlimited power of destruction is 
given to the coal companies, then it must also be given to any other 
big company that wants it. There will be no end to it. He writes, ``Act 
99-593 could be the most devastating act ever introduced and passed 
through legislature, and if approved, would no doubt be the greatest 
threat to landownership ever recorded in history.''
    Response: In section 102 of SMCRA, two of the purposes of SMCRA are 
to assure that: (1) The rights of surface landowners and other persons 
with a legal interest in the land or its related appurtenances are 
fully protected from the adverse effects of coal mining operations and 
(2) the coal supply essential to the Nation's energy requirements and 
its economic and social well-being is provided and strike a balance 
between protection of the environment and agricultural productivity and 
the Nation's need for coal as an essential source of energy. Therefore, 
we carefully review state statute amendments in light of SMCRA to 
ensure that they are consistent with and are no less stringent than 
SMCRA or are not inconsistent with SMCRA. Please refer to III. 
Director's Findings.
    3. Commenters also contend that the amendment would exempt coal 
companies from having to pay penalties and compensatory damages for 
subsidence on land, or prevent compensation in the full amount of the 
diminution in value resulting from subsidence. One commenter states 
that the amendment allows coal companies to set their own standards as 
to what constitutes repair to a house or structure.
    Response: We disagree that the amendment prevents compensation in 
the full amount of the diminution in value resulting from subsidence or 
allows coal companies to set their own standards as to what constitutes 
repair to a house or structure. As stated in III. Director's Findings, 
Alabama's proposed revisions to sections 9-16-91(e)(1), (e)(3), (e)(4), 
and (f) of ASMCRA which pertain to the repair and compensation for 
material damage to protected structures and water supplies caused by 
subsidence and subsidence damage agreements are no less stringent than 
or are not inconsistent with SMCRA. To the extent that the amendment 
affects Alabama law concerning penalties for subsidence on land, other 
than repair, compensation, or replacement required by SMCRA sections 
515(b)(2), 516(b)(1), and 720(a), such penalties are beyond the scope 
of SMCRA. Also, please refer to IV. Summary and Disposition of Comments 
Public Comments B.5. and B.6.
    4. Another commenter expressed a concern about the lack of balance 
in this law. He writes, ``Under normal punitive damage laws, it is 
normal that if you take from one group, you give something to the other 
group. This law does not allow for that.''
    Response: Please refer to our response at IV. Summary and 
Disposition of Comments Public Comments C.2. and C.3.
    5. One commenter asserts that the amendment is inconsistent with 
the basic premise of SMCRA, which is to regulate. He writes, ``The 
changes proposed by the Act do nothing to regulate or to control [the 
coal] industry. Instead, the Act takes one activity of the industry--
which is not currently controlled by the regulatory authority because 
of the interpretation and enforcement of SMCRA--and removes all other 
restraint on that activity. The sole purpose of this change is to give 
underground coal operators the right to lawfully subside property 
without purchasing that right from the surface owner. It turns a 
regulatory act into an enabling act.''
    Response: Although one of the premises of SMCRA involves regulating 
coal mining operations, other premises exist. Section 102(b) of SMCRA 
involves fully protecting the rights of surface landowners and other 
persons with a legal interest in the land or its related appurtenances 
from the adverse effects of coal mining operations. It is our 
responsibility when reviewing and approving amendments to State program 
statutes to make sure that the amendments are no less stringent than or 
are not inconsistent with SMCRA. We found that Alabama's proposed 
amendments in sections 9-16-91(e) and (f) of ASMCRA that pertain to the 
repair and compensation for material damage to protected structures and 
water supplies and subsidence damage agreements meet this requirement. 
Please refer to III. Director's Findings.
    6. One commenter argues that the amendment is inconsistent with the 
Energy Policy Act of 1992 which added US Code section 1309(a) to SMCRA. 
The Energy Policy Act created federal substantive rights that extend 
beyond the protections afforded by inconsistent or less protective 
state laws. Accordingly, ``[s]ection 1309(a) rights are remedial--not 
preventative--and were intended to serve as additional rights--not 
replacement rights.'' The commenter argues that the proposed amendment 
attempts to interpret section 1309(a) of SMCRA to preempt all rights 
and remedies a surface owner has that are not expressly provided by 
SMCRA. Clearly, this is inconsistent with the purposes of SMCRA as 
amended by the Energy Policy Act.
    Response: The purpose of section 720(a), which was added to SMCRA 
by the Energy Policy Act, is to establish minimum standards for the 
repair of or compensation for material damage to protected structures 
and water supplies caused by subsidence. Remedies under State law which 
exceed these standards are unaffected by SMCRA. As stated in III. 
Director's Findings D.1., Alabama provides the minimum standards for

[[Page 36334]]

repair or compensation. Therefore, we are approving this provision of 
Alabama's amendment.
    In response to questions concerning the impact of SMCRA on State 
laws, please refer to IV. Summary and Disposition of Comments Public 
Comments A.
    7. One commenter also asserts that the amendment is inconsistent 
with the fundamental principle that SMCRA is a minimum standard that 
cannot preempt more stringent State laws. He argues that the only real 
protection a surface landowner in Alabama has from subsidence is found 
outside of SMCRA under the Alabama common law. This common law, which 
is more stringent than SMCRA, allows a surface owner an absolute right 
to support and full recovery of damages for subsidence. The commenter 
argues that since section 505(a) of SMCRA prohibits the Federal Act 
from superceding any more stringent State law, Alabama's counterpart to 
SMCRA cannot supercede any more stringent State law. Therefore, the 
proposed amendment, which would supercede Alabama common law, makes 
Alabama's Act less stringent than SMCRA.
    Response: We have addressed the impact of SMCRA on State laws in 
IV. Summary and Disposition of Comments Public Comments A. Comments 
Pertaining to the Impact of SMCRA on Alabama Common Law. The changes to 
State law contained in section 9-16-91 of ASMCRA and enacted by the 
Alabama legislature do not conflict with the requirements of SMCRA. In 
approving or disapproving any amendment, we can only consider whether 
the amendment satisfies the applicable program and amendment approval 
criteria of 30 CFR 732.15 and 732.17(h)(10). We found that Alabama's 
proposed amendments in sections 9-16-91(e) and (f) of ASMCRA that 
pertain to the repair and compensation for material damage to protected 
structures and water supplies and subsidence damage agreements meet 
this requirement. Please refer to III. Director's Findings.
    8. Two commenters contend that the intention of SMCRA, demonstrated 
at 30 U.S.C. 1255, 1270(e) and (f), 1271(d), and Public Law 102-486, 
Title XXV, Sec. 2504(a)(2), was to leave in place all common, property, 
contract, and tort laws.
    Response: Please refer to our response at IV. Summary and 
Disposition of Comments Public Comments A. Comments Pertaining to the 
Impact of SMCRA on Alabama Common Law for a discussion of the impact of 
SMCRA on State law.
    9. Commenters contend that the amendment gives the Alabama 
regulatory authority the right to adjudicate property disputes, which 
is specifically prohibited in both federal and state law. One commenter 
writes, ``If the changes are approved, the [regulatory authority] will 
have the power to renegotiate deeds that are eighty years old in favor 
of the mineral owner merely by the grant of a permit to the operator.'' 
Since ASMC does not engage in any determination of whether an applicant 
has a right to subside in considering whether or not to grant a mining 
permit, it will allow the operator to decide unilaterally that the 
surface owner is not entitled to support of the surface. In effect, 
ASMC will have the jurisdiction to adjudicate title disputes without a 
hearing, without input from the surface owner, and will strip that 
surface owner of his right to be heard and strip his right to a jury.
    Response: We disagree that this amendment gives the Alabama 
regulatory authority the right to adjudicate property disputes by the 
mere issuance of a mining permit. Nothing in the amendment addresses 
adjudication of property disputes. Further, the issuance of a permit 
does not automatically settle property disputes. Such disputes can be 
settled only in accordance with the appropriate State law. Please refer 
to our response at IV. Summary and Disposition of Comments Public 
Comments A. Comments Pertaining to the Impact of SMCRA on Alabama 
Common Law for a discussion of the impact of SMCRA on State laws.
    10. One commenter suggests that if the proposed changes are 
accepted to any degree, it should be made clear that the changes apply 
only to those who have already waived their surface support right and 
not to those who have not waived it.
    Response: Again, property rights issues are not addressed in SMCRA. 
Property rights are the topic of Alabama law. Please refer to our 
response at IV. Summary and Disposition of Comments Public Comments A. 
Comments Pertaining to the Impact of SMCRA on Alabama Common Law for a 
discussion of the impact of SMCRA on State laws.
    11. Opponents contend that the proposed amendment is inconsistent 
with sections 101, 102, and 520(e) of SMCRA.
    Response: We did not find that the above referenced sections of 
SMCRA were affected by changes to section 9-16-91 of ASMCRA. Therefore, 
we did not find that Alabama's amendment was inconsistent with or less 
stringent than any of the above referenced sections. Please refer to 
III. Director's Findings.
D. Comments on Specific Provisions of Alabama's Amendment
    1. Section 9-16-91(e)(1). We received comments from three people on 
this section of Alabama's amendment. The first commenter stated that 
the provision in this section is fully consistent with the Energy 
Policy Act of 1992. Another commenter asserted that subparagraph (e)(1) 
merely makes modest amendments to language in the paragraph and does 
not make any substantive changes. Because the provision was previously 
approved by OSM as no less stringent than SMCRA, it should be approved 
in this instance. However, a third commenter questioned why Alabama is 
making changes in the language that was substantively identical to the 
language at the Federal counterpart if there are no changes to the 
substance of this provision.
    Response: As stated in III. Director's Findings A., Alabama's 
revision at section 9-16-91(e)(1) involves minor wording changes to a 
previously approved statute, that do not change its meaning. Therefore, 
we are approving the revision because it is no less stringent than the 
Federal statute at section 720(a)(1) of SMCRA.
    2. Section 9-16-91(e)(3). We received comments from two people on 
this section of Alabama's amendment. The first commenter stated that 
the provision extends a state legislative mandate to the existing 
requirement at section 880-X-10D-.58 of Alabama's surface mining 
regulations. Similarly, the second commenter contended that 
subparagraph (e)(3) is a necessary addition to the State program to 
make it compliant with the Federal regulation at 30 CFR 817.121(c)(1).
    Response: As stated in III. Director's Findings B., we do not have 
a counterpart Federal provision in SMCRA for Alabama's section 9-16-
91(e)(3) of ASMCRA. However, the provision is consistent with certain 
requirements of section 516(b)(1) of SMCRA and the language is 
substantively identical to the Federal regulations at 30 CFR 
817.121(c). We are approving the addition of this provision to 
Alabama's statutes because it is consistent with our Federal 
regulations and statutes and will not make the Alabama statutes less 
stringent than the Federal statutes.
    3. Section 9-16-91(e)(4). We received comments from two people on 
this section of Alabama's amendment. The first commenter stated that 
this new section makes no change to existing State program 
requirements. The second

[[Page 36335]]

commenter contended that new subparagraph (e)(4), as required and 
consistent with 30 CFR 732.15(d), merely clarifies and established 
ASMC's authority to enforce the subsidence control requirements in 
section 9-16-91 of ASMCRA.
    Response: As stated in III. Director's Findings C., we do not have 
a counterpart Federal statute in SMCRA for Alabama's statute addition 
at section 9-16-91(e)(4) of ASMCRA. However, Alabama's intent by adding 
this provision is to make it clear that it has the power to enforce the 
provision of section 9-16-91 of ASMCRA. We are approving this statute 
because it is not inconsistent with our Federal regulations or statutes 
and will not make the Alabama statutes less stringent than the Federal 
statutes.
    4. Section 9-16-91(f). a. Supporting Comments. (1) Commenters 
contend that this particular provision represents an expression of the 
state legislative will in regards to the rights of the potentially 
aggrieved persons to seek and obtain particular remedies through the 
state civil justice system. Since the provision is in the nature of a 
civil damage limitation statute and has no direct bearing on the 
regulation of coal mining operations, review or approval by the 
Department of Interior should not be required in order for it to become 
law.
    Response: We disagree with the assertion that Alabama's amendment 
does not require review or approval by the Department of the Interior. 
The provisions at 30 CFR 732.17(g) require States to submit any changes 
to their laws or regulations concerning their approved surface mining 
programs to the Director of OSM (Director) for review and approval. 
Further, no changes in a State's law or regulations concerning surface 
mining can take effect until such time as the Director approves them. 
Section 9-16-91(f) of ASMCRA is a revision to Alabama's Surface Mining 
Act. The revisions contained in section 9-16-91 of ASMCRA involve 
substantive changes to Alabama's surface mining regulatory program and, 
therefore, require our review and approval. We agree that certain 
aspects of the statute involve matters that are not covered by SMCRA. 
As discussed in III. Director's Findings D. we have approved changes to 
section 9-16-91(f) of ASMCRA because they are consistent with or do not 
conflict with provisions contained in SMCRA. While we have approved the 
changes, we made no judgment on changes that do not relate to or 
conflict with SMCRA.
    (2) Commenters also assert that this provision does not impose any 
additional burdens or responsibilities on the State Regulatory 
Authority and does not undermine the requirements of the state and 
federal statutes that coal operators fully compensate or repair 
subsidence related damage to protected structures or water supplies. 
Since section 9-16-91 of ASMCRA does not limit, proscribe, eliminate, 
amend or otherwise alter performance standards or subsidence remedies 
established by SMCRA, it meets the requirements of 30 CFR 732.15(a) and 
(c), and is consistent with or no less stringent than SMCRA.
    Response: We agree that Alabama's proposed revisions and additions 
at section 9-16-91(e) and (f) of ASMCRA do not affect a coal company's 
obligation to repair or compensate for damages caused by subsidence. 
Please refer to III. Director's Findings.
    (3) Many commenters argue that because SMCRA does not explicitly 
provide any right to recover punitive damages as compensation for 
subsidence effects, it implicitly limits a surface owner's right to 
full compensation or repair for subsidence damage and nothing more. One 
commenter writes, ``[n]either SMCRA nor the regulations thereunder 
provide that operators of underground coal mines shall `repair or 
compensate' and pay such additional damages as a jury may assess for 
punishment or otherwise.'' Thus, section 9-16-91(f) merely makes 
specific what was implied by SMCRA.
    Response: Nothing in SMCRA or the implementing Federal regulations 
explicitly or implicitly limits the remedies available to surface 
landowners for damages to protected structures and water supplies 
caused by subsidence to only those listed at sections 516 and 720 of 
SMCRA and the Federal regulations at 30 CFR 817.121(c). SMCRA provides 
minimum standards for repair and compensation of subsidence related 
damage to protected structures and for replacement of protected water 
supplies. States must, at the very least, adopt these minimum 
standards. Any remedies available under State law which exceed the 
minimum requirements set forth in SMCRA are not changed by SMCRA. 
However, a State may change or limit only those available remedies that 
exceed those found in SMCRA without violating SMCRA. As discussed in 
III. Director's Findings, Alabama's program provides these minimum 
standards.
    (4) Many commenters state that Alabama's common law is different 
from SMCRA because it requires a coal mine operator to get the express 
permission of the surface owner before subsiding the land. Supporters 
contend that SMCRA does not require this. One commenter points to a 
1997 proposed rule published by OSM (62 FR 4864) as proof that SMCRA 
and the implementing regulations do not require coal mine operators to 
obtain the consent of surface owners to subside the land. The existing 
common law provision, therefore, is inconsistent with SMCRA and the 
Alabama counterpart. Section 505(a) of SMCRA states that SMCRA 
supercedes any state law that is inconsistent with its provisions. 
Therefore, the common law is superceded by SMCRA and Alabama's 
counterpart. The addition of this section just makes it clear that the 
common law is superceded.
    Response: Please refer to our response to the comment at IV. 
Summary and Disposition of Comments Public Comments A. Comments 
Pertaining to the Impact of SMCRA on Alabama Common Law.
    (5) One commenter states that a surface owner in Alabama should not 
be allowed to recover punitive damages for subsidence damage because 
Congress specifically encourages longwall mining.
    Response: SMCRA does not specifically encourage longwall mining, 
but at section 102(k) ``encourages the full utilization of coal 
resources through the development and application of underground 
extraction technologies.'' Further, section 520(e) of SMCRA does not 
restrict the right that any person (or class of persons) may have under 
any State statute or common law to seek enforcement of any of the 
provisions of SMCRA and its implementing regulations or to seek any 
other relief available under State law. The limitation of additional 
damages as related to certain types of mining is a matter outside the 
scope of SMCRA.
    (6) Finally, commenters contend that current Alabama common law is 
more stringent than SMCRA because it allows for the recovery of 
punitive damages. This is inconsistent with Alabama's surface mining 
law that states that its rules and regulations cannot be more stringent 
than the federal surface mining law.
    Response: In approving or disapproving any amendment, we can only 
consider whether the amendment satisfies the applicable program and 
amendment approval criteria of 30 CFR 732.15 and 732.17(h)(10). The 
stringency of an amendment compared to other State laws is not relevant 
to this amendment. Therefore, we cannot consider it in our decision 
making.
    b. Opposing Comments. (1) Opponents question the constitutionality 
of this provision. One commenter states that ``[b]y restricting

[[Page 36336]]

punitive damages in the fashion proposed, the landowners'' 
constitutional rights are violated.'' Another commenter states that 
this section ``will not withstand constitutional challenges, either 
under Alabama's constitution or the federal constitution, because it is 
an unlawful taking of property, favors one class of citizens over 
another, and violates the landowner's right to a jury trial through its 
limitations on damages.''
    Response: In approving or disapproving any amendment, we can only 
consider whether the amendment satisfies the applicable program and 
amendment approval criteria of 30 CFR 732.15 and 732.17(h)(10). The 
constitutionality of an amendment is something that must be addressed 
by the institutions in the State with the authority to determine such 
issues.
    (2) Several commenters argue that because SMCRA does not explicitly 
limit a surface owner's right to full compensation or repair for 
subsidence damage and nothing more, it implicitly allows surface owners 
to seek punitive damages as compensation for subsidence effects. 
Section 9-16-91(f) of ASMCRA narrows a surface owner's common law and 
remedial rights in direct contravention of this implicit congressional 
intent.
    Response: Nothing in SMCRA or the implementing Federal regulations 
explicitly or implicitly limits the remedies available to surface 
landowners for damages to protected structures and water supplies 
caused by subsidence to only those listed at sections 516 and 720 of 
SMCRA and the Federal regulations at 30 CFR 817.121(c). Section 520(e) 
of SMCRA does not restrict the right that any person (or class of 
persons) may have under any State statute or common law to seek 
enforcement of any of the provisions of SMCRA and its implementing 
regulations or to seek any other relief under State law. The changes to 
State law in section 9-16-91 of ASMCRA as enacted by the Alabama 
legislature and as clarified by us and Alabama do not conflict with the 
requirements found in SMCRA. Please refer to III. Director's Findings.
    (3) Several commenters also point out that SMCRA exists to regulate 
the mining industry, yet this provision does nothing to add to that 
regulation. Instead, it provides civil justice reform to allow the 
industry to violate surface owners' rights with impunity. Opponents 
contend that civil justice reform does not belong in a regulatory Act. 
One commenter writes, ``[l]et SMCRA regulate mining industry and let 
the surface owner's damages be governed by the substantive law of 
property, contracts, tort and damages.'' Another commenter stated that 
he was disturbed by the attempt to use SMCRA as a vehicle for tort 
reform in Alabama.
    Response: In approving or disapproving any amendment, we can only 
consider whether the amendment satisfies the applicable program and 
amendment approval criteria of 30 CFR 732.15 and 732.17(h)(10). Section 
720 of SMCRA provides minimum standards that underground coal operators 
must adhere to regarding the repair and compensation for subsidence 
damage to protected structures and replacement of water for subsidence 
damage to protected water supplies. In part, section 9-16-91(f) of 
ASMCRA pertains to the remedies for subsidence damage and subsidence 
damage agreements and does not conflict with SMCRA. We are approving 
these provisions because they are no less stringent than the 
corresponding provisions in SMCRA. Please refer to III. Director's 
Findings D.
    (4) Some commenters acknowledge that this provision may not affect 
the day-to-day operation of ASMC, but believe it will have a great 
impact on ASMC's ability to control the mining industry because it 
removes all deterrents on subsidence. One commenter writes, ``The 
purpose of punitive damages is not to compensate for the injury 
suffered, but rather to punish the defendant for his conduct and to 
deter the defendant and others from engaging in the same conduct. If a 
coal mining company engages in activities that would subject it to 
punitive damages, then it deserves to be punished just like every other 
industry operating within Alabama. What will come of landowners rights 
if the only potential deterrent is removed?'' Another commenter states 
that this provision allows underground mining companies to 
intentionally take the domestic water supplies from the landowners and 
force the landowners into long and costly legal battles with little 
adverse economic consequences. A third commenter points out that this 
provision eliminates a mining company's liability for damage to 
personal property, damage to physical injury, or wrongful death or 
emotional distress.
    Response: For damage caused by subsidence, section 720 of SMCRA 
only requires coal companies to compensate or repair for material 
damage to protected structures and to replace for damage to protected 
water supplies. As stated in III. Director's Findings, Alabama's 
program provides these remedies. Any additional remedies including 
punitive damages are beyond the scope of SMCRA. However, section 520(e) 
of SMCRA allows any person (or class of persons) to seek enforcement of 
any of the provisions of SMCRA or any other relief that he or she may 
have under State statute or common law. Any remedies under State law 
which exceed the minimum requirements set forth in SMCRA are not 
changed by SMCRA. However, a State may change or limit only those 
remedies that exceed those found in SMCRA without violating SMCRA.
    (5) Other commenters believe that while the provision will not 
inhibit the remedial requirements to repair or compensate for damages 
to structures, it will undermine the purpose of SMCRA--to fully protect 
the rights of surface landowners. One commenter writes, ``This approach 
of limiting remedies for actual damage suffered simply does not provide 
adequate protection for surface property owners.''
    Response: Please refer to our response to comment number four (4) 
of this section.
    (6) Some commenters state that this provision is especially unfair 
to those landowners that have the absolute right to support of their 
surface in its natural state. One commenter contends that section 9-16-
91(f) does not provide adequate protection for those persons whose 
property has been damaged by underground mining operations and have not 
waived their rights to the support of their surface interests through 
appropriate contractual provisions. Another commenter writes, 
``statutory remedies provided under a legislative act should not 
necessarily be the exclusive method used in determining the amount of 
recoverable damages in cases where the surface owner has not waived his 
or her right of support and where his property is, in fact, permanently 
and severely damaged.''
    Response: For damage caused by subsidence, section 720 of SMCRA 
only requires coal companies to compensate or repair for material 
damage to protected structures and to replace for damage to protected 
water supplies. As stated in III. Director's Findings, Alabama's 
program provides these remedies. Any additional remedies including 
punitive damages are beyond the scope of SMCRA. However, section 520(e) 
of SMCRA allows any person (or class of persons) to seek enforcement of 
any of the provisions of SMCRA or any other relief that he or she may 
have under State statute or common law. Any remedies under State law 
which exceed the minimum requirements set forth in SMCRA are not 
changed by SMCRA. However, a State may change or limit

[[Page 36337]]

only those remedies that exceed those found in SMCRA without violating 
SMCRA. In addition, sections 507(b)(9) and 510(b)(6)(C) of SMCRA 
clearly provide that nothing in SMCRA shall be construed to authorize 
the regulatory authority to adjudicate property rights or title 
disputes. Instead, matters concerning these issues are to be determined 
in accordance with State law. Changes in property rights or title 
disputes must be addressed by the institutions in the State with 
responsibilities for resolving such issues. Also, please refer to IV. 
Summary and Disposition of Comments Public Comments A. Comments 
Pertaining to the Impact of SMCRA on Alabama Common Law.
    (7) One commenter asserts that actual cost of repair of an existing 
structure does not always reflect the actual loss of value that the 
structure may have suffered as a result of undermining. He writes, 
``The language of the Act in this provision would apparently lead to 
the especially bizarre result that no recovery at all would be 
available in situations where damage is particularly severe.'' Further, 
the commenter points out that the value of land typically includes not 
only the current use of the land, but also any potential future use. 
This provision would not allow these values to be taken into account 
when determining the loss in value of property as a result of 
subsidence. The commenter concludes that this provision is ``grossly 
unfair to the surface landowner and amounts to a serious deprivation of 
important property rights that have been traditionally and are 
otherwise presently protected by Alabama law.''
    Response: For damage caused by subsidence, section 720 of SMCRA 
only requires coal companies to compensate or repair for material 
damage to protected structures and to replace for damage to protected 
water supplies. As stated in III. Director's Findings, Alabama's 
program provides these remedies. Any additional remedies including 
punitive damages are beyond the scope of SMCRA. However, section 520(e) 
of SMCRA allows any person (or class of persons) to seek enforcement of 
any of the provisions of SMCRA or any other relief that he or she may 
have under State statute or common law. Any remedies under State law 
which exceed the minimum requirements set forth in SMCRA are not 
changed by SMCRA. However, a State may change or limit only those 
remedies that exceed those found in SMCRA without violating SMCRA.
    (8) One commenter states that the limitation of punitive damages is 
not inappropriate as a general manner. However, in cases where fraud or 
misrepresentation has served as the basis for the permit, the ability 
of a surface owner to seek and obtain punitive damages should not be 
limited. The commenter believes that Alabama needs to clarify the 
language in this section to make it clear that punitive damages are 
limited only in cases where lawful activities are being undertaken.
    Response: We believe that Alabama's amendment makes it clear that 
the provisions at section 9-16-91(f) only apply in cases where lawful 
activities are being undertaken. If the operator is found to have 
engaged in intentional, willful, or wanton conduct that is not in 
substantial compliance with a permit, the ability to seek additional 
damages is preserved. Please refer to III. Director's Findings D.1.

V. Director's Decision

    Based on the above findings, we are approving the amendments to the 
Alabama program.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 901, which codify decisions concerning the Alabama 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Alabama 
to bring its program into conformity with the Federal standards without 
undue delay. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that state 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that state programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of state regulatory programs and 
program amendments since each program is drafted and promulgated by a 
specific state, not by OSM. Under sections 503 and 505 of SMCRA (30 
U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed state regulatory programs and program amendments 
submitted by the states must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
federal regulations and whether the other requirements of 30 CFR parts 
730, 731, and 732 have been met.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed state regulatory program provision does not 
constitute a major federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The state submittal which is the subject of this rule is based upon 
counterpart federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously

[[Page 36338]]

promulgated by OSM will be implemented by the state. In making the 
determination as to whether this rule would have a significant economic 
impact, the Department relied upon the data and assumptions for the 
counterpart federal regulation.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the state submittal 
which is the subject of this rule is based upon counterpart federal 
regulations for which an analysis was prepared and a determination made 
that the federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 901

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 16, 2000.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR part 901 is amended 
as set forth below:

PART 901--ALABAMA

    1. The authority citation for Part 901 continues to read as 
follows:

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


    2. Section 901.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 901.15  Approval of Alabama regulatory program amendments.

* * * * *

------------------------------------------------------------------------
     Original amendment           Date of final
       submission date             publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
August 17, 1999.............  June 8, 2000........  ASMCRA sections 9-16-
                                                     91(e)(1), (e)(3),
                                                     (e)(4); and (f)
------------------------------------------------------------------------

[FR Doc. 00-14359 Filed 6-7-00; 8:45 am]
BILLING CODE 4310-05-P