COALEX REPORT 25

	Coalex Report 25

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   

COALEX STATE INQUIRY REPORT - 25
December 7, 1984

Leonard Knee
Deputy Attorney General
Environmental Task Force
Office of Attorney General
Charleston, West Virginia 25305

TOPIC: PLANNED SUBSIDENCE

INQUIRY: SMCRA Sec. 516(b)(1) includes, under the permit requirements, that the operator:
"adopt measures consistent with known technology in order to prevent subsidence causing
material damage to the extent technologically and economically feasible, maximize mine stability,
and maintain the value and reasonably foreseeable use of such surface lands."  An exception is
provided for "instances where the technology used requires planned subsidence in a predictable
and controlled manner."

(1) What is the legislative history of the above?
(2) Is there any specific legislative history on the exception provided for planned subsidence?
(3) Are there any OSM administrative case law decisions on this provision?
(4) Are there any case law decisions involving this statute?

SEARCH RESULTS: See below.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LEGISLATIVE HISTORY

   In a search of COALEX, 64 documents were identified referencing planned subsidence or long
wall mining (document list attached).

   S. Rep. No 95-128 stated that:

"Certain of the environmental protection standards for surface mining operations also apply to
underground mines.  In this section, the Secretary is required to incorporate in his regulations the
following key provisions concerning the control of surface effects from underground mining:
Underground mining is to be conducted in such a way as to assure appropriate permanent
support to prevent surface subsidence of land and the value and use of surface lands, except in
those instances where the mining technology approved by the regulatory authority at the outset
results in planned subsidence.  Thus, operators may use underground mining techniques, such as
long wall mining, which completely extract the coal and which result in predicable and controllable
subsidence." (S. Rep. No. 95-128, 95th Cong., 1st Sess. 84 (1977))

   H. Rep. 95-218, following a discussion of the destructive effects of subsidence and its singular
problem of unpredictability, stated its intent to:

"provide the Secretary with the authority to require the design and conduct of underground
mining methods to control subsidence to the extent technologically and economically feasible in
order to protect the value and use of surface lands.  Some of the measures available for
subsidence control include: (1) leaving sufficient original mineral for support; (2) refraining from
mining under certain areas except allowing headings to be driven for access to adjacent mining
areas; or (3) causing subsidence to occur at a predictable time and in a relatively uniform and
predictable manner.  This specifically allows for the uses of long wall and other mining techniques
which completely remove the coal.  (4) Back stowing or returning mine wastes underground to
provide some measure of direct roof support and shoring up pillars left for support provided that
such operations are consistent with assuring the health and safety of miners." (H. Rep. 95-218,
95th Cong., 1st Sess. 126 (1977))


LITIGATION

   No ALJ or IBSMA decisions concerning Sec. 516(b)(1) were identified in COALEX.  These files
are being updated by OSM and may not be complete.

   IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, No. 79-1144 (DDC February
26, 1980) addressed the issued of whether, given the Sec. 516(b)(1) exemption, if a subsidence
control plan could be required for planned subsidence.  The U.S. District Court upheld the
requirement, stating that: "it is only through the filing of a subsidence control plan that the
regulatory authority can determine eligibility for the use of mining methods that allow mine
collapse."  (14 Envir. Rep. Cas. at 1097)

   SMCRA Sec. 516(b)(1) is also discussed tangentially in Judge Flannery's ROUND II decision
concerning the requirement to restore subsided land.  The basis for OSM's regulation concerning
subsided land restoration rests on SMCRA Sec. 516(b)(10) which refers to "other surface impacts
not specified in this subsection."  Judge Flannery stated that Sec. (516(b)(1) addresses
specifically the requirement that "industry take all feasible steps to prevent subsidence, but it
does not address the question of what happens if subsidence does occur."  Secs. 526(b)(10) and
consequently Sec. 515(b)(2) were, therefore, found to be applicable; and the requirement to
restore land materially damaged by subsidence upheld. (IN RE: PERMANENT SURFACE MINING
REGULATION LITIGATION, 79-1144, at 3-6 (DDC October 1, 1984))


ATTACHMENTS
LEGISLATIVE HISTORY
A    COALEX Document Listing: Items identified in legislative history referencing planned
     subsidence and long wall mining.
B    Excerpt from S. Rep. 95-128, 95th Cong., 1st Sess. 84 (1977).
C    Excerpts from H. Rep. 95-218, 95th Cong., 1st Sess. 67-68, 84-86, 92-93, 126-127, 175
     (1977).
D    Excerpts from H. Rep. No. 94-45, 94th Cong., 1st Sess. (1976).
E    Excerpts from H. Rep. No. 94-896, 94th Cong., 2d Sess. (1976).
F    Excerpts from H. Rep. No. 1445, 94th Cong., 2d Sess. (1976).
G    Excerpts from Senate Comm. on Interior and Insular Affairs, 93rd Cong., 1st Sess., "Coal
     Surface Mining and Reclamation: An Environmental and Economic Assessment of
     Alternatives" (Comm. Print 1973).
LITIGATION
H    IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, No. 79-1144 (DDC
     February 26, 1980); 14 Envir. Rep. Cas. 1083-1111.
I    Excerpt from IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 79-1144,
     at 3-6 (DDC October 1, 1984).
J    48 FR 24638-24652 (1983) Preamble to Final Rule; 30 CFR Parts 784, 785, 816, 817 and
     818.


Research conducted by: Terri H. Petruska

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