[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Proposed Rules]
[Pages 5603-5606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2213]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 778
Availability of Decision; Minimum Requirements for Legal,
Financial, Compliance and Related Information
agency: Office of Surface Mining Reclamation and Enforcement, Interior.
action: Notice of decision on petition for rulemaking.
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summary: The Office of Surface Mining Reclamation and Enforcement (OSM)
is making available to the public its final decision on a petition for
rulemaking from Mr. James Kringlen, Attorney at Law, Appalachian
Research and Defense Fund, Inc., Charleston, West Virginia. The
petitioner requested that ``* * * a new regulation be issued by the
Office of Surface Mining or the Department of the Interior, as
appropriate, which would require all permit applications for surface
mining include documentation with public records identifying the
surface owners of the property they propose to mine as well as the
property contiguous to the proposed mining property.'' OSM is denying
the petition for reasons outlined in this document.
addresses: Copies of the petition, and other relevant materials
comprising the Administrative Record of this petition are available for
public review and copying at Office of Surface Mining Reclamation and
Enforcement, Room 660, 800 North Capitol Street NW., Washington, DC
20001.
for further information contact: Scott Boyce, Office of Surface Mining
Reclamation and Enforcement, U.S. Department of the Interior, 1951
Constitution Avenue NW., Washington, DC 20240; Telephone: 202-343-3839.
SUPPLEMENTARY INFORMATION:
I. Petition for Rulemaking Process.
II. The Kringlen Petition.
I. Petition for Rulemaking Process
Pursuant to section 201(g) of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act), any person may petition the
Director of OSM for a change in OSM's regulations. The regulations
governing the handling of rulemaking petitions are found at 30 CFR
700.12. Under the rules, the Director may publish a notice in the
Federal Register seeking comments on the petition and hold a public
hearing, conduct an investigation, or take other action to determine
whether the petition should be granted. If the petition is granted, the
Director initiates a rulemaking proceeding. If the petition is denied,
the Director notifies the petitioner in writing setting forth the
reasons for denial. Under 30 CFR 700.12 the Director's decision
constitutes the final decision for the Department of the Interior.
II. The Kringlen Petition
The Department of the Interior received a letter dated January 31,
1994, from James Kringlen, Attorney at Law, Appalachian Research and
Defense Fund, Inc., Charleston, West Virginia, as a petition for
rulemaking. The petitioner requested that ``* * * a new regulation be
issued by the Office of Surface Mining or the Department of the
Interior, as appropriate, which would require all permit applications
for surface mining include documentation with public records
identifying the surface owners of the property they propose to mine as
well as the property [[Page 5604]]
contiguous to the proposed mining property.''
For the reasons discussed in the appendix to this notice, the
Director has denied the petition. The Director's letter of response to
the petitioner on this rulemaking petition appears in the appendix to
this notice. This letter reports the Director's decision to the
petitioner. Included in the appendix is an evaluation report on the
issues raised by the petitioner. Included in this report is a
discussion of the comments received on the petition and OSM's position
on the issues.
Dated: January 18, 1995.
Robert Uram,
Director, Office of Surface Mining Reclamation and Enforcement.
Appendix
January 18, 1995.
Mr. James Kringlen,
Appalachian Research and Defense Fund, Inc., 1116-B Kanawha
Boulevard, East, Charleston, West Virginia 25301.
Dear Mr. Kringlen: This is in response to your letter of January
31, 1994, to Bruce Babbitt, Secretary of the Interior, which was
forwarded to the Office of Surface Mining Reclamation and
Enforcement (OSM) for appropriate action. In your letter you propose
that ``. . . a new regulation be issued by OSM or the Department of
the Interior (DOI), as appropriate, which would require all permit
applications for surface mining include documentation with public
records identifying the surface owners of the property they propose
to mine as well as the property contiguous to the proposed mining
property.''
On March 28, 1994, OSM published a notice of availability in the
Federal Register and requested comments on the petition (59 FR
14374). The comment period closed on April 27, 1994. Nine comments
were received by OSM during the comment period.
After careful consideration of the arguments presented in the
petition and public comments, I am denying the petition. The basis
for my decision is fully disclosed in the enclosed evaluation of the
petition. As provided in 30 CFR 700.12, this decision constitutes
the final decision for the Secretary of the Interior.
I would like to take this opportunity to thank you for bringing
the problems faced by Mrs. Caudill to our attention. Efforts such as
yours provide both the impetus and the guidance necessary for us to
critically examine our program and take corrective action where
necessary.
Sincerely,
Robert J. Uram,
Director.
Evaluation of the Petition To Amend OSM's Rules Governing Right-of-
Entry Documentation Required in Permit Applications
Background on Petition
On February 18, 1994, a petition from Mr. James Kringlen,
Appalachian Research and Defense Fund, Inc., 1116-B Kanawha Boulevard,
East, Charleston, West Virginia 25301 (the petitioner) was forwarded
from the Secretary's Office, Department of the Interior, to OSM. The
petition requested that ``* * * a new regulation be issued by the
Office of Surface Mining or the Department of the Interior, as
appropriate, which would require all permit applications for surface
mining include documentation with public records (emphasis included)
identifying the surface owners of the property they propose to mine as
well as the property contiguous to the proposed mining property.''
Section 201(g) of the Surface Mining Control and Reclamation Act of
1977 (the Act) and 30 CFR 700.12 provide that any person may petition
the Director to initiate a proceeding for the issuance, amendment, or
repeal of a rule promulgated under the Act. These regulations require
the petition to set forth the facts, technical justification, and law
which require the issuance, amendment, or repeal of a regulation. 30
CFR 700.12(b). Based on this information, the Director shall determine
if the petition provides a reasonable basis for the proposed action.
Facts, technical justification, or law previously considered in a
petition or rulemaking on the same issue shall not provide a reasonable
basis. The Director may hold a public hearing or conduct other
investigations or proceedings in order to determine whether the
petition should be granted. 30 CFR 700.12(c). If the petition is
granted, the Director is required to commence a rulemaking proceeding.
30 CFR 700.12(d)(1). If the petition is denied, the Director is
required to notify the petitioner in writing of the reasons for denial.
30 CFR 700.12(d)(2).
On March 28, 1994, OSM published a notice in the Federal Register
requesting comments on the petition. In the notice, OSM announced that
it would not hold a public hearing but would accept written comments on
the petition during the comment period which would end on April 27,
1994. It stated that, by appointment, OSM employees would be available
to meet with the public during business hours (9 a.m. to 5 p.m. Eastern
standard time) during the comment period. The notice also stated that
all comments and supporting documents would be entered into the
Administrative Record on the petition (59 FR 14374).
OSM received comments from the Ohio Mining and Reclamation
Association, the Dickenson County Citizens Committee, the U.S.
Department of the Interior Bureau of Mines, the Alabama Coal
Association, the Illinois Department of Mines and Minerals, the Wyoming
Department of Environmental Quality, the Kentucky Resources Council,
the Indiana Department of Natural Resources, and the Joint NCA/AMC
Committee on Surface Mining Regulations. These comments have been made
part of the Administrative Record.
Applicable Law and Regulations
Sections 102, 201(c), 501(b), 503, 504, and especially 507(b) and
510(b)(6) of the Act which establish application requirements regarding
documentation of the right is enter and commence surface mining
operations.
30 CFR Sec. 773.15(c) which requires that the regulatory authority
find in writing that the application is complete and accurate and that
the applicant has complied with the requirements of the Act and the
regulatory program.
Section 778.15(a) which requires that the permit applicant describe
and identify the documents upon which he bases his right to enter and
commence surface mining, and also state whether the right is subject to
any pending litigation.
Section 778.15(b) which provides that in the situation where the
private mineral estate has been severed from the private surface
estate, the applicant must also submit copies of 1) the written consent
of the surface owner for the extraction of coal by surface mining
methods; 2) copies of the conveyance that expressly grants or reserves
the right to extract coal by surface mining methods; or 3) if the
conveyance does not expressly grant the right to extract the coal by
surface mining methods, documentation that under applicable State law
the applicant has the legal authority to extract the coal by those
methods.
Section 778.15(c) which closely tracks the language in Sec.
507(b)(9) of the Act by providing that ``(n)othing in this section
shall be construed to provide the regulatory authority with the
authority to adjudicate property rights disputes.''
30 CFR PART 775--Administrative and Judicial Review of Decisions,
Which prescribes requirements for [[Page 5605]] administrative and
judicial review of decisions on permits.
Summary of Petition
The petitioner supports his rulemaking petition by citing the
experience of a former client, a Mrs. Caudill, who faced the
possibility of having her property mined in accordance with an approved
mining permit despite the fact that she had not granted the mining
company the right to mine, and despite the fact she had brought this
information to the attention of the regulatory authority. In that case,
her ownership of the property was not reflected in the documentation
provided to the regulatory authority by the permit applicant. Rather,
the application and accompanying maps asserted that neighbors on either
side of her property were the owners of her property. The situation
faced by Mrs. Caudill was exacerbated by the fact that the regulatory
authority, when presented with information contradicting the ownership
representation of the permit application, took the position that the
new information presented by Mrs. Caudill established a property title
dispute and it lacked the authority to resolve such disputes.
The petitioner's letter further states that, subsequent to
representing his client before the Kentucky Department for Surface
Mining Reclamation and Enforcement, he learned that ``very often coal
companies knowingly submit permit applications which fail to identify
all of the surface owners of record.'' He further states this is done,
at least in part, because real estate negotiations relative to the
potentially affected properties are continuing subsequent to submission
of the permit application. Thus, there is incentive for permit
applicants to present real estate information as they expect, or at
least hope, it will be at the time of permit issuance. The petitioner
concludes: ``(s)ince the states require neither documentation of the
ownership of the surface of the property proposed for surface mining,
nor verify the information provided by coal companies in the permit
application review process, the coal companies have little incentive to
accurately identify the surface owners of the property.'' To rectify
the problems for landowners associated with this scenario, the
petitioner ``proposes a new regulation * * * which would require all
permit applications for surface mining include documentation with
public records (emphasis included) identifying the surface owners of
the property they propose to mine as well as the property contiguous to
the proposed mining property.''
Analysis and Comments
OSM's summary analysis of the petition and comments received
indicates that:
The problem of regulatory authorities issuing permits to mine
land for which the permit applicant has not established the right to
enter and mine is generally limited to the State of Kentucky;
The implementation of the petitioner's request that public
right-of-entry records be included in all cases in the permit
application would often create a significant and unnecessary
paperwork burden, particularly for regulatory authorities and mining
companies in the West;
Including public right-of-entry records in permit applications
would not change the decision of the regulatory authority in most
instances. For example, of the five Ten Day Notice appeals under 30
CFR 842.15 involving right-of-entry that occurred between 1991 and
the present (all appeals were in Kentucky), only one probably would
have been decided differently if the public records requested by the
petitioner has been available to the regulatory authority.
Kentucky's current right-of-entry permitting procedures, which
were implemented subsequent to the incident involving Mrs. Caudill's
property, require that whenever a landowner files a protest
contesting a permit applicant's right to enter his property, the
Natural Resources and Environmental Protection Cabinet must
determine whether the applicant has made a prima facie case that he
has the right to enter and mine.
OSM can respond to the problem raised by the petitioner most
efficiently by monitoring Kentucky's protection of landowner rights
through oversight of the Kentucky program.
Nine commenters responded to the notice of the Kringlen petition.
Two commenters did not provide substantive comments. One of these two
responded with a ``no comment.'' The other apparently misread the
petition and stated that the existing regulations already contain the
provisions sought by the petitioner. Two commenters representing
environmental associations concurred in the existence of the problem
cited to by the petition. One of these two commenters supported the
issuance of the petitioner's requested rulemaking. The other commenter
supported the general goals of the petition but did not endorse the
requested rule as effectively addressing the basic right-of-entry
problem underlying the petition. These two commenters raised issues and
made several suggestions which will be discussed below.
Five other commenters argued against the requested rulemaking
viewing the right-of-entry problem described by the petitioner as
either not being possible within the context of the regulatory programs
with which they were familiar or representing merely an isolated
aberration to an otherwise adequately functioning program. OSM
generally agrees with the second of these assessments. Information
available from sources within the Agency corroborate that the right-of-
entry problems such as described by the petitioner are relatively
infrequent events which have, for all intents and purposes, confined
themselves to the State of Kentucky. OSM believes that these problems
were due in major part to a failure of the Kentucky regulatory
authority to properly implement its existing permit regulations.
Subsequent to the incident involving the Caudill property, Kentucky
instituted a new right-of-entry policy which requires that whenever a
landowner files a protest contesting a permit applicant's right to
enter his property, the Natural Resources and Environmental Protection
Cabinet must determine whether the applicant has made a prima facie
case that he has the right to enter and mine. This new Kentucky right-
of-entry policy should dramatically reduce or eliminate the type of
problem experienced by Mrs. Caudill. Even if Kentucky had not taken
measures to address this problem, OSM submits that one State's problems
are not sufficient basis for a national rule. This Office will,
however, continue to monitor the protection of landowner rights in
Kentucky through its oversight of that program.
One commenter opposing the petition argued that a rulemaking was
not necessary in the light of the IBLA decision in Marion H. Taylor
(No. 92-189, 125 IBLA 271 (1993)). That commenter characterized the
decision as requiring that a pending property title dispute raised
during permit or administrative review ``* * * must be resolved by the
judiciary prior to a final permitting decision by the regulatory
authority, in order for the regulatory authority to make the required
permit issuance findings (emphasis included).'' Another commenter
supporting the petition cited the Taylor IBLA decision and an August 9,
1993, ten day notice letter from W. Hord Tipton, Deputy Director, OSM,
to David Rosenbaum, Department for Surface Mining, Commonwealth of
Kentucky, [which letter also cites the Taylor decision] to argue that
where there is a ``pending legal challenge'' or ``dispute'' to right-
of-entry, the regulatory authority cannot make a prima facie
determintion of a right to mine; rather, the only proper response of
the regulatory authority is to withhold permit issuance pending
[[Page 5606]] resolution of the matter. OSM notes, however, that the
Taylor decision was vacated on jurisdictional grounds by the U.S.
District Court for the Eastern District of Kentucky. Coal Mac. Inc. v.
Babbitt, Civil No. 93-117 (October 3, 1994). The implications of these
and other right-of-entry cases for Federal and State programs is under
review by OSM.
The two environmental commenters who generally supported the
Kringlen petition raised issues and made several rulemaking suggestions
which were beyond the narrow scope of the Kringlen petition. OSM is,
however, concerned that these comments may reflect some
misunderstanding of the operation of the current rules. Therefore, OSM
wishes to respond to the comments as follows:
(a) One environmental commenter would require that the permit
applicant conduct a record search to ensure that the permit
information is accurate and complete as implicitly required by
sections 507(b) 1) and (2) and 507(b) (9) and (13) of the Act. OSM
readily acknowledges that many times the need for the permit
applicant to conduct a record search is implicit in fulfilling the
information requirements of the cited sections.
However, there are many other times when a record search would
reasonably not be necessary and, therefore, should not be required.
For example, one commenter opposing the petition noted that
documents dispositive to right-of-entry disputes providing for
right-of-way, temporary easements, etc., are often not recorded in
the courthouse and therefore would not be included among the
petitioner's requested documents of record.
(b) This same environmental commenter opposed the current
provisions of 30 CFR 778.15 which specifically require only that the
application contain a description of the documents upon which the
applicant bases his legal right to enter and begin surface coal
mining operations. The commenter faults the preamble logic of the
proposed and final Sec. 778.15 which considered and rejected the
required submission in all cases of actual copies of right-of-entry
documents relied upon. 43 FR 41692, September 18, 1978, and 44 FR
15028, March 13, 1979. The commenter argues that the permit
applicant should be required to submit in all cases, or at a bare
minimum in disputed cases, the actual copies of all right-of-entry
documents relied upon. For the reasons expressed in its 1978 and
1979 preambles and as echoed by another commenter oppossing the
instant petition, OSM continues to believe that the required
submission of all right-of-entry documents in all cases would often
impose a significant and unnecessary burden on the permit applicant.
In support of its argument for the required submission of all
right-of-entry documents in disputed cases, the prior environmental
commenter expressed particular concern that once a right-of-entry
dispute arose, the regulatory authority might not have authority under
30 CFR 778.15 to require actual copies of the documents but would have
to rely merely on a description of documents upon which the asserted
applicant right-of-entry was based. The major industry commenter
opposing the petition reviewed the 1979 preamble discussion of proposed
30 CFR 778.15 and concluded that the regulatory authority currently has
authority to request such copies to resolve a dispute of fact as to
whether a legal right claimed by the applicant exists. OSM concurs that
the preamble discussions of proposed and final section 778.15 support
this conclusion. 43 FR 41692, September 18, 1978, and 44 FR 15028,
March 13, 1979.
Indeed, in most cases it would be difficult to conceive of the
regulatory authority being able to resolve such disputes without
viewing actual copies of documents relied upon for right-of-entry. Of
course, because of the proviso clause in paragraph 507(b)(9) of the
Act, such a determination of fact would not mean that the regulatory
authority was making a legal determination about the right to enter. 43
FR 41692, September 18, 1978. With regard to the concerns raised by the
petitioner, OSM has found that, with the exception of a few instances
where the State counterpart to 30 CFR 778.15 was improperly applied in
the State of Kentucky, the rule has generally worked to protect the
rights of landowners as required by section 102(b) of the Act.
(c) The prior environmental commenter also requested that OSM:
(1) Provide clarification as to the appropriate interpretation of
existing procedures in the event of a dispute as to right-of-entry
information in a permit application; and (2) conduct a national
study of the right-of-entry issues raised by the petitioner and
commenters. As noted above, these requests extend far beyond the
narrow scope of the instant petition.
(d) The other environmental commenter suggested that the
regulatory authority check and substantiate all submitted ownership
documentation for completeness and authenticity. OSM experience
indicates that this is not necessary on a routine basis and should
be carried out only when needed. The regulatory authority does not
have the manpower to do this on a routine basis nor the statutory
authority to resolve the property disputes which could result from
efforts to authenticate ownership documentation.
Summary
The information available to OSM indicates that the incident that
prompted the petition represents a problem localized in the State of
Kentucky. Requiring the applicant in all cases to include documentation
with public records identifying the surface owners of the property they
propose to mine as well as the property contiguous to the proposed
mining property as requested by the petitioner would often impose a
substantial and unnecessary burden, particularly to coal companies and
regulatory authorities involved in the permitting of large Western
mines. Since the incident that prompted the petition, Kentucky has
instituted a new policy which requires that when a surface owner files
a protest to the issuance of a permit the Natural Resources and
Environmental Protection Cabinet must make a determination as to
whether the applicant has made a prima facie showing that he has the
right to enter and mine the property. These facts lead us to conclude
that there is insufficient basis for the national rulemaking requested
by the petitioner. OSM shall, through its oversight program, evaluate
Kentucky's protection of landowner rights to make certain that the
State regulations as implemented are as effective as the Federal
regulations in protecting those rights. In addition, OSM is reviewing
the implications for Federal and State programs of recent court and
IBLA decisions on right-of-entry issues. This petition and comments
thereto shall become part of the record as OSM conducts oversight of
the Kentucky State Program.
[FR Doc. 95-2213 Filed 1-27-95; 8:45 am]
BILLING CODE 4310-05-M
