[Federal Register Volume 59, Number 206 (Wednesday, October 26, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26559]
[[Page Unknown]]
[Federal Register: October 26, 1994]
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Part IV
Department of the Interior
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Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 773
Notification and Permit Processing; Proposed Rule
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 773
RIN 1029-AB80
Notification and Permit Processing
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
proposes to amend its regulations in response to a petition for
rulemaking. The rulemaking would require that the regulatory authority
provide to each person who was a party to an informal conference its
written findings granting, requiring modification of, or denying a
permit application. The rulemaking would also require both that an
approved permit contain in its permit area only lands for which the
applicant has established a right-to-enter and commence surface coal
mining and reclamation operations, and that compliance with an approved
permit be based on activities to be conducted solely upon such lands.
DATES: Written comments: OSM will accept written comments on the rule
until 5 p.m. Eastern time on December 27, 1994.
Public hearings: OSM will hold a public hearing on the proposed
rule, at a time and place to be announced, in Vincennes, Indiana.
Individuals wishing to attend, but not testify at the hearing,
should contact the person identified under FOR FURTHER INFORMATION
CONTACT beforehand to verify that it will be held. Any disabled
individual who has need for a special accommodation to attend a public
hearing should also contact the person listed under FOR FURTHER
INFORMATION CONTACT.
ADDRESSES: Written comments: Hand-deliver to the Office of Surface
Mining Reclamation and Enforcement, Administrative Record, Room 660,
800 North Capitol Street, NW., Washington, DC 20001; or mail to the
Office of Surface Mining Reclamation and Enforcement, 1951 Constitution
Avenue, Room 660NC, Washington, DC 20240.
Comments may also be sent through the Internet to the Branch of
Research and Technical Standards, Internet address:
[email protected] Copies of any messages received
electronically will be filed with the Administrative Record.
FOR FURTHER INFORMATION CONTACT: Scott Boyce, Branch of Research and
Technical Standards, Office of Surface Mining Reclamation and
Enforcement, U.S. Department of the Interior, 1951 Constitution Avenue,
NW., Room 640NC, Washington, DC 20240; Telephone: (202) 343-3839.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Discussion of Proposed Rule
IV. Procedural Matters
I. Public Comment Procedures
Written Comments
Written comments submitted on the proposed rule should be specific,
should be confined to issues pertinent to the proposed rule, and should
explain the reason for any recommended change. Where practicable,
commenters should submit three copies of their comments (see
ADDRESSES). Comments received after the close of the comment period or
delivered to addresses other than those listed above (see DATES) may
not be considered or included in the Administrative Record for the
final rule.
Public Hearings
OSM will hold a public hearing on the proposed rule, at a time and
place to be announced, in Vincennes, Indiana. Any person interested in
participating in the hearing should inform Scott Boyce (see FOR FURTHER
INFORMATION CONTACT) either orally or in writing by 5 p.m. Eastern
time, December 27, 1994. If no one has contacted Mr. Boyce to express
an interest in participating in a hearing by that date, the hearing
will not be held. If only one person expresses an interest, a public
meeting rather than a hearing may be held and the results included in
the Administrative Record.
If a hearing is held, it will continue until all persons wishing to
testify have been heard. To assist the transcriber and ensure an
accurate record, OSM requests that persons who testify at the hearing
give the transcriber a copy of their testimony. To assist OSM in
preparing appropriate questions, OSM also requests that persons who
plan to testify submit to OSM at the address previously specified for
the submission of written comments (see ADDRESSES) an advance copy of
their testimony.
II. Background
In a letter dated September 29, 1992, Mr. Jim B. Wyant of
Vincennes, Indiana, presented a petition for rulemaking to OSM. A
``Notice of availability of a petition to initiate rulemaking and
request for comment'' was published in the Federal Register, November
12, 1992, (57 FR 53670). After consideration of the petitioner's
requests and public comments received on the petition, the Director of
OSM published his ``Notice of decision on petition for rulemaking'' and
stated that ``OSM will initiate Federal rulemaking proposing to revise
the permit application provisions of 30 CFR 773.15 to require
notification of all parties to an informal conference of any decision
to require modification of the permit application. OSM will also
initiate a rulemaking to revise the provisions of 30 CFR 778.15 to
address the degree to which lands may be included in the permit area
where the permittee does not have the right-to-enter.'' (August 24,
1993, 58 FR 44630)
III. Discussion of Proposed Rule
Notification Requirements
OSM proposes to modify 30 CFR 773.15, Review of Permit Applications
at 773.15(a)(1). The sentences of this subparagraph would be
redesignated as (1), (i) and (ii) with an additional sentence added as
subsection (iii). The added sentence would require that the regulatory
authority ``(p)rovide a copy of the written decision granting,
requiring modification of, or denying the permit, and stating the
specific reasons for the decision to the permit applicant and to each
person who was a party to the conference.''
OSM is proposing to revise Sec. 773.15(a) because its current
regulations 30 CFR 773.19(b)(1) only require the regulatory authority
to provide written notification of its final decision on the permit
application to all parties to an informal conference. Its regulations
at Sec. 773.15(a) do not, however, require the regulatory authority to
provide the same notification to the same parties when that authority
requires a modification of the permit application. Section 773.15(a)
would, therefore, be revised to require the regulatory authority to
provide parties to an informal conference the same notification of
decisions modifying the permit application as for decisions approving
or denying the application.
The 1979 final permanent regulations at 30 CFR 786.23(c) originally
required the regulatory authority to notify all parties to an informal
conference of any decision granting, modifying or denying the permit
application, and stating the specific reasons therefor in the decision.
(March 13, 44 FR 15381) This required notice provision was dropped
without explanation in the 1983 revision of OSM's permitting
regulations. (September 28, 48 FR 44371, 44395) Thus, under the current
30 part 773 regulations, and as noted by the petitioner, concerned
parties who have taken an active role in the permitting process through
participation in informal conferences may find that regulatory
authority decisions requiring modification of the permit application
are conveyed solely to the applicant. These concerned parties would
receive no feedback on important permit application issues until the
regulatory authority's final decision on the application is conveyed to
all parties pursuant to Sec. 773.19(b)(1). The proposed revisions to
Sec. 773.15(a) would address this inequity by reinstating the 1979
requirement that all parties to an informal conference be provided the
regulatory authority's written decision granting, modifying, or denying
the permit application and stating the specific reasons therefore in
the decision.
Permit Processing
In OSM's notice of decision on the petition for rulemaking
published in the Federal Register August 24, 1993, the agency stated
that it would ``initiate a rulemaking to revise the provisions of 30
CFR 778.15 to address the degree to which lands may be included in the
permit area where the permittee does not have the right-to-enter.''
Later, in considering this commitment, OSM concluded that it could be
more appropriately implemented by proposing revisions to Sec. 773.15,
Review of permit applications, and 30 CFR 773.17, Permit conditions,
rather than to Sec. 778.15, Right-of-entry information. Existing
section 773.15 would therefore be revised to add paragraph (c)(13)
requiring both that the approved permit contain only lands for which
the applicant has established a right-to-enter and conduct surface
mining and reclamation operations and that compliance with the
operation and reclamation plans be based upon activities conducted
solely upon such lands.
Note: A new but different subparagraph Sec. 773.15(c)(13) has
also been proposed under the remining rulemaking. (June 2, 1994, 59
FR 28744) If both this and the remining rulemaking are finalized as
proposed, the (c)(13) subparagraph of the second effective rule will
be redesignated as (c)(14).
Existing Sec. 773.17 would also be revised to be consistent with
proposed Sec. 773.15(c)(13) and would, as a permit condition, impose a
similar requirement that the permit area of an approved permit contain
only lands for which the applicant has established a right-to-enter and
conduct surface mining and reclamation operations.
Section 507(b)(9) of the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act), 30 U.S.C. 1201 et seq., states, ``the
applicant shall file with the regulatory authority on an accurate map
or plan, to an appropriate scale, clearly showing the land to be
affected as of the date of the application, the area of land within the
permit area upon which the applicant has the legal right-to-enter and
commence surface mining operations on that area affected, and whether
that right is the subject of pending court litigation. Provided, That
nothing in this Act shall be construed as vesting in the regulatory
authority the jurisdiction to adjudicate property title disputes.''
The Act and its implementing regulations are silent on the specific
question of whether the approved permit can include land for which the
applicant does not have right-of-entry (``uncontrolled land'') and
which will not be disturbed under the permit until such right-of-entry
is obtained. It has, however, been OSM's practice under its Federal and
Indian lands programs to allow inclusion in the permit application of
land for which the applicant can not establish right-of-entry but to
prohibit inclusion of such land in the permit at the time of issuance.
Promulgation of this Federal practice as a national rule would end
the practice in a minority of approved program States of allowing
inclusion in the approved permit of land for which the applicant does
not have right-of-entry. The owners of such lands often complain that
this inclusion clouds their title, depresses their property values, and
interferes with their ability to enjoy their property rights.
The language of proposed Sec. 773.15(c)(13) ``(t)he applicant has
demonstrated that the approved permit area contains only lands for
which the applicant has established a right-to-enter and conduct
surface coal mining and reclamation operations'' and similar language
in proposed Sec. 773.17(a) are intended to prohibit the inclusion of
uncontrolled land in the permit area of approved permits.
OSM's oversight of those State programs allowing uncontrolled land
in the permit area of approved permits has shown that the validity of
the operation and reclamation plans required by 30 CFR part 780 may be
substantially compromised by the applicant's subsequent inability to
gain access to blocks of land within the permit area upon which the
plans were predicated. Examples exist where central elements upon which
approval was based required modification when the applicant
subsequently was unable to obtain access to required land. In various
instances, proposed spoil and soil storage areas, borrow areas, and
facility areas have been unavailable for use. Sediment control
strategies have been compromised when land for sediment ponds and
diversion ditches in the approved operation and reclamation plans was
unavailable. Changes have occurred which require recalculation of the
bond amount. While OSM recognizes the need for operation and
reclamation plans to be dynamic enough to accommodate new information
and unexpected conditions that may develop, changes such as those
described militate against the credibility of OSM's regulatory scheme
which is to be based upon the approval or rejection of accurate and
reliable operation and reclamation plans. Accordingly, and in partial
response to industry's comments discussed below, OSM is also proposing
that Sec. 773.15(c)(13) include the requirement that compliance with
the operation and reclamation plans be based upon activities to be
conducted solely upon lands for which the applicant has the right-to-
enter and conduct surface mining and reclamation operations. This
language is intended to put all parties on notice that operation and
reclamation plans included in the approved permit cannot be based on
activities to be conducted on uncontrolled land.
Several commenters opposing the petition argued that the inclusion
of uncontrolled land in the permit areas of permit applications and
approved permits is necessary to accommodate the complexities of real
estate transaction involved in mine plan development and to allow for
environmental planning based on a more conceptually complete mining and
reclamation plan. While OSM acknowledges that inclusion of uncontrolled
lands in an approved permit may allow the formulation of a
comprehensive and cumulative operation and reclamation plan and
environmental analysis, such plans and analysis may not prove reliable
and, therefore, may not provide the regulatory authority with a
reasonable basis for concluding that the lands for which the applicant
has right-of-entry can actually be mined and reclaimed in accordance
with the Act and in compliance with its implementing regulations. 30
CFR 773.15(c) (1), (2) and 780.2. Neither would the commenter's
suggestion that the approved permit be conditioned to authorize mining
only on lands for which right-of-entry is obtained address this
potential defect in the permitted operation and reclamation plans and
associated environmental analysis.
Proposed Secs. 773.15(c)(13) and 773.17(a) would not preclude
inclusion under Sec. 778.15(a) of a reasonable amount of uncontrolled
land in the permit application thus accommodating the need for
continued real estate transactions during the permit review process and
facilitating the development of environmental projections based on
mining and reclamation on a scale the applicant plans to achieve.
However, under the proposed rule permit issuance would be predicated
upon the existence of a clearly discernible and finite permit area in
the operation and reclamation plans where the applicant's ability to
obtain right-of-entry is not a variable that would influence the
execution of the plans as approved.
In practical terms, the requirement of proposed Sec. 773.15(c)(13)
that ``compliance with the operation and reclamation plans is based
upon activities to be conducted solely upon such lands'' means that
immediately prior to permit issuance the regulatory authority must
reassess the legitimacy of the applicant's operation and reclamation
plans taking into account the impact of the applicant's lack of access
to any uncontrolled land. Loss of a piece of land necessary for the
accomplishment of the operation or reclamation plan could require
permit modification or permit denial. It is anticipated that the
Sec. 773.15(c)(13) requirement will militate against inclusion in the
permit application of properties for which the applicant is unlikely to
obtain right-of-entry by the time of permit issuance. This should in
turn accrue to the benefit of landowners who never wanted their
properties included in the permit application. It should also accrue to
the benefit of the environment as planning would be based on more
plausible real estate projections.
Proposed Secs. 773.15(c)(13) and 773.17(a) are seen as striking a
reasonable balance between not unnecessarily burdening the legitimate
mining industry and protecting the rights of landowners while providing
the regulatory authority with the accurate, comprehensive and reliable
information it needs to comply with its responsibilities under 30 CFR
773.15(c)(1), (2) and 780.2. These proposals are not intended to alter
existing standards for establishing right-of-entry. They merely require
that the applicant must demonstrate that the permit area of the
approved permit contains only lands for which he has established a
right-of-entry.
IV. Procedural Matters
Federal Paperwork Reduction Act
This rule does not contain information collection requirements
which require approval by the Office of Management and Budget under 44
U.S.C. 3501 et seq.
Executive Order 12866
This proposed rule does not require Office of Management and Budget
review under Executive Order 12866.
Regulatory Flexibility Act
The Department of the Interior has determined, pursuant to the
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that the proposed
rule will not have a significant economic impact on a substantial
number of small entities. Although OSM does not have data on the number
of coal mine operations or the number of landowners and amount of land
that would be affected by this rule, data obtained from OSM Field
Offices on 14 States indicates that only 3 of those States do not
notify participants as to the outcome of informal conferences, and that
only 6 out of 18 States for which data is available allow land in the
permit area of an approved permit for which the applicant does not have
right-of-entry authorization. However, to notify the participants to a
conference of the outcome of that conference is a procedural type of
action entailing minor economic consequences comprised of the cost of
mailing notices to the participants, and to require that an applicant
have right-of-entry authorization to all lands included in the permit
area of an approved permit does not take any economic rights from the
applicant, nor does it impose significant additional costs on the
applicant. Therefore, the proposed revisions are not expected to be of
economic significance.
National Environmental Policy Act
OSM has prepared a draft environmental assessment (EA), and has
made a tentative finding that the proposed rule would not significantly
affect the quality of the human environment under section 102(2)(C) of
the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.
4332(2)(C). The EA is on file in the OSM Administrative Record at the
address specified previously (see ADDRESSES). An EA will be completed
on the final rule and a finding made on the significance of any
resulting impacts prior to promulgation of the final rule.
Civil Justice Reform
This proposed rule has been reviewed under the applicable standards
of section 2(b)(2) of Executive Order 12778, Civil Justice Reform (56
FR 55195). In general, the requirements of section 2(b)(2) of Executive
Order 12778 are covered by the preamble discussion of this proposed
rule. Additional remarks follow concerning individual elements of the
Executive Order:
A. What is the preemptive effect, if any, to be given to the
regulation?
The proposed rule would have the same preemptive effect as other
standards adopted pursuant to SMCRA. To retain primacy, States have to
adopt and apply standards for their regulatory programs that are no
less effective than those set forth in OSM's rules. Any State law that
is inconsistent with or that would preclude implementation of this
proposed rule would be subject to preemption under SMCRA section 505
and implementing regulations at 30 CFR 730.11. To the extent that the
proposed rules would result in preemption of State law, the provisions
of SMCRA are intended to preclude inconsistent State laws and
regulations. This approach is established in SMCRA, and has been
judicially affirmed. See Hodel v. Virginia Surface Mining and
Reclamation Ass'n, 452 U.S. 264 (1981).
B. What is the effect on existing Federal law or regulation, if
any, including all provisions repealed or modified.
This rule modifies the implementation of SMCRA as described herein,
and is not intended to modify the implementation of any other Federal
statute. The preceding discussion of this rule specifies the Federal
regulatory provisions that are affected by this rule.
C. Does the rule provide a clear and certain legal standard for
affected conduct rather than a general standard, while promoting
simplification and burden reduction?
The standards established by this rule are as clear and certain as
practicable, given the complexity of the topics covered and the
mandates of SMCRA.
D. What is the retroactive effect, if any, to be given to the
regulation?
This rule is not intended to have retroactive effect.
E. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
No administrative proceedings are required before parties may file
suit in court challenging the provisions of this rule under section
526(a) of SMCRA, 30 U.S.C. 1276(a).
Prior to any judicial challenge to the application of the rule,
however, administrative procedures must be exhausted. In situations
involving OSM application of the rule, applicable administrative
procedures may be found at 43 CFR part 4. In situations involving State
regulatory authority application of provisions equivalent to those
contained in this rule, applicable administrative procedures are set
forth in the particular State program.
F. Does the rule define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items.
Terms which are important to the understanding of this rule are set
forth in 30 CFR 700.5 and 701.5.
G. Does the rule address other important issues affecting clarity
and general draftsmanship of regulations set forth by the Attorney
General, with the concurrence of the Director of the Office of
Management and Budget, that are determined to be in accordance with the
purposes of the Executive Order?
The Attorney General and the Director of the Office of Management
and Budget have not issued any guidance on this requirement.
Author: The principal author of this rule is Scott Boyce, Branch
of Research and Technical Standards, Office of Surface Mining
Reclamation and Enforcement, 1951 Constitution Avenue, NW., Room
640NC, Washington, DC 20240; Telephone: (202) 343-3839.
List of Subjects in 30 CFR Part 773
Administrative practice and procedure, Permit processing, Public
participation, Notification of decisions, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
Dated: September 26, 1994.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
Accordingly, OSM proposes to amend 30 CFR Part 773 as follows:
PART 773--REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING
1. The authority citation for Part 773 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq., as amended; 16 U.S.C. 470 et
seq.; 16 U.S.C. 1531 et seq.; 16 U.S.C. 661 et seq.; 16 U.S.C. 703
et seq.; 16 U.S.C. 668a; 16 U.S.C. 469 et seq.; 16 U.S.C. 470aa et
seq.; and Pub L. 100-34.
2. Section 773.15 is amended by revising paragraph (a)(1); and
adding a new paragraph (c)(13) to read as follows:
Sec. 773.15 Review of permit applications.
(a) * * *
(1) The regulatory authority shall--
(i) Review the application for a permit, revision, or renewal;
written comments and objections submitted; and records of any informal
conference or hearing held on the application and issue a written
decision, within a reasonable time set by the regulatory authority,
either granting, requiring modification of, or denying the application.
(ii) If an informal conference is held under Sec. 773.13(c), make a
decision within 60 days of the close of the conference, unless a later
time is necessary to provide an opportunity for a hearing under
paragraph (b)(2) of this section; and
(iii) Provide a copy of the written decision granting, requiring
modification of, or denying the permit, and stating the specific
reasons for the decision to the permit applicant and to each person who
was a party to the conference.
* * * * *
(c) * * *
(13) The applicant has demonstrated that the approved permit area
contains only lands for which the applicant has established a right-to-
enter and conduct surface coal mining and reclamation operations and
that compliance with the operation and reclamation plans is based upon
activities to be conducted solely upon such lands.
* * * * *
3. Section 773.17, paragraph (a), is amended by adding a sentence
at the end of the paragraph to read as follows:
Sec. 773.17 Permit conditions.
* * * * *
(a) * * * The permit area of an approved permit shall contain only
lands for which the applicant has established a right-to-enter and
conduct surface coal mining and reclamation operations.
* * * * *
[FR Doc. 94-26559 Filed 10-25-94; 8:45 am]
BILLING CODE 4310-05-M
