[Federal Register Volume 59, Number 59 (Monday, March 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7218]
[Federal Register: March 28, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 778
Availability of Petition To Initiate Rulemaking; Minimum
Requirements for Legal, Financial, Compliance, and Related Information
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Notice of availability of a petition to initiate rulemaking and
request for comment.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
of the United States Department of the Interior (DOI) seeks comments
concerning the rule changes requested in a petition, submitted pursuant
to the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the
Act). The petition requests OSM to amend its regulations governing the
right-of-entry information (30 CFR 778.15) that must be submitted in a
permit application to meet the minimum requirements for legal,
financial, compliance, and related information. Comments will assist
the Director of OSM in making the decision whether to grant or deny the
petition.
DATES: Written Comments: OSM will accept written comments on the
petition until 5 p.m. Eastern time on April 27, 1994.
ADDRESSES: Written Comments: Mail comments to the Office of Surface
Mining Reclamation and Enforcement, Administrative Record, room 660-NC,
1951 Constitution Avenue, NW., Washington, DC 20240; or hand-deliver
the comments to the Office of Surface Mining Reclamation and
Enforcement, Administrative Record, room 660, 800 North Capitol Street,
NW., Washington, DC.
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. Public Comment Procedure.
II. Background and Substance of Petition.
III. Procedural Matters.
I. Public Comment Procedures
Written Comments: Written comments on the requested change should
be specific, should be confined to issues pertinent to the proposed
revision, and should explain the reason for the comment. Where
practicable, commenter should submit three copies of their comments.
Comments received after the close of the comment peirod (see DATES) or
delivered to an address other than those listed (see ADDRESSES) may not
necessarily be considered or included in the Administrative Record on
the petition.
Availability of Copies: Additional copies of the petition, copies
of 30 CFR part 778, and other OSM and Kentucky State program
regulations relevant to the right-of-entry requirements for permit
applications are available for inspection and may be obtained at the
location listed under ADDRESSES.
Public Hearing: OSM will not hold a public hearing on the proposed
revision, but OSM personnel will be available to meet with the public
during business hours, 9 a.m. to 5 p.m., during the comment period. In
order to arrange such a meeting, call or write to the person identified
under FOR FURTHER INFORMATION CONTACT.
II. Background and Substance of 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 contiguous to the proposed mining property.''
Under section 201(g) of SMCRA, any person may petition the Director
of OSM to initiate a proceeding for the issuance, amendment, or repeal
of any of the regulations implementing SMCRA. Under the applicable
regulations for rulemaking petitions, 30 CFR 700.12, this notice seeks
public comment on the merits of the petition and on the rule changes
requested in the petition.
At the close of the comment period, a decision will be made whether
to grant or deny the petition. Under 30 CFR 700.12, the Director shall
issue a written decision either granting or denying the petition within
90 days of the date of its receipt. Soon thereafter, notice of that
decision will be published in the Federal Register. If the petition is
granted, rulemaking proceedings will be initiated in which public
comment will again be sought before a final rulemaking notice appears.
If the petition is denied, no further rulemaking action will occur
pursuant to the petition.
III. Procedural Matters
Publication of this notice of the receipt of the petition for
rulemaking is a preliminary step prior to the initiation of the
rulemaking process. If a decision is made to grant the petition, a
rulemaking process will be initiated. Thus, no regulatory flexibility
analysis is needed at this stage, nor a review under Executive Order
12866.
Publication of this notice does not constitute a major Federal
action having a significant effect on the human environment for which
an environmental impact statement under the National Environmental
Policy Act, 44 U.S.C. 4322(a)(c), is needed.
List of Subjects in 30 CFR Part 778
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
Dated: March 21, 1994.
Robert J. Uram,
Director, Office of Surface Mining, Reclamation and Enforcement.
Appendix
The text of the petition dated January 31, 1994, (received February
3, 1994), from James Kringlen is as follows:
January 31, 1994.
Bruce Babbitt, Secretary of the Interior
Suite 6151, Main Interior Building, 1849 C Street, NW., Washington,
D.C. 20240.
Re: Petition for Rule-Making under SMCRA
Dear Secretary Babbitt: I am writing to inform you of a
substantial and serious absence of protection of surface owner's
rights which the Surface Mining, Reclamation and Control Act was
intended to protect. Specifically, when coal companies apply for
surface mining permits to State agencies responsible for SMCRA
enforcement, they are not required to provide proof of any kind
regarding who owns the surface of the property the coal company
seeks to strip mine. In other words, the coal companies set forth
the name or names of the persons or companies that own the surface
without any documentation, and the various States simply assume the
correctness of the coal companies' representations. My experience
has shown that it is very risky to presume the good faith or the
accuracy of information submitted by coal companies in their permit
applications.
My concern is prompted chiefly by my experience representing an
elderly woman in Perry County, Kentucky, in her efforts to prevent a
coal company from getting a surface mining permit for her property.
At the time, I was a staff attorney with the Appalachian Research
and Defense Fund of Kentucky, Inc., a Legal Services Corporation-
funded legal aid program in eastern Kentucky (at present I am a
staff attorney with its sister program in West Virginia, Appalachian
Research and Defense Fund, Inc.). My client, America Caudill, came
to me in July, 1992, frustrated in her efforts to protect her small
piece of land that she and her now deceased husband had purchased in
1940. (Enclosed is a copy of a newspaper article about Mrs.
Caudill's difficulty.) After seeing the company's (Sheena Coal
Company) published notice in the local newspaper indicating that it
had applied for a surface mining permit in the vicinity of her home,
she took the time and effort to go to the local Department for
Surface Mining Reclamation and Enforcement (``DSMRE'') (some forty
miles from her home) in order to examine the permit application.
Much to her dismay, she saw that Sheena Coal sought a permit to
strip mine her property, but the application utterly failed to
identify her as the owner of the surface! Instead, the application
and accompanying maps asserted that America's neighbors on either
side of her property were the owners of her property as well!
Mrs. Caudill then attempted to exercise the citizen's rights
provisions of SMCRA by requesting the DSDRE to deny the permit
because it failed to identify her as an owner of the surface as
required by SMCRA, and because she had not given Sheena Coal
permission to mine her property. In reply, the State of Kentucky
advised Mrs. Caudill that her contention amounted to a mere private
``property title dispute'' which it lacked the authority to resolve.
They further advised her that they were going to issue the permit
without further ado, which they did. They were kind enough to advise
her of her right to petition for a hearing pursuant to SMCRA's
provisions, further advising her to whom she should write to request
the hearing and nothing more. Mrs. Caudill followed up with a
written request for a hearing, but the attorney for the Kentucky
Natural Resources and Environmental Protection Cabinet promptly
filed a motion to dismiss her petition for hearing on the basis that
her request for a hearing had failed to set forth with particularity
the items required by the applicable State regulations.\1\ Never
mine that Mrs. Caudill had already provided all of that information
in her previous communications with the State of Kentucky and that
the letter advising her of her right to request a hearing failed to
advise her of the particular requirements for a hearing request
under the regulation.
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\1\To its credit, the Cabinet subsequently adopted a policy, as
a result of this case, whereby the Cabinet will not seek the
dismissal of citizen hearing requests without substantial
justification.
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It was at this point that Mrs. Caudill came to me and requested
assistance. The first thing I did was to check the public records at
the Property Valuation Administrator's office in the County
Courthouse. This office includes aerial photographs of every square
inch of the county as well as the property lines and owners of
record of the surface. There on file was the public evidence of Mrs.
Caudill's and her deceased husband's surface ownership of the very
land that Sheena Coal proposed to strip mine. I submitted this
documentation to the State as well as a previous letter from the
President of Sheena Coal Company to Mrs. Caudill in which he
acknowledged that he had no right to mine her property, but
indicating his hope that she would some day give him permission to
do so. In the end, Sheena Coal was compelled to amend its permit so
as to delete Mrs. Caudill's property.
I subsequently learned that very often coal companies knowingly
submit permit applications which fail to identify all of the surface
owners of record. Usually, this is done because the company does not
have all of the surface owners' permission to mine, although they
are negotiating with them and expect, or merely hope, that they will
get such permission later. However, they wish to get the permit as
quickly as possible without the cost and delay associated with
incremental permit applications as they may obtain permission or
agreements from various surface owners to the company's proposed
surface mining. Furthermore, the more surface owners identified in
the application, the more post-mining documents they must prepare
and submit to the State upon completion of mining. Since the States
require neither documentation of the ownership of the surface of
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. The biggest danger here, of course,
is that some surface owners may find their property being strip
mined, notwithstanding that they never granted permission to mine to
the mining permittee. Further, the permittee could be expected to
defend itself by highlighting the fact that the State had given a
permit to mine the property.
This major loophole in the law should be closed. I propose 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.
Please consider this much needed corrective regulation. The
rights of citizens such as America Caudill will continue to be
overlooked despite the protective provisions in SMCRA unless coal
companies are required to document the information they provide in
their surface mining permit applications. Please advise me whether
your Department may pursue this matter. Also, please call or write
to me if you desire any further information or if there is anything
further that I can do to assist you and your Department in its
consideration of my request.
Sincerely,
James Kringlen,
Attorney at Law.
[FR Doc. 94-7218 Filed 3-25-94; 8:45 am]
BILLING CODE 4310-05-M
