[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Proposed Rules]
[Pages 4864-4872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2183]
[[Page 4864]]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 761
RIN 1029-AB82
Prohibitions of 522(e)
AGENCY: Office of Surface Mining Reclamation and Enforcement,
Department of the Interior.
ACTION: Proposed interpretative rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
of the U.S. Department of the Interior (DOI) is proposing an
interpretative rulemaking to address the question of whether subsidence
due to underground mining is a surface coal mining operation and thus
prohibited in areas enumerated in section 522(e) of the Surface Mining
Control and Reclamation Act of 1977 (SMCRA). OSM proposes to interpret
SMCRA and implementing rules to provide that subsidence due to
underground mining is not a surface coal mining operation, and
therefore is not prohibited in areas protected under SMCRA section
522(e). OSM proposes to construe the definition of ``surface coal
mining operations'' at SMCRA section 701(28)(A) and in the analogous
portion of the existing rules at 30 CFR 700.5 not include subsidence,
and to include only (1) surface activities in connection with a surface
coal mine and (2) surface activities in connection with those surface
operations and impacts of an underground coal mine subject to section
516. Similarly, OSM would construe the second part of this definition,
at SMCRA section 701(28)(B) and in the analogous portion of the
existing rules at 30 CFR 700.5, to include only the areas upon which
such surface activities occur, and the areas where such surface
activities disturb the surface and to holes or depressions resulting
from or incident to such surface activities. Only ``surface coal mining
opearation'' are prohibited within the areas protected by section
522(e). Therefore, neither subsurface activities that may result in
subsidence, nor actual subsidence, would be prohibited on lands
protected by section 522(e). Rather, such underground activities and
their impacts, including subsidence, would be subject to regulation
under sections 516 and 720.
DATES: Electronic or written comments: OSM will accept electronic or
written comments on the proposed rule until 5:00 p.m. Eastern time on
June 2, 1997.
Public hearings: Anyone wishing to testify at a public hearing must
submit a request on or before 5:00 p.m. Eastern time on March 17, 1997.
Because OSM will hold a public hearing at a particular location only if
there is sufficient interest, hearing arrangements, dates and times, if
any, will be announced in a subsequent Federal Register notice. Any
disabled individual who needs special accommodation to attend a public
hearing should contact the person listed under FOR FURTHER INFORMATION
CONTACT.
ADDRESSES: Electronic or written comments: Submit electronic comments
to osmruleso@smre.gov. Mail written comments to the Administrative
Record, Office of Surface Mining Reclamation and Enforcement, 1951
Constitution Avenue, N.W., Washington, DC 20240 or hand-deliver to the
person listed under FOR FURTHER INFORMATION CONTACT.
Public hearings: If there is sufficient interest, hearings may be
held in Billings, MT; Denver, CO; Lexington, KY; Washington, DC; and
Washington, PA. To request a hearing, contact the person listed under
FOR FURTHER INFORMATION CONTACT by the time specified under DATES using
any of the methods listed for ``Electronic or written comments''.
FOR FURTHER INFORMATION CONTACT:
Nancy R. Broderick, Rules and Legislation, Office of Surface Mining
Reclamation and Enforcement, Room 115, South Interior Building, 1951
Constitution Avenue, N.W., Washington, DC 20240. Telephone: (202) 208-
2700.
E-mail address: nbroderi@osmre.gov. Additional information
concerning OSM, this rule, and related documents may be found on OSM's
home page at http://www.osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Discussion of Proposed Rule
A. Background
B. Statutory Analysis
III. Procedural Matters
I. Public Comment Procedures
Electronic or Written Comments
Comments should be specific and confined to issues pertinent to the
proposed rule. They also should include explanations in support of the
commenter's recommendations. OSM appreciates any and all comments, but
those most useful and likely to influence decisions on the content of a
final rule will be those that either involve personal experience or
include citations to and analyses of the Act, its legislative history,
its implementing regulations, case law, other pertinent State or
Federal laws or regulations, technical literature, or other relevant
publications.
Except for comments provided in an electronic format, commenters
should submit two copies of their comments whenever practicable.
Comments received after the time indicated under DATES or at locations
other than the OSM office listed under ADDRESSES will not necessarily
be considered in the final decision or included in the administrative
record.
Public Hearing
Persons wishing to testify at a public hearing must contact the
person listed under FOR FURTHER INFORMATION CONTACT by the time
indicated under DATES. If no one requests an opportunity to comment at
a public hearing, no hearing will be held.
If a public hearing is held, it will continue until all persons
scheduled to speak have been heard. Persons in the audience who were
not scheduled to speak but who wish to do so will be heard following
the scheduled speakers. The hearing will end after all scheduled
speakers and any other persons present who wish to speak have been
heard.
Filing of a written statement at the time of the hearing will
assist the transcriber and facilitate preparation of an accurate
record. Submission of electronic or written statements to OSM in
advance of the hearing will allow OSM officials to prepare appropriate
questions.
Public Meeting
If there is only limited interest in a hearing at a particular
location, a public meeting, rather than a public hearing, may be held.
Persons wishing to meet with OSM representatives to discuss the
proposed rule may request a meeting by contacting the person listed
under FOR FURTHER INFORMATION CONTACT. All meetings will be open to the
public and, if possible, notice of the meetings will be posted at the
appropriate locations listed under ADDRESSES. A written summary of each
public meeting will be made a part of the administrative record for
this rulemaking.
II. Discussion of Rule
A. Background
On March 13, 1979, OSM promulgated permanent program rules as
required by section 501(b) of the Surface Mining Control and
Reclamation Act of 1977 (Public Law 95-87, 30 U.S.C. 1201 et seq.)
(SMCRA or the Act). See 44 FR 14902. The Act prohibits surface coal
mining operations on all lands designated in section 522(e), subject to
valid existing rights
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and except for those operations which existed on August 3, 1977. Lands
designated in section 522(e)(1) include any lands within the boundaries
of units of the National Park System, the National Wildlife Refuge
Systems, the National System of Trails, the National Wilderness
Preservation System, the Wild and Scenic Rivers System, including study
rivers designated under section 5(a) of the Wild and Scenic Rivers Act
(16 U.S.C. 1276(a)) or study rivers or study river corridors as
established in any guidelines pursuant to that Act, and National
Recreation Areas designated by Act of Congress. Additional lands
designated by sections 522(e) (2), (3), (4), and (5) include National
Forests; publicly owned parks; properties listed on the National
Register of Historic Places; 100 foot buffer zones around public roads
and cemeteries; and 300-foot buffer zones around occupied dwellings,
public buildings, schools, churches, community or institutional
buildings, and public parks. The term ``valid existing rights'' (VER)
is not defined in SMCRA. In a separate rulemaking, published in this
issue of the Federal Register OSM intends to define VER and address
requirements and procedures for the submission and processing of VER
claims.
Under section 522(e), if a person who proposes to conduct a surface
coal mining operation on protected lands does not qualify for one of
the statutory exceptions, then the person cannot conduct the intended
operation on such lands. See 30 CFR section 773.15(c)(3)(ii) (1990).
Section 522(e) does not specifically mention subsidence as a prohibited
activity.
The need for this interpretative rulemaking derives in part from
litigation concerning the applicability of the sections 522(e) (4) and
(5) prohibitions to underground mining. The issue is whether and to
what extent subsidence and underground coal extraction operations which
cause or are expected to cause subsidence are prohibited. In 1988, OSM
issued a proposed rule to address the issue. See 53 FR 52374, December
27, 1988. However, the entire proposed rule was withdrawn for further
study in 1989. 54 FR 30557, July 21, 1989. The withdrawal was based on
comments received on the proposed rule, and on OSM's analysis of the
issues, which indicated to OSM that this was fundamentally a legal
issue. OSM therefore decided to seek a formal opinion from the Office
of the Solicitor, U.S. Department of the Interior, on this matter. The
Solicitor completed his review of this issue in July, 1991, and
concluded that the best interpretation of SMCRA is that subsidence is
not a surface coal mining operation subject to the prohibitions of
Sec. 522(e).
The Solicitor's Memorandum of Opinion (M-Op.) is based on an
extensive analysis of the statute, the legislative history, relevant
case authority and OSM's regulatory actions with respect to the
applicability of section 522(e) to subsidence from underground mining.
The M-Op. concluded that Congress did not intend for the prohibitions
of section 522(e) to apply to subsidence from underground mining and
noted that OSM may regulate subsidence solely under section 516 of
SMCRA and not under section 522(e). While the M-Op. recognizes that
regulation under section 516 may not have precisely the same effect as
regulation under section 522(e), the analysis provides support for the
conclusion that regulation under section 516 will achieve full
protection of the environmental values which Congress sought to protect
from subsidence under the Act while encouraging longwall mining.
On July 18, 1991, OSM published a Notice of Inquiry (NOI) which
stated that, based on OSM's review of the Act and the legislative
history, the comments received on the December 27, 1988, proposal, and
the M-Op., OSM concluded that no further rulemaking action was
necessary in regard to the applicability of section 522(e) prohibitions
to underground mining. OSM concluded that the regulations, at 30 CFR
761.11 (d), (e), (f) and (g), adequately address underground mining and
appropriately apply the statutorily-established buffer zones in a
horizontal dimension only.
On September 6, 1991, the National Wildlife Federation (NWF) filed
legal action against the Secretary challenging the July 18 NOI and the
July 10 M-OP., on the applicability of 522(e) of SMCRA to subsidence.
National Wildlife Federation (NWF) v. Babbitt, No. 91-2275-TAF (D.D.C.
September 22, 1993). The NWF contended that both the M-Op. and the NOI
violated the requirements of the Administrative Procedure Act (APA),
the National Environmental Policy Act (NEPA), and SMCRA. NWF requested,
among other things, that the court order OSM to undertake rulemaking to
determine the applicability of Section 522(e) to subsidence, and vacate
the M-Op. and the NOI. In addition, a motion was filed by the
Interstate Mining Compact Commission (IMCC) and a number of industry
groups, including the National Coal Association (NCA) and American
Mining Congress (AMC), to intervene as defendants in this action. That
motion was granted by the court.
The district court vacated the NOI on September 23, 1993, on
procedural grounds, and remanded the case to the Secretary for
rulemaking on the applicability of section 522(e) to subsidence, in
accordance with the notice and comment procedures of the APA, 5 U.S.C.
section 551 et seq. National Wildlife Federation (NWF) v. Babbitt, No.
91-2275-TAF (D.D.C. September 22, 1993).
B. Statutory Analysis
Title V of the Act sets forth the basic regulatory requirements for
coal mining operations for which permits are required under the Act.
Title V includes provisions which establish regulatory schemes for
surface coal mining, the surface effects of underground coal mining,
and protection of lands unsuitable for surface coal mining operations.
Analysis of the structure of Title V and the Act as a whole
confirms that Congress set out related but separate regulatory schemes
for surface and underground mining. Congress had received ample
testimony prior to the passage of the Act regarding the differences in
both the nature and consequences of the two types of coal mining. The
legislative history emphasizes that the differences in the nature and
consequences of the two types of mining require significant differences
in regulatory approach. See SMCRA section 516(a), 30 U.S.C. 1266(a);
see also SMCRA sections 516 (b)(10) and (d), 30 U.S.C. 1266 (b)(10) and
(d). See, e.g., H.R. Rep. No. 2 18, 95th Cong., 1st Sess. 59 (1977); S.
Rep. No. 128, 95th Cong., 2nd Sess. 50 (1977); H.R. Rep. No. 1445, 94th
Cong., 2nd Sess. 19 (1976); S. Rep. No. 402, 93rd Cong., 2nd Sess. 83
(1973); H.R. Rep. No. 1072, 93rd Cong. 2nd Sess. 57, 108 (1974); H.R.
Rep. No. 1462, 92nd Cong., 2d Sess. 32 (1972); 123 Cong. Rec. 8083,
8154 (1977); 123 Cong. Rec. 7996 (1977); 123 Cong. Rec. 3726 (1977).
For instance, Congress was aware that the types of environmental
risks associated with underground mining are, for the most part,
significantly different from those associated with surface mining.
Environmental impacts associated with (pre-SMCRA) unregulated or
unreclaimed underground mines included subsidence and hydrological
problems that were hidden deep underground and not observable at the
surface for an unpredictably long time. Such surface consequences could
be severe and long-lasting. The problems in some cases remained
fundamentally inaccessible or
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unchangeable because of adverse technological, geological and
hydrological conditions.
By contrast, most of the impacts of unregulated pre-SMCRA surface
mining resulted from surface activities that were more immediate and
more readily observable, and the resulting conditions were relatively
accessible for reclamation. See H.R. Rep. NO. 1445, 94th Cong., 2d
Sess. 20-22 (1976).
This proposed rulemaking addresses whether the provisions of
section 522(e), which expressly apply to ``surface coal mining
operations,'' should be construed as applying to subsidence from
underground mining, which is not specifically referenced in the
definition of that term. Addressing this issue requires interpretation
of the phrase ``surface coal mining operations'' as used in section
522(e) and defined in section 701(28). See 30 U.S.C. 1272(e); 1291(28).
In the past, OSM has not taken a definitive position on the issue
of the applicability of section 522(e) to subsidence. In some
documents, OSM has apparently taken the position that section 522(e)
does apply to subsidence from underground mining. In the 1979
rulemaking which first established permanent program rules under SMCRA,
OSM dealt with this issue in two provisions. Concerning the definitions
at 30 CFR 761.5, OSM rejected a comment that ``surface operations and
impacts incident to an underground mine'' should be limited to
subsidence. 44 FR 14990, March 13, 1979. Such operations and impacts
are permitted in some circumstances in National Forests under an
exception to section 522(e)(2). The negative implication would appear
to be that such operations and impacts (including subsidence) are
otherwise prohibited by section 522(e).
In the preamble discussion of the regulation at 30 CFR 761.11(d),
which concerned the section 522(e)(4) prohibition on mining within 100
feet of the right-of-way of a public road, OSM accepted a comment that
the 100 feet should be measured horizontally ``so that underground
mining below a public road is not prohibited.'' OSM stated its belief
that mining under a road should not be prohibited ``where it would be
safe to do so.'' 44 FR 14994, March 13, 1979. The negative implication
from this last clause would appear to be that mining under a public
road should be prohibited where it would be unsafe to do so, but the
preamble does not discuss whether such prohibition would come from
section 516 or from an interpretation that section 522(e) prohibits
subsidence that causes material damage.
See also letter of Patrick Boggs, Office of Surface Mining, to
Ralph Albright, Jr., regarding Otter Creek Coal Co. v. United States,
January 19, 1981; and Determination of Valid Existing Rights Within the
Otter Creek Wilderness Area of Monongahela National Forest; Notice, 49
FR 31228, 31231, 31233 (August 3, 1984), characterizing subsidence as a
prohibited surface impact under section 522(e); and Federal Defendant's
Supplemental Memorandum on the Relationship Between section 522(e) and
the Surface Impacts of Underground Coal Mining at 8, In re Permanent
Surface Mining Regulation Litigation II, No. 79-1144 (D.D.C. 1985).
However, in its approvals of State regulatory programs, OSM has not
required states to apply the lands unsuitable prohibitions to
subsidence. In fact, OSM has accepted both the policy of some states
not to apply the prohibitions to subsidence, and the policy of other
states to apply the prohibitions only to subsidence causing material
damage. See Statement of Interstate Mining Compact Commission Re
Oversight Hearing on Subsidence Issues, Before the Mining and Natural
Resources Subcommittee, Committee on Interior and Insular Affairs, U.S.
House of Representatives, June 28, 1990. With the exception of
Colorado, Illinois, Indiana, and Montana, states with active
underground coal mining do not apply the prohibitions of section 522(e)
to subsidence. The states regulate the effects of subsidence through
state regulations which implement section 516 of SMCRA. Those
regulations provide for the restriction, repair, and compensation for
subsidence and material damage to certain structures and lands.
Colorado does not allow material damage to structures even with
landowner waivers or VER. Illinois prohibits planned subsidence in
section 522(e) areas. The mineral owner must possess the right to
subside through applicable waiver or VER. Indiana regulations prohibit
material damage from subsidence to certain structures and lands.
Indiana has not approved planned subsidence in past permits, and has
not developed specific policies related to the approval of planned
subsidence. Information obtained from Indiana indicates that it
anticipates that it would prohibit subsidence unless the mineral owner
possesses the specific right through applicable waiver or VER. Also,
Montana has no defined policy regarding the regulation of subsidence.
This is due in part to the fact that the State has one inactive
underground mine that has not begun production. Montana is sparsely
populated, and has not encountered conditions that require it to
determine whether subsidence is prohibited in section 522(e) areas. See
Proposed Revision to the Permanent Program Regulations Implementing
section 522(e) of the Surface Mining Control and Reclamation Act of
1977, Draft Environmental Impact Statement: OSM-EIS-29 (June, 1995),
prepared by U.S. Office of Surface Mining Reclamation and Enforcement,
Table II-1 at pages II-2,3.
Because OSM arguably has taken conflicting or unclear positions in
the past, OSM is proposing to develop a definitive position on this
issue, consistent with the Act. For the reasons set forth below, OSM
proposes to interpret SMCRA as regulating subsidence under sections 516
and 720; and proposes to interpret section 522(e) in light of the
statutory definition of ``surface coal mining operations'' in section
701(28), as not applying to subsidence from underground mining.
Section 516
Section 516 establishes the regulatory requirements for the surface
effects of underground coal mining, including provisions for the
control of subsidence from underground coal mining. SMCRA section 516
provides in relevant part:
(a) The Secretary shall promulgate rules and regulations
directed toward the surface effects of underground coal mining
operations, embodying the following requirements and in accordance
with the procedures established under section 501 of this Act:
Provided, however, That in adopting any rules and regulations the
Secretary shall consider the distinct difference between surface
coal mining and underground coal mining. * * *
(b) Each permit issued under any approved State or Federal
program pursuant to this Act and relating to underground coal mining
shall require the operator to--
(1) 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, except in those instances where the mining technology
used requires planned subsidence in a predictable and controlled
manner: Provided, That nothing in this subsection shall be construed
to prohibit the standard method of room-and-pillar mining:
(c) In order to protect the stability of the land, the
regulatory authority shall suspend underground coal mining under
urbanized areas, cities, towns, and major -impoundments, or
permanent streams if he finds imminent danger to inhabitants of the
urbanized areas, cities, towns, and communities.
(d) The provisions of Title V of this Act relating to State and
Federal programs,
[[Page 4867]]
permits, bonds, inspections and enforcement, public review, and
administrative and Judicial review shall be applicable to surface
operations and surface impacts incident to an underground coal mine
with such modifications to the permit application requirements,
permit approval or denial procedures, and bond requirements as are
necessary to accommodate the distinct difference between surface and
underground coal mining, * * *
30 U.S.C. section 1266.
Section 516 is implemented in large part at 30 CFR Part 817, which
sets forth the performance standards for underground coal mining. The
provisions concerning subsidence control in Part 817 include
performance standards which require the prevention of material damage
and maintaining the value and reasonably foreseeable use of surface
lands, or using mine technology for planned subsidence in a predictable
and controlled manner; compliance with the subsidence control plan;
repair of material damage; and a detailed plan of underground workings.
Section 516(b) sets the foundation for a regulatory scheme intended
to control subsidence to the extent technologically and economically
feasible in order to protect the value and use of surface lands.
Section 516(c) authorizes suspension of underground mining under urban
areas and water bodies, when there is imminent danger to inhabitants.
Section 516(c) applies in those situations in which an underground mine
has been permitted because all applicable permitting standards,
including standards for prevention of material damage, have been met,
but actual underground mining poses a serious subsidence danger to
inhabitants of urban areas and water bodies.
Section 515
Section 515 of the Act sets out the environmental protection
performance standards for surface coal mining, including standards for
backfilling and grading to approximate original contour; revegetation;
reconstruction of prime farmlands; impoundments; augering; protecting
the hydrologic balance; protecting fish and wildlife values; disposal
of excess spoil, mine waste, and acid-forming and toxic materials, use
of explosives; and constrution of roads. This section is implemented in
large part at 30 CFR Part 816.
Section 720
Section 720 of SMCRA was added by the Energy Policy Act of 1992,
Public law 102-486, 106 Stat. 2776 (1992). The statute was enacted on
October 24, 1992. Section 720 provides, in relevant part:
(a) Underground coal mining operations conducted after the date
of enactment of this section shall comply with each of the following
requirements:
(1) Promptly repair, or compensate for, material damage
resulting from subsidence caused to any occupied residential
dwelling and structures related thereto, or non-commercial building
due to underground coal mining operations. Repair of damage shall
include rehabilitation, restoration, or replacement of the damaged
occupied residential dwelling and structures related thereto, or
non-commercial building and shall be in the full amount of the
diminution in value resulting from the subsidence. * * *
(2) Promptly replace any drinking, domestic, or residential
water supply from a well or spring in existence prior to the
application for a surface coal mining and reclamation permit, which
has been affected by contamination, diminution, or interruption
resulting from underground coal mining operations. Nothing in this
section shall be contrued to prohibit or interrupt underground coal
mining operations.
30 U.S.C. 1310.
On March 31, 1995, OSM published final regulations implementing
these provisions. The implementing regulations are set forth primarily
in Parts 701, 784, and 817. Amendments to Part 701 provide definitions
of key terms. The regulations require a presubsidence survey to
document the condition of protected structures and the quantity and
quality of protected water supplies, that could be damaged by
subsidence. The regulations also clarify that, if the proposed mining
would provide for planned subsidence in a predictable and controlled
manner, then, with certain exceptions, the permittee must take measures
consistent with the mining method, to minimize material damage to the
extent technologically and economically feasible to non-commercial
buildings dwellings and related structures.
Section 522(e)
In addition to the regulation of surface and underground coal
mining under sections 515, 516, and 720, SMCRA section 522(e) imposes
certain prohibitions on surface coal mining operations on lands
designated by Congress as unsuitable for those operations. Congress
determined that the nature and purpose of certain areas and land uses
were incompatible with surface coal mining operations. See S. Rep. No.
128, 95th Cong. 1st Sess. 55 (1977). Therefore, SMCRA section 522(e)
states that, with certain exceptions, surface coal mining operations
are prohibited on or within specified distances of those lands and
uses.
Section 522(e) provides, in relevant part, as follows:
After the enactment of this Act and subject to valid existing
rights no surface coal mining operations except those which exist on
the date of enactment of the Act shall be permitted--
(1) on any lands within the boundaries of units of the National
Park System, the National Wildlife Refuge Systems, the National
System of Trails, the National Wilderness Preservation System, the
Wild and Scenic Rivers System, including study rivers designated
under section 5(a) of the Wild and Scenic Rivers Act and National
Recreation Areas designated by Act of Congress;
(2) on any Federal lands within the boundaries of any national
forest: Provided, however, That surface coal mining operations may
be permitted on such lands if the Secretary finds that there are no
significant recreational, timber, economic, or other values which
may be incompatible with such surface mining operations and--
(A) surface operations and impacts are incident to an
underground coal mines or
(B) where the Secretary of Agriculture determines, with respect
to lands which do not have a significant forest cover within those
national forests west of the 100th meridian, that surface mining is
in compliance with the Multiple-Use Sustained-Yield Act of 1969, the
Federal Coal Leasing Amendments Act of 1975, the National Forest
Management Act of 1976, and the provisions of this Act: And provided
further, that no surface coal mining operations may be permitted
within the boundaries of the Custer National Forests;
(3) which will adversely affected any publicly owned park or
places included in the National Register of Historic Sites unless
approved jointly by the regulatory authority and the Federal, State,
or local agency with jurisdiction over the park or the historic
site;
(4) within one hundred feet of the outside right-of-way line of
any public road, except where mine access roads or haulage roads
join such right-of-way line and except that the regulatory authority
may permit such roads to be relocated or the area affected to lie
within one hundred fact of such road, if after public notice and
opportunity for public hearing in the locality a written finding is
made that the interests of the public and the landowners affected
thereby will be protected; or (5) within three hundred feet from any
occupied dwelling, unless waived by the owner thereof, nor within
three hundred feet of any public building, school, church,
community, or institutional building, public park, or within one
hundred fact of a cemetery.
30 U.S.C. 1272(e) (emphasis added).
Section 522(e) is implemented primarily at 30 CFR Part 761. That
part provides definitions of key terms concerning SMCRA section 522(e)
and describes the procedures to be followed in implementing the
prohibitions of section 522(e). Sections 522(e) (4) and (5) are
implemented by 30 CFR 761.11 (d) through (g) which provides that
[[Page 4868]]
subject to valid existing rights and an exemption for mines existing on
August 3, 1977, no surface coal mining operations shall be conducted
within the specified distances, ``measured horizontally,'' of the
listed features and facilities. The regulation implementing section
522(e) requires a determination, as a prerequisite for permit issuance
under section 515 or 516, whether a requester has the right to conduct
a surface coal mining operation of such lands. 30 CFR 761.12 (1990).
The language ``measured horizontally,'' was added in response to a
comment which requested that OSM clarify that underground mining
beneath a public road would not be prohibited. Although, OSM explained
that it did not believe mining under a road should be prohibited when
it would be safe to do so, OSM provided no clarification as to what is
meant by ``safe to do so.''
Section 701(28)
Section 522(e) of SMCRA establishes that subject to VER and except
for operations existing on August 3, 1977, ``surface coal mining
operations'' are prohibited in each of the five areas set out in
subparagraphs (e)(1) through (e)(5). Thus an understanding of the
definition of the term ``surface coal mining operations'' in section
701(28) is required to determine the scope of the prohibitions. The
term ``surface coal mining operations'' is defined in section 701(28)
and includes certain aspects of underground coal mining. However,
section 701(28) does not specifically mention subsidence.
Section 701(28) provides in full as follows:
``surface coal mining operations'' means--
(A) activities conducted on the surface of lands in connection
with a surface coal mine or subject to the requirements of section
516 surface operations and surface impacts incident to an
underground coal mine, the products of which enter commerce or the
operations of which directly or indirectly affected interstate
commerce. Such activities include excavation for the purpose of
obtaining coal including such common methods as contour, strip,
auger, mountaintop removal, box cut, open pit, and area mining, the
uses of explosives and blasting, and in situ distillation or
retorting, leaching or other chemical or physical processing, and
the cleaning, concentrating, or other processing or preparation,
loading of coal for interstate commerce at or near the mine site:
Provided, however, That such activities do not include the
extraction of coal incidental to the extraction of other minerals
where coal does not exceed 16\2/3\ per centum of the tonnage of
minerals removed for purposes of commercial use or sale or coal
explorations subject section 512 of this Act; and
(B) the areas upon which such activities occur or where such
activities disturb the natural land surface. Such areas shall also
include any adjacent land the use of which is incidental to any such
activities, all lands affected by the construction of new roads or
the improvement or use of existing roads to gain access to the site
of such activities and for haulage, and excavations, workings,
impoundments, dams, ventilation shafts, entryways, refuse banks,
dumps, stockpiles, overburden piles, spoil banks, culm banks,
tailings, holes or depressions, repair areas, storage areas,
processing areas, shipping areas and other areas upon which are
sited structures, facilities, or other property or materials on the
surface, resulting from or incident to such activities.
30 U.S.C. 1291(28).
Interpretation of Section 701(28)
While the definition of ``surface coal mining operation'' in SMCRA
section 701(28) is not a clearly drafted provision, OSM believes that
paragraph (A) of the definition includes only surface activities which
are connected with a surface coal mine, and surface activities
connected with those surface operations and surface impacts that are
incident to an underground mine and that are subject to section 516.
This proposed interpretation is consistent with the description of the
effect of section 701(28) in the Senate Report on the version of the
definition that was adopted:
``Surface [coal] mining operations'' * * * includes all areas
upon which occur surface mining activities and surface activities
incident to underground mining. It also includes all roads,
facilities, structures, property, and materials on the surface
resulting from or incident to such activities
S. Rep. No. 128, 95th Cong. 1st Sess. 98 (1977) (emphasis added).
Paragraph (B) of section 701(28) supports this interpretation.
Paragraph (A) refers to ``activities conducted on the surface of lands
in connection with a surface coal mine or * * * ``surface operations
and surface impacts incident to an underground coal mine * * *.''
Paragraph (B) refers to ``the areas upon which such activities occur or
where such activities disturb the natural land surface'' and to holes
or depressions ``resulting from or incident to such activities * * *''
(emphasis added). The only ``activities'' to which paragraph (B) could
refer are those described in paragraph (A), namely those conducted on
the surface of lands in connection with a surface coal mine or in
connection with the surface operations and impacts incident to an
underground coal mine.
Under this construction, subsidence would not be included within
the term ``surface coal mining operations'' because it is not an
activity conducted on the surface of lands, and it is not an area on
which surface activities occur, or an area where surface activities
disturb the surface, or a hole or depression resulting from or incident
to surface activities. Surface activities associated with surface
operations incident to underground mining, and surface activities
associated with surface impacts incident to underground mining would be
included in the definition. While subsidence is clearly a surface
impact incident to underground mining, it is not a surface activity
under the definition of surface coal mining operations. This reading of
subsection 701(28), however, would not mean that subsidence would be
exempt from regulation under the Act, since Congress specifically
provided for regulation of subsidence under section 516 of SMCRA.
Relationship of Section 522(e) to Sections 516 and 720
OSM believes, based on its interpretation of the language of
section 516 and of the legislative history, that Congress intended
section 516(c), in combination with other regulatory provisions under
section 516 and section 720, to offer sufficient prohibition,
prevention, or repair of subsidence damage to those features that
Congress considered vulnerable to significant impairment from
subsidence. The existence of this comprehensive regulatory scheme in
section 516 make it unlikely that Congress also intended to prohibit
subsidence under section 522(e).
The legislative history of section 516 contains ample references to
Congress' focus on control rather than prohibition. The following is
pertinent House Report language:
Surface subsidence has a different effect on different land
uses. Generally, no appreciable impact is realized on agricultural
land and similar types of land and productivity is not affected. On
the other hand when subsidence occurs under developed land such as
that in an urbanized area, substantial damage results to surface
improvements be they private homes, commercial buildings or public
roads and schools. One characteristic of subsidence which disrupts
surface land uses is its unpredictable occurrence in terms of both
time and location. Subsidence occurs, seemingly on a random basis,
at least up to 60 years after mining and even in those areas it is
still occurring. It is the intent of this section 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.
H.R. Rep. No. 218, 95th Cong., 1st Sess. 126 (1977).
[[Page 4869]]
In those extreme cases in which Congress felt that prohibition
could be necessary, it provided broad authority under section 516(c):
In order to prevent the creation of additional subsidence
hazards from underground mining in developing areas, subsection (c)
provides permissive authority to the regulatory agency to prohibit
underground coal mining in urbanized areas, cities, towns and
communities, and under or adjacent to industrial buildings, major
impoundments or permanent streams.
S. Rep. No. 128 at 84-85.
It is reasonable to conclude that Congress addressed specifically,
in section 516(c), the limited types of surface features that might be
so significantly affected by subsidence from underground mining that a
subsidence prohibition could be appropriate. This conclusion that
prohibition was to be imposed solely under 516(c) is buttressed by the
discussion in the House report quoted above, that subsidence has no
appreciable impact on agricultural land and similar types of land. It
is not necessary to impose the prohibitions of section 522(e) on
subsidence because the surface features that might need such protection
are covered by section 516(c).
This conclusion is also supported by the discussion in the 1977
Senate report on section 522(e) which notes that ``surface coal
mining'' is prohibited within the specified distances of public roads,
occupied buildings, and active underground mines, ``for reasons of
public health and safety.'' S. Rep. No. 128 at 55. Clearly, one of
Congress' purposes in section 522(e)(4)-(5) was to protect public
health and safety. Prohibition of subsidence in all section 522(e)
areas would be unnecessary, however, given that an underground mine
must meet the requirements of section 516 to prevent material damage
and to maintain the value and use of lands, and those requirements
should prevent risks to public health and safety. Moreover, if an
unforeseen and imminent subsidence danger were to arise, section 516(c)
requires that underground mining be suspended as necessary, thus
providing a second level of protection for public health and safety.
Therefore, Congress had already addressed in section 516 those
subsidence control measures necessary to address public health and
safety.
Sections 516 and 720, the sections of the Act expressly dealing
with subsidence, treat subsidence as a surface impact to be regulated
only to the extent that it:
(1) Causes material damage (section 516(b)(1) and section
720(a)(1)), or
(2) Diminishes the value or the reasonably foreseeable uses of
the surface (section 516(b)(1)) or
(3) Creates imminent danger (section 516(c)), or
(4) Contaminants, diminishes, or interrupts a domestic water
supply (section 720(a)(2)).
The legislative history of SMCRA indicates that Congress was only
concerned with subsidence insofar as it causes environmental or safety
problems, disrupts land uses, or diminishes land values. Congress has
repeatedly recognized that there is little concern about subsidence
that causes no significant damage to a surface use or facility or
danger to human life or safety. See H.R. Rep. No. 218, 95th Cong., 1st
Sess. 126 (1977); H.R. Rep. No. 1445, 94th Cong., 2nd Sess. 71-72
(1976); H.R. Rep. No. 896, 94th Cong., 2d Sess. 73-74 (1976); H.R. Rep.
No. 45, 94th Cong. 1st Sess. 115-116 (1975); H.R. Rep. No. 1072, 93rd
Cong., 2d Sess. 108-109 (1974); H.R. Rep. No. 776, 102nd Cong., 2d
Sess. 102-474 (1992).
Congressional Intent
OSM's proposed interpretation is consistent with Congress' intent
to encourage underground mining and full coal resource recovery. The
statute and legislative history express Congress' intent to ``encourage
the full utilization of coal resources through the development and
application of underground extraction technologies,'' SMCRA section
102(k), 30 U.S.C. section 1202(k). Similarly, Congress found that:
The overwhelming percentage of the Nation's coal reserves can
only be extracted by underground mining methods, and it is,
therefore, essential to the national interest to insure the
existence of an expanding and economically healthy underground coal
mining industry.
SMCRA section 101(b), 30 U.S.C. section 1201(b).
In fact, there is evidence that Congress wished to encourage
longwall mining in particular:
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 predictable and
controllable subsidence.
S. Rep. No. 128, 95th Cong., 1st Sess. 84 (1977). See also S. Rep.
No. 28, 94th Cong., 1st Sess. 215 (1975).
Clearly, if subsidence is likely to occur from room-and-pillar
underground mining and is a virtually inevitable consequence of
longwall mining, then prohibiting all subsidence below homes, roads,
and other features specified in section 522(e) could make it
substantially less feasible to mine and could substantially reduce the
level of coal recovery in areas where such features are common on the
surface.
Thus, inclusion of subsidence in the definition of ``surface coal
mining operations'' at section 701(28), and application of the section
522(e) prohibitions to subsidence could be regarded as failing to
accommodate congressional recognition of the importance of underground
mining and longwall mining in particular. The application of the
prohibitions in section 522(e) to subsidence could substantially
impeded longwall and other full-extraction mining methods. As discussed
above, the language of SMCRA demonstrates that Congress intended to
encourage underground mining and especially full-extraction methods
such as longwall mining. Congress intended that longwall and other
mining techniques that completely remove the coal be used as subsidence
control measures. See H.R. Rep. No. 218, supra. Such techniques involve
planned subsidence.
Comparison of Underground Mining Techniques
Mine productivity improved significantly during the 1980's thus
reversing the declining trend of the earlier decade. Productivity
increased by an average of 6.6 percent per year between 1980 and 1990
(Department of Energy, Energy Information Administration (EIA), 1990).
Improvement in underground mine productivity was particularly
impressive. While surface mining productivity rose 86 percent during
the 1980's, productivity at underground mines more than doubled.
The increases in productivity can be attributed to intense
competition between coal producers, technology advancement, changing
market conditions, improved labor/management relations, and a matured
and more experienced labor force. The three primary underground mining
methods principally used to extract coal are room-and-pillar, room-and-
pillar with secondary mining, and longwall mining. Room-and-pillar is
the predominant underground mining method, although longwall mining has
increased in use in the United States since 1960.
[[Page 4870]]
Room and Pillar Mining
Room and pillar mining is the predominant method of coal extraction
in the United States. The room and pillar method in its basic form
consists of driving entries, rooms and cross-cuts into the coal seam to
extract coal. Pillars of coal are left to support the mine roof, or for
haulage and ventilation. This procedure is called ``development''
mining. Movements of the ground surface during this procedure are
nearly always imperceptible.
To increase the extraction of coal where conditions allow,
development mining is followed by ``pillar recovery,'' where the
pillars are systematically extracted. This is called secondary (or
retreat) mining. Secondary mining occurs when the coal pillars left to
support the mine roof are extracted during the retreat mining phase to
obtain maximum recovery of the coal.
Pillar extraction is invariably accompanied by subsidence of the
ground surface as the overburden sags into the mined-out area in
response to the removal of mine-level support. Where pillar extraction
is not conducted and the operator intends to leave surface support, the
pillars must be designed to permanently support the overburden.
During the development mining phase, 30 to 50 percent of the coal
may be extracted from the panel. In order to prevent subsidence, the
remainder of the coal may not be recovered from a mine panel. However,
when the roof collapses in a controlled fashion and the surface
subsidence is not a limiting factor, secondary mining can be practiced
to increase the coal recovery up to 85 percent.
Longwall Mining
Longwall mining is a high extraction mining method that maximizes
the recovery of coal resources. The development of the mains and sub-
mains for access and ventilation of the longwall panels is essentially
identical to the development of room and pillar mining. However, the
longwall mining methods differs from room-and-pillar mining in that the
mine working panel is fully extracted during mining by a fully
automated shearer or plow. The mineral extraction ratio for longwall
mining operation can be as high as 90 percent in each panel. Retreat
mining on a longwall panel results in 100 percent coal extraction.
In longwall mining, groups of three or four parallel entries are
driven perpendicular to the main entry on either side of the proposed
panel. The width of the panel varies from 500 to 1,200 feet, and length
from 4,000 to 15,000 feet. Longwall mining removes the coal in one
operation by means of a long working face or wall that advances, or
retreats, in a continuous line. The coal is cut by a shearer or coal
plough which travels up and down along the face and makes 27 to 39 inch
deep cuts. The broken coal falls on to an Armored Flexible Conveyor
(AFC) which transfers the coal to the Stage Loader. The coal is then
conveyed to the surface through several belt conveyors. Mechanical
steel supports known as Shields or Chocks are used to support the mine
roof along the entire longwall face. After each cutting cycle of the
shearer/plough, the steel supports and AFC are hydraulically advanced.
The mine roof immediately behind the AFC is allowed to cave. The space
from which the coal has been removed is either allowed to collapse or
is completely or partially filled with stone and debris. The roof rock
that falls into the mined our area is referred to as the ``gob.'' As
the overburden continues to collapse, effects of subsidence progresses
upwards to the surface. However, solid coal barriers and pillars are
left in the mine for haulage, ventilation, and other purposes. Ninety
percent of the surface subsidence caused by longwall mining occurs
within 4 to 6 weeks of mining.
Significance of Longwall mining. Longwall mining has a long history
of use in Europe and has been tried at various times in the United
States. In early attempts--some prior to 1900--labor costs associated
with moving manual supports made the methods less competitive than room
and pillar mining. But, in the past two decades, longwall mining has
become the safest, most productive and most economic underground mining
method. While overall underground production remained relatively flat
between 1980 and 1993, longwall production grew at an annual rate of
6.1 percent. Longwall mining is anticipated to continue to be an
important and expanding type of mining. In 1993, it accounted for 38
percent of the coal extracted by underground mining methods, were
recovered by longwall mining. The Economic Analysis (EA) estimates that
longwall mining will account for 48 percent of production by 2015. See
(Proposed Revision to the Permanent Program Regulations Implementing
section 522(e) of the Surface Mining Control and Reclamation Act of
1977, and Proposed Rulemaking Clarifying the Applicability of section
522(e) to Subsidence from Underground Mining prepared by OSM and USGS,
(September 1, 1995)
Longwall mining operations require large investments in capital
equipment, but are less labor intensive than room-and-pillar
operations. It is estimated that longwall mining requires only one-
third of the manpower at the face as does room-and-pillar mining. The
high capital costs associated with longwall mining are generally offset
with lower operating costs, due primarily to the higher productivity of
longwall mining. The average operating costs for a coal mine operation
include the operating cost per ton and the return on the capital cost
allocated per ton. The operating costs for longwall mine range from
$0.50 to $2.00 per ton, while operating costs for room-and-pillar range
from $2.00 to $7.00 per ton, while Room-and-pillar mining operation
costs average an additional $3.25 per ton more than longwall mining
because of increased labor and material costs associated with mine
operation.
In some instances, use of the longwall mining method is the most
economical and safest means to extract the coal in particular geologic
areas. For example, when a coal seam is 1,000 feet or more below the
surface, the cost of mining would be so high that it would effectively
prevent coal from being mined by any method other than longwall.
Another example are those areas where the high limestone content in
particular coal seams creates fragile roof conditions which make room-
and-pillar mining impossible. Longwall mining provides the economy of
scale so that mining costs are lowered and a relatively safe working
environment is created.
Implications of Applying 522(e) Prohibitions to Subsidence From
Underground Mining
Currently, owners of coal reserves, who hold valid deeds, typically
have the property right to mine coal beneath dwellings without
obtaining explicit permission in the form of waivers from owners of the
dwellings.
However, under SMCRA when the coal is mined, the mining companies
must meet all existing subsidence performance standards, take steps to
minimize damage to dwellings, repair or compensate for damage that does
occur to dwellings, assure adequate domestic water supplies, and take
other measures as set out in OSM's recent regulations on subsidence (60
FR 16722 (Friday, March 31, 1995)).
If Section 522(e) were to apply to subsidence from underground
mining, the operator would be required to plan the operation to
preclude mining in all portions of the underground workings where
mining would cause subsidence
[[Page 4871]]
affecting a protected surface feature. The surface area affected by
subsidence is usually considerably larger than the area actually mined
underground. Because subsidence typically occurs in a funnel shape
radiating upward and outward from the underground mine cave-in, any
surface impacts may extend well beyond the area directly above the
mine. Thus, to ensure that subsidence would not take place within a
surface area specified in section 522(e), underground mine operations
would be required to leave coal in place around each protected feature
for a horizontal distance much larger than the protected area. The
amount of coal left in-place to support dwellings would result in a
pattern of irregular mined areas that would in effect, eliminate the
contiguous coal reserves needed to sustain the economic advantage of
longwall operations. Consequently, few new longwall mines would be
opened. Over time, existing longwall mines could continue those
operations that would extract coal reserves pursuant to the ``needed
for and adjacent to'' valid existing rights provisions implementing
SMCRA.
Mining could be allowed in some cases in lands protected by 522(e)
(2), (3), and (4), and some (5) areas, if an appropriate waiver or
approval were obtained by the permit applicant for mining coal directly
underneath the protected feature. The coal for which a mining company
would have to obtain a waiver would include the coal directly under the
dwelling, a 300-foot buffer around the house, and an additional buffer
area based on the predicted angle of draw and the depth of the coal
seam. However, homeowners could decide to withhold waivers denying
access to the coal under their dwellings and within the surrounding
buffer area. Both the Environmental Impact Statement and the Economic
Analysis indicate that the withholding of dwelling waivers has the
potential to significantly alter coal mining operations. The waiver
authority would apply to new longwall operations. Consequently, OSM
estimated that if 10 percent or more of homeowners withheld waivers,
longwall mining operations would not be economically viable. The
economic impacts of applying the prohibitions of section 522(e) to
subsidence are discussed in more detail in the draft Economic Analysis.
In summary, longwall mining is an important and expanding type of
mining. It accounted for 38 percent of the underground mining in 1993,
and is forecasted to increase its share to 48 percent by 2015. Longwall
mining is a low-cost underground mining method, and in some instances,
may be the only economically feasible underground mining method when
the coal seam is deep or the roof is extremely fragile. The key to the
competitive advantage of longwall mining is access to large blocks of
uninterrupted coal. If the prohibitions of 522(e) were to apply to
subsidence, longwall mining would no longer be economically feasible if
as few as 10 percent of the owners of occupied dwellings denied waivers
for mining. A more detailed discussion of impacts on mining is provided
in the Draft Environmental Impact Statement (DEIS) on the Proposed
Revision to the Permanent Program Regulations Implementing Section
522(e) of the Surface Mining Control and Reclamation Act of 1977, and
Proposed Rulemaking Clarifying the Applicability of Section 522(e) to
Subsidence from Underground Mining OSM-EIS-29 (September, 1995) and
Draft Economic Analysis prepared for this rulemaking. OSM also
evaluated the impact of various policy options for this rulemaking in
the DEIS and EA prepared for this proposed interpretative rulemaking.
OSM encourages comments on the DEIS and EA.
Summary of Analysis
Under Section 516, OSM has ample authority to regulate surface
effects of underground mining under existing regulations or under any
additional regulations that OSM might reasonably conclude are necessary
to implement the Act. There would be no regulatory hiatus if section
522(e) does not apply to subsidence. However, if OSM were to identify
any environmental values or public interests that warrant additional
protection, OSM has full authority under section 516 and other SMCRA
provisions, to develop standards to protect such values or interests,
without the disruption in the longwall mining industry that would
result from applying section 522(e) prohibitions to subsidence.
Based on analysis of the language and the legislative history of
sections 516, 522(e) and 701(28) of SMCRA, and a consideration of the
congressional findings and purposes set out in sections 101 and 102,
OSM proposes to interpret section 522(e) as not applying to subsidence
from underground mining activities, or to the underground activities
that may lead to subsidence. OSM bases this proposal in part on its
conclusion that subsidence is not included in the term ``surface coal
mining operations'' as defined in SMCRA section 701(28). OSM's
interpretation is also based in part on a conclusion that subsidence
from underground mining is properly and adequately regulated under
sections 516 and 720. OSM believes that this interpretation will
promote the general statutory scheme of SMCRA and fully protect the
environment and public interest. OSM is soliciting comments on the need
to amend 30 CFR to indicate that section 522(e) does not apply to
subsidence from underground coal mining activities, or the underground
activities that may lead to subsidence.
III. Procedural Matters
Federal Paperwork Reduction Act
This rule does not contain collections of information which require
approval by the Office of Management and Budget under 44 U.S.C. 3501 et
seq.
Executive Order 12630
In accordance with E.O. 12630, the Department has determined that
the proposed interpretative rule does not have significant takings
implications.
Executive Order 12866
This rule has been reviewed under E.O. 12866. It is considered
significant and OSM has prepared an economic analysis which is now
available to the public for review and comment.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
the Department of the Interior has determined that this rule would not
have a significant economic impact on a substantial number of small
entities.
National Environmental Policy Act
On April 28, 1994 (59 FR 21996), OSM published a notice of intent
to prepare a revised environmental impact statement (EIS) analyzing
both VER and the applicability of the prohibitions in section 522(e) of
the Act to underground coal mining. OSM has completed a revised draft
EIS (OSM-EIS-29), which is now available to the public for review and
comment.
Executive Order 12988 (Civil Justice Reform)
This proposed rule has been reviewed under the applicable standards
of section 3(b)(2) of E.O. 12988, ``Civil Justice Reform'', (61 FR
4729). In general, the requirements of section 3(b)(2) are covered by
the preamble discussion of this rule. Individual elements of the order
are addressed below:
1. What is the preemptive effect, if any, to be given to the
regulation?
This interpretative rule is not intended to have a preemptive
effect on
[[Page 4872]]
existing state law. To the extent that this rule might ultimately
result in the preemption of state law, the provisions of SMCRA are
intended to preclude in-consistent State laws and regulations unless
they provide for more stringent land use or environmental controls and
regulations. This approach is established in SMCRA and has been
judicially affirmed.
2. What is the effect on existing federal laws or regulations, if
any, including all provisions repealed or modified?
This proposed rule would affect the implementation of SMCRA as
described in the preamble. It is not intended to modify the
implementation of any other federal statute. The preamble discussion
specifies the federal regulatory provisions that would be affected by
this rule.
3. Does the rule provide a clear and certain legal standard for
affected conduct rather than a general standard, while promoting
simplification and burden reduction?
As discussed in the preamble, the standards proposed in this rule
are as clear and certain as practicable, given the complexity of the
topics covered, the mandates of SMCRA and the legislative history of
section 522(e) of SMCRA.
4. What is the retroactive effect, if any, to be given to this
regulation?
This proposed rule is not intended to have retroactive effect.
5. Are administrative proceedings required before parties may file
suit in court? Which proceedings apply? Is the exhaustion of
administrative remedies required?
Since this rule is only in proposed form, these questions are not
applicable. However, if the rule is adopted as proposed, the following
answers would apply:
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). However, administrative procedures
must be exhausted prior to any judicial challenge to the application of
this rule. In situations involving OSM application of this rule,
applicable administrative procedures may be found at 30 CFR 775.11 and
43 CFR Part 4. In situations involving state regulatory authority
application of provisions analogous to those contained in this rule,
applicable administrative procedures are set forth in each state
regulatory program.
6. Does the rule define key terms, either explicitly or by
reference to other regulations or statutes that explicitly define those
items?
Terms important to the understanding of this rule are set forth in
30 CFR 700.5, 701.5 and 761.5.
7. 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.
Unfunded Mandates
For purposes of compliance with the Unfunded Mandates Reform Act of
1995, this rule will not impose any obligations that individually or
cumulatively would require an aggregate expenditure of $100 million or
more by State, local, and Tribal governments and the private sector in
any given year.
Author: The principal author of this proposed rule is Nancy
Broderick, Rules and Legislation, Office of Surface Mining
Reclamation and Enforcement, 1951 Constitution Avenue, N.W.,
Washington, DC 20240; Telephone (202) 208-2700.
List of Subjects in 30 CFR Part 761
Historic preservation, National forests, National parks, National
trails system, National wild and scenic rivers system, Surface mining,
Underground mining, Wilderness areas, Wildlife refuges.
Dated: April 30, 1996.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
[FR Doc. 97-2183 Filed 1-30-97; 8:45 am]
BILLING CODE 4310-05-M
