[Federal Register Volume 62, Number 21 (Friday, January 31, 1997)]
[Proposed Rules]
[Pages 4836-4863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2184]
[[Page 4835]]
_______________________________________________________________________
Part II
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 740, et al.
Underground Mining Activities: Valid Existing Rights and Section 522(e)
Prohibitions; Proposed Rules
Federal Register / Vol. 62, No. 21 / Friday, January 31, 1997 /
Proposed Rules
[[Page 4836]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Parts 740, 745, 761, and 772
RIN 1029-AB42
Valid Existing Rights
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)
is proposing to amend its regulations to redefine the circumstances
under which a person has valid existing rights (VER) to conduct surface
coal mining operations in areas where these operations are otherwise
prohibited by section 522(e) of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or ``the Act''). OSM also is proposing
to establish requirements and procedures and define responsibilities
for the submission and processing of requests for VER determinations,
modify and clarify the applicability of the existing operation
exemption, remove the requirement that requests for compatibility
determinations for surface coal mining operations on national forest
lands be accompanied by a permit application, and, with certain
exceptions, require a VER determination as a prerequisite for approval
of coal exploration activities that may result in substantial
disturbance of the lands listed in section 522(e) of SMCRA. The
proposed rule also contains numerous editorial revisions and
organizational changes intended to improve overall consistency and
clarity. If the proposed rule becomes final, it would result in removal
of all existing suspensions of the affected regulations.
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 osmrules@osmre.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: Dennis Rice, 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) 208-2829. E-mail address: drice@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:
Table of Contents
I. Public Comment Procedures.
II. General Background on Proposed Rule.
III. Discussion of Proposed Rule.
A. Sections 740.4, 740.11 and 745.13: VER Determinations for
Lands Protected by Paragraphs (e)(1) and (e)(2) of Section 522 of
SMCRA.
1. Who is Responsible for VER Determinations for Non-Federal
Lands Within Section 522(e)(1) Areas?
2. Which VER Definition Applies to Lands Listed in Paragraphs
(e)(1) and (e)(2) of Section 522?
3. What Other Changes are Proposed?
B. Sections 740.10 and 745.10: Information Collection.
C. Section 761.5: Definition of Valid Existing Rights.
1. Statutory and Regulatory History.
2. Basic Definition.
3. Property Rights Demonstration.
4. Good Faith/All Permits Standard.
5. Needed for and Adjacent Standard.
6. VER for Access and Haul Roads.
7. Transferability of VER.
8. Continually Created VER: VER When Prohibitions Come into
Effect After August 3, 1977.
D. Section 761.5: Definition of ``Surface Coal Mining Operations
Which Exist on the Date of Enactment''.
E. Section 761.11: Areas Where Surface Coal Mining Operations are
Prohibited or Limited.
1. Existing Operation Exemption.
2. Removal of Paragraph (h).
F. Section 761.12: Coordination with Permitting Process; Waiver
Requirements and Procedures.
G. Section 761.13: Submission and Processing Requirements for
Requests for VER Determinations.
1. Paragraph (a): Which agency will process a request for a VER
determination?
2. Paragraph (b): What information must a request for a VER
determination include?
3. Paragraph (c): How may the public participate in the VER
determination process?
4. Paragraph (e): How may a determination be appealed?
H. Section 772.12: Requirements for Coal Exploration on Lands
Unsuitable for Surface Coal Mining.
I. Effect in Federal Program States and on Indian Lands.
J. Effect on State Programs.
IV. Procedural Matters
I. Public Comment Procedures
Electric 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.
[[Page 4837]]
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 adequate
responses and 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 of this
rulemaking.
II. General Background on Proposed Rule
Section 522(e) of SMCRA provides that, subject to VER, there shall
be no surface coal mining operations on certain lands after the date of
enactment (August 3, 1977). The Act exempts operations in existence on
that date. Section 522(e)(1) protects all lands within the boundaries
of units of the National Park System; the National Wildlife Refuge
System; 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. Section
522(e)(2) protects Federal lands within the boundaries of any national
forest, although it provides a mechanism and criteria for approving (a)
surface operations and impacts incident to an underground mine on any
type of national forest land, and (b) any type of surface operations on
lands that lack significant forest cover and are located west of the
100th meridian. Section 522(e)(3) prohibits operations that would
adversely impact publicly owned parks and properties listed on the
National Register of Historic Places; however, it permits operations
that receive joint approval from the regulatory authority and the
agency with jurisdiction over the park or place. Except for mine access
and haul roads, section 522(e)(4) prohibits operations within 100 feet
of the outside right-of-way line of any public road, but it provides a
mechanism and criteria for approval of exceptions from this
prohibition. Section 522(e)(5) prohibits operations within 100 feet of
a cemetery or within 300 feet of a public building, school, church,
community or institutional building, or public park. This paragraph
also prohibits operations within 300 feet of an occupied dwelling, but
it allows the owner of the dwelling to waive the prohibition.
SMCRA does not define or explain the VER exemption. As discussed in
greater detail in other sections of this preamble, OSM previously
defined or attempted to define VER by regulation in 1979, 1983, 1988,
and 1991. None of these efforts was fully successful. Judicial review
of the 1979 and 1983 definitions and related rules resulted in the
remand of several provisions, including most of the 1983 definition of
VER. In 1988, OSM proposed a new definition, which it withdrew in 1989
for further study.
On July 18, 1991 (56 FR 33152-65), OSM again proposed to revise the
definition of VER and related rules. The comment period for this
proposal originally closed September 16, 1991, but, by notice dated
September 12, 1991 (56 FR 46396), OSM extended the deadline until
October 16, 1991. In addition, in response to requests from interested
persons, OSM scheduled and held two public hearings on the proposed
rule, one in Knoxville, Tennessee, which attracted 27 speakers, and
another in Morgantown, West Virginia, at which 3 individuals offered
testimony.
The overwhelmingly majority of the approximately 750 comments
received did not directly discuss either the proposed rule language or
the specific issues upon which OSM had requested comment. Instead, the
commenters opposed the proposed rule in principle because they believed
that it would lead to increased mining in national parks and wildlife
refuges and irreparable or uncompensated damage to dwellings,
cemeteries, churches, and other structures. Copies of all comments
received and transcripts of the public hearings are on file as part of
the administrative record of the 1991 rulemaking effort.
Before OSM completed development of a final rule, the President
signed the Energy Policy Act of 1992 (EPAct), Public Law 102-486, 206
Stat. 2776, into law on October 24, 1992. Section 2504(b) of that
statute effectively placed a one-year moratorium on adoption of a new
or revised VER definition.
At the Department's request, Congress included a revised version of
this moratorium in the appropriations acts for fiscal years 1994 and
1995 for the Department of the Interior and related agencies.
Specifically, the Fiscal Year 1995 Appropriations Act (Pub. L. 103-332)
contained a provision that effectively prohibited the Department from
publishing a final Federal VER definition or disapproving existing
State definitions of VER until October 1, 1995. However, Congress did
not include the moratorium language in the fiscal year 1996
appropriations legislation or continuing resolutions.
After evaluating the comments received and taking intervening
events into consideration, OSM has decided to withdraw the 1991
proposal and publish a new, extensively revised proposed rule
concerning the definition of VER and related issues. The new proposed
rule is based upon, but not identical to, the 1991 proposal. Except as
discussed below, all substantive comments received in response to the
1991 proposed rule have been considered in developing the rule being
proposed today. However, because OSM has decided to withdraw the 1991
proposal in favor of the rule being proposed today, the preamble does
not necessarily discuss the disposition of all comments. Persons who
believe that the new proposal does not adequately address their 1991
concerns must submit new comments or resubmit relevant portions of
earlier comments to insure consideration of those concerns during
development of the final rule.
Some commenters expressed opposition to OSM's position that the
prohibitions and limitations of section 522(e) of SMCRA do not apply to
subsidence or other adverse surface impacts resulting from underground
mining activities conducted beneath or adjacent to protected lands. OSM
announced this policy in a separate Federal Register document (56 FR
33170-71) published on July 18, 1991, in tandem with the proposed rule
concerning VER. However, on September 21, 1993, in National Wildlife
Fed'n v. Babbitt, 835 F. Supp. 654 (D.D.C. 1993), the court vacated the
policy set forth in the notice and remanded the issue to the Secretary
for rulemaking in accordance with the notice and comment procedures of
the Administrative Procedure Act (5 U.S.C. 553). OSM is addressing this
issue in a separate rulemaking, which is also being published in
proposed form in today's Federal Register.
[[Page 4838]]
III. Discussion of Proposed Rule
A. Sections 740.4, 740.11 and 745.13: VER Determinations for Lands
Protected by Paragraphs (e)(1) and (e)(2) of Section 522 of SMCRA
1. Who Is Responsible for VER Determinations for Non-Federal Lands
Within Section 522(e)(1) Areas?
While SMCRA does not directly address responsibilities for VER
determinations, section 503(a) speaks of States having exclusive
jurisdiction over the regulation of surface coal mining and reclamation
operations on non-Federal lands. In accordance with this principle,
former 30 CFR 761.4, as promulgated on March 13, 1979 (44 FR 15341),
assigned the responsibility for VER determinations to the regulatory
authority, with the Secretary retaining responsibility for VER
determinations involving Federal lands.
On February 16, 1983 (48 FR 6935), OSM revised the Federal lands
regulations at 30 CFR 740.4 by adding paragraph (a)(4). This paragraph
narrowed the Secretary's responsibility for VER determinations by
restricting it to proposed surface coal mining operations that would be
located on Federal lands within the boundaries of any areas listed in
paragraph (e)(1) or (e)(2) of section 522 of the Act. In the same
rulemaking, OSM revised 30 CFR 745.13 by adding paragraph (o). This
paragraph specifies that the Secretary may not delegate the
responsibility for making VER determinations on Federal lands within
any areas listed in paragraph (e)(1) or (e)(2) of section 522 to the
State in a cooperative agreement for the regulation of mining on
Federal lands. The preamble to that rulemaking explains that exclusive
authority for VER determinations involving those lands is an integral
component of the Secretary's commitment to protect the areas listed in
paragraphs (e)(1) and (e)(2) of section 522 in accordance with
congressional direction and to prevent mining on Federal lands within
the National Park System (48 FR 6917, col. 2, February 16, 1983).
On September 14, 1983 (48 FR 41312), OSM removed 30 CFR 761.4
because it was no longer needed in view of the provisions added to 30
CFR 740.4 and 745.13 on February 16, 1983. Citizen and environmental
groups filed a challenge to the removal; they also used this occasion
as an opportunity to argue that SMCRA requires that the Secretary make
VER determinations in all cases involving lands within the boundaries
of section 522(e)(1) areas, regardless of ownership. The court rejected
the plaintiffs' arguments, noting that section 503(a) of the Act
``permits States to assume exclusive jurisdiction over the regulation
of surface coal mining and reclamation operations on non-Federal
lands.'' In re Permanent Surface Mining Regulation Litigation II, Round
III--Valid Existing Rights, 22 ERC 1557, 1566 (D.D.C. 1985) (``PSMRL
II, Round III--VER''). The court also noted that nothing in section
523(c) of the Act, which prohibits the Secretary from delegating to the
States his authority to designate Federal lands as unsuitable for
mining under section 522 of the Act, ``persuades the court to the
contrary.'' Ibid.
However, in oral arguments defending against the challenge, counsel
for the Government stated that:
[I]n those situations where surface mining on private inholdings
will affect federal lands, that kicks in the Federal Lands Program,
and under the Federal Lands Program, the Secretary makes the VER
determination, so there may be circumstances where you have a
private inholding within the protected area, in which the Secretary
would make the VER determination, but he can't in the abstract know
when he's going to be required to make that determination, until he
knows what land is going to be mined, and what potential impact that
might have on federal lands.
Transcript of Oral Argument, Dec. 21, 1984, at 46; quoted in PSMRL
II, Round III--VER, 22 ERC at 1566.
The court did not address the validity or interpretation of this
argument, which, taken at face value, would extend the reach of the
Federal lands program to lands in which there is no element of Federal
ownership.
On November 20, 1986 (51 FR 41952-62), OSM published a final rule
document that suspended a number of regulations. Among other things,
that document, which is known as the 1986 suspension notice, partially
suspended the VER definition promulgated on September 14, 1983. In the
preamble discussion of the impact of the suspension of the VER
definition on the Federal lands program, OSM announced that the
Secretary would make VER determinations for non-Federal lands within
the boundaries of the areas listed in section 522(e)(1) whenever
surface coal mining operations on those lands would affect the Federal
interest (51 FR 41955). This policy is known as the ``affected by''
standard. However, the notice did not suspend or modify 30 CFR
740.4(a)(4), which provides only that the Secretary is responsible for
VER determinations for Federal lands, or any other rule to reflect this
policy.
In 1991, OSM requested comment on whether the policy set forth in
the 1986 suspension notice (the ``affected by'' standard) should be
codified. Based on the comments received and further review of the
background of this issue, the agency is reconsidering the 1986 policy.
OSM is now seeking comment on four alternatives with respect to
responsibility for VER determinations for non-Federal lands within the
areas protected by section 522(e)(1):
(1) Reaffirming existing 30 CFR 740.4(a)(4), which would mean that
OSM would be responsible for making all VER determinations for Federal
lands in section 522(e)(1) areas and that the regulatory authority
(either OSM or the State) would be responsible for making all
determinations for non-Federal lands;
(2) Reaffirming existing 30 CFR 740.4(a)(4) and revising 30 CFR
Part 761 to provide that the regulatory authority (either OSM or the
State) must obtain the concurrence of the pertinent land management
agency before finding that a person has VER for any lands within the
boundaries of the areas listed in 30 CFR 761.11(a)(1) and section
522(e)(1) of the Act;
(3) Codifying the ``affected by'' standard, the policy set forth in
the 1986 suspension notice; or
(4) In a variation on the affected by standard, requiring that OSM
make all VER determinations for both Federal and non-Federal lands
within the boundaries of the areas designated in 30 CFR 761.11(a)(1)
and section 522(e)(1) of the Act.
For the reasons discussed below, OSM has selected the first
alternative as the preferred alternative. Therefore, although OSM
retains the option of adopting any of the alternatives, the rule text
being proposed today reflects the first alternative, which would assign
responsibility for making VER determinations for all non-Federal lands
to the regulatory authority. If OSM ultimately adopts an alternative
other than the preferred alternative, the text of the final rules will
be revised in a manner consistent with the alternative selected. As
discussed in finding G of this preamble, OSM also is proposing to
revise 30 CFR Part 761 to clearly delineate agency responsibilities for
VER determinations for both Federal and non-Federal lands. See proposed
30 CFR 761.13(a).
Adoption of the first alternative would be consistent with the
congressionally mandated doctrine of State primacy as expressed in
sections 101(f) and 503(a) of SMCRA. In particular, section 503(a)
provides for exclusive State jurisdiction over the regulation of
surface coal mining and reclamation operations on non-Federal lands,
except as specified in sections
[[Page 4839]]
521 (Federal oversight) and 523 (Federal lands) and Title IV of the Act
(abandoned mine land reclamation). The first alternative would also
complement OSM's policy of a shared commitment with the States to
achieve the goals of SMCRA. This policy promotes mutual trust and a
spirit of cooperation between OSM and the States and maximizes the
States' role in environmental protection and the regulation of surface
coal mining and reclamation operations within their borders. Subchapter
C of 30 CFR Chapter VII provides that State regulatory programs must be
no less stringent than the Act and no less effective than the
Secretary's regulations in meeting the requirements of the Act. Hence,
there should be no difference in the degree of environmental protection
regardless of whether OSM or the State makes the VER determination.
The second alternative is identical to the first in that the
regulatory authority would be responsible for making VER determinations
for all non-Federal lands, including those within the boundaries of
section 522(e)(1) areas. However, under the second alternative, if the
proposed operation would be located on land within the boundaries of an
area listed in section 522(e)(1), the agency statutorily responsible
for management of the protected lands would have to concur with the
regulatory authority's determination before the determination could
take effect. If adopted, this provision would be added to the
decisionmaking requirements of proposed 30 CFR 761.13(d). This
alternative would largely preserve the State's lead role in the
regulatory process in keeping with the dictates of sections 101(f) and
503(a) of SMCRA while providing additional assurance that the lands
designated in section 522(e)(1) receive the level of protection that
Congress intended; i.e., minimization of surface coal mining operations
on lands that Congress designated as unsuitable for surface coal mining
operations. It is somewhat analogous to 30 CFR 816.116(b)(3)(i) and
817.116(b)(3)(i), which require that the regulatory authority obtain
the concurrence of State agencies responsible for the administration of
forestry and wildlife programs when approving revegetation success
standards for operations with a postmining land use involving woody
plants. Although SMCRA did not require adoption of that provision (just
as SMCRA does not require the concurrence of the land management agency
for VER determinations involving section 522(e)(1) areas), OSM
nevertheless deemed it appropriate to promote attainment of SMCRA's
environmental protection and land reclamation goals.
The chief argument in favor of the third alternative (codification
of the affected by standard) is that the Federal interest in lands
included within the boundaries of section 522(e)(1) areas (national
parks, wildlife refuges, wild and scenic rivers, wilderness areas,
etc.) is not necessarily limited to lands included in the definition of
Federal lands in section 701(4) of the Act. Activities on private
inholdings may, in fact, affect Federal lands. The boundaries of
section 522(e)(1) areas are established by Congress or the President in
recognition of the national significance of these areas and the
uniquely high natural, historical, or cultural values associated with
the lands included therein. Surface coal mining operations on non-
Federal lands within the boundaries of section 522(e)(1) areas could
affect the Federal interest by adversely impacting the values for which
the lands were designated, at least on a short-term basis.
Adoption of the third alternative would afford the Federal
government (the Secretary) a decisionmaking role in VER determinations
for operations on lands in which there is any type of Federal interest,
even if the Federal government has no property interest in the lands in
question. Historically, proponents of this alternative have argued that
reserving this authority to the Secretary would ensure national
consistency and may result in more favorable consideration of arguments
advanced by the Federal land management agency with jurisdiction over
the protected site. Implementation of this alternative would require
delineation of the responsibilities of the various State and Federal
agencies involved (including which agency has authority to make the
affected by determination) and establishment of procedures to
coordinate interagency processing of requests for VER determinations.
The fourth alternative, under which OSM would be responsible for
making all VER determinations for all lands within the boundaries of
section 522(e)(1) areas, is a variation on the affected by standard.
This alternative relies upon the argument that because Congress or the
President established the boundaries of those areas, all lands within
their boundaries must possess values of national significance or
interest. Therefore, surface coal mining operations on any lands within
the boundaries of those areas would automatically affect the Federal
interest in some way. Also, in many cases, non-Federal lands are
intertwined with Federal lands in such a fashion that activities on the
non-Federal lands would have an impact on the Federal lands in terms of
noise, dust, and other environmental factors.
The affected by standard represents current OSM policy. Although
the 1986 suspension notice does not explain the basis or origin of the
policy, it appears that the policy arises from the Government's oral
argument in PSMRL II, Round III-VER, as quoted in the decision. This
argument apparently derives from and expands upon language in the
court's earlier decision in In re Permanent Surface Mining Regulation
II, Round I, No. 79-1144 (D.D.C. July 6, 1984), slip op. at 11-15
(hereinafter ``PSMRL II, Round I''). In that decision, the court noted
that the definition of ``surface coal mining operations'' in section
701(28) of the Act includes a broad ``affected by'' test and that under
section 523(a) of SMCRA and the definition of ``Federal lands program''
in section 701(5), all surface coal mining and reclamation operations
on Federal lands are subject to the Federal lands program.
Because the scope of the decision in PSMRL II, Round I was limited
to Federal lands, and because the court in PSMRL II, Round III-VER did
not review the merits of the position suggested in oral argument by
Government counsel, neither decision compels adoption of an affected by
standard.
Also, in PSMRL II, Round I, the court struck down 30 CFR
740.11(a)(3) (1983) only to the extent that that rule did not apply the
Federal lands program to all Federal lands. Specifically, the court
held that, with respect to the jurisdiction of the Federal lands
program, the Secretary is ``powerless to limit'' the statutory
definition of ``surface coal mining operations'' in section 701(28) and
that, ``if surface mining activities take place on Federal lands, the
Secretary is powerless to exclude them from the Federal lands
program.'' Id. at 14-15. The court rejected the Secretary's argument,
as stated in the preamble to the 1983 rulemaking, that
because of the interaction of the State primacy provision, section
503 of the Act, with section 523 of the Act, the Federal lands
program can be interpreted to exclude State or privately-owned
surface overlying Federally-owned coal where the operation will not
involve mining the Federally-owned coal and where there will be no
disturbance of the Federally-owned estate.
48 FR 6921, February 16, 1983.
[[Page 4840]]
Nothing in this decision would compel extension of the Federal
lands program to lands in which there is no Federal property interest,
i.e., lands in which both the surface and mineral estates are entirely
in non-Federal ownership. There is no indication that the court
contemplated using the affected by test in section 701(28) to extend
the Federal lands program to lands in which there is no Federal
property interest. The court noted that ``[w]hen Congress discussed
state administration of the Act, it virtually always referred to non-
federal lands.'' Id. at 14.
Furthermore, when OSM repromulgated 30 CFR 740.11(a) in 1990 to
address the judicial remand, the agency rejected a commenter's argument
that the court had explicitly endorsed an affected by test to determine
the jurisdiction of the Federal lands program. In declining to adopt an
affected by standard, OSM stated that:
An ``affected by'' test would be very difficult to administer. A
determination that the Federal interest would or would not be
affected would have to be made on a case-by-case basis, and could be
subject to different interpretations.
55 FR 94001, March 13, 1990.
In summary, SMCRA does not appear to require adoption of an
affected by standard. Therefore, OSM's preferred alternative is to
return to the pre-1986 approach, which, in accordance with the language
of section 503(a) of the Act, provided the regulatory authority with
exclusive jurisdiction to make VER determinations for all non-Federal
lands.
Regardless of which alternative is adopted, the Secretary would
retain exclusive authority for making VER determinations for Federal
lands within the boundaries of the areas listed in 30 CFR 761.11(a)(1)
and section 522(e)(1) of the Act and for Federal lands (but not private
inholdings) within the boundaries of any national forest. None of the
alternatives would affect the memorandum of understanding between OSM
and the U.S. Department of Agriculture, Forest Service, which details
the procedures applicable to the processing of requests for VER
determinations involving lands for which the Forest Service owns the
surface estate. Each primacy State (State with a regulatory program
approved under section 503 of SMCRA) would retain the authority to make
VER determinations for non-Federal lands within national forest
boundaries.
Under the first and second alternatives, the regulatory authority
would be responsible for making VER determinations for all non-Federal
lands, including those within the boundaries of section 522(e)(1)
areas. The second alternative includes an additional requirement that
the regulatory authority obtain the concurrence of the agency with
management jurisdiction over the area if the land is located in an area
listed in section 522(e)(1). The third alternative would extend the
Secretary's responsibility to include VER determinations for non-
Federal lands within section 522(e)(1) areas whenever surface coal
mining operations on those lands would affect the Federal interest.
And, under the fourth alternative, the Secretary would be responsible
for making VER determinations for all non-Federal lands within the
boundaries of section 522(e)(1) areas.
None of the alternatives would affect responsibilities for VER
determinations for other types of Federal or non-Federal lands. Except
as provided in the second, third, and fourth alternatives, the
regulatory authority would retain sole responsibility for VER
determinations for non-Federal lands. In primacy States without a
Federal lands cooperative agreement pursuant to 30 CFR Part 745, the
Secretary would remain responsible for making VER determinations for
Federal lands under paragraphs (3), (4), and (5) of section 522(e) of
the Act. In primacy States with a Federal lands cooperative agreement,
the State regulatory authority would remain responsible for making VER
determinations pursuant to paragraphs (3), (4), and (5) of section
522(e) for Federal lands not listed in paragraph (1) or (2) of section
522(e).
2. Which VER Definition Applies to Lands Listed in Paragraphs (e)(1)
and (e)(2) of Section 522?
Under section 503(a) of SMCRA, States with regulatory programs
approved by the Secretary have exclusive jurisdiction (except as
otherwise provided in sections 521 and 523 of the Act) over all surface
coal mining and reclamation operations located or proposed to be
located on non-Federal, non-Indian lands within the State's borders.
Section 523(c) further provides that a State may enter into a
cooperative agreement with the Secretary under which the State also
would assume responsibility for the regulation of mining on Federal
lands within its borders.
The Federal lands rules at 30 CFR 740.11(a) currently specify that,
upon approval of a State regulatory program pursuant to 30 CFR Part 732
or promulgation of a Federal program for a State under 30 CFR Part 736,
that program will apply to all surface coal mining and reclamation
operations on any Federal lands within the State except Indian lands.
Therefore, under the current rules, the Secretary must apply the State
program definition of VER when making VER determinations for Federal
lands in primacy States.
However, on November 20, 1986, at 51 FR 41952-62, OSM published a
document that, among other things, partially suspended the VER
definition promulgated on September 14, 1983. Although the document did
not suspend any provision of 30 CFR Part 740, the portion of the
preamble that discusses the impact of the suspension of the VER
definition on the Federal lands program slightly modifies the general
principle that, consistent with 30 CFR 740.11(a) as discussed in the
preceding paragraph, OSM must use the VER definition set forth in the
applicable State or Federal regulatory program when making VER
determinations for Federal lands. Specifically, the preamble states at
51 FR 41955 that when a state definition relies upon an all-permits
standard, OSM will apply the State standard as if it includes a good
faith component. In addition, the preamble provides that, pending
promulgation of a new Federal definition of VER, OSM will not process
requests for VER determinations involving lands within the boundaries
of units of the National Park System if the approved State program
definition of VER includes a takings standard. (See Part III.C. of this
preamble for an explanation of the all-permits, good faith/all permits,
and takings standards for VER.) At present, the deferral policy affects
only units of the National Park System within Illinois and West
Virginia. OSM adopted this policy as a result of concerns expressed by
the National Park Service.
OSM is now proposing to revise 30 CFR 740.11 (a) and (g) to specify
that the Federal definition of VER will apply whenever a VER
determination involves lands listed in paragraph (e)(1) or (e)(2) of
section 522 of SMCRA, regardless of whether OSM or the State is
responsible for making the determination. Application of the Federal
definition will ensure that requests for VER determinations involving
lands of national interest and importance are evaluated on the basis of
the same criteria.
In primacy States without a Federal lands cooperative agreement
pursuant to 30 CFR Part 745, the Secretary would continue to use the
approved State program definition of VER when making VER determinations
for all other types of Federal lands under paragraphs (3), (4), and (5)
of section 522(e) of the Act.
[[Page 4841]]
Similarly, in States with a Federal lands cooperative agreement, the
State regulatory authority would continue to use the State program
definition of VER when making VER determinations pursuant to paragraphs
(3), (4), and (5) of section 522(e) for Federal lands not listed in
paragraph (1) or (2) of section 522(e) of the Act.
3. What Other Changes Are Proposed?
OSM is proposing to revise 30 CFR 740.4(a)(5) and 30 CFR 745.13(p)
to incorporate references to the provisions of 30 CFR Part 761 that
correspond to section 522(e) of SMCRA. In addition, to conform with the
language of section 522(e) of the Act, which refers only to surface
coal mining operations, OSM is proposing to replace the term ``surface
coal mining and reclamation operations'' in 30 CFR 740.4(a)(4) and
745.13(o) with ``surface coal mining operations.'' This change will
also ensure consistency with the policy set forth in the preamble to a
final rule published on April 5, 1989 (54 FR 13814), which specifies
that SMCRA does not require a permit or other regulatory authority
approval as a prerequisite for conducting reclamation work alone. In
other words, the latter change clarifies that the prohibitions and
restrictions of 30 CFR 761.11(a) and section 522(e) do not apply to
reclamation activities such as the restoration of abandoned mine lands
or bond forfeiture sites.
B. Sections 740.10 and 745.10: Information Collection
The proposed rule changes discussed in III.A. will not alter the
information collection burden associated with Parts 740 and 745.
However, OSM is proposing certain editorial revisions to Secs. 740.10
and 745.10 to maintain consistency with Departmental guidance
concerning the format and content of these sections.
C. Section 761.5: Definition of Valid Existing Rights
1. Statutory and Regulatory History
As discussed in the portion of this preamble entitled ``General
Background on Proposed Rule,'' section 522(e) of SMCRA (30 U.S.C.
1272(e)) prohibits surface coal mining operations on certain lands in
the absence of a waiver or compatibility finding unless a person has
VER to conduct such operations or unless the operation was in existence
on the date of enactment (August 3, 1977). SMCRA does not define or
explain VER, and the legislative history of both section 522(e) in
general and the phrase ``subject to valid existing rights'' in
particular is sparse.
The committee report on H.R. 2, the House version of the
legislation that ultimately became SMCRA, contains the following
discussion:
The language ``subject to valid existing rights'' in section
522(e) is intended, however, to make clear that the prohibition of
strip mining on the national forests is subject to previous court
interpretations of valid existing rights. For example, in West
Virginia's Monongahela National Forest, strip mining of privately
owned coal underlying federally owned surface has been prohibited as
a result of United States v. Polino, 133 F. Supp. 772 (1955). In
this case the court held that ``stripping was not authorized by
mineral reservation in a deed executed before the practice was
adopted in the county where the land lies, unless the contract
expressly grants stripping rights by use of direct or clearly
equivalent words. The party claiming such rights must show usage or
custom at the time and place where the contract is to be executed
and must show that such rights were contemplated by the parties.''
The phrase ``subject to valid existing rights'' is thus in no way
intended to open up national forest lands to strip mining where
previous legal precedents have prohibited stripping.
H.R. Rep. No. 218, 95th Cong., 1st Sess. 95 (1977).
The committee report on S. 7, the Senate version of the legislation
that ultimately became SMCRA, contains a similar discussion, including
the statement that:
The language of 422(e) [now 522(e)] is in no way intended to
affect or abrogate any previous State court decisions. * * * The
phrase ``subject to valid existing rights'' is thus in no way
intended to open up national forest lands to strip mining where
previous legal precedents have prohibited stripping.
S. Rep. No. 218, 95th Cong., 1st Sess. 94-95 (1977).
Thus, the committee reports accompanying the versions of SMCRA
passed by each chamber of Congress emphasize that the VER exemption is
intended to maintain existing State prohibitions on surface coal mining
operations. The reports do not discuss whether or how Congress intended
VER to apply as a means of authorizing operations that SMCRA would
otherwise prohibit. In other words, the reports emphasize that nothing
in SMCRA was intended to create new property rights or mining authority
for surface coal mining operations.
The conference committee report does not address this issue. See
H.R. Conf. Rep. No. 493, 95th Cong., 1st Sess. 110-11 (1977).
On several occasions, a colloquy between Congressmen Udall and
Roncalio during floor debate on H.R. 2, the House bill that eventually
became SMCRA, has been interpreted to mean that one purpose of the VER
provision in SMCRA may be to avoid the compensable takings that could
otherwise result from the application of the prohibitions of section
522(e). Congressman Roncalio proposed an amendment to delete the
sentence in section 601(d) that reads, ``[v]alid existing rights shall
be preserved and not affected by such designation.'' (Section 601
provides for the designation of Federal lands as unsuitable for noncoal
mining.) Congressman Udall, who is generally recognized as the chief
architect of SMCRA, opposed the amendment ``because it takes from the
bill a statement that valid legal rights should be preserved. I do not
think we should do that without paying compensation under the fifth
amendment.'' 123 Cong. Rec. 12,878 (1977). The House rejected the
amendment and retained the language at issue.
However, nothing in this colloquy provides any guidance on how
Congress intended VER under section 522(e) to be defined. Because
section 601 addresses only noncoal mining operations on Federal lands,
Congressman Udall's statement and the sentence in question in section
601(d) probably refer to VER as that term is defined under the General
Mining Law of 1872 and similar Federal laws involving the public
domain. In such statutes, the term VER typically refers to the set of
circumstances under which persons who have unvested interests or
expectations in Federal lands or minerals will be allowed to vest those
interests or expectations as property rights when the United States is
the fee owner. In general, the VER provisions of those statutes apply
to cases in which the Federal government changes the eligibility
criteria or other requirements for vesting of property rights. In such
cases, the term VER refers to circumstances in which a person who has
taken some action to vest a property right in Federal lands or minerals
has the right to complete the process regardless of any statutory or
regulatory changes to the contrary. This type of VER is not analogous
to VER for surface coal mining operations under section 522(e) of
SMCRA, which applies to both private and Federal lands and does not
involve a transfer of a property right from the Federal government to
another party. Instead, VER under section 522(e) of SMCRA concerns a
person's right to use property for a particular purpose (conducting
surface coal mining operations) when that person already has vested
property rights.
[[Page 4842]]
Although the legislative history of SMCRA is largely silent on the
meaning of VER, the extent to which the Federal government and States
may prohibit or restrict the exercise of private property rights
without providing compensation is determined by case law established
pursuant to the Fifth and Fourteenth Amendments to the U.S.
Constitution. Accordingly, in its first rulemaking defining VER, OSM
``endeavored to determine the point at which payment would be required
because a taking had occurred, then to define `valid existing rights'
in those terms, i.e., those rights which cannot be affected without
paying compensation.'' 44 FR 14992-93, March 13, 1979.
OSM's first regulatory definition of VER provided that, except for
haul roads, VER included only those property rights in existence on
August 3, 1977, the owners of which either had obtained all necessary
permits for the proposed surface coal mining operation on or before
August 3, 1977 (the ``all permits'' standard), or could demonstrate
that the coal for which the exemption was sought was both needed for
and immediately adjacent to a surface coal mining operation in
existence on August 3, 1977 (the ``needed for and adjacent'' standard).
44 FR 14902, 15342 (March 13, 1979).
The mining industry, the State of Illinois, the National Wildlife
Federation, and assorted environmental organizations all challenged the
validity of the 1979 definition. Because the plaintiffs presented no
evidence of specific harm, the court declined to rule on the
constitutionality of the definition. However, the court held that a
person who applies for all permits, but fails to receive one or more
through government delay, engenders the same investments and
expectations as a person who has obtained all permits. Specifically,
the court stated that ``a good faith attempt to have obtained all
permits before the August 3, 1977 cut-off date should suffice for
meeting the all permits test.'' In re Permanent Surface Mining
Regulation Litigation I, 14 ERC 1083, 1091 (D.D.C. 1980), (``PSMRL I,
ROUND I'').
To comply with this decision, which partially remanded the all
permits standard, OSM suspended the definition of VER insofar as it
required that all permits have been obtained prior to August 3, 1977
(45 FR 51547-48, August 4, 1980). The suspension document stated that,
pending further rulemaking, OSM would interpret the definition as
including the court's suggestion that a good faith effort to obtain all
permits should suffice to establish VER. This standard is known as the
``good faith/all permits'' standard.
The industry plaintiffs appealed those portions of the District
Court's decision in PSMRL I, ROUND I that were adverse to their
interests. However, the U.S. Court of Appeals for the District of
Columbia Circuit remanded the appeal in 1981 after the government
informed the court that it was reconsidering the 1979 definition. Thus,
the court never reached a decision on the merits of the appeal.
On June 10, 1982 (47 FR 25278), OSM published a proposed rule
setting forth six options for revising the definition of VER. These
options included the good faith/all permits standard, a mineral rights
ownership standard, a mineral rights ownership plus right to mine by
the method intended standard (the ``ownership and authority to mine''
standard), and three variations on the latter two standards. Since the
proposed standards all attempted to establish a clearly defined
``bright line'' test for VER, they became known as ``mechanical
tests.''
Commenters criticized each option as either too broad or too
narrow, and many argued that one or more of the proposed options would
result in a taking of property without just compensation in violation
of the Fifth and Fourteenth Amendments to the U.S. Constitution.
Because the Supreme Court has consistently declined to prescribe set
formulas for determining when a taking will occur, OSM concluded that
any mechanical test likely would be either over-inclusive or under-
inclusive of all potential takings that might result from the section
522(e) prohibitions. Therefore, the final rule promulgated on September
14, 1983 (48 FR 41314) included a definition of VER which provided, in
part, that a person has VER if a prohibition on surface coal mining
operations would result in a compensable taking of that person's
property interests under the Fifth and Fourteenth Amendments to the
U.S. Constitution. This standard is known as the ``takings'' standard.
The revised definition also defined the ``needed for'' aspect of
the needed for and adjacent standard and established the concept of
``continually created VER'' to protect the rights of persons with
mining operations or mineral interests in areas that come under the
protection of section 522(e) sometime after August 3, 1977, as would
occur, for example, when a park is created or expanded or a protected
structure is built after that date.
However, the U.S. District Court for the District of Columbia
subsequently remanded most of the revised definition on procedural
grounds. The court held that the takings standard represented such a
significant departure from the options presented in the proposed rule
that a new notice and comment period was necessary to comply with the
public participation requirements of the Administrative Procedure Act
(5 U.S.C. 553). See PSMRL II, ROUND III-VER, 22 ERC 1557, 1564. The
court also held that the proposed rule failed to provide adequate
notice that it would expand the needed for and adjacent standard to
include properties acquired after the date of enactment of SMCRA
(August 3, 1977). Accordingly, the court remanded both the takings
standard (including that portion of the newly adopted continually
created VER provision that relied on the takings standard) and the
revised needed for and adjacent standard to the Secretary for proper
notice and comment.
In response to this order, on November 20, 1986 (51 FR 41952,
41961), OSM suspended most of the September 14, 1983 definition of VER.
Since the court upheld the concept of continually created VER for
existing operations as set forth in 30 CFR 761.5(d)(1), that portion of
the revised definition was not suspended. As discussed at 51 FR 41954-
55, in the absence of an applicable State program definition of VER,
the suspension notice effectively reinstated the 1980 good faith/all
permits standard and the original (1979) needed for and adjacent
standard, while adding a continually created VER component for
operations in existence at the time a protected feature comes into
existence or is expanded. Except as discussed in Part III.A. of this
preamble, the suspension notice did not impact State program
definitions or their application by either the State or OSM.
On December 27, 1988 (53 FR 52374), OSM proposed the good faith/all
permits standard and the ownership and authority to mine standard as
options for a regulatory definition of VER. Under the ownership and
authority to mine standard, an individual could establish VER by
demonstrating possession of both a right to the coal and the right to
mine it by the method intended, as determined by State law. After
evaluating the comments received, OSM withdrew the entire proposed rule
for further study on July 21, 1989 (54 FR 30557).
As part of that study, OSM and the University of Kentucky College
of Law, in cooperation with the American Bar Association, cosponsored a
national symposium on April 3-4, 1990, on the meaning of VER under
SMCRA. Volume 5, Number 3 of the Journal of Mineral
[[Page 4843]]
Law and Policy, contains the proceedings of this symposium. The
participants did not reach a consensus on how to define VER.
Also in 1990, Belville Mining Company, an Ohio mining firm, filed
suit against the Secretary of the Interior alleging that he had, among
other things, (1) failed to perform a mandatory duty to promulgate the
definition of VER needed to implement section 522(e); (2) in lieu of
regulations, issued various statements and directives on VER (including
the policy set forth in the November 20, 1986 suspension notice)
without notice and comment in violation of the Administrative Procedure
Act; and (3) made VER determinations relying on State regulations
identical to an invalidated Federal regulation. Belville Mining Co. v.
Lujan, No. C-1-89-790 (S.D. Ohio 1991) (``Belville I'').
In a July 22, 1991, decision, the court in Belville I, (1) ordered
the Secretary to begin proceedings to promulgate a final rule defining
VER; (2) enjoined him from enforcing or applying the November 20, 1986
suspension notice or any temporary directive that extends the policy of
the suspension notice; and (3) directed him to immediately begin
proceedings to disapprove State program definitions of VER that rely
upon the all permits standard. On September 21, 1992, pursuant to the
Government's motion for reconsideration, the court narrowed the latter
portion of its ruling to require only the disapproval of the Ohio
program definition of VER insofar as that definition affects Belville
and its VER applications. In doing so, the court accepted the
Government's argument that federal remedy law prohibits the imposition
of injunctive remedies that are beyond the scope of the plaintiff's
individual injuries and related VER applications. Consequently, OSM
interprets the decision barring use of the 1986 policy as applying only
to Ohio. In all other States, OSM continues to adhere to the policy set
forth in the November 20, 1986 suspension document.
On July 18, 1991, OSM proposed to revise the definition of VER by
reinstating the takings standard, the good faith/all permits standard,
and the 1979 version of the needed for and adjacent standard. In
addition, the proposed rule eliminated the separate provisions
concerning continually created VER for existing operations and
incorporated the concept of continually created VER into the other
standards for VER.
OSM did not finalize this rule before the President signed the
Energy Policy Act of 1992 (Pub. L. 102-486, 206 Stat. 2776) (EPAct)
into law on October 24, 1992. Section 2504(b) of that law required
adherence to the VER policy in the November 20, 1986 suspension notice
(51 FR 41952) for one year after the date of enactment. That provision
had the effect of suspending the Belville I decision in Ohio and
halting publication of a new final rule defining VER. Although the
EPAct provision expired on October 24, 1993, the appropriations acts
for the Department of the Interior and related agencies for fiscal
years 1994 and 1995 each included a moratorium on adoption of a new or
revised Federal VER definition or disapproval of existing State program
definitions of VER. The last moratorium (section 111 of H.R. 4602
(1994)) expired October 1, 1995. Congress did not include similar
language in any legislative for fiscal year 1996.
2. Basic Definition
In many respect, the definition of VER being proposed today
resembles the definition previously proposed on July 18, 1991. Both
rules include a basic definition that describes VER as a set of
circumstances under which a person may conduct surface coal mining
operations which section 522(e) of the Act would otherwise prohibit.
The definition also clarifies that, even if a person has VER, surface
coal mining and reclamation operations on these lands are subject to
all other requirements of the Act and the pertinent regulatory program.
The VER exemption does not entitle a person to an exemption from any
other permitting requirements or performance standards. This language
establishes the conceptual framework within which the standards of
paragraphs (a) and (b) of the definition must be applied.
3. Property Rights Demonstration
Like the 1991 proposal, paragraph (a) of the definition of VER at
30 CFR 761.5 in this proposed rule would reinstate the requirement that
a person claiming VER for any type or aspect of surface coal mining
operations other than roads must demonstrate that a legally binding
conveyance, lease, deed, contract, or other document vests that person
with the property right, as of the date that the land came under the
protection of section 522(e) of the Act and 30 CFR 761.11, to conduct
the type of surface coal mining operations intended. Interpretation of
the comments relied upon to establish these rights must be based upon
applicable State statutory or case law, or, if no applicable law
exists, upon custom and generally accepted usage at the time and place
that the documents came into existence.
This provision, which originally appeared in the 1979 definition
but was deleted in 1983 without explanation, should ensure consistency
with section 510(b)(6)(C) of SMCRA, which provides that ``the surface-
subsurface legal relationship shall be determined in accordance with
State law,'' and with the legislative history of the Act, which
indicates that Congress did not intend to enlarge or diminish property
rights under State law. See H.R. Conf. Rep. No. 493, 95th Cong. 1st
Sess. 106 (1977); H.R. Rep. No. 218, 95th Cong. 1st Sess. 95 (1977);
and S. Rep. No. 128, 95th Cong. 1st Sess. 94-95 (1977). The legislative
history frequently references United States v. Polino, 131 F. Supp. 772
N.D. W.Va. 1955), in which the court held that the right to use surface
mining methods to recover privately owned coal underlying Federal lands
within the Monongahela National Forest depends upon the language of the
deed, the interpretation of which is a matter of State law.
The property rights demonstration requirement being proposed today
differs slightly from the 1979 rule. First, it incorporates the concept
of continually created VER, which means that the property rights must
be vested as of the date that the land comes under the protection of
the Act. In some cases, this date may be later than the date of
enactment of SMCRA (August 3, 1977), which is the date referenced in
the 1979 rule. The proposed change recognizes that houses, churches,
roads, parks, and other features protected by section 522(e) come into
existence and are expanded on an ongoing basis. Because the protection
of section 522(e) is not limited to those features in existence on the
date of enactment, VER for lands coming under the protection of the Act
after the date of enactment should not be limited to property rights in
existence on the date of enactment.
Second, the proposed rule no longer limits eligible property rights
to the right to produce coal. Property rights (and hence VER) may exist
for (1) surface coal mining operations such as coal preparation plants
and coal mine waste disposal sites that do not involve coal extraction,
and (2) non-extractive activities, facilities, and surface disturbances
(such as support facilities, ventilation shafts, and topsoil storage
areas) associated with coal-producing surface coal mining operations.
As in the 1979 rule, the property rights demonstration requirement
does not necessarily apply to roads. VER standards for roads are set
forth in paragraph (b) of the proposed definition.
[[Page 4844]]
4. Good Faith/All Permits Standard
In addition to the property rights demonstration, the proposed
definition requires that a person claiming VER for surface coal mining
operations other than roads meet either the good faith/all permits
standard of paragraph (a)(1) or the need for and adjacent standard of
paragraph (a)(2), which is discussed at length under a subsequent
heading in this preamble.
The good faith/all permits standard provides that a person has VER
if, prior to the date the land came under the protection of 30 CFR
761.11 and section 522(e) of the Act, that person or a predecessor in
interest had obtained, or made a good faith effort to obtain, all State
and Federal permits and other authorizations required to conduct
surface coal mining operations. Potentially necessary permits and
authorizations include, but are not limited to, State mining permits,
National Pollutant Discharge Elimination System (NYDES) permits, U.S.
Forest Service special use permits, air quality plan approvals, U.S.
Mine Safety and Health Administration ground control plan approvals,
and (for some types of facilities) building permits and zoning charges.
Expired or lapsed permits or authorizations are not acceptable. If no
permits were required prior to the enactment of SMCRA, none are needed
to establish VER, provided the person obtained, or made a good faith
attempt to obtain, all necessary authorizations to operate from all
appropriate State and Federal agencies by the pertinent date. See the
Greenwood Land and Mining Company and Mower Lumber Company VER
determinations at 46 FR 36758 and 45 FR 52467, respectively.
OSM believes that the good faith/all permits standard is the
standard most consistent with the legislative history of section
522(e), which indicates that Congress' purpose in enacting section
522(e) was to prevent new surface coal mining operations in the listed
areas, either to protect human health, safety, and general welfare or
because the environment values and other features associated with these
areas are generally incompatible with surface coal mining operations.
See S. Rep. No. 128, 95th Cong. 1st Sess. 94 (1977). The two other
principal potential standards (the takings standard and the ownership
and authority to mine standard) would be either far more complex and
difficult to administer (the takings standard) or much less protective
of the areas listed in section 522(e) (the ownership and authority to
mine standard).
Almost all commenters from every interest group opposed the takings
standard when OSM first formally proposed it in 1991. In particular,
they objected to its subjective or unpredictable nature and the
potentially onerous information collection and analytical burdens it
would place on persons seeking a VER determination and the agency
making the determination. The ownership and authority to mine standard
arguably would be less complex and more objective than the takings
standard, but it would offer no protection to section 522(e) lands
beyond that afforded by the right-of-entry provisions of the permitting
requirements applicable to surface coal mining and reclamation
operations on all lands. Such a result most likely would not be in
accordance with congressional intent in enacting the prohibitions of
sections 522(e). See S. Rep. No. 128, 95th Cong. 1st Sess. 94 (1977).
OSM recognizes that the U.S. Court of Appeals for the District of
Columbia Circuit found that the legislative history of SMCRA suggests
that ``Congress did not intend to infringe on valid property rights or
effect takings through section 522(e).'' Nat'l Wildlife Fed'n v. Hodel,
839 F.2d 694, 750 (D.D.C. 1988) (``NWF''). However, OSM does not
believe that this statement militates against adoption of a good faith/
all permits standard for VER. As discussed at length in the portion of
this preamble entitled ``Statutory and Regulatory History,'' in PSMRL
I, ROUND I, supra, at 14 ERC 1091, the court declined to find the
closely related 1979 all permits standard unconstitutional. The
definition being proposed today is consistent with that court's
decision that ``a good faith attempt to have obtained all permits
before the August 3, 1977 cut-off date should suffice for meeting the
all permits test.'' Furthermore, in Hodel v. Virginia Surface Mining &
Reclamation Ass'n, 452 U.S. 264, 296 n.37 (1981) (``Hodel''), the U.S.
Supreme Court stated that, while nothing in the statutory language of
SMCRA or its legislative history would compel adoption of an all
permits standard for VER, section 522(e) ``does not, on its face,
deprive owners of land within its reach of economically viable use of
their land since it does not proscribe nonmining uses of such land.''
There is nothing in court decisions to date, the statute, or the
legislative history that would preclude OSM from exercising its
discretion to adopt a good faith/all permits standard for VER under
section 522(e).
Section 522(e) is a form of land use regulation that may be
considered analogous to certain provisions of zoning law. VER under
section 522(e) is generally analogous to those provisions of land use
laws that define when a person attains a vested right to a particular
land use regardless of subsequent changes in zoning ordinances that
would otherwise prohibit or restrict that use. State laws vary widely
with respect to when a person develops a vested interest in a
particular land use, but mere ownership is rarely sufficient. Some
States require that a person both obtain all necessary permits and make
significant expenditures in reliance on those permits. Others require
that a person reach a certain point in the permit process or make
substantial good faith expenditures based on the existing zoning before
he or she develops a vested interest in uses allowed under that zoning.
The good faith/all permits standard for VER has a similar effect
and is based in part on a similar rationale. Therefore, OSM anticipates
that, in any review of the validity of a final VER standard, a court
would consider principles analogous to those that have guided judicial
decisions on challenges to the validity of zoning ordinances and
similar land use regulatory provisions. In general, the courts have
upheld land use restrictions as a legitimate exercise of the police
power under the U.S. Constitution.
In making VER determinations, OSM and 20 of the 24 States with
primacy rely upon a VER definition that includes either the all permits
standard or the good faith/all permits standard. Apart from the
Belville litigation and The Sunday Creek Coal Co. v. Hodel, No. C-2-88-
0416 (S.D. Ohio, June 2, 1988) (``Sunday Creek''), OSM is aware of no
cases in which the State or Federal courts have found that the good
faith/all permits standard or an agency determination that a person did
not have VER under the good faith/all permits standard was invalid on
the basis of a conclusion that the standard or determination would
result in a compensable taking of a property interest under the Fifth
and Fourteenth Amendments to the U.S. Constitution. Belville and Sunday
Creek are isolated cases that do not establish precedent outside the
Southern District of Ohio.
OSM believes that the good faith/all permits standard proposed in
this rule is both reasonable and consistent with congressional intent.
As discussed above, there is a lack of clear or directly applicable
legislative history with respect to how Congress intended the VER
exemption in section 522(e) of the Act to be interpreted. In the
absence of
[[Page 4845]]
such guidance or direction, the good faith/all permits standard would
balance a number of statutory purposes and policy objectives for this
rulemaking, including ensuring basic fairness, establishing a
reasonable standard that is practicable to administer, providing
substantial environmental protection to congressionally designated
areas, encouraging efficient removal of coal resources, minimizing
disruption of existing State regulatory programs and expectations
engendered thereunder, and avoiding across-the-board or indiscriminate
compensable takings of property interests.
5. ``Needed for and Adjacent'' Standard
The ``needed for and adjacent'' standard in the definition of VER
promulgated on March 13, 1979 (44 FR 14902, 15342) provided that any
person who owned an ongoing surface coal mining operation for which all
permits were obtained prior to August 3, 1977, possessed VER for coal
immediately adjacent to that operation if the person had a property
right to the coal as of August 3, 1977, and if he or she could
demonstrate that the coal was needed for the ongoing operation. The
National Wildlife Federation challenged this standard as unduly
expanding the scope of the VER exemption beyond that intended by
Congress. However, the court upheld the standard, finding it to be ``a
rational method of allowing mining when denial would gravely diminish
the value of the entire mining operation, thereby constituting a taking
under Supreme Court declarations.'' PSMRL I, Round I, 14 ERC 1083,
1091-92 (D.D.C. 1980).
The revised definition of VER promulgated on September 14, 1983 (48
FR 41315-16) modified the ``needed for and adjacent'' standard by
deleting the requirement that the owner of the operation have acquired
the property rights to the coal for which the exemption is sought prior
to August 3, 1977 (although OSM's response to a comment concerning this
issue at 48 FR 41316 suggests that the deletion may have been
unintentional). In that rulemaking, OSM also defined ``needed for'' as
meaning that the extension of mining to the coal in question is
essential to make the surface coal mining operation as a whole
economically viable.
The National Wildlife Federation challenged these changes as being
both procedurally and substantively improper. The U.S. District Court
for the District of Columbia agreed in part, finding that the agency
had failed to comply with the Administrative Procedure Act (5 U.S.C.
553) by not affording the public adequate notice and opportunity for
comment on these two changes. The court did not rule on the merits of
the revised standard. PSMRL II, Round III-VER, 22 ERC 1566-67. In
response, on November 20, 1986 (51 FR 41952, 41961), OSM suspended
paragraph (c) of the 1983 definition of VER. In the preamble to the
suspension notice, OSM stated that, pending adoption of a new rule, it
would rely upon the approved State program definition in primacy
States. In non-primacy States, the suspension had the effect of
restoring the 1979 version of the needed for and adjacent standard,
which did not contain a definition of ``needed for.'' 51 FR 41954-55,
November 20, 1986.
On July 18, 1991, OSM proposed to revise the 1983 definition by
reinstating the property rights ownership requirement and removing the
sentence defining the ``needed for'' component of the standard. In the
preamble to this proposed rule, OSM stated that the explanation of
``needed for'' in the 1983 definition did not substantively clarify the
meaning or application of the needed for and adjacent standard. In
addition, OSM proposed to replace the requirement that both the
property rights and the operation have been in existence on August 3,
1977, with a requirement that both have been in existence on the date
that the land for which the exemption is sought came under the
protection of 30 CFR 761.11 and section 522(e) of the Act. The latter
change reflects the concept of continually created VER, which was
upheld in NWF, supra, 839 F.2d 694, 750.
With two significant exceptions, the definition being proposed
today substantively resembles the one proposed on July 18, 1991. One
change clarifies that the standard applies to land, not just coal,
needed for an existing operation. Land may be essential to the
operation for reasons other than the coal it contains. For example, an
operator has little leeway in the location of ventilation shafts for
underground mines.
Also, OSM has attempted to eliminate any ambiguity caused by use of
the term ``ongoing surface coal mining operation'' in the 1979 and 1983
rules. In 1991, OSM essentially proposed to replace ``ongoing'' with
``existing.'' However, comments received indicated some uncertainty as
to whether this term included inactive or approved but unstarted
operations. OSM believes that there is no rational basis for
differentiating between active operations and those which are inactive
or approved but unstarted. Both engender the same type of investment-
backed expectations and rely upon the same economic planning
considerations. Both also require a significant resource outlay.
Accordingly, OSM is now proposing to define this standard to include
land needed for and adjacent to operations for which all permits had
been obtained, or a good faith effort to obtain such permits had been
made, as of the date the section 522(e) prohibitions became applicable
to the land in question.
Under the revised needed for and adjacent standard being proposed
today, VER would exist if a person can (1) make the property rights
demonstration required by paragraph (a) of the definition, and (2)
document that the land is both needed for and immediately adjacent to a
surface coal mining operation for which all State and Federal permits
and other authorizations required to conduct surface coal mining
operations had been obtained, or a good faith effort to obtain all
necessary permits and authorizations had been made, prior to the date
the land came under the protection of section 522(e) and 30 CFR 761.11.
OSM does not intend for this standard to authorize surface coal mining
operations on bond forfeiture sites, sites with expired or revoked
permits (including permits that have expired under section 506(c) of
SMCRA), abandoned sites, or long-dormant facilities for which no permit
was required prior to the enactment of SMCRA and which would have to be
substantially or completely reconstructed before usage could resume.
To avoid subverting the congressional prohibitions in section
522(e), OSM believes that VER determinations under this standard must
be based on an analysis of how denial of the claim would affect the
value, as of the date the land came under the protection of 30 CFR
761.11 and section 522(e), of the operation as a whole from the time it
began operation, not merely whether the additional land or coal would
prolong the operation's life or provide increased profits. Otherwise,
this standard could be used to justify unlimited expansion of
operations adjoining protected areas, which could effectively nullify
the prohibition. This approach receives implied support in PSMRL I,
ROUND I, 14 ERC 1083, 1091-92, in which the court upheld the needed for
and adjacent standard as a reasonable means of avoiding compensable
takings. OSM seeks comment on whether the rule language should be
revised to explicitly incorporate this interpretation.
[[Page 4846]]
6. VER for Access and Haul Roads
As in 1991, OSM is proposing to revise paragraph (b) of the
definition of VER to incorporate the concept of continually created
VER, which was previously promulgated as paragraph (d) of the September
14, 1983 definition and upheld in subsequent litigation. The revised
definition would recognize VER for the use or construction of an access
or haul road as part of a surface coal mining operation if (1) the road
was in existence on the date the land upon which it is located came
under the protection of section 522(e), (2) a right of way or easement
for the road was properly recorded as of that date, (3) the regulatory
authority had issued a permit for an access or haul road in that
location as of the applicable date, or (4) the person can demonstrate
the existence of VER under the standards of paragraph (a) of the
definition. The last alternative is a new addition intended to clarify
that, because the definition of surface coal mining operations in 30
CFR 700.5 includes access and haul roads, a person may also demonstrate
VER for such roads using the same criteria applicable to other types of
surface coal mining operations and activities.
OSM also is proposing to expand the scope of paragraph (b) to apply
to access roads. Previous versions of this definition have applied only
to haul roads. None of the earlier preambles explains why access roads
were not included, but a reading of the 1979 preamble suggests that
this failure may have been an accidental by-product of the fact that
the comments received focused exclusively on haul roads. That preamble
sets forth the following rationale for allowing existing roads to be
used as haul roads, regardless of location or prior use:
OSM believes that it is less damaging [to the environment] to
use existing roads, whether or not previously used for coal haulage,
than to require construction of additional roads. Therefore, all
roads in existence as of August 3, 1977, have valid existing rights.
44 FR 14993, March 13, 1979.
This line of reasoning would apply equally well to the use of
existing roads as access roads--perhaps more so, since roads used
solely for access generally involve less massive construction impacts
and are usually used less intensively than haul roads. Consequently,
the environmental impacts of access roads are usually less severe than
those associated with haul roads, which often carry heavy truck and
equipment traffic resulting in significant noise, dust, vibration, and
other problems. In addition, permits and recorded rights of way for
access roads are no less legitimate than permits and recorded rights of
way for haul roads. Accordingly, OSM is proposing to apply the
standards of paragraph (b) to both access and haul roads.
7. Transferability of VER
As in 1991, OSM is proposing to reaffirm that VER are transferable,
primarily because the proposed definition of VER includes a property
rights component. In essence, OSM is proposing to consider VER as being
attached to the property to which those rights pertain rather than as
being valid only for the person claiming such rights or, with the
exception of VER under the needed for and adjacent standard, for a
specific operation. (VER under the needed for and adjacent standard
would attach jointly to both the property and a specific surface coal
mining operation.) Once attached to the property, VER would become
subject to whatever State property law exists concerning rights of
alienation as an element of property ownership. SMCRA (especially
section 510(b)(6)) generally defers to State property law.
The VER exemption is analogous to a zoning variance, which, in the
interest of equity, allows an otherwise prohibited use to occur under
certain fact-specific circumstances even though that use was not in
existence on the land in question at the time the zoning ordinance took
effect. Like VER under the proposed rule, zoning variances typically
convey with the title to the property even if the rights conferred by
the variance have not been exercised.
However, the alienation or transfer of property is not an absolute
right. Certain interests in real property, such as leases, licenses or
profits a prendre, may be inherently nontransferable or of limited
transferability, either by their terms or by operation of State law. If
a person's coal property interests are of this nature, then any VER
resting on those interests would also be nontransferable. Furthermore,
it is possible that a State could designate VER under SMCRA as
nontransferable as a matter of law.
In the rule being published today, OSM is proposing to reaffirm the
transferability of VER to the extent that the underlying property
rights are transferable under State law. Therefore, to the extent that
State law allows the sale or other transfer of the underlying coal
rights or other pertinent property rights, a person with VER may sell
or transfer the VER to another person as an appurtenance to the coal or
other property rights. Nothing in this rule is intended to create
rights that do not already exist in State law or expand upon those that
do. Individual States may prohibit VER transfers to the extent that
they have the authority to do so under State law.
8. Continually Created VER: VER When Prohibitions Come Into Effect
After August 3, 1977
On September 14, 1983, OSM added paragraph (d) to the definition of
VER to address situations where the prohibitions of section 522(e)
become applicable to a particular parcel after August 3, 1977, the date
of enactment of SMCRA. This paragraph, which introduced the concept of
continually created VER, provides that:
Where an area comes under the protection of section 522(e) of the
Act after August 3, 1977, valid existing rights shall be found if--
(1) On the date the protection comes into existence, a validly
authorized surface coal mining operation exists on that area; or
(2) The prohibition caused by section 522(e) of the Act, if applied
to the property interest that exists on the date the protection comes
into existence, would effect a taking of the person's property which
would entitle the person to just compensation under the Fifth and
Fourteenth Amendments to the United States Constitution.
Paragraph (d)(1) extends the existing operation exemption to
validly authorized surface coal mining operations in existence on the
date the land on which they are located comes under the protection of
section 522(e). Paragraph (d)(2) was intended to extend the VER
exemption in a parallel manner to situations in which operations were
not yet in existence when the land came under the protection of section
522(e).
In PSMRL II, Round III-VER, the court upheld the basic concept of
continually created VER, but remanded paragraph (d)(2) because it
incorporated the takings standard, which, the court ruled, had not been
subject to proper notice and opportunity for comment under the
Administrative Procedure Act. 22 ERC 1564. To comply with the court's
decision, OSM subsequently suspended paragraph (d)(2) to the extent
that it incorporated the takings standard. 51 FR 41961, November 20,
1986.
The VER definitions proposed on December 27, 1988, and July 18,
1991, would have deleted paragraph (d) in favor of incorporating the
concept of continually created VER into each of the VER standards set
forth in the other paragraphs of the definition. However, this change
would have had the effect of eliminating continually created VER for
existing operations since the
[[Page 4847]]
proposed definitions included no counterpart to paragraph (d)(1) of the
1983 definition. This clearly was not the intent of the proposed rules.
As stated in the preamble to the 1991 proposal, although the
continually created VER provision adopted in 1983 ``is rewritten and
reorganized in this proposal, the basic intent and application are not
changed.'' 56 FR 33156, July 18, 1991.
Therefore, although the definition of VER being proposed today is
similar to the 1991 proposal in that the concept of continually created
VER has been incorporated into each of the individual VER standards in
paragraphs (a) and (b) of the definition, OSM also is proposing to
revise the existing operation exemption, now proposed for
recodification as 30 CFR 761.11(b), to incorporate language consistent
with paragraph (d)(1) of the 1983 definition. Specifically, proposed 30
CRF 761.11(b) provides that the prohibitions of 30 CFR 761.11(a) do not
apply to (1) surface coal mining operations for which a valid permanent
program permit exists on the date that the land came under the
protection of 30 CFR 761.11(a) or section 522(e) of SMCRA, or (2) other
surface coal mining operations that were validly authorized as of that
date. Further discussion of this proposed change appears in Part
III.E.1. of this preamble, which addresses the proposed revisions to 30
CFR 761.11 with respect to the existing operation exemption.
D. Section 761.5: Definition of ``Surface Coal Mining Operations Which
Exist on the Date of Enactment''
In a nonsubstantive editorial change, OSM is proposing to remove
the term ``surface coal mining operations which exist on the date of
enactment'' and its definition from 30 CFR 761.5. Application of the
concept of continually created VER to the existing operation exemption
will render this term obsolete. Two variations of this term appear in
the current versions of 30 CFR 761.12(h) and the introduction to 30 CFR
761.11, but they are not used in the revised version of Part 761 being
proposed today.
E. Section 761.11: Areas Where Mining Is Prohibited or Limited
OSM is proposing to reorganize and revise this section for clarity
and consistency with revisions to other sections of 30 CFR Part 761.
Except as discussed below, no substantive changes in meaning are
intended.
1. Existing Operation Exemption
As discussed in the portion of this preamble addressing continually
crated VER, OSM is proposing to recodify paragraph (d)(1) of the 1983
definition of VER, which establishes continually created VER for
operations in existence on the date that land comes under the
protection of section 522(e) after August 3, 1977, as part of the
existing operation exemption. In addition, because several commenters
on the 1991 proposal reflected confusion over the scope of the current
existing operation exemption, OSM is proposing to adopt clarifying
language. To accommodate these changes, OSM is proposing to move the
exemption from the introductory portion of 30 CFR 761.11 to a separate
paragraph (b) within the section.
Proposed 30 CFR 761.11(b) provides that the prohibitions of 30 CFR
761.11(a) do not apply to surface coal mining operations for which a
valid permanent regulatory program permit is in existence on the date
that the land comes under the protection of 30 CFR 761.11(a) or section
522(e) of the Act. To address situations in existence before completion
of the transition between the initial and permanent regulatory
programs, the rule further specifies that the exemption includes all
other validly authorized operations in existence as of that date,
although this provision has no prospective applicability apart from the
one remaining active initial program mine. Illegal (``wildcat'')
operations and operations for which the permit has expired or been
revoked do not qualify.
In all cases, the proposed rule limits the scope of the exemption
to lands for which the permittee or operator had the right under State
property law, as demonstrated in accordance with 30 CFR 778.15, to
enter and conduct surface coal mining operations as of the date the
land in question came under the protection of 30 CFR 761.11(a) or
section 522(e) of SMCRA. By limiting the existing operation exemption
in this fashion, the proposed rule effectively requires that the
permittee seek and obtain a VER determination before initiating surface
coal mining operations on any lands within the permit area for which no
right of entry has been obtained as of the date the land comes under
the protection of section 522(e). This additional step should ensure
that the permittee demonstrates possession of the necessary property
rights, including, when appropriate, a knowing waiver from the owner of
the protected feature in accordance with 30 CFR 761.11(a) (2), (3),
(4), or (5), before initiating surface coal mining operations in a
protected area.
On-site activity or physical disturbance of the protected land is
not a prerequisite for the exemption. This interpretation is consistent
with the underlying language in section 522(e), which exempts surface
coal mining operations ``which exist on the date of enactment of this
Act.'' Nothing in the term ``exist'' requires on-site activity or
physical disturbance. In addition, this interpretation is consistent
with the language of section 522(a)(6), which enumerates lands exempt
from designation as unsuitable for mining and which the legislative
history also characterizes as an existing operation exemption.
Specifically, section 522(a)(6) exempts all ``lands on which surface
coal mining operations are being conducted on the date of enactment of
this Act or under a permit issued pursuant to this Act * * *.'' The
legislative history of this provision states that ``an existing mine
might not be one actually producing coal.'' H.R. Rep. No. 218, 95th
Cong. 1st Sess. 94-95 (1977).
The proposed rule is consistent with the language of paragraph
(d)(1) of the 1983 VER definition, its preamble, and the rationale used
by the courts in upholding the concept of continually created VER. In
particular, the 1983 preamble states that paragraph (d)(1) was intended
to prevent the disruption of mining or deprivation of the right to mine
after the permittee made the substantial investments required to obtain
a permit. By way of explanation, the preamble stated that to do
otherwise would be totally inconsistent with the framework of
protection that SMCRA provides to both permittees and citizens:
Without the protection provided by this provision, it would be
possible, for instance, for a person who objected to a mining
operation to move a mobile home to the edge of the property
adjoining a mine, and occupy it, thereby forcing the operator to
cease all operations within 300 feet of this occupied dwelling. OSM
does not believe that this is the intended result of section 522(e)
of the Act. Congress provided the public ample opportunity to review
and make objections to any proposed mining operation through the
permitting process. The regulatory authority is required to seek and
consider the views of the public [before] it issues or denies a
permit. To allow any person the opportunity to take extraordinary
means to disrupt mining or deprive the operator of a right to mine
after the operator has made the substantial investments required to
obtain a permit and begin operations is totally inconsistent with
the framework of protection the Act gives to both operators and
citizens.
48 FR 41315, September 14, 1983.
OSM has adhered to these principles in developing the proposed
rule.
In upholding paragraph (d)(1) of the 1983 definition, the U.S.
Court of Appeals for the District of Columbia
[[Page 4848]]
Circuit relied primarily on language in the legislative history of
section 522 indicating that Congress intended to allow the continuance
of mines already in existence at the time land is determined to be
unsuitable for mining. The court held that this rule ``should apply
equally to mines in existence as of August 3, 1977, or to mines
subsequently started on lands which have permits approved for mining.''
NWF, supra, 839 F.2d 694, 750. The court rules that the operative
principle in determining whether an operation is exempt from the
section 522(e) prohibitions is whether it had been ``lawfully
established'' before the land came under the protection of section
522(e).
The rule being proposed today would consider an operation to be
lawfully established upon issuance of a permanent program permit for
lands for which the permittee has procured the necessary right of entry
under 30 CFR 778.15. This approach is consistent with 30 CFR 774.13,
which provides that the regulatory authority cannot summarily revise or
revoke an approved permanent program permit. Therefore, when lands
within an approved permanent program permit come under the protection
of section 522(e) after permit issuance, the permittee would appear to
have the right to continue to operate on those lands under the existing
operation exemption unless the regulatory authority orders the
permittee to revise the permit to remove those lands from the permit
area in accordance with the procedures and criteria of 30 CFR 774.13.
If a person believes that a permit has been improperly issued because a
protected feature came into existence prior to rather than after permit
approval, he or she has the option of either filing a timely challenge
to approval of the permit application or submitting a complaint to the
regulatory authority. If the permit is ultimately found to be
defective, the regulatory authority must require that the permittee
revise the permit in accordance with 30 CFR 774.13.
With respect to initial program operations (operations subject to
Subchapter B of 30 CFR Chapter VII) and operations conducted prior to
the effective date of the initial regulatory program, the existing
operation exemption includes all lands disturbed by the operation as of
the date the land came under the protection of section 522(e) or 30 CFR
761.11(a). However, except for one operation on Indian lands, OSM and
the States have completed the repermitting of initial program
operations in accordance with 30 CFR 773.11 and section 502(d) of the
Act. All initial program surface coal mining and reclamation operations
on non-Indian lands that were not repermitted under the permanent
program (and thus remain subject to the initial regulatory program) are
now abandoned, reclaimed, or in the process of reclamation. Under 30
CFR 773.11(a), no further coal removal or additional site disturbance
for purposes of conducting surface coal mining operations is
permissible unless the person first obtains a permanent program permit.
The existing operation exemption is similar to a nonconforming use
exemption under State zoning law in that the right to use the site for
a nonconforming use (in this case, the right to conduct surface coal
mining operations) is extinguished when the use (in this case, the
existing operation) ceases. Any person seeking to repermit the site of
an abandoned or reclaimed initial program operation must comply with
the prohibitions and restrictions of 30 CFR 761.11(a) as a prerequisite
for obtaining a permanent program permit.
Since all States with the potential for coal production in the
foreseeable future now have either a State or Federal regulatory
program approved under SMCRA, there will be no new surface coal mining
operations under the initial regulatory program. Therefore, in effect,
both the existing and proposed rules will be applied only to operations
with permanent program permits.
2. Removal of Paragraph (h)
As in 1991, OSM is proposing to remove 30 CFR 761.11(h), which
provides that no coal exploration or surface coal mining operations
would be licensed or permitted on Federal lands within the National
Park System, the National Wildlife Refuge System, the National System
of Trails, the National Wilderness Preservation System, the Wild and
Scenic Rivers System, or National Recreation Areas unless specifically
authorized by acts of Congress. OSM promulgated this provision on
September 14, 1983 (48 FR 41349), in response to numerous comments from
persons concerned that mining or drilling would occur in national parks
and other areas protected under section 522(e)(1) of the Act. Industry
subsequently challenged the rule on both procedural and substantive
grounds. Upon review, the court remanded the rule to the Secretary
because it found that he had failed to provide adequate notice and
opportunity for comment under the Administrative Procedure Act (5
U.S.C. 553). In its opinion, the court also noted that there appeared
to be no rational basis for distinguishing between Federal and non-
Federal lands in this context since section 522(e)(1) prohibits surface
coal mining operations on any lands within the statutorily protected
areas. PSMRL II, Round III-VER, 22 ERC 1557, 1565 (D.D.C. 1985).
On November 20, 1986, OSM suspended 30 CFR 761.11(h) to comply with
the court's order (51 FR 41952, 41956). As a result of the suspension,
neither Federal nor private lands are subject to the absolute
prohibitions found in 30 CFR 761.11(h).
On September 22, 1988, the Department of the Interior issued a
policy statement setting forth the actions the Department would take to
prevent surface coal mining operations in section 522(e)(1) areas. This
policy statement, which was published in the Federal Register at 53 FR
52384 on December 27, 1988, in conjunction with a previous proposed
rule concerning VER, remains in effect even though OSM subsequently
withdrew the proposed rule on July 21, 1989. The policy statement
commits the Department, subject to appropriation, to use available
authorities (including exchange, negotiated purchase and condemnation)
to seek to acquire mining rights within the areas listed in 30 CFR
761.11(h) whenever a person attempts to exercise VER. The policy
applies to all lands within the boundaries of the areas listed in
section 522(e)(1), not just to Federal lands.
The policy statement will not, and is not intended to, provide
protection equivalent to that afforded by 30 CFR 761.11(h). As the
court noted in its decision remaining paragraph (h), ``an absolute
proscription on any mining, permitting, licensing or exploration within
the 522(e)(1) protected areas might run directly contrary to the
statute's language that such proscriptions are subject to VER.'' PSMRL
II, Round III-VER at 1565.
Accordingly, OSM believes that it would be inappropriate to
repromulgate the prohibitions in paragraph (h). The 1988 policy
statement expresses the Secretary's intent to acquire privately held
coal interests in areas of national significance to the extent
financial or other resources are available to do so. Any further
commitment would, in most cases, exceed the Secretary's legal authority
since most land acquisition actions are subject to congressional
authorization and appropriation.
F. Section 761.12: Coordination With Permitting Process; Waiver
Requirements and Procedures
OSM is proposing only minor revisions and editorial changes in
[[Page 4849]]
Sec. 761.12. These revisions include correcting references to
Sec. 761.11, adding a reference to newly proposed Sec. 761.13,
combining existing paragraphs (a) and (b)(1) and revising them for
consistency with Sec. 761.11. In addition, to be consistent with
changes in terminology adopted as part of the permitting rules
promulgated on September 28, 1983 (48 FR 44349), OSM is proposing to
replace the obsolete term ``complete application'' in paragraph (a)
with its current equivalent, ``administratively complete application.''
OSM also is proposing to revise paragraph (a) to clarify that its
requirements apply to applications for incidental and other boundary
revisions. Although OSM always has interpreted the somewhat ambiguous
term ``application for a surface coal mining operation permit'' in 30
CFR 761.12 as including applications for all types of permit boundary
revisions, this change will remove any question as to its meaning.
Removal of this ambiguity should enhance adherence to the prohibitions
of section 522(e) and 30 CFR 761.11(a).
As in 1991, OSM is proposing to revise paragraph (c) to specify
that requests for the findings required prior to the approval of
surface coal mining operations on Federal lands in national forests may
be submitted in advance of, and separate from, the permit application.
OSM's experience in the 18 years since the enactment of SMCRA has shown
that evaluation of the entire permit application is not essential to
preparation of the requested findings. However, in response to a
concern raised by the U.S. Environmental Protection Agency about the
1991 proposal's complete lack of information requirements for such
requests, OSM is proposing to specify that the requester remains
responsible for submitting sufficiently comprehensive information about
the nature and location of the proposed operation to enable OSM and
other responsible parties to properly evaluate the request and prepare
adequately documented findings.
In 1991, OSM proposed to add a new paragraph (a)(1) to 30 CFR
761.12 to establish information requirements for requests for VER
determinations. However, section 761.12 pertains to permitting
requirements and procedures. Because the rules being proposed today
(like the preambles to both the 1983 final rule and the 1991 proposed
rule) state that requests for VER determinations may be submitted and
processed in advance of preparation and submission of a permit
application, OSM is now proposing to place these information
requirements in a new Sec. 761.13, which addresses only the submission
and processing of requests for VER determinations. For the same reason,
OSM also is proposing to move existing 30 CFR 761.12(h), the VER
determination appeal provisions proposed as 30 CFR 761.12(i) in 1991,
and the sentence in existing 30 CFR 761.12(b)(2) that pertains to
notification of the National Park Service and the U.S. Fish and
Wildlife Service to the new section.
G. Section 761.13: Submission and Processing of Requests for Valid
Existing Rights Determinations
This proposed new section consists of submission and documentation
requirements for requests for VER determinations; notice, comment,
public participation, and decision requirements for the processing of
requests for VER determinations; and provisions for administrative and
judicial review of decisions on requests for VER determinations. Major
portions of this section previously appeared in, or were proposed in
1991 for addition to, 30 CFR 761.12. Other portions were added in
response to comments received on the 1991 proposed rule or to provide
consistency with rule changes in other parts of 30 CFR Chapter VII.
These requirements are intended to provide the procedural framework
necessary to ensure that the prohibitions of section 522(e) are fully
and properly implemented in the manner intended by Congress. They also
should ensure that all affected persons receive equitable treatment and
have adequate notice and opportunity to participate in the
decisionmaking process.
1. Paragraph (a): Which Agency Will Process a Request for a VER
Determination?
Proposed 30 CFR 761.13(a) provides that OSM will make all VER
determinations for Federal lands within the boundaries of the areas
listed in 30 CFR 761.11(a) (1) and (2), which correspond to the areas
listed in paragraphs (e)(1) and (e)(2) of section 522 of SMCRA. VER
determinations for all other lands, including non-Federal lands within
the boundaries of the areas listed in 30 CFR 761.11(a)(1), would be the
responsibility of the regulatory authority.
These provisions are consistent with the exiting and proposed
Federal lands regulations at 30 CFR 740.4(a)(4) and 745.13(o), which
are discussed in Part III.A. of this preamble.
Consistent with the proposed changes to 740.11(g), the proposed
rule also specifies that the definition of VER in 30 CFR 761.5 applies
to all VER determinations for lands protected under 30 CFR
761.11.(a)(1) or (2), including non-Federal lands within the boundaries
of the areas listed in 30 CFR 761.11(a)(1), regardless of whether OSM
or the State is responsible for making the determination. For all other
lands, both OSM and State regulatory authorities must use the
definition of VER in the appropriate approved regulatory program.
2. Paragraph (b): What Information Must a Request for a VER
Determination Include?
Paragraph (b) of proposed 30 CFR 761.13 contains submission and
content requirements for requests for VER determinations. These
requirements are primarily derived from provisions proposed as 30 CFR
761.12(a)(1) on July 18, 1991, which, in turn, are similar to
guidelines set forth in the preamble to the 1983 definition of VER. See
48 FR 41314, September 14, 1983. However, because the proposed VER
definition no longer contains an explicit takings standard, the
proposed rule does not include items pertinent only to that standard.
Other modifications are intended to improve clarity, provide additional
specificity, and ensure that the rule includes requirements pertinent
to each standard in the definition of VER.
In keeping with the intent expressed in the preambles to the 1983
final rule (see 48 FR 41322, September 14, 1983) and the 1991 proposed
rule (see 56 FR 33161, July 18, 1991), proposed paragraph (b) expressly
states that a request for a VER determination may be submitted and
decided in advance of preparation and submission of a permit
application. Surface coal mining operations may not always be
technically feasible, legally permissible, or economically viable in
the absence of VER. Therefore, a requirement that requests for VER
determinations be accompanied by a permit application may be
unreasonably burdensome in that it could result in significant permit
application preparation expenditures that would be futile if the agency
ultimately determines that the requester does not have VER and
consequently is ineligible to receive a permit. This is especially true
of Federal lands within the boundaries of the areas specified in 30 CFR
761.11(a)(1) and (2), for which OSM has sole authority to process
requests for VER determinations even when it is not the regulatory
authority responsible for reviewing permit applications.
Nothing in the foregoing discussion should be interpreted as
meaning that
[[Page 4850]]
States may not require that requests for VER deteminations be
accompanied by a permit application. Sections 503 and 505 of SMCRA
afford States considerable discretionary authority to adopt
requirements that either have no Federal counterparts or are more
stringent than their Federal counterparts in achieving the requirements
and purposes of the Act. Furthermore, OSM also reserves the right to
require submission of a permit application if information in the
application is needed or useful in evaluating the request for a VER
determination.
The intent of the provision for advance VER determinations is to
allow VER questions to be fully settled in advance of permit
application preparation and review. Therefore, OSM anticipates that
advance VER determinations would be subject to de novo review during
the permit application review process only under exceptional
circumstances. Because the proposed rule establishes notice, comment,
and public participation reqirements for the submission and processing
of requests for VER determinations, the lack of opportunity for de novo
review of VER determinations when such determinations are part of a
subsequent permit application would not abridge violate the rights of
citizens to participate in the permitting process.
Circumstances that might justify reconsideration of an advance VER
determination include, but are not limited to, a material
misrepresentation of facts, discovery of new information that
significantly alters the basis of the VER determination, or a
substantial change in the nature of the intended operation (e.g., a
switch from underground mining methods to surface mining techniques).
If these circumstances arise after permit issuance, the regulatory
authority should, based upon written findings and subject to
administrative and judicial review, order that the permit be revised to
correct any deficiencies. See 30 CFR 774.11 (b) and (c). However, a
State regulatory authority may not reconsider or overturn a VER
determination made by OSM.
Because most of the VER standards for roads do not include the
property rights component of paragraph (a) of the definition of VER in
Sec. 761.5, proposed 30 CFR 761.13(b)(1) establishes special, more
limited information requirements for requests for VER determinations
for coal mine roads. Specifically, if the request is based on one of
the standards in paragraphs (b)(1) through (b)(3) of the definition of
VER in Sec. 761.5, the requester would have to submit satisfactory
documentation that (1) the road was in existence on the date the land
upon which it is located came under the protection of Sec. 761.11, (2)
a right of way or easement for the road was properly recorded as of the
date the land came under the protection of Sec. 761.11, or (3) the
regulatory authority had issued a permit for the access or haul road on
the land in question as of the date the land came under the protection
of Sec. 761.11(a). If the request is based on the standard in paragraph
(b)(4) of the definition of VER in Sec. 761.5, the requester would have
to comply with all other applicable information requirements since
paragraph (b)(4) merely incorporates the standards of paragraph (a) of
the definition.
All other requests for VER determinations would have to include the
information set forth in paragraphs (b)(2) (i) through (vi) of proposed
30 CFR 761.13 to demonstrate compliance with the property rights
component of paragraph (a) of the definition of VER in Sec. 761.5.
Specifically, these paragraphs would require a legal description of the
land; complete documentation of the character and extent of the
requester's current interests in the surface and mineral estates in
question; a chain of title and discussion of any title instrument
provisions concerning mining or mining-related surface disturbances or
facilities; a description of the nature and ownership of all property
rights for the surface or mineral estates in question as of the date
the land came under the protection of Sec. 761.11; and a description of
the type and extent of surface coal mining operations planned,
including the intended method of mining and any mining-related surface
facilities, and an explanation of how the planned operations are
consistent with State property law. If the coal interests have been
severed from other property interests and the surface estate is held by
a Federal agency, paragraph (b)(2)(v) would require submission of a
title opinion or other official statement from the Federal agency
confirming that the requester has a property right to conduct the type
of surface coal mining operations intended. This requirement is
intended to ensure that the record is adequate to determine whether a
property rights dispute exists.
Proposed 30 CFR 761.13(b)(2)(vii) provides that, if the request is
based on the needed for and adjacent standard set forth in paragraph
(a)(2) of the definition of VER in 30 CFR 761.5, the requester must
explain why and how the coal is needed for the operation. As several
commenters noted in response to the lack of a similar provision in the
1991 proposal, the agency will need this information to make an
informed decision on the request.
Proposed 30 CFR 761.13(b)(2)(viii) provides that, if the request is
based on the good faith/all permits standard set forth in paragraph
(a)(1) of the definition of VER in 30 CFR 761.5, the person making the
request must submit the application dates and identification numbers
and, if applicable, approval and issuance dates and identification
numbers for any licenses, permits, or authorizations for surface coal
mining operations on the land in question if such licenses, permits, or
authorizations are or were held or applied for by the requester or
predecessor in interest as of the date the land in question came under
the protection of 30 CFR 761.11. Examples of relevant permits include
State or Federal surface or underground coal mining permits, National
Pollutant Discharge Elimination System permits, State air pollution
control permits, and U.S. Forest Service special use permits, and (for
some types of facilities such as coal preparation plants and
ventilation housing for underground mines) building permits and zoning
approvals. The agency will need this information to make an informed
decision on the request.
3. Paragraph (c): How May the Public Participate in the VER
Determination Process?
Because section 102(i) of SMCRA provides that one of the purposes
of the Act is to assure that appropriate procedures are provided for
public participation in the development and enforcement of State and
Federal regulatory programs, OSM is proposing to include notice and
comment requirements and provisions for public participation in the VER
determination process, as suggested by several commenters on the 1991
proposal. The special protection Congress provided for the lands listed
in section 522(e) also lends support to public participation in the VER
determination process.
With minor modifications, the notice and comment requirements set
forth in proposed 30 CFR 761.13(c) parallel those currently in use by
OSM for VER determinations as a matter of policy. They also resemble
the notice and comment requirements for applications for coal
exploration permits under 30 CFR 772.12, which have been tailored to
minimize resource demands on affected parties while maintaining
consistency with the statutory provisions encouraging public
participation.
Under the proposed rule, an agency receiving a request for a VER
determination must publish a notice in
[[Page 4851]]
a newspaper of general circulation in the county in which the land is
located inviting comment on whether the request should be approved.
Because of the national significance of the areas listed in 30 CFR
761.11(a) (1) and (2), this notice also must appear in the Federal
Register if the request involves Federal lands within the boundaries of
those areas. (Under proposed 30 CFR 761.13(a)(2), OSM would have sole
responsibility for making VER determinations on those lands. Hence, the
Federal Register publication requirement would not place any added
burden on State regulatory authorities.) The notice must identify the
applicable VER standard, the location of the land involved, the name
and address of the agency office to which comments should be addressed,
and the closing date of the comment period, which must be a sufficient
amount of time after the date of publication so as to afford interested
persons a reasonable opportunity to prepare and submit comments. It
also must describe the property rights claimed, the basis for the
claim, the type of surface coal mining operations planned, and the
procedures the agency will follow in processing the request.
If the land in question involves severed estates or divided
interests, the proposed rule provides that the agency must make a
reasonable effort to locate all owners of interest, both surface and
mineral, and provide them with a copy of the notice. In addition, such
notification must be provided to the owner of the structure or feature
causing the lands to come under the protection of 30 CFR 761.11(a).
These proposed requirements are intended to provide full protection for
the listed lands consistent with section 102(b) of SMCRA, which states,
that one of the Act's purposes is to ``assure that the rights of
surface landowners and other persons with a legal interest in the land
or appurtenances thereto are fully protected from [surface coal mining]
operations.''
Finally, in paragraph (c)(3), OSM is proposing to provide that,
whenever a request for a VER determination pertains to land within the
boundaries of an area under the protection of 30 CFR 761.11(a)(1) and
section 522(e)(1), the agency responsible for processing the request
must notify the agency with jurisdiction over the protected land and
allow that agency 30 days from receipt of the notification to respond.
Upon request, the agency responsible for the VER determination must
grant the agency with jurisdiction over the protected area an
additional 30 days to review and comment upon the request. After that
time, the agency responsible for the VER determination would have the
right to make the determination in accordance with proposed 30 CFR
761.13(d).
A similar requirement currently appears in 30 CFR 761.12(b)(2),
where it applies only to lands within the jurisdiction of the National
Park Service or the U.S. Fish and Wildlife Service. OSM is proposing to
extend the consultation requirement to all lands protected under 30 CFR
761.11(a)(1) and section 522(e)(1) because there does not appear to be
a rational basis for limiting it to lands under the jurisdiction of the
two agencies identified in the current rule.
4. Paragraph (d): How Will a Decision Be Made?
Paragraph (d) of proposed 30 CFR 761.13 specifies requirements
pertinent to the decisionmaking process for requests for VER
determinations. OSM originally proposed a version of this paragraph as
part of 30 CFR 761.12(h) on July 18, 1991 (56 FR 33162, 33165). The
rule being proposed today includes additional language in response to
commenters' concerns regarding public participation issues and property
rights disputes.
Specifically, the proposed rule provides that the agency
responsible for making the VER determination must review the materials
submitted with the request, the information received during the comment
period, and any other relevant available information to determine
whether the record is adequate to support a decision in favor of the
requester. If not, the agency must notify the requester in writing,
explaining the inadequacy of the record and requesting submittal,
within a reasonable time, of any additional information the agency
deems necessary to remedy the inadequacy. Upon receipt of the requested
information or other explanation, the agency must determine whether the
requester has demonstrated VER for the land in question.
In keeping with the intent of Congress in enacting the prohibitions
of section 522(e), the agency processing requests for VER
determinations has an obligation to critically analyze such requests to
ensure that section 522(e) is fully implemented and that new surface
coal mining operations in these areas are prohibited except to the
extent that they qualify for one of the statutorily authorized waivers
or exemptions. The proposed rules establish the procedural requirements
and decision criteria needed to meet this obligation.
As currently proposed, 30 CFR 761.13(d)(2) includes a provision
requiring deferral of a decision on a request for a VER determination
if the underlying property rights are in dispute. The deferral would
remain in effect until the parties resolve the dispute in the proper
venue, which is normally the State courts. To do otherwise would
constitute de facto adjudication of the property rights dispute in
favor of one of the parties, a result that would violate the
prohibition on such adjudication in section 510(b)(6)(C) of SMCRA. In
addition, deferral of a decision in situations involving property
rights disputes is consistent with section 102(b) of SMCRA, which
states that one of the Act's purposes is to ``assure that the rights of
surface landowners and other persons with a legal interest in the land
or appurtenances thereto are fully protected from [surface coal mining]
operations.''
OSM does not interpret section 510(b)(6)(C) of SMCRA as requiring
deferral of a decision if there is only a mere allegation of a property
rights dispute. For example, if the parties to the alleged dispute are
not diligently pursuing resolution of the disagreement in the proper
venue, then, depending on the facts of the case, the agency processing
the request for a VER determination might reasonably conclude that the
lack of any serious attempt to resolve the dispute means that no bona
fide dispute exists and, therefore, that no deferral is necessary.
Finally, proposed 30 CFR 761.13(d)(3) specifies that the decision
document must (1) explain how the requester has or has not satisfied
all applicable elements of the definition of VER, (2) set forth the
relevant findings of fact and conclusions, and (3) specify the reasons
for the conclusions. Under the proposed rule, the agency must provide a
copy of the decision to the requester and the owner of (or agency with
jurisdiction over) the area or feature that caused the land to come
under the protection of 30 CFR 761.11(a). The agency would also have to
publish notice of the decision in a newspaper of general circulation in
the county in which the land is located. When Federal lands within the
areas listed in 30 CFR 761.11(a) (1) or (2) are involved. OSM would
publish notice of the decision in the Federal Register.
These requirements are similar to the procedures OSM has followed
in the past to ensure adequate notice and public participation in VER
determinations. OSM's experience indicates that the requirements are
not unduly burdensome and should afford adequate notice and opportunity
for adversely affected parties to appeal the decision. Federal Register
publication
[[Page 4852]]
of decisions on requests for VER determinations affecting Federal lands
within the boundaries of the areas listed in 30 CFR 761.11(a) (1) and
(2) is appropriate because these lands are of national significance.
Under proposed 30 CFR 761.13(d)(3)(ii), the Federal Register
publication requirement would apply only to OSM and only to Federal
lands.
5. Paragraph (e): How May a Determination Be Appealed?
Paragraph (e) provides that VER determinations are subject to
administrative and judicial review under 30 CFR 775.11 and 775.13,
which contain administrative and judicial review requirements for
permitting decisions. With respect to VER determinations, this
provision is substantively identical to both existing 30 CFR 761.12(h)
and 30 CFR 761.12(i) as proposed in 1991.
H. Section 772.12: Requirements for Coal Exploration on Lands
Unsuitable for Surface Coal Mining
As promulgated on September 8, 1983, the regulations at 30 CFR Part
772 governing coal exploration require that a person who intends to
conduct any type of coal exploration in areas designated as unsuitable
for surface coal mining operations in 30 CFR 761.11(a) and section
522(e) of SMCRA first obtain a permit in accordance with 30 CFR 772.12.
However, the 1983 regulations did not require a VER demonstration
either as a mandatory component of the permit application or as a
prerequisite for permit approval or issuance. On June 22, 1988 (53 FR
23532), OSM proposed to adopt a rule that would have done so, but the
final rule promulgated on December 29, 1988 (53 FR 52942) did not
include this provision. Instead, the preamble to that rule stated that
OSM would reconsider the issue of VER requirements for coal exploration
after promulgation of a new definition of VER (53 FR 52945).
The National Wildlife Federation and other groups challenged OSM's
failure to adopt the proposed rule. Upon judicial review, the U.S.
District Court for the District of Columbia held that OSM had failed to
articulate a proper rationale for not adopting the proposed rule. Nat'l
Wildlife Fed'n versus Lujan, Nos. 89-0504, 89-1221 and 89-1614, slip
op. at 25-33 (D.D.C. September 5, 1990). In response, on July 18, 1991
(56 FR 33152), OSM proposed to add paragraph (b)(5) to 30 CFR 772.14 to
require a VER demonstration as a prerequisite for approval of coal
exploration activities in which coal is to be removed for sale or
commercial use.
After considering the comments received, OSM is withdrawing this
proposed change and is instead proposing to add a new paragraph (b)(14)
to 30 CFR 772.12, the section containing permitting requirements for
exploration that will remove more than 250 tons of coal or that will
occur on lands designated as unsuitable for surface coal mining
operations. Under the proposed rule, a person planning to conduct
exploration on lands listed in section 522(e) and 30 CFR 761.11(a)
would have to submit an application that includes a demonstration that
(1) the exploration activities will not substantially disturb the
protected lands, (2) the owner of the coal possesses VER, (3) the
exploration is needed for mineral valuation purposes or is authorized
by judicial order, or (4) the applicant has obtained a waiver or
exception in accordance with 30 CFR 761.12 (c) through (f).
Similarly, OSM is proposing to add a new paragraph (d)(2)(iv) to 30
CFR 772.12 to provide that the regulatory authority may not approve an
application for exploration unless it first finds that the exploration
activities described in the application will not substantially disturb
any lands listed in 30 CFR 761.11(a). Alternatively, the regulatory
authority may find that the applicant has (1) demonstrated VER in
accordance with 30 CFR 761.13, (2) obtained one of the waivers or
exceptions authorized under 30 CFR 761.11(a) (2) through (5) in
accordance with 30 CFR 761.12 (c) through (f), or (3) demonstrated that
the exploration is needed for mineral valuation purposes or authorized
by judicial order.
OSM recognizes that nothing in SMCRA prohibits coal exploration on
lands designed as unsuitable for mining. The rule changes being
proposed today do not ban exploration on any lands. Instead, they
merely restrict the methods that may be used to conduct exploration on
lands protected under section 522(e) of the Act or the potential impact
of exploration on those lands.
Section 512(a) of the Act provides broad authority for the
promulgation of regulations governing coal exploration, and section
201(c)(2) authorizes the Secretary to ``promulgate such rules and
regulations as may be necessary to carry out the purposes and
provisions of this Act.'' As discussed below, the rules being proposed
today will further the purposes of section 522(e) of the Act.
Coal exploration involving substantial disturbance can result in
environmental impacts similar in both nature and extent to those
resulting from surface coal mining operations. The legislative history
of section 522(e) of the Act indicates that Congress' purpose in
enacting that section was to prevent new surface coal mining operations
in the areas listed therein, either to protect human health, safety,
and general welfare or because the environmental values and other
features associated with these areas are generally incompatible with
surface coal mining operations and their impacts. See S. Rep. No. 128,
95th Cong., 1st Sess. 94 (1977). In this context, allowing coal
exploration that would result in similar impacts appears generally
incompatible with congressional intent in the absence of VER or a
waiver or exception authorized under section 522(e).
OSM recognizes that there may be circumstances in which exploration
activities causing such impacts are unavoidable. Specifically, coal
exploration involving substantial disturbance (road construction to
provide access for a drill rig, for example) may sometimes be necessary
for mineral valuation purposes or to comply with a judicial order even
when there is no possibility of obtaining approval to conduct surface
coal mining operations. Accordingly, the proposed rules authorize
approval of a coal exploration permit under these circumstances.
However, all exploration activities must be planned and conducted in
accordance with the requirements and performance standards of 30 CFR
Parts 772 and 815, which are designed to minimize adverse environmental
effects.
Under proposed 30 CFR 772.12(b)(14)(ii), the VER determination
requirements and procedures of 30 CFR 761.13(a) through (d) would apply
to requests for VER determinations sought in connection with coal
exploration. All determinations would be subject to administrative and
judicial review in accordance with 30 CFR 761.13(e). The proposed
prohibition of certain types of coal exploration in the absence of VER
is intended to restrict the number of situations in which exploration
could cause impacts similar to those that would result from surface
coal mining operations. Specifically, it attempts to limit such
exploration to those lands for which a person has the right to conduct
surface coal mining operations. Therefore, OSM does not propose to
define VER in a different fashion or differentiate procedurally between
VER determinations sought in connection with plans to conduct surface
coal mining operations and those sought in connection with plans to
conduct coal exploration, regardless of the purpose of the exploration
or type of mining operations contemplated.
[[Page 4853]]
A VER determination obtained in connection with an application for
a coal exploration permit would remain valid for any subsequent
application seeking approval of a permit for surface coal mining
operations, provided the type of surface coal mining operations
proposed in the application is consistent with the type of operations
contemplated by the VER determination.
OSM acknowledges that exploration may sometimes be necessary to
determine the feasibility of using underground mining methods to remove
the coal underlying section 522(e) areas. Under current OSM policy,
only surface facilities associated with underground operations are
subject to the prohibitions of section 522(e). If no surface facilities
are to be located on the lands protected by section 522(e), a VER
determination is not a prerequisite for approval of a permit for an
underground mine. For the reasons set forth above, the proposed rule
would nevertheless require a VER determination as a prerequisite for
approval of exploration in advance of such a mine if the exploration
would involve substantial disturbance of the protected lands. This
requirement would apply regardless of whether the person proposing the
exploration planned to construct any surface facilities on the
protected lands. To protect the values for which Congress designated
certain lands as off-limits to surface coal mining operations, the
guiding principle in determining whether a VER determination is needed
for exploration should be the nature of the impacts of exploration on
the protected lands, not the type of mining operation ultimately
planned. Furthermore, OSM believes that, in most cases, the necessary
exploration activities can be conducted either on adjacent lands or by
using methods (such as core drilling from existing roads and pathways)
that do not result in substantial disturbance of the land surface.
OSM also is considering revising 30 CFR Part 772 (or possibly Part
761 or both) to include a provision similar to 30 CFR 762.14, which
provides that the regulatory authority has an obligation to use the
exploration permit application review and approval process to ensure
that exploration activities will not interfere with any of the values
for which the area has been designated unsuitable for surface coal
mining operations. (Section 762.14 applies only to lands designated
unsuitable for surface coal mining operations pursuant to the petition
process set forth in 30 CFR Part 762 and section 522(a) of the Act.)
OSM seeks comment on whether this provision should be adopted either in
addition to or in place of the proposed revisions to 30 CFR 772.12 set
forth in this rulemaking. As currently proposed, the rules would not
place these restrictions on exploration if the regulatory authority
determines that a person has VER or qualifies for one of the other
exemptions in 30 CFR 772.12(b)(14).
Finally, as a housekeeping measure, OSM is proposing to revise 30
CFR 772.12(d)(2)(ii) and (iii) to correct a citation to the Endangered
Species Act and to add a reference to the National Historic
Preservation Act Amendments of 1992 in Public Law 102-575.
I. Effect in Federal Program States and on Indian Lands
Through cross-referencing in the respective regulatory programs,
this proposed rule would apply to all lands in States with Federal
regulatory programs. States with Federal regulatory programs include
Arizona, California, Georgia, Idaho, Massachusetts, Michigan, North
Carolina, Oregon, Rhode Island, South Dakota, Tennessee, and
Washington. These programs are codified at 30 CFR Parts 903, 905, 910,
912, 921, 922, 933, 937, 939, 941, 942, and 947, respectively.
The proposed changes to 30 CFR Part 761 would apply to Indian lands
by virtue of the incorporation of this part by reference in 30 CFR
750.14. The proposed changes to 30 CFR Part 772 would apply to coal
exploration on Indian lands to the extent provided in 30 CFR 750.15.
In the preamble to the 1991 proposed rule, OSM invited the public
to comment on whether there are unique conditions in any Federal
program States or on Indian lands that should be reflected in the
national rules or as specific amendments to the Federal programs or
Indian lands rules. Since no commenters identified any unique
conditions or amendment needs, the rules being proposed today do not
include any changes to the Indian lands rules or individual Federal
programs. However, the public is again invited to comment on whether
any such changes would be necessary if OSM adopts the proposed rules.
J. Effect on State Programs
If the proposed rules are adopted, OSM will evaluate State
regulatory programs approved under 30 CFR Part 732 and section 503 of
the Act to determine whether any changes in these programs will be
necessary to maintain consistency with Federal requirements. If the
Director determines that a State program provision needs to be amended
as a result of these revisions to the Federal rules, he will notify the
State in accordance with 30 CFR 732.17.
In the preamble to the 1991 proposed rule, OSM solicited comments
on whether State program VER definitions must be amended to include
standards identical to those of the revised Federal definition to be no
less effective than the revised Federal definition. 56 FR 33156, July
18, 1991. Because the standards proposed today differ somewhat from
those proposed in 1991, OSM once again invites comment on the need for
revision of State program definitions of VER if the definition in 30
CFR 761.5 is adopted as proposed. OSM particularly seeks comment on
whether those States with an approved takings standard should be
required to remove this standard or whether the rationale OSM relied
upon to approve the takings standard in the Illinois definition remains
valid. (See 30 CFR 917.15(j) and 54 FR 123, January 4, 1989.) In other
words, may the takings standard be considered no less effective than
the good faith/all permits standard in achieving the purposes and
requirements of the Act even though it balances the purposes in a
different manner with potentially different results?
IV. Procedural Matters
A. Federal Paperwork Reduction Act
In accordance with 44 U.S.C. 3507(d), OSM has submitted the
information collection and recordkeeping requirements of 30 CFR Parts
761 and 772 to the Office of Management and Budget (OMB) for review and
approval.
30 CFR Part 761
Title: Areas designated by Act of Congress.
OMB Control Number: 1029-0102.
Abstract: Part 761 includes criteria and procedural requirements
for waivers and exemptions (including the VER and existing operating
exemptions) from the prohibition on conducting surface coal mining
operations in the areas specified in section 522(e) of SMCRA. This part
identifies the documentation persons need to provide to demonstrate
possession of or eligibility for a waiver or exemption. It also
establishes review and notification requirements and decision criteria
for the agency responsible for making decisions on requests for VER
determinations.
Need for and Use: OSM and State regulatory authorities use the
information collected under 30 CFR Part 761 to ensure that persons
planning to conduct surface have the right to do so
[[Page 4854]]
under one of the exemptions or waivers provided by this section of the
Act.
Respondents: Persons who prepare the approximately 475 applications
for permits for surface coal mining operations that OSM and State
regulatory authorities receive each year, and the 24 State regulatory
authorities who must evaluate the validity of waiver and exemption
claims and requests for VER determinations that accompany or precede
these applications.
Total Annual Burden: OSM estimates that a person will need an
average of 6 hours to prepare each request for a VER determination
under 30 CFR 761.13. The agency responsible for processing the request
will require an average of 8 hours to comply with the information
collection requirements of these section, resulting in an average total
burden of 14 hours for each request. Under 30 CFR 761.12, preparation
and processing of requests for other types of exemptions and waivers
will require an average of 2 hours per request. The estimated total
annual burden for part 761 is 2,366 hours.
30 CFR PART 772
Title: Requirements for coal exploration.
OMB Control Number: 1029-0033.
Abstract: Section 512 of SMCRA provides that persons conducting
coal exploration on non-Federal lands must comply with exploration
regulations issued by the regulatory authority. Section 512(d) of the
Act requires a permit and the prior approval of the regulatory
authority for exploration removing more than 250 tons of coal; 30 CFR
Part 772 extends this requirement to all exploration on lands
designated as unsuitable for surface coal mining operations. For all
other types of exploration, the Act and regulations require submission
of a notice of intent to explore. The regulations in 30 CFR Part 772
establish content requirements for notices of intent, content and
processing requirements for applications for coal exploration permits,
and recordkeeping requirements for regulatory authorities.
Need For and Use: OSM and State regulatory authorities use the
information collected under 30 CFR Part 772 to maintain knowledge of
coal exploration activities, evaluate the need for an exploration
permit, and ensure that exploration activities comply with the
environmental protection and reclamation requirements of 30 CFR Parts
772 and 815 and section 512 of SMCRA.
Respondents: Persons who prepare the approximately 1,225 notices of
intent to explore and 4 applications for coal exploration permits
received each year by OSM and State regulatory authorities. Also, the
24 State regulatory authorities that process notices of intent and
applications for exploration permits.
Total Annual Burden: The estimated annual burden for this part
totals 13,354 hours, which translates to an approximate burden of 11
hours for the average notice of intent (10 hours to prepare the notice
and 1 hour for the regulatory authority to review and file it), and 104
hours for the average application for a coal exploration permit (70
hours to prepare the application and 34 hours for the regulatory
authority to process and file it). See 30 CFR 772.10 for a section-by-
section burden summary for this part.
Comments are invited on:
(a) Whether the proposed collection of information is necessary for
the proper performance of OSM and State regulatory authorities,
including whether the information will have practical utility;
(b) The accuracy of OSM's estimate of the burden of the proposed
collection of information;
(c) Ways to enhance the quality, utility, and clarity of the
information to be collected; and
(d) Ways to minimize the burden of collection on the respondents.
Under the Paperwork Reduction Act, OSM must obtain OMB approval of
all information and recordkeeping requirements. No person is required
to respond to an information collection request unless the form or
regulation requesting the information has a currently valid OMB control
(clearance) number. These numbers appear in section xxx.10 of 30 CFR
Parts 710 through 955. To obtain a copy of OSM's information collection
clearance requests, explanatory information, and related forms, contact
John A. Trelease at (202) 208-2783 or by e-mail at jtreleas@osmre.gov.
By law, OMB must submit comments to OSM within 60 days of
publication of this proposed rule, but may respond as soon as 30 days
after publication. Therefore, to ensure consideration by OMB, you must
send comments regarding these burden estimates or any other aspect of
these information collection and recordkeeping requirements by March 3,
1997, to the Office of Management and Budget, Office of Information and
Regulatory Affairs, Attention: Interior Desk Officer, 725 17th Street,
NW, Washington, DC 20503. Please refer to OMB Control Numbers 1029-0033
and 1029-0102 in any correspondence.
B. Executive Order 12866
The proposed rule is a significant regulatory action under section
3(f) of Executive Order 12866. Accordingly, OSM has prepared a cost/
benefit assessment (economic analysis) of the rulemaking alternatives
pursuant to section 6(a)(3)(C) of the executive order.
C. 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 proposed rule
would not have a significant economic impact on a substantial number of
small entities. See 50 FR 13250 (April 3, 1985). A small entity
flexibility analysis has been prepared and placed in the administrative
record of this rulemaking.
D. 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.
E. National Environmental Policy Act (NEPA)
On April 3, 1985 (50 FR 13250), OSM published a notice of intent to
conduct rulemaking on the applicability of the section 522(e)
prohibitions to underground mining. On June 19, 1985 (50 FR 25473), OSM
announced the agency's intent to prepare an environmental impact
statement (EIS) pursuant to section 102(2)(C) of NEPA, 42 U.S.C.
4332(2)(C) for this rulemaking. OSM held scoping meetings for the EIS
on August 1, 1985, in Pittsburgh, Pennsylvania; August 6, 1985, in St.
Louis, Missouri; and on August 9, 1985, in Washington, D.C. to obtain
public input. Written comments on the scope of the EIS were accepted
separately through September 10, 1985.
Based on the comments received and the March 22, 1985, decision in
PSMRL II, Round III-VER remanding the definition of VER, OSM decided to
conduct a combined analysis of the rulemaking alternatives for both VER
and the applicability of the section 522(e) prohibitions to underground
mining. OSM announced its intent in another scoping notice published on
January 22, 1987 (52 FR 2421). OSM also held a meeting on February 6,
1987, to solicit further input on the rulemaking alternatives and the
scope of the EIS from the public and potentially affected Federal
agencies. On February
[[Page 4855]]
23, 1987, OSM held another meeting to receive testimony from
environmental groups and other organizations unable to attend the
earlier meeting.
On December 27, 1988 (53 FR 52374), OSM published a draft EIS and
regulatory impact analysis concurrently with a proposed rule addressing
both VER and the applicability of the prohibitions to subsidence from
underground mining. On July 21, 1989 (54 FR 30557), OSM withdrew the
proposed rule.
On April 19, 1991 (56 FR 16111), OSM published a revised draft EIS
for review and comment, followed by a new proposed VER rule on July 18,
1991 (56 FR 33152) and, on the same date, a notice of inquiry
concerning the applicability of the prohibitions to underground mining.
OSM never finalized the VER rule, electing instead to develop the
new proposed rule being published today. On April 28, 1994 (59 FR
21996), OSM published a notice of intent to prepare a revised EIS
analyzing both VER and the applicability of the prohibitions to
underground mining. After analyzing the comments received, OSM has
completed a new draft EIS (OSM-EIS-29), which is now available to the
public for review and comment.
F. Executive Order 12630 (Takings)
In accordance with E.O. 12630 (March 18, 1988), and the ``Attorney
General's Guidelines For the Evaluation of Risk and Avoidance of
Unanticipated Takings,'' dated June 30, 1988, the Department has
prepared a takings implication assessment, which has been made a part
of the administrative record for this rulemaking, and is set forth
below:
Section 5221(e) of SMCRA provides that, subject to VER (and with
certain other specified exceptions), no surface coal mining operations
shall be permitted on certain lands designated by Congress. As stated
in the preceding sections, the proposed rule defining VER would
establish a GFAP standard for VER under section 522(e).
Under the GFAP standard, a person would have VER if, prior to the
date the land came under the protection of section 522(e), the person
or a predecessor in interest had all necessary property rights and had
obtained, or made a good faith effort to obtain all State and Federal
permits and other authorizations required to conduct surface coal
mining operations.
The proposed rule may have some significant, but unquantifiable,
takings implications. OSM expects that the proposed rule would not be
found by a court to constitute a per se taking, since that issue was
litigated in 1979-80.
1. No Per Se Takings
It is unlikely that the GFAP standard would be determined to
constitute a taking per se. This standard is a modification of the All
Permits standard adopted on March 13, 1979, which required that a
person demonstrate valid issuance by August 3, 1977, of all necessary
State and Federal permits.
The rule was challenged in In Re: Permanent Surface Mining
Regulation Litigation I, No. 79-1144 (D.D.C. February 26, 1980), 14
Env't Rep. Cas. 1083, as effecting a compensable taking of property.
While the court declined to address the constitutionality of the VER
definition, it found that a person who applies for all permits, but
fails to receive one or more through government delay, engenders the
same investments and expectations as a person who has obtained all
permits. Therefore, the court found that a good faith attempt to obtain
all permits before August 3, 1977, should suffice for purposes of VER.
The court remanded to the Secretary that portion of the definition that
required the property owner actually to have obtained all permits
necessary to mine.
2. Likelihood of Compensable Takings
In evaluating taking claims for compensation concerning government
regulatory actions, the courts have typically considered three factors
on a fact-specific, case-by-case basis: the character of the
governmental action, the economic impact of the action, and the extent
to which the government action interferes with reasonable investment-
backed expectations. See Penn Central Transportation Co. v. New York
City, 438 U.S. 104, 124 (1977). Because of the scope of the proposed
rule and the lack of information on specific property interests that
might be affected, this assessment cannot predict or evaluate the
effects of the proposed rule on property rights. Instead, the
assessment will discuss generally the anticipated impacts of the
proposed rule, and compare them to the impacts of the other
alternatives considered.
a. Character of the governmental action. The purpose served and the
statutory provisions implemented by this proposed rulemaking are
discussed in the preamble to the proposed rule. The proposed rule
substantially advances a legitimate public purpose. The legitimate
public purpose is the implementation of the protections for specified
areas set forth in section 522(e) of SMCRA. In that section, Congress
determined that subject to certain exceptions, including valid existing
rights, surface coal mining is prohibited on specified lands because
such mining is incompatible with the values for which those lands were
designated as unsuitable for surface coal mining operations.
The proposed rule substantially advances that purpose by providing
that the VER exception for mining in those protected areas applies only
to the extent that a person can demonstrate that a good faith effort
had been made to obtain all required permits for a surface coal mining
operation before the area came under the protection of section 522(e).
The proposed definition of VER thus advances the regulatory scheme
Congress developed to prevent the harms which surface coal mining
operations would cause in those areas.
OSM does not know of any other property use or actions that would
significantly contribute to the problems caused by surface coal mining
operations in such areas.
b. Economic impact. Use of the GFAP standard or the All Permits
standard by 20 States (and for a number of years, by OSM) has not
resulted in any compensation awards to date, nor has it resulted in any
financial compensation in those instances where the application of the
standard by OSM has resulted in litigation, as discussed below.
Therefore, OSM believes that adoption of a GFAP standard will not
result in any change in the Government's financial exposure relative to
the current situation.
The property interests that could be affected by this rule are coal
rights in section 522(e) areas. It cannot be determined in advance
which coal rights would be affected by the eventual application of this
proposed rule, or what value those rights would have. There is no data
base that definitively or reliably lists all properties protected under
section 522(e), or the nature or extent of individual coal rights
included in such areas. Such a list would not remain current for any
appreciable time because individual properties would be added or
removed on a continual basis as protected features come into existence,
evolve, and sometimes disappear. Even if it could be determined which
coal rights are subject to section 522(e), it cannot reliably be
predicted which coal an owner might seek to mine or for which a VER
determination would be necessary. Because takings determinations are
case-specific, OSM cannot predict all the factors necessary to
determine whether a denial of VER would constitute a compensable
taking.
For purposes of this assessment, the evaluation of potential
economic impact
[[Page 4856]]
utilizes in part the analyses set out in the Draft Environmental Impact
Statement (DEIS) (OSM-EIS-29, September 1995) and Draft Economic
Analysis (EA) (September 1, 1995) for the proposed rule. The DEIS and
EA discussions of the alternatives summarize the number of acres
estimated to be disturbed under each VER alternative over a 20-year
period. Because of the difficulty in predicting the actual mining in
protected areas under this rule, OSM could not predict the actual
impacts of the alternatives. To provide a basis for comparing the
relative environmental and economic impacts of the proposed rule and
the alternatives, OSM developed impact estimates by using a model that
relied on specific methodologies and assumptions.
Therefore, the DEIS and EA estimates of coal acreage that could be
mined under the GFAPT alternative and the other alternatives are
relevant to this assessment only to the limited extent that they show
the anticipated relative economic impacts of the proposed rule,
compared to the other alternatives. Tables V-1 through V-5 of the DEIS
show relative amounts of coal acreage estimated to be mined over a 20-
year period under the different alternatives, as calculated using the
model.
Generally speaking, these analyses assume that relatively few
persons would be able to demonstrate VER under a GFAP standard; that,
for some categories of lands, more persons might be able to demonstrate
VER under a GFAPT standard, and that in some cases, even more persons
might be able to demonstrate VER under an O&A standard. The analyses
further assume that the impacts of a Bifurcated standard would be
somewhere between the impacts of the GFAP standard and those of the O&A
standard.
In general, the GFAP standard is more likely to limit surface coal
mining operations. As a result, more takings claims would be expected
to be filed under a GFAP standard. Whether courts would find that a
negative VER determination under the GFAP standard constituted a
compensable taking should turn on the specific property rights
involved.
For purposes of evaluating the economic impact of the proposed
rule, OSM surveyed historical permitting information, relevant
litigation, and the DEIS and EA analyses of anticipated mining impacts
in individual section 522(e) categories of lands.
Historical data: Currently, five States use the All Permits
standard and 15 use the GFAP standard. Two States use a Takings
standard, one uses only the Needed for and Adjacent standard, and one
State has no VER definition. OSM is not aware of any instance in which
the States' use of these standards has resulted in a judicial
determination of a compensable takings. Therefore, history does not
suggest that the promulgation of a GFAP standard would result in a
significant number of takings compensation awards. While the likelihood
of some degree of financial exposure exists, the use of the GFAP
standard or the All Permits standard by 20 States (and for a number of
years, by OSM) has not resulted in any compensation awards to date, nor
has it resulted in any financial compensation in those instances where
the application of the standard by OSM has resulted in litigation, as
discussed below. Therefore, based on the above data, OSM believes that
the adoption of a GFAP standard will not result in any change in the
Government's financial exposure.
Litigation on use of a GFAP standard: The question of whether
application of the GFAP standard for VER effects a compensable taking
was examined by the court in Sunday Creek Coal Co. v. Hodel (``Sunday
Creek''), No. 88-0416, Slip op. (S.D. Ohio June 2, 1988). In Sunday
Creek, applying Ohio's equivalent of the GFAP standard of VER, OSM
denied the plaintiff's VER request. The court ruled that OSM's
application of Ohio's VER standard would deprive Sunday Creek of its
property rights in violation of the Fifth Amendment. The court
therefore reversed OSM's negative VER determination. In another case
that considered the question of VER, Belville Mining Co. v. United
States (``Belville II''), No. C-1-89-874 (S.D. Ohio), the court simply
assumed that if an applicant could demonstrate a right to strip mine,
then denial of VER would constitute a ``taking'' of that applicant's
interest. These two decisions indicate that, at least in Ohio, a
Federal court would be likely to find that application of the GFAP
standard for VER would effect a compensable taking.
Summary of takings implications for section 522(e) lands: Based
upon available information, including the DEIS and EA for the proposed
rule, and a survey of permits, the following takings impacts from the
proposed rule are anticipated.
Section 522(e)(1) lands: These areas include National Park lands,
National Wildlife Refuge lands, National Trails, National Wilderness
Areas, Wild and Scenic Rivers and study rivers, and National Recreation
Areas. OSM anticipates relatively few takings impact in (e)(1) areas
because there has been a relative dearth of VER determinations and any
resulting takings claims concerning (e)(1) areas in the last 18 years.
Further, as previously discussed, the Secretary's 1988 policy
concerning exercise of VER in (e)(1) areas remains in effect. That
policy states that, if a person acts to exercise VER on (e)(1) lands,
then, subject to appropriation, the Secretary will use available
authorities to seek to acquire the rights through exchange, negotiated
purchase or condemnation.
All of this suggests that there may continue to be few VER
requests, little economic impact, few takings cases, and even fewer
takings awards in (e)(1) areas.
Surface mining: As discussed in the EA, OSM anticipates that in
many cases a compensable taking for denial of VER to surface mine would
not be found, because the requisite property right to surface mine coal
could not be demonstrated. And in many cases, if VER for surface mining
were denied, underground mining would still be a reasonable remaining
use of the coal, so a takings award would not be likely for denial of
VER to surface mine in section 522(e)(1) areas.
Underground mining: The related OSM rulemaking concerning
applicability of section 522(e) prohibitions to subsidence proposes
that the prohibitions would not apply to subsidence. Therefore, OSM
expects that any takings award for denial of VER for underground mining
would be limited to coal that could not be mined from portals outside
the (e)(1) area.
Section 522(e)(2) lands: These areas consist of Federal lands
within national forests. OSM anticipates relatively few takings from
VER determinations on (e)(2) lands.
Surface mining: OSM anticipates that no takings claims would arise
out of application of the proposed VER standard in surface mining VER
determinations in the western national forests and national grasslands.
This is because coal owners in the western (e)(2) areas have never
pursued surface mining VER determinations, but rather have obtained
compatibility determinations under section 522(e)(2). OSM does
anticipate that some acreage might be precluded from surface mining,
and some takings claims might arise, concerning surface mining VER
determinations in the eastern national forests.
For surface coal mining, OSM expects that a compensable taking will
be unlikely if underground mining is an economically and technically
feasible alternative (because if VER were denied
[[Page 4857]]
for surface mining, most owners could qualify for a compatibility
exception for underground mining, so underground mining would be a
reasonable remaining use). As discussed in the DEIS and EA, OSM
anticipates that in a substantial number of cases (a higher proportion
in the eastern coal fields), a court would find no property right to
surface mine under State property laws. This is because the coal in
many cases was severed from the surface rights relatively early, when
surface mining was not common at the time and place of severance. As a
result, under State property law, typically the coal owner would not
have the necessary right to surface mine. OSM does not have information
on actual dates of severance of coal rights. (There might also be
mitigation of takings in those limited instances where the United
States decides to purchase coal rights.)
Underground mining: The (e)(2) compatibility determination
exception would continue to apply. Therefore, OSM would expect few
takings claims from denial of VER for underground mining in national
forests, because OSM assumes that virtually all underground mining
could qualify for a compatibility determination. This is based in part
on the fact that the Multiple-Use Sustained Yield Act and the National
Forest Management Act establish multiple use as the guiding principle
for management of national forest lands, and in part on the fact that,
in the past, requests for compatibility determinations have never been
denied. Surface operations and impacts associated with underground
mining generally disturb only a relatively minimal amount of the land
surface. Roads and surface facilities can generally be sited in such a
way as to avoid significant impacts on other land uses such as timber
production, livestock grazing, and recreation.
Section 552(e)(3) lands: These areas include lands where surface
coal mining operations would adversely affect a publicly owned park or
site on the National Register of Historic Places. OSM does not
anticipate that any significant takings would occur on (e)(3) lands as
a result of surface or underground mining VER determinations. Pursuant
to (e)(3), jurisdictional agencies, together with the regulatory
authority, may approve mining in the vicinity of protected areas, and
thus waive the prohibition of (e)(3). A sampling of permit records
indicated that some such mining has occurred, but no VER requests were
located for such areas. Therefore, OSM anticipates that, in many cases,
operations may avoid such sites or resolve any jurisdictional agency
concerns about mining impacts, so that the jurisdictional agency and
the regulatory authority would jointly approve mining pursuant to
(e)(3). In such cases, a VER determination would be unnecessary.
Section 522(e)(4) lands: These areas include lands within one
hundred feet of the right of way of a public road. OSM anticipates
relatively few takings claims concerning VER determinations for (e)(4)
areas. Coal mines now tend to avoid urban areas (where many roads and
streets are located) because of increased acquisition and public
safety-related costs of mining in such areas. In the vast majority of
cases, an exception of the prohibitions of (e)(4) is obtained under the
waiver provision of (e)(4), rather than through a VER determination.
Therefore, OSM does not expect the choice of a VER standard to have a
major effect on takings claims for coal located under roads. As noted
above, OSM's survey of permitting data located only a few instances of
VER determinations for (e)(4) areas.
Section 522(e)(5) lands: These areas include lands within 300 feet
of an occupied dwelling, public building, school, church, community or
institutional building, or public park, or within 100 feet of a
cemetery. OSM anticipates relatively little economic impact for takings
purposes on (e)(5) areas other than (e)(5) public park lands.
The survey of permit files indicated that in most cases (more than
85%), mining near dwellings occurs because (e)(5) waivers are
negotiated with dwelling owners. Therefore, OSM expects that VER would
not be necessary and would continue not to be pursued in most such
areas. Proposals to mine in areas occupied by public buildings,
schools, churches, and cemeteries are typically limited. It is usually
less expensive for the operator to avoid such areas, rather than to pay
the costs of seeking VER, avoiding material damage where prohibited,
and paying reclamation costs.
In addition, the permit survey did not disclose any instances of
VER requests for mining in the areas around non-NPS public parks
protected under (e)(5). However, the OSM model does anticipate that in
the next 20 years substantial coal acreage in (e)(5) public parks areas
might be precluded from mining as a result of underground mining VER
determinations under the proposed rule, and a relatively smaller but
still significant acreage might be precluded from surface mining as a
result of surface mining VER determinations under the proposed rule.
Some portion of those acreages could result in takings awards.
c. Interference with reasonable investment-backed expectations.
Application of the proposed rule might result in more interference with
reasonable investment-backed expectations than would occur under the
other alternatives considered. Such interference could occur when coal
rights holders would be unable to mine the coal because they could not
demonstrate VER under the GFAP standard. However, any such interference
could be limited by factors such as the following:
In many cases, holders of coal rights in section 522(e) areas will
not request VER, either because the holder determines that the coal is
not economically minable, or because the holder determines that it is
less costly to obtain some other exception (such as a compatibility
determination or a waiver) from the prohibitions of section 522(e).
In other cases, under State property law, where the mineral rights
have been severed from the surface estate, OSM expects that coal
holders would not hold the necessary property right to surface mine the
coal, as discussed in more detail in the DEIS and EA. Such holders
could have no reasonable expectation of surface mining the coal.
If the holder of coal rights purchased those rights after the land
came under the protections of section 522(e), the purchaser would be
deemed to be on notice of the applicability of the prohibitions of
section 522(e) and would have no reasonable expectation of being
allowed to mine. Thus any significant investments made under these
circumstances would not likely be found to be reasonable.
If a coal holder has made no significant expenditures, the holder
would probably be unable to demonstrate sufficient investment-backed
expectations to support a takings claim. Further, if VER for surface
mining were denied, but underground mining were possible and
economical, a takings claim would similarly be difficult to sustain.
3. Alternatives to the Proposed Rule
As previously discussed, OSM developed and considered three
alternatives to the GFAP standard for VER. They are the GFAPT standard,
the O&A standard, and the Bifurcated standard. The GFAP standard has
the greatest potential for takings implications, and the only way to
minimize the takings implications of the proposed rule is to select one
of the other alternatives. However, OSM does not believe that such a
selection is justified. OSM believes that the
[[Page 4858]]
proposed rule is the best alternative because it best protects the
areas listed in section 522(e) from surface coal mining operations, as
Congress intended.
GFAPT standard: The GFAPT standard would provide that a person
could demonstrate VER by demonstrating either compliance with the GFAP
standard, or that denial of VER as of the date the area became subject
to section 522(e) would reasonably be expected to result in a
compensable taking.
OSM would expect no takings implications from the GFAPT standard
because in all cases, VER should be granted if denial would result in a
compensable taking. However, as noted in the preamble to the proposed
rule, when OSM proposed the GFAPT alternative in 1991, it elicited some
of the strongest opposition OSM has ever received on a proposed rule.
OSM received approximately 750 comments, and virtually every comment
emphatically opposed the GFAPT standard. Opponents charged that the
GFAPT standard would be impossibly burdensome for States to implement.
Some commenters charged that it was too complex, unpredictable, and
uncertain. Many commenters urged adoption of a ``bright-line'' standard
instead. Some charged that it was not protective enough of section
522(e) areas, and others charged that it was inappropriately
restrictive of mining in section 522(e) areas. Some commenters felt
that State regulatory authorities had no authority under State law to
apply the standard. Every category of commenter rejected the GFAPT
standard as unworkable, unacceptable, or demonstrably inferior to some
other alternative.
Ownership and authority standard: The O&A standard would provide
that a person would have VER upon demonstrating ownership of the coal
rights plus the property right under State law to remove the coal by
the method intended. The O&A standard would require demonstrating, as
of the date the land came under the protection of section 522(e), the
property right to mine the coal by underground methods if VER for
underground mining were sought; and by surface mining methods if VER
for surface mining were sought.
OSM would not expect the O&A standard to have significant takings
implications. If a person could not demonstrate the right to mine the
coal by the method intended, there would be no denial of or
interference with property rights for which compensation would be due
under takings law, since a person must have the property right to a
particular use to be compensated for denial of that use.
Although the O&A standard would have no significant takings
implications, OSM believes that it suffers from a serious shortcoming
in that it would effectively eviscreate the protections afforded under
section 522(e). The O&A alternative would result in a finding of VER
whenever a person met the permit application requirements for property
rights. The prohibitions of section 522(e) would be meaningless and
without practical effect. Such a result would clearly be inconsistent
with congressional intent.
Bifurcated standard: Under the Bifurcated standard, when the
mineral and surface estates have been severed, the date of severance
would determine whether the O&A or the GFAP standard for VER would be
used. When the mineral estate was severed from the surface estate prior
to the date the land came under the protection of section 522(e), the
O&A standard would be used to determine VER. When the mineral estate
was severed from the surface estate after the date the land came under
the protection of section 522(e), the GFAP standard would be used.
4. Estimate of Potential Financial Exposure From the Proposed Rule
The Attorney General's guidelines and the Department's supplemental
guidelines for takings implications assessments provide that the
assessment should set out an estimate of the financial exposure if the
proposed rule were held to effect a compensable taking. Given the
geographic scope of this proposed rule, however, and the lack of
information on the effects on individual property rights, a meaningful
estimate of financial exposure is impossible. Instead, as discussed
above, this assessment discusses generally the anticipated takings
impacts of the proposed rule, relative to the other alternatives
considered. Federal financial exposure might arise primarily from
claims concerning VER denials in the eastern United States in section
522(e)(2) areas or from the costs associated with acquisition of
property rights in section 522(e)(1) areas pursuant to the Secretary's
1988 policy statement, as discussed above.
5. Conclusion
The proposed rule for VER is expected to have a greater potential
for takings implications than the other alternatives considered. More
significant takings implications are anticipated primarily in some
(e)(2) areas (Federal lands in eastern national forests); (e)(5) areas
(State and local parks); and, to a lesser extent, (e)(4) areas (public
roads). In light of the Secretary's 1988 policy on exercise of VER for
(e)(1) areas, takings implications are less likely in (e)(1) areas.
Takings implications are also substantially less likely in (e)(3) and
(5) areas. Case-by-case application of the regulation might result in
takings implications, but such an analysis is beyond the scope of this
assessment and cannot be made until the rule is actually applied. Thus,
insufficient information is available to enable an accurate assessment
of the extent to which significant takings consequences might result
from adoption of this rule.
Under the standards set forth in the ``Attorney General's
Guidelines For the Evaluation of Risk and Avoidance and Unanticipated
Takings,'' dated June 30, 1988, and the Supplementary Takings
Guidelines of the Department of the Interior, OSM therefore concludes
that this rulemaking has significant takings implications.
G. 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 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 rule
would be subject to preemption under section 505 of SMCRA and its
implementing regulations at 30 CFR 730.11. To the extent that this rule
might ultimately result in the preemption of State law, the provisions
of SMCRA are intended to preclude inconsistent 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.
[[Page 4859]]
2. What Is the Effect on Existing Federal Laws or Regulations, If Any,
Including All Provisions Repealed, Circumscribed, Displaced, Impaired,
or Modified?
This proposed rule would modify 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?
This proposed rule defines the term ``valid existing rights.''
Other 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 matter.
Author: The principal author of this proposed rule is Dennis G.
Rice, Rules and Legislation, Office of Surface Mining Reclamation
and Enforcement, 1951 Constitution Avenue, NW., Washington, DC
20240; Telephone (202) 208-2829.
List of Subjects
30 CFR Part 740
Public lands, Mineral resources, Reporting and recordkeeping
requirements, Surety bonds, Surface mining, Underground mining.
30 CFR Part 745
Intergovernmental relations, Public lands, Mineral resources,
Reporting and recordkeeping requirements, Surface mining, Underground
mining.
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.
30 CFR Part 772
Reporting and recordkeeping requirements, Surface mining,
Underground mining.
Dated: April 30, 1996.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
For the reasons set forth in the preamble, the Department is
proposing to amend 30 CFR Parts 740, 745, 761, and 772 as set forth
below:
PART 740--GENERAL REQUIREMENTS FOR SURFACE COAL MINING AND
RECLAMATION OPERATIONS ON FEDERAL LANDS
1. The authority citation for Part 740 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.
2. In Sec. 740.4, paragraphs (a)(4) and (a)(5) are revised to read
as follows:
Sec. 740.4 Responsibilities.
(a) * * *
(4) Determining whether a person possesses valid existing rights to
conduct surface coal mining operations on Federal lands within the
areas specified in paragraphs (a)(1) and (a)(2) of Sec. 761.11 of this
chapter.
(5) Determining whether there are significant recreational, timber,
economic, or other values that may be incompatible with surface coal
mining operations on any Federal lands within the boundaries of any
national forest under Sec. 761.11(a)(2) of this chapter.
3. Section 740.10 is revised to read as follows:
Sec. 740.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection
requirements of this part. The OMB clearance number is 1029-0027. This
information is needed to implement section 523 of the Act, which
governs surface coal mining operations on Federal lands. Persons
intending to conduct such operations must respond to obtain a benefit.
(b) OSM estimates that the public reporting burden for this part
will average 26 hours per respondent, including time spent reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of these information collection requirements,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, 1951 Constitution Avenue, N.W., Washington, DC 20240; and the
Office of Management and Budget, Office of Information and Regulatory
Affairs, Attention: Interior Desk Officer, 725 17th Street, NW,
Washington, DC 20503. Please refer to OMB Control Number 1029-0027 in
any correspondence.
4. In Sec. 740.11, paragraph (a) introductory text is revised and
paragraph (g) is added to read as follows:
Sec. 740.11 Applicability.
(a) Except as provided in paragraph (g) of this section, upon the
approval of a State regulatory program under part 732 of this chapter
or promulgation of a Federal regulatory program for a State pursuant to
part 736 of this chapter, that program and this subchapter shall apply
to:
* * * * *
(g) Regardless of land ownership, the agency making the
determination, or
[[Page 4860]]
State regulatory program provisions, the definition of valid existing
rights in Sec. 761.5 of this chapter applies to all decisions on
requests for a determination of valid existing rights to conduct
surface coal mining operations on lands within the boundaries of the
areas specified in paragraphs (a)(1) and (a)(2) of Sec. 761.11 of this
chapter.
PART 745--STATE-FEDERAL COOPERATIVE AGREEMENTS
5. The authority citation for Part 745 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 30 U.S.C. 181 et seq.
6. Section 745.10 is revised to read as follows:
Sec. 745.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection
requirements of this part. The OMB clearance number is 1029-0092. This
information is needed to implement section 523(c) of the Act, which
allows States to regulate surface coal mining operations on Federal
lands under certain conditions. States that desire to enter into
cooperative agreements to do so must respond to obtain a benefit.
(b) OSM estimates that the public reporting burden for this part
will average 1,364 hours per respondent, including time spent reviewing
instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Send comments regarding this burden estimate
or any other aspect of these information collection requirements,
including suggestions for reducing the burden, to the Office of Surface
Mining Reclamation and Enforcement, Information Collection Clearance
Officer, 1951 Constitution Avenue, N.W., Washington, DC 20240; and the
Office of Management and Budget, Office of Information and Regulatory
Affairs, Attention: Interior Desk Officer, 725 17th Street, NW,
Washington, DC 20503. Please refer to OMB Control Number 1029-0092 in
any correspondence.
7. In Sec. 745.13, paragraphs (o) and (p) are revised to read as
follows:
Sec. 745.13 Authority reserved by the Secretary.
* * * * *
(o) Determine whether a person possesses valid existing rights to
conduct surface coal mining operations on Federal lands within the
areas specified in paragraphs (a)(1) and (a)(2) of Sec. 761.11 of this
chapter; or
(p) Determine whether there are significant recreational, timber,
economic, or other values that may be incompatible with surface coal
mining operations on any Federal lands within the boundaries of any
national forest, as specified in Sec. 761.11(a)(2) of this chapter.
PART 761--AREAS DESIGNATED BY ACT OF CONGRESS
8. The authority citation for Part 761 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
9. Section 761.5 is amended by removing the definition of ``surface
coal mining operations which exist on the date of enactment'' and
revising the definition of ``valid existing rights'' to read as
follows:
Sec. 761.5 Definitions.
* * * * *
Valid existing rights means the conditions under which a person
may, subject to the requirements of the Act and the pertinent
regulatory program, conduct surface coal mining operations on lands
where 30 U.S.C. 1272(e) and Sec. 761.11 would otherwise prohibit such
operations.
(a) Except as provided in paragraph (b) of this definition, a
person claiming valid existing rights must demonstrate that a legally
binding conveyance, lease, deed, contract, or other document vests that
person with the right, as of the date the land came under the
protection of 30 U.S.C. 1272(e) and Sec. 761.11 of this chapter, to
conduct the type of surface coal mining operations intended.
Interpretation of the documents relied upon to establish the rights to
which this paragraph applies must be based upon applicable State
statutory or case law concerning interpretation of documents of this
nature or, if no applicable State law exists, upon custom and generally
accepted usage at the time and place that the documents came into
existence. In addition, except as provided in paragraph (b) of this
definition, any person claiming valid existing rights must demonstrate
that one of the following conditions exists:
(1) All State and Federal permits and other authorizations required
to conduct surface coal mining operations had been obtained, or a good
faith effort to obtain all necessary permits and authorizations had
been made, before the date the land came under the protection of
Sec. 761.11; or
(2) The land is needed for and immediately adjacent to a surface
coal mining operation for which all State and Federal permits and other
authorizations required to conduct surface coal mining operations had
been obtained, or a good faith effort to obtain all necessary permits
and authorizations had been made, before the date the land came under
the protection of Sec. 761.11.
(b) A person claiming valid existing rights to use or construct an
access or haul road, for use as part of surface coal mining operations,
across the surface of lands protected by Sec. 761.11 must demonstrate
one of the following:
(1) The road was in existence on the date the land upon which it is
located came under the protection of Sec. 761.11;
(2) A right of way or easement for the road was properly recorded
as of the date the land came under the protection of Sec. 761.11;
(3) The regulatory authority had issued a permit for the access or
haul road on the land in question as of the date the land came under
the protection of Sec. 761.11; or
(4) Valid existing rights exist under paragraph (a) of this
definition.
10. Section 761.10 is added to read as follows:
Sec. 761.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Officer of
Management and Budget (OMB) has approved the information collection
requirements of this part. The OMB clearance number is 1029-0102. The
regulatory authority or other responsible agency will use this
information to determine whether a person has valid existing rights or
qualifies for one of the other waivers or exemptions from the general
prohibition on conducting surface coal mining operations in the areas
listed in section 522(e) of the Act. Persons seeking to conduct surface
coal mining operations on these lands must respond to obtain a benefit
in accordance with 30 U.S.C. 1272(e).
(b) OSM estimates that the public reporting and recordkeeping
burden for this part will average 2 hours per response under
Sec. 761.12 and 14 hours per response under Sec. 761.13, including time
spent reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, and completing and reviewing
the collection of information. The burden for Sec. 761.13 includes 6
hours for the person seeking the determination and 8 hours for the
agency processing the request. Send comments regarding this burden
estimate or any other aspect of these information collection and
recordkeeping requirements, including suggestions for reducing the
burden, to the Office of Surface Mining Reclamation and Enforcement,
[[Page 4861]]
Information Collection Clearance Officer, 1951 Constitution Avenue,
N.W., Washington, DC 20240; and the Office of Management and Budget,
Office of Information and Regulatory Affairs, Attention: Interior Desk
Officer, 725 17th Street, NW, Washington, DC 20503. Please refer to OMB
Control Number 1029-0102 in any correspondence.
11. In Sec. 761.11, the section title is revised, paragraphs (a)
through (g) are redesignated as paragraphs (a)(1) through (a)(7) and
revised, the introductory test is redesignated as paragraph (a)
introductory text and revised, paragraph (h) is removed, and a new
paragraph (b) is added to read as follows:
Sec. 761.11 Areas where surface coal mining operations are prohibited
or limited.
(a) Unless a person has valid existing rights as determined in
accordance with Sec. 761.13, no surface coal mining operation except
those identified in paragraph (b) of this section may be conducted
after August 3, 1977:
(1) On any lands within the boundaries of:
(i) The National Park System;
(ii) The National Wildlife Refuge System;
(iii) The National System of Trails;
(iv) The National Wilderness Preservation System;
(v) The Wild and Scenic Rivers System, including study rivers
designated under Sec. 5(a) of the Wild and Scenic Rivers Act (16 U.S.C.
1276(a)) or study rivers or study river corridors established in any
guidelines promulgated pursuant to that Act; or
(vi) National Recreation Areas designated by Act of Congress.
(2) On any Federal lands within the boundaries of any national
forest, except that operations on these lands (excluding lands within
the boundaries of the Custer National Forest) may be permitted if the
Secretary finds that there are no significant recreational, timber,
economic, or other values that may be incompatible with surface coal
mining operations; and:
(i) Any surface operations and impacts will be incident to an
underground coal mine; or
(ii) With respect to lands that do not have significant forest
cover within national forests west of the 100th meridian, the Secretary
of Agriculture has determined that surface mining is in compliance with
the Act, the Multiple-Use Sustained Yield Act of 1960 (16 U.S.C. 528-
531), the Federal Coal Leasing Amendments Act of 1975 (30 U.S.C. 181 et
seq.), and the National Forest Management Act of 1976 (16 U.S.C. 1600
et seq.);
(3) On any lands where the operation will adversely affect any
publicly owned park or any place included in the National Register of
Historic Places, unless the operation is jointly approved by the
regulatory authority and the Federal, State, or local agency with
jurisdiction over the park or place;
(4) Within 100 feet, measured horizontally, of the outside right-
of-way line of any public road, except:
(i) Where a mine access or haul road joins this right-of-way line,
or
(ii) When the regulatory authority (or the appropriate public road
authority designated by the regulatory authority) allows the public
road to be relocated or closed, or the area within the protected zone
to be affected by the surface coal mining operation, after:
(A) Providing public notice and opportunity for a public hearing in
accordance with Sec. 761.12(d); and
(B) Finding in writing that the interests of the affected public
and landowners will be protected;
(5) Within 300 feet, measured horizontally, of any occupied
dwelling, except when:
(i) The owner of the dwelling has provided a written waiver
consenting to surface coal mining operations within the protected zone;
or
(ii) The part of the operation which is located closer than 300
feet to the dwelling is an access or haul road that connects with an
existing public road on the side of the public road opposite the
dwelling;
(6) Within 300 feet, measured horizontally, of any public building,
school, church, community or institutional building, or public park; or
(7) Within 100 feet, measured horizontally, of a cemetery, unless
the cemetery is relocated in accordance with State law.
(b) The prohibitions of paragraph (a) of this section do not apply
to surface coal mining operations for which a valid permit, issued
pursuant to Subchapter G of this chapter or an approved State
regulatory program, existed when the land came under the protection of
paragraph (a) of this section or section 522(e) of the Act (30 U.S.C.
1272(e)), or to other validly authorized operations in existence on
that date. This exemption applies only to lands upon which the
permittee or operator had the right to enter and conduct the permitted
or authorized surface coal mining operations as of the date the land
comes under the protection of this section.
12. Section 761.12 is amended by removing paragraph (h) and
revising the section title, paragraphs (a) through (c), and the
introductory text of paragraph (d) to read as follows:
Sec. 761.12 Coordination with permitting process; waiver requirements
and procedures.
(a) When the regulatory authority receives an administratively
complete application for a permit for a surface coal mining operation
or an administratively complete application for revision of the
boundaries of a surface coal mining operation permit, the regulatory
authority must review the application to determine whether the proposed
surface coal mining operation would be located on any lands protected
under Sec. 761.11(a). The regulatory authority must reject any portion
of the application that would locate surface coal mining operations on
those lands unless the applicant:
(1) Qualifies for the existing operation exemption under
Sec. 761.11(b);
(2) Obtains a waiver or exception from the prohibitions of
Sec. 761.11(a) in accordance with paragraphs (c) through (f) of this
section; or
(3) Has valid existing rights as determined in accordance with
Sec. 761.13.
(b) If the regulatory authority has difficulty determining whether
an application reviewed under paragraph (a) of this section includes
land within an area specified in Sec. 761.11(a)(1) or within the
specified distance from a structure or feature listed in paragraph
(a)(6) or (a)(7) of Sec. 761.11, the regulatory authority must request
that the Federal, State, or local governmental agency with jurisdiction
over the protected land, structure, or feature verify the location.
(1) The request for location verification must include:
(i) Relevant portions of the permit application;
(ii) A notice that any response provided more than 30 days after
receipt of the request for location verification will not necessarily
be considered during the application review process; and
(iii) A notice that, upon request, the agency will receive an
additional 30 days to respond.
(2) If the agency does not respond in a timely manner, the
regulatory authority may make the necessary determination based on
available information.
(c) A person who intends to conduct surface coal mining operations
on Federal lands within the boundaries of a national forest under the
compatibility provisions of Sec. 761.11(a)(2) must submit to OSM a
request that the Secretary make the findings required by
Sec. 761.11(a)(2). If a person submits a request before preparing and
submitting a permit application, the request must include sufficient
information about the nature and location of the proposed
[[Page 4862]]
operation for the Secretary to evaluate the request and make adequately
documented findings. The regulatory authority may not issue a permit
for the proposed operation or approve a proposed boundary revision
unless these findings have been made.
(d) When a person proposes to relocate or close a public road, or
to conduct surface coal mining operations (other than mine access and
haul roads as provided in Sec. 761.11(a)(4)(i)) within 100 feet,
measured horizontally, of the outside right-of-way line of a public
road, the regulatory authority or public road authority designated by
the regulatory authority must:
* * * * *
13. Section 761.13 is added to read as follows:
Sec. 761.13 Submission and processing of requests for valid existing
rights determinations.
(a) Agency responsible for making valid existing rights
determinations.
(1) Except as provided in paragraph (a)(2) of this section, the
regulatory authority will make valid existing rights determinations for
all lands listed in Sec. 761.11(a).
(i) In making these determinations, the regulatory authority must
use the definition of valid existing rights in Sec. 761.5 for land
within the boundaries of the areas specified in Sec. 761.11(a)(1).
(ii) For all other lands, the regulatory authority must use the
definition of valid existing rights in the applicable regulatory
program.
(2) OSM will make all determinations as to whether a person has
valid existing rights to conduct surface coal mining operations on
Federal lands within the areas specified in paragraphs (a)(1) and
(a)(2) of Sec. 761.11. In making these determinations, OSM will use the
definition of valid existing rights in Sec. 761.5.
(b) What persons requesting valid existing rights determinations
must submit. A person who, on the basis of valid existing rights,
intends to conduct surface coal mining operations on lands listed in
Sec. 761.11(a) must submit a request to the appropriate agency under
paragraph (a) of this section. The request may be submitted with or
without an application for a permit or boundary revision for those
lands.
(1) If the request is based on one of the standards for access and
haul roads in paragraphs (b)(1) through (b)(3) of the definition of
valid existing rights in Sec. 761.5, the requester must submit
satisfactory documentation that:
(i) The road existed on the date that the land upon which it is
located came under the protection of Sec. 761.11;
(ii) A right of way or easement for the road was properly recorded
as of the date the land came under the protection of Sec. 761.11; or
(iii) The regulatory authority had issued a permit for an access or
haul road in that location as of the date the land came under the
protection of Sec. 761.11.
(2) If the request is based on the standards in paragraph (a) of
the definition of valid existing rights in Sec. 761.5, the requester
must submit:
(i) A legal description of the land to which the request pertains;
(ii) Complete documentation of the character and extent of the
requester's current interests in the surface and mineral estates of the
land to which the request pertains;
(iii) A complete chain of title for the surface and mineral estates
of the land to which the request pertains;
(iv) A description of the nature and effect of each title
instrument, including any provisions pertaining to the method of mining
or mining-related surface disturbances and facilities;
(v) Complete documentation of the nature and ownership of all
property rights for the surface and mineral estates of the land to
which the request pertains as of the date the land came under the
protection of Sec. 761.11;
(vi) If the coal interests have been severed from other property
interests and the surface estate is held by a Federal agency, a title
opinion or other official statement from the Federal agency confirming
that the requester has a property right to conduct the type of surface
coal mining operations intended;
(vii) A description of the type and extent of surface coal mining
operations planned, including the intended method of mining and any
mining-related surface facilities, and an explanation of how the
planned operations are consistent with State property law;
(viii) If the request is based on the standard in paragraph (a)(2)
of the definition of valid existing rights in Sec. 761.5, an
explanation of why and how the coal is needed for the operation; and
(ix) If the request is based on the standard in paragraph (a)(1) of
the definition of valid existing rights in Sec. 761.5, the application
dates and identification numbers and, if applicable, approval and
issuance dates and identification numbers for any licenses, permits,
and authorizations for surface coal mining operations on the land to
which the request pertains. This requirement applies only to licenses,
permits, and authorizations that the requester or predecessor in
interest held or had applied for as of the date the land came under the
protection of Sec. 761.11.
(c) Notice and comment requirements and procedures.
(1) When an agency receives a request for a determination of valid
existing rights, the agency must publish a notice in a newspaper of
general circulation in the county in which the land is located inviting
comment on whether the request should be approved. If the request
involves Federal lands within the boundaries of an area listed in
paragraph (a)1) or (a)(2) of Sec. 761.11, OSM will publish a similar
notice in the Federal Register. The notice must include:
(i) The applicable standard(s) under the definition of valid
existing rights in Sec. 761.5;
(ii) The location of the land to which the request pertains;
(iii) The name and address of the agency office to which comments
should be addressed;
(iv) The closing date of the comment period, which must be
sufficient to afford interested persons a reasonable opportunity to
prepare and submit comments;
(v) A description of the property rights claimed and the basis for
the claim;
(vi) A description of the type of surface coal mining operations
planned; and
(vii) A description of the procedures the agency will follow in
processing the request.
(2) The agency must provide a copy of the notice to the owner of
the structure or feature causing the land to come under the protection
of Sec. 761.11(a).
(3) If the land to which the request pertains involves severed
estates or divided interests, the agency must make a reasonable effort
to provide a copy of the notice to all owners of interest, both surface
and mineral.
(4) When a request pertains to land within the boundaries of an
area protected under Sec. 761.11(a)(1) or 30 U.S.C. 1272(e)(1), the
agency responsible for the VER determination must notify the agency
with jurisdiction over the protected land and provide that agency 30
days (with an option for a 30-day extension upon request) from receipt
of the notification to comment. If the agency with jurisdiction over
the land fails to respond in a timely manner, the agency responsible
for the VER determination may make the determination in accordance with
paragraph (d) of this section.
(d) How a decision will be made.
(1) The agency responsible for making the determination of valid
existing
[[Page 4863]]
rights must review the materials submitted under paragraph (b) of this
section, comments received under paragraph (c) of this section, and any
other relevant information to determine whether the record supports a
decision in favor of the requester. If not, the agency must notify the
requester in writing, explaining the inadequacy of the record and
requesting submittal, within a reasonable time, of any additional
information the agency deems necessary to remedy the inadequacy.
(2) Upon receipt of the requested information or other explanation,
the responsible agency must determine whether the requester has
demonstrated valid existing rights.
(i) The decision document must explain how the requester has or has
not satisfied all applicable elements of the definition of valid
existing rights in Sec. 761.5. It must set forth the relevant findings
of fact and conclusions and specify the reasons for the conclusions.
(ii) If the underlying property rights are in dispute, the agency
must defer a decision until the legal dispute is resolved.
(3) After making a decision, the agency must:
(i) Provide a copy of the decision to the requester and the owner
of, or agency with jurisdiction over, the area or feature that caused
the land to come under the protection of Sec. 761.11(a); and
(ii) Publish notice of the decision in a newspaper of general
circulation in the county in which the land is located. If the request
includes Federal lands within an area listed in paragraph (a)(1) or
(a)(2) of Sec. 761.11, OSM will publish notice of the decision in the
Federal Register.
(e) Administrative and judicial review. A determination under this
section that a person has or does not have valid existing rights is
subject to administrative and judicial review under Secs. 775.11 and
775.13 of this chapter.
PART 772--REQUIREMENTS FOR COAL EXPLORATION
14. The authority citation for Part 772 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq. and 16 U.S.C. 470 et seq.
15. Section 772.10 is revised to read as follows:
Sec. 772.10 Information collection.
(a) In accordance with 44 U.S.C. 3501 et seq., the Office of
Management and Budget (OMB) has approved the information collection and
recordkeeping requirements of this part. The OMB clearance number is
1029-0033. OSM and State regulatory authorities use the information
collected under this part to maintain knowledge of coal exploration
activities, evaluate the need for an exploration permit, and ensure
that exploration activities comply with the environmental protection,
public participation, and reclamation requirements of parts 772 and 815
of this chapter and section 512 of SMCRA (30 U.S.C. 1262). Persons
seeking to conduct coal exploration must respond to obtain a benefit.
(b) OSM estimates that the combined public reporting and
recordkeeping burden for all respondents under this part will average
11 hours per notice or application submitted, including time spent
reviewing instructions, searching existing data sources, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. Specifically, OSM estimates that preparation
of a notice of intent to explore under Sec. 772.11 will require an
average of 10 hours, preparation and processing of an application for
coal exploration under Sec. 772.12 will require an average of 103
hours, compliance with Sec. 772.14 will require an average of 18 hours,
and recordkeeping and information collection under Sec. 772.15 will
require an average of approximately 1 hour per response. Send comments
regarding this burden estimate or any other aspect of these information
collection requirements, including suggestions for reducing the burden,
to the Office of Surface Mining Reclamation and Enforcement,
Information Collection Clearance Officer, 1951 Constitution Avenue,
N.W., Washington, DC 20240; and the Office of Management and Budget,
Office of Information and Regulatory Affairs, Attention: Interior Desk
Officer, 725 17th Street, NW, Washington, DC 20503. Please refer to OMB
Control Number 1029-0033 in any correspondence.
16. Section 772.12 is amended by revising the section title and
paragraphs (d)(2)(ii) and (d)(2)(iii) and adding paragraphs (b)(14) and
(d)(2)(iv) to read as follows:
Sec. 772.12 Permit requirements for exploration that will remove more
than 250 tons of coal or that will occur on lands designated as
unsuitable for surface coal mining operations.
* * * * *
(b) * * *
(14) For the lands described in Sec. 761.11(a) of this chapter, a
demonstration that one of the following conditions exists:
(i) The exploration activities will not substantially disturb these
lands.
(ii) The owner of the coal possesses valid existing rights as that
term is defined in Sec. 761.5 of this chapter. The demonstration of
valid existing rights must be made in accordance with the requirements
and procedures of Sec. 761.13 of this chapter. The demonstration and
request for a determination of valid existing rights may be submitted
in advance of the remainder of the coal exploration permit application.
When the agency makes a determination in the absence of a permit
application, the determination is subject to administrative and
judicial review under Sec. 761.13(e) of this chapter.
(iii) The exploration is needed for mineral valuation purposes or
authorized by judicial order.
(iv) The applicant has obtained a waiver or exception in accordance
with paragraphs (c) through (f) of Sec. 761.12 of this chapter.
* * * * *
(d) * * *
(2) * * *
(ii) Not jeopardize the continued existence of an endangered or
threatened species listed pursuant to section 4 of the Endangered
Species Act of 1973 (16 U.S.C. 1533) or result in the destruction or
adverse modification of critical habitat of those species;
(iii) Not adversely affect any cultural or historical resources
listed on the National Register of Historic Places pursuant to the
National Historic Preservation Act, as amended (16 U.S.C. 470 et seq.
and Pub. L. 102-575), unless the proposed exploration has been approved
by both the regulatory authority and the agency with jurisdiction over
the resources to be affected; and
(iv) Not substantially disturb any lands listed in Sec. 761.11(a)
of this chapter unless the applicant has:
(A) Obtained a waiver or exception in accordance with paragraphs
(c) through (f) of Sec. 761.12 of this chapter;
(B) Demonstrated the existence of valid existing rights in
accordance with Sec. 761.13 of this chapter; or
(C) Demonstrated that the disturbance is needed for mineral
valuation purposes or is authorized by judicial order.
* * * * *
[FR Doc. 97-2184 Filed 1-30-97; 8:45 am]
BILLING CODE 4310-05-M
