Availability of Petition To Initiate Rulemaking; Minimum Requirements for Legal, Financial, Compliance, and Related Information

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 778

Availability of Petition To Initiate Rulemaking; Minimum

Requirements for Legal, Financial, Compliance, and Related Information

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Notice of availability of a petition to initiate rulemaking and

request for comment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)

of the United States Department of the Interior (DOI) seeks comments

concerning the rule changes requested in a petition, submitted pursuant

to the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the

Act). The petition requests OSM to amend its regulations governing the

right-of-entry information (30 CFR 778.15) that must be submitted in a

permit application to meet the minimum requirements for legal,

financial, compliance, and related information. Comments will assist

the Director of OSM in making the decision whether to grant or deny the

petition.

DATES: Written Comments: OSM will accept written comments on the

petition until 5 p.m. Eastern time on April 27, 1994.

ADDRESSES: Written Comments: Mail comments to the Office of Surface

Mining Reclamation and Enforcement, Administrative Record, room 660-NC,

1951 Constitution Avenue, NW., Washington, DC 20240; or hand-deliver

the comments to the Office of Surface Mining Reclamation and

Enforcement, Administrative Record, room 660, 800 North Capitol Street,

NW., Washington, DC.

FOR FURTHER INFORMATION CONTACT:Scott Boyce, Office of Surface Mining

Reclamation and Enforcement, U.S. Department of the Interior, 1951

Constitution Avenue, NW., Washington, DC 20240; Telephone; 202-343-

3839.

SUPPLEMENTARY INFORMATION:

I. Public Comment Procedure.

II. Background and Substance of Petition.

III. Procedural Matters.

I. Public Comment Procedures

Written Comments: Written comments on the requested change should

be specific, should be confined to issues pertinent to the proposed

revision, and should explain the reason for the comment. Where

practicable, commenter should submit three copies of their comments.

Comments received after the close of the comment peirod (see DATES) or

delivered to an address other than those listed (see ADDRESSES) may not

necessarily be considered or included in the Administrative Record on

the petition.

Availability of Copies: Additional copies of the petition, copies

of 30 CFR part 778, and other OSM and Kentucky State program

regulations relevant to the right-of-entry requirements for permit

applications are available for inspection and may be obtained at the

location listed under ADDRESSES.

Public Hearing: OSM will not hold a public hearing on the proposed

revision, but OSM personnel will be available to meet with the public

during business hours, 9 a.m. to 5 p.m., during the comment period. In

order to arrange such a meeting, call or write to the person identified

under FOR FURTHER INFORMATION CONTACT.

II. Background and Substance of Petition

The Department of the Interior received a letter dated January 31,

1994, from James Kringlen, Attorney at Law, Appalachian Research and

Defense Fund, Inc., Charleston, West Virginia, as a petition for

rulemaking. The petitioner requested that ``* * * a new regulation be

issued by the Office of Surface Mining or the Department of the

Interior, as appropriate, which would require all permit applications

for surface mining include documentation with public records

identifying the surface owners of the property they propose to mine as

well as the property contiguous to the proposed mining property.''

Under section 201(g) of SMCRA, any person may petition the Director

of OSM to initiate a proceeding for the issuance, amendment, or repeal

of any of the regulations implementing SMCRA. Under the applicable

regulations for rulemaking petitions, 30 CFR 700.12, this notice seeks

public comment on the merits of the petition and on the rule changes

requested in the petition.

At the close of the comment period, a decision will be made whether

to grant or deny the petition. Under 30 CFR 700.12, the Director shall

issue a written decision either granting or denying the petition within

90 days of the date of its receipt. Soon thereafter, notice of that

decision will be published in the Federal Register. If the petition is

granted, rulemaking proceedings will be initiated in which public

comment will again be sought before a final rulemaking notice appears.

If the petition is denied, no further rulemaking action will occur

pursuant to the petition.

III. Procedural Matters

Publication of this notice of the receipt of the petition for

rulemaking is a preliminary step prior to the initiation of the

rulemaking process. If a decision is made to grant the petition, a

rulemaking process will be initiated. Thus, no regulatory flexibility

analysis is needed at this stage, nor a review under Executive Order

12866.

Publication of this notice does not constitute a major Federal

action having a significant effect on the human environment for which

an environmental impact statement under the National Environmental

Policy Act, 44 U.S.C. 4322(a)(c), is needed.

List of Subjects in 30 CFR Part 778

Reporting and recordkeeping requirements, Surface mining,

Underground mining.

Dated: March 21, 1994.

Robert J. Uram,

Director, Office of Surface Mining, Reclamation and Enforcement.

Appendix

The text of the petition dated January 31, 1994, (received February

3, 1994), from James Kringlen is as follows:

January 31, 1994.

Bruce Babbitt, Secretary of the Interior

Suite 6151, Main Interior Building, 1849 C Street, NW., Washington,

D.C. 20240.

Re: Petition for Rule-Making under SMCRA

Dear Secretary Babbitt: I am writing to inform you of a

substantial and serious absence of protection of surface owner's

rights which the Surface Mining, Reclamation and Control Act was

intended to protect. Specifically, when coal companies apply for

surface mining permits to State agencies responsible for SMCRA

enforcement, they are not required to provide proof of any kind

regarding who owns the surface of the property the coal company

seeks to strip mine. In other words, the coal companies set forth

the name or names of the persons or companies that own the surface

without any documentation, and the various States simply assume the

correctness of the coal companies' representations. My experience

has shown that it is very risky to presume the good faith or the

accuracy of information submitted by coal companies in their permit

applications.

My concern is prompted chiefly by my experience representing an

elderly woman in Perry County, Kentucky, in her efforts to prevent a

coal company from getting a surface mining permit for her property.

At the time, I was a staff attorney with the Appalachian Research

and Defense Fund of Kentucky, Inc., a Legal Services Corporation-

funded legal aid program in eastern Kentucky (at present I am a

staff attorney with its sister program in West Virginia, Appalachian

Research and Defense Fund, Inc.). My client, America Caudill, came

to me in July, 1992, frustrated in her efforts to protect her small

piece of land that she and her now deceased husband had purchased in

1940. (Enclosed is a copy of a newspaper article about Mrs.

Caudill's difficulty.) After seeing the company's (Sheena Coal

Company) published notice in the local newspaper indicating that it

had applied for a surface mining permit in the vicinity of her home,

she took the time and effort to go to the local Department for

Surface Mining Reclamation and Enforcement (``DSMRE'') (some forty

miles from her home) in order to examine the permit application.

Much to her dismay, she saw that Sheena Coal sought a permit to

strip mine her property, but the application utterly failed to

identify her as the owner of the surface! Instead, the application

and accompanying maps asserted that America's neighbors on either

side of her property were the owners of her property as well!

Mrs. Caudill then attempted to exercise the citizen's rights

provisions of SMCRA by requesting the DSDRE to deny the permit

because it failed to identify her as an owner of the surface as

required by SMCRA, and because she had not given Sheena Coal

permission to mine her property. In reply, the State of Kentucky

advised Mrs. Caudill that her contention amounted to a mere private

``property title dispute'' which it lacked the authority to resolve.

They further advised her that they were going to issue the permit

without further ado, which they did. They were kind enough to advise

her of her right to petition for a hearing pursuant to SMCRA's

provisions, further advising her to whom she should write to request

the hearing and nothing more. Mrs. Caudill followed up with a

written request for a hearing, but the attorney for the Kentucky

Natural Resources and Environmental Protection Cabinet promptly

filed a motion to dismiss her petition for hearing on the basis that

her request for a hearing had failed to set forth with particularity

the items required by the applicable State regulations.\1\ Never

mine that Mrs. Caudill had already provided all of that information

in her previous communications with the State of Kentucky and that

the letter advising her of her right to request a hearing failed to

advise her of the particular requirements for a hearing request

under the regulation.

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\1\To its credit, the Cabinet subsequently adopted a policy, as

a result of this case, whereby the Cabinet will not seek the

dismissal of citizen hearing requests without substantial

justification.

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It was at this point that Mrs. Caudill came to me and requested

assistance. The first thing I did was to check the public records at

the Property Valuation Administrator's office in the County

Courthouse. This office includes aerial photographs of every square

inch of the county as well as the property lines and owners of

record of the surface. There on file was the public evidence of Mrs.

Caudill's and her deceased husband's surface ownership of the very

land that Sheena Coal proposed to strip mine. I submitted this

documentation to the State as well as a previous letter from the

President of Sheena Coal Company to Mrs. Caudill in which he

acknowledged that he had no right to mine her property, but

indicating his hope that she would some day give him permission to

do so. In the end, Sheena Coal was compelled to amend its permit so

as to delete Mrs. Caudill's property.

I subsequently learned that very often coal companies knowingly

submit permit applications which fail to identify all of the surface

owners of record. Usually, this is done because the company does not

have all of the surface owners' permission to mine, although they

are negotiating with them and expect, or merely hope, that they will

get such permission later. However, they wish to get the permit as

quickly as possible without the cost and delay associated with

incremental permit applications as they may obtain permission or

agreements from various surface owners to the company's proposed

surface mining. Furthermore, the more surface owners identified in

the application, the more post-mining documents they must prepare

and submit to the State upon completion of mining. Since the States

require neither documentation of the ownership of the surface of

property proposed for surface mining, nor verify the information

provided by coal companies in the permit application review process,

the coal companies have little incentive to accurately identify the

surface owners of the property. The biggest danger here, of course,

is that some surface owners may find their property being strip

mined, notwithstanding that they never granted permission to mine to

the mining permittee. Further, the permittee could be expected to

defend itself by highlighting the fact that the State had given a

permit to mine the property.

This major loophole in the law should be closed. I propose a new

regulation be issued by the Office of Surface Mining or the

Department of the Interior, as appropriate, which would require all

permit applications for surface mining include documentation with

public records identifying the surface owners of the property they

propose to mine as well as the property contiguous to the proposed

mining property.

Please consider this much needed corrective regulation. The

rights of citizens such as America Caudill will continue to be

overlooked despite the protective provisions in SMCRA unless coal

companies are required to document the information they provide in

their surface mining permit applications. Please advise me whether

your Department may pursue this matter. Also, please call or write

to me if you desire any further information or if there is anything

further that I can do to assist you and your Department in its

consideration of my request.

Sincerely,

James Kringlen,

Attorney at Law.

[FR Doc. 94-7218 Filed 3-25-94; 8:45 am]

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