Notice of Intent To Prepare an Environmental Impact Statement

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

Notice of Intent To Prepare an Environmental Impact Statement

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

ACTION: Notice of intent to prepare an environmental impact statement

and to hold scoping meetings.

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

proposes to revise a draft environmental impact statement (EIS) which

analyzed the environmental impacts of the alternatives for rulemakings

that would (1) define the term Valid Existing Rights (VER), and (2)

determine the degree, if any, to which subsidence resulting from

underground coal mining is subject to the prohibitions of section

522(e) of the Surface Mining Control and Reclamation Act of 2977

(SMCRA). OSM invites comments on the scope of the analysis and will

hold scoping meetings upon request. OSM would like to emphasize,

however, the comments received on the previous draft EIS are being

considered and need not be re-submitted.

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

of the EIS until 5 p.m. Eastern Time on May 31, 1994.

Scoping meetings: OSM will meet with interested persons upon

request to discuss the scope of the EIS until May 31, 1994. See

ADDRESSES for the location of the meetings.

ADDRESSES: Written comments: Hand deliver to the Office of Surface

Mining Reclamation and Enforcement, Administrative Record, room 660,

800 North Capitol Street, NW., Washington, DC; or mail to the Office of

Surface Mining Reclamation and Enforcement, Administrative Record 660-

NC, 1951 Constitution Avenue NW., Washington, DC 20240.

Scoping meetings: Upon request, OSM staff will be available to meet

with interested persons, individually or in groups, during the comment

period at the following OSM locations: Eastern Support Center, Ten

Parkway Center, Pittsburgh, Pennsylvania 15220 (Contact: Chuck Wolf,

412-937-2897); Western Support Center, 1020 15th Street, Second Floor,

Denver, Colorado 80202 (Contact: Floyd McMullen, 303-844-3104);

Knoxville Field Office, 530 Gay Street, suite 500, Knoxville, Tennessee

37902 (Contact: Gary Tucker, 615-545-4122); and Branch of Environmental

and Economic Analysis, rm 640, 800 North Capitol Street, Washington, DC

20002 (Contact: Andy Devito, 202-343-5150).

FOR FURTHER INFORMATION CONTACT:

Andy DeVito, Office of Surface Mining Reclamation and Enforcement, 1951

Constitution Avenue NW., room 640-NC, Washington, DC 20240; Telephone:

202-343-5150.

SUPPLEMENTARY INFORMATION: OSM proposes to revise the draft EIS that

was made available to the public on April 19, 1991 (56 FR 16102). The

draft EIS analyzed the environmental impacts of the alternatives for a

rulemaking that would (1) define the term VER, and (2) determine the

degree, if any, to which subsidence resulting from underground coal

mining is subject to the prohibitions of section 522(e) of SMCRA.

OSM had decided to issue a revised draft for two reasons. First,

prior to the close of the comment period on the April 1991 draft EIS,

OSM published a notice (56 FR 33170, July 18, 1991), which informed the

pubic that, in response to an inquiry from OSM, the Department of the

Interior's Office of the Solicitor had recently revised the issue of

whether the prohibitions of section 522(e) of SMCRA apply to subsidence

resulting from underground coal mining, and issue a Memorandum Opinion

(M-36971, July 10, 1991). The Solicitor's Memorandum Opinion concluded

that the best interpretation of SMCRA is that subsidence is not a

surface coal mining operation subject to the prohibitions of section

522(e). The July 18, 1991 Federal Register notice also stated that OSM

had determined that existing regulations were consistent with the

position and, therefore, no further rulemaking on the issue was

necessary. In an August 1, 1991 notice (56 FR 36843), extending the

comment period on the draft EIS, OSM informed the public that

commenters should be aware that since the issuance of the draft EIS,

the issue of whether and to what degree subsidence is covered by the

mining prohibitions set forth in section 522(e) of SMCRA, had been

resolved as a result of the Solicitor's Opinion and the July 18 1991

Federal Register notice.

In September 1991, a lawsuit was filed against the Secretary,

challenging the July 18, 1991 Federal Register notice. On September 22,

1993, in National Wildlife Federation v. Babbitt, No. 91-2275,

(D.D.C.), the court held that OSM's July 18, 1991 Federal Register

notice concerning the applicability of section 522(e) to subsidence was

a legislative rule issued in violation of the Administrative Procedure

Act (APA). The court remanded the matter to the Secretary for

rulemaking in accordance with the requirements of the APA. The court

also noted for the record that OSM must either prepare an EIS or state

on the record the reasons why an EIS had not bee prepared.

OSM also intends to publish a new proposed rule defining VER.

Since both the VER rule and the rule on the applicability of 522(e)

to subsidence relate to the scope of the prohibitions of 522(e), and

both rules have been previously addressed in a combined draft EIS on

two occasions, OSM again intends to issue a revised draft EIS

addressing both rules.

The second reason for a revised draft EIS is that it will have the

benefit of the many comments that were submitted on the April 1991

draft EIS.

Previous Scoping Activity

OSM published a notice of intent to conduct rulemaking on the

applicability of the prohibitions in section 522(e) (4) and (5) to

subsidence resulting from underground mining on April 3, 1985 (50 FR

13250). Subsequently, OSM published a notice of intent to prepare an

EIS to analyze the environmental impacts of the rulemaking on

subsidence, as required by the National Environmental Policy Act

(NEPA), on June 19, 1985 (50 FR 25473). Scoping meetings were then held

in Pittsburgh, Pennsylvania, on August 1, 1985; in St. Louis, Missouri,

on August 6, 1985; and in Washington, DC, on August 9, 1985. OSM

received written comments during that period also.

Based on the comments received, OSM decided to combine the

environmental analysis of a rulemaking on VER with the analysis of the

rulemaking on subsidence. On January 22, 1987 (52 FR 2421), OSM

published a notice of intent to (1) prepare an EIS on those

rulemakings, and (2) hold a scoping meeting to address public comments

on February 6, 1987, in Washington, DC. The public meeting was held to

receive comments from interested persons on the specific alternatives

evaluated in the EIS and on the scope and significance of the issues to

be analyzed. Federal agencies whose lands would be affected also were

invited to discuss data problems. Upon request, OSM held a second

meeting on February 23, 1987, to hear comments from environmental

groups unable to attend the February 6, 1987 meeting. Again, OSM

received written comments.

All written comments submitted as part of scoping for the EIS, as

well as all testimony presented at the public meetings on the EIS, were

considered in the preparation of that draft EIS, which was published

concurrently with a proposed rule addressing both VER and subsidence on

December 27, 1988. However, on July 21, 1989 (54 FR 30557), OSM

withdrew the proposed rule.

Subsequently, OSM made a decision to consider the VER rulemaking

and the rulemaking on the applicability of section 522(e) to subsidence

separately. At the same time, OSM decided to continue to include

analysis of both rulemakings in the same EIS due to the interrelated

nature of their effects, and the draft EIS, entitled OSM-EIS-29, was

issued on April 19, 1991. The comment period on the draft EIS closed on

October 16, 1991.

As a result of prior scoping meetings and the publication of the

draft EIS, OSM has received numerous comments on both the scope of the

analysis and the alternatives considered in the draft EIS. However, the

public is again invited to submit comments on the scope of the

analysis, the assumptions and scope of data relating to the analysis,

and the issues and alternatives to be analyzed in the revised draft

EIS. OSM would like to emphasize that comments received on the previous

draft EIS are being considered and need not be re-submitted. OSM staff

will be available to meet with interested persons upon request to

discuss the scope of the revised draft EIS. Since the meetings will be

informal, OSM will not be using a court reporter and would appreciate

receiving, if possible, a written copy of the comments they intend to

present at the meeting.

Alternatives Considered

The alternatives considered in the April 1991 draft EIS are listed

below. It is possible that the number of alternatives actually

considered in the revised draft EIS may be revised as a result of

comments received during scoping, analysis of comments received on

previous drafts, further legal analysis, or further analysis by the

Department. The public is invited to submit any other alternatives that

it believes are reasonable and should be considered.

VER Alternatives

For the definition of VER, the four alternatives considered were:

1. No Action

No Action means that OSM would not promulgate a rule defining VER

and that OSM would continue to make VER determinations consistent with

existing law.

2. Good Faith All Permits Standard

The good faith all permits Standard (GFAP) would require any person

seeking confirmation of VER to show that he had made a good faith

effort to obtain all permits before August 3, 1977, or before the date

the land in question became subject to the prohibitions of section

522(e). It is anticipated that few persons would be able to meet this

test for determining VER.

3. GFAP or Takings Standard

Under this alternative, VER would be found to exist if the person

can demonstrate that he had made a good faith effort to obtain all

permits before August 3, 1977 (or before the date the land became

subject to the prohibitions of section 522(e)), or if denial of VER

would be projected to result in a compensable taking of property.

4. Ownership and Authority Standard

Under the Ownership and Authority (O&A) standard for VER, the

person claiming VER for a surface coal mining operation would have to

demonstrate ownership of the coal and the authority to extract the coal

by the method intended, as determined by the laws of the State in which

the property is located.

Subsidence Alternatives

There were five alternatives in the draft EIS for determining the

degree, if any, to which subsidence resulting from underground coal

mining is subject to the prohibitions of section 522(e) of SMCRA.

Because the Solicitor's Memorandum Opinion M-36971 advised that the

best reading of SMCRA is that the prohibitions of section 522(e) do not

apply to subsidence resulting from underground coal mining, OSM is

considering this opinion and will consult further with the Solicitor on

this issue. OSM anticipates including in the revised draft EIS the five

alternatives which were analyzed in the April 1991 draft EIS.

OSM intends to ensure that, whatever rule is proposed and adopted,

the impacts of that alternative will already have been analyzed.

Therefore, it would not be necessary to again undertake the time

consuming and expensive task of preparing another EIS. The alternatives

in the April 1991 draft EIS were.

1. No Action

Under this alternative, OSM would not promulgate new rules to

clarify whether subsidence is subject to the prohibitions of section

522(e). The determination of the applicability of the prohibitions to

subsidence would continue to be made by OSM and the States pursuant to

the applicable approved regulatory programs.

2. No Mining Standard

Underground extraction would be considered subject to the

prohibitions of section 522(e). Because virtually all underground

mining may eventually result in subsidence, all underground extraction

would be prohibited within the 522(e) areas. Depending on the angle of

draw and depth of seam characteristics, some extraction of coal outside

the protected areas might also be prohibited if it would be expected to

cause subsidence within the protected areas.

3. No Subsidence Standard

Subsidence would be considered prohibited by section 522(e). Mining

operations that would be expected to cause subsidence within the

section 522(e) areas in the reasonably foreseeable future would be

subject to the prohibitions of section 522(e).

4. No Material Damage Standard

Subsidence that would be expected to cause material damage would be

considered subject to the prohibitions of section 522(e). Unless an

operator can demonstrate that underground mining would not reasonably

be expected to result in subsidence that causes material damage such as

functional impairment to protected surface features, structures, or

facilities, underground mining would be prohibited in the section

522(e) areas.

5. Prohibitions Do Not Apply Standard

Subsidence would not be considered subject to the prohibitions of

section 522(e). Restrictions set forth in section 515 of SMCRA and the

implementing regulations in 30 CFR part 817 would still apply. Surface

activities and facilities related to underground coal mining would

continue to be prohibited in the 522(e) areas.

Considerations

The proposed Federal actions would be programmatic national

rulemaking that would clarify the meaning of statutory prohibitions,

but would neither allow nor prohibit mining in any site-specific case.

Therefore, the analysis in the revised draft EIS will be programmatic

in nature rather than site-specific. OSM anticipates including a

generic discussion of the impacts that could be expected to result from

various types of surface and underground coal mining activities should

they occur in each of the protected areas, 522(e)(1)-(5).

Dated: April 19, 1994.

Brent Wahlquist,

Assistant Director, Reclamation and Regulatory Policy.

[FR Doc. 94-9966 Filed 4-26-94; 8:45 am]

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