Availability of Decision; 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 Decision; Minimum Requirements for Legal,

Financial, Compliance and Related Information

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

action: Notice of decision on petition for rulemaking.

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

is making available to the public its final decision on a petition for

rulemaking from Mr. James Kringlen, Attorney at Law, Appalachian

Research and Defense Fund, Inc., Charleston, West Virginia. 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.'' OSM is denying

the petition for reasons outlined in this document.

addresses: Copies of the petition, and other relevant materials

comprising the Administrative Record of this petition are available for

public review and copying at Office of Surface Mining Reclamation and

Enforcement, Room 660, 800 North Capitol Street NW., Washington, DC

20001.

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. Petition for Rulemaking Process.

II. The Kringlen Petition.

I. Petition for Rulemaking Process

Pursuant to section 201(g) of the Surface Mining Control and

Reclamation Act of 1977 (SMCRA or the Act), any person may petition the

Director of OSM for a change in OSM's regulations. The regulations

governing the handling of rulemaking petitions are found at 30 CFR

700.12. Under the rules, the Director may publish a notice in the

Federal Register seeking comments on the petition and hold a public

hearing, conduct an investigation, or take other action to determine

whether the petition should be granted. If the petition is granted, the

Director initiates a rulemaking proceeding. If the petition is denied,

the Director notifies the petitioner in writing setting forth the

reasons for denial. Under 30 CFR 700.12 the Director's decision

constitutes the final decision for the Department of the Interior.

II. The Kringlen 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 [[Page 5604]]

contiguous to the proposed mining property.''

For the reasons discussed in the appendix to this notice, the

Director has denied the petition. The Director's letter of response to

the petitioner on this rulemaking petition appears in the appendix to

this notice. This letter reports the Director's decision to the

petitioner. Included in the appendix is an evaluation report on the

issues raised by the petitioner. Included in this report is a

discussion of the comments received on the petition and OSM's position

on the issues.

Dated: January 18, 1995.

Robert Uram,

Director, Office of Surface Mining Reclamation and Enforcement.

Appendix

January 18, 1995.

Mr. James Kringlen,

Appalachian Research and Defense Fund, Inc., 1116-B Kanawha

Boulevard, East, Charleston, West Virginia 25301.

Dear Mr. Kringlen: This is in response to your letter of January

31, 1994, to Bruce Babbitt, Secretary of the Interior, which was

forwarded to the Office of Surface Mining Reclamation and

Enforcement (OSM) for appropriate action. In your letter you propose

that ``. . . a new regulation be issued by OSM or the Department of

the Interior (DOI), 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.''

On March 28, 1994, OSM published a notice of availability in the

Federal Register and requested comments on the petition (59 FR

14374). The comment period closed on April 27, 1994. Nine comments

were received by OSM during the comment period.

After careful consideration of the arguments presented in the

petition and public comments, I am denying the petition. The basis

for my decision is fully disclosed in the enclosed evaluation of the

petition. As provided in 30 CFR 700.12, this decision constitutes

the final decision for the Secretary of the Interior.

I would like to take this opportunity to thank you for bringing

the problems faced by Mrs. Caudill to our attention. Efforts such as

yours provide both the impetus and the guidance necessary for us to

critically examine our program and take corrective action where

necessary.

Sincerely,

Robert J. Uram,

Director.

Evaluation of the Petition To Amend OSM's Rules Governing Right-of-

Entry Documentation Required in Permit Applications

Background on Petition

On February 18, 1994, a petition from Mr. James Kringlen,

Appalachian Research and Defense Fund, Inc., 1116-B Kanawha Boulevard,

East, Charleston, West Virginia 25301 (the petitioner) was forwarded

from the Secretary's Office, Department of the Interior, to OSM. The

petition 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 (emphasis included)

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

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

Section 201(g) of the Surface Mining Control and Reclamation Act of

1977 (the Act) and 30 CFR 700.12 provide that any person may petition

the Director to initiate a proceeding for the issuance, amendment, or

repeal of a rule promulgated under the Act. These regulations require

the petition to set forth the facts, technical justification, and law

which require the issuance, amendment, or repeal of a regulation. 30

CFR 700.12(b). Based on this information, the Director shall determine

if the petition provides a reasonable basis for the proposed action.

Facts, technical justification, or law previously considered in a

petition or rulemaking on the same issue shall not provide a reasonable

basis. The Director may hold a public hearing or conduct other

investigations or proceedings in order to determine whether the

petition should be granted. 30 CFR 700.12(c). If the petition is

granted, the Director is required to commence a rulemaking proceeding.

30 CFR 700.12(d)(1). If the petition is denied, the Director is

required to notify the petitioner in writing of the reasons for denial.

30 CFR 700.12(d)(2).

On March 28, 1994, OSM published a notice in the Federal Register

requesting comments on the petition. In the notice, OSM announced that

it would not hold a public hearing but would accept written comments on

the petition during the comment period which would end on April 27,

1994. It stated that, by appointment, OSM employees would be available

to meet with the public during business hours (9 a.m. to 5 p.m. Eastern

standard time) during the comment period. The notice also stated that

all comments and supporting documents would be entered into the

Administrative Record on the petition (59 FR 14374).

OSM received comments from the Ohio Mining and Reclamation

Association, the Dickenson County Citizens Committee, the U.S.

Department of the Interior Bureau of Mines, the Alabama Coal

Association, the Illinois Department of Mines and Minerals, the Wyoming

Department of Environmental Quality, the Kentucky Resources Council,

the Indiana Department of Natural Resources, and the Joint NCA/AMC

Committee on Surface Mining Regulations. These comments have been made

part of the Administrative Record.

Applicable Law and Regulations

Sections 102, 201(c), 501(b), 503, 504, and especially 507(b) and

510(b)(6) of the Act which establish application requirements regarding

documentation of the right is enter and commence surface mining

operations.

30 CFR Sec. 773.15(c) which requires that the regulatory authority

find in writing that the application is complete and accurate and that

the applicant has complied with the requirements of the Act and the

regulatory program.

Section 778.15(a) which requires that the permit applicant describe

and identify the documents upon which he bases his right to enter and

commence surface mining, and also state whether the right is subject to

any pending litigation.

Section 778.15(b) which provides that in the situation where the

private mineral estate has been severed from the private surface

estate, the applicant must also submit copies of 1) the written consent

of the surface owner for the extraction of coal by surface mining

methods; 2) copies of the conveyance that expressly grants or reserves

the right to extract coal by surface mining methods; or 3) if the

conveyance does not expressly grant the right to extract the coal by

surface mining methods, documentation that under applicable State law

the applicant has the legal authority to extract the coal by those

methods.

Section 778.15(c) which closely tracks the language in Sec.

507(b)(9) of the Act by providing that ``(n)othing in this section

shall be construed to provide the regulatory authority with the

authority to adjudicate property rights disputes.''

30 CFR PART 775--Administrative and Judicial Review of Decisions,

Which prescribes requirements for [[Page 5605]] administrative and

judicial review of decisions on permits.

Summary of Petition

The petitioner supports his rulemaking petition by citing the

experience of a former client, a Mrs. Caudill, who faced the

possibility of having her property mined in accordance with an approved

mining permit despite the fact that she had not granted the mining

company the right to mine, and despite the fact she had brought this

information to the attention of the regulatory authority. In that case,

her ownership of the property was not reflected in the documentation

provided to the regulatory authority by the permit applicant. Rather,

the application and accompanying maps asserted that neighbors on either

side of her property were the owners of her property. The situation

faced by Mrs. Caudill was exacerbated by the fact that the regulatory

authority, when presented with information contradicting the ownership

representation of the permit application, took the position that the

new information presented by Mrs. Caudill established a property title

dispute and it lacked the authority to resolve such disputes.

The petitioner's letter further states that, subsequent to

representing his client before the Kentucky Department for Surface

Mining Reclamation and Enforcement, he learned that ``very often coal

companies knowingly submit permit applications which fail to identify

all of the surface owners of record.'' He further states this is done,

at least in part, because real estate negotiations relative to the

potentially affected properties are continuing subsequent to submission

of the permit application. Thus, there is incentive for permit

applicants to present real estate information as they expect, or at

least hope, it will be at the time of permit issuance. The petitioner

concludes: ``(s)ince the states require neither documentation of the

ownership of the surface of the 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.'' To rectify

the problems for landowners associated with this scenario, the

petitioner ``proposes a new regulation * * * which would require all

permit applications for surface mining include documentation with

public records (emphasis included) identifying the surface owners of

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

the proposed mining property.''

Analysis and Comments

OSM's summary analysis of the petition and comments received

indicates that:

The problem of regulatory authorities issuing permits to mine

land for which the permit applicant has not established the right to

enter and mine is generally limited to the State of Kentucky;

The implementation of the petitioner's request that public

right-of-entry records be included in all cases in the permit

application would often create a significant and unnecessary

paperwork burden, particularly for regulatory authorities and mining

companies in the West;

Including public right-of-entry records in permit applications

would not change the decision of the regulatory authority in most

instances. For example, of the five Ten Day Notice appeals under 30

CFR 842.15 involving right-of-entry that occurred between 1991 and

the present (all appeals were in Kentucky), only one probably would

have been decided differently if the public records requested by the

petitioner has been available to the regulatory authority.

Kentucky's current right-of-entry permitting procedures, which

were implemented subsequent to the incident involving Mrs. Caudill's

property, require that whenever a landowner files a protest

contesting a permit applicant's right to enter his property, the

Natural Resources and Environmental Protection Cabinet must

determine whether the applicant has made a prima facie case that he

has the right to enter and mine.

OSM can respond to the problem raised by the petitioner most

efficiently by monitoring Kentucky's protection of landowner rights

through oversight of the Kentucky program.

Nine commenters responded to the notice of the Kringlen petition.

Two commenters did not provide substantive comments. One of these two

responded with a ``no comment.'' The other apparently misread the

petition and stated that the existing regulations already contain the

provisions sought by the petitioner. Two commenters representing

environmental associations concurred in the existence of the problem

cited to by the petition. One of these two commenters supported the

issuance of the petitioner's requested rulemaking. The other commenter

supported the general goals of the petition but did not endorse the

requested rule as effectively addressing the basic right-of-entry

problem underlying the petition. These two commenters raised issues and

made several suggestions which will be discussed below.

Five other commenters argued against the requested rulemaking

viewing the right-of-entry problem described by the petitioner as

either not being possible within the context of the regulatory programs

with which they were familiar or representing merely an isolated

aberration to an otherwise adequately functioning program. OSM

generally agrees with the second of these assessments. Information

available from sources within the Agency corroborate that the right-of-

entry problems such as described by the petitioner are relatively

infrequent events which have, for all intents and purposes, confined

themselves to the State of Kentucky. OSM believes that these problems

were due in major part to a failure of the Kentucky regulatory

authority to properly implement its existing permit regulations.

Subsequent to the incident involving the Caudill property, Kentucky

instituted a new right-of-entry policy which requires that whenever a

landowner files a protest contesting a permit applicant's right to

enter his property, the Natural Resources and Environmental Protection

Cabinet must determine whether the applicant has made a prima facie

case that he has the right to enter and mine. This new Kentucky right-

of-entry policy should dramatically reduce or eliminate the type of

problem experienced by Mrs. Caudill. Even if Kentucky had not taken

measures to address this problem, OSM submits that one State's problems

are not sufficient basis for a national rule. This Office will,

however, continue to monitor the protection of landowner rights in

Kentucky through its oversight of that program.

One commenter opposing the petition argued that a rulemaking was

not necessary in the light of the IBLA decision in Marion H. Taylor

(No. 92-189, 125 IBLA 271 (1993)). That commenter characterized the

decision as requiring that a pending property title dispute raised

during permit or administrative review ``* * * must be resolved by the

judiciary prior to a final permitting decision by the regulatory

authority, in order for the regulatory authority to make the required

permit issuance findings (emphasis included).'' Another commenter

supporting the petition cited the Taylor IBLA decision and an August 9,

1993, ten day notice letter from W. Hord Tipton, Deputy Director, OSM,

to David Rosenbaum, Department for Surface Mining, Commonwealth of

Kentucky, [which letter also cites the Taylor decision] to argue that

where there is a ``pending legal challenge'' or ``dispute'' to right-

of-entry, the regulatory authority cannot make a prima facie

determintion of a right to mine; rather, the only proper response of

the regulatory authority is to withhold permit issuance pending

[[Page 5606]] resolution of the matter. OSM notes, however, that the

Taylor decision was vacated on jurisdictional grounds by the U.S.

District Court for the Eastern District of Kentucky. Coal Mac. Inc. v.

Babbitt, Civil No. 93-117 (October 3, 1994). The implications of these

and other right-of-entry cases for Federal and State programs is under

review by OSM.

The two environmental commenters who generally supported the

Kringlen petition raised issues and made several rulemaking suggestions

which were beyond the narrow scope of the Kringlen petition. OSM is,

however, concerned that these comments may reflect some

misunderstanding of the operation of the current rules. Therefore, OSM

wishes to respond to the comments as follows:

(a) One environmental commenter would require that the permit

applicant conduct a record search to ensure that the permit

information is accurate and complete as implicitly required by

sections 507(b) 1) and (2) and 507(b) (9) and (13) of the Act. OSM

readily acknowledges that many times the need for the permit

applicant to conduct a record search is implicit in fulfilling the

information requirements of the cited sections.

However, there are many other times when a record search would

reasonably not be necessary and, therefore, should not be required.

For example, one commenter opposing the petition noted that

documents dispositive to right-of-entry disputes providing for

right-of-way, temporary easements, etc., are often not recorded in

the courthouse and therefore would not be included among the

petitioner's requested documents of record.

(b) This same environmental commenter opposed the current

provisions of 30 CFR 778.15 which specifically require only that the

application contain a description of the documents upon which the

applicant bases his legal right to enter and begin surface coal

mining operations. The commenter faults the preamble logic of the

proposed and final Sec. 778.15 which considered and rejected the

required submission in all cases of actual copies of right-of-entry

documents relied upon. 43 FR 41692, September 18, 1978, and 44 FR

15028, March 13, 1979. The commenter argues that the permit

applicant should be required to submit in all cases, or at a bare

minimum in disputed cases, the actual copies of all right-of-entry

documents relied upon. For the reasons expressed in its 1978 and

1979 preambles and as echoed by another commenter oppossing the

instant petition, OSM continues to believe that the required

submission of all right-of-entry documents in all cases would often

impose a significant and unnecessary burden on the permit applicant.

In support of its argument for the required submission of all

right-of-entry documents in disputed cases, the prior environmental

commenter expressed particular concern that once a right-of-entry

dispute arose, the regulatory authority might not have authority under

30 CFR 778.15 to require actual copies of the documents but would have

to rely merely on a description of documents upon which the asserted

applicant right-of-entry was based. The major industry commenter

opposing the petition reviewed the 1979 preamble discussion of proposed

30 CFR 778.15 and concluded that the regulatory authority currently has

authority to request such copies to resolve a dispute of fact as to

whether a legal right claimed by the applicant exists. OSM concurs that

the preamble discussions of proposed and final section 778.15 support

this conclusion. 43 FR 41692, September 18, 1978, and 44 FR 15028,

March 13, 1979.

Indeed, in most cases it would be difficult to conceive of the

regulatory authority being able to resolve such disputes without

viewing actual copies of documents relied upon for right-of-entry. Of

course, because of the proviso clause in paragraph 507(b)(9) of the

Act, such a determination of fact would not mean that the regulatory

authority was making a legal determination about the right to enter. 43

FR 41692, September 18, 1978. With regard to the concerns raised by the

petitioner, OSM has found that, with the exception of a few instances

where the State counterpart to 30 CFR 778.15 was improperly applied in

the State of Kentucky, the rule has generally worked to protect the

rights of landowners as required by section 102(b) of the Act.

(c) The prior environmental commenter also requested that OSM:

(1) Provide clarification as to the appropriate interpretation of

existing procedures in the event of a dispute as to right-of-entry

information in a permit application; and (2) conduct a national

study of the right-of-entry issues raised by the petitioner and

commenters. As noted above, these requests extend far beyond the

narrow scope of the instant petition.

(d) The other environmental commenter suggested that the

regulatory authority check and substantiate all submitted ownership

documentation for completeness and authenticity. OSM experience

indicates that this is not necessary on a routine basis and should

be carried out only when needed. The regulatory authority does not

have the manpower to do this on a routine basis nor the statutory

authority to resolve the property disputes which could result from

efforts to authenticate ownership documentation.

Summary

The information available to OSM indicates that the incident that

prompted the petition represents a problem localized in the State of

Kentucky. Requiring the applicant in all cases to 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 as requested by the petitioner would often impose a

substantial and unnecessary burden, particularly to coal companies and

regulatory authorities involved in the permitting of large Western

mines. Since the incident that prompted the petition, Kentucky has

instituted a new policy which requires that when a surface owner files

a protest to the issuance of a permit the Natural Resources and

Environmental Protection Cabinet must make a determination as to

whether the applicant has made a prima facie showing that he has the

right to enter and mine the property. These facts lead us to conclude

that there is insufficient basis for the national rulemaking requested

by the petitioner. OSM shall, through its oversight program, evaluate

Kentucky's protection of landowner rights to make certain that the

State regulations as implemented are as effective as the Federal

regulations in protecting those rights. In addition, OSM is reviewing

the implications for Federal and State programs of recent court and

IBLA decisions on right-of-entry issues. This petition and comments

thereto shall become part of the record as OSM conducts oversight of

the Kentucky State Program.

[FR Doc. 95-2213 Filed 1-27-95; 8:45 am]

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