[Federal Register Volume 59, Number 59 (Monday, March 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-7218]

[Federal Register: March 28, 1994]



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.


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 

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-


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 

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 
    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.


    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 
    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.

    \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 

    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.

James Kringlen,
Attorney at Law.
[FR Doc. 94-7218 Filed 3-25-94; 8:45 am]