[Federal Register Volume 59, Number 81 (Thursday, April 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-9966]


[Federal Register: April 28, 1994]


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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]
BILLING CODE 4310-05-M