[Federal Register Volume 60, Number 19 (Monday, January 30, 1995)]
[Proposed Rules]
[Pages 5603-5606]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-2213]



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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]
BILLING CODE 4310-05-M