COALEX REPORT 211

	Coalex Report 211

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   

COALEX STATE INQUIRY REPORT - 211
April, 1992

Michael Sponsler
Division of Reclamation
Department of Natural Resources
PO Box 147
201 W. Main Street
Jasonville, Indiana 47438

TOPIC: BUFFER ZONE FOR CEMETERIES

INQUIRY: Can the prohibition against mining within 100 feet of a cemetery be waived? Please
locate any information which discusses this issue. [SMCRA 522(e)(5)].

SEARCH RESULTS: Using the COALEX Library and other materials available in LEXIS, several
relevant Federal Register notices (preambles) and cases were identified. According to these
materials, SMCRA does not authorize waivers for mining within 100 feet of a cemetery; Congress
permitted waivers only for occupied dwellings. Copies of the items discussed below are attached.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble. Part 761 - Areas
Designated by Act of Congress. Section 761.11 Areas where mining is prohibited or limited.
[Excerpts.]

"Nothing in the Act prohibits relocation of cemeteries under existing procedures under State law,
before an operator applies for a permit. OSM believes that a waiver for mining within 100 feet of
a cemetery is not authorized by the Act because the prohibition against mining within 100 feet of
a cemetery comes directly from Section 522(e)(5) of the Act. Congress has only permitted
waivers for occupied dwellings and chose not to allow them for cemeteries."


45 FR 58576 (SEPTEMBER 4, 1980). Proposed rule. Partial approval/partial disapproval of
Louisiana Permanent Regulatory Program. [Excerpts.]
  Louisiana law added the phrase "unless waived by the proper authority or person" to the
language of Section 522(e)(5). "The Secretary determined that such waivers are inconsistent with
SMCRA".


HOLMES LIMESTONE CO. v ANDRUS, 655 F 2d 732 (6th Cir 1981), cert. denied 456 US 995
(1982).
  The court ruled that the Act did not prohibit mining within 100 feet of private family burial
grounds where the operator had obtained the owner's consent.


48 FR 41312 (SEPTEMBER 14, 1983). Final rules. Areas Unsuitable for Surface Coal Mining, etc.
  OSM amended the definition of "cemetery" to exclude private family burial grounds in response
to the HOLMES LIMESTONE decision. [See above.]



IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 620 F Supp 1519 (D DC July
15, 1985). [Excerpts.]
   The court remanded the definition of "cemetery", finding that the Secretary's 1983 definition
was inconsistent with the Act: 

"[T]he plain meaning of the word cemetery admits of no distinction between public and private
burial places."


51 FR 41952 (NOVEMBER 20, 1986). Final rule; suspension. Compliance with court order.
[Excerpts.] 
   OSM suspended that part of the definition of "cemetery" which excluded private family burial
grounds. 


52 FR 4244 (February 10, 1987). Final rule. Protecting historic properties from surface coal
mining. [Excerpts.]
   These rules eliminated the exclusion for private family burial grounds from the definition of
"cemetery".



ATTACHMENTS
A.   44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble. Part 761 - Areas
     Designated by Act of Congress. Section 761.11 Areas where mining is prohibited or
     limited. [Excerpts.]
B.   45 FR 58576 (SEPTEMBER 4, 1980). Proposed rule. Partial approval/partial disapproval of
     Louisiana Permanent Regulatory Program. [Excerpts.]
C.   HOLMES LIMESTONE CO. v ANDRUS, 655 F 2d 732 (6th Cir 1981), cert. denied 456 US
     995 (1982).
D.   48 FR 41312 (SEPTEMBER 14, 1983). Final rules. Areas Unsuitable for Surface Coal
     Mining, etc.
E.   IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 620 F Supp 1519 (D DC
     July 15, 1985). [Excerpts.]
F.   51 FR 41952 (NOVEMBER 20, 1986). Final rule; suspension. Compliance with court order.
     [Excerpts.] 
G.   52 FR 4244 (FEBRUARY 10, 1987). Final rule. Protecting historic properties from surface
     coal mining. [Excerpts.]


Research conducted by: Joyce Zweben Scall

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