COALEX REPORT 72

	Coalex Report 72

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 - 72
July 1, 1986

Bryan Zima, Esquire
Division of Reclamation
Department of Natural Resources
Fountain Square Building,  B-3
Columbus,  Ohio 43224

TOPIC:  OCCUPIED DWELLINGS

INQUIRY:  What are OSM's and the different state enforcement agencies' definition of "occupied
dwelling" as it appears in Sec. 522(e)(5) of the Act?

SEARCH RESULTS: See below.

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

Sec. 522(e)(5) reads as follows:

"(a) After the enactment of this Act and subject to valid existing rights no surface coal mining
operations except those which exist on the date of enactment of this Act shall be permitted--
. . .
(5) within three hundred feet from any occupied dwelling unless waived by the owner thereof, nor
within three hundred feet of any public building, school, church, community, or institutional
building, public park, or within one hundred feet of a cemetery."

   The term "occupied dwelling" was first defined in OSM's permanent program regulations issued
on March 13, 1979.  At that time, an "occupied dwelling" was defined to mean "any building that
is currently being used on a regular or temporary basis for human habitation." (44 FR 15342
(1979))  In response to comments on the proposed rule, OSM explained in the preamble to the
1979 rule that the term "occupied dwelling" included both conventionally built houses and other
dwellings such as mobile homes.  OSM also noted that both full-time and part-time occupancy
were included in the definition.  However, where the owner of the occupied dwelling is also the
permit applicant, no waiver is required. (See 44 FR 14991 (1979).)

   On June 10, 1982, OSM proposed to revise the definition of "occupied dwelling" by defining
"temporary" use to mean "[use] for not less than three consecutive months each year." (47 FR
25282 (1982))

   OSM stated that the "three consecutive month" standard corresponded to "a full season of use"
and that "less than three months would suggest intermittent use, which would not expose an
occupant to the steady impact of nearby mining." (47 FR 25282 (1982) (See Attachment 1))

   The comments reviewed by OSM, and noted in the final rule issued on September 14, 1983,
show a range of objections to both the proposed change and the original definition itself.  Several
additional changes to the definition were suggested in the comments. (48 FR 41317-18 (1983)
(See Attachments 1 - 2B))

   Noting the diversity of the suggested changes, and the absence of a compelling case in favor of
the proposed change or any variations thereof, OSM ultimately decided to retain the existing
definition of "occupied dwelling" in its original form. (48 FR 41318 (1983))  OSM stated that the
original definition provided enough flexibility to deal with the problem of what constitutes an
occupied dwelling on a case-by-case basis.

   Several states have adopted definitions of "occupied dwelling" that vary from the precise
wording of the OSM definition.  These are listed below:

ALABAMA
"Occupied dwelling means a building regularly occupied, in whole or in part, as a habitation for
human beings." (Attachment 3)

ALASKA
AAC 90.911(64), unlike 30 CFR 761.5, excludes buildings used on a temporary basis for human
habitation.  Its definition does not exclude buildings used temporarily such as a hunting lodge. 
Such buildings must be used on a regular, albeit periodic, basis for human habitation.  In
approving the state's definition of occupied dwelling the Secretary found the Alaska definition to
be no less effective than the Federal definition. (Attachment 4)

ILLINOIS
Rule 176.11(e) prohibits mining within 300 ft. of occupied dwellings and also dwellings under
construction or contracted for at the time of public notice. (Attachment 5)

PENNSYLVANIA
Defines "occupied dwelling" as: "Any permanent building or fixed mobile home that is currently
being used on a regular or temporary basis for human habitation." (Attachment 6)

WYOMING
The Secretary found that the term "occupied dwelling" was sufficiently common to not require
definition in Wyoming's program. (Attachment 7)


ATTACHMENTS
1    47 FR 25282 (1982).
2    48 FR 41317-18 (1983).
3    Excerpt from Alabama document.
4    Excerpt from Alaska document.
5    Excerpt from Illinois document.
6    Excerpt from Pennsylvania document.
7    Excerpt from Wyoming document.



Search Conducted By: Todd Leatherman and Michele Manning

(Home Page)

Office of Surface Mining
1951 Constitution Ave. N.W.
Washington, D.C. 20240
202-208-2719
getinfo@osmre.gov