OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT
Library of COALEX Research Reports
COALEX Research Reports are the products of research and analysis conducted on specific issues relating to the regulation of Surface Mining Control and Reclamation Act of 1977. The research is conducted in response to requests for information from State Regulatory Authorities, under a cooperative agreement between the Office of Surface Mining (OSM) and the Interstate Mining Compact Commission (IMCC).
COALEX refers to the Library of Surface Mining Materials maintained by OSM in LEXIS-NEXIS and is a major source for the research.
Each Report includes a list of resources which were sent as attachments to the individual who requested the research. To obtain a copy of the attachments or to obtain any additional information, contact Joyce Zweben Scall by phone at 202-686-9138 or by email at JZScall@aol.com.
COALEX STATE INQUIRY REPORT - 310
Bureau of Mine Reclamation
Department of Natural Resources
402 W. Washington St.
Indianapolis, Indiana 46204-27648
TOPIC: POSTMINING LAND USE CHANGE - SURFACE MINING
INQUIRY: Must all postmining land use changes be considered "significant alterations" which require the full blown permit review process? Can a postmining land use change for a surface mining operation which involves under 5% of the permitted area be considered a minor change? OSM's interpretive rule of October 1, 1980 (45 FR 64908) applies to underground mines. Is there any material that discusses this issue with regard to surface mines?
SEARCH RESULTS: Research was conducted using prior COALEX Reports, the COALEX Library and other materials available in LEXIS. The materials identified indicate that all alterations to the original permit require a permit revision; however, it is the regulatory authorities that determine which revisions are "significant", are subject to a full blown permit review, and which revisions are "nonsignificant", subject to a simpler review procedure. For some states, land use changes are always considered "significant, in that the changes are subject to full blown permit review procedures.
Copies of the October 1, 1980 interpretive rule, relevant COALEX Reports, federal regulatory and OSM directives listed below are attached.
45 FR 64908 (OCTOBER 1, 1980). Final interpretive rule.
"The Office of Surface Mining is providing an interpretation of 30 CFR 784.15 and 817.133 to clarify OSM's position that an operator of a long duration underground coal mining operation may apply for approval of an alternative post-mining land use through the permit revision procedures of 30 CFR 788.12 [now 30 CFR 774.13] toward the end of the mine life rather than initial permit application."
COALEX STATE INQUIRY REPORT - 165, "Permit revisions; incidental boundary revisions" (March, 1991).
This Report provides information on legislative history, regulatory history and state regulations of incidental boundary revisions (IBRs) from prior Reports; OSM Directives and Federal Register preambles discussing OSM rational for approving or disapproving state IBR requirements; administrative and state decisions indicating situations were IBRs or revised permits were required; and a survey of eleven IMCC member states providing information on state regulations and their implementation.
COALEX STATE COMPARISON REPORT - 228, "Incidental boundary revisions and insignificant permit revisions." (August, 1992).
Part of this Report included a survey of nine IMCC member states asking if land use changes were allowed via the insignificant permit revisions process and, if so, under what criteria they were allowed.
There was no uniformity among the states on this issue. Some allowed land use changes if they were "nonsignificant", as defined by state program guidelines, while other states always required public notice and other "full blown" review provisions for land use changes.
44 FR 14902 (MARCH 13, 1979). Permanent program final preamble -- final rules. Sec. 788.12 Permit revisions. [Now 774.13)]
A commenter suggested that a permit revision be required only for "substantial" changes that would constitute a significant departure from the methods of mining or reclamation contemplated by the original permit. OSM modified the language in the final rule to provide the regulatory authorities with "parameters in their regulations to determine what changes in the methods of operations or reclamation constitute a significant departure from those approved in the original permit and, therefore, necessitate a revision."
Another commenter's request for the inclusion of a definition for the term "significant alteration" was rejected. OSM stated that the language of the regulation closely tracked that of the Act which "requires that revision or modification of a permit required by the regulatory authority (based on written findings) be subject to notice and hearing requirements established by the State or Federal program."
48 FR 44344 at 44377 (SEPTEMBER 28, 1983). Final rule. (Renumbering of sections.) Sec. 774.13 Permit revisions.
"The final rule allows the permittee to apply for both significant and insignificant permit revisions, but also requires...that the regulatory authority set guidelines establishing the scale or extent of 'significant revisions'." Significant revisions must meet all the permit application requirements; nonsignificant revisions are subject only to review procedures.
OSM added: "The final rule changes the concept of the previous rule which required permit revisions only for 'significant departures' from the original permit. It was not the intent of the previous rule to allow the operator to violate the terms of the existing permit so long as the departure was not 'significant'."
51 FR 21574 (JUNE 13, 1986). Notice of availability of a petition to initiate rulemaking and request for comments. Guidelines for significant revisions. And 52 FR 6827 (March 5, 1987). Notice of decision on rulemaking petition.
The OSM director granted the petition for the federal program for Tennessee which requested that the regulatory authority establish guidelines for determining when a proposed revision to a permit is considered "significant". The petition included a request that any change in postmining land uses be considered significant.
The OSM guidelines drafted in 1985, proposed specific criteria for significant revisions. Generally the changes involved environmental issues, e.g., changes in land use from nonindustrial or noncommercial to industrial or commercial.
59 FR 27932 (MAY 27, 1994). Final rule. Land use information.
The revised regulations concerning premining and postmining land use information that must be submitted in a permit application is included here for background.
OTHER OSM MATERIAL
OSM DIRECTIVE, Subject No. REG-21, Transmittal No. 398, "Findings and Determinations for Revisions and Renewals of Federal Permits" (1987).
Minor permit revision. "In most cases, a minor permit revision does not alter the original environmental document findings."
OSM DIRECTIVE, Subject No. TSR-5, Transmittal No. 399, "Alternative Postmining Land Use Requirements for Real Property" (1987)
"Any changes to the postmining land use should be approved during the permitting process or as a revision to the permit."
Research conducted by: Joyce Zweben Scall