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.

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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.

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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.

Research conducted by: Todd Leatherman and S. Michele Manning

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