COALEX State Inquiry Report - 156
March, 1990

Jean Backs
Ohio Department of Natural Resources
Division of Reclamation
4383 Fountain Square Court, Building B-3
Columbus, Ohio 43224

TOPIC: LANDS UNSUITABLE FOR MINING: DEFINITION OF "RENEWABLE RESOURCE" AND
"FRAGILE OR HISTORIC LANDS"  [Includes COALEX Reports - 85, 35, 39 & 93]

INQUIRY: Is there any legislative history which discusses the use of the word "could" in reference
to SMCRA subsections 522(a)(3)(B) and (C)? What information is available on water quality and
supply? Is there any caselaw involving EPA-designated sole-source aquifers?

RESEARCH RESULTS: Research was conducted using the COALEX Library and other materials
available in LEXIS as well as existing COALEX Reports. The only identification of an explanation
for the use of "could" was found in IN RE PERMANENT SURFACE MINING REGULATION
LITIGATION, 620 F Supp 1519 (DC DC July 15, 1985) under the discussion of the phrase "natural
hazard lands". As a result, information on this phrase has been included in the report, where
appropriate. Existing COALEX Reports were identified which provide the legislative history of
SMCRA 522(a)(3)(A) and (B), and legislative history and administrative decisions regarding water
supply and replacement. A regulation history of the definitions of "fragile lands", etc. and an
additional case on water supply are also discussed below. Several Federal Register notices and
cases on sole-source aquifers appear at the end of the Report. Copies of all materials are
attached.

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

FRAGILE OR HISTORIC LANDS
Designating Areas Unsuitable for Surface Coal Mining. SMCRA sec. 522. 30 USC 1272. 
(a)(3) "Upon petition pursuant to subsection (c) of this section, a surface area may be designated
unsuitable for certain types of surface coal mining operations if such operations will -
...
(B) affect fragile or historic lands in which such operations could result in significant damage to
important historic, cultural, scientific and esthetic values and natural systems; or
(C) affect renewable resource lands in which such operations could result in a substantial loss or
reduction of long-range productivity of water supply or of feed or fiber products, and such lands
to include aquifers and aquifer recharge areas;...."

[Copies of the corresponding CFR sections are attached.]


LEGISLATIVE HISTORY
COALEX STATE INQUIRY REPORT - 85, "Legislative History of SMCRA sec. 522(a)(3)(A) and (B)"
(1987).
   This Report provides the legislative history of the phrases "fragile or historic lands" and
"significant damage" to "important resources".


CASE LAW
IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 620 F Supp 1519 (DC DC July
15, 1985).
   The court upheld the Secretary's definitions of "historic lands", "fragile lands" and "natural
hazard lands" as promulgated in the 1983 regulations. ("Natural hazard lands" remained
unchanged from the 1979 definition. See the Federal Register section, below.)

   HISTORIC LANDS: Industry objected to the inclusion, in the regulation, of sites eligible for
listing or whose listing is pending. The court found it not unreasonable to protect lands "in the
process of possibly being declared historic."

   FRAGILE LANDS: Industry argued that several of the terms were not clearly defined or were
terms not used in the statute. The court stated that the Secretary was not restricted to words
used in the Act or found in the legislative history. The Secretary's language did not "stray so far
from [the Act's] language" that it was inconsistent with the statute or in any way "beyond his
authority." The Secretary's rule was not arbitrary or capricious.

   NATURAL HAZARD LANDS: Industry claimed that the Secretary's definition was too broad; the
definition in the Act is limited to operations which could endanger life or property. The court
determined that the word "could" in the Act referred to situations which "could" endanger; there
was no requirement for the "regulatory authority to make a finding of actual danger. 

"Viewed this way, the statutory language was broad enough to encompass threats to life and
property....The court does not think it is unreasonable to promulgate a rule based on the
assumption that surface mining on land that already, without the operation poses a threat to life
and property, may continue to pose such a threat when mining takes place there."


REGULATION HISTORY
1. 44 FR 14902 (MARCH 13, 1979). Subchapter F - Areas Unsuitable for Mining. [Excerpts.]
"The regulatory authority must consider petitions which are received after a permit application
has been filed. Once a permit has been issued, however, the regulatory authority cannot revoke a
permit if a petitioner seeks to designate a permitted area."

"Unlike the permit application process, the designation process is to be applied on a natural area
basis, rather than a specific mine or site-by-site basis."


2. 44 FR 14902 (MARCH 13, 1979). Subchapter F - Areas Unsuitable for Mining. 30 CFR Part 762 
- Criteria for Designating Areas as Unsuitable for Surface Coal Mining. Section 762.5 Definitions.
[Excerpts.]
   FRAGILE LANDS: "[T]his definition does not attempt to imply any degree of significance for
those lands defined as 'fragile'. The determination of significance is left to the decision on the
petition itself. Also, the listing of examples of lands that may fall within the definition of fragile
lands is not meant to be all inclusive....The definition is meant to provide guidance on what
general types of resources can be considered fragile lands, not a list of areas which can or should
automatically be designated suitable."

   HISTORIC LANDS: "The significance test is properly left to the actual decision on the petition
using the criteria in the Act which are repeated verbatim in Section 762.11."

"[T]he National Register of Historic Preservation Act of 1966, as amended, provides the same
protection for places eligible for listing as for those places already on the National Register of
Historic Places....OSM has decided that, for the purposes of Subchapter F, place is 'eligible' at the
time the notice of eligibility is published in the Federal Register."

   NATURAL HAZARD LANDS: "As written, the definition does not necessarily mean that an area
falling within the definition would be automatically considered unsuitable for surface coal mining
operations. It is left to the discretion of the State regulatory authority to determine whether an
area is unsuitable for surface mining because of natural hazards."


3. 44 FR 14902 (MARCH 13, 1979). Subchapter A - General. 30 CFR Part 701 - Permanent
Regulatory Program. Section 701.5 Definitions. [Excerpts.]
   RENEWABLE RESOURCE LANDS: This definition is used with respect to subsidence and
Subchapter F, designation of lands as unsuitable for mining.


4. 47 FR 25278 (JUNE 10, 1982). Proposed rules. Areas Unsuitable for Surface Mining.
[Excerpts.]
"The proposed rules would modify existing requirements to provide States with new flexibility in
carrying out the requirements of the Act. In some cases, the proposed rules would allow
regulatory authorities to modify procedural requirements for determining areas unsuitable for
surface coal mining operations."


5. 48 FR 41312 (SEPTEMBER 14, 1983). Final rules. Areas Unsuitable for Surface Coal Mining.
[Excerpts.]
   All of Subchapter F was repromulgated. 
   FRAGILE LANDS: The phrase "beyond an operator's ability to repair or restore" was added to
the 1979 definition. OSM reasoned that "mining is an appropriate temporary use of the land in
most situations. An interruption of certain activities or a diminution of particular values during
mining is not sufficient to classify the land as fragile if the activities or values can be restored."

   HISTORIC LANDS: This definition parallels the definition of "fragile lands".

   RENEWABLE RESOURCE LANDS: OSM added the definition of the phrase to this section in order
"to clarify its use as a discretionary basis for designation of unsuitability under the Act".

   NATURAL HAZARD LANDS: The 1979 definition of this phrase was retained.


6. 50 FR 257 (JANUARY 3, 1985). Notice of suspension. 
   As a result of an agreement by the parties, approved in a December 3, 1982 District Court
Order, certain issues were withdrawn from consideration in Round III of the permanent program
regulation litigation. Included in the settlement agreement was the suspension of the phrase
"beyond an operator's ability to repair or restore" from the definitions of "fragile lands" and
"historic lands". Instead of "requiring a showing of irreparable or permanent damage to the lands
to allow for designation of an area as unsuitable for mining, a showing of significant damage will
be sufficient."


7. 50 FR 30408 (JULY 25, 1985). Proposed rule. Definitions of Fragile Lands and Historic Lands.
   Under to the proposed definitions "proponents of an unsuitability petition will no longer be
required to show that surface coal mining will cause irreparable or permanent damage to the
lands. Only a showing of significant damage will be required to classify lands as fragile or
historic". 


8. 51 FR 44484 (DECEMBER 10, 1986). Proposed rule. Reopening of comment period. Definitions
of Fragile Lands and Historic Lands.
   Additional comments were solicited on the need to revise the definition of "fragile lands" by
removing references to "buffer zones".


9. 52 FR 18792 (MAY 19, 1987). Final rule. Definitions of Fragile Lands and Historic Lands.
   Both definitions were changed to eliminate the requirement of a finding of irreparable damage.
Language concerning significant damage was retained in the definition of fragile lands. However,
since "the status of historic lands does not depend on their potential for incurring significant
damage...the final rule does not include the criterion of significant damage in the definition of
historic lands." In addition, the definition of fragile lands was changed "to remove buffer zones
adjacent to areas where mining is prohibited, as an example of fragile lands".


WATER SUPPLY AND REPLACEMENT
EXISTING COALEX REPORTS
1. COALEX STATE INQUIRY REPORT - 35, "Water Rights and Replacement" (1985). 
   This Report provides the legislative history of SMCRA sec. 717, regulatory history of 30 CFR
779.17 and 816.54 [corresponding to SMCRA sec. 717(b) and 508(a)(13)], and available case
law.


2. COALEX STATE INQUIRY REPORT - 39, "Water Replacement, Bond Release" (1985).
   This Report focuses on the operator's responsibilities and liabilities after bond release, providing
some legislative history and related administrative opinions.


3. COALEX STATE INQUIRY REPORT - 93, "Water Rights and Replacement" (1988).
   This Report stated that there were no Interior decisions available which specifically address the
question: Is there an acceptable level of water quality for water replacement and how long is the
operator liable for maintenance of the replacement source? Two decisions from the Pennsylvania
Environmental Hearing Board are discussed and an Interior Directive is attached.


ADDITIONAL CASE LAW
VILLAGE OF PLEASANT CITY v DIV. OF RECLAMATION, No. CA-835, slip op (Ohio Ct App 1987).
   The village appealed the issuance of a mining permit to R.V.G., Inc. arguing that the CHIA and
hydrologic determinations were inadequate; in particular, that the strip mining would interfere
with the quantity and quality of the water available through the village's water well supply. The
court affirmed the Reclamation Board of Review's decision to grant the permit, ruling that the
decision was not "arbitrary, capricious, or otherwise inconsistent with law". A copy of the Board's
decision was incorporated into the court's opinion. 

 
SOLE-SOURCE AQUIFER
FEDERAL REGISTER NOTICES
1. 52 FR 6836 (FEBRUARY 14, 1989). Criteria for Identifying Critical Aquifer Protection Areas. 
   This final rule revised EPA's regulations for identifying areas which are "particularly vulnerable
to contamination", where contamination would cause significant economic, environmental or
social costs".


2. 52 FR 32342 (AUGUST 27, 1987). EPA designation of a sole-source aquifer.
   This is an example of an EPA notice of a determination of a sole or principal source of drinking
water that "if contaminated, would create a significant hazard to public health....[A]ll Federal
financially assisted projects constructed in [the area]...will be subject to EPA's review". The notice
includes the text of section 1424(e) or the Safe Drinking Water Act (42 USC 300f, 300h-3(e)).

   A list of additional Federal Register notices of sole-source aquifer determinations is attached to
this item.


CASE LAW
1. US v MATTIACE INDUSTRIES, INC., CARGO TRUCKING, INC., AND INTERSTATE CIGAR CO.,
INC., 73 Bankr. 816; 17 ELR 21004 (ED NY 1987).
   US, on behalf of the EPA, won the exemption to the automatic stay provision of the Bankruptcy
Code. The US sought to hold the defendants liable for the cleanup of a chemical spill which had
seeped into the soil underneath an EPA designated sole-source drinking water aquifer.


2. NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC) et al. v US EPA, 824 F 2d 1258 (1st
Cir 1987).
   NRDC challenged EPA's rules for the long-term disposal of high level radioactive waste under
the Nuclear Waste Policy Act of 1982, alleging that the regulations violated the Safe Drinking
Water Act. The rules for individual and ground water protection requirements were remanded to
EPA.


3. FLORIDA WILDLIFE FEDERATION et al. v GOLDSCHMIDT, 506 F Supp 350 (SD Fla 1981).
   The court denied plaintiff's motion for preliminary injunction to halt construction of a segment
of Interstate 75. The Florida Wildlife Federation failed to prove that construction of the highway
and the attendant secondary development would cause irreparable harm to the Biscayne Aquifer.


ATTACHMENTS
A.   CFR sections
     1.   30 CFR 762.5 Definitions.
     2.   30 CFR 762.11 Criteria for designating lands as unsuitable.
B.   COALEX STATE INQUIRY REPORT - 85, "Legislative History of SMCRA sec. 522(a)(3)(A)
     and (B)" (1987).
C.   IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 620 F Supp 1519 (DC
     DC July 15, 1985).
D.   44 FR 14902 (MARCH 13, 1979). Subchapter F - Areas Unsuitable for Mining. [Excerpts.]

E.   44 FR 14902 (MARCH 13, 1979). Subchapter F - Areas Unsuitable for Mining. 30 CFR Part
     762  - Criteria for Designating Areas as Unsuitable for Surface Coal Mining. Section 762.5
     Definitions. [Excerpts.]
F.   44 FR 14902 (MARCH 13, 1979). Subchapter A - General. 30 CFR Part 701 - Permanent
     Regulatory Program. Section 701.5 Definitions. [Excerpts.]
G.   47 FR 25278 (JUNE 10, 1982). Proposed rules. Areas Unsuitable for Surface Mining.
     [Excerpts.]
H.   48 FR 41312 (SEPTEMBER 14, 1983). Final rules. Areas Unsuitable for Surface Coal
     Mining. [Excerpts.]
I.   50 FR 257 (JANUARY 3, 1985). Notice of suspension. 
J.   50 FR 30408 (JULY 25, 1985). Proposed rule. Definitions of Fragile Lands and Historic
     Lands.
K.   51 FR 44484 (DECEMBER 10, 1986). Proposed rule. Reopening of comment period.
     Definitions of Fragile Lands and Historic Lands.
L.   52 FR 18792 (MAY 19, 1987). Final rule. Definitions of Fragile Lands and Historic Lands.
M.   COALEX STATE INQUIRY REPORT - 35, "Water Rights and Replacement" (1985). 
N.   COALEX STATE INQUIRY REPORT - 39, "Water Replacement, Bond Release" (1985).
O.   COALEX STATE INQUIRY REPORT - 93, "Water Rights and Replacement" (1988).
P.   VILLAGE OF PLEASANT CITY v DIV. OF RECLAMATION, No. CA-835, slip op (Ohio Ct App
     1987).
Q.   52 FR 6836 (FEBRUARY 14, 1989). Criteria for Identifying Critical Aquifer Protection
     Areas. 
R.   52 FR 32342 (AUGUST 27, 1987). EPA designation of a sole-source aquifer.
S.   US v MATTIACE INDUSTRIES, INC., CARGO TRUCKING, INC., AND INTERSTATE CIGAR
     CO., INC., 73 Bankr. 816; 17 ELR 21004 (ED NY 1987).
T.   NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC) et al. v US EPA, 824 F 2d 1258
     (1st Cir 1987).
U.   FLORIDA WILDLIFE FEDERATION et al. v GOLDSCHMIDT, 506 F Supp 350 (SD Fla 1981).


Research conducted by: Joyce Zweben Scall