OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT - 198

October 1991

Robert Karl, Esq.

Division of Reclamation

Department of Natural Resources

Fountain Square Court, Bldg. H-3

Columbus, Ohio 43224

TOPIC: DEFINITION OF "PUBLIC FACILITIES"; STATUS OF UNDERGROUND 

PIPELINES WITHIN SMCRA

INQUIRY: Are there any cases, legislative history or other material which address the meaning 

of "public facilities" as set out in 30 CFR sec. 817.121(d)(1)? Specifically, do underground 

pipelines or gas utility lines fall within sec. 817.121(d)(1) as "public facilities"? How does 

SMCRA treat the undermining of underground pipelines or gas utility lines?

SEARCH RESULTS: The COALEX Library, other materials in LEXIS and existing COALEX 

State Reports were used to research this Inquiry. Definitions for "public building" or "public 

facility" were identified under regulations for areas designed as unsuitable, subsidence control 

and AML. 

Areas designed as unsuitable rules defines "public building" consistently as "any structure". 

Under the 1978 draft of the final rules, "public building" in the subsidence control rules includes 

"public utilities"; the preamble to the 1979 permanent program final subsidence control rules talk 

about "structures". Beginning in June, 1983, the phrase "public building and facility" is used in 

subsidence control rules; these are described as "structures and features" that need protection 

because of their "public character". The AML reclamation program provisions include "public 

utilities" as part of the definition of "public facility". None of these materials specifically discuss 

utility, gas or pipelines.

Utility lines are discussed along with support facilities under 816.181/817.181 and under the 

protection of fish and wildlife, 816.97/817.97. See description of COALEX Report 194. Copies 

of the materials discussed below are attached. 

COALEX STATE INQUIRY REPORT - 194, "Permitting of utility lines" (1991).

An operator who had the right to mine under a coal severance deed was installing utility lines to 

supply power to the mine. The landowner inquired if the construction of utility lines over his 

land required permitting under SMCRA. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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COALEX research failed to identify materials that specifically stated that utility lines require 

permitting under SMCRA. Case law included with the Report discusses the operator's right, as 

owner of the mineral estate, to utilize the surface by constructing transmission or utility lines. 

The regulatory history provided addressed the need to include information on utility lines and 

other "support facilities" as part of the permit application, in protection of fish and wildlife, and 

under the performance standards.

43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. 

Sec. 761.5 Definitions.

In the proposed permanent program rules, in Part 761 Areas Designated by Act of Congress, 

"public building" was defined as "any structure that is owned by a public agency or used for 

public business, meetings or other group gatherings."

Sec. 817.123 Subsidence control: Pre-mining survey.

"A pre-mining survey shall be conducted of all public buildings including but not limited to 

churches, schools, hospitals, and public utilities or municipal public service operations including 

highways, dams, and cemeteries." 

43 FR 49932 (OCTOBER 25, 1978). Final rules. AML reclamation program provisions, 

procedures and requirements. Sec. 874.13 Reclamation objectives and priorities.

"Reclamation projects shall meet one or more of the objectives stated in this section.... (e) 

Protection, repair, replacement, construction, or enhancement of public facilities such as utilities, 

roads, recreation, and conservation facilities adversely affected by past coal mining practices." 

44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final rules. 

Sec. 761.5 Areas designated by act of Congress - Definitions.

"Public building: Some commenters believed that the proposed definition was too broad, 

contrary to normal usage and included private dwellings. They suggested deleting 'meetings of 

other group gathering' to narrow the scope of the definition, so that it would include buildings 

used for public business. OSM has decided to insert the word 'principally' to avoid prohibiting 

mining near buildings with only occasional use."

Sec. 817.126 Subsidence control: Buffer zones.

The preamble to this section discusses the need to protect public buildings from subsidence.

47 FR 16604 (APRIL 16, 1982). Proposed rules. Subsidence control.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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"Section 817.126 would be incorporated in proposed Sec. 817.121(d)-(f) and rearranged and 

shortened.

...

"The rewording reflects Section 516(c) of the Act and elaborates further on the prevention of 

imminent danger to the inhabitants of urbanized areas, cities, towns, or communities by 

providing protection for facilities generally used by the public. The present rule in Sec. 

817.126(c) protects public buildings against underground mining either beneath or in close 

proximity to them. The proposed revision in Sec. 817.121(d) would also indicate that the 

regulatory authority may prohibit underground mining under or adjacent to, or may limit the 

percentage of coal extraction in the vicinity of such features or facilities if necessary to minimize 

the potential for material damage to such features or facilities or to protect the public health and 

safety."

48 FR 24638 (JUNE 1, 1983). Final rule. Subsidence control, concurrent surface and 

underground mining operations and contemporaneous reclamation. Sec. 817.121(d).

"Section 817.121(d) establishes a class of structures and features to which greater protection is 

owed because of their public character or important nature. For these features, it is particularly 

important that damage be prevented before it occurs and not that damage can be corrected 

afterwards. Specifically, Sec. 817.121(d) provides for the protection of public buildings and 

facilities; churches, schools, and hospitals;

...

"Section 817.121(d)(1), which provides protection for public buildings and facilities, tracks 

previous Sec. 817.126(c). Paragraph (d)(2) as proposed would have provided special protection 

for private facilities generally used by the public, such as churches, schools, and hospitals. To 

reduce uncertainty in application of this requirement which could have been interpreted more 

broadly than was intended, the final rule simply provides special protection for all churches, 

schools, and hospitals. This portion of the rule is broader than its predecessor, Sec. 817.126(c), 

which applied only to public buildings."

48 FR 41312 (SEPTEMBER 14, 1983). Final rules. Designating lands as unsuitable. Sec. 

761.5 Definitions: Public building. 

"Section 522(e)(5) of the Act forbids mining within 300 feet of public buildings. 'Public building' 

was previously defined as 'any structure that is owned by a public agency or used principally for 

public business, meetings, or other group gatherings.' OSM proposed two options to amend the 

definition of public building. Option 1 would have defined public building to mean 'any structure 

that is owned, leased, or principally used by a governmental agency for public business, 

meetings, or other group gatherings.' This revision would have modified the previous definition 

by including structures not only owned or used but also those leased by government agencies for 

public purposes. Modifying the term 'public' to 'governmental' would eliminate certain 

community buildings from consideration in this context. However, community and institutional 

buildings are covered in a separate definition."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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OSM adopted Option 1 with two modifications: "Public building means any structure that is 

owned or leased, and principally used by a governmental agency for public business or 

meetings."

52 FR 4860 (FEBRUARY 17, 1987). Final rule. Subsidence control.

"While private parties may not be motivated to protect the environment, they have a great 

incentive to protect structures that they own. State law has traditionally provided remedies in 

contract and tort for those parties who own subsidence-damaged structures, Accordingly, it is 

inappropriate for OSMRE to step in and protect owners of these structures thereby creating an 

additional private property right which clearly was not intended by Congress.

"In those instances where public interest does exist in the protection of certain structures, the 

rules continue to provide such protection without regard to State law. For instance, 30 CFR 

817.121(d) prohibits underground mining activities beneath or adjacent to public buildings and 

facilities, churches, schools and hospitals, and large bodies of water unless an operator can 

demonstrate before a permit is issued that subsidence will not cause material damage..... Taken 

together with the land restoration requirement of Sec. 817.121(c)(1), OSMRE's rules will amply 

protect the public interests endangered by subsidence."

Definitions of "public building/facility" from the US Code.

Included as an attachment are nine sections containing definitions of "public facility" from the 

United States Code Service which appear under such titles as: 

1. Conservation: Coastal Zone Management 

2. Public Health and Welfare 

3. Emergency Management and Assistance 

4. Energy 

5. Business Credit and Assistance 

6. Aeronautics and Space 

Definitions of "public building/facility" from state codes. 

Included as an attachment are code sections from eight states containing definitions of "public 

facility". Sections are included from the following states:

1. Alabama 

2. Arkansas 

3. Colorado 

4. Illinois 

5. Kentucky 

6. Ohio 

7. Pennsylvania 

8. Tennessee 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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ATTACHMENTS

1. COALEX STATE INQUIRY REPORT - 194, "Permitting of utility lines" (1991). 

A. BUFFALO MINING COMPANY v MARTIN, 267 SE d 721 (W Va 1980). 

B. CABOT OIL & GAS CORP. OF W. VA. AND CRANBERRY PIPELINE 

CORP. v POCAHONTAS LAND CORP., 376 SE 2d 94 (W Va 1988). 

C. ELK HORN COAL CORP. v KENTUCKY-WEST VIRGINIA GAS CO., 317 

SW 2d 472 (Ky Ct App 1957). 

D. TRIVETTE v CONSOLIDATION COAL CO., 177 SW 2d 868 (Ky Ct App 

1944). 

E. COLUMBIA GAS TRANSMISSION CORP. v LIMITED CORP., 759 F Supp 

343 (E.D. Ky 1990). 

F. AKERS v BALDWIN, 736 SW 2d 294 (Ky 1987). 

G. SKIVOLOCKI v EAST OHIO GAS CO., 313 NE 2d 374 (Ohio 1974). 

H. PHIPPS v LEFTWICH, 222 Se 2d 536 (Va 1976). 

I. ANNOTATION, "Right of owner of title to or interest in minerals under one tract 

to use surface, or underground passages, in connection with mining other tract", 

83 A.L.R. 2d 665. [Excerpts] 

J. 44 FR 14902 (MARCH 13, 1979). Permanent Program Preamble - Final Rules. 

Sec. 816.97 Protection of fish and wildlife. 

K. 44 FR 14902 (MARCH 13, 1979). Permanent Program Preamble - Final Rules. 

Sec. 816.181 Support facilities and utility installations. 

L. 48 FR 20392 (MAY 5, 1983). Final rule. Support facilities. 

M. 48 FR 22110 (MAY 16, 1983). Final rules. Roads. 

N. 48 FR 30312 (JUNE 30, 1983). Final rule. Fish, wildlife, and related 

environmental values. Sec. 816.97(e)(1) [previous Sec. 816.97(c).] 

O. IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 21 

ERC (BNA) 1193, 14 ELR 20617 (D.C. D.C. July 6, 1984). [Excerpts] 

P. 50 FR 28186 (JULY 10, 1985). Interim final regulation. Suspension of the 

definition of "support facilities". 

Q. NATIONAL WILDLIFE FEDERATION v HODEL, 839 F 2d 694 (D.C. Cir 

January 29, 1988). [Excerpts] 

R. 53 FR 45190 (NOVEMBER 8, 1988). Final rule. Roads. Secs. 780.38 and 784.30 

Support facilities. 

S. 53 FR 47378 (NOVEMBER 22, 1988). Final rule. Definitions: Support facilities. 

2. 43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. Sec. 761.5 Definitions and Sec. 

817.123 Subsidence control: Pre-mining survey. 

3. 43 FR 49932 (OCTOBER 25, 1978). Final rules. AML reclamation program provisions, 

procedures and requirements. Sec. 874.13 Reclamation objectives and priorities. 

4. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final rules. Sec. 

761.5 Areas designated by act of congress - Definitions and Sec. 817.126 Subsidence 

control: Buffer zones. 

5. 47 FR 16604 (APRIL 16, 1982). Proposed rules. Subsidence control. 

6. 48 FR 24638 (JUNE 1, 1983). Final rule. Subsidence control, concurrent surface and 

underground mining operations and contemporaneous reclamation. Sec. 817.121(d). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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7. 48 FR 41312 (SEPTEMBER 14, 1983). Final rules. Designating lands as unsuitable. Sec. 

761.5 Definitions: Public building. 

8. 52 FR 4860 (FEBRUARY 17, 1987). Final rule. Subsidence control. 

9. Definitions of "public building/facility" from the US Code. 

10. Definitions of "public building/facility" from state codes.