FEDERAL REGISTER: 52 FR 17526 (May 8, 1987)

DEPARTMENT OF THE INTERIOR

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Parts 701 and 773

Surface Coal Mining and Reclamation Operations – Requirements for Permits and Permit Processing; 

Definition of Previously Mined Area

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) is amending its regulations 

concerning previously mined areas. The amended regulations provide a new definition of the term previously mined area, 

and require a related finding prior to the issuance of a surface coal mining and reclamation permit. 

EFFECTIVE DATE: June 8, 1987. 

FOR FURTHER INFORMATION CONTACT: Raymond Aufmuth, Division of State Program Assistance, OSMRE, 

U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington, DC 20240; Telephone: (202) 343-5843, 

Commercial or FTS. 

SUPPLEMENTARY INFORMATION: 

I. Background 

II. Discussion of comments received 

III. Discussion of rules adopted 

IV. Procedural matters 

 

I. BACKGROUND 

 The Surface Mining Control and Reclamation Act of 1977 (the Act), 30 U.S.C. 1201 et seq., sets forth general 

regulatory requirements governing surface coal mining operations, including the surface impacts of underground coal 

mines. OSMRE has by regulation implemented or clarified many of the general requirements of the Act and set 

performance standards to be achieved by surface coal mining operations. See 30 CFR Chapter VII. Sections 816.102 and 

817.102 of the regulations, entitled "Backfilling and grading: General requirements," govern areas which have been 

disturbed by mining, outlining general performance standards for backfilling and grading of surface and underground 

mines, respectively. Paragraphs (a)(2) of these sections require the complete elimination of highwalls in accordance with 

section 515(b)(3) of the Act, 30 U.S.C. 1265(b)(3). 

 In a final rule dated September 16, 1983 (48 FR 41720), OSMRE revised various regulations applicable to remining 

operations. A performance standard was added to 30 CFR 816.106 and 817.106 for remining operations on previously 

mined areas. The performance standard which applies to previously mined areas, provides for partial highwall elimination 

in situations where the remined area was not reclaimed to the standards of the Act. Under sections 816.106 and 817.106 

such preexisting highwalls must be eliminated to the maximum extent technically practical using all reasonably available 

spoil. 

 In the September 16, 1983 rule, OSMRE also promulgated a definition of the term previously mined area. The 

definition, at 30 CFR 701.5, reads as follows: 

 "Previously mined area means land disturbed or affected by earlier coal mining operations that was not reclaimed in 

accordance with the requirements of this chapter." 

 Revised sections 816.106 and 817.106, together with parallel sections in 30 CFR Part 819 for highwalls remaining 

after auger mining operations, were challenged in In Re: Permanent Surface Mining Regulation Litigation II, No. 

79-1144 (D.D.C. 1984), as not being specifically excepted by the Act from the complete highwall elimination 

requirement of section 515(b)(3). In its July 6, 1984, opinion the court upheld the auger mining regulations in part 819. 
The parties subsequently settled the challenge to sections 816.106 and 817.106, with one issue outstanding, the definition 

of the term previously mined area at 30 CFR 701.5. 

 In Round III of the case, the plaintiffs asserted that the definition of previously mined area was too broad and in direct 

contravention of the Act. In response, the court remanded the definition. In Re: Permanent, No. 79-1144, slip opinion at 

122 (D.D.C. July 15, 1985). 

 On July 31, 1986, OSMRE proposed a new definition at 30 CFR 701.5, which limited the scope of previously mined 

area to those lands on which there were no surface coal mining operations subject to the standards of the Act. The 

proposed rule, at 30 CFR 773.15(c)(12), also required the regulatory authority, in reviewing a surface coal mining and 

reclamation permit application where the applicant intended to reclaim a remining operation in accordance with the 

requirements of 30 CFR 816.106 or 817.106, to find that the site was not previously subject to the requirements of the 

Act. 

 

II. DISCUSSION OF COMMENTS RECEIVED 

 This rule was proposed on July 31, 1986 (51 FR 27508) with a comment period that closed on October 9, 1986. Nine 

comment letters were received from State regulatory authorities, environmental organizations, mining associations, and 

other Federal agencies. Their comments are analyzed below. 

 One commenter said that the proposed definition would perpetuate the problems that inhibit the remining of 

operations abandoned between 1978 and repermitted under an approved State program. Generally this is true. The Act in 

section 502 set the effective dates when specific surface coal mining operations became subject to its permitting and 

performance standards. These standards first applied under section 502(b) to operations which were active after February 

3, 1978, and which were conducted under a valid State permit. Other lands mined subsequent to May 3, 1978, were 

generally subject to the interim performance standards under section 502(c) of the Act. Thus, the operations referred to 

by the commenter are generally covered by the standards of the Act and would not qualify as a previously mined area. 

 Several commenters were concerned that an operation which was completed prior to 1978 and reclaimed in 

accordance with existing State requirements at that time could now be remined and reclaimed to lesser standards under 

the proposed definition. This result is possible, but unlikely. Most operations reclaimed to State standards prior to the 

effective date of the Act may not be economically feasible for remining at this time. Many of these operations, in addition 

to extracting the coal seam to the highwall, were also auger mined to various depths behind the highwall and 

subsequently reclaimed. This auger mining extracts most of the coal that could subsequently be remined. In addition, the 

variances applicable to previously mined lands under 30 CFR 816.106 and 817.106 require reclamation using all available 

spoil to eliminate the highwall to the maximum extent technically practical. This insures maximum reclamation using all 

reasonably available materials. State regulatory authorities have the option of developing standards which are more 

stringent than the Federal regulations. If a State regulatory authority is concerned that this situation may occur, then it 

may develop a stricter definition of previously mined area to prevent it. 

 Several commenters suggested that the definition be expanded to include: All operations abandoned and not reclaimed 

to the standards of the permanent program; lands disturbed by mining and subject to the standards of the Act, but for 

which there remains no continuing reclamation obligation; lands illegally mined for which the regulatory authority has 

been unable to find the responsible party; and to be applicable to the period following May 4, 1978. As stated above, 

section 502 of the Act identifies effective dates when specific permitting and performance standards become applicable. 

Any lands once subject to these standards are not eligible as previously mined areas. Since the suggested lands generally 

were subject to the requirements of the Act, the definition cannot be expanded to include them. 

 Several commenters said the proposed rule would open the door to abuse the legitimate exemptions of the Act. These 

commenters identified: The on-site construction exemption; the two acre exemption; coal processing plants in Kentucky; 

and the other exemptions identified in section 528 of the Act and section 700.11 of the regulations. OSMRE disagrees. 

This rule is intended to promote the reclamation of lands which have not been reclaimed land on which there were no 

operations subject to the Act. The rule should have little or no effect on the exemptions identified above. Each of these 

exemptions is covered by separate regulations, the criteria of which are not affected by this definition. 
 One commenter believed that the inclusion of post-Act disturbances within the definition is inconsistent with the Act 

and the Round III In RE: Permanent decision. The final definition of previously mined area applies only to lands mined 

prior to the effective date of the Act and lands which qualify as exemptions identified in section 528 of the Act. The 

Round III decision reasserted that the standards of the Act applied only to surface coal mining operations as defined 

within the Act. The only post-Act disturbances which fall within this definition are those not subject to the Act. 

 One commenter said that the language of proposed 30 CFR 773.15 with respect to the finding by the regulatory 

authority did not accord with the preamble with respect to what the phrase "previously subject" was intended to cover. 

This was because the rule used the term "site" instead of the term "operation". This ambiguity has been eliminated in the 

final rule by revising 30 CFR 773.15(c)(12) to require a finding that the operation is a previously mined area as defined in 

30 CFR 702.5. Since the definition of the term previously mined area refers to "operations subject to the Act," the 

correct standard now applies. 

 One commenter was concerned that the definition of previously mined area would include all the lands overlying the 

workings of underground mines. Such lands are not generally included in the definition. The Act governs only the surface 

operations and effects of underground mining. Since the area over the workings of an underground mine generally would 

not be disturbed during the mining operation (except for possible subsidence) it would not qualify as a previously mined 

area. As pointed out by the commenter, only the areas disturbed for surface operations and facilities of an underground 

mine could qualify as previously mined areas. 

 One commenter suggested a detailed definition of previously mined area which included provision for addressing some 

of the mining and processing activities which are exempt under 30 CFR 700.11, and for lands which have been returned 

to a condition equal to or better than required by the Act. OSMRE appreciates the comment, but believes that the 

suggested definition is cumbersome, requires a judgment call on the part of the regulatory authority, and that not all of 

the exemptions identified in sections 528 and 701(28)(A) of the Act are addressed. The Office believes that it is better to 

have a concise definition and explain applicability and exceptions within the preamble to the final rule. 

 One commenter asked OSMRE to clarify the degree of certainty with which the regulatory authority must make the 

determination required in 30 CFR 773.15(c)(12). OSMRE expects the Regulatory Authority to make this determination 

based on the information submitted by the applicant to the same degree of certainty that is necessary to make other 

findings required in this section. 

 If a situation arises where it is difficult to differentiate between a regulated and an exempt operation, it is expected 

that the regulatory authority will use its best judgment, keeping in mind the purposes of the standards of the Act and the 

variances therein. 

 One commenter was concerned that the definition of previously mined area only pertains to highwall elimination and

does not provide the flexibility the agency may wish to have with respect to other performance standards at a later date. 

The commenter suggested that to provide this flexibility the definition should be moved from 30 CFR 701.5 to the 

specific performance standards which it addresses. This is not desirable because previously mined areas may be 

referenced in many specific performance standards. To place the definition within each of these performance standards 

would result in repetition and redundancy. To place it in a central location with all other definitions provides for more 

concise regulations. 

 One commenter supported OSMRE in the inclusion of exempt operations in the definition of previously mined area. 

 One commenter recommended that OSMRE retain as much flexibility as possible in the final definition to avoid 

arbitrary constraints not intended by the Congress. However, the Congress and the courts have been very specific as to 

what lands are eligible for designation as previously mined area. In view of these constraints, OSMRE believes that the 

final definition is as flexible as possible. 

 One commenter noted that the final definition of previously mined area would need to be carefully distinguished from 

the commonsense meaning of this term when developing regulations or guidelines for the identification and consideration 

of historic properties during permit application and review. The commenter said it was a common practice to exclude 

areas which already had been mined from requirements for archeological surveys and other efforts to identify historic 

properties, and that care should be taken to ensure that the new definition does not result in requirements for historic 
preservation activities where they are not needed. OSMRE agrees, and notes that the final definition does not apply to 

the context of historic preservation activities. 

 One commenter felt that OSMRE should remove total operator liability for reclamation of a remaining operation as a 

means to encourage remining and reclamation of abandoned mine areas, stating that without relaxation of this liability it 

is simply too risky to remine most areas. OSMRE appreciates the concern of the commenter; however, existing statutory 

requirements would appear to preclude adoption of such a lesser standard of liability. 

 One commenter said that using the effective date of the Act, as opposed to its enactment date, as the cutoff for 

determining whether an operation was "subject to the Act" under the definition of previously mined area was contrary to 

the opinion of the court in In Re: Permanent. OSMRE disagrees. The appropriate cutoff date for determining preexisting 

highwalls was not an issue in the Round III Opinion on the definition of previously mined area. It is reasonable for 

OSMRE to interpret the definition of previously mined area relative to the effective date of the performance standards of 

the Act, which is a meaningful cutoff for avoiding retroactive application of the Act, rather than relative to the date of 

passage, which is not. 

 This conclusion is supported by the lack of any reference to either the effective date or the date of passage of the Act 

in the court's Round I opinion on the auger mining regulations. While the court in Round I concluded that the highwall 

elimination requirement of section 515(b)(3) of the Act, 30 U.S.C. 1265(b)(3), should not have retroactive application in 

auger mining situations, whether retroactivity should be measured from the effective date or date of passage of the Act 

was not an issue and not decided. 

 For these reasons, in applying the definition of previously mined area, OSMRE will use the effective date of the Act as 

the cutoff for determining whether an operation was "subject to the Act." 

 The same commenter also said it was improper for OSMRE to include under the definition of previously mined area 

those operations which occurred subsequent to the Act, but which were not subject to its requirements because of 

exemptions specified in the Act. Again, OSMRE disagree. Sections 528 and 701(28)(A) of the Act, 30 U.S.C. 1278 and 

1291(28)(A) specified certain coal mining activities (operations) to which the provisions of the Act, including the 

highwall elimination requirement of section 515(b)(3), 30 U.S.C. 1265(b)(3), do not apply. Because these operations are 

exempt from the Act, they have essentially the same status with respect to the highwall elimination requirement of section 

515(b)(3) as operations which were conducted prior to the effective date of the Act. For this reason, OSMRE has 

concluded that it is reasonable to base the definition of previously mined area on the general condition that there were no 

surface coal mining operations subject to the standards of the Act, regardless of why the operations were not subject to 

the Act or when they occurred. 

 One commenter stated that the proposed rule used the same logic, rationale and scope as the 1983 proposal, which 

was remanded. The commenter also identified the retention of highwalls on lands mined after passage of the Act. 

OSMRE disagrees. The logic used in development of this definition was that any lands mined prior to the Act's effective 

date or lands mined after this date but not subject to the act may be designated as "previously mined area", since they 

would not be subject to the permitting or performance standards of the Act. As stated previously in this discussion, the 

Act identifies the specific dates on which its standards became effective. On the other hand, the 1983 rule included as 

previously mined areas any area not reclaimed to the standards of the Act, regardless of whether the Act's performance 

standards applied to the previous mining operation. 

 

III. DISCUSSION OF RULES ADOPTED. 

 Section 502 of the Act established initial regulatory procedures and specified several dates when various surface coal 

mining operations became subject to its performance standards. Under section 502(b) the performance standards first 

applied to all operations that were regulated by a State and began operating on or after February 3, 1978. Under this final 

rule, any lands upon which such operations were conducted do not qualify as a previously mined area. Under section 

502(c) of the Act, lands mined after May 3, 1978, generally were subject to the initial performance standards of the Act, 

and under this rule do not qualify as a previously mined area. Any highwalls on such lands are subject to complete 

elimination if subsequently remined. 
 All lands that were mined prior to May 3, 1978 (except where covered under section 502(b)), and that were mined 

after May 3, 1978, but were not subject to the Act, qualify under this rule as previously mined areas. Lands mined after 

May 3, 1978, which were not subject to the Act include those that qualify for the exemptions listed in sections 528 and 

701(28)(A) of the Act with respect to extraction of coal incidental to the extraction of other minerals. Also, under 

section 502(c) certain small operations first became subject to the Act on January 1, 1979. The lands on which those 

small operations were conducted qualify as a previously mined area if the operator received an exemption from OSMRE 

under 30 CFR 710.12. 

 For lands on which operations have occurred which were subject to the Act, the original operator will continue to 

have a reclamation obligation, as would any operator later conducting remining operations. Lands on which unpermitted 

activities occurred, but were subject to the Act and should have been permitted, do not qualify as a previously mined 

area. 

 For a proposed remining operation where a permit applicant intends to reclaim in accordance with the requirements of 

30 CFR 816.106 or 817.106, the regulatory authority is required under 30 CFR 773.15(c)(12) to make a finding that the 

site of the proposed remining operation is a previously mined area as defined in 30 CFR 701.5. 

 

IV. PROCEDURAL MATTERS 

 

Federal Paperwork Reduction Act 

 This rule does not contain information collection requirements which require approval by the Office of Management 

and Budget under 44 U.S.C. 3501 et seq. 

 

Executive Order 12291 

 The Department of the Interior (DOI) has examined that final rule according to the criteria of Executive Order 12291 

(February 17, 1981) and has determined that it is not major and does not require a regulatory impact analysis. This rule 

will impose no additional cost on the coal industry, since relatively few operations will be affected. Likewise, the impact 

upon coal consumers will be negligible. 

 

Regulatory Flexibility Act 

 The DOI has also determined, pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., that this final rule will 

not have a significant economic impact on a substantial number of small entities. While it may impact a relatively small 

number of coal operators, the majority of them would not be small entities. To the extent that small entities are affected, 

the economic impact of this rule will not be significant. 

 

Author 

 The author of this final rule is Raymond E. Aufmuth, Office of Surface Mining Reclamation and Enforcement, 1951 

Constitution Avenue, NW., Washington, DC 20240; Telephone: (202) 343-5843, Commercial or FTS. 

 

National Environment Policy Act 

 OSMRE has prepared an environmental assessment (EA) for this rule, and has made a finding that it would not 

significantly affect the quality of the human environment under section 102(2)(C) of the National Environmental Policy 

Act of 1969, 42 U.S.C. 433(2)(C). The EA and finding of no significant impact are on file in the administrative record for 

this rule in the OSMRE Administrative Record Room at 1100 L Street, NW., Washington, DC. 

 

LIST OF SUBJECTS 

 

30 CFR Part 701 

 Law enforcement, Surface mining, Underground mining. 

 

30 CFR Part 773 

 Reporting and recordkeeping requirements, Surface mining, Underground mining. 

 Accordingly, 30 CFR Parts 701 and 773 are amended as set forth below. 
Dated: April 7, 1987. 

J. Steven Griles, Assistant Secretary for Land and Mineral Management. 

PART 701 -- PERMANENT REGULATORY PROGRAM 

 1. The authority citation for Part 701 continues to read as follows: 

 Authority: Pub. L. 95-87 (30 U.S.C. 1201 et seq.). 

 2. Section 701.5 is amended by revising the definition of previously mined area as follows: 

SECTION 701.5 - DEFINITIONS. 

 

* * * * * 

PREVIOUSLY MINED AREA means land previously mined on which there were no surface coal mining operations 

subject to the standards of the Act. 

 

* * * * * 

PART 773 -- PERMANENT REGULATORY PROGRAM 

 3. The Authority citation for Part 773 continues to read as follows: 

 Authority: 30 U.S.C. 1201 et seq., 16 U.S.C. 470 et seq., 16 U.S.C. 1531 et seq., 16 U.S.C. 661 et seq., 16 U.S.C. 

703 et seq., 16 U.S.C. 668a et seq., 16 U.S.C. 469 et seq., and 16 U.S.C. 470aa et seq. 

 4. Section 773.15 is amended by adding paragraph (c)(12) as follows: 

SECTION 773.15 - REVIEW OF PERMIT APPLICATIONS. 

 

* * * * * 

(c) * * * 

(12) For a proposed remining operation where the applicant intends to reclaim in accordance with the 

requirements of Sections 816.106 or 817.106 of this chapter, the site of the operation is a previously mined area as 

defined in Section 701.5 of this chapter. 

 

* * * * * 

[FR Doc. 87-10481 Filed 5-7-87; 8:45 am] 

BILLING CODE 4310-05-M