OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE INQUIRY REPORT - 84

June 11, 1987

Ann Laubach 

Division of Reclamation 

Department of Natural Resources 

4383 Fountain Square Drive 

Columbus, Ohio 43224 

TOPIC: ABANDONED MINE LANDS FUNDING ELIGIBILITY 

INQUIRY: SMCRA Section 404 discusses site eligibility under Title IV Abandoned Mine 

Reclamation. (1) Is damage by subsidence covered under the scope of Title IV? If so, to what 

extent? (2) Ohio received their permanent program approval in 1981. What options are available 

to a state for securing funding for subsidence problems caused by coal operations falling between 

the enactment of SMCRA and the state's adoption of regulations governing subsidence? (3) do 

other states have this problem and if so, how do they deal with it? 

SEARCH RESULTS: Section 404 of the Surface Mining Control and Reclamation Act of 1977 

(SMCRA) states: 

"ELIGIBLE LANDS AND WATER

Lands and water eligible for reclamation or drainage abatement expenditures under this title are 

those which were mined for coal or which were affected by such mining, wastebanks, coal 

processing, or other coal mining processes, and abandoned or left in an inadequate reclamation 

status prior to the date of enactment of this Act, and for which there is no continuing reclamation 

responsibility under State or other Federal laws." (SMCRA Section 404, 30 USC Sec. 1234) 

Once a project clears the hurdle of basic eligibility requirement under Sec. 404, it must also 

qualify under one of the objectives of the Abandoned Mine Land Reclamation Fund:

"Expenditure of moneys from the fund on lands and water eligible pursuant to section 404 for the 

purposes of this title shall reflect the following priorities in the order stated:

(1) the protection of public health, safety, general welfare, and property from extreme danger of 

adverse effects of coal mining practices;

(2) the protection of public health, safety, and general welfare from adverse effects of coal 

mining practices;

(3) the restoration of land and water resources and the environment previously degraded by 

adverse effects of coal mining practices including measures for the conservation and 

development of soil, water (excluding channelization), woodland, fish and wildlife, recreation 

resources and agricultural productivity;

(4) research and demonstration projects relating to the development of surface mining 

reclamation and water quality control program methods and techniques;
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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(5) the protection, repair, replacement, construction, or enhancement of public facilities such as 

utilities, roads, recreation, and conservation facilities adversely affected by coal mining 

practices;

(6) the development of publicly owned land adversely affected by coal mining practices 

including land acquired as provided in this title for recreation and historic purposes, 

conservation, and reclamation purposes and open space benefits." 

(SMCRA Sec. 403, 30 USC Sec. 1233)

The specific case, addressed by this inquiry is as follows: an underground mine completes coal 

extraction in a portion of the mine prior to August 3, 1977. Coal extraction continues in other 

portions of the mine and the mine is sealed and abandoned prior to Federal approval of Ohio's 

permanent surface mining regulatory program. Does the continuation of coal extraction activities 

in other portions of the same mine preclude use of the Title IV - AML funding for subsidence 

damage from the pre-1977 mined portions?

_____________________________________________________________________________

LEGISLATIVE HISTORY

Both the House and Senate Reports in the 95th Congress provided some explanation concerning 

AML eligibility. S. Rep. No. 95-128, however, did not provide any further clarification of the 

"continuing responsibility" language, and described eligible lands for reclamation program 

activities as "those which have been mined prior to the date of enactment and left or abandoned 

in either an unreclaimed or inadequately reclaimed condition; and for which there is not a 

continuing responsibility - by the operator - for reclamation under existing state or federal laws." 

(H. Rep. No. 218, 95th Cong., 1st Sess. 140 (1977). Also see COALEX STATE INQUIRY 

REPORT - 33 (March 20, 1985), pp 2-3)

Congress clearly intended subsidence from pre-1977 mining, if covered under the basic 

eligibility statutes, to qualify for funding as evidenced by H. Rep. 95-218 which estimated the 

cost of rehabilitation of abandoned mine lands at $7 billion to $10 billion, including $1 billion 

for "control of subsidence under urbanized areas." The report also refers to "surface subsidence 

of land due to caring of abandoned underground mines" as one of the environmental impacts of 

past coal mining to be corrected by the Fund. (H. Rep. No. 218, 95th Cong., 1st Sess. 134-135 

(1977)) 

FEDERAL REGULATIONS

The Federal regulations pertaining to Section 404 of the Act were promulgated by the Office of 

Surface Mining (OSM) in 1978 at 30 CFR Sec. 874.12. Relative to the meaning of "left or 

abandoned in either an unreclaimed or inadequately reclaimed condition", OSM states in the 

Federal Register preamble discussion that "though no comment was received addressing this 

change, Sec. 874.5 definitions were added as a result of changes made in this part that made it 

necessary to define [this phrase]." (See Part 874, 43 FR 49932 (1978)) 
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Later, as a part of the regulatory review conducted under President Reagan's administration, the 

rules concerning the establishment and administration of the Abandoned Mine Land Reclamation 

(AML) Program by the states were revised. Definitions for "eligible lands and water" and "left or 

abandoned in either an unreclaimed or inadequately reclaimed condition" were added to the list 

of definitions under 30 CFR Sec. 860.5.

Little substantive change was made to the eligibility requirements under Sec. 874.12. The word 

"coal" was added to the section title "Eligible Coal Lands and Water" as well as to Subsection 

874.12(a). The eligibility requirements pertaining to non-coal lands and water were moved to 

Part 875. (47 FR 28574 (1982))

Under the final rules, coal lands and water are eligible for reclamation activities if:

"(a) They were mined for coal or affected by coal mining processes;

(b) They were mined prior to August 3, 1977, and left or abandoned in either an unreclaimed or 

inadequately reclaimed condition; and 

(c) There is not continuing responsibility for reclamation by the operator, permittee, or agent of 

the permittee under statutes of the State or Federal government, or as a result of bond forfeiture. 

Bond forfeiture will render lands or water ineligible only if the amount forfeited is sufficient to 

pay the total cost of the necessary reclamation. In cases where the forfeited bond is insufficient 

to pay the total cost of reclamation, additional moneys from the Fund may be sought under Parts 

886 or 888 of this chapter." (30 CFR Sec. 874.12) 

In its preamble discussion, OSM did not further define the meaning of the words "responsibility 

for reclamation", but did recognize in the definition of "left or abandoned in either an 

unreclaimed or inadequately reclaimed condition", the "complexity of the factual situations faced 

by the reclamation authorities and the need to consider each project a case-by-case basis." 

Generally, in OSM's view, the agency responsible for conducting the reclamation, whether State, 

Indian Tribe, Department of Agriculture, or OSM, is the one responsible for the determination of 

reclamation project eligibility. The definition is intended to provide "sufficient latitude" for 

determination of eligibility on a case-by-case basis. 

OSM went on to include the following examples of eligibility:

"Example 1 - OSM considers lands and water eligible, if the following conditions are met: (1) 

All conditions in Section 404 of the Act are met; (2) All mining processes have ceased but a 

permit did exist as of August 3, 1977; and (3) The permit has since lapsed and has been renewed 

or superseded by a new permit as of the date of the request for reclamation assistance. 

"Example 2 - Where a permit has lapsed prior to August 3, 1977, but subsequent reclamation 

attempts were made after that date to satisfy State regulatory or bond requirements, the area 

would still be eligible. 

"Example 3 - (One commenter suggested that a third example should be given.) OSM considers 

lands and water eligible if the following conditions are met: (1) Mining ceased prior to August 3, 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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1977; (2) No mining activity occurred or will occur after August 3, 1977; (3) A permit or bond 

exists as of August 3, 1977 and this permit or bond is released after all conditions are met; and 

(4) The land was inadequately reclaimed due to State requirements in existence at the time." (47 

FR 28576 (1982)) 

While the search results are inconclusive in resolving the eligibility issue raised, a phone 

conversation with Chris Warner at OSM in Washington, DC, supports the view that complicated 

eligibility situations such as the one presented in Ohio should be determined on a case-by-case 

basis by the state program director. Mr. Warner indicated that such a highly technical question as 

that presented had never been reviewed, but stated that on several occasions surface mined 

projects had qualified for AML funding even though continued operational activities had 

disqualified certain portions of the site.

Mr. Warner went on to say that an underground mine might be viewed as a unit unless certain 

facts (e.g., no work activity at all in the subject portion of the mine occurred after August 3, 

1977, including the use as a travelway, etc.) tended to show a lack of need for that portion of the 

mine. Need would presumably include ventilation purposes as well. The approach to such 

eligibility problems will necessarily be heavily fact-based.

Concerning the "gap" in eligibility presented by this situation, if the site is ultimately determined 

ineligible, OSM recognizes that such gaps do occur but without Congressional action, to the 

contrary, both the Act and Congressional intent are clear that lands which were mined and 

abandoned or inadequately reclaimed after August 3, 1977, are not eligible for expenditures 

under Title IV of the Act.

It appears that other coal states also face gaps in AML funding for operations falling between 

enactment of SMCRA and adoption of their permanent regulatory program. At least one state, 

Pennsylvania, has its own abandoned mine land reclamation program funded by a $200 million 

bond issue. In fact, it was the Pennsylvania program that served as a prototype for Title IV of 

SMCRA.

ATTACHMENTS

A. Excerpt, H. Rep. No 95-218, 95th Cong., 1st Sess. 134 (1977). 

B. COALEX STATE INQUIRY REPORT - 33 (March 20, 1985), discussion Abandoned 

Mine Lands Fund. 

C. Excerpt, 43 FR 49932 (1978). Preamble to General Reclamation Requirements, Part 874. 

D. Excerpt, 47 FR 29574 (1982). Revision of the Abandoned Mine Land Reclamation 

Program Rules.