OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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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

TOPICS: 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?

SEARCH 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.]
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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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."
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"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. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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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".
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U.S. Department of the Interior

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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".
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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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, 300h3(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). 
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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).