COALEX REPORT 89

	Coalex Report 89

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   
COALEX STATE INQUIRY REPORT - 89
September 8, 1987

Ron Reeves, Legal Counsel
Texas Railroad Commission
Surface Mining & Reclamation Division
1701 N. Congress Ave.
William B. Travis Bldg. 7th Floor
Austin, Texas 78704

TOPIC: REQUIREMENTS OF SMCRA SEC. 522(a)(4)(B)

INQUIRY: SMCRA Section 522 describes the provisions of the Act for designating areas unsuitable
for surface coal mining.  Section (4)(B) requires that states develop a data base of information to
support decisions regarding unsuitability.  Is a state obligated to gather information that is
currently not available, i.e., is the state required to make its own studies, etc., or may the state
use only data that it has available?

SEARCH RESULT: The pertinent portion of Sec. 522 of the Surface Mining Control and
Reclamation Act of 1977 (SMCRA) states: 

"(4) To comply with this section, a State must demonstrate it has developed or is developing a
process which includes -
(A) a State agency responsible for surface coal mining lands review;
(B) a data base and an inventory system which will permit proper evaluation of the capacity of
different land areas of the State to support and permit  reclamation of surface coal mining
operations;
(C ) a method or methods for implementing land use planning decisions concerning surface coal
mining operations; and 
(D) proper notice, opportunities for public participation, including a public hearing prior to making
any designation or redesignation pursuant to this section." (Pub. L. No. 95-87, Sec. 522, 91 Stat.
508)

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

LEGISLATIVE HISTORY of SEC. 522 (a)(4)(B) 

Two of the surface mining bills introduced in the House in the 93rd Congress provided a
mechanism for designating land unsuitable for mining.  These bills, H.R. 5988 and H.R. 6603,
introduced by Senators Saylor and Dent of Pennsylvania, parallel the current version of SMCRA
concerning the lands unsuitable database requirement. (Hearings Before the Subcommittee on
the Environment and Subcommittee on Mines and Mining of the Committee on Interior and
Insular Affairs on H.R. 3 and Related Bills, 93rd Cong., 1st Sess. 578, 652 (1973))

   No analysis or explanation of the bills were provided to give any insight into the reasons behind
including these provisions of their requirements. This language was carried forward through every
surface mining bill introduced after this date.


FEDERAL REGULATIONS

   The proposed rules published by OSM at 30 CFR Sec. 764.21 to implement the Act in
September, 1978, give no helpful information in interpreting the requirement of SMCRA Sec.
522(a)(4)(B). OSM admitted in the preamble to the proposed regulations that it merely "restores
the language of the Act." (43 FR 41685 (SEPTEMBER 18, 1978))

   The final rules published in March, 1979, included responses to several comments received
about the data base system. None of these comments, however, specifically addressed the
requirements of data acquisition by the states (44 FR 41685 (MARCH 13, 1979))

   Throughout both the proposed and final regulations of 30 CFR Sec. 764.21, the language used
does not indicate that a state must produce information for this data base, only that it must
include or add certain information as it is received or becomes available. Thus with no contrary
legislative history found and no regulatory references that state otherwise, it would appear that a
State is under no positive obligation on its own to produce information for its data base under
SMCRA Sec. 522(a)(4)(B).


ATTACHMENTS
A    Excerpt, Surface Mine Control and Reclamation Act of 1977, Pub. L. No. 95-87, Sec. 522,
     91 Stat. 445, 507-509.
B    Excerpt, Hearings Before the Subcommittee on the Environment and Subcommittee on
     mines and Mining of the Committee on Interior and Insular Affairs on H.R. 3 and Related
     Bills, 93rd Cong., 1st Sess. 577-78, 651-52 (1973).
C    Excerpt, 43 FR 41685 (SEPTEMBER 18, 1978).
D    Excerpt, 44 FR 41685 (MARCH 13, 1979).
E    Excerpt, 30 CFR Sec. 764.21.


Search conducted by: Stephen G. Allen

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