OSM NEWS
U. S. Department of the Interior
Office of Surface Mining

December 17, 1999                    Jerry Childress  (202) 208-2719
                                     jchildre@osmre.gov 

 OSM PUBLISHES FINAL SURFACE COAL MINE RULES ON "VALID EXISTING
           RIGHTS" AND PROHIBITIONS OF SECTION 522(E)

     Establishing "valid existing rights" (VER) for surface coal mining operations where
mining is otherwise prohibited by the federal surface mining law requires applicants to show that,
before the mining prohibition went into effect, they had made a good faith effort to obtain all
required permits, according to final rules issued today by the Interior Department's Office of
Surface Mining Reclamation and Enforcement (OSM).

     The final VER rule was published in the Federal Register of December 17, 1999.

     The Surface Mining Control and Reclamation Act (SMCRA) prohibits surface coal
mining operations in National Parks and other specially protected areas, but the prohibition does
not apply to people who have VER.  OSM is defining VER in this rule because SMCRA does not
include a definition of that term.  The rule also establishes procedures for determining VER.

     The "good faith/all permits" standard for VER was selected because, of all the
alternatives considered, it is the one that is most environmentally protective, least disruptive of
existing regulatory programs, and most consistent with the primary purpose of Section 522(e) of
SMCRA.  Congress enacted that section of the law with the intent of prohibiting new surface
coal mining operations on lands designated for special protection.  At the same time, the "good
faith/all permits" VER standard protects the interests of land and mineral owners who had taken
concrete steps to obtain approval of surface coal mining operations before the lands came under
the protection of SMCRA.

     "Good faith/all permits" is the VER standard already in use in 15 of the 24 states that
operate their own Interior-approved programs for regulating surface coal mining operations.  
The closely related "all permits" standard is in use in five other states.  Two states use a
"takings" standard to determine VER.  One determines VER based on whether the land in
question is needed for and adjacent to an existing coal mine, and one does not have any VER
standard.

     Beside lands in the National Park System, the new VER definition applies to lands in the
National Wildlife Refuge System, the National Trails System, the National Wilderness
Preservation System, the National Wild and & Scenic Rivers System, and National Recreation
Areas.  It also applies to federal lands in national forests and to surface coal mining operations
that would adversely affect historic sites and public parks.  In addition, it applies to buffer areas
around public roads, occupied dwellings, public parks, public buildings, and cemeteries.

     The rule does not require VER to conduct coal exploration on the categories of land
where surface coal mining operations are subject to VER. However, it adds a requirement that
coal exploration operations be designed to minimize interference with the values for which
Congress designated the land as unsuitable for surface coal mining operations.

     OSM also published in the Federal Register of December 17, 1999,
a related rule clarifying OSM's existing regulatory position that subsidence due to underground
coal mining is not a surface coal mining operation, and therefore, not prohibited in areas
protected under the Act.  Consequently, neither subsurface activities that may result in
subsidence, nor actual subsidence, are prohibited on lands protected by section 522(e).
  
     By this interpretative rule OSM is maintaining the status quo. States will continue to
regulate the effects of subsidence through state regulations.  Most states with active underground
coal mining, with the exception of Colorado, Illinois, Indiana, and Montana, do not apply the
prohibitions of section 522(e) to subsidence.

     This position best balances the competing environmental and economic considerations
within the legal constraints of SMCRA.  When the coal is mined, the coal operators must meet
existing subsidence regulations to protect the homes of the nation's coalfield residents from
damage caused by underground mining, repair or compensate for damage that does occur to
homes, and assure adequate domestic water supplies in a timely manner.  Subsidence is virtually
inevitable from longwall mining operations, an important and expanding type of mining.  The
key to this low-cost mining method is access to large blocks of uninterrupted coal.  If the
prohibitions were to apply to subsidence, this competitive advantage is likely to be lost and
longwall mining operations would no longer be economically viable.  If longwall mining is not
precluded, it will continue to provide greater safety and faster, more controlled, and more quickly
mitigated subsidence damage. 

     Requests for further information, should be directed to Dennis Rice (202-208-2829;
drice@osmre.gov) for the VER rule, and to Nancy Broderick (202-208-2700;
nbroderi@osmre.gov) for the rule concerning the application of the prohibition to subsidence
from underground mining.
                              -DOI-

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