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P~ ( ~ ~'F • 4* s O 7• - ~. *,AO 'e' ~~ United States Department of tllll IIIIII'Irllll~ll OFFICE OF THE SOLICITOR «'azhing[on, I.C. 20240 ~ c July 10, 1991 M-36971 OSM.SM.V101 Memorandum To: Assistant Secretary, Lind and Minerals Manayament Director, Office of-SUi-face Mining Reclamation and Enforcement From: Solicitor Subject: Applicability of Secti~~n 522(e) of the Surface Mining Control and Reclamation Act to Subsidence By memorandum dated January 4, 1991, you have requested our evaluation of the applicability of section 522 (e) o~ the Surface Mining Control. and Reclamation Act of 1977,..30 U.S.C. g 1272 (e) (hereinafter "SMCRA" or "the Act"), to subsidence from ~ ~ -~ underground coal mining. You stated that you are considering a notice of inquiry to request comments on the need for further rulemaking to address the surface effects of underground mining under section 516, and that you ;are also considering clarifying that section 522(e) does not apply to subsidence from underground mining.) J In 1985, the Office of Surfai:e Mining Reclamation and Enforcement (hereinafter "OSM") advised the court in re Permanent Surface Mining Regulation Litigation (II1, 620 F. Supp. 1519 (D.D.C. 1985), that it intendedlto undertake a rulemaking.on this - subject. The decision was annocinced in response.to citizen - •plaintiffs' supplemental brief <:oncerning OSM's•iriterpretation of - its section 522(e) buffer zone i-egulatio'ris at 30 C.F.R. ~ 761.11.' See In re Permanent Surface Mini.na Regulation Litigation (II1, 620 F. Supp. 1519, 1553 (D.D.C.~1985)_ Citizen plaintiffs' brief stated that their concern related-tq~information from OSM officials that the rule did not.bar all surface impacts, including all subsidence impact~~; within the section•522(e) Chaffer zones. The decision wasipublished in a Federal Register notice which recognized that th~:re might be some lack of clarity as to what is a surface impact ~~~f underground mining subject to (continued...)