|COALEX Topical List
REPORT NUMBER TOPIC AND INQUIRY
Copies of the reports can be downloaded from the Office of Surface Mining's website at www.osmre.gov .
1 TOPIC: INDIAN BURIAL GROUNDS ARCHAEOLOGY
INQUIRY: Does any state have performance standards to protect archaeological sites discovered? Of particular interest are standards relating to Indian Burial Grounds.
2 TOPIC: PENALTY ASSESSMENT ADMINISTRATIVE PROCEEDINGS
INQUIRY: If an administrative agency fails to notify a coal operator of a proposed penalty assessment within 30 days, are there any cases indicating that the reviewing board must demonstrate prejudice prior to vacating the penalty? Are there any Board or ALJ decisions regarding this issue?
3 TOPIC: PERFORMANCE BONDS OUTSTANDING CIVIL PENALTIES
INQUIRY: Performance bonds are posted to ensure that conditions of the permit and the regulations are fully met. If a company completes the required reclamation, but during the permit period has been assessed civil penalties, can the Regulatory Authority go against the performance bond for payment of any outstanding penalties?
4 TOPIC: CORPORATE OFFICER LIABILITY
INQUIRY: Under SMCRA, when a corporate permittee is in violation the corporate officers can be held liable. When should the Regulatory Authority send an assessment to the corporate officer and how much due process is he entitled to? (SMCRA 518(f), 30 USC 1268(f)).
5 TOPIC: BOND FORFEITURE
INQUIRY: Search states for cases where the Regulatory Authority has forfeited bond which is in excess of cost of reclamation. Question: Can the state forfeit the total amount of the bond even though it is in an amount greater than the cost of reclamation or must part of it be returned to the permittee or surety company?
6 TOPIC: COURT OPINION
INQUIRY: Request for copy of decision, Virginia Citizens for Better Reclamation, Inc. v. James Watt, Secretary of the Interior.
7 TOPIC: HYDROLOGIC & GEOLOGIC PERMIT REQUIREMENTS
INQUIRY: What methods are utilized by West Virginia, Virginia, Pennsylvania, Ohio and Indiana to fulfill hydrologic and geologic data collection and monitoring requirements?
8 TOPIC: COURT OPINION
INQUIRY: Requested copy of Sierra Club v. Clark.
9 TOPIC: INDIAN LANDS
INQUIRY: Conduct a search of the legislative history of Public Law 95-87, Section 701.9 (Definition of Indian Lands) and Section 710 (Indian Lands Study). Include in the search: Congressional intent and floor debate; applicable reports; the sequence of any changes applied to these sections.
10 TOPIC: WATER QUALITY & CONTROL POLICY
INQUIRY: Conduct a search of state regulations concerning water quality and control policy and sediment control structures in southwestern states (Utah, Arizona, Colorado, and Texas). Interested especially in other state regulations that address the topics cited under New Mexico's Hydrologic Balance Sections 20-45, 20-46, 20-47 and 20-49.
11 TOPIC: 90-DAY ABATEMENT PERIOD
INQUIRY: Has there been any case law interpreting the 90-day provision cited in Section 521(a)(3)?
12 TOPIC: 750/DAY CIVIL PENALTY
INQUIRY: Has there been any case law interpreting the $750/day civil penalty provision cited in PL 95087 Section 518(h)?
13 TOPIC: VALID EXISTING RIGHTS
INQUIRY: Do a search on the interpretation of the phrase "valid existing rights" as it is used in SMCRA. Include within the search congressional intent and federal and state cases that have interpreted its meaning. Of special interest is the use of the phrase in Sections 522(e)(4) & (5).
14 TOPIC: SELF-BONDING
INQUIRY: Identify all states that have a self-bonding provision in their regulatory program.
15 TOPIC: ABANDONED MINE LANDS: REPROCESSING COAL REFUSE PILES & COAL SILT DAMS
INQUIRY: Conduct a search of the provisions under state regulatory programs concerning the reprocessing of coal refuse piles and coal silt dams on abandoned mine lands. Include within the investigation: state rules and regulations; application requirements; bonding requirements; revegetation requirements; and special variance procedures to allow mining activities within these restricted areas.
16 TOPIC: APPROXIMATE ORIGINAL CONTOUR
INQUIRY: Investigate the legislative history of the phrase "approximate original contour" (AOC).
17 TOPIC: PERMIT AND ACREAGE FEES
INQUIRY: A summary of the permit and acreage fees the various states charge for coal mining permits.
18 TOPIC: FEDERAL REGISTER COMMENTS
30 CFR SECTIONS 816, 817, 771, 775
INQUIRY: What comments were included in the Federal Register preambles to 30 CFR Sections 816.116, 817.116, 817.121(c), 771.21(b)(2) and 775.11(b)(2)?
19 TOPIC: INTERPRETATION OF: IN ACCORDANCE WITH/CONSISTENT WITH
INQUIRY: Under SMCRA Section 503(a) in order for a state to obtain primacy under the Act, it must enact state law which provides regulation of surface coal mining and reclamation operations "in accordance with the requirements of [the] Act." Moreover, the state regulatory program must be "consistent with" the federal regulations promulgated under SMCRA. Has there been any interpretation of what constitutes "in accordance with" and "consistent with"?
20 TOPIC: INTERVENTION/HEARINGS & APPEALS INTEREST RATE/CIVIL PENALTY REIMBURSEMENT
INQUIRY: This inquiry has two parts: first, under 43 CFR Section 4.1110, intervention during an OHA proceeding is granted because of (i) statutory right or (ii) "an interest which is or may be adversely affected by the outcome of the proceeding". Have there been any instances of intervention where the petitioner qualified under the second criteria of "adversely affected interest"?
Second, in SMCRA Section 518(c) the interest rate on reimbursed civil penalty escrow deposits is set at "the rate of 6 percent, or at the prevailing Department of the Treasury rate, whichever is greater". To our knowledge there are several Department of Treasury rates, depending on the financial vehicle. Has there been any clarification of which treasury rate is meant by the "prevailing Department of the Treasury rate"?
21 TOPIC: DEFINITION OF OPERATOR/PERMIT
INQUIRY: Under the federal regulatory program, who is considered the "operator" on the permit application? Specifically interested in the case of two owners with only one responsible for the actual mine operation. Are both owners required to be included on the permit, or only the one responsible for operating the mine?
22 TOPIC: DREDGING OPERATIONS
INQUIRY: In Ohio there is a mining operation called in-stream mining--a dredging operation which takes sand from the stream-bed for industrial minerals. Are there any state regulations in the COALEX Library which address in-stream operations?
23 TOPIC: SUBSIDENCE REGULATIONS
INQUIRY: Requested latest rules and regulations on subsidence, and any pending decisions or court action.
24 TOPIC: 16 2/3 EXEMPTION
INQUIRY: The definition of surface mining operations, SMCRA Section 701(28), specifically excludes the extraction of coal incidental to the extraction of other minerals where coal does not exceed 16 2/3 per centum of the tonnage of minerals removed for purposes of commercial use, sale or exploration subject to Section 512 of the Act. (See also SMCRA Section 701(14)). Relative to the 16 2/3 exemption: What is its legislative history? The preamble to the finalized rule 30 CFR 700.11(e) is not very informative; is there more information included in the preamble to the proposed rule? What states include the exemption within their regulatory program? Is there any federal litigation addressing the provision?
25 TOPIC: PLANNED SUBSIDENCE
INQUIRY: SMCRA Section 516(b)(1) includes, under the permit requirements, that the operator: "adopt measures consistent with known technology in order to prevent subsidence causing material damage to the extent technologically and economically feasible, maximize mine stability, and maintain the value and reasonably foreseeable use of such surface lands". An exception is provided for "instances where the technology used requires planned subsidence in a predictable and controlled manner". What is the legislative history of this? Is there any specific legislative history on the exception provided for planned subsidence? Are there any OHA administrative case law decisions on this provision? Are there any case law decisions involving this statute?
26 TOPIC: TRANSPORTATION FACILITIES/SURFACE MINING OPERATIONS; BRIDGES & STRUCTURES/AML ELIGIBILITY
INQUIRY: (1) To what extent are transportation facilities (railroad, conveyors, ports, etc.) part of a surface mining operations? And, to what extent does differing corporate ownership affect whether a transportation facility is part of a surface coal mining operation? (2) With regard to determining land and water eligible for reclamation pursuant to the Abandoned Mine Land Program, were any limits envisioned which would exclude bridges or other certain structures from eligibility under that program; assuming that these structures were built to facilitate coal mining?
27 TOPIC: ATTORNEY GENERAL ACTION FOR COLLECTION
INQUIRY: Under SMCRA, the state regulations specify performance bond forfeiture criteria nd procedures. Alabama's 1975 Act, which addressed the interim regulations, contains a clause stating that "[n]othing in this Article shall prevent the attorney general from prosecuting violations hereof." Ala. Code Section 9-16-51(d) (1975). The position presently being argued is regardless of specific bond forfeiture procedures of the 1975 Act, the attorney general should be allowed to file a separate action in the circuit court to obtain collection. DO any of the other state regulatory programs contain a similar provision? Is there any state case law that supports separate action outside of the administrative bond procedure to obtain collection?
28 TOPIC: RECLAMATION OF PREVIOUSLY DISTURBED AREAS
INQUIRY: A company permits totally a site which was previously mined but unreclaimed by another company. This permittee redisturbs only a portion of the original area or only conducts incidental disturbance on portions of the previously disturbed area such as sediment basins or haulroads. Is there any case law defining the permittee's obligation or responsibility to reclaim those portions of the previously disturbed area which were permitted by him but not disturbed?
29 TOPIC: CASE INQUIRY
INQUIRY: Request information on U.S. Court of Appeals case, Virginia Department of Conservation v. Clark, No. 84-205, (Nov. 6, 1984), and relevant lower case decisions.
30 TOPIC: LOADING FACILITY/SURFACE MINING OPERATION
INQUIRY: Under what circumstances are loading facilities considered a surface coal mining operation, requiring a permit under SMCRA? Has there been any case law interpreting the phrases "at or near" and "in connection with"?
31 TOPIC: OPERATOR CERTIFICATION/UNDERGROUND; BONDING COSTS; STATE CIVIL PENALTY DATA/NOV
INQUIRY: (1) Oklahoma requires superintendent certification for every mine site. What states do not require superintendent certification? (2) Oklahoma is supplying figures for an OSMRE contracted study on average bonding costs in each state. Are other states required to supply figures? (3) Oklahoma's civil penalty assessment is considered high. Need information concerning other states civil penalty data. (4) What states have variance with regard to NOV's (violations)?
32 TOPIC: BOND FORFEITURE--ADDENDUM TO INQUIRY 5
INQUIRY: State Inquiry Report 5 asked whether regulatory authorities had the authority to forfeit the entire amount of a reclamation bond when the actual cost of reclamation was less than the bonded sum. Two jurisdictions, Kentucky and Pennsylvania, were identified as recently deciding the issue. Courts in both state decided the bond was penal in nature and that failure to perform all reclamation requirements resulted in total bond forfeiture, even if reclamation costs were less than the bonded sum. The purpose of State Inquiry Report 32 is to update the previous report with recent decisions.
33 TOPIC: ABANDONED MINE LANDS FUND
INQUIRY: SMCRA Section 404 discusses site eligibility expenditures under the Abandoned Mine Lands Fund. What is the legislative history of Section 404, particularly with respect to the phrase "no continuing reclamation responsibility under state or federal law".
34 TOPIC: INCIDENTAL BOUNDARY REVISION
INQUIRY: (1) Has any state defined the phrase "incidental boundary revisions" in its regulations under SMCRA (Section 511(a)(3))? (2) Once an extension to a permitted area is said to be incidental, what type of information is the permittee required to submit?
35 TOPIC: WATER RIGHTS AND REPLACEMENT
INQUIRY: SMCRA Section 717 requires that an operator replace the water supply of an owner that has been contaminated, diminished, or interrupted by a surface mining operation. Is there any legislative history or case law addressing the question of what would be considered an acceptable level of water quality for the replacement supply?
36 TOPIC: AML FUND/STATE 50% ALLOCATION
INQUIRY: Under SMCRA Section 402(g)(2), 50% of the AML funds collected within a state with an approved abandoned mine reclamation program are allocated to that state for use by its program. If the funds have not been expended within three years after their allocation, they become available to be used in any eligible area determined by the Secretary. Since Tennessee does not currently have primacy, under SMCRA Section 405(c), the 50% state share is held by the Secretary and has subsequently not been allocated to the state. Is OSM required while administering SMCRA within Tennessee to spend the state's 50% allotment on AML projects within the state? If the money is not expended, does the three year rule apply--thus precluding Tennessee from using the funds for necessary AML projects within its borders?
37 TOPIC: ALTERNATIVE BONDING PROGRAMS
INQUIRY: A report on the bonding and alternative bond system, specifically relating to self-bonding, escrow accounts in lieu of surety or fixed collateral type bonds, bonding for subsidence protection, bonding for demolition of building and other structures, bonding for underground mines, rates and fees, and whether administrative costs are incorporated into the bond amount.
38 TOPIC: ELIMINATION OF HIGHWALLS
INQUIRY: Significant issue report.
39 TOPIC: WATER REPLACEMENT--BOND RELEASE
INQUIRY: How long does the operator remain liable for water replacement under SMCRA Section 717(b) after the bond release/ In Maryland there is a three year statute of limitations for civil action. The questions arises as to (i) whether the statute of limitations would apply and (ii) whether the time period would begin at the time of injury or at the time the person discovers the injury.
40 TOPIC: CESSATION ORDERS, 30 CFR 843.11(e)
INQUIRY: What is the regulatory and legislative history of the provisions for vacating, terminating, and modifying cessation orders under 30 CFR Section 843.11(e)?
41 TOPIC: LEGISLATIVE HISTORY/"OWNED OR CONTROLLED BY"
INQUIRY: What is the legislative history of the language "operation owned or controlled by the applicant" found in Section 510(c) of SMCRA?
42 TOPIC: PATTERN OF VIOLATIONS
INQUIRY: Under SMCRA Section 521(a)(4), a "pattern of violations" may lead to a permit suspension or revocation. What type of connection must exist between the violations to constitute a "pattern of violations"? In this specific case, several notices of violations have been issued citing different regulations. The essential set of facts, however, are the same with similar underlying conditions. Could that be considered a "pattern of violations", even though different regulations have been involved?
43 TOPIC: CIVIL PENALTY SYSTEMS
INQUIRY: State comparison report.
44 TOPIC: STATES' BOND POOL SYSTEM COAL EXPLORATION REQUIREMENTS
INQUIRY: Locates statutes or regulatory data on states' bond pool system and identification of state programs that include coal exploration requirements.
45 TOPIC: TOPSOIL SUBSTITUTES
INQUIRY: State comparison report.
46 TOPIC: ACCESS AND HAUL ROADS
INQUIRY: What federal standards apply to access and haul roads and which roads are to be included in the mining area acreage?
47 TOPIC: 16 2/3 EXEMPTION
INQUIRY: Are there any recent or pending cases pertaining to the 16 2/3 exemption for the extraction of coal incidental to the extraction of other minerals found at 30 CFR Section 700.11(a)(4) and SMCRA Section 701(28)?
48 TOPIC: ACCESS AND HAUL ROADS
INQUIRY: State comparison report.
49 TOPIC: PERMIT AND ACREAGE FEES
INQUIRY: State comparison report.
50 TOPIC: BOND RELEASE--ADDENDUM TO INQUIRY 39
INQUIRY: State Inquiry 30 dealt with an operator's liability after the bond release. Several cases dealing with this issue were identified. In Alternate Fuels Inc. v. Clark (Jan. 3, 1985), ALJ Morehouse granted temporary relief to Alternate Fuels pending a decision on the merits. The purpose of this report is to update the previous report with ALJ Morehouse's recent decision.
51 TOPIC: PRIME FARMLANDS REGULATIONS
INQUIRY: The regulation of surface mining on prime farmlands has been a hotly debated topic since the passage of the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Several court cases have challenged the constitutionality and the legality of these requirements. As a result, the regulations concerning prime farmlands have undergone numerous changes. This report traces the legislative history of the prime farmland provisions and discusses the applicable SMCRA sections and OSM regulations. The "grandfather clause" found at Section 410(d)(2) of SMCRA is not addressed.
52 TOPIC: ABANDONED MINE LANDS/HEAVY EQUIPMENT
INQUIRY: Occasionally heavy equipment has been left on abandoned mine sites that are being reclaimed under AML funding. What legal recourse does the state have in disposal or sale of the abandoned equipment? Is there an incurred liability for damage to the equipment and must the previous owner of the equipment or the landowner be notified and/or reimbursed for its value? In some instances identification of the equipment owner is not possible; in others the landowner, while identified, can not be located.
53 TOPIC: REVEGETATION REQUIREMENTS
INQUIRY: Are there any guidelines in the legislative history or regulations that specify when tree cover or fish and wildlife enhancement may be required for the revegetation cover of mined areas? Do any other states contain an effective mechanism that encourages forestry or wildlife enhancement either: (1) on land that was originally forested or (2) on land that did not have forest originally? In particular an investigation of the following state programs would be helpful: Virginia, West Virginia, Ohio and Indiana.
54 TOPIC: AML FUND ALLOCATION
INQUIRY: [This report is missing from the Coalex files.]
55 TOPIC: PERMIT DENIAL FOR OUTSTANDING FINES AND BOND FORFEITURES
INQUIRY: What authority does the state have to deny a permit for an operation where the "Operations Director", but not the owners, has outstanding fines and has had past permit revocation and bond forfeitures?
56 TOPIC: APPROXIMATE ORIGINAL CONTOUR
INQUIRY: Identify all Federal District Court and Office of Hearing and Appeals Decisions which define "approximate original contour".
57 TOPIC: STATE REGULATORY PROGRAM/"APPLICABLE REQUIREMENTS"
INQUIRY: SMCRA Section 510(b)(5) contains special provisions for alluvial valley floors west of the one-hundredth meridian west longitude. The question is whether Tennessee needs to include a provision for alluvial valleys in proposed state regulations, even though they would not apply to mining within the state. Search state regulatory programs to see if other eastern states included provisions with respect to alluvial valleys.
58 TOPIC: REVEGETATION REQUIREMENTS--ADDENDUM TO REPORT 53
INQUIRY: Guidelines in the legislative history or regulations that encourage forestry or fish and wildlife enhancement for the revegetation cover of mined areas.
59 TOPIC: COAL SEVERANCE TAX
INQUIRY: Identify all states which impose a coal severance tax.
60 TOPIC: CESSATION ORDER
INQUIRY: 30 CFR 843.11(a)(2) contains a provision designating unpermitted surface coal mining and reclamation operations as constituting a condition or practices which causes or can reasonably be expected to cause significant, imminent environmental harm. An exemption is included for those operations that are an integral, uninterrupted extension of previously permitted operations, and the person conducting such operations has filed a timely and complete application for a permit to conduct such operations. Are there any instances where this exemption can inhibit proper regulation of sites where permit renewal is pending? Search other approved state programs to ascertain whether they have adopted this rule. Also, conduct a search of ALJ rulings and court cases which cite 30 CFR 722.11(c) or 843.11(a)(2).
61 TOPIC: 60% BOND RELEASE REQUIREMENTS
INQUIRY: What is considered necessary to obtain a 60% grading release of bond?
62 TOPIC: SMALL OPERATOR ASSISTANCE PROGRAM (SOAP)
INQUIRY: What contracting procedures does each state utilize in its Small Operator Assistance Program (SOAP)? How many applications for assistance were approved in fiscal year 1983084 and what was the average cost for each permit? Please include a copy of each state's SOAP regulations.
63 TOPIC: POSTMINING LAND USES
INQUIRY: Have any states developed standards with respect to reclamation of areas which are stated to be used for industrial, commercial, or residential development after mining?
64 TOPIC: BLASTER CERTIFICATION
INQUIRY: Identify the states which have approved blaster certification programs.
65 TOPIC: SUBSIDENCE REGULATION--EXTRACTION PERCENTAGES
INQUIRY: Do any states require that a certain percentage of the available coal be left under land capable of supporting renewable resources or land on which there are structures?
66 TOPIC: JUDICIAL REVIEW
INQUIRY: Investigate the legislative history of judicial review under section 526(a)(1) and section 526(e) of SMCRA.
67 TOPIC: MINE SUBSIDENCE INSURANCE
INQUIRY: Identify states which have implemented mine subsidence programs.
68 TOPIC: "SUBSTANTIAL LEGAL AND FINANCIAL COMMITMENTS"
INQUIRY: Research the legislative and regulatory history of the phrase "substantial legal and financial commitments".
69 TOPIC: REGULATION OF COAL PROCESSING PLANTS
INQUIRY: Identify the states which have amended their regulations to comply with the July, 1985 revisions to the federal program.
70 TOPIC: MIDTERM PERMIT REVIEW
INQUIRY: Research SMCRA Section 511 for the following: (1) legislative history regarding permit review; and (2) state by state procedures for handling midterm permit review.
71 TOPIC: AML DISCRETIONARY FUND
INQUIRY: Research the legislative history of section 402(g) of SMCRA. What sort of guidelines are imposed on the Secretary's expenditures from the discretionary fund?
72 TOPIC: OCCUPIED DWELLINGS
INQUIRY: How do OSM and the different state agencies define "occupied dwelling" as it appears in section 522(e)(5) of the Act?
73 TOPIC: IMPOUNDMENT BANKS
INQUIRY: Are coal mine operators required to reclaim impoundment banks constructed of or impounding coal mine waste?
74 TOPIC: CIVIL PENALTY/RECLAMATION REQUIREMENTS
INQUIRY: May a state regulatory agency impose both civil penalty and reclamation requirements upon an operator mining without a valid permit?
75 TOPIC: NOTICES OF VIOLATION ISSUED BY OSM
INQUIRY: Please research the legislative and regulatory history of Section 521 of SMCRA, with particular emphasis on the authority of OSM to issue notices of violation in states with primacy.
76 TOPIC: EXPLORATION PERMIT TERMS
INQUIRY: What states, if any, limit the term of "test burn" permits that allow the removal of more than 250 tons of coal?
77 TOPIC: "PATTERN OF VIOLATIONS"
INQUIRY: Please locate any Interior Board of Land Appeals cases which discuss and define the phrase "pattern of violations".
78 TOPIC: COAL EXPLORATION: DRILLING
INQUIRY: Please conduct a search of the Federal Register to determine what sort of permitting or notice requirement is necessary to a coal exploration operation which involves only drilling. What do some of the other states require in this area?
79 TOPIC: OVERLAPPING MSHA/SMCRA IMPOUNDMENTS
INQUIRY: Search the Federal Register to determine if state regulatory authorities are required to issue NOVs for violations of performance standards relating to impoundments which are also required to be inspected by MSHA, if any MSHA inspector has already issued an NOV for the same defect.
80 TOPIC: DEFINITION OF APPROXIMATE ORIGINAL CONTOUR
INQUIRY: Survey cases and Federal Register notices discussing the definition of "approximate original contour" appearing in 30 CFR Sections 701.5 and 701(2) of SMCRA.
81 TOPIC: COAL EXPLORATION
INQUIRY: Please identify the Federal Register notices which pertain to the criteria used for approving coal exploration permits of 250 tons or more.
82 TOPIC: ACID MINE DRAINAGE ARTICLES
INQUIRY: Locate any research articles pertaining to innovative techniques used to treat acid mine drainage.
83 TOPIC: SMALL DEPRESSIONS
INQUIRY: 30 CFR Sections 816.102 and 817.102 allow the construction of small depressions if they are needed to retain moisture, minimize erosion, create and enhance wildlife or assist revegetation. Please research the legislative history of SMCRA to determine how Congress intended to define "small depressions".
84 TOPIC: AML FUNDING ELIGIBILITY
INQUIRY: Section 404 of SMCRA 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?
85 TOPIC: DEFINITION OF "FRAGILE OR HISTORIC LANDS"
INQUIRY: SMCRA Section 522 describes the portion of the Act used for the designation of lands unsuitable for surface coal mining. (1) What is the legislative history of "fragile or historic lands" as used in Section 522(a)(3)(B)? (2) What is the legislative history concerning "significant damage" to "important resources" as used in this section? (3) What is the legislative history of "state or local land use plans" as used in Section 522(a)(3)(A)?
86 TOPIC: DEFINITION OF "OFFSITE"
INQUIRY: This report explores the meaning of the term "offsite" as used in SMCRA and in the OSM regulations. The legislative history of SMCRA, OSM Federal Register notices, and court decisions which construe the term are discussed.
87 TOPIC: LEGISLATIVE HISTORY OF SMCRA SECTION 519(C)
INQUIRY: Section 519(c) of SMCRA describes the standards which must be met for an operator to obtain partial bond release. A search was conducted of the legislative history to determine whether Congress intended for the bond release percentages contained in that section to be strictly applied, or whether the regulatory authority may implement an alternate system.
88 TOPIC: PRE-EXISTING STRUCTURES
INQUIRY: This report discusses the definition of pre-existing structures and whether a stream which was diverted from its original channel prior to the enactment of SMCRA would be considered to be a pre-existing structure.
89 TOPIC: REQUIREMENTS OF SMCRA SECTION 522(a)(4)(B)
INQUIRY: Section 522 of SMCRA 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. This report discusses whether a state is obligated to gather information that is currently not available; in other words, whether the state is required to make its own studies, or whether it may use only available data.
90 TOPIC: DAMAGE FROM PREVIOUS MINING
INQUIRY: This report discusses the liability of a permittee for damage caused by previous mining, where subsidence damage from an abandoned underground mine has caused surface damage within the permit area. Federal and state regulations and court decisions pertaining to this issue are discussed.
91 TOPIC: CONTINUALLY CREATED VALID EXISTING RIGHTS
INQUIRY: This report discusses the concept of "continually created valid existing rights." The inquiry addresses the situation where, after mining operations begin, a third party erects a dwelling or occupies a previously existing but unoccupied residence within 300 feet of the operation.
92 TOPIC: SMALL AREA EXEMPTIONS
INQUIRY: 30 CFR Section 816.46(e) creates an exemption from the requirement that an operator construct siltation structures if, among other things, the disturbed drainage area is "small". This report discusses the regulatory history of the small area exemption and OSM's construction of the term.
93 TOPIC: WATER RIGHTS AND REPLACEMENT
INQUIRY: This report discusses the legislative and regulatory history of SMCRA to determine the duration of OSM jurisdiction over, and operator liability for, interim program sites. Numerous administrative decisions regarding this issue are also discussed.
94 TOPIC: STATE ABANDONED MINE LAND REGULATIONS
INQUIRY: Provides examples of state AML program regulations from a number of states, including Arkansas, Virginia and Texas.
95 TOPIC: COAL EXPLORATION NOTICES: LEGISLATIVE HISTORY
INQUIRY: Provides extensive legislative history of the coal exploration notice requirements under SMCRA.
96 TOPIC: MINE SUBSIDENCE INSURANCE--ADDENDUM TO INQUIRY 67
INQUIRY: Identifies states that have implemented mine subsidence insurance programs.
97 TOPIC: DEFINITION OF "PERENNIAL STREAM"
INQUIRY: Discusses the definition of "perennial stream" as that term is used in the OSM regulations found at 30 CFR Section 701.5. Selected state regulations were also located to determine similarities and differences in these definitions.
98 TOPIC: DEFINITION OF "REASONABLE AVAILABLE SPOIL"
INQUIRY: This report traces the regulatory development of the term "reasonably available spoil" as found at 30 CFR Section 816.104(b).
99 TOPIC: BURDEN OF PROOF--SHOW CAUSE ORDERS
INQUIRY: Which party bears the burden of proof in a hearing on a show cause order?
100 TOPIC: LANDOWNER REFUSAL OF ACCESS
INQUIRY: What is the permittee liability for outstanding reclamation when landowner refuses access?
101 TOPIC: PERMIT INFORMATION RE. THE RIGHT TO SUBSIDE
INQUIRY: To what extent do states require a permit applicant to submit information regarding the right to subside property in conjunction with a permit application for an underground mining operation where subsidence is anticipated?
102 TOPIC: (I) FORFEITURE OF RECLAMATION BONDS--LIABILITY PERIOD
INQUIRY: The Commonwealth is suing the surety of a now defunct coal company on its reclamation bond. The company has stated as its defense that the bond covers only work contemplated to be done within one year of the issuance of the permit and does not include the entire permitted site or any additions to the permitted site. Locate cases which support a contrary position.
TOPIC: (II) CONSTITUTIONALITY OF THE ABANDONED MINE RECLAMATION PROGRAM AND LIABILITY FOR FAILURE TO GIVE NOTICE
INQUIRY: Are there any cases dealing with the constitutionality of Section 45.1-263 of the Code of Virginia, 30 USC Section 1237 or similar state legislation [abandoned mine reclamation program]? Are there any cases dealing with the government's liability for failure to give the notice required under Section 45.1-263 of the Code of Virginia of comparable federal or state statute?
103 TOPIC: STABILIZATION OF SURFACE AREAS
INQUIRY: This report discusses OHA and court cases decided after 1983 on 30 CFR 816.95 (stabilization of surface areas).
104 TOPIC: INDIANA ALJ AND IBLA DECISIONS
INQUIRY: This report identifies a 1988 IBLA decision and the 1985 ALJ decision from which it was appealed re. Indiana surface coal mining.
105 TOPIC: BOND FORFEITURE--RELATIONSHIP OF BOND TO PERMITTED AREA
INQUIRY: The Environmental Hearing Board issued an adjudication on the forfeiture of surface mining bonds. The Board found numerous violations of the Pennsylvania Surface Mining Act and Regulations on the site. However, the Board held that the DER had failed to meet its burden to show what bond instrument covered liability for the site where the violation existed. The Board then vacated the DER bond forfeiture action. Locate any case law which explains that once violations of law are proven at a mine site, the bonds must be forfeited.
106 TOPIC: CONSTITUTIONALITY OF THE 300 FOOT WAIVER REQUIREMENT
INQUIRY: The constitutionality of the 300 foot waiver requirement [mining is not permitted within 300 feet of an occupied dwelling unless waived by the owner thereof] is explored.
107 TOPIC: EFFLUENT LIMITATION REQUIREMENTS
INQUIRY: Does a coal company discharging water with a ph level failing to meet effluent limitation requirements have a responsibility to bring up the ph level when the receiving water does not meet the effluent limitation requirements? In particular, if the permit area naturally contains water with a ph level that does not meet the 6.0 requirement, does the coal company's discharge off the permit area have to meet the 6.0 ph requirement or can the discharge just meet whatever ph level the water on the permit has naturally?
108 TOPIC: BANKRUPT SURETY COMPANY
INQUIRY: Does a bankrupt surety company's estate have priority over the collateral securing a bond when the bond was established for the limited purpose of insuring the required reclamation of a mine site? In particular, in what priority position would the Department, being a state agency and having filed proof of claim, take as to the collateral securing the bond and as to the bankrupt surety's claim against the same collateral?
109 TOPIC: DURATION OF MINING PERMITS FOR NON-FUEL MINES
INQUIRY: Permitting and renewal information was identified for 20 states to address the questions of duration of mining permits for non-fuel mines, renewal procedures, and fees associated with permit renewals.
110 TOPIC: EXTENSION OF THE 90-DAY ABATEMENT PERIOD FOR "GOOD CAUSE SHOW"
INQUIRY: 30 CFR Section 843.12(f) lists five specific circumstances under which an operator may be entitled to an abatement period beyond 90 days for correcting a violation. 30 USC Section 521(a)(3) provides that an abatement period may be "subsequently extended for good cause show". Are the five specific circumstances which may justify an extension beyond 90 days exclusive or can such extensions be granted on the basis of other "good cause show"? Locate any state or federal administrative or judicial decisions that may construe the regulations or any legislative history or comments that may suggest an answer to the question posed.
111 TOPIC: (I) TERMINATION OF JURISDICTION
INQUIRY: When does the state's authority over a surface mining operation end? After release of the reclamation bond?
TOPIC: (II) WETLAND TREATMENT OF ACID MINE DRAINAGE
INQUIRY: What information is available on the use of wetland filters as a means of treating acid mine drainage?
TOPIC: (III) ACID MINE DRAINAGE OFF THE PERMIT AREA
INQUIRY: Are there any Interior Office of Hearings and Appeals (OHA) decisions on acid mine water draining beyond the permit boundary?
112 TOPIC: REVEGETATION--TIMING
INQUIRY: This report explores whether cases which discuss 30 CFR 816.113 (Ala. Reg. Sec. 880-X-10C-.60), define the phrase "first normal period for favorable planting conditions" or specify planting materials.
113 TOPIC: DEFINITIONS OF SOIL AND MINERAL
INQUIRY: A permit is required for an operator to extract minerals from the earth. Is clay which is excavated from a borrow pit and used for fill dirt in construction considered a "mineral" requiring a permit, or "dirt" which would not require a permit for removal? Locate state laws which define "minerals", "soil", or "dirt".
114 TOPIC: SURVIVAL OF CIVIL PENALTIES
INQUIRY: Are civil penalties abated upon a permittee's death or do they survive to be assessed against the individual's estate?
115 TOPIC: EXEMPTION FOR GOVERNMENT-FINANCED CONSTRUCTION
INQUIRY: Locate Interior's Office of Hearings and Appeals (OHA) decisions which discuss the exemption from obtaining a mining permit when the extraction of coal is an incidental part of a government-financed construction. SMCRA Sec. 528(2) (formerly number Sec. 528(3)). 30 CFR Part 707. 30 CFR Sec. 700.11.
116 TOPIC: SUBSIDENCE: SIGNIFICANT STATE ISSUES
INQUIRY: This report consists of remarks of IMCC Executive Director Gregory E. Conrad on the topic, "Subsidence: An Overview of Significant State Issues" as presented at a seminar entitled "Subsidence: An Industry Under Siege".
117 TOPIC: (I) HIGHWALL ELIMINATION: REGULATIONS OF INDIANA, TENNESSEE, WEST VIRGINIA, WYOMING, MONTANA
INQUIRY: According to federal law, all highwalls are to be eliminated. What is the policy regarding highwall elimination in the following states: Indiana, Tennessee, West Virginia, Wyoming and Montana?
TOPIC: (II) CONTEMPORANEOUS RECLAMATION: REGULATIONS OF INDIANA, TENNESSEE, WEST VIRGINIA, WYOMING, MONTANA
INQUIRY: What is the definition of "contemporaneous reclamation"? How do the five states listed above regulate the timing of reclamation?
118 TOPIC: MAJOR/MINOR PERMIT REVISIONS
INQUIRY: How do the following states define "major" or "significant" permit revisions, e.g. one to which all permit application information requirements would apply: Indiana, Tennessee, West Virginia, Montana and Wyoming?
119 TOPIC: BONDING--WATER DISCHARGE
INQUIRY: This report explores whether the legislative history of SMCRA discusses the requirement for a bond, other than a performance bond, for water discharge or treatment [water quality].
120 TOPIC: ATTORNEYS' FEES
INQUIRY: Are there any federal or state cases on the following: (1) award of attorneys' fees to surface mining operators as a result of a challenge to a permit decision; (2) address recovery of attorneys' fees by litigants against a governmental agency; or (3) discuss Sec. 525(e) of SMCRA or 43 CFR 4.2190 et. seq.?
121 TOPIC: COAL FINES
INQUIRY: A coal mining company wishes to recover some previously mined coal fines from the surface of the ground. The recovery of these coal fines will not involve any actual excavation of overburden, dirt, etc. Is the act of merely recovering the coal fines considered surface coal mining under SMCRA?
122 TOPIC: PERMITTING: A. PERMIT APPLICATION APPROVAL PROCESS; B. IMPACTS ON AREAS OUTSIDE THE PERMIT BOUNDARY
INQUIRY: A. Do the regulatory agencies in other states engage in independent information fathering in the permitting process or only review, evaluate and criticize the information the operator puts in the permit application as being accurate, workable and consistent with SMCRA?
B. Is there any case law that has interpreted the necessity of including within the permit boundaries areas that suffer impacts incidental to underground mining, such as planned subsidence in longwall operations?
123 TOPIC: PREPAYMENT OF CIVIL PENALTIES
INQUIRY: Are there any state or federal decisions which rule on an indigent mine operator's ability to appeal a violation without preparing the civil penalty or posting an appeal bond? Is there anything in the legislative history of Sec. 518(c) which discusses the prepayment requirement?
124 TOPIC: BONDING PROGRAMS
INQUIRY: Are there any states with "unusual" bonding schemes, i.e. bonding programs which assign fees after an evaluation of a specific sites, rather than the more typical flat rate fee per acre bonding structure?
125 TOPIC: REVEGETATION
INQUIRY: This is a comparison report which explores the revegetation requirements in five states: Illinois, Indiana, Pennsylvania, Virginia and West Virginia.
126 TOPIC: FLY ASH DISPOSAL
INQUIRY: This state comparison report discusses disposal of fly ash (combustion waste from utilities) in coal mines.
127 TOPIC: (I) SEALING EXPLORATORY DRILLED HOLES
INQUIRY: Locate state statutes and rules which regulate sealing of exploratory drilled holes--in particular, any regulations regarding on-site inspection requirements.
TOPIC: (II) SEALING DRILLED HOLES IN ACTIVE PERMIT AREAS
INQUIRY: Locate state statutes and rules which regulate sealing of drilled holes in active permit areas--in particular, reclamation requirements.
128 TOPIC: USE OF AML FUNDS TO RESTORE PUBLIC FACILITIES "ADVERSELY AFFECTED BY COAL MINING PRACTICES"
INQUIRY: Wyoming's Abandoned Mine Land (AML) Program is beginning to inventory and evaluate public utilities, facilities and publicly owned land that may be "adversely affected by coal mining practices". Such projects may qualify for funding under Section 403(5) and (6) of SMCRA. Are there any relevant court decisions which interpret this terminology or legislative history material which discuss congressional intent? In particular, can AML funds be used to "reclaim" or "restore" a historic structure located in a town (offsite)?
129 TOPIC: LANDFILL AS A POSTMINING LAND USE
INQUIRY: Do landfills meet all of the criteria of the law as a postmining land use? Can a company change premining pasture land to a postmining landfill? The state regulatory authorities will allow such postmining use. Is there any OSM information available on this issue?
130 TOPIC: SET-OFF OF CIVIL PENALTIES FROM BOND PROCEEDS
INQUIRY: An operator who has a final civil penalty assessment successfully completes a phase of reclamation and is entitled to a reduction or release of a reclamation bond. Is it permissible to set-off the penalty amount from the bond proceeds in the absence of specific statutory authorization? If so, what is the authority for doing so?
131 TOPIC: INDIVIDUAL LIABILITY OF CORPORATE OFFICER, DIRECTOR OR AGENT
INQUIRY: Is the "participation theory" a viable alternative to "piercing the corporate veil" when a regulatory agency is attempting to hold a corporate officer, director and/or agent individually or personally liable for reclaiming a mine site and/or civil penalties assessed against the corporation for its violations of the surface mining laws? Please locate Interior Board of Land Appeals decisions and Administrative Law Judge decisions, state administrative decisions, and/or state and federal court decisions which are relevant to this issue.
132 TOPIC: INSPECTION OF BLAST RECORDS
INQUIRY: An operator monitored a neighboring mine's blasts on its seismograph. The operator's records could "implicate the neighboring mine". Citizen's suits have arisen over the neighboring mine's blasts. The operator's records of its own blasts are available for inspection. Do the Division of Reclamation and the public have the right to inspect seismographic records which happened to have been taken of the neighboring mine's blasts? According to SMCRA Sec. 517(b)(1)(E), 30 USC Sec. 1267(B)(1)(E), the permittee is required to "provide such other information relative to surface coal mining and reclamation operations as the regulatory authority deems reasonable and necessary". Locate any case law, opinions or other state regulations which address this issue.
133 TOPIC: EXEMPTION FOR GOVERNMENT-FINANCED CONSTRUCTION
INQUIRY: A portion of a permitted area is to be used as a government-financed landfill. The request for an exemption (from reclaiming that portion of the minesite) for the government-financed construction project was not made at the time the original permit was issued because the need for the landfill was not identified until recently. Must the exemption be in place at the time the permit is issued or may the exemption be authorized after the permit is issued? Is there any legislative history which discusses this issue?
134 TOPIC: 16 2/3 EXEMPTION--UPDATE OF PRIOR REPORTS
INQUIRY: What case law and administrative decisions are available on the 16 2/3 exemption for the extraction of coal incidental to the extraction of other minerals? If the overburden is being sold, can it be considered an "other mineral"? Is there any information on the definition of "mineral"?
135 TOPIC: DEFINITION OF "MINE STABILITY"
INQUIRY: What does the phrase "mine stability" mean under subsidence control regulations [30 CFR Sec. 817.121(a) or SMCRA Sec. 516(b)(1), 30 USC Sec. 1266] or under other federal statutes?
136 TOPIC: DEFINITION OF "IN CONNECTION WITH" UNDER "SURFACE MINING OPERATIONS"
INQUIRY: Please locate any federal or state cases interpreting portions of the definition of "surface coal mine operations", in particular the phrases "in connection with" and "incident to [underground coal mining]". Is the physical processing of coal at the site of final use regulated under SMCRA?
137 TOPIC: UPDATED INFORMATION ON BOND RATES
INQUIRY: What are the current bond rates set by other states?
138 TOPIC: HISTORY OF THE TWO-ACRE EXEMPTION
INQUIRY: A civil suit has been filed against the state by the parents of a boy who drowned in a water-filled, unreclaimed pit on a two-acre mine site. The accident occurred before the two-acre exemption was repealed. We would like to provide the judge, who has little familiarity with SMCRA, with a history of the development of the regulations and an overview of existing case law.
139 TOPIC: VALID EXISTING RIGHTS
INQUIRY: Locate the following: state statutes and regulations which define valid existing rights, Federal Register entries and state case law.
140 TOPIC: STATE SURFACE COAL MINE REGULATIONS PRE-SMCRA
INQUIRY: Which states had statutes and rules in force to regulate surface coal mining prior to the passage of SMCRA? Please locate any information available on pre-SMCRA laws and regulations.
141 TOPIC: REDUCTION OF THE MANDATORY CIVIL PENALTY
INQUIRY: Is there any case law to support the opinion that the mandatory $750 per day failure to abate penalty can be reduced? If so, what are the criteria for reduction? See SMCRA Sec. 518(h), 30 USC 1268(h); 30 CFR 845.15(b); 30 CFR 723.15(b)(2).
142 TOPIC: FISH AND WILDLIFE INFORMATION REQUEST
INQUIRY: Locate the Federal Register notices which discuss the fish and wildlife information required in permit applications. Are there any references to "minimum standards" in the preambles of those notices?
143 TOPIC: IMPOUNDMENTS
INQUIRY: Please locate rulings, policies or other state regulations which evaluate the definition of impoundments found in 30 CFR 701.5.
144 TOPIC: THIRD PARTY INTERFERENCE PREVENTING PHASE 3 BOND RELEASE
INQUIRY: Kentucky operators have been experiencing problems achieving final bond release due to third party interference. Examples of interference include three or four wheel vehicles driving on revegetated areas, drilling by oil and gas exploration companies and landowners grazing their livestock on reclaimed areas. Have the other states been experiencing similar problems? How have the other states handled these problems?
145 TOPIC: STATUS OF REMINING BILLS
INQUIRY: What is the status of the remining bill introduced by Representative Rahall at the beginning of this year? Is there any information available on two earlier versions of remining bills introduced by Representatives Clinger and Boucher?
146 TOPIC: SURETY'S RIGHT TO A HEARING IN BOND FORFEITURE PROCEEDINGS
INQUIRY: When an operator has waived his right to a hearing on the forfeiture of his bond, can the surety seek a separate hearing? Are there any state cases or administrative decisions which discuss this issue? Are there any states which included sureties in their notice of bond forfeiture regulations?
147 TOPIC: PERMIT, ACREAGE AND INSPECTION FEES--UPDATE OF INQUIRY 17 (1984)
INQUIRY: What are the permit application and acreage fees for the following states: Kentucky, Ohio, Pennsylvania, Virginia and West Virginia? Do these states charge inspection fees?
148 TOPIC: CONTRACTOR LIABILITY FOR VIOLATIONS; OWNERSHIP AND CONTROL OF OPERATIONS
INQUIRY: Virginia statutes and regulations require applications for mining permits (or significant revisions) to be denied if it is determined that the applicants own or control other operations currently in violation of SMCRA. Please locate Interior administrative decisions as well as federal and state cases which interpret the phrase "own and control" in the context of SMCRA. What are the facts and circumstances of these opinions?
149 TOPIC: HAUL ROADS AND VALID EXISTING RIGHTS
INQUIRY: Please locate any material which discusses valid existing rights (VER) with respect to haul roads. In particular, the hauling of coal on roads in existence prior to August 3, 1977.
150 TOPIC: BONDING FOR LONG-TERM FACILITIES
INQUIRY: Locate Federal Register notices (preambles, proposed and final rules) which discuss bonding requirements for coal-related long-term facilities and structures.
151 TOPIC: SUBSIDENCE: AN OVERVIEW OF SIGNIFICANT ISSUES--UPDATE OF INQUIRIES 101 AND 116
INQUIRY: This report consists of remarks of IMCC Executive Director Gregory E. Conrad presented before the Mining and Natural Resources Subcommittee, House Committee on Interior and Insular Affairs.
152 TOPIC: CHALLENGES TO CUMULATIVE HYDROLOGIC IMPACT ASSESSMENTS (CHIAs)
INQUIRY: The Hope Tribe is interested in obtaining all available information on challenges to CHIAs prepared by OSM. We are specifically interested in CHIAs that have been challenged for technical inadequacy, political bias, incompleteness or other deficiencies.
153 TOPIC: 90-DAY ABATEMENT PERIOD--SETTING A "REASONABLE TIME" FOR ABATEMENT--INCLUDES REPORT 110
INQUIRY: According to 30 CFR 843.12(b)(3) [COMAR 08.13.09.40(F)(2)(c)] the Notice of Violation (NOV) must set "a reasonable time for abatement". Please locate Interior Board of Land Appeals and Administrative Law Judge decisions which discuss the following questions: How much discretion is acceptable in setting the abatement period? How specific does the start date/end date information have to be?
154 TOPIC: STATE PERMITTING ON FEDERAL LANDS
INQUIRY: What case law, preambles, etc. are available which discuss a state's right to issue permits for coal mining operations which were conducted on federal lands prior to the approval of the state SMCRA regulatory program?
155 TOPIC: LANDS UNSUITABLE FOR MINING AND VALID EXISTING RIGHTS IN A SEVERED MINERAL SITUATION
INQUIRY: An operator in possession of a deed dating back to 1924 is conducting underground coal mining within 300 feet of an occupied dwelling without permission of the surface owner. What are the options for enforcement? Please locate administrative decisions and federal or state cases which address this issue.
156 TOPIC: LANDS UNSUITABLE FOR MINING: DEFINITION OF "RENEWABLE RESOURCES" AND "FRAGILE OR HISTORIC LANDS"--INCLUDES 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 case law involving EPA-designated sole-source aquifers?
157 TOPIC: DEFINITION OF "ADJACENT TO" UNDER "SURFACE MINING OPERATIONS"--INCLUDES REPORT 136
INQUIRY: What materials are available which discuss the definition of the phrase "adjacent to" as it is found in the definition of "surface coal mining operations" at 30 CFR Section 701(28) and 30 CFR 700.5? Specifically does the moving of a dragline over an area "adjacent to" a permitted area fall under the definition of "surface coal mining operations" and, therefore, is a permit required for this activity?
158 TOPIC: CITIZENS' SUITS: THE 60 DAY LETTER
INQUIRY: Citizens are challenging the state's issuance of a mining permit. The citizens filed a 60-day letter pursuant to Sec. 520 of the Act (30 USC 1270) although the state regulatory authority is still actively investigating the issuance of the permit. Is there any case law which addressed the need to "exhaust administrative remedies" prior to filing a suit in a district court?
159 TOPIC: REVIEW OF PERMIT APPLICATIONS; SUBSIDENCE
INQUIRY: Is there any material which discusses the regulatory authority's responsibility in reviewing permit applications? In particular, how does the RA verify subsidence information?
160 TOPIC: MINING ABOVE AN ABANDONED MINE SITE
INQUIRY: A landowner is suing the states regulatory authority for granting an operator a permit to mine above an abandoned underground mine. The landowner fears the work will cause considerable subsidence. Are there any cases which address this issue?
161 TOPIC: LANDS UNSUITABLE FOR MINING: DEFINITION OF "NATURAL HAZARD LANDS"
INQUIRY: Please locate any material which discusses the definition and use of the phrase "natural hazard lands" under SMCRA Section 522(a)(3)(D).
162 TOPIC: BOND FORFEITURE: RENUMBERED BOND
INQUIRY: A bond issued during the interim program period was renumbered when the permanent state program went into effect. The operator forfeited the bond. The surety will not pay, claiming it was released from responsibility when the bond number was changed. Is there any case law on this issue?
163 TOPIC: ATTORNEY'S FEES
INQUIRY: Can an applicant for attorney's fees rely on work done in prior proceedings (in which the applicant lost) in seeking attorney's fees in a subsequent case where the record from the prior case has merely been transferred? Please locate any relevant case law.
164 TOPIC: RIGHT OF ENTRY INFORMATION IN PERMIT APPLICATIONS
INQUIRY: In the application for a mining permit, an operator listed a pending lease as the document substantiating his right to enter and begin mining operations. The pending lease is now in dispute. What legal documents do other states require to prove right of entry? Do other states require proof of the right of entry for the entire permitted area or for each increment as it is mined?
165 TOPIC: PERMIT REVISIONS; INCIDENTAL BOUNDARY REVISIONS
INQUIRY: 30 CFR 774.13(d) ["Requests to change permit boundary" under "Permit revisions"] states that "Any extensions to the area covered by the permit, except incidental boundary revisions, shall be made by application for a new permit." Please locate any material which defines "extensions". Does this mean acreage added to the permit area? If the same number of acres are added as are deleted from a permit, is a new permit required? How do the other IMCC states interpret this section?
166 TOPIC: PERMITTING OF WETLANDS--PROCEDURES FOR NOTIFYING THE ARMY CORPS OF ENGINEERS
INQUIRY: The Army Corps of Engineers (the Corps) is one of the federal agencies that is notified of and given an opportunity to review surface coal mining permit applications (33 CFR 330.5 Nationwide Permits, Paragraph 21). If wetlands are included in the area to be permitted does the Corps always require the operator to obtain a separate "404 permit" (33 CFR 330.5 (26))? What procedures do the eastern states follow in notifying the Corps of permit applications? Do any states have a single permitting process which satisfies both SMCRA and Section 404 (Clean Water Act, 33 USCS 1344) permitting requirements?
167 TOPIC: AUGER MINING: DISTANCE REQUIREMENTS FOR BACKFILLING AND GRADING
INQUIRY: Kentucky contemporaneous reclamation regulations for auger mining require backfilling and grading to follow coal removal by not more than 60 days and by not more than 1,500 linear feet [405 KAR 16:020; Proposed rule 30 FR 816.101]. The Cabinet takes the position that the 1,500 linear feet requirement can be arrived at by adding all auger mining activities on a single-bonded permit area. A permittee is making the argument that the disturbance has to be a continuous 1,500 linear feet before any violation exists. How do other states with similar regulations interpret the 1,500 linear feet requirement? Is there any relevant case law on this point?
168 TOPIC: CONFIDENTIALITY OF COAL OWNERSHIP INFORMATION IN PERMIT APPLICATIONS
INQUIRY: Several Illinois coal operators have requested that coal ownership information which they provide to the state regulatory authority as part of the permit application be considered confidential information and not made available to the public. The coal operators are concerned about easy access to information on areas where they have future mine interests but don't yet own the coal rights. The federal program does not provide for confidentiality of such information. Do other states such as Ohio or Kentucky have provisions for keeping information confidential?
169 TOPIC: OWNERSHIP AND CONTROL; APPLICANT VIOLATOR SYSTEM
INQUIRY: A company wished to transfer ownership of a permit. The transfer was blocked because of problems the new owner had in another state. The new owner failed to pay AML severance tax payments in the other state. The new owner claims that it did not own or control the company in the other state. What cases and general information are available on these issues?
170 TOPIC: DISPOSAL OF COAL PROCESSING WASTE
INQUIRY: A coal company challenged the definition of "coal processing waste" [30 CFR 701.5] and the requirement to place the waste within the permitted area [30 CFR 816.81-816.87]. The company has been using the refuse as a landscaping product. Are there any legislative history materials, federal or state opinions, etc. which discuss the rationale for the rules which regulate the disposal of coal processing waste?
171 TOPIC: (I) PERMIT RENEWALS: NOTIFICATION OF SURETIES; LIABILITIES OF SURETIES (II) OBTAINING JUDGMENT DEFICIENCIES AGAINST COAL MINING COMPANY STOCKHOLDERS
INQUIRY: (I) How does the renewal of a coal mining permit affect the surety's liability on its bonds when the renewal constitutes a substantial modification of the original permit? Must a surety be notified when a permit is renewed or modified?
(II) Can the state bring a deficiency judgment against any solvent corporations or individuals who were shareholders of the insolvent mining company in order to recover the actual cost of reclamation which is twice the amount of the bond?
172 TOPIC: INABILITY TO COMPLY
INQUIRY: A coal company mining a landfill claimed it was unable to comply with Iowa's SMCRA regulations because the county changed its zoning laws. As a result of the zoning change, the coal company was unable to operate and went out of business. The state court found that the county had acted improperly in re-zoning the area in question. Can the court's ruling in favor of the coal company be considered as a reason to vacate the state issued NOV and CO or only as a circumstance to mitigate the amount of civil penalties [30 CFR 843.18]?
173 TOPIC: COAL REMOVAL INCIDENTAL TO PRIVATE DEVELOPMENT
INQUIRY: During the course of a private commercial construction project a construction company found coal. Does the company need a SMCRA permit to remove the coal? Are there any decisions, Federal Register preambles, etc. which discuss this issue? Would the other IMCC member states require the construction company to apply for a permit in this circumstance?
174 TOPIC: AGENCIES RESPONSIBLE FOR ISSUING SURFACE MINING AND NPDES PERMITS
INQUIRY: In other IMCC member states, are surface mining (SMCRA) and National Pollutant Discharge Elimination System (NPDES) permits issued by the same agency? Have any states delegated the responsibility for issuing NPDES permits to the agency that issues SMCRA permits?
175 TOPIC: 400 YEAR PRECIPITATION EVENT: LIABILITIES AND REMEDIES FOR OFF-SITE DAMAGE
INQUIRY: Several years ago, a 400 year storm event caused the breach of a sedimentation pond resulting in off-site damage. Are there any EPA or state regulations that would establish potential liability against the operator or provide the landowner whose property was damaged with some remedy? Are there any Interior or other administrative cases which address these issues?
176 TOPIC: SUBSTITUTING ALTERNATIVE MATERIALS FOR TOPSOIL
INQUIRY: What administrative cases are available which discuss the use of alternative materials for topsoil? In particular, must the "best available" material used to cover a previously mined area be from the previous mine's old spoil pile or does "best available" material mean material from anywhere in the permit area?
177 TOPIC: SUBSIDENCE CONTROL: 6 MONTH NOTICE
INQUIRY: If an operator notifies a landowner at least 6 months prior to mining and the landowner subsequently sells that property, is the operator required to notify the new landowner? If there is a time lapse between the notification and the beginning of underground operations, is the operator required to notify landowners again? Please locate any administrative decisions or other materials which discuss this issue. [WV Section 38-2-16.1; 30 CFR 817.122].
178 TOPIC: PERMITTING OF A TEMPORARY PUBLIC ROAD
INQUIRY: An operator's permit includes mining through an existing public road. The operator is constructing a temporary road to reroute traffic while the public road is closed. Is the construction of the temporary public road subject to the state's road standards or is it required to be permitted as a "coal mining operation" and become subject to SMCRA performance standards? Are there any administrative decisions or state or federal case law which discuss this issue?
179 TOPIC: INSPECTABLE UNITS LIST (IUL)
INQUIRY: Please locate any OSM Directives which describe when an inspectable unit may be removed from the IUL. In particular, can we remove a site from the IUL if the bond has been forfeited and surety is bankrupt?
180 TOPIC: ATTORNEYS' FEES IN NON-ENFORCEMENT, NON-ADVERSARIAL PROCEEDINGS--INCLUDES REPORT 120
INQUIRY: Are attorneys who speak during informal conferences held as a means of gathering data on a pending permit, entitled to an award of costs, expenses and attorneys' fees for their appearance? Please locate relevant administrative, federal and state decisions.
181 TOPIC: CURRENT LIABILITY FOR ACID MINE DRAINAGE UNDER A PRE-SMCRA PERMIT
INQUIRY: What is a surface coal operator's current liability for a discharge of acid manganese from its operations if the coal miner operated under a pre-primacy state permit and coal removal stopped before Pennsylvania achieved primacy but after limits for manganese appear in both initial and permanent federal SMCRA regulations but were not regulated under pre-SMCRA state laws. Reclamation of the site continued until after Pennsylvania achieved primacy, however, the operator did not apply for either an interim or a permanent permit. Please locate relevant Interior administrative decisions and federal and state case law.
182 TOPIC: DEFINITION OF SOIL AND MINERAL--UPDATE OF INQUIRY 113
INQUIRY: Please locate materials which discuss the definition of "mineral". In particular, are there any cases which rule that "soil" is considered a mineral for regulatory purposes?
183 TOPIC: UNWARRANTED FAILURE TO COMPLY: DEFINITION OF "INDIFFERENCE", "LACK OF DILIGENCE" AND "LACK OF REASONABLE CARE"--INCLUDES REPORTS 141 & 172
INQUIRY: Are there any administrative decisions which define the terms above as used in the definition of "unwarranted failure to comply", 30 CFR 843.5 [initial regulations 30 CFR 722.16(b)(3)]? The same phrases are found as part of the definition of "negligence", 30 CFR 845.13(b)(3)(ii)(B) [initial regulations 30 CFR 723.12(d)].
184 TOPIC: USE OF LETTERS OF CREDIT AS RECLAMATION BONDS
INQUIRY: This report consists of a copy of the paper presented by G. Milton McCarthy, Assistant Attorney General, Alabama Surface Mining Commission, at the Seventh Annual Conference of Government Mining Attorneys. Included with the paper are the responses of IMCC member states to a questionnaire prepared by Gregory E. Conrad.
185 TOPIC: SELF-BONDING AS AN ALTERNATIVE BONDING SYSTEM
INQUIRY: This report consists of a compilation of responses to a survey of IMCC member states. Copies of relevant state statutory and regulatory provisions are included as attachments.
186 TOPIC: SUBSIDENCE INSURANCE
INQUIRY: This report consists of a compilation of responses to a survey of member IMCC states.
187 TOPIC: REVEGETATION PRODUCTIVITY MEASUREMENTS FOR PHASE III BOND RELEASE
INQUIRY: Federal regulations [30 CFR 816.116(a)(1)] require statistically valid sampling techniques for measuring successful revegetation. Nowhere in the federal regulations does it indicate what methods maybe used to measure vegetative ground cover, number of trees per acre, etc. Please conduct a survey to determine what production testing methods other states are proposing to use to measure revegetation success for final bond release.
188 TOPIC: ABANDONED MINE LAND (AML) RECLAMATION; EXCESS SPOIL DISPOSAL--INCLUDES REPORTS 28 & 176
INQUIRY: Can the state regulatory authority contract with an operator of an active mine to reclaim an abandoned mine on land adjacent to the permitted area without amending the operator's permit or issuing a new one? Can the operator take excess spoil materials from the permitted site to use in reclaiming the AML site? Please locate all relevant materials which discuss these issues.
189 TOPIC: SUBSIDENCE AND PUBLIC LAND USE
INQUIRY: Virginia deleted 160 acres from a coal company's underground mining permit at the time it was renewed. A new prison facility is to be constructed over the deleted acreage and the state believed that any subsidence from a mine under the site would affect the prison structure and the high-technology electronics the state will be using. The Division of Mined Land Reclamation subsequently approved a revision to the permit reinstating the 160 acres, but added several conditions to the permit. The coal company is suing on the grounds that new conditions constitute a taking of the 160 acres. Please locate any relevant case law.
190 TOPIC: VARIANCE FROM AOC FOR PARTIAL MOUNTAINTOP REMOVAL
INQUIRY: An operator received a variance from AOC for mountaintop removal. After mining halfway through the seam, the operator switched to contour mining. Is the operator entitled to keep the variance now that the method of mining has changed and the entire seam will not be taken? Please locate legislative history material which discusses this issue. Have Kentucky or Virginia encountered similar situations?
191 TOPIC: IS FILL DIRT CONSIDERED A "MINERAL" FOR REGULATORY PURPOSES--INCLUDES REPORTS 134, 47, 24, 82 AND 113
INQUIRY: A sand and gravel dealer identified two coal seams separated by shale below an area being excavated. If the intervening layers of shale are sold as fill dirt, can the dealer obtain an exemption based on the 16 2/3 rule for extraction of the lower seam of coal? What case law and other materials are available on this issue in addition to McNabb Coal Co. v. OSM, 101 IBLA 282 (1988), Cordova Clay Co. v. OSM, Docket No. NX 5-3-R (1986) and W.S. Newell, In. v. Randall, 373 So 2d 1068 (Ala 1979)?
192 TOPIC: ACID MINE DRAINAGE
INQUIRY: Please locate legislative history, Federal Register preambles or other materials which discuss the following: Does a coal company have to guarantee there will be no acid mine drainage in order to obtain a mining permit or is it sufficient for the company to present its plans for preventing or treating toxic drainage in order to receive a permit [SMCRA Secs. 515(b)(10) and 516(b)(9)]?
193 TOPIC: FAILURE TO MAINTAIN SEDIMENTATION PONDS (SILTATION STRUCTURES)
INQUIRY: An operator was cited for failing to maintain sedimentation ponds. The inspector found water running under the discharge pipe. Please locate any materials i.e. case law, Federal Register preambles, legislative history, which discuss the requirement to maintain sedimentation ponds and spillways.
194 TOPIC: PERMITTING OF UTILITY LINES
INQUIRY: An operator who has the right to mine under a coal severance deed is installing utility lines to supply power to the mine. The landowner is inquiring if the construction of utility lines over his land requires permitting under SMCRA. Please locate case law and other materials which address this issue.
195 TOPIC: REFORMATION OF BOND
INQUIRY: In the early days of SMCRA, Oklahoma used an existing form to issue a bond to a coal operator. The bond form referenced the pre-SMCRA regulations. Subsequently the Department of Mines reformed the ooperator's bond to reflect the correct regulation. The state now wants to forfeit the bond. The surety, however, refuses to pay, claiming it has no liability because the original bond referenced the old law. Please locate any relevant case law.
196 TOPIC: TRANSFER OF A PERMIT
INQUIRY: Please locate administrative decisions which address problems a coal company may have transferring a permit. What happens when one of the parties has outstanding violations?
197 TOPIC: NPDES PERMITS: STATE SET WATER QUALITY STANDARDS
INQUIRY: According to EPA regulation 40 CFR 122.44(d) a state can set NPDES water quality standards which are more stringent than the federal standards. (Tennessee administers its own NPDES permitting program. OSM administers the surface coal mining program.) A coal company is contesting the state's right to set certain effluent limits on an NPDES permit. Please locate any information which discusses the state's right to set more stringent levels and the processes the state must follow to establish those levels for the permit.
198 TOPIC: DEFINITION OF "PUBLIC FACILITIES"; STATUS OF UNDERGROUND PIPELINES WITHIN SMCRA
INQUIRY: Are there any cases, legislative history or other material which address the meaning of "public facilities" as set out in 30 CFR Sec. 817.121(d)(1)? Specifically, do underground pipelines or gas utility lines fall within Sec. 817.121(d)(1) as "public facilities"? How does SMCRA treat the undermining of underground pipelines or gas utility lines?
199 TOPIC: INCREASING BOND FOR OPERATOR IN BANKRUPTCY
INQUIRY: Does an action by the regulatory agency requesting an operator in bankruptcy to post more bond violate the automatic stay provision of 11 USC Secs. 362(a)(2) and (6) when the higher bond is necessary to meet reclamation costs? Please locate any material which discusses the automatic stay provision and the need to uphold state environmental law.
200 TOPIC: PHC/CHIA DATA COLLECTION ON PUBLIC ROADS--INCLUDES REPORTS 152 & 178
INQUIRY: Is there any case law or other material on the need for PHC/CHIA data collection on public roads being upgraded in conjunction with initiation of coal mining activities? Does the public road constitute an "adjacent area" for purposes of data collection?
201 TOPIC: LEGISLATIVE HISTORY OF PHRASE "OWNED OR CONTROLLED" [SMCRA 510(c)]
INQUIRY: In complying with its agreement, a coal mining company will list all permits it is associated with and correct any outstanding violations. SMCRA Sec. 510(c) states that the company must list violations "during the three year period prior to the date [of the company's permit] application". What legislative history is available which discusses the time-frame aspect of providing violation and "ownership and control" information on the permit application? This information is needed as soon as possible.
202 TOPIC: OFFSITE DISPOSAL OF EXCESS SPOIL
INQUIRY: Can excess spoil from a surface coal mining operation be used as fill in the construction of a highway near the mine site? If the excess spoil can be used, must the site be permitted? Please locate any information which addresses these issues.
203 TOPIC: WATER SUPPLY REPLACEMENT FOR UNDERGROUND MINING--INCLUDES REPORTS 35 & 93
INQUIRY: Please locate any information which discusses the state regulatory authority's ability to regulate water supply replacement for underground mining operations.
204 TOPIC: LENGTH OF TIME FOR PERMIT APPROVAL
INQUIRY: Please poll the IMCC member states for the following information: "How long (number of months) does it take to approve a new, first time permit from the time of receipt until final approval".
205 TOPIC: PERMITTING OF RAILROAD SIDINGS AND SPUR LINES
INQUIRY: Are railroad sidings and spur lines located at loading facilities and preparation plants required to be permitted? Please locate any relevant material which discusses this topic.
206 TOPIC: LIABILITY PERIOD FOR ALTERNATE POST-MINING LAND USE
INQUIRY: The liability period for final bond release in the western states is 10 years. Is there any material available which indicates that the liability period for bond release may be reduced for certain alternative post-mining land uses, such as residential development?
207 TOPIC: ENVIRONMENTAL EXTERNALITIES
INQUIRY: The topic "Environmental Externalities: Indirect Taxes on Electricity" was discussed at an AMC convention. California may already have law dealing with this topic on their books. Can you locate any existing information on this issue or people to contact for information?
208 TOPIC: EXTENSION OF CONDITIONS ON FEDERAL COAL LEASE TO STATE'S PERMIT OF PRIVATELY-OWNED SURFACE--INCLUDES REPORT 154
INQUIRY: An operator is mining federally-owned coal under privately-owned surface. The Wyoming regulatory authority wants to place the same conditions on the state mining permit that exist on the federal coal lease. Please locate any OSM or Bureau of Land Management materials which discuss this issue.
209 TOPIC: REPLACEMENT OF TOPSOIL; PERMIT REQUIREMENTS MORE STRINGENT THAN THE REGULATIONS
INQUIRY: Prior to final bond release an operator was found to have reclaimed the mined area with 14 inches of topsoil. The permit and reclamation plan required 18 inches to be replaced. The pre-mining topsoil depth is believed to be 14 inches. Does the operator have to put back what was not there originally to get his final bond release? Please locate any Interior administrative decisions which discuss the definition of "topsoil", topsoil replacement and the need to meet permit requirements which are more stringent than the regulations.
210 TOPIC: (I) DEFINITION OF OR TEST FOR "VALID EXISTING RIGHTS (VER) (II) SUBSIDENCE: COMPENSATION FOR DAMAGED STRUCTURES AND WATER SUPPLY
INQUIRY: A survey was conducted of IMCC and non-IMCC members consisting of the following questions:
(I) VER--For all states surveyed:
1. What is your state program's definition of or test for VER, e.g. the "good faith/all permits" test or the "takings" test? Please include the state statute or regulation section number. [SMCRA Sec. 522(e); 30 CFR 761.5].
(II) SUBSIDENCE--For states with underground mining:
1. Does your state program contain regulations requiring compensation for or repair of structures (not land) damaged as a result of subsidence? Please include the state statute or regulation section number. [SMCRA Sec. 516(b); 30 CFR 817.121(c)].
2. Does your state program contain regulations requiring the replacement of water supplies damaged as a result of subsidence? Please include the state statute or regulation section number. [SMCRA Sec. 717(b)].
211 TOPIC: BUFFER ZONE FOR CEMETERIES
INQUIRY: Can the prohibition against mining within 100 feet of a cemetery be waived? Please locate any information which discusses this issue. [SMCRA Sec. 717(b)].
212 TOPIC: DISCRETION TO WAIVE CIVIL PENALTIES
INQUIRY: According to 30 CFR 845.12(c), a regulatory authority may assess a penalty for each NOV assigned 30 points (or $1,000) or less. At one time Indiana, in practice, automatically waived all penalties below $1,100. Subsequently the policy changed and the waiving of civil penalties became discretionary, depending on mitigating circumstances. Do other states waive civil penalties? If so, under what circumstances?
213 TOPIC: LANDS UNSUITABLE; VALID EXISTING RIGHTS; TAKINGS--INCLUDES REPORTS 156 AND 139
INQUIRY: Without considering additional briefings or testimony the Court of Appeals added 830 acres to an area petitioned to be designated unsuitable for mining (the suit requested 15 acres to be added). The court remanded the case for a new decision which would take into consideration the "future use" of the aquifer. I am interested in information on the following topics:
1. Update of Coalex Reports 156 (renewable resource and aquifers) and 139 (VER).
2. Petitions to OSM for designating lands unsuitable for mining.
3. Additional material on takings and "continually created VER".
214 TOPIC: DEFINITION OF "TIMING AND FREQUENCY OF BLASTS"
INQUIRY: Is there any discussion in the legislative history of the meaning of the phrase "timing and frequency of blasts" as used in SMCRA Sec. 515(b)(15)(c) [30 USC 1265(b)(15)(C)]? Does "timing" refer to times of the day when blasting may occur or timing of delays? Does "frequency" refer to the number of blasts in a given time period or to the vibration frequency?
215 TOPIC: WATER QUALITY STANDARDS AND EFFLUENT LIMITATIONS
INQUIRY: The federal regulations at 30 CFR 816.42 (surface) and 817.42 (underground) state that discharges from areas disturbed by mining shall comply with effluent limitations set by the Environmental Protection Agency (EPA). Maryland's corresponding regulation requires compliance with "all federal and state laws", lists specific minimum numerical effluent limitations and allows exemptions from the effluent limitations for certain precipitation events. Which states have regulations that reference the EPA regulations and which states list specific numerical limitations?
216 TOPIC: UTAH RULES ON PERMIT TRANSFERS
INQUIRY: Please locate copies of Utah rules dealing with operator changes and permit transfers.
217 TOPIC: SMCRA-RELATED AMENDMENTS TO HR 776--THE NATIONAL ENERGY BILL (5/92)
INQUIRY: Locate the Congressional Record debate on the SMCRA-related amendments to the House version of the National Energy Bill. Include copies of the amendments.
218 TOPIC: ARMY CORPS OF ENGINEERS
INQUIRY: Please locate the following Federal Register notices relating to Army Corps of Engineers regulations: November 13, 1986; August 14, 1991; and November 22, 1991.
219 TOPIC: DEFINITION OF IMPOUNDMENT--INCLUDES REPORT 143
INQUIRY: Are there any administrative decisions that define what an impoundment is for regulatory purposes? In particular, is an impoundment not used for sediment control subject to SMCRA regulation?
220 TOPIC: PETITIONS FOR COSTS, EXPENSES AND ATTORNEY'S FEES
INQUIRY: I am interested in a listing of all administrative decisions which rule on the award of costs, expenses and attorney's fees. In particular, I am looking for "cost petition" cases that seek awards under SMCRA Secs. 520(d) [30 USC 1270(d)] and 525(e) [30 USC 1275(e)]. In addition, please send a list of the materials available in the Legislative History files of the Coalex library.
221 TOPIC: NPDES PROCESSING FEES FOR SURFACE COAL MINES
INQUIRY: Tennessee is instituting a new permit fee program for processing NPDES permits which includes an initial processing fee depending on the length of the permit, plus an annual maintenance fee. The goal is to create a self-supporting program. What do other states charge for NPDES permit processing?
222 TOPIC: PERMIT REVISIONS AND MIDTERM PERMIT REVIEWS
INQUIRY: An operator's recent request for a permit revision for use of a topsoil substitute was denied. The operator (Peabody) claimed that similar provisions in the original permit and subsequent permit revision requests have been approved. No NOVs have been issued for failure to meet the applicable performance standards. Please locate any material which discusses the RA's ability to alter previously approved permit conditions or permit revisions and the purpose behind the need for the midterm permit review.
223 TOPIC: ORGANIZATION OF TITLE IV AND TITLE V REGULATORY AGENCIES
INQUIRY: The regulation of Illinois' Title IV (Abandoned Mined Lands or "AML") program is housed in an agency that is separate from that which houses the Title V (surface mining and reclamation) program. How do other IMCC member states organize their AML and SMCRA agencies?
224 TOPIC: DEFINITION OF "OPERATOR" AND "PERMITTEE"
INQUIRY: A coal company holds a valid permit on an inactive mine. The company claims it is not liable for the NOV and CO the state issued because it is not an "operator" as that term is defined in the Wyoming statute. Please locate materials discussing the definition of "operator", "permittee" and related topics, e.g. termination of jurisdiction.
225 TOPIC: SMCRA, SUBSIDENCE AND ABATEMENT OF A PUBLIC NUISANCE
INQUIRY: Are there any cases or other materials which discuss the regulation of mining, particularly subsidence, as an abatement of a public nuisance? A coal company is alleging a "taking by regulation" because conditions on their permit restrict mining under a public building. [This is a continuation of Coalex report 189].
226 TOPIC: EFFLUENT LIMITATION REQUIREMENTS AND DAMAGE FROM PREVIOUS MINING--INCLUDES REPORTS 90 & 107
INQUIRY: Discharge from a sedimentation pond exceeds the effluent limitations. The operator claims the problem stems from the previous mining operation located on that site for which he is not responsible. Please locate relevant administrative cases.
227 TOPIC: CITIZENS' REQUEST FOR FEDERAL INSPECTION: LIABILITY FOR INJURY
INQUIRY: According to 30 CFR 842.12, a complainant may accompany an inspector investigating possible violations. The mine operator does not want the complainant on the mine site for fear that the operator will be liable if the complainant gets injured during the inspection. Please locate any material which discusses an operator's liability for citizens who accompany inspectors on such trips.
228 TOPIC: INCIDENTAL BOUNDARY REVISIONS AND INSIGNIFICANT PERMIT REVISIONS
INQUIRY: Illinois DMM is interested in obtaining information on IMCC-member states' regulations regarding these topics:
1. Incidental boundary revisions (IBRs):
a. Is there a limit to the number of IBRs which may be issued under a single permit?
b. Are acreage limitations imposed on IBRs?
c. Have there been any OSM oversight concerns with the regulations or their implementation?
2. Insignificant permit revisions (IPRs):
a. Are land use changes allowed via the IPR process?
b. If so, under what criteria are they allowed, e.g. under a certain acreage limitation?
c. What are the differences between an insignificant and a significant permit revision?
d. Have there been any OSM oversight concerns with the use of the IPA process for land use changes or with any other aspect of the implementation of these state regulations?
229 TOPIC: (I) ATTORNEYS' FEES (II DEFINITION OF "IN CONNECTION WITH"
INQUIRY: (I) The Department of Mines, Minerals and Energy (DMME) has attorneys on staff. For an upcoming lawsuit against an operator DMME may have to use attorneys from the Attorney General's (AG) office. According to Virginia state law fees for use of the AG's lawyers must be billed back to DMME. Can these types of fees, or fees paid to counsel hired from private law firms, be charged to the OSM regulatory grant (on a 50/50 basis)?
(II) On November 22, 1988, OSM removed the definition of "support facilities". The phrase "in connection with" a mine was added to describe those coal preparation plants which require regulation under SMCRA. Does any state have regulations that establish criteria to determine when an offsite plant is "in connection with" a mine or mines?
230 TOPIC: DEFINITION OF "NO CONTINUING RECLAMATION RESPONSIBILITY"
INQUIRY: Are there any materials in the legislative history or any case law that discuss the definition of the phrase "no continuing reclamation responsibility" which appears in SMCRA Sec. 404 Eligible Lands and Water [30 CFR 1234]?
231 TOPIC: OWNERSHIP AND CONTROL: "RELATED PARTIES"--INCLUDES REPORTS 131 & 148
INQUIRY: Thompson Bros. Coal, owned by a father and two sons, applied to transfer its permit to Avery Coal. The permit transfer was denied by Pennsylvania Department of Natural Resources (PADER) when post mining discharges were found. Avery treated the discharges then went out of business. PADER negotiated with Thompson Bros. to get the company to continue to treat the discharges. Between the time the negotiations broke down and the issuance of the NOV, the sons sold their shares of the company to the father. Each son formed his own company and applied for a mining permit as a separate entity. Both permits were denied on the grounds that the sons were "related parties" under Pennsylvania rule [25 Pa Code 86.37(a)(8)]. Please locate any related case law.
232 TOPIC: DEFINITION OF "OPERATOR"--CONTINUATION OF REPORT 224
INQUIRY: A permit holder minimally disturbed the permitted area; no minerals were removed. Is this permit holder considered an "operator" as defined in SMCRA and the regulations? Who is responsible for reclamation? Please locate any materials on this issue.
233 TOPIC: SUSPENSION OR REVOCATION OF PERMIT FOR INSUFFICIENT INFORMATION; LIABILITY FOR ATTORNEYS' FEES
INQUIRY: Can a newly issued permit be suspended by the state in order to request additional information from the applicant? If as a result of the permit suspension the operator sues and wins, will the state be liable for attorneys' fees? Please locate any relevant case law.
234 TOPIC: PROPER SERVICE
INQUIRY: A Cessation Order (CO) was sent to an operator by certified mail. The letter was returned as "unclaimed". The operator claims there was "no service" of the CO. Please locate any case law that addresses the question of what constitutes "service" for COs and similar documents.
235 TOPIC: DEFINITION OF "MATERIAL DAMAGE" RE: HYDROLOGIC BALANCE OUTSIDE THE PERMIT AREA
INQUIRY: 30 CFR 780.21(g) and (h) talk about "material damage" to the hydrologic balance outside the permit area. Are there cases that define "material damage", specify remedial obligations or substantiate a basis for denial of material damage?
236 TOPIC: PATTERN OF VIOLATIONS
INQUIRY: The operator who is the subject of a pattern of violations (POV) hearing wishes to introduce evidence concerning the underlying factual circumstances surrounding the finalized NOV and assessment. The state regulatory authority (RA) wishes to exclude all evidence concerning the NOV and the assessment, other than that which is contained within the finalized records of the RA. The state takes the position that the finalized NOV and assessment are res judicata and cannot be collaterally attacked. Please locate material on the admissibility of evidence to explain, contradict, or collaterally attack the finalized NOV and assessment.
237 TOPIC: FUGITIVE DUST EMISSION REGULATIONS
INQUIRY: Indiana is considering revisions to its rules regulating fugitive dust emissions from surface coal mines. The state is particularly interested in fugitive dust emissions as a health problem, not a reclamation problem. Please conduct a survey of IMCC members requesting information on enforcement of fugitive dust regulations in those states.
238 TOPIC: PERMIT AND ACREAGE FEES--UPDATES REPORTS 17 & 147
INQUIRY: Please survey the IMCC member states for the following information on coal mining permits: current fee requirements for permit applications, per acre charges, and permit renewal and revision fees. Describe the charges where appropriate, e.g. indicate if the acreage fee is per "bonded acre".
239 TOPIC: HISTORIC AND ARCHAEOLOGIC RESOURCES
INQUIRY: Please survey IMCC member states as to what provisions the states have made to carry out the requirements of OSM regulations 780.31(a) and (b) relative to historic and archaeological resource protection.
240 TOPIC: PROTECTION OF MINERAL RESOURCES: LOCAL ZONING ORDINANCES
INQUIRY: Virginia is contemplating promulgating rules which would require localities to consider the economic viability and possible future mining of mineral resources when passing local zoning ordinances. Please conduct a survey of IMCC member states requesting information on each state's mineral resource protection provisions.
241 TOPIC: REPLACEMENT OF WATER SUPPLY--PAYMENT OF ONGOING COSTS
INQUIRY: An operator replaced the water supply of a landowner, which was cut off during mining, by hooking up with the public water system, installing a pump and filling the landowner's pond. The landowner is now incurring monthly water and electric bills (to run the pump) of $200. Please locate any information that discusses who is responsible for paying these types of ongoing water replacement costs.
242 TOPIC: TEN DAY NOTICES--DEFINITION OF "ABUSE AND DISCRETION"
INQUIRY: 30 CFR 842.11(b)(1)(ii)(B)(2) states that "an action or response by a State regulatory authority that is not arbitrary, capricious, or an abuse of discretion under the state program shall be considered "appropriate action" to cause a violation to be corrected or "good cause" for failure to do so." Please locate federal decisions that define "abuse of discretion" in the context of administrative proceedings or agency interpretations of (state) regulations.
243 TOPIC: LIABILITY INSURANCE COVERAGE
INQUIRY: An operator's permit has been revoked and the bond is in process of being revoked (the regulatory authority is negotiating with the surety to determine if they will pay or reclaim). The owner of the property wants to know who is liable if there is an accident on the formerly permitted area. Please locate any material that discusses liability insurance coverage between the time a permit is revoked and the bond is forfeited, and reclamation is performed by the surety or the state (this assumes that the company performing the reclamation obtains proper insurance coverage).
244 TOPIC: REGULATION OF SAND AND GRAVEL MINING
INQUIRY: Maine's Department of Environmental Protection (MDEP) requested IMCC member states complete a questionnaire on regulation of the mining of sand and gravel. MDEP is reviewing its regulatory structure prior to anticipated legislative review.
245 TOPIC: REGULATION OF ASH DISPOSAL
INQUIRY: Do IMCC member states' surface mining programs contain authority for regulating the disposal of fly ash, bottom ash, etc.? What enforcement problems have arisen? Please conduct a survey of IMCC member states.
246 TOPIC: PRIME FARMLAND CONVERSION
INQUIRY: The Illinois Department of Transportation (IDOT) intends to route a state road through prime farmland owned by a coal company. The prime farmland has been mined and revegetation has been established; however, productivity requirements have not yet been met. IDOT intends to purchase the land from the coal company rather than use its eminent domain powers. Does the state's purchase of the prime farmland and subsequent conversion of the land to some use other than farmland relieve the coal company from the prohibition against decreasing aggregate prime farmland acreage? Or, is the coal company obligated to make up for the "converted" farmland by constructing it elsewhere on the permit area? Has any IMCC member state dealt with this or similar issues?
247 TOPIC: COAL SEVERANCE TAX--INCLUDES REPORT 59
INQUIRY: Please locate states with coal severance taxes.
248 TOPIC: INTERPRETATION OF "FIRST NORMAL PERIOD FOR FAVORABLE PLANTING"
INQUIRY: Alabama has a case in which the primary issue is the proper interpretation of the state counterpart to 30 CFR 816.113 regarding the timing of revegetation on reclaimed lands. Please locate any cases interpreting the term "first normal period for favorable planting" referenced in this regulation.
249 TOPIC: INITIATION OF OPERATIONS
INQUIRY: SMCRA Sec 506(c) and 30 CFR 773.19(e) require the permittee to commence operations within three years of the issuance of the permit, with extensions allowed under certain circumstances. Is there any information in the preambles to the federal regulations or in the legislative history of SMCRA that discusses why three years was selected as the running time for the permit?
250 TOPIC: VER: RIGHTS-OF-WAY OR EASEMENTS FOR RAILROADS--UPDATES REPORTS 149
INQUIRY: An operator claims VER for an existing right-of-way, which, on August 3, 1977, was for a railroad. After 1977, the tracks were removed and power poles erected on the raised bed. An access road, used to maintain the poles, was built on the raised bed. Does the access road qualify for VER?
251 TOPIC: BOND FORFEITURE: INSUFFICIENT FUNDS FOR RECLAMATION
INQUIRY: What information is available on the regulatory authority's ability to seek additional remedies after an operator's bond has been forfeited and the permit revoked in situations where the amount of the bond was insufficient to cover the cost of the completed reclamation? [30 CFR 800.50(d)(1)]
252 TOPIC: NOTICES OF VIOLATION (NOVs)
INQUIRY: Please locate any available material on the following aspects of NOVs: (1) Can an NOV be written for a violation that occurred in the past, was corrected prior to writing of the NOV, leaving no remedial action to be taken? Fact situation: A permittee sent in surface water monitor reports late but before an NOV was written. Can this situation still be considered a violation under the "could reasonably be expected to cause environmental harm" theory? Can remedial steps be nothing? (2) Do you have to prove environmental harm or wrongful intent to establish a violation? Fact situation: Permittee failed to post accurate or adequate information on signs.
253 TOPIC: GRAZING VIOLATIONS--INCLUDES REPORTS 183, 172 & 141
INQUIRY: An operator was cited for allowing livestock to graze on pastureland in violation of the reclamation plan. Please locate Interior OHA decisions with this or similar fact situations or those discussing strict liability.
254 TOPIC: STATE PROGRAM AMENDMENTS ON CONTEMPORANEOUS RECLAMATION AND TIME AND DISTANCE REQUIREMENTS FOR BACKFILLING AND GRADING
INQUIRY: Beside Colorado, Utah and Wyoming, are there any states that have submitted to OSM, and then later withdrawn, program amendments on contemporaneous reclamation or time and distance requirements for backfilling and grading?
255 TOPIC: DEFINITION OF "ADVERSELY AFFECT ANY PUBLICLY OWNED PARK"
INQUIRY: 30 CFR 761.11 [Areas where mining is prohibited or limited] (c) states that subject to VER, no surface coal mining operations shall be conducted "On any lands where mining will adversely affect any publicly owned park...unless jointly approved by the regulatory authority and the Federal, State, or local agency with jurisdiction over the park or place." 761.11(f) states that no surface coal mining operations shall be conducted "within 300 feet measured horizontally of any...public park". Please locate materials that define and compare the use of the underlined terms or the term "adversely affect".
256 TOPIC: APPLICATION OF COAL MINE WASTE REGULATIONS IN BACKFILL OPERATIONS
INQUIRY: Different interpretations have been made with regard the applicability of 816/817.81 and 816/817.83 to coal mine waste used in certain backfill operations as opposed to disposal in a refuse pile (Section 816/817.83). Is there consistency among the IMCC member states in interpretation and application of the regulations? Has the issue been administratively or judiciously resolved in any member state?
257 TOPIC: BOND RELEASE: PRESENCE OF AMD SEEP
INQUIRY: In the course of bond release proceedings, evidence of an acid mine drainage (AMD) seep was discovered. If the operator undertakes treatment for the seep can the bond still be released? Is it acceptable to create a wetland to treat the AMD?
258 TOPIC: CITIZEN SUIT PROVISIONS: STANDING TO SUE
INQUIRY: Does a coal company have standing to sue a state regulatory authority (RA) under the citizen suit provisions of SMCRA? A coal company is claiming injury, having to keep its mine open, because the RA is not releasing the coal company's bond. Please locate relevant materials.
259 TOPIC: STATE NATURAL RESOURCE COMMISSIONS AS MULTIPLE INTEREST BOARDS; DEFINITION OF EMPLOYEE
INQUIRY: Are the members of state natural resource commissions considered "employees" who are subject to state conflict of interest regulations, or are they considered members of "multiple interest boards" who are exempt from the conflict of interest regulations? Are the responsibilities of the state commissions limited to underground and surface coal mining issues only, or do the duties and powers encompass a broader range of issues?
260 TOPIC: DISPOSAL OF EXCESS SPOIL: DRAINAGE CONTROLS FOR DURABLE ROCK AND VALLEY FILLS
INQUIRY: Please locate State regulations equivalent to 30 CFR 816/817.72(a)(2) and 816/817.73(f).
261 TOPIC: SIGNATURES ON THE 300 FOOT WAIVER
INQUIRY: Must the waiver allowing a permittee to mine closer than 300 feet to an occupied dwelling be signed by both parties if the property is jointly owned, or is one signature sufficient?
262 TOPIC: NON-COMMERCIAL USE OF "OTHER MINERALS"
INQUIRY: A landfill operator occasionally runs into patches of coal while excavating shale and clay ("other minerals"). These other minerals are used by the landfill operator rather than sold for commercial use. Does the 16 2/3 exemption apply to this situation? Related topics: definition of mineral; commercial development; government financed construction and landfill.
263 TOPIC: BOND RELEASE/BOND FORFEITURE
INQUIRY: A portion of a permitted area was ripe for bond release; however, the permittee never requested release of the bond. As a result of later problems on that permitted area, the permittee was sent a notice of bond forfeiture. Can the permittee get back some of the bond for the portion of the permitted area that was ripe for release or is the entire bond forfeited?
264 TOPIC: MINING WITHIN 300 FEET OF A PUBLIC BUILDING
INQUIRY: Does the prohibition against mining within 300 feet of a public building refer to the building itself or the property line? Please locate any materials that discuss this issue.
265 TOPIC: 733 PROCEDURES
INQUIRY: What are the procedures for discovery, subpoenas, deposition taking and the appeal process when a state is the recipient of a 733 action?
266 TOPIC: ATTORNEYS' FEES--UPDATE TO REPORTS 120, 163, 180 AND 220
INQUIRY: Please locate any administrative or judicial review cases where the operator or the state regulatory authority sought costs and attorneys' fees under Section 525(e) of SMCRA or the state counterpart, after prevailing at an administrative or judicial proceeding brought under SMCRA or the state counterpart.
267 TOPIC: ALTERNATIVE TO TOPSOIL
INQUIRY: In the legislative history of SMCRA, please locate congressional reports that discuss the substitution of alternate materials for topsoil. I am particularly interested in discussions of the issue: "equal to or more suitable for sustaining vegetation than existing topsoil" which appears in 30 CFR 816.22(b) [See also SMCRA Sec. 515(b)(5) and (6)].
268 TOPIC: IMPROVIDENTLY ISSUED PERMIT
INQUIRY: Indiana is promulgating regulations that mirror the federal regulations on improvidently issued permits. Industry is claiming that the state does not have the authority to revoke permits through recision, only after showing cause. Are there any cases addressing this issue?
269 TOPIC: SURETY AS "PERMITTEE" OR "OPERATOR"
INQUIRY: After an operator's permit was revoked, a surety decided to perform the required reclamation. The surety was subsequently issued an NOV. The surety claimed that an NOV or CO cannot be issued to them because they are not an "operator" or "permittee". Are there any cases addressing this issue?
270 TOPIC: DEFINITION OF "A LOADED HOLE"
INQUIRY: Are there any federal decisions defining what constitutes "a loaded or charged hole"? Wyoming regulations require loaded holes to be guarded or the area sealed. Wyoming does not consider a hole loaded until the initiating device is placed in the hold along with the ammonium nitrate fuel-oil mixture (ANFU).
271 TOPIC: REVEGETATION PRODUCTIVITY MEASUREMENTS--UPDATE TO REPORT 187
INQUIRY: This report updates State Comparison Report 187 with the addition of two IBLA decisions and additional Federal Register notices providing some description of measurement methodologies contained in recent state program amendment submittal and OSM's comments on those submittal.
272 TOPIC: ALLUVIAL VALLEY FLOORS (AVF): DEFINITION OF "NOT SIGNIFICANT TO FARMING" OR "NEGLIGIBLE IMPACT ON FARM'S AGRICULTURAL PRODUCTION"
INQUIRY: Has OSM defined the above terms that appear in SMCRA sec. 510(b)(5)(A)? Has OSM defined the size of "small acreage" or applied a percentage to either of the above terms? Has OSM made any AVF determinations? If so, based on what criteria? Wyoming's guidelines define significant as anything over 10% and anything less than 5% as negligible. Please locate any relevant information that discusses these questions. [30 CFR Sections 701.5 and 785.19, and Part 822]
273 TOPIC: TEMPORARY CESSATION OF OPERATIONS
INQUIRY: What time frame constitutes a "temporary" cessation? An operator "temporarily" ceased mining part of his permitted area, claiming that he was awaiting technology that would allow him to mine the wet area and meet the reclamation requirements. Is there any material that discusses when a temporary cessation becomes a permanent cessation, requiring proper reclamation?
274 TOPIC: PERMITTING OF THE "SHADOW AREA"
INQUIRY: Does OSM or the state have the authority to permit the area overlying underground coal mine workings (the "shadow area")? Is this area included in the definition of "surface effects" of underground mines? Please locate relevant material that discusses this issue.
275 TOPIC: REVOCATION OF PERMIT AS A RESULT OF ADMINISTRATIVE ERRORS
INQUIRY: The Bureau issued a permit based on a USGS map that contained a mistake. When a corrected map was submitted, it became evident that a permit should not have been issued. Is there any material that discusses the revocation of a permit when there was no fraud, pattern of violations or ownership/control problems?
276 TOPIC: DEFINITION OF "CURRENT, PRUDENT ENGINEERING PRACTICES"
INQUIRY: According to the performance standards for roads found in 30 CFR Sec. 817.150(b)(1), controlling or preventing erosion, siltation, etc. or otherwise stabilizing exposed surfaces must be accomplished "in accordance with current, prudent engineering practices". Are there any materials that define "prudent engineering practices"?
277 TOPIC: DEFINITION OF "IN SITU PROCESSES"
INQUIRY: Please locate any state or federal administrative or judicial opinions of legislative histories dealing with the meaning of "in situ processes" as defined in 30 CFR 701.5, and particularly, what is meant by "in situ gasification"? We are looking for information on the extraction of methane gas from underground coal seams. We will also be looking at who owns the mineral estate: Does the owner of "all minerals" also own the gas?
278 TOPIC: AVAILABILITY OF PERMIT, INSPECTION AND ENFORCEMENT RECORDS
INQUIRY: According to 30 CFR 840.14 and 842.16, copies of permit applications, inspection and enforcement records, etc. "shall be made immediately available to the public in the area of mining...." Compliance with the availability requirement can be accomplished by making copies "available for public inspection at a Federal, State, or local government office in the county where the mining is occurring..." or by having the regulatory authority mail copies of information promptly (provided a description of the information available and mailing procedures are posted in the county where the mining is occurring). Please locate any material that indicates what information is to be included as part of "a description of the information available". How do the other states implement this requirement?
279 TOPIC: OPERATOR/PERMITTEE LIABILITY FOR FEES; O&C/AVS
INQUIRY: The Pa RA made a decision not to issue a permit based on an O&C link found on AVS. The perspective permittee disagrees with this decision stating that the RA cannot make permitting decisions based solely on AVS. The O&C link found on AVS related to the failure of a party, a contract mining operator on another job, to pay proper fees. Does the definition of "operator" include contract mining operators as well as permittees in terms of AVS linkage and liability for fees?
280 TOPIC: RESCISSION PROCEDURES FOR IMPROVIDENTLY ISSUED PERMITS
INQUIRY: Which states have regulations in their programs that correspond to 30 CFR 773.21 Improvidently issued permits; rescission procedures.
281 TOPIC: ELIGIBILITY FOR ATTORNEY'S FEES
INQUIRY: Please locate any cases on the following three issues regarding eligibility for attorney's fees:
1. Can the agreement between an attorney and the client which provides for pro bono services constitute a waiver of the client's rights to petition for fees? Can cases other than civil rights cases be identified?
2. Does a settlement agreement which is silent on costs constitute a waiver of the client's right to petition for costs?
3. The state appellate court approved the client's petition for attorney's fees for the administrative and judicial proceedings and remanded the case to the administrative agency for a determination of the fees for both the administrative and judicial proceedings. Does the agency have the authority to determine fees incurred in the judicial arena?
282 TOPIC: DEFINITION OF "DAMAGE" IN PHRASE: "PROTECT OFFSITE AREAS FROM SLIDES AND DAMAGE"
INQUIRY: Indiana wrote an NOV for drainage control causing damage off the permitted site, citing the Indiana equivalent of SMCRA 515(a)(21) [I.C. 13-4.1-8-1(21)] which contains the phrase indicated above. Are there any materials covering the definition of "damage" as used in this code section?
283 TOPIC: TRANSFERABILITY OF VALID EXISTING RIGHTS (VER)
INQUIRY: An operator of a tipple (with VER) wanted to transfer the permit; however, he did not get all of the papers in before the permit expired. Is the VER transferable to the new operator, particularly in this situation where there was a break in the permit? Please locate any relevant information on these issues.
284 TOPIC: CHANGES IN APPROVED DRAINAGE DESIGN
INQUIRY: An operator wants to use a drainage system different from the system indicated in the approved plan. Is a modification to the original plans/revision to the permit always required in these circumstances. Please locate any relevant administrative decisions.
285 TOPIC: ROOT MATERIAL IN TOPSOIL
INQUIRY: Indiana section 310 IAC 12-5-12.1 corresponds to the federal regulations 30 CFR 816.22 and provides the rules for removing, storing, etc. topsoil. Please locate administrative cases and other material that discuss what constitutes topsoil, how it is identified and, in particular, the observance of root material.
286 TOPIC: BOND RELEASE ON INTERIM PERMIT SITES; CONTROLLING PERFORMANCE STANDARDS (Includes COALEX Report No. 181)
INQUIRY: Please locate federal, state and administrative decisions discussing bond release on sites permitted under the interim regulatory program. In particular, locate decisions that address which performance standards (with special focus on revegetation requirements) are controlling for operations with state permits which were active during the time the interim program rules were in force.
287 TOPIC: EXEMPTION FOR GOVERNMENT-FINANCED CONSTRUCTION--UPDATES 115, 133 & 262
INQUIRY: A city proposes to use a site which had previously been CO'd (for mining without a permit) as a public park and gym. The original operator will be the contractor. Is this site eligible for the government-financed construction exemption? Please locate federal, state and administrative decisions on operations exempted from SMCRA by meeting the government-financed construction criteria.
288 TOPIC: RIGHT OF ENTRY ON NAVIGABLE WATERWAY
INQUIRY: An operator plans to mine through a stream. The operator has leases with all of the property owners on both sides of the stream. Does the state own the stream bottom? If it does, must the operator pay royalties to the state? Does the operator have the right to "enter" the stream bed? Is this a property dispute which cannot be adjudicated under SMCRA? Please locate any relevant material.
289 TOPIC: MINE RISK ASSESSMENT TO DETERMINE MINE INSPECTION FREQUENCY
INQUIRY: Virginia Department of Mines, Minerals and Energy is beginning the process of implementing a new mine safety law that was passed this year. The law calls for DMME to develop a mine risk assessment tool that will be used to determine the amount of risk present at a mine. Mines that are rated as having a higher degree of risk will be inspected more frequently than mines determined to have a lower degree of risk. DMME would like to build on knowledge gained from other states that may have already undertaken a study of this area. Please survey IMCC member states using the attached questionnaire and locate any relevant literature on this issue.
290 TOPIC: DEFINITION OF "HIGHER AND BETTER USE"
INQUIRY: A mine operator, who is also the landowner, desires to change a sites' post-mining land use from cropland to pastureland, claiming it is a "higher and better use" of the land. Is there any material defines "higher and better use" or provides a hierarchy of uses?
291 TOPIC: SURFACE AND GROUND WATER MONITORING
INQUIRY: If Indiana Department of Natural Resources (DNR) exempted a coal company from ground water monitoring (e.g., due to a finding of no significant aquifers) at the time of the original permit application, can DNR later require the coal company to monitor ground water (e.g., at mid-term review, permit renewal or permit revision)? DNR's position is that it can require such monitoring if there had been a change of circumstances on or off the permitted area and such monitoring is necessary to assess the current and future impact of the mining operation on the hydrologic balance. Please locate any relevant materials regarding this issue.
292 TOPIC: HIGHWALL ELIMINATION & AOC: "BLENDING IN"
INQUIRY: Please locate recent decisions and other materials that discuss highwall elimination or restoring disturbed lands to their "approximate original contour". Of particular interest is material on the definition of "approximate" or what constitutes "blending in" with the surrounding terrain.
293 TOPIC: MOVING EQUIPMENT OFF PERMIT AREA--INCLUDES REPORTS 136 & 157
INQUIRY: An operator drove a bulldozer and a loader off the permit area without using the haul road. The area on which the equipment rode was not part of the permitted area. Can the moving of the mining equipment be considered an activity "in connection with" surface coal mining operations and should the permit have been revised to include the land over which the equipment was driven? Does it make a difference that no roadway was constructed?
294 TOPIC: CYANIDATION; CHEMICAL LEACHING
INQUIRY: Can you identify which states have amended or revised their mining statutes in the last year or two to include the regulation of chemical leaching of minerals, e.g., the cyanide heap-leaching process used to produce gold?
295 TOPIC: "BURDEN OF PROOF" REQUIREMENTS AT DIFFERENT ADMINISTRATIVE HEARINGS
INQUIRY: A company requested temporary relief from a cessation order ("CO"). In issuing the final order denying the temporary relief, the administrative law judge made specific findings that the company was conducting surface coal mining operations and that they failed to follow state blasting requirements. The company did not appeal that order. Is the presentation of evidence by the company at the hearing on the CO considered res judicata/collateral estoppel or is there a difference between the burden of proof required at a hearing for a temporary relief versus an administrative hearing on the CO itself? Please locate any relevant decisions.
296 TOPIC: LANDOWNER REFUSING RIGHT OF ENTRY FOR RECLAMATION--INCLUDES REPORTS 141 & 172)
INQUIRY: A landowner will not allow an operator to enter and restore the permitted area. It is believed that the landowner wants to use the fact that the land was left unrestored as an excuse to sue the operator for damages. The operator anticipates having to sue the landowner in order to gain entry and perform reclamation. Are there any cases that state that the landowner has an obligation to allow the operator on the land to meet SMCRA requirements?
297 TOPIC: FEDERAL ADVISORY COMMITTEE ACT
INQUIRY: Please retrieve a copy of the Federal Advisory Committee Act from LEXIS.
298 TOPIC: 775.11(b) HEARING WITHIN 30 DAYS OF PERMIT DENIAL/DECISION WITHIN 30 DAYS OF HEARING
INQUIRY: Any information on what consequences are if hearing is not held within 30 day time frame? Permit applicant claims that permit is automatically approved.
299 TOPIC: MATERIAL DAMAGE TO STRUCTURES AS A RESULT OF SUBSIDENCE
INQUIRY: The rules proposed on September 24, 1993 will provide a definition of "material damage" with regard to subsidence. What is in force now regarding material damage to structures as a result of subsidence? Please locate any material that defines or indicates what constitutes such "material damage".
300 TOPIC: DENIAL OF ADMINISTRATIVE EXPENSES
INQUIRY: A mining operator with a valid permit filed for bankruptcy under chapter 11. The operator stopped removing coal and has received a number of NOVs. If the operator was still actively mining, the civil penalties would get priority as administrative expenses. [See In re N.P. Mining Co., Inc. and In re Bill's Coal Co., Inc., attachments to the state's brief.] Are there any decisions which find that civil penalties get priority if the operator is not actively mining under a valid permit?
301 TOPIC: LEGISLATIVE HISTORY OF 1989-90 AML LEGISLATION
INQUIRY: Please locate legislative history material on the 1989 AML bills and the 1990 AML act which discusses the justification for reclamation fees.
302 TOPIC: SURFACE EFFECTS OF UNDERGROUND NON-COAL MINE
INQUIRY: Please conduct a survey to identify those states which regulate the surface effects of underground non-coal mines operations, i.e., subsidence and hydrologic balance. New York State is particularly interested in this information in light of the flooding that occurred in Akzo Nobel's salt mine and the resulting subsidence and cave-ins.
303 TOPIC: RETIREMENT OF PARTNER FROM CONTINUING PARTNERSHIP; COAL REMOVAL INCIDENT TO PRIVATE DEVELOPMENT--INCLUDES REPORT 173
INQUIRY: Coal was found in an area under construction for private commercial development. An individual who was part of the partnership conducting the commercial development pulled out of the partnership before the coal "entered interstate commerce". Is this individual one of the "responsible parties" for mining without a permit?
304 TOPIC: FEDERAL INSPECTIONS-DEFINITION OF "ARBITRARY, CAPRICIOUS OR AN ABUSE OF DISCRETION" UNDER 30 CFR 842.11(b)(1)(ii)(B)(2).
INQUIRY: Please locate any material that defines or discusses the standards OSM uses when reviewing state actions. In particular, is there any description of the standards used by OSM to determine when a state regulatory authority's action regarding a possible violation is "arbitrary, capricious or an abuse of discretion"?
305 TOPIC: "SUBSTANTIAL ECONOMIC LOSS" OR "CONDITIONS BEYOND THE CONTROL OF THE PERMITTEE" AS REASONS FOR EXTENDING THE INITIATION OF OPERATIONS--INCLUDES REPORTS 172, 183, 249 & 273
INQUIRY: An permitted operator built an access road and dug monitor wells but did not begin mining coal because of poor market conditions. The operator wants to transfer the permit to another company; the second company wishes to renew the permit. Are "poor market conditions" considered a "condition beyond the control of the permittee" for extending the three year initiation of operations period? [SMCRA Sec. 506(c) and 30 CFR 773.19(e)]
Should the original permittee have notified the regulatory authority that it was temporarily ceasing operations? An objector to the permit renewal complained that the renewal will interfere with adjacent use; is there any information on SMCRA Sec. 506(d)(1)(C)?
306 TOPIC: PROCEDURES FOR FORFEITURE OF SURETY BONDS
INQUIRY: Pennsylvania recently amended its SMCRA to require bond sureties to pay the amount of a forfeited bond within 30 days of receiving notice of the forfeiture. One challenger to this amendment argued that the requirement of payment prior to a hearing is a deprivation of due process, prohibited by the 14th Amendment. This case was settled, but additional challenges are anticipated. Do any other states require the payment of forfeited surety bonds prior to a hearing on the merits of the forfeiture? If yes, have there been any challenges to the legislation and what was the outcome? What information on the federal regulations is available?
307 TOPIC: DEFINITION OF "OCCUPIED DWELLING"; ADJUDICATION OF PROPERTY RIGHTS--INCLUDES REPORTS 72 & 288
INQUIRY: Is a 30-foot trailer on wheels which is used occasionally and is not hooked up to any utilities considered an "occupied dwelling"? What is the state regulatory authority's responsibility when the operator owns the land on which the trailer sits but the ownership of the trailer itself is in dispute?
308 TOPICS: "In connection with"--CONTINUTATION OF REPORT 293
INQUIRY: Please locate any additional information that discusses some aspect of the phrase "in connection with".
309 TOPIC: IMPOSITION OF INDIVIDUAL CIVIL PENALTIES FOR CORPORATE VIOLATIONS--UPDATE OF REPORT 131
INQUIRY: We are requesting a search for authority issued under 30 U.S.C. Sec. 1268(d), (e), & (f) and/or 30 C.F.R. Sec. 846 et seq., regarding civil penalties assessed against individual corporate officers for corporate permittee violations.
310 TOPIC: POSTMINING LAND USE CHANGE - SURFACE MINING
INQUIRY: Must all postmining land use changes be considered "significant alterations" which require the fullblown permit review process? Can a postmining land use change for a surface mining operation which involves under 5% of the permitted area be considered a minor change? OSM's interpretive rule of October 1, 1980 (45 FR 64908) applies to underground mines. Is there any material that discusses this issue with regard to surface mines?
311 TOPIC: WATER RIGHTS AND REPLACEMENT UPDATE
INQUIRY: Please provide the most recent cases and other materials available on water rights and replacement issues. Broaden the research to include case law addressed to the issue of the burden of proof as it relates to water replacement and as it relates to the scope of review where the issue involves a revision to an existing permit to mine additional coal.
312 TOPIC: IS A BANKRUPTCY TRUSTEE CONSIDERED AN "OWNER OR OPERATOR"?
INQUIRY: In West Virginia, several surface mining permittees are in bankruptcy and operating under a court-appointed trustee. Is the bankruptcy trustee an "owner or operator"? Can owners, officers and directors rebut their presumed control if their company is operating in bankruptcy with a court-appointed trustee? Does it matter if the bankruptcy trustee is operating pursuant to Chapter 7 or Chapter 11?
313 TOPIC: LEGISLATIVE HISTORY OF SURFACE MINING REGULATION
INQUIRY: When was the first bill to regulate surface mining introduced in Congress? Did the states adopt surface mining regulations prior to SMCRA - if so, when?
314 TOPIC: REGULATION OF NON-COAL ON FEDERAL LANDS
INQUIRY: North Carolina currently exempts non-coal mining operations located on U.S. Department of Agriculture Forest Service lands from complying with state reclamation laws. Do other IMCC-member states allow the same exemption?
315 TOPIC: SOAP - 507(c)
INQUIRY: Please supply a copy of the final rules for 30 CFR Part 795 - Small Operator Assistance Program (SOAP) which implement the latest amendments passed by Congress. Of particular interest is information on the services covered by the program.
316 TOPIC: COAL REFUSE DISPOSAL IN VALLEYS WITH STREAMS
INQUIRY: A recent Pennsylvania statute allows the disposal of coal refuse waste in valleys with streams under certain conditions. Do other states allow this? If so, how do they relate this disposal to the requirements of the Clean Water Act?
317 TOPIC: STATE REGULATIONS WHICH ARE INCONSISTENT WITH FEDERAL SMCRA
INQUIRY: A citizens' suit alleges that the Director of an OSM-approved state program is in violation of federal SMCRA - the citizens group claims that the state regulation is inconsistent with the federal regulation. Wyoming claims that the Director can only be held in violation of state law and that the section in question was approved by OSM as part of its regulatory program. Please identify cases, preambles, etc. that address these issues.
318 TOPIC: GOV'T IMMUNITY: STATE'S LIABILITY WHEN CLEANING UP WASTE AT AML SITES
INQUIRY: Please locate any cases that discuss whether a state can be held liable for violations of SMCRA while cleaning up refuse and waste found at abandoned mine sites. Does EPA have any agreements or understandings with the AML state regulators regarding such cleanup?
319 TOPIC: MONITORING GROUND VIBRATION LIMITS
INQUIRY: The Indiana equivalent to 30 CFR 816.67(d) lists three methods for proving compliance with maximum ground vibration limits established in the blasting plan: maximum peak-particle velocity limits, scaled-distance equation, and blasting-level chart. Is there any information on following questions:
Who determines which of the three methods is employed at a particular mine site, the operator or the regulatory authority?\
Are these methods listed in order of priority, if not, what factors go into determining which method is best for a site?
Do other states' regulations follow the federal rules? Do other states' regulations dictate or prioritize the methods to be used by the operator?
320 TOPIC: REGULATION OF SITES WITH OIL OR GAS OPERATIONS AND COAL MINING OPERATIONS
INQUIRY: Please locate material that discusses the application of SMCRA regulations, requirements and standards to sites where oil or gas operations exist. If the mining and oil/gas operations are regulated by different state agencies, which requirements and standards apply?
321 TOPIC: TRANSFER, ASSIGNMENT OR SALE OF PERMIT RIGHTS--INCLUDES REPORTS 231 AND 169
INQUIRY: Is there any material that describes what percentage of stock or shares must be sold to qualify for a "transfer, assignment or sale" requiring compliance with change in ownership rules? What about a two-person partnership where one partner sells out?
322 TOPIC: SETTLEMENT OF CIVIL PENALTIES
INQUIRY: Can a civil penalties case be settled by having the violator perform reclamation or other remedial work or must a monetary penalty be paid? Please locate any material that addresses this issue.
323 TOPIC: DEFINITION OF: "ALL ANTICIPATED MINING IN CUMULATIVE IMPACT AREA"--INCLUDES REPORT 152
INQUIRY: Under the cumulative hydrologic impact assessment (CHIA) regulations, please locate material that discusses the meaning of "all anticipated mining".
324 TOPIC: SURFACE MINING PERMIT AS "PROPERTY OF THE ESTATE" OF BANKRUPT OPERATOR
INQUIRY: The regulatory authority wants to revoke the surface mining permit of a bankrupt operator because of outstanding violations. The operator claims the permit cannot be revoked because it is part of the "property of the estate". Please locate relevant case law.
325 TOPIC: DEFINITION OF "STRUCTURE" ON ABANDONED MINE SITES
INQUIRY: Please locate any materials that define what constitutes a "structure" on abandoned mine lands or describes the state's rights and duties regarding "structures" remaining on abandoned sites the state is reclaiming. What are the ramifications for reclamation if the "structures" were used as collateral on a loan to lease the property?
326 TOPIC: PREPAYMENT OF CIVIL PENALTIES--UPDATE OF REPORT 123
INQUIRY: Please locate cases that rule on the need to prepay civil penalties when petitioning for a review of the proposed penalties. Attorneys for the cited permittee are claiming that requiring the money before a hearing is unconstitutional and violates due process.
327 TOPIC: OWNERSHIP & CONTROL: DEFINITION OF "CONTROLLED"--UPDATE OF REPORT 231
INQUIRY: An operator permitted to conduct coal mining operations received money for its operations from another company. What liability does the company providing the financial backing have for violations? Does the company providing the financial backing "control" the operator according to the O&C/AVS regulations? Please provide and additional information not already described in Report 231.
328 TOPIC: ATTORNEYS' FEES
INQUIRY: Please locate SMCRA-related cases from August, 1994 through July, 1995 that rule on the award of attorneys' fees.
329 TOPIC: 16 2/3 EXEMPTION--UPDATE OF REPORTS 134 AND 191
INQUIRY: Update of COALEX Reports 134 & 191 with more recent decisions on the exemption from SMCRA where the extraction of coal constitutes less than 16 2/3 percent of the tonnage of minerals removed for the purposes of commercial sale.
330 TOPIC: GUIDELINES ON "BEST MANAGEMENT PRACTICES" FOR MINING
INQUIRY: Do any of the IMCC member states have guidelines on "best management practices" for mining or mineral extraction for either coal or non-coal mining?
331 TOPIC: ACID MINE DRAINAGE/HYDROLOGIC BALANCE--UPDATE OF REPORT 192
INQUIRY: Update of COALEX Report 192.
332 TOPIC: VER--UPDATE RE "VALID EXISTING RIGHTS"
INQUIRY: Update of COALEX Reports on "valid existing rights".
333 TOPIC: TAKINGS--UPDATE RE "TAKINGS"
INQUIRY: Update of COALEX Reports, providing recent cases on a variety of "takings" related topics.
334 TOPIC: PUBLIC NOTICE REQUIREMENTS FOR PERMIT MODIFICATION
INQUIRY: A permit issued in 1996 was contested by two citizens. The case is still under administrative appeal. In early 1997, the permittee requested a modification of the permit to change the water monitoring plan. This revision to the permit was considered minor or insignificant and, according to state regulations, did not require advertising or public participation. These same citizens contested the permit modification on the grounds that there was no public notification of the modification. Do other states require public notification for permit modifications? Can permit modifications be appealed?
335 TOPIC: PREBLAST SURVEY
INQUIRY: The question has been raised in Indiana as to what types of structures require preblast surveys. A gas development company has requested a preblast survey on an inactive gas well located on a mineral lease adjacent to an active permitted mine site. Indiana requested states be surveyed regarding interpretations by other state programs on the following questions: 1) Does your agency require preblast surveys on oil or gas well heads? If yes, what specifically is required to be part of the survey? Are preblast surveys limited to the visible surface features? 2) Does your agenccy require preblast survey notification to parties who have only a lease hold interest? For the preblast survey requirement to apply, does it make a difference whether the leaseholder "owns" the structure? 3) The federal preamble does not appear to limit the types of structures that are eligible for a preblast survey. Does your agency have a mechanism for defining which class of structures require notification and a survey? For example, are such things as fence posts, culverts, portable bins or livestock feeding facilities excluded from the definition of "structures"? If so, how is this interpretation supported -- by statute, regulation, policy, technical determination, or some other way?
336 TOPIC: MODIFICATIONS OF A TERMINATED NOV
INQUIRY: What restrictions at law have been found to apply to an agency's power to terminate, modify or vacate a terminated NOV? May an agency unilaterally modify an NOV which has been terminated or vacated without having to go through a formal or informal hearing? Please locate any relevant materials.
337 TOPIC: APLICABILITY OF STATE ADMINISTRATIVE PROCEDURE ACT PROVISIONS TO SMCRA; DECISIONS RE: REPLACEMENT OF WATER SUPPLY
INQUIRY: In primacy states, have state administrative procedure act (APA) provisions for mandatory informal fact finding in agency adjudications been held to apply to state versions of SMCRA? Also, please locate administrative and court decisions addressing the meaning of "replacement of water supply" that have been handed down since March 31, 1995.
338 TOPIC: DEFINITION AND DISPOSAL OF COAL PROCESSING WASTE
INQUIRY: The state regulatory authority cited an operator for improperly disposing of coal refuse off the permitted area. The operator claims that the material he sold as fill was coal which was not marketable as an energy source. We have located a particularly relevant Kentucky case, "Natural Resources and Environmental Protection Cabinet v. Kentucky Harlan Coal Co., Inc. 870 SW 2d 421 (Ky Ct App 1993)". Please assist us in locating other relevant materials.
339 TOPIC: LEGISLATIVE HISTORY OF SMCRA SECTIONS 506, 507 & 510
INQUIRY: Please locate legislative history materials for SMCRA sections 506 (permits), 507 (application requirements) and 510 (permit approval or denial); state counterparts to SMCRA 510(c); and a copy of the federal regulation history.
340 TOPIC: 10-YEAR 24-HOUR PRECIPITATION EVENTS
INQUIRY: Both state and federal SMCRA regulations require sedimentation ponds be designed to treat or contain a 10-year 24-hour event. Has there been any policy developed, either by OSM or a state regulatory authority concerning intense, short rainfall events, such as having 25% of the 10-year 24-hour event fall in 30 minutes?
341 TOPIC: APPROXIMATE ORIGINAL CONTOUR (AOC)
INQUIRY: Please survey the other IMCC member states and conduct research on the following issues: 1) What are the other states' definitions of AOC? 2) Do the other states have standards for determining AOC, e.g. criteria for establishing when an area "closely resembles the general surface configuration of the land prior to mining" and when it doesn't? 3) What are other states' requirements for variances from AOC and exemptions for mountaintop removal?
342 TOPIC: 522(a)(6) - "SUBSTANTIAL LEGAL AND FINANCIAL COMMITMENT"
INQUIRY: Certain lands in Ohio were exempted from being designated as "unsuitable for surface mining" due to "substantial legal and financial commitment" (SLFC) which was in existence prior to January 4, 1977. The exempted lands were sold. Does the exemption transfer to the new owners? How do valid existing rights (VER) relate to SLFC - which has priority? Please locate any relevant materials.
343 TOPIC: PERMITTING OF NONCOAL SURFACE MINING OPERATIONS
INQUIRY: Alabama has been asked to consider a multi-year permit for noncoal surface mining. We are interested in determining how other state regulatory programs regulate noncoal surface mining, particularly regarding the length of the permits, renewal of permits, and amendments to permits to increase reclamation bond coverage.
344 TOPIC: TRANSFERABILITY OF VER FOR HAUL ROADS
INQUIRY: Please locate any relevant materials that discuss transferability of valid existing rights (VER) for haul roads.
345 TOPIC: USE OF TAGGANTS IN EXPLOSIVES
INQUIRY: Please conduct a survey of the IMCC member states to determine if any of the states have studied the use of taggants (additives used to tag explosives and trace their origin), when the study was conducted, and who performed the study.
346 TOPIC: DAMAGE TO STRUCTURES AND REPLACEMENT OF WATER SUPPLIES
INQUIRY: This report consists of a variety of materials relating to SMCRA section 720 which provides for repair or compensation for subsidence-related damage to structures and the replacement of water supplies affected by subsidence.
347 TOPIC: STATE SMCRA PROGRAM AMENDMENTS RELATING TO EPA REGULATIONS
INQUIRY: Must states send program amendments relating to the regulation of effluent limitations and other such areas under EPA's purview to OSM or can they be sent directly to EPA for approval? Can Pennsylvania delete these regulations from their SMCRA programs?
348 TOPIC: WHAT CONTSTITUTES "RECEIPT" OF A RECORD FOR A FOIA REQUEST?
INQUIRY: A permittee asked the Wyoming regulatory authority (RA) to informally review its application for a permit amendment with its accompanying studies, maps, and other records. The permittee did not intend to file the application formally unless its bid on a BLM coal lease on an adjacent area was accepted. The permittee requested the RA to consider these records confidential until they were filed formally. The BLM coal lease was awarded to the permitee's competitor who filed a FOIA request with the RA for the permittee's application for permit amendment and accompanying records. The permittee has requested that the records and the unfiled permit amendment be returned to him. Are the permittee's records considered "property" of the state even though the application was not filed formally? Are the application records considered "public records" subject to a FOIA request? Are the records subject to a FOIA exemption [5 USCS sec. 552(b)(4)] because they contain "privileged commercial or financial information" that could provide the competitor with a financial advantage? Does it make a difference that the permittee requested that the records be considered confidential?
349 TOPIC: RIGHT OF ENTRY -- INSPECTOR'S PRESENTATION OF CREDENTIALS
INQUIRY: An inspector conducted an onsite inspection of a permitted operation, took a water sample and wrote an NOV. The inspector had not presented his credentials or identified himself prior to conducting the inspection. Is the NOV still valid? Please locate Interior adminstrative decisions and any other materials that address this issue.
350 TOPIC: RESTORING THE LAND TO ITS PREMINING "CAPABILITY"
INQUIRY: The premining land use of a permitted area was cropland. Current plans call for a wildlife habitat as the alternative postmining land use. Using the land as a wildlife habitat requires replacing fewer inches of topsoil than would be required for cropland. Is establishing a wildlife habitat considered a "higher or better use" of the land in this instance? Is the permittee required to replace all of the topsoil, restoring the land to the use it was "capable of supporting before mining", and then establish the land as a wildlife habitat? [SMCRA 515(b)(2); 30 CFR 816.133] Please locate any relevant information.