COALEX State Inquiry Report - 159
February, 1990 [Updated July, 1991]
Myra Spicker, Esquire
Indiana Division of Reclamation
309 W. Washington Street, Suite 201
Indianapolis, Indiana 46204
TOPIC: REVIEW OF PERMIT APPLICATIONS; SUBSIDENCE [Includes Reports 101, 122, 135 &
151]
INQUIRY: Is there any material which discusses the regulatory authority (RA)'s responsibility in
reviewing permit applications? In particular, how does the RA verify subsidence information?
SEARCH RESULTS: Research consisted of using the COALEX Library and the other materials
available in LEXIS as well as prior COALEX State Inquiry Reports. No materials were identified
which specifically addressed the question of the RA's responsibility to review subsidence
information in the permit application. The materials found address the following major points:
(a) The RA's general responsibility in processing permits;
(b) Responsibility of the applicant to provide sufficient information on the application for a
mining permit;
(c) RA's responsibility to obtain information from other agencies; and
(d) General information on subsidence control and a survey of related state regulations.
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FEDERAL REGISTER NOTICES
1. 47 FR 27694 (JUNE 25, 1982). Proposed rule. Permitting. [Excerpts.]
The additions, revisions and deletions were proposed "to clarify permit requirements and
procedures for the applicant."
Two new definitions were proposed in place of the definition of "complete application":
"administratively complete permit application " and "complete and accurate permit application."
"An administratively complete permit application would contain all information necessary to begin
the processing of a permit application and to provide for public review. This review would not be
cursory, but would be a review to determine if additional material would be needed prior to public
review and technical analysis."
"A 'complete and accurate permit application' would contain all the information needed to issue a
permit. Thus, a review to determine that the application is 'complete and accurate' would require
a detailed examination and evaluation of all data and material in the application to determine
whether all the regulatory requirements are satisfied and that all the program requirements are
met. A 'complete and accurate permit application' would include information resulting from an
informal conference or hearing or other information determined as result of the public
participation process which would become part of the record concerning the permit application."
2. 48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting. [Excerpts.]
These final rules revised the permanent program rules pertaining to: (1) the processing of
permits for surface coal mining operations; (2) the general contents of permit applications; and
(3) the legal, financial, compliance, and related information requirements of applications.
In the final rule, the word "permit" was dropped from the terms being defined; the terms used
are "'administratively complete application' and 'complete and accurate application'....The terms
will then be general enough to apply to permits, revisions, renewals, and transfers, sales, and
assignments of permit rights if specified in the individual rules relating to those subjects."
In addition, OSM accepted the suggestion of one commenter and amended the term "complete
and accurate application" to specify that it includes all information that is necessary "to make a
decision on permit issuance." The change recognizes that "although a permit must be complete
and accurate prior to approval, a complete and accurate application would not necessarily
guarantee issuance of a permit if the regulatory authority makes findings which would be the
basis for the denial of a permit. The final rule also clarifies that the regulatory authority is the
entity to determine when an application is 'administratively complete' and 'complete and
accurate'."
PRIOR COALEX REPORTS
3. COALEX STATE INQUIRY REPORT - 101, "Permit information re. the right to subside"
(December 20, 1988).
This survey indicates which of the eight states queried require specific information concerning
the right to subside property as part of the permit application and which states obtain this
information from the right to mine documentation as part of the "right of entry" section of the
permit application.
4. COALEX STATE INQUIRY REPORT - 122, "Permitting -- (A) Permit application approval process;
(B) Impacts on areas outside the permit boundary" (July 28, 1989).
The main part of this report responds to the question of whether the RA must engage in
independent information gathering or simply review and evaluate the information provided by the
applicant. Included are (a) a sampling of federal and corresponding state regulations which
indicate when other state and federal agencies need to be contacted and when independent
entities may be utilized; and (b) several relevant cases.
5. COALEX STATE INQUIRY REPORT - 135, "Definition of mine stability" (January 8, 1990).
This report includes legislative and regulatory history materials which discuss subsidence
control. No specific discussion of the phrase "maximum mine stability" was identified.
6. COALEX STATE SIGNIFICANT ISSUE REPORT - 151, "Subsidence: An Oversight of Significant
Issues" (September, 1990).
The included in this report are discussions of state subsidence damage and right to mine
regulations.
ADDITIONAL OPINIONS
7.a. NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, 89 IBLA 1, IBLA 83-757, 81-83
(September 27, 1985).
The Board ruled that the coal mining permit applicant is responsible for providing sufficient data
on ground water basins or systems for the RA to make its probable cumulative impact
assessment.
7.b. NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, 94 IBLA 269, IBLA 83-757, 81-83
(November 18, 1986 - amends September 27, 1985 decision).
In ruling on the briefs filed to address the issues of appropriate relief for the failures identified
in the case above, the Board stated:
"Section 510(b) of the Act provides that no permit or revision application shall be approved unless
the application affirmatively demonstrates and the regulatory authority finds in writing that all
necessary requirements of the Act have been met."
8.a. VIRGINIA CITIZENS FOR BETTER RECLAMATION [VCBR], 82 IBLA 37, IBLA 83-702 (July 10,
1984).
The Board upheld OSM's issuance of a cessation order, finding that: "OSM properly takes
enforcement action against the owner of a surface coal mining operation [Moose Coal Co.] who
fails to submit a timely and complete application for permanent program permit and who
continues to operate under an interim permit after 8 months following approval of a state's
permanent program."
8.b. MOOSE COAL CO. v CLARK, 687 F Supp 244 (WD Va 1988).
The district court voided the cessation order concluding that the Board's decision was based on
an incomplete record: VCBR failed to notify Moose Coal of its appeal of the Virginia state hearing
officer's decision. To ensure that Moose Coal complied with the permanent program reclamation
requirements, the company was required to post bond. The bond was to remain in effect until
OSM authorized its release.
9. NATIONAL WILDLIFE FEDERATION v LUJAN, et al. AND NATIONAL COAL ASSOCIATION, et
al., 733 F Supp 419 (D D C February 12, 1990).
The court ruled that OSM's regulation limiting the duty of an underground coal operator to
correct material damage to structures caused by subsidence "to the extent required by state law"
is invalid; the limitation lacked a proper basis in the Act. The rule was remanded to OSM for
revision by striking the reference to state law. In addition, the court found that section 516(b)(1)
requires the protection of structures just as it does the land.
The court upheld the Secretary's deletion of the requirement for a presubsidence survey,
stating that the Secretary provided good reason for the deletion and the rule was in keeping with
the language and intent of the Act.
[Includes a copy of a legal memorandum from Interior's Office of the Solicitor which discusses the
decision.]
ATTACHMENTS
A. 47 FR 27694 (JUNE 25, 1982). Proposed rule. Permitting. [Excerpts.]
B. 48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting. [Excerpts.]
C. COALEX STATE INQUIRY REPORT - 101, "Permit information re. the right to subside"
(December 20, 1988).
D. COALEX STATE INQUIRY REPORT - 122, "Permitting -- (A) Permit application approval
process; (B) Impacts on areas outside the permit boundary" (July 28, 1989).
E. COALEX STATE INQUIRY REPORT - 135, "Definition of mine stability" (January 8, 1990).
F. COALEX STATE SIGNIFICANT ISSUE REPORT - 151, "Subsidence: An Oversight of
Significant Issues" (September, 1990).
G. NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, 89 IBLA 1, IBLA 83-757, 81-83
(September 27, 1985).
H. NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, 94 IBLA 269, IBLA 83-757, 81-83
(November 18, 1986 - amends September 27, 1985 decision).
I. MOOSE COAL CO. v CLARK, 687 F Supp 244 (WD Va 1988).
J. VIRGINIA CITIZENS FOR BETTER RECLAMATION [VCBR], 82 IBLA 37, IBLA 83-702 (July
10, 1984).
K. NATIONAL WILDLIFE FEDERATION v LUJAN, et al. AND NATIONAL COAL ASSOCIATION,
et al., 733 F Supp 419 (D D C February 12, 1990).
Research conducted by: Joyce Zweben Scall
