COALEX REPORT 165

	Coalex Report 165

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

COALEX State Inquiry Report - 165
March, 1991

Stephen C. Keen, Director
Mines and Minerals
Division of Energy
1615 Washington Street, East
Charleston, West Virginia 25311

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?

SEARCH RESULTS: COALEX Reports providing Legislative History, Regulatory History and state
regulations for incidental boundary revisions (IBRs) were identified. Using the COALEX Library and
other materials available in LEXIS, relevant OSM Directives and Federal Register preambles,
discussing OSM rationale for approving or disapproving state IBR requirements, were retrieved. A
survey of eleven IMCC member states provides information on current state regulations and their
implementation. In addition, administrative and state decisions are included to indicate situations
where IBRs or revised permits were required. Copies of the materials listed below are attached.

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OSM DIRECTIVES
Subject No REG-19, Transmittal No 387, "Incidental Boundary Revisions" (October 19, 1987).
The purpose of the Directive is to establish policy for determining when an extension of the
area covered by a federal permit constitutes an incidental boundary revision.

Nine criteria are listed for when a proposed boundary revision would be considered incidental.
Some of the criteria are:
1. When the proposed change would not increase the area of land available for coal
removal unless the increase would be a secondary impact of and incidental to the
primary purpose of the revision;
2. When the proposed change would only involve lands for which the analysis of
probable hydrologic consequences is applicable;
3. When the proposed change would not constitute a change in the method of
mining;
4. When the proposed change would be contiguous with the permit area of a surface
mine, but need not be contiguous with the permit area of an underground mine.

Some of the examples provided include:
1. The addition of areas to expand support facilities;
2. The addition of areas to improve the alignment of a road or diversion ditch or the
placement of a soil stock pile area of a sedimentation control structure;
3. The addition of areas to make minor adjustments in the area permitted for coal
extraction so long as the total area permitted for extraction is not increased.

Subject No REG-21, Transmittal No 398, "Findings and Determinations for Revisions and
Renewals of Federal Permits" (November 10, 1987).

PREVIOUS COALEX REPORTS
COALEX STATE INQUIRY REPORT - 34, "Incidental boundary revision" (1985).
This Report provides Legislative History on the phrase "incidental boundary revisions"; a copy of
the 1983 federal regulatory revision which added a new section establishing minimum criteria for
approval of permit revisions; and copies of state regulations.

COALEX STATE INQUIRY REPORT - 118, "Major/minor permit revisions" (1989).
Included in this Report is a survey of regulations that define "major" or "significant" permit
revision for five states: Indiana, Tennessee, West Virginia, Montana and Wyoming.

FEDERAL REGISTER NOTICE ON FEDERAL REGULATIONS
48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Requirements of applications. See COALEX
Report - 34.

FEDERAL REGISTER NOTICES ON STATE REGULATIONS
In the following Federal Register preambles, OSM discusses approval or disapproval of state
program requirements for incidental boundary revisions or permit revisions:

ILLINOIS
53 FR 43112 (OCTOBER 25, 1988) [Excerpts]

INDIANA
51 FR 17478 (MAY 13, 1986) [Excerpts]

IOWA
51 FR 17176 (MAY 9, 1986) [Excerpts]

KENTUCKY
55 FR 46054 (NOVEMBER 1, 1990)
55 FR 24113 (JUNE 14, 1990) [Excerpts]
48 FR 21574 (MAY 13, 1983) [Excerpts]
48 FR 22711 (MAY 20, 1983) [Excerpts]

OHIO
52 FR 26959 (JULY 17, 1987) [Excerpts]

TENNESSEE
53 FR 49104 (DECEMBER 5, 1988)

WEST VIRGINIA
55 FR 23703 (JUNE 12, 1990) [Excerpts]
55 FR 21304 (MAY 23, 1990) [Excerpts]
54 FR 16136 (APRIL 21, 1989) [Excerpts]

INTERIOR ADMINISTRATIVE DECISIONS
TURNER BROTHERS, INC. (TBI) v OSM, Docket No. TU 6-51-R (1987).
TBI had obtained an incidental boundary revision requiring them to follow a specific cut
sequence, progressing south; TBI had made cuts progressing west. The ALJ affirmed the
issuance of the NOV because TBI had not followed their mine plan.

ROCKY COAL CO., INC. v OSM, Docket No. NX 7-90-R (1987).
Rocky Coal was cited for having failed to permit all areas which had been disturbed, by the
placement of overburden and spoil. The corrective action required a permit revision. The CO was
affirmed because Rocky Coal failed to correct the inadequacies in its permit revision application
that had been resubmitted to the state regulatory authority.

MULLINS COAL CO., INC. v OSM, Docket Nos. NX 5-29-R, NX 5-41-R (August 23, 1985).
The ALJ found that Mullins had failed to apply for an amendment to its permit to incorporate all
areas that had been affected by its operations: a landslide occurred on a portion of Mullins' haul
road.

ISLAND CREEK COAL CO. v OSM, Docket Nos. NX 9-106-R, NX 0-35-P (1981).
Island Creek was found to have disturbed an area off the permitted area. They did receive
permission from the regulatory authority to add the disturbed area to their permitted acreage.

PENNSYLVANIA ADMINISTRATIVE CASES
KOCHER COAL CO. v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES
(DER), EHB Docket No. 82-073-W (1986).
Kocher was directed to discontinue mining activities being conducted outside the boundary of
Kocher's approved mining permits. Kocher had submitted an amended permit application to DER
for additional acreage for its mining activities and although DER had not approved the amended
permit, Kocher believed that DER had approved it. During the appeal process, DER did grant the
permit for the additional acreage. The board dismissed the appeal as moot.

ROCKWOOD INSURANCE CO. (BLUE COAL CO.) AND ROCKWOOD INSURANCE CO. (NORTHWEST
MINING CO.) v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES (DER),
1981 EHB 424, Docket Nos. 78-168-S, 78-166-S (1981).
The two coal companies bonded by Rockwood increased their permitted acreage by applying
for and receiving amended permits. Both companies later failed to comply with the state
performance standards and their bonds were forfeited. DER proved that the bonds were properly
forfeited in their full face amounts.

STATE DECISION
OOTEN v FAERBER, COMMISSIONER, W. VA. DEPT. OF ENERGY, AND MAGNET COAL, INC., 383
SE 2d 774 (W Va 1989).
"SYLLABUS: 2. Where consideration of the reinstatement of an area deleted from a surface-mining permit is conditioned upon (1) completion of mining and reclamation on a significant
portion of the approved area and upon (2) a further determination of the possible effect of mining
on the deleted area, there must be compliance with both of these conditions, including
revegetation, prior to reinstatement, unless the permit conditions are modified in accordance with
the statute."

SURVEY

SURVEY QUESTIONS

A. Do you literally apply the provisions of 511(a)(3), to your program, thereby mandating
acquisition of a new permit if a permit boundary is to be extended other than through an
IBR?

B. Do you interpret the term "extension" as it is used in 511(a)(3) to mean an increase in
size of the permit, or to encompass any boundary change in the permitted area?

C. Are incidental boundary revisions allowed within your program as a means of changing
permit boundaries or increasing permitted acreage? If so, are there any restrictions on the
scope or use of IBRs?

D. Is there any other mechanism within your program whereby a permit may be revised or
amended to change permit boundaries or to increase permitted acreage? If so, what is
the mechanism, and what are the limitations, if any, which apply to its use?

E. Do you allow permit revisions or amendments which exchange previously permitted and
bonded acreage, which has not been and will not be disturbed due to a change in plans,
for new acreage of equivalent or lesser acreage? Such as "add/delete" revision would
result in either no net change in permitted area, or a decrease in total permitted area.

F. Whatever permit boundary or size revision procedures exist within your program, are they
approved by OSM?

SURVEY RESULTS

ALABAMA
A. Does state require new permit if boundary extended other than through IBR?
No. To do so would result in an unmanageable permit load and an unreasonable and unnecessary
cost in time and money.

B. Interpretation of "extension".
Any change in boundary.

C. Does state allow IBRs to change permit boundaries or increase permitted acreage: restrictions
and scope?
Yes. The acreage must be minimal in comparison to the original permit size. Baseline information
in the original permit must cover the extension area. The operation and reclamation plans in the
original permit must be applicable to the extension areas.

D. Are there other mechanisms for changing permit boundaries or increasing permitted acreage?
No.

E. Does state allow acreage exchange, e.g., "add/delete" revision?
Yes, if conditions stated above, in C., apply.

F. Are state's permit boundary or size revision procedures approved by OSM?
All are policy or procedural interpretations of state regulations which mirror federal regulations.

ARKANSAS
A. Does state require new permit if boundary extended other than through IBR?
No. New permits are not required; however, all provisions of permitting process are required, as if
a new permit would be issued. This would be called a "significant departure" and the permit
revised.

B. Interpretation of "extension".
Use the term as it is used in 511(A)(3).

C. Does state allow IBRs to change permit boundaries or increase permitted acreage: restrictions
and scope?
Yes, depending on site specific conditions and circumstances. State generally does not allow more
than a 5 - 10 % increase in acreage.

D. Are there other mechanisms for changing permit boundaries or increasing permitted acreage?
Unaffected acreage may be reduced from permit; otherwise, any changes are according to
511(a)(3).

E. Does state allow acreage exchange, e.g., "add/delete" revision?
Swapping or adding acreage would either be treated as a "significant departure" or IBR.