COALEX REPORT 168

	Coalex Report 168

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 Comparison Report - 168
February 8, 1991

Paul Ehret
Department of Mines and Minerals
Land Reclamation Division
300 West Jefferson Street, Suite 300
P.O. Box 10197
Springfield, Illinois 62791-0197

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 (RA) 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?

SEARCH RESULTS: Research was conducted using the COALEX Library in LEXIS and a telephone
survey to Ohio and Kentucky. Findings are discussed below. Copies of identified items are
attached, as indicated.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The relevant federal language is as follows (copies of the entire sections are attached):

30 CFR 772.15 REQUIREMENTS FOR COAL EXPLORATION; PUBLIC AVAILABILITY OF
INFORMATION.  
"(b) The [RA] shall keep information confidential if the person submitting it requests in writing, at
the time of submission, that it be kept confidential and the information concerns trade secrets or
is privileged commercial or financial information relating to the competitive rights of the persons
intending to conduct coal exploration."

773.13 REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING; PUBLIC PARTICIPATION IN
PERMIT PROCESSING.
"(d) Public availability of permit applications.
                       ...
(3) Confidentiality. The [RA] shall provide procedures, including notice and opportunity to be
heard for persons both seeking and opposing disclosure to ensure confidentiality of qualified
confidential information, which shall be clearly identified by the applicant and submitted
separately from the remainder of the application. Confidential information is limited to--
(i) Information that pertains only to the analysis of the chemical and physical properties of the
coal to be mined, except information on components of such coal which are potentially toxic in
the environment; 
(ii) Information required under Section 508 of the Act that is not on public file pursuant to State
law and that the applicant has requested in writing to be held confidential;
(iii) Information on the nature and location of archeological resources on public land and Indian
land as required under the Archeological Resources Protection Act of 1979...."
778.13 Permit applications -- Minimum requirements for legal, financial, compliance and related
information; identification of interest.
"(h) A statement of all lands, interest in lands, options of pending bids on interests held or made
by the applicant for lands contiguous to the area described in the permit application. If requested
by the applicant, any information required by the Paragraph which is not on public file pursuant to
State law shall be held in confidence by the [RA], as provided under Section 773.13(d)(3)(ii) of
this Chapter."

Also see 840.14 State [RA] inspection and enforcement; availability of records.


STATE SURVEY
Using COALEX, the only state identified as having a STATUTE allowing confidentiality of any
ownership information is Indiana. Section 13-4.1-3-4 (text attached) reads as follows:

"(a)Each reclamation plan...shall include the following...:
(13) With respect to land contiguous to the area to be covered by the permit, a description of
that land, interests in that land, or options on interests in that land held by the applicant or
pending bids on interests in that land by the applicant. This information is confidential and not a
matter of public record." 


The following states were identified as having REGULATIONS that are identical or substantially
similar to the federal regulations. (Copies of the statute and regulation sections for three
additional states are attached for review.)

     Alabama
     Arkansas
     Colorado
     Indiana
     Kansas
     Kentucky
     Louisiana
     Maryland
     Ohio
     Oklahoma
     Pennsylvania
     Virginia
     West Virginia


Two states were contacted by phone for additional information.

1. KENTUCKY
The state regulations require public participation in the permit application process. In practice,
the only information kept confidential, when it is requested, is trade secret or other information
relating to competitive rights of operators conducting coal exploration.

2. OHIO
Competitive information for coal exploration operations may be kept confidential. For non-exploration permits, only information on archeological resources may be kept confidential.
Although the analyses of the physical properties of the coal to be mined may be kept confidential,
in practice, this information is usually made public because of the toxic nature of components of
the coal.


OSM DIRECTIVE
Subject No. REG-15, Transmittal No. 548, Subject: Policy and Procedures for Maintaining
Confidentiality of Permit Application Information (Issued: 6/14/89).
   This directive outlines the procedures to be followed by OSM employees in processing
confidential information submitted as a part of an application for an exploration or mining permit,
permit revision or permit renewal for operations under OSM's jurisdiction. The DEFINITIONS
section includes language from all three sections above. (The Directive is attached.)  


ATTACHMENTS
A.   FEDERAL REGULATIONS:
     1.   772.15 REQUIREMENTS FOR COAL EXPLORATION; PUBLIC AVAILABILITY OF
          INFORMATION.  
     2.   773.13 REQUIREMENTS FOR PERMITS AND PERMIT PROCESSING; PUBLIC
          PARTICIPATION IN PERMIT PROCESSING.
     3.   778.13 PERMIT APPLICATIONS -- MINIMUM REQUIREMENTS FOR LEGAL,
          FINANCIAL, COMPLIANCE AND RELATED INFORMATION; IDENTIFICATION OF
          INTEREST.
     4.   840.14 STATE REGULATORY AUTHORITY INSPECTION AND ENFORCEMENT;
          AVAILABILITY OF RECORDS.
B.   STATE REGULATIONS
     1.   INDIANA: Ind. Admin. Code title 13, Sec. 13-4.1-3-4 (1986). Reclamation plan;
          contents; confidentiality.
     2.   ARKANSAS: Ark. Surface Coal Mining and Reclamation Code; Dept. of Pollution
          Control and Ecology, Sec. 786.16 (1986). Protection of confidential information.
     3.   MARYLAND: Md. Ann. Code art. 76A, Sec. 3 (1978). Custodian to allow inspection
          of public records.
     4.   PENNSYLVANIA: Surface Mining Conservation and Reclamation Act, as amended
          October 12, 1984 (PL 916, No. 181), Sec. 4. Mining permit; reclamation plan;
          bond.     
C.   OSM DIRECTIVE: Subject No. REG-15, Transmittal No. 548, Subject: Policy and
     Procedures for Maintaining Confidentiality of Permit Application Information (Issued:
     6/14/89).


Research conducted by: Joyce Zweben Scall

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