COALEX REPORT 191

	Coalex Report 191

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 - 191
September, 1991
[Updated December, 1991]

Hon. Marlin McLaughlin
P.O. Box 643
Jasper, Alabama 35502

TOPIC: IS FILL DIRT CONSIDERED A "MINERAL" FOR REGULATORY PURPOSES? (Includes State
Inquiry Reports 134, 47, 24, 113 and 182.)

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, INC. v
RANDALL, 373 So 2d 1068 (Ala 1979)?

SEARCH RESULTS: Several existing COALEX State Inquiry and Comparison Reports were identified
that addressed similar issues. These reports were updated using the COALEX Library and other
materials available in LEXIS. The information in the Reports is discussed below. Copies of the Reports
and attachments are included here, as indicated. The Report was updated to include the Alabama
Surface Mining Commission ruling on this issue.

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

16 2/3 EXEMPTION
COALEX STATE INQUIRY REPORT - 134, "16 2/3 exemption" (January, 1990). 
   This Report incorporated prior Reports 47 and 24, covering legislative history material on the
exemption, with the regulatory history, from Federal Register preambles, and federal and
administrative case law.


The latest Federal Register notice on the 16 2/3 exemption was published on December 20, 1989
(54 FR 52092).


NOTE: Also enclosed are the MCNABB COAL CO., INC. v LUJAN SETTLEMENT AGREEMENT (CA Nos.
88-C-281-E, 88-C-1525-E (N.D. Okla 1990) and the subsequent Interior ALJ Consent Decision, Docket
No. TU 6-19-P (1991). These cases update Report - 134.


SOIL AND MINERAL
COALEX COMPARISON REPORT - 113, "Definitions of soil and mineral" (June, 1989). 
   This Report addressed the question of whether clay extracted from a borrow pit and used for fill
dirt is a "mineral", requiring permitting, or "dirt". Included is a table summarizing state definitions
of "mineral" and "clay" and a discussion of relevant case law.

   NOTE: Report - 113 appears as an Attachment to Report - 182.

COMMONWEALTH OF VIRGINIA v MAY BROTHERS, INC., 396 SE 2d 695 (Va Ct App 1990). [The
case for which the above research was conducted.]
   The Virginia Court of Appeals affirmed the Circuit Court decision which reversed the Virginia Board
of Surface Mining Review's holding that May Brothers was engaged in mining without having obtained
a state mining license and surface mining permit:

"We hold that the simple removal of dirt from a construction site, without more, does not constitute
'mining' as contemplated by the legislature in Code sec. 45.1-180." 


KIMBLE v DIERINGER, Case No. 90-CA-19, 1991 Ohio App LEXIS 2229 (May 1, 1991).
   The court affirmed the Ohio Reclamation Board of Review's finding that "Kimble's extraction of coal
was incidental to a permitted highway project, and was therefore not a coal mining operation under
R.C. 1513.01."


COALEX STATE INQUIRY REPORT - 182, "Definition of soil and mineral" (1991).
   Report - 182 is an adjunct to Report - 134. It includes additional MCNABB decisions and the
Indiana administrative decision for which both Reports were prepared.


DUNN CONSTRUCTION CO., INC. v ALA. SURFACE MINING COMMISSION, Case No. DHA 91-027
(1991). 
   The denial of the exemption application for the mining of coal incidental to the mining of other
minerals was affirmed. Shale material was proposed to be sold for use in constructing pads for
methane drilling towers. Witnesses stated that shale material was not suitable for areas used by
heavy rigs or trucks. The Chief Hearing Officer found that the shale material was "not a mineral
having any commercial value or reasonable commercial use other than as waste or fill material for
the purpose of bona fide sale".


ATTACHMENTS
A.   COALEX STATE INQUIRY REPORT - 134, "16 2/3 exemption" (January, 1990). (Includes copy
     of Reports 24 and 47, Federal Register preambles but not the case law.)
B.   MCNABB COAL CO., INC. v LUJAN SETTLEMENT AGREEMENT (CA Nos. 88-C-281-E, 88-C-1525-E (N.D. Okla 1990).
C.   MCNABB COAL CO. v OSM, Interior ALJ Consent Decision, Docket No. TU 6-19-P (1991).
D.   COMMONWEALTH OF VIRGINIA v MAY BROTHERS, INC., 396 SE 2d 695 (Va Ct App 1990).
E.   KIMBLE V DIERINGER, Case No. 90-CA-19, 1991 Ohio App LEXIS 2229 (May 1, 1991).
F.   COALEX STATE INQUIRY REPORT - 182, "Definition of soil and mineral" (1991). [Includes
     COALEX COMPARISON REPORT - 113, "Definitions of soil and mineral" (June, 1989).]
G.   DUNN CONSTRUCTION CO., INC. v ALA. SURFACE MINING COMMISSION, Case No. DHA 91-027 (1991). 


Research conducted by: Joyce Zweben Sca

(Home Page)

Office of Surface Mining
1951 Constitution Ave. N.W.
Washington, D.C. 20240
202-208-2719
getinfo@osmre.gov