COALEX REPORT 20

	Coalex Report 20

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 - 20
October 2, 1984

Sue A. Shadley, Legal Analyst
Division of Reclamation
309 W. Washington Street
Indianapolis, Indiana 46204

TOPIC: (1) INTERVENTION/HEARINGS AND APPEALS; (2) INTEREST RATE OF CIVIL PENALTY
REIMBURSEMENT

INQUIRY: This inquiry has two parts.  First, under 43 CFR Sec. 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 Sec. 518(c ), the interest rate or reimbursed civil penalty escrow deposits is set
at "the rate of 6 percent, or at the prevailing Department of 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"?

SEARCH RESULTS: See below.

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

INTERVENTION/HEARINGS AND APPEALS

   A search of COALEX identified several Interior Board of Surface Mining Appeals (IBSMA)*
decisions involving petitions to intervene.  In each case, the petition was granted without an
explanation as to whether the petitioner qualified under 43 CFR Sec. 4.1110 subsection (c )(1) or 
subsection (c )(2).  The only specific reference to intervenor guidelines was found in DEAN
TRUCKING CO., 1 IBSMA 105 (1979) where 43 CFR 4.1110 guidelines were described as
"generous intervention provisions".

*The Administrative Law Judges (ALJ) and IBSMA decisions are presently being updated by OSM
and may not be complete.

   A further search of LEXIS failed to identify any case referencing 43 CFR 4.1110 specifically.  In
OKLAHOMA v FEDERAL ENERGY REGULATORY COMMISSION, 494 US 636 (1980), the issue of an
intervenor's standing is addressed in terms of a "showing of injury in fact, economic or
otherwise".  A copy is attached.


INTEREST RATE OF CIVIL PENALTY REIMBURSEMENT

   A search of COALEX was conducted for clarification of the phrase "prevailing Department of
Treasury rate".  The phrase appears in SMCRA Sec. 518(c ), 30 CFR Secs. 723.20(e), 845.20(c ),
and 43 CFR Sec. 4.1157.  No specific definition of the phrase was identified.  Some state
regulatory programs, such as Colorado, have interpreted the interest rate as being the same as
the rate which is "prevailing in the escrow account" in which the penalty fee has been deposited.
(Rules and Regs. of Colorado Mined Land Reclamation Board Pursuant to the Colorado Surface
Coal Mining Reclamation Act, Secs. 34-33-101 et seq., Sec. 5.04.4 and also as amended through
the 1983 legislative session, Sec. 34-33-123(g))


ATTACHMENTS
INTERVENTION/HEARINGS AND APPEALS
A    43 CFR Sec. 4.1110
B    Excerpt from DEAN TRUCKING CO., 1 IBSMA 105 (1979). 
C    Excerpt from OKLAHOMA v FEDERAL ENERGY REGULATORY COMMISSION, 494 US 636
     (1980).
INTEREST RATE OF CIVIL PENALTY REIMBURSEMENT
D    Excerpt from Rules and Regs. of Colorado Mined Land Reclamation Board Pursuant to the
     Colorado Surface Coal Mining Reclamation Act, Secs. 34-33-101 et seq., Sec. 5.04.4
     Public Hearings on Penalties.
E    Excerpt from Colorado Surface Coal Mining Reclamation Act, Secs. 34-33-101 et seq., CRS
     1973 as amended; Department of Natural Resources; Mined Land Reclamation Division;
     Statute printed as amended through the 1983 legislative session (Rev 5/83); Sec. 34-33-123 Enforcement - Civil and Criminal Penalties.


Search conducted by: Terri H. Petruska

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