COALEX REPORT 261

	Coalex Report 261

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 - 261
August, 1993
          
          Tim Taylor
Division of Reclamation
Department of Natural Resources
P.O. Box 147
201 W. Main Street
Jasonville, Indiana 47438

TOPIC: signatures on the 300 foot waiver

INQUIRY: Must the waiver allowing a permittee to mine closer than 300 feet to an occupied
dwelling be signed by both parties if the property is jointly owned or is one signature sufficient?

SEARCH RESULTS: The COALEX Library and other materials in LEXIS were used to research this
inquiry.

   Only one case was identified that had any relevance to the fact situation and issue of this
inquiry. In SMITH v NATURAL RESOURCES & ENVIRONMENTAL PROTECTION CABINET
(CABINET), 712 SW 2d 951 (Ky Ct App 1986), the court found that the Cabinet had erred in
denying an administrative hearing to Muriel Smith, occupant and co-owner of a home, who did not
execute a "300-foot waiver". The waiver had been signed by Smith's ex-husband, the nonoccupant
and co-owner of the home. 

   While the court did not issue a ruling on whether the nonoccupant/co-owner of a dwelling may
execute a waiver that is sufficient under Kentucky regulations to deprive the occupant/co-owner of
the protection of state and federal statutes, it did find that the issue was not a property rights
question. 

  The case was remanded to the Cabinet to take appropriate inspection and enforcement action.

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ATTACHMENTS
SMITH v NATURAL RESOURCES & ENVIRONMENTAL PROTECTION CABINET (CABINET), 712 SW
2d 951 (Ky Ct App 1986).


Research conducted by: Joyce Zweben Scall

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