COALEX REPORT 264

	Coalex Report 254

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 - 264
March, 1993

Ted Biggs, Esquire
Indiana Department of Natural Resources
Division of Reclamation
402 West Washington Street
Indianapolis, Indiana 46204

TOPIC: MINING WITHIN 300 FEET OF A PUBLIC BUILDING

INQUIRY: Does the prohibition against mining within 300 feet of a public building refer to the
building itself or the property line? Please locate any materials that discuss this issue.

SEARCH RESULTS: Research was conducted using the COALEX Library and other materials
available in LEXIS. No materials were identified that specifically discussed the issue in question. A
few items were retrieved that have some relevance to the topic. These are listed below and copies
are attached.

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

REGULATION HISTORY
REGULATION OF SURFACE MINING: HEARINGS on H.R. 3 Before Subcommittee on the
Environment and Subcommittee on Mines and Mining of the House Committee on Interior and
Insular Affairs, 93rd Cong., 1st Sess. 838 (April 9, 1973)(Statement of Penn. Rep. John P. Saylor).
   From H.R. 5988. Section-by-Section-Analysis. Section 214  Permit Approval. "This section lists the
eight findings which the regulatory authority must make before it can grant a surface mining and
reclamation permit. Among the findings which shall be made are ...
   (3) that the land affected is not within 300 feet of the outside property line of an occupied
dwelling; within 300 feet of a public building, park or cemetery; nor within 100 feet of the outside
line of any public road right-of-way".


INTERIOR ADMINISTRATIVE DECISIONS
DONALD B. PETERSON v OSM, Docket No. DV 7-1-PR (1987).
   Peterson contended that the permit boundary for Palmer Coking Coal Co.'s McKay Preparation
Plant was within 300 feet of a public building (a grocery store) and several houses along a state
road. The ALJ ruled that "there [was] no evidence to support his allegation since no measurements
[had] been made."


L & E TRUCKING, INC. v OSM, Docket Nos. CH 1-160-R, CH 2-24-P, CH 2-25-R (1981).
   The ALJ affirmed the issuance of the violation for conducting surface coal mining within 300 feet
of a public park finding that L & E should have known the "true ownership of the adjoining land".
However, only the minimum number of points were assigned for extent of potential or actual
damage as the ALJ found that work the applicant performed for the landowner "resulted in the
removal of many physical hazards and will...ultimately improve the area."


PENNSYLVANIA ADMINISTRATIVE DECISIONS
KERRY COAL CO. v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES, 425 A
2d 46 (PA Commw Ct 1981).
   In discussing the construction of 52 P.S. Sec. 1396.4b(c) which states, in part,

"No operator shall open any pit for surface mining operations...within three hundred feet of any
occupied dwelling house, unless released by the owner thereof, or any public building, school, park
or community or institutional building...." * the court agreed with Kerry Coal that the word "park"
be read as an adjective modifying the word "building", providing statutory protection to "park
buildings".

"We believe that the legislature has shown its intention in this section to apply the restriction
limitation of 100 feet when it refers to property or geographic lines, i.e., right of way of public
highway, cemetery, or bank of any stream. On the other hand, the restriction is 300 feet when
applied to structures, i.e., occupied dwelling house, any public building, school, park or community
or institutional building. It is of further significance that the structures are grouped together."

*NOTE: The language of this section was subsequently changed. Refer to the revised statute
section attached to this decision.


BOARD OF SUPERVISORS OF CHARTIERS TOWNSHIP v QUARTURE AND T/D/B/A VICTOR DOSSE
CONTRACTING, 603 A 2d 295 (PA Commw Ct 1992).
  The issue on appeal was whether the common pleas court had jurisdiction to modify an earlier
order. The facts of the case relate to which set of conditions were to be imposed on a strip mine
permit: no mining closer that 300 feet of any building or structure versus no mining closer than
300 feet of any property line.


MISC.
Excerpts from a variety of materials that mention the 300 feet rule are enclosed for review.


ATTACHMENTS
A.   REGULATION OF SURFACE MINING: HEARINGS on H.R. 3 Before Subcommittee on the
     Environment and Subcommittee on Mines and Mining of the House Committee on Interior
     and Insular Affairs, 93rd Cong., 1st Sess. 838 (April 9, 1973)(Statement of Penn. Rep. John
     P. Saylor).
B.   DONALD B. PETERSON v OSM, Docket No. DV 7-1-PR (1987).
C.   L & E TRUCKING, INC. v OSM, Docket Nos. CH 1-160-R, CH 2-24-P, CH 2-25-R (1981).
D.   KERRY COAL CO. v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES,
     425 A 2d 46 (PA Commw Ct 1981).
E.   BOARD OF SUPERVISORS OF CHARTIERS TOWNSHIP v QUARTURE AND T/D/B/A VICTOR
     DOSSE CONTRACTING, 603 A 2d 295 (PA Commw Ct 1992).
F.   Misc. Excerpts from a variety of materials that mention the 300 feet rule .


Research conducted by: Joyce Zweben Scall

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