COALEX REPORT 268

	Coalex Report 268

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 - 268
September, 1993

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

TOPIC: IMPROVIDENTLY ISSUED PERMIT

INQUIRY: Indiana is promulgating regulations that mirror the federal rules on improvidently issued
permits. Industry is claiming that the state has the authority to revoke permits only after showing
cause, not through rescission. Are there any cases addressing this issue?

SEARCH RESULTS: Research was conducted using the COALEX Library and the other materials
available in LEXIS. No cases on this issue were identified. A preamble to 1989 final rules and an
OSM directive were retrieved that discuss the revocation/rescission issue and detail the procedures
to be followed for determining whether a permit was improvidently issued and the suspension/
rescission of these permits. Several additional items are included for background. Copies of the
items listed below are attached.

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

54 FR 18438 (APRIL 28, 1989). Final rule. Improvidently issued permits.
1. Definitions of terms (18438).
"Rescission -- equivalent to revocation, but used to differentiate between the rescission of an
improvidently issued permit under Sec. 773.21 of this rule and the revocation of a permit for a
pattern of violations under existing 30 CFR 843.21."
...
Revocation -- see rescission."

2. Permit Rescission vs. Revocation (18460).
"Several commenters said that the Act did not authorize rescission of a permit, only revocation.

"OSMRE disagrees. Although section 201(c)(1) of the Act used the term revocation and not
rescission, these two terms are equivalent.

"To differentiate between the revocation of a permit for reasons that existed at the time of permit
issuance, and revocation for reasons that subsequently arose, OSMRE applies the term rescind to
the former and revoke to the latter. In either case the ultimate effect of rescission or revocation is
identical -- the loss of the permit -- and the choice of different terms for each is simple a matter of
administrative convenience."

OSM DIRECTIVE, Subject No. INE-34, Transmittal No. 659, "Improvidently Issued Permits" (Issued
2/22/91).
This directive established procedures for determining whether a permit was improvidently issued
and details the rescission process if the permit is determined to be improvidently issued where
OSM is the regulatory authority. Particularly relevant sections are reproduced below. The entire
document is attached.

"4. Policy/Procedures.
"a. Background. Sections 201(c) and 510(c) of the Act require a regulatory authority to withhold a
surface coal mining and reclamation permit from any applicant who is either directly or indirectly
responsible for an outstanding violation of the Act or certain other environmental laws and
regulations or is linked to such a violation through a relationship of ownership or control. OSM has
implemented these provisions by regulations at 30 CFR 773.5 and 773.15. Each State regulatory
program is required to contain counterparts consistent with those regulations.
...
b. Policy. Whenever OSM has reason to believe that a Federal permit has been improvidently
issued, it shall be agency policy to immediately conduct a review to determine whether the permit
was, in fact, improvidently issued and to take steps to bring the permit into compliance in
accordance with the procedures specified in section 4.d.(1) below. Where OSM has reason to
believe that a permit approved pursuant to a State program has been improvidently issued, it shall
be agency policy to immediately notify the State regulatory authority of the matter, and to follow-up with the State to ensure that the permit is brought into compliance by implementing the
procedures specified in section 4.d.(2) below."

d. Procedures. These include:
1. Notifying the permittee promptly by certified letter, indicating the basis for the determination
that the permit was improvidently issued. There is a 15 day response period.

2. If the permittee does not contact the Field Permitting Unit or cooperate to develop an
abatement plan or payment schedule, the Field Permitting Unit prepares a transmittal,
accompanied by a Notice of Proposed Suspension and Rescission, for approval of the Assistant
Director for Field Operations. The transmittal explains actions already taken and the reasons why
they were unsuccessful. The Notice specifies a time, not to exceed 90 days, for the permittee to
submit certain information or the permit will automatically be rescinded. It also includes
information on how to file an appeal for administrative review.

3. Where the permittee fails to satisfy the requirements necessary to avoid automatic suspension
or rescission, the Field Permitting Unit prepares a Notice of Permit Suspension or a Notice of Permit
Rescission for the approval of the Assistant Director for Field Operations. These Notices also carry
the right of appeal.

See the DIRECTIVE for procedures for State Program Permits and cases where the permittee has
filed a petition for protection under bankruptcy laws.

HEARINGS on H.R. 2 Before the Subcomm. on Energy and the Environment of the House Comm.
on Interior and Insular Affairs, 95th Cong., 1st Sess. 71 (February 24, 1977). Panel discussion.
"The Supreme Court has held that notice and an opportunity to be heard prior to suspension or
termination of an important benefit is a constitutional imperative.

"The right to prerevocation hearing is also denied by sections 504(d) and (f). These sections allow
either the Secretary or the State regulatory authority to determine that a permit has been
improvidently granted and, in effect, to revoke it in part or in toto. While there may be no right to
hearing where only questions of law are involved, the determinations under 504(d) and (f) must
necessarily involve mixed questions of law and fact and the due process clause of the Constitution
mandates that these questions be resolved only after procedurally proper notice and an
opportunity to be heard."

Also included with this Report are:
Excerpts from 56 FR 45780 (SEPTEMBER 6, 1991). Proposed rule. Ownership and control
information.

HEARINGS on H.R. 2 Before Subcomm. the Subcomm. on Energy and the Environment of the
House Comm. on Interior and Insular Affairs, 95th Cong., 1st Sess. 344 (February 28, 1977).

ATTACHMENTS
A. 54 FR 18438 (APRIL 28, 1989). Final rule. Improvidently issued permits.
B. OSM DIRECTIVE, Subject No. INE-34, Transmittal No. 659, "Improvidently Issued Permits"
(Issued 2/22/91).
C. HEARINGS on H.R. 2 Before the Subcomm. on Energy and the Environment of the House
Comm. on Interior and Insular Affairs, 95th Cong., 1st Sess. 71 (February 24, 1977). Panel
discussion.
D. Excerpts from 56 FR 45780 (SEPTEMBER 6, 1991). Proposed rule. Ownership and control
information.
E. HEARINGS on H.R. 2 Before Subcomm. the Subcomm. on Energy and the Environment of
the House Comm. on Interior and Insular Affairs, 95th Cong., 1st Sess. 344 (February 28,
1977).

Research conducted by: Joyce Zweben Scall

(Home Page)

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