COALEX REPORT 27

	Coalex Report 27

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 - 27
January 28, 1985

Norman Snell, Esquire
Assistant Attorney General
Alabama Surface Mining Commission
P.O. Box 2390
Jasper, Alabama 35502

TOPIC: ATTORNEY GENERAL ACTION FOR COLLECTION

INQUIRY: Under SMCRA, the state regulations specify performance bond forfeiture criteria and
procedures.  Alabama's 1975 Act, which addressed the interim regulations, contains a clause
stating that "Nothing in this Article shall prevent the attorney general from prosecuting violations
hereof." (Ala. Code, Sec. 9-16-51(d) (1975))  The position presently being argued is: regardless
of specific bond forfeiture procedures of the 1975 Act, the attorney general should be allowed to
file a separate action in the circuit court to obtain collection.

Do any of the other states regulatory programs contain a similar provision?  Is there any state
case law that supports separate action outside of the administrative bond procedure to obtain
collection?

SEARCH RESULTS: A search of the COALEX library was conducted.  Five state statutes were
identified which pertain to attorney general action for collection.

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

   West Virginia Code Sec. 20-6-30(c ) (1967) grants the attorney general, as well as others, the
authority to seek an injunction to compel compliance with or enjoining violation of the West
Virginia Surface Mining Act.  The statute permits a court of competent jurisdiction to grant
injunctive relief:

"notwithstanding that all of the administrative remedies provided for in this article have not been
pursued or invoked against the person or persons against whom such relief is sought and
notwithstanding that the person or persons against whom such relief is sought have not been
prosecuted or convicted under the provisions of this article." (W Va Code, Sec. 20-6-30(c )
(1967))

   In Missouri, the mining commission may request the attorney general to bring an action for
injunctive relief and bond forfeiture when the commission or director determines that a provision
of Missouri surface mining legislation is being violated.  The request for injunctive relief may be
made "after judicial review or simultaneous with judicial review." (Mo. Rev. Stat., Sec. 444.710
(1978))

   The Ohio attorney general is directed to bring an action to recover reclamation expenses after
the reclamation has been completed and the expenses have been certified.  (Ohio Rev. Code,
Sec. 1513.18 (1981))

   The Montana Hard Rock Mining Act directs the attorney general, when requested by the mining
board, to bring an action to recover from a permittee and surety who have failed to reclaim the
disturbed land.  The action by the attorney general may be brought only when the permittee and
surety have not paid within thirty days of receipt of the expense.  (Mont. Code Ann., Sec. 82-4-341(5))

   In Utah, a violation of the Air Conservation Act "shall not be a bar to enforcement of [the]
act...and the committee shall have the power to institute and maintain in the name of [Utah] any
and all such enforcement proceedings."  (Utah Code Ann., Sec. 26-24-13(1)(c ) (1953))

   A search of the COALEX file containing administrative law judge opinions* did not identify any
pertinent decisions.  Also, a LEXIS search of state cases did not identify any opinions on point.

*The ALJ file is currently being updated by OSM and may not be complete.


ATTACHMENTS
A    W Va Code, Sec. 20-6-30(c ) (1967).
B    Mo. Rev. Stat., Sec. 444.710 (1978).
C    Ohio Rev. Code, Sec. 1513.18 (1981).
D    Mont. Code Ann., Sec. 82-4-341(5).
E    Utah Code Ann., Sec. 26-24-13(1)(c ) (1953).


Search conducted by: A. Michael Tucker

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