COALEX State Comparison Report - 278
March, 1994

James Hamm
Oklahoma Department of Mines
4040 North Lincoln Blvd.
Suite 107
Oklahoma City, Oklahoma 73105

TOPIC: AVAILABILITY OF PERMIT, INSPECTION AND ENFORCEMENT RECORDS 

INQUIRY: According to 30 CFR 840.14 and 842.16, copies of permit applications, inspection and
enforcement records, etc. "shall be made immediately available to the public in the area of
mining...." Compliance with the availability requirement can be accomplished by making copies
"available for public inspection at a Federal, State, or local government office in the county where
the mining is occurring..." or by having the regulatory authority mail copies of information promptly
(provided a description of the information available and mailing procedures are posted in the
county where the mining is occurring). Please locate any material that indicates what information is
to be included as part of "a description of the information available". How do the other states
implement this requirement?

SURVEY RESULTS: Research was conducted using the COALEX Library and other materials
available in LEXIS. Retrieved were the regulatory history of the relevant federal rules and Federal
Register preambles where OSM discussed amendments to state regulatory programs. Research
was supplemented by a telephone survey to selected states across the country. Findings indicate
that copies of permit application packages, renewals, significant revisions, etc. that require public
comment are kept at the county/local level while copies of inspection and enforcement records are
kept at regional or district offices; states will provide copies of requested information by mail; no
state surveyed provides the public with a specific list of the types of documents available for review
or that may be requested by mail [Illinois provided a Memorandum that lists the documents
forwarded to counties for public review, see the attached packet of Illinois material].

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

The list of what is included as part of this Report is as follows:

REGULATORY HISTORY OF FEDERAL RULES:
700.14    General; Availability of records
773.13(d) Requirements for permits and permit processing; Public participation in permit
          processing; Public availability of permit applications. (Formerly 786.15)
840.14    State regulatory authority inspection and enforcement; Availability of records.
842.16    Federal inspections and monitoring; Availability of records.

COPIES OF MATERIALS INCLUDED WITH REPORT (some complete, some excerpted):
Federal Register preambles of final rules.
Federal final rules.
State rules.
Federal Register preambles discussing OSM approval or disapproval of state program amendments.
West Virginia case regarding the placement of permit-related advertising.

SURVEYED STATES WITH REGULATIONS ALLOWING MAILING OF RECORDS AS WELL AS THOSE
WHOSE REGULATIONS DO NOT STATE THAT THEY MAIL RECORDS REGARDING:
1.   Where permit applications and other records which require public review and comment are
     filed and where copies are retained.
2.   Where copies of inspection and enforcement records and other permit-related materials are
     retained.


REGULATORY HISTORY OF FEDERAL RULES
A. 700.14 General; Availability of records.
1. 44 FR 14902 (MARCH 13, 1979). Final rule.
   700.14(a) "Records required by the Act to be made available to the public shall be retained at
the geographically closest office of the State or Federal regulatory authority having jurisdiction over
the area involved."


B. 773.13(d).  Requirements for permits and permit processing; Public participation in permit
processing; Public availability     of permit applications.
1. 44 FR 14902 (MARCH 13, 1979). Final rule.
   786.15(a). "Information contained in permit applications on file with the regulatory authority shall
be open, upon written request, for public inspection and copying at reasonable times."

2. 48 FR 44343 (SEPTEMBER 28, 1983). Final rule. Part 786 was removed.
   733.13(d). "(1) General availability. Except as provided in (d)(2) or (d)(3) of this section, all
applications for permits; revisions; renewals; and transfers, assignments or sales permit rights on
file with the regulatory authority shall be available, at reasonable times, for public inspection and
copying."


C. 840.14  State regulatory authority inspection and enforcement; Availability of records.
1. 44 FR 14902 (MARCH 13, 1979). Final rule.
   840.14(b). "...copies of all records, reports, inspection materials, or information obtained by the
State under a State program shall be made immediately available to residents of that area."

2. 47 FR 35620 (August 16, 1982). Final rule.
   840.14(b). "Copies of all records, reports, inspection materials, or information obtained by the
regulatory authority shall be made immediately available to the public in the area of mining until at
least five years after expiration of the period during which the subject operation is active or is
covered by any portion of a reclamation bond so that they are conveniently available to residents of
that area...."

   840.14(c). "The State regulatory authority shall ensure compliance with Paragraph (b) of this
Section by either: (1) Making copies of all records, reports, inspection materials, and other subject
information available for public inspection at a Federal, State, or local government office in the
county where the mining is occurring or proposed to occur; or (2) At the regulatory authority's
option and expense, providing copies of subject information promptly by mail..., Provided, that the
regulatory authority shall maintain for public inspection, at a Federal, State, or local government
office..., a description of the information available for mailing and the procedure for obtaining such
information." 

PREAMBLES:
46 FR 59464 (DECEMBER 1, 1981). Proposed rules.
   840.14. Availability of records. "New 840.14  is proposed to provide flexibility with respect to
the methods by which States make records available to interested persons. This flexibility will assist
those States (principally in the West) which do not have offices throughout coal mining regions.
The Office believes that allowing for mail responses to requests for information submitted by
interested persons would meet the 'conveniently available' requirement of Section 517(f) of the
Act."

47 FR 35620, 35624 (AUGUST 16, 1982). Final rule.
   840.14  "Three commenters stated that the proposal to allow mailing of records violates section
517(f) of the Act, which requires records to be 'conveniently available' in 'central and sufficient'
locations. These commenters noted that, without a way to review the files, residents cannot
intelligently request particular documents. One commenter stated that citizens should be able to
obtain an index to records..... Using the mailing method actually affords greater convenience to
interested persons than does placing the records in an office. OSM agrees, however, that a
description of the records available and how to obtain them by mail should be provided in each
county so that interested persons may conveniently determine what is in fact available."

3. 48 FR 44777 (SEPTEMBER 30, 1983). Final rule.
   840.14(b)(2). Section references were revised; all other language remained unchanged.


D. 842.16  Federal inspections and monitoring; Availability of records.
1. 44 FR 14902 (MARCH 13, 1979).
   842.16(a). Essentially the same language as 840.14(b).

2. 47 FR 35620 (AUGUST 16, 1982). Final rule.
   842.16(a). Essentially the same language as 840.14(b).

   842.16(b). Essentially the same language as 840.14(c).

3. 48 FR 44777 (SEPTEMBER 30, 1983). Final rule.
   842.16(a)(2). Section references were revised; all other language remained unchanged.


STATE PROGRAM REGULATIONS: FEDERAL REGISTER PREAMBLES
These are enclosed for background:
Alabama:  56 FR 4542 (FEBRUARY 5, 1991).
Illinois:      53 FR 43112 (OCTOBER 25, 1988).
Indiana:  45 FR 78482 (NOVEMBER 25, 1980).
          53 FR 45459 (NOVEMBER 10, 1988).
Maryland:      56 FR 23505 (MAY 22, 1991).
Ohio:          47 FR 34688 (AUGUST 10, 1982).
          52 FR 26959 (JULY 17, 1987).
          59 FR 11227 (MARCH 10, 1994).
Pennsylvania:  47 FR 33050 (JULY 30, 1982).
West Virginia: 55 FR 21304 (May 23, 1990).
   "At OSM's request, West Virginia revised its rules to clarify that, at a minimum, such information
must include applications for permit approvals; permit revisions; permit renewals; transfers;
assignment or sale of permit rights; prospecting approvals; and all inspection and enforcement
documents. The revised rule provide that all records relative to surface mining reclamation
operations and prospecting operations are to be maintained and made available to the public for a
period of at least five years after final bond release."


STATE CASE LAW
   One state case, from West Virginia, was identified that addresses publication requirements for
surface mining permit applicants:

ZIRKLE v FAERBER, CMMR, WV DOE AND ENOXY COAL, INC., 350 SE 2d 3 (W Va 1986).
   "SYNOPSIS: Where an applicant for a surface-mining permit publishes the advertisement
required by W.Va. Code 22A-3-20 [1985] before his permit application is complete, the
advertisement must be republished upon the submission of the complete application, and
concerned parties must be permitted to comment as envisaged by W.Va. Code 22A-3-20(b)
[1985]."


COMPARISON OF REGULATIONS I
   State program regulations comparable to these federal rules were retrieved from COALEX and
are included as part of this Report. The final column indicates whether state sections corresponding
to 840.14 and 842.16 provide the state with the option to mail information.

[The following is a translation of data from table to text format.] 

STATE
DOES THE STATE HAVE REGULATIONS COMPARABLE TO 700.14 (Y/N); 733.13/786.15 (Y/N);
840.14 (Y/N); 842.16 (Y/N); DOES THE STATE PROVIDE THE OPTION TO MAIL INFORMATION
(Y/N)?

AL
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

AR
700.14 (Y); 733.13/786.15 (Y); 840.14 (N); 842.16 (Y); Option to Mail Info (N)

CO
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

IL
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (Y)

IN
700.14 (N); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

KY
700.14 (N); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (Y)

LA
700.14 (Y); 733.13/786.15 (Y); 840.14 (N); 842.16 (Y); Option to Mail Info (N)


MD
700.14 (N); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

MS
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

MO
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

MT
700.14 (N); 733.13/786.15 (N); 840.14 (N); 842.16 (Y); Option to Mail Info (Y)

NM
700.14 (Y); 733.13/786.15 (Y); 840.14 (N); 842.16 (N); Option to Mail Info (N)

OH
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

OK
700.14 (Y); 733.13/786.15 (Y); 840.14 (N); 842.16 (Y); Option to Mail Info (Y)

PA
700.14 (N); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (N)

TX
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (Y)

UT
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (Y)

VA
700.14 (Y); 733.13/786.15 (Y); 840.14 (Y); 842.16 (N); Option to Mail Info (Y)

WVA
700.14 (N); 733.13/786.15 (Y); 840.14 (N); 842.16 (Y); Option to Mail Info (N)

WY
700.14 (N); 733.13/786.15 (N); 840.14 (Y); 842.16 (N); Option to Mail Info (N)



SURVEY OF STATES

   The six states, aside from Oklahoma, that have regulations allowing compliance of record
availability requirements by providing copies of inspection and enforcement information by mail
were surveyed by telephone [see the Table, above]. The states were asked how they implement
the requirements of their program version of 840.14 and 842.16. As a "control group", five states
whose regulations do not indicate that they provide copies of material by mail were also surveyed.
All eleven states were surveyed on their implementation of the rules requiring public availability of
permit applications (733.13). Results of the survey follow. 


GENERAL FINDINGS FOR ALL STATES SURVEYED:
1. The "master set" of the documents relating to a permit are kept at the central/main offices of
the regulatory authority of each state. 

2. Copies of pending permit applications, major permit revisions, renewals, and other such
documents that are required to go through a public comment period are kept in the area of the
mine until the permit, revision, renewal, etc. is issued. Generally, after permit, revision or renewal
approval, copies of these documents are not required to be kept or maintained at the local level
and may be removed. Exception: In Kentucky, preliminary applications are filed at the regional
offices or the central office [see below].

3. Illinois and Indiana send copies of inspection and enforcement records, as well as other permit-related correspondence, to the local repository of permit information. Utah and Virginia keep
complete copies of inspection and enforcement materials at the central office, but can make the
information available for review at the regional/district/field office. Kentucky, Montana, Texas,
Ohio, Pennsylvania, Wyoming and West Virginia maintain inspection and enforcement records at
the central offices and regional offices.

4. Wherever they are located, permit records relating to permit applications, renewals, revisions,
inspection reports, enforcement actions, correspondence, etc. are available for public review and
copying. Exception: parts of files may not be publicly available if they relate to an aspect of a case
that is in litigation.

5. Regardless of whether the regulations state that information may be requested by phone, all of
the states surveyed allow the public to call and request information to be copied and mailed from
the central offices or the regional offices where copies of the materials are kept. Fees for providing
this service may or may not be required depending on the state, the amount of material requested
and the time involved in fulfilling the request. Illinois provided an internal memorandum containing
the list of documents it sends to the local repository. None of the states surveyed indicated that
they post a list of materials available for review and copying at the local repository.


SPECIFIC STATE RESPONSES FOLLOW:

STATES WITH MAILING REGULATIONS
ILLINOIS
   Permit applications are filed with the county clerk's office in the county where the mining will
occur. A second copy is filed with the county board. The main files, containing permit renewals and
revisions, inspection reports and enforcement actions, are kept in Springfield and duplicates are in
the southern district office. Copies of documents such as permit renewals, revisions, inspection
reports and enforcement actions are sent to the county clerk's office; however, the state regulatory
authority has no control over the county offices and does not monitor how the records are kept and
the files maintained.  [See the attached Illinois Memorandum for a list of the documents forwarded
to counties.]


KENTUCKY
   Preliminary permit applications are filed either at the seven regional offices or at the central
office. The main files are kept in Frankfort and copies of all permit-related documents (applications,
correspondence, inspection reports, etc.) are kept at the seven regional offices through bond
release or forfeiture, at which time the files from the regional office are merged with the inspectors
files and maintained at the central office. 

   At the beginning of SMCRA in Kentucky, the regulatory authority sent copies of permit materials
to the counties. The counties complained that they had no room to store all of the required
material; therefore, the practice was stopped.


MONTANA
   Permit and major revision applications are filed at county courthouses or local libraries.
Inspection and enforcement records and originals of all records are maintained at the state capitol
with duplicates available at the Billings office.


TEXAS
   Permit applications "in process" are filed at local courthouses. Copies of documents requiring
public comment, such as significant permit revisions and bond release applications, are sent to the
county courthouses. Complete copies of permit applications, correspondence, inspection reports
and enforcement actions are maintained at the two regional offices which are located in the
general mining areas of the state and in Austin. 


UTAH
   Copies of permit applications, renewals and revisions are kept on file at county office, as well as
at the main office in Salt Lake City. Inspection and enforcement documents are kept at the main
office. The field office may have copies of the documents comprising permit files but they are not
"official files" and, therefore, do not purport to be complete. The public may, however, review
whatever materials the field office has available.


VIRGINIA
   Materials related to permit applications and any other documents that require public comment
are kept at county offices until the permit, or revision, etc. is issued, as required. Complete records
of inspection and enforcement materials are kept at Big Stone Gap. The records can be made
available to the public for review and copying at the northern field office.


CONTROL GROUP
INDIANA
   Copies of permit applications and related documents are kept on file at the field offices and at
the local representative library. At a fixed time after the permit has been approved, the permit
packages may be removed from the library. However, copies of subsequent permit
correspondence, plan changes, inspection reports and enforcement actions will continue to be kept
on file at the local representative library even if the application part of the file is removed.


OHIO
   Permit applications are filed with Columbus. The applicant is responsible for sending copies of the
documentation to the local county, this may be the local SCS office or one of the seven district
offices if an office is located in that county. Copies of inspection and enforcement records are kept
at Columbus and at the district offices.


PENNSYLVANIA
   Copies of permit records, from initial application through permit issuance, are kept at the county
offices (county conservation districts). Copies of inspection and enforcement records are kept in the
six district offices. Copies of all records are available in Harrisburg.


WEST VIRGINIA
   Copies of permit applications, major revisions and any other pending documents required to go
through the comment process are kept at local courthouses. Copies of inspection and enforcement
documents are kept at the field office. The master set of permit documents is on file at the
headquarters. 


WYOMING
   Copies of the permit application packages are kept on file at the county level until permit
approval. Copies of inspection and enforcement records are kept in Cheyenne and three district
locations. Copies of all permit records are available in Cheyenne.


COMPARISON OF REGULATIONS II

L = Local repository, e.g., courthouse, library, SCS office, etc.
M = Main/central/headquarters office
R = Regional/district/field office

APPL = Location where copies of documents requiring public comment are filed or available for
review.
LEAV = Are these documents required to be maintained at the local repository? [Y/N]
ALL  = Are copies of all permit-related records available at local repository? [Y/N]
I/E  = Location where copies of inspection and enforcement records are retained.
LIST = Are lists of permit-related documents available for review posted at local repository? [Y/N]

[The following is a translation of data from table to text format.] 

STATE
APPL (L/M/R); LEAV (Y/N); ALL (Y/N); I/E (L/M/R); LIST (Y/N)

STATES WITH RULES ALLOWING THE OPTION TO MAIL INFORMATION:

IL
APPL (L); LEAV (N); ALL (Y); I/E (L/M/R); LIST (N)

KY
APPL (R/C); LEAV (N); ALL (N); I/E (M/R); LIST (N)

MT
APPL (L); LEAV (N); ALL (N); I/E (M/R); LIST (N)

TX
APPL (L); LEAV (N); ALL (N); I/E (M/R); LIST (N)

UT
APPL (L); LEAV (N); ALL (N); I/E (M*); LIST (N)

VA
APPL (L); LEAV (N); ALL (N); I/E (M*); LIST (N)

* Copies of information can be made available at the regional office.


STATES WITHOUT SUCH SPECIFIC REGULATIONS:

IN
APPL (L); LEAV (N); ALL (Y); I/E (L/M/R); LIST (N)

OH
APPL (L); LEAV (N); ALL (N); I/E (L/M/R); LIST (N)

PA
APPL (L); LEAV (N); ALL (N); I/E (M/R); LIST (N)

WVA
APPL (L); LEAV (N); ALL (N); I/E (M/R); LIST (N)

WY
APPL (L); LEAV (N); ALL (N); I/E (M/R); LIST (N)



ATTACHMENTS
A.   Copies of current federal regulations: 30 CFR 700.14, 840.14, 842.16 and 773.13(d)
     [formerly 786.15].
B.   Federal Register preambles for federal regulations
     1.   44 FR 14902 (March 13, 1979). Final rules. [Excerpts]
     2.   46 FR 58464 (December 1, 1981). Proposed rules.[Excerpts]
     3.   47 FR 27694 (June 25, 1982). Proposed rule. [Excerpts]
     4.   47 FR 35620 (August 16, 1982). Final rule.
     5.   48 FR 44344 (September 28, 1983). Final rule.
     6.   48 FR 44777 (September 30, 1983). Final rule.
     7.   54 FR 52092 (December 20, 1989). Final rule. [Excerpts]
C.   Alabama:
     Reg. Sec. 880-X-2A-.10
     Reg. Sec. 880-X-8K-.09
     Reg. Sec. 880-X-11A-.04
     56 FR 4542 (February 5, 1991) [Excerpts].
D.   Arkansas:
     Reg. Sec. 700.14
     Reg. Sec. 786.15
     Reg. Sec. 842.16
E.   Colorado:
     Reg. Sec. 1.08
     Reg. Sec. 2.07.5
     Reg. Sec. 5.02.4
F.   Illinois:
     Reg. Sec. 1700.14
     Reg. Sec. 1773.13
     Reg. Sec. 1840.14
     53 FR 43112 (October 25, 1988) [Excerpts].
     Memorandum, "Documents forwarded to Counties" (1994).
G.   Indiana:
     Reg. Sec. 310 IAC 12-3-106
     Reg. Sec. 310 IAC 12-3-110
     Reg. Sec. 310 IAC 12-6-4
     45 FR 78482 (November 25, 1980) [Excerpts].
     47 FR 32071 (July 26, 1982) [Excerpts].
     53 FR 45459 (November 10, 1988) [Excerpts].
H.   Kentucky:
     Reg. Sec. 410 KAR 8:010, Sec. 12
     Reg. Sec. 410 KAR 12:010, Sec. 4
I.   Louisiana:
     Reg. Sec. 100.14
     Reg. Sec. 186.16
     Reg. Sec. 242.16
J.   Maryland:
     Reg. Sec. 08.13.09.04
     Reg. Sec. 08.13.09.40
     56 FR 23505 (May 22, 1991) [Excerpts].
K.   Mississippi:
     Reg. Sec. 100.14
     Reg. Sec. 186.15
     Reg. Sec. 240.14
L.   Missouri:
     Reg. Sec. 10 CSR 40-8.070
     Reg. Sec. 10 CSR 40-6.070
     Reg. Sec. 10 CSR 40-8.030
M.   Montana:
     Reg. Sec. 26.4.1203 
N.   New Mexico:
     Reg. Sec. 29-16
     Reg. Sec. 11-15
O.   Ohio:
     Reg. Sec. 1501:13-5-01
     Reg. Sec. 1501:13-1-10
     47 FR 34688 (August 10, 1982) [Excerpts].
     52 FR 26959 (July 17, 1987) [Excerpts].
     59 FR 11227 (March 10, 1994).
P.   Oklahoma:
     Reg. Sec. 700.14
     Reg. Sec. 786.15
     Reg. Sec. 842.16
     Reg. Sec. 842.17
Q.   Pennsylvania:
     Reg. Sec. 86.35
     Reg. Sec. 86.214
     47 FR 33050 (July 30, 1982) [Excerpts].
R.   Texas:
     Reg. Sec. 051.07.04.006
     Reg. Sec. 051.07.04.210
     Reg. Sec. 051.07.04.672
S.   Utah:
     Reg. Sec. 614-100.700
     Reg. Sec. 645 300.100    
     Reg. Sec. 454-400.100
T.   Virginia:
     Reg. Sec. 480-03-19.700.14
     Reg. Sec. 480-03-19.773.13
     Reg. Sec. 480-03-19.840.14
U.   West Virginia:
     Reg. Sec. 38-2-18
     Reg. Sec.55 FR 21304 (May 23, 1990) [Excerpts].
V.   Wyoming:
     Statute Sec. 35-11-1101  
W.   ZIRKLE v FAERBER, CMMR, WV DOE AND ENOXY COAL, INC., 350 SE 2d 3 (W Va 1986).


Research and survey conducted by: Joyce Zweben Scall