COALEX REPORT 291

	Coalex Report 291
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 - 291
July, 1994

Michelle J. Matlock
Legal Counsel
Department of Natural Resources
Division of Reclamation
402 W. Washington Street
Indianapolis, Indiana 46204

TOPIC: SURFACE AND GROUND WATER MONITORING

INQUIRY: If Indiana Department of Natural Resources (DNR) exempted a coal company from
ground water monitoring (e.g., due to a finding of no significant aquifers) at the time of the original
permit application, can DNR later require the coal company to monitor ground water (e.g., at mid-term review, permit renewal or permit revision)? DNR's position is that it can require such
monitoring if there had been a change of circumstances on or off the permitted area and such
monitoring is necessary to assess the current and future impact of the mining operation on the
hydrologic balance. Please locate any relevant materials regarding this issue.

SEARCH RESULTS: The COALEX Library, LEXIS and existing COALEX Reports were used to research
this inquiry.

   One Interior administrative decision was identified that discusses the validity of an exemption
from ground water monitoring. The Administrative Law Judge stated that "the State of North
Carolina can and will require groundwater monitoring if on any of its inspections it finds that it
should be required." See CHATHAM COUNTY ET AL. v OSM, RESPONDENT, CHATHAM COAL CO.,
STATUTORY PARTY.

   No legislative history or regulatory items were identified which specifically state that an
exemption from ground water monitoring allowed at the time the original permit was issued can be
disallowed during the course of the permit term. However, 1983 preambles to 
final rules on mid-term permit reviews and surface and ground water monitoring plans discuss
revisions to permits and changes to monitoring requirements necessary to achieve compliance with
performance standards and protect the hydrologic balance.

   Listed below, with copies attached, are relevant legislative history and regulatory history
materials, as well as Interior administrative decisions.

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

LEGISLATIVE HISTORY
   Two excerpts from a 1977 House Report provide information on congressional intent for requiring
monitoring of hydrologic impacts.

H.R. REP. No. 218, 95th Cong., 1st Sess. (April 22, 1977) [H.R. 2]. 

Elements of a Mine Regulation Program. p.120
   Monitoring Hydrologic Impacts. "H.R. 2 also specifies special monitoring procedures to be
followed in water scarce areas or in those instances where the mining has a potential to
substantially disrupt the hydrologic balance or use of water. Particular types of data to be collected
and analyzed are specified. It is intended that the data collection and resulting analysis take place
before and continue throughout the mining and reclamation process, and be conducted in sufficient
detail so that accurate assessments of the impact of mining on the hydrologic setting of the area
can be determined. Throughout the mining process such data and analysis should also prove useful
to the regulatory authority in assessing the impact of additional applications for mining permits and
in determining what types of adjustments should be made."

Committee Recommendations. p. 161
   "Monitoring can give the operator, regulator and affected water user warning of impending
problems."


Several additional excerpts from reports and a hearing are attached for background.


REGULATORY HISTORY
PERMIT REVIEW
COALEX State Inquiry Report - 222, "Permit revisions and midterm permit review" (1992).
   In researching another Indiana inquiry on the regulatory authority's (RA's) ability to alter
previously approved permit conditions and the purpose of mid-term permit reviews, an OSM
Directive on the subject was identified. According to Directive REG-17, "Midterm Review of Federal
Permits' (1987), the purpose of the review is an evaluation of the permit, not the permittee's
compliance with permit provisions. Permit revisions may be necessary to maintain or achieve
compliance with applicable state or federal requirements. After permit review, the RA prepares and
documents written findings explaining the need for permit revisions or indicating a determination of
adequacy. 

   Attachments to the Report include the following Federal Register preambles:

48 FR 44344 (SEPTEMBER 28, 1983). Final rule. 30 CFR Section 774.11  Midterm permit review
(formerly 788.11).


44 FR 14902 (MARCH 13, 1979). Permanent program final rule. 30 CFR Section 788.11  RA review
of outstanding permits. 


SURFACE AND GROUND WATER MONITORING
44 FR 14902 (MARCH 13, 1979). Permanent program final rule.
   The preambles for these sections are enclosed for background:
1. 30 CFR 780.21  Reclamation plan: Protection of hydrologic balance.
2. 30 CFR 816.41  Hydrologic balance: General requirements
3. 30 CFR 816.52  Hydrologic balance: Surface and ground watermonitoring (This section was
removed by the final rules promulgated on September 28, 1983. Surface and ground water
monitoring requirements were incorporated into 816.41.)


45 FR 51547 (AUGUST 4, 1980). Certain provisions of 780.21 were suspended. 
   Enclosed for background.


47 FR 27712 (JUNE 25, 1982). Proposed rule. Hydrology permitting and performance standards.
   Enclosed for background.



48 FR 43955 (SEPTEMBER 26, 1983). Final rule. Hydrology permitting and performance standards.
   Section 816.52 was removed. Requirements for surface and ground water monitoring were 
incorporated into 816.41.

   The final rules provide the RA with flexibility to determine monitoring requirements on a site-by-site basis; in some site specific conditions, this may include a ground water monitoring exemption.
While no specific mention is made of requiring monitoring after an exemption has been allowed,
the preamble emphasizes the RA's responsibility to protect the hydrologic balance and adjust or
add additional monitoring requirements to "match the conditions that may occur at an individual
mine site."


51 FR 41952 (NOVEMBER 20, 1986). Certain provisions of 780.21 were suspended. 
   Enclosed for background.


53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Probable hydrologic consequences determination.
  Enclosed for background.


INTERIOR ADMINISTRATIVE DECISIONS
CHATHAM COUNTY ET AL. v OSM, RESPONDENT, CHATHAM COAL CO., STATUTORY PARTY,
Docket No. NX 7-1-A (1987).
  See quote above.


P & K CO., LTD. v OSM, Docket No. TU 4-2-R (1984).
  As part of this settlement agreement, P & K was required to submit revised surface and ground
water monitoring plans.


MCNABB COAL CO., INC. v OSM, 105 IBLA 29, IBLA 86-1454 (1988). MCNABB COAL CO., INC. v
OSM, Docket Nos. TU 4-23-P et al. (1986).
  SYLLABUS: "A permittee must comply with the surface and ground water monitoring
requirements of [SMCRA] and its implementing regulations until the successful completion of all
reclamation necessary and incident to its past surface coal mining operations and appropriate
release of its performance bond, even where current mining operations might be considered
exempt from regulation under the Act." 

Also see: 
   COAL ENERGY, INC. v OSM, Docket No. NX 90-82-R (1991).
   FALCON COAL CO. v OSM, Docket No. NX 0-88-R (1984).
   THE PITTSBURG & MIDWAY COAL MINING CO. v OSM, Docket No. DV 5-1-R (1985). [Excerpt].


ATTACHMENTS
A.   H.R. REP. No. 218, 95th Cong., 1st Sess. (April 22, 1977) [H.R. 2]. 
     1.   Elements of a Mine Regulation Program. p.120
     2.   Committee Recommendations. p. 161

B.   Additional legislative history excerpts.
     1.   S. REP 28 (S. 7), 94th Cong, 1st Sess 201 (March 5, 1975).
     2.   H.R. REP. 218 (H.R. 2), 95th Cong, 1st Sess 170 (April 22, 1977).
     3.   HEARING, Subcommittee on Energy and the Environment of the House Committee
          on Interior and Insular Affairs, 95th Cong, 2nd Sess 39 (January 18, 1978).
C.   COALEX STATE INQUIRY REPORT - 222, "Permit revisions and midterm permit review"
     (1992).
D.   44 FR 14902 (MARCH 13, 1979). Permanent program final rule.
     1.   30 CFR 780.21  Reclamation plan: Protection of hydrologic  balance.
     2.   30 CFR 816.41  Hydrologic balance: General requirements.
     3.   30 CFR 816.52  Hydrologic balance: Surface and ground water monitoring.
E.   45 FR 51547 (AUGUST 4, 1980). Certain provisions of 780.21 were suspended. 
F.   47 FR 27712 (JUNE 25, 1982). Proposed rule. Hydrology permitting and performance
     standards.
G.   48 FR 43955 (SEPTEMBER 26, 1983). Final rule. Hydrology permitting and performance
     standards.
H.   51 FR 41952 (NOVEMBER 20, 1986). Certain provisions of 780.21 were suspended. 
I.   53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Probable hydrologic consequences
     determination.
J.   CHATHAM COUNTY ET AL. v OSM, RESPONDENT, CHATHAM COAL CO., STATUTORY
     PARTY, Docket No. NX 7-1-A (1987).
K.   P & K CO., LTD. v OSM, Docket No. TU 4-2-R (1984).
L.   MCNABB COAL CO., INC. v OSM, 105 IBLA 29, IBLA 86-1454 (1988). 
M.   MCNABB COAL CO., INC. v OSM, Docket Nos. TU 4-23-P et al. (1986).
N.   COAL ENERGY, INC. v OSM, Docket No. NX 90-82-R (1991).
O.   FALCON COAL CO. v OSM, Docket No. NX 0-88-R (1984).
P.   THE PITTSBURG & MIDWAY COAL MINING CO. v OSM, Docket No. DV 5-1-R (1985).
     [Excerpt].


Research conducted by: Joyce Zweben Scall
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