COALEX REPORT 298

	Coalex Report 298
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 - 298
October, 1994
          
          Olga Brunning, Esquire
Department of Natural Resources
Tawes Building
580 Taylor Avenue, Room C-4
Annapolis, Maryland 21401

TOPIC: 775.11(B) HEARING WITHIN 30 DAYS OF PERMIT DENIAL & DECISION WITHIN 30 DAYS
OF HEARING

INQUIRY: Is there any information on what the consequences are if a hearing on the denial of a
permit application is not held within the 30 day time frame? The permit applicant claims that the
permit is automatically approved.

SEARCH RESULTS: Research was conducted using the COALEX Library and other materials in
LEXIS. Several items were identified that indicate that is some cases, the 30-day period may be too
short a time frame. In these cases, the time frame may be extended with the concurrence of all
parties. No materials were identified that specify consequences when the regulatory authority fails
to meet the 30-day time frame. The preamble to the 1983 final rules on approval and disapproval
of permit applications, made it clear that operating without an approved permit was not an option.

   Listed below are legislative history, regulatory history and several other items that address
relevant aspects of the permit application review and the hearing/appeal processes. Copies of listed
items are attached.

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

H.R. REP. 1445 (H.R.13950), 94th Cong, 2nd Sess 117 (August 31, 1976). Section-by-Section
Analysis.
"Section 514. Decisions of the Regulatory Authority and Appeals  

"Under the administrative procedure established in this section, if hearings on the mining
application have been held within 30 days after their completion, the regulatory authority shall
provide to the applicant and all parties to the administrative proceeding its written findings granting
or denying the permit in whole or in part and stating its reasons.

"In instances where no hearings have been held, the regulatory authority is to notify the applicant
in writing of its decision. If the application has been denied in whole or in part, specific reasons for
denial must be included. THIS RESPONSE MUST BE GIVEN WITHIN A REASONABLE TIME AFTER
SUBMISSION OF THE PERMIT APPLICATION.

"APPROVAL OF THE APPLICATION RESULTS IN THE ISSUANCE OF THE MINING PERMIT...."
[Emphasis added]


43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. 788.13 Permit approval or denial actions
(several other sections are enclosed for background).
"In general, Section 514(b) of the Act requires that these actions [regulatory review of a permit
application] be taken within a 'reasonable time'.... The Office is concerned that the phrase
'reasonable time' in this context be applied so as to insure that applications are given meaningful
review and that adequate opportunity for full public participation is provided."


44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule. 787.11
Administrative review.
"4. One commenter suggested that Section 787.11 be modified to state specifically which party has
the burden of proof in the administrative hearing. The Office accepted this comment for nation-wide consistency, and Section 787.11(b)(5) was inserted to place the burden on the party seeking
ot reverse the decisions of the regulatory authority in accordance with general principles of
administrative law."


48 FR 44344 (SEPTEMBER 28, 1983). Final rule. 775.11 Administrative review (derived from
787.11).
   775.11(b)(2). In the situation where a permit for a new operation has been denied: "OSM has
not modified the prohibition against granting temporary relief to such applicants...the status quo in
such situations does not include authorization for mining operations to proceed. OSM continues to
interpret Sections 102(b), (c), (d) and (e); 201(c); 507, 508, and 510 of the Act to require that
coal mining be allowed only after the regulatory authority has carefully scrutinized the application
and determined that the provisions of the Act will be met and that reclamation of the area to be
disturbed is feasible."


51 FR 35248 (OCTOBER 2, 1986). Proposed rules. Special rules applicable to surface coal mining
hearings and appeals. Review of Approval or Disapproval of Applications for New Permits.
"A comment suggested that the requirements of 30 USC 1264(c) that a hearing be held within
thirty days of the filing of a request for review and that a written decision be issued within thirty
days after the hearing should be able to be waived because administrative review of many
technical issues cannot realistically be conducted within these time limits and because the parties
should be allowed time to resolve their differences by settlement. 43 CFR 4.1364(b) has been
revised to authorize an administrative law judge to allow more time to convene a hearing and to
authorize the administrative law judge or the Board to allow more than thirty days to issue a
written decision upon motion signed by all parties. 43 CFR 4.1268 and 4.1369 have been revised
accordingly."


52 FR 39521 (OCTOBER 22, 1987). Final rule. Special rules applicable to surface coal mining
hearings and appeals.  
   The final rule implemented the proposed rule, as indicated above.


56 FR 2139 (JANUARY 22, 1991). Final rule. Special rules applicable to surface coal mining
hearings and appeals.
"(7) 43 CFR 4.1364
"It was proposed to amend 43 CFR 4.1364 to provide that unless all parties agree to an extension
or waiver, the Administrative Law Judge shall commence a hearing within 30 days of the filing of a
request for review of an OSMRE decision and notify the applicant or permittee and all interested
parties of the time and place of the hearing. There were no comments on this proposed change, so
it is adopted.

"(8) 43 CFR 4.1365
"I was proposed to amend 43 CFR 4.1365 to provide that the filing of a request for review would
not stay the effectiveness of the OSMRE decision pending completion of administrative review.
There were no comments on this proposed change, so it is adopted."


OSM DIRECTIVE, Subject No. INE-6, Transmittal No. 163, "Informal Public Hearing Under 30 CFR
843.15" (Issued 3/24/83).
   Enclosed for background.


NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, WEST ELK COAL CO., INTERVENOR, 94
IBLA 269, IBLA 83-757 (November 18, 1986).
"Under the Act a person cannot undertake surface coal mining operations on lands on which such
operations are regulated by a state without obtaining a permit issued by the appropriate regulatory
authority. 30 USC Sec. 1252(a). Section 510(b) of the Act provides that no permit or revision
application shall be approved unless the application affirmatively demonstrates and the regulatory
authority finds in writing that all necessary requirements of the Act have been met. 30 USC Sec.
1260(b) (1982). Section 514 of the Act governs the permit application approval or disapproval
process. 30 USC Sec. 1264 (1982). The application may be approved or disapproved in whole or in
part. 30 USC Sec. 1264(b) (1982). If the application is approved, the permit shall issue. 30 USC
Sec. 1264(c) (1982). If the application is disapproved, specific reasons for disapproval must be set
forth. Id. Administrative challenges to approval or denial are regulated by 30 USC Sec. 1264(c)
(1982), which establishes rigorous time limits for requesting a hearing..., for holding the hearing...,
and for issuance of a decision...."


AMERICAN DRUGGISTS INSURANCE CO. v COMMONWEALTH DEPT., 670 SW 2d 485 (Ky Ct App
1984).
"The appellant's final argument is that the order of the Department was issued contrary to the law
and is therefore invalid. The sole support of this contention is KRS 224.081 (now KRS 224.081(1))
which provides that a hearing officer shall have thirty days after the conclusion of a hearing to
make a report and recommendation to the secretary of the Department. In this case the hearing
was concluded on October 6, 1980, but the required report was not made until April 30, 1981. We
agree with the appellant that the hearing officer did not strictly adhere to the statutory language
but find this failure to be harmless error. The appellant did not request or demand the hearing
officer to file his report and the parties' rights were not impaired by the delay. Accordingly, we
admonish this tardy practice and encourage more prompt action by hearing officers, but in this
particular case we find that any error was harmless and may be disregarded."


NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET v ADAMS, 873 SW 2d 834
(Ky Ct App 1993).
   The state circuit court vacated the Cabinet's finding of guilt of violations of KySMCRA. This
decision was based on the fact that "in the administrative proceeding, an administrative summons
notifying the appellee of a request for a formal administrative hearing had not been issued within
thirty days of the filing and mailing of the preliminary hearing officer's report." This "constituted a
'jurisdictional defect,' depriving the appellant of the authority to hold a formal hearing."

   The circuit court's ruling was reversed and the matter remanded to the Cabinet for "an order
reinstating its original judgment." The ruling was based "on more than one reason": "the [circuit]
court did not even make findings supporting the allegations contained in appellee's motion, relying
instead on what it supports to be a jurisdictional defect in the formal administrative hearing." In
addition, the appellate court found that the Cabinet had made its request for a formal hearing
within the time set by the regulations.


ATTACHMENTS
A.   H.R. REP. 1445 (H.R.13950), 94th Cong, 2nd Sess 117 (August 31, 1976). Section-by-Section Analysis.
B.   43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. 788.13 Permit approval or denial
     actions (several other sections are enclosed for background).
C.   44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule. 787.11
     Administrative review.
D.   48 FR 44344 (SEPTEMBER 28, 1983). Final rule. 775.11 Administrative review (derived
     from 787.11).
E.   51 FR 35248 (OCTOBER 2, 1986). Proposed rules. Special rules applicable to surface coal
     mining hearings and appeals. Review of Approval or Disapproval of Applications for New
     Permits.
F.   52 FR 39521 (OCTOBER 22, 1987). Final rule. Special rules applicable to surface coal
     mining hearings and appeals.  
G.   56 FR 2139 (JANUARY 22, 1991). Final rule. Special rules applicable to surface coal mining
     hearings and appeals.
H.   OSM DIRECTIVE, Subject No. INE-6, Transmittal No. 163, "Informal Public Hearing Under
     30 CFR 843.15" (Issued 3/24/83).
I.   NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, WEST ELK COAL CO.,
     INTERVENOR, 94 IBLA 269, IBLA 83-757 (November 18, 1986).
J.   AMERICAN DRUGGISTS INSURANCE CO. v COMMONWEALTH DEPT., 670 SW 2d 485 (Ky Ct
     App 1984).
K.   NATURAL RESOURCES AND ENVIRONMENTAL PROTECTION CABINET v ADAMS, 873 SW
     2d 834 (Ky Ct App 1993).


Research conducted by: Joyce Zweben Scall
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Office of Surface Mining
1951 Constitution Ave. N.W.
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202-208-2719
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