COALEX REPORT 305

	Coalex Report 305

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 - 305
November, 1994

Tom Roan, Esquire
Attorney General's Office
123 Capitol Building
Cheyenne, Wyoming 82002

TOPIC: "SUBSTANTIAL ECONOMIC LOSS" OR "CONDITIONS BEYOND THE CONTROL OF THE
PERMITTEE" AS REASONS FOR EXTENDING THE INITIATION OF OPERATIONS 

INQUIRY: An permitted operator built an access road and dug monitor wells but did not begin
mining coal because of poor market conditions. The operator wants to transfer the permit to
another company; the second company wishes to renew the permit. Are "poor market conditions"
considered a "condition beyond the control of the permittee" for extending the three year initiation
of operations period? [SMCRA Sec. 506(c) and 30 CFR 773.19(e)]  Should the original permittee
have notified the regulatory authority that it was temporarily ceasing operations? An objector to the
permit renewal complained that the renewal will interfere with adjacent use; is there any
information on SMCRA Sec. 506(d)(1)(C)?

SEARCH RESULTS: The use of COALEX and other LEXIS materials along with existing COALEX State
Inquiry Reports identified relevant material on the several issues raised by this inquiry.  Copies of
the materials listed below are attached. 

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

MARKET CONDITIONS/CONDITIONS BEYOND THE CONTROL OF THE PERMITTEE   
CITY OF SCRANTON v COMMONWEAL OF PA., DER AND DIAMOND COLLIERY CO., 1986 Pa Envirn
LEXIS 11, EHB Docket No. 85-335-W (1986).
  The Board ruled that DER could reissue a surface mining permit to Diamond without waiting for
the ultimate adjudication of the issue of compliance with Scranton's zoning ordinance. Diamond
was unable to commence mining with the original permit due to  litigation over Diamond's local
zoning permit.


A.C.N., INC. v COMMONWEAL OF PA., DER, 1991 Pa Envirn LEXIS 164, EHB Docket No. 89-167-M
(1991).
  The Board sustained the assessment of civil penalties against a corporation operating a municipal
solid waste transfer station in Philadelphia. ACN argued that their violations were caused by
"conditions beyond its control". The Board's ruling provides  good language on the issue.


COALEX STATE INQUIRY REPORT - 172, "Inability to comply (30 CFR 843.18)" (1991). Interior
administrative decisions in which permittees provide reasons why they were unable to comply,
including poor market conditions. Of particular interest are the following opinions:

     CLEAR CREEK COAL CO. v OSM, 101 IBLA 6, IBLA 85-406 (1988). CLEAR CREEK COAL CO.
     v OSM, Docket Nos. NX 1-49-R, NX 1-59-R (1985). SYLLABUS: "Whether particular
     reclamation work is timely must be determined by taking into account the overall
     circumstances of a surface coal mining and reclamation operation."


     GLENN COAL CO. v OSM, Docket No. CH 0-279-R (1984). Glenn Coal received an NOV for
     failing to restore disturbed areas in a timely manner. Glenn Coal had halted its mining
     operations due to unfavorable coal marketing conditions but was planning to reopen the pit.
     The ALJ ruled that an NOV or CO could not be vacated because of the permittee's "inability
     to comply".

     SHAWNEE COAL CO. v OSM, Docket No. In 2-2-R (1981). Among its explanations for failing
     to run drainage from its tipple area through a sedimentation pond, Shawnee stated that it
     was unable to dismantle the tipple equipment due to its inability to sell stockpiled coal fines
     because of the poor market conditions for its coal. The ALJ stated that congressional intent
     made it clear that a permittee's options were to comply with the regulations or "not conduct
     operations".

     COAL ENERGY, INC. v OSM, 105 IBLA 385, IBLA 87-190 (1988). Failure to comply will not
     be excused because of conditions beyond the control of the permittee (drought).


CLEAR CREEK COAL CO. v OSM, Docket No. Nx 5-99-R (1987). 
  As part of its reclamation plan, Clear Creek proposed to remove its coal stockpile "as market
conditions allow, over the next year."


C&N COAL CO. v OSM, 103 IBLA 48, IBLA 86-166 (1988). 
  C&N argued that "there was no negligence since any violation was caused by conditions beyond
[its] control." The Board found that C&N's failure to pass surface drainage through properly placed
sedimentation ponds demonstrated a "lack of concern" on C&N's part and the Board raised the
assigned points for the violation.


MOSCOVICH AND MOSCOVICH MINING CO. v TRYCK, 875 P 2d 1293 (Alaska 1994). [Excerpts]
  Footnote 5 makes reference to stopping mining due to economic conditions. Enclosed for
background.


INITIATION OF OPERATIONS
COALEX STATE INQUIRY REPORT - 249, "Initiation of Operations" (1993). 
  Included here are legislative history materials on SMCRA Sec. 506(c) and 30 CFR 773.19(e) which
require the permittee to commence operations within three years of issuance of the permit.


TEMPORARY CESSATION OF OPERATIONS
COALEX STATE INQUIRY REPORT - 273, "Temporary Cessation of Operations" (1994). 
  Research on 30 CFR 816.131 (Temporary cessation of operations) and 816.132 (Permanent
cessation of operations) retrieved preambles to federal rules, an OSM directive and two related
administrative decisions; however, no items were retrieved that specifically discussed what
constitutes "temporary" cessation.




ATTACHMENTS
A.   CITY OF SCRANTON v COMMONWEAL OF PA., DER AND DIAMOND COLLIERY CO., 1986
     Pa Envirn LEXIS 11, EHB Docket No. 85-335-W (1986).
B.   A.C.N., INC. v COMMONWEAL OF PA., DER, 1991 Pa Envirn LEXIS 164, EHB Docket No. 89-167-M (1991).
C.   COALEX STATE INQUIRY REPORT - 172, "Inability to comply (30 CFR 843.18)" (1991).
     Interior administrative decisions in which permittees provide reasons why they were unable
     to comply, including poor market conditions. Of particular interest are the following
     opinions:
     CLEAR CREEK COAL CO. v OSM, 101 IBLA 6, IBLA 85-406 (1988). 
     CLEAR CREEK COAL CO. v OSM, Docket Nos. NX 1-49-R, NX 1-59-R 
     GLENN COAL CO. v OSM, Docket No. CH 0-279-R (1984). 
     SHAWNEE COAL CO. v OSM, Docket No. In 2-2-R (1981). 
     COAL ENERGY, INC. v OSM, 105 IBLA 385, IBLA 87-190 (1988). 
D.   CLEAR CREEK COAL CO. v OSM, Docket No. Nx 5-99-R (1987). 
E.   C&N COAL CO. v OSM, 103 IBLA 48, IBLA 86-166 (1988). 
F.   MOSCOVICH AND MOSCOVICH MINING CO. v TRYCK, 875 P 2d 1293 (Alaska 1994).
     [Excerpts]
G.   COALEX STATE INQUIRY REPORT - 249, "Initiation of Operations" (1993). 
H.   COALEX STATE INQUIRY REPORT - 273, "Temporary Cessation of Operations" (1994). 


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