COALEX REPORT 323

	Coalex Report 323

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 - 323
April, 1995

Roger Hall
Division of Environmental Protection
10 McJunkin Road
Nitro, WV 25143

TOPIC: DEFINITION OF: "ALL ANTICIPATED MINING IN CUMULATIVE IMPACT AREA" (Includes
COALEX Report No. 152)

INQUIRY: Under the cumulative hydrologic impact assessment (CHIA) regulations, please locate
material that discusses the meaning of "all anticipated mining".

SEARCH RESULTS: An existing COALEX Report consisting of decisions that rule on various aspects
of probable hydrologic consequences and CHIAs was updated/expanded by research using the
COALEX Library and other LEXIS materials. The materials retrieved include additional SMCRA-related cases and Federal Register preambles discussing the rationale for final federal regulations.

  A copy of the items listed below are attached, as indicated.

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

COALEX STATE INQUIRY REPORT - 152, "Challenges to cumulative hydrologic impact assessments
(CHIAs)" (1990).
   Included as part of this Report are Interior administrative decisions, as well as state and federal
cases. All of the decisions that are part of this Report are listed under ATTACHMENTS, below;
however, only these three items are included here:

NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), ET AL. v OSM, ATLANTIC RICHFIELD CO.
AND STATE OF COLORADO, 89 IBLA 1, IBLA 83-757 (IBSMA 81-83) (September 27, 1985, as
amended by November 18, 1986 decision).

NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. v OSM AND WEST ELK COAL CO, 94 IBLA
269, IBLA 83-757 [IBSMA 81-83] (November 18, 1986, amends September 27, 1985 decision).

Excerpts from NATIONAL WILDLIFE FEDERATION (NWF), ET AL. v HODEL, 839 F 2d 694 (DC Cir
1988).


ADDITIONAL MATERIALS
The following items update/expand the materials included with Report - 152:


44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule.
   Parts 779 Permit application-Minimum requirements for information on environmental resources
and 780 Permit application-Minimum requirements for reclamation and operation plan are enclosed
for background.


48 FR 14814 (April 5, 1983). Final rule. Definitions and terminology.
   The rule amended definitions of "affected area" and "permit area". It is enclosed for background.


48 FR 43956 (SEPTEMBER 26, 1983). Final rules. Program hydrology permitting and performance
standards.
   The second part of the definition of "cumulative impact area" (Section 701.5), clarified "the
meaning of the term 'anticipated mining' and identifies the minimum extent of mining, both
existing and proposed, which must be included in the CHIA evaluation."

"In the final rule, OSM adopts a technically and environmentally sound definition for 'anticipated
mining' that avoids requiring the regulatory authority to attempt to assess the hydrologic impacts of
operations that are merely speculative rather than actually anticipated, while assuring that all
operations receive thorough analysis prior to commencement of mining. The definition includes all
operations which have a reasonable expectation of receiving regulatory authority approval to mine
and for which there is sufficient mine development information available to allow adequate
analysis."


48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Information requirements of applications.
   Some discussion of 'anticipated mining' appears under Sections 773.15(c) Written findings for
permit approval and 773.19(d) Right of renewal.


IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 620 F Supp 1519 (D DC 1985).
   See "I. Hydrology and Geology Permitting".


53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Probable hydrologic consequences determination.
   This preamble discusses amendments to the PHC determination required in an application for a
surface coal mining permit. The  amendments were prepared in response to a district court
decision.


NATIONAL WILDLIFE FEDERATION v LUJAN, 31 ERC (BNA) 2034, 21 ELR 20135. U.S. Dist LEXIS
11541 (D DC 1990).
   See "VIII. Probable Hydrologic Consequences".


ATTACHMENTS
1.   COALEX STATE INQUIRY REPORT - 152, "Challenges to cumulative hydrologic impact
     assessments (CHIAs)" (1990).
      A.  NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), ER AL. v OSM, 4 IBSMA 4,
          IBSMA 81-83 (1982).
      B.  NATURAL RESOURCES DEFENSE COUNCIL, INC. (NRDC), ET AL. v OSM, ATLANTIC
          RICHFIELD CO. AND STATE OF COLORADO, 89 IBLA 1, IBLA 83-757 (IBSMA 81-83)
          (September 27, 1985, as amended by November 18, 1986 decision).
      C.  NATURAL RESOURCES DEFENSE COUNCIL, INC., ET AL. v OSM AND WEST ELK
          COAL CO, 94 IBLA 269, IBLA 83-757 [IBSMA 81-83] (November 18, 1986, amends
          September 27, 1985 decision).
      D.  THE HOPI TRIVE v OSM AND PEABODY COAL CO., Docket No. TU 6-3-PR (1986).
      E.  FRABK STEBLE v OSM, Docket No. DV 7-2-PR (1987).
      F.  CITIZENS ORGANIZED AGAINST LONGWALLING v OHIO DEPT. OF NATURAL
          RESOURCES, 41 Ohio App 3d 290, 535 NE 2d 687 (Ohio Ct App 1987).
      G.  VILLAGE OF PLEASANT CITY v DIV. OF RECLAMATION, No. CA-835, slip op (Ohio Ct
          App 1987).
      H.  OOTEN, ET AL. v FAERBER, AS COMMISSIONER, WEST VITGINIA DEPT. OF
          ENERGY, AND MAGNET COAL, INC., 383 SE 2d 774 (W Va 1989).
      I.  Excerpts from NATIONAL WILDLIFE FEDERATION (NWF), ET AL. v HODEL, 839 F
          2d 694 (DC Cir 1988).
      J.  LOUISIANA ENVIRONMENTAL SOCIETY (LES) v BRINEGAR, SECRETARY, DEPT. OF
          TRANSPORTATION, 407 F Supp 1309 (WD La 1976).
      K.  MINNESOTA PUBLIC INTEREST RESERACH GROUP v BUTZ, 541 F 2d 1292 (8th Cir
          1976).
      L.  ENVIRONMENTAL DEFENSE FUND, INC. v COSTLE, 439 F Supp 980 (ED NY 1977).
      M.  STATE OF MISSOURI, EX REL. v DEPT. OF THE ARMY, CORPS OF ENGINEERS, 526
          F Supp 660 (WD Mo 1980).
      N.  CITIZENS COUNCIL OF DELAWARE COUNTY v BRINEGAR, 619 F Supp 52 (ED Pa
          1985).
      O.  OREGON NATURAL RESOURCES COUNCIL (ONRC) v LYNG, 1988 U.S. Dist LEXIS
          17264, 18 ELR 21503 (D Or 1988).   
2.   44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule.
3.   48 FR 14814 (APRIL 5, 1983). Final rule. Definitions and terminology.
4.   48 FR 43956 (SEPTEMBER 26, 1983). Final rules. Program hydrology permitting and
     performance standards.
5.   48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Information requirements of applications.
6.   IN RE PERMANENT SURFACE MINING REGULATION LITIGATION, 620 F Supp 1519 (D DC
     1985).
7.   53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Probable hydrologic consequences
     determination.
8.   NATIONAL WILDLIFE FEDERATION v LUJAN, 31 ERC (BNA) 2034, 21 ELR 20135. U.S. Dist
     LEXIS 11541 (D DC 1990).


Research conducted by: Joyce Zweben Scall

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