COALEX REPORT 4

	Coalex Report 4

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 - 4
July 31, 1984

Charles Kurtz
Office of General Counsel
Natural Resources and Environmental Protection Cabinet
Frankfort, Kentucky 40601

TOPIC: CORPORATE OFFICER LIABILITY

INQUIRY: Under SMCRA, when a corporate permittee is in violation, the corporate officers can be
held liable.  When should the regulatory authority send an assessment to the corporate officer
and how much due process is he entitled to? (SMCRA Sec. 518(f), 30 USC 1268(f); Kentucky -
350: 990 subpar. 9)

SEARCH RESULT: See below.

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

   A search of the COALEX Library pertaining to implementation of the provisions of Sec. 518(f) of
SMCRA was conducted.  The basic procedural requirements for state program implementation of
Sec. 518(f) are set forth in 30 CFR Sec. 840.13.  This section provides that the state procedural
requirements shall be "the same as or similar to those provided in Sections 518 and 521 of the
Act...and consistent with Parts 843 and 845 and Subchapters G and J" of the federal regulations. 
Paragraph (d) of Sec. 840.13 also provides that:

"Nothing in the Act or this part shall be construed as eliminating any additional enforcement
rights or procedures which are available under State law to a State regulatory authority, but
which are not specifically enumerated in Sections 518 and 521 of the Act."

   OSM has indicated reliance on Sec. 518(i) of the Act to require state programs to include
penalties and procedures of Sec. 518 of SMCRA.  (47 FR 35624 (AUGUST 16, 1982)) Federal
procedures for assessment of civil penalties are contained in 30 CFR Secs. 845.17 through
845.20.

   The federal regulations do not clearly indicate the procedures for initiating an action against a
corporate officer for a violation under Sec. 518(f).  Presumably, the regulatory authority would
issue a separate Notice of Violation to the corporate officer for such violations.  Sec. 845.17 of the
federal regulations provides for the subsequent issuance of a proposed assessment within 30
days.  The impact of a failure to issue such an assessment within 30 days is covered under 30
CFR Sec. 845.17(b)(2).

   A COALEX search was previously conducted of cases where the administrative agency failed to
issue the proposed assessment within 30 days.  COALEX STATE INQUIRY REPORT - 2, attached,
contains the results of this search.

   An additional search was conducted of the COALEX Library for documents relating to legislative
intent of Sec. 518(f) of SMCRA and the conflict between corporate law protection and SMCRA
liability of corporate officers.  No documents were identified specifically relating to this issue.

   Two documents were found that may be tangentially useful in analysis of these provisions. 
These documents are from the Subcommittee Hearings on Bills leading to the passage of P.L. 95-87.  The first is testimony before the House Subcommittee on Energy and the Environment on
February 28, 1977.  The second is similar testimony before the Senate Subcommittee on Public
Lands and Resources.  Copies of these documents are attached for reference.


ATTACHMENTS
A    Excerpt from Hearing conducted by the House Subcommittee on Energy and the
     Environment (FEBRUARY 28, 1977).
B    Excerpt from Hearing conducted by the Senate Subcommittee on Public Lands and
     Resources.
C    COALEX STATE INQUIRY REPORT - 2.


Search conducted by: Michael Tucker

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202-208-2719
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