COALEX REPORT 47

	Coalex Report 47

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 - 47
June 13, 1985

Virgil Willett, Director
Alabama Surface Mining Commission
P.O. Box 2390
Jasper, Alabama  35502

TOPIC: 16 2/3 EXEMPTION

INQUIRY: Are there any recent or pending cases pertaining to the 16 2/3 exemption for the
extraction of coal incidental to the extraction of other minerals found at 30 CFR Sec. 700.11(a)(4)
and SMCRA Sec. 701(28)?

SEARCH RESULT: The 16 2/3 exemption was addressed in December, 1984, in COALEX STATE
INQUIRY REPORT - 24 (Report and documentation attached).  At that time no cases were
identified nor have any cases been identified in the present follow-up search.

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

   On June 11, Mr. Ed Bonekemper, Office of the Solicitor, was contacted by phone to determine if
any actions were pending on the 16 2/3 exemption.  He reported that two cases were pending:  a
collection case involving S & H Gravel in Indiana, and an enforcement case involving McNabb Coal
Co. of Oklahoma.  No decision has been reached in either case.

   Mr. Bonekemper also noted that OSM has regulatory action on the exemption pending in the
next few months and will be issuing a proposed rule.  Issues likely to be addressed include:
(1) a definition of "incidental";
(2) location of the coal seam in relation to other minerals;
(3) the percentage of coal involved; 
(4) the two-prong test that the coal extraction be incidental as well as meeting the 16 2/3
criteria; and
(5) the time period to which the 16 2/3 percent exemption applies.


ATTACHMENT
COALEX STATE INQUIRY REPORT - 24, December 3, 1984 with Documentation.


Search conducted by:  S. Michele Manning

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