COALEX STATE INQUIRY REPORT - 69
April 28, 1986
Barbara W. Roberts
Utah Attorney General's Office
124 State Capitol
Salt Lake City, Utah 84114
TOPIC: REGULATION OF COAL PROCESSING PLANTS
INQUIRY: What states have amended their regulations to comply with the July, 1985 revisions of
the federal program?
SEARCH RESULTS: See below.
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HISTORY
The Secretary's duty to regulate off-site coal mining support facilities was examined at IN RE
PERMANENT SURFACE MINING REGULATION LITIGATION II, Civil Action No. 79-1144, slip op.,
at 15-25 (DDC July 6, 1984) [hereinafter the "July, 1984 opinion"]. At that time, the Secretary
actively regulated "coal processing" facilities, regardless of location, if the facilities were operated
in connection with a mine. (July, 1984 opinion at 16) However, the Secretary limited the definition
of "coal processing" to processing which separates coal from its impurities. (Id.) Other types of
coal preparation facilities, including coal loading, crushing, and sizing facilities, were regulated
only if located "at or near" the mine site. (Id.) Also, certain types of "support facilities" were
regulated only if they were "geographically proximate" to the mining areas. (Id. at 20)
In the July, 1984 opinion, the court held the regulations improperly narrowed the scope of the
Secretary's jurisdiction over off-site facilities. The court stated that the regulations could not limit
"the Secretary's jurisdiction over leaching, physical processing, or chemical processing when these
operations do not involve the separation of coal from its impurities." (Id. at 20) Since the statute
contemplated that those types of off-site facilities would be regulated, the Secretary's definitions
of "coal preparation", "coal processing", and "coal preparation plant" were remanded. (Id. at 19-20) In a footnote, the court also indicated that the definition of "surface coal mining operations"
should be amended to clearly reflect the court's holding with regard to off-site processing
facilities. (Id. at n. 17) Moreover, the court determined that the definition of "support facilities"
with its geographic proximity test, could not stand.
In response to the July, 1984 opinion, the Office of Surface Mining Reclamation and
Enforcement (OSM) issued an "interim final rule". (50 FR 28180 (1985)) At the same time, OSM
published the identical rule as a proposal. (Id.) The rule clarifies the regulation of facilities which
leach, or which chemically or physically process coal, or which result from or are incident to a
regulated facility, and which do not have an element of proximity.
The interim final rule became effective on September 9, 1985. Under the interim rule, changes
are made to regulatory definitions found in both 30 CFR 700.5 and 30 CFR 701.5. Also,
amendments to 30 CFR 827 were made, allowing the use of interim performance standards for
coal preparation plants until permanent program permits are issued for the plants. Finally,
changes were made to 30 CFR 785.21, which deals with permitting coal preparation plants, to
allow operators a reasonable time to secure permits for plants which have only recently become
subject to regulation under the Act.
AMENDMENTS TO SURFACE COAL MINING-OPERATIONS DEFINITION
The language of the Secretary's 1983 definition of "surface coal mining operations" followed
very closely the statutory definition of surface coal mining operation" found in Sec. 701(28)(A) of
the Act. In pertinent part, the regulatory definition read as follows:
" [S]urface coal mining operations' means--
(A) Activities conducted on the surface of lands in connection with a surface coal mine or, subject
to the requirements of section 516 of the Act, surface operations and surface impacts incident to
an underground coal mine, the products of which enter commerce or the operations of which
directly or indirectly affect interstate commerce. Such activities include excavation for the
purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop
removal, box cut, open pit, and area mining; the uses of explosives and blasting; in situ
distillation, retorting, leaching, or other chemical or physical processing; and the cleaning,
concentrating, or other processing or preparation of coal. Such activities also include the loading
of coal for interstate commerce at or near the mine site...." ((30 CFR 700.5 (1983) - excerpt
from 50 FR 28180 (1985))
In the interim final rule, OSM amended the definition as follows:
"This interim final rule revises the 1983 definition in accordance with the court's interpretation of
the statutory definition . . . . Specifically, the comma between distillation and retorting will be
replaced by an or' and a semicolon will be placed after the phase in situ distillation or retorting'.
This change will mean that leaching, chemical or physical processing' will no longer be limited by
the phrase in situ'. Thus, these operations will be regulated wherever they occur." (50 FR 28180
(1985)).
AMENDMENTS TO DEFINITIONS OF 30 CFR 701.5
OSM further responded to the July, 1984 opinion by deleting the definition of "coal processing
or preparation" and adopting instead a definition of "coal preparation". OSM also made changes
to the definition of "coal preparation plant" and suspended the definition of "support facilities".
Although the July, 1984 opinion did not specifically remand the definition of "support facilities",
the definition previously contained an element of proximity, which was contrary the holding of the
July, 1984 opinion. Since OSM decided that the definition of "support facilities" was not needed,
the definition was suspended rather than amended. More specifically, OSM took the following
actions in the interim rule:
"1. Coal preparation. This rule will replace the 1983 definition of the phrase coal preparation or
coal processing' which was formulated on the basis of OSM's previous interpretation of Sec.
701(28)(A) of the Act. Under the 1983 rules, coal preparation or coal processing' meant the
cleaning concentrating, or other processing or preparation of coal in order to separate coal from
its impurities.' In accordance with the District Court's decision, this rule deletes the definition of
coal processing or preparation'. In its place, the Department adopts a new definition of the term
coal preparation'. Under the new definition, coal preparation' means the chemical or physical
processing and the cleaning, concentrating or other processing or preparation of coal. Facilities
which do not separate coal from its impurities will be included in this definition.
"2. Coal preparation plant. The Department is revising the definition of coal preparation plant' in
order to track the revised definition of coal preparation discussed above.
"3. Support facilities. The Department is suspending the definition of support facilities for several
reasons. First, this is being done to implement the July 6, 1984, District Court decision in IN RE:
PERMANENT SURFACE MINING REGULATION LITIGATION II, No. 79-1144 (DDC 1984). There
the Court ruled that the determination of whether a facility was subject to the Act cannot include
an element of proximity. The definition of support facilities adopted in 1983 included an element
of proximity. Accordingly, OSM is suspending the definition. OSM has determined that no
definition of support facilities is needed. OSM had none from 1977 to 1983 . . . . [A]fter careful
reexamination, and in light of the Court's opinion, the department has determined that there is no
need to amplify the language in the Act with respect to the meaning of activities that are
resulting from or incident to' a regulated activity. Furthermore, since support facilities are
subject to the same performance standards as the mine they support, deletion of the definition
eliminates possible confusion over whether support facilities are subject to different performance
standards." (50 FR 28180 (1985))
AMENDMENTS TO 30 CFR 785.21
OSM accomplished several objectives with the amendments to Sec. 785.21. First, coal
preparation plants that were not subject to regulation prior to the July, 1984 opinion are given
eight months from the effective date of the interim final rule in which to secure a permit. Second,
states whose programs would preclude permitting and regulating these facilities were directed to
notify OSM within 60 days from the rule's effective date. Third, within 90 days from the rule's
effective date, states must submit a schedule of actions whereby the state program will
undertake regulation and permitting for all coal preparation plants in the state's jurisdiction.
Fourth, coal preparation plants in these states will be permitted in accordance with the state
schedule rather than the Federal program's eight month scheme. Fifth, extension of the deadline
is allowed where operators have timely applied for permits and are complying with performance
standards found at Sec. 827.13, and the regulatory authority has not issued or denied permit.
More detail on OSM's actions is provided as follows:
"New paragraph (d)(1) of section 785.21, requires any persons who plan to operate, after eight
months from the effective date of this rule, a coal preparation plant which was not subject to the
regulations of 30 CFR Chapter VII prior to July 6, 1984, to apply for a permit no later than two
months after the effective date of the rule.
"New paragraph (d)(2) contains an important exception to the requirements of paragraph (d)(1).
It provides that those States with State programs that have statutory or regulatory prohibitions
precluding the issuance of permits to facilities covered by paragraph (d)(1) shall notify OSM
within 60 days of the effective date of this rule that a program change is necessary. These States
must then establish a timetable of this action to be taken in order to adopt appropriate measures
and undertake permitting actions for all of the coal preparation plants located within their
jurisdiction. The schedule is to be submitted to OSM for approval within 90 days of effective date
of this rule. Operators must apply for permits in accordance with that schedule.
"New Paragraph (e) of section 785.21 provides that any person operating a coal preparation plant
made subject to regulation by the July 6, 1984, decision and not subject to prohibition by 30 CFR
761.11 will be allowed to continue to operate without a permit until eight months from the
effective date of this rule. Such persons will be allowed to operate past the eighth month
deadline if (1) they have timely filed a permit application pursuant to paragraph (d)(1) or
pursuant to a State imposed schedule specified in paragraph (d)(2); (2) the regulatory authority
has yet to issue or deny the permit, and (3) the person complies with the applicable performance
standards of section 827.13 of 30 CFR Chapter VII.
"OSM has determined not to employ the ordinary State program review and notification process
of 30 CFR 732.17 to ensure that the changes to the definition of the term surface coal mining
operations' and the permitting schedule in Section 785.21(d)(2) will be most effectively
implemented. This is being done because of the ease of notifying all States at once in this notice
and to allow States the first opportunity to determine whether their programs already allow for
implementation of these rules.
"Under the approach adopted, States are required to review their own programs and advise OSM
if they need to make program amendments to implement these rules. Because the States are in
a better position to interpret their own programs, this will avoid possible misunderstandings and
unnecessary interpretative problems." (50 FR 28180 (1985))
AMENDMENTS TO PART 827
Finally, OSM set forth an amendment to establish interim performance standards under Part
827 of the regulations. The rationale for the amendment was given as follows:
"Part 827 of 30 CFR sets forth the permanent program performance standards for coal
preparation plants not within the permit area for a specific mine. Rather than make the
permanent program standards immediately applicable to the coal preparation plants made
subject to regulation by the District Court's decision, OSM is amending Part 827 so that interim
performance standards will apply to such plants until the permanent program permit for such
plant is issued. Such a provision is reasonable because the permanent program performance
standards are tied to the issuance of a permit. The interim program performance standards are
keyed to direct enforcement not based upon the existence of a permit." (50 FR 28180 (1985))
STATE RESPONSES
VIRGINIA
On August 19, 1985 Virginia notified OSM that it could not legally regulate and permit facilities
which leach, chemically process, or physically process coal but do not separate coal from its
impurities. (50 FR 47388 (1985)) On September 4, 1985, Virginia submitted a proposed
amendment to its state program which would add definitions, identical to the definitions of 30
CFR 701.5 as amended on July 10, 1985, for "'coal preparation' or coal processing"' and "coal
preparation plant." (Id.) The Virginia amendments did not require that mere loading facilities, not
engaged in physical processing of coal and not located at or near the mine site, be regulated.
(Id.)
Receipt of the proposed amendments was announced on September 20, 1985. (50 FR 38137-38139 (1985)) The public comment period closed on October 21, 1985, and OSM gave final
approval to the Virginia amendments on November 18, 1985. (50 FR 47388 (1985))
OKLAHOMA
On September 11, 1985, Oklahoma submitted a proposed amendment to its state program
which would add definitions, identical to the definitions of 30 CFR 700.5 and 30 CFR 701.5 as
amended July 10, 1985, for "surface coal mining operations", "coal preparation" and "coal
preparation plant". OSM announced receipt of the amendments and invited public comment on
November 29, 1985. (50 FR 49072 (1985)) The public comment period closed on December 30,
1985, and OSM gave final approval to the Oklahoma amendments on January 16, 1986. (51 FR
2360 (1986))
KENTUCKY
On March 31, 1986, OSM reopened the comments period on amendments pertaining to
Kentucky's regulation of coal processing plants. (51 FR 10886 (1986)) The Kentucky
amendments have extensive background because they were originally submitted before the July,
1984 opinion.
On May 26, 1982, Kentucky submitted its first amendment proposals. These amendments
would have confined "coal processing operations" to operations where coal is separated from its
impurities and wastes are generated. On September 17, 1985, OSM disapproved these
amendments to the Kentucky program. (50 FR 37656 (1985)) On the same date, OSM published
a proposed rule, seeking comment on the announced intention to preempt and supersede
Kentucky Revised Statute (KRS) 350.060(22). (50 FR 37299 (1985)) The proposal to supersede
KRS 350.060(22) was finalized on November 20, 1985, to be effective December 1, 1985. (50 FR
47728 (1985))
On December 3, 1985, Kentucky submitted emergency amendments to modify requirements
pertaining to coal processing plants. These amendments became applicable as of December 1,
1985 and accomplished the following:
1. " Kentucky is amending its definition of coal processing plant' to reflect recent Federal
rulemakings which respond to a District Court decision. The court ruled that the Federal rules
excluded from regulations facilities that are required to be regulated under SMCRA. Kentucky's
amended definition includes facilities where coal is subjected to chemical or physical processing,
or cleaning, crushing, sizing or other processing or proportion." (405 KAR 7:0203(18))
2. " Kentucky is making substantial modifications to its permitting requirements for coal
processing plants not located within the permit area of a specific mine. Requirements for
applicability are changed and new requirements are established for previously exempted facilities.
New application requirements are added, and an applicability date of December 1, 1985, is
established." (405 KAR 8:050E)
3. " Kentucky is deleting existing performance standards for offsite coal processing plants and
replacing them with new standards. The revised rules establish applicability of the rules.
Performance standards are established by referencing other Kentucky requirements that shall or
shall not apply. Requirements for protection of nearby underground mining activities and
replacement of water supply are provided. Special standards are established for previously
exempted areas." (405 KAR 20.070) (51 FR 1517 (1985))
These amendments are currently the subject of a comments period which was noticed on
March 31, 1986. (51 FR 10886 (1986))
WEST VIRGINIA
While West Virginia did not act to amend its regulations with regard to coal preparation
facilities, OSM did act to preempt and supersede certain portions of the West Virginia program.
On May 3, 1985, the Governor of West Virginia signed into law a bill known as the West Virginia
Energy Act (WVEA). This Act repealed the West Virginia Surface Coal Mining and Reclamation Act
and incorporated it into the WVEA, albeit in a somewhat altered fashion. On July 11, 1985, OSM
approved the WVEA as an amendment to the West Virginia program, with certain exceptions. (50
FR 28316-28324 (1985)) One of the areas of exception was the definition of "surface-mining
operations" under the WVEA. (50 FR 28343 (1985))
On August 29, 1985, OSM issued a final rule, preempting and superseding several sections of
the WVEA, including the section defining "surface mining operations". (50 FR 35082 (1985)) The
definition and changes made to the definition are as follows:
"The areas upon which the above activities occur or where such activities disturb the natural land
surface. Such areas shall also include any adjacent land, the use of which is incidental to any
such activities; all lands affected by the construction of new roads or the improvement or use of
existing roads to gain access to the site of such activities and for haulage; and excavations,
workings, impoundments, dams, ventilation shafts, entryways, refuse banks dumps, stockpiles,
overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage
areas, processing areas, shipping areas and other areas upon which are sited structures, facilities,
or other property or materials on the surface, resulting from or incident to such activities:
Provided, That such activities do not include the extraction of coal incidental to the extraction of
other minerals where coal does not exceed sixteen and two-thirds percent of the tonnage of
minerals removed for purposes of commercial use of sale, or coal prospecting subject to section
seven of this article: Provided, however, That permanent facilities not within the area being
mined and not directly involved in the excavation, loading, storage, or processing of the coal shall
not be subject to the provisions of this article. Such facilities include, but are not limited to,
offices, garages, bathhouses, parking areas, and maintenance and supply areas.
"The specific wording being preempted and superseded is:
"Provided, however, That permanent facilities not within the area being mined and not directly
involved in the excavation, loading, storage, or processing of the coal shall not be subject to the
provisions of this article. Such facilities include, but are not limited to, offices, garages,
bathhouses, parking areas, and maintenance and supply areas. (50 FR 35082 (1985))
ATTACHMENTS
A 50 FR 28189 (1985)(proposed rule).
B 50 FR 28180 (1985)(interim final rule).
C 50 FR 47388 (1985).
D 51 FR 2360 (1986).
E 50 FR 37656 (1985).
F 50 FR 37699 (1985).
G 50 FR 47728 (1985).
H 51 FR 1517 (1986).
I 51 FR 10886 (1986).
J 50 FR 28316 (1985).
K 50 FR 28343 (1985).
L 50 FR 35082 (1985).
Note: Oversight document not included due to bulk.
Search conducted by: Mary Perdue
