COALEX STATE INQUIRY REPORT - 78
December 15, 1986

Ann Laubach
Division of Reclamation
Department of Natural Resources
4383 Fountain Square Drive
Columbus, Ohio 43224

TOPIC: COAL EXPLORATION: DRILLING

INQUIRY: Please conduct a search of the Federal Register to determine what sort of permitting or
notice requirement is necessary for a coal exploration operation which involves only drilling. What
do some of the other states require in this area?

SEARCH RESULT: Sec. 512 of the Surface Mining Control and Reclamation Act of 1977 (SMCRA)
requires every state or federal program to "include a requirement that coal exploration operations
which substantially disturb the natural land surface be conducted in accordance with exploration
regulations issued by the regulatory authority." The Act then mandates certain types of
information which must be included in these regulations: "(1) the requirement that prior to
conducting any exploration under this section, any person must file with the regulatory authority
notice of intention to explore and such notice shall include a description of the exploration area
and the period of supposed exploration and (2) provisions for reclamation in accordance with the
performance standards in section 515 of this Act of all lands disturbed in exploration, including
excavations, roads, drill holes, and the removal of necessary facilities and equipment." (SMCRA
Sec. 512(a) (1986)) OSM's 1979 regulations expanded upon the Act's requirements and dictated
that all coal exploration operations file a notice of intent to explore. Operations that "substantially
disturb" the land surface were further required to reclaim the area in accordance with the
performance standards at 30 CFR Sec. 815. (44 FR 15351-15352 (1979); 30 CFR Sec. 776.11
(1979))

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   In its 1978 proposed regulations, OSM announced its intention to define "substantially disturb",
since it was not defined in the Act. The basis for this definition was the list found at the end of
Sec. 512(a) of the Act, with the addition of blasting and disposal of earth or other debris. (43 FR
41661, 41669 (1978)) This definition was adopted by OSM in 1979 and read as follows:

"Substantially disturb means, for purposes of coal exploration, to impact significantly upon land,
air or water resources by such activities as blasting, mechanical excavation, drilling or altering
coal or water exploratory holes and wells, construction of roads and other access routes, and the
placement of structures, excavated earth, or other debris on the surface of the land." (44 FR
15311, 15321 (1979))

   In 1983, OSM issued revised rules limiting the requirement for filing notice to only those
operations that "may substantially disturb" the land. A permit requirement was established for
exploration operations where over 250 tons of coal are to be removed; and the definition of
"substantially disturb" was revised by deleting drilling from the list of activities mentioned. In
addition, the coal exploration requirements were moved to Sec. 772. (48 FR 40625 (1983))

   OSM noted in the preamble to its 1983 rules that even though OSM had eliminated the notice
requirement for operations that did not substantially disturb the land, the states could still require
such a notice. (Id.) Further, OSM explained that the revision of the definition of "substantially
disturb" did not necessarily mean that drilling was completely exempted from the coal exploration
requirements; rather, the determination was to be made on a site-specific basis. As OSM
explained in the preamble to the revised regulations:

"[D]rilling may, but need not in every case, result in a substantial disturbance to the natural land
surface. Therefore, while it is not included specifically as a listed activity, the definition as revised
is broad enough to encompass drilling when it does result in such a disturbance. Usually, such a
substantial disturbance would occur when drilling is combined with other activities (e.g., drilling
alongside existing roads versus construction of roads to a drilling site, or the removal of
vegetation and topsoil for the drill pad, in addition to the drilling itself). Whether such activities
result in a substantial disturbance will be determined by the regulatory authorities either on a
case-by-case basis or through guidelines supplementing the State program." (48 FR 40624
(1983))

   OSM's 1983 rules which failed to require notice for all coal exploration operations were
challenged by the National Wildlife Federation in IN RE: PERMANENT SURFACE MINING
REGULATION LITIGATION II, ROUND III. In that case, Judge Flannery remanded to OSM the
rule that did not require all coal exploration to be preceded by the filing of a notice. Judge
Flannery also remanded the rule that did not require a narrative description to be included in the
notice. (IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, ROUND III (slip
op.) At 135-140 (DDC July 15, 1985)) As a result of this decision by Judge Flannery, OSM
suspended Sec. 772.11(a) insofar as it limited the responsibility to submit a notice of intent to
explore to those persons who substantially disturb the natural land surface. Thus, all persons
conducting coal exploration operations are required to file a notice of intent to explore. (51 FR
41952 (1986))


STATE REGULATIONS

   A COALEX search was conducted of six state programs (Illinois, Indiana, Kentucky,
Pennsylvania, Virginia and West Virginia) to compare the ways in which the states handle
exploration notices for drilling. All six states require that some sort of notice be filed with the state
before drilling operations may be conducted. Except where noted below, most states' laws are
similar to the pre-1983 OSM regulations, and thus include drilling in the definition of "substantially
disturb" and require that the requisite notice be filed, whether or not there is a substantial
disturbance. 

   Illinois requires that, in addition to the notice of intent to explore, any person intending to
utilize drilling techniques file "a fully executed  Notice of Intent and Application for Blanket
Authorization to Drill Coal Test Holes' or  Notice of Intent and Application for Individual
Authorization to Drill a Coal Test Hole'". These documents are forwarded to the Oil and Gas
Division of the Illinois regulatory authority. (Ill. Surface Coal Mining Land Conservation and
Reclamation Act, Rules and Regs., Sec. 1776.11(b)(5) (1982))

   In a conversation with Mr. Kenes C. Bowling, Executive Director of the Interstate Mining
Compact, Mr. George Miller, Field Director of OSM in Tennessee, outlined the requirements of the
Tennessee federal program. Mr. Miller noted that the operator must file a notice of intent with
OSM for any kind of exploration operation, including drilling. If any equipment other than a drill is
used, or if more than two acres is disturbed or more than 250 tons of coal is removed, the
operator must file for a permit.


ATTACHMENTS
A    43 FR 41661, 41669 (1978).
B    44 FR 15311, 15321 (1979).
C    48 FR 49624 (2983).
D    Excerpt, IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, ROUND III
     (slip op.) At 135-140 (DDC July 15, 1985).
E    51 FR 441952 (1986).
F    Illinois Surface Coal Mining Land Conservation and Reclamation Act, Rules and
     Regulations Sec. 1776.11 (1982).
G    310 Indiana Admin. Code 12-3-11, 12-5-1 (1982).
H    405 Kentucky Admin. Regs. Sec. 8:020 (1982).
I    Pennsylvania Dept. of Environmental Resources Coal Mining Regs. Sec. 86.131 (1982).
J    Virginia Coal Surface Mining Reclamation Reg. Part V776 (1983).
K    West Virginia Surface Mining Reclamation Regs. Sec. 5 (1983).


Search conducted by: S. Michele Manning