COALEX STATE INQUIRY REPORT - 86
September 3, 1987

Mike Savage
Mine Land Reclamation Division
Centennial Bldg., Room 42
31313 Sherman Street
Denver, Colorado 80203

TOPIC: DEFINITION OF "OFFSITE"

INQUIRY: What is the definition given to the word "offsite" as used in SMCRA?

SEARCH RESULT: The specific case addressed by this inquiry concerns the situation where an
operator has caused a slide to occur outside his planned disturbed area but inside his permit area
boundary.  The inquiry then focuses on the meaning given to the term "offsite" as it relates to
these boundaries.

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

   Congress made three references to the term "offsite" in the Surface Mining Control and
Reclamation Act of 1977 (SMCRA).  (SMCRA Sec. 508(a)(13)(A), codified at 30 USC Sec.
1258(a)(13)(A); SMCRA Sec. 515 (b)(10) and (21), codified at 30 USC Sec. 1265 (b)(10) and
(21).)  The most pertinent of these, Section 515(21) requires an operator to:

"Protect offsite areas from slides or damage occurring during the surface coal mining and
reclamation operations, and not deposit spoil material or locate any part of the operations or
waste accumulations outside the permit." (SMCRA Sec. 515(b)(21), 30 USC Sec. 1265(b)(21))

   Clearly, protection of offsite areas is mandated by the Act; however, the term "offsite" is not
defined in the Act nor are the other sections of the Act where "offsite" occurs helpful to an
understanding of the term. They refer only to permit requirements for measures to be taken to
assure the quality of surface and ground water systems both on and off-site (30 USC Sec.
1258(a)(3)(A)) and performance standards to minimize the disturbances to the prevailing
hydrologic balance at the mine site and in associated offsite areas (30 USC Sec. 12645(b)(10)).


LEGISLATIVE HISTORY

   Both the House and the Senate reports in the 95th Congress addressed "offsite" in terms of
preventing damage by slides. The Senate version required the operator to:

"Provide for an undisturbed natural barrier beginning at the elevation of the lowest coal seam to
be mined and extending from the outslope for such distance as the regulatory authority shall
determine shall be retained in place as a barrier to slides and erosion." (S. Rep. No. 128, 95th
Cong., 1st Sess. 27 (1977))

   The House version of this provision (H. Rep. No. 218, 95th Cong., 1st Sess. 32 (1977))
contained language identical to that in the legislation which was eventually enacted. The
conference report contained no explanation as to why the Senate conceded to the House on this
provision.

   An investigation of earlier legislative history indicates that the language as currently included in
the Act was the same as far back as the version approved by a House and Senate Conference
Committee in 1974. (H. Conf. Rep. No. 1522, 93rd Cong., 2d Sess. 36 (1974)) None of these
reports provide any insight into what was meant by the term "offsite".


FEDERAL REGULATIONS

   Definitions for "affected area", "disturbed area" and "permit area" have been promulgated by
the Office of Surface Mining and are contained in 30 CFR Sec. 701.5. However, the term "offsite"
has not been defined by OSM.

   The term "offsite", however, has been discussed in the context of Part 827 - Permanent
Program Performance Standards - Coal Preparation Plants Not Located Within the Permit Area of
a Mine.  Thus, OSM's requirement that any coal preparation plant not within the permit equated
"offsite" with any area outside a permit area.

   Furthermore, in the regulations promulgated to protect the hydrologic balance (30 CFR Sec.
816.41), the reference to offsite in the original Act has been termed "outside the permit area".

   Thus, there appears no question that OSM has interpreted "offsite" to refer to areas located
outside the permit boundary.


COURT DECISIONS

   In agreement with OSM's interpretation is at least one Board of Surface Mining Appeals case,
CARBON FUEL CO., 3 IBSMA 207. In this case, Carbon Fuel had been cited for conducting coal
mining operations that created an imminent danger to the health or safety of the public by
tracking mud from its job onto a public highway. Carbon Fuel contended that since the effects of
the violation occurred offsite, it could not be required to go offsite to correct it. The Board
disagreed and reversed the Administrative law Judge, holding that "the Act contemplates that the
consequences of violations of its requirements may extend off the permit area." (3 IBSMA 207,
213)

   While the search results do not provide a concrete definition for "offsite", it does appear that
legislative history is at least not contradicted (since none really addressed the term) by
promulgated regulations and by the Interior Board of Surface Mining Appeals decision that
"offsite" is equated with any area outside the permit area.


ATTACHMENTS
A    Excerpt, 30 USC Sec. 1258(a)(13(A).
B    Excerpt, 30 USC Sec. 1265(a)(10).
C    Excerpt, 30 USC Sec. 1265(a)(21).
D    Excerpt, S. Rep. No. 128, 95th Cong., 1st Sess. 27 (1977).
E    Excerpt, H. Rep. No. 218, 95th Cong., 1st Sess. 32 (1977).
F    Excerpt, H. Conf. Rep. No. 1522, 93rd Cong., 2d Sess/ 36 (1974).
G    Excerpt, 30 CFR Sec. 827.11.
H    Excerpt, 30 CFR Sec. 816.41.
I    CARBON FUEL CO., 3 IBSMA 207.


Search conducted by Stephen G. Allen