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OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

Library of COALEX Research Reports

COALEX Research Reports are the products of research and analysis conducted on specific issues relating to the regulation of Surface Mining Control and Reclamation Act of 1977. The research is conducted in response to requests for information from State Regulatory Authorities, under a cooperative agreement between the Office of Surface Mining (OSM) and the Interstate Mining Compact Commission (IMCC).

COALEX refers to the Library of Surface Mining Materials maintained by OSM in LEXIS-NEXIS and is a major source for the research.

Each Report includes a list of resources which were sent as attachments to the individual who requested the research. To obtain a copy of the attachments or to obtain any additional information, contact Joyce Zweben Scall by phone at 202-686-9138 or by email at JZScall@aol.com.

COALEX STATE COMPARISON REPORT - 210

April 1992

INTERSTATE MINING COMPACT COMMISSION (IMCC)
Herndon, VA 20170

TOPIC:
1. DEFINITION OF OR TEST FOR "VALID EXISTING RIGHTS (VER)";
2. SUBSIDENCE: COMPENSATION FOR DAMAGED STRUCTURES AND WATER SUPPLY

INQUIRY: A survey was conducted of IMCC and non-IMCC members consisting of the following questions:

FOR ALL STATES SURVEYED: VER

  1. What is your state program's definition of or test for VER, e.g., the "good faith/all permits" test or the "takings" test? Please include the state statute or regulation section number. [SMCRA sec. 522(e); 30 CFR 761.5]

FOR STATES WITH UNDERGROUND MINING: SUBSIDENCE

  1. Does your state program contain regulations requiring compensation for or repair of structures (not land) damaged as a result of subsidence? Please include the state statute or regulation section number. [SMCRA sec. 516(b); 30 CFR 817.121(c)]

  2. Does your state program contain regulations requiring the replacement of water supplies damaged as a result of subsidence? Please include the state statute or regulation section number. [SMCRA sec. 717(b)]

SEARCH RESULTS: The survey was conducted using a combination of telephoning and research in the COALEX Library. A summary of the survey follows; tables of responses to the three questions, copies of the state program sections and two related state cases are attached.

VER (21 states surveyed)

  1. The regulations of seven (7) states require persons to have property rights created by a "legally binding conveyance", etc. and (1) to have made a "good faith" attempt to obtain "all permits" or (2) the coal is needed for/adjacent to an ongoing surface coal mine:
    1. Alabama
    2. Indiana
    3. Iowa
    4. Kentucky
    5. Maryland
    6. North Dakota
    7. Oklahoma

  2. Seven (7) states require the "legally binding conveyance" and have the "needed for/adjacent to" language but require the persons to have obtained "all permits" by August 3, 1977:
    1. Arkansas
    2. Colorado
    3. Mississippi
    4. Missouri
    5. Montana
    6. Ohio
    7. Texas

  3. Four (4) states use the "takings" test:
    1. Illinois
    2. Virginia
    3. West Virginia
    4. Wyoming
  4. Two (2) states had regulations which did not fit into these categories:
    1. Pennsylvania requires a person to have "all permits" needed to mine as of August 3, 1977 or to have made a "complete application" by that date. They also do not include the "needed for/adjacent to" language.
    2. Utah regulations state that persons have VER if they demonstrate that property rights to the coal were acquired prior to August 3, 1977, the coal is needed for/adjacent to an ongoing mine.

  5. Louisiana regulations provide VER only for haul roads.

SUBSIDENCE: REPAIR DAMAGE TO STRUCTURES (14 states surveyed)

  1. Thirteen (13) states surveyed have regulations requiring restoration, rehabilitation, replacement of, or compensation for damage to structures as a result of subsidence:
    1. Alabama
    2. Colorado
    3. Illinois
    4. Indiana
    5. Kentucky
    6. Maryland
    7. Ohio
    8. Oklahoma
    9. Texas
    10. Utah
    11. Virginia
    12. West Virginia
    13. Wyoming

  2. Pennsylvania law [Bituminous Mine Subsidence and Land Conservation Act of 1966] is stricter, requiring that mining may not cause any damage to those dwellings in place before April 27, 1966. Dwellings built after that date may purchase subsidence insurance from the state or buy coal support from the operator.

SUBSIDENCE: REPLACE WATER SUPPLY DAMAGED BY UNDERGROUND OPERATIONS (13 states surveyed)

  1. Seven (7) states have regulations requiring underground coal operators to replace damaged water supplies:
    1. Colorado
    2. Indiana*
    3. Maryland
    4. Ohio
    5. Texas
    6. West Virginia
    7. Wyoming

    2. *NOTE: In WIGGINS v BRAZIL COAL & CLAY, 452 NE 2d 958 (Ind 1983), a case involving the loss of water to the Wiggins' pit, the state Supreme Court found for the defendant, stating that there was no evidence "that the defendant's strip mining work was being done with a purpose or intent to injure plaintiffs."

  2. Six (6) states do not have regulations in their programs requiring water supply replacement damaged by underground operations. Three states, noted by asterisks, have proposed or will proposed legislation to require water replacement for underground mining:
    1. Alabama
    2. Illinois
    3. Kentucky*
    4. Pennsylvania*
    5. Utah
    6. Virginia*

Survey conducted and compiled by: Joyce Zweben Scall


TABLE 1: VALID EXISTING RIGHTS

STATE

SECTION NO.

VER DEFINITION OR TESTS

ALABAMA

880-X-2A-.06 (1986)

Good faith/all permits; Legally binding conveyance; Needed for/adjacent to

ARKANSAS

761.5 (1987)

All permits; Legally binding conveyance; Needed for/adjacent to

COLORADO

1.04 (149)(1) (1989)

All permits; Legally binding conveyance; Needed for/adjacent to

ILLINOIS

62 IAC 1701 Appendix A (1991)

Prohibitions effect a takings of person's property

INDIANA

310 IAC 12-0.5-139 (1991 ?)

Good faith/all permits; Legally binding conveyance; Needed for/adjacent to

IOWA

4.1(2) eh(1) (1980)

Good faith/all permits; Legally binding conveyance; Needed for/adjacent to

KENTUCKY

405 KAR 24:001E Sec. 1(57) (1991 ?)

Good faith/all permits; Legally binding conveyance; Needed for/adjacent to

LOUISIANA

100.3(153) (1980)

VER regulations are for haul roads only.

MARYLAND

COMAR 08.13.09.10 (1980)

Good faith/all permits; Legally binding conveyance; Needed for/adjacent to

MISSISSIPPI

161.5 (1979)

All permits; Legally binding conveyance; Needed for/adjacent to

MISSOURI

10 CSR 40.5.010 (1989)

All permits; Legally binding conveyance; Needed for/adjacent to

MONTANA

26.4.1132 (1988)

All permits; Legally binding conveyance; Needed for/adjacent to

NORTH DAKOTA

69-05.2-01-02 (1988)

Good faith/all permits; Legally binding conveyance; Needed for/adjacent to

OHIO

1501:13-1-02 (1989)

All permits; Legally binding conveyance; Needed for/adjacent to

OKLAHOMA

761.5 (1982)

Good faith/all permits; Legally binding conveyance; Needed for/adjacent to

PENNSYLVANIA

86.1 (1989)

All permits or complete permit application; Legally binding conveyance

TEXAS

051.07.04.070 (1980)

All permits; Legally binding conveyance; Needed for/adjacent to

UTAH

UMC 614-100.200 (1990)

Property rights to coal; Needed for/adjacent to; Authorized coal mine exists on area; Legally binding conveyance

VIRGINIA

700.5 (1987)

Prohibitions effect a takings

WEST VIRGINIA

38 CSR 2.129 (1990)

Limitations result in unconstitutional taking

WYOMING

Chapter 1 Sec. 2(dc) (1989)

Prohibitions effect a takings


TABLE 2: SUBSIDENCE -- DAMAGED STRUCTURES

STATE

SECTION NO.

REPAIR/COMPENSATE FOR DAMAGED STRUCTURES: YES/NO

ALABAMA

800-X-10D-.58(3)(b) (1990)

YES. Compensation is determined by the property rights written into the severance deed.

COLORADO

4.20.3 (1982 E)

YES.

ILLINOIS

1817.121 (1986)

YES. This requirement has been in effect since the program began.

INDIANA

310 IAC 12-5-132 (1981)

YES.

KENTUCKY

405 KAR 8:040 Sec. 26 (1991)

YES.

MARYLAND

08.13.09.13(I) (1980)

YES.

OHIO

1501:13-12-03 (1983)

YES.

OKLAHOMA

817.124 (1982)

YES.

PENNSYLVANIA

Statute Sec. 4 (1982) 25 PA Chap. 89

YES. Stricter than SMCRA: operator may not cause damage to certain classes of structures. [According to the Bituminous Mine Subsidence and Land Conservation Act of 1966: (1) operator must not cause damage to pre 4/27/66 dwellings, all public buildings, etc. - 50% support must be left in place; (2) post 4/17/66 dwelling owners may obtain subsidence insurance from state or buy coal support from operator.]

TEXAS

051.07.04.564 (1979)

YES.

UTAH

UMC 614-301.500 (1990)

YES.

VIRGINIA

817.121(c) (1987)

YES.

WEST VIRGINIA

38 CSR 2 Sec. 16.2(c)(2) (1986)

YES.

WYOMING

Chap. VII Sec. 4(a) (1989)

YES.


TABLE 3: SUBSIDENCE -- REPLACE WATER SUPPLY (UNDERGROUND OPERATIONS)

STATE

SECTION NO.

REPLACE DAMAGED WATER SUPPLIES: YES/NO

ALABAMA

No section.

NO.

COLORADO

4.05.15 (1982 E)

YES. Requires water supply replacement for "surface or underground mining activities"

ILLINOIS

No section.

NO. A well is considered a structure. If it is damaged, it must be repaired, replaced or compensated for; however, this does not guarantee replacement of water.

INDIANA

310 IAC 12-5-94 (1991)

YES. However, state Supreme Court in a recent decision (WIGGINS v BRAZIL COAL & CLAY, 452 NE 2d 958 (Ind 1983) stated that operators of surface or underground mines do not have to replace water if damaged was "not malicious". [Case attached.]

KENTUCKY

No section.

NO. Bill proposed in recent legislative session was defeated.

MARYLAND

Ann Code of Md Sec. 7-5A-05.2 (1989)

YES. Requires operator of a deep mine to replace water supply.

OHIO

1513:162 (1982)

YES. Requires operator of "a coal mining operation" to replace water supply.

PENNSYLVANIA

No section.

NO. Bill is contemplated soon.

TEXAS

051.07.04.521 (1979)

YES. Requires person conducting underground mining activities to replace water supply.

UTAH

No section.

NO.

VIRGINIA

No section.

NO. Legislature has formed a committee to propose legislation for 1993 legislative session.

WEST VIRGINIA

Chap 22a Article 3 Sec. 24 (1984)

YES. State law, in effect since before SMCRA, requires "any operator" to replace water supply.

WYOMING

Chap. VII Sec. 2(a) (1989)

YES. State water rights regulations and broad interpretation of definition of "surface coal mining operations" require replacement of water affected by mining.

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