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 INQUIRY REPORT - 224
Attorney General's Office
123 Capitol Building
Cheyenne, Wyoming 82002
TOPIC: DEFINITION OF "OPERATOR" AND "PERMITTEE"
INQUIRY: A coal company holds a valid permit on an inactive mine. The company claims it is not liable for the NOV and CO the state issued because it is not an "operator" as that term is defined in the Wyoming statute. Please locate materials discussing the definition of "operator", "permittee" and related topics, e.g., termination of jurisdiction.
SEARCH RESULTS: The COALEX Library, other LEXIS materials and existing COALEX State Inquiry Reports were used to research the following topics:
The relevant materials retrieved are listed below by topic. Copies are attached unless otherwise indicated.
DEFINITION OF "PERMITTEE"
DELIGHT COAL CORP., 1 IBSMA 186, IBSMA 79-12 (1979). DELIGHT COAL CORP., Docket No. CH 9-4-P (1979).
In reversing and remanding the ALJ's decision, the Board ruled that the "definition of 'permittee' adopted by the Secretary for the initial regulatory program in 30 CFR 700.5 includes those persons who, through ignorance or dishonesty, fail to obtain a permit before engaging in activities regulated by a state."
"During the initial regulatory program, a person may be assessed a civil penalty under 30 CFR 723.1 for violations of a permit condition, a regulation, or a provision of Title V of the Act even though he does not hold a permit from the state regulatory authority."
JAMES MOORE v OSM, 1 IBSMA 216, IBSMA 79-10 (1979).
"To be subject to regulation under Kentucky law, Moore must be, inter alia, an 'operator' as that term is used in state law. Under Kentucky law, an 'operator' is defined as one 'who removes or intends to remove more than  tons of coal within  successive calendar months....' KRS 350.010(6); 405 KAR 1:010E Sec. 1(34). If Moore did not remove or intend to remove more than 250 tons of coal in a 12-month period, then, under Kentucky law, he would not be subject to State regulation within the scope of the initial Federal performance standards and, thus, not subject to OSM's jurisdiction." The Board found that Moore failed to prove the amount of coal removed or intended to be removed.
CLAYPOOL CONSTRUCTION CO., INC. v OSM, 1 IBSMA 259, IBSMA 79-17 (1979). CLAYPOOL CONSTRUCTION CO., INC. v OSM, Docket Nos. CH 9-9-R, CH 9-22-R (1979).
"'Permittee'. The definition of 'permittee' adopted by the Secretary for the initial regulatory program in 30 CFR 700.5 includes those persons who fail to obtain a state permit before conducting surface coal mining and reclamation operations regulated by a state."
MARCO, INC. v OSM, 3 IBSMA 128, IBSMA 81-7 (1981).
"Competent evidence that the person listed in state records as permittee over an area had no legal right under state law to mine or reclaim that area and that the person was not conducting mining or reclamation in 30 CFR 700.5 (1978) is sufficient to rebut a prima facie showing that the person is the permittee."
JEWELL SMOKELESS COAL CO., 4 IBSMA 211, IBSMA 82-7 (1982).
"'Permittee.' For purposes of the initial regulatory program, one who conducts a surface coal mining operation is a 'permittee,' whether or not required to hold a permit under state law, and is responsible for compliance with performance standards applicable to the operation."
S & M COAL CO. AND JEWELL SMOKELESS COAL CO. v OSM, 79 IBLA 350, IBLA 83-620 & 82-20 (1984).
"Under the initial regulatory program one who conducts a surface coal mining operation regulated by a state under state law is a permittee whether or not required to hold a permit under state law. The permittee is responsible for compliance with the performance standards applicable to the operation. If there is question as to who is responsible for compliance with those standards, it is proper for the inspector issuing the notice of violation to cite all of the parties who may be responsible. If a cited party can submit sufficient proof that it is not responsible for compliance, the violation will not be considered a violation by that party."
CLARK COAL, CO. v OSM, 102 IBLA 93, IBLA 86-627 & 87-348 (1988). CLARK COAL CO., INC. v OSM, Docket No. NX 6-60-R (1987).
"Under sec. 521(a) of [SMCRA], a permittee of a mine site is a proper party to be cited for a violation of the Act notwithstanding the fact the coal was removed by a third party."
INACTIVE MINING OPERATION
CONSOLIDATION COAL CO., 3 IBSMA 228, IBSMA 81-26 (1981).
In reversing the ALJ's decision, the Board stated:
"[T]he monitoring requirements of 30 CFR 717.17(h)(2) are made applicable to underground operations, as defined in 717.11(a)(1), by 717.17(h)(1). In this context the issue becomes whether pumping water out of an otherwise inactive underground mine is an 'underground operation.' We believe it is not. That activity is not sufficiently related to those included in 717.11(a)(1) to fall within the scope of that definition."
KENT COAL CO. v OSM, Docket No. NX 4-21-P (1986).
The ALJ found that the violations were properly issued to Kent Coal, holder of a Kentucky permit, as a result of "a 2-hour routine inspection of the surface effects of applicant's inactive and unoccupied underground coal mining operation...."
M & J COAL CO. v OSM, Docket Nos. CH 6-15-R, CH 7-1-P (1988), aff'd M & J COAL CO. v OSM, 115 IBLA 8, IBLA 88-564 & 88-568 (1990).
In response to a citizen's complaint, inspectors inspected "M & J's then inactive operation" and charged M & J's underground coal mining operation with causing subsidence damage to the citizen's residence and property. The ALJ upheld the issuance of the CO.
COALEX STATE INQUIRY REPORT - 181, "Current liability for acid mine drainage under a pre-SMCRA permit" (1991).
Some of the Interior administrative decisions included as part of this Report discuss operators' obligation to comply with initial federal regulations, or state or federal permanent regulations regardless of whether the operator applied for a permit under the permanent program.
COALEX STATE INQUIRY REPORT - 183, "Unwarranted failure to comply: definition of 'indifference', 'lack of diligence' and 'lack of reasonable care" (1991).
The Interior administrative decisions included with this Report attempt to define the phrases above in determining the validity of an NOV or CO, or when addressing the appropriateness of the points assigned for negligence.
COALEX STATE INQUIRY REPORT - 172, "Inability to comply" (1991).
Materials identified and included with this Report indicate that no matter how legitimate the cause, NOVs and COs cannot be vacated because of an operator's inability to comply. The reason for the inability to comply may be taken into consideration as a mitigating factor in computing civil penalties.
COALEX STATE INQUIRY REPORT - 141, "Reduction of the mandatory civil penalty".
This Report includes materials which state that the assessment of $750 for each day that failure to abate continues is mandatory and cannot be reduced.
TERMINATION OF JURISDICTION
GRAFTON COAL CO., INC., 3 IBSMA 175, IBSMA 80-84 (1981). GRAFTON COAL CO., INC. v OSM, Docket No. CH 0-175-R (1980).
"Release of a portion of a permittee's performance bond by a state does not reduce OSM's authority to regulate that permittee."
Also see NEW BIG CREEK MINING, Docket No. NX 1-49-P (1985).
APPOLO FUELS, INC. v OSM, Docket Nos. NX 89-39-R, NX 89-46-R (1990).
"The undersigned finds that all the evidence presented shows that Applicant's 37 acres was fully reclaimed as of 1985, and that Respondent's jurisdiction terminated at that time. Applicant had accomplished the two events required by 30 C.F.R. Sec. 700.11(d): It has successfully completed all reclamation for the 37 acres as shown by the bond release, the bond release report, and the 16 inspection reports from '82 to '85; the period of extended liability for vegetation ended in October of 1985."
Enclosed for background are the following regulatory history materials:
53 FR 44356 (NOVEMBER 2, 1988). Final rule. Termination of jurisdiction.
NATIONAL WILDLIFE FEDERATION v LUJAN, 31 ERC (BNA) 2034, 21 ELR 20135 (D.C. DC August 30, 1990). [Excerpts]
56 FR 25036 (JUNE 3, 1991). Notice of suspension. Compliance with court order.
NATIONAL WILDLIFE FEDERATION v LUJAN, 950 F 2d 765 (DC Cir December 10, 1991).
57 FR 12461 (APRIL 10, 1992). Notice of reinstatement of suspended rule. Termination of jurisdiction.
Research conducted by: Joyce Zweben Scall