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.

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COALEX STATE INQUIRY REPORT - 24
December 3, 1984

Randy Johnson, Acting Chief
Division of Surface Mining Control and Reclamation
Alabama Surface Mining Commission
P.O. Box 2390
Jasper, Alabama 35501

TOPIC: 16 2/3 EXEMPTION

INQUIRY: The definition of surface mining operations, SMCRA Sec. 701(28), specifically excludes the extraction of coal incidental to the extraction of other minerals where coal does not exceed 16 2/3 per centum of the tonnage of minerals removed for purposes of commercial use, sale, or exploration subject to Sec. 512 of the Act. (See also SMCRA Sec. 701(14)) Relative to 16 2/3 exemption:

1. What is its legislative history?
2. The preamble to the finalized rule 30 CFR Sec. 700.11(e) is not very informative. Is there more information included in the preamble to the proposed rule?
3. What states include the exemption within their regulatory programs?
4. Is there any federal litigation addressing the provision?

SEARCH RESULTS: See below.

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LEGISLATIVE HISTORY
A search of COALEX was conducted to examine the legislative history of the 16 2/3 exemption. The exemption has been included in all major versions of the Act from 1973 to 1977. Senate Reports No. 93-402 from the 93rd Congress and 95-128 from the 95th Congress contain the statement that the exemption was "designed to exclude operations, such as limestone quarries, where coal is found but is not the mineral being sought." (S. Rep. No. 93-402, 93rd Cong., 1st Sess. 75 (1973); S. Rep. No. 95-128, 95th Cong., 1st Sess. 98 (1977))

PREAMBLE TO THE PROPOSED REGULATIONS
Nothing significant was identified in the preamble to the original proposed ruling. (43 FR 41662 (SEPTEMBER 18, 1978)) OSM recently issued an advance notice for revising this section, however, which is discussed further below.

STATE REGULATORY PROGRAMS
No states were identified which did not include this exemption.

FEDERAL LITIGATION
No federal litigation specifically addressing this issue was identified.

OSM NOTICE OF PROPOSED NEW RULING
OSM is presently examining the 16 2/3 exemption with the objective of revising 30 CFR Sec. 700.11 and has issued an advance notice or proposed rulemaking and request for public comments. (40 FR 19336 (MAY 7, 1984)) Several states, according to the notice, have raised questions concerning OSM's interpretation of the exemption and the possible imposition of reclamation fee payments. Of special concern is Ohio, with approximately 80 industrial mining operations which might qualify for the exemption.

Issues of specific interest which OSM will be examining in their rulemaking revision include:

1. Criteria to be used in determining eligibility for 30 CFR Sec. 700.11(a)(4).
2. Procedures for making exemption decisions.
3. Consequences for an operator if an operation fails to comply with the exemption requirements.
4. Reapplication for an exemption.
   (Part IV Discussion of Issues, 49 FR 19336 (MAY 7, 1984))

OSM also includes a set of guidelines developed to assist operators and states in implementing the provision pending the promulgation of the revised regulations. (Part III OSM Guidelines, 49 FR 19336 (MAY 7, 1984))

ATTACHMENTS

1. Excerpt from S. Rep. No. 93-402, 93rd Cong., 1st Sess. 75 (1973).
2. Excerpt from S. Rep. No. 95-128, 95th Cong., 1st Sess. 98 (1977).
3. Advance Notice of Proposed Rulemaking Concerning 30 CFR 700.11; 49 FR 19336 (MAY 7, 1984).

Research conducted by: Terri H. Petruska

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