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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 - 259

July 1993

Paul Ehret, Deputy Director
Department of Natural Resources
Bureau of Mine Reclamation
402 W. Washington Street
Indianapolis, Indiana 46204-2748

TOPIC: STATE NATURAL RESOURCE COMMISSIONS AS MULTIPLE INTEREST BOARDS; DEFINITION OF EMPLOYEE

INQUIRY: Are the members of state natural resource commissions considered "employees" who are subject to state conflict of interest regulations, or are they considered members of "multiple interest boards" who are exempt from the conflict of interest regulations? Are the responsibilities of the state commissions limited to underground and surface coal mining issues only, or do the duties and powers encompass a broader range of issues?

SEARCH RESULTS: Research was conducted using the COALEX Library and the state code materials available on LEXIS.

For 24 states, the following information was researched: the name of the state commission comparable to the Indiana Natural Resources Commission; the commission's composition, duties and powers; conflict of interest statute or regulation sections (for members of the commission and employees of the relevant department); and the definition of employee. The results of the research are summarized below.

Also retrieved were Federal Register preambles discussing state program amendments and federal regulations; one OSM Directive; and four court decisions. Copies of these materials are attached.

SUMMARY OF SURVEY

ALABAMA

1. STATE AGENCY'S NAME:

ALABAMA SURFACE MINING COMMISSION

2. COMPOSITION:

7 members
    3 - from counties
    1 - from state at large
    1 - a professional forester
    1 - a professional engineer
    1 - an attorney

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

a. A commission member may not have any direct or indirect financial interest in an underground or surface coal mining operation
b. Recusal: a commission member may not participate in an appeal in which s/he has an interest.

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interests are not considered to be employees.

ALASKA

1. STATE AGENCY'S NAME:

Not available

2. COMPOSITION:

Not available

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

An employee of the department (or a private contractor) may not have a direct of indirect financial interest in an underground or surface coal mining operation.

5. EMPLOYEE:

Any person employed by the department.

ARKANSAS

1. STATE AGENCY'S NAME:

ARKANSAS POLLUTION CONTROL COMMISSION

2. COMPOSITION:

10 members
    6 - from state agencies
    1 - from municipalities
    1 - from industry
    1 - from agriculture and livestock
    1 - from mining interests

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

a. No member of commission who receives or has during the previous two years received, a significant portion of his/her income directly or indirectly from permit holders or applicants for a permit shall participate in the approval of NPDES permit applications.
b. Recusal: Member of the commission who has a direct or indirect financial interest in an underground or surface coal mining operation may continue to serve on the commission but shall abstain from participating in any matter that relates to underground or surface coal mining operations.

5. EMPLOYEE:

Definition of employee does not include any member of the commission other than the director.

COLORADO

1. STATE AGENCY'S NAME:

MINED LAND RECLAMATION BOARD

2. COMPOSITION:

7 members
    1 - Executive Director
    1 - from state agencies
    3 - people with agricultural or conservation experience
    2 - people with mining industry experience

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

Division employees shall recuse themselves from proceedings which may affect their direct or indirect financial interests.

5. EMPLOYEE:

Employee does not mean members of the Board.

ILLINOIS

1.a. STATE AGENCY'S NAME:

INTERAGENCY COMMITTEE ON SURFACE MINING CONTROL RECLAMATION

2.a COMPOSITION:

6 members -- state agency heads

1.b. STATE AGENCY'S NAME:

STATE MINING BOARD

2.b COMPOSITION:

6 members
    3 - "employing class"
    3 - "employee class"

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

Not available

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interest boards are not considered to be employees.

INDIANA

1. STATE AGENCY'S NAME:

NATURAL RESOURCES COMMISSION

2. COMPOSITION:

12 members
    7 - from state agencies (non-voting)
    5 - citizen members

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

Commissions and advisory council members shall abstain from voting in decision-making functions that directly affect a company in which that member has a direct or indirect financial interest.

5. EMPLOYEE:

Employee means any person employed by the Department of Natural Resources.

IOWA

1. STATE AGENCY'S NAME:

STATE SOIL CONSERVATION COMMITTEE

2. COMPOSITION:

13 members
    1 - chairman
    4 - from state agencies (non-voting)
    6 - from farming
    1 - municipalities
    1 - from mining industry

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

Recusal: see attached

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interests are not considered to be employees.

KANSAS

1. STATE AGENCY'S NAME:

MINED-LAND CONSERVATION AND RECLAMATION BOARD was abolished

2. COMPOSITION:

Not applicable

3. DUTIES AND POWERS:

Not applicable

4. CONFLICT OF INTERST:

Not available

5. EMPLOYEE:

State officer or employee does not include any appointed member of an advisory council, commission or board who serves without compensation other than allowable or reimbursable expenses.

KENTUCKY

1. STATE AGENCY'S NAME:

ENVIRONMENTAL QUALITY COMMISSION

2. COMPOSITION:

7 citizens

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

No person shall be eligible to serve as a member of the Commission who holds a permit issued by the cabinet or who is an officer, employee or agent, or who is a stockholder owning 7.5% or more of the voting stock of any corporation holding a permit issued by the cabinet.

5. EMPLOYEE:

Not available

LOUISIANA

1. STATE AGENCY'S NAME:

The duties and powers of the ENVIRONMENTAL CONTROL COMMISSION was transferred to the Secretary of the Department of Environmental Quality

2. COMPOSITION:

Not applicable

3. DUTIES AND POWERS:

Not applicable

4. CONFLICT OF INTERST:

Not available

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interests are not considered to be employees.

MARYLAND

1. STATE AGENCY'S NAME:

LAND RECLAMATION COMMITTEE

2. COMPOSITION:

13 members
    4 - from the Department of Natural Resources
    1 - from other state agency
    4 - from county governments
    2 - from mining industry
    2 - general community

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

An employee may not have a direct or indirect financial interest in any open-pit or deep mining operation.

5. EMPLOYEE:

Employee means any person other than a State or public official.

MISSISSIPPI

1. STATE AGENCY'S NAME:

MISSISSIPPI COMMISSION ON ENVIRONMENTAL QUALITY (formerly Mississippi Commission on Natural Resources)

2. COMPOSITION:

7 members
    5 - from cogressional districts
    2 - from state at large

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

Certain employees of the commission are prohibited from having any direct or indirect financial interests in any underground or surface coal mining operation.

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interests are not considered to be employees.

MISSOURI

1. STATE AGENCY'S NAME:

LAND RECLAMATION COMMITTEE

2. COMPOSITION:

7 members
    3 - from state agencies
    4 - from general public: people with experience in conservation, land reclamation and surface mining (only 1 with a direct connection to the mining industry)

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

No employee of the commission shall have a direct or indirect financial interest in any underground or surface coal mining operation.

5. EMPLOYEE:

Employee means any person employed by the commission and advisory board members and consultants who perform for the commission.

MONTANA

1. STATE AGENCY'S NAME:

BOARD OF LAND COMMISSIONERS

2. COMPOSITION:

7 members from state agencies

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

a. No employee of the department shall have a direct or indirect financial interest in any strip- or underground-coal-mining-operation.
b. Members of advisory boards and commissions established to represent multiple interests shall recuse themselves from proceedings that may affect their direct or indirect financial interests.

5. EMPLOYEE:

Not available

NEW MEXICO

1. STATE AGENCY'S NAME:

COAL SURFACE MINING COMMISSION

2. COMPOSITION:

7 members from state agencies

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

It is unlawful for a state employee to have a direct or indirect financial interest in any underground or surface coal mining operation.

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interests are not considered to be employees.

NORTH DAKOTA

1. STATE AGENCY'S NAME:

INDUSTRIAL COMMISSION

2. COMPOSITION:

3 members from state agencies

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

a. No employee of the commission shall have a direct or indirect financial interest in any underground of surface coal mining operation.
b. No employee of the department who has authority to approve permit applications shall receive a significant portion of his/her income (10% of gross income for a calendar year) directly or indirectly from permit holders or permit applicants.

5. EMPLOYEE:

The definition of employee does not include members of advisory boards or commissions established to represent multiple interests, such as the North Dakota reclamation advisory committee.

OHIO

1. STATE AGENCY'S NAME:

RECLAMATION BOARD OF REVIEW

2. COMPOSITION:

7 members
    2 - from farming
    2 - from coal mining
    1 - from general public
    1 - from forestry
    1 - from agronomy

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

No employee may have a direct or indirect financial interest in any coal mining or reclamation operation.

5. EMPLOYEE:

Members of the Reclamation Board of Review are not included in the definition of employee.

OKLAHOMA

1. STATE AGENCY'S NAME:

OKLAHOMA MINING COMMISSION

2. COMPOSITION:

9 members
    1 - from engineering or geology
    1 - from labor or worker safety
    1 - from agriculture or soil conservation
    1 - from transportation
    1 - from economic development or banking
    1 - from public utilities
    1 - from natural resources
    2 - at large

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

a. No employee shall be directly or indirectly interested in any mining operation.
b. Recusal: Members of advisory boards and commissions established to represent multiple interests shall recuse themselves from proceedings which may affect their direct or indirect financial interests.

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interests are not considered to be employees.

PENNSYLVANIA

1. STATE AGENCY'S NAME:

ENVIRONMENTAL QUALITY BOARD (expires 12/93)

2. COMPOSITION:

21 members
    11 - from state agencies
    1 - from public utilities
    5 - from citizen advisory councils
    4 - from general assembly

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

No employee shall have a direct or indirect financial interest in any underground or surface coal mining operation.

5. EMPLOYEE:

An employee is any person employed by the department.

TEXAS

1. STATE AGENCY'S NAME:

RAILROAD COMMISSION OF TEXAS

2. COMPOSITION:

3 members elected at general election

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

a. An employee of the commission may not be an officer, employee or paid consultant of a trade association in a business or industry regulated by the commission.
b. No employee shall have a direct or indirect financial interest in any underground or surface coal mining operation.

5. EMPLOYEE:

Members of advisory boards or commissions established to represent multiple interests are not considered to be employees.

UTAH

1. STATE AGENCY'S NAME:

BOARD OF OIL, GAS AND MINING (repealed 7/1/93)

2. COMPOSITION:

7 members
    2 - from mining
    2 - from oil and gas
    1 - from ecology and environment
    1 - private landowner, owning a mineral or royalty interest
    1 - from geology

3. DUTIES AND POWERS:

Not available

4. CONFLICT OF INTERST:

a. Division employees will have no direct or indirect financial interest in coal mining and reclamation operations.
b. Recusal: Members of the Board will recuse themselves from proceedings which may affect their direct or indirect financial interests.

5. EMPLOYEE:

The board shall not be defined as an employee of the division.

VIRGINIA

1. STATE AGENCY'S NAME:

VIRGINIA FUEL COMMISSION

2. COMPOSITION:

3 members appointed by the governor

3. DUTIES AND POWERS:

See attached

4. CONFLICT OF INTERST:

a. No employee of the department shall have a financial interest in any underground or surface coal mining operation.
b. Notwithstanding the prohibition above, members of the Board of Surface Mining Review who are appointed because of their special qualifications and backgrounds to represent the coal surface mining industry may have financial interests in underground and surface coal mining operations and may act upon or participate in any action before the Board, including the adoption of regulations arising under VA SMCRA.

5. EMPLOYEE:

a. Employee means any person employed by the Department.
b. Provisions of the Virginia Personnel Act shall not apply to members of boards and commissions.

WEST VIRGINIA

1. STATE AGENCY'S NAME:

DIVISION OF ENVIRONMENTAL PROTECTION ENERGY ADVISORY BOARD

2. COMPOSITION:

10 members
    1 - director (non-voting)
    3 - from energy
    3 - from environmental protection
    1 - from organized labor
    1 - from state legislature

3. DUTIES AND POWERS:

Not available

4. CONFLICT OF INTERST:

No employee of the division of mines and minerals or of the reclamation board of review shall have a direct or indirect financial interest in any surface-mining operation.

5. EMPLOYEE:

Not available

WYOMING

1. STATE AGENCY'S NAME:

Not available

2. COMPOSITION:

Not available

3. DUTIES AND POWERS:

Not available

4. CONFLICT OF INTERST:

Not available

5. EMPLOYEE:

Not available

FEDERAL REGISTER: PREAMBLES TO STATE PROGRAM AMENDMENT NOTICES

Alabama: 56 FR 4542 (FEBRUARY 5, 1991). [Excerpts]

Colorado: 56 FR 1363 (JANUARY 14, 1991). [Excerpts]

Illinois: 53 FR 43112 (OCTOBER 25, 1988). [Excerpts]

Indiana:
    54 FR 51388 (DECEMBER 15, 1989). [Excerpts]
    57 FR 14350 (APRIL 20, 1992). [Excerpts]
    57 FR 27928 (JUNE 23, 1992). [Excerpts]

Kansas: 58 FR 4381 (JANUARY 14, 1993). [Excerpts]

Maryland: 56 FR 63649 (DECEMBER 5, 1991). [Excerpts]

Missouri: 55 FR 45603 (OCTOBER 30, 1990). [Excerpts]

Ohio: 55 FR 38319 (SEPTEMBER 18, 1990). [Excerpts]

Pennsylvania: 56 FR 55080 (OCTOBER 24, 1991). [Excerpts]

Texas: 58 FR 33785 (JUNE 21, 1993). [Excerpts]

Utah: 45 FR 70481 (OCTOBER 24, 1980). [Excerpts]

FEDERAL REGISTER: NOTICES AND PREAMBLES RE: FEDERAL REGULATIONS

52 FR 14404 (APRIL 27, 1987). Semiannual agenda of rules scheduled for review or development: 1985-1987 [Excerpts]

Description of the rule changes after publication of the final rule on October 17, 1986. Through the April 21, 1986 semiannual agenda, the abstract states that the "rule will address whether the Office of Surface Mining should retain the exemption for members of multiple interest boards in the definition of the term 'employee' in 30 CFR 705.5...." Beginning with the October 27, 1986 agenda, the abstract reads: "This rule addresses the Office of Surface Mining's removal of the exemption...."

51 FR 37118 (OCTOBER 17, 1986). Final rule. Part 705 Restriction on Financial Interests of State Employees.

49 FR 22498 (MAY 30, 1984). Reopening and extension of public comment period.

47 FR 28574 (JUNE 30, 1982). Final rule. Revision of AML rules. [Excerpts]

44 FR 52098 (SEPTEMBER 6, 1979). Proposed rulemaking.>

44 FR 11795 (MARCH 2, 1979). Petition to amend 30 CFR Part 705.

43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. [Excerpts]

42 FR 56060 (OCTOBER 20, 1977). Final rules.

OSM DIRECTIVE

OSM DIRECTIVE, Subject No. PER-18 (incorporated PER-18-1), Transmittal No. 281, "Restrictions of Financial Interests of Federal and State Employees" (10/14/86 and 10/28/87).

CASE LAW

C & T EVANGELINOS v DIVISION OF RECLAMATION, Case No. 88-B-12, 1989 Ohio App LEXIS 3618 (Ohio Ct App 1989).

THE PITTSTON CO. AND CLINCHFIELD COAL CO. v LUJAN, 798 F Supp 344 (WD VA 1992).

COMMONWEALTH OF VA, ex rel. v WATT, 741 F 2d 37 (4th Cir 1984).

TUG VALLEY RECOVERY CENTER v WATT, 703 F 2d 796 (4th Cir 1983).

ATTACHMENTS

  1. STATE STATUTES AND REGULATIONS
    1. ALABAMA Statutes and Regulations.
    2. ALASKA Statutes and Regulations.
    3. ARKANSAS Statutes and Regulations.
    4. COLORADO Statutes and Regulations.
    5. ILLINOIS Statutes and Regulations.
    6. INDIANA Statutes and Regulations.
    7. IOWA Statutes and Regulations.
    8. KANSAS Statutes and Regulations.
    9. KENTUCKY Statutes and Regulations.
    10. LOUISIANA Statutes and Regulations.
    11. MARYLAND Statutes and Regulations.
    12. MISSISSIPPI Statutes and Regulations.
    13. MISSOURI Statutes and Regulations.
    14. MONTANA Statutes and Regulations.
    15. NEW MEXICO Statutes and Regulations.
    16. NORTH DAKOTA Statutes and Regulations.
    17. OHIO Statutes and Regulations.
    18. OKLAHOMA Statutes and Regulations.
    19. PENNSYLVANIA Statutes and Regulations.
    20. TEXAS Statutes and Regulations.
    21. UTAH Statutes and Regulations.
    22. VIRGINIA Statutes and Regulations.
    23. WEST VIRGINIA Statutes and Regulations.

  2. FEDERAL REGISTER NOTICES AND PREAMBLES
    1. Alabama: 56 FR 4542 (FEBRUARY 5, 1991). [Excerpts]
    2. Colorado: 56 FR 1363 (JANUARY 14, 1991). [Excerpts]
    3. Illinois: 53 FR 43112 (OCTOBER 25, 1988). [Excerpts]
    4. Indiana:54 FR 51388 (DECEMBER 15, 1989). [Excerpts]
      1. 57 FR 14350 (APRIL 20, 1992). [Excerpts]
      2. 57 FR 27928 (JUNE 23, 1992). [Excerpts]
    5. Kansas: 58 FR 4381 (JANUARY 14, 1993). [Excerpts]
    6. Maryland: 56 FR 63649 (DECEMBER 5, 1991). [Excerpts]
    7. Missouri: 55 FR 45603 (OCTOBER 30, 1990). [Excerpts]
    8. Ohio: 55 FR 38319 (SEPTEMBER 18, 1990). [Excerpts]
    9. Pennsylvania: 56 FR 55080 (OCTOBER 24, 1991). [Excerpts]
    10. Texas: 58 FR 33785 (JUNE 21, 1993). [Excerpts]
    11. Utah: 45 FR 70481 (OCTOBER 24, 1980). [Excerpts]
    12. 52 FR 14404 (APRIL 27, 1987). Semiannual agenda of rules scheduled for review or development: 1985-1987 [Excerpts]
    13. 51 FR 37118 (OCTOBER 17, 1986). Final rule. Part 705 Restriction on Financial Interests of State Employees.
    14. 49 FR 22498 (MAY 30, 1984). Reopening and extension of public comment period.
    15. 47 FR 28574 (JUNE 30, 1982). Final rule. Revision of AML rules. [Excerpts]
    16. 44 FR 52098 (SEPTEMBER 6, 1979). Proposed rulemaking.
    17. 44 FR 11795 (MARCH 2, 1979). Petition to amend 30 CFR Part 705.
    18. 43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. [Excerpts]
    19. 42 FR 56060 (OCTOBER 20, 1977). Final rules.

  3. OSM DIRECTIVE: Subject No. PER-18 (incorporated PER-18-1), Transmittal No. 281, "Restrictions of Financial Interests of Federal and State Employees" (10/14/86 and 10/28/87).

  4. CASE LAW
    1. C & T EVANGELINOS v DIVISION OF RECLAMATION, Case No. 88-B-12, 1989 Ohio App LEXIS 3618 (Ohio Ct App 1989).
    2. THE PITTSTON CO. AND CLINCHFIELD COAL CO. v LUJAN, 798 F Supp 344 (WD VA 1992).
    3. COMMONWEALTH OF VA, ex rel. v WATT, 741 F 2d 37 (4th Cir 1984).
    4. TUG VALLEY RECOVERY CENTER v WATT, 703 F 2d 796 (4th Cir 1983).

Survey and research conducted by: Joyce Zweben Scall

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