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 - 264

March 1993

Ted Biggs, Esquire
Indiana Department of Natural Resources
Division of Reclamation
402 West Washington Street
Indianapolis, Indiana 46204

TOPIC: MINING WITHIN 300 FEET OF A PUBLIC BUILDING

INQUIRY: Does the prohibition against mining within 300 feet of a public building refer to the building itself or the property line? Please locate any materials that discuss this issue.

SEARCH RESULTS: Research was conducted using the COALEX Library and other materials available in LEXIS. No materials were identified that specifically discussed the issue in question. A few items were retrieved that have some relevance to the topic. These are listed below and copies are attached.

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REGULATION HISTORY

REGULATION OF SURFACE MINING: HEARINGS on H.R. 3 Before Subcommittee on the Environment and Subcommittee on Mines and Mining of the House Committee on Interior and Insular Affairs, 93rd Cong., 1st Sess. 838 (April 9, 1973)(Statement of Penn. Rep. John P. Saylor).

From H.R. 5988. Section-by-Section-Analysis. Section 214 Permit Approval. "This section lists the eight findings which the regulatory authority must make before it can grant a surface mining and reclamation permit. Among the findings which shall be made are .... (3) that the land affected is not within 300 feet of the outside property line of an occupied dwelling; within 300 feet of a public building, park or cemetery; nor within 100 feet of the outside line of any public road right-of-way".

INTERIOR ADMINISTRATIVE DECISIONS

DONALD B. PETERSON v OSM, Docket No. DV 7-1-PR (1987).

Peterson contended that the permit boundary for Palmer Coking Coal Co.'s McKay Preparation Plant was within 300 feet of a public building (a grocery store) and several houses along a state road. The ALJ ruled that "there [was] no evidence to support his allegation since no measurements [had] been made."

L & E TRUCKING, INC. v OSM, Docket Nos. CH 1-160-R, CH 2-24-P, CH 2-25-R (1981).

The ALJ affirmed the issuance of the violation for conducting surface coal mining within 300 feet of a public park finding that L & E should have known the "true ownership of the adjoining land". However, only the minimum number of points were assigned for extent of potential or actual damage as the ALJ found that work the applicant performed for the landowner "resulted in the removal of many physical hazards and will...ultimately improve the area."

PENNSYLVANIA ADMINISTRATIVE DECISIONS

KERRY COAL CO. v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES, 425 A 2d 46 (PA Commw Ct 1981).

In discussing the construction of 52 P.S. Sec. 1396.4b(c) which states, in part,

"No operator shall open any pit for surface mining operations...within three hundred feet of any occupied dwelling house, unless released by the owner thereof, or any public building, school, park or community or institutional building...." * the court agreed with Kerry Coal that the word "park" be read as an adjective modifying the word "building", providing statutory protection to "park buildings".

"We believe that the legislature has shown its intention in this section to apply the restriction limitation of 100 feet when it refers to property or geographic lines, i.e., right of way of public highway, cemetery, or bank of any stream. On the other hand, the restriction is 300 feet when applied to structures, i.e., occupied dwelling house, any public building, school, park or community or institutional building. It is of further significance that the structures are grouped together."

*NOTE: The language of this section was subsequently changed. Refer to the revised statute section attached to this decision.

BOARD OF SUPERVISORS OF CHARTIERS TOWNSHIP v QUARTURE AND T/D/B/A VICTOR DOSSE CONTRACTING, 603 A 2d 295 (PA Commw Ct 1992).

The issue on appeal was whether the common pleas court had jurisdiction to modify an earlier order. The facts of the case relate to which set of conditions were to be imposed on a strip mine permit: no mining closer that 300 feet of any building or structure versus no mining closer than 300 feet of any property line.

MISC.

Excerpts from a variety of materials that mention the 300 feet rule are enclosed for review.

ATTACHMENTS

1. REGULATION OF SURFACE MINING: HEARINGS on H.R. 3 Before Subcommittee on the Environment and Subcommittee on Mines and Mining of the House Committee on Interior and Insular Affairs, 93rd Cong., 1st Sess. 838 (April 9, 1973)(Statement of Penn. Rep. John P. Saylor).
2. DONALD B. PETERSON v OSM, Docket No. DV 7-1-PR (1987).
3. L & E TRUCKING, INC. v OSM, Docket Nos. CH 1-160-R, CH 2-24-P, CH 2-25-R (1981).
4. KERRY COAL CO. v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES, 425 A 2d 46 (PA Commw Ct 1981).
5. BOARD OF SUPERVISORS OF CHARTIERS TOWNSHIP v QUARTURE AND T/D/B/A VICTOR DOSSE CONTRACTING, 603 A 2d 295 (PA Commw Ct 1992).
6. Misc. Excerpts from a variety of materials that mention the 300 feet rule.

Research conducted by: Joyce Zweben Scall

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