OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 1 of 4

COALEX STATE INQUIRY REPORT – 122

July 28, 1989

Michael Lepchitz

Assistant Attorney General

Office of the Attorney General

P.O. Drawer U

Big Stone Gap, Virginia 24219

TOPIC: PERMITTING

A. PERMIT APPLICATION APPROVAL PROCESS

B. IMPACTS ON AREAS OUTSIDE THE PERMIT BOUNDARY

INQUIRIES:

A. Do the regulatory agencies in other states engage in independent information gathering in 

the permitting process or only review, evaluate and criticize the information the operator 

puts in the permit application as being accurate, workable and consistent with the Surface 

Mining Control and Reclamation Act of 1977 (SMCRA)? 

B. Is there any case law that has interpreted the necessity of including within the permit 

boundaries areas that suffer impacts incidental to underground mining, such as planned 

subsidence in longwall operations? 

SEARCH RESULTS: Research was conducted using the COALEX Library and the federal and 

state case law files on LEXIS. Information retrieved as a result of the research is discussed 

below. Copies of the selected state regulations and the federal and state court decisions are 

attached. 

PERMIT APPLICATION APPROVAL PROCESS

No state regulations were identified which require a regulatory authority to utilize independent 

sources to verify information provided as part of the mining permit application process. There 

are, however, federal and corresponding state regulations which request or require information 

from government agencies or independent entities outside of the regulative authority. For 

example: 

30 CFR 773.13 Public participation in permit processing.

 Subsection 773.13(a)(3) requires that written notification of an "applicant's intention to mine" 

be sent to federal, state or local agencies "with an interest in the proposed operation". Subsection 

773.13(b) provides procedures for handling comments and objections to the permit application 

from federal, state or local agencies. (Also see the attached Pennsylvania and Kentucky 

regulations which correspond to this subsection and the one following.) 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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30 CFR 773.15 Review of permit applications.

 Subsection 773.15(b) requires the regulatory authority to "make a finding" that the applicant 

is not in violation of any federal or state law or rule "pertaining to air or water environmental 

protection".

ILLINOIS ADMIN. CODE Title 62, Sec. 1784.14 (1988) Hydrologic Information 

[corresponding to 30 CFR 784.14].

 Subsection 1784.14(c)(1) states that information on the cumulative hydrologic impact of a 

proposed operation on surface and ground water "shall be provided...if available" from 

appropriate federal or state agencies.

INDIANA ADMIN. CODE Title 13, r. 13-4.1-3-3 (1987) Application for permit; contents; 

public inspection of certain information;tests [corresponds to 30 CFR 780.22(b) and 

784.22(b)].

 At the request of an operator who has a projected annual production of under 100,000 tons, 

the regulatory authority may utilize and pay for a "qualified public or private laboratory" to 

determine the probable hydrologic consequences of the mining operation. Subsection 13-4.1-3-

3(c).

COLORADO CODE Regs. Section 2.09.1 Small operator assistance program; Assistance 

provided [corresponding to 30 CFR 795.12].

 Under the small operator assistance program, the regulatory authority may "select and pay a 

qualified laboratory to determine for the operator the probable hydrologic consequences" of the 

mining operation. Subsection 2.09.1(1)(a).

CASE LAW

No decisions were identified which rule on the necessity to gather independent information on 

permit applications. Several state and federal cases were identified which touch some aspect of 

the topic.

VILLAGE OF PLEASANT CITY, OHIO v DIVISION OF RECLAMATION, No. CA-835, 

slip opinion (Ohio Ct. App. 1987).

 The court upheld and incorporated the Ohio Reclamation Board of Review's decision to grant 

a mining permit over the objections of the Village of Pleasant City. As part of the evidence 

supporting its decision to issue the permit, the Division of Reclamation included a report it had 

commissioned by an outside consulting firm which evaluated the "potential impacts of mining 

upon the hydrology" of the area to be mined.

UTAH INTERNATIONAL, INC. v DEPARTMENT OF THE INTERIOR, 643 F. Supp 

810 (D. Utah 1986).

 The primary issue in this case concerns the payment of attorney and witness fees to 

environmental groups who prevailed on issues while aligned with the government in surface 

mining-related litigation. However, in footnote 33, the court quoted from the stipulation which 

resulted from the Environmental Defense Fund's hydrology claim. One point is quoted here:
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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"The Secretary, in the consideration of a permit application for lands located in the Petition area, 

shall not approve a permit unless the applicant can demonstrate that the proposed surface coal 

mining operation has been designed to prevent material damage to the hydrologic balance 

outside the permit area...."

GRAHAM v COMMONWEALTH OF PENNSYLVANIA, 79 Pa. Commw. 403, 469 A.2d 

709 (Pa Commw. Ct. 1984).

 Citing to the Right-to-Know Law, the Grahams requested that the court "compel DER [the 

Pennsylvania Department of Environmental Resources] to assist them in the preparation of their 

application for a permit to mine...", including supplying hydrological and geological information 

on the Grahams' land and conducting an inspection of the land to "recommend methods of 

abating potential acid mine drainage and erosion of sediment". The court held that the Right-toKnow Law "gives no one the right to demand that information be assembled and transmitted, as 

distinguished from the right to inspect....The petitioners have not pointed us to any authority for 

the proposition that DER is obliged to provide these kinds of services to persons, as the 

petitioners, who have not applied for a permit to mine their lands."

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION, 620 F. Supp. 

1519 (D.D.C. 1985).

 The court quoted from its prior opinion which struck down "[the] definition of 'mine plan 

area' which effectively required coal companies to supply information for areas outside the 

permit boundary...[and] information covering the entire life of the mining operation." IN RE: 

PERMANENT SURFACE MINING REGULATION LITIGATION I, No. 79-1144, slip op. at 

35 (D.D.C. Feb. 26, 1980).

"The court [drew] the conclusion that Congress articulated, with specificity, those instances in 

which information outside the permit area was necessary." Feb. 1980 Opinion at 35. 

In the present decision, the court ruled on citizen and environmental groups' contention that the 

regulations require operators to submit information only on activities "conducted during the life 

of the permit rather than activities to be conducted during the life of the mine". The court 

determined that the regulatory authority required certain information in order to prepare a 

cumulative hydrologic impact analysis (CHIA), a substantial element in the permit approval 

process. Information to be considered in the preparation of the CHIA includes "life-of-the-mine" 

information, hydrologic data for both on- and off-site areas and "the probable cumulative impact 

of all anticipated mining in the area". 

ATTACHMENTS

A. KENTUCKY. REV. STAT. Sec. 350.055 (1980) Publication of notice of intention to 

mine by permit applicant -- Notification of various local government bodies by 

department [Subject to federal approval]. 

B. PENNSYLVANIA CODE Title 25, Sec. 86.31 (1982) Public notices of filing of permit 

applications. 

C. PENNSYLVANIA CODE Title 25, Sec. 86.33 Right to file written objections.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 4 of 4

D. ILLINOIS ADMIN. CODE Title 62, Sec. 1784.14 (1988) Hydrologic Information 

[corresponding to 30 CFR 784.14]. 

E. INDIANA ADMIN. CODE Title 13, r. 13-4.1-3-3 (1987) Application for permit; 

contents; public inspection of certain information;tests [corresponds to 30 CFR 780.22(b) 

and 784.22(b)]. 

F. COLORADO CODE Regs. Section 2.09.1 Small operator assistance program; Assistance 

provided. 

G. VILLAGE OF PLEASANT CITY, OHIO v DIVISION OF RECLAMATION, No. CA835, slip opinion (Ohio Ct. App. 1987). 

H. UTAH INTERNATIONAL, INC. v DEPARTMENT OF THE INTERIOR, 643 F. Supp 

810 (D. Utah 1986). 

I. GRAHAM v COMMONWEALTH OF PENNSYLVANIA, 79 Pa. Commw. 403, 469 

A.2d 709 (Pa Commw. Ct. 1984). 

J. Excerpt from IN RE PERMANENT SURFACE MINING REGULATION 

LITIGATION, 620 F. Supp. 1519 (D.D.C. 1985).