OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 3

COALEX STATE INQUIRY REPORT - 293

August 1994

Olga Brunning, Esquire

Department of Natural Resources

Tawes Building

580 Taylor Avenue, Room C-4

Annapolis, Maryland 21401

TOPIC: MOVING EQUIPMENT OFF PERMIT AREA (Includes COALEX Reports 136 & 

157)

INQUIRY: An operator drove a bulldozer and a loader off the permit area without using 

the haul road. The area on which the equipment rode was not part of the permitted 

area. Can the moving of the mining equipment be considered an activity "in connection 

with" surface coal mining operations and should the permit have been revised to include 

the land over which the equipment was driven? Does it make a difference that no 

roadway was constructed? 

SEARCH RESULTS: COALEX, LEXIS and existing COALEX State Inquiry Reports 

were used to research this inquiry.

Several decisions were identified, including both Interior administrative and state 

opinions, that address construction of walkways to move draglines over unpermitted 

areas. No materials were identified that specifically discussed moving bulldozers or 

loaders or moving equipment but not constructing paths. Also identified were two 

existing COALEX Reports, discussing the definition of "adjacent to" and "in connection 

with" a surface coal mining operation. Copies of the materials discussed below are 

attached.

MOST RELEVANT DECISION

K & R COAL CO., INC. v OSM, Docket Nos. DV 91-1-R, DV 91-3-R (1994).

"K&R's construction and use of the walkway clearly constituted 'surface coal mining 

operations' in two ways. First, K&R constructed the walkway to move mining equipment, 

i.e., the dragline, from one permitted site, across some 5 miles of unpermitted private 

land, to K&R's permitted site, at which the dragline was to be used for K&R's surface 

coal mining operations. Thus, the walkway was constructed on 'adjacent land the use of 

which is incidental' to K&R's surface coal mining activities at its permitted site. Also, the 

walkway constituted 'the construction of [a] new road[]," the sole purpose of which was 

'to gain access to the site' of K&R's Mine for the delivery of K&R's dragline. Thus, K&R's 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 3

construction and use of the walkway was a surface coal mining activity that required a 

permit under SMCRA and the Oklahoma program. See WILLOWBROOK MINING CO. v 

OSM, 108 IBLA 303 (1989), aff'd WILLOWBROOK MINING CO. v LUJAN, No. 89-1223 

(W.D. Pa. January 19, 1993); PEABODY COAL CO. v RIDENOUR, 515 NE 2d 1163 

(Ind App 1 Dist 1987)."

PLEASE NOTE: WILLOWBROOK MINING CO. v OSM is attached as part of COALEX 

Report No. 147. WILLOWBROOK MINING CO. v LUJAN was not available from LEXIS 

at this time.

RELEVANT, BUT LESS PERSUASIVE CASES:

CONSOLIDATION COAL CO. v OSM, Docket No. CH 0-224-P (1981). 

A NOV was issued for conducting surface coal mining operations outside of the original 

permitted area without approval from the regulatory authority: "a dozer path had been 

permitted which had not been constructed nor followed by the petitioner and another 

which was constructed off of the area permitted."

MULLINS AND BOLLING CONTRACTORS, 4 IBSMA 156, IBSMA 81-75 (1982). 

Two 2-acre sites owned and mined by the same operators were connected by a dozer 

track. The Board found that the sites constituted a surface coal mining operation that

was not eligible for the 2-acre exemption: the total disturbed area, including both mining 

sites plus the bulldozer path and the haul road, was over 4 acres.

COALEX REPORTS

COALEX STATE INQUIRY REPORT - 157, "Definition of 'adjacent to' under 

'surface mining operations'" (1990).

Specifically, did the moving of a dragline over an area "adjacent to" fall under the 

definition of "surface mining operations" which required a permit? Research on the 

definition of "adjacent to" retrieved material that discussed the definition of "in 

connection with". This report includes WILLOWBROOK MINING CO. v OSM.

COALEX STATE INQUIRY REPORT - 136, "Definition of 'in connection with' under 

'surface mining operations'" (1990).

This Report includes legislative history, federal SMCRA decisions, Interior 

administrative decisions and Federal Register notices.

ATTACHMENTS

A. K & R COAL CO., INC. v OSM, Docket Nos. DV 91-1-R, DV 91-3-R (1994). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 3

B. PEABODY COAL CO. v RIDENOUR, 515 NE 2d 1163 (Ind App 1 Dist 1987)." 

C. CONSOLIDATION COAL CO. v OSM, Docket No. CH 0-224-P (1981). 

D. MULLINS AND BOLLING CONTRACTORS, 4 IBSMA 156, IBSMA 81-75 (1982). 

E. COALEX STATE INQUIRY REPORT - 157, "Definition of 'adjacent to' under 

'surface mining operations'" (1990). [This report includes WILLOWBROOK 

MINING CO. v OSM.] 

F. COALEX STATE INQUIRY REPORT - 136, "Definition of 'in connection with' 

under 'surface mining operations'" (1990).