OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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COALEX STATE COMPARISON REPORT - 334

November 1997

Jennifer McCumber, Esquire

New Mexico Minerals & Natural Resources Department

2040 South Pacheco Street

Santa Fe, New Mexico 87505

TOPIC: PUBLIC NOTICE REQUIREMENTS FOR PERMIT MODIFICATION

INQUIRY: A permit issued in 1996 was contested by two citizens. The case is still 

under administrative appeal. In early 1997, the permittee requested a modification of the 

permit to change the water monitoring plan. This revision to the permit was considered 

minor or insignificant and, according to state regulations, did not require advertising or 

public participation. These same citizens contested the permit modification on the 

grounds that there was no public notification of the modification. Do other states require 

public notification for permit modifications? Can permit modifications be appealed? 

SURVEY & SEARCH RESULTS: A telephone survey of five IMCC member states and 

COALEX/LEXIS research were conducted. Results of the survey appear below. A 

search of Interior and Pennsylvania administrative decisions did not yield any 

substantive materials on point. Several preambles to federal rules were identified which 

contain some relevant information. Copies of the items listed below are attached. 

FEDERAL REGULATIONS

According to 30 CFR 773.13 "Public participation in permit processing", the public 

notification and participation processes are required for applications for a permit, a 

"significant revision of a permit" or renewal of a permit. In 30 CFR 774.13 "Permit 

revisions", the state regulatory authority is responsible for establishing guidelines 

indicating for which revisions all the permit application information requirements 

including notice and public participation apply. 

SUMMARY OF SURVEY RESPONSES

1. The state contacts surveyed reported that public notice and participation are

required for major or significant revisions to permits. These processes are not

required for minor or insignificant permit revisions. For all surveyed, modifications

to the water monitoring plan constituted a minor or insignificant revision.
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2. Virginia indicated that advertising might be required for an insignificant permit

revision, such as a modification to the water monitoring plan, if this had been an

issue at the time the original permit was approved. The Pennsylvania contact

indicated that a revision to a permit being contested would not be approved if the

revision involved the issue being contested in the original permit; in such a

situation, the decision on the revision would be held pending the outcome of the

litigation on the original permit.

3. All decisions of the regulatory authority are appealable.

4. None of the state contacts recalled any case similar to the facts of this inquiry.

FEDERAL REGISTER NOTICES

Excerpts from preambles to three proposed and final rules follow. These items from the 

Regulatory History of the permit revision rules were selected as being the most relevant 

to this inquiry.

44 FR 14902 (MARCH 13, 1979). PERMANENT PROGRAM FINAL PREAMBLE - 

FINAL RULE. PART 788 PERMIT REVIEWS, REVISIONS AND RENEWALS. 

(Became Part 774 in 1983)

In the discussion of 788.11 "Regulatory authority (RA) review of outstanding permits", a 

"commenter requested that public notice and opportunity to submit comments be added 

to this section." OSM rejected this suggestion, stating that other regulations provide 

citizens the opportunity to file complaints with the RA or OSM if they believe an 

operation violates the rules or is creating a danger to the public or the environment.

In 788.13 "Permit revisions", OSM added language to ensure that RAs "provide 

parameters in their regulations to determine what changes in the methods of operations 

or reclamation constitute a significant departure from those approved in the original 

permit and, therefore, necessitate a revision."

48 FR 44344 (SEPTEMBER 28, 1983). FINAL RULE. PARTS 773, 774, 788, etc. 

REQUIREMENTS OF APPLICATIONS.

According to these rules, all changes to the original permit require an RA-approved 

revision to the permit. The RA is responsible for establishing guidelines which "set the 

scale or extent of significant revisions'. Significant revisions are required to meet all the 

permit application requirements for those parts of the permit which would be revised 

and all processing provisions including notice, public participation...." Nonsignificant 

revisions are subject to the review procedures "established under the State or Federal 

program."

59 FR 53884 (OCTOBER 26, 1994). PROPOSED RULE. NOTIFICATION AND 

PERMIT PROCESSING.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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OSM proposed to revise sec. 773.15(a) to require the RA to "provide parties to an 

informal conference the same notification of decisions modifying the permit application 

as for decisions approving or denying the application."

PAEHB DECISION

HAROLD WEISS v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL 

PROTECTION AND MARTIN STONE QUARRIES, INC., PERMITTEE, Pa EHB 

Docket No. 94-283-MG, 1996 Pa. Envirn. LEXIS 86 (1996).

This state administrative case mentions the Department's failure "to notify the public 

concerning modifications which were made to the permit application"; however, this 

issue was precluded from the appeal.

ATTACHMENTS

A. Survey Responses 

B. 30 CFR 773.13 Public participation in permit processing & 30 CFR 774.13 Permit 

revisions. 

C. 44 FR 14902 (March 13, 1979). Permanent Program Final Preamble - Final Rule. 

Part 788 Permit reviews, revisions and renewals. (Became Part 774 in 1983) 

D. 48 FR 44344 (September 28, 1983). Final Rule. Parts 773, 774, 788, etc. 

Requirements of applications. [Excerpts] 

E. 48 FR 44344 (September 28, 1983). Final Rule. Parts 773, 774, 788, etc. 

Requirements of applications. [Excerpts] 

F. Harold Weiss v Commonwealth of Penn., Dept. Of Environmental Protection and 

Martin Stone Quarries, Inc., Permittee, Pa EHB Docket No. 94-283-MG, 1996 

Pa. Envirn. LEXIS 86 (1996). 

Survey and research conducted by: Joyce Zweben Scall

SURVEY RESPONSES

ILLINOIS

Minor or insignificant permit revisions do not require public notice and comment. 

Changes to water monitoring plans are not considered significant or major permit 

revisions. All agency decisions are appealable.

It would not make any difference if the original permit was under appeal in considering a 

permit modification. The permit revision would be considered a separate action.

INDIANA
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Non-significant permit revisions do not require public input. Changes to water 

monitoring plans fall under the non-significant category. 

There have been cases were issued permits were challenged, operations began and 

modifications to the original permit were made while the permits were under review. 

While all state permitting decisions are appealable, the contact could not recall any 

situations where an insignificant permit revision, by itself, was contested. 

PENNSYLVANIA

State regulations specify what requires public notice. Minor/insignificant revisions do not 

require the public notice procedure. Modifications to a water monitoring plan that do not

involve discharges generally would full into the minor/insignificant category.

If an issued permit is being challenged, the RA likely to issue a permit modification if the 

revision is unrelated to the aspect of the permit being contested. A minor/insignificant 

permit revision request would be put on hold if it involved the issue being litigated.

VIRGINIA

Virginia has state guidelines that specify which types of permit modifications are 

considered minor/insignificant not requiring public notice and participation versus 

major/significant ones that do require public notice and participation. Changes to a 

water monitoring plan would typically be considered a minor permit modification not 

requiring public notice. However, if the water monitoring plan was a significant issue 

when the original permit was issued, then any modification to the plan would be subject 

to the public notification requirements. All state permitting decisions are appealable.

The state contact did not recall any situation where a permit being appealed was 

modified and the modification was also appealed. However, there was a Right-of-Entry 

case where a minor modification was appealed. In this case, the appellant was found to 

have no legal standing.

WEST VIRGINIA

State regulations specify which permit modifications require advertising and which 

modifications don't require advertising. The type of permit modification issued here 

would qualify as a minor modification not requiring advertising. If a permit is viable, the 

state would issue modifications even if the original permit was challenged and under 

appeal. All state permitting decisions are appealable.

The West Virginia contact did not recall any situations similar to this inquiry nor any 

permits where a minor modification was appealed.