OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 4

STATE INQUIRY REPORT - 305

October 1994

Tom Roan, Esquire

Attorney General's Office

123 Capitol Building

Cheyenne, Wyoming 82002

TOPIC: "SUBSTANTIAL ECONOMIC LOSS" OR "CONDITIONS BEYOND THE 

CONTROL OF THE PERMITTEE" AS REASONS FOR EXTENDING THE INITIATION 

OF OPERATIONS 

INQUIRY: An permitted operator built an access road and dug monitor wells but did not 

begin mining coal because of poor market conditions. The operator wants to transfer the 

permit to another company; the second company wishes to renew the permit. Are "poor 

market conditions" considered a "condition beyond the control of the permittee" for 

extending the three year initiation of operations period? [SMCRA Sec. 506(c) and 30 

CFR 773.19(e)] Should the original permittee have notified the regulatory authority that 

it was temporarily ceasing operations? An objector to the permit renewal complained 

that the renewal will interfere with adjacent use; is there any information on SMCRA 

Sec. 506(d)(1)(C)? 

SEARCH RESULTS: The use of COALEX and other LEXIS materials along with 

existing COALEX State Inquiry Reports identified relevant material on the several 

issues raised by this inquiry. Copies of the materials listed below are attached. 

MARKET CONDITIONS/CONDITIONS BEYOND THE CONTROL OF THE 

PERMITTEE 

CITY OF SCRANTON v COMMONWEAL OF PA., DER AND DIAMOND COLLIERY 

CO., 1986 Pa Envirn LEXIS 11, EHB Docket No. 85-335-W (1986).

The Board ruled that DER could reissue a surface mining permit to Diamond without 

waiting for the ultimate adjudication of the issue of compliance with Scranton's zoning 

ordinance. Diamond was unable to commence mining with the original permit due to 

litigation over Diamond's local zoning permit.

A.C.N., INC. v COMMONWEAL OF PA., DER, 1991 Pa Envirn LEXIS 164, EHB 

Docket No. 89-167-M (1991).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 4

The Board sustained the assessment of civil penalties against a corporation operating a 

municipal solid waste transfer station in Philadelphia. ACN argued that their violations 

were caused by "conditions beyond its control". The Board's ruling provides good 

language on the issue.

COALEX STATE INQUIRY REPORT - 172, "Inability to comply (30 CFR 843.18)" 

(1991). 

Interior administrative decisions in which permittees provide reasons why they were 

unable to comply, including poor market conditions. Of particular interest are the 

following opinions:

1. CLEAR CREEK COAL CO. v OSM, 101 IBLA 6, IBLA 85-406 (1988). CLEAR 

CREEK COAL CO. v OSM, Docket Nos. NX 1-49-R, NX 1-59-R (1985). 

SYLLABUS: "Whether particular reclamation work is timely must be determined 

by taking into account the overall circumstances of a surface coal mining and 

reclamation operation." 

2. GLENN COAL CO. v OSM, Docket No. CH 0-279-R (1984). Glenn Coal received 

an NOV for failing to restore disturbed areas in a timely manner. Glenn Coal had 

halted its mining operations due to unfavorable coal marketing conditions but 

was planning to reopen the pit. The ALJ ruled that an NOV or CO could not be 

vacated because of the permittee's "inability to comply". 

3. SHAWNEE COAL CO. v OSM, Docket No. In 2-2-R (1981). Among its 

explanations for failing to run drainage from its tipple area through a 

sedimentation pond, Shawnee stated that it was unable to dismantle the tipple 

equipment due to its inability to sell stockpiled coal fines because of the poor 

market conditions for its coal. The ALJ stated that congressional intent made it 

clear that a permittee's options were to comply with the regulations or "not 

conduct operations". 

4. COAL ENERGY, INC. v OSM, 105 IBLA 385, IBLA 87-190 (1988). Failure to 

comply will not be excused because of conditions beyond the control of the 

permittee (drought).

CLEAR CREEK COAL CO. v OSM, Docket No. Nx 5-99-R (1987).

As part of its reclamation plan, Clear Creek proposed to remove its coal stockpile "as 

market conditions allow, over the next year."

C&N COAL CO. v OSM, 103 IBLA 48, IBLA 86-166 (1988). 

C&N argued that "there was no negligence since any violation was caused by 

conditions beyond [its] control." The Board found that C&N's failure to pass surface 

drainage through properly placed sedimentation ponds demonstrated a "lack of 

concern" on C&N's part and the Board raised the assigned points for the violation.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 4

MOSCOVICH AND MOSCOVICH MINING CO. v TRYCK, 875 P 2d 1293 (Alaska 

1994). [Excerpts]

Footnote 5 makes reference to stopping mining due to economic conditions. Enclosed 

for background.

INITIATION OF OPERATIONS

COALEX STATE INQUIRY REPORT - 249, "Initiation of Operations" (1993). 

Included here are legislative history materials on SMCRA Sec. 506(c) and 30 CFR 

773.19(e) which require the permittee to commence operations within three years of 

issuance of the permit.

TEMPORARY CESSATION OF OPERATIONS

COALEX STATE INQUIRY REPORT - 273, "Temporary Cessation of Operations" 

(1994). 

Research on 30 CFR 816.131 (Temporary cessation of operations) and 816.132 

(Permanent cessation of operations) retrieved preambles to federal rules, an OSM 

directive and two related administrative decisions; however, no items were retrieved that 

specifically discussed what constitutes "temporary" cessation.

ATTACHMENTS

A. CITY OF SCRANTON v COMMONWEAL OF PA., DER AND DIAMOND 

COLLIERY CO., 1986 Pa Envirn LEXIS 11, EHB Docket No. 85-335-W (1986).

B. A.C.N., INC. v COMMONWEAL OF PA., DER, 1991 Pa Envirn LEXIS 164, EHB 

Docket No. 89-167-M (1991). 

C. COALEX STATE INQUIRY REPORT - 172, "Inability to comply (30 CFR 843.18)" 

(1991). Interior administrative decisions in which permittees provide reasons why 

they were unable to comply, including poor market conditions. Of particular 

interest are the following opinions: 

1. CLEAR CREEK COAL CO. v OSM, 101 IBLA 6, IBLA 85-406 (1988). 

2. CLEAR CREEK COAL CO. v OSM, Docket Nos. NX 1-49-R, NX 1-59-R 

3. GLENN COAL CO. v OSM, Docket No. CH 0-279-R (1984). 

4. SHAWNEE COAL CO. v OSM, Docket No. In 2-2-R (1981). 

5. COAL ENERGY, INC. v OSM, 105 IBLA 385, IBLA 87-190 (1988). 

D. CLEAR CREEK COAL CO. v OSM, Docket No. Nx 5-99-R (1987). 

E. C&N COAL CO. v OSM, 103 IBLA 48, IBLA 86-166 (1988).

F. MOSCOVICH AND MOSCOVICH MINING CO. v TRYCK, 875 P 2d 1293 

(Alaska 1994). [Excerpts] 

G. COALEX STATE INQUIRY REPORT - 249, "Initiation of Operations" (1993). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 4 of 4

H. COALEX STATE INQUIRY REPORT - 273, "Temporary Cessation of 

Operations" (1994).