OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 7

COALEX STATE INQUIRY REPORT - 233

November 1992

Olga Brunning, Esquire

Department of Natural Resources

Tawes Building - Room C-4

580 Taylor Avenue

Annapolis, Maryland 21401

TOPIC: SUSPENSION OR REVOCATION OF PERMIT FOR INSUFFICIENT 

INFORMATION; LIABILITY FOR ATTORNEY'S FEES

INQUIRY: Can a newly issued permit be suspended by the state in order to request additional 

information from the applicant? If, as result of the permit suspension, the operator sues and wins, 

will the state be liable for attorney's fees? Please locate relevant case law. 

SEARCH RESULTS: Using the COALEX Library, LEXIS and existing COALEX Reports, 

relevant decisions and Federal Register notices were identified. The retrieved materials are 

discussed below, by topic. Copies are attached.

SUSPENSION OR REVOCATION OF PERMIT

LOWER PROVIDENCE TOWNSHIP v COMMONWEALTH OF PA., DEPT. OF 

ENVIRONMENTAL RESOURCES (DER) AND ALTERNATE ENERGY STORE, INC., 

PERMITTEE, 1988 EHB 275, 1988 Pa Envirn LEXIS 36, EHB Docket No. 81-078-M 

(1988).

"Synopsis: When it is discovered, subsequent to the issuance of the Mine Drainage Permit, that 

an unanticipated condition exists on the site with potential harm to the environment, the permit 

will be suspended and the matter will be remanded to DER for the purpose of reviewing the 

Mine Drainage Permit and issuing an amendment, if deemed necessary."

SAMUEL M. MULLINAX, 96 IBLA 52, IBLA 85-722 (1987).

"HEADNOTES: When [OSM] issues a 10-day notice to a state...based upon a citizen's complaint 

which alleges irregularities in the issuance of surface mining permits, and the state responds by 

demonstrating that the operator and the state complied with relevant provisions of the state's 

surface mining statute, the Board will affirm the decision of the Acting Director, [OSM], that the 

response to that citizen's complaint was appropriate."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 7

INNOVATIVE DEVELOPMENT OF ENERGY, INC. (IDE) v OSM, Docket No. NX 6-44-

R (1987).

A description of the facts of the case included the following: The state revoked the original 

NPDES permit it had issued because IDE provided incorrect information in their initial 

application. IDE appealed this revocation. The Tennessee Water Quality Control Board upheld 

the permit revocation. IDE submitted revised mining plans and specifications and the NPDES 

permit was reissued.

The ALJ affirmed the validity of the NOV and CO, issued for violations of SMCRA.

COMMONWEALTH OF PA., PA. FISH COMMISSION AND LITTLE CLEARFIELD 

CREEK WATERSHED ASSOC. v DER AND AL HAMILTON CONTRACTING CO., 

PERMITTEE, 1991 Pa Envirn LEXIS 81, EHB Docket No. 86-338-W (1991).

"SYNOPSIS: A Department of Environmental Resources' (Department) approval of a request for 

a variance to surface mine coal within the 100-foot stream barrier was procedurally defective 

when there was no showing that the proposed variance was advertised as required [by Pa. 

SMCRA]. Further, the Department did not provide the Pennsylvania Fish Commission (FPC) a 

copy of the proposed variance to allow it to comment on the request, as required by the statute 

and regulation."

PEABODY COAL CO. v OSM, THE HOPI TRIBE, MAXINE KESCOLI, THE NAVAJO 

NATION, INTERVENORS, Docket No. TU 90-2-PR (1992).

One of the special conditions attached to the permit required Peabody to submit updated maps of 

archaeological sites. In approving the 1992 Settlement Agreement and the Special Conditions, 

the ALJ stated that "OSMRE can require [Peabody] not only to provide information but also to 

demonstrate on the basis of such information that its permit application is complete and accurate 

and that [Peabody] has complied with all statutory and regulatory requirements."

PAUL F. KUHN, 120 IBLA 1, IBLA 89-539 (1991).

"HEADNOTES: Where a landowner provides evidence that an initial decision that an operator 

has a right to enter and mine an area that has been permitted may be in error, state authorities 

must assure that the operator has the right to enter and mine before the area is mined, and state 

action which fails to do so will be deemed inappropriate action."

COALEX STATE INQUIRY REPORT - 222, "Permit revisions and midterm permit 

review" (July, 1992).

This Report discusses the RA's ability to alter previously approved permit conditions or permit 

revisions and the purpose behind the need for the midterm permit review. Attached are OSM 

Directives, administrative case law and Federal Register preambles.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 7

COALEX STATE INQUIRY REPORT - 159, "Review of permit applications; subsidence" 

(July, 1991).

The materials included in this Report discuss the regulatory authority's responsibility in 

processing permits and the responsibility of the applicant to provide sufficient information on the 

application for a mining permit. [Materials discussing subsidence are not included with this 

Report.]

COALEX STATE INQUIRY REPORT - 122, "Permitting -- (A) Permit application 

approval process; (B) Impacts on areas outside the permit boundary" (July, 1989).

The inquirer wanted to know if any state regulatory agencies engage in independent information 

gathering in the permitting process or only review, evaluate and criticize the information the 

operator puts in the permit application. No specific state regulations were identified; however, 

several relevant cases were retrieved.

LIABILITY FOR ATTORNEY'S FEES

SHEESLEY v DER, EHB Docket No. 85-064-G (1986).

In this unsuccessful third party appeal from a release of a mining bond by DER, the EHB held it 

has the discretion to award litigation expenses if the petitioner either succeeds on the merits of 

the case, or if exceptional circumstances exist. Examples of such exceptional circumstances are: 

where DER procedures, policies, rules, or regulations are modified or where the petitioner has 

made a substantial contribution to the litigation.

JAY TOWNSHIP, ET AL. v DER AND E.M. BROWN COAL CO., INC., PERMITTEE, 

1987 Pa Envirn LEXIS 144, EHB Docket No. 82-300-W (1987). 

Petitioners were awarded attorney's fees, having "substantially contributed" to the outcome of the 

litigation.

"Petitioners, in a third party posture, challenged the DER's issuance of a mining permit to 

Permittee. During the hearing on the merits, the Petitioners' efforts led to a supersedeas of the 

permit while Permittee gathered evidence in support of its permit. During the continuance, 

Permittee determined its permit was probably wrongfully issued because of the potential for 

pollution from the mine site existed, and, thereafter, requested cancellation of the permit."

BIG B MINING CO. v DER, 1990 Pa Envirn LEXIS 36, EHB Docket No. 83-215-G (1990).

"SYNOPSIS: A petition for attorneys fees and other costs cannot be granted under section 4(b) 

of Pa. SMCRA where the petitioner is the permittee and the underlying proceeding was an 

appeal from the denial of a permit application. Construing section 4(b) of Pa. SMCRA 

consistently with regulations adopted by the Department of the Interior to implement a similar 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 4 of 7

provision under Fed. SMCRA, the Board rules that a permittee is not eligible for cost recovery in 

permit application proceedings."

SMITH v DER AND FLK MINING CO., PERMITTEE, 1990 Pa Envirn LEXIS 151, EHB 

Docket No. 87-414-F (1990).

"SYNOPSIS: A petition for costs and attorney's fees filed by a Permittee under Section 4b of the 

Pennsylvania Surface Mining Conservation and Reclamation Act, 52 P.S. section 1396.4b, is 

denied. The fact that the Appellant withdrew her appeal prior to a hearing does not provide a 

sufficient basis for concluding that the Permittee is a 'prevailing party.'"

COALEX STATE INQUIRY REPORT - 120, "Attorneys' fees" (July, 1989). 

Included here are state and federal cases that rule on the award of attorneys' fees to surface 

mining operators as a result of challenges to permit decisions. [NOTE: The Report is included 

here without attachments.]

COALEX STATE INQUIRY REPORT - 180, "Attorneys' fees in non-enforcement, nonadversarial proceedings" (July, 1990).

This Report adds several decisions to Report No. 120. [NOTE: The Report is included here 

without attachments.]

COALEX STATE INQUIRY REPORT - 220, "Petitions for costs, expenses and attorney's 

fees" (June, 1992).

Listed in this Report are the Interior and Pennsylvania administrative decisions, several state and 

recent federal cases, and legislative history materials that rule on the award of costs, expenses 

and attorney's fees.

ATTACHMENTS

A. LOWER PROVIDENCE TOWNSHIP v COMMONWEALTH OF PA., DEPT. OF 

ENVIRONMENTAL RESOURCES (DER) AND ALTERNATE ENERGY STORE, 

INC., PERMITTEE, 1988 EHB 275, 1988 Pa Envirn LEXIS 36, EHB Docket No. 81-

078-M (1988). 

B. SAMUEL M. MULLINAX, 96 IBLA 52, IBLA 85-722 (1987). 

C. INNOVATIVE DEVELOPMENT OF ENERGY, INC. (IDE) v OSM, Docket No. NX 6-

44-R (1987). 

D. COMMONWEALTH OF PA., PA. FISH COMMISSION AND LITTLE CLEARFIELD 

CREEK WATERSHED ASSOC. v DER AND AL HAMILTON CONTRACTING CO., 

PERMITTEE, 1991 Pa Envirn LEXIS 81, EHB Docket No. 86-338-W (1991). 

E. PEABODY COAL CO. v OSM, The Hopi Tribe, Maxine Kescoli, The Navajo Nation,

Intervenors, Docket No. TU 90-2-PR (1992). 

F. PAUL F. KUHN, 120 IBLA 1, IBLA 89-539 (1991). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 5 of 7

G. COALEX STATE INQUIRY REPORT - 222, "Permit revisions and midterm permit 

review" (July, 1992). 

A. OSM DIRECTIVE, Subject No REG-17, Transmittal No 382, "Midterm Review 

of Federal Permits" (Issued October 6, 1987). 

B. IN THE MATTER OF: CONSOLIDATION COAL CO. v COMMONWEAL. OF 

PENN., DEPT. OF ENVIRON. RESOURCES, 1976 EHB 44, EHB Docket No 

72-297-D (1976). 

C. OSM DIRECTIVE, Subject No REG-21, Transmittal No 398, "Findings and 

Determinations for Revisions and Renewals of Federal Permits" (Issued 

November 10, 1987). 

D. 48 FR 22092 (May 16, 1983). Final Rule. Topsoil. 

E. 48 FR 44344 (September 28, 1983). Final Rule. Permitting.

H. COALEX STATE INQUIRY REPORT - 159, "Review of permit applications; 

subsidence" (July, 1991). 

A. 47 FR 27694 (JUNE 25, 1982). Proposed rule. Permitting. [Excerpts.] 

B. 48 FR 44344 (SEPTEMBER 28, 1983). Final rule. Permitting. [Excerpts.] 

C. NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, 89 IBLA 1, 

IBLA 83-757, 81-83 (September 27, 1985). 

D. NATURAL RESOURCES DEFENSE COUNCIL, INC. v OSM, 94 IBLA 269, 

IBLA 83-757, 81-83 (November 18, 1986 - amends September 27, 1985 

decision). 

E. MOOSE COAL CO. v CLARK, 687 F Supp 244 (WD Va 1988). 

F. VIRGINIA CITIZENS FOR BETTER RECLAMATION [VCBR], 82 IBLA 37, 

IBLA 83-702 (July 10, 1984). 

I. COALEX STATE INQUIRY REPORT - 122, "Permitting -- (A) Permit application 

approval process; (B) Impacts on areas outside the permit boundary" (July, 1989). 

A. KY. 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. PA. CODE TITLE 25, Sec. 86.31 (1982) Public notices of filing of permit 

applications. 

C. PA. CODE TITLE 25, Sec. 86.33 Right to file written objections. 

D. ILL. ADMIN. CODE TITLE 62, Sec. 1784.14 (1988) Hydrologic Information 

[corresponding to 30 CFR 784.14]. 

E. IND. 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. COLO. CODE REGS. Section 2.09.1 Small operator assistance program; 

Assistance provided 

G. VILLAGE OF PLEASANT CITY, OHIO v DIVISION OF RECLAMATION, 

No. CA-835, 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). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 6 of 7

J. Excerpt from IN RE PERMANENT SURFACE MINING REGULATION 

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

J. SHEESLEY v DER, EHB Docket No. 85-064-G (1986). 

K. JAY TOWNSHIP, ET AL. v DER AND E.M. BROWN COAL CO., INC., 

PERMITTEE, 1987 Pa Envirn LEXIS 144, EHB Docket No. 82-300-W (1987). 

L. BIG B MINING CO. v DER, 1990 Pa Envirn LEXIS 36, EHB Docket No. 83-215-G 

(1990). 

M. SMITH v DER AND FLK MINING CO., PERMITTEE, 1990 Pa Envirn LEXIS 151, 

EHB Docket No. 87-414-F (1990). 

N. COALEX STATE INQUIRY REPORT - 120, "Attorneys' fees" (July, 1989). [NOTE: 

The following list of cases are discussed in Report No. 120; however, copies of these 

decisions are not attached.] 

A. ANNOTATION, "Award of Attorneys' Fees Pursuant to Sec. 520(d), 520(f), 

525(e), or 703(c) of Surface Mining Control and Reclamation Act of 1977 (30 

USCS Sec. 1270(d), 1270(f), 1275(e), 1293(c)", 89 A.L.R. Fed. 170 (1988). 

B. RUCKELSHAUS v SIERRA CLUB, 463 U.S. 680 (1983). 

C. PENNSYLVANIA v DELAWARE VALLEY CITIZENS' COUNCIL FOR 

CLEAN AIR, 478 U.S. 546 (1986). 

D. BLUM v STENSON, 104 S.Ct. 1541 (1984). 

E. COPELAND v MARSHALL, 641 F.2d 880 (D.C. Cir. 1980). 

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

810 (D. Utah 1986). 

G. HARDY v COMMONWEALTH OF PENNSYLVANIA, 101 Pa. Commw. 1 

(1986). 

H. VIRGINIA CITIZENS FOR BETTER RECLAMATION, 88 IBLA 126, IBLA 

84-838 (1985). 

I. DONALD ST. CLAIR, 84 IBLA 236 (1985). 

J. COUNCIL OF THE SOUTHERN MOUNTAINS, INC. v OSM, 3 IBSMA 44, 

IBSMA No. 80-34 (1981). 

K. DENNIS R. PATRICK v OSM, 1 IBSMA 248, Appeal No. IBSMA 79-21 (1979). 

L. TURNER BROS., INC. v OSMRE, Docket Nos. TU 6-24-R, TU 6-28-R, TU 6-

36-R, TU 6-45-R, TU 6-51-R, TU 6-74-R, TU 6-106-R, TU 7-3-R, TU 7-17-R, 

TU 7-20-R, TU 7-24-R, TU 7-25-R, TU 7-27-R, TU 7-28-R (1987). 

M. ALTERNATE FUELS, INC. v OSM, Docket No. TU 5-23-R (1985). 

N. DELTA MINING CORP., 3 IBSMA 252, IBSMA 81-60 (1981). 

O. JAY TOWNSHIP v COMMONWEALTH OF PENNSYLVANIA 

DEPARTMENT OF ENVIRONMENTAL RESOURCES, EHB Docket No. 82-

300-W (1987). 

P. KWALWASSER v COMMONWEALTH OF PENNSYLVANIA 

DEPARTMENT OF ENVIRONMENTAL RESOURCES, EHB Docket No. 84-

108-M (1988). 

Q. SHEESLEY v COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF 

ENVIRONMENTAL RESOURCES, EHB Docket No. 81-061-H (1982).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 7 of 7

O. COALEX STATE INQUIRY REPORT - 180, "Attorneys' fees in non-enforcement, nonadversarial proceedings" (July, 1990). [NOTE: The following list of cases are discussed 

in Report No. 18; however, copies of these decisions are not attached.] 

1. NORTH CAROLINA DEPT. OF TRANSPORTATION v CREST STREET 

COMMUNITY COUNCIL, 479 US 6 (1986). 

2. WEBB v BOARD OF EDUCATION OF DYER CITY, 471 US 234 (1985). 

3. US (EPA) v ENVIRONMENTAL WASTE CONTROL, INC., 737 F Supp 1485 

(ND Ind 1990). 

4. HONDA v MITCHELL, 417 F 2d 324 (DC Cir 1969). 

5. DEMIER v GONDLES, 676 F 2d 92 (4th Cir 1982). 

6. Panitch v Wisconsin, 451 F Supp 132 (ED Wisc 1978). 

7. WINTON V AMOS, 255 US 373 (1921). 

8. COALEX STATE INQUIRY REPORT - 120, "Attorneys' Fees" (1989). 

9. NATURAL RESOURCES DEFENSE COUNCIL, ET AL. v OSM, WEST ELK 

COAL, INTERVENOR, STATE OF COLORADO, INTERVENOR, 107 IBLA 

339, IBLA 87-200 (1989). 

10. SAVE OUR CUMBERLAND MOUNTAINS, INC., 111 IBLA 197, IBLA 89-

410 (1989). Petition approved. 

11. MARTIN v COMMONWEALTH OF PENN. DEPT. OF ENVIRONMENTAL 

RESOURCES, 1989 Pa Envirn LEXIS 99, EBH Docket No. 85-064-W (1989). 

12. KAY v EHRLER & KENTUCKY BOARD OF ELECTIONS, 111 S Ct 1435, 

113 L Ed 2d 486, (1991). 

13. AVOYELLES SPORTSMEN'S LEAGUE v MARSH, 786 F 2d 631 (5th Cir 

1986). 

14. Alabama Power Co., et al. v Gorsuch and Sierra Club, et al., Intervenors, 672 F 2d 

1 (DC Cir 1982).

P. COALEX STATE INQUIRY REPORT - 220, "Petitions for costs, expenses and 

attorney's fees" (June, 1992). 

A. The list of Congressional Records entries available in Legislative History files in 

the COALEX Library. 

B. Interior ALJ decisions listed above: First page in "KWIC". 

C. The list of all ALJ cases retrieved in response to the search request (the request is 

also included). 

D. IBLA and IBSMA decisions listed above: First page in "KWIC". 

E. Pennsylvania Environmental Hearing Board decisions: First page in "KWIC". 

F. FIDEL RAMOS, ET AL. v RICHARD D. LAMM, 539 F Supp 730 (D Col 1982). 

[Full text of case.] 

G. State court decisions listed above: First page in "KWIC". 

H. CITY OF BURLINGTON v ERNEST DAGUE, SR., et al., 1992 US LEXIS 

4363, 60 USLW 4717 (US 1992). [Full text of case.]