OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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COALEX STATE INQUIRY REPORT - 222

July 1992

Myra Spicker, Esquire

Division of Reclamation

Department of Natural Resources

309 W. Washington Street

Suite 201

Indianapolis, Indiana 46204

TOPIC: PERMIT REVISIONS AND MIDTERM PERMIT REVIEWS

INQUIRY: An operator's recent request for a permit revision, for use of a topsoil substitute, 

was denied. The operator (Peabody) claimed that a similar provision in the original permit and 

subsequent permit revision requests have been approved; no NOV's have been issued for failure 

to meet the applicable performance standards. Please locate any material which 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. 

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

materials available in LEXIS. No information was identified in the legislative history, Federal 

Register preambles or Interior administrative decisions that specifically addresses the RA's 

ability to alter previously approved permit conditions or permit revisions when there has been no 

failure to meet performance standards. However, one relevant OSM Directive on "Midterm 

Review of Federal Permits" and a Pennsylvania administrative decision which ruled on the 

Department of Natural Resources' change of an existing practice were retrieved. Also included 

here, for background, are a second OSM Directive on revisions and renewals of federal permits 

and portions of two 1983 Federal Register preambles to final rules on topsoil and permit 

processing. 

OSM DIRECTIVE, Subject No REG-17, Transmittal No 382, "Midterm Review of Federal 

Permits" (Issued October 6, 1987).

The Directive established the policies and procedures that federal permitting entities (FPE) are 

required to follow when conducting midterm reviews of federal permits. Pertinent sections are 

reproduced below. The full text of the Directive is attached.

3. Policy/Procedures. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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a. Background. Section 511 requires the RA to review outstanding permits and may "require 

reasonable revision or modification of the permit during the permit term."

c. Policy. "The FPE shall conduct the midterm permit review as an evaluation of the adequacy of 

the permit, not as an evaluation of the permittee's compliance with permit provisions.

. . .

"When, pursuant to any review, the FPE determines that permit revisions are necessary or 

appropriate to maintain or achieve compliance with the applicable State or Federal program, the 

FPE shall order the permittee to revise the permit accordingly, and, in accordance with the 

applicable program counterpart to 30 CFR 774.11(c), shall prepare and document written 

findings explaining the need for the revisions. If the review finds no need for permit revisions, 

the FPE shall prepare and document a determination of adequacy.

"The FPE may also identify permit provisions that are no longer relevant or which have been 

rendered obsolete or inefficient by technological advances. The FPE shall notify the permittee in 

writing that the irrelevant, obsolete, or inefficient provisions are being considered for deletion 

from the permit. If the permittee concurs, these provisions may be deleted."

d. Review elements and procedures. "The FPE shall: (1) Review all permit documents, including 

the permit application package, permit revisions, bond releases or bond release applications, 

monitoring data, and any annual or other reports, to identify all potential problem areas and 

determine whether revisions are needed.

. . .

"(3) Evaluate whether the assumptions underlying the finding made prior to the approval of the 

permit and any variances or special mining practices remain valid and whether, under current 

permit provisions, the site can be successfully reclaimed to achieve the approved postmining 

land use.

"(4) Review the site's inspection and enforcement history, including all enforcement actions and 

citizen complaint records, to identify any permit-related problems that may not have been 

identified during review of the permit file.

"(5) Review all changes in the pertinent State or Federal regulatory program made since permit 

issuance and determine whether any permit provisions need to be revised for the operation to 

remain in compliance with the current approved program."

IN THE MATTER OF: CONSOLIDATION COAL CO. v COMMONWEAL. OF PENN., 

DEPT. OF ENVIRON. RESOURCES (PADER), 1976 EHB 44, EHB Docket No 72-297-D 

(1976).

Five coal companies appealed PADER's "present policy of issuing one consolidated mine 

drainage permit for an entire mine operation instead of continuing the prior practice of issuing a 

mine drainage permit for each discharge at a given mine." This policy, never promulgated in a 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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regulation, was instituted in 1970 but was not immediately applied to consolidate all existing 

mine drainage permits because of "manpower limitations". The practice had been "to implement 

the policy by issuing one consolidated permit, usually by amending an existing permit, whenever 

an applicant applied for a new borehole or shaft at an existing mine." 

The Environmental Hearing Board (EHB) ruled that the consolidation of the mine drainage 

permits was invalid. The EHB stated that while section 315 of Pennsylvania's Clean Streams 

Law did not specify whether preventing discharges to the waters of the commonwealth should be 

accomplished by one permit for a particular mine that includes operations and discharges or by 

separate permits for the operation and the discharges. "Whatever system the Department 

adopted, however, should have some rational basis in administrative practice, should be 

accessible to the parties affected and should be consistently and fairly applied."

"In the best of all possible administrative worlds, all general pronouncements of policy and 

certainly all changes in general policy would be duly proclaimed by regulation after an 

appropriate deliberative rule-making process....However, in our view the law does not require a 

rule-making or other formal procedure unless the pronouncement of policy or change in policy 

will affect substantive rights....Appellants believe that their substantive rights are potentially 

affected because the Department will use the consolidated permit as an enforcement tool to close 

down an entire operation when one discharge, even an unrelated discharge, is in violation."

"In sum, we believe that a one-permit system for mine operations may be a permissible and even 

logical procedure under The Clean Streams Law, but that it was a significant interpretative 

change of general and possible substantive effect and should therefore have been accomplished 

by Regulation. The articulation and publication of the rules under which the Department is 

operating is necessary as a guarantee of due process and protection against the arbitrary exercise 

or abuse of administrative power."

"We do not agree...with the Department's witness who thought that the opportunity to review a 

permit on a proposed amendment would enable the Department to alter the conditions of a 

permit. It is fundamentally offensive to our sense of justice in a democratic society for the state 

to be able to alter the conditions of a previously granted permit because an applicant is seeking 

some new permission."

ATTACHMENTS

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