OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by:Joyce Zweben Scall Page 1 of 6

COALEX STATE COMPARISON REPORT - 210

April 1992

INTERSTATE MINING COMPACT COMMISSION (IMCC)

Herndon, VA 20170

TOPIC:

1. DEFINITION OF OR TEST FOR "VALID EXISTING RIGHTS (VER)";

2. SUBSIDENCE: COMPENSATION FOR DAMAGED STRUCTURES AND WATER

SUPPLY

INQUIRY: A survey was conducted of IMCC and non-IMCC members consisting of the

following questions:

FOR ALL STATES SURVEYED: VER

1. What is your state program's definition of or test for VER, e.g., the "good faith/all

permits" test or the "takings" test? Please include the state statute or regulation section

number. [SMCRA sec. 522(e); 30 CFR 761.5]

FOR STATES WITH UNDERGROUND MINING: SUBSIDENCE

1. Does your state program contain regulations requiring compensation for or repair of

structures (not land) damaged as a result of subsidence? Please include the state statute or

regulation section number. [SMCRA sec. 516(b); 30 CFR 817.121(c)]

2. Does your state program contain regulations requiring the replacement of water supplies

damaged as a result of subsidence? Please include the state statute or regulation section

number. [SMCRA sec. 717(b)]

SEARCH RESULTS: The survey was conducted using a combination of telephoning and

research in the COALEX Library. A summary of the survey follows; tables of responses to the

three questions, copies of the state program sections and two related state cases are attached.

VER (21 states surveyed)

1. The regulations of seven (7) states require persons to have property rights created by a

"legally binding conveyance", etc. and (1) to have made a "good faith" attempt to obtain

"all permits" or (2) the coal is needed for/adjacent to an ongoing surface coal mine:

1. Alabama

2. Indiana
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by:Joyce Zweben Scall Page 2 of 6

3. Iowa

4. Kentucky

5. Maryland

6. North Dakota

7. Oklahoma

2. Seven (7) states require the "legally binding conveyance" and have the "needed

for/adjacent to" language but require the persons to have obtained "all permits" by

August 3, 1977:

1. Arkansas

2. Colorado

3. Mississippi

4. Missouri

5. Montana

6. Ohio

7. Texas

3. Four (4) states use the "takings" test:

1. Illinois

2. Virginia

3. West Virginia

4. Wyoming

4. Two (2) states had regulations which did not fit into these categories:

1. Pennsylvania requires a person to have "all permits" needed to mine as of August

3, 1977 or to have made a "complete application" by that date. They also do not

include the "needed for/adjacent to" language.

2. Utah regulations state that persons have VER if they demonstrate that property

rights to the coal were acquired prior to August 3, 1977, the coal is needed

for/adjacent to an ongoing mine.

5. Louisiana regulations provide VER only for haul roads.

SUBSIDENCE: REPAIR DAMAGE TO STRUCTURES (14 states surveyed)

1. Thirteen (13) states surveyed have regulations requiring restoration, rehabilitation,

replacement of, or compensation for damage to structures as a result of subsidence:

1. Alabama

2. Colorado

3. Illinois
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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4. Indiana

5. Kentucky

6. Maryland

7. Ohio

8. Oklahoma

9. Texas

10. Utah

11. Virginia

12. West Virginia

13. Wyoming

2. Pennsylvania law [Bituminous Mine Subsidence and Land Conservation Act of 1966] is

stricter, requiring that mining may not cause any damage to those dwellings in place

before April 27, 1966. Dwellings built after that date may purchase subsidence insurance

from the state or buy coal support from the operator.

SUBSIDENCE: REPLACE WATER SUPPLY DAMAGED BY UNDERGROUND

OPERATIONS (13 states surveyed)

1. Seven (7) states have regulations requiring underground coal operators to replace

damaged water supplies:

1. Colorado

2. Indiana*

3. Maryland

4. Ohio

5. Texas

6. West Virginia

7. Wyoming

*NOTE: In WIGGINS v BRAZIL COAL & CLAY, 452 NE 2d 958 (Ind 1983), a case

involving the loss of water to the Wiggins' pit, the state Supreme Court found for the

defendant, stating that there was no evidence "that the defendant's strip mining work was

being done with a purpose or intent to injure plaintiffs."

2. Six (6) states do not have regulations in their programs requiring water supply

replacement damaged by underground operations. Three states, noted by asterisks, have

proposed or will proposed legislation to require water replacement for underground

mining:

1. Alabama

2. Illinois
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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3. Kentucky*

4. Pennsylvania*

5. Utah

6. Virginia*

TABLE 1: VALID EXISTING RIGHTS

STATE SECTION NO. VER DEFINITION OR TESTS

ALABAMA 880-X-2A-.06 (1986) Good faith/all permits; Legally binding

conveyance; Needed for/adjacent to

ARKANSAS 761.5 (1987) All permits; Legally binding conveyance;

Needed for/adjacent to

COLORADO 1.04 (149)(1) (1989) All permits; Legally binding conveyance;

Needed for/adjacent to

ILLINOIS 62 IAC 1701 Appendix A

(1991)

Prohibitions effect a takings of person's

property

INDIANA 310 IAC 12-0.5-139 (1991 ?) Good faith/all permits; Legally binding

conveyance; Needed for/adjacent to

IOWA 4.1(2) eh(1) (1980) Good faith/all permits; Legally binding

conveyance; Needed for/adjacent to

KENTUCKY 405 KAR 24:001E Sec. 1(57)

(1991 ?)

Good faith/all permits; Legally binding

conveyance; Needed for/adjacent to

LOUISIANA 100.3(153) (1980) VER regulations are for haul roads only.

MARYLAND COMAR 08.13.09.10 (1980) Good faith/all permits; Legally binding

conveyance; Needed for/adjacent to

MISSISSIPPI 161.5 (1979) All permits; Legally binding conveyance;

Needed for/adjacent to

MISSOURI 10 CSR 40.5.010 (1989) All permits; Legally binding conveyance;

Needed for/adjacent to

MONTANA 26.4.1132 (1988) All permits; Legally binding conveyance;

Needed for/adjacent to

NORTH

DAKOTA

69-05.2-01-02 (1988) Good faith/all permits; Legally binding

conveyance; Needed for/adjacent to

OHIO 1501:13-1-02 (1989) All permits; Legally binding conveyance;

Needed for/adjacent to

OKLAHOMA 761.5 (1982) Good faith/all permits; Legally binding

conveyance; Needed for/adjacent to

PENNSYLVANIA 86.1 (1989) All permits or complete permit

application; Legally binding conveyance

TEXAS 051.07.04.070 (1980) All permits; Legally binding conveyance;

Needed for/adjacent to

UTAH UMC 614-100.200 (1990) Property rights to coal; Needed
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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for/adjacent to; Authorized coal mine

exists on area; Legally binding

conveyance

VIRGINIA 700.5 (1987) Prohibitions effect a takings

WEST VIRGINIA 38 CSR 2.129 (1990) Limitations result in unconstitutional

taking

WYOMING Chapter 1 Sec. 2(dc) (1989) Prohibitions effect a takings

TABLE 2: SUBSIDENCE -- DAMAGED STRUCTURES

STATE SECTION NO. REPAIR/COMPENSATE FOR

DAMAGED STRUCTURES: YES/NO

ALABAMA 800-X-10D-.58(3)(b)

(1990)

YES. Compensation is determined by the

property rights written into the severance

deed.

COLORADO 4.20.3 (1982 E) YES.

ILLINOIS 1817.121 (1986) YES. This requirement has been in effect

since the program began.

INDIANA 310 IAC 12-5-132 (1981) YES.

KENTUCKY 405 KAR 8:040 Sec. 26

(1991)

YES.

MARYLAND 08.13.09.13(I) (1980) YES.

OHIO 1501:13-12-03 (1983) YES.

OKLAHOMA 817.124 (1982) YES.

PENNSYLVANIA Statute Sec. 4 (1982) 25

PA Chap. 89

YES. Stricter than SMCRA: operator may

not cause damage to certain classes of

structures. [According to the Bituminous

Mine Subsidence and Land Conservation Act

of 1966: (1) operator must not cause damage

to pre 4/27/66 dwellings, all public buildings,

etc. - 50% support must be left in place; (2)

post 4/17/66 dwelling owners may obtain

subsidence insurance from state or buy coal

support from operator.]

TEXAS 051.07.04.564 (1979) YES.

UTAH UMC 614-301.500 (1990) YES.

VIRGINIA 817.121(c) (1987) YES.

WEST VIRGINIA 38 CSR 2 Sec. 16.2(c)(2)

(1986)

YES.

WYOMING Chap. VII Sec. 4(a) (1989) YES.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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TABLE 3: SUBSIDENCE -- REPLACE WATER SUPPLY (UNDERGROUND

OPERATIONS)

STATE SECTION NO. REPLACE DAMAGED WATER

SUPPLIES: YES/NO

ALABAMA No section. NO.

COLORADO 4.05.15 (1982 E) YES. Requires water supply replacement

for "surface or underground mining

activities"

ILLINOIS No section. NO. A well is considered a structure. If it

is damaged, it must be repaired, replaced

or compensated for; however, this does

not guarantee replacement of water.

INDIANA 310 IAC 12-5-94 (1991) YES. However, state Supreme Court in a

recent decision (WIGGINS v BRAZIL

COAL & CLAY, 452 NE 2d 958 (Ind

1983) stated that operators of surface or

underground mines do not have to replace

water if damaged was "not malicious".

[Case attached.]

KENTUCKY No section. NO. Bill proposed in recent legislative

session was defeated.

MARYLAND Ann Code of Md Sec. 7-5A05.2 (1989)YES. Requires operator of a deep mine to

replace water supply.

OHIO 1513:162 (1982) YES. Requires operator of "a coal mining

operation" to replace water supply.

PENNSYLVANIA No section. NO. Bill is contemplated soon.

TEXAS 051.07.04.521 (1979) YES. Requires person conducting

underground mining activities to replace

water supply.

UTAH No section. NO.

VIRGINIA No section. NO. Legislature has formed a committee

to propose legislation for 1993 legislative

session.

WEST VIRGINIA Chap 22a Article 3 Sec. 24

(1984)

YES. State law, in effect since before

SMCRA, requires "any operator" to

replace water supply.

WYOMING Chap. VII Sec. 2(a) (1989) YES. State water rights regulations and

broad interpretation of definition of

"surface coal mining operations" require

replacement of water affected by mining.