OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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COALEX STATE INQUIRY REPORT - 191

September 1991 [Updated December 1991]

Hon. Marlin McLaughlin

P.O. Box 643

Jasper, Alabama 35502

TOPIC: IS FILL DIRT CONSIDERED A "MINERAL" FOR REGULATORY PURPOSES? 

(Includes State Inquiry Reports 134, 47, 24, 113 and 182.)

INQUIRY: A sand and gravel dealer identified two coal seams separated by shale below an 

area being excavated. If the intervening layers of shale are sold as fill dirt, can the dealer obtain 

an exemption, based on the 16 2/3 rule, for extraction of the lower seam of coal? What case law 

and other materials are available on this issue in addition to MCNABB COAL CO. v OSM, 101 

IBLA 282 (1988), CORDOVA CLAY CO. v OSM, Docket No. NX 5-3-R (1986) and W.S. 

NEWELL, INC. v RANDALL, 373 So 2d 1068 (Ala 1979)? 

SEARCH RESULTS: Several existing COALEX State Inquiry and Comparison Reports were 

identified that addressed similar issues. These reports were updated using the COALEX Library 

and other materials available in LEXIS. The information in the Reports is discussed below. 

Copies of the Reports and attachments are included here, as indicated. The Report was updated 

to include the Alabama Surface Mining Commission ruling on this issue.

16 2/3 EXEMPTION

COALEX STATE INQUIRY REPORT - 134, "16 2/3 Exemption" (January, 1990). 

This Report incorporated prior Reports 47 and 24, covering legislative history material on the 

exemption, with the regulatory history, from Federal Register preambles, and federal and 

administrative case law.

The latest Federal Register notice on the 16 2/3 exemption was published on December 20, 1989 

(54 FR 52092).

NOTE: Also enclosed are the MCNABB COAL CO., INC. v LUJAN SETTLEMENT 

AGREEMENT (CA Nos. 88-C-281-E, 88-C-1525-E (N.D. Okla 1990) and the subsequent 

Interior ALJ Consent Decision, Docket No. TU 6-19-P (1991). These cases update Report - 134.

SOIL AND MINERAL
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U.S. Department of the Interior

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COALEX COMPARISON REPORT - 113, "Definitions of soil and mineral" (June, 1989). 

This Report addressed the question of whether clay extracted from a borrow pit and used for fill 

dirt is a "mineral", requiring permitting, or "dirt". Included is a table summarizing state 

definitions of "mineral" and "clay" and a discussion of relevant case law.

NOTE: Report - 113 appears as an Attachment to Report - 182.

COMMONWEALTH OF VIRGINIA v MAY BROTHERS, INC., 396 SE 2d 695 (Va Ct 

App 1990). [The case for which the above research was conducted.]

The Virginia Court of Appeals affirmed the Circuit Court decision which reversed the Virginia 

Board of Surface Mining Review's holding that May Brothers was engaged in mining without 

having obtained a state mining license and surface mining permit:

"We hold that the simple removal of dirt from a construction site, without more, does not 

constitute 'mining' as contemplated by the legislature in Code sec. 45.1-180." 

KIMBLE v DIERINGER, Case No. 90-CA-19, 1991 Ohio App LEXIS 2229 (May 1, 1991).

The court affirmed the Ohio Reclamation Board of Review's finding that "Kimble's extraction of 

coal was incidental to a permitted highway project, and was therefore not a coal mining 

operation under R.C. 1513.01."

COALEX STATE INQUIRY REPORT - 182, "Definition of soil and mineral" (1991).

Report - 182 is an adjunct to Report - 134. It includes additional MCNABB decisions and the 

Indiana administrative decision for which both Reports were prepared.

DUNN CONSTRUCTION CO., INC. v ALA. SURFACE MINING COMMISSION, Case 

No. DHA 91-027 (1991). 

The denial of the exemption application for the mining of coal incidental to the mining of other 

minerals was affirmed. Shale material was proposed to be sold for use in constructing pads for 

methane drilling towers. Witnesses stated that shale material was not suitable for areas used by 

heavy rigs or trucks. The Chief Hearing Officer found that the shale material was "not a mineral 

having any commercial value or reasonable commercial use other than as waste or fill material 

for the purpose of bona fide sale".

ATTACHMENTS

A. COALEX STATE INQUIRY REPORT - 134, "16 2/3 exemption" (January, 1990). 

(Includes copy of Reports 24 and 47, Federal Register preambles but not the case law.) 

B. MCNABB COAL CO., INC. v LUJAN SETTLEMENT AGREEMENT (CA Nos. 88-C281-E, 88-C-1525-E (N.D. Okla 1990). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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C. MCNABB COAL CO. v OSM, Interior ALJ Consent Decision, Docket No. TU 6-19-P 

(1991). 

D. COMMONWEALTH OF VIRGINIA v MAY BROTHERS, INC., 396 SE 2d 695 (Va Ct 

App 1990). 

E. KIMBLE V DIERINGER, Case No. 90-CA-19, 1991 Ohio App LEXIS 2229 (May 1, 

1991). 

F. COALEX STATE INQUIRY REPORT - 182, "Definition of soil and mineral" (1991). 

[Includes COALEX COMPARISON REPORT - 113, "Definitions of soil and mineral" 

(June, 1989).] 

G. DUNN CONSTRUCTION CO., INC. v ALA. SURFACE MINING COMMISSION, 

Case No. DHA 91-027 (1991).