OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 10

COALEX STATE INQUIRY REPORT - 286

June 1994

Ted Biggs

Department of Natural Resources

Division of Reclamation

402 W. Washington Street

Room 295

Indianapolis, Indiana 46204

TOPIC: BOND RELEASE ON INTERIM PERMIT SITES; CONTROLLING 

PERFORMANCE STANDARDS (Includes COALEX REPORT - 181)

INQUIRY: Please locate federal, state and administrative decisions discussing bond 

release on sites permitted under the interim regulatory program. In particular, locate 

decisions that address which performance standards (with special focus on revegetation 

requirements) are controlling for operations with state permits which were active during 

the time the interim program rules were in force. 

SEARCH RESULTS: Using the administrative materials available in the COALEX 

Library, a number of Interior administrative decisions addressing various aspects of 

inquiry were identified. Also identified were an existing COALEX Report, two OSM 

Directives and a 9th Circuit case. Relevant Federal Register preambles to final federal 

program rules are attached to provide background information.

Copies of the materials listed below are attached. 

A. FEDERAL CIRCUIT COURT CASE

AMERICAN MINING CONGRESS, ET AL. v US EPA, 965 F 2d 759 (9th Cir 1992).

This case rules on the EPA's decision to exempt from NPDES permit requirements only 

those coal mines that have completed reclamation under the final SMCRA program: 

"In light of the differences between the interim and final SMCRA programs, EPA acted 

reasonably in exempting only mines reclaimed under the final program. EPA's decision 

was neither arbitrary nor capricious."

B. PERTINENT REGULATORY HISTORY
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 10

1. TERMINATION OF JURISDICTION 

a. 57 FR 12461 (APRIL 10, 1992). Notice of reinstatement of suspended 

rule. 

b. 56 FR 25036 (JUNE 3, 1991). Notice of suspension. 

c. 53 FR 44356 (NOVEMBER 2, 1988). Final rule. Termination of jurisdiction.

2. REVEGETATION: 53 FR 34636 (SEPTEMBER 7, 1988). Final rule. 

Revegetation.

3. RECLAMATION REQUIREMENTS: 54 FR 13814 (APRIL 5, 1989). Final rule.

4. BOND AND INSURANCE REQUIREMENTS: 56 FR 59992 (NOVEMBER 26, 

1991). Final rule.

5. INTERIM PROGRAM, GENERALLY: 56 FR 6224 (FEBRUARY 14, 1991). Final 

rule. 

C. OSM DIRECTIVES

1. DIRECTIVE, Subject No. INE-28, Transmittal No. 343, "State Bond Release 

Oversight Inspections" (Issued June 6, 1987). 

2. DIRECTIVE, Subject No. REG-14, Transmittal No. 362, "Interpretation of Initial 

Program and Indian Lands Regulations Concerning Rills and Gullies" (Issued 

July 9, 1987). 

D. INTERIOR ADMINISTRATIVE DECISIONS

THE ISSUES RULED ON INCLUDE:

1. Whether interim vs permanent program regulations apply. 

2. Proving compliance/noncompliance with appropriate performance standards. 

3. Whether a state's release of bond on interim permit sites equals compliance with 

appropriate performance standards. 

4. Compliance with state permit conditions does not excuse compliance with interim 

program requirements. 

1. APPLICATION OF INTERIM VS PERMANENT PROGRAM REGULATIONS

a. APPOLO FUELS, INC. v OSM, 125 IBLA 369, IBLA 89-503, 90-480 

(1993). Provides an in-depth description of when jurisdiction on interim 

permit sites terminates.

2. INTERIOR CASES WHERE TDNS WERE ISSUED AFTER THE STATE 

RELEASED BOND ON INTERIM PERMIT SITES: The following decisions 

address OSM's issuance of a ten-day notice because OSM claimed the operator 

failed to meet various performance standards. The TDN followed the state's 

release of bonds for the sites originally permitted under the interim regulatory

program. 

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

b. THE CLEMENS COAL CO. v OSM, Docket Nos. TU 5-24-R, TU 5-5-P 

(1985). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 10

1. NOV was issued for failing to remove highwalls to a point below the 

normal water table. The ALJ found the Clemens' reclamation work 

did not meet the requirements of the applicable regulations.

c. EXCELLO COAL CORP./BERNOS COAL CO. v OSM, Docket No. Nx 5-

55-R (1985). 

1. NOVs were issued for failure to stabilize rills and gullies and failure 

to provide proper vegetative cover (pine trees). The ALJ ruled that 

the alleged violations were of the interim program standards, not 

the permanent program standards and that Excello's revegetation 

met the interim standards: proper vegetation was established; rills 

and gullies developed later. The ALJ did not accept Excello's 

reliance on the state's oral tree waiver and required the permittee to 

formally amend its permit.

d. JERICOL MINING, INC. v OSM, Docket Nos. NX 90-29-R, NX 90-36-R 

(1990). 

1. NOVs were issued for failure to eliminate all highwalls and failure to 

construct the diversion ditch as proposed. The ALJ vacated to 

NOVs and CO, finding that Jericol met the design specifications 

under the interim regulations. "The fact that DSMRE gave Applicant 

a grading bond release is a further indication that under Kentucky 

regulations the appropriate grading reclamation had been 

accomplished."

e. SHAMROCK COAL CO. v OSM, Docket No. NX 4-24-R (1986). 

1. The OSM inspector determined that the site was not in compliance 

with the reclamation performance standards of the Act and issued 

NOVs for failing to establish proper vegetative cover and failing to 

restore the disturbed area in a timely manner. The ALJ found that 

at the time the state released the bond, the site was in compliance 

with the state's applicable permanent program reclamation 

standards.

f. DORA MINING CO., INC. v OSM, 100 IBLA 300, IBLA 85-723 (1987). 

g. D & J MINERAL AND MINING, INC. v OSM, Docket No. NX 4-11-R 

(1985).

3. RELEASE OF BOND DID NOT TERMINATE JURISDICTION

a. OSM v CALVERT & MARSH COAL CO., INC. AND BATTLE CREEK 

MINING CO., INC., 95 IBLA 182 (1987). Includes ALJ decisions for 

Calvert & Marsh plus Battle Creek. 

b. GRAFTON COAL CO., 3 IBSMA 175 (1981). 

c. FALCON COAL CO. v OSM, Docket No. NX 0-97-R (1980).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 4 of 10

4. CONTROLLING REGULATIONS

a. COALEX State Inquiry Report - 181, "CURRENT LIABILITY FOR ACID 

MINE DRAINAGE UNDER A PRE-SMCRA PERMIT" (1990). 

1. The IBLA and ALJ decisions listed below address the question of 

which set of rules are controlling: the state (pre-primacy) 

regulations, initial federal regulations, or state or federal permanent 

regulations. No relevant state or federal decisions were identified. 

Copies of the decisions are attached. 

2. The cases found indicate: (1) that a permanent program permit 

(either state or federal) is not required if active mining has ceased 

and only reclamation remains; (2) if an operator does not obtain a 

permanent program permit, it continues to be subject to the initial 

federal regulations; and (3) an operator with a state (pre-primacy) 

permit must still comply with the initial federal regulations.

b. DARMAC COAL CO., 74 IBLA 100, IBLA 83-615, 81-66 (June 30, 1983). 

DARMAC COAL CO. v OSM, Docket No. CH 1-107-R (May 1, 1981). 

1. An operator, mining under a Pennsylvania state permit, was issued 

an NOV for discharge which exceeded the maximum allowable 

numerical effluent limitations for pH and manganese in violation of 

interim regulation 30 CFR 715.17(a). The ALJ affirmed the 

issuance of the NOV, finding that all of the water analyses revealed 

that the pH level was "outside the parameters established in the 

interim regulations." [No mention was made of any difference 

between state regulations and initial program regulations.] 

2. While the Board agreed that there was "sufficient evidence to 

establish the essential facts of the violation", it reversed the ALJ's 

decision, finding that Darmac did not "disturb" the area around the 

pre-existing seep; therefore, there was "no showing of adverse 

physical impact".

c. CEDAR COAL CO., 1 IBSMA 145, IBSMA 79-5 (April 20, 1979). 

1. The Board determined that Cedar Coal was subject to the 

performance requirements of the initial program despite the fact 

that it operated under state mine permit issued before the federal 

initial program became effective. The state regulations at the time 

did not contain provisions for the complete elimination of any 

portion of an orphaned highwall. While Cedar was found to be 

subject to the performance standards of the interim program, the 

Board ruled that Cedar had not violated the standards in that it had 

not "disturbed" the orphaned highwall. 

d. ALABAMA BY-PRODUCTS CORP. v OSM, 1 IBSMA 239, IBSMA 79-16 

(September 14, 1979). 

1. "Regardless of whether a permittee has a mining and reclamation 

plan approved by the state regulatory authority before the interim 

regulations became effective, that plan must meet the requirements 

of the regulations." 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 5 of 10

e. TOLLAGE CREEK ELKHORN MINING CO., 2 IBSMA 341, IBSMA 80-32 

(November 24, 1980). 

1. Although Tollage Creek's state permit contained language allowing 

part of the highwall to remain in the area in question, initial federal 

performance standards required the elimination of all highwalls and 

did not contain any provision for a variance from that requirement. 

2. Tollage Creek contended that OSM was estopped from asserting 

the alleged violation because of the "failure of the Secretary to 

designate an inconsistent state law as required by section 505(b) of 

the Act." The Board ruled that the Act requires the Secretary to 

designate inconsistent "laws which are on their face inconsistent." 

The Kentucky law was not "on its face inconsistent" but was 

interpreted by the state hearing officer in a way which was 

inconsistent with federal law. "Since the state is responsible for 

issuing permits which are consistent with Federal requirements, the 

state must assume the burden of conforming its permit to Federal 

standards during the initial program." 

f. CONSOLIDATION COAL CO., 3 IBSMA 228, IBSMA 81-26 (July 31, 

1981). 

1. The Board stated that an operator must comply with the obligations 

of the initial regulatory program [here, the surface impacts of 

underground coal mining] "'until he has received a permit to operate 

under a permanent State or Federal regulatory program.' 

Alternately, if mining and reclamation operations have been 

terminated, the obligation to comply with the initial performance 

standards ends when an operation is no longer subject to 

regulation by a state with respect to any requirements of the initial 

program." 

2. Consolidation Coal's NOV was vacated as its failure to monitor 

water it pumped out of its inactive underground mine did not fall 

within the scope of "underground operation" as defined in the 

interim regulations.

g. GREATER PARDEE, INC., 3 IBSMA 313, IBSMA 81-1 (September 24, 

1981). GREATER PARDEE, INC. v OSM, Docket No. NX 0-219-R 

(September 18, 1980). 

1. Greater Pardee contended that it was exempted by Kentucky from 

the requirement that all surface drainage pass through a 

sedimentation pond. The ALJ ruled, and the Board affirmed, that 

the Kentucky regulations exempted underground mines which 

existed "before May 3, 1978 from having to submit certain 

information to obtain a permit but this did not exempt an 

underground mine from any performance standards."

h. CITIZENS FOR THE PRESERVATION OF KNOX COUNTY, 81 IBLA 

209, IBLA 86-631, 83-2 (June 5, 1984). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 6 of 10

1. The Board ruled that an operator, with an interim program permit, 

who had ceased all coal mining operations prior to the approval of a 

state's permanent program was not required to obtain a permanent 

program permit to conduct only reclamation activities, and that such 

reclamation activities were subject to the Department's initial 

program regulations. 

2. "The language of the statute specifies that 'operators' of surface 

coal mines who expect to be mining after the expiration of 8 months 

from the approval of a state program must file for a permanent 

program permit to cover those lands to be mined." Midland ceased 

mining operations prior to the approval of the Illinois permanent 

program. "Thus, at the time the permanent program was approved, 

Midland was not an operator of a surface coal mine at Mecco with 

any expectation of operating such mine." 

i. PEABODY COAL CO. v OSM, 101 IBLA 167 (February 17, 1988). 

1. Peabody held an interim program permit and had applied for, but 

not yet received, a state permanent program permit when the NOV 

was issued. The Board held that: 

2. "Under the Act, surface mining operations were required to comply 

with the Federal interim regulatory program until a permanent State 

or Federal program was in place. 30 U.S.C. sec. 1252(e) (1982); 30 

CFR 710.11(a)(3)....[U]ntil an operator received a permit to operate 

under a permanent state or Federal regulatory program, it was 

required to comply with the terms of the interim program permit. 30 

CFR 710.11(a)(3)(iii)." 

3. The Board also rejected the operator's argument that OSM could 

not enforce the interim program after the effective date of Indiana's 

permanent program because the statutory authority to enforce the 

interim program had expired. 

j. JOSEPHINE COAL CO. V OSM, 111 IBLA 316, IBLA 87-208 (October 30, 

1989). 

1. "[C]ompliance with state mining permit conditions less stringent 

standards does not excuse applicant from complying with the 

interim program standards." 

2. Josephine Coal, operating under an initial program permit, was 

cited for failing to totally eliminate a pre-existing highwall. The 

appellant argued that since the Virginia authorities revised its 

permit to allow for leaving an unreclaimed highwall and the Virginia 

"permanent program regs now allow it, that this action on the NOV 

and CO by federal authorities should be dismissed." The Board 

confirmed the ALJ's rejection of this argument "on the ground that 

appellant's actions occurred under the interim program and, in fact, 

appellant never received a permanent program permit." 

k. HARMAN MINING CORP. v OSM, 114 IBLA 291, IBLA 87-525 (May 10, 

1990) 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 7 of 10

1. "A surface coal mining operation which commences prior to the 

formulation of a state permanent program must comply with the 

Federal interim regulatory program after the state permanent 

program is effective if the mine operator has not sought and 

received a permit to operate under the applicable state permanent 

program. 30 CFR 710.11(a)(3)(iii)." 

l. Also see:

1. DONALDSON CREEK MINING CO. v OSM, 111 IBLA 289, IBLA 

87-439 (1989). 

2. RAYLE COAL CO. v OSM, 3 IBSMA 111, IBSMA 80-88 (1981).

5. "ESTABLISHMENT OF VEGETATION" VS "SUCCESSFUL VEGETATION"

a. PITTSBURGH & MIDWAY COAL MINING CO., v OSM, 107 IBLA 246, 

IBLA 87-378 (1989).

6. ADDITIONAL DECISIONS

a. MCNABB COAL CO., INC. v OSM, Docket Nos. TU 4-24-P, et al. (1986). 

MCNABB COAL CO., INC. v OSM, 105 IBLA 29, IBLA 86-1454 (1988). 

1. McNabb was required to comply with surface and ground water 

monitoring requirements "even where current mining operations 

might be considered exempt from regulation" under the Act. The 

ALJ stated: 

2. "Regardless of whether initial program or permanent program 

standards apply, the areas mined my McNabb prior to June 7, 

1983, are subject to the Act until all performance standards are 

met. See Citizens for the Preservation of Knox County, 81 IBLA 

209 (1984). Regardless of whether a mining permit is canceled, 

revoked, expired, or whether a company simply stops mining, there 

is no authority in the law to support the proposition that the 

standards applicable at the time of mining no longer apply."

b. H.C. BOSTIC COAL CO., INC. v OSM, Docket Nos. NX 88-8-R, et al. 

(1991).

ATTACHMENTS

A. APPLICATION OF INTERIM VS PERMANENT PROGRAM REGULATIONS 

1. AMERICAN MINING CONGRESS, ET AL. v US EPA, 965 F 2d 759 (9th 

Cir 1992).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 8 of 10

B. FEDERAL REGISTER NOTICES 

1. 57 FR 12461 (APRIL 10, 1992). Notice of reinstatement of suspended 

rule. 

2. 56 FR 25036 (JUNE 3, 1991). Notice of suspension. 

3. 53 FR 44356 (NOVEMBER 2, 1988). Final rule. Termination of jurisdiction. 

4. 53 FR 34636 (SEPTEMBER 7, 1988). Final rule. Revegetation. 

5. 54 FR 13814 (APRIL 5, 1989. Final rule. 

6. 56 FR 59992 (NOVEMBER 26, 1991). Final rule. 

7. 56 FR 6224 (FEBRUARY 14, 1991). Final rule. 

C. OSM DIRECTIVES 

1. DIRECTIVE, Subject No. INE-28, Transmittal No. 343, "State Bond 

Release Oversight Inspections" (Issued June 6, 1987). 

2. DIRECTIVE, Subject No. REG-14, Transmittal No. 362, "Interpretation of 

Initial Program and Indian Lands Regulations Concerning Rills and 

Gullies" (Issued July 9, 1987).

D. INTERIOR ADMINISTRATIVE DECISIONS 

1. APPOLO FUELS, INC. v OSM, 125 IBLA 369, IBLA 89-503, 90-480 

(1993).

2. TDNs 

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

b. THE CLEMENS COAL CO. v OSM, Docket Nos. TU 5-24-R, TU 5-

5-P (1985). 

c. EXCELLO COAL CORP./BERNOS COAL CO. v OSM, Docket No. 

Nx 5-55-R (1985). 

d. JERICOL MINING, INC. v OSM, Docket Nos. NX 90-29-R, NX 90-

36-R (1990). 

e. SHAMROCK COAL CO. v OSM, Docket No. NX 4-24-R (1986). 

f. DORA MINING CO., INC. v OSM, 100 IBLA 300, IBLA 85-723 

(1987). 

g. D & J MINERAL AND MINING, INC. v OSM, Docket No. NX 4-11-R 

(1985).

3. BOND RELEASE/TERMINATION OF JURISDICTION 

a. OSM v CALVERT & MARSH COAL CO., INC. AND BATTLE 

CREEK MINING CO., INC., 95 IBLA 182 (1987). 

b. BATTLE CREEK MINING CO., INC. v OSM, Docket No. NX 3-22-R 

(1985). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 9 of 10

c. CALVERT & MARSH COAL CO., INC. v OSM, Docket No. NX 3-

21-R (1985). 

d. GRAFTON COAL CO., 3 IBSMA 175 (1981). 

e. FALCON COAL CO. v OSM, Docket No. NX 0-97-R (1980).

4. AMD 

a. COALEX STATE INQUIRY REPORT - 181, "CURRENT LIABILITY 

FOR ACID MINE DRAINAGE UNDER A PRE-SMCRA PERMIT" 

(1990). 

A. BOLOGNA MINING CO. v COMMONWEALTH OF 

PENNSYLVANIA, DEPT. OF ENVIRONMENTAL 

RESOURCES, 1989 Pa Envirn LEXIS 60, EHB Docket No. 

86-555-M (March 3, 1989). 

B. DARMAC COAL CO., 74 IBLA 100, IBLA 83-615, 81-66 

(June 30, 1983). 

C. DARMAC COAL CO. v OSM, Docket No. CH 1-107-R (May 

1, 1981). 

D. CEDAR COAL CO., 1 IBSMA 145, IBSMA 79-5 (April 20, 

1979). 

E. ALABAMA BY-PRODUCTS CORP. v OSM, 1 IBSMA 239, 

IBSMA 79-16 (September 14, 1979). 

F. TOLLAGE CREEK ELKHORN MINING CO., 2 IBSMA 341, 

IBSMA 80-32 (November 24, 1980). 

G. CONSOLIDATION COAL CO., 3 IBSMA 228, IBSMA 81-26 

(July 31, 1981). 

H. GREATER PARDEE, INC., 3 IBSMA 313, IBSMA 81-1 

(September 24, 1981). 

I. GREATER PARDEE, INC. v OSM, Docket No. NX 0-219-R 

(September 18, 1980). 

J. CITIZENS FOR THE PRESERVATION OF KNOX COUNTY, 

81 IBLA 209, IBLA 86-631, 83-2 (June 5, 1984). 

K. PEABODY COAL CO. v OSM, 101 IBLA 167 (February 17, 

1988). 

L. JOSEPHINE COAL CO. v OSM, 111 IBLA 316, IBLA 87-208 

(October 30, 1989). 

M. HARMAN MINING CORP. v OSM, 114 IBLA 291, IBLA 87-

525 (May 10, 1990).

b. DONALDSON CREEK MINING CO. v OSM, 111 IBLA 289, IBLA 

87-439 (1989). 

c. RAYLE COAL CO. v OSM, 3 IBSMA 111, IBSMA 80-88 (1981).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 10 of 10

5. ESTABLISHING VEGETATION 

a. PITTSBURGH & MIDWAY COAL MINING CO., v OSM, 107 IBLA 

246, IBLA 87-378 (1989).

6. ADDITIONAL DECISIONS 

a. MCNABB COAL CO., INC. v OSM, Docket Nos. TU 4-24-P, et al. 

(1986). MCNABB COAL CO., INC. v OSM, 105 IBLA 29, IBLA 86-

1454 (1988). 

b. H.C. BOSTIC COAL CO., INC. v OSM, Docket Nos. NX 88-8-R, et 

al. (1991).