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COALEX STATE COMPARISON REPORT - 278

March 1994

James Hamm

Oklahoma Department of Mines

4040 North Lincoln Blvd.

Suite 107

Oklahoma City, Oklahoma 73105

TOPIC: AVAILABILITY OF PERMIT, INSPECTION AND ENFORCEMENT RECORDS

INQUIRY: According to 30 CFR 840.14 and 842.16, copies of permit applications,

inspection and enforcement records, etc. "shall be made immediately available to the

public in the area of mining...." Compliance with the availability requirement can be

accomplished by making copies "available for public inspection at a Federal, State, or

local government office in the county where the mining is occurring..." or by having the

regulatory authority mail copies of information promptly (provided a description of the

information available and mailing procedures are posted in the county where the mining

is occurring). Please locate any material that indicates what information is to be

included as part of "a description of the information available". How do the other states

implement this requirement?

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

materials available in LEXIS. Retrieved were the regulatory history of the relevant

federal rules and Federal Register preambles where OSM discussed amendments to

state regulatory programs. Research was supplemented by a telephone survey to

selected states across the country. Findings indicate that copies of permit application

packages, renewals, significant revisions, etc. that require public comment are kept at

the county/local level while copies of inspection and enforcement records are kept at

regional or district offices; states will provide copies of requested information by mail; no

state surveyed provides the public with a specific list of the types of documents

available for review or that may be requested by mail [Illinois provided a Memorandum

that lists the documents forwarded to counties for public review, see the attached

packet of Illinois material].

The list of what is included as part of this Report is as follows:

REGULATORY HISTORY OF FEDERAL RULES:

1. 700.14 General; Availability of records
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2. 773.13(d) Requirements for permits and permit processing; Public participation in

permit processing; Public availability of permit applications. (Formerly 786.15)

3. 840.14 State regulatory authority inspection and enforcement; Availability of

records.

4. 842.16 Federal inspections and monitoring; Availability of records.

COPIES OF MATERIALS INCLUDED WITH REPORT (some complete, some

excerpted):

1. Federal Register preambles of final rules.

2. Federal final rules.

3. State rules.

4. Federal Register preambles discussing OSM approval or disapproval of state

program amendments.

5. West Virginia case regarding the placement of permit-related advertising.

SURVEYED STATES WITH REGULATIONS ALLOWING MAILING OF RECORDS AS

WELL AS THOSE WHOSE REGULATIONS DO NOT STATE THAT THEY MAIL

RECORDS REGARDING:

1. Where permit applications and other records which require public review and

comment are filed and where copies are retained.

2. Where copies of inspection and enforcement records and other permit-related

materials are retained.

REGULATORY HISTORY OF FEDERAL RULES

A. 700.14 General; Availability of records.

1. 44 FR 14902 (MARCH 13, 1979). Final rule. 700.14(a) "Records required

by the Act to be made available to the public shall be retained at the

geographically closest office of the State or Federal regulatory authority

having jurisdiction over the area involved."

B. 773.13(d). Requirements for permits and permit processing; Public participation

in permit processing; Public availability of permit applications.

1. 44 FR 14902 (MARCH 13, 1979). Final rule. 786.15(a). "Information

contained in permit applications on file with the regulatory authority shall

be open, upon written request, for public inspection and copying at

reasonable times."

2. 48 FR 44343 (SEPTEMBER 28, 1983). Final rule. Part 786 was removed.

733.13(d). "(1) General availability. Except as provided in (d)(2) or (d)(3) of

this section, all applications for permits; revisions; renewals; and transfers,
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assignments or sales permit rights on file with the regulatory authority

shall be available, at reasonable times, for public inspection and copying."

C. 840.14 State regulatory authority inspection and enforcement; Availability of

records.

1. 44 FR 14902 (MARCH 13, 1979). Final rule. 840.14(b). "...copies of all

records, reports, inspection materials, or information obtained by the State

under a State program shall be made immediately available to residents of

that area."

2. 47 FR 35620 (August 16, 1982). Final rule.

a. 840.14(b). "Copies of all records, reports, inspection materials, or

information obtained by the regulatory authority shall be made

immediately available to the public in the area of mining until at

least five years after expiration of the period during which the

subject operation is active or is covered by any portion of a

reclamation bond so that they are conveniently available to

residents of that area...."

b. 840.14(c). "The State regulatory authority shall ensure compliance

with Paragraph (b) of this Section by either: (1) Making copies of all

records, reports, inspection materials, and other subject information

available for public inspection at a Federal, State, or local

government office in the county where the mining is occurring or

proposed to occur; or (2) At the regulatory authority's option and

expense, providing copies of subject information promptly by

mail..., Provided, that the regulatory authority shall maintain for

public inspection, at a Federal, State, or local government office...,

a description of the information available for mailing and the

procedure for obtaining such information."

3. 46 FR 59464 (DECEMBER 1, 1981). Proposed rules. 840.14. Availability

of records. "New 840.14 is proposed to provide flexibility with respect to

the methods by which States make records available to interested

persons. This flexibility will assist those States (principally in the West)

which do not have offices throughout coal mining regions. The Office

believes that allowing for mail responses to requests for information

submitted by interested persons would meet the 'conveniently available'

requirement of Section 517(f) of the Act."

4. 47 FR 35620, 35624 (AUGUST 16, 1982). Final rule. 840.14 "Three

commenters stated that the proposal to allow mailing of records violates

section 517(f) of the Act, which requires records to be 'conveniently

available' in 'central and sufficient' locations. These commenters noted
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that, without a way to review the files, residents cannot intelligently

request particular documents. One commenter stated that citizens should

be able to obtain an index to records..... Using the mailing method actually

affords greater convenience to interested persons than does placing the

records in an office. OSM agrees, however, that a description of the

records available and how to obtain them by mail should be provided in

each county so that interested persons may conveniently determine what

is in fact available."

5. 48 FR 44777 (SEPTEMBER 30, 1983). Final rule. 840.14(b)(2). Section

references were revised; all other language remained unchanged.

D. 842.16 Federal inspections and monitoring; Availability of records.

1. 44 FR 14902 (MARCH 13, 1979). 842.16(a). Essentially the same

language as 840.14(b).

2. 47 FR 35620 (AUGUST 16, 1982). Final rule.

a. 842.16(a). Essentially the same language as 840.14(b).

b. 842.16(b). Essentially the same language as 840.14(c).

3. 48 FR 44777 (SEPTEMBER 30, 1983). Final rule. 842.16(a)(2). Section

references were revised; all other language remained unchanged.

STATE PROGRAM REGULATIONS: FEDERAL REGISTER PREAMBLES

These are enclosed for background:

1. Alabama: 56 FR 4542 (FEBRUARY 5, 1991).

2. Illinois: 53 FR 43112 (OCTOBER 25, 1988).

3. Indiana:

1. 45 FR 78482 (NOVEMBER 25, 1980).

2. 53 FR 45459 (NOVEMBER 10, 1988).

4. Maryland: 56 FR 23505 (MAY 22, 1991).

5. Ohio:

1. 47 FR 34688 (AUGUST 10, 1982).

2. 52 FR 26959 (JULY 17, 1987).

3. 59 FR 11227 (MARCH 10, 1994).

6. Pennsylvania: 47 FR 33050 (JULY 30, 1982).

7. West Virginia: 55 FR 21304 (May 23, 1990).

"At OSM's request, West Virginia revised its rules to clarify that, at a minimum,

such information must include applications for permit approvals; permit revisions;

permit renewals; transfers; assignment or sale of permit rights; prospecting

approvals; and all inspection and enforcement documents. The revised rule

provide that all records relative to surface mining reclamation operations and

prospecting operations are to be maintained and made available to the public for

a period of at least five years after final bond release."
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STATE CASE LAW

One state case, from West Virginia, was identified that addresses publication

requirements for surface mining permit applicants:

ZIRKLE v FAERBER, CMMR, WV DOE AND ENOXY COAL, INC., 350 SE 2d 3 (W Va

1986).

"SYNOPSIS: Where an applicant for a surface-mining permit publishes the

advertisement required by W.Va. Code 22A-3-20 [1985] before his permit application is

complete, the advertisement must be republished upon the submission of the complete

application, and concerned parties must be permitted to comment as envisaged by

W.Va. Code 22A-3-20(b) [1985]."

COMPARISON OF REGULATIONS I

State program regulations comparable to these federal rules were retrieved from

COALEX and are included as part of this Report. The final column indicates whether

state sections corresponding to 840.14 and 842.16 provide the state with the option to

mail information.

STATE DOES THE

STATE HAVE

REGULATIONS

COMPARABLE

TO 700.14 (Y/N)

733.13/786.15

(Y/N)

840.14

(Y/N)

842.16

(Y/N)

DOES THE

STATE

PROVIDE THE

OPTION TO

MAIL 

INFORMATIO

N (Y/N)?

ALABAMA Yes Yes Yes No No

ARKANSAS Yes Yes No Yes No

COLORADO Yes Yes Yes No No

ILLINOIS Yes Yes Yes No Yes

INDIANA No Yes Yes No No

KENTUCKY No Yes Yes No Yes

LOUISIANA Yes Yes No Yes No

MARYLAND No Yes Yes No No

MISSISSIPPI Yes Yes Yes No No

MISSOURI Yes Yes Yes No No

MONTANTA No No No Yes Yes

NEW MEXICO Yes Yes No No No

OHIO Yes Yes Yes No No

OKLAHOMA Yes Yes No Yes Yes

PENNSYLVANIA No Yes Yes No No

TEXAS Yes Yes Yes No Yes
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UTAH Yes Yes Yes No Yes

VIRGINIA Yes Yes Yes No Yes

WEST VIRGINIA No Yes No Yes No

WYOMING No No Yes No No

SURVEY OF STATES

The six states, aside from Oklahoma, that have regulations allowing compliance of

record availability requirements by providing copies of inspection and enforcement

information by mail were surveyed by telephone [see the Table, above]. The states

were asked how they implement the requirements of their program version of 840.14

and 842.16. As a "control group", five states whose regulations do not indicate that they

provide copies of material by mail were also surveyed. All eleven states were surveyed

on their implementation of the rules requiring public availability of permit applications

(733.13). Results of the survey follow.

GENERAL FINDINGS FOR ALL STATES SURVEYED:

1. The "master set" of the documents relating to a permit are kept at the

central/main offices of the regulatory authority of each state.

2. Copies of pending permit applications, major permit revisions, renewals, and

other such documents that are required to go through a public comment period

are kept in the area of the mine until the permit, revision, renewal, etc. is issued.

Generally, after permit, revision or renewal approval, copies of these documents

are not required to be kept or maintained at the local level and may be removed.

Exception: In Kentucky, preliminary applications are filed at the regional offices or

the central office [see below].

3. Illinois and Indiana send copies of inspection and enforcement records, as well

as other permit-related correspondence, to the local repository of permit

information. Utah and Virginia keep complete copies of inspection and

enforcement materials at the central office, but can make the information

available for review at the regional/district/field office. Kentucky, Montana, Texas,

Ohio, Pennsylvania, Wyoming and West Virginia maintain inspection and

enforcement records at the central offices and regional offices.

4. Wherever they are located, permit records relating to permit applications,

renewals, revisions, inspection reports, enforcement actions, correspondence,

etc. are available for public review and copying. Exception: parts of files may not

be publicly available if they relate to an aspect of a case that is in litigation.

5. Regardless of whether the regulations state that information may be requested

by phone, all of the states surveyed allow the public to call and request

information to be copied and mailed from the central offices or the regional

offices where copies of the materials are kept. Fees for providing this service

may or may not be required depending on the state, the amount of material

requested and the time involved in fulfilling the request. Illinois provided an

internal memorandum containing the list of documents it sends to the local
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repository. None of the states surveyed indicated that they post a list of materials

available for review and copying at the local repository.

SPECIFIC STATE RESPONSES FOLLOW:

STATES WITH MAILING REGULATIONS

ILLINOIS

Permit applications are filed with the county clerk's office in the county where the mining

will occur. A second copy is filed with the county board. The main files, containing

permit renewals and revisions, inspection reports and enforcement actions, are kept in

Springfield and duplicates are in the southern district office. Copies of documents such

as permit renewals, revisions, inspection reports and enforcement actions are sent to

the county clerk's office; however, the state regulatory authority has no control over the

county offices and does not monitor how the records are kept and the files maintained.

[See the attached Illinois Memorandum for a list of the documents forwarded to

counties.]

KENTUCKY

Preliminary permit applications are filed either at the seven regional offices or at the

central office. The main files are kept in Frankfort and copies of all permit-related

documents (applications, correspondence, inspection reports, etc.) are kept at the

seven regional offices through bond release or forfeiture, at which time the files from the

regional office are merged with the inspectors files and maintained at the central office.

At the beginning of SMCRA in Kentucky, the regulatory authority sent copies of permit

materials to the counties. The counties complained that they had no room to store all of

the required material; therefore, the practice was stopped.

MONTANA

Permit and major revision applications are filed at county courthouses or local libraries.

Inspection and enforcement records and originals of all records are maintained at the

state capitol with duplicates available at the Billings office.

TEXAS

Permit applications "in process" are filed at local courthouses. Copies of documents

requiring public comment, such as significant permit revisions and bond release

applications, are sent to the county courthouses. Complete copies of permit

applications, correspondence, inspection reports and enforcement actions are

maintained at the two regional offices which are located in the general mining areas of

the state and in Austin.
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UTAH

Copies of permit applications, renewals and revisions are kept on file at county office, 

as well as at the main office in Salt Lake City. Inspection and enforcement documents

are kept at the main office. The field office may have copies of the documents

comprising permit files but they are not "official files" and, therefore, do not purport to be

complete. The public may, however, review whatever materials the field office has

available.

VIRGINIA

Materials related to permit applications and any other documents that require public

comment are kept at county offices until the permit, or revision, etc. is issued, as

required. Complete records of inspection and enforcement materials are kept at Big

Stone Gap. The records can be made available to the public for review and copying at

the northern field office.

CONTROL GROUP

INDIANA

Copies of permit applications and related documents are kept on file at the field offices

and at the local representative library. At a fixed time after the permit has been

approved, the permit packages may be removed from the library. However, copies of

subsequent permit correspondence, plan changes, inspection reports and enforcement

actions will continue to be kept on file at the local representative library even if the

application part of the file is removed.

OHIO

Permit applications are filed with Columbus. The applicant is responsible for sending

copies of the documentation to the local county, this may be the local SCS office or one

of the seven district offices if an office is located in that county. Copies of inspection and

enforcement records are kept at Columbus and at the district offices.

PENNSYLVANIA

Copies of permit records, from initial application through permit issuance, are kept at the

county offices (county conservation districts). Copies of inspection and enforcement

records are kept in the six district offices. Copies of all records are available in

Harrisburg.

WEST VIRGINIA
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Copies of permit applications, major revisions and any other pending documents

required to go through the comment process are kept at local courthouses. Copies of

inspection and enforcement documents are kept at the field office. The master set of

permit documents is on file at the headquarters.

WYOMING

Copies of the permit application packages are kept on file at the county level until permit

approval. Copies of inspection and enforcement records are kept in Cheyenne and 

three district locations. Copies of all permit records are available in Cheyenne.

COMPARISON OF REGULATIONS II

Local Repository = Courthouse, Library, SCS office, etc.

Main Office = Main/central/headquarters office

Regional Office = Regional/district/field office

STATE Location

where

copies of

documents

requiring

public

comment

are filed or

available

for review.

Are these

documents

required to

be

maintained

at the local

repository?

[Y/N]

Are copies

of all

permitrelated

records

available at

local

repository?

[Y/N]

Location

where

copies of

inspection

and

enforcement

records are

retained.

Are lists of

permitrelated

documents

available for

review

posted at

local

repository?

[Y/N]

STATES WITH RULES ALLOWING THE OPTION TO MAIL INFORMATION

ILLINOIS Local 

Repository

No Yes Local 

Repository;

Main Office;

Regional

Office

No

KENTUCKY Regional

Office

No No Main Office;

Regional

Office

No

MONTANA Local 

Repository

No No Main Office;

Regional

Office

No

TEXAS Local 

Repository

No No Main Office;

Regional

Office

No

UTAH Local 

Repository

No No Main Office*

* Copies of

information

No
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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can be made

available at

the regional

office.

VIRGINIA Local 

Repository

No No Main Office*

* Copies of

information

can be made

available at

the regional

office.

No

STATES WITHOUT SUCH SPECIFIC REGULATIONS

INDIANA Local 

Repository

No Yes Local 

Repository;

Main Office;

Regional

Office

No

OHIO Local 

Repository

No No Local 

Repository;

Main Office;

Regional

Office

No

PENNSYLVANIA Local 

Repository

No No Main Office;

Regional

Office

No

WEST VIRGINIA Local 

Repository

No No Main Office;

Regional

Office

No

WYOMING Local 

Repository

No No Main Office;

Regional

Office

No

ATTACHMENTS

A. Copies of current federal regulations: 30 CFR 700.14, 840.14, 842.16 and

773.13(d) [formerly 786.15].

B. Federal Register preambles for federal regulations

1. 44 FR 14902 (March 13, 1979). Final rules. [Excerpts]

2. 46 FR 58464 (December 1, 1981). Proposed rules.[Excerpts]

3. 47 FR 27694 (June 25, 1982). Proposed rule. [Excerpts]

4. 47 FR 35620 (August 16, 1982). Final rule.

5. 48 FR 44344 (September 28, 1983). Final rule.

6. 48 FR 44777 (September 30, 1983). Final rule.

7. 54 FR 52092 (December 20, 1989). Final rule. [Excerpts]

C. Alabama:
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1. Reg. Sec. 880-X-2A-.10

2. Reg. Sec. 880-X-8K-.09

3. Reg. Sec. 880-X-11A-.04

4. 56 FR 4542 (February 5, 1991) [Excerpts].

D. Arkansas:

1. Reg. Sec. 700.14

2. Reg. Sec. 786.15

3. Reg. Sec. 842.16

E. Colorado:

1. Reg. Sec. 1.08

2. Reg. Sec. 2.07.5

3. Reg. Sec. 5.02.4

F. Illinois:

1. Reg. Sec. 1700.14

2. Reg. Sec. 1773.13

3. Reg. Sec. 1840.14

4. 53 FR 43112 (October 25, 1988) [Excerpts].

5. Memorandum, "Documents forwarded to Counties" (1994).

G. Indiana

1. Reg. Sec. 310 IAC 12-3-106

2. Reg. Sec. 310 IAC 12-3-110

3. Reg. Sec. 310 IAC 12-6-4

4. 45 FR 78482 (November 25, 1980) [Excerpts].

5. 47 FR 32071 (July 26, 1982) [Excerpts].

6. 53 FR 45459 (November 10, 1988) [Excerpts].

H. Kentucky:

1. Reg. Sec. 410 KAR 8:010, Sec. 12

2. Reg. Sec. 410 KAR 12:010, Sec. 4

I. Louisiana:

1. Reg. Sec. 100.14

2. Reg. Sec. 186.16

3. Reg. Sec. 242.16

J. Maryland:

1. Reg. Sec. 08.13.09.04

2. Reg. Sec. 08.13.09.40

3. 56 FR 23505 (May 22, 1991) [Excerpts].

K. Mississippi:

1. Reg. Sec. 100.14

2. Reg. Sec. 186.15

3. Reg. Sec. 240.14

L. Missouri:

1. Reg. Sec. 10 CSR 40-8.070

2. Reg. Sec. 10 CSR 40-6.070

3. Reg. Sec. 10 CSR 40-8.030

M. Montana:
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1. Reg. Sec. 26.4.1203

N. New Mexico:

1. Reg. Sec. 29-16

2. Reg. Sec. 11-15

O. Ohio:

1. Reg. Sec. 1501:13-5-01

2. Reg. Sec. 1501:13-1-10

3. 47 FR 34688 (August 10, 1982) [Excerpts].

4. 52 FR 26959 (July 17, 1987) [Excerpts].

5. 59 FR 11227 (March 10, 1994).

P. Oklahoma:

1. Reg. Sec. 700.14

2. Reg. Sec. 786.15

3. Reg. Sec. 842.16

4. Reg. Sec. 842.17

Q. Pennsylvania:

1. Reg. Sec. 86.35

2. Reg. Sec. 86.214

3. 47 FR 33050 (July 30, 1982) [Excerpts].

R. Texas:

1. Reg. Sec. 051.07.04.006

2. Reg. Sec. 051.07.04.210

3. Reg. Sec. 051.07.04.672

S. Utah:

1. Reg. Sec. 614-100.700

2. Reg. Sec. 645 300.100

3. Reg. Sec. 454-400.100

T. Virginia:

1. Reg. Sec. 480-03-19.700.14

2. Reg. Sec. 480-03-19.773.13

3. Reg. Sec. 480-03-19.840.14

U. West Virginia:

1. Reg. Sec. 38-2-18

2. Reg. Sec.55 FR 21304 (May 23, 1990) [Excerpts].

V. Wyoming:

1. Statute Sec. 35-11-1101

W. ZIRKLE v FAERBER, CMMR, WV DOE AND ENOXY COAL, INC., 350 SE 2d 3

(W Va 1986).