OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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COALEX STATE COMPARISON REPORT - 259

July 1993

Paul Ehret, Deputy Director

Department of Natural Resources

Bureau of Mine Reclamation

402 W. Washington Street

Indianapolis, Indiana 46204-2748

TOPIC: STATE NATURAL RESOURCE COMMISSIONS AS MULTIPLE INTEREST

BOARDS; DEFINITION OF EMPLOYEE

INQUIRY: Are the members of state natural resource commissions considered

"employees" who are subject to state conflict of interest regulations, or are they

considered members of "multiple interest boards" who are exempt from the conflict of

interest regulations? Are the responsibilities of the state commissions limited to

underground and surface coal mining issues only, or do the duties and powers

encompass a broader range of issues?

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

state code materials available on LEXIS.

For 24 states, the following information was researched: the name of the state

commission comparable to the Indiana Natural Resources Commission; the

commission's composition, duties and powers; conflict of interest statute or regulation

sections (for members of the commission and employees of the relevant department);

and the definition of employee. The results of the research are summarized below.

Also retrieved were Federal Register preambles discussing state program amendments

and federal regulations; one OSM Directive; and four court decisions. Copies of these

materials are attached.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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SUMMARY OF SURVEY

ALABAMA

1. STATE AGENCY'S

NAME:

ALABAMA SURFACE MINING COMMISSION

2. COMPOSITION: 7 members

3 - from counties

1 - from state at large

1 - a professional forester

1 - a professional engineer

1 - an attorney

3. DUTIES AND POWERS: See attached

4. CONFLICT OF

INTERST:

a. A commission member may not have any direct or

indirect financial interest in an underground or surface

coal mining operation

b. Recusal: a commission member may not participate

in an appeal in which s/he has an interest.

5. EMPLOYEE: Members of advisory boards or commissions

established to represent multiple interests are not

considered to be employees.

ALASKA

1. STATE AGENCY'S

NAME:

Not available

2. COMPOSITION: Not available

3. DUTIES AND POWERS: See attached

4. CONFLICT OF

INTERST:

An employee of the department (or a private contractor)

may not have a direct of indirect financial interest in an

underground or surface coal mining operation.

5. EMPLOYEE: Any person employed by the department.

ARKANSAS

1. STATE AGENCY'S

NAME:

ARKANSAS POLLUTION CONTROL COMMISSION

2. COMPOSITION: 10 members

6 - from state agencies

1 - from municipalities

1 - from industry

1 - from agriculture and livestock

1 - from mining interests

3. DUTIES AND See attached
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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POWERS:

4. CONFLICT OF

INTERST:

a. No member of commission who receives or has during

the previous two years received, a significant portion of

his/her income directly or indirectly from permit holders or

applicants for a permit shall participate in the approval of

NPDES permit applications.

b. Recusal: Member of the commission who has a direct

or indirect financial interest in an underground or surface

coal mining operation may continue to serve on the

commission but shall abstain from participating in any

matter that relates to underground or surface coal mining

operations.

5. EMPLOYEE: Definition of employee does not include any member of

the commission other than the director.

COLORADO

1. STATE AGENCY'S

NAME:

MINED LAND RECLAMATION BOARD

2. COMPOSITION: 7 members

1 - Executive Director

1 - from state agencies

3 - people with agricultural or conservation experience

2 - people with mining industry experience

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

Division employees shall recuse themselves from

proceedings which may affect their direct or indirect

financial interests.

5. EMPLOYEE: Employee does not mean members of the Board.

ILLINOIS

1.a. STATE AGENCY'S

NAME:

INTERAGENCY COMMITTEE ON SURFACE MINING

CONTROL RECLAMATION

2.a COMPOSITION: 6 members -- state agency heads

1.b. STATE

AGENCY'SNAME:

STATE MINING BOARD

2.b COMPOSITION: 6 members

3 - "employing class"

3 - "employee class"

3. DUTIES AND POWERS: See attached

4. CONFLICT OF Not available
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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INTERST:

5. EMPLOYEE: Members of advisory boards or commissions established

to represent multiple interest boards are not considered to

be employees.

INDIANA

1. STATE AGENCY'S

NAME:

NATURAL RESOURCES COMMISSION

2. COMPOSITION: 12 members

7 - from state agencies (non-voting)

5 - citizen members

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

Commissions and advisory council members shall abstain

from voting in decision-making functions that directly

affect a company in which that member has a direct or

indirect financial interest.

5. EMPLOYEE: Employee means any person employed by the

Department of Natural Resources.

IOWA

1. STATE AGENCY'S

NAME:

STATE SOIL CONSERVATION COMMITTEE

2. COMPOSITION: 13 members

1 - chairman

4 - from state agencies (non-voting)

6 - from farming

1 - municipalities

1 - from mining industry

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

Recusal: see attached

5. EMPLOYEE: Members of advisory boards or commissions established

to represent multiple interests are not considered to be

employees.

KANSAS

1. STATE AGENCY'S

NAME:

MINED-LAND CONSERVATION AND RECLAMATION

BOARD was abolished

2. COMPOSITION: Not applicable
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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3. DUTIES AND

POWERS:

Not applicable

4. CONFLICT OF

INTERST:

Not available

5. EMPLOYEE: State officer or employee does not include any appointed

member of an advisory council, commission or board who

serves without compensation other than allowable or

reimbursable expenses.

KENTUCKY

1. STATE AGENCY'S

NAME:

ENVIRONMENTAL QUALITY COMMISSION

2. COMPOSITION: 7 citizens

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

No person shall be eligible to serve as a member of the

Commission who holds a permit issued by the cabinet or

who is an officer, employee or agent, or who is a

stockholder owning 7.5% or more of the voting stock of

any corporation holding a permit issued by the cabinet.

5. EMPLOYEE: Not available

LOUISIANA

1. STATE AGENCY'S

NAME:

The duties and powers of the ENVIRONMENTAL

CONTROL COMMISSION was transferred to the

Secretary of the Department of Environmental Quality

2. COMPOSITION: Not applicable

3. DUTIES AND

POWERS:

Not applicable

4. CONFLICT OF

INTERST:

Not available

5. EMPLOYEE: Members of advisory boards or commissions established

to represent multiple interests are not considered to be

employees.

MARYLAND

1. STATE AGENCY'S

NAME:

LAND RECLAMATION COMMITTEE

2. COMPOSITION: 13 members

4 - from the Department of Natural Resources

1 - from other state agency
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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4 - from county governments

2 - from mining industry

2 - general community

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

An employee may not have a direct or indirect financial

interest in any open-pit or deep mining operation.

5. EMPLOYEE: Employee means any person other than a State or public

official.

MISSISSIPPI

1. STATE AGENCY'S

NAME:

MISSISSIPPI COMMISSION ON ENVIRONMENTAL

QUALITY (formerly Mississippi Commission on Natural

Resources)

2. COMPOSITION: 7 members

5 - from congressional districts

2 - from state at large

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

Certain employees of the commission are prohibited from

having any direct or indirect financial interests in any

underground or surface coal mining operation.

5. EMPLOYEE: Members of advisory boards or commissions established

to represent multiple interests are not considered to be

employees.

MISSOURI

1. STATE AGENCY'S

NAME:

LAND RECLAMATION COMMITTEE

2. COMPOSITION: 7 members

3 - from state agencies

4 - from general public: people with experience in

conservation, land reclamation and surface mining (only 1

with a direct connection to the mining industry)

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

No employee of the commission shall have a direct or

indirect financial interest in any underground or surface

coal mining operation.

5. EMPLOYEE: Employee means any person employed by the

commission and advisory board members and

consultants who perform for the commission.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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MONTANA

1. STATE AGENCY'S

NAME:

BOARD OF LAND COMMISSIONERS

2. COMPOSITION: 7 members from state agencies

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

a. No employee of the department shall have a direct or

indirect financial interest in any strip- or underground-coalmining-operation.

b. Members of advisory boards and commissions

established to represent multiple interests shall recuse

themselves from proceedings that may affect their direct

or indirect financial interests.

5. EMPLOYEE: Not available

NEW MEXICO

1. STATE AGENCY'S

NAME:

COAL SURFACE MINING COMMISSION

2. COMPOSITION: 7 members from state agencies

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

It is unlawful for a state employee to have a direct or

indirect financial interest in any underground or surface

coal mining operation.

5. EMPLOYEE: Members of advisory boards or commissions established

to represent multiple interests are not considered to be

employees.

NORTH DAKOTA

1. STATE AGENCY'S

NAME:

INDUSTRIAL COMMISSION

2. COMPOSITION: 3 members from state agencies

3. DUTIES AND POWERS:See attached

4. CONFLICT OF

INTERST

a. indirect financial interest in any underground of surface

coal indirect financial interest in any underground of surface

coal mining operation.

b. No employee of the department who has authority to

approve permit applications shall receive a significant

portion of his/her income (10% of gross income for a

calendar year) directly or indirectly from permit holders or

indirect financial interest in any underground of surface coal
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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permit applicants.

5. EMPLOYEE: The definition of employee does not include members of

advisory boards or commissions established to represent

multiple interests, such as the North Dakota reclamation

advisory committee.

OHIO

1. STATE AGENCY'S

NAME:

RECLAMATION BOARD OF REVIEW

2. COMPOSITION: 7 members

2 - from farming

2 - from coal mining

1 - from general public

1 - from forestry

1 - from agronomy

3. DUTIES AND POWERS: See attached

4. CONFLICT OF

INTERST:

No employee may have a direct or indirect financial

interest in any coal mining or reclamation operation.

5. EMPLOYEE: Members of the Reclamation Board of Review are not

included in the definition of employee.

OKLAHOMA

1. STATE AGENCY'S

NAME:

OKLAHOMA

MINING COMMISSION

2. COMPOSITION: 9 members

1 - from engineering or geology

1 - from labor or worker safety

1 - from agriculture or soil conservation

1 - from transportation

1 - from economic development or banking

1 - from public utilities

1 - from natural resources

2 - at large

3. DUTIES

AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

a. No employee shall be directly or indirectly interested in

any mining operation.

b. Recusal: Members of advisory boards and

commissions established to represent multiple interests

shall recuse themselves from proceedings which may

affect their direct or indirect financial interests.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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5. EMPLOYEE: Members of advisory boards or commissions established

to represent multiple interests are not considered to be
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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employees.

PENNSYLVANIA

1. STATE AGENCY'S

NAME:

ENVIRONMENTAL QUALITY BOARD (expires 12/93)

2. COMPOSITION: 21 members

11 - from state agencies

1 - from public utilities

5 - from citizen advisory councils

4 - from general assembly

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

No employee shall have a direct or indirect financial

interest in any underground or surface coal mining

operation.

5. EMPLOYEE: An employee is any person employed by the department.

TEXAS

1. STATE AGENCY'S

NAME:

RAILROAD COMMISSION OF TEXAS

2. COMPOSITION: 3 members elected at general election

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

a. An employee of the commission may not be an officer,

employee or paid consultant of a trade association in a

business or industry regulated by the commission.

b. No employee shall have a direct or indirect financial

interest in any underground or surface coal mining

operation.

5. EMPLOYEE: Members of advisory boards or commissions established

to represent multiple interests are not considered to be

employees.

UTAH

1. STATE AGENCY'S

NAME:

BOARD OF OIL, GAS

AND MINING

(repealed 7/1/93)

2. COMPOSITION: 7 members

2 - from mining

2 - from oil and gas

1 - from ecology and environment

1 - private landowner, owning a mineral
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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or royalty
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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interest

1 - from geology

3. DUTIES AND

POWERS:

Not available

4. CONFLICT OF

INTERST:

a. Division employees will have no direct or indirect

financial interest in coal mining and reclamation

operations.

b. Recusal: Members of the Board will recuse themselves

from proceedings which may affect their direct or indirect

financial interests.

5. EMPLOYEE: The board shall not be defined as an employee of the

division.

VIRGINIA

1. STATE AGENCY'S

NAME:

VIRGINIA FUEL COMMISSION

2. COMPOSITION: 3 members appointed by the governor

3. DUTIES AND

POWERS:

See attached

4. CONFLICT OF

INTERST:

a. No employee of the department shall have a financial

interest in any underground or surface coal mining

operation.

b. Notwithstanding the prohibition above, members of the

Board of Surface Mining Review who are appointed

because of their special qualifications and backgrounds to

represent the coal surface mining industry may have

financial interests in underground and surface coal mining

operations and may act upon or participate in any action

before the Board, including the adoption of regulations

arising under VA SMCRA.

5. EMPLOYEE: a. Employee means any person employed by the

Department.

b. Provisions of the Virginia Personnel Act shall not apply

to members of boards and commissions.

WEST VIRGINIA

1. STATE AGENCY'S

NAME:

DIVISION OF ENVIRONMENTAL PROTECTION

ENERGY ADVISORY BOARD

2. COMPOSITION: 10 members

1 - director (non-voting)

3 - from energy

3 - from environmental protection

1 - from organized labor
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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1 - from state legislature

3. DUTIES AND

POWERS:

Not available

4. CONFLICT OF

INTERST:

No employee of the division of mines and minerals or of

the reclamation board of review shall have a direct or

indirect financial interest in any surface-mining operation.

5. EMPLOYEE: Not available

WYOMING

1. STATE AGENCY'S

NAME:

Not available

2. COMPOSITION: Not available

3. DUTIES AND POWERS: Not available

4. CONFLICT OF

INTERST:

Not available

5. EMPLOYEE: Not available

FEDERAL REGISTER: PREAMBLES TO STATE PROGRAM AMENDMENT NOTICES

Alabama: 56 FR 4542 (FEBRUARY 5, 1991). [Excerpts]

Colorado: 56 FR 1363 (JANUARY 14, 1991). [Excerpts]

Illinois: 53 FR 43112 (OCTOBER 25, 1988). [Excerpts]

Indiana:

54 FR 51388 (DECEMBER 15, 1989). [Excerpts]

57 FR 14350 (APRIL 20, 1992). [Excerpts]

57 FR 27928 (JUNE 23, 1992). [Excerpts]

Kansas: 58 FR 4381 (JANUARY 14, 1993). [Excerpts]

Maryland: 56 FR 63649 (DECEMBER 5, 1991). [Excerpts]

Missouri: 55 FR 45603 (OCTOBER 30, 1990). [Excerpts]

Ohio: 55 FR 38319 (SEPTEMBER 18, 1990). [Excerpts]

Pennsylvania: 56 FR 55080 (OCTOBER 24, 1991). [Excerpts]

Texas: 58 FR 33785 (JUNE 21, 1993). [Excerpts]

Utah: 45 FR 70481 (OCTOBER 24, 1980). [Excerpts]
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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FEDERAL REGISTER: NOTICES AND PREAMBLES RE: FEDERAL REGULATIONS

52 FR 14404 (APRIL 27, 1987). Semiannual agenda of rules scheduled for review or

development: 1985-1987 [Excerpts]

Description of the rule changes after publication of the final rule on October 17, 1986.

Through the April 21, 1986 semiannual agenda, the abstract states that the "rule will

address whether the Office of Surface Mining should retain the exemption for members

of multiple interest boards in the definition of the term 'employee' in 30 CFR 705.5...."

Beginning with the October 27, 1986 agenda, the abstract reads: "This rule addresses

the Office of Surface Mining's removal of the exemption...."

51 FR 37118 (OCTOBER 17, 1986). Final rule. Part 705 Restriction on Financial

Interests of State Employees.

49 FR 22498 (MAY 30, 1984). Reopening and extension of public comment period.

47 FR 28574 (JUNE 30, 1982). Final rule. Revision of AML rules. [Excerpts]

44 FR 52098 (SEPTEMBER 6, 1979). Proposed rulemaking.>

44 FR 11795 (MARCH 2, 1979). Petition to amend 30 CFR Part 705.

43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. [Excerpts]

42 FR 56060 (OCTOBER 20, 1977). Final rules.

OSM DIRECTIVE

OSM DIRECTIVE, Subject No. PER-18 (incorporated PER-18-1), Transmittal No.

281, "Restrictions of Financial Interests of Federal and State Employees" (10/14/86 and

10/28/87).

CASE LAW

C & T EVANGELINOS v DIVISION OF RECLAMATION, Case No. 88-B-12, 1989 Ohio

App LEXIS 3618 (Ohio Ct App 1989).

THE PITTSTON CO. AND CLINCHFIELD COAL CO. v LUJAN, 798 F Supp 344 (WD

VA 1992).

COMMONWEALTH OF VA, ex rel. v WATT, 741 F 2d 37 (4th Cir 1984).

TUG VALLEY RECOVERY CENTER v WATT, 703 F 2d 796 (4th Cir 1983).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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ATTACHMENTS

A. STATE STATUTES AND REGULATIONS

1. ALABAMA Statutes and Regulations.

2. ALASKA Statutes and Regulations.

3. ARKANSAS Statutes and Regulations.

4. COLORADO Statutes and Regulations.

5. ILLINOIS Statutes and Regulations.

6. INDIANA Statutes and Regulations.

7. IOWA Statutes and Regulations.

8. KANSAS Statutes and Regulations.

9. KENTUCKY Statutes and Regulations.

10.LOUISIANA Statutes and Regulations.

11.MARYLAND Statutes and Regulations.

12.MISSISSIPPI Statutes and Regulations.

13.MISSOURI Statutes and Regulations.

14.MONTANA Statutes and Regulations.

15.NEW MEXICO Statutes and Regulations.

16.NORTH DAKOTA Statutes and Regulations.

17.OHIO Statutes and Regulations.

18.OKLAHOMA Statutes and Regulations.

19.PENNSYLVANIA Statutes and Regulations.

20.TEXAS Statutes and Regulations.

21.UTAH Statutes and Regulations.

22. VIRGINIA Statutes and Regulations.

23.WEST VIRGINIA Statutes and Regulations.

B. FEDERAL REGISTER NOTICES AND PREAMBLES

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

2. Colorado: 56 FR 1363 (JANUARY 14, 1991). [Excerpts]

3. Illinois: 53 FR 43112 (OCTOBER 25, 1988). [Excerpts]

4. Indiana:54 FR 51388 (DECEMBER 15, 1989). [Excerpts]

a. 57 FR 14350 (APRIL 20, 1992). [Excerpts]

b. 57 FR 27928 (JUNE 23, 1992). [Excerpts]

5. Kansas: 58 FR 4381 (JANUARY 14, 1993). [Excerpts]

6. Maryland: 56 FR 63649 (DECEMBER 5, 1991). [Excerpts]

7. Missouri: 55 FR 45603 (OCTOBER 30, 1990). [Excerpts]

8. Ohio: 55 FR 38319 (SEPTEMBER 18, 1990). [Excerpts]

9. Pennsylvania: 56 FR 55080 (OCTOBER 24, 1991). [Excerpts]

10.Texas: 58 FR 33785 (JUNE 21, 1993). [Excerpts]

11.Utah: 45 FR 70481 (OCTOBER 24, 1980). [Excerpts]

12.52 FR 14404 (APRIL 27, 1987). Semiannual agenda of rules scheduled

for review or development: 1985-1987 [Excerpts]
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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13.51 FR 37118 (OCTOBER 17, 1986). Final rule. Part 705 Restriction on

Financial Interests of State Employees.

14.49 FR 22498 (MAY 30, 1984). Reopening and extension of public

comment period.

15.47 FR 28574 (JUNE 30, 1982). Final rule. Revision of AML rules.

[Excerpts]

16.44 FR 52098 (SEPTEMBER 6, 1979). Proposed rulemaking.

17.44 FR 11795 (MARCH 2, 1979). Petition to amend 30 CFR Part 705.

18.43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. [Excerpts]

19.42 FR 56060 (OCTOBER 20, 1977). Final rules.

C. OSM DIRECTIVE: Subject No. PER-18 (incorporated PER-18-1), Transmittal No.

281, "Restrictions of Financial Interests of Federal and State Employees"

(10/14/86 and 10/28/87).

D. CASE LAW

1. C & T EVANGELINOS v DIVISION OF RECLAMATION, Case No. 88-B12, 1989 Ohio App LEXIS 3618 (Ohio Ct App 1989).

2. THE PITTSTON CO. AND CLINCHFIELD COAL CO. v LUJAN, 798 F

Supp 344 (WD VA 1992).

3. COMMONWEALTH OF VA, ex rel. v WATT, 741 F 2d 37 (4th Cir 1984).

4. TUG VALLEY RECOVERY CENTER v WATT, 703 F 2d 796 (4th Cir

1983).