OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: A. Michael Tucker and Terri H. Petruska Page 1 of 8

COALEX STATE INQUIRY REPORT - 34

March 5, 1985

Sue A. Shadley, Legal Analyst

Division of Reclamation

309 W. Washington Street

Indianapolis, Indiana 46204

TOPIC: INCIDENTAL BOUNDARY REVISION

INQUIRY: SMCRA, Sec. 511(a)(3) states: "Any extensions to the area covered by the permit 

except incidental boundary revisions must be made by application for another permit." 

1. Has any state defined the phrase "incidental boundary revisions" in its regulations under 

SMCRA? 

2. Once an extension to a permitted area is said to be incidental, what type of information 

is the permittee required to submit?

SEARCH RESULTS:

Legislative History

A COALEX search was conducted to examine the legislative history of the phrase "incidental 

boundary revisions". Since the 93rd Congress, Congressional bills have included language 

identical to that referenced in the inquiry at SMCRA, Sec. 511(a)(3). S. Rep. No. 402, 

accompanying the 93rd Congressional bill 425, did however contain slightly different interpretive 

language from that in subsequent House and Senate reports.

Referencing Sec. 212, Revision and Revocation of Permits, S. Rep. No. 402 states:

"Subsection (b) provides that the permittee can request a revision of the permit. The 

regulatory authority is to establish guidelines for the scale or extent of a revision request for 

which all permit application information and procedural requirements, including notice and 

hearing, will apply. However, (1) any revisions which propose a substantial change in the 

intended future use of the land (such as from a residential development to a shopping 

complex) or significant alterations in the Reclamation Plan (e.g., changes in treatment of 

surface and ground water) must, at a minimum, be subject to the permit application notice 

and, hearing requirements, and (2) any extensions to the area covered by the permit, other 

than incidental boundary revisions (such as additional footage to permit the better siting of 

an access road), may be accomplished only through application for new permits, not 

through revision applications." (S. Rep. No. 402, 93rd Cong., 1st Sess. 57 (1973))

All subsequent Congressional reports that were examined from COALEX, including the 93rd 

Congressional H. Rep. 11500, contained identical language to that used by the 95th Congress 

with the enactment of SMCRA. The applicable section of the 95th Congressional S. Rep. No. 

128 states:

"Section 411. Revision of Permits 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: A. Michael Tucker and Terri H. Petruska Page 2 of 8

"This section establishes a process for the revision of a permit during its term as well as 

review by either a State regulatory authority or the Secretary of existing permits issued prior 

to the assumption of regulatory jurisdiction by the current regulatory authority.

"An operator may submit an application for a permit revision to the regulatory authority and 

within a period of time established by that agency, the application shall be approved or 

disapproved. The regulatory authority is to establish guidelines for procedures which may 

vary depending upon the scale and extent of the proposed revision. In all events, however, 

the process will be subject to the Act's notice and hearing requirements and a proposed 

revision which would extend the area covered by existing permit (other than incidental 

boundary revisions) is to be made through the normal permit application process.

"The regulatory authority may require revision of a permit during its term provided that it is 

based on a written finding and that it follows the State or Federal program's notice and 

hearing requirements." (S. Rep. No. 128, 95th Cong., 1st Sess. 79-80 (1977))

Federal Regulations

The permanent program regulations pertaining to permit revisions were reorganized by OSM 

and promulgated in final form on September 28, 1983 at 48 FR 44395 (1983). The section from 

SMCRA concerning incidental boundary revisions was codified at 30 CFR Sec. 774.13(d). No 

definition for the phrase "incidental boundary revision" was identified under the federal program.

Under the 1983 regulatory revision, a new section was promulgated, establishing minimum 

criteria for approval of permit revisions. OSM states, in the preamble to the 1983 ruling:

"Section 511(a)(2) of the Act does not require all the findings for issuance of a new permit to 

be made for each permit revision, unless the revision would include an extension to the 

permit area other than an incidental boundary revision. Rather, the required findings and 

criteria for approval may be tailored to the scope of the proposed revision, provided that all 

requirements of the Act and the regulatory program are met. The final rule reflects this and 

provides the regulatory authority the flexibility to make only those findings necessitated by 

the application for a revision." (48 FR 44377 (1983))

State Regulations

A COALEX search was conducted which examined state regulatory programs for provisions 

concerning incidental boundary revisions. Most programs cited SMCRA Sec. 511(a)(3), but 

went no further in terms of definition or types of information required for that particular revision. 

Kentucky was the only state identified by the search which listed incidental boundary revision 

under its section of definitions.

Kentucky, Illinois and Maryland describe incidental boundary revisions in terms of a specific 

number of acres relative to the size of the permitted area.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: A. Michael Tucker and Terri H. Petruska Page 3 of 8

Kentucky goes further to differentiate between areas where coal is or is not to be removed; and 

between types of incidental boundary revisions that would be considered major or minor

revisions.

Under the Illinois program, in general, the Department may determine that certain changes are 

minor if there is no alteration to the final reclamation or mining plan. In such case, a permit 

revision would not be required.

In West Virginia, under the provisions for underground mining operations, incidental boundary 

revisions are described in terms of operation rather than acreage. Included would be, for 

example, additional drift openings, shafts, boreholes and the uphill expansion of existing refuse 

areas.

Colorado includes incidental boundary revisions under its definition of technical revision and 

lists separately under its permit revisions the requirements to be met for technical revisions.

Notice and hearing requirements for permit revisions vary from state to state. Revisions in 

Maryland, Wyoming and North Dakota do not require hearing procedures. 

Synopses Of The Above Cited State Regulatory Programs Follow:

KENTUCKY

The Kentucky regulations define "incidental boundary revisions" as follows:

"Incidental boundary revision" means an extension to a permit area that is necessary for 

reasons unforeseen at the time the original permit application was prepared and that is 

small in relation to the permit area (surface operations area for underground mining 

activities).

"(a) Where an extension includes new areas from which coal will be removed, it will be 

considered as an incidental boundary revision only if the extension is no more than ten (10) 

percent of the permit area acreage or five (5) acres, whichever is less.

"(b) Where an extension is for new areas not involving extraction of coal, it will be 

considered an incidental boundary revision only if the extension is no more than ten (10) 

percent of the permit area acreage (surface operations area acreage for underground 

mining activities) or two (2) acres,= whichever is greater.

"(c) Cumulative acreage added by successive revisions may not exceed the above 

limitations." (405 Kentucky Admin. Regs. 7:020E Section 1(57) (1984))

Revisions are classified as either major or minor. A revision is considered major if "the 

proposed change is of such scope and nature that the cabinet [Natural Resources and 

Environmental Protection Cabinet] determines that public notice is necessary to allow 

participation in the Cabinet's decision by persons who have an interest which way be 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: A. Michael Tucker and Terri H. Petruska Page 4 of 8

adversely affected by the proposed change." (405 Ky. Admin. Regs. 8:010 S 20(2)(a)) A 

revision which is not determined to be major is a minor revision.

Major revisions include, but are not limited to, incidental boundary revisions that: (1) affect 

new watersheds; (2) include diversions of perennial streams; and (3) include new areas from 

which coal will be removed, provided that such revisions will be limited to ten percent of the 

permit area acreage or five acres, whichever is less.

Incidental boundary revisions other than those listed above are considered to be minor 

revisions. Minor revisions are subject to fewer permit regulations than are major revisions. 

Except for incidental boundary revisions, any extensions to an area covered by a permit 

must be made by application for a new or amended permit.

Applications for major or minor revisions submitted after July 15, 1982 must include a basic 

fee of $375. A revision which proposes an incidental boundary revision which increases the 

acreage in the permit, must include an additional acreage fee of $75 per acre, or fraction 

thereof, with the application. No acreage fee is required for surface areas overlying 

underground workings which are not affected by surface operations and facilities.

Section 20 of 405 Ky. Admin. Regs. 8:010 addresses permit revisions.

ILLINOIS

Under the Illinois regulations:

"Extensions of area covered by a permit, except for incidental boundary revisions, shall 

be made by application of a new permit, and shall not be approved under this Part.

"Incidental boundary revisions are those which: (I) Constitute a relatively small 

percentage of the initial permit acreage, (ii) Are contiguous with the permit acreage, (iii) 

Are required for the orderly and continuous mining operation, (iv) Would be reclaimed in 

conformity with the initial plan= . (v) For the purpose of this section, incidental boundary 

changes are described as follows: (Reformatted from original)

Original Permit Acres: Maximum Size of Boundary Changes-Acres

 Up to 10: 1

 Up to 25: 2.5

 Up to 50: 5

 Up to 75: 7.5

 Up to 100: 10

 Over 100: 20"

(Illinois Coal Mining Regs., Sec. 1788-12(b)(5) (Amended Dec. 12,1982))

A revision to a permit must be obtained for changes in the surface coal mining or 

reclamation operations described in the original application and approved under the 

original permit, when such changes constitute a significant departure from the method of 

conduct of mining or reclamation operations contemplated by the original permit. 

Significant departures from the methods or conduct of mining or reclamation operations 
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Research conducted by: A. Michael Tucker and Terri H. Petruska Page 5 of 8

include any change in the operations if such change was not contemplated or provided 

for in the original permit. (Id., at Sec. 1788.12(a)(1))

Whether a proposed change constitutes a "significant departure" is analyzed on a case-bycase basis. Under the Illinois program:

"A determination as to what constitutes a significant departure shall be made by the 

Department in consultation with the permittee. Changes which do not so alter the final 

reclamation or mining plan are considered minor and do not require permit revision. 

However, any request for such changes must be included in a written request to the 

Department." (Id., at Sec. 1788.12(b)(6))

The regulations list several changes which are not significant departures, such as changes 

of direction of mining or location of mining equipment within the permit area, and substitution 

of mining equipment designed for the same purpose, the use of which is not detrimental to 

achievement of final reclamation. (Id., at Sec. 1788.12(a)(1)(I)(vi))

An application for revision must be filed in a timely manner and may be made on the 

standard permit form. Only those sections of the form which pertain to the revision in 

question must be completed. Any application for a revision which proposes significant 

alterations must, at a minimum, be subject to the review, public participation, and approval 

or disapproval criteria, as well as the requirements concerning administrative and judicial 

review. (Id., at Sec. 1788.12(b)(1)(3)) 

MARYLAND

Permit revisions are addressed at Title 8 of the Code of Maryland Regs. at Sec. 8.13.09.08.

Incidental boundary revisions are not considered significant alternations in the original 

permit. However, an incidental boundary revision may not include new area that is more 

than 25 percent of the original permit acreage, or 5 acres,, whichever is less; or more than 

250 feet from the original permit area. (Title 8, COMAR Sec. 8.13.09.08(b)(4)(a))

An application for an incidental boundary provision must be:

"(a) Submitted to the Bureau at least 5 days before the permittee desires to revise the 

permitted operation; (b) Accompanied by such narratives, maps, cross sections, and 

documentation as would be required if the revision were part of a new permit application; 

and (c) Approved or disapproved by the Bureau if it would have been approved or 

disapproved as part of a new permit application." (Id., Sec. 8.13.09.08(b)(3))

A hearing is not required for approval of incidental boundary revisions. (MD. [NAT. RES.] 

Code Ann., Sec. 7-505(a) (1979))

WEST VIRGINIA/UNDERGROUND MINING OPERATIONS
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: A. Michael Tucker and Terri H. Petruska Page 6 of 8

Any extension to an area already covered by a permit, except incidental boundary revisions, 

must be made by application for another permit. Incidental boundary revisions include, but 

are not limited to, additional areas of disturbance ancillary to permitted surface effects of 

underground mining operations, provided that the operator has submitted (A) adequate 

bond, (B) a map showing the disturbed area and facilities, and a reclamation plan. (Art. 6, 

WV Surface Coal Mining and Reclamation Act, Sec. 20-6-19(a)(2))

Incidental boundary revisions are limited to additional areas of disturbance directly related to 

underground development such as additional drift openings, shafts, boreholes and related 

structures and the uphill expansion of existing refuse areas. Incidental boundary revisions 

will not be granted for areas not uniquely related to underground mines such as coal 

storage, refuse disposal (except the uphill expansion of existing refuse areas) and coal 

haulage. (WV Surface Mining Reclamation Regs., Sec. 7D (1983))

During the term of the permit, the permittee may submit to the director an application for 

permit revision together with a revised reclamation plan. An application for a significant 

revision will be subject to all requirements of Article 6 of the West Virginia Surface Coal 

Mining and Reclamation Act and all regulations promulgated pursuant there= to. (Art. 6, WV 

Surface Coal Mining and Reclamation Act, Sec. 20-6-19(b)) 

COLORADO

"Technical revision" is defined as a minor change which will not cause a significant 

alternation in an operator's reclamation plan. The definition, found at Sec. 34-33-103(27) of 

the Colorado Surface Coal Mining Reclamation Act, includes "incidental permit boundary 

revisions". The definition is also found in the regulations at Sec. 1.04(136). A separate 

definition for "minor revision" is promulgated at Sec. l.04(73) of the regulations and does not 

include incidental permit boundary revisions.

A revision to a permit must be required for technical revisions. An applicant for a technical 

revision must: (I) Place an advertisement in a local newspaper; and (ii) Make a copy of the 

complete application available for public inspection and copying by filing a copy of the 

application with the recorder at the courthouse of the county closest to the operations.

Once the Division issues a proposed decision, the applicant may request a hearing within 10 

days after publication of the decision. (CO Surface Coal Mining Reclamation Regs., Sec. 

2.08.4(5)(b) (1982))

An application for a technical revision, as well as any revision, must contain:

"(a) An identification of the permit by permit number or other appropriate reference which 

is the subject of the revision; (b) A specific description of the requested change in the 

term of the permit; (c ) A specific description of any changes in the mining and 

reclamation operation which may have an effect on performance bond requirements of 

Rule 3; and (d) Such other information as may be necessary for the Division to 

determine if the proposed revision will comply with the Colorado Surface Coal Mining 

Reclamation and its promulgated rules. The Board or Division may reasonably request 

additional information to evaluate the proposed revision." (Id., at Sec. 2.08.4(4) (1982))
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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Technical revisions of permits are addressed at Article 33 of the Colorado Surface Coal 

Mining Reclamation Act, Sec. 34-33-116, and in the regulations at Sec. 2.08.4.

NORTH DAKOTA

A revision to a permit must be obtained for any proposed acreage changes from an existing 

permit area when necessary to accommodate revisions in surface coal mining and 

reclamation operations. (N.D. Admin. Code, Sec. 69-05.2-11.02(l) (1980)) Also, a permittee 

may request ad= ditional acreage to be included in a permit as part of a permit revision 

application is in the judgment of the commission, such additional acreage is considered to 

be an incidental boundary change to the original permit area. Such permit revision acreage 

approved by the commission will have the same permit term as the original permit. (Id., at 

Sec. 69-05.2-11.02(2))

An application for permit revision must be filed with the commission and must include: (I) A 

narrative describing the proposed permit revision. (ii) Appropriate maps and legal 

descriptions, cross sections, graphs, construction details, procedures, revised reclamation 

plans, and other data which affirmatively demonstrate compliance with the applicable 

provisions of the North Dakota Century Code. (Id., at Sec. 69-05.2-11.02(3),(4))

The commission will review each application and determine whether a "significant alteration 

to an existing permit" will occur. If the commission finds the revision is not a significant 

alteration, the application is not subject to the notice, bearing and procedural requirements. 

(Id., at Sec. 69-05.2-11.02(5)(a), (b)) 

WYOMING

Extensions to permitted acreage must be made by application for another permit with public 

notice, except for incidental boundary revisions. A permit may be revised without public 

notice or hearing for incidental boundary revisions which do not propose significant 

alternations in the reclamation plan. (Wy. Environmental Quality Act, Sec. 35-11-

402(a),(b),(x) (1980))

The operator must notify the administrator in advance where the extension is an incidental 

boundary revision. A copy of the notification must be kept at the site of the operation. (Land 

Quality Div. of the Dept. of Environmental Quality Regs., Sec. 6 (1980))

ATTACHMENTS:

A. Excerpt from S. Rep. No. 402, 93rd Cong., 1st Sess. 57 (1973).

B. Excerpt from S. Rep. No. 128, 95th Cong., 1st Sess. 79-80 (1977).

C. Preamble discussion of 30 CFR Sec. 774.13 Permit Revisions, 48 FR 44376-78 (1983).

D. Excerpts from Kentucky Administrative Regulations, Table of Contents; and 405 Ky. Admin. 

Regs. 8:010 5 20 Permit Revisions.

E. Excerpts from Illinois Coal Mining Regulations: Table of Contents; and Parts 1771, 1786, 

1787 and 1788. (See Sec. 1788.12 Permit Revisions).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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F. Excerpt from West Virginia Surface Mining Reclamation Regs, Sec. 7D, Incidental Boundary 

Revisions. Excerpt from Article 6, West Virginia Surface Coal Mining and Reclamation Act, 

Sec. 20-6-19 Permit Revision (See Sec. 20-6-19(a)(2) and (b)).

G. Excerpt from Annotated Code of Maryland, Sec. 7-505 (1979). Excerpt from Code of 

Maryland Regulations, Sec. 08.13.09.08.

H. Excerpt from Wyoming Environmental Quality Act, Sec. 35-11-402. Excerpt from Land 

Quality Div. of the Dept. of Environmental Quality Regs., Sec. 6 (1980).

I. Excerpt from North Dakota Admin. Code, Sec. 69-05.2-11-02 Permit Revisions.

J. Excerpt from Colorado Surface Coal Mining Reclamation Act, Sec. 34-33-103, and Colorado 

Surface Coal Mining Reclamation Regs., Sec. 2.08.4 (1982).