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COALEX STATE INQUIRY REPORT - 69

April 28, 1986

Barbara W. Roberts

Utah Attorney General's Office

124 State Capitol

Salt Lake City, Utah 84114

TOPIC: REGULATION OF COAL PROCESSING PLANTS

INQUIRY: What states have amended their regulations to comply with the July, 1985 revisions 

of the federal program?

SEARCH RESULTS: See below. 

__________________________________________________________________________

HISTORY

The Secretary's duty to regulate off-site coal mining support facilities was examined at IN RE 

PERMANENT SURFACE MINING REGULATION LITIGATION II, Civil Action No. 79-

1144, slip op., at 15-25 (DDC July 6, 1984) [hereinafter the "July, 1984 opinion"]. At that time, 

the Secretary actively regulated "coal processing" facilities, regardless of location, if the facilities 

were operated in connection with a mine. (July, 1984 opinion at 16) However, the Secretary 

limited the definition of "coal processing" to processing which separates coal from its impurities. 

(Id.) Other types of coal preparation facilities, including coal loading, crushing, and sizing 

facilities, were regulated only if located "at or near" the mine site. (Id.) Also, certain types of 

"support facilities" were regulated only if they were "geographically proximate" to the mining 

areas. (Id. at 20)

In the July, 1984 opinion, the court held the regulations improperly narrowed the scope of the 

Secretary's jurisdiction over off-site facilities. The court stated that the regulations could not 

limit "the Secretary's jurisdiction over leaching, physical processing, or chemical processing 

when these operations do not involve the separation of coal from its impurities." (Id. at 20) Since 

the statute contemplated that those types of off-site facilities would be regulated, the Secretary's 

definitions of "coal preparation", "coal processing", and "coal preparation plant" were remanded. 

(Id. at 19-20) In a footnote, the court also indicated that the definition of "surface coal mining

operations" should be amended to clearly reflect the court's holding with regard to off-site 

processing facilities. (Id. at n. 17) Moreover, the court determined that the definition of "support 

facilities" with its geographic proximity test, could not stand.

In response to the July, 1984 opinion, the Office of Surface Mining Reclamation and 

Enforcement (OSM) issued an "interim final rule". (50 FR 28180 (1985)) At the same time, 

OSM published the identical rule as a proposal. (Id.) The rule clarifies the regulation of facilities 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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which leach, or which chemically or physically process coal, or which result from or are incident 

to a regulated facility, and which do not have an element of proximity.

The interim final rule became effective on September 9, 1985. Under the interim rule, changes 

are made to regulatory definitions found in both 30 CFR 700.5 and 30 CFR 701.5. Also, 

amendments to 30 CFR 827 were made, allowing the use of interim performance standards for 

coal preparation plants until permanent program permits are issued for the plants. Finally, 

changes were made to 30 CFR 785.21, which deals with permitting coal preparation plants, to 

allow operators a reasonable time to secure permits for plants which have only recently become 

subject to regulation under the Act.

AMENDMENTS TO SURFACE COAL MINING-OPERATIONS DEFINITION

The language of the Secretary's 1983 definition of "surface coal mining operations" followed 

very closely the statutory definition of surface coal mining operation" found in Sec. 701(28)(A) 

of the Act. In pertinent part, the regulatory definition read as follows:

" [S]urface coal mining operations' means--

(A) Activities conducted on the surface of lands in connection with a surface coal mine or, 

subject to the requirements of section 516 of the Act, surface operations and surface impacts 

incident to an underground coal mine, the products of which enter commerce or the operations of 

which directly or indirectly affect interstate commerce. Such activities include excavation for the 

purpose of obtaining coal, including such common methods as contour, strip, auger, mountaintop 

removal, box cut, open pit, and area mining; the uses of explosives and blasting; in situ 

distillation, retorting, leaching, or other chemical or physical processing; and the cleaning, 

concentrating, or other processing or preparation of coal. Such activities also include the loading 

of coal for interstate commerce at or near the mine site...." ((30 CFR 700.5 (1983) - excerpt from 

50 FR 28180 (1985)) 

In the interim final rule, OSM amended the definition as follows:

"This interim final rule revises the 1983 definition in accordance with the court's interpretation of 

the statutory definition . . . . Specifically, the comma between distillation and retorting will be 

replaced by an or' and a semicolon will be placed after the phase in situ distillation or retorting'. 

This change will mean that leaching, chemical or physical processing' will no longer be limited 

by the phrase in situ'. Thus, these operations will be regulated wherever they occur." (50 FR 

28180 (1985)). 

AMENDMENTS TO DEFINITIONS OF 30 CFR 701.5

OSM further responded to the July, 1984 opinion by deleting the definition of "coal processing 

or preparation" and adopting instead a definition of "coal preparation". OSM also made changes 

to the definition of "coal preparation plant" and suspended the definition of "support facilities". 

Although the July, 1984 opinion did not specifically remand the definition of "support facilities", 

the definition previously contained an element of proximity, which was contrary the holding of 
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the July, 1984 opinion. Since OSM decided that the definition of "support facilities" was not 

needed, the definition was suspended rather than amended. More specifically, OSM took the 

following actions in the interim rule:

"1. Coal preparation. This rule will replace the 1983 definition of the phrase coal preparation or 

coal processing' which was formulated on the basis of OSM's previous interpretation of Sec. 

701(28)(A) of the Act. Under the 1983 rules, coal preparation or coal processing' meant the 

cleaning concentrating, or other processing or preparation of coal in order to separate coal from 

its impurities.' In accordance with the District Court's decision, this rule deletes the definition of 

coal processing or preparation'. In its place, the Department adopts a new definition of the term 

coal preparation'. Under the new definition, coal preparation' means the chemical or physical 

processing and the cleaning, concentrating or other processing or preparation of coal. Facilities 

which do not separate coal from its impurities will be included in this definition. 

"2. Coal preparation plant. The Department is revising the definition of coal preparation plant' in 

order to track the revised definition of coal preparation discussed above. 

"3. Support facilities. The Department is suspending the definition of support facilities for 

several reasons. First, this is being done to implement the July 6, 1984, District Court decision in 

IN RE: PERMANENT SURFACE MINING REGULATION LITIGATION II, No. 79-1144 

(DDC 1984). There the Court ruled that the determination of whether a facility was subject to the 

Act cannot include an element of proximity. The definition of support facilities adopted in 1983 

included an element of proximity. Accordingly, OSM is suspending the definition. OSM has 

determined that no definition of support facilities is needed. OSM had none from 1977 to 1983 . . 

. . [A]fter careful reexamination, and in light of the Court's opinion, the department has 

determined that there is no need to amplify the language in the Act with respect to the meaning 

of activities that are resulting from or incident to' a regulated activity. Furthermore, since support 

facilities are subject to the same performance standards as the mine they support, deletion of the 

definition eliminates possible confusion over whether support facilities are subject to different 

performance standards." (50 FR 28180 (1985)) 

AMENDMENTS TO 30 CFR 785.21

OSM accomplished several objectives with the amendments to Sec. 785.21. First, coal 

preparation plants that were not subject to regulation prior to the July, 1984 opinion are given 

eight months from the effective date of the interim final rule in which to secure a permit. Second, 

states whose programs would preclude permitting and regulating these facilities were directed to 

notify OSM within 60 days from the rule's effective date. Third, within 90 days from the rule's 

effective date, states must submit a schedule of actions whereby the state program will undertake 

regulation and permitting for all coal preparation plants in the state's jurisdiction. Fourth, coal 

preparation plants in these states will be permitted in accordance with the state schedule rather 

than the Federal program's eight month scheme. Fifth, extension of the deadline is allowed where 

operators have timely applied for permits and are complying with performance standards found 

at Sec. 827.13, and the regulatory authority has not issued or denied permit. More detail on 

OSM's actions is provided as follows:
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"New paragraph (d)(1) of section 785.21, requires any persons who plan to operate, after eight 

months from the effective date of this rule, a coal preparation plant which was not subject to the 

regulations of 30 CFR Chapter VII prior to July 6, 1984, to apply for a permit no later than two 

months after the effective date of the rule. 

"New paragraph (d)(2) contains an important exception to the requirements of paragraph (d)(1). 

It provides that those States with State programs that have statutory or regulatory prohibitions 

precluding the issuance of permits to facilities covered by paragraph (d)(1) shall notify OSM 

within 60 days of the effective date of this rule that a program change is necessary. These States 

must then establish a timetable of this action to be taken in order to adopt appropriate measures 

and undertake permitting actions for all of the coal preparation plants located within their 

jurisdiction. The schedule is to be submitted to OSM for approval within 90 days of effective 

date of this rule. Operators must apply for permits in accordance with that schedule. 

"New Paragraph (e) of section 785.21 provides that any person operating a coal preparation plant 

made subject to regulation by the July 6, 1984, decision and not subject to prohibition by 30 CFR 

761.11 will be allowed to continue to operate without a permit until eight months from the 

effective date of this rule. Such persons will be allowed to operate past the eighth month deadline 

if (1) they have timely filed a permit application pursuant to paragraph (d)(1) or pursuant to a 

State imposed schedule specified in paragraph (d)(2); (2) the regulatory authority has yet to issue 

or deny the permit, and (3) the person complies with the applicable performance standards of 

section 827.13 of 30 CFR Chapter VII. 

"OSM has determined not to employ the ordinary State program review and notification process 

of 30 CFR 732.17 to ensure that the changes to the definition of the term surface coal mining 

operations' and the permitting schedule in Section 785.21(d)(2) will be most effectively 

implemented. This is being done because of the ease of notifying all States at once in this notice 

and to allow States the first opportunity to determine whether their programs already allow for 

implementation of these rules. 

"Under the approach adopted, States are required to review their own programs and advise OSM 

if they need to make program amendments to implement these rules. Because the States are in a 

better position to interpret their own programs, this will avoid possible misunderstandings and 

unnecessary interpretative problems." (50 FR 28180 (1985)) 

AMENDMENTS TO PART 827

Finally, OSM set forth an amendment to establish interim performance standards under Part 827 

of the regulations. The rationale for the amendment was given as follows:

"Part 827 of 30 CFR sets forth the permanent program performance standards for coal 

preparation plants not within the permit area for a specific mine. Rather than make the permanent 

program standards immediately applicable to the coal preparation plants made subject to 

regulation by the District Court's decision, OSM is amending Part 827 so that interim 

performance standards will apply to such plants until the permanent program permit for such 
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plant is issued. Such a provision is reasonable because the permanent program performance 

standards are tied to the issuance of a permit. The interim program performance standards are 

keyed to direct enforcement not based upon the existence of a permit." (50 FR 28180 (1985)) 

STATE RESPONSES

VIRGINIA

On August 19, 1985 Virginia notified OSM that it could not legally regulate and permit facilities 

which leach, chemically process, or physically process coal but do not separate coal from its 

impurities. (50 FR 47388 (1985)) On September 4, 1985, Virginia submitted a proposed 

amendment to its state program which would add definitions, identical to the definitions of 30 

CFR 701.5 as amended on July 10, 1985, for "'coal preparation' or coal processing"' and "coal 

preparation plant." (Id.) The Virginia amendments did not require that mere loading facilities, 

not engaged in physical processing of coal and not located at or near the mine site, be regulated. 

(Id.)

Receipt of the proposed amendments was announced on September 20, 1985. (50 FR 38137-

38139 (1985)) The public comment period closed on October 21, 1985, and OSM gave final 

approval to the Virginia amendments on November 18, 1985. (50 FR 47388 (1985))

OKLAHOMA

On September 11, 1985, Oklahoma submitted a proposed amendment to its state program which 

would add definitions, identical to the definitions of 30 CFR 700.5 and 30 CFR 701.5 as 

amended July 10, 1985, for "surface coal mining operations", "coal preparation" and "coal 

preparation plant". OSM announced receipt of the amendments and invited public comment on 

November 29, 1985. (50 FR 49072 (1985)) The public comment period closed on December 30, 

1985, and OSM gave final approval to the Oklahoma amendments on January 16, 1986. (51 FR 

2360 (1986))

KENTUCKY

On March 31, 1986, OSM reopened the comments period on amendments pertaining to 

Kentucky's regulation of coal processing plants. (51 FR 10886 (1986)) The Kentucky 

amendments have extensive background because they were originally submitted before the July, 

1984 opinion.

On May 26, 1982, Kentucky submitted its first amendment proposals. These amendments would 

have confined "coal processing operations" to operations where coal is separated from its 

impurities and wastes are generated. On September 17, 1985, OSM disapproved these 

amendments to the Kentucky program. (50 FR 37656 (1985)) On the same date, OSM published 

a proposed rule, seeking comment on the announced intention to preempt and supersede 

Kentucky Revised Statute (KRS) 350.060(22). (50 FR 37299 (1985)) The proposal to supersede 
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KRS 350.060(22) was finalized on November 20, 1985, to be effective December 1, 1985. (50 

FR 47728 (1985))

On December 3, 1985, Kentucky submitted emergency amendments to modify requirements 

pertaining to coal processing plants. These amendments became applicable as of December 1, 

1985 and accomplished the following:

1. " Kentucky is amending its definition of coal processing plant' to reflect recent Federal 

rulemakings which respond to a District Court decision. The court ruled that the Federal rules 

excluded from regulations facilities that are required to be regulated under SMCRA. Kentucky's 

amended definition includes facilities where coal is subjected to chemical or physical processing, 

or cleaning, crushing, sizing or other processing or proportion." (405 KAR 7:0203(18)) 

2. " Kentucky is making substantial modifications to its permitting requirements for coal 

processing plants not located within the permit area of a specific mine. Requirements for 

applicability are changed and new requirements are established for previously exempted 

facilities. New application requirements are added, and an applicability date of December 1, 

1985, is established." (405 KAR 8:050E) 

3. " Kentucky is deleting existing performance standards for offsite coal processing plants and 

replacing them with new standards. The revised rules establish applicability of the rules. 

Performance standards are established by referencing other Kentucky requirements that shall or 

shall not apply. Requirements for protection of nearby underground mining activities and 

replacement of water supply are provided. Special standards are established for previously 

exempted areas." (405 KAR 20.070) (51 FR 1517 (1985)) 

These amendments are currently the subject of a comments period which was noticed on March 

31, 1986. (51 FR 10886 (1986))

WEST VIRGINIA

While West Virginia did not act to amend its regulations with regard to coal preparation 

facilities, OSM did act to preempt and supersede certain portions of the West Virginia program. 

On May 3, 1985, the Governor of West Virginia signed into law a bill known as the West 

Virginia Energy Act (WVEA). This Act repealed the West Virginia Surface Coal Mining and 

Reclamation Act and incorporated it into the WVEA, albeit in a somewhat altered fashion. On 

July 11, 1985, OSM approved the WVEA as an amendment to the West Virginia program, with 

certain exceptions. (50 FR 28316-28324 (1985)) One of the areas of exception was the definition 

of "surface-mining operations" under the WVEA. (50 FR 28343 (1985))

On August 29, 1985, OSM issued a final rule, preempting and superseding several sections of the 

WVEA, including the section defining "surface mining operations". (50 FR 35082 (1985)) The 

definition and changes made to the definition are as follows:
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"The areas upon which the above activities occur or where such activities disturb the natural land 

surface. Such areas shall also include any adjacent land, the use of which is incidental to any 

such activities; all lands affected by the construction of new roads or the improvement or use of 

existing roads to gain access to the site of such activities and for haulage; and excavations, 

workings, impoundments, dams, ventilation shafts, entryways, refuse banks dumps, stockpiles, 

overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage 

areas, processing areas, shipping areas and other areas upon which are sited structures, facilities, 

or other property or materials on the surface, resulting from or incident to such activities: 

Provided, That such activities do not include the extraction of coal incidental to the extraction of 

other minerals where coal does not exceed sixteen and two-thirds percent of the tonnage of 

minerals removed for purposes of commercial use of sale, or coal prospecting subject to section 

seven of this article: Provided, however, That permanent facilities not within the area being 

mined and not directly involved in the excavation, loading, storage, or processing of the coal 

shall not be subject to the provisions of this article. Such facilities include, but are not limited to, 

offices, garages, bathhouses, parking areas, and maintenance and supply areas.

"The specific wording being preempted and superseded is: 

"Provided, however, That permanent facilities not within the area being mined and not directly 

involved in the excavation, loading, storage, or processing of the coal shall not be subject to the 

provisions of this article. Such facilities include, but are not limited to, offices, garages, 

bathhouses, parking areas, and maintenance and supply areas. (50 FR 35082 (1985))

ATTACHMENTS

A. 50 FR 28189 (1985)(proposed rule). 

B. 50 FR 28180 (1985)(interim final rule). 

C. 50 FR 47388 (1985). 

D. 51 FR 2360 (1986). 

E. 50 FR 37656 (1985). 

F. 50 FR 37699 (1985). 

G. 50 FR 47728 (1985). 

H. 51 FR 1517 (1986). 

I. 51 FR 10886 (1986). 

J. 50 FR 28316 (1985). 

K. 50 FR 28343 (1985). 

L. 50 FR 35082 (1985). 

Note: Oversight document not included due to bulk.