COALEX State Comparison Report - 229
September, 1992
Bill Bledsoe
Division of Mined Land Reclamation
Department of Mines, Minerals and Energy
P.O. Drawer 900
Big Stone Gap, Virginia 24219
TOPICS: I. ATTORNEYS' FEES; II. DEFINITION OF "IN CONNECTION WITH"
INQUIRIES: I. The Department of Mines, Minerals and Energy (DMME) has attorneys on staff;
however, for an upcoming lawsuit against an operator DMME may have to use attorneys from the
Attorney General's (AG) office. According to Virginia state law, fees for use of the AG's lawyers
must be billed back to DMME. Can these types of fees, or fees paid to counsel hired from private
law firms, be charged to the OSM regulatory grant (on a 50/50 basis)?
II. On November 22, 1988, OSM removed the definition of "support facilities". The phrase "in
connection with" a mine was added to describe those coal preparation plants which require
regulation under SMCRA. Does any state have regulations that establish criteria to determine
when an offsite plant is "in connection with" a mine or mines?
SEARCH RESULTS: A telephone survey of nine IMCC member states was conducted using the two
inquiries described above. The results of survey appear in summary and narrative form below.
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I. CHARGE OF ATTORNEYS' FEES TO THE OSM GRANT
SURVEY SUMMARY
States that charge legal fees to the OSM grant:
Alabama
Kentucky
Illinois
Maryland
Ohio
Pennsylvania
Texas
West Virginia
State that does not charge legal fees to the OSM grant:
Indiana
States with in-house attorneys [NOTE: These attorneys perform administrative case work only; state
and federal cases are handled by attorneys from the AG's office. None of the states surveyed had
in-house staff that perform all of the required legal work.]:
Illinois
Indiana
States that use attorneys from other sections within the same agency:
Kentucky
Texas
States whose legal work is performed by attorneys from the AG's office:
Alabama
Maryland
Ohio
Pennsylvania
West Virginia
States that have used outside private counsel:
STATE BILLED FEES TO GRANT
Illinois Yes and No (See below)
Kentucky No (See below)
West Virginia Yes
NARRATIVE OF RESPONSES
ALABAMA
The attorneys who work for the Alabama Surface Mining Commission are commissioned by the
state AG's office. Their salaries are charged against the OSM grant. Alabama has not had the
need to hire outside counsel from a private law firm.
ILLINOIS
Attorneys on the staff of the Department of Mines and Minerals (DMM) handle administrative
matters only. By statute, cases that go to state or federal court must use attorneys from the AG's
office. Certain expenses, such as the cost of depositions, are billed back to DMM. These expenses
are charged to the OSM grant. Private outside counsel are used by the state to collect delinquent
civil penalties. These attorneys' fees are charged to the OSM grant. In the early days of the
regulatory program, the state had a private attorney on staff to assist with program development;
this attorney also assisted in an Illinois suit against OSM. These fees were not paid out of the
OSM grant.
INDIANA
Staff attorneys in the Department of Natural Resources (DNR) handle the administrative cases.
State and federal court cases are referred to the AG's office. This statutory arrangement was
established recently due to the increased caseload of the DNR attorneys. The AG's office does not
bill any fees back to DNR.
KENTUCKY
Attorneys in the Department of Law are the lawyers for all Departments under the Natural
Resources Cabinet. Work performed by these attorneys for the Department for Surface Mining
and Reclamation Enforcement is charged against the OSM grant. Fees for the outside attorneys
used in the Settlement Agreement with the National Wildlife Federation were not charged against
the grant. If outside counsel were necessary for other casework, their fees would be billed back
to Surface Mining Department for charge against the OSM grant.
MARYLAND
The Maryland Bureau of Mines has no attorneys on staff. Required legal work is performed by
the AG's counsel. The salary and support of one attorney are charged to the OSM grant.
OHIO
The Division of Reclamation under the Department of Natural Resources is represented by the
state AG's office. The AG bills the Division; these fees are paid out of the grant.
PENNSYLVANIA
The attorneys who work in the Department of Environmental Resources are part of the AG's
office. Their salaries are paid out of the OSM grant.
TEXAS
The Legal Division of the Railroad Commission performs all work for the Surface Mining and
Reclamation Division . These fees are billed to the SMCRA Division which, in turn, charges these
fees against the grant.
WEST VIRGINIA
The AG's office represents the Division of Energy on a contract basis. The contract fees are
charged to the OSM grant. They have used outside counsel on the recommendation of the AG;
these fees have also been charged to the grant.
I. CRITERIA FOR "IN CONNECTION WITH"
SURVEY SUMMARY
Eight of the nine states contacted use the preamble to the Federal Register notice of November
22, 1988 as their guide in determining which facilities are subject to regulation under SMCRA.
Pennsylvania received approval of their proposed rule and is awaiting approval of their final rule
which uses "ultimate end use" language, not "in connection with" criteria.
NARRATIVE OF RESPONSES
ALABAMA
The preamble to the current regulations is used as the guide to determine when a preparation
plant is considered "in connection with" a mine.
ILLINOIS
There are no regulations or policies which define the criteria for when a preparation plant is "in
connection with" a mine or mines. Illinois has had little problem with this issue: the connections
between a mine or mines and preparation plants have been easy to establish.
INDIANA
These is no formal definition of "in connection with". There not many offsite plants and those
found in the state are clearly "in connection with" a mine or mines. The state statute had to be
revised in order for DNR to have jurisdiction over regulation of offsite plants. DNR jurisdiction
began 12/1/89 and cannot be made retroactive to the beginning of SMCRA.
KENTUCKY
There are no "codified" criteria used to determine which offsite plants require regulation under
SMCRA.
MARYLAND
There are no "codified" criteria used to determine which offsite plants require regulation under
SMCRA. There are few plants in the state.
OHIO
Ohio recently submitted a program amendment to OSM which added "in connection with" to
their rules; however, no interpretation of the phrase was provided as part of that proposed
rulemaking.
PENNSYLVANIA
Pennsylvania is awaiting OSM approval of their final rule regarding offsite plants. This rule uses
"ultimate end use" language not "in connection with" criteria and is described in the attached
Rulemaking Package as follows:
As the rule now stands, the Department will regulate all off-site operations where coal is
subjected to chemical or physical processing or cleaning, concentrating or other processing or
preparation, unless that operation is located at the site of ultimate coal use. To be eligible for the
ultimate use exemption a preparation activity operator must also be the operator of the activity
which burns, liquefies or otherwise makes final use of the coal.
TEXAS
Texas uses the guidelines from the Federal Register preamble to determine whether an offsite
preparation plant requires regulation under SMCRA. There are few plants in Texas.
WEST VIRGINIA
There is no regulatory definition of "in connection with"; the need to regulate a facility is
determined on a case-by-case basis. Both the functional and physical connections are weighed to
determine if a facility must be regulated.
ATTACHMENTS
Pennsylvania Rulemaking Package, consisting of:
1. Subchapter H. COAL PREPARATION ACTIVITIES.
Sections 89.171, 89.172 and 89.173.
2. Excerpt from 56 FR 24708 (May 31, 1991).
3. Memorandum from the Director of the Bureau of Mining and Reclamation describing the
final rulemaking package.
Survey conducted by: Joyce Zweben Scall
