COALEX REPORT 70

	Coalex Report 70

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   
COALEX STATE INQUIRY REPORT - 70
June 30, 1986

Mary Ann Lunderman
Legal Counsel
Mining & Minerals Division
Energy & Minerals Department
525 Camino de los Marquez
Santa Fe, New Mexico 87501

TOPIC: MIDTERM PERMIT REVIEW

INQUIRY: Please research SMCRA Sec. 511 for the following: (1) Legislative history regarding
midterm permit review; and (2) State-by-state procedures for handling midterm permit reviews.

SEARCH RESULTS: See below.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LEGISLATIVE HISTORY 

   A COALEX search was conducted to examine midterm permit review under SMCRA Sec. 511. 
Since the 93rd Congress, all versions of Sec. 511 have contained the same language, with only a
few minor exceptions.  The Senate Conference Report, from the 95th Congress, 1st Session
clearly addressed these minor differences:

"The House Bill and the Senate amendment were quite similar and set forth procedures for
revision of permits during the same term of the permit.  H.R. 2 stipulated that the regulatory
authority could require reasonable revision or modification of the permit during its term.  The
Senate amendment stipulated that the regulatory authority, within time units prescribed in
regulations, review outstanding permits for identification of necessary revisions or modifications. 
The House receded with respect to this provision." (S. Rep. No. 337, 95th Cong., 1st Sess.
(1977))

   All subsequent Congressional reports that were examined contained identical language to that
used by the 95th Congress with the enactment of SMCRA.  The applicable section of the 95th
Congressional Report No. 128 states:

"Section 411.  Revision of Permits

"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 revision)
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 and Federal program's notice and hearing
requirements."  (S. Rep. No. 128, 95th Cong., 1st Sess. 79-80 (1977))


STATE REGULATIONS

   A search was conducted which compared state regulatory programs for provisions concerning
midterm permit review by the regulatory authority.  This comparison revealed that the majority of
the states have an identical regulation which provides:

(1) The department shall review each permit issued during the term of the permit.  This review
shall occur not later than the middle of the permit term.

(2) After this review, the department may, by order, require reasonable revision or modification of
the permit provisions to ensure compliance with the act and this subchapter.

(3) The department shall send a copy of its decision to the permittee.

(4) Any order of the department requiring revision or permits shall be based upon written finding
and shall be subject to the provisions for administrative and judicial review.

   The states which use this form of regulation are: Alabama, Illinois, Indiana, Montana, New
Mexico, Texas, Utah, and Virginia. (See attached documents.)

   Pennsylvania's regulation differs in that it does not require midterm permit review, but leaves
review of active permits to the discretion of the department with the exception of steep slope
mining. (Pennsylvania Department of Environmental Resources Coal Mining Regs., Sec. 86.51
(1982))

   Oklahoma's regulation regarding midterm permit review differs slightly because the regulation
contains no provision for review of permits that are effective for more than five years. (Oklahoma
Department of Mines Permanent Regs., Sec. 788.11 (1982))

   West Virginia's statutes also contain provisions for midterm permit review. (West Virginia Code
Sec. 20-6-20 (1980))


ATTACHMENTS
A     Alabama Surface Mining Commission Reg., Sec. 880-X-8M-.05 (1981).
B    Illinois Surface Coal Mining Land Conservation and Reclamation Act, Sec. 1788.11 (1980).
C    310 Indiana Admin. Code. Sec. 120 (1982).
D    Montana Admin. Rules, Sec. 26.4.408 (1980).
E    New Mexico Surface Coal Mining Regs., Sec. 13-11 (1980).
F    Texas Surface Coal Mining Regs., 051.07.04.225 (1980).
G    Utah Surface Coal Mining Regs., 788.11, (1980).
H     West Virginia Code Sec. 20-6-19 (1980).
I    Virginia Permanent Mining Regs., Sec. V788.11 (1982).
J    S. Rep. No. 337, 95th Cong., 1st Sess. 106 (1977).
K    S. Rep. No. 128, 95th Cong., 1st Sess. 79 (1977).
L    Pennsylvania Dept. of Environmental Resources Coal Mining Regs., Sec. 86.51 (1982).
M    Oklahoma Dept. of Mines Permanent Regs., Sec. 788.11 (1982).


Search conducted by: Lisa Johnson

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