COALEX REPORT 293

	Coalex Report 293

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 - 293
August, 1994

Olga Brunning, Esquire
Department of Natural Resources
Tawes Building
580 Taylor Avenue, Room C-4
Annapolis, Maryland 21401

TOPIC: MOVING EQUIPMENT OFF PERMIT AREA (Includes COALEX Reports 136 & 157)
      
INQUIRY: An operator drove a bulldozer and a loader off the permit area without using the haul
road. The area on which the equipment rode was not part of the permitted area. Can the moving
of the mining equipment be considered an activity "in connection with" surface coal mining
operations and should the permit have been revised to include the land over which the equipment
was driven? Does it make a difference that no roadway was constructed?

SEARCH RESULTS: COALEX, LEXIS and existing COALEX State Inquiry Reports were used to
research this inquiry.

  Several decisions were identified, including both Interior administrative and state opinions, that
address construction of walkways to move draglines over unpermitted areas. No materials were
identified that specifically discussed moving bulldozers or loaders or moving equipment but not
constructing paths. Also identified were two existing COALEX Reports, discussing the definition of
"adjacent to" and "in connection with" a surface coal mining operation. Copies of the materials
discussed below are attached.

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

K & R COAL CO., INC. v OSM, Docket Nos. DV 91-1-R, DV 91-3-R (1994).
   "K&R's construction and use of the walkway clearly constituted 'surface coal mining operations' in
two ways. First, K&R constructed the walkway to move mining equipment, i.e., the dragline, from
one permitted site, across some 5 miles of unpermitted private land, to K&R's permitted site, at
which the dragline was to be used for K&R's surface coal mining operations. Thus, the walkway
was constructed on 'adjacent land the use of which is incidental' to K&R's surface coal mining
activities at its permitted site. Also, the walkway constituted 'the construction of [a] new road[],"
the sole purpose of which was 'to gain access to the site' of K&R's Mine for the delivery of K&R's
dragline. Thus, K&R's construction and use of the walkway was a surface coal mining activity that
required a permit under SMCRA and the Oklahoma program. See WILLOWBROOK MINING CO. v
OSM, 108 IBLA 303 (1989), aff'd WILLOWBROOK MINING CO. v LUJAN, No. 89-1223 (W.D. Pa.
January 19, 1993); PEABODY COAL CO. v RIDENOUR, 515 NE 2d 1163 (Ind App 1 Dist 1987)."

PLEASE NOTE: WILLOWBROOK MINING CO. v OSM is attached as part of COALEX Report No. 147.
WILLOWBROOK MINING CO. v LUJAN was not available from LEXIS at this time.


RELEVANT, BUT LESS PERSUASIVE CASES:
CONSOLIDATION COAL CO. v OSM, Docket No. CH 0-224-P (1981). 
   A NOV was issued for conducting surface coal mining operations outside of the original permitted
area without approval from the regulatory authority: "a dozer path had been permitted which had
not been constructed nor followed by the petitioner and another which was constructed off of the
area permitted."


MULLINS AND BOLLING CONTRACTORS, 4 IBSMA 156, IBSMA 81-75 (1982).
   Two 2-acre sites owned and mined by the same operators were connected by a dozer track. The
Board found that the sites constituted a surface coal mining operation that was not eligible for the
2-acre exemption: the total disturbed area, including both mining sites plus the bulldozer path and
the haul road, was over  4 acres.


COALEX REPORTS
COALEX STATE INQUIRY REPORT - 157, "Definition of 'adjacent to' under 'surface mining
operations'" (1990).
   Specifically, did the moving of a dragline over an area "adjacent to" fall under the definition of
"surface mining operations" which required a permit? Research on the definition of "adjacent to"
retrieved material that discussed the definition of "in connection with". This report includes
WILLOWBROOK MINING CO. v OSM.


COALEX STATE INQUIRY REPORT - 136, "Definition of 'in connection with' under 'surface mining
operations'" (1990).
   This Report includes legislative history, federal SMCRA decisions, Interior administrative decisions
and Federal Register notices.


ATTACHMENTS
A.   K & R COAL CO., INC. v OSM, Docket Nos. DV 91-1-R, DV 91-3-R (1994).
B.   PEABODY COAL CO. v RIDENOUR, 515 NE 2d 1163 (Ind App 1 Dist 1987)."
C.   CONSOLIDATION COAL CO. v OSM, Docket No. CH 0-224-P (1981). 
D.   MULLINS AND BOLLING CONTRACTORS, 4 IBSMA 156, IBSMA 81-75 (1982).
E.   COALEX STATE INQUIRY REPORT - 157, "Definition of 'adjacent to' under 'surface mining
     operations'" (1990).
     [This report includes WILLOWBROOK MINING CO. v OSM.]
F.   COALEX STATE INQUIRY REPORT - 136, "Definition of 'in connection with' under 'surface
     mining operations'" (1990).


Research conducted by: Joyce Zweben Scall

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