Opposition — Helmerich & Payne, Inc. v. Rock Island Improvement Co.

Supreme Court brief1983

Ask Donna

What actually matters in this document.

Text

Uitice- Supreme Court, U.S,

FILED

MAY 2 i963

me,

No. 82-1613 ALEXANDER L STEVAS,

ERK

Guthe Supreme Court of the Bnited States

Octroser TERM, 1982

HELMERICH & PAYNE, INC.

Petitioner

ROCK ISLAND IMPROVEMENT COMPANY

Respondent

Vv.

SAM SEXTON, JR.

Third Party Defendant

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

JOHN R. CAIN

RYAN, CAIN anp HILL

880 City National Bank Tower

Oklahoma City, Oklahoma 73102

(405) 236-1626

DOROTHY J. AMIS

AMIS & AMIS

608 First Continental Bank Tower

P.O. Box 15038

Del City, Oklahoma 73115

(405) 677-4119

Attorneys for Respondent,

Rock Island Improvement Company

TABLE OF CONTENTS

PRELIMINARY MATTERS non. n-.noennaneenenene

STATUTORY PROVISIONS INVOLVED 0.

STATEMENT OF FACTS ........

REASONS FOR DENYING THE WRIT .......

I. There Are No Special or Important Reasons for

This Court to Exercise Its Discretion to Grant

Certiorari . PRO ELST LFA ER. SA

II. Factual Questions Have Been Resolved Twice in

Favor of Respondent and the Supreme Court

Does Not Grant Certiorari to Review Evidence

and Discuss Specific Facts .

III. This Case Does Not in Any Sense Broadly Con-

cern the Relationship Between the Federal

Court Sitting in Diversity and the State Courts

CONCLUSION .

CERTIFICATE OF SERVICE follows Brief.

APPENDIX A: Lease Agreement Between Respon-

dent, Rock Island Improvement Company and Peti-

tioner, Helmerich & Payne, Inc.

APPENDIX B: The “Coal Reclamation Act of 1979”,

45 O.S.(1981), $742.1, et seq.

— |

TABLE OF AUTHORITIES

Cases PAGE(S)

Bradley v. Richmond School Board,

416 U.S. 696 (1974) . aa Seimacapncandsice a ae

Bernhart v. Polygraphic Co. ‘of America,

350 U.S. 198 (1955) .. si daladla canta eee eaeeteegsaacaae ne

Court v. Ash, 422 U.S. 66 (1975) . ae 13

Grover Tank & Mfg. Co. v. Linde Ab Products Co., be

336 U.S. 271, adhered to in part and reversed in part,

339 U.S. 605, motion denied 70 S.Ct. 1017, 94 L.Ed.

1392 . saith a

Hodell v V. . Virginte Surfece Min. and Recl. Aawoe., ¥

452 U.S. 264, n.19 (1981) —...... eee = Leesan 3

Peevyhouse v. Garland Coal and Mining Co., ™

382 P.2d 109 (Okla.) cert. den., 375 U.S. 906

(1963) . es ~shienemmmnetiies ag Wale ae

Meredith v V. . Winterhaven, 320 US. 298 ( 1943) . 14

Reed v. Junutolo, 129 W.Va. 563, 42 S.E.2d 16 ( 1946) . 1

Rock Island Improvement seen ld v. Helmerich

& Payne, Inc. v. Sam Sexton, Jr., ... F.2d ~

No. 81-1080 (10th Cir. 1983) . aoe nape

United States v. Johnson, 268 U. S, 220 (1925) .

West v. American Telephone & or Co.,

311 U.S. 233 (1940) ied RT

West Virginia-Pittsburg Coal Co. v. Strong,

42 S.E.2d 46 (W.Va. 1947) .. pulljsckuaaeoideaniaeees cre

Woods, In re, 143 U.S. 202 (1892) - Ni inciscaibabeadunackatiagatics 8

United States Code

30 U.S.C. §1201(c) .- SRE CE OO ONCE

30 U.S.C. §1201, et seq. . EI OTE TELOOT NLD 3

Oklahoma Statutes

i ER a

I I Oia ETI | cascada ossieanatdeeiohidonsneinamienanctninenionaeitinne. 10

I cas acecsneenietieteiciccntusnetsnibnonicincacendasies 3

I UE Rg PANE TOI - cecccscctrcrntnisisiinerninnimressicnensapesentennines 2

oR 8 A FF

No. 82-1613

In the

Supreme Court of the United States

OctToser TERM, 1982

HELMERICH & PAYNE, INC.

Petitioner

Vv.

ROCK ISLAND IMPROVEMENT COMPANY

Respondent

Vv.

SAM SEXTON, JR.

Third Party Defendant

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF IN OPPOSITION TO PETITION FOR WRIT

OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE TENTH CIRCUIT

PRELIMINARY MATTERS

Respondent does not take issue with the following por-

tions of Petitioner’s Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit: Ques-

tions Presented, Parties to the Proceeding Below, Opinions

Below, Jurisdictional Basis of Petition for Writ of Certio-

rari and Basis of Federal Jurisdiction.

STATUTORY PROVISIONS INVOLVED

The pertinent provision of the 1967 Open Cut Land Rec-

lamation Act, 1967 Okla. Sess. Laws, Chapter 186, is quoted

verbatim in Respondent’s brief at page 2.

The 1971 Oklahoma Mining Land Reclamation Act, 45

O.S.(1971), §721-§738 is set out in Appendix E to Peti-

tioner’s Petition for Writ of Certiorari to the United States

Court of Appeuis for the Tenth Circuit.

Section 1201(c) of the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C.S., §1201(c), is quoted

verbatim in Respondent’s brief at page 3.

The “Coal Reclamation Act of 1979”, 45 O.S. §742.1,

et seq., is set out in Appendix B hereto.

STATEMENT OF FACTS

Prior to 1967, the State of Oklahoma had no stated

policy concerning land reclamation after mining operations.

In 1967 the Oklahoma Legislature enacted the Open Cut

Land Reclamation Act, 1967 Okla. Sess. Laws, Chapter 186.

The policy of the State of Oklahoma was enunciated at

45 O.S.(1967), §702, to be as follows:

It is hereby declared to be the policy of this state to

provide, after mining operations are completed, for

the reclamation and conservation of land subjected to

surface disturbance by open cut mining and thereby

to preserve natural resources, to aid in the protection

of wildlife and aquatic resources, to establish recre-

ational, home and industrial sites, to protect and per-

petuate the taxable value of property, and to protect

and promote the health, safety and general welfare

of the people of this state.

odin

A new and more stringent act was passed in 1971.

Similar to the 1967 Act, 45 O.S.(1971), $722 provided:

It is hereby declared to be the policy of this state to

provide for the reclamation and conservation of land

subject to surface disturbances by mining and thereby

to preserve natural resources, to encourage the pro-

ductive use of such lands after mining, to aid in the

protection of wildlife and aquatic resources, to en-

courage the planting of trees, grasses and other vege-

tation, to establish recreational, home and industrial

sites, to protect and perpetuate the taxable value of

property, to aid in the prevention of erosion, land-

slides, floods and the pollution of waters and air, to

protect the natural beauty and aesthetic values in the

affected areas of this state, and to protect and pro-

mote the health, safety, and general welfare of the

people of this state.

In 1968 hearings on proposed legislation regulating sur-

face coal mining began in the United States Senate. (Sur-

face Mining Reclamation: Hearings before the Senate Com-

mittee on Interior and Insular Affairs, 90th Cong.2d Sess.

(1968).) After six years of thorough legislative consider-

ation including extended hearings about the effect of sur-

face mining on our national’s environment and economy,

Congress passed the Surface Mining Control and Reclama-

tion Act of 1977 (Surface Mining Act or Acts) 91 Stat. 447,

30 U.S.C. §1201, et seq. (1976 Ed. Supp. III) [30 U.S.C.S.

$1201, et seq.]). For a concise report of the legislative

history of the Act, see Hodell v. Virginia Surface Min, and

Recl. Assoc., 452 U.S. 264, 278 n.19 (1981).

The effects of surface coal mining upon this country

and its inhabitants are set out in the Act at 30 U.S.C. $1201

eae ee

ances of surface area that burden and adversely affect

commerce and the public welfare by destroying or

diminishing the utility of land for commercial, in-

dustrial, residential, recreational, agricultural and for-

estry purposes, by causing erosion and landslides, by

contributing to floods, by polluting the water, by de-

stroying fish and wildlife habitat, by impairing nat-

ural beauty, by damaging the property of citizens, by

creating hazards dangerous to life and property by

degrading the quality of life in local communities, and

by counteracting governmental programs in efforts to

conserve soil, water, and other natural resources.

The Oklahoma Legislature continued to pass more strin-

gent laws with respect to the reclamation of lands affected

by surface coal mining operations and passed the “Coal

Reclamation Act of 1979” to bring Oklahoma into compli-

ance with Public Law 95-87, the “Surface Mining Control

and Reclamation Act of 1977,” supra.

From April 8, 1968, through July 31, 1977, Respondent,

Rock Island Improvement Company, leased land in Okla-

homa to Petitioner, Helmerich & Payne, Inc., for the pur-

pose of coal mining. Two of the sites included in the lease

are the subject of this lawsuit. The lease contained a rec-

lamation provision which provided in pertinent part at

paragraph three:

“Upon the abandonment or completion of any mining

operation, or part thereof, including but not limited

to any strip operation, the surface shall be restored

as nearly as possible to its condition prior to said

mining operation ... such... restoration shall be

at the sole expense of the Lessee.”

The lease also provided at paragraph fourteen that:

“As part of the consideration for this lease, Lessee

covenants and agrees to comply with all mining laws

and regulations of the State of Oklahoma and the

United States which regulate or control the mining

of coal from the premises here leased .. .” (Lease,

Appendix A hereto)

Petitioner did not mine the property itself, but in 1974

subleased the property to Sam Sexton, Jr., Third Party

Defendant (R. Vol. III, page 58).

The lease terminated and Sam Sexton, Jr. and Peti-

tioner abandoned the strip pits without reclaiming the land.

Thereafter Respondent requested that Petitioner abide by

its agreement to restore the lane. Petitioner refused, and

this lawsuit ensued (R. Vol. V, page 34).

The diversity jurisdiction of the federal court was in-

voked, and the case was tried in the United States District

Court for the Eastern District of Oklahoma to the Honor-

able Frank H. Seay and to a jury.

The undisputed testimony at the trial was that it would

cost $375,000.00 to restore the land to its condition prior to

the mining operation (R. Vol. VI, page 111).

The Assistant State Mine Inspector testified that this

land would probably never be mined again because of fed-

eral environmental restrictions (R. Vol. VI, pages 94-95).

He also testified that the land should be reclaimed by back-

filling, grading, leveling, redistributing the topsoil, planting

vegetation, and filling the pit (R. Vol. VI, page 30).

—6—

Six different mining applications filed by Petitioner's

Sublessee, Sam Sexton, Jr., indicated that the land was to

be reclaimed. The reclamation included the filling of the

open pit (R. Vol. III, pages 1-30, 58).

Mr. Bruce Clenton, a representative of Respondent,

testified that Respondent wanted to reclaim the land be-

cause of (1) the hazard which the property represents in

the community, (2) the potential liability of Respondent

for accidents which are likely to occur there, (3) the aes-

thetic considerations in not wanting open scars on the land-

scape and a blight in the community, and (4) the pressure

being exerted upon Respondent by state officials, former

governor David Boren, representatives of the community,

civic clubs, and others (R. Vol. V, page 32).

The State Mine Inspector testified to the ultra-hazard-

ous condition of the property exemplified by two open pits

and by sheer dropoffs (R. Vol. VI, page 32).

The jury awarded Respondent $375,000.00, the cost of

reclaiming the land. (Jury Verdict of U.S. District Court

for the Eastern District of Oklahoma, filed November 12,

1980, Appendix C to Petitioner’s Petition for Writ of Cer-

tiorari to the United States Court of Appeals for the Tenth

Circuit. )

After Petitioner’s Motion for Judgment Notwithstand-

ing the Verdict, Motion to Amend Judgment, and Motion

for New Trial were denied, Petitioner appealed to the

United States Court of Appeals for the Tenth Circuit and

the jury verdict of $375,000.00 was affirmed by that court

subject to the modification of $50,000.00 credited to Peti-

tioner as stipulated by the parties. (Rock Island Improve-

rae

ment Company v. Helmerich & Payne, Inc. v. Sam Sexton,

Jr, .... F.2d —.., No. 81-1080 (10th Cir. 1983), Appendix A

to Petitioner’s Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit.)

Petitioner filed a Petition for Rehearing, Suggestion for

Rehearing En Banc, and Motion to Certify Question to the

Oklahoma Supreme Court, which was denied on February

23, 1983 (Appendix B to Petitioner’s Petition for Writ of

Certiorari to the United States Court of Appeals for the

Tenth Circuit).

Petitioner has filed its Petition for Writ of Certiorari

to the United States Court of Appeals for the Tenth Circuit

asking this Court to decide whether Respondent can re-

cover $375,000.00 for reclamation of the land as the District

Court jury and the Tenth Circuit Court of Appeals found

when the total market value of the land is only $76,345.00,

and whether the measure of damages question should be

certified to the Oklahoma Supreme Court (Questions Pre-

sented, p.i, Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit).

alien

REASONS FOR DENYING THE WRIT

THERE ARE NO SPECIAL OR IMPORTANT REASONS

FOR THIS COURT TO EXERCISE ITS DISCRETION TO

GRANT CERTIORARI.

To warrant the exercise of this Court's discretion to

grant certiorari, questions must be of such gravity and im-

portance to the nation as a whole as to require the review

of the conclusions of the Circuit Court of Appeals in ref-

erence to them. In re Woods, 143 U.S. 202 (1892).

In the case of In re Woods, supra, this Court declined

to consider a mere question of state law. There the inquiry

was whether it was settled state law in the State of Minne-

sota that a judgment of dismissal in a former suit was not

a bar to a second suit upon the same cause of action. This

Court declined to grant certiorari on this question. In our

case Petitioner states that “the principal issue in this con-

troversy is the measure of damages suffered by a lessor of

coal deposits upon the failure of the lessee to perform fully

a reclamation provision of the lease subsequent to surface

mining.” This issue is clearly a question of Oklahoma law

turning entirely on the facts of this case.

Petitioner seeks reversal of the Opinion of the Tenth

Circuit Court of Appeals holding that under the contract

between the parties, construed in the light of federal and

state policy and statutes governing reclamation of land

which has been strip mined, the cost of reclamation is a

proper measure of damages under Oklahoma law.

In contending that damages should be limited to dimi-

nution in the value of the land, Petitioner relies upon a

—

case decided by the Oklahoma Supreme Court in 1963 be-

fore the state and federal legislation with respect to surface

mining control and surface reclamation was passed, Peevy-

house v. Garland Coal and Mining Co., 382 P.2d 109 (Okla.),

cert. den., 375 U.S. 906 (1963). In Peevyhouse the Okla-

homa Supreme Court examined a coal mining lease requir-

ing the lessee to reclaim any land it strip mined. At issue

was whether the proper damages for the lessee’s failure to

reclaim was the cost of performance or the diminution of

fair market value of the land. The court held that the

proper measure of damages was the reasonable cost of rec-

lamation, unless the reclamation requirement was incidental

to the lease’s main purpose and the cost of reclamation

would be grossly disproportionate to the diminution in the

land’s fair market value. In that case, the lessor’s damages

were limited to the diminution in value. Id. at 114.

Relying upon Petitioner’s contention that Peevyhouse

is still the law in Oklahoma despite the passage of the

state and federal statutes, the trial court in this case sub-

mitted the issue of the reclamation clause’s importance to

the jury. The jury found in favor of Respondent and Peti-

tioner appealed on the ground that the trial court should

have held that the lease unambiguously focused upon coal

mining as its main purpose and that reclamation was merely

an incidental purpose. Petitioner further contended that the

court should have held that the cost of reclamation was dis-

proportionate to the diminution in land value. The Tenth

Circuit Court of Appeals was convinced that the Oklahoma

Supreme Court would no longer apply the rule that it estab-

lished in Peevyhouse in 1963 if it had the facts of this case

before it. The court held that where there is a statutory

—10—

duty to reclaim land which has been strip mined and where

the parties to the contract expressly include a reclamation

clause which requires the lessee to bear the cost of recia-

mation, the cost of performance of the reclamation is the

proper measure of damages for breach of the reclamation

provision of a coal mining lease in Oklahoma. The Tenth

Circuit upheld the jury’s verdict of $375,000.00 subject to

the modification of $50,000.00 credited to Petitioner as stip-

ulated by the parties.

The question of the proper measure of demages in this

case under Oklahoma law not only lacks overall national

importance, but the question is not likely to be repeated

due to the passage of more comprehensive state and federal

legislation regulating the reclamation of land subjected to

surface mining. The present law provides that if reclama-

tion is not feasible, surface mining operations should not be

conducted. 45 O.S.(1981), §742.1 states in pertinent part

as follows:

It is the purpose of this act to protect the rights of

surface owners and the environment, and to require

reclamation of lands affected by surface and under-

ground coal mining in a manner compatible with the

social, environmental and aesthetic needs of this state.

If reclamation is not feasible, surface mining opera-

tions should not be conducted . .. (Emphasis added)

Under this law no one could claim that reclamation

was “incidental to the main purpose of the contract” or that

“the cost of reclamation was disproportionate to the dimi-

nution in land value.” Either the land would be reclaimed,

or the mining operations would not be conducted. For this

reason, the factual situation present under this contract will

nities

not recur and the decision appealed from is without impact

outside the limits of this case.

Petitioner asks this Court to certify a question of law

to the Oklahoma Supreme Court pursuant to the Uniform

Certification of Questions of Law Act, 20 O.S.(1981), $1602.

Petitioner did not ask the t1/\1 court to certify the question

and Petitioner did not ask the Tenth Circuit Court of Ap-

peals to certify the question until after its decision was

rendered,

This is not a case where the Appellate Court felt that

Oklahoma law was unclear. This is a case where the Ap-

pellate court was convinced that the law had changed. The

court stated, “We are convinced that the Oklahoma Su-

preme Court would no longer apply the rule it established

in Peevyhouse in 1963 if it had the instant dispute before

it” (Appendix to Petition for Certiorari to the United States

Court of Appeals for the Tenth Circuit, page 6(a)). The

decision of the Tenth Circuit Court of Appeals to deny

Petitioner’s belated Motion to Certify on February 23, 1983,

was correct. This Court should decline to grant certiorari

to certify a question to the Oklahoma Supreme Court where

the issue of Certification was not timely raised in the courts

below and where the question lacks national significance.

onlin

FACTUAL QUESTIONS HAVE BEEN RESOLVED TWICE

IN FAVOR OF RESPONDENT AND THE SUPREME

COURT DOES NOT GRANT CERTIORARI TO REVIEW

EVIDENCE AND DISCUSS SPECIFIC FACTS.

In this case the jury has made a factual determination

that the reclamation clause was not incidental to the main

purpose of the contract and/or the cost of reclamation was

not disproportionate to the diminution in land value. The

Tenth Circuit Court of Appeals determined from the record

that the reclamation clause was expressly bargained for and

was intended by the parties to insure proper reclamation

of the land. Petitioner asks this Court to review the facts

and do what it has been unable to pursuade two previous

courts to do — relieve it of its obligation to restore the land

to its original condition. This Court has wisely ruled that,

“We do not grant a certiorari to review evidence and dis-

cuss specific facts.” United States v. Johnson, 268 U.S. 220,

227 (1925).

The Supreme Court is a court of law rather than a

court for correction of errors and fact finding, and cannot

undertake to review concurrent findings of fact by two

courts below, in absence of a very obvious and exceptional

showing of error, Grover Tank & Mfg. Co. v. Linde Air

Products Co., 336 U.S. 271, adhered to in part and reversed

in part 339 U.S. 605, motion denied 70 S.Ct. 1017, 94 L.Ed.

1392.

No such showing is made here. Petitioners are not

entitled to a third bite of the same apple, and resolution

by the Supreme Court of the question presented is un-

necessary.

THIS CASE DOES NOT IN ANY SENSE BROADLY CON.

CERN THE RELATIONSHIP BETWEEN THE FEDERAL

COURT SITTING IN DIVERSITY AND THE STATE

COURTS.

Petitioner contends that the trial court correctly in-

structed the jury that Peevyhouse, supra, accurately stated

the law of Oklahoma (Page 8 of Petitioner’s Petition for

Certiorari). The jury was instructed under Petitioner’s

view of Oklahoma law.

The Tenth Circuit Court of Appeals held that although

the trial court should not have submitted the issue of the

reclamation clause’s importance to the jury, to do so was

harmless error since the cost of performance is the proper

measure of damages under current Oklahoma law and the

jury used this measure in calculating damages. This Court

must necessarily depend on District Courts and Courts of

Appeal for initial determinations of questions of state law

and its practice of deference to such determinations should

generally render unnecessary review in such respect. Court

v. Ash, 422 U.S. 66 (1975).

The opinion of the Court of Appeals does not cast aside

all authority in determining, for the State of Oklahoma,

what its law with respect to damages shall be, and the

Court of Appeals has not usurped the right and duty of

the Oklahoma courts by rejecting Peevyhouse, supra, as

Petitioner contends. Instead, the Honorable James K. Logan

correctly recognizes that although he and his fellow judges,

the Honorable Monroe G. McKay and the Honorable James

E. Barrett, are bound by decisions of the State Supreme

Court in diversity cases, they need not adhere to a decision

ve "

if they think it no longer would be followed (Opinion of

the United States Court of Appeals Tenth Circuit, Appen-

dix to Petitioner’s Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit, page

6(a)).

This Court has recognized an exception to slavish ad-

herence to state court decisions where it can be said with

some assurance that the state supreme court will not follow

the decision in the future and where the federal court is

convinced by other persuasive data that the highest court

of the state would decide otherwise. West v. American

Telephone & Telegraph Co., 311 U.S. 233 (1940); Meredith

v. Winterhaven, 320 U.S. 228 (1943).

Some of the indicia recognized by this Court as af-

fecting judicial rule are: confusion in state court decisions,

a developing line of authorities that cast a shadow over

the established ones, dicta, doubt or ambiguities in the

opinion of state judges on the question and “. . . Legis-

lative development that promises to undermine the judicial

rule.” Bernhart v. Polygraphic Co. of America, 350 U.S.

198, 205 (1955).

This Court has always affirmed the principle that a

court is to apply the law in effect at the time it renders

its decision, unless doing so would result in manifest in-

justice or there is statutory direction or legislative history

to the contrary. Bradley v. Richmond School Board, 416

U.S. 696, 711 (1974).

In this case the Tenth Circuit Court of Appeals has

considered legislation passed after the Peevyhouse decision

which expresses a statutory duty to reclaim strip-mined

land and which makes no exception for cases in which the

expenditures for reclamation are disproportionate to the

resulting increase in the value of the land. By recogniz-

ing that the public policy of this State has changed as ex-

pressed in its statutes, the Appellate Court exercised its

duty to ascertain from all the available data what the cur-

rent state law is and to construe the contract between

Petitioner and Respondent in the light of that legislation.

The holding of the Tenth Circuit Court of Appeals is

in accord with other cases which have held that in light of

the legislature’s declaration that strip mining is generally

hazardous to the public welfare and that it is unlawful to

strip mine without a state permit, any contract or covenant

pertaining to the performance of strip mining must be

strictly construed.

Reed v. Junutolo, 42 S.E.2d 16 (W.Va. 1946), was a

wrongful death action where the court found that the

strip mining statute merited consideration in determining

whether the excavation involved was a dangerous instru-

mentality. West Virginia-Pittsburg Coal Co. v. Strong, 42

S.E.2d 46 (W.Va. 1947), was a suit for declaratory judg-

ment by the owner of mineral and coal rights in a certain

parcel of land against the owners of the remaining free-

hold; they sought a declaration that their mineral rights

included the right to strip mine. The court held that in the

light of the legislature’s declaration that strip mining is

generally hazardous to the public welfare and that it is

unlawful to strip mine without a state permit, any con-

tract or covenant pertaining to performance of strip min-

ing must be strictly construed.

The Tenth Circuit Court of Appeals did not abandon

the elementary principles of damages as Petitioner con-

tends. With respect to Title 23, Okla. Stat. Ann., §96, $97,

which Petitioner contends limit the amount of its damages,

the Tenth Circuit Court of Appeals found that because the

anticipated cost of reclamation may have affected the con-

tract price, these statutes do not preclude the cost of per-

formance as the measure of damages (Opinion, United

States Court of Appeals, Tenth Circuit, Appendix A to

Petitioner’s Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit, page 7(a) ).

CONCLUSION

The decision in this case is fully in accord with other

cases. The result is fair. The Petitioner promised to re-

store the surface as nearly as possible to the condition it

was in prior to the mining operation, but failed to do so.

The property now represents a hazard and an eyesore to

the community, and Respondent is potentially liable for

the ultra-hazardous condition which now exists as a re-

sult of the operation of Petitioner’s agent. It is fair and

just that the party who contracted to bear the cost of res-

toration be required to pay the reclamation costs. The

award of the cost of reclamation is not a windfall recovery

because it is essential that the land be restored to ¢ safe

condition. The Tenth Circuit Court of Appeals, in affirming

the jury’s award of $375,000.00 (subject to the $50,000.00

credit), did not so far depart from the accepted and usual

course of judicial proceedings as to call for an exercise of

the Court’s power of supervision. Respondent respectfully

x, =e

requests that Petitioner’s Petition for Writ of Certiorari to

the United States Court of Appeals for the Tenth Circuit

be denied.

Respectfully submitted,

JOHN R. CAIN

RYAN, CAIN anp HILL

880 City National Bank Tower

Oklahoma City, Oklahoma 73102

(405) 236-1626

DOROTHY J. AMIS

AMIS & AMIS

608 First Continental Bank Tower

P.O. Box 15038

Del City, Oklahoma 73115

(405) 677-4119

Attorneys for Respondent,

Rock Island Improvement Company

CERTIFICATE OF SERVICE

I, JOHN R. CAIN, have made application for admis-

sion to practice as a member of the Bar of the Supreme

Court of the United States. I am Counsel of Record for

Rock Island Improvement Company, Respondent herein,

and I hereby certify that on the I OE eects ;

1983, pursuant to Rule 28 of the Rules of the Supreme

Court, I served three (3) copies of the foregoing Brief in

Opposition to Petition for Writ of Certiorari to the United

States Court of Appeals for the Tenth Circuit on each of

the parties required to be served herein as follows: On

Helmerich & Payne, Inc., the Petitioner, by mailing the

copies in a duly addressed envelope with first-class postage

prepaid, to JAMES R. EAGLETON, Counsel of Record for

Helmerich & Payne, Inc., at his office at 3200 University

Tower, 1722 South Carson, P.O. Box 2967, Tulsa, Oklahoma

74101; and, on SAM SEXTON, JR., Third Party Defendant

herein, by mailing the copies in a duly addressed envelope,

with first-class postage prepaid to Sam Sexton, Jr., appear-

ing pro se at his office at P.O. Box 1526, Fort Smith, Ar-

kansas 72902.

All parties required to be served have been served.

JOHN R. CAIN

Counsel for Respondent

APPENDIX A

[Lease Between Respondent, Rock Island Improvement

Company and Petitioner, Helmerich & Payne, Inc. ]

LEASE OF COAL DEPOSITS

THIS AGREEMENT, made and entered into this 8th

day of April, 1968, by and between the ROCK ISLAND

IMPROVEMENT COMPANY, a New Jersey corporation,

hereinafter designated as “Lessor”, and HELMERICH &

PAYNE, INC., a Delaware corporation, hereinafter desig-

nated as “Lessee ’.

WITNESSETH

That for and in consideration of Five Thousand Two

Hundred Four Dollars and ninety-three cents ($5,204.93)

paid to Lessor by Lessee, the receipt of which is hereby

acknowledged, and in consideration of the covenants and

agreements herein set out to be kept and performed by both

of the parties, the parties hereto have agreed, and do hereby

covenant each with the other as follows, to-wit:

(1) Lessor does hereby grant, demise, lease and let

unto Lessee all coal and coal deposits lying in and under

the lands described in Schedule “A” attached hereto and

made a part of this lease, and located in the respective

counties therein set out, within the State of Oklahoma.

(2) Said premises are hereby leased, let and demised

unto Lessee for the purpose of removing, extracting, min-

ing and recovering coal and coal deposits in, upon, or under-

lying the lands described in Schedule “A”. That said min-

ing for coal may be by standard methods commonly known

as strip and/or surface mining, and by slope and shaft,

known as subterranean and/or underground operations.

(3) Lessor hereby conveys to Lessee only the right to

use any of the surface overlying said leased coal and coal

deposits owned by it, and such right shall be subject to any

present outstanding surface lease. Any use of the surface

{APPENDIX)

by the Lessee for said mining operation must be reasonable

for that purpose, and may include the erecting of works,

buildings, plants, structures and appliances necessary and

reasonable for said mining purposes. Upon the abandon-

ment or completion of any mining operation, or part thereof,

including but not limited to any strip operation, the surface

shall be restored as nearly as possible to its condition prior

to said mining operation, including the removal of any and

all such works, building, plants, structures and appliances

placed thereon for said mining operation. Such removal and

restoration shall be at the sole expense of the Lessee. Les-

see, in addition thereto, shall pay any and all damages to

any and all surface interests, whether leasehold owners or

surface owners, resulting in the loss and damage to any and

all property, including but not limited to growing crops and

livestock of the surface owner or lessee.

(4) Lessor reserves the right to dispose of any or all

of the surface of the leased lands of Schedule “A” provided,

however, that the sale of the surface does not interfere with

the reasonable use of the surface by the Lessee for said

mining operation.

(5) In all strip mining operations on said leased lands

Lessee shall maintain gaps or plugs, as they are commonly

called, of 600 feet where it would be desirable to, in the

future, sink a shaft in order to reach or recover the deep

coal that cannot be mined by the strip mining methods.

(6) This lease agreement is subject to all flowage ease-

ments and subordination agreements granted to the United

States of America in connection with the operation and

maintenance of the Eufaula Reservoir of the Canadian River

and is further subject to all zoning ordinances and restric-

tions, existing easements for public roads, streets, highways,

public utilities, railroads and pipelines, whether appearing

of record or not, but which, in fact, now exist on, over,

under or across said land.

(APPENDIX)

(7) Lessee takes this lease and any rights thereunder

subject to any oil and gas leasehold estates heretofore

granted by this Lessor, and agrees, at Lessee’s sole cost

and expense, to assume any and all liability for damage

to said oil and gas leasehold estate, and for the loss and

damage to any and all property, or to the rights of any

owner of the oil and gas leasehold estate which might have

heretofore been granted by this Lessor.

(8) This lease shall become effective upon its execu-

tion and delivery by Lessor, and continue in effect for a

term of nine (9) years, provided the annual minimum ad-

vance payments hereinafter specified are paid by the Lessee.

(9) Lessee shall pay to Lessor as royalty (hereinafter

called tonnage royalty) on each net ton of 2,000 pounds of

coal mined and taken from the demised deposit the sum of

25¢ if removed by strip mining operation, and 15¢ if re-

moved by an operation other than strip mining. Said ton-

nage to be determined by scale weights, with the scale so

used to be approved by the Lessor. Lessee to furnish Les-

sor a sworn report each month showing the true number

of tons of coal so mined from the leased property and the

method used. The Lessee shall keep true and correct rec-

ords pertaining to all coal removed from the demised de-

posit, and the Lessor shall have the right at all reasonable

times to inspect said records, including the scale weights.

Tonnage royalty on coal mined, removed and sold during

any calendar month shall be paid to Lessor on or before

the last day of the next succeeding calendar month.

(10) The sum of money first set out as consideration

for this lease shall be considered as a minimum advance

payment of royalty for the first year this lease is in effect,

and Lessee shall have the right to credit and apply the

amount so paid against royalties payable for coal mined

during the first year of the term of this lease.

(11) Lessee shall pay to the Lessor as a minimum an-

nual advance payment of royalty the sum of $1.00 per acre

[APPENDIX]

of real property covered by said coal lease, in advance, be-

ginning on the next anniversary date of this lease, and pay-

able on each anniversary date thereafter during the term of

this lease. Said minimum annual payment shall be credited

and treated as minimum advance royalty, and Lessee shall

have the right to credit or apply amounts so paid against

royalties payable for coal mined during the ensuing year,

for which the minimum annual advance payment of ton-

nage royalty has been paid.

(12) Lessor shall pay and discharge before delinquency,

all property taxes, special assessments and levies of what-

ever nature or kind which may be taxed, charged or as-

sesed against the said land and subsequent to payment of

said taxes, special assessment and levies, Lessee shall re-

imburse the Lessor upon receiving a bill therefor. Lessee

shall pay before delinquency all taxes, assessments, license

fees or other charges that may be levied or assessed upon

ail buildings, machinery, structures, fixtures and other im-

provements placed on the leased premises by Lessce.

(13) Lessee shall have the right to surrender this lease

as to the lands described in Schedule “A”, or any part

thereof, without the payment of any additional considera-

tion for such privilege, by giving notice in writing to the

Lessor of such surrender 30 days prior to the effective date,

and after the effective date of the notice of surrender Les-

see shall thereupon be released from any future advance

payment of royalty as to the acreage, or that part of said

land so surrendered and released, as herein provided. After

the effective date of the surrender, Lessee shall have no

right to remove or mine any additional coal from the re-

leased lands or acreage, and shall not be entitled to receive

back any part of any advance royalty paid for the acreage

so released prior to the effective date of surrender.

(14) As a part of the consideration for this lease, Les-

see covenants and agrees to comply with all mining laws

and regulations of the State of Oklahoma and the United

[APPENDIX})

States which regulate or control the mining of coal from

the premises here leased, and Lessee further agrees to com-

ply with the provisions of the Workmen’s Compensation

Act of the State of Oklahoma, and hereby agrees to pro-

tect, save harmless and indemnify Lessor from any claim

for damages, personal injury or death which may occur to

any person, or persons, in conjunction with, or connected

to, the operation of any mine of any kind opened or oper-

ated upon the premises here involved under this lease.

(15) Lessee agrees, as a part of the consideration to the

Lessor for entering into this agreement, to make, execute

and deliver to Lessor a bond in the penal sum of $25,000.00

to bind the Lessee for full and faithful performance of each

and all of Lessee’s undertakings in this agreement contained

and for the indemnity of the Lessor for all loss and damage

as herein specified, and for its indemnity against the failure

of Lessee to comply with any statute, ordinance, or other

governmental regulation applicable to the operation covered

by this lease, whether with respect to the accrual of liens

thereon or compliance with the Employer’s Liability or

Workmen's Compensation Act, or relating to mining opera-

tions, Miners’ Payroll Lien Law, or with respect to any

other matter affecting said operations, and said bond shall

continue in force and effect, until the statutory limitation

shall have run against every cause of action or liability

which the Lessee has in this agreement assumed.

(16) In the event Lessor, at any time, considers that

Lessee is in default or has failed to make any money pay-

ment due hereunder, Lessor shall give to the Lessee written

notice of such alleged failure or default, and in the event

Lessee shall not, within 30 days thereafter, make payments

of any amount due, or shall not have entered upon the cor-

rection of any other default, Lessor may, at its option, term-

inate the unexpired portion of this agreement by notifying

Lessee of such election in writing.

[APPENDIX]

(17) Upon the termination of this lease, whether by

lapse of time or by forfeiture or surrender, Lessee shall

have a reasonable time thereafter, and not more than 60

days, within which to remove through, from and under said

leased premises, all machinery, equipment and personal

property heretofore installed by it on the leased premises,

and to make the removals and restorations heretofore pro-

vided for in this lease.

(18) This lease may not be assigned in whole or in

part by the Lessee without the written permission of the

Lessor.

IN WITNESS WHEREOF, the parties hereto have exe-

cuted this agreement as of the day and year first above

written,

Rock IsLAND IMPROVEMENT COMPANY

By (s) T. E. Desch

Vice President

LESSOR

ATTEST:

(s) P. A. Kasiurak

Assistant Secretary

HELMERICH & PAYNE, INC.

By (s) W. A. Black

Vice-President

LESSEE

ATTEST:

(s) [signature illigible]

Assistant Secretary

[Notary Certification and Schedule “A” omitted]

APPENDIX B

45 O.S.(1981) §742.1, et seq.

THE COAL RECLAMATION ACT OF 1979

§ 742.1 Short title — Intent of Legislature — Application of

Act — Public policy — Purpose of act

This act shail be known and may be cited as the “Coal

Reclamation Act of 1979”.

It is the intent of the Oklahoma Legislature that the

Coal Reclamation Act of 1978, Sections 742 et seq. of Title

45 of the Oklahoma Statutes, and this Coal Reclamation Act

of 1979, be read together as the law regulating the reclama-

tion of lands affected by surface coal mining operations and

the surface effects of underground coal mining, to bring Ok-

lahoma into compliance with Public Law 95-87, the “Sur-

face Mining Control and Reclamation Act of 1977”.!

The provisions of the Mining Lands Reclamation Act,

Sections 721 through 728 of Title 45 of the Oklahoma Stat-

utes, shall not apply to surface coal mining operations or

the surface effects of underground coal mining operations.

The Oklahoma Legislature finds and declares that coal

mining operations presently contribute significantly to the

nation’s energy requirements, that Oklahoma’s coal produc-

tion is part of those energy requirements, and that the co-

operative effort established by this act is necessary to pre-

vent or mitigate adverse environmental effects of all surface

mining operations,

It is the purpose of this act to protect the rights of sur-

face owners and the environment, and to require reclama-

tion of lands affected by surface and underground coal min-

ing in a manner compatible with the social, environmental

and aesthetic needs of this state. If reclamation is not feasi-

ble, surface mining operations should not be conducted. It

is the intent of the Legislature to insure the existence of an

expanding and economically healthy coal mining industry

and that there be public participation in the development

of rules and regulations appropriate to the State of Okla-

{APPENDIX}

homa and that the Department of Mines exercise the full

reach of its powers to insure the protection of the public

interest through the effective control of surface mining op-

erations.

$742.2 Definitions

As used in this act:

1, “Acid drainage” means water with a pH of less than

6.0 Standard Units and in which total acidity exceeds total

alkalinity, discharged from active, inactive, or abandoned

mines and from areas affected by surface coal mining and

reclamation operations.

2. “Acid-forming materials” means earth materials that

contain sulfide minerals or other materials which, if ex-

posed to air, water, or weathering processes, will result in

the formation of acids that may create acid drainage.

3. “Adjacent area” means land located outside the af-

fected area, permit area, or mine plan area, depending on

the context in which “‘adjacent area” is used, where air,

surface or ground water, fish, wildlife, vegetation or other

resources protected by this act may be adversely impacted

by surface coal mining and reclamation operations.

4. “Affected area” means, with respect to surface min-

ing activities, any land or water upon or in which those ac-

tivities are conducted or located. With respect to under-

ground mining activities, “affected area” means any water

or surface land upon or in which those activities are con-

ducted or located, and land or water which is located above

underground mine workings.

5. “Approximate original contour” means that surface

configuration achieved by backfilling and grading of the

mined areas so that the reclaimed area, including any ter-

racing or access roads, closely resembles the general surface

configuration of the land prior to mining and blends into

and complements the drainage pattern of the surrounding

terrain, with all highwalls, spoil piles and coal refuse piles

eliminated. Water impoundments may be permitted where

[APPENDIX]

the regulatory authority determines that they are in com-

pliance with Section 21 of this act! and applicable rules and

regulations.

6. “Aquifer” means a zone, stratum, or group of strata

confined or unconfined, including perched conditions, that

can store and transmit water in sufficient quantities for a

specific use.

7. “Auger mining” means a method of mining coal at

a cliff or highwall by drilling holes laterally into an exposed

coal seam from the highwall and transporting the coal along

an auger bit to the surface.

8. “Box cut” means the first open cut in strip mining

which results in the placing of overburden on unmined land

adjacent to the initial pit and outside the area to be mined.

9. “Coal exploration” means the gathering of surface

or subsurface geologic, physical, or chemical data by map-

ping, trenching, drilling, geophysical or other techniques

necessary to determine the quality and quantity of over-

burden and coal of an area and the gathering of environ-

mental data to establish the conditions of the area begin-

ning before surface coal mining and reclamation operations.

10. “Coal processing plant” means a collection of facil-

ities where run-of-the-mine coal is prepared for market by

chemical or physical processing, and separated from its im-

purities. The processing plant may consist of, but not be

limited to, the following support facilities: loading facili-

ties; storage and stockpile facilities; shed, shops and other

buildings; water treatment and water storage facilities; set-

tling basins and impoundments; coal processing and other

waste disposal areas; roads, railroads and other transport

facilities; and utilities.

11. “Consolidated material” means material of suffi-

cient hardness or ability to resist weathering and to inhibit

erosion or sloughing.

12. “Department” means the office of the Chief Mine

Inspector, including all employees, agents, deputies, and

representatives of the Department, herein called the De-

(APPENDIX)

partment of Mines and Mining, or such department, bureau

or commission as may lawfully succeed to the powers and

duties of such department, having primary responsibility

for administering all titles of the Surface Mining Law.

13. “Director” means the Chief Mine Inspector of the

State of Oklahoma or such officer, bureau or commission

as may lawfully succeed to the powers and duties of such

Chief Mine Inspector or such employee agent, deputy or

representative of the Chief Mine Inspector as shall be desig-

nated by the Chief Mine Inspector to perform any actions

required by this act.

14. “Disturbed area” means an area where vegetation,

topsoil, or overburden is removed by surface coal mining

operations or upon which topsoil, spoil, coal processing

waste or noncoal waste is placed. Those areas are “dis-

turbed” until reclamation of those areas is complete and

the bond or other assurance of performance is released.

15. “Diversion” means a channel, embankment, or

other manmade structure constructed for the purpose of

diverting the flow of water from one area to another:

a. Permanent diversion means a diversion remain-

ing after surface coal mining and reclamation are

completed and which has been approved for re-

tention by the Department and other appropriate

state and federal agencies.

b. Temporary diversion means a diversion which is

used during coal exploration or surface coal min-

ing and reclamation operations, and not approved

by the Department to remain after reclamation

as part of the approved postmining land use.

16. “Ephemeral stream” means a stream which flows

only in direct response to precipitation in the immediate

watershed or in response to the melting of snow and ice,

and which has a channel bottom that is always above the

local water table.

17. “Ground water” means subsurface water that fills

available openings in rock or soil materials such that they

may be considered water-saturated.

[APPENDIX)

18. “Head-of-hollow fill” means a fill structure con-

sisting of any material, other than coal processing waste

and organic material, placed in the uppermost reaches of a

hollow where side slopes of the existing hollow measured

at the steepest point are greater than twenty degrees (20°)

or the average slope of the profile of the hollow from the

toe of the fill to the top of the fill is greater than ten de-

grees (10°). In fills with less than two hundred fifty thous-

and (250,000) cubic yards of material, associated with con-

tour mining, the top surface of the fill will be at the eleva-

tion of the coal seam. In all other head-of-hollow fills, the

top surface of the fill, when completed, is at approximately

the same elevation as the adjacent ridge line, and no sig-

nificant area of natural drainage occurs above the fill drain-

ing into the fill area.

19. “Highwall” means the face of exposed overburden

and coal in an open cut of a surface or for entry to an un-

derground coal mine.

20. “Hydrologic balance” means the relationship be-

tween the quality and quantity of inflow to, outflow from

and storage in a hydrologic unit such as a drainage basin,

aquifer, soil zone, lake, or reservoir. It encompasses the

quantity and quality relationships between precipitation,

runoff, evaporation, and the change in ground and surface

water storage.

21. “Hydrologic regime” means the entire state of

water movement in a given area. It is a function of the

climate, and includes the phenomena by which water first

occurs as atmospheric water vapor, passes into a liquid or

solid form and falls as precipitation, moves along or into

the ground surface, and returns to the atmosphere as vapor

by means of evaporation and transpiration.

22. “Imminent danger to the health and safety of the

public” means the existence of any condition or practice, or

any violation of a permit or other requirements of this act

in a surface coal mining and reclamation operation, which

condition, practice, or violation could reasonably be ex-

pected to cause substantial physical harm to persons out-

[APPENDIX)

side the permit area before such condition, practice, or

violation can be abated. A reasonable expectation of death

or serious injury before abatement exists if a rational per-

son, subjected to the same condition or practice giving rise

to the peril, would not expose oneself to the danger during

the time necessary for abatement.

23. “Impoundment” means a closed basin, naturally

formed or artificially built, which is dammed or excavated

for the retention of water, sediment, or waste.

24. “In situ processes” means activities conducted on

the surface or underground in connection with in-place dis-

tillation, retorting, leaching, or other chemical or physical

processing of coal, to include, but not be limited to, in situ

gasification, in situ leaching, slurry mining, solution mining,

bore hole mining and fluid recovery mining.

25. “Intermittent stream” means a stream or reach of

a stream that drains a watershed of at least one (1) square

mile, or a stream or reach of a stream that is below the local

water table for at least some part of the year, and obtains its

flow from both surface runoff and ground water discharge.

26. “Operator” means any person, partnership, firm or

corporation engaged in coal mining who removes or intends

to remove more than two hundred fifty (250) tons from the

earth within twelve (12) consecutive months in any one

location.

27. “Other minerals” means clay, stone, sand, gravel,

metalliferous and nonmetalliferous ores, and any other solid

material or substances of commercial value excavated in

solid form from natural deposits on or in the earth, ex-

clusive of coal and those minerals which occur naturally in

liquid or gaseous form.

28. “Overburden” means all of the earth and other

minerals, excluding topsoil, which lie above naturai deposits

of coal and other minerals, and also means such earth and

other materials disturbed from their natural state in the

process of surface mining.

29. “Peak” means an upward projecting point of over-

burden created in the surface mining process.

[APPENDIX)

30. “Perennial stream” means a stream or part of a

stream that flows continuously during all of the calendar

year as a result of groundwater discharge or surface runoff.

31. “Performance bond” means the indemnity instru-

ment in a sum certain, supported by a surety’s guarantee,

pledge of collateral or other acceptable contractual guaran-

tee, by which the permit applicant assures faithful perform-

ance of all the applicable permit requirements of this act

and the rules and regulations promulgated thereunder.

32. “Permit” means a permit to conduct surface coal

mining and reclamation operations issued by the Depart-

ment pursuant to state law.

33. “Permit area” means the area, including all natural

and human resources, included within the boundaries speci-

fied in a permit, whether or not the areas will be impacted

by surface coal mining and reclamation operations, which

are designated on the approved maps submitted by the ap-

plicant with his permit application and covered by the per-

formance and reclamation bonds as required.

34. “Permittees’” means a person holding a “permit”

to conduct surface coal mining and reclamation operations

issued by the Department pursuant to state law.

35. “Pit” means a tract of land from which overburden

or minerals have been or are being removed in the process

of surface mining.

36. “Prime farmland” means lands which meet the cri-

teria of the Department, which shall prescribe criteria at

least as stringent as criteria prescribed by the United States

Secretary of Agriculture on the basis of such factors as

moisture availability, temperature regime, chemical bal-

ance, permeability, surface layer composition, susceptibility

to flooding, and erosion characteristics, and which histori-

cally have been used for intensive agricultural purposes.

37. “Reclamation” means, through the process of back-

filling, regrading, topsoil replacement, reutilization, and re-

vegetation activities, the bringing back of land to its ap-

proximate original contours and configuration and resulting

{APPENDIX}

in an equal or better land use category, and shall be con-

sistent with the existing surrounding environment.

38. “Reference areas” means land units of varying

size and shape identified and maintained under appropriate

management for the purpose of measuring ground cover,

productivity and species diversity that are produced na-

turally or by crop production methods approved by the De-

partment. Reference areas must be representative of geol-

ogy, soils, slope, aspect and vegetation in the permit area.

39. “Refuse” means all waste material directly con-

nected with the production, cleaning or preparation of coal

or other minerals which have been mined by either under-

ground or surface mining method.

40. “Regulatory authority” means the Department of

Mines and Mining.

41. “Ridge” means a lengthened elevation of over-

burden created in the surface mining process.

42. “Significant, imminent environmental harm to land,

air or water resources” is determined as follows:

a. An environmental harm is any adverse impact on

land, air, or water resources, including, but not

limited to, plant and animal life,

b. An environmental harm is imminent if a condi-

tion, practice or violation exists which:

(1) is causing such harm or,

(2) may reasonably be expected to cause such

harm at any time before the end of the rea-

sonable abatement time that would be set

under Section 42 of this act.”

c. An environmental harm is significant if that harm

is appreciable and not immediately reparable.

43. “Slope” means average inclination of a surface,

measured from the horizontal; normally expressed as a unit

of vertical distance to a given number of units of horizontal

distance (e. g., one unit vertical (1v) to five units horizontal

(5h) = 11.3 degrees).

44. “Soil horizons” means contrasting layers of soil

lying one below the other, parallel or near parallel to the

[APPENDIX]

land surface. Soil horizons are differentiated on the basis

of field characteristics and laboratory data. The three (3)

major soil horizons are:

a. “A horizon”. The uppermost layer in the soil pro-

file often called the surface soil. It is the part of

the soil in which organic matter is most abundant

and where leaching of soluble or suspended par-

ticles is the greatest.

b. “B horizon”. The layer immediately beneath the

A horizon and often called the subsoil. This mid-

dle layer commonly contains more clay, iron or

aluminum than the A or C horizons, and

c. “C horizon”. The deepest layer of the soil profile.

It consists of loose material or weathered rock

that is relatively unaffected by biologic activity.

45. “Spoil” means displaced overburden.

46. “Strip mining” means those mining operations car-

ried out by removing the overburden lying above natural

deposits of coal and other minerals, and mining directly

from such natural deposits thereby exposed, but excludes

auger mining, quarrying, dredging, pumping or the use of

hydraulic methods.

47. “Substantially disturb” means, for purposes of coal

exploration, to significantly impact upon land, air or water

resources by such activities as blasting, mechanical excava-

tion of land, drilling or altering coal or water exploratory

holes or wells, construction or creation of roads and other

access routes, and the placement of structures, excavated

earth or other debris upon the surface of land.

48. “Surface coal mining and reclamation operations”

means surface mining operations and all activities neces-

sary and incident to the reclamation of such operations.

49. “Surface coal mining operations” means:

a. Activities conducted on the surface of lands in

connection with a surface coal mine or surface

operations and surface impacts incident to an un-

derground coal mine. Such activities include ex-

cavation for the purpose of obtaining coal, includ-

10b

[APPENDIX)

ing 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 or retorting, leaching or other chem-

ical or physical processing, and the cleaning, con-

centrating, or other processing or preparation,

loading of coal at or near the mine site. Such

activities do not include the extraction of other

minerals where coal does not exceed sixteen and

two-thirds percent (16543%) of the tonnage of

materials removed for the purposes of commercial

use or sale or coal exploration, subject to Section

14 of this act,*? and

b. The areas upon which such activities occur or

where such activities disturb the natural land sur-

face. 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 improvement or use of existing

roads to gain access to the site of such activities

and for haulage and excavations, workings, im-

poundments, dams, ventilation shafts, entryways,

refuse banks, dumps, stockpiles, overburden piles,

spoil banks, culm banks, tailings, holes or depres-

sions, 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 inci-

dent to such activities.

50. “Surface water” means water, either flowing or

standing, on the surface of the earth.

51. “Topsoil” means the “A” soil horizon, which is the

uppermost layer of the three (3) major soil horizons.

52. “Underground mining activities” means a combi-

nation of:

a. Surface operations incident to underground ex-

traction of coal or in situ processing, such as con-

struction, use, maintenance, and reclamation of

11b

[APPENDIX]

roads, above-ground repair areas, storage areas,

processing areas, shipping areas, areas upon which

are sited support facilities including hoist and

ventilating ducts, areas utilized for the disposal

and storage of waste, and areas on which ma-

terials incident to underground mining operations

are placed, and

b. Underground operations such as underground

construction, operation, and reclamation of shafts,

adits, underground support facilities, in situ proc-

essing, and underground mining, hauling, storage,

and blasting, and

c. The areas in which activities enumerated above

occur or where such activities disturb the natural

land surface.

53. “Unwarranted failure to comply” means the fail-

ure of a permittee to prevent the occurrence of any viola-

tion of his permit or any requirement of this act due to

indifference, lack of diligence, or lack of reasonable care, or

the failure to abate any violation of such permit or the act

due to indifference, lack of diligence, or lack of reasonable

care.

54. “Water table” means the upper surface of a zone

of saturation, where the body of ground water is not con-

fined by an overlying impermeable zone.

$743. Repealed by Laws 1979, c. 249, § 60, emerg. eff. June

1, 1979

§ 744. Application of act

§ 745.1 Permits for separate mining operations — Applica-

tions — Forms — Plan of reclamation — Fees — Ex-

emptions

A. It shall be unlawful for any operator to engage in

any mining operations in this state without first obtaining

from the Department a permit to do so for each separate

mining operation. The Department shall determine what

1zb

[APPENDIX]

constitutes a separate mining operation by rules and regu-

lations promulgated under the Coal Reclamation Act.!

B. Any operator desiring to engage in surface mining

eight (8) months after the approval of Oklahoma’s regula-

tory program by the United States Secretary of the Interior

shall make written application to the Department for a per-

mit within two (2) months after the approval of the state

program. Before the approval of the Oklahoma program by

the Secretary of the Interior, the requirements of the Coal

Reclamation Act of 1978 shall continue to apply to all per-

mits for coal mining covered by the Coal Reclamation Act.

Application for such permit shall be made upon a form fur-

nished by the Department, which form shall require all

pertinent information including, but not limited to, all in-

formation required by federal law and regulations.

C. Any operator desiring to engage in underground

mining shall make written application to the Department

for a permit within two (2) months after approval of the

state program. Application for such permit shall be made

upon a form furnished by the Department, which form shall

require all pertinent information including, but not limited

to, all information required by federal law and regulations

for underground coal mining, taking into account the dis-

tinct differences between surface coal mining and under-

ground coal mining.

D. Each application for a permit under subsections B

and C of this section shall be accompanied by a plan for the

reclamation of the affected land that meets the requirements

of the Coal Reclamation Act.

E. Each application for a permit or permit renewal

under subsections B and C of this section shall be accom-

panied by a fee of Five Hundred Dollars ($500.00) for each

permit year, payable at the rate of Five Hundred Dollars

($500.00) per year on the anniversary date of the year in

which the permit or permit renewal was issued. Such fee

shall be deposited in the Department of Mines Revolving

Fund and used to offset the cost of reviewing, administer-

13b

[APPENDIX]

ing and enforcing such permit issued pursuant to a state or

federal program.

F. The provisions of the Coal Reclamation Act shall

not apply to the extraction of coal by a landowner for his

own noncommercial use from land owned or leased by him,

or the extraction of coal as an incidental part of federal,

state or local government-financed highway or other con-

struction under regulations established by the Department.

§ 745.2 Term of permit — Transferability

All permits issued pursuant to the requirements of this

act shall be issued for a term not to exceed five (5) years

and are not transferable.

§$ 745.3 Termination of permit — Extension

A permit shall terminate if the permittee has not com-

menced the surface coal mining operations covered by such

permit within three (3) years of the issuance of the permit.

The Department may grant reasonable extensions of time

upon a showing and a finding by the Department that such

extensions are necessary by reason of litigation precluding

such commencement or threatening substantial economic

loss to the permittee, or by reason of conditions beyond the

control and without the fault or negligence of the permittee;

provided, further that with respect to coal to be mined for

use in a synthetic fuel facility or specific major electric

generating facility, the permittee shall be deemed to have

commenced surface mining operations at such time as the

construction of the synthetic fuel or generating facility is

initiated.

§ 745.4 Renewal of permit — Application — Burden of

proof — Term

Any valid permit issued pursuant to this act shall carry

with it the right of successive renewal with respect to areas

within the boundaries of the existing permit. The holders

of the permit may apply for renewal and such renewal shall

be issued, provided that on application for renewal the bur-

den shall be on the opponents of renewal, subsequent to

14b

{[APPENDIX)

fulfillment of the public notice requirements of Sections 15

and 17 of this act’ unless it is established that and written

findings by the Department are made declaring:

1. The terms and conditions of the existing permit are

not being satisfactorily met;

2. The present surface coal mining and reclamation

operation is not in compliance with the environmental pro-

tection standards of this act and the state program;

3. The renewal requested substantially jeopardizes the

operator’s continuing responsibility on existing permit areas;

4. The operator has not provided evidence that the

performance bond in effect for said operation will continue

in full force and effect for any renewal requested in such

application as well as any additional bond the Department

might require; or

5. Any additional revised or updated information re-

quired by the Department has not been provided. Prior to

the approval of any renewal of permit the Department shall

provide notice to the appropriate public authorities.

If an application for renewal of a valid permit includes

a proposal to extend the mining operation beyond the boun-

daries authorized in the existing permit, the portion of the

application for renewal of a valid permit which addresses

any new land areas shall be subject to the full standards

applicable to new applications under this act.

Any permit renewal shall be for a term not to exceed

the period of the original permit established by this act.

Application for permit renewal shall be made at least one

hundred twenty (120) days prior to the expiration of the

valid permit.

$745.5 Reclamation plan

A. Each applicant for a permit shall be required to

submit to the Department as part of the permit application

a reclamation plan which shall meet the requirements of

this act. Each reclamation plan submitted as part of a per-

mit application shall include, in the degree of detail neces-

sary to demonstrate that reclamation required can be ac-

complished, a statement of:

15b

[APPENDIX}

1. The identification of the lands subject to surface coal

mining operations over the estimated life of those opera-

tions and the size, sequence and timing of the subareas for

which it is anticipated that individual permits for mining

will be sought;

2. The condition of the land to be covered by the per-

mit prior to any mining including:

a. the uses existing at the time of the application,

and, if the land has a history of previous mining,

the uses which preceded any mining.

b. the capability of the land prior to any mining to

support a variety of uses giving consideration to

soil and foundation characteristics, topography,

vegetative cover and, if applicable, a soil survey,

and

c. the productivity of the land prior to mining, in-

cluding appropriate classification as prime farm-

lands, as well as the average yield of food, fiber,

forage or wood products from such lands obtained

under high levels of management;

3. The use which is proposed to be made of the land

following reclamation, including a discussion of the utility

and capacity of the reclaimed land to support a variety of

alternative uses and the relationship of such use to existing

land use policies and plans, and the comments of any owner

of the surface, state and local governments or agencies

thereof which would have to initiate, implement, approve

or authorize the proposed use of the land following recla-

mation;

4. A detailed description of how the proposed post-

mining land use is to be achieved and the necessary support

activities which may be needed to achieve the proposed land

use;

5. The engineering techniques proposed to be used in

mining and reclamation and a description of the major

equipment; a plan for the control of surface water drain-

age and of water accumulation; a plan, where appropriate,

16b

{APPENDIX}

for backfilling, soil stabilization, and compacting, grading

and appropriate revegetation; a plan for soil reconstruction,

replacement and stabilization; an estimate of the cost per

acre of the reclamation, including a statement as to how

the permittee plans to comply with each of the require-

ments of Oklahoma mining reclamation law;

6. The consideration which has been given to maxi-

mize the utilization and conservation of the solid fuel re-

source being recovered so that reaffecting the land in the

future can be minimized;

7. A detailed estimated timetable for the accomplish-

ment of each major step in the reclamation plan;

8. The consideration which has been given to making

the surface mining and reclamation operations consistent

with surface owner plans, and applicable state and local

land use plans and programs;

9. The steps to be taken to comply with applicable air

and water quality laws and regulations and any applicable

health and safety standards;

10. The consideration which has been given to develop-

ing the reclamation plan in a manner consistent with local

physical environmental, and climatological conditions;

11. All lands, interests in lands, or options on such in-

terests held by the applicant or pending bids on interests

in lands by the applicant, which lands are contiguous to

the area to be covered by the permit;

12. The results of test boring which the applicant has

made at the area to be covered by the permit, or other

equivalent information and data, including the location of

subsurface water, and an analysis of the chemical proper-

ties including acid-forming properties of the coal and other

minerals and overburden. Information which pertains only

to the analysis of the chemical and physical properties of

the coal shall be kept confidential and not made a matter

of public record. Information regarding mineral or ele-

mental contents which are potentially toxic in the environ-

ment shall be a part of the public record;

17b

[APPENDIX})

13. A detailed description of the measures to be taken

during the mining and reclamation process to assure the

protection of:

a. the quality of surface and ground water systems,

both on- and off-site, from adverse effects of the

mining and reclamation process,

b. the rights of present users to such water, and

c. the quantity of surface and ground water systems,

both on- and off-site, from adverse effects of the

mining and reclamation process or to provide al-

ternative sources of water where such protection

of quantity cannot be assured; and

14. Such other requirements as the Department shall

prescribe by regulations.

B. Any information required by this section which is

not on public file pursuant to state law shall be held in

confidence by the Department. Information which pertains

only to the chemical and physical properties of the coal,

except those properties which are potentially toxic in the

environment, shall be kept confidential and not made a mat-

ter of public record.

§ 745.6 Performance bond

A. After a surface coal mining and reclamation permit

application has been approved but before such a permit is

issued, the applicant shall file with the Department, on a

form prescribed and furnished by the Department, a bond

for performance payable to the state, and conditional upon

faithful performance of all the requirements of law and the

permit. Such bond shall be signed by the operator as prin-

cipal, and by a good and sufficient corporate surety licensed

to do business in the state. The bond shall cover that area

of land within the permit area upon which the operator

will initiate and conduct surface coal mining and reclama-

tion operations within the initial term of the permit. Bond-

ing will occur in one-year increments for the life of the

permit and shall cover that segment of the permit area to

be affected during the increment. As one-year increments

18b

[APPENDIX]

of surface coal mining and reclamation operations are to be

initiated and conducted within the permit area, the permit-

tee shall file with the Department an additional bond or

bonds to cover such increments in accordance with this

section.

B. The amount of the bond required for each bonded

area shall depend upon the reclamation requirements of the

approved permit, and shall reflect the probable difficulty of

reclamation and giving consideration to such factors as top-

ography, geology of the site, hydrology, and revegetation

potential, and shall be determined by the Department. The

amount of the bond for coal mining shall be sufficient to

assure the completion of the reclamation plan if the work

had to be performed by the Department in the event of

forfeiture, and in no case shall the bond for the entire area

under one permit be less than Ten Thousand Dollars ($10,-

000.00).

Liability under a surface coal mining bond shall be for

the duration of the surface coal mining and reclamation

operation and for a period coincident with the operator’s

responsibility for revegetation requirements. The bond shall

be executed by the operator and a corporate surety licensed

to do business in Oklahoma, except that the operator may

elect to deposit cash, negotiable bonds of the United States

Government, or of Oklahoma, negotiable certificates of de-

posit of any bank organized or transacting business in the

United States, Certificates of Deposit or irrevocable letters

of credit from a bank or lending institution licensed to do

business in the State of Oklahoma. The cash deposit or

market value of such securities shall be equal to or greater

than the amount of the bond required for the bonded area.

C. A bond shall not be cancelable by the surety ex-

cept after not less than ninety (90) days’ prior written

notice to the Department and the arrangement of a replace-

ment bond suitable to the Department. Bonds may be con-

tinued in effect from year to year, and a new bond need

not be provided for each permit year. The penalty of the

bond or amount of cash and securities, as provided in sub-

19b

[APPENDIX]

section B of this section, shall be increased or reduced from

time to time as affected land acreages are increased or de-

creased or when the cost of future reclamation changes.

D. If the license to do business in the state of any

surety upon a bond filed with the Department pursuant to

the Coal Reclamation Act! shall be suspended or revoked,

the operator, within thirty (30) days after receiving no-

tice thereof from the Department, shall substitute for such

surety a good and sufficient corporate surety licensed to

do business in the state. Upon failure of the operator to

make substitution of surety as provided in this section, the

Department shall have the right to suspend the permit of

the operator to conduct operations upon the land described

in such permit until such substitution has been made.

E. The Department may accept the bond of the appli-

cant itself without separate surety when the applicant dem-

onstrates to the satisfaction of the Department the existence

of a suitable agent to receive service of process, and a his-

tory of financial solvency and continuous operation suffi-

cient for authorization to self-insure or bond such amount.

F. Such bond or security shall remain 1 effect until

the mined acres have been reclaimed, approved and released

by the Department.

§ 745.7 Grant, modification or denial of application for per-

mit — Notice to applicant — Burden of proof — No-

tice to political subdivisions

Upon the basis of a complete mining application and

reclamation plan, including public notification and an op-

portunity for a public hearing, the Department shall grant,

require modification of or deny the application for a permit

in a reasonable time and notify the applicant in writing.

The applicant for a permit, or revision of a permit, shall

have the burden of establishing that his application is in

compliance with all the requirements of the law. Within

ten (10) days after the granting of a permit, the Depart-

ment shall notify the local governmental officials in the

political subdivision in which the area of land to be affected

20b

(APPENDIX)

is located that a permit has been issued and shall describe

the location of the land.

§ 745.8 Criteria for approval of permit or revision

application

No permit or revision application shall be approved un-

elss the application affirmatively demonstrates and the De-

partment finds in writing, on the basis of the information

set forth in the application or from information otherwise

available, which will be documented in the approval and

made available to the applicant, that:

1. The permit application is accurate and complete and

that all the requirements of this act have been complied

with;

2. The applicant has demonstrated that reclamation as

required by this act can be accomplished under the recla-

mation plan contained in the permit application;

3. The assessment of the probable cumulative impact

of all anticipated mining in the area on the hydrologic bal-

ance has been made by the Department and the proposed

operation has been designed to prevent material damage to

hydrologic balance outside the permit area;

4. The area proposed to be mined is not included with-

in an area designated unsuitable for surface coal mining,

or is not within an area under study for such designation

unless the operator demonstrates he has made substantial

legal and financial commitments to the operation prior to

January 1, 1977; and

4. In cases when the private coal or other mineral

estate has been severed from the private surface estate, the

applicant has submitted to the Department:

a. the written consent of the surface owner to the

extraction of coal by surface mining methods, or

b. a conveyance that expressly grants or reserves

the right to extract the coal by surface mining

methods.

If the conveyance does not expressly grant the right

to extract coal by surface mining methods, the surface-

21b

[APPENDIX]

subsurface legal relationship shall be determined in accord-

ance with state law. Nothing in this act shall be construed

to authorize the Department to adjudicate property rights

disputes.

§ 745.9 Schedule of notices of violations of air or water en-

vironmental protection laws to be submitted — Ef-

fect of prior violations on application

The applicant shall file with his permit application a

schedule listing all notices of violations of this act and any

law, rule or regulation of the United States, or of any de-

partment or agency in the United States, pertaining to air

or water environmental protection incurred by the appli-

cant in connection with any surface coal mining operation

during the three-year period prior to the date of applica-

tion. The schedule shall also indicate the final resolution

of any such notice of violation. When the schedule or other

information available to the Department indicates that any

surface coal mining operation owned or controlled by the

applicant is currently in violation of this act or such other

laws referred to in this section, the permit shall not be

issued until the applicant submits proof that such violation

has been corrected or is in the process of being corrected

to the satisfaction of the regulatory authority which has

jurisdiction over such violation. No permit shall be issued

to an applicant after a finding by the Department, after

opportunity for hearing, that the applicant or the operator

specified in the application controls or has controlled min-

ing operations with a demonstrated pattern of willful vio-

lations of this act or the laws of another state or the United

States regulating surface coal mining operations of such na-

ture and duration with such resulting irreparable damage

to the environment as to indicate an intent not to comply

with the provisions of this act.

§ 745.10 Revision of permit

A. 1. During the term of the permit the permittee

may submit an application for a revision of the permit, to-

gether with a revised reclamation plan, to the Department.

22b

[APPENDIX)

2. An application for a revision of a permit shall not

be approved unless the Department finds that reclamation

as required by this act can be accomplished under the re-

vised reclamation plan. The revision shall be approved or

disapproved within a reasonable period of time. The De-

partment shall establish guidelines for a determination of

the scale or extent of a revision request for which all per-

mit application information requirements and procedures,

including notice and hearings, shall apply. Any revisions

which propose significant alterations in the reclamation plan

shall, at a minimum, be subject to notice and hearing re-

quirements.

3. Any extensions to the area covered by the permit

except incidental boundary revisions shall be made by ap-

plication for another permit.

B. No transfer, assignment or sale of the rights under

any permit issued pursuant to this act shall be made.

C. The Department shall, within a time limit pre-

scribed in regulations, review outstanding permits and may

require reasonable revision or modification of the permit

provisions during the term of such permit. Such revision

or modification shall be based upon a written finding and

subject to notice and hearing requirements established by

the Department.

§ 745.11 Exploration regulations — Contents — Confidential

or privileged information — Tonnage limitations —

violations

A. Coal exploration operations which substantially dis-

turb the natural land surface shall be conducted in accord-

ance with exploration regulations issued by the Depart-

ment. Such regulations shall include, at a minimum:

1. The requirement that prior to conducting any ex-

ploration under this section, any person shall file with the

Department notice of intention to explore, and such notice

shall include a description of the exploration area and the

period of supposed exploration; and

23b

[APPENDIX]

2. Provisions for reclamation, in accordance with the

surface coal mining operations performance standards of

this act, of all lands disturbed in exploration, including ex-

cavations, roads, drill holes and the removal of necessary

facilities and equipment.

B. Information submitted to the Department pursuant

to this subsection which is designated in writing as confi-

dential, concerning trade secrets or privileged commercial

or financial information which relates to the competitive

rights of the person or entity intended to explore the de-

scribed area, shall not be available for public examination.

C. No operator shall remove more than two hundred

fifty (250) tons of coal pursuant to an exploration permit

without the specific written approval of the Department.

D. Any person violating this section shall be subject

to the penalty provisions of this act.

§ 745.12 Advertisement of ownership, location and bound-

aries of affected land — Notice to political subdi-

visions, etc. — Comments on proposed operation

At the time of submission of an application for a sur-

face coal mining and reclamation permit, or revision of an

existing permit, the applicant shall submit to the Depart-

ment a copy of his advertisement of the ownership, precise

location and boundaries of the land to be affected. At the

time of submission such advertisement shall be placed by

the applicant in a local newspaper of general circulation in

the locality of the proposed surface mine at least once a

week for four (4) consecutive weeks. The Department shall

notify various local governmental bodies, planning agencies,

sewage and water treatment authorities and water com-

panies in the locality in which the proposed surface mining

will take place notifying them of the operator’s intention

to surface mine a particularly described tract of iand and

indicating the application’s permit number and where a

copy of the proposed mining and reclamation plan may be

inspected. These local bodies, agencies, authorities or com-

24b

[APPENDIX])

panies may submit written comments within a reasonable

period established by the Department on the mining appli-

cations with respect to the effect of the proposed operation

on the environment which are within their areas of respon-

sibility. Such comments shall immediately be transmitted

to the applicant by the Department and shall be made avail-

able to the public at the same location as are the mining

applications.

§ 745.13 Objections to application for permit — Informal

Conference — Hearings

A. Any person having an interest which is or may be

adversely affected, or the chief administrative officer of any

federal, state or local governmental agency or authority,

shall have the right to file written objections to the appli-

cation for a permit with the Department within thirty (30)

days after the last publication of the notice. Such objections

shall immediately be transmitted to the applicant by the

Department and shall be made available to the public. If

written objections are filed and an informal conference re-

quested, the Department shall then hold an informal con-

ference in the locality of the proposed mining. The date,

time and location of such informal conference shail be ad-

vertised by the Department in a newspaper of general cir-

culation in the locality at least two (2) weeks prior to the

scheduled conference date. The Department may arrange

with the applicant, upon request by any party to the appli-

cation process, access to the proposed mining area for the

purpose of gathering information relevant to the proceed-

ing. An electronic or stenographic record shall be made of

the conference proceeding, unless waived by all parties.

Such record shall be maintained and shall be accessible to

the parties until final release of the applicant’s performance

bond. In the event all parties requesting the informal con-

ference stipulate agreement prior to the requested informal

conference and withdraw their requests, such informal con-

ference need not be held.

25b

[APPENDIX]

B. Where the lands included in an application for a

permit are the subject of a federal coal lease in connection

with which hearings were held and determinations were

made under the Mineral Lands Leasing Act, as amended,

30 U.S.C. 201a, such hearings shall be deemed as to the mat-

ters covered to satisfy the requirements of this section and

Section 17 of this act! and such determinations shall be

deemed to be a part of the record and conclusive for pur-

poses of this section and Section 17 of this act.

§ 745.14 Findings — Notice to applicant — Hearing on

findings

A. If an informal conference has been held, the De-

partment shall issue and furnish the applicant and persons

who are parties to the administrative proceedings with the

written finding of the Department, granting or denying the

permit in whole or in part and stating the reasons therefor,

within the sixty (60) days of the hearings in the informal

conference.

B. If no informal conference has been held, the De-

partment shall notify the applicant for a permit, within a

reasonable time, whether the application has been approved

or disapproved in whole or in part.

C. If the application is approved, the permit shall be

issued. If the application is disapproved, specific reasons

shall be set forth in the notification. Within thirty (30)

days after the applicant is notified of the final decision of

the Department on the permit application, the applicant or

any person with an interest which is or may be adversely

affected may request a hearing on the reasons for the final

determination. The Department shall hold a hearing within

thirty (30) days of such request and provide notification to

all interested parties at the time that the applicant is so

notified. Such hearing shall be of record, adjudicatory in

nature and no person who presided at an informal confer-

ence shall either preside at the hearing or participate in this

decision or in any administrative appeal. Within thirty (30)

days after the hearing the Department shall issue and fur-

26b

[APPENDIX]

nish the applicant, and all persons who participated in the

hearing, with the written decision of the Department grant-

ing or denying the permit in whole or in part and stating

the reasons.

§ 745.15 Temporary relief pending final determination of

proceedings — Conduct of hearings — Appeals

When a hearing is requested pursuant to this act, the

Department may, under such conditions as it may prescribe,

grant such temporary relief as it deems appropriate pend-

ing final determination of the proceedings if:

1. All parties to the proceedings have been notified and

given an opportunity to be heard on a request for temporary

relief;

2. The person requesting such relief shows that there

is a substantial likelihood that he will prevail on the merits

of the final determination of the proceeding; and

3. Such relief will not adversely affect the public

health or safety or cause significant imminent environ-

mental harm to land, air or water resources.

For the purpose of this and every hearing authorized

by this act, the Department may, pursuant to the Adminis-

trative Procedures Act,'! administer oaths, subpoena wit-

nesses, or written or printed materials, compel attendance

of the witnesses, or production of the materials, and take

evidence including, but not limited to, site inspections of the

land to be affected and other surface coal mining operations

carried on by the applicant in the general vicinity of the

proposed operation. A verbatim record of each public hear-

ing required by this act shall be made, and a transcript

made available on the motion of any party or by order of

the Department.

Any applicant or any person with an interest which is

or may be adversely affected who has participated in the

application process as an objector, and who is aggrieved by

the decision of the Department, or if the Department fails

to act within the time limits specified in this act, shall have

the right to appeal as provided by Section 53 of this act.?

27b

{APPENDIX}

§ 745.16 Determination of probable hydrologic conse-

quences — Statement of results of test borings

or core samplings

If the Department finds that the probable total annual

production at all locations of any coal surface mining op-

erator will not exceed one hundred thousand (100,000) tons,

the determination of probable hydrologic consequences re-

quired by law and the statement of the result of test bor-

ings or core samplings required by law shall, upon the writ-

ten request of the operator, be performed by a qualified

public or private laboratory designated by the Department

and the cost of the preparation of such determination and

statement shall be assumed by the Department.

§$ 745.17 Copy of application to be filed with county re-

corder or appropriate public office — Liability

insurance — Blasting plans

A. Each applicant for a surface coal mining and recla-

mation permit shall file a copy of his application for public

inspection with the recorder at the courthouse of the county

or an appropriate public office approved by the Department

where the mining is proposed to occur, except for that in-

formation pertaining to the coal seam itself.

B. Each applicant for a permit shall be required to sub-

mit to the Department as part of the permit application a

certificate issued by an insurance company authorized to do

business in the United States certifying that the applicant

has a public liability insurance policy in force for the sur-

face mining and reclamation operations for which such per-

mit is sought, or evidence that the applicant has satisfied

other state or federal self-insurance requirements. Such

policy shall provide for personal injury and property dam-

age protection in an amount adequate to compensate any

persons damaged as a result of surface coal mining and rec-

lamation operations including use of explosives and entitled

to compensation under the applicable provisions of state

law. Such policy shall be maintained in full force and effect

28b

[APPENDIX]

during the terms of the permit or any renewal, including

the length of all reclamation operations.

C. Each applicant for a surface coal mining and recla-

mation permit shall submit to the Department as part of the

permit application a blasting plan which shall outline the

procedures and standards by which the operator will meet

the provisions of law.

$ 745.18 Impoundments of water on mining sites

The operator may create, if authorized in the approved

mining and reclamation plan and permit, permanent im-

poundments of water on mining sites as part of reclamation

activities only when it is adequately demonstrated that:

1. The size of the impoundment is adequate for its in-

tended purposes;

2. The impoundment dam construction will be so de-

signed as to achieve necessary stability with an adequate

margin of safety compatible with that of structures con-

structed under Public Law 83-566 (16 U.S.C. 1006);

3. The quality of impounded water will be suitable on

a permanent basis for its intended use and that discharges

from the impoundment will not degrade the water quality

below water quality standards established pursuant to ap-

plicable federal and state law in the receiving stream;

4. The level of water will be reasonably stable;

5. Final grading will provide adequate safety and ac-

cess for proposed water users; and

6. Such water impoundments will not result in the

diminution of the quality or quantity of water utilized by

adjacent or surrounding landowners for agricultural, indus-

trial, recreational or domestic uses.

§ 745.19 Augering operations

The operator shall conduct any augering operation as-

sociated with surface mining in a manner to maximize re-

coverability of coal and other mineral reserves remaining

after the operation and reclamation are complete, and seal

all auger holes with an impervious and noncombustible ma-

terial in order to prevent drainage except where the De-

29b

[APPEND!X)

partment determines that the resulting impoundment of

water in such auger holes may create a hazard to the en-

vironment or the public health or safety. The Department

may prohibit augering if necessary to maximize the utili-

zation recoverability or conservation of the solid fuel re-

sources or to protect against adverse water quality impacts.

§ 745.20 Disposal of wastes

The operator shall, with respect to surface disposal of

mine wastes, tailings, coal processing wastes, and other

wastes in areas other than the mine working or excavations,

stabilize all waste piles in designated areas through con-

struction in compacted layers including the use of incom-

bustible and impervious materials if necessary. He shall

also assure that the final contour of the waste pile will be

compatible with natural surroundings and that the site can

and will be stabilized and revegetated according to the pro-

visions of this act.

§ 745.21 Surface mining near active and abandoned

underground mines

The operator shall refrain from surface coal mining

within five hundred (500) feet from active and abandoned

underground mines in order to prevent breakthroughs and

to protect health or safety of miners. The Department

shall permit an operator to mine near, through or partially

through an abandoned underground mine or closer to an

active underground mine if the nature, timing and sequen-

cing of the approximate coincidence of specific surface mine

activities with specific underground mine activities will re-

sult in improved resource recovery, improved land use cate-

gory abatement of water pollution, or elimination of hazards

to the health and safety of underground miners and the

public.

§ 745.22 Reclamation efforts — Variances

The operator shall insure that all reclamation efforts

proceed in an environmentally sound manner and as con-

temporaneously as practicable with the surface coal mining

30b

[APPENDIX)

operations. Where the applicant proposes to combine sur-

face mining operations with underground mining operations

to assure maximum practical recovery of the coal and other

mineral ressources, the Department may grant a variance

for specific areas within the reclamation plan from the re-

quirement that reclamation efforts proceed as contempor-

aneously as practicable to permit underground mining op-

erations prior to reclamation:

1. If the Department finds in writing that:

a, the applicant has presented, as part of the permit

application, specific, feasible plans for the pro-

posed underground mining operations,

b, the proposed underground mining operations are

necessary or desirable to assure maximum prac-

tical recovery of the coal and other mineral re-

sources and will avoid multiple disturbance of the

surface,

c. the applicant has satisfactorily demonstrated that

the plan for the underground mining operations

conforms to requirements for underground min-

ing in the jurisdiction and that permits necessary

for the underground mining operations have been

issued,

d. the areas proposed for the variance have been

shown by the applicant to be necessary for the

implementing of the proposed underground min-

ing operations,

e. no substantial adverse environmental damage,

either on-site or off-site, will result from the de-

lay in completion of reclamation as required by

this act, and

f. provisions for the off-site storage of spoil will

comply with the requirements of this act;

2. If the United States Secretary of the Interior has

promulgated specific regulations to govern the granting of

such variances in accordance with the provisions of federal

law, and has imposed such additional requirements as he

deems necessary;

31b

[APPENDIX}

3. If variances granted under the provisions of this

section are to be reviewed by the Department not more

than three (3) years from the date of issuance of the per-

mit; and

4. If liability under the bond filed by the applicant

with the Department shall be for the duration of the under-

ground mining operations and until the requirements of this

act have been fully complied with.

§ 754. Reestablishment of native flora — Lenth of liability

A. The operator shall establish on the regraded areas

and all other lands affected a diverse, effective and perma-

nent vegetative cover of the same seasonal variety native

to the area of land to be affected and capable of self-regen-

eration and plant succession at least equal in extent of cover

to the natural vegetation of the area; except, that intro-

duced species may be used in the revegetation process

where desirable and necessary to achieve the approved

postmining land use plan.

B. The operator shall assume the responsibility for

successful revegetation for a period of five (5) full years

after the last year of augmented seeding, fertilizing, irriga-

tion or other work in order to assure compliance with this

section. In those areas or regions of Oklahoma, where the

annual average precipitation is twenty-six (26) inches or

less as determined by the most recent National Oceanic and

Atmospheric Administration Annual Summary of Climatol-

ogical Data for Oklahoma, the operator’s assumption of re-

sponsibility and liability will extend for a period of ten

(10) full years after the last year of augmented seeding,

fertilizing, irrigation or other work. When the Department

approves a long-term intensive agricultural postmining land

use, the applicable five- or ten-year period of responsibility

for revegetation shall commence at the date of initial plant-

ing for such long-term intensive agricultural postmining

land use. When the Department issues a written finding

approving a long-term, intensive, agricultural postmining

land use as part of the mining and reclamation plan, the

32b

(APPENDIX)

Department may grant exception to the provisions of sub-

section A of this section.

§ 754.1 Spoil material — Placement

The operator shall place all excess spoil material re-

sulting from coal surface mining and reclamation activities

in such a manner that:

1. Spoil is transported and placed in a controlled man-

ner in position for concurrent compaction and in such a way

to assure mass stability and to prevent mass movement;

2. The areas of disposal are within the bonded permit

areas and all organic matter shall be removed immediately

prior to spoil placement;

3. Appropriate surface and internal drainage systems

and diversion ditches are used so as to prevent spoil erosion

and movement;

4. The disposal area does not contain springs, natural

water courses or wet weather seeps unless lateral drains are

constructed from the wet areas to the main underdrains in

such a manner that filtration of the water into the spoil pile

will be prevented;

5. If placed on a slope, the spoil is placed upon the

most moderate slope among those upon which, in the judg-

ment of the Department, the spoil could be placed in com-

pliance with all the requirements of this act, and shall be

placed, where possible, upon, or above, a natural terrace,

bench, or berm, if such placement provides additional sta-

bility and prevents mass movement;

6. Where the toe of the spoil rests on a downslope, a

rock toe buttress, of sufficient size to prevent mass move-

ment, is constructed;

7. The final configuration is compatible with the na-

tural drainage pattern and surroundings and suitable for

intended uses;

8. Design of the spoil disposal area is certified by a

qualified registered professional engineer in conformance

with professional standards; and

9. All other provisions of this act are met.

33b

(APPENDIX)

§ 754.2 Performance standards

The operator shall also fulfill the following perform-

ance standards:

1. Conduct surface coal mining operations so as to

maximize the utilization and conservation of the solid fuel

resource being recovered so that reaffecting the land in the

future through surface coal mining can be minimized;

2. Stabilize and protect all surface areas including spoil

piles affected by the surface coal mining and reclamation

operation to effectively control erosion and attendant air

and water pollution;

3. Restore the topsoil or the best available subsoil

which is best able to support vegetation;

4. Insure that all debris, acid-forming materials, toxic

materials, or materials constituting a fire hazard are treated

or buried and compacted or otherwise disposed of in a man-

ner designed to prevent contamination of ground or surface

waters and that contingency plans are developed to prevent

sustained combustion;

5. Insure that the construction, maintenance and post-

mining conditions of access roads into and across the site

of operations will control or prevent erosion and siltation,

pollution of water, damage to fish or wildlife or their habi-

tat, or public or private property;

6. Refrain from the construction of roads or other ac-

cess ways up a stream bed or drainage channel or in such

proximity to such channel so as to seriously alter the norm-

al flow of water;

7. Protect off-site areas from slides or damage occur-

ring during the surface coal mining and reclamation opera-

tions, and not deposit spoil material or locate any part of

the operations or waste accumulations outside the permit

area;

8. To the extent possible using the best technology

currently available, minimize disturbances and adverse im-

pacts of the operation on fish, wildlife, and related environ-

mental values, and achieve enhancement of such resources

where practicable;

34b

[APPENDIX)

9. Provide for an undisturbed natural barrier begin-

ning at the elevation of the lowest coal seam to be mined

and extending from the outslope for such distance as the

Department shall determine shall be retained in place as a

barrier to slides and erosion; and

10. Meet such other criteria as are necessary to achieve

reclamation in accordance with the purposes of this act,

taking into consideration the physical, climatological, and

other characteristics of the site.

§ 755. Steep slope surface mining—Performance

standards—Exemptions

§ 756. Performance standards for removal of entire coal

seam—Postmining land use as condition for grant-

ing permit

A. Where a surface coal mining operation will remove

an entire coal seam or seams running through the upper

fraction of a mountain, ridge or hill by removing all of the

overburden and creating a level plateau or a gently rolling

contour with no highwalls remaining and which will be

capable of supporting postmining uses in accordance with

the requirements of this section, such operation shall re-

quire that:

1. The toe of the lowest coal seam and the overburden

associated with it are retained in place as a barrier to slides

and erosion;

2. The reclaimed area is stable;

3. The resulting plateau or rolling contour drains in-

ward from the outslopes except at specified points;

4. No damage will be done to natural watercourses;

5. Spoil will be placed on the mountaintop bench as

is necessary to achieve the planned postmining land use;

and

6. Stability of the spoil retained on the mountaintop

is insured and meets the other requirements of this act.

Such operation shall not be required to restore the orig-

inal contour as provided in Section 747 of this title.

35b

fAPPENDIX)

B. In cases where an industrial, commercial, agricul-

tural, residental or public facility, including recreational fa-

cilities, use is proposed as the postmining use of the affected

land, the Department may grant a permit for a surface min-

ing operation of the nature described in this section if:

1. The proposed postmining land use is deemed to con-

stitute an equal or better economic or public use of the af-

fected land, as compared with premining use after consul-

tation with the appropriate land use planning agencies;

2. The applicant presents specific plans for the pro-

posed postmining land use and appropriate assurances that

such use will be:

a. compatible with adjacent land uses,

b. obtainable according to data regarding expected

need and market,

c. assured of investment in necessary public facili-

ties,

d. supported by commitments from public agencies

where appropriate,

e. practicable with respect to private financial capa-

bility for completion of the proposed use,

f. planned pursuant to a schedule attached to the

reclamation plan so as to integrate the mining

operation and reclamation with the postmining

land use, and

g. designed by a registered engineer in conformance

with professional standards established to assure

the stability, drainage, and configuration neces-

sary for the intended use of the site;

3. The proposed use would be consistent with adjacent

land uses, and existing state and local land use plans and

programs;

4. The Department provides the governing body of the

unit of general-purpose government in which the land is

located and any state or federal agency which the Depart-

ment, in its discretion, determines to have an interest in

the proposed use, an opportunity of not more than sixty

(60) days to review and comment on the proposed use;

5. All other requirements of this act will be met.

36b

[APPENDIX]

$$ 758,759. Repealed by Laws 1979, c. 249, § 60, emerg.

eff. June 1, 1979

$ 760.1 Suspension of underground mining in certain areas

In order to protect the stability of the land, the Depart-

ment shall suspend underground coal mining under urban-

ized areas, cities, towns and communities and adjacent to

industrial or commercial buildings, major impoundments or

permanent streams if it finds imminent danger to inhabi-

tants of the urbanized areas, cities, towns and communities.

§$ 760.2 Application of act to surface operations—

Modifications

The provisions of this act relating to permits, bonds,

inspections and enforcement, public review, and adminis-

trative and judicial review shall be applicable to surface

operations and surface impacts incident to an underground

coal mine with such modifications to the permit application

requirements, permit approval or denial procedures, and

bond requirements as are necessary to accommodate the

distinct difference between surface and underground coal

mining. The Department shall adopt such modifications.

§ 762. Repealed by Laws 1979, c. 249, § 60, emerg. eff.

June 1, 1979

§§ 763, 764. Renumbered as §§ 791, 792 of this title by Laws

1979, c. 249, § 59, emerg. eff. June 1, 1979

$765. Data collection and analysis

A. The Department shall require any permittee to es-

tablish and maintain appropriate records, make monthly

reports to the Department, install, use and maintain any

necessary monitoring equipment or methods, evaluate re-

sults in accordance with such methods, at such locations,

intervals and in such manner as the Department shall pre-

scribe, and provide such other information relative to sur-

face coal mining and reclamation operations as the Depart-

ment deems reasonable and necessary.

37b

[APPENDIX)

B. For those surface coal mining and reclamation op-

erations which remove or disturb strata that serve as aqui-

fers which significantly insure the hydologic balance of

water use either on or off the mining site, the Department

shall specify:

1. Monitoring sites to record the quantity and quality

of surface drainage above and below the minesite as well

as in the potential zone of influence;

2. Monitoring sites to record level, amount and sam-

ples of ground water and aquifers potentially affected by

the mining and also directly below the lowermost (deepest)

coal seam to be mined;

3. Records of well logs and borehole data to be main-

tained; and

4. Monitoring sites to record precipitation.

The monitoring data collection and analysis required

by this section shall be conducted according to standards

and procedures set forth by the Department in order to as-

sure their reliability and validity.

$766. Right of entry—Inspections—Signs—Violations—

Public inspection of records, etc.

A. The representatives of the Department may enter

upon the lands of the operator at all times deemed reason-

able and necessary by the Department without advance

notice and upon presentation of appropriate credentials for

the purpose of inspection, to determine whether the pro-

visions of this act have been complied with, and may at

reasonable times, and without delay, have access to and

copy any records, inspect any monitoring equipment or

method of operations required under this act.

B. The inspections by the Department shall:

1. Occur on an irregular basis averaging not less than

one partial inspection per month and one complete inspec-

tion per calendar quarter for the surface coal mining and

reclamation operation covered by each permit;

2. Occur without prior notice to the permittee or his

agents or employees except for necessary on-site meetings

with the permittee; and

38b

{APPENDIX}

3. Include the filing of inspection reports adequate to

enforce the requirements of and to carry out the terms and

purposes of this act.

C. Each permittee shall maintain in a conspicuous

place at the entrances to the surface coal mining and rec-

lamation operations clearly visible signs which set forth the

name, business address and phone number of the permittee

and the permit number of the surface coal mining and rec-

lamation operations.

D. Each inspector, upon detection of each violation of

any requirement of this act, shall immediately inform the

operator in writing of the violation, and shall report in

writing any such violation to the Department.

E. Copies of any records, reports, inspection materials

or information obtained under this act by the Department

shall be made immediately available for inspection by the

public at central and sufficient locations designated by the

Department in the county, multicounty and state area of

mining so that they are conveniently available to residents

in the areas of mining, excepting such information required

to be kept confidential by this act.

§ 767. Conflicts of interest—Violations

No employee of the Department of Mines or any other

state employee performing any function or duty under this

act shall be directly or indirectly interested in any mining

operation, or any contract for purchase of any property or

construction or any work for any mining operation. Any

person who knowingly violates the provision of this section

shall be guilty of a misdemeanor and, upon conviction, shall

be punished by incarceration for a period not to exceed one

(1) year or a fine not to exceed Five Thousand Dollars

($5,000.00), or both.

$768. Reports of violations of act—Informal review—

Inspection procedure

A. Any person who is or may be adversely affected by

a surface mining operation may notify the Chief Mine In-

spector or any representative of the Chief Mine Inspector

39b

[APPENDIX)

responsible for conducting the inspection, in writing, of any

violation of this act which he has reason to believe exists

at the surface mining site. The Chief Mine Inspector shall,

by regulation, establish procedures for informal review of

any refusal by a representative of the Chief Mine Inspector

to issue a citation with respect to any such alleged violation.

The Chief Mine Inspector shall furnish such persons re-

questing the review a written statement of the reasons for

the Chief Mine Inspector’s final disposition of the case.

B. The Chief Mine Inspector shall also, by regulation,

establish procedures to insure that adequate and complete

inspections are made. Any such person may notify the Chief

Mine Inspector of any failure to make such inspections, af-

ter which the Chief Mine Inspector shall determine whether

adequate and complete inspections have been made. The

Chief Mine Inspector shall furnish such persons a written

statement of the reasons for the Chief Mine Inspector’s de-

termination that adequate and complete inspections have

or have not been conducted.

§ 769. Civil penalties

A. In the enforcement of a state program pursuant to

this act any operator who violates any permit condition or

who violates any other provision of this act may be assessed

a civil penalty by the Department except that if such vio-

lation leads to the issuance of a cessation order under this

act, the civil penalty shall be assessed. Such penalty shall

not exceed Five Thousand Dollars ($5,000.00) for each vio-

lation. Each day of continuing violation may be deemed a

separate violation for purposes of penalty assessments. In

determining the amount of the penalty, consideration shall

be given to the operator’s history of previous violations at

the particular surface coal mining operation; the seriousness

of the violation, including any irreparable harm to the en-

vironment and any hazard to the health or safety of the

public; whether the permittee was negligent; and the dem-

onstrated good faith of the permittee charged in attempting

to achieve rapid compliance after notification of the viola-

tion.

:40b

[APPENDIX]

B. A civil penalty shall be assessed by the Department

only after the person charged with a violation described

under subsection A of this section has been given an uppor-

tunity for a public hearing. Where such a public hearing

has been held, the Chief Mine Inspector shall make findings

of fact, and he shal) issue a written decision as to the occur-

rence of the violation and the amount of the penalty which

is warranted, incorporating, when appropriate, an order

therein requiring that the penalty be paid. When appro-

priate, the Chief Mine Inspector shall consolidate such hear-

ings with other proceedings under this act. Any hearing

under this section shall be of record. Where the person

charged with such a violation fails to avail himself of the

opportunity for a public hearing, a civil penalty shall be

assessed by the Chief Mine Inspector after the Chief Mine

Inspector has determined that a violation did occur, and

the amount of the penalty which is warranted, and has

issued an order requiring that the penalty be paid.

C. Upon the issuance of a notice or order charging

that a violation of this act has occurred, the Department

shall inform the operator within thirty (30) days of the

proposed amount of said penalty. The person charged with

the penalty shall then have thirty (30) days to pay the pro-

posed penalty in full or, if the person wishes to contest

either the amount of the penalty or the fact of the violation,

forward the proposed amount to the Department for place-

ment in an escrow account. If through administrative or

judicial review of the proposed penalty, it is determined

that no violation occurred, or that the amount of the pen-

alty should be reduced, the Department shall within thirty

(30) days remit the appropriate amount to the person, with

interest at the rate of six percent (6%), or at the prevailing

United States Department of the Treasury rate, whichever

is greater. Failure to forward the money to the Department

within thirty (30) days shall result in a waiver of all legal

rights to contest the violation or the amount of the penalty.

D. Civil penalties owed under this act may be recov-

ered in a civil action brought by the Attorney General at

41b

[APPENDIX]

the request of the Chief Mine Inspector in any appropriate

district court.

E. Any person who willfully and knowingly violates

a condition of a permit issued pursuant to this act or fails

or refuses to comply with any order issued under this act,

or any order incorporated in a final decision issued by the

Chief Mine Inspector under this act except an order incor-

porated in a decision issued under subsection B of this sec-

tion, shall, upon conviction, be punished by a fine of not

more than Ten Thousand Dollars ($10,000.00) or by im-

prisonment for not more than one (1) year, or both.

F. Whenever a corporate permittee violates a condi-

tion of a permit issued pursuant to this act or fails or re-

fuses to comply with any order issued under this act, or any

order incorporated in a final decision issued by the Chief

Mine Inspector under this act except an order incorporated

in a decision issued under subsection B of this section, any

director, officer or agent of such corporation who willfully

and knowingly authorized, ordered or carried out such vio-

lation, failure or refusal shall be subject to the same civil

penalties, fines and imprisonment that may be imposed upon

a person under subsections A and E of this section.

G. Whoever knowingly makes any false statement,

representation or certification, or knowingly fails to make

any statement, representation or certification in any appli-

cation, record, report, plan or other document filed or re-

quired to be maintained pursuant to this act or any order

of decision issued by the Department under this act, shall,

upon conviction, be punished by a fine of not more than Ten

Thousand Dollars ($10,000.00) or by imprisonment for not

more than one (1) year, or both.

H. Any operator who fails to correct a violation for

which a citation has been issued within the period permitted

for its correction shall be assessed a civil penalty of not less

than Seven Hundred Fifty Dollars ($750.00) for each day

during which such failure or violation continues.

The period permitted for corrections of violations shall

not end until:

42b

[APPENDIX)

1. The entry of a final order by the Department after

an expedited hearing, as provided by Section 53 of this act,!

which ordered the suspension of the abatement require-

ments of the citation because it was determined that the

operator will suffer irreparable loss or damage from the

application of the abatement requirements; or

2. The entry of an order by a court in any review pro-

ceedings initiated by the operator in which the court orders

the suspension of the abatement requirements.

I. Any person who shall, except as permitted by law,

willfully resist, prevent, impede or interfere with the Chief

Mine Inspector or any of the agents or employees of the

Department in the performance of duties pursuant to this

act shall, upon conviction, be punished by a fine of not more

than Five Thousand Dollars ($5,000.00), or by imprison-

ment for not more than one (1) year, or both.

$770. Release of performance bond or deposit—Application

The permittee may file a request with the Department

for the release of all or part of a performance bond or de-

posit. Within thirty (30) days after any application for

bond or deposit release has been filed with the Department,

the operator shall submit a copy of an advertisement placed

at least once a week for four (4) successive weeks in a

newspaper of general circulation in the locality of the sur-

face coal mining operation. Such advertisement shall be

considered part of any bond release application and shall

contain a notification of the precise location of the land af-

fected, the number of acres, the permit and the date ap-

proved, the amount of the bond filed and the portion sought

to be released, and the type and appropriate dates of rec-

lamation work performed and a description of the results

achieved as they relate to the operator’s approved reclama-

tion plan. In addition, as part of any bond release applica-

tion, the applicant shall submit copies of letters which he

has sent to adjoining property owners, local governmental

bodies, planning agencies and sewage and water treatment

authorities or water districts in the districts in which the

43b

[APPENDIX)

suface coal mining and reclamation activities took place,

notifying them of his intention to seek release from the

bond.

§ 771. Release of performance bond or deposit—

Inspection and evaluation of reclamation work

Upon receipt of the notification and request, the De-

partment shall within thirty (30) days conduct an inspec-

tion and evaluation of the reclamation work involved. Such

evaluation shall consider, among other things, the degree of

difficulty to complete any remaining reclamation, whether

pollution of surface and subsurface water is occurring, the

probability of continuance or future occurrence of such pol-

lution, and the estimated cost of abating such pollution. The

Department shall notify the permittee in writing of its de-

cision to release or not to release all or part of the perform-

ance bond or deposit within sixty (60) days from the filing

of the request, if no public hearing is held and if there has

been a public hearing held within thirty (30) days there-

after.

§ 772. Release of performance bond or deposit—Schedule

of releases—Disapproval of application—Protection

of affected area

A. The Department may release in whole or in part

the bond or deposit if the Department is satisfied the recla-

mation covered by the bond or deposit or portion thereof

has been accomplished as required by this act according to

the following schedule:

1. When the operator completes the backfilling, re-

grading and drainage control of a bonded area in accord-

ance with his approved reclamation plan, the release of

sixty percent (60%) of the bond or collateral for the ap-

plicable permit area;

2. After revegetation has been established on the re-

graded mined lands in accordance with the approved recla-

mation plan. When determining the amount of bond to be

released after successful revegetation has been established,

the Department shall retain that amount of bond for the re-

44b

(APPENDIX)

vegetated area which would be sufficient for a third party

to cover the cost of reestablishing revegetation and for the

period specified for operator responsibility of reestablishing

revegetation. No part of the bond or deposit shall be re-

leased under this paragraph so long as the lands to which

the release would be applicable are contributing suspended

solids to streamflow or runoff outside the permit area in

excess of the requirements set by law. No part of the bond

shall be released until soil productivity for prime farmlands

has returned to equivalent levels of yield as nonmined land

of the same soil type in the surrounding area under equiv-

alent management practices as determined from the soil

survey. When a silt dam is to be retained as a permanent

impoundment, the remaining portion of bond may be re-

leased under this paragraph so long as provisions for sound

future maintenance by the operator or the landowner have

been made with the Department; and

3. When the operator has completed successfully all

surface coal mining and reclamation activities, the release

of the remaining portion of the bond, but not before the

expiration of the period specified for operator responsibility.

No bond shall be fully released until all reclamation re-

quirements of this act are fully met.

B. If the Department disapproves the application for

release of the bond or portion thereof, the Department shall

notify the permittee in writing, stating the reasons for dis-

approval and recommending corrective actions necessary to

secure said release and allowing opportunity for a public

hearing.

C. In order to protect areas affected by surface coal

mining activities and the surface effects of underground

coal mines, no oil or gas drilling activities shall be com-

menced or continued in any mine permit area while the

reclamation bond or any portion thereof remains in effect,

without the written approval of the Director.

The Department shall issue rules and regulations estab-

lishing criteria and conditions for the approval of the Direc-

tor under this subsection.

45b

(APPENDIX)

§ 773. Release of performance bond or deposit—Notice to

municipalities—Objections—Hearings—Informal

conference—Authority of department

A. When any application for total or partial bond re

lease is filed with the Department, the Department shall

notify any municipality in which a surface coal mining op-

eration is located by certified mail at least thirty (30) days

prior to the release of all or a portion of the bond.

B. Any person with a valid legal interest which might

be adversely affected by release of the bond or the responsi-

ble administration officer of any federal, state or local gov-

ernmental agency which has jurisdiction by law or special

expertise with respect to any environmental, social or eco-

nomic impact involved in the operation, or is authorized to

develop and enforce environmental standards with respect

to such operations, shall have the right to file written ob-

jections to the proposed release from bond to the Depart-

ment within thirty (30) days after the last publication of

the above notice. If written objections are filed and a hear-

ing requested, the Department shall inform all the inter-

ested parties of the time and place of the hearing, and hold

a public hearing in the locality of the surface coal mining

operation proposed for bond release within thirty (30) days

of the request for such hearing. The date, time and location

of such public hearings shall be advertised as frequently as

possible by the Department in each issue of a newspaper of

general circulation in the locality for two (2) consecutive

weeks, and shall hold a public hearing in the locality of the

surface coal mining operation proposed for bond release or

at the State Capitol Building at the option of the objector

within thirty (30) days of the request for such hearing.

C. Without prejudice to the rights of the objectors, to

the rights of applicant, or to the responsibilities of the De-

partment pursuant to this section, the Department may

establish an informal conference to resolve such written

objections.

46b

(APPENDIX)

D. For the purpose of such hearing the Department

shall have the authority, pursuant to the Administrative

Procedures Act,' and is hereby empowered to administer

oaths, subpoena witnesses, or written or printed materials,

compel the attendance of witnesses, or production of the

materials, and take evidence including but not limited to

inspections of the land affected and other surface coal min-

ing operations carried on by the applicant in the general

vicinty. A verbatim record of each public hearing required

by this act shall be made, and a transcript made available

on the motion of any party or by order of the Department.

§ 774. Civil actions to compel compliance with act—

Exceptions

A. Except as provided in subsection B of this section,

any person having an interest which is or may be adversely

affected may commence a civil action on his own behalf to

compel compliance with this act:

1. Against any governmental instrumentality or agen-

cy to the extent permitted by the Eleventh Amendment to

the Constitution of the United States which is alleged to be

in violation of the provisions of this act or of any rule, regu-

lation, order or permit issued pursuant thereto, or against

any other person who is alleged to be in violation of any

rule, regulation, order or permit issued pursuant to this act;

2. Against the Department to the extent permitted by

the Eleventh Amendment to the Constitution of the United

States where there is alleged a failure of the Department to

perform any act or duty under this act which is not discre-

tionary with the Department.

B. No action may be commenced:

1. Under paragraph 1 of subsection A of this section:

a. prior to sixty (60) days after the plaintiff has

given notice in writing of the violation to the De-

partment, and to any alleged violator, or

b. If the Department has commenced and is dili-

gently prosecuting a civil action in a court of this

47b

[APPENDIX}

state to require compliance with the provisions of

this act, or any rule, regulation, order or permit

issued pursuant to this act, but in any such action

in a court of this state any person may intervene

as a matter of right; or

2. Under paragraph 2 of subsection A of this section

prior to sixty (60) days after the plaintiff has given notice

in writing of such action to the Department, in such manner

as the Department shall by regulation prescribe, except that

such action may be brought immediately after such notifi-

cation in the case where the violation or order complained

of constitutes an imminent threat to the health or safety of

the plaintiff or would immediately affect a legal interest of

the plaintiff.

C. Any action respecting a violation of this act or the

regulations thereunder may be brought only pursuant to

the Administrative Procedures Act! and only in the judicial

district in which the surface coal mining operation com-

plained of is located.

In such action under this section, the Department, if

not a party, may intervene as a matter of right.

D. The court, in issuing any final order in any action

brought pursuant to subsection A of this section, may award

costs of litigation, including attorney and expert witness

fees, to any party, whenever the court determines such

award is appropriate. The court may, if a temporary re-

straining order or preliminary injunction is sought, require

the filing of a bond or equivalent security.

E. Nothing in this section shall restrict any right which

any person, or class of persons, may have under any statute

or common law to seek enforcement of any of the provisions

of this act and the regulations thereunder, or to seek any

other relief including relief against the Department.

F. Any person who is injured in his person or prop-

erty through the violation by any operator of any rule, reg-

ulation, order or permit issued pursuant to this act may

bring an action for damages, including reasonable attorney

and expert witness fees, only in the judicial district in

48b

[APPENDIX]

which the surface coal mining operation complained of is

located. Nothing in this subsection shall affect the rights

established by or limits imposed under Oklahoma Workers’

Compensation laws.

$775. Inspection of violations

Whenever the Department has reason to believe that

any person is in violation of any requirement of this act or

any permit condition required by this act, the Department

shall immediately order inspection of the surface coal min-

ing operation at which the alleged violation is occurring

unless the information available to the Department is a re-

sult of a previous inspection of such surface coal mining

operation. When the inspection results from information

provided to the Department by any person, the Department

shall notify such person when the inspection is proposed to

be carried out and such person shall be allowed to accom-

pany the inspector during the inspection.

§ 776. Conditions or practices in violation of act—Cessation

order—Additional obligations on operator

If, on the basis of any inspection, the Department de-

termines that any unacceptable condition or practice exists,

or that .ny permittee is in violation of any requirement of

this act or any permit condition required by this act, which

condition, practice or violation also creates an imminent

danger to the health or safety of the public, or is causing,

or can reasonably be expected to cause significant, immi-

nent environmental harm to land, air or water resources,

the Department shall immediately order a cessation of sur-

face coal mining and reclamation operations or the portion

thereof relevant to the condition, practice or violation. Such

cessation order shall remain in effect until the Department

determines that the condition, practice or violation has been

abated, or until modified, vacated or terminated by the De-

partment. If the Department finds that the ordered cessa-

tion of surface coal mining and reclamation operations, or

any portion thereof, will not completely abate the imminent

49b

[APPENDIX]

danger to the health or safety of the public or the signifi-

cant imminent environmental harm to land, air or water re-

sources, the Department shall, in addition to the cessation

order, impose affirmative obligations on the operator requir-

ing him to take whatever steps the Department deems nec-

essary to abate the imminent danger or the significant en-

vironmental harm.

$777. Abatement of violation—Notice—Hearing—

Cessation orders

If the Department determines that any permittee is in

violation of any requirement of this act or any permit con-

dition required by this act, but such violation does not cre-

ate an imminent danger to the health or safety of the public,

or cannot be reasonably expected to cause significant, im-

minent environmental harm to land, air or water resources,

the Department shall issue a notice to the permittee or his

agent fixing a reasonable time not to exceed ninety (90)

days for the abatement of the violation and providing op-

portunity for public hearing.

If, upon expiration of the period of time as originally

fixed or subsequently extended, for good cause shown and

upon the written finding of the Department, the Depart-

ment finds that the violation has not been abated, it shall

immediately order a cessation of surface coal mining and

reclamation operations or the portion thereof relevant to

the violation. Such cessation order shall remain in effect

until the Department determines that the violation has been

abated, or until modified, vacated or terminated by the De-

partment. In the order of cessation issued by the Depart-

ment under this section, the Department shall determine the

steps necessary to abate the violation in the most expedi-

tious manner possible, and shall include the necessary mea-

sures to abate in the order.

§ 778. Suspension or revocation of permit

If the Department determines that a pattern of viola-

tions of any requirements of this act exists or has existed,

50b

LAPPENDIX)

and if the Department also finds that such violations are

caused by the unwarranted or willful failure of the permit-

tee to comply with any requirements of this act, the De-

partment shall immediately issue an order to the permittee

to show cause as to why the permit should not be suspended

or revoked and shall provide opportunity for a public hear-

ing. If a hearing is requested the Department shall inform

all interested parties of the time and place of the hearing.

Upon the permittee’s failure to show cause as to why the

permit should not be suspended or revoked, the Department

shall immediately suspend or revoke the permit.

§ 779. Notices and orders—Requirements

Notices and orders issued pursuant to Sections 42

through 45 of this act', shall set forth with reasonable

specificity the nature of the violation and the remedial ac-

tion required, the period of time established for abatement,

and a reasonable description of the portion of the surface

coal mining and reclamation operation to which the notice

or order applies. Each notice or order issued under this

section shall be given promptly to the permittee or his agent

by the Department and all such notices and orders shall be

in writing and shall be signed. Any notice or order issued

pursuant to this section may be modified, vacated or termi-

nated by the Department. Any notice or order which re-

quires cessation of mining by the operator shall expire

within thirty (30) days of actual notice to the operator un-

less a public hearing is held at the site or within such rea-

sonable proximity to the site that any viewings of the site

can be conducted during the course of public hearing.

$780. Action for damages and expenses—Injunctions,

restraining orders or other orders—Jurisdiction—

Relief

A. The Attorney General, upon request of the Depart-

ment, shall institute proceedings to recover any damages

and expense which the Department may have sustained by

reason of the default of the operator. Such proceedings

51b

[APPENDIX)

shall be brought against the operator and surety either in

Oklahoma County or the county in which the violation

occurred,

The Department may request the Attorney General to

institute a civil action for relief, including a permanent or

temporary injunction, restraining order or any other appro-

priate order in the district court for the district in which the

surface coal mining and reclamation operation is located or

in which the permittee thereof has his principal office,

whenever such permittee or his agent:

1. Violates or fails or refuses to comply with any order

or decision issued by the Department under this act;

2. Interferes with, hinders or delays the Department

in carrying out the provisions of this act;

3. Refuses to admit authorized representatives of the

Department to the mine;

4. Refuses to permit inspection of the mine by author-

ized representatives of the Department;

5. Refuses to furnish any information or report re-

quested by the Department in furtherance of the provisions

of this act; or

6. Refuses to permit access to, and copying of, such

records as the Department determines necessary in carry-

ing out the provisions of this act.

B. The court shall have jurisdiction to provide such

relief as may be appropriate. Any relief granted by the

court to enforce an order under paragraph 1 of this section

shall continue in effect until the completion or final termi-

nation of all proceedings for review of such order under

this title, unless the district court granting such relief sets

it aside or modifies it.

§ 781. Land unsuitable for certain types of surface coal

mining operations—Designation—Criteria

A. The Department shall establish a planning process

enabling objective decisions based upon competent and sci-

entifically sound data and information as to which, if any,

52b

(APPENDIX)

land areas of this state are unsuitable for all or certain types

of surface coal mining operations pursuant to the standards

set forth in this section but such designation shall not pre-

vent the mineral exploration pursuant to this act of any

area so designated.

B. Upon petition, the Department shall designate an

area as unsuitable for all or certain types of surface coal

mining operations if the Department determines that recla-

mation pursuant to the requirements of this act is not tech-

nologically and economically feasible.

C. Upon petition, a surface area may be designated un-

suitable for certain types of surface coal mining operations

if such operations will:

1. Be incompatible with existing state or local land

use plans or programs;

2. Affect fragile or historic lands in which such opera-

tions could result in significant damage to important his-

toric, cultural, scientific and esthetic values and natural

systems;

3. Affect renewable resource lands in which such op-

erations could result in a substantial loss or reduction of

long-range productivity of water supply or of food or fiber

products, and such lands to include aquifers and aquifer

recharge areas; or

4. Affect natural hazard lands in which such operations

could substantially endanger life and property, such lands

to include areas subject to frequent flooding and areas of

unstable geology.

D. Determinations of the unsuitability of land for sur-

face coal mining, as provided for in this section, shall be

integrated as closely as possible with present and future

land use planning and regulation processes at the federal,

state and local levels.

E. The requirements of this section shall not apply to

lands on which surface coal mining operations were being

conducted on August 3, 1977, or under a permit issued pur-

suant to this act or the Coal Reclamation Act of 1978, or

53b

[APPENDIX})

where substantial legal and financial commitments in such

operation were in existence prior to January 4, 1977.

§ 782. Petition to designate area as unsuitable for surface

coal mining operations—Hearing—Decision—Impact

statement

A. Any person having an interest which is or may be

adversely affected shall have the right to petition the De-

partment to have an area designated as unsuitable for sur-

face coal mining operations or to have such a designation

terminated. Such a petition shall contain allegations of facts

with supporting evidence which would tend to establish the

allegations. Within ten (10) months after receipt of the

petition the Department shall hold a public hearing in the

locality of the affected area, after appropriate notice and

publication of the date, time and location of such hearing.

After a person having an interest which is or may be ad-

versely affected has filed a petition and before the hearing,

as required by this section, any person may intervene by

filing allegations of facts with supporting evidence which

would tend to establish the allegations. Within sixty (60)

days after such hearing, the Department shall issue and

furnish to the petitioner and any other party to the hear-

ing, a written decision regarding the petition, and the rea-

sons therefor. In the event that all the petitioners stipulate

agreement prior to the requested hearing, and withdraw

their request, such hearing need not be held.

B. Prior to designating any land areas as unsuitable

for surface coal mining operations, the Department shall

prepare a detailed statement on the potential coal resources

of the area, the demand for coal resources, and the impact

of such designation on the environment, the economy and

the supply of coal.

§ 783. Limitations on surface coal mining operations

After August 3, 1977, and subject to valid existing

rights, no surface coal mining operations except those which

existed on August 3, 1977, shall be permitted:

54b

(APPENDIX)

1. Within one hundred (100) feet of the outside right-

of-way line of any public road, except where mine access

roads or haulage roads join such right-of-way line and ex-

cept that the Department may permit such roads to be re-

located or the area affected to lie within one hundred (100)

feet of such road, if after public notice and opportunity

for public hearing in the locality a written finding is made

that the interests of the public and the landowners affected

thereby will be protected.

2. Within three hundred (300) feet from any occupied

dwelling, unless waived by the owner thereof, nor within

three hundred (300) feet of any public building, school,

church, community or institutional building, public park,

or within one hundred (100) feet of a cemetery;

3. Within twenty-five (25) feet plus one and one-half

(1%) times the depth of the surface cut from the property

line of an adjacent property owner, if the surface cut re-

moves and does not replace lateral support, unless there is

written agreement between the operator and the adjacent

property owner; or

4. On any land prohibited by federal law.

§ 784. Cooperative agreements with federal government

The Department shall have the authority to enter into

cooperative agreements with the United States Secretary of

the Interior to provide for departmental regulation of sur-

face coal mining and reclamation operations on federal lands

within Oklahoma.

§ 785. Compliance with act

Every agency, unit, or instrumentality of federal, state

or local government, including any publicly owned utility

or publicly owned corporation of federal, state, or local

government, which proposes to engage in surface coal min-

ing operations which are subject to the requirements of

this act shall comply with the provisions of this act.

55b

[APPENDIX]

§ 786. Review of notices or order or modification, vacation

or termination of notices or orders—Application—In-

vestigation—Hearing—Temporary relief—Suspension

or revocation of permit—Costs

A. A permittee issued a notice or order by the Depart-

ment pursuant to the provisions of this act or any person

having an interest which is or may be adversely affected by

such notice or order or by any modification, vacation or

termination of such notice or order, may apply to the Chief

Mine Inspector for review of the notice or order within

thirty (30) days of receipt thereof or within thirty (30)

days of its modification, vacation or termination. Upon re-

ceipt of such application, the Chief Mine Inspector shall

cause such investigation to be made as it deems appropriate.

Such investigation shall provide an opportunity for a public

hearing, at the request of the applicant or the person hav-

ing an interest which is or may be adversely affected, to

enable the applicant or such person to present information

relating to the issuance and continuance of such notice or

order or the modification, vacation or termination thereof.

The filing of an application for review under this subsection

shall not operate as a stay of any order or notice.

The permittee and other interested persons shall be

given written notice of the time and place of the hearing

at least five (5) days prior thereto. Any such hearing shall

be of record.

B. Upon receiving the report of such investigation, the

Chief Mine Inspector shall make findings of fact, and shall

issue a written decision, incorporating therein an order va-

cating, affirming, modifying or terminating the notice or

order, or the modification, vacation or termination of such

notice or order complained of and incorporate his findings

therein. Where the application for review concerns an or-

der for cessation of surface coal mining and reclamation

operations issued pursuant to the provisions of this title, the

Chief Mine Inspector shall issue the written decision within

thirty (30) days of the receipt of the application for re-

56b

[APPENDIX)

view, unless temporary relief has been granted by the Chief

Mine Inspector pursuant to this section or by the court.

C. Pending completion of the investigation and hear-

ing required by this section, the applicant may file with the

Chief Mine Inspector a written request that the Chief Mine

Inspector grant temporary relief from any notice or order

issued together with a detailed statement giving reasons for

granting such relief. The Chief Mine Inspector shall issue

an order or decision granting or denying such relief expe-

ditiously. Where the applicant requests relief from an order

for cessation of coal mining and reclamation operations, the

order or decision on such a request shall be issued within

five (5) days of its receipt. The Chief Mine Inspector may

grant such relief, under such conditions as it may prescribe,

if:

1. A hearing has been held in the locality of the permit

area on the request for temporary relief in which all parties

were given an opportunity to be heard;

2. The applicant shows that there is substantial likeli-

hood that the findings of the Chief Mine Inspector will be

favorable to him; and

3. Such relief will not adversely affect the health or

safety of the public or cause significant, imminent environ-

mental harm to land, air or water resources.

D. Following the issuance of an order to show cause

as to why a permit should not be suspended or revoked,

the Chief Mine Inspector shall hold a public hearing after

giving written notice of the time, place and date. Any such

hearing shall be of record. Within sixty (60) days follow-

ing the public hearing, the Chief Mine Inspector shall issue

and furnish to the permittee and all other parties to the

hearing a written decision, and the reasons therefor, con-

cerning suspension or revocation of the permit. If the Chief

Mine Inspector revokes the permit, the permittee shall im-

mediately cease surface coal mining operations on the per-

mit area and shall complete reclamation within a period

specified by the Chief Mine Inspector, or the Chief Mine

57b

[APPENDIX]

Inspector shall declare as forfeited the performance bonds

for the operation.

FE. Whenever an order is issued under this section, or

as a result of any administrative proceeding under this act,

at the request of any person, a sum equal to the aggregate

amount of all costs and expenses, including attorney fees,

as determined by the Chief Mine Inspector to have been

reasonably incurred by such person for or in connection

with his participation in such proceedings, including any

judicial review of agency actions, may be assessed against

either party as the court, resulting from judicial review or

the Chief Mine Inspector, resulting from administrative

proceedings, deems proper.

§ 787. Appeal of order or other action

Any order or other action of the Department or the

Chief Mine Inspector shall be appealable when entered, as

provided in Sections 318 et seq. of Title 75 of the Oklahoma

Statutes.

§ 788. Enforcement or protection of interest in water

resources—Replacement of water supply

A. Nothing in this act shall be construed as affecting

in any way the right of any person to enforce or protect,

under applicable law, his interest in water resources af-

fected by a surface coal mining operation.

B. The operator of a surface coal mine shall replace

the water supply of an owner of interest in real property

who obtains all or part of his supply of water for domestic,

agricultural, industrial or other legitimate use from an un-

derground or surface source where such supply has been

affected by contamination, diminution or interruption prox-

imately resulting from such surface coal mine operation.

§ 789. Rules and regulations

The Department shall adopt and promulgate all neces-

sary rules and regulations including rules and regulations

for hearings and appeals, subject to the provisions of this

58b

(APPENDIX)

act and the Administrative Procedures Act,' for the imple-

mentation of this act.

$790. Unconstitutionality of Surface Mining Control and

Reclamation Act of 1977 (P.L. 95-87)

If any provisions of this act are required by the Surface

Mining Control and Reclamation Act of 1977! (P.L. 95-87)

and any section, clause or phrase of that Act on which this

act is based is declared unconstitutional or invalid by a

court having jurisdiction over the State of Oklahoma, the

Department may suspend the enforcement of that provision

of this act for up to twelve (12) months, and shall immed-

iately notify the President Pro Tempore of the Senate, and

the Speaker of the House of Representatives.

$791. Federal rules and regulations—Compliance—

Reimbursement for costs

In compliance with all federal laws, rules and regula-

tions, the Department shall take any such action as it shall

deem necessary to make such compliance. The Department

shall make every effort to obtain full reimbursement from

the Director of the Office of Surface Mining and Reclama-

tion for the costs of performing its duties under this act.

$792. Assistance of state agencies

The Department is authorized to call upon the exper-

tise of all state agencies in the implementation of this act.

All state agencies shall provide any assistance as available

on the request of the Department.

[Footnotes omitted in this printing]

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.