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Office of the Attorney General

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TELEPHONE (6j-5)7 4t-349L

October I4,20I9

Mike Castle
Lexington Field Office Director
U.S. Department of the Interior
Office of Surface Mining Reclamation and Enforcement
Knoxville Field Office
710 Locust Street
Knoxville, TN 37902

RE: Triple H Coal, LLC, Surface Mine 24, OSMRE Permit Application No. 3265

Dear Mr. Castle:

I am writing on behalf of the State of Tennessee regarding Triple H Coal, LLC's permit
application, OSMRE No. 3265, Surface Mine 2A, in which it seeks to engage in surface coal
mining operations on a portion of the North Cumberland Wildlife Management Area (NCWMA).
This permit application encompasses areas that were designated by the U.S. Department of the
Interior on December 7,2016, as unsuitable for surface coal mining under 30 U.S.C. ç l272,based
on the State of Tennessee's petition (LUM petition) for the same. Although the State of Tennessee
recently quitclaimed approximately 150 acres of surface rights in the NCWMA that overlap with
the LUM petition area to Triple H in March20l9, the State does not believe that conveyance
supersedes or negates the LUM designation in the NCWMA. And the State does not believe that
the quitclaim entitles Triple H to a presumptive permit to conduct any nature of surface coal mining
operations thereon.

As you know, the U.S. Department of the Interior designated 74,968 acres of ridgelines in
the NCWMA as unsuitable for surface mining through its Record of Decision (ROD) in December
2016, based on the State's LUM petition. Unless specified otherwise by the ROD, surface coal
mining operations are, therefore, prohibited in the designated NCWMA. See 30 U.S.C. $
I260(b)(4) (prohibiting issuance of a surface mining permit unless the regulatory authority finds
that the area proposed for mining is not designated as unsuitable for surface coal mining under 30
U.S.C. ç 1272). As the ROD and Statement of Reasons provides: 'olJnder this decision, except for
access or haul roads, and proposalsto remine, OSMRE would not accept and process applications
Mike Castle
October 14,2019
Page 2

for proposed surface coal mining operations in designated ridgelines in the NCWMA." See ROD
at 23 (December 7,2016) (emphasis added); see also 30 C.F.R. $ 769.19 (once an area "is
designated as unsuitable for all or certain types of surface coal mining operations, any permit or
lease shall be conditioned in a manner so as to limit or prohibit surface coal mining operations on
the designated areas in accordance with the designation").

Triple H's permit application seems to be based at least in part on the theory that the March
5,2019 quitclaim deed between the State of Tennessee and Triple H entitles it to seek a permit for
surface coal mining on a portion of the designated NCV/MA regardless of restrictions imposed by
the LUM designation. See Letter from Phillip R. Boggs, Mark V Mining and Engineering, Inc.,
to V/illiam R. Winters, OSMRE, dated March 19,2019, with attached March 5,2019 quitclaim
deed and updated pages of the permit application

The March 5,2019 quitclaim deed merely conveys to Triple H an interest in a portion of
the Surface Estate, as authorized by the Asset Purchase and Sale Agreement dated July 5, 1994
(between Tennessee Mining, Inc. and Champion International Corporation), and as amended by
the Second Amendment to the Asset Purchase and Sale Agreement dated January 25,1996. The
amended Asset Purchase and Sale Agreement allots up to 11,250 surface acres to all the current
mineral owners in and around the NCWMA, including Triple H, to exercise their repurchase option
for surface mining operations. But these repurchase rights are qualified, both by the amended Asset
Purchase and Sale Agreement, which specifies the acres of the 11,250 surface acres to be
repurchased that can be "virgin" mined, and by the 2016 LUM designation in the NC'WMA and
SMCRA's overarching express prohibition on surface mining activities not authorizedby the ROD
in designated areas, which overrides such rights. The State has not changed its position on the pre-
eminence of the LUM designation for the NCV/MA vis à vis these surface repurchase rights. The
State does not believe that this quitclaim deed, or any future conveyance of surface repurchase
rights, automatically permits surface mining not authorizedby the ROD in any part of the LLIM-
designated NCWMA.

Thus, it is the State's view that the March 5,2019 quitclaim deed does not convey to Triple
H the automatic right to surface mine anlnrthere by any method on the 150.43 estimated total
surface acres conveyed. Furthermore, nothing in the quitclaim deed requires the State, as grantor,
to acquiesce in the issuance of new mining permits for mining activities not authorized by the
ROD within the area covered by the LUM designation. In any future transfer, the State will ensure
that this position is clearly documented.

IfOSMRE proceeds with processing Triple H's permit application, the State requests,
pursuant to 30 U.S.C. S 1263(b) and 30 C.F.R. $ 773.6(c), an informal conference on the matter
or a joint public hearing at the appropriate time.
Mike Castle
October 14,2019
Page 3

In conclusion, our position is that the quitclaim deed of surface rights by the Statç of
Tennessee did not supersede or negate the restrictions on mining contained in the LUM

Thank you for your consideration.

Sincerely yours,

( c2
ElizabelhP. McCarter
Senior Assistant Attorney General
(615) 532-2582 direct dial