OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 3

COALEX STATE INQUIRY REPORT - 336

December 1997

Bob Herron

Division of Mined Land Reclamation

PO Drawer 900

Big Stone Gap, Virginia 24219

TOPIC: MODIFICATION OF A TERMINATED NOV 

INQUIRY: What restrictions at law have been found to apply to an agency's power to 

terminate, modify or vacate a terminated NOV? May an agency unilaterally modify an 

NOV which has been terminated or vacated without having to go through a formal or 

informal hearing? Please locate any relevant materials.

SEARCH RESULTS: In researching this issue using the COALEX Library and other 

LEXIS libraries, a number of Interior administrative decisions were identified that contain 

relevant findings. These decisions are listed below in chronological order. Copies are 

attached.

DRUMMOND COAL CO., 3 IBSMA 100, 1981 IBLA LEXIS 916, IBSMA 81-14 (1981).

Headnotes: "The remedial action required in a notice of violation may be modified in the 

document terminating the notice if the termination clearly shows in writing the remedial 

action accepted by OSM as an alternative abatement."

UNIVERSAL COAL CO., 3 IBSMA 218, 88 I.D. 672, 1981 I.D. LEXIS 88 (1981).

In holding that a fourth modification of an NOV was not effective, the Board stated: 

"Since abatement previously ordered had been completed in this case, OSM might have 

issued a new notice of violation requiring the same abatement as modification 4. OSM 

did not have authority, however, to extend the abatement period in this notice of 

violation beyond 90 days."

T & T DARBY COAL CO. v OSM, Docket No. NX 2-8-R (1982).

Darby contested NOVs issued for failing to perform work required as a result of an 

earlier Consent Decision. In the Consent Decision, the earlier NOVs were "affirmed as 

validly issued", no civil penalties were assessed "provided that within a specified period 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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of time...the applicant would perform certain remedial operations and provided further 

that in the event said remedial operations were not performed within that period of time, 

the OSM could issue new notices of violation which would not constitute res judicata...."

HARRY SMITH CONSTRUCTION CO. v OSM, 78 IBLA 27, 1983 IBLA LEXIS 6, IBLA 

83-621 & 82-23 (1983).

The portion of the ALJ's decision changing a cessation order, issued for mining without 

a permit, into a notice of violation was reversed and the cessation order vacated. The 

Board found that while 30 U.S.C. sec. 1275(b)(Supp. IV 1980) "authorizes the Secretary 

to modify a notice of violation or cessation order", the exercise "of this authority is 

predicated on findings of fact after a hearing. In this case the motion to modify the 

cessation order was made in OSM's posthearing brief, could not be responded to by 

Smith because posthearing briefs were ordered simultaneously, and was granted 

without any rationale by the Administrative Law Judge's decision. We cannot condone 

the granting of such relief without notice to the parties at the hearing and without the 

appropriate findings of fact and conclusions of law."

P&K COAL CO., LTD. v OSM, 98 IBLA 26, 1987 IBLA LEXIS 5, IBLA 85-940 (1987).

OSM attempted to modify its original NOV while P&K's application for review was 

pending before the Hearing Division. The Board did "not deny that OSMRE has the 

authority to modify an NOV pursuant to section 521(a)(5) of SMCRA, 30 U.S.C. sec. 

1271(a)(5)(1982)." However, "any OSMRE modification of an NOV when an application 

for review of the original NOV is filed timely would have ‘no force or effect' until 

approved by the Administrative Law Judge, or until jurisdiction over the subject matter is 

returned to OSMRE."

Subsequent to the modification of the original NOV, the ALJ dismissed P&K's challenge 

to that NOV. OSM's modification of the NOV became effective 30 days after the receipt 

of the ALJ's order. "When the modified NOV became effective P&K had the right to file 

an application for review [of] OSMRE's modified NOV.... In a sense, OSMRE's 

modification of its original NOV created a new cause of action under SMCRA which had 

not been finally adjudicated in any prior administrative proceeding. P&K's right to apply 

for review of the modified NOV gave P&K an opportunity to reopen the question of 

OSMRE's authority to issue the underlying NOV."

PINEVILLE PROPERTIES CORP. v OSM, 104 IBLA 258, 1988 IBLA LEXIS 36, IBLA 

85-735. PINEVILLE PROPERTIES CORP. v OSM, Docket No. NX 2-6-R (1985).

At the end of a 90-day period, an OSM inspector modified an existing NOV and ordered 

corrective action. A month later, the inspector issued a CO. Pineville argued that the 

inspector should have vacated the original NOV and issued a new one setting forth 

proper abatement and timetable. OSM replied that the inspector had "issued a 

modification after the end of the 90 day abatement period that clarified the options 
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available to the Appellant to abate the violation and avoid the issuance of a cessation 

order."

The Board cite to UNIVERSAL COAL, above, stating that even "if we were to rule that 

[the inspector's] modification was of no effect under Universal, on the basis that it 

imposed new and different corrective measures after the 90-day period for abatement 

had expired, we would nevertheless have to uphold the CO, since Pineville had taken 

no action to abate the violation cited in the [original] NOV." Since Pineville had taken no 

action to abate the violation at the end of the 90-day period, the inspector should have 

issued the CO rather than modifying the original NOV.

J & M COAL CO. v OSM, 122 IBLA 90, IBLA 89-504 (1992).

This decision is included because of its discussion of termination versus vacation of an 

NOV: 

"[T]here is a difference between termination of an NOV, which would occur when the 

conditions cited have been mitigated..., and vacating an NOV, which would amount to 

an admission that it was not properly issued."

ATTACHMENTS

A. DRUMMOND COAL CO., 3 IBSMA 100, 1981 IBLA LEXIS 916, IBSMA 81-14 

(1981). 

B. UNIVERSAL COAL CO., 3 IBSMA 218, 88 I.D. 672, 1981 I.D. LEXIS 88 (1981). 

C. T & T DARBY COAL CO. v OSM, Docket No. NX 2-8-R (1982). 

D. HARRY SMITH CONSTRUCTION CO. v OSM, 78 IBLA 27, 1983 IBLA LEXIS 6, 

IBLA 83-621 & 82-23 (1983). 

E. P&K COAL CO., LTD. v OSM, 98 IBLA 26, 1987 IBLA LEXIS 5, IBLA 85-940 

(1987). 

F. PINEVILLE PROPERTIES CORP. v OSM, 104 IBLA 258, 1988 IBLA LEXIS 36, 

IBLA 85-735. 

G. PINEVILLE PROPERTIES CORP. v OSM, Docket No. NX 2-6-R (1985). 

H. J & M COAL CO. v OSM, 122 IBLA 90, IBLA 89-504 (1992).