OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 4

COALEX STATE INQUIRY REPORT - 282

April 1994

Michelle J. Matlock, Esquire

Department of Natural Resources

Division of Reclamation

402 W. Washington Street

Indianapolis, Indiana 46204

TOPIC: DEFINITION OF "DAMAGE" IN PHRASE: "PROTECT OFFSITE AREAS 

FROM SLIDES AND DAMAGE"

INQUIRY: Indiana wrote an NOV for drainage control causing damage off the permitted 

site, citing the Indiana equivalent of SMCRA 515(a)(21) [I.C. 13-4.1-8-1(21)] which 

contains the phrase indicated above. Are there any materials covering the definition of 

"damage" as used in this code section? 

SEARCH RESULTS: The COALEX Library and other materials available in LEXIS 

were used to conduct the research. Few items were identified that mentioned "damage" 

as contained in 515(a)(21) and the corresponding regulations, 30 CFR 816.99/817.99. 

The material retrieved did not specify what the offsite damages were; however, the 

material indicated that whatever damage occurred was caused by slides. Discussions of 

drainage control and other mentions of offsite damage were found in materials 

addressing hydrologic impacts, sedimentation controls, effluent limitations and 

discharges into waterways.

The relevant legislative history, regulatory history and an Interior administrative case are 

discussed below. Copies are attached. Also included is an ALJ decision which 

addresses the issue of an NOV containing an improper citation to the regulations.

LEGISLATIVE HISTORY

Search of offsite damage in the Reports, Hearings and other Congressional documents 

comprising the legislative history of SMCRA yielded two relevant items:

S. REP. No. 402, 93rd Cong., 1st Sess., 63 [S. 425 "Surface Mining Reclamation 

Act of 1973", Senate Committee on Interior and Insular Affairs (September 21, 

1973)]. SECTION-BY-SECTION ANALYSIS.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

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"Offsite areas must be protected from damages caused by slides which might occur 

during mining and reclamation operations. Furthermore, all waste accumulations and 

damages must be contained within the permit area. This provision not only serves to 

protect landowners not associated with the mining, it also insures that the permit will 

encompass an area which covers the entire mining activity, including the storage or 

disposal of spoil and waste. Therefore, the entire activity will be subject to all of the 

terms of the permit. The Committee intends that permits be limited to the minimum area 

necessary to accommodate the operation."

H. REP. No. 218, 95th Cong., 1st Sess., 80 [H.R. 2 "Surface Mining Control and 

Reclamation Act of 1976", House Committee on Interior and Insular Affairs (April 

22, 1977)]. NEED.

"In the humid East, retention of overburden material on the bench, avoiding all 

unnecessary placement of unconsolidated material on steep slopes, would contribute 

most significantly to the elimination of slides, sedimentation, siltation and other offsite 

effects which threaten downstream areas. The basic concept embodying this principle is 

returning the mining area to its approximate original contour."

Additional excerpts relate "damage" to 

1. hydrologic impacts 

2. insurance requirements 

3. spoil placement

REGULATORY HISTORY

44 FR 14902 (MARCH 13, 1979). Preamble to the final rules. Sec. 816.99 Slides and 

other damage. 

"This Section establishes requirements necessary to prevent damage caused by slides 

and erosion. It further specifies those steps that must be taken any time a slide occurs 

which may have a potential adverse affect on life, property, health, safety, or the 

environment in or near the permit area."

ADMINISTRATIVE DECISIONS

A review of the Administrative Law Judge (ALJ) and Interior Board of Land Appeals 

(IBLA) decisions that discuss offsite damage or drainage control indicated that the 

majority of the NOVs written cite performance standard sections 30 CFR 816.41-816.49 

(or 30 CFR 817.41-817.49 or the interim rule equivalents), the hydrologic balance 

requirements relating to sedimentation controls, siltation structures, discharges into 

waterways, etc. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 4

One ALJ decision was identified where the operator was cited for violating the state 

equivalent of 30 CFR 816.99, the rule implementing SMCRA 515(a)(21). The NOV 

stated that blasted material had traveled along the ground, off the permit area. In 

accordance with regulations, OSM was informed of the slide and damage. The 

corrections plan included stabilizing rocks on the hillside. See TURNER BROS., INC. v 

OSM, Docket Nos. TU 6-22-R, TU 6-65-R (1987), attached.

ISLAND CREEK COAL CO., 2 IBSMA 125, IBSMA 80-23 (1980). 

SYLLABUS. "A notice of violation containing an improper citation to the regulations is 

reasonably specific where the narrative description of the alleged violation accurately 

notifies the permittee of the nature of the alleged violation." 

ATTACHMENTS

1. IC 13-4.1-8-1(21). 

2. S. REP. No. 402, 93rd Cong., 1st Sess. 63 [S. 425 "Surface Mining Reclamation 

Act of 1973", Senate Comm. on Interior and Insular Affairs (September 21, 

1973)]. SECTION-BY-SECTION ANALYSIS. 

3. H. REP. No. 218, 95th Cong., 1st Sess. 80 [H.R. 2 "Surface Mining Control and 

Reclamation Act of 1976", House Comm. on Interior and Insular Affairs (April 22, 

1977)]. NEED. 

4. S. REP. No. 1162, 92nd Cong., 2nd Sess. 32 [S. 630 "Surface Mining 

Reclamation Act of 1972", Senate Comm. on Interior and Insular Affairs 

(September 18, 1972)]. II. BACKGROUND -- FROM THE LITERATURE. 

5. "Surface Mining Control and Reclamation Act of 1977": HEARINGS before the 

Subcomm. on Energy and the Environment of the House Comm. on Interior and 

Insular Affairs, 95th Cong., 1st Sess. 341 (February 18 & March 4, 1977) 

(statement from the Environmental Policy Institute). 

6. S. REP. No. 28, 94th Cong., 1st Sess. 212 [S. 7 "Surface Mining Control and 

Reclamation Act of 1975", Senate Comm. on Interior and Insular Affairs (March 

5, 1975)]. SECTION-BY-SECTION ANALYSIS. 

7. H. REP. No. 1072, 93rd Cong., 2nd Sess. 244 [H.R. 11500 "Surface Mining 

Control and Reclamation Act of 1974", House Comm. on Interior and Insular 

Affairs (May 30, 1974)]. ADDITIONAL, DISSENTING, SEPARATE, AND 

SUPPLEMENTAL VIEWS. 

8. H. REP. No. 1072, 93rd Cong., 2nd Sess. 81 [H.R. 11500 "Surface Mining 

Control and Reclamation Act of 1974", House Comm. on Interior and Insular 

Affairs (May 30, 1974)]. ELEMENTS OF MINE REGULATION PROGRAM. 

9. H. REP. 218, 95th Cong., 1st Sess. 158 [H.R. 2 "Surface Mining Control and 

Reclamation Act of 1976", House Comm. on Interior and Insular Affairs (April 22, 

1977)]. COMMITTEE RECOMMENDATION. 

10.44 FR 14902 (MARCH 13, 1979). Preamble to the final rules. Sec. 816.99 Slides 

and other damage. 

11.TURNER BROS., INC. v OSM, Docket Nos. TU 6-22-R, TU 6-65-R (1987). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 4 of 4

12.ISLAND CREEK COAL CO., 2 IBSMA 125, IBSMA 80-23 (1980).