OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 5

COALEX STATE INQUIRY REPORT - 175

April 1991

Anthony J. Duplechin

Office of Conservation

P.O. Box 94275

Baton Rouge, Louisiana 70804-9275 

TOPIC: 400 YEAR PRECIPITATION EVENT: LIABILITIES AND REMEDIES FOR OFFSITE DAMAGE 

INQUIRY: Several years ago, a 400 year storm event caused the breach of a sedimentation 

pond resulting in offsite damage. Are there any EPA or state regulations that would establish 

potential liability against the operator or provide the landowner whose property was damaged 

with some remedy? Are there any Interior or other administrative cases which address these 

issues? 

SEARCH RESULTS: Research consisted of conducting a limited telephone survey and 

searching the COALEX Library and other materials available in LEXIS. The results of the 

survey and a list of the administrative and state court decisions identified follow. Copies of the 

decisions are attached. Federal Register preambles of the Environmental Protection Agency 

(EPA) and the Office of Surface Mining (OSM) regulations on effluent limitations are included 

for background.

SURVEY RESULTS

Maryland, Virginia and Pennsylvania were contacted. The summary of their comments follows:

1. When rainfall exceeds certain limits, operators are exempt from effluent limitations 

provided they were in compliance with relevant performance standards prior to the 

precipitation event.

2. After the event, operators must rebuild failed structures promptly.

3. Regarding compensation to the landowner: 

a. A landowner may be able to file against an operator's offsite damage liability 

insurance; or 

b. The regulatory authority may ask the operator to provide compensation to the 

landowner even though no NOV has been issued and the request is unenforceable. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 5

ADMINISTRATIVE DECISIONS - INTERIOR 

P & N COAL CO., INC. v OSM, Docket No. CH 9-60-R (1979).

P & N received an NOV for exceeding effluent discharge limitations. They claimed they were 

unable to repair the breach of the diversion ditch because of the extreme weather conditions that 

existed at that time; no authority was cited for extreme weather being an excuse for noncompliance. Mining was not halted by the weather. The ALJ sustained the issuance of the NOV 

but stated that weather was an issue that could be raised at a penalty assessment conference.

PACIFIC COAST COAL CO., INC. v OSM, Docket Nos. DV 7-1-R, DV 7-7-R, DV 7-1-P 

(1988). [Pacific Coast's IBLA appeal was dismissed for failure to file a brief.]

The ALJ sustained the NOV, finding that while the evidence showed that a major precipitation 

event in excess of a 10-year, 24-hour event had occurred, the length of time between the 

precipitation event and the date of the violation cast doubt on the assertion that the elevated level 

of total suspended solids resulted from the storm. The alternate precipitation limitations did not 

apply. 

THE PITTSBURG & MIDWAY COAL MINING CO. (P&M) v OSM, Docket No. 88-4-R 

(1988).

P&M began reconstruction on its berm at the beginning of the rainy season and left it in a "nonconforming state" through the rainy season which resulted in the cited erosion. P&M claimed it 

was proceeding with reconstruction in a timely manner. The ALJ sustained the NOV, noting that 

the previous year when the berm was damaged by a heavy rainstorm early in the rainy season, 

P&M was able to repair the damage during the rainy season, despite muddy conditions. 

LONE STAR STEEL CO. v OSM, 98 IBLA 56, IBLA 86-101 (1987).

Lone Star was diligent in trying to keep the landowner's cattle from entering and grazing on the 

area being reclaimed. The Board ruled that Lone Star's efforts to ensure compliance, which 

ultimately failed, did not relieve it from compliance with the regulations: An NOV or CO may 

not be vacated because of an inability to comply; inability to comply may be considered in 

mitigation of the amount of civil penalty.

ALPINE CONSTRUCTION CO. v OSM, 114 IBLA 232, IBLA 88-527 (1990).

"Where OSMRE presents uncontroverted evidence showing the essential facts establishing that 

the operator failed to maintain sedimentation pond inlets and to stabilize rills and gullies at a 

mine site...and the operator admits the existence of the deteriorating conditions, but seeks to 

excuse its failure to comply based on its use of the best technology currently available in the face 

of severe weather conditions which assertedly prevented compliance, an NOV...will be upheld. 

The regulations at 30 CFR 722.17 require that an NOV may not be vacated because of an 

operator's inability to comply."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 3 of 5

ADMINISTRATIVE DECISIONS - PENNSYLVANIA 

BETHLEHEM MINES CORP., 1973 [Pennsylvania] Environmental Hearing Board 35, 

Docket No. 72-170 (1973).

The Board dismissed the Department of Environmental Resources' complaint alleging that 

Bethlehem knowingly and willfully allowed a discharge of coal fines from its settling pond into 

the local creek: The freezing weather which ruptured pipes throughout the treatment facility over 

a weekend when most of the personnel were not at work was unanticipated; there were no 

regulations that required the pumping of water from silt slurry ponds to be supervised 

continuously. The Board found that Bethlehem had acted in good faith, notified the Bureau of 

Water Quality within a reasonable time and taken all reasonable measures to correct the pollution 

problem.

STATE CASE LAW

LACY v MUSKINGUM MINING CO., INC. AND OHIO DEPT. OF NATURAL 

RESOURCES, 1990 Ohio App LEXIS 287 (Ohio Ct App 1990). 

The Hearing Officer and the Ohio Reclamation Board of Review found that Muskingum Mining 

had caused the damage to Lacy's lands but determined that the NOV was "non-remedial": 

Muskingum's failure to properly maintain the sedimentation ponds, compounded by a heavy 

rainfall event and a wet spring, caused the offsite damage; however, because of the topography, 

environmental harm resulting from remedial efforts would outweigh any environmental benefits. 

The court reversed these decisions, instructing the Board of Review to state the duty of the 

Division of Reclamation in enforcing remedial measures "in the case of proven damage to an 

adjacent landowner...."

REGULATORY HISTORY 

Complete copies of Federal Register preambles to proposed and final rules regulating effluent 

limitation promulgated by the EPA and OSM from January, 1981 through the most recent notice, 

October, 1985, are attached. The relevant points of the most recent notices are summarized 

below.

47 FR 45382 (OCTOBER 13, 1982). EPA Final rule. 40 CFR Part 434 Coal Mining Point 

Source Category; Effluent Limitations Guidelines for Existing Sources and Standards of 

Performance for New Sources. 

For a precipitation even greater than a 10-year, 24-hour event, only a pH of 6 to 9 must be met.

47 FR 47216 (OCTOBER 22, 1982). OSM Final rule. 30 CFR Parts 816 and 817. Water 

Quality Standards and Effluent Limitations.

OSM adopted the effluent regulations promulgated by EPA under 40 CFR Part 434. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 4 of 5

48 FR 44032 (SEPTEMBER 26, 1983). OSM Final rule. 30 CFR Parts 816 and 817. 

Siltation Structures.

Sedimentation ponds must be designed, constructed and maintained to contain or treat a 10-year, 

24-hour precipitation event.

50 FR 41296 (OCTOBER 9, 1985). EPA Final rule. 40 CFR Part 434 Coal Mining Point 

Source Category; Effluent Limitations Guidelines and New Source Performance 

Standards.

EPA classified the alternate storm limits into 8 specified categories, giving operators and the 

permit authority a clear understanding of which limits apply in particular situations. A pH of 6 to 

9 is required at all times.

ATTACHMENTS

A. P & N COAL CO., INC. v OSM, Docket No. CH 9-60-R (1979). 

B. PACIFIC COAST COAL CO., INC. v OSM, Docket Nos. DV 7-1-R, DV 7-7-R, DV 7-

1-P (1988). 

C. TGE PITTSBURG & MIDWAY COAL MINING CO. v OSM, Docket No. 88-4-R 

(1988). 

D. LONE STAR STEEL CO. v OSM, 98 IBLA 56, IBLA 86-101 (1987). 

E. ALPINE CONSTRUCTION CO. v OSM, 114 IBLA 232, IBLA 88-527 (1990). 

F. BETHLEHEM MINES CORP., 1973 [Pennsylvania] Environmental Hearing Board 35, 

Docket No. 72-170 (1973). 

G. LACY v MUSKINGUM MINING CO., INC. AND OHIO DEPT. OF NATURAL 

RESOURCES, 1990 Ohio App LEXIS 287 (Ohio Ct App 1990). 

H. 50 FR 41296 (OCTOBER 9, 1985). EPA Final rule. 40 CFR Part 434 Coal Mining Point 

Source Category; Effluent Limitations Guidelines and New Source Performance 

Standards. 

I. 49 FR 19240 (MAY 4, 1984). EPA Proposed rule. 40 CFR Part 434 Coal Mining Point 

Source Category; Effluent Limitations Guidelines and New Source Performance 

Standards. 

J. 48 FR 44032 (SEPTEMBER 26, 1983). OSM Final rule. 30 CFR Parts 816 and 817. 

Siltation Structures. 

K. 47 FR 47216 (OCTOBER 22, 1982). OSM Final rule. 30 CFR Parts 816 and 817. Water 

Quality Standards and Effluent Limitations. 

L. 47 FR 45382 (OCTOBER 13, 1982). EPA Final rule. 40 CFR Part 434 Coal Mining 

Point Source Category; Effluent Limitations Guidelines for Existing Sources and 

Standards of Performance for New Sources. [Includes corrections to the final rule 

published on November 1, 1983.] 

M. 46 FR 34784 (JULY 2, 1981). OSM Proposed rules. 30 CFR Parts 715, 717, 816 and 

817. Permanent and Interim Regulatory Programs; Effluent Limitations and 

Sedimentation Pond Design Criteria. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 5 of 5

N. 46 FR 28873 (MAY 29, 1981). EPA Changes to proposed rulemaking. 40 CFR Part 434 

Coal Mining Point Source Category; Effluent Limitations Guidelines for Existing 

Sources and Standards of Performance for New Sources.

O. 46 FR 3136 (JANUARY 13, 1981). EPA Proposed regulation. 40 CFR Part 434 Coal 

Mining Point Source Category; Effluent Limitations Guidelines for Existing Sources, 

Standards of Performance for New Sources and Pretreatment Standards.