OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning

Page 1 of 2

COALEX STATE INQUIRY REPORT - 77

December 5, 1986

Lisa Merrill, Esquire

Office of General Counsel

Natural Resources and Environmental Protection Cabinet

5th Floor, Capital Plaza Tower

Frankfort, Kentucky 40601

TOPIC: DEFINITION OF "PATTEN OF VIOLATIONS"

INQUIRY: Please locate any Interior Board of Land Appeals cases which discuss and define 

the phrase "pattern of violations".

SEARCH RESULTS: Sec. 521(a)(4) of the Surface Mining Control and Reclamation Act of 

1977 (SMCRA) provides that a permit may be suspended or revoked if the Secretary or his 

representative determines that at "pattern of violations" of any requirements of the Act or any 

permit exists or has existed. This provision of the Act is implemented in the federal regulations 

found at 30 CFR Sec. 843.13.

The legislative and regulatory history of the phrase "pattern of violations" was discussed in 

COALEX STATE INQUIRY REPORT - 42. In addition, a search of the ALJ and IBLA files was 

conducted to locate administrative decisions on this issue.

____________________________________________________________________________

No decisions were located which specifically defined "pattern of violations"; however, two cases 

which discuss the phrase were identified. In HARLAN-CUMBERLAND COAL CO. v OSM, 

No. NX 5-15-P (June 4, 1986), a cessation order was issued against the operator after an OSM 

inspector responded to citizen complaints that black waste water was being pumped into a nearby 

stream. In challenging the issuance of the cessation order, the operator acknowledged that the 

state regulatory authority had previously cited the company for discharging black water into the 

stream. However, the operator provided correspondence which disclosed that the state did not 

regard those occurrences as being a "pattern of violations". The Administrative Law Judge ruled 

that OSM had properly found a pattern of violations, noting:

"[P]etitioner's argument that, despite the showing that it had improperly discharged black, 

substandard mine drainage into Clover Fork on three other occasions..., such conduct should not 

be viewed as a pattern of violations, has a hollow ring. Because the pertinent State regulatory 

authority did not regard petitioner's prior practices a constituting a pattern of violations, that 

determination is not binding upon OSM nor does it relieve petitioner of liability under the Act or 

implementing regulations. If the commission of an offense that has been demonstrated to have 

occurred, as here, on four occasions over a 10-month period is not to be regarded as constituting 

a pattern of violations, it is difficult to perceive a factual scenario which would qualify for such a 

categorization." (Id.) 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Research conducted by: S. Michele Manning

Page 2 of 2

REBEL COAL CO.; ISLAND CREEK COAL CO., 4 IBSMA 69 (1982) dealt with the attempt 

of an environmental group to intervene in a proceeding initiated by OSM with an order to show 

cause why a permit should not be suspended or revoked as the consequence of an alleged pattern 

of violations. While the case did not discuss the proceedings surrounding the show cause order, 

the Board noted that the companies had been cited for seven violations on one permit over a 

period of time.

ATTACHMENTS

A. COALEX STATE INQUIRY REPORT - 42 and attachments. 

B. HARLAN-CUMBERLAND COAL CO. v OSM, No. NX 5-15-P (June 4, 1986). 

C. REBEL COAL CO.; ISLAND CREEK COAL CO., 4 IBSMA 69 (1982).