U· S· DEPARTMENT OF THE ana..:.tuu" Su'b,ltet Number: 

~ INi-4 OFFICE OF SURFACE MINING 

RECLAMATION AND ENFORCEMENT , .. , ,. 

r6u;p.'l 601 

DIRECTIVES SYSTEM [Date: March 1, 1990 

'PJnH ,.., 'f 41 H a hi 1 it-v for ·~7~ I/ A/ .f -u,::;- ~. -' Civil Penalty 

Approval:~(/ L:i~JM /IV- 1.1fi!!1- Director 

•v v , , / 4his ' / 

1. pyrpose. Directive establishes the Office of surface 

Mining Reclamation and Enforcement's (OSM's) procedures for 

informing corporate officials (as defined below) that they will 

or may be liable, under certain circumstances, for an Individual 

Civil Penalty (ICP). The purpose of this Directive is to 

establish agency enforcement procedures and not to change any 

substantive standards or individual rights. 

2. Summary of Changes. This Directive explains agency policy 

and prescribes procedures for Field Offices to implement 

provisions of section 518(f) of the Surface Mining Control and 

Reclamation Act (SMCRA). This Directive has been modified and 

reorganized to clarify changes in policy and procedures 

concerning the issuance of Notices of Potential Liability for an 

Individual Civil Penalty, to reflect provisions of the Settlement 

Agreement between ~av~ our CUmbe~lAnd MQuntains, Ins;;,, et, Al,, 

and Manuel ~ujAn. J;t •• ~ecret.Arv of t,he Ynit~d StAtes D~~a;[tment 

of the Interior, ~t aJ.., dated January 24, 1990. (See section 7 

below, "Effect on Other Documents.") 

3. Definitions. 

a. Corporate OfficiaJ.(s} means the president and the 

directors of a corporation and any other officer or 

line responsibility with respect to a mine site. 

agent who has 

b. Individual Civil Penalty means a penalty as provided 

under section 518(f) of SMCRA, which states that "[w]henever a 

corporate permittee violates a condition of a permit • • • or 

fails or refuses to comply with any order incorporated in a final 

decision issued by the Secretary under this Act • • • any director, officer, or agent of such corporation who willfully and 

knowingly authorized, ordered, or carried out such violation, 

failure, or refusal shall be subject to the same civil penalties, 

fines, and imprisonment that may be imposed upon a person under 

subsections (a) and (e) of this section." 

c. Knowingly means that an individual knew, or had reason 

to know, in authorizing, ordering, or carrying out an act or 

omission on the part or a corporate permittee that such act or 

omission constituted a violation, failure, or refusal. See 30 

CFR 724.5 and 846.5. 
d. Line responsibility witb respect to a mine site means 

authority or demonstrated control over the conduct of surface 

coal mining operations, including the ability to directly cause 

the abatement of violations, and any level of supervisory responsibility over a person having such ability. (For example, 

the mine superintendent and each official in the superintendent's 

"chain of command," up to and including the chief executive 

officer, would have line responsibility with respect to the mine 

site.) 

e. Willfullv means that an individual acted (1) either 

intentionally, voluntarily, or consciously, and (2) with 

intentional disregard or plain indifference to legal requirements 

in authorizing, ordering, or carrying out a corporate permittee's action or omission that constituted a violation, failure, or 

refusal. See 30 CFR 724.5 and 846.5. 

4. Policy/Procedures. 

a. Policy. It is agency policy to ensure that: 

(1) For any Failure to Abate cessation Order (FTACO) 

or Imminent Harm Cessation Order (IHCO) issued after the date of 

this Directive with respect to a site on which coal extraction 

had not been completed as of the time of issuance of the FTACO or 

IHCO, OSM uses reasonable efforts to serve on every corporate 

official a copy of the FTACO or IHCO and a "Notice of Potential 

Liability for an Individual Civil Penalty." The Notice shall 

inform the corporate official that an ICP will be proposed 

against the corporate official unless: 

(a) Abatement occurs within 30 days after the 

issuance of the FTACO or within 30 days after the abatement date 

set for the IHCO, whichever is applicable: or 

(b) Within 45 days after the issuance of the 

FTACO or within 45 days after the abatement date set for the 

IHCO, whichever is applicable, the corporate official provides 

documentation that he or she has taken all reasonable steps 

within his or her authority to bring about abatement of the 

violation. 

(2) For any FTACO or IHCO issued after the date of 

this Directive with respect to a site on which coal extraction 

had been completed as of the time of issuance of the FTACO or 

IHCO, OSM uses reasonable efforts to serve a copy of the FTACO or 

IHCO and a "Notice of Potential Liability for an Individual civil 

Penalty" (as described in paragraph 4.a.(1)) on the president or 

chief executive officer of the corporate permittee issued the 

FTACO or IHCO. Service of the copy of the FTACO or IHCO and the 

Notice on other directors, officers, or agents of the corporation 

is discretionary and should be decided on a case-by-case basis 

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: 

: depending on the evidence of the particular person's 

responsibility for the violation, failure, or refusal to comply 

at issue. 

b. Procedures. 

(1) Whenever an inspector issues an FTACO or IHCO to a 

corporate permittee after the date of this Directive with respect 

to a site on which coal extraction had not been completed as of 

the time of issuance of the FTACO or IHCO, the Field Office shall 

promptly conduct appropriate research to identify and locate all 

corporate officials for service. Such research shall include (a) 

a review of the permit application, the inspection and · enforcement files, and the Applicant/Violator System (AVS) to 

identify the president of the corporate permittee, all directors, 

and all officers and agents who have line responsibility with 

respect to the mine site, and (b) such additional research (e.g., by checking with the u.s. Postal Service) as is appropriate to 

determine the current address for each such corporate official. 

Following such research, a copy of the FTACO or IHCO, together 

with a completed "Notice of Potential Liability for an Individual 

Civil Penalty" (see Appendix 1), shall be served upon each 

corporate official. Service shall be by hand delivery or 

certified mail (restricted delivery), in accordance with the 

procedures set forth in Directive INE-8 for the service of 

Notices of Violation and Cessation Orders, or in accordance with 

the terms of any service contract OSM may have in place at the 

time. 

(2) Whenever an inspector issues an FTACO or an IHCO 

to a corporate permittee after the date of this Directive with 

respect to a site on which coal extraction had been completed as 

of the time of issuance of the FTACO or IHCO, the inspector shall 

make reasonable efforts to serve a copy of the FTACO or IHCO, 

together with a completed "Notice of Potential Liability for an 

Individual Civil Penalty" (see Appendix 1), on the president or 

chief executive officer of the corporation and on any other 

officer, director, or agent who has demonstrated control over the 

daily conduct of the mining operation. Service shall be by hand 

delivery or certified mail (restricted delivery), in accordance 

with the procedures set forth in Directive INE-8 for the service 

of Notices of Violation and Cessation Orders, or in accordance 

with the terms of any service contract OSM may have in place at 

the time. 

(3) Whenever an FTACO or IHCO issued to a corporation 

is forwarded by a Field Office for assessment of a civil penalty 

or for alternative enforcement pursuant to 30 CFR 845.15(b)(2), 

copies of the documentation provided to the corporate official 

under paragraph 4.b.(l) or 4.b.(2) of this Directive and related 

service information shall be included. 

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5. Reporting Requirements. Copies of the "Notice of Potential 

Liability for an Individual civil Penalty" shall be included with the 

FTACO or IHCO referral packages transmitted for assessment and 

alternative enforcement. 

6. References. 

a. Section 518(f) of SMCRA. 

b. 30 CFR 845.~5(b)(2) and 30 CFR Part 846. 

c. Directive INE-8, "Service of Notices of Violation and Cessation 

Orders," dated May 19, 1983. 

d. Directive INE-30, "Alternative Enforcement Referrals for 

Criminal. Penalties, Individual Civil Penalties, and Injunctive Relief," 

dated March ~. 1990. 

e. Directive INE-40, "Individual Civil Penalty Assessments," dated 

March 1, 1990. 

f. Settlement Agreement Between Save Our cumberland Mountains. 

Inc .. et al •. and Manuel L9ian. Jr .. Secretary of the United States 

Department of the Interior. et al., dated January 24, 1990. 

7. Effects on Other Directives. Supersedes Directive INE-4, "Notice 

of Potential Liability for an Individual Civil Penalty," dated 

February 16, 1988. 

8. Effective Date. Upon issuance. 

9. Contact. Chief, Branch of Inspection and Enforcement 

(202)' 343-4550. 

10. List of Appendices. 

Appendix 1: Notice ·Of Potential Liability for an Individual 

Civil Penalty Assessment Under Section 518(f) of the Surface Mining 

Control and Reclamation Act of 1977, 30 u.s.c. 1268(f). 

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.. Appendix 1 

NOTICE OF POTENTIAL LIABILITY FOR AN INDIVIDUAL CIVIL PENALTY 

ASSESSMENT UNDER SECTION 518(f) OF THE SURFACE MINING CONTROL 

AND RECLAMATION ACT OF 1977, 30 U.S.C. 1268(f) 

Name of Corporate Official Title of Corporate Official 

Name of Corporate Permittee Citation Number 

Permit Number 

The Office of surface Mining Reclamation and Enforcement (OSM), 

pursuant to Section 518(f) of the surface Mining Control and 

Reclamation Act of 1977 (SMCRA), 30 u.s.c. 1268(f), may assess an 

Individual Civil Penalty against a director, officer, or agent of a 

corporate permittee which has violated a condition of its permit or 

fails to refuses to comply with a cessation order. section 518(f), in 

pertinent part, provides that: 

[A)ny director, officer, or agent of such 

corporation who willfully and knowingly 

authorized, ordered, or carried out such 

violation, failure, or refusal shall be 

subject to the same civil penalties that 

may be imposed upon a person under (Section 

518(a)] •••• 

As (insert individual's title) of the above-referenced corporate 

permittee, you are hereby notified that the corporation has been 

issued a cessation order (insert number), a copy of which is attached. 

You will be subject to assessment of an Individual Civil Penalty if 

you willfully and knowingly fail or refuse to take all reasonable 

steps within your legal authority to bring about abatement of the 

violation(s) by the ~orporate permittee (insert one of the following:) 

(for FTACO's) within 30 days after the issuance of the cessation order (~) [for IHC0 1 s) within 30 days after the abatement date set forth in 

the cessation order. 

In the event that any violation cited in the cessation order is not 

abated, you may provide, for OSM's consideration, written 

documentation that demonstrates that you took all reasonable steps 

within your authority to bring about abatement. Such documentation 

shall be provided (insert one of the following:) [for FTACO's) within 

45 days after issuance of the cessation order (~) (for IHCO's] within 

45 days of the abatement date set forth in the cessation order. 

Assessment of an Individual Civil Penalty does not affect OSM's 
authority to assess civil penalties or take other enforcement actions 

against the corporate permittee or other directors, officers, or 

agents as well. 

This notice does not constitute an assessment, but rather advises you 

that you are potentially liable for an Individual Civil Penalty. 

Because a Notice of Potential Liability for an Individual Civil 

Penalty Assessment is neither a notice of violation nor a cessation 

order under section 521 of SMCRA, nor a modification, vacation, or 

termination of such notice or order, no administrative review by the 

Office of Hearings and Appeals is provided for under the provisions of 

43 CFR 4.1160. However, in the event that a Notice of Proposed Assessment for an Individual Civil Penalty is issued, you may then 

appeal under the provisions 30 CFR 846.17, 30 CFR 846.18, and 43 CFR 

4.1300 ~ ~ 

If you have any questions concerning this matter, you may contact: 

OSM ID Number Authorized Representative Telephone Number 

(Detach along perforated line and retain for OSM records.) 

Signature of Individual Served nate served 

I certify that a copy of this notice was served upon (insert 

individual's name) or hisjher authorized agent. 

Print name of server Signature of server 

Attachment(s)