OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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COALEX STATE INQUIRY REPORT - 252

April 1993

Ted Biggs, Esquire

Department of Natural Resources

Division of Reclamation

402 W. Washington Street; Room 295

Indianapolis, Indiana 46204

TOPIC: NOTICES OF VIOLATION (NOVs) 

INQUIRY: Please locate any available material on the following aspects of NOVs:

I. Can an NOV be written for a violation that occurred in the past, was corrected 

prior to writing of the NOV, leaving no remedial action to be taken? Fact situation: 

A permittee sent in surface water monitor reports late but before an NOV was 

written. Can this situation still be considered a violation under the "could 

reasonably be expected to cause environmental harm" theory? Can remedial 

steps be nothing?

II. Do you have to prove environmental harm or wrongful intent to establish a 

violation? Fact situation: Permittee failed to post accurate or adequate 

information on signs.

III. Does OSM's requirement to monitor surface water conflict with EPA's NPDES 

requirements? What is OSM's jurisdiction regarding the interpretation of Clean 

Water Act regulations? Fact situation: An operator's suit alleges that the 

Department of Environmental Management acted improperly in requiring 

permittee to monitor surface water. 

SEARCH RESULTS: Using the COALEX Library and other LEXIS materials, items 

relevant to each of the three inquiries were identified. These are listed below. Copies 

are attached. 

I. NOV WRITTEN FOR AN ABATED VIOLATION.

Research based on the specific fact situation retrieved Interior administrative decisions 

that rule on failure to submit reports, not specifically reports that are late. However, one 

ALJ case was identified where an NOV was issued but no remedial action was required. 

Other materials retrieved discuss the legislative history of enforcement mechanisms and 

the definition of "appropriate enforcement action". Federal cases included here address 

the issue of citizen suits for "wholly past violations" under non-SMCRA statutes.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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LEGISLATIVE HISTORY, H.R. Rep. 218, 95th Cong., 1st Sess. 130 (April 22, 1977, 

H.R. 2). Elements of a mine regulation program. Sections 521(a) (2), (3) & (4).

"The bill establishes three strong but flexible enforcement mechanisms which provide 

inspectors with the tools necessary to respond to the most minor and the most serious 

violations.

. . .

"II. Notice of violation (section 521(a)(3). - Where the Secretary is the regulatory 

authority or Federal inspection is being conducted...and a Federal inspector determines 

that a permittee is violating the act or his permit but that the violation is not causing 

imminent danger to the health or safety of the public or significant, imminent 

environmental harm, then the inspector must issue a notice to the permittee setting a 

time within which to correct the violation....

"The enforcement mechanism of section 521(a)(3) will be utilized by the inspector in the 

great majority of compliance problems. It not only enables the inspector to gain 

immediate control of the problem, but also provides him with essential flexibility to 

appropriately deal with minor as well as major violations."

44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule. 

843.12 Notices of violation.

Enclosed for background.

53 FR 26728, 26733-26735 (JULY 14, 1988). Final rule. Evaluation of state 

responses to ten day notices.

In discussing the definition of "appropriate action" and the rationale for its inclusion in 

the rules, OSM stated that "the rule focuses on the goal of the Act itself - to see that 

violations are corrected. In doing so, the rule allows state discretion in how best to 

accomplish that goal - but only if those means are authorized under the state program." 

OSM DIRECTIVE, Subject No. INE-13, Transmittal No. 166, "Revision of Inspection 

and Enforcement Policy" (Issued April 11, 1983).

The Directive defines "appropriate enforcement action" as "any action required by the 

Act and regulations which will result in the timely abatement of all violations" and 

provides the following policy revision regarding "any violation which does not constitute 

a significant, imminent environmental harm or public danger:

"If a violation is completely abated during an inspection, an NOV should not be issued 

unless failure to issue an NOV would render the applicable regulation unenforceable. 

For example, turning off a pump to cease a discharge which obviously exceeds the 

effluent limits immediately abates the violation, but often there is no practical and/or 

effective remedial action which may be ordered to remedy the effects of the discharge. 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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Similarly, there is often no effective remedial action for improper blasting or topsoil 

contamination although an operator may cease the practice during the inspection. There 

would be no incentive for an operator to comply with regulations if he knew that he 

could avoid receiving an NOV simply by ceasing the violation during the time the 

inspector was on the site.

"Where, however, there is remedial action that can be taken and the operator takes it 

during the inspection, issuing an NOV serves no useful purpose. For example, there is 

no point in issuing an NOV where the operator has one or two perimeter markers 

missing when the inspector arrived but posted them before the inspector left."

DAL-TEX COAL CORP. v OSM, Docket No. CH 9-87-R (1979).

The second condition for which a violation was issued involved the failure "to remove 

the topsoil as a separate operation from areas to be disturbed before conducting any 

drilling for blasting, mining, or other surface disturbance, in violation of 30 CFR 

715.16(a). Said notice of violation provided that the abatement of [the first condition] 

was to be completed by 8:00 a.m. on May 15, 1979, and no abatement of the conditions 

that allegedly constituted a violation of 30 CFR 715.16(a) was ordered since no 

remedial action was required. No cessation order has been entered but a civil penalty of 

$1,700 was assessed on May 4, 1979, for the alleged [first violation] and no civil penalty 

was assessed for the alleged violation of 30 CFR 715.16(a)." The ALJ found the NOV to 

be "in order".

GWALTNEY OF SMITHFIELD, LTD. v CHESAPEAKE BAY FOUNDATION, INC., 484 

US 49 (1987).

The Supreme Court held that section 505(a) of the Clean Water Act did not "confer 

federal jurisdiction over citizens suits for wholly past violations." The Chesapeake Bay 

Foundation had given notice of its intent to sue Gwaltney after the company had 

installed new equipment to correct effluent limits violations of its NPDES permit.

ATLANTIC STATE LEGAL FOUNDATION, INC. v WHITING ROLL-UP DOOR 

MANUFACTURING CORP., 772 F Supp 745 (W.D. NY 1991). 

Here, the defendant came "into compliance" with EPCRA reporting provisions before 

the plaintiff began suit. In distinguishing this case from GWALTNEY, above, the court 

held "that the plaintiff may bring a citizen enforcement action pursuant to Sec. 326(a) to 

seek civil penalties for failure to comply with EPCRA's reporting provisions even though 

the plaintiff alleges no continuing violations at the time it commenced suit." What 

distinguishes the two cases is the language of the relevant statue sections.

Also see: WILLIAMS v LEYBOLD TECHNOLOGIES, INC., 784 F Supp 765 (N.D. Cal 

1992) and ATLANTIC STATES LEGAL FOUNDATION, INC. v BUFFALO ENVELOPE 

CO., 1991 U.S. Dist. LEXIS 12834 (W.D. NY 1991).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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II. NEED TO PROVE ENVIRONMENTAL HARM OR WRONGFUL INTENT; FAILURE 

TO POST SIGNS.

A number of Interior decisions relating to these issues were identified. These appear 

below, organized by issue addressed. 

SIGNS AND BOUNDARY MARKERS:

FELL ENERGY COAL CORP., 2 IBSMA 34, IBSMA 80-11 (1980).

SYLLABUS: 

"The requirement of 30 CFR 715.12(b) that mine and permit identification signs be 

maintained until the release of all bonds is violated if such signs are not present during 

an inspection and the permittee has not exercised reasonable diligence to maintain 

them."

Also see: SRP COAL CO. v OSM, Docket No. CH 2-17-P (1984) and SWEETWATER 

COAL CO. v OSM, Docket No. TU 5-3-P (1985). 

PROOF OF OCCURRENCE OF HARM NOT NECESSARY TO ESTABLISH 

VIOLATION:

AMAX COAL CO., 74 IBLA 48, IBLA 83-614 (1983).

The Board upheld the NOV issued for failure to control discharges from a sedimentation 

pond: "30 CFR 715.17(f) is a preventative measure, and proof of the occurrence of the 

harm it is intended to prevent is not necessary to establish a violation of its 

requirement."

Also see: KAISER STEEL CORP., 2 IBSMA 158, IBSMA 80-26 (1980), ALPINE 

CONSTRUCTION CORP. v OSM, 101 IBLA 128, IBLA 85-847 (1988) and excerpts 

from several other related decisions.

HAYDEN & HAYDEN COAL CO. v OSM, 2 IBSMA 238, IBSMA 80-53 (1980). 

HAYDEN & HAYDEN COAL CO. v OSM, Docket No. NX 0-2-R (1980).

HEADNOTES: 

"When a cessation order indicates that it is being issued both because the condition, 

practice, or violation is causing or can reasonably be expected to cause significant, 

imminent environmental harm and because there has been a failure to abate a violation 

listed in a notice of violation, a finding of either of those grounds is sufficient to sustain 

the cessation order."
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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III. OSM v EPA JURISDICTION.

Cases and regulatory material identified address OSM/EPA jurisdiction issues and 

emphasize that the requirements of both agencies work together.

57 FR 41236 (SEPTEMBER 9, 1992). EPA Final Rule. Notice of final NPDES general 

permits.

"The Agency notes that the imposition of SMCRA requirements does not preclude CWA 

requirements, and that generally such requirements are intended to work together."

AMERICAN MINING CONGRESS v EPA, 965 F 2d 759 (9th Cir 1992).

"Finally, we find no evidence that EPA's storm water rule duplicates, varies or frustrates 

the goals or administration of SMCRA. The rule is fully consistent with EPA's obligation 

to cooperate with the Secretary of the Interior in carrying out the provisions of SMCRA. 

See 30 USC Sec. 1292(b). Hence, we conclude that EPA did not arbitrarily promulgate 

its storm water rule in conflict with SMCRA."

IN RE: SURFACE MINING REGULATION LITIGATION, 627 F 2d 1346 (DC DC May 

2, 1980).

In discussing the interim effluent regulations, the court stated "The Act [SMCRA] gave 

the Secretary authority to regulate in these areas because the Federal Water Pollution 

Control Act was silent in regard to them, but where the Secretary's regulation of surface 

coal mining's hydrologic impact overlaps EPA's, the Act expressly directs that the 

Federal Water Pollution Control Act and its regulatory framework are to control so as to 

afford consistent effluent standards nationwide."

48 FR 43956 (SEPTEMBER 26, 1983). Final rules. Hydrology permitting and 

performance standards.

The excerpts from the Federal Register preamble address OSM/EPA jurisdiction issues.

53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Probable hydrologic 

Consequences Determination.

The excerpt discusses OSM regulations' references to EPA laws and programs.

ATTACHMENTS

A. LEGISLATIVE HISTORY, H.R. Rep. 218, 95th Cong., 1st Sess. 130 (April 22, 

1977, H.R. 2). Elements of a mine regulation program. Sections 521(a) (2), (3) & 

(4). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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B. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final 

Rule. 843.12 Notices of violation. 

C. 53 FR 26728, 26733-26735 (JULY 14, 1988). Final rule. Evaluation of state 

responses to ten day notices. 

D. OSM DIRECTIVE, Subject No. INE-13, Transmittal No. 166, "Revision of 

Inspection and Enforcement Policy" (Issued April 11, 1983). 

E. DAL-TEX COAL CORP. v OSM, Docket No. CH 9-87-R (1979). 

F. GWALTNEY OF SMITHFIELD, LTD. v CHESAPEAKE BAY FOUNDATION, 

INC., 484 US 49 (1987). 

G. ATLANTIC STATE LEGAL FOUNDATION, INC. v WHITING ROLL-UP DOOR 

MANUFACTURING CORP., 772 F Supp 745 (W.D. NY 1991). 

H. WILLIAMS v LEYBOLD TECHNOLOGIES, INC., 784 F Supp 765 (N.D. Cal 

1992). 

I. ATLANTIC STATES LEGAL FOUNDATION, INC. v BUFFALO ENVELOPE CO., 

1991 U.S. Dist. LEXIS 12834 (W.D. NY 1991). 

J. FELL ENERGY COAL CORP., 2 IBSMA 34, IBSMA 80-11 (1980). 

K. SRP COAL CO. v OSM, Docket No. CH 2-17-P (1984). 

L. SWEETWATER COAL CO. v OSM, Docket No. TU 5-3-P (1985). 

M. AMAX COAL CO., 74 IBLA 48, IBLA 83-614 (1983). 

N. KAISER STEEL CORP., 2 IBSMA 158, IBSMA 80-26 (1980). 

O. ALPINE CONSTRUCTION CORP. v OSM, 101 IBLA 128, IBLA 85-847 (1988). 

P. Excerpts from several other related decisions. 

Q. HAYDEN & HAYDEN COAL CO. v OSM, 2 IBSMA 238, IBSMA 80-53 (1980). 

R. HAYDEN & HAYDEN COAL CO. v OSM, Docket No. NX 0-2-R (1980). 

S. 57 FR 41236 (SEPTEMBER 9, 1992). EPA Final Rule. Notice of final NPDES 

general permits. 

T. AMERICAN MINING CONGRESS v EPA, 965 F 2d 759 (9th Cir 1992). 

U. IN RE: SURFACE MINING REGULATION LITIGATION, 627 F 2d 1346 (DC DC 

May 2, 1980). 

V. 48 FR 43956 (SEPTEMBER 26, 1983). Final rules. Hydrology permitting and 

performance standards. 

W. 53 FR 36394 (SEPTEMBER 19, 1988). Final rule. Probable hydrologic 

Consequences Determination.