OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 1 of 7

COALEX STATE INQUIRY REPORT - 235

December 1992

Lowell P. Braxton

Associate Director, Mining

Utah Department of Natural Resources

Division of Oil, Gas and Mining

355 West North Temple

3 Triad Center, Suite 350

Salt Lake City, Utah 84180-1203

TOPIC: DEFINITION OF "MATERIAL DAMAGE" RE: HYDROLOGIC BALANCE 

OUTSIDE THE PERMIT AREA

INQUIRY: 30 CFR 780.21 (g) and (h) talk about "material damage" to the hydrologic balance 

outside the permit area. Are there cases that define "material damage", specify remedial 

obligations or substantiate a basis for denial of material damage? 

SEARCH RESULTS: Using COALEX and LEXIS, administrative decisions, legislative 

history and regulatory history material were identified addressing relevant aspects of the 

"material damage" issue. Some of the material identified discusses "damage" in more general 

terms - the impacts of mining both on and off the permit area. Copies of the information listed 

below are attached.

REMEDIAL OBLIGATIONS 

SHAMROCK COAL CO. v OSM, Docket Nos. NX 89-66-R, NX 89-67-R (1990).

The terms of this Consent Decision include Shamrock's agreement "to submit a permit 

modification in which it will undertake to comply with the regulation to identify all the probable 

hydrologic consequences" and "to conduct a hydrologic monitoring program...to be incorporated 

in a supplement" to Shamrock's permit. The addition of the hydrologic monitoring program was 

in response to OSM's "allegation of failure to minimize damage to the hydrologic balance."

APPLICATION REVIEW/PERMIT CONDITIONS

JOHN J. BAGNATO v COMMONWEALTH OF PENNSYLVANIA, DEPT. OF 

ENVIRONMENTAL RESOURCES (DER) AND MARQUISE MINING CORP., 

PERMITTEE, 1992 Pa Envirn LEXIS 20, Pa EHB Docket No. 90-358-MJ (1992).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 2 of 7

Bagnato asserted that DER failed to consider the cumulative impact of all mining in the area, the 

probable impact of the Marquise mining operation and its effect on hydrology and water 

availability. The Pennsylvania Environmental Hearing Board (the Board) found that DER "had 

considered all of the parameters of law" in evaluating the probable hydrologic consequences of 

Marquise's mining operation, including review of the permit application, preparation on a Mine 

Site Assessment, "an study of the hydrologic regime of the area", etc., eliminating certain areas 

from the permit area because of the probability of acid mine drainage. DER was not required to 

follow all aspects of its Program Guidance Manual; its use was for guidance purposes only. 

J.C. BRUSH v DER AND RAMPSIDE COLLIERIES, INC., PERMITTEE, 1990 Pa 

Envirn LEXIS 181, Pa EHB Docket No. 87-492-MJ (1990). 

The Board ruled that "An assessment of the probable cumulative impact of all coal mining in the 

area on the hydrologic balance was made by DER, and the activities proposed under the 

application have been designed to prevent damage to the hydrologic balance within and outside 

the permit area". Brush failed to prove "that the permit in question was improperly issued or that 

DER failed to consider the conditions of the area in granting the permit." DER's testimony 

demonstrated that Rampside's application met the requirements of the Pennsylvania Code.

RITH ENERGY, INC. v OSM, 111 IBLA 239, IBLA 89-393 (1989).

"HEADNOTES: "OSMRE properly denies an application for permit revision when the applicant 

does not provide sufficient operational data to demonstrate that reclamation...can be 

accomplished under the permit plan, or that the proposed operation has been designed to prevent 

material damage to the hydrologic balance outside the permit area."

DONALD B. PETERSON AND MRS. B.C. PETERSON v OSM; FRANK STEBLY v 

OSM, Docket Nos. DV 6-2-PR, DV 6-3-PR (1986).

The ALJ ruled that Peterson failed to provide sufficient evidence to prove that the hydrologic 

data relating to Pacific Coast Coal Co.'s application was incomplete or inaccurate or that OSM 

had not considered possible hydrologic impacts on the Petersons' well. Stebly's complaint was 

dismissed for lack of standing.

FRANK STEBLY v OSM, 109 IBLA 242, IBLA 87-782 (1989).

"HEADNOTES: A determination that approval of a permit for a coal preparation plant will not 

have a significant impact on groundwater, based on an environmental assessment, will be 

affirmed on appeal if the record establishes that a careful review of environmental problems has 

been undertaken; relevant environmental concerns have been identified; and the final 

determination is reasonable in light of the environmental analysis."

PEABODY COAL CO. v OSM, 123 IBLA 195, IBLA 92-286 (1992).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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Despite OSM's reevaluation of the CHIA and the conclusion that Peabody's mining operation 

would not cause material damage to the hydrologic balance outside the permit area nor would the 

impoundments have a negative impact on downstream users, OSM issued a special permit 

condition requiring the dewatering of the impoundments. The Board ruled that the permit 

condition was invalid: OSM's principal reason for imposing the condition was to protect the 

water rights claims of the downstream users, claims which were being adjudicated in the state 

courts.

MINIMIZE DISTURBANCE TO HYDROLOGIC BALANCE

MUSKINGUM MINING CO. v OSM, IBLA 90-171, Docket No. CH 89-1-R (1991). 

MUSKINGUM MINING CO. v OSM, DELBERT LACY, INTERVENOR, 113 IBLA 352, 

IBLA 90-171 (1990). DELBERT R. LACY v MUSKINGUM MINING CO., INC. AND 

OHIO DEPT. OF NATURAL RESOURCES, DIV. OF RECLAMATION, 1990 Ohio App 

LEXIS 287, Case No CA 89-15 (Ohio Ct App 1990).

The ALJ affirmed the issuance of the NOV, finding that OSM presented "ample evidence" to 

prove that Muskingum "failed to conduct mining and reclamation operations so as to minimize 

disturbance to the prevailing hydrologic balance both in the permit area and in adjacent areas 

[Lacy's property]".

Earlier decisions ruled on collateral estoppel and the Ohio Reclamation Board of Review's 

finding that Muskingum's operation caused offsite damage but that the damage was "nonremedial".

J & M COAL CO. v OSM, 122 IBLA 90, IBLA 89-504 (1992).

The Board found the conditions at the related mine sites threatened the prevailing hydrologic 

balance. J & M performed remedial action to prevent surface runoff from flowing offsite. Due to 

the topography, OSM allowed the use of straw bales and filter fabric fences as an alternative to 

the construction of sedimentation ponds.

BANNER ENERGY CORP. OF INDIANA v OSM, Docket No. NX 4-5-P (1984).

The ALJ affirmed the NOV which was issued because of toxic mine drainage disturbing the 

hydrologic balance on and off the mine site. Although the water quality had improved since the 

last study, taken after the end of previous shaft mining operations, Banner was required to meet 

the specific water quality specifications of SMCRA.

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

"Alpine's efforts to abate the violation, no matter what technology was used, were not enough to 

correct the cited conditions and did not relieve the company of its continuing responsibility under 

SMCRA to minimize disturbances to the prevailing hydrologic balance." 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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See also:

BROOKS RUN COAL CO. v OSM, Docket Nos. CH 0-362-R, CH 1-23-P (1981).

AVANTI MINING CO., INC. v OSM, Docket No. CH 0-344-P (1981). AVANTI MINING 

CO., INC. v OSM, 4 IBSMA 101, IBSMA 81-62 (1982).

AMAX COAL CO. v OSM, Docket Nos. IN 1-15-P, IN 1-28-P (1983). AMAX COAL CO. v 

OSM, Docket Nos. CH 0-3-6-P (1984).,/

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

LEGISLATIVE HISTORY

Several excerpts from congressional reports and other legislative history materials that discuss 

"material damage", hydrologic impacts, House-Senate compromises on language and related 

issues are attached. The quotation included below does not include the phrase "material damage", 

however, it provides a good overview of Congress' concern about the impact of mining on an 

area.

H.R. REP. No. 218, 95th Cong., 1st Sess. 109 (H.R.2 April 22, 1977). Elements of a mine 

regulation program; Mining impacts on hydrologic balance. 

"Surface coal mining operations can have a significant impact on the hydrologic balance of the 

mined area and also its environs. The hydrologic balance is the equilibrium established between 

the ground and surface waters of an area between the recharge and discharge of water to and 

from that system. Some of the measurable indicators of such an equilibrium are: Flow patterns of 

ground water within aquifers; the quantity of surface water as measured by the volume rate and 

duration of flow in streams; the erosion, transport, and deposition of sediment by surface runoff 

and stream flow; the quality of both ground and surface water including both suspended and 

dissolved materials; and the interrelationship between ground and surface waters. The hydrologic 

balance of an area is a complex relationship maintained by a number of factors. The impacts of 

mining on any one of these factors can trigger changes throughout the system.

"The total prevention of adverse hydrologic effects from mining is impossible and thus the bill 

sets attainable standards to protect the hydrologic balance if impacted areas within the limits of 

feasibility. For most critical areas uncertain fragile hydrologic settings, the bill sets standards that 

are imperative to begin to assure that adverse impacts to the hydrologic balance are not 

irreparable. It is not intended by such minimum standards that these measures will be considered 

wholly sufficient to meet the objectives of 'minimizing disturbance to the prevailing hydrologic 

balance.' It is anticipated that the State regulatory authority will strengthen such provisions and 

require whatever additional measures are necessary to meet local conditions."

See also:
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 5 of 7

H.R. REP. No 189, 94th Cong., 1st Sess. 78 (Major Provisions May 2, 1975).

H.R. REP. No. 218, 95th Cong., 1st Sess. pp 65 (Major Modifications) & 172 (Section-bySection Analysis) (April 22, 1977).

H.R. REP. No. 493, 95th Cong., 1st Sess. 104 (Overview of Conference Decisions July 12, 

1977).

123 CONG. REC. H7582 (Daily ed. July 21, 1977). Implementation of Public Law 95-87: 

Hearings before the Senate Subcommittee on Public Lands and Resources of the Committee on 

Energy and Natural Resources, 95th Cong., 2nd Sess. 39 (April 24, 1978) (statement of Walter 

N. Heine, Director, OSM).

FEDERAL REGISTER PREAMBLES

These Federal Register preambles are attached for background:

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

from:

1. Section 701.5 Definitions 

2. Part 785 Permits for special categories of mining 

3. Part 786 Approval or disapproval of permit applications 

4. Part 816 Performance standards 

5. Part 822 Alluvial valley floors

48 FR 29802 (JUNE 28, 1983). Final rule. Alluvial valley floors.

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

standards.

52 FR 4860 (FEBRUARY 17, 1987). Final rule. Subsidence control. [Excerpt]

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

determination.

54 FR 9724 (MARCH 7, 1989). Final rule. Requirements for permits for special categories of 

mining.

ATTACHMENTS

A. SHAMROCK COAL CO. v OSM, Docket Nos. NX 89-66-R, NX 89-67-R (1990). 

B. JOHN J. BAGNATO v COMMONWEALTH OF PENNSYLVANIA, DEPT. OF 

ENVIRONMENTAL RESOURCES (DER) AND MARQUISE MINING CORP., 

PERMITTEE, 1992 Pa Envirn LEXIS 20, Pa EHB Docket No. 90-358-MJ (1992). 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall Page 6 of 7

C. J.C. BRUSH v DER AND RAMPSIDE COLLIERIES, INC., PERMITTEE, 1990 Pa 

Envirn LEXIS 181, Pa EHB Docket No. 87-492-MJ (1990). 

D. RITH ENERGY, INC. v OSM, 111 IBLA 239, IBLA 89-393 (1989). 

E. DONALD B. PETERSON AND MRS. B.C. PETERSON v OSM; FRANK STEBLY v 

OSM, Docket Nos. DV 6-2-PR, DV 6-3-PR (1986). 

F. FRANK STEBLY v OSM, 109 IBLA 242, IBLA 87-782 (1989). 

G. PEABODY COAL CO. v OSM, 123 IBLA 195, IBLA 92-286 (1992). 

H. MUSKINGUM MINING CO. v OSM, IBLA 90-171, Docket No. CH 89-1-R (1991). 

I. MUSKINGUM MINING CO. v OSM, DELBERT LACY, INTERVENOR, 113 IBLA 

352, IBLA 90-171 (1990). 

J. DELBERT R. LACY v MUSKINGUM MINING CO., INC. AND OHIO DEPT. OF 

NATURAL RESOURCES, DIV. OF RECLAMATION, 1990 Ohio App LEXIS 287, 

Case No CA 89-15 (Ohio Ct App 1990). 

K. J & M COAL CO. v OSM, 122 IBLA 90, IBLA 89-504 (1992). 

L. BANNER ENERGY CORP. OF INDIANA v OSM, Docket No. NX 4-5-P (1984). 

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

N. BROOKS RUN COAL CO. v OSM, Docket Nos. CH 0-362-R, CH 1-23-P (1981). 

O. AVANTI MINING CO., INC. v OSM, Docket No. CH 0-344-P (1981). 

P. AVANTI MINING CO., INC. v OSM, 4 IBSMA 101, IBSMA 81-62 (1982). 

Q. AMAX COAL CO. v OSM, Docket Nos. IN 1-15-P, IN 1-28-P (1983). 

R. AMAX COAL CO. v OSM, Docket Nos. CH 0-3-6-P (1984). 

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

T. H.R. REP. No. 218, 95th Cong., 1st Sess. 109 (H.R.2 April 22, 1977). Elements of a mine 

regulation program; Mining impacts on hydrologic balance. 

U. H.R. REP. No 189, 94th Cong., 1st Sess. 78 (Major Provisions May 2, 1975). 

V. H.R. REP. No. 218, 95th Cong., 1st Sess. pp 65 (Major Modifications) & 172 (Sectionby-Section Analysis) (April 22, 1977). 

W. H.R. REP. No. 493, 95th Cong., 1st Sess 104 (Overview of Conference Decisions July 

12, 1977). 

X. 123 CONG. REC. H7582 (Daily ed. July 21, 1977). 

Y. Implementation of Public Law 95-87: HEARINGS before the Senate Subcommittee on 

Public Lands and Resources of the Committee on Energy and Natural Resources, 95th 

Cong., 2nd Sess. 39 (April 24, 1978) (statement of Walter N. Heine, Director, OSM). 

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

Excerpts from: 

1. Section 701.5 Definitions 

2. Part 785 Permits for special categories of mining 

3. Part 786 Approval or disapproval of permit applications 

4. Part 816 Performance standards 

5. Part 822 Alluvial valley floors

AA. 48 FR 29802 (JUNE 28, 1983). Final rule. Alluvial valley floors. 

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

performance standards. 

CC. 52 FR 4860 (FEBRUARY 17, 1987). Final rule. Subsidence control. [Excerpt] 
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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

consequences determination. 

EE.54 FR 9724 (MARCH 7, 1989). Final rule. Requirements for permits for special 

categories of mining.