COALEX State Inquiry Report - 183
June, 1991
James Ellerhoff
Division of Soil Conservation
Wallace Building, 2nd Floor
East 9th Street & Grand Avenue
Des Moines, Iowa 50319
TOPIC: UNWARRANTED FAILURE TO COMPLY: DEFINITION OF "INDIFFERENCE", "LACK OF
DILIGENCE" AND "LACK OF REASONABLE CARE" [Includes COALEX Reports Nos. 141 & 172]
INQUIRY: Are there any administrative decisions which define the terms above as used in the
definition of "unwarranted failure to comply", 30 CFR 843.5 [initial regulations 30 CFR
722.16(b)(3)]? The same phrases are found as part of the definition of "negligence", 30 CFR
845.13(b)(3)(ii)(B) [initial regulations 30 CFR 723.12(d)].
SEARCH RESULTS: The COALEX Library and existing COALEX Reports were used to conduct this
research. The relevant OHA decisions identified attempt to define terms at issue in determining
the validity of an NOV or CO, or when addressing the appropriateness of the points assigned for
negligence. Copies of the decisions listed below are attached. Also included are COALEX Report -
172, "Inability to comply" (March, 1991) and COALEX Report - 141, "Reduction of mandatory civil
penalty" (May, 1990) [See, in particular, PEABODY COAL CO. v OSM, 90 IBLA 186, IBLA 84-766
(January 28, 1986)].
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OSM v RWR DEVELOPMENT CO. AND DEBCON COAL CO., CH 0-2-A (March 17, 1981).
In finding that there was "no pattern of violation to warrant either suspension or revocation" of
the mining permit, the ALJ used BLACK'S LAW DICTIONARY to define the phrases at issue:
"There is a wide chasm between an act of indifference and lack of reasonable care. There is a
difference between the lack of diligence in 'allowing a violation to occur' and a failure to abate a
violation due to indifference or lack of reasonable care."
"Indifference denotes disinterest or unconcern which, under some circumstances, may amount to
willful conduct although passive as opposed to active willful disregard."
"Reasonable care is such a degree of care, precaution or diligence as may fairly and properly be
expected or required, having regard to the nature of the action, or of the subject matter, and the
circumstances surrounding the transaction."
"Lack of reasonable care usually equates with ordinary negligence and in this case it should be
defined according to the nature of the industry of surface mining and those who work therein."
LONE STAR STEEL CO. v OSM, 98 IBLA 56, IBLA 86-101 (June 8, 1987).
"OSMRE may properly issue a notice of violation to the permittee of a surface coal mining
operation in the reclamation phase under an interim program permit when it finds cattle grazing"
on the permit area without permission of the regulatory authority. "The permittee's diligent efforts
to keep cattle from entering the area are factors to be considered in mitigation of the amount of a
civil penalty assessed", they are not relevant to whether or not there was a violation of the
regulations. "Inability to comply may only be considered in mitigation of the amount of the civil
penalty."
LONE STAR STEEL CO. v OSM, 107 IBLA 134, IBLA 87-284 (February 6, 1989).
As part of the discussion of the civil penalty assessment, the Board reduced the number of
points for negligence, finding that "the regulation is designed to recognize degrees of fault in
causation, since it provides that causes for violations ranging from inadvertence, through
negligence, to intentional conduct are possible. Because each category of fault allows for
assessment of a varying number of points, each category is designed to allow the exercise of
discretion by the Department. Thus, if no negligence can be said to exist, but a violation
nevertheless has occurred, no points at all are assessed."
The Board's calculation of points indicated that less than 30 points should be assessed "under
the agreed circumstances" (see LONE STAR, above) and the penalty was waived.
COLLINS MINING CO. v OSM, 103 IBLA 25, IBLA 87-327 (June 23, 1988).
The Board found that Collins "was less than diligent in attempting to address the State NOV"
and "negligent in failing to abate the violation cited by OSMRE. The record clearly shows an
operator who desired to deal with the violation at its own pace and not according to the schedule
dictated by either the State or OSMRE."
NATIONAL MINES CORP. v OSM, 104 IBLA 331, IBLA 87-57 (September 23, 1988).
In determining civil penalty amounts, the Board concluded "that petitioner's failure to prevent
the contribution of additional suspended solids to the river was 'due to indifference, lack of
diligence, or lack of reasonable care.' There is no evidence of a greater degree of fault than
negligence. Here, petitioner was attempting to address one problem and through inattention it
created another."
FARRELL-COOPER MINING CO. v OSM, 111 IBLA 115, IBLA 87-417 (September 28, 1989).
The Board affirmed the ALJ's finding that Farrell-Cooper had disturbed 35 acres of land prior to
establishing sedimentation controls and that this action was taken prior to the approval of its
permit revision and the ALJ's assessment of 12 points. The Board disagreed with the ALJ's ruling
that Farrell-Cooper's negligence was "insignificant":
"If the negligence were, in fact, 'insignificant', less than 12 points would be appropriate. In this
case, Farrell-Cooper was negligent. It should not have cleared the area in question until approval
of its mine plan revision. Failure to do so exhibited a lack of reasonable care for which 12 points
are properly assigned."
CF&I STEEL CORP. v OSM, DV 3-1-P (December 8, 1983).
The ALJ assigned 15 points (out of a possible 25) for negligence finding that "the petitioner's
'negligence' was aggravated by the failure to begin corrective measure in a timely manner...."
ATTACHMENTS
A. COALEX STATE INQUIRY REPORT - 172, "Inability to comply" (March, 1991).
A. 43 FR 41662 (SEPTEMBER 18, 1978). Proposed rules. Part 843 Federal
Enforcement. [Excerpts.]
B. 44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble -- Final Rule.
Part 843 Federal Enforcement. Section 843.18 Inability to comply. [Excerpts.]
C. 46 FR 58464 (DECEMBER 1, 1981). Proposed rules. Inspection, Enforcement and
Civil Penalty Assessments. [Excerpts.]
D. 47 FR 35620 (AUGUST 16, 1982). Final rules. Inspection and Enforcement; Civil
Penalty Assessments. [Excerpts.]
E. SURFACE MINING REGULATION LITIGATION, 452 F Supp 327 (D DC May 3,
1978).
F. VERNON R. PAUL v COMMONWEALTH OF PENN., DEPT. OF ENVIRON.
RESOURCES (DER), Docket No. 84-290-G, 1985 EHB 791 (1985).
G. DAVID EXCAVATING CO., INC. v OSM, Docket Nos. IN 1-23-R, IN 1-7-P, IN 1-11-P, IN 2-12-P, IN 1-13-P (1983).
H. MARTIN MINING CORP. v OSM, Docket No. IN 1-9-R (1983).
I. GLENN COAL CO. v OSM, Docket No. CH 0-279-R (1984).
J. GARLAND COAL AND MINING CO. v OSM, Docket Nos. TU 4-43-R, IBLA 85-106
(1986).
K. CLEAR CREEK COAL CO. v OSM, 101 IBLA 6, IBLA 85-406 (1988).
L. CLEAR CREEK COAL CO. v OSM, Docket Nos. NX 1-49-R, NX 1-59-R (1985).
M. CARBON FUEL CO., INC. v OSM, Docket No. NX 9-116-R (1980).
N. W.E. AND JONAH WARREN COAL CO., INC. v OSM, Docket No. NX 0-246-R
(1984).
O. LONE STAR STEEL CO. v OSM, 98 IBLA 56, IBLA 86-101 (1987).
P. THE OHIO VALLEY COMPANY CONSTRUCTION DIV., INC. v OSM, Docket No. IN
9-13-R (1979).
Q. DAL-TEX COAL CORP. v OSM, Docket No. CH 9-87-R (1979).
R. GREATER PARDEE, INC. v OSM, Docket No. CH 0-284-R (1981).
S. SHAWNEE COAL CO. v OSM, Docket No. IN 2-2-R (1981).
T. COAL ENERGY, INC. v OSM, 105 IBLA 385, IBLA 87-190 (1988).
U. MARTIN v COMMONWEALTH OF PENN., DEPT. OF ENVIRONMENTAL RESOURCES
(DER), 120 Pa Commw 269, 549 A 2d 675 (Pa Commw Ct 1988).
V. ALPINE CONSTRUCTION CO. v OSM, 114 IBLA 232, IBLA 88-527 (April 27, 1990).
W. ALPINE CONSTRUCTION CO. v OSM, Docket No. TU 7-55-R (1988).
X. TURNER BORS., INC. v OSM, Docket Nos. TU 6-20-R, TU 6-52-R, TU 6-81-R
(1987).
Y. TURNER BROS., INC. (TBI) v OSM, Docket Nos. TU 4-7-R, TU 4-11-R (1985).
Z. TURNER BROS., INC. v OSM, 101 IBLA 84, IBLA 85-440 (1988).
B. COALEX STATE INQUIRY REPORT - 141, "Reduction of the mandatory civil penalty" (May,
1990).
A. SAVE OUR CUMBERLAND MOUNTAINS, INC. (SOCM) v WATT, 550 F Supp 979
(DDC 1982).
B. SAVE OUR CUMBERLAND MOUNTAINS, INC. v CLARK, 725 F2d 1434 (DC Cir
1984).
C. Subsequent history: Auto-Cite and Shepard's Citations.
D. PEABODY COAL CO. v OSM, 90 IBLA 186, IBLA 84-766 (1986).
E. GRAYS KNOB COAL CO. v OSM, 98 IBLA 171, IBLA 85-364 (1987).
F. L.W. OVERLY COAL CO. v OSM, 103 IBLA 356, IBLA 88-39 (1988).
G. APEX CO., INC., 4 IBSMA 19, IBSMA 81-53 (1982).
H. GRAHAM BROTHERS COAL CO. v OSM, Docket No. CH 3-14-R (1984).
I. MCNABB COAL CO., INC. v OSM, Docket Nos. TU 4-23-P,
TU 4-24-P, TU 5-24-P, TU 4-37-R, TU 4-38-R, TU 5-1-R (1986).
C. OSM v RWR DEVELOPMENT CO. AND DEBCON COAL CO., CH 0-2-A (March 17, 1981).
D. LONE STAR STEEL CO. v OSM, 98 IBLA 56, IBLA 86-101 (June 8, 1987).
E. LONE STAR STEEL CO. v OSM, 107 IBLA 134, IBLA 87-284 (February 6, 1989).
F. COLLINS MINING CO. v OSM, 103 IBLA 25, IBLA 87-327 (June 23, 1988).
G. NATIONAL MINES CORP. v OSM, 104 IBLA 331, IBLA 87-57 (September 23, 1988).
H. FARRELL-COOPER MINING CO. v OSM, 111 IBLA 115, IBLA 87-417 (September 28,
1989).
I. CF&I STEEL CORP. v OSM, DV 3-1-P (December 8, 1983).
Research conducted by: Joyce Zweben Scall
