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.
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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.
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. 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).
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."
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).
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.
Research conducted by: Joyce Zweben Scall
