COALEX REPORT 282

	Coalex Report 282

This is the Office of Surface Mining's library of COALEX Research Reports. COALEX is a database of mining and reclamation information, including the Surface Mining Law and regulations, maintained in LEXIS-NEXIS -- a commercial, on-line research service. These reports have been compiled under a cooperative agreement between the Office of Surface Mining and the Interstate Mining Compact Commission, which represents most U.S. coal producing states. The following report includes an analysis of a specific issue requested by a state regulatory authority with responsibility for carrying out the Surface Mining Law. Copies of the research reports and attachments are available to the public, upon request. For additional information, or to obtain copies of the listed attachments, contact Ron Tarquinio by phone at (202) 208-2882 or by e-mail at rtarquin@osmre.gov.

                   
COALEX State Inquiry Report - 282
April, 1994

Michelle J. Matlock, Esquire
Department of Natural Resources
Division of Reclamation
402 W. Washington Street
Indianapolis, Indiana 46204

TOPIC: DEFINITION OF "DAMAGE" IN PHRASE: "PROTECT OFFSITE AREAS FROM SLIDES AND
DAMAGE"

INQUIRY: Indiana wrote an NOV for drainage control causing damage off the permitted site, citing
the Indiana equivalent of SMCRA 515(a)(21) [I.C. 13-4.1-8-1(21)] which contains the phrase
indicated above. Are there any materials covering the definition of "damage" as used in this code
section?

SEARCH RESULTS: The COALEX Library and other materials available in LEXIS were used to
conduct the research. Few items were identified that mentioned "damage" as contained in
515(a)(21) and the corresponding regulations, 30 CFR 816.99/817.99. The material retrieved did
not specify what the offsite damages were; however, the material indicated that whatever damage
occurred was caused by slides. Discussions of drainage control and other mentions of offsite
damage were found in materials addressing hydrologic impacts, sedimentation controls, effluent
limitations and discharges into waterways.

  The relevant legislative history, regulatory history and an Interior administrative case are
discussed below. Copies are attached. Also included is an ALJ decision which addresses the issue of
an NOV containing an improper citation to the regulations.

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

LEGISLATIVE HISTORY
Search of offsite damage in the Reports, Hearings and other Congressional documents comprising
the legislative history of SMCRA yielded two relevant items:

S. REP. No. 402, 93rd Cong., 1st Sess., 63 [S. 425 "Surface Mining Reclamation Act of 1973",
Senate Committee on Interior and Insular Affairs (September 21, 1973)]. SECTION-BY-SECTION
ANALYSIS.
"Offsite areas must be protected from damages caused by slides which might occur during mining
and reclamation operations. Furthermore, all waste accumulations and damages must be contained
within the permit area. This provision not only serves to protect landowners not associated with the
mining, it also insures that the permit will encompass an area which covers the entire mining
activity, including the storage or disposal of spoil and waste. Therefore, the entire activity will be
subject to all of the terms of the permit. The Committee intends that permits be limited to the
minimum area necessary to accommodate the operation."

H. REP. No. 218, 95th Cong., 1st Sess., 80 [H.R. 2 "Surface Mining Control and Reclamation Act of
1976", House Committee on Interior and Insular Affairs (April 22, 1977)]. NEED.
"In the humid East, retention of overburden material on the bench, avoiding all unnecessary
placement of unconsolidated material on steep slopes, would contribute most significantly to the
elimination of slides, sedimentation, siltation and other offsite effects which threaten downstream
areas. The basic concept embodying this principle is returning the mining area to its approximate
original contour."

Additional excerpts relate "damage" to 
     hydrologic impacts
     insurance requirements
     spoil placement


REGULATORY HISTORY
44 FR 14902 (MARCH 13, 1979). Preamble to the final rules. Sec. 816.99 Slides and other damage.
"This Section establishes requirements necessary to prevent damage caused by slides and erosion.
It further specifies those steps that must be taken any time a slide occurs which may have a
potential adverse affect on life, property, health, safety, or the environment in or near the permit
area."


ADMINISTRATIVE DECISIONS
   A review of the Administrative Law Judge (ALJ) and Interior Board of Land Appeals (IBLA)
decisions that discuss offsite damage or drainage control indicated that the majority of the NOVs
written cite performance standard sections 30 CFR 816.41-816.49 (or 30 CFR 817.41-817.49 or the
interim rule equivalents), the hydrologic balance requirements relating to sedimentation controls,
siltation structures, discharges into waterways, etc. 
 
   One ALJ decision was identified where the operator was cited for violating the state equivalent of
30 CFR 816.99, the rule implementing SMCRA 515(a)(21). The NOV stated that blasted material
had traveled along the ground, off the permit area. In accordance with regulations, OSM was
informed of the slide and damage. The corrections plan included stabilizing rocks on the hillside.
See TURNER BROS., INC. v OSM, Docket Nos. TU 6-22-R, TU 6-65-R (1987), attached.


ISLAND CREEK COAL CO., 2 IBSMA 125, IBSMA 80-23 (1980). 
   SYLLABUS. "A notice of violation containing an improper citation to the regulations is reasonably
specific where the narrative description of the alleged violation accurately notifies the permittee of
the nature of the alleged violation."


ATTACHMENTS
1.   IC 13-4.1-8-1(21)
2.   S. REP. No. 402, 93rd Cong., 1st Sess. 63 [S. 425 "Surface Mining Reclamation Act of
     1973", Senate Comm. on Interior and Insular Affairs (September 21, 1973)]. SECTION-BY-SECTION ANALYSIS.
3.   H. REP. No. 218, 95th Cong., 1st Sess. 80 [H.R. 2 "Surface Mining Control and Reclamation
     Act of 1976", House Comm. on Interior and Insular Affairs (April 22, 1977)]. NEED.
4.   S. REP. No. 1162, 92nd Cong., 2nd Sess. 32 [S. 630 "Surface Mining Reclamation Act of
     1972", Senate Comm. on Interior and Insular Affairs (September 18, 1972)]. II.
     BACKGROUND -- FROM THE LITERATURE.
5.   "Surface Mining Control and Reclamation Act of 1977": HEARINGS before the Subcomm. on
     Energy and the Environment of the House Comm. on Interior and Insular Affairs, 95th
     Cong., 1st Sess. 341 (February 18 & March 4, 1977) (statement from the Environmental
     Policy Institute).
6.   S. REP. No. 28, 94th Cong., 1st Sess. 212 [S. 7 "Surface Mining Control and Reclamation
     Act of 1975", Senate Comm. on Interior and Insular Affairs (March 5, 1975)]. SECTION-BY-SECTION ANALYSIS.
7.   H. REP. No. 1072, 93rd Cong., 2nd Sess. 244 [H.R. 11500 "Surface Mining Control and
     Reclamation Act of 1974", House Comm. on Interior and Insular Affairs (May 30, 1974)].
     ADDITIONAL, DISSENTING, SEPARATE, AND SUPPLEMENTAL VIEWS.
8.   H. REP. No. 1072, 93rd Cong., 2nd Sess. 81 [H.R. 11500 "Surface Mining Control and
     Reclamation Act of 1974", House
     Comm. on Interior and Insular Affairs (May 30, 1974)]. ELEMENTS OF MINE REGULATION
     PROGRAM.
9.   H. REP. 218, 95th Cong., 1st Sess. 158 [H.R. 2 "Surface Mining Control and Reclamation
     Act of 1976", House Comm. on Interior and Insular Affairs (April 22, 1977)]. COMMITTEE
     RECOMMENDATION.
10.  44 FR 14902 (MARCH 13, 1979). Preamble to the final rules. Sec. 816.99 Slides and other
     damage.
11.  TURNER BROS., INC. v OSM, Docket Nos. TU 6-22-R, TU 6-65-R (1987).
12.  ISLAND CREEK COAL CO., 2 IBSMA 125, IBSMA 80-23 (1980). 


Research conducted by: Joyce Zweben Scall

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