COALEX REPORT 284

	Coalex Report 284
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 - 284
May, 1994

Sylvia Wilcox, Esquire
Department of Natural Resources
Division of Reclamation
402 W. Washington Street
Indianapolis, Indiana 46204

TOPIC: CHANGES IN APPROVED DRAINAGE DESIGN

INQUIRY: An operator received an NOV for failure to construct diversions and basins as designed in
the approved revised plan, resulting in uncontrolled discharges. Please locate administrative
decisions that discuss modifications to drainage control or sedimentation control designs or the
implementation of the modifications. Also identify decisions where permittees were cited for failure
to pass water through a sedimentation control structures and related drainage violation cases.

SEARCH RESULTS: Using the COALEX Library and other material available in LEXIS as well as an
exiting COALEX Reports, relevant Interior administrative decisions, Federal Register preambles plus
an OSM Directive were identified. The attached materials are discussed below.

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

INTERIOR MATERIAL
OSM DIRECTIVE, Subject No. TSR-9, Transmittal No. 441, "Construction Certificate of Siltation
Structures" (Issued April 27, 1988).
   The directive provides guidance to OSM employees who review or approve construction
certifications of or inspect siltation structures and identifies procedures for processing construction
certifications when the structure differs from the approved design.

Procedures.
(1) Inspection certification approval.
...
"(b) An inspection report that certifies that it accurately describes the constructed structure,
identifies any deviation from the approved design, and is accompanied by a request for approval of
those deviations constitutes an acceptable application for a permit revision in accordance with
current requirements and procedures. An inspection report that notes minor changes that do not
affect the safety, stability, operation and reliability of the structure from the approved design is
acceptable, if it is readily apparent that the parameters upon which the initial approval was based
have not changed. Otherwise, the report must be accompanied by supporting calculations, designs,
demonstrations required by the regulations and 'as-built' drawings to establish that the constructed
pond meets applicable performance standards."

(2) State Program Oversight.
...
"(c) If the inspection certification (1) does not exist, (2) does not match the constructed pond, or
(3) the revised design has not been accepted by the regulatory authority as a revision, then a
violation would appear to exist and a 10-day notice should be written...."


GATLIFF COAL CO. v OSM, Docket No. NX 92-6-R (1993).
   In sustaining the issuance of the NOV for failure to construct and maintain a basin and a
diversion ditch in accordance with approved plans, the ALJ stated:

"Applicant could have requested a modification of the permit in order to make the changes it
desired, but chose not to. Applicant did not present any evidence rebutting Respondent's prima
facie case, and attempted to show only that the structures it had in place were just as effective as
those which should have been constructed."


ARCH MINERAL CORP. v OSM, Docket Nos. DV 91-6-R, DV 91-8-R (1992).
   The NOV cited Arch for failing to construct a sedimentation control pond which constituted a
failure to comply with its "approved permit/plan". Arch did not request an exemption to the use of
sedimentation ponds from Wyoming DEQ which was required  before using containment
ditches/berms as the means to control surface drainage: 

"[U]se of containment ditches/berms in lieu of a sedimentation pond must be explicitly described in
the permit application so that the areal extent and technical merits of such an exemption can be
assessed during the permit approval process."


RITH ENERGY, INC. v OSM, Docket No. 91-9-R (1992).
   Rith was cited for failing to construct a road in conformity with the design specifications in the
approved permit plan and for failing to submit a construction inspection certificate. The remedial
action required Rith to construct the road in accordance with its approved plan and have the road
certified. Rather than 
re-work the road, Rith applied for a permit revision to change the approved design specifications.
OSM approved the revised plan which matched the existing configuration of the road. 


THE PITTSBURGH & MIDWAY COAL MINING CO. (P&M) v OSM, Docket Nos. TU 4-8-P et al.
(1985).
   As part of this settlement agreement, OSM extended the time for abatement of an NOV in order
to provide P&M with 30 days to submit a revised design for its proposed containment berm that
would meet the standards for a siltation structure. Upon approval of the revised design, prompt
construction and certification of the structure was required. Failure to abide by this plan would
result in OSM's issuance of a CO.


COAL ENERGY v OSM, Docket No. NX 92-19-R (1992).
   The permittee was issued an NOV and a CO for failure "to construct and/or maintain the basin
002 according to requirements and the approved permit."


COAL ENERGY, INC. v OSM, Docket Nos. NX 89-34-R, NX 89-36-R (1991).
   The ALJ sustained the NOVs issued for failure to construct and maintain properly designed
sedimentation ponds.


P&K COAL CO., LTD. v OSM, 98 IBLA 26, IBLA 85-940 (1987).
   Syllabus: "A cessation order is properly issued by OSMRE when the permittee fails to abate a
notice of violation which calls for submitting, after construction, certification by a registered
professional engineer that a sedimentation pond has been built in accordance with the approved
design, even though the pond had been constructed."


CORLEY-COLE, INC. v OSM, Docket No. NX 9-59-P (1981).
   The permittee was issued an NOV and a CO for failure to have a sedimentation pond certified by
a qualified registered engineer as having been constructed as designed and as approved in the
reclamation plan. The CO was terminated following receipt of the required certification.


PINEVILLE PROPERTIES CORP. v OSM, 104 IBLA 258, IBLA 85-735 (1988).
   Pineville received two NOVs. The first violation, which was uncontested, cited Pineville for "failure
to construct diversion ditches which will accommodate the design precipitation event (100 yr.) as
approved by the regulatory authority per detail and plan drawing within the subject's method of
operation." The second violation, the focus of the appeal, concerned the operator's failure to certify
that the French drain had been constructed as "designed in the approved method of operation." A
modification of the second NOV ordered Pineville to submit a permit revision showing how the
actual design of how the drain was constructed. The NOV and the CO, which was issued later,
were upheld.


HARDROCK MINING CO., INC. v OSM, Docket No. NX 90-16-R (1991).
   NOVs were issued for "failure to pass all surface water through an approved sediment control
structure" and "failure to construct ponds in accordance with the approved detailed plans".


L & D COAL AND LAND CORPORATION v OSM, Docket Nos. NX 90-22-R, NX 90-51-R (1990).
   As part of this Consent Decision, OSM agreed to allow L & D to use an alternative sedimentation
control in lieu of constructing a sedimentation pond. 


J & M COAL CO. v OSM, 122 IBLA 90, IBLA 89-504 (1992).
   Included in the NOVs were citations for failure to construct ponds on the site. The issuance of the
NOVs was sustained even though OSM ultimately accepted the use of alternative means of
abatement for sediment control violations.


LYNCO MINING CO. v OSM, Docket No. 90-39-R (1992).
   As part of the settlement agreement, Lynco was required to revise its permit to include
construction of a natural drainway. 


COALEX STATE INQUIRY REPORT - 193, "Failure to maintain sedimentation ponds (siltation
structures)" (September, 1991).
   Included in this Report are Interior administrative decisions and the Federal Register preambles
that constitute the "regulatory history" of the federal regulations.



ADDITIONAL FEDERAL REGISTER MATERIAL

44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble - Final rule.
   816.46 (o) and (p). Fill material.
  ... 
 "Section 515(b)(10)(B)(ii) of the Act provides that sedimentation ponds must be constructed as
designed and approved in the reclamation plan. This provision of the Act is intended to assure that
the regulatory authority has the authority to require the design of sediment ponds to meet the
requirements of the Act. Moreover, Section 510(a) authorizes the regulatory authority to grant,
require modification of or deny plans to construct sediment ponds."


53 FR 44356 (NOVEMBER 2, 1988). Final rule. Termination of jurisdiction.
   30 CFR 700.11(d)(1)(ii) Permanent Program Operations.
  ...
   The overall regulatory program monitors each phase of each mining and reclamation operation
from beginning to end. "Approval of the reclamation and operation plan required for each permit is
predicated on a demonstration by the permit applicant that the design and performance standards
of the regulatory program will be met. Throughout the conduct of both mining and reclamation
operations, the regulatory authority performs periodic inspections to ensure compliance with the
approved reclamation and operation plan. Also, certifications are required both during and upon
completion of construction for certain critical structures cited by the commenters. Where operations
are inconsistent with the approved plan or certifications are not provided or are inaccurate, the
regulatory authority will require corrective measures, either through enforcement actions or permit
revisions."


ATTACHMENTS
1.   OSM DIRECTIVE, Subject No. TSR-9, Transmittal No. 441, "Construction Certificate of
     Siltation Structures" (Issued April 27, 1988).
2.   GATLIFF COAL CO. v OSM, Docket No. NX 92-6-R (1993).
3.   ARCH MINERAL CORP. v OSM, Docket Nos. DV 91-6-R, DV 91-8-R (1992).
4.   RITH ENERGY, INC. v OSM, Docket No. 91-9-R (1992).
5.   THE PITTSBURGH & MIDWAY COAL MINING CO. (P&M) v OSM, Docket Nos. TU 4-8-P et al.
     (1985).
6.   COAL ENERGY v OSM, Docket No. NX 92-19-R (1992).
7.   COAL ENERGY, INC. v OSM, Docket Nos. NX 89-34-R, NX 89-36-R (1991).
8.   P&K COAL CO., LTD. v OSM, 98 IBLA 26, IBLA 85-940 (1987).
9.   CORLEY-COLE, INC. v OSM, Docket No. NX 9-59-P (1981).
10.  PINEVILLE PROPERTIES CORP. v OSM, 104 IBLA 258, IBLA 85-735 (1988).
11.  HARDROCK MINING CO., INC. v OSM, Docket No. NX 90-16-R (1991).
12.  L & D COAL AND LAND CORPORATION v OSM, Docket Nos. NX 90-22-R, NX 90-51-R
     (1990).
13.  J & M COAL CO. v OSM, 122 IBLA 90, IBLA 89-504 (1992).
14.  LYNCO MINING CO. v OSM, Docket No. 90-39-R (1992).
15.  COALEX STATE INQUIRY REPORT - 193, "Failure to maintain sedimentation ponds (siltation
     structures)" (September, 1991).
     A.   CARBONEX COAL CO. v OSM, Docket No. TU 5-58-R (September 23, 1988). 
     B.   CARBONEX COAL CO. v OSM, Docket Nos. TU 5-58-R et al. (February 10, 1989
          Consent Decision excerpts).
     C.   TWIN OAKS COAL CO. v OSM, Docket No. CH 9-156-R (February 21, 1980).
     D.   COAL ENERGY, INC. v OSM, 115 IBLA 114, IBLA 90-287 (June 27, 1990).
     E.   COAL ENERGY, INC. v OSM, Docket Nos. NX 88-50-R, NX 88-51-R (February 6,
          1990).  
     F.   COAL ENERGY, INC. v OSM, 105 IBLA 385, IBLA 87-190 (November 29, 1988).
     G.   LYNCO MINING v OSM, Docket No. NX 89-74-R (February 18, 1991). 
     H.   LYNCO MINING v OSM, Docket No. NX 89-29-R (May 31, 1990).
     I.   SCARAB ENERGY CORP. v OSM, Docket Nos. NX 89-42-R, NX 89-43-R (May 31,
          1990).
     J.   AMAX COAL CO. v OSM, Docket Nos. IN 1-15-P, IN 1-28-P (November 1, 1983). 
     K.   AMAX COAL CO. v OSM, 74 IBLA 48, IBLA 83-614 (June 28, 1983). 
     L.   AMAX COAL CO. v OSM, Docket No. IN 0-40-P (January 14, 1981).
     M.   ALPINE CONSTRUCTION CO. v OSM, 114 IBLA 232, IBLA 88-527 (April 27, 1990).
     N.   TURNER BROTHERS, INC. v OSM, 103 IBLA 10, IBLA 86-191 (June 22, 1988). 
     O.   TURNER BROTHERS INC. v OSM, Docket No. TU 5-17-R (November 27, 1985). 
     P.   TURNER BROTHERS INC. v OSM, Docket Nos. TU 6-106-R, TU 7-27-R (July 10.
          1987). 
     Q.   TURNER BROTHERS INC. v OSM, Docket Nos. TU 6-49-R (April 13, 1987).
     R.   44 FR 14902 (MARCH 13, 1979). [Excerpts]
     S.   48 FR 43994 (SEPTEMBER 26, 1983). Final rule. Impoundments.
     T.   48 FR 44032 (SEPTEMBER 26, 1983). Final rule. Siltation structures.
     U.   50 FR 16194 (APRIL 24, 1985). Final rule. Certification of the design of
          impoundments.
     V.   51 FR 41952 (NOVEMBER 20, 1986). Final rule; suspension.
     W.   53 FR 43584 (OCTOBEr 27, 1988). Final rule. Impoundments.
     X.   56 FR 29774 (JUNE 28, 1991). Proposed rule. Impoundments.
     Y.   56 FR 44049 (SEPTEMBER 6, 1991). Reopening of comment period. Impoundments.
16.  44 FR 14902 (MARCH 13, 1979). Permanent Program Final Preamble - Final rule. 816.46
     (o) and (p). Fill material.
17.  53 FR 44356 (NOVEMBER 2, 1988). Final rule. Termination of jurisdiction.


Research conducted by: Joyce Zweben Scall
(Home Page)
Office of Surface Mining
1951 Constitution Ave. N.W.
Washington, D.C. 20240
202-208-2719
getinfo@osmre.gov