COALEX STATE INQUIRY REPORT - 77
December 5, 1986

Lisa Merrill, Esquire
Office of General Counsel
Natural Resources and Environmental Protection Cabinet
5th Floor, Capital Plaza Tower
Frankfort, Kentucky 40601

TOPIC: DEFINITION OF "PATTEN OF VIOLATIONS"

INQUIRY: Please locate any Interior Board of Land Appeals cases which discuss and define the
phrase "pattern of violations".

SEARCH RESULT: Sec. 521(a)(4) of the Surface Mining Control and Reclamation Act of 1977
(SMCRA) provides that a permit may be suspended or revoked if the Secretary or his
representative determines that at "pattern of violations" of any requirements of the Act or any
permit exists or has existed. This provision of the Act is implemented in the federal regulations
found at 30 CFR Sec. 843.13.

The legislative and regulatory history of the phrase "pattern of violations" was discussed in
COALEX STATE INQUIRY REPORT - 42. In addition, a search of the ALJ and IBLA files was
conducted to locate administrative decisions on this issue.

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   No decisions were located which specifically defined "pattern of violations"; however, two cases
which discuss the phrase were identified. In HARLAN-CUMBERLAND COAL CO. v OSM, No. NX 5-15-P (June 4, 1986), a cessation order was issued against the operator after an OSM inspector
responded to citizen complaints that black waste water was being pumped into a nearby stream.
In challenging the issuance of the cessation order, the operator acknowledged that the state
regulatory authority had previously cited the company for discharging black water into the
stream. However, the operator provided correspondence which disclosed that the state did not
regard those occurrences as being a "pattern of violations". The Administrative Law Judge ruled
that OSM had properly found a pattern of violations, noting:

"[P]etitioner's argument that, despite the showing that it had improperly discharged black,
substandard mine drainage into Clover Fork on three other occasions..., such conduct should not
be viewed as a pattern of violations, has a hollow ring. Because the pertinent State regulatory
authority did not regard petitioner's prior practices a constituting a pattern of violations, that
determination is not binding upon OSM nor does it relieve petitioner of liability under the Act or
implementing regulations. If the commission of an offense that has been demonstrated to have
occurred, as here, on four occasions over a 10-month period is not to be regarded as constituting
a pattern of violations, it is difficult to perceive a factual scenario which would qualify for such a
categorization." (Id.)

   REBEL COAL CO.; ISLAND CREEK COAL CO., 4 IBSMA 69 (1982) dealt with the attempt of an
environmental group to intervene in a proceeding initiated by OSM with an order to show cause
why a permit should not be suspended or revoked as the consequence of an alleged pattern of
violations. While the case did not discuss the proceedings surrounding the show cause order, the
Board noted that the companies had been cited for seven violations on one permit over a period
of time.


ATTACHMENTS
A    COALEX STATE INQUIRY REPORT - 42 and attachments.
B    HARLAN-CUMBERLAND COAL CO. v OSM, No. NX 5-15-P (June 4, 1986).
C    REBEL COAL CO.; ISLAND CREEK COAL CO., 4 IBSMA 69 (1982).


Search conducted by: S. Michele Manning