KNIFE RIVER COAL MINING v OSM;  KNIFE RIVER COAL MINING v OSM;  Docket Nos. DV 9-10-R,
     DV 9-7-P  (December 19, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: KNIFE RIVER COAL MINING CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent; KNIFE RIVER COAL MINING CO., Petitioner v. OFFICE OF SURFACE
MINING RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE: December 19, 1979  

CASE-NO: Docket Nos. DV 9-10-R, DV 9-7-P  

PROCEEDING: Application for Review; NOV No. 79-V-3-18; NMI  

COUNSEL: Joseph R. Maichel, General Counsel, Knife River Coal Mining Company, Bismarck, N. Dakota, for
applicant/petitioner; William H. Penney, Esquire, Office of the Regional Solicitor, U.S. Department of the Interior,
Denver, Colorado, for respondent.  

OPINIONBY: Administrative Law Judge Shepherd  

OPINION: 

BACKGROUND  

    As provided in Section 525 of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.   1201 et seq.
Knife River Coal Mining Company, applicant/petitioner (hereinafter called applicant), applied on May 14, 1979, for
review of Notice of Violation No. 79-V-3-18 consisting of three violations and on September 17, 1979, for review of
the proposed penalty assessment imposed as to Violations Nos. 2 and 3 of said notice of violation.  Accompanying this
request was a check in the amount of $3,100 which has been placed in escrow.  As indicated, Violation No. 1 has been
vacated, and, since the imposition of the proposed assessment, Violation No. 3 has also been vacated which left at issue
Violation No. 2 and the proposed civil penalty imposed thereon of $1,900.  The proceedings were consolidated for
hearing which was held on November 15, 1979, in Bismarck, N. Dakota.  

   FACTS

      On April 25, 1979, the respondent issued Notice of Violation No. 79-V-3-18 alleging three violations.  The only
violation remaining at issue is Violation No. 2 which alleged that the applicant had failed to pass all surface drainage
through sedimentation ponds prior to leaving the permit area in violation of 30 CFR 715.17(a).  Subsequently, a
proposed assessment of $1,900 was imposed for this alleged violation.  A total of $3,100 has been paid into escrow
which includes $1,200 for a proposed assessment on Violation No. 3 which has been vacated.  

   ISSUE  

    The issue is whether or not the evidence established that the applicant did indeed fail to pass all surface drainage from
the disturbed area through sedimentation ponds prior to leaving the permit area.  

   DISCUSSIONS, FINDINGS AND CONCLUSIONS  

     The applicant's surface mining facility is a large open-pit operation with which is associated what has been called a
shop and surface facilities area consisting of approximately two acres which includes several buildings and storage areas
for equipment and supplies.  On the date of the inspection, April 25, 1979, it was discovered that a berm area had been
breached along the road passing by the shop area and that, as a result, surface drainage had left the shop area, taking
with it some coal fines and possibly other surface wastes such as spilled oil and grease.  The results are best seen in
Respondent's Exhibit No. 2 which reveals the breach in the berm and the subsequent deposits of coal fines and possibly
oil and grease upon the stubble in the adjoining field. These deposits are reflected by the dark stains that appear on
Respondent's Exhibits Nos. 2 and 4.  Had the berm not been breached, the drainage flowing inside the berm would have
continued down the side of the road to a sedimentation pond.  

     The inspector, Larry Damrau, spent a good portion of the day conducting his investigation, and he concluded that a
potential existed that coal fines and petroleum products were likely to be carried off a site in the event of a precipitation
event (Tr. 14).  He further concluded that, if succeeding precipitation events occurred, the materials would eventually be
carried off the permit area.  For clarification it must be pointed out that the permit area included the entire stubble field
which is shown in Respondent's Exhibit No. 2.  

     Frank Zupet who is the general superintendent for the applicant was very familiar with the area and following the
issuance of the notice of violation made detailed inspections and also had information available to him that was not
available to the inspector at the time of the inspection.  Mr. Zupet testified that based on his information the subsurface
in the area is very porous and has a high content of gravel (Tr. 44).  He stated that gravel layers above the mined coal
can vary between 18 and 35 feet (Tr. 44).  The result is a highly absorbent soil (Tr. 44).  In order for the water to leave
the permit area through the breach of the berm, it would be necessary for it to have traveled 800 feet from the shop area
to the permit boundary (Tr. 44).  In addition to the porous soil, the permit boundary line has over the years developed a
natural barrier in the form of a raised portion along the fence lines which is the result of lack of erosion as opposed to
erosion which may occur in the field from cropping.  Mr. Zupet's estimate was that this raised area was about six inches
above the level of the field n the average (Tr. 45) and that it was consistent and without breaches.  While Applicant's
Exhibits C and D tend to show this, it is not altogether clear from the photographs.  However, this phenomenon is not
unusual in cropland areas.  

     Therefore, based upon the fact that Mr. Zupet has over the years had a much better opportunity to learn the details
about the permit area than the inspector did in his relatively brief visit, also Mr. Zupet had access to information
regarding the subsoil which apparently was not available to the inspector at the time the notice of violation was issued
and also Respondent's Exhibit No. 2, while it does show the effects of surface drainage leaving the shop area, tends to
also show that this same phenomenon stopped in the middle of the field before it reached the boundary of the permit
area, I conclude that, in fact, no surface drainage did leave the permit area and it would be unlikely to do so.  

   ORDER  

   It is, therefore, ordered that Violation No. 2 of Notice of Violation No. 79-V-3-18 be and the same is hereby vacated. 
Further the proposed assessment issued in Docket No. DV 9-7-P is also vacated and there be remitted to the applicant
the sum of $3,100 with interest at the rate of six percent per annum or at the prevailing Department of Treasury rate,
whichever is greater.  

   This Decision may be appealed in accordance with 43 CFR 4.1270 by filing a notice of appeal within 30 days from
receipt of this Decision with the Board of Surface Mining and Reclamation Appeals, U.S. Department of the Interior,
4015 Wilson Boulevard, Arlington, Virginia 22203.