C & E COAL v OSM; Docket No. NX 9-56-P (December 17, 1979)  

 TYPE:  ALJ Hearing

NAME: C & E COAL CO., INC. Petitioner  v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent  

DATE: December 17, 1979  

CASE-NO: Docket No. NX 9-56-P  

PROCEEDING: Civil Penalty Proceeding; NOV No. 79-II-30-2; NMI  

COUNSEL: Guy Palumbo, Esq., Whitesburg, Kentucky, for petitioner; John P. Williams, Esq., Office of the Field
Solicitor, Department of the Interior, for respondent.  

OPINIONBY: Administrative Law Judge Allen  

OPINION: BACKGROUND  

   In accordance with section 518 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.)
(the Act), C & E Coal Company, Inc. (petitioner), filed an application for review of a proposed civil penalty assessment
on August 30, 1979, issued by the Office of Surface Mining Reclamation and Enforcement after an assessment
conference on August 21, 1979. Contemporaneously with the filing of its application, the petitioner in compliance with
the requirements of 43 CFR 4.1152(b) (1) paid the full amount of the proposed penalty ($1,500) to the Assessment
Office, Office of Surface Mining, to be placed in escrow pending final determination of the proposed assessment.  

   The Office of Surface Mining Reclamation and Enforcement (respondent) filed a motion to dismiss on October 9,
1979, for failure to comply with the pleadings of 4.1152.  On October 24, 1979, the petition for review was amended
and thereafter a timely answer was filed November 7, 1979.  A hearing was held before the undersigned on November
15, 1979, in Pikeville, Kentucky.  

   At the conclusion of the hearing, both parties waived their right to file proposed findings of facts and conclusions of
law and agreed for the undersigned to issue a decision from the bench which was done.  

     The petitioner was charged in Notice of Violation No. 79-II-30-2 with "spoil placed and allowed to remain on the
downslope," the same being a violation of 30 CFR 716.2(a) (1).  The NOV was served January 17, 1979.  After two
extensions because of bad weather, the notice of violation was terminated on March 26, 1979.  

     I find from the evidence that there was in fact spoil on the downslope which apparently was occasioned by blasting or
other means.  The consistency and quantity of the material covered an area 100 feet wide and 150 feet long and up to 2
ffet deep consisting of large rocks, small rocks, and "spoil." Once there had been a determination that a violation had
occurred, it was necessary to determine whether or not the evidence sustained the contention of OSM as to the proposed
assessment which was alleged as follows: "History of previous  violations - 0; Seriousness - Probability of occurrence -
13; Extent of potential or actual damage - 12; Negligence - 10; Good faith - 0 = 35."  

    There was a great deal of testimony regarding whether the spoil on the downslope could find its way to Carl Fork
Reservoir causing pollution by increasing the sediment load, however, the distance shown by the respondent was
estimated at approximately 3,000 feet.  In addition, no runoff from the disturbed area was viewed by the respondent nor
was he able to produce any evidence of any additional suspended solids being added to any stream or waterway but
conceded that the petitioner had in fact constructed silt measures in Dead Man's Branch which would catch the runoff
and silt from the area of the proposed violation (Tr. 32).  

     The credibility of the evidence of the respondent is insufficient to actually establish an occurrence, which the event
was designed by the standard to prevent, had in fact occurred and the likelihood of occurrence would be insignificant
and therefore was worthy of only the assessment of 5 points at the most.  

     As to the damage or impact of the violated standards, mere speculation that some siltation from the spoil would travel
a distance of 3,000 feet over natural ground and remain intact in order to contribute additional suspended solids to a
waterway does not warrant consideration as creditable evidence, and therefore no points were assigned for the extent of
potential or actual damage.  

     The fact that spoil was in fact allowed to remain to some degree upon the downslope after it had found its way on the
downslope by whatever means, would allude to some negligence on the part of the petitioner but certainly not the
maximum number of points.  I therefore found that 12 points were sufficient for negligence.  No points were assigned
for good faith, and no points were assigned for history of previous violations.  I therefore find that 17 points is proper
and that an assessment of $340 against the petitioner is affirmed.  

   ORDER  

      The violation of Notice of Violation No. 79-II-30-2 is affirmed, and assignment of 17 points is made together with a
penalty in that amount of $340. The amount of $1,160 shall be remitted to the petitioner with interest at the rate of 6
percent or with interest at the prevailing Department of Treasury rate, whichever is greater.