NEEDMORE COAL v OSM; Docket No. NX 9-64-P (December 17, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: December 17, 1979  

CASE-NO: Docket No. NX 9-64-P  

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 79-II-30-12  

COUNSEL: Appearances: 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: DECISION  

   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), Needmore Coal Company, Inc. (petitioner), filed an application for review of a proposed civil penalty
assessment on September 17, 1979, issued by the Office of Surface Mining Reclamation and Enforcement after an
assessment conference on October 15, 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 ($1,600) 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 15,
1979, for failure to comply with the pleadings of 43 CFR 4.1152.  On November 8, 1979, the petition for review was
amended and thereafter a timely answer was filed.  A hearing was held before the undersigned on November 15, 1979,
in Pikeville, Kentucky.  

   At the conclusion of the hearing, both parties agreed to waive their right to findings of fact and conclusions of law and
to receive a decision from the bench.  

   This confirms the decision rendered that date.  Cessation Order No. 79-II-76-5 (Resp. Exh. 14) was combined with
this case for final determination, and after hearing evidence from all parties, the undersigned {2} determined that the
respondent had failed to carry the burden of proof that the violation did in fact exist.  

   Violation No. 2 of NOV 79-II-30-12 and CO 79-II-76-5 were for failure to pass surface drainage from the disturbed
area through sedimentation ponds or series of sedimentation ponds in violation of 30 CFR 715.17(a).  The portion of the
operation to which the notice applied was the south end of the permit as shown on Respondent's Exhibit 12 by the red
mark at the bottom of said exhibit under the words "outcrop" and above the words "John A. Branson" (not to be
confused  with the marks opposite the words "Columbus Parks Sur. Carrs Fk. Corp. Min.").  

   The mere fact that the Office of Surface Mining has based the notice of violation solely upon visual observation does
not in itself constitute substantial evidence sufficient to uphold the burden of proof imposed upon the Office of Surface
Mining by the Act.  30 CFR 715.17(a) provides: "All surface drainage from the disturbed area, including disturbed
areas that have been graded, seeded, or planted, shall be passed through a sedimentation pond or a series of
sedimentation ponds before leaving the permit area."  

   In the area of the alleged violation, no sedimentation pond is shown on the mine map nor is the necessity for a
sedimentation pond shown either by the map or by the evidence.  The presentation of the respondent is devoid of any
evidence showing that any surface drainage whatsoever left the disturbed area at the point designated in the violation
(Tr. 97).  

   The notice of violation was issued February 22, 1979.  Two extensions were given on March 26, 1979, and May 7,
1979.  The application for review of the civil penalty was filed September 17, 1979, and the Cessation Order was
served October 29, 1979, for failure to abate, in that the operator did not build a sedimentation pond (also see Tr. 126).  

   When viewing the evidence presented at the hearing in its entirety, the credibility of respondent's witnesses was such
as to minimize the effectiveness of respondent's evidence.  

   A mere opinion of violation unsubstantiated by any competent evidence will not sustain an affirmation of the notice of
violation.  

   ORDER  

   Notice of Violation No. 79-II-30-12 and Cessation Order No. 79-II-76-5 are vacated as being improperly issued.  The
respondent shall remit to the petitioner the sum of $1,600 with interest at the rate of 6 percent or with interest at the
prevailing Department of Treasury rate, whichever is greater.  

   Tom M. Allen  
   Administrative Law Judge