MAUERSBERG COAL v OSM; Docket No. CH 0-51-R (November 30, 1979)
 
TYPE:  ALJ Hearing

NAME: MAUERSBERG COAL CO., Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent

DATE: November 30, 1979  

CASE-NO: Docket No. CH 0-51-R  

PROCEEDING: Application for Temporary Relief; CO No. 79-I-68-2; NMI  

COUNSEL: John Wagner, Esquire, Wagner Coal Company, Clarion, Pennsylvania, for applicant; William F. Larkin,
Esquire, Office of the Field Solicitor, U.S. Department of the Interior, Charleston, West Virginia, 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
(the Act), Mauersberg Coal Company applied on November 23, 1979, for temporary relief from Cessation Order No.
79-I-68-2 issued by the Office of Surface Mining Reclamation and Enforcement under Section 521(a) (3) of the Act.A
hearing was held on November 29, 1979, in Clarion, Pennsylvania.  The respondent filed a Motion to Dismiss
Application for Temporary Relief citing various deficiencies in the application.  

   FACTS

   The applicant was issued Notice of Violation No. 79-I-68-3 on October 25, 1979, in which it was charged that the
applicant "has conducted surface coal mining operations outside the permit area without approval from the regulatory
authority, as required by 30 CFR 710.11(a) (2)." The notice had application to "those areas disturbed to conduct or
facilitate mining activities located outside the permitted area." The remedial action required the regrading of the affected
areas to the approximate original contour, the redistributing of topsoil, the providing of drainage controls and the
seeding or planting of those areas during the first period favorable for revegetation with a time for abatement of
February 14, 1980.  On the same day the notice of violation was modified, providing for two interim steps of backfilling
and regrading and temporarily seeding.  

     On the following day, October 26, 1979, the notice of violation was again modified by changing the time for
abatement for the backfilling and regrading operations to November 15, 1979 (see Respondent's Exhibit A).  

     Thereafter, on November 15, 1979, Cessation Order No. 79-I-68-2 (Respondent's Exhibit C) was issued for failure
to abate Violation No. 1 of 1, Interim Step No. 1, within the time originally fixed in Notice of Violation No. 79-I-68-3. 
The cessation order directed that operations to be ceased were "all surface mining operations not necessary and
incidental to reclamation, or the affirmative obligations in this order." The affirmative obligations were to "abate
violation #1 of 1, interim step #1, of NOV #79-I-68-3 in the most  expeditious manner physically possible.  NO
ABATEMENT DATE."  

     The application for temporary relief did not state the specific relief requested.  Statements by counsel for the
applicant revealed that the relief requested was relief from imposition of the automatic fine for failure to abate a
violation within the time set in the notice.  The applicant was fearful of an automatic imposition of the fine of at least
$750 as provided in 30 CFR 723.14.  

   The extension of temporary relief may only be granted if those conditions set forth in Section 525(c) of the Act are
met:  

      1.  a hearing has been held in the locality of the permit area on the request for temporary relief in which all parties
were given an opportunity to be heard;  

      2.  the applicant shows that there is substantial likelihood that the findings of the Secretary will be favorable to him;
and  

      3.  such relief will not adversely affect the health or safety of the public or cause significant, imminent environmental
harm to the land, air, or resources.  

   DISCUSSIONS, FINDINGS AND CONCLUSIONS  

      There can be little doubt from the evidence adduced at the hearing that coal mining operations were being conducted
off the permit area.  This was the alleged violation as set forth in Respondent's Exhibit A.  It must be presumed that the
inspector did not find the activities to constitute an imminent danger or harm under the provisions of 30 CFR 722.11 but
chose instead to issue a notice of violation under the provisions of 30 CFR 722.12, allowing the applicant time to
apparently not only abate the violation but to restore the affected areas as set forth in the remedial action required
portion of the notice of violation.  

      The matter was not properly at issue at the hearing, and the evidence was not directed to establishing when the
surface coal mining operations had ended and when remedial action had begun.  This perhaps will be established at a
subsequent hearing, if any is necessary.  

      Be that as it may, the applicant was granted 90 days in which to accomplish the remedial action.  This was
sbusequently changed to a 20-day period.  

      This change was apparently made without consideration of certain factors, such as not knowing the exact location of
the exterior boundary of the permit area.  Because of the lack of knowledge of the exact location of that boundary area, it
could not be determined how much remedial action would be necessary.  The nature of the area in question would have
a great effect upon the period of time necessary to perform the remedial action.  In addition, since the time for
abatement could not have been fixed in a reasonable manner because of these factors as is required by 30 CFR
722.12(a), the applicant apparently is without knowledge of what needs to be done.  Without knowing how much needs
to be done, it cannot be determined whether or not it has acted in good faith or an expeditious manner or any of the other
factors which go into making a civil  penalty assessment.  

      Further complicating the problem is the fact that there has been no civil penalty assessed and under those
circumstances I cannot know if a civil penalty will be assessed.  This depends upon whether the Assessment Office
considers the violation to have been abated when the applicant ceased extracting coal and other activities connected with
extracting coal or whether the Assessment Office is going to take the position that the remedial action must be also
performed within the abatement period and considering that whether or not the abatement period was reasonable under
all the circumstances.  

      Therefore, inasmuch as the respondent was not prejudiced by the lack of procedural formality, I deny the
respondent's Motion to Dismiss the Application for Temporary Relief.  Because it is quite clear that some mining was
being done off the permit area, there is little likelihood that the applicant will prevail on the issue of the alleged
violation.  Nor does it appear that I have any authority to grant the possible daily assessment of the penalty.  

   ORDER  

      However, inasmuch as the abatement period granted was not reasonable to perform the remedial action, the period is
ordered extended until December 7, 1979, at 12:00 noon for the purpose of providing time to establish the time
reasonably necessary to perform the remedial action which may then be further extended by the respondent in view of
the information available at that time.  

      This Decision may be appealed in accordance with 43 CFR 4.1267 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.