CONSOLIDATION COAL v OSM; Docket No. IN 9-9-R (November 28, 1979)

 TYPE: ALJ Hearing: Decision

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

DATE: November 28, 1979  

CASE-NO: Docket No. IN 9-9-R  

PROCEEDING: Application for Review, Notice of Violation No. 78-III-5-12  

OPINION: DECISION UPON REMAND  

   The Interior Board of Surface Mining and Reclamation Appeals in IBSMA 79-25, decided September 28, 1979
provided:  
   Because there was testimony that the inspector believed that were he to present his credentials before commencing the
inspection, the offensive conduct could be terminated and a sample therefore would be unobtainable (Tr. 19), we are
remanding so that the ALJ may determine whether or not sufficient conditions in fact existed to warrant the entry
without a prior presentation of credentials.  

   Inspector Marvin Utsinger testified: that on his initial inspection of November 8, 1978 he noticed somewhat of an odd
occurrence in that while it had been dry for several days he did not expect to see water flowing in the ditches (Tr. 10);
that there was evidence that there had been pumping in the ditch area just prior to his observation (Tr. 15); that "it
looked like the pump had just been pulled out of there" (Tr. 15); that "there was still some section of drain pump hose in
the ditch and the pump hose was wet" (Tr. 15); that it appeared pumping had ceased shortly before he arrived at that
point (Tr. 16); that the ditches were approximately ten minutes travel time away from the mine office (Tr. 10), and; that
while it is his normal procedure to check in at the mine site office and identify himself before making an inspection he
did not do that on November 20th because he felt the pump would have been turned off while he was at the mine site
office (Tr. 19).  

   Mine superintendant Charles Richard Clinton testified that he has a radio in his office, is in instant communication
withe whole mine, and the pump in question could be shut down in five minutes if somebody was on the south side of
the mine (Tr. 58-59).  

   The parties have been contacted and counsel for applicant advised:  

    If you are to follow the Board's rationale to the letter, I do not think that any further hearings on the matter are
necessary.... Under the Board's rationale, I believe there is sufficient evidence on the record to find that Mr. Utsinger's
entry on November 20 was a lawful entry, and frankly I do not see any way that I could counter that evidence since it all
depends upon Marvin Utsinger's state of mind.  

     The extraordinary circumstances of this case make the presentation of credentials tantamount to advance notice.  I
find that sufficient conditions in fact existed to warrant the entry without a prior presentation of credentials.  

   ORDER  

   Notice of Violation No. 78-III-5-12, November 27, 1978, is affirmed.