SOUTHWIND MINING CO.  v OSM; Docket No. NX 9-9-P  (July 6, 1979)

 TYPE: ALJ Hearing: Decision  

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

DATE: July 6, 1979  

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

PROCEEDING: Civil Penalty Proceeding, Notice of Violation No. 78-II-3-1  

COUNSEL: John D. McCord, Edq., 2611 Upper River Road, Louisville, Kentucky, for Applicant; John Phillip
Williams, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Knoxville, Tennessee, for
Respondent.Administrative Law Judge Truswell  

OPINIONBY: Administrative Law Judge Truswell  

OPINION: DECISION   

   BACKGROUND  

   In accordance with 518 of the Surface Mining Control and Reclamation Act of 1977 (the Act), Southwind Mining
Company, applicant, petitioned on December 26, 1978 for review of a notice of proposed civil penalty assessment
issued by the Office of Surface Mining and Reclamation, respondent.  Contemporaneous with the filing of its petition
the applicant in accordance with the requirements of 43 CFR Section 4.1152(b) (1) paid the full amount of the proposed
civil penalty ($1,100.00) to the Assessment Office, Office of Surface Mining to be placed in an escrow a schedule for
the submission of posthearing briefs was established and all such briefs have now been received.  

   On July 26, 1978, respondent inspected the Rosine surface mine operated by the petitioner in Ohio County, Kentucky,
and issued Notice of Violation No. 78-II-3-1 for two violations.  Violation No. 1 alleged that topsoil was not segregated,
stockpiled or redistributed on graded spoil in violation of 30 CFR 715.16.The required remedial action was
accomplished and this violation was terminated on August 14, 1978.  Violation No. 2 alleged that blasting was being
conducted within 1000 feet of several buildings used as dwellings without written approval of the regulatory authority,
in violation of 30 CFR 715.19.  On August 18, 1978, respondent issued applicant a Notice of Proposed Assessment of
penalty for Violation No. 1 in the amount of $2,400.00.  No penalty was proposed for Violation No. 2.  Respondent held
an assessment conference on October 11, 1978, to review the proposed assessment for Violation No. 1.  On December
11, 1978, respondent notified applicant that the proposed penalty was being reduced to $1,100.00.  

   ISSUES

   (1) Did applicant segregate and stockpile topsoil as required by 30 CFR 715.16?  

   {2}  (2) Did applicant conduct blasting within 1000 feet of a building used as a dwelling without the express approval
of the State regulatory authority?  

   (3) Must the notice of violation and the accompanying civil penalty be vacated for failure by OSM to comply with
section 521(a) (1) of the Act?  

   (4) Did respondent prove that a civil penalty of $1,100.00 ought to be assessed for the first violation in Notice of
Violation No. 78-II-3-1?  

   DISCUSSION, FINDINGS, AND CONCLUSIONS  

   (1) Topsoil requirement.  

   Applicant was notified that it had violated 30 CFR 715.16.  Relevant portions of this regulation read as follows:  

    To prevent topsoil from being contaminated by spoil or waste materials, the permittee shall remove the topsoil as a
separate operation from areas to be disturbed.  Topsoil shall be immediately redistributed according to the requirement
of paragraph (b) of this section on areas graded to the approved postmining configuration.  The topsoil shall be
segregated, stockpiled, and protected from wind and water erosion and from contaminants which lessen its capability to
support vegetation if sufficient graded areas are not immediately available for redistribution.  

    {3}  (a) Topsoil removal.  All topsoil to be salvaged shall be removed before any drilling for blasting, mining, or
other surface disturbance.  

      (1) All topsoil shall be removed unless use of alternative materials is approved by the regulatory authority in
accordance with subparagraph (4).  Where the removal of topsoil results in erosion that may cause air or water
pollution, the regulatory authority shall limit the size of the area from which topsoil may be removed at any one time and
specify methods of treatment to control erosion of exposed overburden.  

      (2) All of the A horizon of the topsoil as identified by soil surveys shall be removed according to paragraph (a) and
then replaced on disturbed areas as the surface soil layers.  Where the A horizon is less than 6 inches, a 6-inch layer that
includes the A horizon and the unconsolidated material immediately below the A horizon (or all unconsolidated material
if the total available is less than 6 inches) shall be removed and the mixture segregated and replaced as the surface soil
layer.  

      Michael Vaughn, OSM reclamation specialist and supervisor, inspected the mine on July 26, 1978, and issued the
notice of violation.  He testified that there were no topsoil stockpiles and that topsoil had not been distributed on graded
spoil (Tr. 36-37).  He said that material had been pushed into the pit from above the highwall and that applicant was
required to remove it and stockpile or redistribute it on graded spoil (Tr 37-38).  

      Applicant contends in its posthearing brief that the area of the violation was badly eroded prior to mining, that the
material to be segregated was not topsoil but B horizon material and that of the area that was eroded prior to inspection
30% did not contain any horizon material and of the remaining horizon 70% would contain 6 to 8 inches of A horizon
material.  

      The testimony of Mr. Vaughn reflects, however, that there were some badly eroded places within applicant's permit
area but that these places were not mined between May 3 and July 26, 1978 (Tr. 49-51).  He said that of the area mined
between those dates no more than 5 - 10% was badly eroded (Tr 93).  Mr. Vaughn testified that topsoil from above the
highwall had been pushed into the pit where it was contaminated with coal refuse and fire clay, and that on top of it had
been pushed subsoil or B horizon material.  He required the subsoil to be removed so that it could be used in place of
topsoil which was then unavailable (Tr 37-39).  Mr. Vaughn was confident that A horizon topsoil had been pushed into
the pit from above the highwall and he determined that it was such by its texture.  A horizon is granular while B horizon
is usually blocky (Tr 63-65). David Alvey, applicant's pit supervisor, testified that in the area above the pit nothing was
segregated and that he was unaware that where there was no A horizon the top six inches of soil were to be segregated
(Tr 121).  

     {4}  Applicant contends through Mr. Alvey that topsoil had been specifically segregated in the corner of the property
near the pond (Tr 114).  Mr. Vaughn testified, however, that he carefully examined this material and it was not topsoil
but material that was removed in order to dig a basin (Tr 37).  He answered on cross-examination that i had red rock
mixed throughout which would indicate that it was brought from a very low horizon (Tr 70).  

       I find that applicant did not segregate and stockpile topsoil as required by 30 CFR 715.16 and that therefore
violation No. 1 of the notice of violation was properly issued.  

   (2) Blasting within 1000 feet of a dwelling.  

   The applicable provision of the blasting regulation which applicant was notified it had violated is 30 CFR 715.19(e)
(1) (VII) and reads as follows:  

       "(vii) Except where lesser distances are approved by the regulatory authority (based upon a preblasting survey or
other appropriate investigations) blasting shall not be conducted within -"  

       "(A) 1,000 feet of any building used as a dwelling, school, church, hospital, or nursing facility;"  

   Respondent's posthearing brief correctly states the facts of this violation and I quote from pages 9 and 10 thereof:  

       Southwind conducted blasting within 1,000 feet of a dwelling on the Wendell Young property, occupied by Barbara
Phelps at the time of the inspection (Tr 45-46), according to the testimony of OSM inspector Mike Vaughn.  The
company's drill was within 500 feet of that dwelling at the time of the inspection (Tr 45).  

       Prior to OSM inspection on July 26, Southwind had obtained a waiver from the State regulatory authority allowing
blasting within 1,000 feet of several other dwellings (Ex. R-6), but this waiver did not permit blasting within 1,000 feet
of Ms. Phelps' dwelling (Tr 47-48).  OSM required the company to cease blasting within 1,000 feet of that dwelling
until the company obtained a waiver from the State.  Subsequently, the company did obtain a waiver from the State
allowing it to blast within 1,000 feet of Barbara Phelps' dwelling.  (Tr.  47-49).  

     {5}  As Mr. Vaughn testified, the importance of such a waiver is that it cannot be granted without a preblasting
survey or other appropriate investigation of the dwelling (Tr 83-84).  The company's failure to obtain a waiver allowing
blasting within 1,000 feet of Barbara Phelps' house meant that no preblasting survey or other appropriate investigation
had been performed to determine whether blasting could be safely conducted within 1,000 feet of the house.  

   Applicant presented no proof on this issue but contends in its reply brief:  

      .... Southwind did not know that someone had moved into the house near the mining site....  Subsequent to
Southwind being appraised of the fact that someone was living in the residence Southwind immediately applied for the
proper variance.  This was the reason that the government did not assess Southwind for the violation.  

   This may be true and I so accept it, but a violation did occur and I so find.  

   (3) Failure by OSM to comply with Section 521(a) (1) of the Act.  

      Section 521(a) (1) n1 of the Act provides that if the Secretary has reason to believe that any person is in violation of
the Act he shall notify the State regulatory authority.  Admittedly OSM did not here notify the State regulatory authority
(Tr 102-106).  At the time of the hearing an Administrative Law Judge had decided that such 10-day notification period
was a condition precedent to the issuance of a notice of violation and failure to so comply required that the notice of
violation be vacated.  This decision was then on appeal and has now been decided by the Interior Board of Surface
Mining and Reclamation Appeals.  Dayton Mining Company, Inc. and Plateau, Inc., 1 IBSMA 125, 86 I.D. 241 (1979). 
The Board decided section 521(a) (1) has no effect during the interim regulatory program.  

   n1 30 U.S.C. Section 1271 (1977) that section states n part:  

     {6}  "(a) (1) Whenever, on the basis of any information available to him, including receipt of information from any
person, the Secretary has reason to believe that any person is in violation of any requirement of this chapter or any
permit condition required by this chapter, the Secretary shall notify the State regulatory authority, if one exists, in the
State in which such violation exists.  If no such State authority exists or the State regulatory authority fails within ten
days after notification to take appropriate action to cause said violation to be corrected or to show good cuase for such
failure and transmit notification of its action to the Secretary, the Secretary shall immediately order Federal inspection of
the surface coal mining operation at which the alleged violation is occurring unless the information available to the
Secretary is a result of a previous Federal inspection of such surface coal mining operation.  The ten-day notification
period shall be waived when the person informing the Secretary provides adequate proof that an imminent danger of
significant environmental harm exists and that the State has failed to take appropriate action.  When the Federal
inspection results from information provided to the Secretary by any person, the Secretary shall notify such person when
the Federal inspection is proposed to be carried out and such person  shall be allowed to accompany the inspector during
the inspection."  

       OSM is here concerned with enforcement of the interim regulations and so I therefore conclude that th notice of
violation and accompanying civil penalty should not be vacated.  

   (4) Civil Penalty.  

       Respondent is seeking a civil penalty of $1,100.00 for violation No. 1 of Notice of Violation No. 78-II-3-1, based
on the following point total: 30 CFR 723.1 et seq.  

______________________________________________________________________________

History of Previous Violations                                                
Seriousness                                       0
Probability of Occurrence                            15
Extent of potential or actual damage                  4
Negligence                                           12
Good Faith                                            0
                                                     31
______________________________________________________________________________

    {7}  I find that a civil penalty of $280.00 is appropriate for violation No. 1 of Notice of Violation No. 78-II-3-1,
based on the following point total:  

______________________________________________________________________________

History of Previous Violations                                                
Seriousness                                           0
Probability of Occurrence                             1
Extent of potential or actual damage                  1
Negligence                                           12
Good Faith                                            0
                                                     14
______________________________________________________________________________

      The assessment conference officer assigned 15 points for probability of occurrence.  He explained that "the event
which the violated standard was to prevent is the contamination and loss of topsoil" (Exh. No. 11).  This is not so.  The
example given in 30 CFR 723.12(c) (1) states that " delay or failure in revegetation and resulting environmental harm
are the events which the topsoil standard...is designed to prevent".  These events are far more complicated and much
more difficult to establish than is the loss of topsoil.  Here the topsoil was lost but with what results?  Sue Poole testified
for applicant.  She is president of a company which is in the business of advising mines on reclamation procedures (Tr.
133, 140) and was formerly a Kentucky strip mine inspector (Tr. 133-134).  To determine the amount of nutrients that
would need to be added to establish proper vegetation she took soil samples during the course of mining as well as
reclamation (Tr. 135-136).  Water PH and buffer PH were significantly improved after reclamation (Tr. 138-139 and
Exh. No. 5).  She took photographs of the reclaimed area (Exh. A1, A2 & A3) which are in striking contrast to
photographs (Exh. A4) which illustrate what the area looked like prior to mining.  She said there is about 50% cover
with a lot of seedling perennials (Tr. 154).  Ms. Poole testified that to the best of her knowledge applicant had met all of
the federal regulations in the reclamation that had been performed (Tr. 140); that this mine required a lot of additives
because the topsoil was crummy, the PH was low, it was extremely eroded, there was little upper  horizon material, and
virtually no vegetation (Tr. 141); that her PH tests of the reclaimed land indicate that it will promote the vegetation
anticipated and required by federal statutes (Tr. 143).  She admitted on cross-examination that there were other tests of
the soil that could be made and named them (Tr. 156). This I feel is important for its reverse relevancy - OSM made no
tests al all! She testified that in her opinion that when the mine area was reclaimed it would produce 1.8 tons of hay per
acre (Tr. 160-162).  Perhaps even more important than all the above is the fact that applicant is a good operator (Tr. 61,
78-79).  Mr. Vaughn observed that whereas OSM can require the segregation of topsoil it cannot require the addition of
fertilizer and nutrients to land undergoing revegetation (Tr. 94).  Requirement or not, applicant has added nutrients and
has apparently met all vegetative standards.  The pride it has in its standing in the mining community will assure that
there will be no delay or failure in revegetation.  Here while the loss of topsoil is regrettable, the probability that there
will be a delay in revegetation is insignificant.  There should therefore be an assignment of one point only.  Extent of
potential or actual damage is likewise insignificant.  Should there be an unlikely delay or failure in revegetation, erosion
if any would be localized and only effect land within the permit area (Tr. 43-44).  I have therefore reduced the pointes
assigned under this component from four to one.  

    {8}  Applicant was negligent in not sooner familiarizing itself with the regulations as to topsoil.  Actually it was in
violation of such regulations for approximately three months.  This is negligence and negligence which does not warrant
being modified by degree.  The assignment of 12 points was proper.  

      There is no history of previous violations thus no points were assigned. The remedial measures required in the
notice of violation were accomplished within the time limit as extended thus there should be no addition or subtraction
of points under good faith.  

   ORDER  

       Notice of Violation No. 78-II-3-1, July 26, 1978, is affirmed as to both violations.  The amount of proposed civil
penalty is reduced from $1,100.00 to $280.00.  The remainder of the penalty assessment, $820.00, which has been held
in an escrow account, must be returned to applicant with interest at the rate of 6% or with interest at the prevailing
Department of the Treasury rate, whichever is greater.  

   William J. Truswell  
   Administrative Law Judge