WHITE WINTER COALS v OSM; WHITE WINTER COALS v OSM; Docket Nos. NX 9-34-R, 
     NX 9-35-R (July 5, 1979)

 TYPE: ALJ Hearing: Decision  

NAME: WHITE WINTER COALS, Applicant v OFFICE OF SURFACE MINING RECLAMATION AND
ENFORCEMENT (OSM), Respondent; WHITE WINTER COALS, Applicant v OFFICE OF SURFACE MINING
RECLAMATION AND ENFORCEMENT (OSM), Respondent  

DATE: July 5, 1979  

CASE-NO: Docket Nos. NX 9-34-R, NX 9-35-R  

PROCEEDING: Docket No. NX 9-34-R, Application for Review, Cessation Order No. 79-II-12-3; Docket No. NX 9-35-R, Application for Review, Cessation Order No. 79-II-12-5, Notice of Violation No. 79-II-12-4  

COUNSEL: APPEARANCES: Tom N. Shattuck, Esq., 224 North Main Street, Clinton, TN, for Applicant; Charles
Gault, Esq., Office of the Field Solicitor, U.S. Department of the Interior, Knoxville, TN, for Respondent.  

OPINIONBY: Administrative Law Judge Torbett  

OPINION: DECISION  

   BACKGROUND  

   In accordance with Section 525 of the Surface Mining Control and Reclamation Act of 1977 (the Act), White Winter
Coals, Applicant, applied on June 18, 1979 for review of two cessation orders and a notice of violation all issued by the
Office of Surface Mining Reclamation and Enforcement, Respondent, under Sections 521(a) (2) and (3) of the Act.  On
agreement of the parties the cases were consolidated for the purpose of hearing and decision-making.  {2}
 
   A hearing was held before the undersigned on June 21, 1979 in Knoxville, Tennessee.  At the conclusion of the
hearing both the Applicant and Respondent waived their rights to file proposed findings of fact and conclusions of law
and each of them asked that a final decision be rendered immediately.  

   Therefore, the undersigned rendered a decision wherein Cessation Order No. 79-II-12-3 and Cessation Order No. 79-II-12-5 were sustained.  The undersigned also sustained Notice of Violation No. 79-II-12-4 as to violation number one
only.  Violation number two of said Notice of Violation was not sustained.  

   CONFIRMATION OF DECISION  

   The decision of the undersigned including the findings of fact and conclusions of law is contained in the verbatim
record made in this case are confirmed by this written decision and order.  An extract of the pertinent part of the
verbatim record is attached hereto as Exhibit 1.  

   ORDER  

   It is therefore ordered that Cessation Order No. 79-II-12-5 and Cessation Order No. 79-II-12-3 are sustained.  It is
ordered that Notice of Violation No. 79-II-12-4 is sustained as to violation number one and is vacated as to violation
number two.  

   David Torbett  
   Administrative Law Judge
 
Distribution: (Certified Mail)  

   Tom N. Shattuck, Esq., 224 North Main, Clinton, TN 33716  

   Office of the Field Solicitor, Division of Surface Mining, U.S. Department of the Interior, P.O. Box 15006, Knoxville,
TN 37901  

   Associate Solicitor, Office of Surface Mining Reclamation and Enforcement, U.S. Department of the Interior,
Washington, DC 20240 {178}
 
   [Attachment]  

   JUDGE TORBETT: THIS IS THE FINAL OPINION.  

   NOW, AS TO CESSATION ORDER NUMBER 79-II-12-3, IT IS THE OPINION OF THE COURT THAT IT
WAS VALIDLY ISSUED BECAUSE THE APPLICANT HAD NO STATE PERMIT FOR STRIP MINING.  IT IS
MY OPINION THAT THEY (OSM) ARE AUTHORIZED TO ISSUE A CESSATION WHERE THERE IS NO
PERMIT.  THE REASON FOR THIS IS, THAT YOU (OSM) ARE ENTITLED TO ISSUE A NOTICE OF
VIOLATION WITHOUT AN IMMINENT DANGER FOR ANY VIOLATION OF THE ACT.  THE ACT
REQUIRES THAT EVERYONE HAVE A PERMIT.  TO MINE WITHOUT A PERMIT IS A VIOLATION OF
THE ACT.  YOU CAN ISSUE AN N.O.V.  THE N.O.V. WOULD SAY, "CEASE MINING."  

   NOW, THAT, IN MY MIND, IS A CESSATION ORDER.  AND I THINK YOU ARE AUTHORIZED TO ISSUE
IT.  

   I THINK YOU COULD ALSO ISSUE AN N.O.V., IF YOU WANTED TO.  I THINK THE INSPECTORS
COULD ISSUE AN N.O.V. AND ORDER THEM TO CEASE MINING.  AND YOU MAY WANT TO DO IT
SOMETIME IF YOU FEEL LIKE SOMEBODY JUST {179} TECHNICALLY SHOULDN'T BE PENALIZED,
BECAUSE WITH A CESSATION ORDER THERE HAS TO BE A MONETARY FINE ATTACHED.  AND YOU
MIGHT FIND A CASE WHERE SOMEBODY DOESN'T HAVE A PERMIT -- AND THEY REALLY OUGHT TO
HAVE IT -- AND THEY THINK THEY HAVE GOT IT.  I COULD CONCEIVE OF THAT SITUATION.  

   BUT, IN THIS CASE, YOU CHOSE TO ISSUE A CESSATION ORDER, AND I THINK YOU CAN DO IT
WHETHER THERE IS AN IMMINENT DANGER OR NOT.  

   IT IS OBVIOUS IN THIS CASE, THOUGH, THERE IS NO PROVEN IMMINENT DANGER.  BUT, I THINK
IT IS LEGAL TO ISSUE IT RIGHT THERE ON THE SPOT BECAUSE IT IS A VIOLATION OF THE ACT TO
MINE WITHOUT A PERMIT.  

   NOW, AS TO THE NOTICE OF VIOLATION NUMBER 79-II-12-4, AND THE CESSATION ORDER WHICH
WAS ISSUED BECAUSE OF THAT, WHICH IS 79-II-12-5, I THINK THE PICTURES SHOW, ALONG WITH
THE TESTIMONY, THAT THERE IS PLENTY OF DIRT PILED HERE ON THE SIDE OF THE HILL.  AND A
GOOD SOLID RAIN IS GOING TO SEND A LOT OF DIRT DOWN THE VALLEY.  MAYBE PART OF IT (THE
RAIN) {180} WOULD SINK BACK INTO THE GROUND AND GO DOWN TO THE SEDIMENTATION
CONTROL AREA.  BUT, JUST LOOKING AT THE PICTURES AND HEARING THE TESTIMONY, I THINK
THE OSM HAS CARRIED THE ULTIMATE BURDEN OF PERSUASION, WHICH IS MORE THAN THEY ARE
REQUIRED TO DO.  

   I THINK THE PROOF IS BY A PREPONDERANCE OF THE EVIDENCE THAT THERE IS AN OUTSLOPE
THAT HAS NO SEDIMENTATION CONTROL.  

   NOW, IF THE STATE HAD APPROVED IT, OR EVEN IF THEY HAD APPROVED IT AT A LATER DATE, I
MIGHT HAVE CONSIDERED SAYING THAT IT CAME UNDER THE EXCEPTION OF THE ACT.  BUT, IT
HASN'T BEEN EXCEPTED AT THE TIME THAT YOU (THE APPLICANT) WERE DOING IT. THERE IS NOT
GOING TO BE MUCH RUNOFF IN THE DEAD OF WINTER BECAUSE EVERYTHING IS FROZEN.  EVEN IF
IT THAWS UP (IN WINTER), IT DOESN'T RUN OFF VERY MUCH.  BUT, IN THE SUMMER, IT WOULD
RUN OFF, AND THAT IS THE PROBLEM.  NOW, IT (THE NOV) WAS ISSUED ON FEBRUARY 14TH, AND
THE REMEDIAL TIME GIVEN WOULD HAVE AMOUNTED TO THREE WEEKS.  

   AS TO THE PARTICULAR ISSUE AS TO WHETHER {181}  THE TIME SHOULD HAVE BEEN
EXTENDED, I THINK PROBABLY IT SHOULD HAVE BEEN EXTENDED, BUT I DON'T BELIEVE THEY
ASKED FOR AN EXTENSION OF TIME.  HE (THE APPLICANT) COULDN'T REMEMBER EVEN ASKING
FOR AN EXTENSION OF TIME.  HAD HE ASKED FOR IT, I THINK YOU SHOULD HAVE GIVEN IT TO
HIM BECAUSE THE WEATHER WAS BAD, THE MUD, THE SNOW, EVERYTHING ELSE, PLUS, IT WASN'T
DOING A LOT OF DAMAGE.  

   AND LET ME TELL YOU ONE THING FOR SURE.  DON'T ISSUE SOMETHING BECAUSE OF
SOMETHING ELSE.  IN OTHER WORDS, THE FACT THAT HE WAS MINING COAL IN VIOLATION OF
YOUR CESSATION ORDER DIDN'T HAVE ANYTHING TO DO WITH WHETHER HE HAD HAD TIME. I
MEAN, YOU HAVE A TENDENCY TO SAY, "WELL, TO HECK WITH YOU, HERE YOU ARE MINING
COAL.  YOU SHOULD HAVE BEEN FIXING THE VIOLATION." THEY ARE NOT REALLY RELATED. AND
THE MOTIVATION OF THE INSPECTOR IS VERY IMPORTANT IN PROVING HIS CASE AS TO WHETHER
HE (THE INSPECTOR) WAS REASONABLE.  

   NOW, AS A MATTER OF FACT, HE (THE APPLICANT) TOOK THE STAND AND TESTIFIED AND SAID
HE COULD NOT REMEMBER WHETHER HE ASKED TO EXTEND THE {182} TIME OR NOT.  YOU (THE
INSPECTOR) SAID HE MIGHT HAVE.  BUT, ON THE OTHER HAND, IF THEY REALLY DON'T HAVE
TIME TO DO THE WORK, THEY NEED TO TELL YOU (THE INSPECTOR), AND, THEN, YOU NEED TO
CONSIDER IT.  THEY KNOW WHAT THEY NEED, AND THEY SHOULD HAVE ASKED FOR MORE TIME.  

   SO, I AM OF THE OPINION THAT THE BURDEN OF PROOF, THE PREPONDERANCE OF THE
EVIDENCE PROVES THE VIOLATION AND THAT THE TIME SET, AT LEAST ON ITS FACE, WAS
REASONABLE, AND THEY DIDN'T ASK FOR AN EXTENSION OF TIME.  

   AS TO VIOLATION NUMBER TWO, I CAN'T FIND ANYTHING IN THE REGULATIONS THAT SAYS IT IS
A VIOLATION TO STORE OVERBURDEN ON A FILL SLOPE.  IT JUST ISN'T IN THERE.  IF SOMEBODY
CAN SHOW IT TO ME, I WILL BE GLAD TO LISTEN.  BUT, IT IS JUST NOT THERE.  THIS, OBVIOUSLY,
IS NOT THE FINAL SLOPE.  I MEAN, THAT IS NOT THE FINAL SLOPE THAT WE ARE TALKING ABOUT.  

   SO, THERE IS NOTHING IN THE REGULATIONS THAT SAYS THAT YOU CAN'T TEMPORARILY
STORE OVERBURDEN ON A FILL SLOPE.  NOW, IF IT WAS ALLEGED AND THERE {183}
 
WAS PROOF THAT THIS WAS THE PROPOSED FINAL SLOPE, WELL, SURELY, IT WOULD BE A 
DIFFERENT MATTER.  BUT, THERE IS NO PROOF IN THE RECORD THE RECORD IS TO THE
CONTRARY, THE SPOIL HAS GOT TO BE MOVED BECAUSE THE LAW IS THAT THEY HAVE GOT TO
RECLAIM THAT HIGH WALL.  

   I AM VACATING VIOLATION NUMBER TWO.  

   THE CESSATION ORDER, OF COURSE, IS SUSTAINED BECAUSE I FOUND THAT THE TIME WAS
REASONABLE TO ABATE VIOLATION NUMBER ONE.  AND THAT, BY HIS OWN TESTIMONY, HE (THE
APPLICANT) CAN'T SAY THAT HE ASKED THAT THE TIME BE EXTENDED.  

   SO, I FIND THAT THE CESSATION ORDER ISSUED BECAUSE OF FAILURE TO ABATE VIOLATION
NUMBER ONE OF THE NOTICE OF VIOLATION IS SUSTAINED.  

   (WHEREUPON, AN OFF-THE-RECORD DISCUSSION WAS HELD.)  

   (WHEREUPON, THE HEARING WAS ENDED AT 5:20 P.M.)